Delhi District Court
Sh. Rajesh Mittal vs M/S. Tdi Infrastructure Ltd on 14 January, 2016
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGE
II (CENTRAL DISTRICT): TIS HAZARI COURTS: DELHI
CS No. 179/2013
Unique Case ID No.: 02401C0099222011
1. Sh. Rajesh Mittal
2. Sh. Manoj Mittal
Both Sons of Sh. S.K. Mittal
Having Address at:
No. 5568, Gandhi Market,
Sadar Bazar, Delhi - 110006
......... Plaintiffs
Versus
M/s. TDI Infrastructure Ltd.
Formerly known as
Intime Promoters Pvt. Ltd.
Through its Director/ Principal Officer
Having its Registered Office at
9, Kasturba Gandhi Marg, New Delhi - 01
Also at:
Its Collection Office at:
M39, 2nd Floor, Connaught Circle,
Opp Supper Bazar, New Delhi - 01.
And also at:
G7, Ground Floor, Connaught Circle,
New Delhi - 110001
......... Defendant
Date of Institution: 04.03.2011
Judgment Reserved on: 08.01.2016
Judgment Pronounced on: 14.01.2016
Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 1
JUDGMENT (Oral):
(1) This suit for Mandatory, Permanent and Temporary Injunction has been filed by the plaintiffs Rajesh Mittal and Manoj Mittal against the defendant TDI Infrastructure seeking directions to the defendant to withdraw their illegal and arbitrary claim made by them vide their letter dated 10.02.2010, 10.08.2010 and 28.09.2010 along with the wrong and illegal statement of account and schedule of payment sent there with and correct the same in terms of settlement made on 02.02.2008 and also seeking directions to the defendant company to handover the possession of Plot No. I116, measuring about 500 square yards, TDI City, Kundli, Sonepat, Haryana to the plaintiffs on accepting the actual outstanding amount due against the plaintiff i.e. 10% of the total basic sale price of the plot. The plaintiffs are also directions to restrain the defendant company along with their principal officer, Directors, Agents etc. from threatening to cancel the plot or from cancellation of the allotment of the aforesaid plot.
Plaintiff's Case:
(2) The case of the plaintiffs is that in view of the defendant's offer by advertisement and newspaper, the plaintiffs approached the defendant Company for booking of a Plot measuring about 500 sq. yards (418.6 sq. meters) in TDI City, Kundli, Sonepat, Haryana, at the address of the Defendant Company at 9, Kasturba Gandhi Marg, New Delhi110001, Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 2 where the defendant Company offered the Plaintiffs to get a booking of the Plot measuring 500 sq. yards transferred to their names from the persons namely Sh. Govind Parsad Sharma and Ms. Pushpa Sharma, who were interested in transferring their booking of the Plot with the defendant Company. According to the plaintiffs, after fulfilling the formalities as required by the defendants and making payments by the plaintiffs at the registered office of the defendant at Delhi for the said purpose, the booking of the plot No. 2075 dated 10.10.2005 had been duly transferred in the names of the plaintiffs in the month of January, 2006 by making Transfer endorsement on the Booking Receipt of the then First Allottee. It is pleaded that the defendant Company thereafter issued an Allotment Letter dated 23.01.2006 with respect to the plot in question and then got Transfer Certificate from the plaintiffs and asked them to make the payment of the plot @ Rs.7,750/ per sq. yard, i.e. a total Basic Sale Price of Rs.38,75,000/ along with External Development Charges (EDC) @ Rs.
790/ per sq. yard i.e. total EDC of Rs.3,95,000/, gross total amounting to Rs.42,70,000/, which amount had to be paid in installments basis as per the Payment Schedule given. It is further pleaded that as per the Payment Schedule the plaintiffs have already paid Rs.34,87,500/ towards the Basic Sale Price and Rs.3,95,000/ towards the total EDC, i.e. total payment of Rs.38,82,500/ has been duly made admittedly as per the Schedule of Payment sent by the Defendant Company. Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 3 (3) It is further pleaded that on 02.02.2008 the defendant company called the plaintiffs at their office in New Delhi where one Authorized Representative of the defendant had given the plaintiff a revised schedule of payment along with a letter dated 02.02.2008 at about 11:30 AM and the plaintiffs asked the defendant's representative to settle and reconcile the accounts regarding the payments made and remaining to be paid, finally. According to the plaintiffs, after checking and going through all the records, the said Authorised Representative of the defendant settled the amount after Settlement of the Accounts in writing and signed by him to be Rs.21,85,000/, including all the additional charges which were to be paid, e.g. Late payment charges, etc. It is also pleaded that the plaintiffs had immediately given five cheques to the defendant of (i) Rs.5,55,000/,
(ii) Rs.5,05,000/; (iii) Rs.5,00,000/; (iv) Rs.5,80,000/; and, (v) Rs. 25,000/, towards 90% payment of Basic Sale Price of the Plot and 100% payment of the EDC. It is further pleaded that all the cheques have been encashed by the defendant and even thereafter, the defendant raised illegal and exorbitant claims vide Letters dated 21.08.2008 and 29.08.2008 which are completely contradictory to the above said Settlement arrived at with their own Authorised Representative at their Offices and again the defendant sent another letter dated 07.11.2008 claiming EDC completely contrary to the law and arbitrarily. According to the plaintiffs, although they tried to contact the defendant company and apprised them about the due payment of the settled amount fully and finally and to withdraw the Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 4 illegal and uncalled for claims, yet the defendant company again sent a letter dated 10.02.2010, claiming manipulated and wrong amount of Rs. 9,56,943/ as arbitrarily alleged outstanding dues towards the Basic Sale Price and the EDC. It is further pleaded that inspite of assurance by the defendant Company to rectify their records, they had again sent another letter dated 10.08.2010 threatening the plaintiffs to cancel the provisional allotment of the plot in suit made in favour of the plaintiff due to non payment of baseless, illegal and arbitrary dues. According to the plaintiffs, the defendant also threatened the plaintiffs to refund the amount back to the plaintiffs which is deposited by them with the defendant. It is further pleaded that the defendant Company had finally settled with the plaintiffs all their accounts regarding payments vide Revised Schedule dated 02.02.2008 by which the defendant company already admitted and had also offered possession of the plot in question, to the plaintiff yet with a view to blackmail and extort extra money on baseless grounds, the defendant Company raised knowingly illegally and arbitrarily extra claims of amounts to the tune of Rs.10,28,826.80/ by way of letter dated 10.08.2010 and therefore the defendant Company, has no right to cancel he allotment of the plot made to the plaintiffs and therefore the plaintiffs were compelled to sent a legal notice to the defendant on 31.08.2010, but despite service of the same the defendant totally failed to do the needful as per law and hence the present suit has been filed.
Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 5 Defendant's Case:
(4) Pursuant to the filing of the suit, summons were issued to the defendant who put in its appearance and filed a detail Written Statement wherein a Preliminary Objection has been raised that the suit does not disclose any cause of action and hence the suit is liable to be dismissed under Order VII Rule 11 CPC. It is further pleaded that the suit is liable to be dismissed in view of the fact that the demands of the EDC being raised by the defendant are the charges which are legally payable by them to the Government of Haryana for obtaining the licence and hence the EDC are subject to change and the same was duly communicated to the plaintiff at the time of registration of the plot in question. It is also pleaded that the EDC keeps on fluctuating and the same are adjusted in the payments of the consumer like the plaintiff in the present case as per the demands raised by the Government from time to time. It is further pleaded that the plaintiff has not approached the Court with clean hands and has suppressed material facts. According to the defendant, the suit is liable to be rejected as the plaintiff is not entitled to any relief due to his own wrongs as the plaintiff has not honoured the terms and conditions of the contract and has not made the balance payments required to be paid by the plaintiff. It is further pleaded that the suit is bad for misjoinder and non joinder of the parties. It is also pleaded that the plaintiff has not complied with the terms/ conditions stipulated in the Registration Form which was initially filled up by the plaintiff and has not made the balance payment as Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 6 per the Schedule annexed with the Registration Form and hence the plaintiff is not entitled to the relief claimed in the present suit. It is further pleaded that nonpayment of the balance payment by the plaintiffs resulted into heavy losses to the defendant as well as other customers of the defendant and that the plaintiffs concealed material facts and the suit is barred under Section 41 (h) of the Specific Relief Act. It is also pleaded that since the plaintiffs have violated the terms and conditions of the contract and have not paid the amount to the defendant despite having been reminded vide various letters whereby the plaintiff was asked to make the due payment but the plaintiff has not made the same and has made voluntarily default. It is further pleaded that the suit of the plaintiff is liable to be dismissed being barred by limitation.
(5) On merits the defendant has denied all the allegations made against them by the plaintiff. It is pleaded that after going through each of the details as regards the payment to be made, the plaintiffs have accepted the allotment of the said plot and the schedule of payments duly provided that the EDC charges shall be charged as per the demands raised by the Director, Town and Country Planning, Haryana but the plaintiff has failed to make the payment of the said EDC charges as agreed between the plaintiff and the defendant. According to the defendant, the plaintiffs remained negligent in making the timely payment as provided in the schedule of payment and never made the payment of the EDC charges as raised by the defendant company from time to time. It is further pleaded Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 7 that the plaintiffs were entitled to the possession of the plot in question after clearing all the dues which the plaintiff was called upon by the defendant a number of times but the plaintiffs always defaulted in making the payment on time and hence the possession was not handed over to the plaintiffs. It is pleaded that no illegal or unwanted demand has been raised by the defendant company in respect of the plot in question.
ISSUES FRAMED:
(6) On the basis of the pleadings of the parties, vide order dated 09.11.2011 the Ld. Predecessor of this Court has settled the following issues:
1. Whether the suit of the plaintiff is bad for nonjoinder or misjoinder of necessary party? (OPD)
2. Whether the plaintiff has not complied with the terms and conditions as stipulated in the registration form in respect to the allotment of plot bearing no. I116, TDI City, Kundli, Sonepat, Haryana and has not made the balance payment as per the Schedule of Payment as was annexed with the registration form? (OPD)
3. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for in the prayer clause (A)? (OPP)
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in the prayer clause (B)? (OPP)
5. Relief.Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 8
EVIDENCE:
(7) In order to prove his case the plaintiff no.1 Rajesh Mittal has examined himself as his sole witness as PW1 whereas the defendant has examined its Authorized Representative Sh. Paras Arora as DW1.
(8) For the sake of convenience, the details of the witnesses examined by both the parties and their depositions are put in a tabulated form as under:
Sr. Name of Witness Deposition No. Witness of plaintiff: 1. Rajesh Mittal (PW1) PW1 Rajesh Mittal in his examination in chief by
way of affidavit Ex.PW1/A has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the following documents :
1. Five receipts which are Ex.PW1/1 (colly).
2. Allotment letter dated 23.01.2006 which is Ex.PW1/2.
3. Revised annexure dated 02.02.2008 which is Ex.PW1/3.
4. Receipts dated 02.02.2008 which are Ex.PW1/4 to Ex.PW1/8.
5. Reminder dated 29.08.2008 which is Ex.PW1/9.
6. Revised annexure dated 29.08.2008, which is Ex.PW10.
7. Final statement of account dated 07.11.2008, running into two pages, which is Ex.PW1/11.
8. Final reminders dated 10.01.2009 & 16.05.2009 which are Ex.PW1/12 & Ex.PW1/13 respectively.Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 9
9. Letter dated 22.06.2009 which is Ex.PW1/14.
10. Reminders dated 18.07.2009, 24.07.2009 and 24.08.2009 which are Ex.PW1/15 to Ex.PW1/17.
11. Letter dated 10.02.2010 running into three pages, which is Ex.PW1/18.
12. Urgent Letter dated 10.08.2010, running into three pages collectively, which is Ex.PW1/19.
13. Letters, receipts, revised annexures etc. running into 11 pages collectively, which are collectively Ex.PW1/20.
14. Photocopies of two cheques dated 27.09.2005 & photocopy of a letter written by Govind Prasad Sharma to the defendant as well as photocopy of ScheduleI are collectively MarkA. In his cross examination, the witness PW1 has deposed on the following aspects:
1. That the plot in question initially was not alloted in their favour by the defendant company and Govind Parshad Sharma and Pushpa Sharma had dealt with the defendant company in respect of the plot in question in January, 2006 after which they had a dealing with Gobind Parshad Sharma and Pushpa Sharma at the instance of defendant.
2. That there was nothing in writing from the side of defendant company to interact with Gobind Parshad Sharma and Pushpa Sharma.
3. That the defendant company had told and shown the schedule of payment to be paid by them (plaintiffs) to the defendant company and that of the above said persons.
4. That the terms and conditions agreed and settled between Gobind Prashad Sharma and Pushpa Sharma with the defendant company were not conveyed to them at the time of purchase of plot in question.Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 10
5. That there was a gap of about 22½ month regarding the deal between the plaintiffs and Gobind Parshad Sharma with the defendant company.
6. That he does not remember as to when he had visited the office of defendant company after January, 2006.
7. That he cannot say as to from January, 2006 to December, 2006, he had visited the office of defendant company how many times.
8. That he cannot tell if they had made the payment against receipt of any letter from the defendant company or they have gone of their own but the payment was made by them as per schedule of payment.
9. That he cannot tell the exact date as to when the allotment of plot in question was made by the defendant company but it was in the year 2006.
10. That the letter dated 10.02.2006 which is Ex.PW1/DX was handed over to them and they were directed to make the payment according to this letter and the same.
11. That vide letter dated 13.05.2006 which is Ex.PW1/DX1, he was asked to make the payment and they (plaintiffs) also acknowledge vide Ex.PW1/DX2.
12. That they (plaintiffs) have also received letter dated 30.05.2006 which is Ex.PW1/DX3, by way of which they were asked to make the payment.
13. That they (plaintiffs) also received a letter dated 16.09.2006 which is Ex.PW1/DX4 as a reminder to make the payment.
14. That they (plaintiffs) have also seen revised annexure dated 16.09.2006 which is Ex.PW1/DX5.
15. That vide letter dated 19.04.2007 which is Ex.PW1/DX6 they (plaintiffs) were asked to Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 11 make the payment being final reminder.
16. That they cannot produce the original of letter Ex.PW1/3.
17. That he has not made compliance of letter Ex.PW1/9.
18. That they could not meet any Director on 02.02.2008 when they visited the office of defendant.
19. That the amount of Rs.21,85,000/ was not confirmed in his presence by any senior executive of the defendant company nor did they (plaintiffs) meet any officer on that day.
20. That they (plaintiffs) have not challenged the letter Ex.PW1/9 by way of giving any legal notice or by any civil suit in the court of law.
21. That they did not challenge the letter Ex.PW1/11 and never pointed out in writing the mistakes of the defendant company committed in letter Ex.PW1/11, but they had conversation on telephone for both letters.
22. That they did not initiate any legal action against the defendant company for issuing the letter Ex.PW1/18.
23. That they (plaintiffs) did not give any reply to this letter.
24. That they did not file any injunction suit after having receipt letter Ex.PW1/18 & Ex.PW1/19 against the defendant company.
25. That they have only filed the present suit and besides this they have not initiated any action against the defendant company before any court.
26. That they only spoke on telephone from 10.02.2010 to 10.08.2010 and except this, they have not initiated any action against the defendant company for issuing letter Ex.PW1/18 & Ex.PW1/19.
27. That he cannot tell the date, month or year when the notice as referred in para 17 of his Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 12 affidavit Ex.PW1/A was sent to the defendant company at the address of Kasturba Gandhi Marg, Connaught Place.
Witness of the defendant
2. Paras Arora (DW1) DW1 Paras Arora has in his examination in chief by way of affidavit Ex.DW1/A has corroborated what has been earlier stated in the written statement. He has placed his reliance on the Original Board Resolution which is Ex.DW1/1.
In his crossexamination, the witness DW1 has deposed on the following aspects:
1. That he has not brought his authorization letter issued by the company and the resolution passed by the company is in his favour but he has not brought the original minute book of the resolution passed by the company.
2. That he has not brought the record in connection with this case from the defendant company.
3. That the document Ex.PW1/9 is signed by Mr. Sharad Mehta at point A also the authorized signatory of the company.
4. That similarly the letter dated 19.04.2007 and letter dated 02.02.2008 Ex.PW1/DX6 and Ex.PW1/3 are signed by the same authorized signatory.
5. That he cannot tell the signature of the person who signed on behalf of the company at point B1 and B2 on Ex.PW1/3 nor can he tell the written amount and settlement made by whom on behalf of the company at point C1 and C2 on Ex.PW1/3.
6. That the revised annexure Ex.PW1/3 not sent to the plaintiff in his presence.
7. That he was not present when the alleged settlement in Ex.PW1/3 at point C1 and C2 had taken place.Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 13
8. That the receipts regarding the payment made by the plaintiff through cheques Ex.PW1/1 (Colly) have been signed by the authorized signatory.
9. That the receipt Ex.PW1/4 to Ex.PW1/8 are signed by the authorized signatory of the defendant company.
10. That he cannot say whether the payments made by the plaintiff through Ex.PW1/4 to Ex.PW1/8 are in terms of the settlement made between the plaintiff and the defendant vide Ex.PW1/3 at point C1 and C2.
11. That he is not aware whether the above said payment through cheques had been duly encashed by defendant or not.
12. That he has no personal knowledge as to how much amount is due against the plaintiff towards the principle and towards EDC and other charges and the same is mentioned in the reminders sent to the plaintiff and is a matter of record.
13. That he cannot tell as to how much EDC charges have been paid by the defendant company to the concerned govt. agency and when.
14. That he cannot say whether the plaintiffs have already deposited/paid 90% of the principle amount of the price of the plot and 100% of EDC charges to the defendant company.
15. That he has no personal knowledge regarding the payments made by the plaintiff to the defendant company as stated above.
16. That he cannot say whether the plaintiffs were to make the balance payment of 10% after the defendant company had offered/given the possession of the plot to the plaintiffs.Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 14
OBSERVATIONS AND FINDINGS:
(9) I have heard the arguments advanced before me by the Ld. Counsels for both the parties and the written memorandum of arguments filed by them. I have also gone through the testimonies of the various witnesses and the material on record. My findings on the various issues are as under:
Issue No.1: Whether the suit of the plaintiff is bad for nonjoinder or misjoinder of necessary party?
(10) Onus of proving this issue was upon the defendant. In their written statement the defendant has raised a preliminary objection that the suit is bad for non joinder/ misjoinder of the parties, which is totally vague and non specific. No where in the written statement or in the evidence the defendant has specified as to who was the necessary party and how the suit is bad for misjoinder.
(11) This being the background, the issue is accordingly decided in favour of the plaintiffs and against the defendant.
Issue No.2: Whether the plaintiff has not complied with the terms and conditions as stipulated in the registration form in respect to the allotment of plot bearing no. I116, TDI City, Kundli, Sonepat, Haryana and has not made the balance payment as per the Schedule of Payment as was annexed with the registration form?
Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 15 Issue No.3: Whether the plaintiff is entitled to decree of mandatory injunction as prayed for in the prayer clause (A)? Issue No.4: Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in the prayer clause (B)? (12) All the issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of proving the issue no.2 was upon the defendant and that the issue no.3 and 4 was upon the plaintiffs.
(13) The plaintiff no.1 Rajesh Mittal has examined himself as PW1 as his sole witness whereas the defendant has examined its Authorized Representative Sh. Paras Arora as their sole witness as DW1. The case of the defendant is that the plaintiffs have not complied with the terms and conditions of the allotment whereas the plaintiff no.1 Rajesh Mittal who has examined himself as PW1 has placed on record the various documents issued by the defendant and the various communication which have taken place between the parties, most of which documents have not been disputed. The plaintiff has proved the initial payment receipt and transfer endorsement of the plot which is Ex.PW1/1 and the allotment letter dated 23.01.2006 which is Ex.PW1/2; revised schedule Annexure of payments dated 02.02.2008 which is Ex.PW1/3; five cheques towards full and final payment to honour the settlement entered into between the parties which cheques are Ex.PW1/4 to Ex.PW1/8 and even duly encashed by the Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 16 defendant which they have not been able to controvert and also the various communication which are Ex.PW1/9 to Ex.PW1/20.
(14) I have gone through the various communications between the parties and the documents placed before me. While the case of the plaintiff is that the full and final payment has been received by the defendant and no balance remains, the case of the defendant is that there has been a violation of the terms and condition by the plaintiff and certain payment yet remains to be paid. At the very Outset I may observe that the defendant did not deny that there was a settlement between them and the plaintiffs pursuant to which the revised schedule of payment dated 02.02.2008 which is Ex.PW1/3 was prepared and duly acted upon him when the plaintiff issued five cheques Ex.PW1/4 to Ex.PW1/8 which were encashed by the defendant. The communication being made by the defendant to the plaintiff thereafter in a routine manner were in clear contradiction to the terms of settlement entered into between the plaintiff and the defendant. The plaintiff before this Court is a consumer/ customer of the defendant no.1 and had entered into an agreement between them which has been duly acted upon. Though the subject matter of the agreement is situated at Kundli, Sonepat, Haryana, the said agreement was finalized at the registered office of the defendant no.1 at Kasturba Gandhi Marg, Delhi. The defendant company has also their Collection Office at M39, Second Floor, Connaught Circus, Opposite Super Bazar, New Delhi and also at G7, Ground Floor, Connaught Circus, New Delhi. Therefore, Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 17 in terms of the provisions of Section 16 of CPC this Court will have the territorial jurisdiction to try the present suit which provisions as under:
"16. Suits to be instituted where subject matter situate-
xxx Provided that a suit to obtain relief respecting, or compensation for wrong to immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain.
Explanation: In this section "property" means property situate in India."
(15) Further, as regards the argument relating to the maintainability of the suit in the present from for Mandatory Injunction is concerned, I may observe that admittedly the plaintiffs had fulfilled their part of the obligations by making due payments of 90% towards the Basic Sale Price and 100% payments towards the External Development Charges vide Settlement for Payments entered into between the parties dated 02.02.2008, in the Schedule of Payments itself, which is Ex.PW1/3. Therefore, now it is the defendant who has to oblige the plaintiff by delivering the possession of the plot where after, only the plaintiff would have to pay the remainder of the 10% of the Basic Sale Price along with Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 18 the requisite Stamp Duty, but the defendant has failed to fulfill their end of the contract and obligation. It is also evident, that the plot in question has already been allotted to the plaintiff who is in constructive possession of the same as evident from the stipulation in the documents before me i.e. allotment letter dated 23.01.2006 Ex.PW1/2 (not disputed by the defendant).
(16) On 03.09.2015 this Court had put the following queries to the parties and directed their response on the same:
1. What is the existing position of the plot in question?
Whether the allotment has been cancelled or it continues to be in the name of the plaintiff? (To be clarified by the defendant).
2. What was the original agreement and the payment plan/ schedule as opted by the original allottee/ predecessor in interest of the plaintiff? (To be clarified both by the plaintiff and the defendant).
3. What is the total amount of payment received by the defendant till date from the plaintiff/ predecessor in interest? Whether the complete installments as per the original schedule has been paid or not? The date on which the payments have been made and the details thereof shall be placed before this Court. The defendant shall place the entire statement of account of the payment received till date and the interest there upon as also the amount paid towards booking and installments thereafter. (To be clarified both by the plaintiff and the defendant).
Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 19
4. What are the outstanding dues (only the principal amount and not the interest component)? (To be clarified by the defendant).
5. How much were the EDC charges levied in respect of the plot in question by the Government of Haryana and since when? The defendant shall also inform whether any interest was claimed from the plaintiff on the EDC charges being claimed by them? If yes, why? The defendant shall also inform if the defendant company has made the payment of the EDC charges to Haryana Government? (To be clarified by the defendant).
6. Was any constructive possession of the plot given to the plaintiff? If yes, when? (To be clarified by the defendant).
7. The defendant to submit the details of the Holding charges imposed upon the plaintiff and since when these holding charges were imposed and at what rate? (To be clarified by the defendant).
(17) Pursuant to the same, only the plaintiffs have placed their response on record but the defendant, despite repeated opportunities have not filed any response to the said queries, for which an adverse inference is drawn against them.
(18) At the very Outset, I may observe that it is clear from the evidence on record that the plot in question ie. I116, TDI City, Kundli, Sonepat, Haryana is till stands allotted in the name of the plaintiffs vide Ex.PW1/2 and there is nothing on record to show that the defendant has Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 20 not cancelled the same during the pendency of the suit. (19) Secondly, when the defendant was specifically asked by this Court to place on record the original payment schedule the same was withheld and no such agreement has been placed on record by the defendant although the same was relied upon by them and only the terms and conditions were written on the backside of the initial payment receipt/ allotment letter Ex.PW1/1 and as cleared by the plaintiff on page number 35 & 36 of Ex.PW1/2 which was not signed by any of the parties. (20) Thirdly, it has also been clarified by the plaintiff that the initial payment schedule has not filed by the defendant but it is the same filed by the plaintiff which is MarkA at page no.32 of Ex.PW1/20 (Colly.) which clearly shows the cost of the plot to be Rs.38,75,000/ showing application money to be Rs.7,75,000/ and external development charges Rs.650/ per sq. yds. i.e. Rs.543 only per sq. meter and at the bottom written as the EDC charges shall be charged as per the actual in terms of the demand of Director Town and Country Planning. Although the defendant received the 100% EDC charges (instead of 650 per sq.yds.) at enhanced Rs.790 per sq. yds. yet they failed to show or prove that how much amount the EDC charges they paid to the Director Town Country Planning, which fact is clearly mentioned in the revised annexure Ex.PW1/3 (Colly.) at page 49 where it is shown that the defendant finally settled with the plaintiff that plaintiff should pay 90T of basic sale price Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 21 and 100% of EDC Charges amounting to Rs.38,82,500/ and has shown Rs.17,47,500/ deducted from the same being already paid therefore Rs. 21,35,000/ plus Rs.50,000/ i.e. interest settled to be due against the plaintiff. In the left side of the revised annexure, it is settled that if the plaintiff shall pay uptill 16.2.2008 he should paid Rs.21,85,000/ and if he will pay by 15.3.2008, he has to pay Rs.21,60,000/. The plaintiffs have successfully proved having paid the entire settled balance dues of Rs. 21,60,000/ by cheques Ex.PW1/4 to Ex.PW1/8 all dated 15.3.2008 on 02.2.2008 itself total amounting to Rs.21,60,000/ and hence admittedly only 10% of the basic sale price of the plot remained to be paid by the plaintiff at the time of delivery of possession of the plot by the defendant and at the time of registration of sale document.
(21) Fourthly, the defendant has failed to place on record, establish and justify the outstanding dues which they are alleging against the plaintiff. Admittedly the defendants are the builders and having entered into an agreement with the customers/ consumers i.e. plaintiffs. A builder who delays the handing over of the possession of a plot or fails to comply with the terms and conditions of an agreement/ allotment, entitles the buyer/ purchaser/ customer of such plot to claim damages for any financial loss or physical inconvenience suffered by him on account of the same for which the builder can be made liable. In the present case there is no dispute on this aspect that the plaintiffs are the Customers/ Clients of the Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 22 defendant being the purchasers and the constructive possession of the plot in question is with the plaintiffs, as evident from the allotment letter Ex.PW1/2.
(22) Fifthly the plaintiffs on their part have proved the payment of entire amount and the EDC charges except the 10% of the basic sale price which is yet to be paid. This Court had specifically put a query to the defendant and solicited a response as to how much were the EDC charges levied in respect of the plot in question by the Government of Haryana and since when. However, despite being granted sufficient time, the defendant have not responded to the same and have also failed to prove and justify the said demand as also same so as to justify the connected interest being claimed by them on the EDC charges from the plaintiffs, which they claimed to have paid to the Government of Haryana. In fact, the defendant have not disputed that the said charges have been received from the plaintiff. If that be so, then how additional charges can be levied by them and under what head? The defendants who are the builders are not holy cows whose conduct cannot be questioned by their clients/ purchasers. In fact, every customer/ purchaser is entitled to seek an explanation and justification from the builder with regard to the additional charges being levied on them later.
(23) Sixthly, the defendants were also directed by this Court to provide the details of the Holding Charges which they have imposed upon the plaintiff and since when, on which again they have not given any Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 23 response and for this reluctance/ failure of the defendant to provide these details to this Court, an adverse inference is drawn. (24) Lastly, the plaintiff on their part have proved having deposited the total agreed amount and also the amount demanded by the defendants over the original amount. They have successfully established that the demand raised by the defendant vide letters dated 10.02.2010, 10.08.2010 and 29.08.2010 is without any justification.
(25) Hence, this being the background, I hereby hold that the plaintiff is entitled to relief of Mandatory and Permanent Injunction as asked for in the plaint and the defendants are directed to withdraw their demands for overdue and holding charges and to hand over the actual physical possession of the Plot No. I116, measuring about 500 square yards, TDI City, Kundli, Sonepat, Haryana to the plaintiffs, within a period of Sixty Days from today after accepting the actual outstanding amount dues against the plaintiffs which are admittedly to the tune of 10% of the total basic sale of the plot.
(26) Further, I restrain the defendant company along with their principal officer, Directors, Agents, etc. from cancelling the allotment of the plot in question and also from creating any third party interest in the plot in question.
(27) All the issues are decided in favour of the plaintiffs and against the defendant.
Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 24 Relief:
(28) In view of my findings, the issues are decided in favour of the plaintiff and I hereby hold that the plaintiff is entitled to relief of Mandatory and Permanent Injunction as asked for in the plaint and the defendants are directed to withdraw their demands for overdue and holding charges and to hand over the actual physical possession of the Plot No. I116, measuring about 500 square yards, TDI City, Kundli, Sonepat, Haryana to the plaintiffs, within a period of Sixty Days from today after accepting the actual outstanding amount dues against the plaintiffs which are admittedly to the tune of 10% of the total basic sale of the plot.
(29) In the meanwhile, I also restrain the defendant company along with their principal officer, Directors, Agents, etc. from cancelling the allotment of the plot in question and also from creating any third party interest in the plot in question.
FINAL CONCLUSIONS:
(30) Of late, there has been a spurt in the litigations where the perspective house owners have been compelled to rush to the Courts of Law while trying to grapple with the incorrigible attitude of the builder whose sole intentions are to make money at any costs even if it involves cheating or duping of gullible innocent customers. These builders adopt various tactics to achieve their illegal purposes and often arm twist the purchasers for the sole purpose of extorting more money by increasing the Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 25 cost prices or levying additional costs or hidden charges not forming a part of the original contract which otherwise cannot be levied without any justification. In fact, whenever such costs are subsequently levied and there is a challenge to the same in the Court of law it is necessary for the builder to then explain and justify the same which incidentally the builder/ defendant before this Court has not been able to do. Unless these hidden charges/ extra charges form an essential part of the contract within the knowledge of the customer/ purchaser, the builder cannot charge the same without offering any justification for the same. After handing over the constructive possession, a builder cannot demand extra charges by simultaneously withholding the actual physical possession as has been done in the present case and if he does so, it is totally illegal and impermissible and for delaying such delivery the builder can be made legally liable. In fact, any builder who delays the handing over the plots/ buildings to the buyers on one pretext or the other by creating artificial claims, commits a civil actionable wrong and can be made liable to pay damages for all the financial loss and physical inconvenience caused by them to the purchaser of the property. A builder cannot take shelter by wrongly terming the internal dispute as a force majeure, as the defendant before this Court is attempting to do and the plaintiffs are well within their rights to demand delivery of actual physical possession within the stipulated time or else the builder would be liable to compensate the plaintiffs/ purchasers for all the financial and physical sufferings caused to Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 26 them.
(31) It is in this background and in view of my findings on the various issues, I hereby hold that the plaintiff is entitled to relief of Mandatory and Permanent Injunction as asked for in the plaint and the defendants are directed to withdraw their demands for overdue and holding charges and and to hand over the actual physical possession of the Plot No. I116, measuring about 500 square yards, TDI City, Kundli, Sonepat, Haryana to the plaintiffs, within a period of Sixty Days from today after accepting the actual outstanding amount dues against the plaintiffs whicha re admittedly to the tune of 10% of the total basic sale of the plot.
(32) In the meanwhile, I also restrain the defendant company along with their principal officer, Directors, Agents, etc. from cancelling the allotment of the plot in question and also from creating any third party interest in the plot in question.
(33) Suit of the plaintiff is accordingly Decreed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
(34) File be consigned to Record Room. Announced in the open court (Dr. Kamini Lau) Dated: 14.01.2016 ADJII(CENTRAL)/ DELHI Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 27 Rajesh Mittal & Anr. Vs. TDI Infrastructure CS No. 179/2013 14.01.2016 Present: Sh. A.K. Singh Advocate for the plaintiffs. None for the defendant.
Vide my separate detail order dictated and announced in the open court, but not yet typed, the suit of the plaintiff is Decreed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/14.01.2016 Rajesh Mittal & Anr. Vs. TDI Infrastructure, CS No. 179/2013 Page No. 28