Delhi District Court
M/S Tower Air Express vs . M/S Imperia Structures Ltd on 5 December, 2020
IN THE COURT OF MS VANDANA JAIN,
ADDITIONAL DISTRICT JUDGE07 (SE),
SAKET COURTS NEW DELHI
CS No. 7851/16
M/s Tower Air Express Vs. M/s Imperia Structures Ltd
[HEARING THROUGH CISCO WEBEX]
In the matter of:
M/s Tower Air Express
Through its Partner
18A, DDA Flats, Shahpurjat,
New Delhi110049 ...........Plaintiff
VERSUS
M/s Imperia Structures Ltd
Registered office at A25,
MCIE, Mathura Road,
New Delhi110014
........Defendant
Date of Institution : 02.07.2016
Date of reserving of judgment : 24.11.2020
Date of Judgment : 05.12.2020
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JUDGMENT
1. This is a suit for recovery for a sum of Rs. 33,32,604/ alongwith pendentelite and future interest @ 18% per annum.
2. Brief facts of the case as alleged by plaintiff are that defendant company is engaged in the business of developing properties in Delhi and NCR and plaintiff booked a retail space admeasuring 1000 Sq Ft in the project namely "The Byron" situated at Sector62, Golf Course, Extn. Road, Gurgaon, Haryana with defendant on 19.09.2011 @ Rs. 6250/ Sq. Ft. totaling to a sum of Rs. 62,5000/ which excludes a sum of Rs. 2,50,000/ as the same was to be paid for one covered car parking at the time of possession of the above retail space. M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 2 of 21
3. It is further averred that defendant assured the plaintiff that possession of the retail space will be handed over within 24 months from the date of booking i.e. by end of September, 2013. Defendant raised demands in respect of abovesaid booking from its registered office and plaintiff timely deposited the same with the defendant through cheques and same were duly encashed in the account of defendant and thereafter duly acknowledged receipts were issued to the plaintiff. Defendant sometimes used to issue original receipts and sometimes issued scanned copy of the receipt to which plaintiff raised his objection. However, defendant refused to hand over original receipts of the payments and stating that payments have been updated in the account of the plaintiff which reflects in the ledger account maintained by the M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 3 of 21 defendant and provide the ledger to the plaintiff which reflected the payments deposited by plaintiff with defendant as under: Sr. Date Cheque Drawn on Amount Receipt No. Number no. & Date 1 06.09.2011 553672 Yes Bank 1,00,000/- 0218 dated Ltd 19.09.2011 2 22.09.2011 553676 Yes Bank 5,00,000/- 0219 dated Ltd 23.09.2011 3 20.12.2011 553678 Yes Bank 6,00,000/- 0532 dated Ltd 19.12.2011 4 05.01.2012 054517 Oriental 30,900/- 0606 dated Bank of 07.01.2012 Commerce 5 20.03.2012 553679 Oriental 6,00,000/- 0751 dated Bank of 15.05.2012 Commerce 6 04.06.2012 471422 Oriental 18,540/- 0759 dated Bank of 05.06.2012 Commerce
4. Plaintiff opted for construction linked plan at the time of booking and deposited a total sum of Rs. 18,49,440/ as demanded by the defendant from time to time but defendant failed to raise construction at the project site and retail space booked by the plaintiff M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 4 of 21 could not be delivered by the defendant upon which plaintiff demanded the refund of deposited amount vide letter dated 11.12.2013 but no reply to the same was sent to the plaintiff.
5. Thereafter, plaintiff preferred a complaint before Delhi State Consumer Dispute Redressal Commission. Thereafter, plaintiff received another alleged demand letter from the defendant vide letter dated 08.12.2015 for a total sum of Rs. 78,263/. Hence, this suit was filed.
6. Written statement was filed by defendant stating that suit of the plaintiff is not maintainable as plaintiff has already filed a consumer complaint before State Consumer Disputes Redressal Commission in respect of the same subject matter and same cause of action. It is M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 5 of 21 further stated that clause 15 of the Terms and Conditions of booking relied upon by plaintiff talks about the possession within 24 months from the date of execution of Memorandum of Understanding and not from the date of booking.
7. It is further averred that defendant never refused to execute the said MOU and moreover plaintiff has not sought specific performance and has never sought execution of said MOU.
8. It is further stated that in the aforesaid clause 15 stipulates that in case defendant fails to deliver the possession within stipulated time period, plaintiff would be entitled to compensation at Rs. 10/ per Sq. Ft per month from the period of delay.
9. Defendant admits that plaintiff had paid a total of Rs. 18,00,000/ towards basic price of the unit and Rs. M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 6 of 21 49,440/ towards service tax, totalling Rs. 18,49,440/ to defendant.
10. It is denied that defendant had not handed over original receipt of any payment to plaintiff. It is further stated that in case plaintiff feels that there is any delay in part of the defendant, plaintiff may seek compensation in accordance with terms and conditions of booking, however, plaintiff is not entitled either to rescind the booking or to claim refund. It is further averred that suit filed by plaintiff is false and is liable to be dismissed.
11. Replication to the written statement of defendant was filed wherein plaintiff reiterated the contents of the plaint and denied all the averments made in the written statement.
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12. Thereafter, issues were framed on 28.03.2018 as under:
1. Whether the plaintiff is entitled to recovery of decreetal amount along with interest as prayed for? OPP
2. Whether plaintiff's firm is registered with Registrar of Firms, if not what are the consequences?
3. Whether this court has no territorial jurisdiction to try present suit? OPD.
4. Relief.
13. Thereafter, matter was listed for plaintiff evidence.
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14. Plaintiff examined Sh. Manmeet Singh as PW1. He has relied upon original authorization letter dt 28.05.2016 is Ex PW1/1, Copy of registered partnership deed is Ex PW1/2, Copy of terms and conditions is Ex PW1/3, Certified copy of bank statement of plaintiff Ex PW1/4, Copy of receipts of payments issued by defendant to plaintiff in respect of payment is Ex PW1/5 to Ex PW1/10, Copy of ledger issued by defendant to the plaintiff is Ex PW1/12, Original office copy of letter dated 11.12.2014 alongwith postal receipt Ex PW1/13 and Ex PW1/14, Original demand letter dt 08.12.2015 is Ex PW1/15. Thereafter, PE was closed.
15. Thereafter, matter was listed for defendant evidence.
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16. Defendant company examined Sh. Rajender Kumar as DW1. Thereafter, DE stands closed.
17. Thereafter, matter was listed for final arguments.
18. Written submissions were filed by the plaintiff.
19. I have heard the final arguments through CISCO Webex and have perused the record carefully.
20. I shall decide the issues one by one.
21. Issue no. 1: Whether the plaintiff is entitled to recovery of decreetal amount along with interest as prayed for? OPP Ld counsel for plaintiff has argued that plaintiff had booked a retail space in the project of defendant on 19.09.2011 under construction linked plan for a total consideration of Rs. 62,50,000/ and the M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 10 of 21 said retail space was to be handed over by the defendant to the plaintiff within 24 months from the date of booking i.e. end of September 2013. Ld. Counsel for plaintiff further argued that a total amount of Rs. 18,49,440/ was deposited by the plaintiff with the defendant after booking however, the defendant failed to raise any construction at the project site, what to talk of the delivery of the said project to the plaintiff. It was further argued that plaintiff vide its letter dated 11.12.2013 demanded refund of the deposited amount but the said letter was not replied by the defendant. The plaintiff preferred a complaint before Delhi State Consumer Dispute Redressal Commission on 06.02.2014 which was contested by the defendant and is still pending. He had further argued that the defendant with malafide intention demanded amount M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 11 of 21 of Rs. 78,252/ vide its letter dated 18.12.2015 despite the fact that no construction was being raised and possession was not delivered. It was only an after thought as the plaintiff had sought relief of deposited amount. By way of this suit, the plaintiff has sought principal amount alongwith interest @ 18% per annum. Ld. Counsel has further argued that defendant has nowhere denied having received an amount of Rs. 18,49,440/. Ld counsel has argued that booking was never cancelled by the defendant and since the defendant had not completed the project, therefore, plaintiff is entitled to recovery of the said amount.
On the other hand, Ld counsel for defendant has argued that receipt of amount of Rs. 18,49,440/ by the defendant is not denied, however, no memorandum of understanding was signed by the plaintiff. It is M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 12 of 21 further argued that for the same reliefs, two cases are pending, one is complaint before the State Consumer Forum and second before this court which is not permissible. She has further argued that the last payment was made in the year June 2012 by the plaintiff whereas the suit was filed in July 2016 and the suit having been filed after expiry of three years from the date of making the last payment, the same is barred by period of limitation. She has argued that suit is liable to be dismissed on both these counts.
Certain undisputed facts in the present case are that the plaintiff has booked a retail space with the defendant. The receipt of amount of Rs. 18,49,440/ by the defendant from the plaintiff is not disputed. No documents has been filed on record by the defendant. The defendant has not taken the defence that any M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 13 of 21 construction was ever raised for said retail space at any point of time. The terms and conditions Ex. PW1/3 filed by the plaintiff are admitted by the defendant.
22. With these background of admitted facts, let us proceed with the merits of the case. The defendant had taken few defences and they are taken one by one.
23. First is with respect to the pendency of the case of recovery before Delhi State Consumer Dispute Redressal Commission as well as before this court. Ld counsel for the plaintiff has relied upon judgment titled as M/s Hindustan Motors Ltd Vs Amardeep Singh Wirk & Ors , L.P.A no. 204 of 2009 and CM no. 6638/2009, DOD 14.05.2009 passed by the Division Bench of the Hon'ble High Court of Delhi wherein it has been observed that M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 14 of 21 "in the light of the judgments discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and in a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar".
In view of the aforesaid judgment, there is no room for dispute regarding this contention and therefore, this court is well within its jurisdiction to decide the present case despite pendency of the complaint before Consumer Forum.
24. The next defence of the defendant is with respect to the limitation. It is stated that last payment was made in June 2012 whereas the suit has been filed in the year 2016 and therefore, the suit is barred by limitation. In this regard, it is stated that without taking even a single step towards construction, defendant has M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 15 of 21 demanded Rs.18,49,440/ from the plaintiff which was duly paid and even then the plaintiff kept waiting for long period of time in the hope that construction will be done and project will be delivered but nothing of such sort happened. The payments was demanded till June 2010 and they were duly paid. No demand was raised thereafter. As per terms and the conditions, the construction was to be raised and possession was to be delivered within 24 months. The defendant's counsel has raised an objection that 24 months were to be reckoned from the date of signing of the memorandum of understanding and not from the date of booking. In this regard, perusal of the terms and conditions clearly indicates that this memorandum of understanding could have been signed by the plaintiff only in the event of the completion of the construction by the defendant. M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 16 of 21 After the completion of the construction, the defendant had to apply for an occupancy certificate however, since no construction was raised, the defendant would not have applied for any occupation certificate, hence, the question of signing any memorandum of understanding by plaintiff does not arise at all. It does not even lie in the month of the defendant to raise such objections. Since, no construction has been raised, 24 months period was to be from the date of booking, which expired in September 2013. The suit having been filed in July 2016 is well within the period of limitation. Therefore, this objection is also not tenable.
It is pertinent to mention here that after the complaint was filed by the plaintiff before Delhi State Consumer Dispute Redressal Commission, a demand letter dated 08.12.2015 for an amount of Rs. 72268/ M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 17 of 21 was raised without even mentioning as to what was being constructed as the payments were to be made under the construction linked plan. This demand has been malafidely raised and has no bearing on this case at all. Probably, it is only after this demand letter was raised that the plaintiff felt the need of filing the present suit in order to get the complex questions adjudicated by a civil court despite the fact that a complaint before Delhi State Consumer Dispute Redressal Commission was already pending. The defendant retained the amount of Rs. 18,49,440/ paid by the plaintiff for a long period of time. The plaintiff was not even assured or given the tentative time by which defendant would have delivered the project. In these circumstances, the defendant has committed breach of compromise, therefore, the plaintiff is entitled M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 18 of 21 to refund of amount which it had paid to the defendant. Issue no. 1 is decided in favour of plaintiff and against the defendant.
25. Issue no. 2 Whether plaintiff's firm is registered with Registrar of Firms, if not what are the consequences?
The onus to prove issue no. 2 was upon the plaintiff. Ld counsel for plaintiff has argued that plaintiff partnership firm is registered and he has filed the registered partnership deed on record. No argument has been addressed with respect to this issue by counsel for defendant. Since the registered partnership deed has been filed on record, nothing survives in this issue. Issue no. 2 is decided in favour of plaintiff and against the defendant.
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26. Issue no. 3: Whether this court has no territorial jurisdiction to try present suit? OPD.
Ld counsel for plaintiff submits that registered office of the defendant is within the jurisdiction of this court and even otherwise all the payments were made from Delhi, therefore , this court has territorial jurisdiction. There is no dispute with respect to payments made in Delhi and the registered office of the defendant located in Delhi. Therefore, this court is well within its jurisdiction to decide the suit. Issue no. 3 is decided against the defendant and in favour of plaintiff.
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27. Relief.
Suit of the plaintiff is decreed from amount of Rs. 18,49,440/ alongwith interest @ 9% w.e.f. 01.09.2013 till 31.12.2019 and further simple interest @ 5% from 01.01.2020 till realization due to financial situation in the country due to Covid 19 lockdown and the prevailing bank rate alongwith cost of the suit.
28. Decree sheet be prepared accordingly.
29. File be consigned to Record Room after due compliance. Digitally signed by VANDANA VANDANA JAIN Announced through CISCO Webex JAIN Date:
2020.12.07 16:50:44 on 05.12.2020 +0530 (VANDANA JAIN) ADJ07/SE/SAKET COURTS/ NEW DELHI/05.12.2020 M/s Tower Air Express Vs. M/s Imperia Structures Ltd Page 21 of 21