Delhi District Court
Additional District Judge - East ... vs M/S Shreya Developwell Pvt. Ltd. ... on 31 March, 2015
IN THE COURT OF LAXMI KANT GAUR
ADDITIONAL DISTRICT JUDGE - EAST DISTRICT
KARKARDOOMA COURTS, DELHI
C.S. No. 290/11
Sh. Govind Ram S/o Late Shri Tikam Dass
R/oD2/19, Nand Nagri,
Delhi110 093 ..................... Plaintiff
Vs.
M/s Shreya Developwell Pvt. Ltd. Through Its Director
124, AGCR Enclavae,
Opp. Karkardooma Court,
Shahdara, Delhi. . ................... Defendant
Date of filing of Suit : 03.09.2011
Date of Arguments : 19.02.2015
Date of Order : 31.03.2015
EXPARTE JUDGMENT
1. By this Judgment I propose to decide the suit filed by the Plaintiff
for the recovery of Rs. 6,75,000/- with interest at the rate of Rs.18% per
annum.
Facts
2. Defendant Company is a builder. Plaintiff had booked a plot in the CS 290/11 page 1/14 project of the defendant measuring 200 Square Yards at the rate of Rs. 6,525/- per square yard at Raj Nagar Extension, Ghaziabad UP. For the booking he had paid Rs.2,75,000/- by a DD drawn on Syndicate Bank as earnest money and also one installment of Rs.1,25,000/- by a cheque dated 29/09/2006 drawn on the same Bank.
3. At the time of booking it was assured that the defendant would be alloted the plot within one year of the booking. But despite the expiry of five years no allotment had been made. On his visits the plaintiff came to know that the defendant had been not allotted any plots in Raj Nagar Extension. He also discovered to avoid making payment the defendant had been shifting its address frequently.
4. According to the Plaintiff he is entitled to Rs. 5,50,00/- i.e double the amount of earnest money plus the payment of first installment made of Rs.1,25,000/- . That is, in all he is entitled to receive Rs.6,75,000/- with interest at the rate of 18% per annum.
CS 290/11 page 2/14
5. On behalf of the defendant appearance was made and written statement too was filed. A rejoinder was also filed to the same by the Plaintiff and issues framed but subsequent defendant stopped appearing and, therefore, was proceeded ex-parte. Consequently neither the witness examined on behalf of the Plaintiff had been cross-examined nor any evidence was led from the side of the defendant.
Issues
6. The issues framed before the defendant had been proceeded ex- parte read as under:
1. Whether the suit of the plaintiff is barred by limitation? OPP
2. Whether the defendant is well within his right to have forfeited the amount deposited by the plaintiff ? OPD
3. Whether the plaintiff is entitled to recovery of Rs. 6,75,000/- from the defendant ? OPP
4. Whether the plaintiff is entitled to any interest. If so, at what rate and for what period ? OPP
5. Relief.CS 290/11 page 3/14
Evidence
7. The Plaintiff had filed his own affidavit Ex PW1/A in evidence drawn on the lines of the Plaint. Plaintiff in the affidavit has referred to one Receipt dated 12/06/06 Ex PW1/1 issued on behalf of the defendant for the receipt of Rs.2,75,000/- as registration charges by draft for booking a plot of 200 Sq Yards in the proposed Township at Ghaziabad and also another receipt of Rs. 1,25,000/- dated 05/10/2006 Ex PW1/2 for payment made by a cheque besides legal notice being sent Ex PW1/3 for the recovery of earnest money and the statement account of the Bank Ex PW1/7 showing that Rs.1,25,000/- having been transfered to " Shreya". This testimony of the Plaintiff as PW1 had gone unrebutted. Findings on issues Whether the suit of the Plaintiff is barred by limitation ?
8. This is an issue raised primarily for the reason that the payment receipts Ex PW1/A and PW1/2 were issued in the year 2006 and this suit had been filed on 02/09/2011. According to the ld counsel for plaintiff it is not a simple money suit and not covered by Article 19 of the Limitation Act but Article 113 of the Limitation Act. That is to say CS 290/11 page 4/14 limitation in this case would fall in the residuary article 113 which would mean that the limitation would start from the date the right to sue accrues.
9. If I go by what has been stated in para 4 and 5 of the plaint and para 4 and 5 of the affidavit and also the legal notice sent, it would mean despite five years having passed no allotment had been made to plaintiff and on a visit to defendant plaintiff came to know that the defendant had not been alloted plots in Raj Nagar Extension. It is thereafter plaintiff demanded the return of earnest money and the first installment made.
10. Though the plaintiff has tried to make it as if there was earnest money paid by the plaintiff and then some installment was paid but that does not seem be the case when I look at the two receipts filed on record, they simply state payment received "on account of provisional registration in proposed township at Ghaziabad". It only means that this was payment made was to be adjusted towards the payment of sale consideration as and when the proposed township would come up. In the written statement filed by the defendant, it has been stated that at the time CS 290/11 page 5/14 of the allotment it was agreed that the plaintiff would pay the installments as and when demanded by the company. Thereafter, whenever defendant demanded the balance amount of installments, Plaintiff refused to pay the same and was adamant that he would make the payment only at the time plot is handed over to him. After numerous reminders when the payment had not been made the Company forfeited the earnest money of Rs. 2,75,000/- .
11. There is nothing to show on record that the defendant had any time stated that it had canceled the allotment. There is an averment that defendant had made demands and asked the Plaintiff to make the payment of the remaining amount. There is nothing placed on record to show that any such demand had been made.
12. I am of the view that it is a case of continuous breach as defined in section 22 of the Limitation Act, where the cause of action to file the suit would remain till the breach continues. In all most similar circumstances, it was held by NATIONAL CONSUMER DISPUTES REDRESSAL CS 290/11 page 6/14 COMMISSION in 11. Juliet Vs. Quadros Vs. M/s. Mrs. Malthi Kumar, IV (2005) CPJ 51 (NC) while answering a question on limitation as follows:
"7. Dealing with the first point of Limitation first, this point has been very comprehensively dealt with in the order passed by the District Forum. It is not in dispute that till date neither possession has been given nor the money has been refunded as demanded by the complainants from the petitioner, hence as rightly held by the District Forum, the cause of action continues and we are in full agreement with this. Since this was a continuous cause of action in the above facts and circumstances, it cannot be said to be barred by limitation."
13. Since in the present case as well neither the money had been refunded nor the plot given it can be said that the cause of action to file the present suit was continuous and therefore it cannot be said be barred by limitation on the day it was filed in Court.
Whether the Plaintiff is entitled to the recovery of Rs. 6,75,000/-
14. It has been submitted that at the time of booking Plaintiff had paid Rs.2,75,000/- by a DD drawn in Syndicate Bank on 12/06/06 vide receipt Ex PW1/1 as earnest money and also one installment of Rs.1,25,000/- by a cheque dated 29/09/2006 drawn on the same Bank.
CS 290/11 page 7/14
15. First of all it may be cleared that as far the said receipt Ex PW1/1 is concerned it does not show any where that the money paid was as earnest money but that really does not make any difference. Even if it is considered that it was an amount paid towards sale consideration then also in the event of the allotment being made the Plaintiff would be entitled to the refund of the said amount. The defendant has also not disputed the receipt of the said amount but states it was forfeited when the plaintiff did not make the payment of the balance amount. On behalf of the defendant no agreement was produced or referred to where such a clause may have existed. As has been stated defendant had been proceeded ex-parte and no evidence has been led from its side. Even if there had been any such claim that also would not have made no difference because at best it would have constituted a penalty clause as envisaged in section 74 of the Contract Act 1and to take benefit of the same still the defendant would have been required to prove that as a result its breach some legal injury had resulted to the defendant. One may make 1 Section 74 of the contract act : Compensation for breach of contract where penalty stipulated for-When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is prove to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
CS 290/11 page 8/14 reference to the judgment of the Hon'ble Supreme Court Fateh Chand vs Balkishan Das 1963 AIR 1405 "The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of "actual loss or damages"; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach."
16. Thus there is absolute no reason to forfeit the said amount either in terms of fact or law. On the other hand it does show an admission on the part of the defendant that indeed such an amount had been received from the Plaintiff.
17. At this point of time the one may also refer to the prayer of the Plaintiff, where he has claimed Rs. 5,50,000/- i.e " double" the amount of CS 290/11 page 9/14 Rs. 2,75,000/- given by the Plaintiff to the defendant which the Plaintiff claims to be the 'earnest money'. For the similar reasons as stated above that the plaintiff has not proved any such agreement which may show that in case of failure to make the allotment the defendant was to make the payment of double the amount of the so called earnest money and also the plaintiff has not been able to prove if he had suffered any legal injury to claim " double" the amount of Rs. 2,75,000/- .
18. Since neither the said money has been returned nor the allotment had been to the Plaintiff by the defendant, plaintiff is entitled to receive the said amount of Rs. 2,75,000/- from the defendant.
19. There is one more payment of Rs.1,25,000/- having been made by the Plaintiff to the defendant. Defendant had denied having made such a payment. The plaintiff had proved on record a receipt issued by the defendant for the said amount Ex PW1/2.
CS 290/11 page 10/14
20. Either there should have been an admission on the part of the defendant to have received the said money or it should have been proved by the Plaintiff. On the record there is a statement of account on record seemingly in the name of the Plaintiff. The same had been exhibited during the course of the testimony of the Plaintiff as Ex PW1/7. The same is not certified either under section 2(8)(a) or under section 2A2 of 2 2A Bankers Book Evidence Act:
[2A. Conditions in the printout.A printout of entry or a copy of printout referred to in subsection (8) of section 2 shall be accompanied by the following, namely:
(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and
(b) a certificate by a person incharge of computer system containing a brief description of the computer system and the particulars of (A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) the safeguards adopted to prevent and detect unauthorised change of data; (C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electromagnetic data storage devices; (E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices; (G) the arrangements for the storage and custody of such storage devices; (H) the safeguards to prevent and detect any tampering with the system; and (I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person incharge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.] CS 290/11 page 11/14 the Bankers' Book evidence to be able to read as such in evidence as permitted under section 4 3of the said Act. The said statement of account therefore cannot be read in evidence.
21. Thus the Plaintiff though had been able to show that a cheque bearing no. 045970 of Rs.1,25,000/- had been issued in favour of the defendant for which the receipt Ex PW1/2 had been issued but has failed to prove that his money was actually transfered in the account of the defendant. In other words it has failed to prove of having paid Rs. 1,25,000/- to the Plaintiff.
22. In the above circumstances in my opinion the plaintiff is only entitled to recover Rs.2,75,000/- form the defendant. 3 Section 4 of the Bankers' Book Evidence Act Mode of proof of entries in bankers' books. Subject to the provisions of this Act, a certified copy of any entry in a bankers' books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. CS 290/11 page 12/14 Whether the Plaintiff is entitled to any interest? if so, at rate and for what period? OPP
23. Plaintiff has claimed the interest at the simple rate of 18 % per annum. I am of the view the interest being claimed is comparable to the Bank rates considering that the recoverable amount could be treated like an unsecured loan in the hands of the defendant company and that the interest being claimed is simple interest unlike a Bank charging compound interest under similar circumstances. I according hold that the Plaintiff is entitled to an interest on the said amount at the rate of 18% per annum.
24. The plaintiff has claimed pendent lite and future interest. I am of the view he justified in claiming so. I am according allowing the above interest of 18% per annum form the date of the filing of the suit till realization.
conclusions:
25. In view of the foregoing discussion and the facts and circumstances CS 290/11 page 13/14 of the case I am decreeing this suit with proportionate costs in favour of the Plaintiff and against the defendant for a sum of Rs.2,75,000/- ( Rs Two Lacs and Seventy Five thousand only) with interest at the rate of Rs18% per annum from the date of the filing of the suit till realization.
26. Decree sheet be prepared accordingly.
27. File be consigned to record room Announced in the open Court today i.e. 31.3.2015 (L.K. GAUR) ADJ02/East/ KKD Courts/Delhi 31.03.2015 CS 290/11 page 14/14