Delhi District Court
Sh. Mohan Kumar Jindal vs Mr. Sudarshan Puri on 9 November, 2011
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE CENTRAL9: DELHI
Suit No. 1093/08
Sh. Mohan Kumar Jindal
S/o Sh. Ram Rattan Jindal,
R/o L206, Shastri Nagar,
Delhi110052.
............Plaintiff
Versus
Mr. Sudarshan Puri
S/o Sh. O. P. Puri,
R/o 54, Sawan Park Ext.
Delhi110052
Also at
D84 Sector B2, Narela
Delhi110040.
.......Defendant
Suit No. 1093/08 Page 1 of 16
Suit filed on : 24.12.2008
Judgment on : 09.11.2011
JUDGMENT
1. Plaintiff has filed the present suit for recovery praying for money decree of Rs. 4,24,000/ alongwith pendente lite and future interest @ 18% pa w.e.f. date of filing the suit till its realisation. The suit of the plaintiff is that in the mid of July 2008 with a view to purchase residential accommodation at Narela the plaintiff contacted the defendant at its office at Narela and informed him about his requirement of one LIG flat. The defendant proposed the plaintiff to show him some flats within a day or two and on 22.7.08 he received the telephonic call from the defendant informing him that he is not able to get any LIG flat from the market but had one LIG flat of himself which he was ready and willing to sell the plaintiff . On 3.8.08 i.e. the date when the meeting was fixed, the defendant visited the residence of plaintiff at Shastri Nagar, Delhi and took the plaintiff to Narela where he had shown the flat no. D1/49 Second floor, Sector 2 B Narela (herein after referred as suit property). Suit No. 1093/08 Page 2 of 16 Thereafter the parties returned to the residence of plaintiff at Shastri Nagar where negotiations took place between the parties and at about 2 PM in the presence of Sh. Hari Om Jindal and one Madan Lal the defendant represented that he was the owner of the said flat which he had got alloted from DDA and was ready and willing to sell the same at the price of Rs. 16,50,000/. He also represented that he had received possession from DDA and also got a marketable title over the same and would be able to execute the sale deed within 30 days. Relying upon the representation and assurances made by the defendant finally the plaintiff entered into a sale agreement of the said flat with a defendant for a total consideration of Rs. 16,25,000/ and document to this effect was also executed by the defendant under his signatures. The plaintiff was required to pay Rs. 2 lacs in cash to the defendant as earnest money and accordingly he paid the said amount in cash on 3.8.2008 itself which the defendant admitted and acknowledged under his signatures. Under the said agreement it was also agreed that defendant would sell the said flat to Suit No. 1093/08 Page 3 of 16 plaintiff within a period of 30 days from date of execution of the sale agreement and would receive the balance consideration of Rs. 14,25,000/ at the time of execution of sale documents. It was also agreed that in the event of failure of the defendant to sell the flat, he would pay Rs. 4 lacs to the plaintiff towards the liquidated damages. After accepting the said amount of Rs 2 lacs in cash the conduct and behaviour of the defendant completely changed and he did not bother to call the plaintiff for two weeks. When the plaintiff reminded him, the defendant assured him to execute sale deed on 2.9.08 in any case . The plaintiff demanded title deed from the defendant in his favour so that he gets prepared the draft sale deed from his counsel, however the defendant kept on avoiding the same. Finally on 31.8.08 the plaintiff alongwith his brother Sh. Hari Om Jindal visited the office of defendant at Narela and asked him to show the document so that the plaintiff could prepare the draft sale deed and make the balance payment on 2.9.08 at the time of execution of the sale deed. The defendant however avoided the same saying that within a day or two he would himself come to Suit No. 1093/08 Page 4 of 16 the residence of plaintiff with a title document. On 2.9.08 again the plaintiff visited the office of defendant and asked him to complete the transaction but the defendant failed and neglected to complete the transaction and also produce the documents in his favour. The plaintiff got suspicious and inquired from the office of DDA and came to know that the said flat had been alloted in favour of some Gurcharan Singh and not in favour of defendant. The plaintiff also filed a written complaint in this regard to SHO PS Sarai Rohilla on 10.12.08 vide DD entry no.
458. Hence the present suit for recovery of liquidated damages as agreed between the parties alongwith interest.
2. Suit of the plaintiff has been contested by the defendant who in his WS has taken the preliminary objection that the plaintiff failed to discharge his obligation. The plaintiff told him that his relations have advised him that on account of global recession, prices of property are down and he should not purchase it and requested the defendant to return the amount of earnest money paid by him. It is also pleaded that defendant was aware of the Suit No. 1093/08 Page 5 of 16 allottee of suit property and had arrangement with him. The defendant after giving the receipt to the plaintiff approached the plaintiff to discharge his obligation by making payments under the agreement so that the sale deed is arranged in his name directly but he failed to discharge his obligation and requested for some more time. The defendant was granted time twice but he failed to discharge his obligation. It is also pleaded that on account of compulsion of the allotee, the payment of property in question was required to be made in the office of DDA which was time bound and thereafter the defendant had to get the said property transferred in the name of his wife. The defendant was made to suffer because of breach on the part of plaintiff to discharge his obligation. It is further submitted that on account of indulgence of Shri Madan lal, receipt of Rs. 2 lacs was given to the defendant had paid only Rs. 1 lac and assured to pay the balance amount of Rs. 1 lac on the next date. On merits, it is denied that the defendant told plaintiff that he has one LIG flat of himself which he was ready and willing to sell to the plaintiff. It is stated that as per the requirement of the plaintiff the defendant Suit No. 1093/08 Page 6 of 16 had arranged for one LIG Flat in the circumstances, mentioned in the preliminary objection. It is reasserted that the plaintiff failed to make the payment which shows that he was not ready and willing to purchase the flat in question and thus in terms of the documents, the earnest money stood forfeited. It is also denied that ;the plaintiff had visited his office and asked him to complete the transaction but he failed to produce the documents in his favour. It is stated that on the contrary, the defendant was compelled to get the sale deed executed in favour of Shri Gurcharan Singh, allottee, otherwise, the sale deed would have been directly executed in favour of the plaintiff. It has therefore been prayed to dismiss the suit of the plaintiff with compensatory cost.
3. In replication the plaintiff has controverted the averments made in the WS and reasserted the contents of the plaint. It is reasserted that an earnest money of Rs. 2 lacs was paid to the defendant. He categorically denied breach of obligation on his part.
Suit No. 1093/08 Page 7 of 16
4. On the pleadings of the parties following issues were framed for consideration on 13.08.2009:
i)Whether the plaintiff has no cause of action to file the present suit ?OPD
ii)Whether the plaintiff is entitled to the amount claimed ?OPP
iii)Whether the plaintiff is entitled to interest? If so, at what rate and for which period?OPP
iv) Relief.
5. In order to establish his claim, the plaintiff has filed his evidence by way of affidavit which is Ex. PW1/X. The plaintiff also examined Shri Vijay Bhan, dealing assistant in LIG Housing, DDA as PW2 and Ms. Sushila Asstt. Ahlmad to the court of Shri Amit Arora, Ld MM, Tis Hazari Courts as PW3. The defendant on the other hand has tendered his affidavit in evidence which is Ex. DW1/A. He also filed the affidavit of one Shri Mohd. Farooq which is Ex. DW2/A.
6. I have thoroughly gone through the testimony of witnesses Suit No. 1093/08 Page 8 of 16 and perused the record. I have also given the thoughtful consideration to arguments addressed by ld. Counsel for the plaintiff and perused the written arguments filed by ld counsel for defendant. My findings on various issues are as under: Finding on Issues No. 1 to 3
7. Since all the three issues are interconnected, they can be decided together. Ld counsel for defendant has argued that defendant in his WS has categorically stated that on the very first date of hearing, defendant offered the plaintiff that he was still ready to get the property in question transferred in favour of the plaintiff through his wife but the plaintiff declined. Even in his replication he did not express his willingness and readiness to purchase the flat in question. It is further argued that the plaintiff has proved the criminal complaint Ex. PW1/2 and also the report submitted by investigation officer to Ld. M. M. which clearly proves that the receipt of earnest money was of Rs. 2 lacs but actually, Rs. 1 lac was paid as earnest money. He further argued that the plaintiff in his crossexamination has Suit No. 1093/08 Page 9 of 16 stated that he did not personally make the inquiry from DDA but made through Shri Virender Bisht, who is alive. The plaintiff did not produce Shri Virender Bisht as the witness. It is argued that the averment made by the plaintiff that he did not make enquiry even from the allotees of the other flats in the same building is not believable as a person will not purchase property without verifying the material facts about title. It is further argued that as per the own case of the plaintiff, he went alongwith Shri Madanlal Arora and Shri Hariom. Though both are the material witnesses, they have not been produced. Therefore an adverse inference is liable to be drawn against plaintiff. It is further argued by Ld counsel for the defendant that the fact that plaintiff failed to pay the balance amount before the police also and further offer of the defendant to get the sale deed of the flat in question executed and registered against payment of balance amount but the plaintiff was not prepared and did not honour the offer also establish that there was breach of contract on the part of defendant. It is further argued that PW2 has also corroborated the case of the defendant that the plaintiff had paid Suit No. 1093/08 Page 10 of 16 Rs. 1 lac instead of 2 lacs as earnest money and that the plaintiff was not prepared to get the sale deed executed against payment of balance amount.
Before proceeding further, it may be pointed out that the defendant in his WS has not at all made a whisper regarding presence of DW2 at the time of transaction. The plaintiff in his plaint and his testimony has categorically stated that the negotiation took place between the parties at the residence of plaintiff in the presence of Shri Hari Om Jindal and one Shri Madan Lal and the earnest money of Rs. 2 lacs in cash was paid on the same date i.e 03.08.2002. The defendant in the corresponding paragraph in the WS has not denied that the negotiations on 03.08.2008 had taken place between the parties at the residence of plaintiff in presence of Shri Madan Lal and Shri Hari Om. He has also not at all pleaded that DW2 was also present at the time of transaction. Even otherwise DW2 in his crossexamination has testified that on the very first day when the plaintiff visited the office of defendant, the deed of property in question was struck. His testimony in this regard is contrary to Suit No. 1093/08 Page 11 of 16 pleadings that the deal was struck after negotiations at the residence of the plaintiff. It is pertinent to mention here that defendant also in the corresponding para of WS has not denied that the negotiations took place between the parties at the residence of the plaintiff. Thus it is obvious that DW2 was not present at the time when the deed was struck between the parties. Hence, his testimony is unreliable and can not be read in evidence.
The plaintiff has satisfactorily explained the reason for not making payment of the balance amount. From the testimony of PW2 as well as the document Ex. PW2/1, PW2/2 and PW2/3, it is established that the property in question was allotted in the name of one Shri Gurcharan Singh and not in the favour of defendant. In view of documentary evidence, it is immaterial that Sh. Virender Bisht through whom inquiry was made has not been examined. Though it is argued that the defendant on the very first day had offered the plaintiff for execution of the sale deed, there is nothing on the record to show that any such offer was given by the defendant on the first date of appearance of the defendant after Suit No. 1093/08 Page 12 of 16 service of summons. It has also not been proved that the plaintiff was offered by the defendant during inquiry in the criminal case in the presence of investigating officer to execute the sale deed on payment of balance consideration amount. Even otherwise, the defendant has failed to produce any title documents in his name or in the name of his wife to support his case that he was in a position to get the sale deed executed in the name of plaintiff. The defendant has not taken categorical stand in his WS that the property in question did not belong to him and there was an agreement or understanding for sale of property belonging to a third person. On the contrary, in the certified copy of bayana receipt Ex. PW1/1, the defendant has represented himself as the owner of suit property and also assured that the plot was in his possession. He also had the title documents and the property belonged to him. There is nothing in the bayana receipt Ex. PW 1/1 to substantiate the case of the defendant that the property belonged to some third person and there was an understanding for sale of property of third person. Further, the defendant has admitted the receipt of Rs. 1 lac by him as earnest money. There Suit No. 1093/08 Page 13 of 16 could have been no reason for him to receive the earnest money if there was a representation that the property belonged to some third person. Though Ld counsel for defendant has argued that from the report of the SHO on the complaint lodged by the plaintiff U/s 156 (3) of Cr.P.C. certified copy of which is Ex. PW3/1, it is established that the breach was on the part of plaintiff as he failed to pay the balance amount, his arguments in this regard is not sustainable since in the statement recorded by the I.O. in the said complaint, the defendant himself has admitted that on 03.08.2008 Mohan Lal Jindal, and his family members they became willing to purchase flat No. D149, 2nd Floor, Sector2 belonging to him (defendant). Even in his statement recorded by the I.O, in the criminal complaint case, the defendant did not mention that the said flat did not belong to him but belonged to some other person. Thus, the story made out by the defendant is an afterthought and does not inspire confidence. Even otherwise, the defendant failed to examine Shri Gurcharan Singh, the allotee of the suit property to establish that there was any arrangement between the allottee of suit property and him for sale of the suit property. Further from Suit No. 1093/08 Page 14 of 16 the receipt Ex. PW1/1, it is established that earnest money of Rs. 2 lacs was paid. Though the defendant has testified that an amount of Rs. 1 lac was paid as earnest money on the indulgence of Sh. Madan Lal and assurance given by the plaintiff to pay balance amount of Rs. 1 lac on the next date, he had agreed to issue a receipt of Rs. 2 lacs, however the defendant has not examined Shri Madan Lal who allegedly had indulged. Even otherwise testimony of DW1 regarding assurance by the plaintiff to pay the balance amount of Rs. 1 lac on the next date is vague as he does not specify on which date the balance amount was payable. Thus the testimony of DW1 that an earnest money of Rs. 1 lac was paid does not inspire confidence. In view of documentary evidence on record regarding payment of Rs. 2 lacs as earnest money, it is immaterial that plaintiff has not examined Sh. Madan Lal and Sh. Hari Om. In view of the above discussion, it is established that there was breach of contract on the part of defendant thus the plaintiff has sufficient cause of action to file the present suit. In Ex. PW1/1, the parties have agreed that in case the defendant breaches the terms and conditions, he shall be Suit No. 1093/08 Page 15 of 16 liable to pay a liquidated sum of Rs. 4 lacs to the plaintiff. In view of the terms and conditions in Ex. PW1/1 and aforesaid discussion, the plaintiff is entitled to a decree in the sum of Rs. 4 lacs. There is no agreement between the parties with regard to the payment of interest. Accordingly, the plaintiff is not entitled to any interest on the said amount. In view of my findings, issues No.1&2 are decided in favour of the plaintiff and issue no.3 is decided in favour of the defendant.
8. Relief.
In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed for a sum of Rs. 4 lacs alongwith future interest @ 8% per annum till the realisation. Decree sheet be prepared and file be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 09.11.2011 ADDL. DISTRICT JUDGE
CENTRAL9: DELHI
Suit No. 1093/08 Page 16 of 16
Suit No. 1093/08
09.11.2011
Present: None.
Vide separate judgment, suit of the plaintiff is decreed for a sum of Rs. 4 lacs alongwith future interest @ 8% per annum till the realisation. Decree sheet be prepared and file be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE CENTRAL9: DELHI.
Suit No. 1093/08 Page 17 of 16