Delhi District Court
Sh. Vijay Pal Yadav vs M/S Adel Landmarks Ltd on 22 December, 2018
IN THE COURT OF SHRI SANJAY SHARMAI
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
CS No. 860/17
Sh. Vijay Pal Yadav,
S/o Late Shri Nihal Singh Yadav,
R/o 645, Sector 23,
Gurgaon Haryana122017 ............ Plaintiff
Versus
M/s ADEL Landmarks Ltd.,
Formerly M/s Era Landmarks Ltd.,
Through its Director.
Head Office at:
B24, Sector3, Noida201301.
Registered Office at:
B 292, Chandrakanta Complex,
Shop No. 8, Near Metro Pillar No. 161,
New Ashok Nagar, Delhi110096.
Office at:
C56/41, Sector 62,
Noida201303, UP ........Defendant
Date of institution : 15.12.2017
Date of reserving judgment : 11.12.2018
Date of judgment : 22.12.2018
J U D G M E N T :
The plaintiff filed the present suit against the defendant under the
provisions of Order 37 CPC for recovery of an amount of Rs. 46,14,878/
CS No. 860/17 Page 1 of 6
along with interest @ 10% p.a., which has been treated as an ordinary suit
for recovery with the consent and upon the statement of the Ld. Counsel for
the plaintiff.
2. In brief, the facts as averred in the plaint are that the defendant
company was originally registered by the name of M/s Era Land marks
Limited, having its registered office at 153 Okhla Industrial Estate Phase III,
New Delhi110020. Subsequently, its name was changed to M/s Adel
Landmarks Ltd and its registered office was also shifted to B39, Ground
Floor, Friends Colony (West), New Delhi110065 which was again shifted
to B292, Chandrakanta Complex, Shop No. 8, Near Metro Pillar No. 161,
New Ashok Nagar, Delhi110096, which fact was duly communicated to the
plaintiff.
3. It has been pleaded that the defendant company approached the
plaintiff and induced him to purchase a flat in a prelaunch stage of its
project, through meeting/interacting with the executives of the defendant
and also through various advertisements in print media and through the
brochures of the defendant company. Plaintiff booked a flat and paid a sum
of Rs. 4,00,000/ for which the defendant issued a money receipt no. 154
dated 19.11.2010. Subsequently, the plaintiff paid Rs. 63,125/ against
receipt no. 930 dated 11.05.2011, Rs. 3,90,699/ against receipt no. 1373
dated 21.10.2011 (out of which Rs. 3,69,265/ were towards basic and Rs.
21,434/ towards service tax), Rs. 4,82,000/ against receipt no. RC 187936
dated 02.01.2013 (Rs. 4,63,403 towards basic and Rs. 18,597/ towards
service tax). The defendant company informed the plaintiff that the
payment was in respect of unit No. CSM/103/D0302 at GGN 103 and
CS No. 860/17 Page 2 of 6
allotted him customer code as 038/C133233. It has been pleaded that the
plaintiff entered into an agreement dated 23.04.2013 with Sh. Neeraj
Kulshreshtha, the authorized signatory of the defendant. Thereafter, as per
the agreement, the plaintiff paid an amount of Rs. 3,00,000/ against receipt
No. ELL/MKTG/DN/CSM/103, dated 05.092013 and Rs. 14,90,000/
against receipt no. ELL/CSM/001/045 dated 06.03.2014. Defendant failed
to comply its part of obligations as contained in Clause 10 (1) of the
agreement dated 23.04.2013 and failed to hand over the possession within
36 months of the execution of the agreement and could not even initiate the
construction activities. The plaintiff in all paid a sum of Rs. 31,25,824/, as
above. The plaintiff, by visiting several times, asked the defendant to start
the construction but the defendant failed. Thereafter, defendant issued a
letter no. ELL/COMM/018/071 dated 01.01.2013 to the plaintiff threatening
him of charging the interest @ 18 p.a. on the delayed payment without even
initiating/undertaking the construction activities of the project. Hence, the
plaintiff has filed the present suit.
4. The plaintiff, in the present suit, has claimed an interest of Rs.
14,89,054/ in all @ 10% p.a. (simple) over the amount he has already paid
i.e. Rs. 31,25,840/. Hence, the plaintiff has claimed a total sum of Rs.
46,14,878/ in the present suit. Plaintiff served a legal notice dated
13.11.2017upon the defendant but the defendant neither replied to it nor complied with the requirements of the same. It has been pleaded that this court has the territorial jurisdiction to entertain, try and dispose of the present suit. Cause of action arose in favour of the plaintiff to file the present suit.
CS No. 860/17 Page 3 of 65. Summons of the suit were issued to the defendant, who was duly served on 02.02.2018 and Ms. Pushpa Dabas AR of the defendant company appeared on 15.02.2018. However, no written statement was filed on behalf of the defendant. On 17.05.2018 an application under Section 8 of Arbitration & Conciliation Act was filed on behalf of the defendant. Though, advance copy of the said application was supplied to the Ld. Counsel for plaintiff but its court copy was never filed on record. Since no one appeared on behalf of the defendant, its application under Section 8 of Arbitration and Conciliation Act, was dismissed for non prosecution on 16.08.2018 and it was proceeded against exparte.
6. The plaintiff lead his evidence and examined himself as PW1 and tendered his evidence by way of affidavit as Ex. PW1/1. He has relied upon documents i.e. Ex. PW1/AA, which is the cash receipt of Rs. 4 lac dated 19.11.2010;
Ex. PW1/B which is the cash receipt of Rs. 63,125/ dated 11.05.2011;
Ex. PW1/C as the cash receipt of Rs. 3,90,699/ dated 21.10.2011; Ex. PW1/D as the letter dated 02.01.2013 of defendant company acknowledging receipt of amount Rs. 4,82,000/; Ex. PW1/E as the agreement between the plaintiff and the defendant company dated 23.04.2013;
Ex. PW1/F as the letter dated 05.11.2013 of defendant company acknowledging the receipt of Rs. 3 lac;
Ex. PW1/G as the letter dated 06.03.2013 of the defendant acknowledging the receipt of Rs. 14,90,000/;
CS No. 860/17 Page 4 of 6Ex. PW1/H as the letter dated 03.02.2015 of defendant company acknowledging the past received amount and demanding further balance amount from the plaintiff;
Ex. PW1/I as the letter dated 01.01.2013 informing the plaintiff about the allotment of flat bearing no. CSM/103/D0302; Ex. PW1/J as the legal notice served upon the defendant company by the plaintiff dated 13.11.2017;
Ex. PW1/K (colly) are the postal receipts confirming the service of legal notice upon the defendant company.
Ex. PW1/L (colly) are the computer tracking report of delivery of legal notice upon the defendant;
Ex. PW1/M as the photocopy of his Aadhar card
7. Thereafter, plaintiff closed his exparte evidence.
8. I have heard Sh. Naresh Kumar - Ld. Counsel for plaintiff and have also perused the records of the case.
9. The testimony of PW1 remained unrebutted, uncontroverted and unchallenged. The documents relied upon by him as above, prove that the defendant is a private limited company, incorporated under the Companies Act and the plaintiff had booked a flat at the pre lauch stage, in its project which was to be developed and constructed by it. The total basic price of the said flat as per the agreement Ex. PW1/P was fixed at Rs. 51,82,060/. However, the defendant company despite having received a substantial amount from the plaintiff, failed to initiate the construction of the project and thus, violated the terms of the agreement, which stipulated that the construction would be complete within thirty six months of the date of CS No. 860/17 Page 5 of 6 agreement with grace period of six months. The said agreement was entered into on 23.04.2013. The present suit has been filed on 14.12.2017 i.e. after the expiry of the agreed period and even the grace period. Hence, the plaintiff is entitled for the recovery of the amount paid by him to the defendant along with interest, since the principal amount has been used and enjoyed by the defendant without starting the construction.
10. The suit has been filed within limitation as the plaintiff became entitled for the recovery after the expiry of the grace period, as aforesaid, which expired in October 2017. The registered office of the defendant company is in east district and therefore this court has the territorial jurisdiction as well as the pecuniary jurisdiction to decide the present suit. A proper court fees has been paid and affixed on the plaint.
11. In view thereof, the suit of the plaintiff is decreed in his favour and against the defendant in the sum of Rs. 46,14,878/ (inclusive of interest on the principle amount) which shall be paid by the defendant to the plaintiff. The plaintiff is also entitled to further interest @ 10% p.a. on the said amount from the date of filing of the present suit till its actual realization. Cost of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed byANNOUNCED IN OPEN COURT SANJAY SANJAY SHARMA Location: Delhi ON 22nd Day of December 2018 SHARMA Date: 2018.12.22 15:15:53 +0530 (SANJAY SHARMAI) Addl. District Judge02 (East) Karkardooma Courts, Delhi. CS No. 860/17 Page 6 of 6