Delhi District Court
Santosh Kumari vs Vardhman Properties Limited on 23 August, 2025
IN THE COURT OF SH. KULDEEP NARAYAN,
DISTRICT JUDGE-02
SOUTH-EAST, SAKET, NEW DELHI
CS No.337/2022
CNR No. DLSE01-003060-2022
1. Smt. Santosh Kumari
W/o Late Prem Prakash
R/o C-234, Gali No.8,
Majlis Park, Lord Krishna Road,
Delhi-110033
2. Smt. Mamta Gandhi
W/o Sh. Vijay Gandhi
R/o 26/138, 2nd Floor,
West Patel Nagar,
New Delhi-110008
............. Plaintiffs
Versus
M/s. Vardhman Properties Ltd.
G-9, Vardhman Trade Centre,
Nehru Place, New Delhi-110019
(Through Managing Director)
............ Defendant
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 1 of 50
KULDEEP
NARAYAN
Digitally signed by
KULDEEP NARAYAN
Date: 2025.08.23
14:00:59 +0530
District Judge-02,
South-East, Saket
Date of Institution : 01.06.2022
Date of reserving Judgment : 18.08.2025
Date of pronouncement : 23.08.2025
SUIT FOR RECOVERY OF MONEY
JUDGMENT
The present suit is filed by the plaintiffs seeking recovery of Rs.17 Lakhs.
Pleadings:
2. The brief facts as per the plaint are that the plaintiffs jointly booked two units No. T-96 & T-97 in Vardhman Central Mall, L.S.C., Nehru Vihar, New Delhi and an agreement in this regard was executed on 18.08.2007 between the plaintiffs and the defendant company. Plaintiffs deposited Rs.20,000/- vide receipt No.56388 dated 23.08.2007, gave a cheque of Rs.2,14,530/- dated 23.08.2007 drawn on Punjab National Bank vide receipt CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 2 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:08 +0530 District Judge-02, South-East, Saket No.56389 dated 23.08.2007 and thereafter, further gave a cheque of Rs.4,69,060/- dated 17.09.2007 drawn at Punjab National Bank vide receipt No.56991 dated 17.09.2007 and thus, a total sum of Rs.7,03,590/- is lying deposited with the defendant; that defendant started demanding illegal amount towards advance maintenance charges and other charges for the period 01.04.2010 to 31.03.2013 though the possession of the said units was not handed over to the plaintiffs; that the plaintiffs sent a Legal Notice dated 09.11.2010 demanding to get back their deposited amount with the defendant, but the defendant did not comply the said legal notice and sent a false reply; that thereafter the plaintiffs filed a Complaint No.661/2010 titled as "Santosh Kumari & Mamta Gandhi v. Vardhman Properties Ltd." before the District Consumer Forum, Mehrauli, Delhi which was withdrawn on 10.08.2018 with the liberty to file the same on the same cause of action in appropriate forum/Court as the properties CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 3 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:16 +0530 District Judge-02, South-East, Saket involved were shops and Consumer Protection Act had no jurisdiction in the matter; that thereafter the plaintiffs filed a Complaint No.39 of 2018 titled as "Santosh Kumari & Mamta Gandhi v. Vardhman Properties Ltd." before the Real Estate Regulatory Authority, New Delhi (RERA) which was dismissed on 11.04.2019 as the complaint was not maintainable before the Authority under the Real Estate (Regulation & Development) Act, 2016; that thereafter the plaintiffs filed an application before the South-East District Legal Services Authority for pre-institution mediation on 27.07.2020, but the defendant did not participate in the mediation process; that the defendant is liable to refund the total amount of Rs.17,00,342/- i.e., principal amount of Rs.7,03,590/- alongwith interest @ 10% per annum w.e.f. 01.10.2007 to 30.11.2021 which comes to Rs.10,97,600/- hence, the present suit for recovery of Rs.17 Lakhs alongwith pendente-
lite and future interest @ 10% per annum from the date of filing CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 4 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:26 +0530 District Judge-02, South-East, Saket of the suit till the realization of decretal amount.
3. Summons of the suit was issued to defendant and after service of summons, the defendant filed written statement on 30.11.2022, taking preliminary objections that the suit was barred by Order 7 Rule 11 CPC for not disclosing any cause of action in favour of the plaintiffs; that the present suit was hopelessly barred by law of limitation because as per the plaintiffs, the cause of action firstly arose on 30.12.2009 when the defendant demanded maintenance charges from the plaintiffs but the present suit was filed on 05.04.2022 i.e. after passing more than 12 years 3 months approximately; that the possession of the aforesaid units was offered to the plaintiffs by the defendant vide Letter dated 30.12.2009, whereby plaintiffs were requested to take the possession of their units on or before 31.01.2010 after making payment of the balance dues amounting to Rs.11,96,103/- as well as maintenance charges amounting to Rs.1,86,628/-; that the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 5 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:33 +0530 District Judge-02, South-East, Saket plaintiffs are estopped from reverting from their own consent given as per the terms and conditions at the time of signing the agreement as they failed to make further payment and clear their dues even after numerous reminders by the defendant; that the plaintiffs jointly entered into a flat buyer allotment Agreement dated 18.08.2007 with respect to two shops, being Unit No. T-96 & T-97, Vardhman Central Mall, L.S.C., Nehru Place, Delhi and the total sale consideration of both the said units was Rs.16,41,710/-; that the defendant having completed the construction of the building, offered the plaintiffs to take the possession of their units on 30.12.2009 and further demanded the balance dues amounting to Rs.11,96,103/- only along with a sum of Rs.1,86,628/- only as advance maintenance charges for three years as agreed vide the said Agreement; that the plaintiff chose to remain quiet for a considerable time and did not come forward to clear the dues for allotment of the said units for reasons best CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 6 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:41 +0530 District Judge-02, South-East, Saket known to them; that the defendant had made innumerable written requests to the plaintiffs from time to time to make the payment of outstanding dues and to take possession of the two units, vide letters dated 26.02.2010, 02.03.2010, 29.03.2010, 27.04.2010, 27.05.2010, 26.06.2010, 27.08.2010, 24.09.2010, 27.10.2010 & 20.12.2010, however, even after receiving all the said letters, the plaintiffs chose to sit quiet and failed to remit the balance amount and, instead of remitting the contractual dues, chose to file the false and fictitious suit; that the defendant was left with no alternative but to cancel the allotment of the said two units and sent a Letter dated 30.10.2011 cancelling the booking of the aforesaid two units being Unit No. T-96 & T-97, Vardhman Central Mall, LSC, Nehru Place, Delhi and further as per the terms and conditions of the Agreement, refunded an amount of Rs.2,93,163/- only vide Cheque No. 286258 dated 31.10.2011 drawn on State Bank of Mysore, Nehru Place, New Delhi after CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 7 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:48 +0530 District Judge-02, South-East, Saket forfeiting 25% of the total cost on account of non-payment of installments.
Issues:
4. Vide order dated 26.07.2023, as per the pleadings, following issues were framed:
i. Whether plaintiff is entitled to decree for a sum of Rs.17 Lakhs as prayed? OPP ii. Whether the plaintiff is entitled to interest, if yes, at what rate and for which period? OPP iii. Whether suit of the plaintiff is within the limitation? OPP iv. Whether plaintiff is entitled to benefit of Section 14 of The Limitation Act? OPP v. Whether the plaintiff committed breach of terms and CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 8 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:01:55 +0530 District Judge-02, South-East, Saket condition of the Flat Buyer Allotment Agreement dated 18.08.2007, if yes, its effect? OPD vi. Relief.
Plaintiff's Evidence:
5. Plaintiffs led evidence and got plaintiff no.2 namely Smt. Mamta Gandhi examined as PW-1 who deposed by way of affidavit Ex.PW-1/A and relied upon the documents i.e. copy of Agreement dated 18.08.2007 Ex. PW-1/1; copy of Letter dated 30.08.2007 Ex.PW-1/2A; copy of Letter dated 30.12.2009 Ex. PW-1/2B;
copy of Legal Notice dated 09.11.2010 Ex. PW-1/3; certified copy of order dated 10.08.2018 Ex. PW-1/4; certified copy of order dated 11.04.2019 Ex. PW-1/5 and Non-starter report of mediation Ex. PW-1/6.
6. PW-1 deposed that both she and plaintiff no.1, had jointly booked two units no. T-96 & T-97 in Vardhman Central Mall, L.S.C., CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 9 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:04 +0530 District Judge-02, South-East, Saket Nehru Vihar, New Delhi and the Agreement dated 18.08.2007 Ex.PW-1/1 was executed with the defendant in this regard. PW-1 further deposed that she and plaintiff no.1 had deposited a total sum of Rs.7,03,590/- vide receipt no. 56388 dated 23.08.2007, cheque dated 23.08.2007 and cheque dated 17.09.2007. PW-1 further deposed that the defendant started demanding illegal amount towards advance maintenance charges, etc. for the period 01.04.2010 to 31.03.2013 vide Letters dated 30.08.2007 and 30.12.2009 though the possession of the shops was not handed over to them. Thereafter, the plaintiffs sent Legal Notice dated 09.11.2010 Ex. PW-1/3 demanding their deposited amount from the defendant, but the defendant did not comply and sent a false reply. Thereafter, a complaint no.661/2010 titled as "Santosh Kumari & Mamta Gandhi v. Vardhman Properties Ltd." was filed before the District Consumer Forum, Mehrauli, Delhi which was withdrawn on 10.08.2018 vide order Ex. PW-1/4 with liberty to CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 10 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:11 +0530 District Judge-02, South-East, Saket file the same in appropriate Forum/Court. Thereafter, a complaint no.39/2018 titled as "Santosh Kumar & Mamta Gandhi v. Vardhman Properties Ltd." was filed before the Real Estate Regulatory Authority, New Delhi (RERA) which was dismissed vide order dated 11.04.2019 Ex.PW-1/5 (colly.) being not maintainable before the Authority under the Real Estate (Regularization & Development) Act, 2016.
7. PW-1 further deposed that thereafter one application was filed before the South-East District Legal Services Authority for pre- institution mediation on 27.07.2020, but the defendant did not participate in the mediation process vide Non-Starter Report Ex.PW-1/6.
8. PW-1 was cross-examined by the learned counsel for defendant.
During the cross-examination, PW-1 stated that the defendant had first time offered to take the possession of the shops in the year 2009-10. PW-1 was asked a pointed question that in terms of CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 11 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:17 +0530 District Judge-02, South-East, Saket Agreement Ex. PW-1/1, maintenance charges of Rs.120/- per sq. feet in advance were required to be paid by the plaintiffs to which she answered that the terms and conditions of the said agreement were not read in detail at the time of signing the same.
9. On further cross-examination, PW-1 stated that the payment of allied charges of Rs.2,57,980/- as mentioned in schedule of installment on page no.3 of the Agreement Ex. PW-1/1 was not made because the plaintiffs were not interested in continuing with the deal and wanted the amount refunded from the defendant.
10. PW-1 denied the suggestion that the aforesaid payment was not made because plaintiffs were not having sufficient amount for making the payment. She further denied the suggestion that she had signed the Agreement Ex. PW-1/1 after reading and understanding the same. Thereafter, during cross-examination recorded on 30.03.2024, learned counsel for defendant confronted PW-1 with letters and postal receipts Ex. PW-1/DX-1 (colly.) to CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 12 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:26 +0530 District Judge-02, South-East, Saket Ex. PW-1/DX-11 (colly.). After seeing the same, PW-1 stated that the said letters were never received by them though the addresses mentioned on the said letters i.e. 9-B, Vikrant Apartments, Sector 13, Rohini, Delhi was their correct address. PW-1 further denied that the defendant had sent a cheque of Rs.2,93,163/- on 31.10.2011 on the said address. She further voluntarily stated that the said flat was in possession of her uncle since 2014-15.
Admittedly, the defendant was not informed about shifting from the said flat. The defendant was also not informed regarding their current address.
Defendant's Evidence:
11. Thereafter, defendant led evidence and got Mr. Udesh Kumar, authorized representative, examined as DW-1who deposed by way of affidavit Ex. DW-1/1 and relied upon the documents i.e. copy of reminder/letter dated 26.02.2010 Ex. DW-1/A, which was already exhibited as Ex. PW-1/DX-1 (colly.) during cross- CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 13 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:36 +0530 District Judge-02, South-East, Saket examination of PW-1; copy of reminder/ letter dated 02.03.2010 Ex. DW-1/B, which was already exhibited as Ex. PW-1/DX-2 (colly.) during cross-examination of PW-1; copy of reminder/letter dated 29.03.2010 Ex. DW-1/C, which was already exhibited as Ex. PW-1/DX-3 (colly.) during cross-examination of PW-1; copy of reminder/letter dated 27.04.2010 Ex. DW-1/D, which was already exhibited as Ex. PW-1/DX-4 (colly.) during cross- examination of PW-1; copy of reminder/ letter dated 27.05.2010 Ex. DW-1/E, which was already exhibited as Ex. PW-1/DX-5 (colly.) during cross-examination of PW-1; copy of reminder/letter dated 26.06.2010 Ex. DW-1/F, which was already exhibited as Ex. PW-1/DX-6 (colly.) during cross-examination of PW-1; copy of reminder/letter dated 27.08.2010 Ex. DW-1/G, which was already exhibited as Ex. PW-1/DX-7 (colly.) during cross-examination of PW-1; copy of reminder/ letter dated 24.09.2010 Ex. DW-1/H, which was already exhibited as Ex. PW-1/DX-8 (colly.) during CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 14 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:42 +0530 District Judge-02, South-East, Saket cross-examination of PW-1; copy of reminder/letter dated 27.10.2010 Ex. DW-1/I, which was already exhibited as Ex.PW-1/DX-9 (colly.) during cross-examination of PW-1; copy of reminder/letter dated 20.12.2010 Ex. DW-1/J, which was already exhibited as Ex. PW-1/DX-10 (colly.) during cross-
examination of PW-1; copy of cancellation of allotment dated 31.10.2011 Ex. DW-1/K, which was already exhibited as Ex.PW-1/DX-11 (colly.) during cross-examination of PW-1; copy of Occupancy Letter Ex. DW-1/L; copy of Written Statement filed by defendant in Consumer Forum Mark-DW-1/Z-1 and copy of Written Statement filed by defendant before RERA Mark-DW-1/Z-2.
12. Mr. Udesh Kumar (DW-1) deposed that the present suit is hopelessly barred by law of limitation for the reason that the cause of action firstly arose on 30.12.2009 when the defendant demanded maintenance charges from the plaintiffs, whereas the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 15 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:48 +0530 District Judge-02, South-East, Saket present suit was filed on 05.04.2022 after more than 12 years three months approximately.
13. DW-1 further deposed that offer of possession of the units was made to the plaintiffs vide Letter dated 30.12.2009 requesting to take possession on or before 31.01.2010 after making payment of the dues amounting to Rs.11,96,103/- as well as maintenance charges amounting to Rs.1,86,628/-. DW-1 further deposed that the plaintiffs had agreed to abide with the terms and conditions as contained in Agreement dated 18.08.2007 and agreed to pay the allied charges for a sum of Rs.2,57,983/- which was payable at the time of offer of the possession. The defendant after completion of construction offered the plaintiffs to take possession of their units on 30.12.2009 and demanded the balance dues amounting to Rs.11,96,103/- alongwith a sum of Rs.1,86,628/- towards advance maintenance charges for three years as agreed vide the said Agreement, but the plaintiffs did not CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 16 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:02:55 +0530 District Judge-02, South-East, Saket come forward to clear the dues for allotment of the said units. Further the defendant had made innumerable written requests to the plaintiffs from time to time to make payment of the outstanding dues and to take the possession of units vide Letters Ex. DW-1/A to Ex. DW-1/J. However, the plaintiffs failed to remit the balance amount and instead filed the false and fictitious suit.
14. DW-1 further deposed that the plaintiffs failed to perform their contractual obligations and under the given circumstances, the defendant was left with no alternative but to cancel the allotment of the said two units. The defendant sent Letter dated 31.10.2011 cancelling the booking of the said two units and as per the terms and conditions of the Agreement, refunded a sum of Rs.2,93,163/- vide cheque no.286258 dated 31.10.2011 drawn on State Bank of Mysore, Nehru Place, New Delhi after forfeiting 25% of the total cost on account of non-payment of installments. DW-1 also relied CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 17 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:04 +0530 District Judge-02, South-East, Saket upon the copy of the Cancellation of Allotment dated 31.10.2011,Ex. DW1/K, copy of Occupancy Letter Ex. DW-1/L, copy of reply filed in District Consumer Forum Ex. DW-1/M (colly.) and copy of reply filed in RERA Ex. DW-1/N (colly).
15. DW-1 was cross-examined by the learned counsel for plaintiff, during which, he stated that he had joined job with the defendant in the year 1966. He denied that he was not authorized to depose as no Board Resolution or Authority Letter in his favour was filed on record. DW-1 could not remember when Fire NOC of the project i.e. Vardhman Central Mall, L.S.C., Nehru Vihar, New Delhi was obtained.
16. On further cross-examination, DW-1 stated that the stipulated date of completion of the project was in December, 2009. He further denied the suggestion that the construction was not complete till December, 2009 or that the plaintiffs' units were illegally cancelled by the defendant.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 18 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:11 +0530 District Judge-02, South-East, Saket Final Arguments:
17. I heard final arguments advanced by Sh. O.P. Gupta, learned counsel for the plaintiffs and Sh. Naveen Dabas, learned counsel for the defendant. During the course of arguments, learned counsel for plaintiff contended that the defendant had started demanding advance maintenance charges without handing over the possession of the units to the plaintiffs. Further, the building was not complete, so there was no question of handing over the possession to the plaintiffs and therefore, no occasion arose to demand maintenance charges from the plaintiffs. Learned counsel for plaintiff further submitted that the plaintiffs filed the complaint before the District Consumer Forum as well as RERA which were not having jurisdiction to decide the claim and therefore, the present suit was filed before the competent court of jurisdiction.
18. Per contra, learned counsel for defendant contended that the suit is hopelessly barred by limitation and plaintiffs are not entitled for CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 19 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:18 +0530 District Judge-02, South-East, Saket any relief as they committed breach of terms and conditions of Agreement dated 18.08.2007 in not making the payment of dues and taking over possession of their units and accordingly, the allotment of units was cancelled and 25% of total cost was forfeited as per the Agreement.
19. Learned counsel for the plaintiffs relied upon Ketan Parekh v.
Special Director, Directorate of Enforcement and Anr., AIR 2012 SC 683, Commissioner, M.P. Housing Board and Ors. v. M/s. Mohanlal and Company, AIR 2016 SC 3592, State of Manipur and Ors. v. Koting Lamkang, (2019) 10 SCC 408, Ethopian Airlines v. Ganesh Narain Saboo, AIR 2011 SC 3495 and M.P. Steel Corporation v. Commissioner of Central Excise,(2015) 7 SCC 58. On the other hand, learned counsel for the defendant relied upon Satish Batra v. Sudhir Rawal, (2013) 1 SCC 345. Both the parties also filed brief written submissions. Analysis & Findings:
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 20 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:28 +0530 District Judge-02, South-East, Saket
20. Having heard the submissions and perused the material available on record, my findings on the aforesaid issues, in a logical sequence, are as under:
Issue No. 4
(4) Whether plaintiff is entitled to benefit of Section 14 of The Limitation Act? OPP
21. During the course of arguments, learned counsel for the defendant contended that the present suit is hopelessly barred by law of limitation for the reason that the cause of action firstly arose on 30.12.2009 when the defendant demanded maintenance charges from the plaintiffs, whereas the present suit was filed on 05.04.2022 i.e., after more than 12 years three months approximately.
22. Per contra, learned counsel for the plaintiffs contended that plaintiffs bona-fide and in good faith, had been prosecuting the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 21 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:33 +0530 District Judge-02, South-East, Saket claim before the District Forum and RERA which were not having jurisdiction to decide the claim. Further, the time during which proceedings were pending before District Forum and RERA shall be excluded under Section 14 of the Limitation Act, 1963, and therefore the suit was filed within limitation period in the competent Court.
23. Here, it is apposite to extract relevant portion of Section 14 of the Limitation Act, 1963 which is as under:-
14. Exclusion of time of proceeding bona fide in court without jurisdiction -
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 22 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:40 +0530 District Judge-02, South-East, Saket (2) xxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxx Explanation: For the purposes of this section,-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; and
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
24. In Consolidated Engineering Enterprises v. Principal Secretary Organization Department, (2008) 7 SCC 169, the principles pertaining to applicability of Section 14 of the Limitation Act were discussed extensively by the Hon'ble Supreme Court and following was laid down:-
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 23 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:50 +0530 District Judge-02, South-East, Saket "Section 14 of the Limitation Act deals with exclusion of time of proceeding bona-fide in a Court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a Court."
25. It was also laid down by the Apex Court that the provisions of this Section must be interpreted and applied in a manner that furthers the cause of justice, rather than aborts the proceedings at hand and the time taken diligently pursuing a remedy in a wrong Court, should be excluded.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 24 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:03:59 +0530 District Judge-02, South-East, Saket
26. Similarly, in M.P. Steel Corporation v. Commissioner of Central Excise, (2015) 7 SCC 58, the Apex Court discussed the phrases "due diligence" and "in good faith" for the purposes of invocation of Section 14 of the Limitation Act to observe that the said phrases only mean that the party who invokes Section 14 should not be guilty of negligence, lapse or inaction. Further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party.
27. In P. Sarathy v. State Bank of India, (2000) 5 SCC 355, the Apex Court made a distinction between "Civil Court" and "court" and expanded the scope of Section 14 of the Limitation Act stating that any authority or tribunal having the trappings of a Court would be a "court" within the meaning of Section 14. Further, for Section 14 to apply, two conditions have to be met- First, the primary proceeding must be a suit, appeal or application filed in a Civil Court and Second, it is only when it comes to excluding CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 25 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:06 +0530 District Judge-02, South-East, Saket time in an abortive proceeding that the word "Court" has been expanded to include proceedings before the Tribunals.
28. As far as any Authority or Tribunal having the trappings of a Court is concerned, long back, the Apex Court in Associated Cement Companies Ltd. v. P. N. Sharma and Anr., 1965 AIR 1595 had held that the requirements of procedure which is followed in courts and the possession of subsidiary powers which are given to courts to try the cases before them are described as trappings of the courts, but the consideration about the presence of all or some of the trappings of a court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings, is the judicial power of the State or not. The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 26 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:12 +0530 District Judge-02, South-East, Saket described as a part of the State's inherent power exercised in discharging its judicial function. Thus, it should be constituted by the State and it should be invested with any part of the judicial functions of the State but should not discharge purely administrative or executive duties. Further, the other incidents of the investiture of the 'trappings of a court' are authority to determine matters in cases initiated by parties, sitting in public, power to compel attendance of witnesses and to examine them on oath. In fact, such authority or tribunal is under a duty to act judicially.
29. In view of above-mentioned legal propositions, there is no doubt that a District Forum constituted under Section 9 of the Consumer Protection Act,1986 (now repealed by the Consumer Protection Act, 2019 which came into effect on 20.07.2020) and RERA constituted under Section 20 (1) of the Real Estate (Regulation & Development) Act, 2016, are having trappings of a Court. CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 27 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:19 +0530 District Judge-02, South-East, Saket
30. A bare perusal of provisions of the Consumer Protection Act,1986 like Section 12 (Manner in which complaint shall be made), Section 13 (Procedure on admission of complaint), Section 13 (4) (same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining them on oath; the discovery and production of any document or other material object producible as evidence; the reception of evidence on affidavits; the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source and issuing of any commission for the examination of any witness.), Section 13 (5) (proceedings before the District Forum are deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 and District Forum is deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 28 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:27 +0530 District Judge-02, South-East, Saket Criminal Procedure, 1973.), Section 14 (Findings of the District Forum), Section 25 (Enforcement of orders) and Section 27 (Penalties) would leave no doubt that District Forum was having all the trappings of a court. Furthermore, Section 27 (2) conferred the powers of Judicial Magistrate first class for the trial of offences under the Act while deeming it to be Judicial Magistrate first class for the purpose of Code of Criminal Procedure, 1973.
31. Similarly, provisions of the Real Estate (Regulation & Development) Act, 2016, like Section 31 (Filing of complaints), Section 34 (Functions of Authority), Section 35 (Power to call for information, conduct investigations), Section 35 (2) (Powers of Civil Court in certain respects as enumerated therein), Section 36 (Power to issue interim orders), Section 37 (Powers to issue directions) and Section 38 (Power to impose penalty or interest) amply demonstrate the quasi-judicial nature of RERA. The authoritative pronouncement by the Hon'ble Supreme Court vide CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 29 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:34 +0530 District Judge-02, South-East, Saket judgment dated 11.11.2021 in Civil Appeal No(s) 6745-6749 of 2021 titled as M/s. Newtech Promoters and Developers Pvt. Ltd. v. State of U.P. and Ors., also dealt elaborately with the quasi- judicial nature of RERA, besides other issues.
32. In view of afore-discussed legal propositions, it is evident that provisions stipulated under Section 14 of the Limitation Act, 1963 are applicable to the proceedings conducted before the District Forum as well RERA.
33. As per the aforementioned testimonies and material available on record, it is evident that both the plaintiffs jointly booked two units being unit no. T-96 & T-97 in Vardhman Central Mall, L.S.C., Nehru Vihar, Delhi and Agreement dated 18.08.2007 Ex.PW-1/1 was executed between both the parties. The defendant sent Letter dated 30.12.2009 Ex. PW-1/2B whereby plaintiffs were requested to take the possession of their units on or before 31.01.2010 after making payment of the balance dues amounting CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 30 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN Date:
NARAYAN 2025.08.23 14:04:41 +0530 District Judge-02, South-East, Saket to Rs.11,96,103/- as well as maintenance charges amounting to Rs.1,86,628/-. The plaintiffs instead sent Legal Notice dated 09.11.2010 Ex. PW-1/3, demanding back their deposited amount which was replied by the defendant vide Reply/Notice dated 11.11.2010. Plaintiffs filed complaint before the District Forum on 08.12.2010.
34. It is, therefore, clear that the cause of action to seek recovery of the amount deposited with the defendant arose when Legal Notice dated 09.11.2010 Ex. PW-1/3 was sent by the plaintiffs consequent upon which plaintiffs filed complaint before the District Forum.
35. The said complaint was withdrawn on 10.08.2018 vide certified copy of order Ex. PW-1/4 of the District Forum.
36. Thereafter, plaintiffs filed complaint before the Real Estate Regulatory Authority (RERA) which was dismissed vide order CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 31 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:04:47 +0530 District Judge-02, South-East, Saket dated 11.04.2019 Ex. PW-1/5.
37. Thereafter, presumably under Section 12A of the Commercial Courts Act, 2015, plaintiffs filed an application before the South-
East District Legal Services Authority for pre-institution mediation on 27.07.2020, but the defendant did not participate in the mediation process vide Non-Starter Report dated 17.12.2020 Ex. PW-1/6.
38. Consequently, plaintiffs filed the present suit for recovery under Section 6 of the Commercial Courts Act, 2015 on 05.04.2022 which was transferred to this Court vide order dated 08.02.2023 passed by the learned Principal District & Sessions Judge, South- East District, Saket Courts, New Delhi after withdrawing the same from the Court of learned District Judge, (Commercial) (Digital Court-07) South-East District, Saket Courts, New Delhi as the dispute was not a commercial dispute as defined under Section 2 (1) (c) of the Commercial Courts Act, 2015.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 32 of 50
Digitally
signed by
KULDEEP
KULDEEP NARAYAN
NARAYAN Date:
2025.08.23
14:04:53
+0530
District Judge-02,
South-East, Saket
39. In the afore-mentioned facts and circumstances, it is evident that the plaintiffs had been prosecuting civil proceedings against the defendant with due diligence and in good faith before the District Forum and RERA which were not entertained due to defect of jurisdiction. In my considered opinion, all the five conditions as laid down in Consolidated Engg. (supra) case are met and plaintiffs, under Section 14 of the Limitation Act, 1963, are entitled to claim exclusion of time so spent before the District Forum and RERA in computing the period of limitation for filing the present suit.
40. As observed above, plaintiffs filed complaint before the District Forum on 08.12.2010 which was withdrawn on 10.08.2018. Thereafter, complaint was filed before RERA on 24.09.2018 which was dismissed on 11.04.2019. Therefore, the aforesaid period stands excluded under Section 14 of the Limitation Act, 1963 for the purpose of computation of period of limitation for CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 33 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN Date:
NARAYAN 2025.08.23 14:05:01 +0530 District Judge-02, South-East, Saket filing the present suit.
41. The issue is decided in favour of the plaintiffs. Issue No. 3
(3) Whether suit of the plaintiff is within the limitation? OPP
42. As observed above, the cause of action to institute the present suit for recovery had arisen on 09.11.2010. As per Article 113 in the Schedule of the Limitation Act, 1963, prescribed period of limitation for filing the suit is three years which begins to run when the right to sue accrues.
43. Vide findings on issue no. 4, the period w.e.f. 08.12.2010 to 10.08.2018 and period w.e.f. 24.09.2018 to 11.04.2019 stand excluded under Section 14 of the Limitation Act, 1963. CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 34 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:08 +0530 District Judge-02, South-East, Saket
44. After 11.04.2019, plaintiffs filed an application on 27.07.2020 before the South-East District Legal Services Authority under Section 12A of the Commercial Courts Act, 2015, for pre-
institution mediation however, the defendant did not participate in the mediation process vide Non-Starter Report dated 17.12.2020 Ex. PW-1/6 consequent upon which the present suit was filed on 05.04.2022.
45. As stipulated under second Proviso appended to Section 12A (3) of the said Act, the period during which the parties remained occupied with the pre-institution mediation shall not be computed for the purpose of limitation under the Limitation Act, 1963.
46. It is, thus, clear that after accrual of cause of action on 09.11.2010, the period w.e.f. 08.12.2010 to 10.08.2018 (7 years 8 months 4 days) and from 24.09.2018 to 11.04.2019 (6 months 18 days) stand excluded under Section 14 of the Limitation Act, 1963. Further, the period w.e.f. 27.07.2020 to 17.12.2020 (4 CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 35 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:15 +0530 District Judge-02, South-East, Saket months 22 days) stands excluded under second Proviso appended to Section 12A (3) of the Commercial Courts Act, 2015.
47. From the date of accrual of cause of action i.e. 09.11.2010 till the date of filing of the suit on 05.04.2022, total period spent is 11 years 4 months 27 days out of which aforesaid total period of 8 years 7 months 14 days stand excluded.
48. Therefore, the present suit filed on 05.04.2022 is within limitation period of three years in terms of Article 113 in the Schedule of the Limitation Act, 1963.
49. The issue is decided in favour of the plaintiffs.
Issue No.5 Whether the plaintiff committed breach of terms and condition of the Flat Buyer Allotment Agreement dated 18.08.2007, if yes, its effect. OPD CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 36 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:23 +0530 District Judge-02, South-East, Saket
50. The onus to prove this issue was placed upon the defendant. To discharge the same, Mr. Udesh Kumar (DW-1) deposed that he was authorized vide Board Resolution to depose in the present case. Board Resolution was filed on 17.11.2022 on record. He further deposed that the Agreement dated 18.08.2007 Ex. PW-1/1 was executed between the plaintiffs and the defendant in respect of two units i.e., units no. T-96 & T-97 in Vardhman Central Mall, L.S.C., Nehru Vihar, New Delhi whereby plaintiffs agreed to abide by the terms and conditions of the said Agreement and agreed to pay allied charges of Rs.2,57,983/- which was payable at the time of offering of the possession. Further, after completion of the construction, the defendant offered the plaintiffs to take possession of their units on 30.12.2009 and also demanded balance dues amounting to Rs.11,96,103/- alongwith sum of Rs.1,86,628/- towards advance maintenance charges for three years which was agreed as per the said Agreement. However, the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 37 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:32 +0530 District Judge-02, South-East, Saket plaintiffs did not come forward to clear the dues despite various written requests made by the defendant.
51. DW-1 further deposed that since the plaintiffs failed to perform their contractual obligations, the defendant was left with no alternative but to cancel the allotment of the said two units vide Letter dated 31.10.2011 Ex. DW-1/K. Further, as per the agreed terms and conditions of Agreement Ex. PW-1/1, defendant refunded a sum of Rs.2,93,163/- vide cheque no.286258 dated 31.10.2011 drawn on State Bank of Mysore, Nehru Place, New Delhi to the plaintiffs after forfeiting 25% of the total cost on account of non-payment of installments.
52. The execution of Agreement Ex. PW-1/1 is not in dispute. As per the 'Schedule of Installment' contained therein, a sum of Rs.2,34,000/- was to be paid at the time of booking and balance amount was to be paid on or before the offer of possession alongwith allied charges of Rs.2,57,983/-. Further, as per the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 38 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:38 +0530 District Judge-02, South-East, Saket terms under the head 'Payment of Common Service Charges etc.,' the plaintiffs agreed to pay service and maintenance charges in advance after notice to take possession is sent to them. It was also agreed that the defendant will maintain the building only upto 36 months from the date of offering the possession. Further, the prescribed common maintenance and service charges were agreed to be @ Rs.120/- per square feet per year which was to be paid in advance. The Agreement also contained a clause under the head 'Possession only after Full payment' which stipulated that under no circumstances, the possession of the property shall be given unless and until all payment required has been made. Further, as soon as the unit is notified by the Promoters as complete and ready for occupation, the Buyer shall pay all arrears demanded by the Promoters within ten days of the registered notice served individually upon him.
53. Regarding completion of building and handing over the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 39 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:45 +0530 District Judge-02, South-East, Saket possession, no definite date was agreed and handing over of possession was subject to payment, availability of building material and other compliances, etc. by the municipal authorities. It was also stipulated that the defendant will only apply for Completion Certificate.
54. Vide Letter dated 30.12.2009 Ex. PW-1/2B, the defendant offered possession of units to the plaintiffs after payment of dues of Rs.11,96,103/- and maintenance charges including service tax for the period 01.04.2010 to 31.03.2013 amounting to Rs.1,86,628/-
on or before 31.01.2010. However, the plaintiffs sent Legal Notice dated 09.11.2010 Ex. PW-1/3, alleging illegal demand of maintenance charges and other charges without handing over possession.
55. During the cross-examination, PW-1 was asked about the terms of Agreement Ex. PW-1/1 regarding payment of maintenance charges @ Rs.120/- per square feet in advance, to which she CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 40 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:51 +0530 District Judge-02, South-East, Saket replied that she had not read the terms and conditions in detail at the time of putting her signatures. On further cross-examination, PW-1 stated that payment of allied charges of Rs.2,57,983/- as mentioned in Schedule of Installment in Agreement Ex. PW-1/1 was not made because plaintiffs were not interested in continuing with the deal and wanted their amount refunded.
56. PW-1 was also confronted with Letters Ex. PW-1/DX-1 to Ex.PW-1/DX-11 which she refused to have received or served upon the plaintiffs. PW-1 further admitted that the address mentioned on the aforesaid letters i.e. 9-B, Vikrant Apartments, Sector 13, Rohini, Delhi-110085 was their correct address though she voluntarily said that the said flat belonged to her mother and was lying vacant since 2010. She further denied that the defendant had sent cheque of Rs.2,93,163/- on 31.10.2011 on the address of aforesaid flat. Admittedly, plaintiffs never informed the defendant about shifting from the aforesaid flat nor their present CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 41 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:05:58 +0530 District Judge-02, South-East, Saket address was informed to the defendant.
57. It is also clear from the Legal Notice Ex. PW-1/3 that the plaintiffs demanded refund of Rs.7,03,590/- with interest alleging that the defendant had started demanding illegal amount towards maintenance charges and other charges without handing over the possession to them. However, as observed above, advance payment of maintenance charges and service charges was duly agreed by the plaintiffs vide Agreement Ex.PW-1/1.
58. As far as offer of possession of the units made by the defendant vide Letter Ex. PW-1/2B dated 30.12.2009 and payment of maintenance charges of Rs.1,86,628/- is concerned, it is clear from the Occupancy Certificate Ex. DW-1/L that the defendant had applied for Occupancy Certificate by sending Notice of Completion dated 14.01.2010 to DDA consequent upon which the aforesaid Occupancy Certificate dated 12.04.2010 Ex. DW-1/L was issued.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 42 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:05 +0530 District Judge-02, South-East, Saket
59. It is thus clear that the defendant offered possession of the units to the plaintiffs to be taken on or before 31.01.2010 after making payment of balance dues and completing other documentary formalities. The defendant also applied for Occupancy Certificate vide Notice of Completion dated 14.01.2010. A number of reminders vide Letter dated 26.02.2010 Ex. DW-1/A to Letters dated 20.12.2010 Ex. DW-1/J were sent to the plaintiffs, but to no avail and resultantly the allotment of units was cancelled by the defendant vide Letter dated 30.10.2011 Ex. DW-1/K. It is thus clear that at the time of cancellation of allotment of units, the building was complete for possession well before the said date.
60. In the afore-discussed facts and circumstances, it is clear that the plaintiffs committed breach of agreed terms and conditions of Agreement Ex. PW-1/1 in not making payment of advance maintenance charges and common service charges for obtaining possession of their units. No plausible or cogent reason could be CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 43 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:11 +0530 District Judge-02, South-East, Saket brought on record by the plaintiffs for not making payment of advance maintenance and common service charges as demanded by the defendant and therefore, the cancellation of allotment of units vide Letter Ex. DW-1/K dated 31.10.2011 was in terms of the Agreement Ex. PW-1/1.
61. As far as forfeiture of 25% of total cost deposited with the defendant is concerned, in Satish Batra (supra) case, the Apex Court referred the case titled as Shree Hanuman Cotton Mills v. Tata Air Craft Ltd. (1969) 3 SCC 522 wherein, considering the scope of the term "earnest", certain principles were laid down which are extracted as under:
"21. From a review of the decisions cited above, the following principles emerge regarding 'earnest':
(1) It must be given at the moment at which the contract is concluded.
(2) It represents a guarantee that the contract will CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 44 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:17 +0530 District Judge-02, South-East, Saket be fulfilled or, in other words, "earnest" is given to bind the contract.
(3) It is part of the purchase price when that transaction is carried out.
(4) It is forfeited when the transaction falls through by reason of the default or failure of the purchaser.
(5) Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest."
62. In this regard, it is noteworthy that in Agreement Ex. PW1/1, under the head 'Schedule of Installment', it was agreed if no payment is received within the stipulated period given in the Installment Call Notice, the allotment will be cancelled and the whole of earnest money i.e. 25% of the total cost of the unit already received will be forfeited and only the balance amount will be refunded without any interest. Similarly, under the head 'Completion of Building', it was agreed that in case the building does not get completed or the space to be acquired by the buyer is CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 45 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:23 +0530 District Judge-02, South-East, Saket not constructed, amount received by the Promoters shall be refunded to the buyer without interest.
63. Thus, it is apparent that the amount of Rs.7,03,590/- deposited with the defendant was 'earnest money' which, as per the terms of Agreement, was to ensure fulfillment of terms of Agreement by the plaintiffs.
64. Accordingly, forfeiture of 25% of the total cost of Rs.16,41,710/-
on account of non-payment by the plaintiffs was also in terms of the aforesaid Agreement which was duly communicated to the plaintiffs. Upon perusal of Letter Ex. PW-1/K, it is also evident that the cancellation of units was without prejudice to the complaint pending before the District Forum which indicate that defendant was aware about the proceedings pending before the District Forum and therefore the fact of cancellation of units would certainly have been brought to the notice of the plaintiffs. CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 46 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:29 +0530 District Judge-02, South-East, Saket
65. The defendant successfully discharged the onus placed on it and therefore this issue is decided in favour of the defendant. Issue No.1 Whether plaintiff is entitled to decree for a sum of Rs.17 Lakhs as prayed? OPP
66. The onus to prove this issue was placed upon the plaintiffs.
Plaintiffs claimed refund of total amount of Rs.17,00,342/- i.e., principal amount of Rs.7,03,590/- alongwith interest @ 10% per annum w.e.f. 01.10.2007 to 30.11.2021 amounting to Rs.10,97,600/- which was rounded off to Rs.17,00,000/-. However, the calculation done by the plaintiffs is wrong as the total claimed amount as per the plaintiffs comes to Rs.18,01,190/- and not Rs.17,00,342/-.
67. In view of findings of issue no.5, it is evident that the fault lies on the part of the plaintiffs in not taking over the possession of the CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 47 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:36 +0530 District Judge-02, South-East, Saket units after making payment of balance dues and maintenance and service charges in terms of Agreement Ex. PW-1/1. Accordingly, the plaintiffs are not entitled to claim the aforesaid amount to Rs.17,00,000/- from the defendant. Otherwise also, it was not explained on what basis, interest @ 10% per annum amounting to Rs.10,97,600/- was claimed which in itself, is more than the principal amount of Rs.7,03,590/-. It is also clear in view of findings of issues no. 3 & 4 that the delay in filing the suit occurred due to the plaintiffs filing claims in wrong Forums to seek recovery of the amount and therefore, the claim of interest for the said entire duration is not justifiable.
68. Therefore, in my considered opinion, the plaintiffs are not entitled to seek recovery of the claimed amount of Rs.17,00,000/- from the defendant. However, as the defendant, after forfeiting 25% of the total cost, had refunded a sum of Rs.2,93,163/- by way of cheque dated 31.10.2011 and there is no material available on CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 48 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:41 +0530 District Judge-02, South-East, Saket record to indicate if the aforesaid cheque was ever encashed by the plaintiffs, in the given circumstances, the plaintiffs are entitled to receive the aforesaid amount of Rs.2,93,163/- only from the defendant.
69. The issue is accordingly decided.
Issue No.2 Whether the plaintiff is entitled to interest, if yes, at what rate and for which period? OPP
70. In view of findings on the aforesaid issues, the plaintiffs are not entitled to claim interest @ 10% per annum on the principal amount of Rs.7,03,590/-, however, in the given facts and circumstances, it will be reasonable if the plaintiffs are paid interest @ 6% per annum on the aforesaid amount of Rs.2,93,163/- from the date of filing of the suit i.e., 05.04.2022 till its realization.
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 49 of 50 Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date:
2025.08.23 14:06:48 +0530 District Judge-02, South-East, Saket
71. The issue is accordingly decided.
Relief:
72. In view of my issue-wise findings, the suit is partly decreed. The defendant is directed to pay the sum of Rs.2,93,163/- to the plaintiffs alongwith interest @ 6% per annum from the date of filing of the present suit i.e., 05.04.2022 till its realization. Decree-Sheet be prepared accordingly.
73. File be consigned to Records after necessary compliance.
Digitally signed by KULDEEP (Announced in open KULDEEP NARAYAN NARAYAN Date:
Court on 23.08.2025) 2025.08.23
14:06:56
+0530
(Kuldeep Narayan)
District Judge-02, (S-E),
Court Room No.615,
Saket Courts, New Delhi
CS DJ No.337/2022 Santosh Kumari & Anr. Vs. M/s. Vardhman Properties Ltd. Page No. 50 of 50
District Judge-02,
South-East, Saket