Delhi District Court
Anju Gupta vs Shubham Dubey on 26 May, 2023
1
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
SUIT No.:CS DJ 719/2019
CNR No.:DLST01-008043-2019
Anju Gupta
W/o Sh. Sanjay Gupta
R/o 2, Cavalary Lane, Mall Road,
Delhi University, Malka Ganj,
North Delhi-110007 ....Plaintiff.
Versus
Shubham Dubey
S/o Sh. Harshu Charan Dubey,
R/o 4/18, Third Floor, East Patel Nagar
New Delhi-110008
Also at:
House No.1408, First Floor,
Sector 10A, Gurgaon, Haryana ....Defendant.
Date of institution of the suit : 03.12.2019
Arguments heard : 12.05.2023
Date of pronouncement of judgment : 26.05.2023
EX-PARTE JUDGMENT
SUIT FOR RECOVERY, PERMANENT INJUNCTION AND
MANDATORY INJUNCTION
1.Initially, plaintiff has filed the present suit for Specific Performance, Permanent and Mandatory Injunction against the defendant. During the course of the proceedings, an application under Order VI Rule 17 CPC for amendment of plaint was filed on behalf of plaintiff, which was allowed and amended plaint was taken on record.
CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 1 of 11 22. The brief facts of the case as stated in the plaint are that the plaintiff has filed the present suit for recovery of Rs.1,41,90,000/- alongwith interest against the defendant. It is averred in the plaint that husband of the plaintiff has been engaged in the construction business in Delhi for last several years and has earned good reputation on account of ethical business practice. The plaintiff and her husband were interested and looking to purchase a residential property in South Delhi in the name of plaintiff. Sh. Vishnu Bhagat, a friend of husband of plaintiff introduced plaintiff and her husband to one Sh. Amresh Mishra. Sh. Amresh Mishra introduced defendant to the plaintiff and stated that he is running a reputed and well known name business in South Delhi area. Sh. Amresh Mishra approached to the plaintiff and her husband in the first week of August 2019 and showed them 3 to 4 properties including property no. Y-16, Third Floor, Green Park, New Delhi. Sh. Amresh Mishra represented to the plaintiff and her husband that the said property is free from all encumbrances and the defendant has a legal title and possession of the said property.
3. The plaintiff and defendant including said Sh. Amresh Mishra had a meeting in Jay Pee Siddharth Hotel, Rajender Bhawan, Patel Nagar, Delhi. The husband of the plaintiff handed over a sum of Rs. 1,50,000/- to the defendant on the guarantee of Sh. Amresh Mishra on 19.08.2019. The said money was taken by the defendant and Sh. Amresh Mishra on the pretext of repair and white wash work in the said third floor and on their assurance, the plaintiff and her husband agreed to go by the transaction and dealing on the representation and assurances made by the defendant and Sh. Amresh Mishra. Sh. Amresh Mishra verifies the title CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 2 of 11 3 document of the defendant and told that the defendant has clear title in his favour. Thereafter, plaintiff and her husband again met the defendant in the office of Sh.Amresh Mishra. They again assured that the said property is free from all kinds of encumbrances and also handed over the title chain of documents of the said property.
4. The defendant made a request to straight away execute the sale deed as he is in dire need of funds due to some financial exigencies for which he wants to sell the suit property at the earliest. Thereafter, on 19.08.2019, an Agreement to Sell was executed between the defendant and the plaintiff in respect of the aforesaid property i.e. the entire third floor with roof or terrace rights, consisted of three bed rooms with attached bathrooms or toilets, one drawing room with attached bath room, one kitchen, one servant quarter on stair case with common toilet and bath, alongwith common terrace or roof thereupon and above in property no. Y-16 constructed on a land measuring 200 sq.yards, situated at Green Park, New Delhi with all rights and privileges, interest, easements including amenities like electricity and water connection, fixtures and fittings alongwith 20% undivided and indivisible freehold ownership rights or share in the land underneath the building, together with the right to use or availed common entrance, passages, stair case for a total sale consideration of Rs.1,35,00,000/-. It was agreed that the entire sale consideration would be paid to the vendor on the date of registration of sale deed through RTGS. The draft agreement was prepared as stated above and duly signed by the plaintiff, defendant and was witnessed by Sh. Amresh Mishra and Vishnu Bhagat.
CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 3 of 11 45. It was agreed that on 22.08.2019 the sale deed would be registered. The plaintiff alongwith her husband and defendant alongwith Sh. Amresh Mishra will meet at Sub Registrar's office at Mehrauli to execute the sale deed in favour of the plaintiff upon payment of agreed sale consideration. The plaintiff has purchased the stamp paper of Rs.5,40,000/- on 22.08.2019 itself to complete the sale /purchase transaction. But the defendant and Sh. Amresh Mishra represented that due to some exigencies on the part of defendant, the defendant would not be able to execute a sale deed on 22.08.2019 and after discussion it was finally agreed to carry out the registration of sale deed on 03.09.2019 at Sub Registrar Office Mehrauli. The plaintiff through her husband got prepared the sale deed on the requisite stamp paper and reached the Sub-Registrar Office, Mehrauli. An appointment was taken for registration of sale deed and the time of registration was allotted at 1:08 pm. The defendant came with Sh. Amresh Mishra and one Sh. Vikramjeet Sheriya which was told to have brought to stand as the witness to the sale deed. The defendant requested to transfer the sale consideration in his bank account with Union Bank of India, bearing Account No.307402010560609, Kamla Nagar Branch before the sale deed would be executed at Sub Registrar Office. The plaintiff on said request and assurance by Sh. Amresh Mishra transferred the money in account of defendant after deducting the required TDS of 1%. The balance amount of Rs.1,33,65,000/- was transferred from the account of the plaintiff. As soon as the money was transferred, the defendant and his friend who came to witness the sale deed told the plaintiff and her husband that they have to attend a call and will be back in 5 minutes to execute the sale deed and also handed over the copy of PAN Card and Aadhar Card so CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 4 of 11 5 that other formality would be completed as required in accordance with law. After waiting for some time, husband of the plaintiff tried calling the defendant several times but his phone was switched off and he was nowhere located. Even Sh. Amresh Mishra also tried to call defendant but told the same to the plaintiff that his cell phone is switched off. Sh. Amresh Mishra assured that there must be some genuine reason behind getting his phone switched off and he further assured the plaintiff to wait for few days. On said assurance, plaintiff waited for few days and thereafter, Sh. Amresh Mishra informed that he is out of India. On 17.09.2019, the said Sh.
Amresh Mishra sent an email from his ID [email protected] to Vishnu Bhagat stating that he is behind the defendant and he would either get the money back or the property with original title chain and possession.
6. Plaintiff's husband contacted the bank of the defendant where the money was transferred and came to know that the entire sale consideration was transferred to a firm namely Omaya & Company, which is run by Sh. Vikramjeet Sheriya having account no. 07420100000305 in J& K Bank, Janakpuri Branch. Thereafter, husband of the plaintiff called said Sh. Vikramjeet Sheriya and told him that the defendant had cheated and transferred money in his account and requested him to return the same but he refused to return the money back. Plaintiff and her husband left with no option sent a legal notice to the address given by the defendant but the notice was returned back with a report that no such person is available on the given address. Thereafter, Sh. Amresh Mishra gave another address of defendant of Gurgaon, Haryana. After waiting for a long period, the plaintiff through her husband had lodged a CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 5 of 11 6 complaint dated 20.11.2019 to P.S Prasad Nagar but till date nothing has happened.
7. The plaintiff has paid the entire sale consideration and even deposited the 1% TDS with the Income Tax department. Plaintiff was/is always ready and willing to perform her part of contract and even purchased the stamp paper for execution of the sale deed, which was duly signed by the plaintiff. It is stated that the defendant was in conspiracy with Sh. Amresh Mishra and has cheated the plaintiff and ran away from execution and registration of sale deed and handed over the original title deeds and the possession of suit property. Hence, the plaintiff has filed the present suit.
8. Summons of the suit were issued upon the defendant and the same were duly served upon the defendant through publication in the newspaper "The Statesman' dated 05.02.2022. Despite service of summons, none appeared on behalf of defendant. Therefore, defendant was proceeded ex parte on 13.03.2020.
9. The plaintiff in order to prove her case has examined her SPA/husband Sh. Sanjay Gupta as PW1. PW1 has reiterated the contents of plaint in his evidence by way of affidavit Ex.PW1/A. He has relied upon the following documents:-
1. Special Power of Attorney dated 29.11.2019 is Ex.PW1/1;
2. Agreement to Sell dated 19.08.2019 is Ex.PW1/2;
3. Computer generated copies of document of purchasing the e-stamp for 5,40,000/- are Ex.PW1/3 (Colly).CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 6 of 11 7
4. Computer generated copy of Appointment for execution of sale deed is Ex.PW1/4;
5. Computer generated copy of bank statement of plaintiff with Federal Bank is Ex.PW1/5;
6. Letter issued by the Federal Bank dated 29.11.2019 is Ex.PW1/6;
7. Computer generated counter foils regarding deposit of TDS of Rs.1,35,000/- is Ex.PW1/7;
8. Copy of the PAN Card of defendant provided to the plaintiff by the defendant exhibited as Ex.PW1/8 in evidence by way of affidavit is de-exhibited and marked as Mark A;
9. Copy of the Aadhar Card of defendant provided to the plaintiff by the defendant exhibited as Ex.PW1/9 in evidence by way of affidavit is de-exhibited and marked as Mark B.;
10.Legal Notice dated 8.11.2019 is Ex.PW1/10;
11.Speed Post Receipt is Ex.PW1/11;
12.Courier Receipt is Ex.PW1/12;
13.The envelope sent through speed post and courier received back are Ex. PW1/13 and Ex.PW1/14, respectively;
14.Copy of Police compliant dated 20.11.2019 lodged in PS Parsad Nagar is Ex.PW1/15;
PW1 also rely on certificate under Section 65-B of Indian Evidence Act, which is Ex.PW1/16.
10. Plaintiff has examined herself as PW2. PW2 has reiterated the contents of plaint in her evidence by way of affidavit Ex.PW2/A. She has relied upon the following documents:-
1. Copy of Sale Deed dated 03.09.2019 is Ex.PW2/1 (OSR);CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 7 of 11 8
PW2 has also relied upon the documents which are already exhibited i.e. Special Power of Attorney Ex.PW1/1; Agreement to Sell dated 19.08.2019 Ex.PW1/2; and documents Ex.PW1/3 to Ex.PW1/15.
11. No other witness was examined by the plaintiff and ex-parte plaintiff's evidence was closed vide order dated 27.04.2023.
12. This court has heard the arguments and perused the record carefully.
13. In order to support oral testimony, PW-1 and PW- 2/plaintiff has also proved on record the documents i.e. Special Power of Attorney dated 29.11.2019(Ex.PW1/1); Agreement to Sell dated 19.08.2019(Ex.PW1/2); Computer generated copies of document of purchasing the e-stamp for 5,40,000/- (Ex.PW1/3 (Colly); Computer generated copy of Appointment for execution of sale deed (Ex.PW1/4); Computer generated copy of bank statement of plaintiff with Federal Bank (Ex.PW1/5); Letter issued by the Federal Bank dated 29.11.2019(Ex.PW1/6); Computer generated counter foils regarding deposit of TDS of Rs.1,35,000/-(Ex.PW1/7); Copy of the PAN Card of defendant provided to the plaintiff by the defendant exhibited (Ex.PW1/8 de-exhibited and marked as Mark A); Copy of the Aadhar Card of defendant provided to the plaintiff by the defendant exhibited (Ex.PW1/9 de-exhibited and marked as Mark B); Legal Notice dated 8.11.2019( Ex.PW1/10); Speed Post Receipt (Ex.PW1/11); Courier Receipt (Ex.PW1/12); The envelope sent through speed post and CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 8 of 11 9 courier received back (Ex.PW1/13 and Ex.PW1/14, respectively); Copy of Police compliant dated 20.11.2019 lodged in PS Parsad Nagar (Ex.PW1/15); certificate under Section 65-B of Indian Evidence Act (Ex.PW1/16); Copy of Sale Deed dated 03.09.2019 (Ex.PW2/1 OSR).
14. Perusal of the record shows that the plaintiff has filed the present suit for recovery of Rs.1,41,90,000/-. In support of her claim in respect of payment of Rs.1,35,00,000/- towards sale consideration through RTGS, plaintiff has placed on record her statement of account for the period 01.09.2019 to 23.09.2019, Ex.PW1/5, which shows payment of Rs.1,33,65,000/- through RTGS on 03.09.2019 in the bank account of defendant bearing Account No.307402010560609 with Union Bank of India, Kamla Nagar Branch. Plaintiff has also proved on record letter dated 29.11.2019 from Federal Bank Ltd., Ex.PW1/6 regarding the payment of aforesaid amount through RTGS.
15. Perusal of the record further shows that plaintiff has placed on record computer generated counter foils, Ex.PW1/7 in respect of deposit of TDS amount of Rs.1,35,000/- to the Income Tax department. Plaintiff has also placed on record computer generated copy of documents towards purchase of e-stamp paper of Rs.5,40,000/-, which is Ex.PW1/3. In support of aforesaid computer generated copies, the plaintiff has also placed on record certificate under Section 65-B of Indian Evidence Act, which is Ex.PW1/16.
16. From the deposition of PW1 and PW2 and the documents CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 9 of 11 10 relied upon by the PW1 as well as PW2/plaintiff, the case of the plaintiff in respect of aforesaid claims i.e. payment of Rs.1,33,65,000/- towards sale consideration in the account of the defendant through RTGS; her claim towards deposit of TDS amount of Rs.1,35,000/- to the Income Tax department and purchase of e-stamp paper of Rs.5,40,000/- have been duly proved.
17. As far as the claim of the plaintiff in respect of payment of Rs.1,50,000/- to the defendant towards white wash and repair of the suit property, as stated in the plaint is concerned, plaintiff has failed to prove her aforesaid claim as she has not placed on record any documents i.e. receipt or acknowledgement, which shows the payment of Rs.1,50,000/- to the defendant.
18. Initially, plaintiff has filed suit for Specific Performance, Permanent and Mandatory Injunction, now plaintiff is seeking the relief of recovery of Rs. 1,41,90,000/- alongwith relief of permanent and mandatory injunction. As far as the prayer (b) and
(c) of the plaint are concerned, these prayers are not maintainable in view of the fact that plaintiff has claimed recovery of consideration amount paid to defendant instead of specific performance of agreement to sell dated 19.08.2019. Therefore, prayer (b) and (c) of the plaint are hereby declined.
19. The testimony of plaintiff / PW1 remained unrebutted, unassailed and uncontroverted. The case of the plaintiff is duly proved. There is nothing on record to disbelieve the plaintiff. Therefore, the suit has been filed within limitation and the court has jurisdiction to entertain the instant suit.
CS DJ 719/2019 Anju Gupta vs Shubham Dubey Page 10 of 11 1120. In view of the above discussion, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.1,40,40,000/- along with interest @ 6% per annum from the date of filing of suit till actual recovery of amount.
21. The cost of the suit is also awarded to the plaintiff.
Decree-sheet be prepared accordingly, on filing of deficient court fee, if any.
File be consigned to the Record Room.
Digitally signed by DR DR HARDEEP
Typed to the dictation directly, HARDEEP KAUR
Date:
corrected and pronounced in the KAUR 2023.05.27
13:48:22 +0530
open Court on 26.05.2023.
(Dr. Hardeep Kaur)
Additional District Judge-04
South District, Saket Courts, New Delhi.
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