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Delhi District Court

Sh. Jagjit Singh Sahni vs M/S. M­Tech Developers Ltd on 31 March, 2015

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     IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ­01 (SOUTH), 
                           SAKET COURTS, NEW DELHI

Suit No. 163/13/10
Unique Case ID No. 02403C0258572010

Sh. Jagjit Singh Sahni
S/o Late Sh. S.S. Sahni
R/o 73, Ghee Mandi,
Amritsar, Punjab.
                                                           ................... Plaintiff
                 Vs.

M/s. M­Tech Developers Ltd.
Through its Director,
Sh. Mahender Sharma,
ANS House, 144/2, Ashram,
Mathura Road, New Delhi.
                                                          ................ Defendant

        Date of Institution                         :      04.08.2010
        Date of reserving order                     :      31.03.2015
        Date of pronouncement of judgment           :      31.03.2015


                  Suit for Recovery of a sum of ₹ 6,45,589/­ .

J U D G M E N T :

­

1. The present suit was filed by the plaintiff against the defendant on 03.08.2010. The brief facts of the suit as narrated in the Plaint are as follows:­ "Defendant is a company incorporated under the CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

Companies Act, 1956 and engaged in the business of various land projects including the residential complexes/ townships/commercial complexes/built up houses, villas, etc. On the inducement and allurement of the defendant, the plaintiff had booked an individual Villa in the land project of defendant @ Rs.1250/­ per sq. ft. on plot admeasuring 300 sq. yards at Bhiwadi (Rajasthan) and made a part payment of ₹4,00,000/­ (Rupees Four Lacs only) vide Demand Draft No.288955/56/57/58 dated 07.06.2006. The said payment was duly acknowledged by the defendant by issuing receipt no.2043 dated 15.06.2006 to the plaintiff. At the time of booking, the plaintiff was assured by the defendant that the possession of the said Villa would be handed over to him within a period of 24 months. But despite a number of enquiries made by the plaintiff from time to time from the defendant regarding development of the project, no proper response was received from the latter. On making further enquiries, the plaintiff came to know that no approval was obtained by the defendant from CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

the competent authorities for the said project and that no construction had started at the site even after the lapse of three years. The plaintiff immediately brought the said fact to the knowledge of the defendant and asked for refund of his registration amount of ₹4,00,000/­ and the defendant agreed to refund the aforesaid booking amount along with interest @15% per annum. The plaintiff, on the instructions of the defendant, surrendered the provisional registration with photocopy of Receipt no.2043 to the defendant by moving Surrender Request Application dated 29.12.2008 and while acknowledging the surrender request, the defendant issued a letter dated 22.01.2009 to the plaintiff assuring therein that the defendant would refund the advance/booking amount to the plaintiff by way of demand draft on 25.04.2009. But the said amount was never refunded by the defendant to the plaintiff despite several requests made by the plaintiff. Finally, the plaintiff served a legal notice dated 29.12.2009 upon the defendant for refund of the advance/booking amount of ₹4,00,000/­ along with CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

interest @15% per annum. But despite service of legal notice, the defendant failed to refund the said amount and hence, the present suit."

2. Summons of the suit were issued and served upon the defendant and after service the defendant filed the Written Statement wherein, while denying all the averments made in the Plaint, it has raised the following preliminary objections:­ that the suit is not maintainable because the plaintiff had not served any notice upon the defendant prior to filing of the suit; that this Court has no pecuniary jurisdiction to try and entertain this suit as the total cost of the alleged plot booked by the plaintiff was more than ₹37,50,000/­; that the suit is barred by the law of contract because there was no written contract between the plaintiff and the defendant; that the suit is barred by Sec.41 of Specific Relief Act; that the suit is barred by law of limitation and that the suit has been filed without any cause of action. On merits, it has been submitted in the Written Statement that the plaintiff had booked a Villa in a pre­launching scheme but CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

had failed to deposit the installments as per the schedule opted by him and, therefore, the defendant had cancelled his booking and forfeited the amount paid by him. The defendant, in WS, has denied the acknowledgment of amount of ₹4,00,000/­ vide Receipt no. 2043 dated 15.06.2006. It has further denied that any assurance was given by it for handing of the possession of the Villa to plaintiff within 24 months from the date of booking or that no approval was obtained by it from the concerned authorities. It is submitted by the defendant in the Written Statement that the requisite permission from various concerned departments had been obtained by the defendant and the construction of Villas and flats was in full swing. It has further denied that the defendant had agreed to return the booking amount to the plaintiff along with interest @15% per annum. The service of legal notice dated 29.12.2009 is also denied in the Written Statement.

3. Replication to the Written Statement of defendant was filed by the plaintiff wherein almost all the averments of the defendant were CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

denied and contents of the Plaint were reiterated and reaffirmed. The plaintiff has denied that his booking was cancelled for non­ payment of installments and submitted that the defendant had never raised any demand notice on her for payment.

4. After the completion of pleadings, the following issues were framed by Ld. Predecessor Court vide order dated 02.11.2011:­

1. Whether the suit is liable to be dismissed for want of written contract between the parties? OPD

2. Whether the suit is barred by Sec. 41(h) of the Specific Relief Act? OPD

3. Whether the suit is without cause of action? OPD

4. Whether the plaintiff is entitled for decree of ₹ 6,45,589/­ (i.e. booking amount of ₹ 4,00,000/­ + interest of ₹ 2,45,589/­), against the defendant? OPP

5. Whether the plaintiff is entitled for pendent­lite and future interest @ 15% per annum, against the defendant? OPP

6. Relief.

5. In plaintiff's evidence the plaintiff has examined his attorney Pawan Jeet Singh as one and only witness i.e. PW­1. In DE, the defendant CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

has examined Amit Jha, its Director, as one and only witness.

6. PW­1 in his affidavit of evidence i.e. A1 has deposed on similar lines as of the Plaint. While reiterating the submissions made in the Plaint, he, in order to prove plaintiff's case, has exhibited the following documents:­

(i) Ex.PW1/1 - Special Power of Attorney dated 04.07.2011, executed by plaintiff in favour of PW­1 Pawan Jeet Singh Kohli.

(ii) Ex.PW1/2 - Advance Registration Application Form for Apartments/Villas.

(iii) Ex.PW1/3 - Acknowledgment issued by defendant of payment of ₹4,00,000/­ received from plaintiff towards registration of Villa.

(iv) Ex.PW1/4 - Payment Receipt bearing no.2043 dated 15.06.2006, issued by defendants of the payment of ₹4,00,000/­ received from plaintiff.

(v) Ex.PW1/5 - Copy of plaintiff's Letter dated 29.12.2008 CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

regarding surrender of Provisional Registration of Villa.

(vi) Ex.PW1/6 - Letter dated 22.01.2009, issued by defendant, assuring therein to issue a demand draft to plaintiff on 08.07.2009 against surrender of his booking.

(vii) Ex.PW1/7 - Office Copy of Legal Demand Notice dated 29.12.2009, issued by plaintiff to defendant.

(viii) Ex.PW1/8 & Ex.PW1/9 - Postal Receipt and A.D. Card.

(ix) Ex.PW1/10 - Notice U/O.12 R.8 CPC, issued by plaintiff through his counsel to defendant for production of original Advance Registration Application Form.

7. The DW­1 Amit Jha, in his affidavit of evidence i.e. Ex.DW1/A, has deposed that the plaintiff had provisionally registered with the defendant company in June, 2006 for allotment of villa in up­coming project at Bhiwadi (Rajasthan) and opted to pay money in quarterly CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

equated instalments equivalent to the provisional proposed price of plot through a property dealer at Gurgaon but did not make payment of any installments till 2009 nor responded to communications sent by defendant and the defendant was constrained to cancel the registration in January, 2009. He has further deposed that the defendant had neither received the payment of ₹4,00,000/­ from plaintiff nor assured any interest on the provisional registration. Though the DW­1 had tendered his affidavit in evidence, but thereafter he never appeared in the witness box for his cross­ examination despite grant of last opportunity and imposition of cost. Thus his testimony, in the form of affidavit, could not be read into evidence, though it could be read against the defendant. As neither the DW­1 was appearing for cross­examination nor cost was being paid, so DE was closed vide order dated 25.02.2015.

8. I have heard the final arguments from counsel Sh.Sanjay Sehgal for plaintiff and counsel Sh. Lalit Trakru for defendant. My issue­wise findings are as under:­ CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

ISSUE NO.1:­ Whether the suit is liable to be dismissed for want of written contract between the parties?

9. The onus to prove this issue was upon the defendant. But the defendant has failed to lead evidence despite grant of a number of opportunities. The defendant, in the Written Statement, has simply stated that the suit is barred by law of contract as there is no written contract between the plaintiff and defendant. But the Contract Act, 1872 nowhere says that a suit could not be filed if there is no "written" contract between the parties. Rather, both, written as well as oral contracts are permissible under the said Act. The objection raised by the defendant is totally baseless and appears to be mentioned just for the sake of raising objection and hence rejected. Thus this issue is decided in favour of the plaintiff and against the defendant.

ISSUE NO.2:­ Whether the suit is barred by Sec.41(h) of the Specific Relief Act?

10. The onus to prove this issue was also upon the defendant but it has CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

failed to discharge its onus as stated earlier. The defendant has failed to prove/explain as to which other equally efficacious remedy is available to the plaintiff. The case of the plaintiff is that she had paid ₹4,00,000/­ to the defendant at the time of booking of a Villa and since the defendant had not fulfilled its part of agreement i.e. raised any construction, so she had claimed the refund of amount paid by her. For the recovery of the said amount, the plaintiff has filed the present suit which is the only remedy available with her for recovering the said amount from the defendant and hence it is held that the present suit is legally maintainable and not barred by the provisions of Sec.41(h) of the Specific Relief Act. Thus, this issue is also decided in favour of the plaintiff and against the defendant. ISSUE NO.3:­ Whether the suit is without cause of action?

11. The onus to prove this issue was again on the defendant as it had raised objection in its Written Statement that the suit has been filed without any cause of action. But as said earlier, the defendant has failed to discharge the onus. The PW­1, on the other hand, has duly CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

proved that the plaintiff had paid ₹4,00,000/­ towards the part payment of construction of a Villa booked by him with the defendant, but neither the defendant had raised any construction nor refunded his amount despite repeated requests and service of legal notice. Hence it is held that the suit is not without cause of action. Thus, this issue is also decided in favour of the plaintiff and against the defendant.

ISSUE NO.4:­ Whether the plaintiff is entitled for decree of ₹ 6,45,589/­ (i.e. booking amount of ₹ 4,00,000/­ + interest of ₹ 2,54,589/­), against the defendant?

ISSUE NO.5:­ Whether the plaintiff is entitled for pendent­lite and future interest @ 15% per annum, against the defendant?

12. Issue no.4 and 5 are taken up together as these are inter­related issues and are required to be dealt jointly. The onus to prove these issues was upon the plaintiff. The PW­1 has deposed that vide Advance Registration Application Form Ex.PW1/2, a Villa in the land project of defendant at Bhiwadi (Rajasthan) was booked and part CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

payment of ₹4,00,000/­ vide Demand Draft No.288955/56/57/58 dated 07.06.2006 was made at the time of booking which was duly acknowledged by the defendant vide Ex.PW1/3 and defendant had also issued payment receipt no.2043 dated 15.06.2006 i.e. Ex.PW1/4 in favour of the plaintiff. But despite his categorical deposition, he was neither cross­examined on this point nor was any suggestion given to him to deny the same. The counsel for defendant has argued that the attorney of plaintiff could not depose on behalf of plaintiff unless he has personal knowledge of the facts. But it is argued by counsel for plaintiff that the attorney/PW­1 was having personal knowledge as he had accompanied the plaintiff to defendant's office on at the time of surrender of booking. The PW­1 has categorically stated during his cross­examination that he had personal knowledge of the case and that he was present with plaintiff at the time of submission of Form of Surrender of Provisional Registration Ex.PW1/5 at the defendant's office at Ashram Chowk. He has further deposed that when they had gone to defendant's office, the defendant had given them letter Ex.PW1/6 CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

assuring thereby to issue a demand draft on 25.04.2009 against surrender of booking. Thus the PW­1 has personal knowledge about the Ex.PW1/5 and Ex.PW1/6 and thus can certainly depose about these documents and about facts taken place in his presence. He has duly proved these documents and the defendant has not disputed these documents as no question or suggestion was put to him to deny the same. Now regarding the booking of villa and payment of ₹4,00,000/­ by plaintiff, it is pertinent to mention here that though, in the Written Statement, the defendant had evasively denied the contents of the Plaint regarding the booking of a Villa by the plaintiff and making of payment of ₹4,00,000/­ by him, but in para 3­4 of reply on merits, it has duly admitted that the plaintiff had booked a Villa, though in pre­launching scheme. It has further stated that the amount paid by the plaintiff was forfeited by the defendant as the plaintiff had failed to deposit the installments as per the payment schedule, meaning thereby that it has admitted that the plaintiff had paid the amount to it. Even in the cross­ examination of PW­1, suggestion was given to him that the plaintiff CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

had not made any payment after making payment of ₹4,00,000/­, meaning thereby that the receipt of ₹4,00,000/­ has been admitted by the defendant. Hence, in view of the aforesaid discussion, it is clear that it has stood proved that the plaintiff had booked a Villa with the defendant and paid ₹4,00,000/­to the defendant as part payment at the time of booking of the said Villa and thereafter surrendered the booking vide Ex.PW1/5 and the defendant agreed vide Ex.PW1/6 to issue demand draft on 25.04.2009 against surrender of booking.

13. The case put up by the defendant is that the plaintiff had failed to pay the installments as per the payment schedule and hence his amount was forfeited by the defendant. But neither the defendant has proved/placed on record any such payment schedule nor any document/agreement as per which it was entitled to forfeit the amount paid by the plaintiff. During cross­examination, the PW­1 had said that the payment was to be made on the basis of Construction Linked Plan and no suggestion was given to him to CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

deny the same. The case of the plaintiff is that no construction was raised at the site by the defendant and this is the reason that he had been demanding back his money. Though, the said fact has been denied by the defendant in Written Statement but neither any evidence is led to disprove the same nor even any document/photograph is placed on record by the defendant to show if any construction had started at the site. Apart from this, it is also pertinent to mention here that the plaintiff in his Replication had specifically stated that the defendant had never raised any demand notice for payment on the plaintiff. Even the PW­1 had categorically deposed during his cross­examination that the defendant had never sent any demand letter for payment of any installment. Despite that neither any such demand letter is placed on record nor is it the case of the defendant that it had issued any letter for demanding any payment of installment from the plaintiff. Thus, in the absence of any willful default on the part of the plaintiff to the demand raised by the defendant, how the defendant could have cancelled the booking of plaintiff? The defendant has failed to prove or place on record CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

any document making it entitled to forfeit the money. It has already stood proved that the defendant vide letter Ex.PW1/6 had agreed to issue demand draft to plaintiff on 25.04.2009 against surrender of booking. Thus, if the defendant had agreed to refund the amount of the plaintiff at the time of his surrender of booking, then where the question of cancellation of his booking arises on the ground of non­ payment of installments ! The defence raised by the defendant is clearly sham and bogus and appears to be result of afterthought. Hence, in view of the aforesaid analysis, it is held that the booking of the plaintiff was never cancelled on account of non­payment of installments, rather the plaintiff had surrendered the booking vide Ex.PW1/5 and the defendant had agreed to refund his amount vide Ex.PW1/6 and thus plaintiff is entitled to recover his amount of ₹4,00,000/­ from the defendant. Thus, Issue no.4 to this extent is also decided in favour of the plaintiff and against the defendant.

14. The counsel for defendant has argued that the suit is barred by limitation as the plaintiff is seeking recovery of amount paid by him CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

on 07.06.2006 whereas the suit was filed on 03.08.2010 i.e. after the expiry of three years. But the counsel for plaintiff has vehemently argued that the suit is not at all barred by limitation as firstly the Hon'ble High Court of Delhi has held on 22.01.2014 in Swapna Bhattacharya Vs. M­Tech Developers Ltd., Co.PET. 54/2013 & CA No.141­142/2013 that the contention that the cause of action arose on the day of payment by plaintiff and suit being thus barred by limitation, is wholly erroneous and that after coming to know about the non­construction of project, the petitioner could make a claim only after reasonable period for construction had elapsed and secondly the defendant by issuing letter dated 22.01.2009 i.e. Ex.PW1/6, had acknowledged the liability and thus as per Sec.18 Limitation Act, the fresh period of limitation started from 22.01.2009. I find force in the contention of counsel for plaintiff. Thus as per the above­said case­law the period of limitation could not be calculated from the date of payment of booking amount by plaintiff and secondly even if the contention of defendant's counsel is presumed to be correct, as per Sec.18 Limitation Act fresh period of limitation CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

had started from 22.09.2009 in view of defendant's acknowledgement vide Ex.PW1/6. Hence it is held that the suit is not barred by limitation.

15. Now let us come to the interest sought by the plaintiff. The plaintiff has sought interest - pre­suit, pendent­lite and future, @15% per annum. The case of the plaintiff is that when he demanded refund of his money, while bringing to the notice of the defendant the facts regarding not obtaining any approval from the competent authorities for the land project by the defendant and further regarding fraudulent tactics adopted by the defendant to usurp the hard earned money of the plaintiff and other innocent investors, the defendant agreed to refund his booking amount of ₹4,00,000/­ along with interest @15% per annum. The counsel for plaintiff has argued that the standard format of Surrender Application/Letter dated 22.01.2009 i.e. Ex.PW1/5 was provided by the defendant itself to the plaintiff and one of the terms of the said letter grants interest @15% per annum. But the counsel for defendant has CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

vehemently argued that the said letter could not be termed as agreement between the plaintiff and the defendant regarding the rate of interest. I find force in his contention as the said letter is simply a letter written by the plaintiff to the defendant expressing therein his wish to surrender his provisional registration of Villa due to non­development in the project and further requesting the defendant to refund his amount along with interest @15% per annum from the date of payment. This request of plaintiff in no manner can be construed as agreement between the plaintiff and the defendant, even if the standard format of said letter was provided by the defendant. The counsel for defendant has further argued that the interest clause has already been deleted in the Surrender Application Ex.PW1/5 and therefore, the plaintiff could not claim any interest. But it is argued by counsel for plaintiff that the plaintiff had not deleted the said clause and that the same might have been deleted by the defendant only. The same sounds convincing as the deletion would have affected him adversely but favourably to the defendant. Moreover the said deletion/cutting is CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

not bearing any signature/initials of any of the parties and hence could not be relied upon. There is one more reason also i.e. the said deletion pertains not only to interest but to the principal amount also i.e. the amount paid by the plaintiff to the defendant and had the said clause been deleted, then why the defendant would have issued letter dated 22.01.2009 i.e. Ex.PW1/6, assuring therein to refund plaintiff's amount by way of demand draft on 25.04.2009 !! Hence the contention of the counsel for defendant is rejected being totally baseless and meritless. This Court is of the considered opinion that the plaintiff is entitled to reasonable rate of interest as he has suffered loss because his money is lying blocked for the last more than 8 years and he has been deprived of its use by the defendant.

16. Now the question arises that from which date the interest should be awarded? The plaintiff has claimed interest from the date of booking i.e. from 07.06.2006. But the counsel for defendant, while relying upon judgment of Hon'ble High Court of Delhi in Zile Singh Vs. CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

Mangloo Ram Bansal, RSA No.195/04, has vehemently argued that the interest, if awarded, could not be awarded from the date prior to the date of legal notice although the defendant has denied the receipt of legal notice. Let us first take up, before taking up the point relating to ascertaining the date from which interest could be awarded, the issue raised by the defendant's counsel regarding non­service of legal notice. The defendant has simply denied the service of legal notice in Written Statement. It is settled law that once the letter is sent through registered post at correct address and AD card is received back bearing some signatures, the presumption is drawn about its service upon the addressee unless the same is rebutted. It is held by Hon'ble High Court of Delhi in Smt. Bhavneshwari Devi Vs. Kalyan Singh, 1993 (2) RCR (Rent) 330 that presumption of service arises in law if the AD card of registered post is received back bearing signatures of someone. The Hon'ble Supreme Court has gone even a step further and held that even if the AD card is lost or does not come back for any reason, the presumption of service could still be drawn. It has been CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

held by the Hon'ble Supreme Court in Basant Singh Vs. Roman Catholic Mission, 2002 A.I.R. (SC) 3557, "Civil Procedure Code, Order 5 Rule 19A(2) ­ General Clauses Act, 1897, Section 27 ­ Service by Registered post ­ Registered post ­ Presumption of Service ­ Summons properly addressed sent by registered post with acknowledgement due ­ Notwithstanding loss of A.D. card/not received back for any reason, a presumption of due service is attached ­ However the presumption is rebuttable ­ It is for the addressee to prove that the registered notice was not presented/reached to him for service."

Though the presumption is rebuttable and it is always open to the defendant to rebut the presumption by leading convincing and cogent evidence but here in the present case the addressee/defendant has utterly failed to lead any evidence to rebut this presumption. Moreover, it is also not the case of the defendant that the address as mentioned in the legal notice or AD Card is not CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

its correct address. So, in view of the above case­laws and legal presumption contained in Sec.27 of General Clauses Act as well as Sec.114(f) of Indian Evidence Act (which has gone unrebutted in the present case), it is held that the defendant was duly served with legal notice Ex.PW1/7.

17. Now let us take up the other issue raised by the counsel for defendant regarding the date from which interest could be awarded. The Hon'ble High Court in Zile Singh Vs. Mangloo Ram Bansal (supra) has held that so far pendent­lite and future interest are concerned, Sec.34 CPC is applicable but the payment of pre­suit interest is governed by Sec.3 and 4 of Interest Act, 1978. As per Sec.3(1)(a) of Interest Act, if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, the interest may be allowed from the date when the debt is payable. And as per Sec.3(1)(b) of Interest Act, if proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, then the Court may allow interest from the date mentioned in this CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

regard in the written notice given by the person entitled. It has been held by the Hon'ble High Court in the above­said case, "There is no dispute that in the present case there is no written instrument under which the debt is payable at a certain time. The plaintiff has also not averred in the plaint that there was any agreement with the defendants regarding payment of interest or there is any usage having the force of law regarding payment of interest. In the absence of any proof of agreement, either express or implied, or usage having the force of law regarding payability of interest, and in the absence of any written instrument, the claim of interest can be sustained only if it is proved that a written notice of demand to that effect has been issued."

In the present case, there is no written instrument under which the debt is payable at a certain time. The plaintiff has also not averred in the Plaint that there was any usage having the force of law regarding payment of interest. It is already held that there was no agreement between the parties regarding payment of interest. So, CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

this Court is of the considered opinion that the present case is falling under Sec.3(1)(b) of Interest Act and the plaintiff could be awarded interest from the date of written notice of demand. Now it is pertinent to mention here that prior to issuance of legal notice Ex.PW1/7, the plaintiff had already raised demand in writing for refund of his amount vide Surrender Application dated 29.12.2008 i.e. Ex.PW1/5. This Court is of considered opinion that the said Surrender Application is equivalent to written notice as contemplated under Sec.3(1)(b) of Interest Act. Hence, it is held that the plaintiff is entitled to claim pre­suit interest w.e.f. 29.12.2008. Though the plaintiff has claimed interest @15% per annum, but this Court is of the considered opinion that it is on the higher side and that the ends of justice would be sufficiently met if plaintiff is granted interest (pre­suit and pendent­lite) @12% per annum i.e. from 29.12.2008 till date of this order and future interest @6% per annum till realization. Hence Issue no. 4 & 5 are decided in favour of the plaintiff and against the defendant.

CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.

Relief:­

18. The present suit is decreed in favour of the plaintiff and against the defendant for a sum of ₹4,00,000/­ (Rupees Four Lacs only) alongwith interest (pre­suit and pendent­lite) @12% per annum w.e.f. 29.12.2008 till the date of this order and future interest @6% per annum till realization. Costs of the suit is also awarded in favour of the plaintiff. Decree­sheet be prepared accordingly.

19. File be consigned to Record Room after necessary compliance.

(Announced in the open Court on 31.03.2015) (Navita Kumari Bagha) ADJ­01, South District, Saket Courts, New Delhi CS No. 163/13/10 Jagjit Singh Sahni Vs. M/s. M. Tech Developers Ltd.