Delhi District Court
Sh. Raj Kumar vs Sh. Mukesh Jain on 31 May, 2012
IN THE COURT OF MS. NEELAM SINGH,
ADJ02 (SOUTH) SAKET COURT COMPLEX, NEW DELHI.
CS No. 77/2011
Unique Case ID No. 02403C0844702009
Sh. Raj Kumar
S/o Late Manoher Lal
R/o A1/105, Safdarjung Enclave,
New Delhi .
...Plaintiff
Versus
1. Sh. Mukesh Jain
S/o Sh. A. L Jain
2. Sh.Rajender Kumar Jain
S/o A. L Jain
3. Sh. Manish Jain
S/o Sh Rajinder Kumar Jain
4. Smt. Nisha Jain
W/o Rajender Kumar Jain
All four R/o 84/A Arjun Nagar,
New Delhi.
...Defendants
Suit presented on : 24.02.2009
Argument heard on : 31.05.2002
Judgment on : 31.05.2012
SUIT FOR THE RECOVERY FOR RUPEES 7,77,600/
CS No. 77/2011 Page No. 1 of 29
JUDGMENT
1. Vide this judgment, I shall dispose off the suit for possession and permanent injunction filed on behalf of plaintiff.
2. It is the suit of plaintiff that he is an estate agent and property dealer and has been carrying on his business in Safdarjung Enclave and the adjoining area in the south Delhi.
3. It is submitted that the defendant no. 1 and 2 approach the plaintiff and asked to him to find out suitable flats at Safdarjung Enclave on second and third floor. The plaintiff has shown many flats to the defendants and finally, defendants no. 1 and 2 selected the second floor & third floor with roof rights in property bearing no B4/262 Safdarjung Enclave, New Delhi and the deal was struck for a consideration of Rs. 3,60,00,000/ with the seller i.e. M/s Armac India and an agreement to sell was entered into dated 30.03.2007.
4. It is submitted that the plaintiff acted as a broker for entering into deal between the defendants and the seller M/s Armac India and on completion of deal, by execution of sale deeds of the property the plaintiff / broker is entitled to commission of 2% of sale consideration on Rs. 3,60,00,000/ which come to Rs. 7,20,000/ which is payable as per trade market usage and as per agreement between the plaintiff and defendant no. 1 and 2.
CS No. 77/2011 Page No. 2 of 29
5. It is further submitted that there were two sale deeds executed between M/s Armac India and defendants one sale deed for second floor and other sale deed was executed in favour of defendant no. 1 & 2, their nominees defendant no. 3 to 4 at instance of defendant no. 1 and 2. Thus the plaintiff has impleaded defendant no. 1 and 2 as the principal parties and defendant no. 3 and 4 as nominees.
6. Defendant no. 1 and 2 were asked to pay Rs.7,20,000/ which they agreed to pay, sought time to pay the amount of commission however in order to ensure security of the amount, the defendant deposited the original sale deeds of both the flats.
7. The plaintiff sent a legal notice to defendants no. 1 and 2 which was served on them but despite the receipt of the notice they failed to pay the commission. They also failed to give reply of the same.
8. It is further submitted that the defendants had failed to pay the amount outstanding against them and as such the defendants are liable to pay the amount claimed with interest @ 12% per annum.
9. It is further submitted that the cause of action arose to the plaintiff against the defendants on 30.05.2008 when the deal completed and the cause of action arose on the dates after 30.05.2008 when the amount was demanded and also arose on the date when notice dated 15.09.2008 was served on the defendants no. 1 & 2 and CS No. 77/2011 Page No. 3 of 29 they failed to comply and further prayed for a decree for sum of Rs. 7,77,600/ (Rupees Seven Lacs Seventy Seven Thousand Six Hundred only) in favour of plaintiff and against the defendants with cost and interest pendent lite and future interest @ 12% per annum and hence the present suit.
10. Summons were issued to the defendants and they filed their written statement along with counter claim.
11. It is submitted that the answering defendants have been residing in the locality of Safdarjung Enclave, New Delhi since long back and are very familiar to the surroundings. It is submitted that there have been a very good familiar relation between the defendants and Sh. A. S. Arora, partner of M/s Armac India and also with the other partners of M/s Armac India. In the month of February 2007, Sh. A. S Arora contacted with defendant no. 1 & 2 and told them that they are raising the construction of flats over the property bearing no. B4/262, Safdarjung Enclave, New Delhi. On that the defendant no. 1 accompanied with one of his neighbour, who had to buy a house/property for his family requirements. It is further submitted that the said neighbours of defendant no. 1 after seeing the said construction of the flats over the property no. 262 was not inclined to purchase the said flats. Sh A. S Arora then, offered defendant no. 1 to CS No. 77/2011 Page No. 4 of 29 buy the said floor / flats in the said property. It is submitted that the defendants no. 1 & 2 had healthy and familiar relations with Sh. A. S Arora and his other partner of M/s Armac India and the said defendants had been providing monitory help to the said firm and its partners much earlier to the purchasing of the said two floors from the said partnership firm.
12. It is further submitted that during the construction of the said building/ property, Sh. A. S. Arora again contacted defendants no. 1 & 2 in the middle of March 2007, on that defendant no. 1 & 2, had inspected the construction work of the said building/property for their satisfaction. On 30.03.2007 an agreement to sell was also executed between the parties on certain terms and conditions which were earlier also offered by Sh. A. S. Arora but latter on the said agreement was discarded and was not taken into consideration, because the said seller had agreed not to raise any further construction in accordance with the discarded agreement to sell dated 30.03.2007 and the earlier proposal of Sh. A. S. Arora, which was earlier agreed to sell only two floors to the answering defendants. Thus, the defendants and the said seller had agreed to sell and purchase only two floors for which Rs. 75,00,000/ consideration for each floor was agreed between the parties. It is relevant here to point out that at the time of signing of the said CS No. 77/2011 Page No. 5 of 29 agreement, which was later on not taken into consideration, the plaintiff also accompanied with Sh. A. S. Arora and the plaintiff had also signed the said discarded agreement as a witness for the side of seller. Therefore, there had not been any privity of contract of any kind between the plaintiff and defendants, when the defendants had/has been very close and familiar relations themselves with the said seller and the defendants had agreed to purchase only two floors on the offer of the said seller itself, then no question of having any mediation being an agent by the plaintiff to the defendants of whatsoever kind can be arisen.
13. It is further submitted that as per the knowledge of the defendants the plaintiff is claiming to be the property dealer of the area and is also working as a tout in the office of SubRegistrar, House Tax Office and Tehsil Offices.
14. It is further submitted that after completion of the construction of the said building/flats over the said property, a fresh negotiations was arrived between the partners of M/s Armac India and the defendants, whereby, the defendants agreed to purchase second and third floor of the said building at the rate of Rs.75,00,000/ each floor. It is relevant hereto point out that at the time of execution of the sale deeds dated 30.05.2008 it was agreed between the defendants and Sh. CS No. 77/2011 Page No. 6 of 29 A. S. Arora that out of the previous payments/earnest money, the payment of Rs.60,00,000/ made by the defendants to M/s Armac India by way of cheques, the payment of Rs. 15 Lacs was adjusted for the sell considerations amount on the above said both the sale deeds dated 30.05.2008. The said seller out of the deal for the said purchase for two floors, which the said seller kept as a friendly loan to fulfill their urgent monetary requirement, as it had been a practice between the defendant no. 1 and 2 and the seller kept the cheque for Rs. 35,00,000/. The defendants by way of cheques paid the rest of the sale considerations for sale consideration for the said two sale deeds in the symmetry as the same has been specified in the said sale deeds. Thus, the agreementdated 30.03.2007 was totally discarded and ignored and was kept inoperative, by the parties to said sale purchase, therefore, said agreement had become infructuous. It is also relevant hereto mention that out of the said amount of Rs. 35,00,000/, which was kept pending with the said seller as friendly loan, some amount has been returned by the said seller to the defendants by way of an account payee cheque.
15. It is further submitted that at the time of execution and registration of the sale deeds dated 30.05.2008, the plaintiff also accompanied with Shri A.S Arora who is the partner of M/s Armac CS No. 77/2011 Page No. 7 of 29 India and signed the said sale deeds, as a vendor and the plaintiff signed as a witness on the said sale deeds. After presentation of the said sale deeds before the SubRegistrar for registration, the concern officers told the defendants and Sh. A.S. Arora that the said sale deeds would be delivered to the defendants later on, on presentation of a slip issued by the concerned Registrar Office. The defendants being busy in the business were required to rush to reach at their shop at Safdurjung Enclave they asked the plaintiff to get the receipt of the registered sale deeds on their behalf as because the plaintiff had earlier assured and informed the defendants that he has to regularly visit the Sub RegistrarIX and he can collect the said Sale deeds from the said SubRegistrar office, which the plaintiff would hand over to the defendants one he gets from the Registrar office, The defendant No. 1 to 3 are the shopkeeper and having shops in the name and style of M/s Bengal Sweets at Safdarjung Enclave and in day time they are busy in the said shop and the defendant no. 4 is the housewife. Due to their busyness in the shop, the defendant no. 1 to 3 accepted the said representation of the plaintiff and handed over the slips after putting their signatures on the said slips, issued by the SubRegistrar for collecting the sale deeds after its registration to the plaintiff.
16. That after 23 days when the defendant no. 1 made the CS No. 77/2011 Page No. 8 of 29 contact with the plaintiff and asked about the said sale deeds on that the plaintiff told to him that he was very busy in his personal work, therefore, he could not deliver the said sale deeds to the defendants. The said plaintiff assured the defendants for handing over the said sale deeds to the defendants shortly.
17. It is further submitted that due to the busyness and keeping faith in the plaintiff, the defendants could not make further contact for the next 23 days. Though, the defendants had not felt any bad intention and malafide of the plaintiff, the defendant no. 1 again on 7 th June 2008 contacted the plaintiff, then the plaintiff again told to him that he had collected the said sale deeds from the office of the Sub Registrar and would send the same to the defendants at their shop at Central market, Safdarjung Enclave. The defendant no. 1 again kept faith upon the said representation of the plaintiff. When upto 10.06.2008, the plaintiff had failed to send/hand over the said Sale Deeds to the defendants than the defendant no. 1 again made the contact with the plaintiff, then the plaintiff again felt regretted and promised to the defendant no. 1 that he would very soon send that said Sale Deeds at the shop of the defendants.
18. That after one week, when the defendant no. 1 again contacted the plaintiff and asked about the said sale deeds on that the plaintiff CS No. 77/2011 Page No. 9 of 29 told the defendant no. 1 that the said sale deeds have been misplaced by him somewhere in the house and he might have been found the same very soon after searching and as soon he gets the said sale deeds, he wold hand over the same to the defendants. Thereafter, as and when the defendants tried to make the contacts with the plaintiff, the plaintiff always tried to avoid the defendant on one pretext or the other. At last on 03.07.2008, the defendants no. 1 posted a written request letter through UPC to the plaintiff whereby requested the plaintiff to handover their sale deeds dated 30.05.2008, but despite receiving the said letter and after a few days, the plaintiff only apologized the defendants no. 1 and requested to get issue of the certified copies of the said sale deeds of the defendants. Moreover, at that time, the plaintiff also requested that once he gets the said missing sale deeds of the defendants, the plaintiff would immediately hand over the same to the defendants, thereafter, the defendants applied for the certified copied of the said sale deeds, which later on the defendants received from the Registrar office.
19. It is further submitted that the plaintiff has falsely alleged that the answering defendants had purchased the property in question through the plaintiff or that the plaintiff was the broker in the said deal. It is submitted that the defendant no. 1 and 2 have been a long CS No. 77/2011 Page No. 10 of 29 good familiar relations with the said seller and on several occasions the defendant no. 1 and 2 have been providing the monetary help to said seller. It is further submitted that the plaintiff be directed to return the original sale deeds dated 30.05.2008 to the defendants.
20. From the pleadings of the parties, following issues were framed by the learned Predecessor of this court vide order dated 10.09.2009:
1. Whether the suit of the defendant for issuance of mandatory injunction can be entertained by this court as a counter claim? OPD
2. Whether the defendant is liable to evaluate his suit for the purposes of jurisdiction and court fees and liable to pay the court fees thereon? OPD
3. Whether the plaintiff is entitled to a decree for recovery of the suit amount? OPP
4. Relief.
21. The plaintiff led evidence by way of affidavit and examined himself as PW1. The plaintiff was cross examined by the defendants' counsel at length. The relevant extract of cross examination of PW1 is reproduced as under:
"I am approximately 51 years old and I am studied upto CS No. 77/2011 Page No. 11 of 29 graduation. I am working as real estate agent. I am registered with service tax department as real estate agent. There is no licence issued by the government for real estate agent. It is incorrect to suggest that I have been doing business or transacting in writing. Infact in my trade nobody obtain writing or is doing business in writing. I am doing my business in the name of R.K. Estates of which I am sole proprietor. I have place on record Exhibit PW1/8 which is issued in the name of R.K. Estates. I have filed my ITRs which is a proof of my proprietorship..."
"...It is correct that in Ex. PW1/8 my name is not mentioned as proprietor of R.K. Estate. I am income tax payee since the year 199697. I can produce my income tax return for all these years. I am running my office in Safdarjung Enclave for last 23 years. The defendants are resided prior to my occupation in Safdarjung Enclave. I have been knowing the defendants for the last 15 years. I can not say whether the defendants are known to people of the vicinity. It is incorrect to suggest that the defendants never approach me for the dealing in respect CS No. 77/2011 Page No. 12 of 29 of property in question. It is incorrect that the defendants were already known to the seller and approached the seller direct. Only A.S. Arora is in a position to tell about his relationship with the defendants. It is incorrect to suggest that in February 2007 the defendant no. 1 and 2 of their own approached Shri. A.S. Arora for the flat Vol. I took the defendants to the seller A.S. Arora and shown the defendants the flats. It is incorrect to suggest that the defendant never approached me for the dealing nor I shown the flat subject matter of dealing. It is incorrect to suggest that defendant no. 1 and 2 along with their neighbourers of their own went for the dealing in respect of the flats in question. It is incorrect that the neighbourers of the defendants were to purchase the flat in question from A.S. Arora. It is incorrect to suggest that since the neighbourers of the defendants refused to purchase the flats than Sh. A.S. Arora asked the defendant no. 1 and 2 to purchase the flat. It is incorrect to suggest that the seller Sh. A.S. Arora proprietor of M/s Armac India were having with the defendant monetary relationship. It is incorrect to suggest that in middle of CS No. 77/2011 Page No. 13 of 29 march, 2007 Sh. A.S. Arora invited the defendants no. 1 and 2 to make inspection for the construction of the flats..."
"...The defendants have been joining me to the office of Sh. A.S. Arora in A82, Naraina i.e. the office of M/s Armac India. It is incorrect to suggest that no meeting took place with Sh. A.S. Arora with the defendants no. 1 and 2 with me. Only one agreement Ex. PW1/1 was entered into between M/s A.S. Arora and the defendants no. 1 and 2 beside this there was no other agreement entered into between them concerning the flats in question. It is incorrect to suggest that agreement Ex. PW1/1 was discarded. The agreement Ex. PW1/1 was in respect of 2nd and 3rd floor and the sale deed was also for 2nd and 3rd floor. It is incorrect that Sh. A.S. Arora failed to construct as per agreement dated 30.03.07 the agreement dated 30.03.07 Ex. PW1/1 was discarded and was not taken into consideration..."
"...It is incorrect to suggest that I have obtained the copy of Ex. PW1/1 from the defendants to extort money. Offhand, I can not tell the other dealing done by me as a CS No. 77/2011 Page No. 14 of 29 property broker in the year 2007 and 2008. It is incorrect to suggest that I am not a property broker and I have not done any property dealing during the dealing. It is correct that the seller A.S. Arora has executed sale deed in favour of the defendants. Since I am not a party to the sale deed I can not say whether these sale deeds and contents thereof are correct or incorrect. I can not tell at this stage as to how much amount I have earned through my property dealings. It is incorrect to suggest that whatever income I have shown in my ITRs is from Estate agent. It is incorrect that I am working as a tout in the office of Sub Registrars in Delhi. It is incorrect to suggest that after the sale deeds were registered the defendants gave me the receipt of Sub Registrar office to collect the original sale deed from the office of Sub Registrar. It is incorrect to suggest that I assured the defendant that I will get the document withdrawn from the office of Sub Registrar and will deliver the same to the defendants..."
"...It is incorrect to suggest that I have collected the original sale deeds from the office of Sub Registrar and kept with me. It is incorrect to suggest that I had not CS No. 77/2011 Page No. 15 of 29 return the sale deeds to the defendants when they asked to return back Vol. Since the defendant has failed to my brokerage..."
"...It is incorrect to suggest that I do not have any right to withhold the sale deeds of the defendants. I have brought the income tax return from the year 2003 till date Ex. PW1/D1 to Ex. PW1/D6 are the income tax return pertaining to me. I have brought the original and the photocopy placed on the record. It is correct that all these returns are pertaining to myself. It is correct that the return file by me are in my name and the name of R.K. Estate sole proprietor concern are not mentioned. It is correct that all these income tax returns are in my personal capacity. It is incorrect that I am not mentioned my brokerage fee in my income tax return. These have been shown under the consultation receipts. It is incorrect that by consultation receipt does not mean brokerage. I have not consulted any dictionary and any other document which goes to prove my stand that consultation receipts means brokerage..."
"...It is correct that document Ex. PW1/D7 was got typed CS No. 77/2011 Page No. 16 of 29 by me and it bears my signature and the same is self drafted. The document Ex. PW1/D7 is my letter pad and was got printed. It is correct in Ex. PW1/D1 the income from house property is Nill. It is correct that I have not shown my income as brokerage Vol. consultancy includes and means brokerage. I have not brought the original sale deeds. It is wrong to suggest that the contents at 12, 13 and 14 as mentioned in Ex. PW1/1 were fulfilled by the seller A.S. Arora. Vol. The same parking has given to the other buyer also. I have mentioned in my ITRs that I have been paid commission from A.S. Arora. However, I have not specifically mentioned the same. It is wrong to suggest that the percentage of brokerage has not been mentioned in any law book/customs/trade practices etc. It is wrong to suggest that I have not sent any legal notice with respect to the brokerage. It is wrong to suggest that the receipt of the notice is fabricated. I will be happy if I get the payment bank rate interest on my brokerage. It is wrong to suggest that I am not entitled to receive any payment from the defendant. It is wrong to suggest that there was any deal between me and defendant and the CS No. 77/2011 Page No. 17 of 29 brokerage was not settled between me and the defendant. It is wrong to suggest that I have not been paid my brokerage charges so I can withhold the original title deeds. It is wrong to suggest that I am deposing falsely."
Thereafter, PE was closed.
22. In defendants' evidence, defendant no. 1 examined himself as DW1 by way of an affidavit. The relevant extract of his cross examination is as under:
"I have seen the photostate copy of agreement dated 30.03.2007 Ex. PW1/1 bears my signature. This agreement was executed with M/s Armac India. There was no agreement cancelling this agreement Vol. orally it was cancelled. The address 84A, Arjun Nagar, New Delhi was my residential address Vol. however, when I shifted to the flat in question my address is the flat in question. I have not received notice Ex. PW1/4 Vol. since we have shifted to the property in question. The address given in the notice Ex. P1/4, AB13, Safdarjung Enclave is correct. Objected to since this address was not mentioned in the notice. The address given in AD Ex. PW1/6 is correct Vol. I have not received the aforesaid CS No. 77/2011 Page No. 18 of 29 notice and the signature as shown on the AD is not mine. It is incorrect to suggest that firstly I received the notice than I cancelled the signature and made a false endorsement at point A in Ex. PW1/7 and in the endorsement at point B are my signature Vol. the document Ex. PW1/7 does not concern to me. I am familiar with M/s Armac India and Sh. A.S. Arora for the last 8 years again said 78 years. M/s Armac India is a Export and Import firm. Again said it is a builder firm. I do not know whether it is a partners concern, proprietorship concern or a limited company. I have no idea how many proprietor or partner are in the M/s Armac India. Their office in Narayana. I have no idea what is the Municipal Number where M/s Armac India have been carrying their business. I have no business dealing with M/s Armac India. In fact, I have been advancing loans to M/s Armac India and Mr. A.S. Arora. I can give the details of the advances of loan to them from time to time after consulting my record. I can not tell from which year I have been advancing loan to M/s Armac India and Sh. A.S. Arora. I am owning a sweet CS No. 77/2011 Page No. 19 of 29 shop and I have a renting income. M/s Armac India and Sh. A.S. Arora never dealing with sweet shop and etc. Deferred at the request of Ld. Counsel for the plaintiff as he intends to summon the documents from the defendant by serving him a notice..."
"...It is correct that my mobile no. is 9810072572. I do not whose number is 9811236924. I cannot say that this number relates to the plaintiff. It may be that I called on the said number i.e. 9811236924 as the builder has given me 23 numbers to call for any help. It is wrong to suggest that 9811236924 belongs to plaintiff. I have brought the documents summoned in the notice dated 07.07.2011. I have not brought the list of debtors, books of account, cash book, ledger, ITR for the year 2002. I have also not brought any record pertaining to M/s Armac India Pvt. Ltd. However, whatever payment I have made to M/s Armac India Pvt. Ltd. from time to time in respect of 2nd and 3rd floor of property no. B4/262, Safdarjung Enclave, New Delhi is reflected in the statements filed by me today which are Ex.DW1/P1 and Ex.DW1/P2. It is wrong to suggest that I have paid Rs. CS No. 77/2011 Page No. 20 of 29 2.10 crores to M/s Armac India Pvt. Ltd. by means of a/c payee cheque. I have only paid Rs.2 crores to M/s Armac India Pvt. Ltd. Thereafter M/s Armac India Pvt. Ltd. returned me Rs.50 lacs by way of cheque. No document regarding Rs.50 lacs was written. It is correct that the Agreement to Sell was initially for a sum of Rs.3.60 crores. [Vol: That the builder refused to give full terrace as I refuse to buy the said property and the builder reduced to Rs.1.50 crores.] No agreement in this regard was written. It was all oral. It is wrong to suggest that the deal was for Rs.3.60 crores and I paid the entire consideration. It is wrong to suggest that to save stamp duty and expenses, a false dealing in the form of Sale Deed for Rs.1.50 crores was written.
It is correct that Sale Deed of the property submitted before SubRegistrar for registration can be handed over to me. I did not get the registered Sale Deed from the office of SubRegistrar. [Vol: The plaintiff told me to hand over the slip duly signed for getting the registered Sale Deed from the office of SubRegistrar on my behalf.] I have not given any Power of Attorney to the plaintiff to CS No. 77/2011 Page No. 21 of 29 collect the registered Sale Deed. It is wrong to suggest that after collecting the registered Sale Deed from the office of SubRegistrar, I handed over the same to the plaintiff to retain the papers till his brokerage is paid by me.
I cannot say that the charges for estate agent are 2% of the total sale consideration. I cannot say the plaintiff was broker for M/s Armac India Pvt. Ltd. It is incorrect to suggest that the plaintiff was acting as a broker for both the parties. [Vol: The plaintiff was not acting as broker on my behalf.] I cannot say that the plaintiff singed on Ex.PW1/1 as if he was broker. [Vol: The plaintiff was not acting as broker on my behalf.] I cannot say the plaintiff is a broker or a estate agent.
After signing of Ex.PW1/1, I have visited only once the property purchased by me. It is correct that at the time of signing Ex.PW1/1, the property was under construction. It is wrong to suggest that plaintiff was the only link between me and the builder with regard to the property purchase by me. It is wrong to suggest that in order to misappropriate the commission of the plaintiff, I am CS No. 77/2011 Page No. 22 of 29 making an incorrect and false statement. It is further wrong to suggest that the deal was for Rs.3.60 crores or that I used Rs.2.10 crores as black money."
Thereafter, DE was closed.
23. Heard. Considered. My issuewise finding is as under: ISSUE NO. 3
Whether the plaintiff is entitled to a decree for recovery of the suit amount? OPP
24. The case of the plaintiff hinges around the averments that defendants entered into an agreement for sale of second & third floor with roof rights in property bearing no. B4/262, Safdarjung Enclave, New Delhi for a sale consideration of Rs.3,60,00,000/ from M/s Armac India. It is argued by counsel for plaintiff that since the plaintiff acted as a broker for entering into deal between the defendants and the seller M/s Armac India, he is entitled to commission of 2% of the total sale consideration of Rs.3,60,00,000/ which come out to Rs.7,20,000/. It is argued by the counsel for plaintiff that as per trade market usages and as per the agreement between the plaintiff and the defendant no. 1 and 2, plaintiff is entitled for an amount of Rs.7,20,000/ along with interest pendentelite and future.
CS No. 77/2011 Page No. 23 of 29
25. The claim of the plaintiff rests upon an agreement which was averred to be entered into by plaintiff and defendant on 30.03.2007. It is argued by counsel for plaintiff that after the completion of sale transaction, original sale deeds were kept as a security by the defendant with the plaintiff by saying that as & when the commission be paid to the plaintiff, the defendants will take the original sale deeds from him. A copy of Agreement to Sell and Purchase dated 30.03.2007 between M/s Armac India and Sh. Mukesh Jain for the sale of second floor with roof rights of the property bearing no. B4/262, Safdarjung Enclave, New Delhi, is placed on record wherein a sale consideration for the abovesaid property is shown as Rs. 3,60,00,000/. I have gone through the copy of agreement Ex.PW1/1 in detail wherein the plaintiff has signed in the witness column but nowhere it is mentioned that the deal is struck through the plaintiff and the plaintiff is also entitled for commission on the sale proceed @2% of the sale consideration. During his cross examination it is submitted by the plaintiff that he has not acquired any license issued by the Government for real estate agent.
26. On the other hand, it is argued by counsel for the defendants that the deal in question was not materialized through plaintiff as the defendants and the seller were close friends. It was argued by counsel CS No. 77/2011 Page No. 24 of 29 for defendants that although agreement dated 30.03.2007 was entered into by the defendants and the seller M/s Armac India, but the same was abundant and was not materialized.
27. It is the case of the defendant that the agreement which was executed on 30.03.2007 was discarded and was not relied upon at the time of final transaction. There is no dispute that the deal in question was completed and a sale deed was executed for an amount of Rs. 3,60,00,000/ between defendant no. 1 & 2 and Sh. A. S. Arora, proprietor of M/s Armac India.
28. The onus to prove issue no. 3 was upon the plaintiff and for his claim, plaintiff has to stand on his own legs firstly by proving that agreement dated 30.03.2007 is valid and is subsisting between the parties; secondly by proving that as per agreement dated 30.03.2007 there is a written agreement specifying the conditions that plaintiff is the broker / agent in the transaction in hand and has accented to act upon broker upon payment of commission of 2% of the total sale consideration alleged in the agreement as Rs.3,60,00,000/ and thirdly that defendant no. 1 & 2 were duly agreed to make payment of 2% of the sale consideration to the plaintiff. Plaintiff has rested his claim on the practice usages and also as per market trend but no evidence has been led by the plaintiff in order to show that what are the market CS No. 77/2011 Page No. 25 of 29 trend and the practice usages. It is argued by counsel for defendant that even the plaintiff has not acquired required license to obtain the business of brokerage in real estate market.
29. On the basis of evidence led by the plaintiff as well as defendants, I am of this opinion that plaintiff has failed to prove his claim and is not entitled for the recovery of an amount of Rs. 7,20,000/ from defendant no. 1 & 2. Issue no. 3 is decided against the plaintiff.
ISSUE NO. 1
Whether the suit of the defendant for issuance of mandatory injunction can be entertained by this court as a counter claim? OPD and ISSUE NO. 2 Whether the defendant is liable to evaluate his suit for the purposes of jurisdiction and court fees and liable to pay the court fees thereon? OPD
30. Issue no. 1 and 2 are interconnected and are taken together. Defendant no. 1 & 2 at the time of filing written statement have also filed counter claim in the form of written statementcumcounter claim without any court fees on the counter claim. I have gone through the prayer clause of the written statementcumcounter claim wherein it is mentioned in the prayer clause that:
CS No. 77/2011 Page No. 26 of 29
"It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to dismissed the present suit filed by the plaintiff with exemplary cost."
31. What has been prayed through the counter claim, the defendants are not specific. However, in para 11 of the preliminary objection, there is a mention of the counter claim. Para 11 is reproduced as under:
"xi. Therefore, in view of the said facts of the case the plaintiff is liable to return the original Sale Deeds of the defendants of their property no. B4/262, 2nd & 3rd floor of Safdarjung Enclave, New Delhi, otherwise the defendants shall have no option except to take the legal action against the plaintiff, the answering defendants have also filed their counter claim alongwith the written statement for issuance of the mandatory injunction against the plaintiff for directing him to return the original Sale Deeds dated 30.5.2008 to the defendants."
32. It is admitted by the defendants that the original sale deed pertaining to the suit property in question is with plaintiff. The case of the plaintiff is that defendants have themselves handed over the original sale deed to the plaintiff on the conditions that as & when the CS No. 77/2011 Page No. 27 of 29 commission / brokerage amount will be paid to the plaintiff, they may take the same from the plaintiff. However, on the other hand, it is averred by defendants that at the time of execution of the sale deed, the receipts issued by the office of SubRegistrar were signed by the defendants and were handed over to the plaintiff for obtaining the original sale deed from the office of SubRegistrar and thereafter to hand over the same to the defendants.
33. I have considered the averments of both the parties and I am of this opinion that there are less chances that the original sale deeds be handed over by the defendants to the plaintiff since they were not in position to arrange for the brokerage.
34. I am of the opinion that as per human psychology, no one hand over such a valuable document to the property dealer rather it appears from the fact of the case that there may be a probability that the receipt issued by the SubRegistrar office duly signed by defendant no. 1 and 2 be handed over to plaintiff for obtaining original sale deed from the office of SubRegistrar and thereafter handing over the same to the defendants. However, the possession of original sale deed with plaintiff is admitted by the plaintiff himself and I am of this considered opinion that since the property belongs to the defendant no. 1 and 2 and plaintiff has failed to prove the claim as per issue no. 3, CS No. 77/2011 Page No. 28 of 29 the original sale deeds be handed over to the defendants by the plaintiff.
RELIEF:
35. On the basis of above discussion, I am of this opinion that the plaintiff is not entitled for recovery of amount, as prayed by him.
Hence, the suit filed by the plaintiff is dismissed. Since issue no. 1 and 2 is decided in favour of defendants, the plaintiff is hereby directed to hand over the original sale deeds to the defendants.
36. No order as to cost. Decree sheet be prepared.
37. File be consigned to record room after necessary compliance.
Announced in the open Court.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 31.05.2012/ TP CS No. 77/2011 Page No. 29 of 29 CS No. 77/2011 Sh. Raj Kumar vs. Mukesh Jain 31.05.2012 Present : Counsel for plaintiff.
Counsel for defendant.
Vide my separate judgment of even date, the suit of the plaintiff is dismissed. There is no order as to cost. Decree sheet be prepared. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 31.05.2012/ TP CS No. 77/2011 Page No. 30 of 29