Bangalore District Court
Was Intending To Acquire Lands In ... vs Acting On His Individual Capacity on 6 November, 2021
IN THE COURT OF LXXXV ADDL. CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH-86) (Commercial Court)
DATED THIS THE 06TH DAY OF NOVEMBER 2021
PRESENT:
SMT. LATHAKUMARI M. M.A., LL.M.,
LXXXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. O.S. No. 256/2021
BETWEEN:
M/s. ARVIND SMART SPACES LIMITED
Having Reginal Office at 4th Floor,
Raheja Point, No.17/2-6,
Commissariat Road Ward No.76,
Richmond Town,
Bengaluru-560 025
Represented by its authorised signatory
Mr.Sharath Fasalkar.
:PLAINTIFF
(Represented by Sri. G.S.-
Advocate)
AND
Mr. PRATAP SIMHA,
Aged about 49 years,
S/o.Mr.M.V.Ramarao
R/at.No.113/A, 5th Cross, 3rd Main,
Near Vivekananda Statue,
Girinagara 1st Stage,
Bengaluru-560 085.
: DEFENDANTS
(Ex-parte)
2
Com. O.S. No.256/2021
Date of Institution of the suit 29.03.2021
Nature of the suit (suit on
pronote, suit for declaration &
Possession, Suit for injunction Suit for recovery of money
etc.)
Date of commencement of
recording of evidence 22.10.2021
Date on which judgment was
pronounced 06.11.2021
Total Duration Year/s Month/s Day/s
00 07 07
(LATHAKUMARI M.),
LXXXV Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a summary suit filed by plaintiff for judgment and decree directing the defendant to pay a sum of Rs.50,00,000/- along with interest at the rate of 18% per annum from11.09.2020 till realization with costs and such other reliefs as this court deems fit to grant in the facts and circumstances of this case.
2. The brief facts of the plaintiff's case is that, plaintiff is a Private Limited Company incorporated under provisions of the Companies Act, 1956 and is engaged, in development of 3 Com. O.S. No.256/2021 immovable properties into residential and commercial project. As per resolution dated 21.02.2019 plaintiff's company is represented by it's authorized signatory Mr. Siddharth Dube. It is plaintiffs further case that around September 2018, plaintiff was intending to acquire lands in Bengaluru for its development purpose and was in touch with several brokers in this regard. Having came to know about this fact, the defendant acting on his individual capacity, approached the plaintiff and informed plaintiff that one Mrs. N.Anjinamma, W/o. Late Subbappa is the absolute owner in possession of the agricultural land bearing Survey No.49/5 measuring 2 Acres, and Mr. Thomas Varghees, Ms.Ann Verghees and Mary Varghees are the absolute owners in possession of land bearing Survey No.49/5 measuring 2 Acres both situated at Malur Village, Varthur Hobli, Sarjapura Road, Bengalur in all measure 9 Acres hereinafter referred to as "Schedule Property". Defendant further informed plaintiff that he was the Power of Attorney Holder of the said land owners Smt.Anjinamma and others. It is the plaintiff's further case that the defendant herein also represented to the plaintiff that suit schedule property has a clear and marketable title and also with a potential of same being developed into a residential project free from all hindrances. Relying on these representation of defendant herein plaintiff with an intention to purchase suit schedule property after various discussion entered into a Term Sheet dated 24.09.2018. As per terms 4 Com. O.S. No.256/2021 and conditions of the said Term Sheet dated 24.09.2018 it was agreed that the defendant shall convey suit schedule property to the plaintiff at the rate of 3,350/- per square feet which includes conversion charges, charges pertaining to transfer of khata, betterment charges, taxes, etc., in respect of the schedule property till the date of execution of the Sale Deed in favor of the plaintiff. Further, plaintiff asserts that, as per said Term Sheet an advance of Rs.11,00,000/- to be paid to the defendant. Further, upon the furnishing the Power of Attorneys executed by concerned land owners of the schedule property an additional amount of Rs.39,00,000/- to be paid to the defendant as further advance and the period fixed for completion of this contract was 45 days and on execution of Sale Deed plaintiff shall pay the remaining balance amount. It is plaintiff's further case that as per the said Term Sheet, the defendant was under an obligation to provide all the documents pertaining to suit schedule property as it was agreed to complete the due-diligence within a period of 45 days from 24.09.2018. Despite repeated reminders the defendant failed to provide all the necessary documents pertaining to suit schedule property and also failed to fulfill his part of obligation as agreed within stipulated period. Considering the same, the plaintiff instructed its real estate agent to intimate the defendant about termination of the term sheet and to seek return of entire advance sum of rs.50,00,000/- paid to defendant i.e., 11,00,000/- and 5 Com. O.S. No.256/2021 39,00,000/- paid via cheque and NEFT respectively to the defendant. The defendant on behalf of Land Owners issued a cheque bearing No.489824 dated 11.12.2018 for a sum of Rs.50,00,000/- towards refund of the advance amount paid by the plaintiff. The plaintiff further mentioned at para 10 of its plaint that when he presented the said cheque which was returned unpaid as fund insufficient on 20.12.2018. With regard to dishonor of cheque plaintiff company has already filed C.C.No.21370/2019 against defendant which is pending consideration before Ahmadabad Court. When plaintiff intimated defendant about dishonor of cheque, defendant requested plaintiff to represented the said cheque stating that same will be honoured. When plaintiff represented the same it was again return unpaid as funds insufficient. In pursuance of the same plaintiffs got issued legal notice dated 31.01.2019 to the defendant and already filed criminal case against defendant herein and constrained to file this present summary suit under Order XXXVII of CPC for recovery of amount along with interest cost and such other reliefs as mentioned supra.
3. On issuance of notice to the defendant, as required under summary suit, defendant remained absent. Accordingly, placed ex-parte.
4. On behalf of plaintiff company, it's authorized agent got examined himself as PW.1 and got marked as many as 14 6 Com. O.S. No.256/2021 documents Ex.P.1 to Ex.P.14.
5. I have carefully scrutinized the entire records placed before me. Heard the arguments.
6. Now the points that arise for my consideration are:-
1) Whether the Plaintiff Company is entitled to recover a sum of Rs.50,00,000/- from the defendant herein along with interest at the rate of 18% per annum from 11.09.2020 till realization with cost?
2) What Order?
7. My answers to the above Points are as under:
Point No.1 :- In the Affirmative Point No.2 :- As per the final Order for the following reasons. REASONS
8. Point No.1 :- This is a summary suit filed by the plaintiff under Order XXXVII Rule 1 CPC claiming Rs.50,00,000/- along with interest and cost from the defendant herein. It is the case of the plaintiff that defendant having came to know about real estate business of plaintiff's company which is involved in buying lands and developing the same into residential and commercial properties, 7 Com. O.S. No.256/2021 defendant represented himself as the GPA holder of suit schedule property and land owners are ready to sale the same which is free from all hindrances and also having good title. Considering the same after discussion plaintiff company entered into Term Sheet with defendant herein agreeing to purchase the suit schedule property for a sale consideration of Rs.3,350/- per square feet. However, defendant failed to complete his part of obligation as per the Term Sheet, thereby plaintiff constrained to terminate the same and insist defendant to refund the advance amount received by him to an extent of Rs.50,00,000/-. It is plaintiff's further case that considering the demand made by him, though defendant issued cheque for Rs.50,00,000/-, same was returned unpaid. To establish the same plaintiff PW1 has produced as many as 14 documents Ex.P.1 is the Board resolution dated 21.02.2019 authorizing to represent the plaintiff. Ex.P2 is the Ledger statement of the plaintiff company. Ex.P3 is the certified copy of complaint in C.C.No.21370/2019 with enclosures before Ahmadabad JMFC. Ex.P4 is the chief affidavit filed in said C.C.No.21370/2019. Ex.P5 is the certified copy of list of documents filed before ACMM, Ahmadabad. Ex.P6 is the certified copy of order sheet. Ex.P7 is the copy of Term Sheet for purchase of land dated 24.09.2018 along with annexures. Ex.P8 is the copy of power of attorney dated 14.09.2018. Ex.P9 is the copy of the cheque dated 22.09.2018. Ex.P10 is the statement of accounts of plaintiff company from 8 Com. O.S. No.256/2021 01.10.2018 to 18.10.2018. Ex.P11 is the E-mail correspondence along with 65B certificate as required under Indian Evidence Act. Ex.P12 is the copy of cheque dated 11.12.2018. Ex.P12a and Ex.P12b are the copy of memo for return of said cheque. Ex.P13 is the office copy of legal notice dated 31.01.2019 issued to defendant. Ex.P13a is the copy of postal receipt. Ex.P14 is the non starter report issued to DLSA, Bengaluru. Before institution of this suit as per section 12A of the Commercial Courts Act plaintiff also initiated mediation proceedings against defendant. Whereas defendant not at all responded to the same. In spite of service of suit summons in this case defendant remain absent. This is summary proceedings initiated by plaintiff's company herein. Plaintiff's claim was based on documents discuss supra. In the absence of specific defense there is no reason to display the oral and documentary evidence relied upon by the plaintiff company. The defendant having issued the cheque in favour of plaintiff herein towards refund amount of Rs.50,00,000/- received by him from the plaintiff is under obligation to see that said cheque has been honoured. As per the documents produced, plaintiff company has already filed criminal case against defendant for dishonor of cheque before Ahmadabad Court under the Negotiable Instruments Act. In the office copy of notice Ex.P.13 plaintiff has clearly mentioned about the dishonour of cheque and also insisted the defendant to pay the amount of Rs.50,00,000/-. In this 9 Com. O.S. No.256/2021 notice, there is no reference about interest of 18% claimed by the plaintiff herein. Even in the Term Sheet, Ex.P.7 there is no reference about an alleged interest. However, considering the transaction mentioned by the plaintiff in his plaint against defendant herein, this Court opines that if 9% interest is awarded that would meet the ends of justice. Accordingly, I have answered Point No.1 partly in the Affirmative.
9. Point No.2 :- In view of my findings on Point No.1, I proceed to pass the following Order.
ORDER The Suit filed by the plaintiff company for recovery of Rs.50,00,000/- along with interest at the rate of 18% per annum from defendant from date of suit till realization is partly decreed with cost.
Defendant is directed to pay Rs.50,00,000/- to the plaintiff herein along with an interest at the rate of 9% per annum from 11.09.2020 within 60 days from today.
10Com. O.S. No.256/2021 Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in open Court on this the 06th day of November, 2021).
(LATHAKUMARI M.), LXXXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 Mr. SIDDHARTH DUBE LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Board resolution dated 21.02.2019 authorizing to represent the plaintiff.
Ex.P.2 Ledger statement of the plaintiff company. Ex.P.3 Certified copy of complaint in C.C.No.21370/2019 with enclosures before Ahmadabad JMFC.
Ex.P.4 Chief affidavit filed in said C.C.No.21370/2019. Ex.P.5 Certified copy of list of documents filed before ACMM, Ahmadabad.
Ex.P6 Certified copy of order sheet.
Ex.P7 Copy of Term Sheet for purchase of land dated
24.09.2018 along with annexures.
Ex.P8 Copy of power of attorney dated 14.09.2018.
11
Com. O.S. No.256/2021
Ex.P9 Copy of the cheque dated 22.09.2018.
Ex.P10 Statement of accounts of plaintiff company from
01.10.2018 to 18.10.2018.
Ex.P11 E-mail correspondence along with 65B certificate
as required under Indian Evidence Act.
Ex.P12 Copy of cheque dated 11.12.2018.
Ex.P12a Copy of memo for return of said cheque. and Ex.P12b Ex.P13 Office copy of legal notice dated 31.01.2019 issued to defendant.
Ex.P13a Copy of postal receipt.
Ex.P14 Non starter report issued to DLSA, Bengaluru.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (LATHAKUMARI M.), LXXXV Addl.City Civil & Sessions Judge, Bengaluru.