Delhi District Court
Sardar Harvinder Pal Singh vs M/S Skipper Construction Co. (P) Ltd on 28 November, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
CS No. : 165/14
In the Matter of :
Sardar Harvinder Pal Singh
S/o Sh. Avtar Singh
R/o 23/77, West Punjabi Bagh
New Delhi 26
.........Plaintiff
Vs.
M/s Skipper Construction Co. (P) Ltd.
88, Nehru Place, Top Floor, New Delhi
.........Defendant
Date of Institution : 09.04.2009
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 23.11.2015
Date of Judgment : 28.11.2015
JUDGMENT
1. This is a suit for recovery of Rs. 12,41,000/ filed by plaintiff against the defendant.
2. The facts as pleaded in the plaint are that the plaintiff at the relevant time was engaged in business of properties, whereas defendant CS No. : 165/2014 1/10 was a builder which had been engaged in the development and construction in the area of Jhandewalan complex. In year 1991, one Sh. Abhishek Sharma through plaintiff agreed to have a space of Flat no. 832 D situated on the 8th floor , measuring around 700 sq. feet being developed and constructed by defendant in Jhandewalan Complex known as Jhandewalan Tower and agreed to have purchased the rights and interest of plaintiff in the said flat. The payment of total sum of Rs. 3,50,000/ in installments was also made by said Abhishek Sharma for sale and transfer of the aforesaid flat which was duly acknowledged and confirmed by the defendant on 4.5.1992 and 8.4.1993. However, the said building could not be completed by defendant and a commission namely Justice Lahoti Commission was formed to deal with the matters of Jhandewalan Complex, wherein said Abhishek Sharma also lodged his claim but the same was rejected, subsequent to which a suit for recovery of Rs. 6,86,000/ was filed by Abhishek Sharma before Hon'ble High Court .
3. Besides Abhishek Sharma, one Anita Sharma, Uma Kant Sharma and Lakshmi Kant Sharma also filed separate suits for recovery against the plaintiff & Ors. and defendant in Hon'ble High Court of Delhi. However, defendant failed to appear before Hon'ble High Court despite service and plaintiff though had been trying to contest the suit, however since the written statement was not filed within time, Hon'ble High Court of Delhi on application moved by Abhishek Sharma under order 8 rule 10 CPC, CS No. : 165/2014 2/10 decreed the suit against the plaintiff and defendant herein on 4.4.1997.
4. The plaintiff, as stated, could not appear before Hon'ble High Court on 4.4.1997 because he was not aware of the date as no notice of the application was issued to him, whereas the defendant who was present did not contest and allowed the suit to be decreed, subsequent to which plaintiff herein moved an application under order 9 rule 13 CPC for setting aside the exparte decree on 28.4.1997 but in the meantime, Abhishek Sharma/DH in execution, got the movable and immovable property of plaintiff attached and since the plaintiff and his family were being harassed due to pendency of execution, plaintiff was forced to enter into a compromise with them in all the four suits for Rs. 34,50,000/.
5. During the pendency of application under order 9 rule 13 CPC, due to enhancement of pecuniary jurisdiction, the suit was transferred to District Courts, Tis Hazari, Delhi and the plaintiff paid the settled amount of Rs. 34.50 lacs to all the decree holders in installments before the court of Ld. ADJ, Tis Hazari Courts, Delhi. It was stated that since the plaintiff had already made the payments to defendant against the purchase of flats which payments had been acknowledged and confirmed by the defendant, whereas it was the plaintiff who had been forced to pay the amount of Rs. 34.50 lacs to decree holders, plaintiff by way of instant suit is seeking recovery of the said amount alongwith interest from the defendant.
6. In response to the suit of the plaintiff, defendant filed the written CS No. : 165/2014 3/10 statement wherein it was stated that the plaintiff has not come to the court with clean hands and has intentionally portrayed the facts in a distorted manner with the sole intention of jeopardizing the course of justice, who with malafide intention has not disclosed as to what was the fate of its application under order 9 rule 13 CPC. It was denied that the defendant had already received the payments of the flats from plaintiff and thereafter also transferred the right and interest of the plaintiff in the flat in favour of Sh. Abhishek Sharma. As stated, plaintiff entered into compromise with the decree holders on his own and not at the instance of defendant. Hence, no cause of action could be said to have accrued in favour of plaintiff and against the defendant.
7. In replication filed, contents of written statements were denied and those of plaint were reiterated and reaffirmed.
8. From the pleadings of parties, following issues were framed vide order dated 27.1.2011: (1) Whether the plaintiff is entitled for recovery of suit amount as prayed for? OPP (2) Whether the plaintiff is entitled for interest @ 18% p.a. as prayed for ? OPP (3) Whether the suit is barred by limitation ? OPD (4) Whether the plaintiff is not entitled to file the present suit? OPD CS No. : 165/2014 4/10 (5) Relief
9. In evidence, plaintiff examined himself as PW1 and relied upon following documents: Ex. PW1/X : Certified copies of allotment letter dated 5.4.1990 and receipts of payments made in suit no. 829/96.
Ex. PW1/1 : Certified copy of suit no. 829/96
Ex. PW1/2 : Certified copy of letter of defendant dated 4.5.1992
Ex. PW1/3 &
Ex. PW1/4 : Certified copy of receipts dated 8.4.1993
Ex. PW1/5 : Certified copy of application u/o 8 rule 10 CPC
Ex. PW1/6 :Certified copy of order dated 4.4.1997
Ex. PW1/7 :Certified copies of order sheets of Hon'ble High
Court of Delhi.
Ex. PW1/8 : Certified copies of application under order 9 rule 13
CPC
Ex. PW1/9 : Certified copy of order dated 3.10.2006
Ex. PW1/10 : True copy of notice dated 25.8.2008
Ex. PW1/11 : Postal receipt and UPC
Ex. PW1/12 : AD card
Ex. PW1/13 : True copy of notice dated 4.10.2008
Ex. PW1/14 : Postal receipt and UPC
Ex. PW1/15 : AD Card.
CS No. : 165/2014 5/10
10. On the other hand, defendant despite giving opportunities, failed to lead any evidence in defence and his evidence was closed vide order dated 17.11.2015.
11. I have heard the arguments as well as perused the record. Issue wise findings are as under :
12. Issue No.3 : As stated by defendant, alleged payment by plaintiff to defendant against the purchase of flats was made in year 1993. The execution against the decree passed, was brought against plaintiff at Saharanpur on or about 5.2.1998 vide order of Hon'ble High Court of Delhi dated 7.11.1997 and 28.1.1998. Therefore the suit, as stated, having been filed in the year 2009 is hopelessly barred by limitation.
13. Plaintiff in pursuance to the execution proceedings against him settled the matter with the opposite party and made payment of the settled amount before the executing court in installments. The last installment was paid on 3.10.2006. The cause of action for filing of the suit against the defendant had been continuing and also arose for filing of the suit against the defendant lastly on the date of payment of last installment to the DH on 3.10.2006, counting from which date, the suit filed is within the period of limitation. This issue is accordingly decided in favour of plaintiff and against the defendant.
14. Issues no. 1, 2 & 4 : Plaintiff had invested with the defendant who was the builder on behalf of many investors. In the instant matter, CS No. : 165/2014 6/10 investment was made on behalf of Sh. Abhishek Sharma to have space in Flat no. 832D situated on the 8th floor , measuring around 700 sq. and total sum of Rs. 3,50,000/ had been paid by the said investor Sh. Abhishek Sharma through plaintiff with the defendant. However, said project could not be completed by defendant . Justice Lahoti Commission was formed to deal with the matters where the claim was lodged by said Abhishek Sharma which was rejected. Subsequently all those investors including Sh. Abhishek Sharma filed a suit for recovery against the plaintiff and defendant herein seeking recovery of the suit amount. All those cases were decreed against the plaintiff and defendant herein and in the execution proceedings filed, plaintiff, as stated, was compelled to enter into compromise who made total payment of Rs. 34,50,000/ with respect to all the four cases against the claims of the respective Decree holders. As stated, since the plaintiff was compelled to make the payments to decree holders in all the four case, though it was the liability of the defendant herein, therefore plaintiff has now sought recovery of the said amount which he had to shell out in the execution proceedings for making payment to the decree holders.
15. Though defendant has failed to lead any evidence in defence but in the written statement, defence taken was that the plaintiff entered into compromise with decree holders on its own and not at the instance of defendant. It was also denied that defendant had admitted or acknowledged CS No. : 165/2014 7/10 to have received the sum of Rs. 3,50,000/ from the plaintiff on behalf of DH or that thereafter right and interest of the plaintiff were transferred in favour of Decree holders. As stated, since the said payment consequent to the alleged settlement was not made on behalf of defendant to the decree holders, therefore defendant is neither liable to pay the same nor to reimburse any amount to the plaintiff.
16. In terms of document Ex. PW1/3 and Ex. PW1/4 (collectively) which are receipts issued by defendant pertaining to the payment received from plaintiff against Flat no. 832D situated on the 8th floor , measuring around 700 sq. , Jhandewala Tower, Delhi. The factum of issuance of those receipts has not been denied by the defendant and the assertion of plaintiff regarding acknowledgment by defendant of the receipts has not only remained unrebutted on record but also was confirmed with the suggestion put to PW1 that the alleged payment by plaintiff to defendant on behalf of flat owners against the purchase of flat was made in year 1993. Since the project was not completed, therefore the defendant was at least liable to return the said amount to the investors.
17. Counsel for respondent has sought much of the reliance from the report of Justice Lahoti Commission to substantiate his argument regarding denial of the claim lodged by decree holders before the said committee. However, in terms of record, the said claim was rejected only because of the reason that the plaintiff was not an allottee before cut off CS No. : 165/2014 8/10 date of 29.1.1991. The abovesaid was the reason for denial of claim before Justice Lahoti Committee but cannot be the reason for defendant not to return the said amount after having acknowledged the receipt of the same by the investors through plaintiff.
18. The contention that the plaintiff of his own volition and without the consent of defendant, entered into the settlement with the DH, therefore defendant is not liable to return the amount to plaintiff, is also not tenable at all. It was the responsibility of the defendant to return the said amount to the investors. However, since the investments were made through plaintiff, therefore plaintiff was also made a party in all the four suits filed by decree holders. Defendant itself did not contest the suit and it was only the plaintiff who had participated in the execution proceedings. As there was no participation of the defendant, during the pendency of the case as well as in the subsequent proceedings, therefore there was no occasion for the plaintiff to seek consent of the defendant in this respect and rather for the non discharge of liability of the defendant, plaintiff had to get the matter settled with the decree holders. The decreetal amount, as stated, was much higher than the amount of settlement arrived at between the parties and in these circumstances, the liability upon the defendant has rather been reduced because of the settlement of the plaintiff with decree holders. The defendant having failed to discharge its burden, accordingly is held liable to reimburse the amount of Rs. 34,50,000/ which was cleared by plaintiffs by making CS No. : 165/2014 9/10 payment to the decree holders in all the four suits. The plaintiff though has not placed on record the amount of execution but since the consolidated payment was made at Rs. 34,50,000/ in equal shares as claimed, therefore the suit is decreed for 1/4th amount of Rs. 34,50,000/ i.e. Rs 8,62,500/.
19. Plaintiff has claimed interest @ 18 % p.a. Admittedly there was no agreement between the parties regarding the interest payable at 18% p.a which in considered opinion of this court is on higher side, therefore the interest is awarded @ 9% from the date of payment of last installment by the plaintiff till realization. The plaintiff is also awarded cost as permissible in law. These issues are accordingly decided in favour of plaintiff and against the defendant.
20. Relief: In view of the discussion made herein above, instant suit is decreed with cost in favour of plaintiff and against the defendant for Rs. 8,62,500/ alongwith interest @ 9% w.e.f. 3.10.2006 till realization. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in Open Court
on 28.11.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
CS No. : 165/2014 10/10