Delhi District Court
Ranjan Doshi vs . M/S. Raheja Design & Contract Ltd. on 15 March, 2013
Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE03 (SOUTH),
ROOM NO.308, SOUTH DISTRICT, SAKET, NEW DELHI
In the matter of
CS No. 94/11
Ms. Ranjan Doshi W/o. Sh. Dinesh Doshi
Ch. No. 223, Western Wing
Tis Hazari Courts, Delhi.
... Plaintiff
Versus
M/s. Raheja Design & Contract Ltd.
Through its Chairman/Managing Director
A201, Okhla Industrial Area,Main Road
PhaseI, New Delhi - 110020.
... Defendant
Plaint Presented on : 20.02.2011
Date of Institution : 23.02.2011
Decision Reserved on : 02.03.2013
Date of Decision : 15.03.2013
JUDGMENT
(on suit for recovery of Rs. 3,05,000/) 1.1 (Plaintiff's case) - Plaintiff Smt. Ranjan Doshi is a practicing lawyer. Defendant M/s. Raheja Design & Contract Ltd. is a company C.S. No. 94/11 Page 1 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
incorporated, it has been doing business of Estate Builders & Developers, who construct residence flats and other commercial buildings, offices complexes, all over India, besides sale and purchase of immovable properties. The defendant advertised for selling residential flats/tower heights, Jaipur. The plaintiff submitted her application/advance registration (now Ex. PW1/1) for residential condominium in Rajasthan Judiciary Services Colony near Mansarover, Jaipur and plaintiff deposited registration fee of Rs. 1,50,000/, the defendant issued receipt dated 15.02.2007 (now Ex. PW1/2).
1.2 The plaintiff was assured by the defendant, which plaintiff believed that prices of the flats shall increase from Rs. 1595/ per sq.ft. to Rs. 3,000/ per sq.ft. The plaintiff had furnished application form in the office of defendant but its copy was not provided as per condition, the defendant was required to provide the residential condominium within nine months, failing which there was an option for withdrawal of the money with interest after notice. The plaintiff filed a complaint in the Consumer Court, where it was revealed that her application form has been manipulated by endorsing rubber stamp of Sonu Properties without the permission of plaintiff, as the C.S. No. 94/11 Page 2 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
plaintiff never furnished her application through the said property dealer. 1.3 In November/December 2007, when defendant launched pre launched scheme, the plaintiff inquired the defendant officials about the progress of project but no response was received. Then plaintiff requested the defendant for refund of amount with interest and for cancellation of her form. But defendant paid no heed. Thence, the plaintiff sent registered legal notice dated 07.08.2008 (now Ex. PW1/3 and postal receipts Ex. PW1/4) and the defendant gave reply dated 25.08.2008 (now Ex. PW1/5), admitting the deposit of Rs. 1,50,000/ and also agreed to refund the amount subject to certain conditions, which are contrary to the record, like NOC from broker has been called, whereas the plaintiff never engaged Sonu Property Dealer as a broker. The defendant refused to return the deposit amount on vague and false stand. The plaintiff also gave her PAN card, Election Identity card, original receipt to the defendant but the amount was not refunded. She filed complaint before the Consumer Forum and application form (Ex. PW1/1) was supplied to her there, from where it was discovered that application form was bearing stamp of Sonu Property Dealer. The plaintiff withdrew her complaint from the Consumer Court. C.S. No. 94/11 Page 3 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
1.4 The defendant withhold plaintiff's money and plaintiff had undergone bypass surgery in the month of April 2009, when she was admitted in Delhi Heart and Lungs Hospital where she was operated and incurred expenses of an amount of Rs. 4,00,000/, she was in dire need of money as she obtained loan from various persons since she was not medically insured, the defendant was requested for refund of money but it failed. The plaintiff suffered mental pain, torture and harassment, which plaintiff estimates damages of Rs. 87,500/. That is why the suit for Rs. 3,05,000/ (i.e. Principal amount Rs. 1,50,000/ + interest Rs. 67,500/ + damages Rs. 87,500/).
2.1 The defendant filed detailed written statement, however, the facts stated in paragraph 1.1 above, are not disputed. 2.2 Whereas the defendant opposed the other allegations, reflected in paragraph 1.2 to 1.4 above, that neither the defendant assured the plaintiff that there will be increase in prices from Rs. 1595/ to Rs. 3,000/ per sq. ft. nor the plaintiff had made any request in November/December 2007. The plaintiff furnished the application and she is aware of terms and C.S. No. 94/11 Page 4 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
conditions, particularly clause 'C' that defendant may be liable to pay interest in the eventuality, allotment is not made in nine months, not otherwise. The plaintiff failed to pay the amount and also to execute buyer seller agreement. The plaintiff was allotted the apartment of 2B/R in Raheja Residential Complex, she was written the letters (now Ex. DW1/3 to Ex. DW1/9, from 27.02.2007 to 20.05.2008), to deposit the amount or to execute the buyerseller agreement, therefore, the defendant cannot be blamed. Even, plaintiff's request for refund of amount was also considered, by reply to notice, she failed to furnish the NOC from subbroker, the application form furnished with the defendant was carrying rubber seal of Sonu Properties. 2.3 The defendant also denies all other allegations of harassment or mental torture with request that suit is without cause of action and she is not entitled for any damages or interest and other claims and the suit is liable to be dismissed.
3. From the pleadings of the parties and documents, the following issues emerged for determination :
1. Whether the suit is without cause of action ? OPD
2. Whether the plaintiff is entitled for decree of Rs. 2,17,500/ (i.e principal C.S. No. 94/11 Page 5 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
amount of Rs. 1,50,000/ + interest of Rs. 67,500/ from 12.12.2006 to 20.02.2011), against the defendant ? OPP
3. Whether the plaintiff is entitled for decree of damages of Rs. 87,500/ against the defendant ? OPP
4. Whether the plaintiff is entitled for interest against the defendant, if so, at what rate and for what period ? OPP
5. Relief.
4. In order to establish the case and issues, the plaintiff/PW1 Ms. Ranjan Doshi stepped into the witness box exclusively. Similarly defendant's exclusive witness/attorney DW1 Sh. Dinesh Kumar Shukla came in the witness box.
5. At the juncture of final arguments, plaintiff and her counsel Sh. Dinesh Doshi, Adv., argued for plaintiff and Sh. R.S. Aggarwal, Adv. for defendant argued for the defendant. Their contentions will be referred issue wise.
6.1 Issue no. 1 and 2
(1) Whether the suit is without cause of action ? OPD
(2) Whether the plaintiff is entitled for decree of Rs. 2,17,500/ (i.e
principal amount of Rs. 1,50,000/ + interest of Rs. 67,500/ from 12.12.2006 to 20.02.2011), against the defendant ? OPP C.S. No. 94/11 Page 6 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
The onus to prove issue no.1 lies on defendant and the onus to prove issue no.2 lies on plaintiff. According to plaintiff, deposit of amount of Rs. 1,50,000/ is not disputed and as per application form, clause 'C', the plaintiff is entitled for interest, as it is defendant who failed to allot the flat. Moreover, DW1 Dinesh Kumar Shukla admits in his crossexamination about the receipt of amount as well as the status of said project. The defendant intends to say that original allotment was made, however, there is no proof of dispatch or delivery of letters Ex. DW1/1 to Ex. DW1/10., the same ought to have been proved by the defendant which it failed. The defendant is trying to deny the claim because application form bears seal of Sonu Properties whom the plaintiff never engaged. The plaintiff cannot be deprived of her amount. It is interse arrangement of defendant and Sonu Properties, latter has nothing to do with the plaintiff. Plaintiff also deserves damages for the trauma she faced in requesting her of refund of money as well as by visiting the office of defendant or else. WHEREAS, the defendant had reservations, firstly, 9% per annum interest may be payable if the defendant fails to allot the condominium within nine months but defendant had written letter on 26.12.2006 and then on 27.02.2007 about provisional allotment of apartment, followed by further letters dated C.S. No. 94/11 Page 7 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
01.06.2007, 11.09.2007, 03.01.2008, February 2008 (Ex. DW1/4 to Ex. DW1/7) followed by payment of overdue letter dated 07.04.2008 (Ex. DW1/8), but plaintiff failed to pay the amount. There was recession in the market, plaintiff also admits in her crossexamination which changed her mind not to invest in the real estate, which was the real object of the plaintiff to make investment and earn from such investment. She also took false plea of her health or harassment, she is not entitled for either interest or for damages. It is a false suit.
6.2 It is not disputed that plaintiff had deposited the amount of Rs. 1,50,000/ and defendant had also agreed to refund it subject to certain conditions. The plaintiff claims amount of interest but it is disputed by the defendant. On the application form (Ex. PW1/1), there is rubber stamp of Sonu Properties, it does not reflect the name of person whether Sonu properties is a proprietorship firm or a partnership firm or a company incorporated or it was exclusively for the plaintiff or exclusively for the defendant or it was for both the plaintiff and the defendant. There is also no record that the Sonu Properties and the plaintiff had entered into an agreement that in the eventuality, the plaintiff and the defendant do not C.S. No. 94/11 Page 8 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
pursue the application form, the plaintiff will be liable to pay certain amount to the said Sonu properties or what was the amount. Why and how the defendant is asking the plaintiff for NOC from Sonu Properties or is there any such arrangement between the defendant and Sonu Properties, qua the aspirants/applicants, there is nothing on the record. Therefore, defendant's plea that in the absence of NOC from Sonu Properties, the plaintiff will not be refunded the amount, it is not tenable. 6.3 So far interest part is concerned, not only clause 'C' in the application form but also clause 'D' talks about interest. In case, residential condominium is not allotted after nine months, simple interest @ 9% per annum shall be paid by the defendant to the plaintiff and the defendant shall not be liable to pay interest in all eventualities for a period of nine months. Clause D states that in case defendant fails to allot condominium within period of nine months, the plaintiff will be at liberty to withdraw the amount after nine months by giving one month notice and interest of 9% per annum will be payable. The defendant relies upon letters dated 28.12.2006, letter dated 27.02.2007, letter dated 11.09.2007 (Ex. DW1/2, Ex. DW1/3 and Ex. DW1/5) regarding provisional allotment of apartment, however, there is C.S. No. 94/11 Page 9 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
no proof of sending such letter by post nor proof of receipt of such letter by the plaintiff. There is one letter dated 03.01.2008 (Ex. DW1/6) about the provisional allotment of apartment, it was sent by courier (receipt Ex. DW1/6A), but plaintiff has denied its receipt. To say, from the application date/receipt dated 15.02.2007, there is no allotment by the defendant within a period of nine months. None of the letters reflect about particular allotment nor the plaintiff has placed on record any buyerseller agreement or its specimen to prove that such agreement was sent for signature to the plaintiff. Therefore, it is held that neither there was allotment by the defendant within nine months from the date of application/registration and merely writing letter (although the same have not been proved) that there is provisional allotment would not tantamount to be allotment of apartment. Since the defendant has utilised the money of plaintiff, defendant's witness DW1 also admits that money has been utilised for commercial purposes, then, why to deprive the plaintiff even for interest of nine months. Therefore, the plaintiff is held entitled for recovery of interest of Rs. 67,500/ also.
6.4 In view of the discussions and conclusion in aforementioned C.S. No. 94/11 Page 10 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
paragraph, the plaintiff has succeeded to establish her claim of Rs. 2,17,500/ against the defendant and she has proved issue no.2 in her favour and against the defendant. Consequently, it is held that defendant could not establish issue no.1 in its favour.
7.1 Issue no.3 Whether the plaintiff is entitled for decree of damages of Rs. 87,500/ against the defendant ? OPP 7.2 On plain reading of pleadings and evidence on record, there is no evidence of damages qua torture or harassment, therefore, the plaintiff could not establish her claim of Rs. 87,500/ of damages. The issue no.2 is decided against the plaintiff.
8.1 Issue no.4 Whether the plaintiff is entitled for interest against the defendant, if so, at what rate and for what period ? OPP 8.2 In view of the discussion, analysis and conclusion in paragraph 6 above, on issue no. 2 as well as considering the conditions in application form Ex. PW1/1, the plaintiff is held entitled for interest of 9% per annum C.S. No. 94/11 Page 11 of 12 Ranjan Doshi Vs. M/s. Raheja Design & Contract Ltd.
from the date of suit till realisation of amount on principal adjudged sum of Rs. 1,50,000/. Accordingly, issue no.4 is decided in favour of plaintiff and against the defendant.
9. Issue no. 5 Relief - In view of the findings on other issues, particularly, issue no.2 and 4, the plaintiff's suit is decreed for Rs. 2,17,500/ (i.e. Rs. 1,50,000/ principal sum + Rs. 67,500/ interest) coupled with proportionate cost of suit alongwith interest @ 9% per annum from the date of suit till realisation of amount (however, the interest will be calculated on principal adjudged sum of Rs. 1,50,000/) in favour of plaintiff and against the defendant.
Decree sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (Inder Jeet Singh)
th
on 24 Phalguna, Saka 1934 Additional District Judge 03,
South District, Saket Courts
New Delhi /15.03.2013
C.S. No. 94/11 Page 12 of 12