Bangalore District Court
Sri.Aslam Zackria Sait vs M/S. J.M. Associates on 8 May, 2020
IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)
:Present:
Sri. N.Sunil Kumar Singh., B.Com., LL.B.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru
Dated this the 8 th day of May, 2020
O.S.No.4176/2016
PLAINTIFF : Sri.Aslam Zackria Sait
S/o Late Hashim Sait,
Aged about 58 years,
R/at Martello Boulevard,
3rd Floor, 6/4 Museum Road,
Bangalore-560001.
(By Sri.Janardhana G., Advocate)
- Vs.
DEFENDANT : M/s. J.M. Associates
No.9/10, Ground Floor,
Prestige Towers, Residency Road,
Bangalore-560025.
Rep. by its Partner
Sri.Mohammed Meraj.
( By- Sri.R.C.S., Advocate)
Date of institution of the : 09.06.2016
suit
Nature of the suit : Money suit
Date of commencement of : 03.10.2017
recording of the evidence
Date on which the : 08.05.2020
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
03 10 29
*******
O.S.No.4176/2016
2
JUDGMENT
This suit is filed by the plaintiff against defendant for recovery of money and such other reliefs.
2. The facts in brief of the plaintiff's case is that, defendant has started construction of apartment in suit 'A' schedule property and agreed to complete construction work within 18 months from the date of execution of MOU with grace period of six months. But defendant has stopped construction activities from past six months. Out of such construction on suit 'A' schedule property defendant has offered to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq. ft. which excluded the car parking area, taxes, BESCOM Power back up, home automation and BWSSB connection charges, maintenance, charges etc. The defendant has executed MOU dated 13.05.2015 agreeing to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq. ft. by receiving advance consideration of Rs.50,00,000/-. The plaintiff has agreed to pay balance consideration after selling suit 'B' and 'C' schedule properties to the prospective purchasers. But the defendant has failed to complete the construction work on suit 'A' schedule property and not delivered the possession of the same to the plaintiff. As per the terms of the contract in MOU plaintiff is entitled to terminate the contract on additional damage of O.S.No.4176/2016 3 Rs.31,00,000/- payable by the defendant along with interest at the rate of 18% p.a. from the date of agreement till cancellation. Since, defendant not completed the construction work on suit 'A' schedule property and not delivered the possession of suit 'B' and 'C' schedule properties to the plaintiff. The plaintiff is entitled to recover the advance consideration of Rs.50,00,000/- along with damages of Rs.31,00,000/- and interest at the rate of 18% p.a. from 10.11.2015 to 30.06.2016 in a some of Rs.9,30,724/- in total sum of Rs.90,30,724/-. Thus plaintiff has issued legal notice to the defendant on 26.04.2016 calling upon the defendant to pay the above said sum along with future interest at the rate of 18% p.a. Despite of receipt of said legal notice defendant neither replied nor complied. Hence without any alternative the plaintiff has filed the present suit for recover of Rs.90,30,724/- along with current and future interest at the rate of 18% p.a. and prayed to decree the suit.
3. The brief averments of written statement filed by the defendant is that, suit of the plaintiff is not maintainable and it is liable to be dismissed. It is denied that, defendant started construction of apartment on suit 'A' schedule property agreeing to complete the construction work within one year eight months with a grace period of six months. It is also denied that, O.S.No.4176/2016 4 defendant has agreed to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq.ft. after completion of construction work. It is also denied that, defendant has executed MOU in favour of plaintiff dated 13.05.2015 agreeing to sell suit 'B' and 'C' schedule properties at the rate of Rs.8,900/- per sq.ft. by receiving advance consideration of Rs.50,00,000/-. It is also denied that, if the construction work is not completed within the stipulated period plaintiff was at liberty to terminate MOU and can claim damages of Rs.31,00,000/- along with interest at the rate of 18% p.a. It is denied that, defendant has failed to complete construction work within the stipulated period. Thus plaintiff has terminated MOU and issued legal notice to the defendant on 26.04.2016 calling upon the defendant to pay a sum of Rs.90,30,724/-. There is no such contract existed between plaintiff and defendant, the question of payment of suit claim do not arise at all. Since there is no cause of action for suit, the suit of the plaintiff is liable to be dismissed.
4. Defendant further submitted that, the suit of the plaintiff is misconceived and plaintiff is not the owner of suit 'A' schedule property at any point of time and plaintiff has not invested Rs.50,00,000/- for construction on suit 'A' schedule property. No such consideration was passed on by the plaintiff to the O.S.No.4176/2016 5 defendant as claimed in the suit. The plaintiff is nothing to do with J.M. Associates and for having transferred Rs.50,00,000/- to the account of defendant no material documents are produced on behalf of the plaintiff. The suit of the plaintiff is bad for mis-joinder of party and on ill-advise of some persons the present suit is field which is not sustainable. For having filed frivolous suit heavy cost shall be imposed on the plaintiff. Hence plaintiff is not entitled for any reliefs as claimed in the suit against the defendant and prayed to dismiss the suit with cost.
5. On the above pleadings following issues have been framed by my learned predecessor:
1. Whether the plaintiff proves that the defendant has agreed to complete the construction of apartment in 'A' to 'C' schedule property, received Rs.50 lakh as advance and entered into MOU, dated 13.05.2015?
2. Whether the plaintiff proves that, defendant has failed to complete the project within the stipulated period?
3. Whether the plaintiff proves that, the defendant has failed to repay the advance amount of Rs.50 lakh?
4. Whether the plaintiff is entitled to recover suit claim of Rs.90,30,724/-
with interest from the defendant?
5. What order/ decree?
O.S.No.4176/2016 6
6. In order to prove the case of the plaintiff, power of attorney hold of the plaintiff got examined himself as P.W.1 by filing his affidavit evidence and got marked documents Ex.P.1 to P.5. The Defendant got examined himself as DW.1 by his filling his affidavit evidence and no documents are marked. While cross- examining DW.1 two photographs are confronted by learned counsel for plaintiff and got marked as Ex.P.6 and 7.
7. Heard arguments of both the sides.
8. My answer to the above issues are as follows:
Issue No.1 to 3 : In the Affirmative Issue No.4 : Partly Affirmative Issue No.5 : As per final orders for the following:
REASONS
9. ISSUES NO.1 TO 4: Since these four issues are interconnected to each other, they have been taken together for my discussion in order to avoid repetition of facts and findings to be given their under.
10. It is the case of the plaintiff that, defendant has started construction of apartment in suit 'A' schedule property and agreed to complete construction work within 18 months from the date of execution of MOU with grace period of six months. But defendant has stopped O.S.No.4176/2016 7 construction activities from past six months. Out of such construction on suit 'A' schedule property defendant has offered to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq. ft. which excluded the car parking area, taxes, BESCOM Power back up, home automation and BWSSB connection charges, maintenance, charges etc. The defendant has executed MOU dated 13.05.2015 agreeing to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq. ft. by receiving advance consideration of Rs.50,00,000/-. The plaintiff has agreed to pay balance consideration after selling suit 'B' and 'C' schedule properties to the prospective purchasers. But the defendant has failed to complete the construction work on suit 'A' schedule property and not delivered the possession of the same to the plaintiff. As per the terms of the contract in MOU plaintiff is entitled to terminate the contract on additional damage of Rs.31,00,000/- payable by the defendant along with interest at the rate of 18% p.a. from the date of agreement till cancellation. Since, defendant has not completed the construction work on suit 'A' schedule property and not delivered the possession of suit 'B' and 'C' schedule properties to the plaintiff. The plaintiff is entitled to recover the advance consideration of Rs.50,00,000/- along with damages of Rs.31,00,000/- and interest at the rate of 18% p.a. from 10.11.2015 to 30.06.2016 in a some of Rs.9,30,724/- in O.S.No.4176/2016 8 total sum of Rs.90,30,724/-. Thus plaintiff has issued legal notice to the defendant on 26.04.2016 calling upon the defendant to pay the above said sum along with future interest at the rate of 18% p.a. Despite of receipt of said legal notice defendant neither replied nor complied. Hence without any alternative the plaintiff has filed the present suit for recover of Rs.90,30,724/- along with current and future interest at the rate of 18% p.a.
11. In order to prove the case of the plaintiff, power of attorney holder of plaintiff got examined himself as P.W.1 by filing her affidavit evidence reiterated the plaint averments and deposed that, he has been authorized by the plaintiff to depose on his behalf and since he know the facts of the case he is deposing on behalf of the plaintiff. In order to substantiate the same the General Power of Attorney executed by plaintiff in favour of PW.1 is marked as Ex.P.1. The recitals of Ex.P.1 clearly discloses that, plaintiff has authorized PW.1 to depose on his behalf in the present suit. PW.1 further deposed that, defendant has started construction of apartment in suit 'A' schedule property agreeing to complete the construction work within 18 months with grace period of six months. But he has stopped construction work on suit 'A' schedule property from past six months. DW.1 in the cross-examination of plaintiff's counsel has specifically admitted that, defendant have O.S.No.4176/2016 9 taken up construction work on suit 'A' schedule property and not completed the same within the stipulated time. DW.1 also admitted the present status of the construction on suit 'A' schedule property which is reflected in the photographs Ex.P.6 and 7. On going through the recitals of Ex.P.6 and 7 it is pertinent to note that, the construction is stopped and it is incomplete which is claimed to be on suit 'A' schedule property. These facts are not in dispute between the plaintiff and defendant herein.
12. PW.1 further deposed that, defendant has offered to sell and reserved marketing rights of suit 'B' and 'C' schedule properties on the plaintiff by executing MOU dated 13.05.2015 and as per the terms of said MOU defendant has agreed to sell suit 'B' and 'C' schedule properties to the plaintiff and reserved the right of marketing of the said properties on plaintiff at the rate of Rs.8,900/- per sq. ft. by receiving advance consideration of Rs.50,00,000/-. In order to substantiate the same, MOU executed by defendant is marked as Ex.P.2. Even though DW.1 has denied the execution of such MOU in favour of plaintiff as per Ex.P.2. In the cross-examination of DW.1 by plaintiff's counsel he has specifically admitted with regard to such agreement executed at the relevant point of time. The signature of defendant is marked as Ex.P.2(a). DW.1 has denied O.S.No.4176/2016 10 passing on consideration of Rs.50,00,000/- from plaintiff to the defendant. But the recitals of Ex.P.2 clearly discloses that, on the date of execution of such MOU the plaintiff has paid consideration of Rs.50,00,000/- before the witnesses who have signed to the said MOU.
13. It is the claim of PW.1 that, construction was not completed by defendant within the stipulated time. Thus the plaintiff is entitled to recover advance consideration of Rs.50,00,000/- along with damages of Rs.31,00,000/- and interest at the rate of 18% p.a. from the date of such MOU Ex.P.2. Thus plaintiff claimed that, he is entitled to recover total sum of Rs.90,30,724/- from the defendant. It is also deposed by PW.1 that, since defendant has not completed construction work within stipulated period. He has issued legal notice to the defendant on 26.04.2016 calling upon to pay the suit claim. In order to substantiate the same, copy of legal notice is marked as Ex.P.3 and for having sent the said legal notice under RPAD postal receipt is marked as Ex.P.4. For having served the said notice on the defendant the status report issued by postal authorities is marked as Ex.P.5 which discloses that, the notice Ex.P.3 sent under Ex.P.4 was served on the defendant. Despite of receipt of said legal notice Ex.P.3 admittedly defendant not replied nor complied to the said notice of the plaintiff. Even though there is a service of notice O.S.No.4176/2016 11 Ex.P.3 as per Ex.P.5 to the defendant he has not replied nor complied at the relevant point of time. Thus an adverse inference can be drawn with regard to the defence taken by the defendant in the present suit. If really defendant has not executed Ex.P.2 and not received advance consideration of Rs.50,00,000/- from plaintiff the defendant would have replied Ex.P.3 after receipt of the same as per Ex.P.5 at the relevant point of time. Hence the defence taken by defendant at this belated stage cannot be believed. Even though PW.1 is cross-examined by defence counsel at length nothing is elicited to prove that, there was no such existence of Ex.P.2 and defendant not executed the same by receiving advance consideration of Rs.50,00,000/- from the plaintiff.
14. In order rebut the evidence and documents of plaintiff, defendant got examined himself as DW.1 by filing his affidavit evidence and reiterated Written Statement averments and denied the existence of the contract between plaintiff and defendant as per Ex.P.2 and also denied the advance consideration of Rs.50,00,000/- received from the plaintiff. Further denied that, defendant has agreed to sell suit 'B' and 'C' schedule properties to the plaintiff at the rate of Rs.8,900/- per sq. ft. The defendant has not produced any such documents to prove his contention. But in the O.S.No.4176/2016 12 cross-examination of DW.1 by plaintiff's counsel he has specifically admitted that, he has under taken construction of apartment on suit 'A' schedule property and also admitted that, he has agreed to complete such construction work within 18 months. It is also admitted by DW.1 that the present status of construction on suit 'A' schedule property is as shown in Ex.P.6 and 7. It is also admitted that, MOU executed between landlord and DW.1 for putting up construction on suit 'A' schedule property is still subsisting. Even though DW.1 has denied execution of Ex.P.2 and receiving advance consideration of Rs.50,00,000/- from plaintiff. Admittedly after service of Ex.P.3 as per Ex.P.5 DW.1 not replied nor complied to the said legal notice of the plaintiff. Thereby defendant has conceded that, he has executed such agreement Ex.P.2 and received advance consideration. In the cross- examination of DW.1 by plaintiff's counsel DW.1 deposed as if he has no knowledge about the construction work by J.M. Associates and expressed innocence about the accounts maintained by the defendant and also entries made during the course of business transaction in their bank account. On going through the recitals of Ex.P.2 it is pertinent to note that, DW.1 on behalf of J.M. Associates executed the said documents Ex.P.2 in favour of the plaintiff. Thus DW.1 is the right person to answer to the said issue which is the dispute between the parties in the present suit.
O.S.No.4176/2016 13
15. As already discussed above by the evidence of PW.1 and his documents he is able to prove that, defendant has executed Ex.P.2 and failed to comply the same despite of receipt of advance consideration of Rs.50,00,000/-. If DW.1 has not executed Ex.P.2 and not received advance consideration as claimed by PW.1, DW.1 would have replied to Ex.P.3 after receipt of the same as per Ex.P.5 at the relevant point of time. Since DW.1 not answered to the legal notice Ex.P.3 despite of receipt of the same an adverse inference can be drawn with regard to the defence taken by defendant in the present suit. Thus plaintiff is entitled to recover the said sum of Rs.50,00,000/- along with reasonable interest from the date of transaction till realization. Even though there is recital with regard to claiming damages which cannot be granted on the principles of equity and even though recital with regard to claiming interest at the rate of 18% p.a. in Ex.P.2. The said interest claimed is exorbitant which cannot be granted. But taking into consideration the nature of transaction existed between plaintiff and defendant reasonable interest at the rate of 9% p.a. can be granted from the date of suit till realization. Thus by the evidence of PW.1 and his documents he is able to prove that he is entitled to recover a sum of Rs.50,00,000/- from defendant along with interest at the rate of 9% p.a. from the date of suit O.S.No.4176/2016 14 till realization. Accordingly, I hold Issues No.1 to 3 as Affirmative and Issues No.4 as Partly Affirmative.
16. ISSUE NO.5: For my discussion to Issue No.1 to 4 above, I proceed to pass the following:-
ORDER The suit of the plaintiff is partly decreed with cost.
The plaintiff is entitled to recover a sum of Rs.50,00,000/- from the defendant along with interest at the rate of 9% p.a. from the date of suit till realization of the said amount.
Draw decree accordingly.
(Typed to my online dictation by Stenographer, revised and signed by me and thereafter pronounced in the Open Court on this the 8 th Day of May, 2020) (N. Sunil Kumar Singh) LVI Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE
1. Witnesses examined on behalf of the plaintiffs.
P.W.1 Sri.Naresh Pal M.C.
2. Witnesses examined on behalf of the defendants.
D.W.1 Sri.Mohammed Meraj
3. Documents marked on behalf of the plaintiff.
Ex.P.1 GPA.
Ex.P.2 M.O.U. dated 13.05.2015.
Ex.P.2(a) Signature of defendant.
O.S.No.4176/2016
15
Ex.P.3 Office copy of legal notice.
Ex.P.4 Postal receipt.
Ex.P.5 Postal acknowledgment.
Ex.P.6 & 7 Photographs.
4. Documents marked on behalf of the defendant.
-NIL-
(N. Sunil Kumar Singh) LVI Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No.4176/2016 16 Date:08.05.2020 Perused the note of Registrar City Civil Court Bangalore. In the last date of hearing the present matter was set down for pronouncement of Judgment. But due to COVID-19 and closure of courts Judgment could not be pronounced.
Today the matter is set down for pronouncing of Judgment. The note of the Registry discloses that, the parties concerned and learned counsel for plaintiff and defendant not furnished telephone number or Email ID to communicate about the Judgment to be passed today in the present matter.
Since it is regular date of hearing it is just and necessary to pronounce Judgment with a direction to the Registrar of City Civil Court, Bangalore to communicate and inform about the Judgment passed today and uploading of the Judgment to judicial grid to the parties concerned, advocates representing the parties in the present matter.
The matter is taken on board and Judgment pronounced in open court.
Order pronounced in open Court (Vide separate order) ORDER The suit of the plaintiff is partly decreed with cost.
The plaintiff is entitled to recover a sum of Rs.50,00,000/-
from the defendant along with O.S.No.4176/2016 17 interest at the rate of 9% p.a. from the date of suit till realization of the said amount.
Draw decree accordingly.
LVI Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No.4176/2016 18