Delhi District Court
Kuber Saraogi vs M/S Topsy on 27 September, 2016
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE
SOUTH EAST DISTRICT, SAKET COURTS, ND.
Civil Suit No. 6809/16
Unique ID No. 02406C0165252014
Kuber Saraogi
S/o Late Ravindra Saraogi
R/o A 422, 1st floor, Sector 46
Noida, U.P. ..........Plaintiff
Versus
1.M/s Topsy A partnership firm, having its registered office at MP Thottam, NH 47, Main Road, Kallipalayam Senapathy, Chettipalayam Post Uthukuli RS Via, Avanshi Taluk, Tirupur District, Pin code 638752 Tamil Nadu And also at AII/79, A & B Lajpat NagarII, New Delhi110024
2. Mr. C. Sivasami S/o Shri Chellappan Partner M/s Topsy MP Thottam, NH 47, Main Road, Kallipalayam Senapathy, Chettipalayam Post Uthukuli RS Via, Avanshi Taluk, Tirupur District, Pin code 638752 CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 1 of 7 Tamil Nadu And also at AII/79, A & B Lajpat NagarII, New Delhi110024
3. Mr. S. Jana Bharathi, S/o C. Sivasami Partner M/s Topsy MP Thottam, NH 47, Main Road, Kallipalayam Senapathy, Chettipalayam Post Uthukuli RS Via, Avanshi Taluk, Tirupur District, Pin code 638752 Tamil Nadu And also at AII/79, A & B Lajpat NagarII, New Delhi110024 ..........Defendants Date of institution of the suit : 09.07.2014 Date of pronouncement of judgment: 27.09.2016 EXPARTE JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of Rs. 8,10,000/ alongwith the interest @ 18% Per annum.
Plaintiff's version as per averments in the plaint : 2.1 Succinctly, the plaintiff is engaged in the business of sale and purchase of properties. The defendant no.1 is a partnership concern of which defendant no. 2 & CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 2 of 7 3 are partners. The defendants are engaged in the business of Garments and Textile goods and have their showroom in the name and style of M/s Topsy. 2.2 Defendants wanted to open a showroom in Delhi and for the said purpose in the year 201213, defendant no. 2 approached the plaintiff to look out commercial space/shop on rent in South Delhi or New Delhi. In the month of March 2013, plaintiff showed premises bearing no. AII/79, A & B, Lajpat Nagar, New Delhi24 comprising basement, ground floor, first floor, second floor (herein referred to as the said property) total admeasuring a covered area of 7200 Sq Ft (approx) to the defendants and after inspection, defendants informed the plaintiff that they would like to take the same on rent.
2.3 Thereafter, plaintiff met with the owner of the said premises namely M/s Vansons Footwear P. Ltd., duly represented by its directors namely Mr. Pawan Sethi and Mrs. Kailash Sethi, and after negotiations and efforts the plaintiff, a deal between the defendants and owner was finalized for a sum of Rs.8,10,000/ for a period of 3 years with two extensions of 3 years each. It is that case of the plaintiff that it was also orally agreed between the plaintiff and the defendants that a commission equivalent to one month rental is to be paid to the plaintiff on the registration of lease deed. The lease deed was executed and registered on 18.03.2013.
2.4 On the registration of the lease deed, defendants took over the possession, got renovated and opening their showroom on the said premises but defendants did not pay the agreed commission of the plaintiff. Plaintiff several times asked the defendants for the same but defendants failed to pay the agreed commission amount i.e. Rs.8,10,000/ to the plaintiff till date. Legal notice sent on 06.01.2014 CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 3 of 7 did not elicit desired response, hence, the present suit. 2.5. Notice of the suit was issued. Defendant served by way of ordinary process and registered courier on 08.09.2014.
2.6. The defendant filed reply/WS dated 10.12.2014 in his defence. It is avered in the WS that there is no written agreement or contract between the plaintiff and defendants with regard to the payment of such brokerage. The defendants denied that at any stage they had agreed to pay commission to the plaintiff equivalent to one month rental. It is also stated that the various emails and messages have not been addressed to the defendants except the email address to the defendant no. 2 dated 05.03.2014. It is further stated, that neither the defendants nor any of its agent have ever promised to pay the alleged commission of Rs.8,10,000/ to the plaintiff.
2.7. After filing WS defendants stopped appearing and vide order dated 20.10.2015 defendants were proceeded exparte. Evidence: 3.1. In exparte evidence, plaintiff himself stepped into the witness box and deposed vide affidavit of evidence exhibited as Ex.PW1/A reiterating the contents of the plaint.
3.2. For the sake of brevity and to avoid repetition the contents are not reproduced. The plaintiff relied upon the documentary evidence i.e. Ex.PW1/1 to Ex.PW1/36 and Ex.PW1/1 (OSR).
3.3 To substantiate his case, Plaintiff further examined Sh. Pavan Kumar Sethi, as PW2 and tendered his evidence by way of affidavit which is Ex.PW2/A. Plaintiff also examined Sh. Varun Saraogi as PW3 and he also tendered his CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 4 of 7 evidence by way of affidavit which is Ex.PW3/A. This is the entire evidence adduced in this matter. Arguments : 4.1. Ld. Counsel for plaintiff submits defendants approached the plaintiff to look out for commercial space/shop on rent in South Delhi. After negotiations and efforts of the plaintiff a deal between the defendants and owner was finalized for a sum of Rs.8,10,000/ for a period of 3 years. During the course of the negotiations it was agreed that a commission as brokerage equivalent to one month rental would be paid by the owner of the premises as well as the defendants on the registration of the lease deed.
4.2. It is argued by the Ld. Counsel that the abovesaid deal was finalized because of the efforts of the plaintiff and, despite the registration, the defendants failed to honor their commitments and have not paid the agreed amount i.e. Rs.8,10,000/ to the plaintiff till date.
4.3. Ld. Counsel further states that case of the plaintiff is further supported by the testimony of two independent witnesses PW2 and PW3 who are the owner of the said premises.
4.4. Ld. Counsel has further argued that the defendants have failed to controvert the allegations and the evidence adduced by the plaintiff in the present suit; the claim of the plaintiff is deemed to be admitted, and hence, plaintiff is entitled to a decree for the sum claimed by him in his plaint.
4.5 In support of his case the Ld. Counsel has relied upon the judgment passed by the Hon'ble High Court in CS (OS) no. 2839/2000 tiltled as Ajay Kohli Vs. Ansal Properties & Industries Ltd. and in RFA (OS) no. 18/11 titled as Karan CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 5 of 7 Promoters Pvt. Ltd. Vs. The Great Eastren Shipping Co. Ltd. & Anr. Findings: 5.1. I have heard the rival submissions advanced by the plaintiff. I have also perused the entire case record meticulously. I am of the considered opinion that the suit of the plaintiff be decreed against defendants for the reasons stated herein. 5.2 The lease deed dated 18.03.2013, entered and executed between the parties pursuant to the efforts of the plaintiff is duly registered and placed on record as Ex.PW1/1. Indisputably, defendants have taken the premises vide lease deed dated 18.03.2013 pursuant to the deal brokered by the plaintiff and have conducted their business from the abovesaid premises. The only defence taken by defendants taken in their WS is that defendants has not entered into any agreement or any contract with the plaintiff relating to the payment of any brokerage, nor did Sh. Jaishankar with whom the plaintiff had correspondence was an employee of the defendant firm. In para 12 of the lease deed to which the defendants were signatory, it is specifically mentioned that the entire deal has been brokered by Sh. Kuber Saraogi, R/o C204, Defence Colony, New Delhi.
5.3 Further PW2 & PW3, who are the owners of the premises which the defendants had taken on lease, have deposed that plaintiff had negotiated the deal with the defendants in respect of the premises bearing no. AII/79, A & B, Lajpat Nagar, New Delhi24 comprising basement, ground floor, first floor, second floor. Further deposed that during the negotiations, it was agreed between the parties that one month rental as commission for brokerage/negotiating the deal would be given to the plaintiff by the lessor as well as lessee. It is also deposed that lessor has already paid a sum equivalent to one month of the rent to the plaintiff as a CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 6 of 7 commission.
5.4. Defendants are exparte; testimony of the plaintiff's witness has remained unchallenged and unrebutted. There is nothing to disbelieve the unrebutted testimony of the plaintiff's witness or to doubt the authenticity and veracity of the document exhibited and proved on record. The defendants did not come forward to disprove the case of plaintiff as it stands. The case of the plaintiff is further corroborated by the testimony of PW2 & PW3, who are independent witnesses and I see no reason to disregard there testimony. 5.5 Admittedly, there is no other broker in the deal/ agreement in question except the plaintiff herein. From the evidence adduced, the plaintiff has been able to prove that the deal was brokered by the efforts of the plaintiff and the defendants had agreed to pay the commission to the plaintiff equivalent to one month rent. 5.6 In view thereof, considering the above discussed facts and circumstances, I am of the considered opinion, plaintiff has proved its case and is entitled to a decree in his favour and against defendants for a sum of Rs. 8,10,000/ (Eight Lakhs Ten Thousand Rupees) along with interest @ 12% p.a. from the date of its becoming due till the date of realization.
Cost of the suit is awarded to plaintiff.
Suit stands disposed of.
Decree sheet be drawn accordingly.
Announced in the open Court (Anil Antil) Today on 27.09.2016 ADJ05, South East, District(SE) Saket Court, New Delhi CS. 6809/16 Kuber Saraogi Vs M/s Topsy Page no. 7 of 7