Delhi District Court
Sh. Sanjay Chowdhary vs Delhi Development Authority on 30 November, 2022
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 577/2018
In the matter of :
1. Sh. Sanjay Chowdhary
S/o Sh. Jagdev Singh
R/o E-15, East of Kailash
New Delhi-110065
2. Smt. Ekta
W/o Sh. Sanjay Chowdhary
R/o E-15, East of Kailash
New Delhi-110065
.........Plaintiffs
Versus
Delhi Development Authority
Land Sales Branch (Residential)
Vikas Sadan, Near INA Market
New Delhi-110016
through its Vice-Chairman
.........Defendant
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 1
Date of institution : 17.04.2018
Date of reserving the judgment : 23.11.2022
Date of pronouncement : 30.11.2022
Decision : Dismissed
SUIT FOR DAMAGES/COMPENSATION OF RS.1,09,53,800/-
(RUPEES ONE CRORE NINE LACS FIFTY THREE THOUSAND
EIGHT HUNDRED ONLY) ALONG WITH PENDENTE LITE
INTEREST @ 18% PER ANNUM
JUDGMENT
The plaintiffs have filed the present suit seeking damages/compensation to the tune of Rs.1,09,53,800/- along with pendente lite and future interest @ 18% per annum till the actual date of realization of the decreetal amount against the defendant Delhi Development Authority for charging premium on the plot bearing no.135 (250.145 sq. meter), Jasola (herein after referred to as "plot in question") on the false pretext of being on 24 meter road.
2. Succinctly, the facts, as mentioned in the plaint, are that the defendant is a statutory body created under Delhi Development of Delhi Act, 1957 to promote and secure the development of Delhi and accordingly 98 residential plots were offered for auction on free hold basis and the said plots were located at different locations in Delhi viz. Model Town, Vikas Puri, Jasola Pocket II Prashant Vihar, Ashok Vihar CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 2 Phase II and Naraina Vihar. The advertisement mentioned the respective size and reserve price of different plots and the same was indicated against the respective plot number as mentioned that the reserve price for corner plots or plots located on 24 meter road and above were to be 10% higher in each case than the reserve price of the normal plots. The said advertisement was duly published in various newspapers.
3. It is further averred that the plaintiffs had participated in open auction held on 11.01.2007 pursuant to the advertisement issued by the Land Sales Department (residential) of defendant for the plots in Jasola Vihar and they were declared as the successful bidder of the plot in question at an auction price of Rs.2,75,10,000/- .
4. It is further stated that the defendant had represented and stated that the said plot is located on a 24 meter road and plaintiffs had made the bid of such a huge amount only because of the representation of the defendant that the said plot was located on a 24 meter road.
5. It is further stated that on 09.03.2007, the defendant issued a demand notice to the plaintiffs for making the payment of the balance amount of Rs.2,06,10,016/- and also defendant duly acknowledged that the plaintiffs had already made the payment of an earnest money amounting to Rs.69,00,000/-.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 3
6. It is further stated that an amount of Rs.69 lacs was paid till the time of auction and the balance amount of Rs.2,06,10,016/- was paid vide pay order No.918502 dated 28.01.2007 issued by Indian Overseas Bank, Kalkaji, New Delhi which was deposited in the account of the defendant vide challan no.10451507 dated 06.06.2007 issued by Central Bank of India.
7. It is further submitted that plaintiffs always made sure to comply with the terms and conditions of the auction and to make the timely payment of auction amount and on the other hand, the defendant has been adamant and reluctant to fulfill their part of the commitment most notably providing 24 meter road which was the essence of charging additional cost of 10% over and above the price of the similar plots in the locality.
8. It is further submitted that after making the complete payment of auction money, the plaintiffs demanded the possession of the said plot after providing access by way of 24 meter road and despite oral assurances, the requisite road as promised in the advertisement was not provided and thereafter the plaintiff was disappointed to discover that 24 meter road shown by the defendant was in fact encroached land and no road existed thereupon.
9. It is further submitted that the plaintiffs along with other plot holders made representation to the defendant on various occasions but it in vain and despite several requests and reminders issued by the plaintiffs CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 4 and other occupants of the area, the defendant did not carry on the construction of 24 meter road and the officers in the office of defendant kept passing the bucks to each other but did not take any concrete steps to construct the road by removing the obstructions.
10. It is further stated that the plot owners came to know that the defendant was contemplating to alter the approved layout plan and in the process of shortening the width of the road in front of the plot in question allotted to the plaintiffs and the similarly situated plot owners filed writ petition titled as Nalin Khanna and Ors Vs. DDA, bearing W.P (c) no.4426/2008 before High Court of Delhi in which petitioner stated that the act of shortening the width of the road was in violation of the rules and regulations and the terms and conditions of the auction and also sought direction for removal of unauthorized construction and encroachment from the area of 24 meter wide road in front of their plots.
11. It is further averred that the defendant (respondent in the above noted writ petition) always maintained that the width of the road in front of the plot of plaintiffs will not be reduced from 24 meter.
12. It is further stated that after the decision in the above writ petition, the plaintiffs hoped that the defendant will execute the conveyance deed of the said plot, hand over the possession of the same after constructing the 24 meter road as promised.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 5
13. It is further submitted that despite receiving the complete auction money on 05.06.2007, the defendant neither delivered the possession nor executed conveyance deed of the said plot, in favour of the plaintiffs till the year 2009. After numerous requests and reminders of the plaintiffs and after making them run from pillar to post, for the first time, the defendant gave possession of the said plot to the plaintiffs, vide its letter bearing no.Fo2 (07) 07/LSB ® /307 dated 21.05.2009 i.e. after almost 2 years of having received the complete auction money.
14. It is further stated that the possession of the said plot was handed over to the plaintiffs on 21.05.2009 and the conveyance deed of the said plot was executed in favour of the plaintiffs on 18.06.2009 and even in the schedule annexed with the conveyance deed, the defendant mentioned the width of road in front of the said plot as 24 meter.
15. It is further stated that the defendant assured the plaintiffs on various occasions that the 24-meter wide road will be built in front of the plot of the plaintiffs and other occupants and on the above mentioned assurances of defendant and also relying upon the submissions of defendant made before the Court that the width of the road in front of the said plot will be restored to 24-meter, the plaintiffs decided to apply for the sanction of the building and further carried out the construction on the said Plot.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 6
16. It is further averred that the occupants of the similar located plots having no other option, again approached the Hon'ble High Court and filed a writ petition titled as " Nalin Khanna & Ors. Vs. DDA" bearing WP (c) No. 5838/2013, challenging the inaction of the defendant in not providing the 24-meter road in front of the plots allotted to the petitioners and sought the construction of 24-meter road, in front of the plots allotted to them, in accordance with the approved layout plan.
17. It is further submitted that the defendant prevaricated about the status of the road, not only to the Plaintiffs but also before the Hon'ble Delhi High Court. However, after delay of so many years, the defendant informed that the land which was required for the extension of the road to make it 24-meter was not in possession of the defendant, as the same was not transferred to them by the land acquisition agency. The defendant never informed that the compensation as mentioned in the award had not been paid to the owners of the said acquired land.
18. It is further the case that due to the lackadaisical attitude and procrastination of the defendant and its land acquisition agency, the Hon'ble High Court of Delhi vide its order dated 09.08.2016 passed in the writ petition titled as "Jagbir Singh & Anr. Vs. Union of India & Ors, bearing W.P. (c) No. 11235/2015, declared the acquisition proceedings initiated with respect to the land, required for extension of road, to have been lapsed. In view of the above said order of High Court of Delhi vide order-dated 04.10.2016 dismissed the W.P (c) No. 5838/2013. No relief in CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 7 the said writ petition could be granted to the petitioners therein, because the land on which the 24-meter road was to be constructed was not available with the defendant. However, the Court granted the liberty to the petitioners, to file appropriate proceedings seeking compensation for any loss suffered by them.
19. The plaintiffs being similarly situated plot owners who have been promised a 24 meter road but the same has not been provided despite having paid 10% premium for the plot being on the 24 meter road and they are aggrieved by the fact that the defendant had sold the said Plot to them under fraudulent representation.
20. Therefore, the plaintiffs have suffered losses on different accounts and the defendant is liable to compensate the plaintiffs for the said losses and the said losses has been calculated to the tune of Rs. 27,51,000/- being 10% of the total auction amount paid by the plaintiffs.
21. It is further stated that the plaintiffs are also entitled to interest @ 18% per annum on the above said amount being paid in the year 2007. Thus the authority is liable to refund to my client (27, 51,000+49,51,800) an amount of Rs.77,02,800/- illegally retained by them. The defendant is also liable to compensate the plaintiffs for the damages being suffered by them for not being able to enjoy their property to its full. The said damage is being caused to the plaintiffs because of the lackadaisical attitude and procrastination of the defendant. The value of the plot in question and nearby residence have also diminished, minimum by 10% CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 8 due to non-existence and non-construction of the 24 Mtr. road which stands at Rs.27,51,000/-.
22. The plaintiffs are left with no option except to file the present suit seeking damages and compensation to the tune of (77,02,800+27,51,000) totaling 1,04,53,800/-. Plaintiffs are further entitled to receive the sum of Rs.5,00,000/ towards litigation Cost as well as harassment suffered in all these years, totaling to Rs.1,09, 53,800/- alongwith pendent-lite and future interest @ 18% per annum. The plaintiffs have duly got the statutory legal notice dated 28.11.2017, served upon the defendant stating therein the cause of action, the nature of relief and the amount of compensation claimed. Hence, the present suit seeking recovery was filed.
23. Defendant contested the present suit by filing written statement and raising the preliminary objections that the present suit is nothing but misuse of process of law by seeking exorbitant compensation. It is submitted that the plot in question was alloted in favour of the plaintiff in an option held on 11.01.2007 and that the reserve price for the said property was announced without any locational charges. The matter was reconsidered at the venue of the auction and with the approval of the then commissioner (land development), reserve price of plot bearing no.10, 133, 134, 135, 136 and 137, Jasola Pocket 2 was enhanced by 10% , which was announced at the venue of the auction. It is further submitted that the auction proceedings for the said property was on "as is where is"
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 9 basis and the plaintiff had inspected the site and participated in the auction proceedings after being fully familiarized with the site condition.
24. It is further the stand of the defendant that it is not viable to widen the road to the extent of 24 meter because of the construction of the road in haphazard manner. This issue was raised by some of the allotees in the writ petition (civil no.5838/2013) before the high Court of Delhi wherein the defendant had filed an affidavit that it is not practically possible to widen the road to the extent of 24 meters as the acquisition of the land, on which the road had to be constructed, has been held to have lapsed by the Division Bench vide order dated 09.08.2016. Rest of the averments of the plaint have been disclaimed.
25. Rejoinder was put forth on behalf of the plaintiff admitting the proceedings in the writ petition before High Court of Delhi but refuting the other defences and reaffirming the contents of the plaint.
26. Completion of pleadings was followed by framing of issues, listed as under:
Issue no.1 : Whether plaintiff is entitled for recovery of the suit amount as claimed? OPP Issue no.2 : Whether the defendant was not duty bound to widen the road to the extent of 24 meter as sought by the plaintiff and its effect? OPD CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 10 Issue no.3 : Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP
27. For recording of evidence, Ms. Priyanka Jain, Ld. Advocate was appointed as ld. Local Commissioner, who submitted her final report on 27.05.2022.
28. From the plaintiff's side, plaintiff was examined as PW-1 vide his affidavit Ex.PW-1/X and who relied upon the following documents:
Copy of advertisement by defendant in newspaper as Ex.PW-1/1. Copy of the challans as proof of payment as Ex.PW-1/2. Copy of order dated 08.12.2009 passed in W.P.(C) No. 4426/2008 as Ex.PW-1/3.
Copy of possession letter dated 21.05.2009 as Ex.PW-1/4. Copy of conveyance deed dated 18.06.2009 as Ex.PW-1/5. Copy of order dated 04.10.2016 passed in W.P.(C) No. 5838/2013 by Hon'ble Delhi High Court as Ex.PW-1/6. Copy of the legal notice alongwith postal receipt as Ex.PW-1/7. Copy of the E-Auction document dated 21.12.2018 as Ex.PW-1/8.
29. PW-1 was cross-examined on behalf of the defendant. Sh. Gulshan Kumar Girotra was also examined as a witness, though again as PW-1, but should have been PW-2 who tendered his affidavit as Ex.PW-2/X, who was also cross-examined on behalf of the defendant. Plaintiffs then closed their evidence.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 11
30. From the defendant's side, DW-1 Sh. Gulshan Pokhriyal, Assistant Director, DDA was examined vide his affidavit Ex.DW-1/X and who also relied upon the following documents:
Copy of the brochure is attached as Ex.DW-1/1. Copy of setback execution plan as Ex.DW-1/2. Conveyance deed as Ex.DW-1/3.
Layout plan before Municipal Corporation of Delhi as Ex.DW-1/4.
31. This witness was cross-examined on behalf of the plaintiff. Defendant then rested its case, culminating the case into final arguments.
32. Ld. Counsel for the plaintiff broached the case by arguing on the premise of the plaint and the admitted facts. Ld. Counsel pointed out that there is no challenge on the allotment of the plot in question, but the defendant wriggled out of the terms of the allotment by not providing 24 meter wide road which they acknowledged in the writ petition before High Court of Delhi, and for which they are liable to refund 10% of the price paid along with compensation. Ld. Counsel took the court through the cross-examination DW-1 where he is claimed to have admitted the case of the plaintiff. Ld. counsel for the plaintiff has relied upon the judgments as under:
N.V. Srinivasa Murthy and Others Vs. Mariyamma (Dead) by proposed LRs and Others, AIR 2005 SUPREME COURT 2897.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 12 Shakti Bhog Food Industries Ltd. Vs. Central Bank of India & Anr., 2020 Legal Eagle (SC) 411.
A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, AIR 1989 SUPREME COURT 1239.
Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, (2012) 8 Supreme Court Cases 706.
33. Per contra, ld. Counsel for the defendant ambitiously challenged the maintainability of the suit on the ground of limitation as admittedly the said property was alloted in the year 2009, whereas the suit came to be filed in the year 2018. Further, ld. Counsel pointed out that the plaintiff cannot derive any benefit out of the writ petition in which vide order dated 04.10.2016, the High Court of Delhi disposed of the proceedings after it was submitted on behalf of the defendant that in the wake of the lapsed acquisition proceedings, the 24 meter wide road could not be provided as the plaintiff was not a party therein and, thus, he cannot compute the limitation from that date. Ld. counsel for the defendant has relied upon the judgments as under :
Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs, Civil Appeal No. 2960 of 2019.
Patil Automation Private Limited and Others Vs. Rakheja Engineers Private Limited, 2022 SCC OnLine SC 1028.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 13
34. In rebuttal, Ld. counsel for the plaintiff vociferously put forth his stance on the aspect of the limitation, which I shall discuss in the infra.
35. Having heard both the Ld. counsels, my issue wise finding is as under:
36. Issue no.1 : Whether plaintiff is entitled for recovery of the suit amount as claimed?
36.1 Plaintiff led his evidence by examining himself as PW-1 vide his affidavit Ex.PW-1/X wherein he vouchsafed the contents of the plaint. The irreferagable position on record on behalf of defendant as mentioned in the written statement is that the plaintiff had participated in open auction held on 11.01.2017 pursuant to the advertisement issued by the Land Sales Department (Residential) of DDA for the plots in Jasola Vihar wherein he was declared as the successful bidder of the plot in question at an auction price of Rs.2,75,10,000/-. Defendant, in the later part also admitted, that the matter was reconsidered at the venue of auction and with the approval of the then Commissioner, reserved price of the plot bearing no. 10,133 134,135 (plot in question), 136 and 137 Jasola, Pocket-II was enhanced by 10%.
36.2 The grouse of the plaintiff is that there was a representation on the part of the defendant that the plot in question was located on a 24 meter road, which is refuted on behalf of the defendant in the written statement as they claimed that the plot was situated on 18 meter wide road as there CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 14 is 6 meter green area adjoining the 18 meter wide road. It is also not under challenge that the plaintiff had paid the entire sum of Rs.2,75,10,000/- inclusive of the additional 10% amount and the possession of the said plot in question was handed over to the plaintiff on 21.05.2009 and the conveyance deed was executed in his favour on 18.06.2009, wherein the width of the road in front of the plot in question was mentioned as 24 meter.
36.3 The moot question which now falls for consideration is whether there was any promise on the part of the defendant to provide 24 meter road in front of the plot in question and, if yes, whether the defendant was unable to provide it.
36.4 From the defendant's side Sh. Gulshan Pokhriyal, Assistant Director (Residential), Vikas Sadan, New Delhi was examined as DW-1 vide his affidavit Ex.DW-1/X. He produced copy of brochure Ex.DW-1/1 and deposed that the plaintiff participated in an open auction held on 11.01.2007 and was declared as a successful bidder of the plot in question at an auction price of Rs.2,75,10,000/- on a 24 meter (18 + 6) road. The conveyance deed in favour of the plaintiff is Ex.PW-1/3 on 'as is where is' basis. On the issue of providing 24 meter road in front of the plot in question, the DW-1, in his affidavit, has not come clean on it. But some of the questions posed to him in his cross-examination are worth noting:
"Question : Do you know there is a note in newspaper advertisement (Ex.PW-1/1) CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 15 related to reserve price being 10% higher than the other plots which are situated on 24 meter road?
Answer : Yes, I have seen the document (Ex.PW-1/1) and it has been mentioned there in that the reserve price of the corner plots and plots located on 24 meter road and above is 10% higher in each case than the reserve price of the normal plots.
Question : Have you seen (Ex.PW-1/1) wherein plot no. 135 for which litigation is pending in the present case was to be auctioned 11 Jan 2007?
Answer: Yet it is correct.
Question: As whether the total payment to the plot has been received by the DDA on 6th June 2007 as per (Ex.PW-1/2)?
Answer : Yes, as per our records the complete payment of the plot has been received on 6 June 2007 as per (Ex.PW- 1/2).
Question : Whether the final payment received by the defendant till 6 June 2007 from the plaintiff for plot no. 135 Jasola, CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 16 Pocket 2, New Delhi also includes the 10% extra charged over and above the reserved price of other plots?
Answer : Yes, 10% was included as location charges in the total payment received by the defendant from the plaintiff.
Question : When the conveyance deed of the plot in question was executed by DDA in favour of the plaintiff?
Answer : As per our records conveyance deed (Ex.DW-1/2) was executed on 18 June 2009.
Question : Do you know it has been mentioned on the first page of the conveyance deed that the concern plot is on 24 meter road?
Answer : Yes, it has been mentioned in conveyance deed in the para no.2.
Question : Whether 24 meter road existed on the spot at the time of execution of conveyance deed?
Answer: As per the schedule attached with the conveyance deed and layout dimension CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 17 plan 24 meter (18 meter + 6 meter green ) road was present.
Question : Do you know it has come in (Ex.PW-1/6) i.e. order dated 4 Oct 2016, statement was made on behalf of DDA that the land on which the 24 meter road was to be constructed is not available with the defendant?
Answer : I can say on the basis of the order (Ex.PW-1/6) that in view of acquisition proceedings having lapsed as stated by L & B department, the 24 meter road cannot be constructed."
36.5 The afore-noted extract of the question and answer reveals that though the defendant sought to justify the dimension of 24 meter as 18 meter road and 6 meter green, but in view of the order of High Court of Delhi dated 04.10.2016 Ex.PW-1/6, it is lucid that the defendant was in works to provide 24 meter road but due to lapse of the acquisition proceedings, the 24 meter road could not be constructed. There is no such dispute on behalf of the defendant in regard to this order of High Court of Delhi that the proceedings therein did not pertain to the petitioners who were similarly placed and alloted the plots by the defendant. Thus, in this view of the matter, it is abundantly clear that the defendant had charged 10% extra amount of the reserve/auction price of the plot in question and CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 18 was bound to provide 24 meter road and that 24 meter was not to be segregated as 18 meter road plus 6 meter green. Having admitted so, defendant is clearly in breach of contract and is bound to refund the excess amount to the plaintiff or to pay damages.
36.6 But before we return any finding on the issue in hand, another roadblock has to be dealt with by the plaintiff, which was raised on behalf of the defendant during final arguments, that the present suit is barred by limitation.
36.7 It is the stand of the defendant that the cause of action first time accrued in the year 2006 when the defendant advertised the auction of 98 plots, the plaintiff had participated in open auction on 11.01.2007 and the conveyance deed was executed in favour of the plaintiff on 18.06.2009, but the present suit came to be instituted on 16.04.2018, which is hopelessly barred by limitation, in view of the judgment of Supreme Court in Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs, dated 13.03.2019. On the contrary, Ld. counsel for the plaintiff has strenuously put forth, though admitting the dates as revealed by Ld. counsel for the defendant, that the suit is well within the period of limitation on the premise of paragraph 7 of the plaint and the affidavit Ex.PW-1/X that despite oral assurances, the requisite road as promised in the advertisement was never provided. Ld. counsel also alluded to the orders passed in the writ petition dated 08.12.2009 Ex.PW-1/3 and 4 th October, 2016 Ex.PW-1/6 and canvassed that the cause of action in fact CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 19 accrued on 04.10.2016 when finally the DDA expressed its inability to provide 24 meter road due to lapse of acquisition proceedings. Ld. counsel for the plaintiff relied on Article 47 and 113 of the Limitation Act to hammer home this point.
36.8 Before returning any finding on the aspect of the limitation, it is highlighted herein that the ground for limitation has not been set up as a defence in the written statement by the defendant, neither any issue has been framed in this regard. Nevertheless, Section 3 of the Limitation Act enunciates, inter alia, that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In view of this principle of law, there is no mandate of setting up of the defence of limitation by the defendant and framing of issue, if from the contents of the plaint itself, flagged during arguments, the suit is found to be hit by the law of limitation.
36.9 The controversy now lies in a narrow compass as it is to be seen as to when the cause of action arose for the plaintiff to institute the present suit. In my considered opinion, the cause of action had arisen when finally the possession of the plot in question was handed over to the plaintiffs on 21.05.2009 and conveyance deed was finally executed in their favour on 18.07.2009. Plaintiff in his cross-examination has avouched that the defendant offered him possession of the plot on 21.05.2009 and the same was taken on 29.05.2009. The conveyance deed dated 18.07.2009 Ex.PW-1/5 clearly reflects that the plot in question is CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 20 shown to be on 24 meter road. When the plaintiff was confronted as to when did he come to know that the width of the road in front of his plot was 18 meter and not 24 meter, he replied that when the DDA made a statement before High Court of Delhi that they did not have land available for construction of 24 meter road. This statement clearly is at odds with the pleadings in the plaint wherein the plaintiff affirmed in paragraph 10 and 11 that after handing over of the possession of the plot, the defendant assured the plaintiffs on various occasions that 24 meter wide road will be built in front of the plot of the plaintiffs and other occupants. Thus, it is limpid that the plaintiffs gained the knowledge of the road being only 18 meter wide soon after getting the possession. It can, thus, be extrapolated that at that time when the plaintiff took over physical possession of the plot in question that it was not on 24 meter road and that amounted to breach of contract on the part of the defendant as in the advertisement Ex.PW-1/1 it was clearly mentioned that the plot located on 24 meter road and above would fetch 10% higher reserve price and a plot in question bearing no.135 was one such plot and, thus, the act of not providing the 24 meter road despite payment of the entire amount would amount to breach of contract, the limitation period for which is governed by Article 55 of the Limitation Act. The period of three years is to be counted from the date of execution of the conveyance deed i.e. 18.07.2009 and when the plaintiffs gained the knowledge of the breach in not providing 24 meter road. There is no material on record indicating any acknowledgement on the part of the defendant which could have extended the period of limitation beyond three years. Though, the CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 21 plaintiffs have claimed that repeated requests and reminders were issued to the defendant in this regard, but there is no precise time period mentioned when such requests and reminders were given to the defendant. In fact, the plea of the plaintiff that the defendant always ducked the issue and never informed the plaintiffs about the status of land and construction of the road, at that time only the cause of action arose in favour of the plaintiffs to have taken recourse of law.
36.10 Ld. Counsel for the plaintiffs heavily harped upon the proceedings in the writ petition titled as Nalin Khanna & Ors Vs. DDA, writ petition no. 5838/2013 Ex. PW-1/6, wherein the Hon'ble Court had observed that since it was an admitted position that the land on which road was to be constructed was not available with the defendant herein, the petitioners therein were given liberty to file appropriate proceedings seeking compensation for any loss suffered by them. Admittedly, the plaintiff herein was not one of the petitioners in the said writ petition and therefore, he cannot derive any advantage out of the said order. It was for the plaintiff to be vigilant of his rights to move against the defendant as soon as he got the possession of the plot in question. The contention of the ld. Counsel for the plaintiff that the limitation period would be counted from the order of the High Court of Delhi Ex.PW-1/C dated 04.10.2016 is misconceived, without the backing of any law and, thus, deserves to be junked. Even if we analyze the situation from another point of view that in the proceedings before High Court of Delhi, defendant had made affirmations to provide 24 meter road but, CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 22 admittedly, the said writ petition also must have been filed in the year 2013 being numbered as 5838/2013, the limitation period counted from 18.07.2009 had already expired after three years.
36.11 Ld. Counsel for the plaintiffs has also relied upon the judgments as mentioned in paragraph 32, but none of the judgments is even remotely connected to the issue of limitation involved herein. A specific mention was made during the arguments to the judgment of Supreme Court in Shakti Bhog Food Industry Limited (Supra), paragraph 9, Article 113 of the Limitation Act, but the facts of the present case is covered by Article 55 of the Limitation Act and even if Article 113 is considered, the right to sue accrued at the time when the plaintiff got possession of the plot in question and the knowledge that the plot was not situated on 24 meter road but only 18 meter road. Ld. Counsel for the plaintiff also referred to paragraph 13 of the judgment in Church of Christ Charitable Trust and Educational Charitable Society (Supra), but that also is not of any help to the case of the plaintiff as it speaks about the meaning of cause of action, which is not in dispute here.
36.12 In the result, the suit of the plaintiffs, being barred by limitation, is to be dismissed. Issue no.1 is accordingly decided against the plaintiffs and in favour of the defendant.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 23
37. Issue no.2 : Whether the defendant was not duty bound to widen the road to the extent of 24 meter as sought by the plaintiff and its effect?
37.1 The burden to prove this issue was casted upon the defendant. However, material on record shows that it was the duty of the defendant to provide 24 meter wide road in front of the plot in question as projected in the advertisement Ex.PW-1/1 and the conveyance deed Ex.PW-1/5. When it had charged 10% extra amount of the reserve price in lieu of providing 24 meter road, it cannot reneged from it. The defence of the plot being alloted on 'as is where is basis' and to be situated on 18 meter road plus 6 meter green is not substantiated by any material. Moreover, in view of the stand taken by it in the writ petition before High Court of Delhi, the proceedings of which are Ex.PW-1/3 and Ex.PW-1/6 that due to lapse of acquisition proceedings, it could not construct the road as promised, issue no.2 is held to be decided against defendant and in favour of the plaintiff.
38. Issue no.3 : Whether the plaintiff is entitled for interest, if so at what rate and for which period?
38.1 The burden to prove this issue was also upon the plaintiff, but since, the plaintiff is not found entitled to recover the alleged principal sum, issue no.1 being decided against the plaintiff, no question arises for grant of any interest. This issue is also, thus, decided against the plaintiff.
CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 24
39. The upshot of the foregoing discussion is that the suit of the plaintiff, being hit by law of limitation, is found to be time barred, deserves to be run down and is dismissed. There shall be no order as to cost. Decree sheet be drawn up. File be consigned to record room.
Announced & dictated in the open court on 30.11.2022 (Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 30.11.2022 Certified that this judgment contains 25 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional District Judge-03 South East District, Saket Courts, New Delhi 30.11.2022 CS DJ No. 577/2018 Sh. Sanjay Chowdhary & Anr. Vs. Delhi Development Authority 25