Delhi District Court
Sh. Brij Anand vs M/S Ace Projects on 11 October, 2019
IN THE COURT MS. CHARU AGGARWAL
ADDITIONAL DISTRICT JUDGE03, WEST DISTRICT
TIS HAZARI COURTS: DELHI.
CS No. 611561/16
In the matter of:
Sh. Brij Anand
S/o Late Maj. M. G. L. Anand
R/o C168, Defence Colony,
New Delhi110 024. ......... Plaintiff
Vs.
M/s ACE Projects
Registered Office at:
2W/3, First Floor, West Patel Nagar,
Near Patel Nagar Metro Station,
New Delhi110 008. ....... Defendant
Date of institution : 16.05.2014
Date of decision : 11.10.2019
JUDGMENT
1. The plaintiff has filed this suit for recovery of Rs. 8,23,500/ alongwith pendentelite and future interest against the defendant.
2. The case of the plaintiff as per plaint is that defendant is a developer and has constructed apartments known as "Renaissance R1 Project at Village Anjuna, Bardez, Goa. In the month of October2013, the authorized representative of the defendant apprised the plaintiff about the aforesaid project Brij Anand Vs. M/s ACE Projects Page 1 of 10 of the defendant in Goa. The plaintiff was also in the search of property in Goa, therefore, after various discussions and meetings in the office of the defendant, the plaintiff agreed to purchase the Apartment no. 3, 1 BHK having an area of 818 sq. ft. located at the ground floor, Pool Facing, BBlock. During the meeting held between the parties, the plaintiff was informed by the AR of the defendant that the similar Apartment No. ALS 202 of 1 BHK, was sold by them for total sale consideration amount of Rs. 33 lacs. On the basis of information given by the sales representative of the defendant firm, the plaintiff agreed to purchase the abovementioned 1 BHK flat from the defendant for total sale consideration amount of Rs. 33 lacs and handed over a cheque for Rs. 4,50,000/, dated 07.01.2014, drawn on Citi Bank, New Delhi, in favour of the defendant firm. The said cheque was duly encashed by the defendant as part payment towards booking of the flat. On 17.01.2014, the copy of the sale deed of another flat bearing no. ALS202, sold by the defendant, was handed over by the defendant's representative to the plaintiff and was informed that on similar terms the sale deed of the plaintiff would also be executed. At that point of time, the defendant's representative also collected additional amount of Rs. 1,50,000/ from the plaintiff through cheque dated 20.02.2014 and cheque of Rs. 2,00,000/ dated 11.03.2014. Thus, the total amount of Rs. 8,00,000/ out of the amount sale consideration amount of Rs. 33 lacs was paid by the plaintiff to the defendant with the understanding that the remaining payment of Rs. 25 lacs would be paid at the time of registration of sale deed. Thereafter, the plaintiff several times requested the defendant to accept the balance sale consideration Brij Anand Vs. M/s ACE Projects Page 2 of 10 amount and execute the sale deed but he defendant became greedy and started demanding more amount which was not even agreed between the parties. The plaintiff finding no other option sent an email dated 20.03.2014, to the defendant and requested it to adhere to the commitment and the price agreed between the parties to purchase/sell the suit property or in alternate return the amount of the plaintiff. It is alleged that the defendant has committed breach of agreement. The plaintiff has stated that he is still ready and willing to pay the balance amount of Rs. 25 lacs and has arrangement to pay the balance amount but still the plaintiff is not filing a suit for specific performance. The plaintiff again sent an email dated 19.04.2004, to the defendant calling upon it to comply the terms and conditions of the agreement entered between the parties or to return back the plaintiff's money. Simultaneously, the plaintiff also issued legal notice dated 20.03.2014 & 18.04.2014, to the defendant to the same effect. Despite service of the legal notice, no response was received by the plaintiff from the defendant's side, hence, the present suit.
3. In response to the summons of the suit, the defendant filed the written statement admitting the oral agreement entered between the parties to purchase/sell the property, however, the defendant has stated that the agreed sale consideration amount to sell/purchase the property was Rs. 45 lacs but not Rs. 33 lacs as alleged by the plaintiff. The defendant has stated that bayana money of Rs. 4,50,000/ was paid by the plaintiff being 10% of the sale consideration amount. The defendant has admitted recovery of total Rs. 8,00,000/ from the plaintiff as earnest money. The defendant has also stated Brij Anand Vs. M/s ACE Projects Page 3 of 10 that it is still ready to execute the sale deed after accepting the balance payment of Rs. 37 lacs. It is alleged that the plaintiff could not arrange the balance sale consideration amount of Rs. 37 lacs, therefore, he tried out to wriggle out from the oral agreement entered between the parties by filing this false suit.
4. Replication filed by the plaintiff reiterating and reaffirming the same facts as stated by him in the plaint.
5. After completion of pleadings, vide order dated 09.08.2017, the following issues were framed:
(i) Whether the suit has been properly valued for court fees?OPD.
(ii) Whether the plaintiff is entitled to recover suit amount from the defendant, as prayed for?
OPD.
(iii) Whether the sale consideration of the suit
property of Rs. 33 lacs as claimed by the
plaintiff or it was Rs. 45 lacs as claimed by the
defendant?OP Parties.
(iv) Whether the plaintiff is entitled for pendentelite
and future interest till realization?OPP.
(v) Relief.
PLAINTIFF'S EVIDENCE:
6. The plaintiff has examined only himself as PW1 in his evidence by Brij Anand Vs. M/s ACE Projects Page 4 of 10 filing affidavit in evidence reiterating and reaffirming the same facts as stated by him in his plaint. Plaintiff/PW1 has relied upon the following documents:
(i) Ex. PW1/1 Photocopy of sale deed
dated 20.01.2014, executed
between A.C.E Project and
Deepak Kumar;
(ii) Ex. PW1/2 Photocopy of email dated
20.03.2014, sent to the
partner of the defendant;
(iii) Ex. PW1/3 Copy of legal notice dated
29.03.2014;
(iv) Ex. PW1/4 Postal receipt;
(v) Ex. PW1/5 Copy of reminder notice dated
19.04.2014;
(vi) Ex. PW1/6 Postal receipt;
(vii) Ex. PW1/7 Affidavit of evidence u/s 65
B of Indian Evidence Act.
7. The defendant has not led any evidence instead on 15.04.2019, the defendant's counsel gave the statement that the defendant does not want to lead any evidence and on the request of the defendant's counsel, the evidence of the defendant was closed by the court.
Brij Anand Vs. M/s ACE Projects Page 5 of 10 Plaintiff/PW1 was cross examined by defendant's counsel.
8. I have heard counsels for the parties and perused the record. Written synopsis filed by the defendant. Same are perused. My issuewise findings are as follows: Issue no. 1: Whether the suit has been properly valued for court fees?OPD.
9. The onus to prove this issue was upon the defendant. The plaintiff has valued the suit for the purpose of jurisdiction and court fees in para no. 11 of the plaint as per which he has valued the suit for both the purpose of jurisdiction and court fees on the amount of Rs. 8,23,500/, which he is claiming in the suit. As per Section 7 (I) of Court fees Act, the money suits are valued for the purpose of court fees on the amount claimed in the suit. The plaintiff has claimed the amount of Rs. 8,23,500/ in the suit on which he has rightly paid the court fees. Similarly, as per Section 8 of the Suit Valuation Act, he has correctly valued the suit for the purpose of jurisdiction of this court. This issue is accordingly decided in favour of plaintiff and against the defendant.
Issue no. 3: Whether the sale consideration of the suit property of Rs. 33 lacs as claimed by the plaintiff or it was Rs. 45 lacs as claimed by the defendant?OP Parties.
10. In view of the nature of the suit that it is only for recovery of earnest money admittedly paid by the plaintiff to the defendant, this court is of the opinion that for deciding the real controversy between the parties, this issue is not relevant to be decided. The dispute of sale consideration amount would Brij Anand Vs. M/s ACE Projects Page 6 of 10 have been relevant to be decided, had it been a suit for specific performance of agreement to sell since in that case it would have been necessary to decide who is the defaulting party in breach of the agreement. But, here the plaintiff is only claiming return of his earnest money, therefore, as already mentioned that the dispute of sale consideration amount is irrelevant since in any case if the transaction was not completed the seller (defendant herein) is bound to return the earnest money of the plaintiff as there is no defaulting or foreclosure clause in the agreement entered between the parties for the property. However, since this issue has been framed by the Ld. Predecessor, the court proceeds to decide this issue.
11. Admittedly, the parties entered into an oral agreement to sell for the property bearing Apartment no. 3, 1 BHK having an area of 818 sq. ft. located at the ground floor, Pool Facing, BBlock. The only dispute between the parties is regarding the sale consideration amount as the plaintiff is stating that the sale consideration amount to purchase said property was Rs. 33 lacs, on the other hand, the defendant is alleging that the agreed amount to sell the property was Rs. 45 lacs. It is also not disputed that Rs. 8,23,500/has already paid by the plaintiff to the defendant as earnest money to purchase the suit property. The time was not the essence to complete the transaction, therefore, it had to be completed within a reasonable time. As already indicated hereinabove that the parties were not at dispute on any issue except on the amount of sale consideration.
12. The plaintiff has stated that at the time of entering into the oral Brij Anand Vs. M/s ACE Projects Page 7 of 10 agreement to sell i.e. in October2013, the representative of the defendant informed him that defendant is in the process of selling one more similarly situated flat for sale consideration amount of Rs. 33 lacs, therefore, the plaintiff agreed to purchase another flat for the same amount of Rs. 33 lacs. However, later on the defendant started claiming the sale consideration amount to be Rs. 45 lacs. The defendant has stated that the sample sale deed of another flat was shown to the plaintiff in January2014, only with the purpose to acquaint the plaintiff with the terms and conditions of the agreement intended to be entered between the parties to the suit, however, the plaintiff was told that the sale consideration amount for the flat, he intends to purchase, would be Rs. 45 lacs. The defendant has alleged that since beginning of the agreement, the sale consideration amount was agreed to be Rs. 45 lacs, therefore, the plaintiff paid 10% of Rs. 45 lacs i.e. Rs.4,50,000/ as earnest money. During the cross examination of plaintiff/PW1 conducted on 13.03.2018, he has categorically admitted that on 09.12.2013, he sent an email to defendant offering to pay 10% of booking amount and requested 6 months time to make the balance payment and after the sale email only, he handed over a cheque of Rs. 4,50,000/ to the defendant. He has also admitted that the sample sale deed was demanded by him from the defendant in January2014, after making the payment of Rs. 4,50,000/ through cheque. These admissions by the plaintiff clearly show that the sale consideration amount agreed between the parties in the oral agreement to sell was Rs. 45 lacs, therefore, the plaintiff paid 10% earnest money of the sale consideration amount of Rs. 45 lacs. Even, during the Brij Anand Vs. M/s ACE Projects Page 8 of 10 course of trial, the plaintiff filed one application u/O 11 CPC, seeking certain interrogatories from the defendant particularly, the booking done by the defendant between October2013 to December2014. In reply to the said application, the defendant placed on record only one sale deed dated 13.11.2014 of similarly situated flat showing the sale consideration amount of Rs. 45,50,000/. Be it the sale consideration amount of Rs. 33 lacs or Rs. 45 lacs, the fact of the matter remains that the sale transaction could not be completed between the parties due to the dispute arose between them on the sale consideration amount. There is no defaulting/foreclousre clause in the admitted oral agreement to sell entered between the parties, hence, the defendant is liable to return the earnest money admittedly paid by the plaintiff to it. In the written statement, even in the written arguments filed by the defendant, it has stated that it is still ready to execute the sale deed on the amount of Rs. 45 lacs but this contention of the defendant cannot be accepted by the court since none of the party has come in the court for the specific performance of agreement to sell entered between the parties. Had the parties have intention to complete the transaction, they should have come in the court seeking the proper relief available to them in law. This issue is accordingly decided.
Issue No. 2: Whether the plaintiff is entitled to recover suit amount from the defendant, as prayed for?OPD.
& Issue no. 4: Whether the plaintiff is entitled for pendentelite and future interest Brij Anand Vs. M/s ACE Projects Page 9 of 10 till realization?OPP.
13. In view of the discussion on issue no. 3 that the sale transaction could not be completed between the parties, therefore, the defendant is liable to return the earnest money admittedly paid by the plaintiff to it, the plaintiff is held entitled to recover the suit amount from the later. So far as, the interest part is concerned, it seems that the plaintiff was at default in misunderstanding the sale consideration amount, therefore, at first instance defendant is only directed to clear the principal amount of Rs. 8,00,000/ to the plaintiff within a month from today. However, if the defendant fails to clear the payment of principal amount within the given time, then the same will carry pendentelite and future interest @ 4% per annum till realization alongwith the cost of the suit.
RELIEF: In view of aforesaid discussion, the suit of the plaintiff is decreed to the tune of Rs.8,00,000/ alongwith pendentelite and future interest @ 4% per annum till realization alongwith the cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2019.10.18
14:48:31 +0530
Announced in the open court (Charu Aggarwal)
on 11th October, 2019 ADJ03/West/THC/Delhi
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