Delhi District Court
Smt. Manju Chauhan vs M/S Decent Colonizers Pvt. Ltd on 13 April, 2022
Suit No. 546/18 Page 1 of 12
IN THE COURT OF DR. JAGMINDER SINGH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 546/2018
CNR No. DLSW01-011416-2018
In the matter of :
1.Smt. Manju Chauhan W/o Sh. Binod Kumar Chauhan, R/o H. No. 1122A, Sadh Nagar, Part-II, Gali No. 14/5, Palam Colony, New Delhi
2. Ms. Saloni Chauhan D/o Sh. Binod Kumar Chauhan, R/o H. No. 1122A, Sadh Nagar, Part-II, Gali No. 14/5, Palam Colony, New Delhi ....Plaintiffs Versus
1. M/s Decent Colonizers Pvt. Ltd.
Through, (Managing Director/Authorized Signatory), 101-102, Shokeen Plaza, Plot No. 3, Pocket-7, Sector-12, Dwarka, New Delhi-110075
2. Sh. Avinash Singh Jawa, S/o Sh. Santokh Singh Jawa, Managing Director, M/s Decent Colonizers Pvt. Ltd.
Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 2 of 12R/o House No. 60, Abchal Nagar, Pradhan Market, Chander Vihar, Nilothi Extn., Delhi-110041
3. Smt. Raman Preet Kaur W/o Sh. Avinash Singh Jawa (Director), R/o House No. 60, Abchal Nagar, Pradhan Market, Chander Vihar, Nilothi Extn., Delhi-110041 ....Defendants Date of institution of the suit : 01.06.2018 Final Arguments Heard on : 13.04.2022 Date of Judgment : 13.04.2022 Decision : EX-PARTE DECREED SUIT FOR RECOVERY EX-PARTE JUDGMENT :
1. This is a suit for recovery.
2. The brief facts of the case as mentioned in the plaint are that defendant no. 1 is Pvt. Ltd. Company doing the business of construction and development of land into colonies/townships, etc. Defendant no. 2 is managing director and defendant no. 3 is Director of the defendant no. 1 company. Defendant no. 2 and 3 invited applications from the public for allotment of the plots in a housing project i.e. 'Omega City Project at Behror, Kot Putli, Rajasthan'. The Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.Suit No. 546/18 Page 3 of 12
defendants approached the husband of plaintiff no. 1 and father of plaintiff no. 2 where defendant no. 2 and 3 assured them in their individual capacity as well as on behalf of the defendant no. 1 company regarding the developing of housing project and allotment of the plots of different sizes. Believing upon the representations and assurances of defendant no. 2 and 3, plaintiffs invested their hard earned money in the said project. Husband of plaintiff no. 1 and father of plaintiff no. 2, Sh. Binod Kumar Chauhan booked two plots admeasuring 120 sq. yds. each in the said project in the name of plaintiff no. 1 and 2.
3. Plaintiff no. 1 paid a sum of Rs. 1,77,840/- through cheques from her account and from her joint account with her father. Father of plaintiff no. 2 further paid a sum of Rs. 50,000/- towards booking/demand amount to the defendant from his joint account with plaintiff no. 1. The defendants issued a letter of assurances for the assured return in the form of 'Buy-back arrangement' of 12% p.a. on the said investment and further assured of minimum appreciation of 24% after two years on the investment. Thereafter, plaintiffs received a letter dated 20.12.2012 and 14.03.2003 from defendants in which defendants confirmed that plaintiff no. 1 has been allotted Plot no. 618-C and plaintiff no. 2 has been allotted Plot no. 686-C measuring 120 sq. yds. each. The defendants had received a total sum of Rs. 1,77,840/- from plaintiff no. 1 and sum of Rs. 50,000/- from plaintiff Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 4 of 12no. 2.
4. After awaiting about 6-7 months, plaintiffs approached the defendants and asked about their plots but defendant no. 2 and 3 gave vague replies. Thereafter, husband of plaintiff no. 1 and father of plaintiff no. 2 smelled something foul and came to know that defendants had cheated so many other persons also and the said project was in air and even the land which was showed to the plaintiffs does not belong to the defendants or the aforesaid project. The cheated persons including plaintiffs approached the police and an FIR no. 530/14 at PS Dwarka North was registered u/s 406/420/468/471/120B IPC against defendants and defendant no. 2 was arrested. During arguments on bail application on 26.06.2015, defendant no. 2 gave undertaking to the Court that he will return the money of all the cheated persons including plaintiffs and thereafter, conditional bail was granted to him. However, defendant no. 2 had not complied the conditions of bail and thereafter, the bail was rejected and defendant no. 2 was again sent to judicial custody. Therefore, as defendants have failed to return money of the plaintiffs, therefore, present suit for recovery has been filed.
5. Summons of the suit were issued. Defendant no. 2 and 3 were served through ordinary process and defendant no. 1 was served by way of publication. Defendant no. 2 and 3 were appeared but not filed WS. Thereafter, vide order 28.11.2018, right to file WS of Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 5 of 12defendant no. 2 and 3 was closed and they were proceeded ex-parte. Vide order dated 27.02.2019, defendant no. 1 was also proceeded ex- parte and matter was listed for ex-parte PE.
6. During evidence, PW-1 Sh. Binod Kumar Chauhan tendered his affidavit Ex. PW-1/A and relied upon the following documents:
(i) Ex. PW-1/1 i.e. SPA. (ii) Mark A i.e. copy of publication of advertisement.
(iii) Ex. PW-1/2 i.e. counter copy of application form of registration of plot of plaintiff no. 1.
(iv) Ex. PW-1/3 i.e. counter copy of application form of registration of plot of plaintiff no. 2.
(v) Ex. PW-1/4 (colly) i.e. payment receipts.
(vi) Ex. PW-1/5 i.e. payment receipt.
(vii) Ex. PW-1/6 i.e. buyback arrangement letter of plaintiff no.
1.
(viii) Ex. PW-1/7 i.e. buyback arrangement letter of plaintiff no.
2.
(ix) Ex. PW-1/8 i.e. congratulations letter of plaintiff no. 1.
(x) Ex. PW-1/9 i.e. congratulations letter of plaintiff no. 2.
(xi) Ex. PW-1/10 i.e. certified copy of bail order dated 26.06.2015.
7. PW-2 Sh. Navin Sethi, appeared from ICICI Bank, who had relied upon following documents:
Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.Suit No. 546/18 Page 6 of 12
(i) Ex. PW-2/C i.e. ID Card. (ii) Ex. PW-2/1 i.e. certified copy of the statement obtained from
bank system of account no. 624201504100 of Sh. Binod Kumar, Manju Chauhan pertaining to cheque bearing no. 883825 for an amount of Rs. 49,000/- which is cleared in account of M/s Decent Colonizers on 24.12.2012.
(iii) Ex. PW-2/2 i.e. certified copy of the statement obtained from bank system of account no. 624201504100 of Sh. Binod Kumar, Manju Chauhan pertaining to cheque bearing no. 883828 for an amount of Rs. 50,000/- which is cleared in account of M/s Decent Colonizers on 16.03.2013.
(iv) Ex. PW-2/3 i.e. certified copy of the statement obtained from bank system of account no. 624201520945 pertaining to Ms. Manju Chauhan, Sh. Binod Kumar dated 05.02.2013, a cheque of Rs.
1,28,840/- and transferred in account of M/s Decent Colonizers Pvt. Ltd on 05.02.2013. The present account is closed and hence, there is no cheque no. reflecting due to the closure of account. No other witness was examined and ex-parte PE was closed vide separate statement of Ld. Counsel for plaintiff. Final arguments heard.
8. It is submitted by Ld. Counsel for plaintiffs that the defendants have cheated the plaintiffs by way of giving false assurances of allotment of plots in 'Omega City Project at Behror, Kot Putli, Rajasthan.' On the assurances given by defendant no. 2 and 3 Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 7 of 12who were the managing director and director of defendant no. 1 company, the plaintiffs had booked two plots in the said project and invested their hard earned money, but thereafter, despite receiving the amount, neither the said plots were given to the plaintiffs nor their amount was returned. The plaintiffs had proved their case by way of all the necessary evidentary documents. Ld. Counsel further submits that defendants committed such kind of cheating with so many persons who have also approached the police authority and at the complaint, an FIR no. 530/14 PS Dwarka North was registered against the defendants and during arguments on bail application of defendant no. 2, defendant no. 2 had undertaken on 26.06.2015, that he will return the money of all the cheated persons including plaintiffs. However, despite undertaking before the Court, defendant no. 2 failed to comply the undertaking and had not returned the money of the plaintiffs. Therefore, he had filed the present suit. Ld. Counsel further submitted that regarding limitation, his cause of action arose on 26.06.2015 i.e. the date of bail order of the Ld. Court of ASJ in FIR No. 530/14 PS Dwarka North wherein, the defendant no. 2 had undertaken to return the money of all the complainants/cheated persons including plaintiffs, but he failed to do so. Ld. Counsel stated that as plaintiff had proved his case, same may be decreed.
9. I have considered the submissions of Ld. Counsel and gone through the record.
Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 8 of 1210. As per avertments in the plaint, plaintiff no. 1 and 2, who are wife and daughter of Sh. Binod Kumar Chauhan respectively, booked two plots in their separate names of 120 sq. yds. each with the housing project of defendant company on the basis of representations and assurances given by defendant no. 2 and 3. During evidence, Sh. Binod Kumar Chauhan tendered his affidavit Ex. PW-1/A as Special Power of Attorney holder of plaintiff no. 1 and 2. In his affidavit, he supported and reiterated the contents of the plaint. He placed on record the document Ex. PW-1/2 i.e. application form for allotment of the plot given to the defendant company by plaintiff no. 1 dated 14.12.2012. Ex. PW-1/3 i.e. application form for allotment of the plot given to the defendant company by plaintiff no. 2. These both application forms are having seal/stamp of the defendant no. 1 company. Ex. PW-1/4 (colly) are acknowledgement to the payment given by plaintiff no. 1 to the defendant company whereby defendant company acknowledged of receiving of Rs. 49,000/- vide cheque no. 883825 dated 14.12.2012, and of receiving of Rs. 1,28,840/- vide cheque no. 978409 dated 30.01.2013, from plaintiff no. 1. Ex. PW-1/5 is acknowledgement whereby defendant company acknowledged the receiving of Rs. 50,000/- as booking amount from defendant no. 2 vide cheque no. 883828 dated 11.03.2013. Therefore, plaintiff had proved on record that the defendant company had received a total amount of Rs. 2,27,840/- from both the plaintiffs (Rs. 1,77,840/- from Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 9 of 12plaintiff no. 1 + Rs. 50,000/- from plaintiff no. 2).
11. The defendant company had also issued congratulations letters Ex. PW-1/8 and Ex. PW-1/9 respectively to defendant no. 1 and 2 regarding registration of their plots regarding registration no. 618-C and 686-C acknowledging their registration amount of Rs. 49,000/- and Rs. 50,000/- respectively. During evidence, PW-2 who appeared from ICICI Bank and he placed on record the account statement of joint account of Sh. Binod Kumar and Smt. Manju Chauhan Ex. PW- 2/1, Ex. PW-2/2 and Ex. PW-2/3. Through account statements, PW-2 had further clarified that on 24.12.2012, an amount of Rs. 49,000/- through cheque was transferred from the joint account of Sh. Binod Kumar and plaintiff no. 1 in favour of the defendant company, on 16.03.2013 an amount of Rs. 50,000/- through cheque was transferred from the joint account of Sh. Binod Kumar and plaintiff no. 1 in favour of defendant company, and on 05.02.2013, an amount of Rs. 1,28,840/- was transferred from the account of plaintiff no. 1 and Sh. Binod Kumar through cheque in the account of defendant company i.e. M/s Decent Colonizers Pvt. Ltd. Therefore, plaintiffs had clearly proved that a total amount of Rs. 2,27,840/- was transferred from their joint account with father of plaintiff no. 2 and husband of plaintiff no. 1, in the account of defendant no. 1 company.
12. As per the plaintiff, as stated in affidavit of evidence also, neither the said amount was returned by the defendants nor any of the Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 10 of 12alleged booked plot was given to the plaintiffs by the defendant company. The plaintiffs had also placed on record copy of bail order of defendant no. 2 dated 26.05.2015 in FIR no. 530/14 PS Dwarka North passed by the concerned Ld. ASJ whereby, conditional bail was granted to defendant no. 2 that he will return the money collected from complainants/cheated persons by selling his properties. As per the plaintiffs, they were also victims in that case but defendant no. 2 had never returned their hard earned money.
13. Defendants are ex-parte. They have not filed any WS. There is no any rebuttal evidence on behalf of the defendants. In the absence of any rebuttal, court finds that there is no reason to disbelieve the testimony of plaintiffs's witnesses. Therefore, plaintiffs are entitled for the recovery of Rs. 2,27,840/- from the defendants. Defendants no. 1, 2 and 3 are jointly and severally liable to repay the said amount to the plaintiffs.
14. Plaintiffs had filed this suit for recovery of Rs. 3,72,809/- by adding interest @ 12% p.a. on the principal amount till the date of the filing of the suit and he had also demanded for pendentelite interest @ 24% p.a. from the date of filing of suit till its realisation. In the application forms for the registration of the alleged plots as well as in the acknowledgement receipts or congratulations letters, there is no mention of any particular rate of interest payable to a party because of any delay or default committed by other party. However, as per the Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 11 of 12Buyback arrangement letter issued by the defendant company to the plaintiff no. 1 and 2 i.e. Ex. PW-1/6 and Ex. PW-1/7 respectively, the defendant company had assured the minimum appreciation of 24% on the amount invested and also undertaken to repay the principal amount with simple interest @ 12% p.a. clarifying that the return can be availed only after two years.
15. As far as buyback arrangement with 24% appreciation is concerned, court finds that there is no question of buyback until the subject/plot had been sold. Admittedly, in this matter, the booked plots had never been actually allotted to the plaintiffs, therefore, they cannot be bought back. However, the plaintiffs are asking for return of their invested amount after more than 2 years of the investment, therefore, they are entitled for the interest @ 12% p.a. as per the undertaking given by the defendant company through Ex. PW-1/6 and Ex. PW-1/7.
16. Relief: In view of the aforesaid discussion, plaintiffs are entitled for the recovery of total amount of Rs. 2,27,840/- from defendant no. 1, 2 and 3 jointly and severally, along with interest @ 12% p.a. from the date of filing of the suit till its realisation. Suit of the plaintiffs is decreed accordingly. Cost of suit is awarded in favour of the plaintiffs.
17. Suit is decreed accordingly.
18. Decree sheet be prepared.
19. File be consigned to Record Room after due compliance. Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.
Suit No. 546/18 Page 12 of 12 Digitally signed by JAGMINDER JAGMINDER SINGH
SINGH Date: 2022.04.13
16:42:52 +0530
Announced in the open court (Dr. Jagminder Singh)
On 13.04.2022 ADJ-03/South West
Dwarka / New Delhi
Note: This judgment is having twelve (12) pages and each page is bearing my signatures.
Digitally signed by JAGMINDER JAGMINDER SINGH
SINGH Date: 2022.04.13
16:42:57 +0530
(Dr. Jagminder Singh)
ADJ-03/South West
Dwarka / New Delhi
Smt. Manju Chauhan and Anr. Vs. M/s Decent Colonizers Pvt. Ltd. And Ors.