Delhi District Court
Sh. Gopal Singh Bora vs M/S. Q.S. Developers & Promoters Pvt. ... on 16 March, 2020
In the Court of Sh. Sanjeev KumarII, Additional District Judge04,
South District, Saket Courts, New Delhi.
Civil Suit No. 57/2018
Sh. Gopal Singh Bora,
S/o Sh. Trilok Singh Bora,
R/o 178M/19B, Ward No. 2,
Mehrauli, New Delhi.
.....Plaintiff
Versus
1.M/s. Q.S. Developers & Promoters Pvt. Ltd.
At : 9/9, Kishangarh, Vasant Kunj, New Delhi.
2. Mohd. Sartaj Hussain, S/o Sh. Ishrad Hussain, R/o B17B, 4th Floor, Ward No. 6, Santosh Apartment, New Delhi110030.
3. Mohd. Qayyum Hussain, S/o Mohd. Fida Hussain, At : 9/9, Kishangarh, Vasant Kunj, New Delhi.
....Defendants
Date of institution of the suit : 15.01.2018.
Date reserved for judgment : 23.01.2020.
Date of pronouncement of judgment : 16.03.2020
C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.1 /7
EX PARTE JUDGMENT
1. This is a suit for recovery of Rs.6,23,000/ alongwith pendentilite and future interest filed on behalf of the plaintiff against the defendants.
2. The brief facts of the case are that the defendant no. 1 is a company and defendant no.2 and 3 are the directors of the defendant no.1 company. Being director of defendant no. 1 company, the defendant no. 2 and 3 approached to the plaintiff on 03.04.2015 for selling one room set flat to the plaintiff consisting of one room, one toilet cum bathroom, one kitchen alongwith one bike parking at common parking area of built up property bearing no. F201/3, in Khasra No. 1151/3 at Ward No. 2, Mehrauli, New Delhi and plaintiff was agreed to purchase the same and accordingly agreement to sell and purchase was executed between the defendants and the plaintiff.
3. As per the agreement dated 03.04.2015, the total sale consideration of the flat was 6,25,000/ out of which plaintiff had paid a sum of Rs. 1,25,000/ to the defendants at the time of execution of the agreement and balance amount of Rs.5,00,000/ had to be paid by the plaintiff in installments and later on the plaintiff paid a sum of Rs.2,50,000/ to the defendants on various dates which was duly accepted by the defendants and the defendants promise to the plaintiff to hand over the peaceful vacant possession of the flat and for execution of the sale documents in favour of the plaintiff, but defendants failed to do so within the prescribed period of the agreement to sell and purchase despite repeated requests of the plaintiff. After more persuasion by the plaintiff, the defendants settled with the C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.2 /7 plaintiff and execute a settlement deed dated 29.07.2017 through defendant no.2 and plaintiff and being the director of the company the defendant no. 2 due to discharge of their legal liabilities issued two cheques bearing no. 000106 and 000105 dated 20.08.2017 and 30.09.2017 of Rs.1,00,000/ and Rs.2,00,000/ respectively both cheques drawn on Bank of Baroda, Vasant Vihar, New Delhi with the assurance on its presentation the cheques will be honoured and defendants assured to the plaintiff the remaining balance payment will also be returned back to the plaintiff. As per the assurance given by the defendants, the plaintiff presented the cheque bearing no. 000106 in his banker on 28.08.2017 and the same was got dishonoured and on 29.08.2017 with remarks "Funds Insufficient". After expiry of month, at the request of the defendants, the aforesaid both the cheques were presented but same were got dishonoured on 04.10.2017 with remarks "Funds Insufficient". The plaintiff again intimated to the defendants about the same, but defendants did not pay any heed to the plaintiff.
4. Thereafter, the plaintiff has left no option except to sent legal notice dated 14.10.2017 through his counsel by Speed Post thereby calling upon the defendants to make the cheque amount alongwith remaining balance amount of Rs.75,000/ to the plaintiff alongwith interest @24% per annum, but the said notice was returned back with remarks "door lock". The defendants intentionally did not receive the legal notice. Thereafter, the defendants requested to the plaintiff that we will pay the entire amount to the plaintiff within short span of time and ultimately the cheques become time barred under 138 of NI Act and the defendants intentionally passed the time by requesting from the plaintiff with on pretext or the other.
C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.3 /75. As per the agreement to sell the plaintiff has paid total amount of Rs.3,75,000/ to the plaintiff in the year 2015. Hence, plaintiff is entitled to recover 24% interest amount is approx. Rs.2,48,000/ and the plaintiff claims total amount of Rs.6,23,000/ from the defendant.
6. Plaintiff has prayed for a decree for a sum of Rs.6,30,000/ alongwith interest pendentelite and future @ 24% per annum and costs.
7. Summons of the suit were issued to the defendants and the same were duly served upon them. Defendants have filed their joint written statements. None had been appeared on behalf of the defendants on 22.09.2018, 14.12.2018 and 12.03.2019 and therefore, defendants were proceeded exparte vide order dated 12.03.2019 and thereafter, matter was posted for exparte plaintiff's evidence by my learned predecessor.
8. The plaintiff in order to prove his case, examined three witnesses.
9. PW1 is plaintiff Sh. Gopal Singh Bora. He tendered his evidence by way of affidavit which is Ex. PW1/1. He reiterated and reaffirmed the contents of the plaint in his Affidavit. He relied upon the following documents : (1) Ex. PW1/A (colly) is original agreement for sale and purchase dated 03.04.2015.
(2) Ex. PW1/B (colly) is the original receipts.
(3) Ex. PW1/C is original settlement.
(4) Ex. PW1/D is original cheque bearing no. 000106.
(5) Ex. PW1/E is original cheque bearing no. 000105.
C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.4 /7
(6) Ex. PW1/F is computer generated copy of original returning memo
of cheque bearing no. 000106, dated 04.10.2017.
(7) Ex. PW1/G is computer generated copy of original returning memo of cheque bearing no. 000105, dated 04.10.2017.
(8) Ex. PW1/H is computer generated copy of original returning memo of cheque bearing no. 000106, dated 29.08.2017.
(8) Ex. PW1/J is copy of Legal Notice. (9) Ex. PW1/K (colly) is original postal receipts.
(10) Ex. PW1/L is original returning envelope.
10. PW2 Sh. Gopal Singh Bisht is attesting witness of agreement to sell (Ex. PW1/A) and receipt (Ex. PW1/B (colly). He tendered his evidence by way of affidavit which is Ex. PW2/1.
11. PW3 Smt.Vimla Bora is attesting witness of agreement to sell (Ex. PW1/A) and receipt (Ex. PW1/B (colly). He tendered his evidence by way of affidavit which is Ex. PW3/1.
12. I have heard final advanced by learned counsel for the plaintiff and perused the record carefully.
13. PW1 Sh. Gopal Singh Bora, in his evidence by way of affidavit, affirmed the facts stated in plaint on oath. His oral testimony remained unrebuted, unassailed and uncontroverted. In order to support his oral testimony, he has also proved on record the documents i.e original agreement for sale and purchase dated 03.04.2015 (Ex. PW1/A (colly); the original receipts ( Ex. PW1/B (colly); original settlement (Ex. PW1/C);
C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.5 /7original cheque bearing no. 000106 (Ex. PW1/D); original cheque bearing no. 000105 ( Ex. PW1/E); computer generated copy of original returning memo of cheque bearing no. 000106, dated 04.10.2017 and 29.08.2017 ( Ex. PW1/F & Ex. PW1/H); computer generated copy of original returning memo of cheque bearing no. 000105, dated 04.10.2017 (Ex. PW 1/G); copy of Legal Notice (Ex. PW1/J); original postal receipts [Ex. PW 1/K (colly)] and original returning envelope (Ex. PW1/L). PW2 & PW3 are attesting witnesses to the agreement to sell and purchase (Ex. PW1/A) and receipts [Ex. PW1/B (colly)]. In written statement, filed on behalf of the defendants they have admitted that defendant no. 2 & 3 are directors of the defendant no. 1 company and agreement dated 03.04.2015 (Ex. PW 1/A) were executed and plaintiff had paid a sum of Rs.1,25,000/ to the defendants at the time of the execution of the said agreement and balance amount of Rs.5,00,000/ had to be paid by the plaintiff in installments. But in said written statements, they have denied about the payment of Rs.2,50,000/ to them by the plaintiff and settlement deed dated 29.07.2017 and issuance of said two cheques by the defendant no. 2 in discharge of their liabilities. But the defendants have proceeded exparte and they did not lead their evidence to prove the said defence.
14. From the oral and documentary testimony of PW1, PW2 and PW 3, I am of the view that the case of the plaintiff is duly proved. So, the present suit is decreed in favour of the plaintiff and against the defendants for sum of Rs.3,75,000/ (Rs.1,25,000+Rs.2,50,000/) alongwith interest @ 6% per annum from the filing of the suit till realization. The cost of the suit is also awarded to the plaintiff. Decree C.S. No. 57/2018, Gopal Singh Bora Vs. M/s. Q.S. Developers & Promoters Pvt. Ltd. & Ors. Page No.6 /7 sheet be prepared accordingly. File be consigned to record room.
Announced in the open court. (Sanjeev KumarII)
On 16.03.2020 Additional District Judge04.
South District, Saket Court.
New Delhi
Digitally signed
by SANJEEV
SANJEEV KUMAR
KUMAR Date:
2020.03.16
16:26:40 +0530
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