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Delhi District Court

Sh. Ashok Kumar Gupta vs M/S. Vian Infrastructure Ltd on 27 February, 2012

   IN THE COURT OF SH. JITENDRA MISHRA, Ld.
JSCC/ASCJ/GJ: PATIALA HOUSE COURTS, NEW DELHI.

C.S. No. 265/09

Sh. Ashok Kumar Gupta
S/o. Sh. Kaluram Gupta,
R/o. H. No. A-186,
Maharishi Dayanand Colony,
Naka Madar, Ajmer, Rajasthan.                 .....Plaintiff

                         VERSUS

1. M/s. Vian Infrastructure Ltd.,

2. Sh. Sameer Kumar Bharti,
Director, M/s. Vian Infrastructure Ltd.,

3. Sh. Surya Kirtichand Thapar,
Wholetime Director, M/s. Vian Infrastructure Ltd.,

4. Sh. Sanjeev Malhotra,
Director, M/s. Vian Infrastructure Ltd.,
All having their Registered Office at
2H, 2nd Floor, DCM Building,
16, Barakhamba Road,
Connaught Place, New Delhi.

                                                 Page No. 1
 Its Corporate Office At
Upper Ground Floor,
Tower-A, Building No. 8,
DLF Cyber City, DLF Phase-II,
Gurgaon, Haryana.                                ......Defendant

JUDGMENT:

1. Vide this order I propose to pass final orders for recovery filed by the plaintiff.

2. The brief facts of the case are that the plaintiff has filed this suit through his AR and submitted that defendants had given an offer to the plaintiff in the month of February 2007 for investment in their project namely Vian City Ajmer at Ajmer Rajasthan and convinced the plaintiff to invest Rs. 1870/- (one thousand eight hundred seventy only) per sq. yrd. for a plot measuring 200 sq. yds. in the said project. The plaintiff accepted the said proposal and after fulfilling all the necessary formalities deposited Rs.37400/- (thirty seven thousand four hundred only) as earnest money for booking vide cheque bearing no. 807284 dated 28.02.2007 drawn on ICICI Bank New Delhi and the same was received by the agent of the defendants at its office at Ajmer Rajasthan and Page No. 2 agent of the defendant issued a receipt against the said sum bearing no. 20 dated 08.03.2007. Thereafter defendant assured plaintiff to have him registered in their accounts vide customer ID No. AJ-20. It is further submitted that as per the terms and conditions of the allotment and demand raised by the Defendants plaintiff further paid Rs. 74800/- (seventy four thousand eight hundred only) vide cheque no. 80787 dated 03.05.2007 drawn on ICICI Bank in the name of defendant company i.e. Vian Infrastructure Ltd. Thus the plaintiff made total investment of Rs.112200/- (one lakh twelve thousand two hundred only) in the said project including the earnest money of Rs.37400/- (thirty seven thousand four hundred only).

3. Vide letter dated 07.01.2008 sent by the defendant plaintiff sought his refund from the defendant company. The defendant company sent cancellation form dated 01.02.2008 along with receipt no. 20 along with cheques for refund of Rs.112000/- (one lakh twelve thousand only). It is submitted that for refund of Rs.112000/- (one lakh twelve thousand only) defendant no. 2 being the Director of the defendant company issued three cheques bearing no.

939582 dated 06.07.2008, bearing no. 939583 dated 14.07.2008 and bearing no. 939581 dated 30.07.2008 amounting to Rs.32200/- (thirty two thousand two hundred only), Rs.40000/- (forty thousand only) and Rs.40000/- (forty thousand only) respectively all drawn on Syndicate Bank Main Road Chattarpur New Delhi in favour of the plaintiff. However the said cheques bounced on presentation. It is submitted that plaintiff issued a legal notice dated 20.09.2008 demanding the payment for outstanding cheques but when no payment was made on behalf of defendant plaintiff filed a complaint case bearing no. 4102/08 U/s. 138 NI Act. However it has no effect on the defendant and hence this suit for recovery.

4. The defendants earlier could not be served through ordinary process and served under Order 5 Rule 20 CPC and they still failed to appear. Accordingly defendants were proceeded ex-parte on 28.07.2011 by Ld. Predecessor.

Plaintiff has filed ex-parte evidence by way of affidavit wherein he has deposed on the same lines as his case in pleadings. Copy of power of attorney is Ex. PW-1/1.

Original list of Directors and Signatories of the defendant company is Ex. PW-1/2. Receipt no. 20 dated 08.03.2007 is Ex. PW-1/3. Letter dated 07.01.2008 sent defendant is Ex. PW-1/4. Cancellation form dated 01.02.2008 sent by plaintiff is Ex. PW-1/5. List of Directors prepared by defendant no. 2 is Ex. PW-1/6. Certified copy of each cheque given by defendants are Ex. PW-1/7, PW-1/8 & PW-1/9. Certified copy of bank note are Ex. PW-1/10, PW-1/11 & PW-1/12. Certified copy of legal notice and proof of service are Ex. PW-1/13 & PW-1/14. Certified copy of complaint case no. 4107/1/08 is Ex. PW-1/15. The office copy of legal notice dated 27.10.2009 is Ex. PW-1/16, original proof of dispatch is Ex. PW-1/17, original acknowledgment showing service of notice is Ex. PW-1/18 and original envelopes containing notices are Ex. PW-1/19.

5. In final arguments advanced by the Cl. for plaintiff submitting that he has proved his case for grant of decree. I have carefully gone through the record and heard the submission of Cl. for plaintiff. It is clear that defendants had had taken a sum of Rs.1,12,200/- (one lakh twelve thousand two hundred only) for providing of plot of land to the plaintiff.

However they unable to provide the said plot. Thereafter vide letter dated 07.01.2008 wherein it acknowledged the receipt of Rs.112200/- (one lakh twelve thousand two hundred only), offered to refund the said amount and for the same issued the cheques to the plaintiff. However the said cheques were dishonoured on presentation for which plaintiff has filed a case against defendants U/s. 138 NI Act, however as per the statement recorded today in the court the accused are not appearing in the said case and they have not paid any money in the said case in respect of these cheques. AR of the plaintiff has given a statement today in the court that the said case is still pending at the stage of appearance and the accused are absconding and no payment has been made in the said case and the entire amount is still outstanding.

6. From the consideration of the facts of the case, the case of the plaintiff goes unrebutted and unchallenged. The defendants after having obtained Rs.112200/- (one lakh twelve thousand two hundred only) failed to provide the plot or refund the amount as per their undertaking. Accordingly a decree of Rs.112200/- (one lakh twelve thousand two Page No. 6 hundred only) along with pendentelite and future interest @ 12% p.a. is passed in favour of the plaintiff and against the defendants. The costs of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to the record room.

Announced in the (Jitendra Mishra) open court on 27.02.2012. JSCC-cum-ASCJ-cum-GJ, New Delhi District, Patiala House Courts, New Delhi Page No. 7