Delhi District Court
Vijender Singh Virdi vs Pramod Kumar Gupta on 16 January, 2025
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.702/2019
(Vijender Singh Virdi vs. Pramod Kumar Gupta & Others)
CNR No. DLSE01-006476-2019
Mr.Vijender Singh Virdi
R/o J-32, Ground Floor,
South Extension-I, New Delhi.
.............Plaintiff
Through:-Mr. Pratap Singh Ahluwalia
and Ms.Jessica Virdi, advocates.
Versus
1. Mr. Pramod Kumar Gupta
..........Defendant no.1(deceased)
2. Mrs.Jai Shree Gupta
W/o Late Mr. Pramod Kumar Gupta
..........Defendant no.2
3. Mr.Himanshu Gupta
S/o Late Mr. Pramod Kumar Gupta
..........Defendant no.3
4. Mr. Kavish Gupta
S/o Late Mr. Pramod Kumar Gupta
..........Defendant no.4
All R/o
86, Anand Lok, New Delhi-110017.
.........Defendants
Through:- Mr. Geetu Paul and
Mr. Ajay Paul, advocates
Date of filing : 20.08.2019
Final arguments heard on : 10.12.2024, 17.12.2024
Date of Judgment : 16.01.2025
JUDGMENT:
Raj Kumar Tripathi 1.1 Plaintiff Mr. Vijender Singh Virdi has filed the Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:00 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 1 of 13 instant suit for recovery of Rs.16,00,000/- (Rupees sixteen lakhs only) plus GST along with interest @ 18% per annum and cost of the suit.
Factual Matrix of Case 2.1 Plaintiff is running his business in the name and style of La Maison duly registered with GST as Real Estate Broker. 2.2 Defendants no.1 and 2 are the joint owners of entire second floor with half (50%) terrace along with one servant quarter on the terrace, in/of the property bearing no.7/18-A, erected on a plot of land measuring 246.295 Square Yards, situated at Sarvapriya Vihar, New Delhi along with 25% undivided, indivisible and impartible ownership rights in the land underneath the property.
2.3 Defendants no.1 and 3 are the joint owners of entire ground floor of abovesaid property with two servant quarters on the terrace along with proportionate undivided, (i.e. indivisible 25%) and impartible ownership rights in the land underneath. 2.4 Plaintiff claims to have brokered/facilitated the sale of entire second floor, third floor and terrace/roof above/upon the third floor of property bearing no.7/18-A, Sarvapriya Vihar, New Delhi-110016.
2.5 As per plaintiff, the Construction Agreement (Memorandum of Understanding) was executed between owners of the other existing floors.
2.6 It is submitted that defendant no.1 entered into Agreement to Sell dated 14.11.2018 with M/s Supertech Raj Kumar Fabrications LLP through its designated partner Sh. R.P. Saluja Tripathi duly authorized vide Resolution passed by the other designated Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:09 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 2 of 13 partners on 12.11.2018 for a total sale consideration of Rs.3,60,00,000/- only. M/s Supertech Fabricationd LLP had issued two cheques to defendants no.1 and 2 amounting to Rs.20,00,000/- each (Annexure-B).
2.7 Subsequently, defendant no.1 entered into second Agreement to Sell dated 14.11.2018 with M/s Supertech Fabrications LLP on 12.11.2018 for a total sale consideration of Rs.50,00,000/- and two cheques were issued by M/s Supertech Fabrications LLP in favour of defendants no.1 and 3 amounting to Rs.5,00,000/- each (Annexure-C). Thus, the Agreement to Sell amounting to Rs.4,10,00,000/- (Rupees Four Crore Ten Lac Only) i.e. 1) Rs.3,60,00,000/- for the sale of entire second floor with half (50%) terrace/roof above/upon the entire second floor and 2) Rs.50,00,000/- for the sale of half (50%) terrace/roof above/upon the entire second floor was entered into between defendants and M/s Supertech Fabrications LLP.
2.8 As per plaintiff, one Sale Deed was executed by defendants no.1 and 2 jointly for the sale of entire second floor with entire terrace/roof of property no.7/18-A, Sarvapriya Vihar, New Delhi. Another Sale Deed was also executed by defendants no.1 and 3 in respect of 1st Floor of the said property. The sale value of both the Sale Deeds duly registered was for a total amount of Rs.2,00,00,000/-.
2.9 Plaintiff avers that it was agreed by defendants no.1 to 3 that they will pay a commission/brokerage of 2% to him amounting to Rs.16,00,000/-plus GST i.e. Rs.8,00,000/- for the Raj Kumar total sale consideration of the entire 2nd floor along with entire Tripathi terrace mentioned in the Agreement to Sell and Rs.8,00,000/- for Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:17 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 3 of 13 the execution of the Construction Agreement (Memorandum of Understanding).
2.10 Plaintiff approached the defendant no.1 on numerous occasions to settle the payment after the execution of the Sale Deed and Memorandum of Understanding but in vain. He sent intimation-cum-reminder letter dated 08.04.2016 by Speed Post claiming his commission. The same was duly received by the defendants and thereafter they replied to the intimation-cum- reminder letter claiming that they never dealt with the plaintiff with respect to the sale of the second floor or terrace or for Construction Agreement.
2.11 On the aforesaid averments, plaintiff filed the present suit for seeking recovery of an amount of Rs.16,00,000/- plus GST along with interest @ 18% per annum and cost of the suit against defendants.
Defence of defendants 3.1 Defendants have contested the suit by filing written statement, wherein they contended that plaintiff has filed the present suit only with the ulterior motive to harass them. Plaintiff has not approached the court with clean hands and has suppressed the material facts from the court. The documents relied upon by plaintiff along with the plaint contain a contradictory version to that what he has stated in the plaint. The pleadings in the plaint are false, frivolous and vague. Hence, the present suit needs to be dismissed on the ground of vagueness and falsehood of the plaint. 3.2 Defendants submitted that the demand of commission raised by plaintiff against them is a bogus demand as Raj Kumar he never acted as an agent/dealer on their behalf at any point of Tripathi Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:24 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 4 of 13 time. No such agreement of payment of commission or any other agreement, either oral or written, as alleged by him in the plaint was ever made between them. Plaintiff had no privity of contract with defendants for any such commission or for any other reason whatsoever.
3.3 Defendants further submitted that plaintiff had brought in one Mr. Kailash Aggarwal as nominee of M/s Supertech Fabrications LLP. The Sale Deed dated 24.12.2018 clearly shows that Mr. Kailash Aggarwal has been made party to said Sale Deed in capacity of being nominee of M/s Supertech Fabrications LLP. Plaintiff is a witness to the Sale Deed dated 24.12.2018 only. This fact clearly indicates that plaintiff was acting only on behalf of M/s Supertech Fabrications LLP or for Mr. Kailash Aggarwal and not on behalf of the defendants at any point of time. Secondly, there is no agreement of commission between plaintiff and defendants. Hence, plaintiff's claim for commission is without any basis.
3.4 It is stated that M/s Supertech Fabrications LLP was not able to fulfill its obligations and therefore, brought the nominee in shape of Mr. Kailash Aggarwal. The plaintiff is now trying to force the defendants to pay the commission which was never agreed upon between the plaintiff and defendants and that too when plaintiff had never acted on their behalf as their Commission Agent/dealer/broker. Denying all the other averments and allegations made in the plaint, defendants prayed to dismiss the suit with heavy cost.
Raj Kumar Rejoinder Tripathi 4.1 Plaintiff filed rejoinder to the written statement Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:32 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 5 of 13 reiterating the averments made in the plaint while refuting the defence setup by defendants.
5.1 In the course of proceedings in the matter, defendant no.1 Mr. Pramod Gupta expired on 09.01.2020. In view of the same, plaintiff filed an application under Order XXII Rule 4 CPC for seeking impleadment of legal heirs of deceased defendant no.1. The said application of plaintiff was allowed on 29.08.2022 and defendant no.2 i.e. Mrs. Jayshree Gupta (wife), defendant no.3 Mr. Himanshu Gupta (son) and defendant no.4 Mr. Kavish Gupta (son) were directed to be impleaded as legal heirs of defendant no.1.
Issues 6.1 On the basis of pleadings of the parties, the following issues were framed on 29.08.2022:-
(i) Whether the plaintiff is entitled to suit amount from the defendants?OPP.
(ii) Whether the plaintiff is entitled to interest on the suit amount and if yes, for what period and at what rate?OPP.
(iii) Relief.
Evidence of parties 7.1 In support of his case, plaintiff examined himself as PW1. He filed his evidence by way of affidavit, Ex.PW1/A, wherein he has reiterated and reaffirmed the same facts as stated in the plaint.
7.2 Before coming to the testimony of plaintiff, the Raj Kumar Tripathi documents relied upon by him are hereby put in a tabulated form Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:44 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 6 of 13 as under:-
S.No. Details of Document Exhibit No.
1. Copy of MOU dated 02.11.2018 Mark-A
2. Copy of two Agreement to Sell dated Mark-B and C 14.11.2018
3. Copy of payment schedule along with Mark-D cheques (colly.)
4. Copy of both Sale Deed dated Mark-E and F 24.12.2018
5. Copy of intimation reminder Mark-G
6. Copy of reply dated 25.04.2019 Mark-H 7.3 Plaintiff also examined his special consultant Mr. Vinod Kumar as PW2. PW2 has relied upon the same documents i.e. Mark-A and B as relied upon by plaintiff during his evidence. 7.4 On the other hand, defendant no.3 has examined himself as DW1 in his defence. He filed his evidence by way of affidavit, Ex.DW1/A, wherein, he has deposed about the same facts as mentioned in the written statement. Findings and Analysis 8.1 I have considered the rival contentions of both the parties and perused the material on record. 8.2 The issue wise findings are as under:-
Issue no.(i) Whether the plaintiff is entitled to suit amount from the defendants?OPP.
9.1 Onus to prove this issue lies on plaintiff. 9.2 The issue to be considered is as to whether plaintiff negotiated as broker for and on behalf of defendants for sale of Raj Kumar ground and second floor with terrace and thus, as per oral Tripathi agreement between the parties, plaintiff is entitled for commission Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:02:52 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 7 of 13 of Rs.16,00,000/- as prayed for in the suit. 9.3 Plaintiff in his affidavit of evidence, Ex.PW1/A has deposed that the defendants had put the advertisement online with contact no.99588-07694 for sale of ground floor and second floor with terrace rights of property bearing no.7/18-A, erected on plot of land measuring 246.295 Sq.Yds. situated at Sarvapriya Vihar, New Delhi-16 and had welcomed the brokers to arrange for buyers and to pay commission to the brokers from their side on the sale price of the property. He contacted on the advertised number and introduced himself as a broker. He also introduced Mr. Vinod Kumar (PW2) as a special consultant working with him.
9.4 As per plaintiff, meetings between the parties took place at the places mentioned in para no.4 and 5 of his evidence affidavit, Ex.PW1/A. In the meetings, Mr. Pramod Gupta showed them papers and gave him photocopy of the same. Mr. Pramod Gupta and Mr. Kavish Gupta agreed to pay 2% commission of the total sale consideration. Pursuant to the meetings, as per plaintiff, they started searching buyers for the property and through their contacts and efforts, they found the neighbour/prospective buyer Mr. R.P. Saluja, partner of M/s Supertech Fabrications LLP, who was keen on buying the property. Thereafter, he introduced Mr. Saluja and the defendants to carry forward the sale/purchase of suit property. Defendants told him that they would be paying his commission. In spite of Mr. Saluja being the neighbour, the defendants agreed to proceed ahead only on his responsibility. Raj 9.5 Plaintiff further deposed that after many rounds of Kumar Tripathi negotiation with the parties, the MOU was executed between M/s Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:03:00 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 8 of 13 Supertech Fabrications LLP and deceased defendant no.1 along with defendant no.3 for collaboration/construction, whereby, defendants no.1 and 3 were allotted entire ground floor in the newly constructed building. Thereafter, an Agreement to Sell was also executed between M/s Supertech Fabrications LLP and deceased defendant no.1 along with defendant no.2 and the monetary advance was paid to them as per the terms and conditions mentioned therein.
9.6 He further deposed that Mr. Saluja proposed that he wanted second floor's sale deed to be made in the name of Mr. Kailash Aggarwal. He conveyed the same to defendants, who agreed to it on the condition that M/s Supertech Fabrications LLP will be a confirming party and he along with Mr. Vinod Kumar will be witnesses. Thereafter, he had few meetings with both the parties for payment terms, final drafting of sale deed and other formalities. In between, payments were made to defendants and he went to hand over the cheques many a times. Finally, two Sale Deeds were executed by defendants no.1 to 3 on 24.12.2018. 9.7 Thereafter, plaintiff asked the defendants to pay his agreed commission of Rs.16,00,000/-. The defendants requested him to give them some time to pay the money. However, despite assurance and his numerous visits, they failed to pay his commission and even stopped meeting him. He further deposed that some of the conversations were duly recorded with the knowledge of defendants to keep a clarity on transactions and the consideration amount.
9.8 PW2 Mr.Vinod Kumar, who was working as a Raj Kumar Tripathi special consultant with plaintiff, in his affidavit of evidence, Digitally signed by Raj Kumar Tripathi Date: 2025.01.16 14:03:08 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 9 of 13 Ex.PW2/A has deposed on the same lines as deposed by plaintiff in his affidavit of evidence. He has corroborated and supported the version of plaintiff in his evidence affidavit. 9.9 On the other hand, DW1 in his affidavit of evidence, Ex.DW1/A has deposed that defendants no.1 to 3 had entered into an Agreement to Sell with M/s Supertech Fabrications LLP for their respective properties. M/s Supertech Fabrications LLP was not able to fulfill their obligations, therefore, brought in the nominee in the shape of Mr. Kailash Aggarwal. Both the properties belonging to defendants were sold to Mr. Kailash Aggarwal vide Sale Deed dated 24.12.2018.
9.10 He further deposed that defendants did not avail the service of plaintiff for brokering the deal on their behalf for sale of their properties. There was no privity of contract between defendants and plaintiff. The demand of commission raised by plaintiff against defendants is a bogus demand as plaintiff never acted as their agent/dealer at any point of time. There was no agreement of commission or other agreement either oral or written ever made between plaintiff and defendants. 9.11 In his cross-examination, DW1 deposed that the ground floor of property no.7/18-A, Sarvapriya Vihar was sold to the buyer. The buyer was Supertech, who approached them for buying the property. Mr. Virdi came to them as part of Supertech to buy the property. He denied the suggestion that Mr. Virdi negotiated on their behalf with Mr. Aggarwal. He throughout his Raj Kumar deposition has maintained that Mr. Virdi was part of the buyer Tripathi team.
Digitally signed by Raj Kumar Tripathi Date: 2025.01.169.12 DW1 Mr. Himanshu Gupta was cross-examined at 14:03:17 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 10 of 13 length by counsel for plaintiff but nothing has come in his cross- examination to doubt his veracity. He has remained firm and consistent throughout his deposition with respect to the stand/defence taken by him in his affidavit of evidence as well as in the written statement. Thus, his testimony could not be assailed during his cross-examination.
9.13 As per plaintiff, defendants had put advertisement online with contact number 99588-07694 for sale of ground floor and second floor with terrace rights of property bearing no.7/18- A, Sarvapriya Vihar, New Delhi-110 016. DW1 in his cross- examination has deposed that he was not aware, whether any advertisement was made with respect to sale of his property. 9.14 The relevant portion of the cross-examination of PW1 is extracted herein below for ready reference:-
"Q. Have you placed any copy of advertisement on record which you have referred in para no.2 of your affidavit by way of evidence?
Ans. No. (Vol. The advertisement was placed by Mr. Kavish Gupta S/o Mr. Pramod Kumar Gupta on the portal of 99acres/Magicbrick.com. Q. Have you impleaded the said Mr. Kavish Gupta as a necessary party in the present suit? Ans. No. Q. Please tell the date and time when you called on the alleged mobile number as mentioned in para no.3 of your evidence by way of affidavit. Ans. I do not remember as it has been a very-very Digitally signed by long time back.
Raj Raj Kumar
Tripathi
Kumar Date:
Q. Can you tell the month when you called on the Tripathi 2025.01.16 alleged mobile number?
14:03:26 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 11 of 13 Ans. I do not remember the exact month also. Q. Can you tell the date, time and month of the alleged meeting which you have mentioned in para no.4 and 5 of your evidence affidavit? Ans. I do not remember.
Q. Had you affixed your signature on the MOU dated 02.11.2018 and Agreement to Sell dated 14.11.2018 before the defendants and M/s Supertech Fabrication LLP.
Ans. The witness after seeing the copy of MOU, Mark-A, B and C stated that he had not affixed his signature anywhere on the said documents. It is correct that I have not signed even as a witness on Mark-A,B and C. It is correct that Mr. Kailash Aggarwal, in whose name the sale deed was executed by defendants, was brought/introduced by M/s Supertech Fabrication LLP to the defendants."
9.15 From the aforesaid cross-examination of PW1, it is to be noted that he has failed to prove on record the advertisement which was allegedly put by defendants online for sale of their property. He could not tell the date, time and month when he called on the alleged mobile number given by defendants. He further could not tell the date, time and month of alleged meetings with defendants. Plaintiff has also neither produced nor proved the alleged conversations recorded by him in respect of the transactions and the consideration amount as claimed in para Raj no.24 of his evidence affidavit. There is no communication Kumar proved on record by plaintiff to show that defendants engaged Tripathi Digitally signed by him as their agent for the sale of their property. As per deposition Raj Kumar Tripathi Date: 2025.01.16 14:03:33 +0530 CS (COMM.) No.702/2019 (Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 12 of 13 of plaintiff himself, he had not affixed his signature on the MOU Mark-A and Agreement to Sell Mark-B and C. He has also admitted that he has not signed as a witness on Mark-A, B and C. He has further admitted that Mr. Kailash Aggarwal, in whose name the Sale Deed was executed by defendants was brought/introduced by M/s Supertech Fabrications LLP. Thus, plaintiff has not been able to prove on record that he negotiated as broker for and on behalf of defendants for sale of properties in question.
9.16 In view of foregoing reasons and discussions, I am of the view that plaintiff has miserably failed to discharge the onus to prove the issue. Accordingly, issue no.(i) is decided against the plaintiff and in defendants' favour.
Issue no.(ii) Whether the plaintiff is entitled to interest on the suit amount and if yes, for what period and at what rate?OPP. 10.1 In view of findings given on issue no.(i), plaintiff is not entitled for the interest as claimed.
Relief 11.1 The suit filed by plaintiff is dismissed with cost. 12.1 Decree Sheet be prepared accordingly.
Digitally
13.1 File be consigned to Record Room. Raj signed by Raj
Kumar
Tripathi
Kumar Date:
Tripathi 2025.01.16
14:03:41
+0530
Announced in the open court (RAJ KUMAR TRIPATHI)
Dated: 16.01.2025 District Judge (Commercial Court)-08
South-East District, Saket Courts, New Delhi.
CS (COMM.) No.702/2019(Vijender Singh Virdi vs. Pramod Kumar Gupta & Others) Page No. 13 of 13