Delhi District Court
Harbaksh Singh vs M/S Taneja Developers & Infrastructure ... on 23 October, 2018
IN THE COURT OF MS. TWINKLE WADHWA: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
CS No. 57871/16
Harbaksh Singh,
S/o Late Sh. Harbans Singh,
R/o B104, Rail Vihar,
BlockB, Sector62,
Noida201301, (UP)
.....Plaintiff
VERSUS
M/s Taneja Developers & Infrastructure Ltd.
Registered Office at
9, Kasturba Gandhi Marg,
New Delhi110001
....Defendant
Date of Institution : 21.04.2010
Date of Final Arguments : 05.10.2018
Date of Decision : 23.10.2018
JUDGMENT
The Case of Plaintiff
1. It is the case of plaintiff that he is a Senior Citizen who retired from Government job in November 2004. It is further the case of plaintiff that he had booked a residential plot of 350 sq. yds in a project of defendant company at Mohali, Punjab. He was allotted CS No. 57871/16 Page 1 of 18 plot no. 229 vide Letter of Allotment dated 17.05.2008. It is further the case of plaintiff that at the time of allotment of aforesaid plot, he was residing at 271A, Prabhat Nagar, Meerut, UP and first three payments were made from that address. Subsequently, plaintiff changed his residence to B104, Rail Vihar, BlockB, Sector62, Noida, UP and this fact was duly communicated to defendant's officials in the month of February 2008 through written communication and by visiting personally the registered office of the defendant at New Delhi.
2. It is further the case of plaintiff that on 11.02.2008, defendant addressed a letter to plaintiff at the new Noida address thereby demanding payment of Rs. 2,27,500/ which was made by plaintiff by way of cheque which is admitted on record.
3. It is further the case of plaintiff that despite having knowledge of change of address, plaintiff sent a further demand notice dated 08.07.2008 at the old address of plaintiff thereby demanding payment of Rs. 5,16,250/ which plaintiff failed to make as the said letter was never delivered to him. The same was given to him much later, when he visited the premises of defendant at New Delhi.
4. It is further the case of plaintiff that another demand letter dated 08.09.2009 regarding a payment of Rs. 14,97,035/ towards last and final payment reminder was again addressed at the old CS No. 57871/16 Page 2 of 18 address of the plaintiff, however despite being addressed at the previous address of plaintiff, it was sent through a personal messenger at new address of the plaintiff at Noida in an envelop mentioning the new address. On receipt of the said letter dated 08.09.2009, plaintiff wrote a letter dated 14.09.2009 to the defendant thereby raising objections regarding sending of previous letters at the old address and also personally visited the office of defendant where two letters were handed over to him.
5. Vide letter dated 14.09.2009, plaintiff requested the defendant to reschedule the payment and allow him to make payment in three installments in a period of six months because it was not possible for plaintiff to arrange such a huge amount of Rs. 14,97,035/ within a short period of 10 days. Also, plaintiff requested to waive off the penal interest/charge on the outstanding amount because there was no fault on his part. On 14.09.2009, he personally visited the office the defendant and also on 05.11.2009, he again visited the office of defendant and requested them to change his new address in their records. Further, he also made further payment of Rs. 2,40,000/ by way of cheque to the defendant which was duly encashed as well.
6. However, plaintiff was shocked to receive one letter dated 2.12.2009 from defendant regarding cancellation of his plot. This plot was canceled as he failed to make payment despite repeated CS No. 57871/16 Page 3 of 18 calls and reminders. Further, it was also mentioned in the said letter that the registration amount would be refunded to him as per company's policy. The said letter was correctly addressed at the new address of the plaintiff i.e Noida.
7. Against the cancellation of plot, plaintiff raised his objections vide letter dated 08.12.2009 regarding illegal cancellation of his registration and allotment of plot.
8. It is further the case of plaintiff that he made following payments: S. No. Date of Payment Cheque No. Amount (Rs.)
1. 6th June., 2005 475644 4,00,000/
2. 30th June., 2006 667762 2,82,500/
3. 11th Feb., 2008 503112 2,27,500/ 4 5th Nov., 2009 672155 2,40,000/ TOTAL 11,50,000/
9. Further, plaintiff was asked to make a payment of Rs. 20,80,360/ to defendant in order to prevent cancellation of his flat. Against the said demand, plaintiff raised his objections vide letter dated 06.01.2010 and shown his inability to make payment.
10. Thereafter, the present suit was instituted thereby claiming declaration that the said letter of cancellation be declared null and void, defendants be restrained from creating any third party rights with respect to the said plot, decree of mandatory injunction CS No. 57871/16 Page 4 of 18 directing defendants to restore the allotment of residential plot and damages for an amount Rs. 20,05,000/.
Case of Defendant:
11. It is the case of defendant that plaintiff submitted an Advance Registration Form dated 06.06.2005 with the defendant seeking to register himself for allotment of a residential plot measuring 350 sq yds in future Township Project of the defendant company at Mohali, Punjab and also deposited a cheque dated 04.06.2005 for an amount of Rs. 4 lakh while the actual amount dues was Rs. 4,55,000/ which was accepted by defendant on the assurance that the balance would be made shortly. The total cost of the plot was @ Rs. 6,500/ per sq yds i.e. Rs. 22,75,000/ (though in the Advance Registration Form it is mistakenly mentioned as 16,00,500/) apart from extra development charges and any other additional charge that may be levied. According to the said form the payment plan is as follows: PAYMENT PLAN
1. At the time of Booking 20%
2. 2 Month from the date of Launch 10%
3. 4 Months from the date of Launch 10%
4. 6 Months from the date of Launch 10%
5. 8 Months from the date of Launch 10%
6. 10 Months from the date of Launch 10% CS No. 57871/16 Page 5 of 18
7. 12 Months from the date of Launch 10%
8. 14 Months from the date of Launch 10%
9. At the time of offer for possession 10%
12. Plaintiff has deliberately avoided to file the said Registration Form in the plaint and hence try to conceal the true facts. Consequently, a second installment was also paid by plaintiff against which he was issued a receipt dated 30.09.2006.
13. It is further case of defendant that although the defendant had obtained the requisite licensed and the Change of Land Use (CLU) from the Appropriate Authorities for raising the said Project, however, certain disputes were initiated by certain persons. A petition in this regard was filed before the Punjab & Haryana High Court, titled "Shri Dharam Chand Versus State of Punjab & Others"
bearing CWP No. 18632 of 2005. On the basis of certain orders passed in the said writ petition on 5.3.2007 the Government of Punjab withdrew the CLU granted by it to the Defendant vide letter dated 26.03.2007 with regard to the project in question. Consequent to the same the Punjab Urban Planning and Development Authority issued a letter dated 29.03.2007 to the Defendant directing all on going work in the Project at Mohali to be stopped by the Defendant, resulting in the said project coming to a standstill. The Defendant therefore in view of the said project CS No. 57871/16 Page 6 of 18 being stalled stopped demand of any further installments from the plaintiff and other registrants in the said project although the payment plan did not prohibit any demand on account of the same. It was only 11.1.2008 when the grant of the change of the land use was again approved by the Chief Town Planner, Punjab that the Project of the Defendant at Mohali was renewed and construction activity was again started."
14. It is further the case of defendant that as per the Registration Form, the payment was not dependent on the construction and it was not construction linked plan, yet during the above mentioned period when the construction was stalled, no payment was asked for by defendant. However, after getting all the clearances in January 2008, defendant sent a letter dated 30.01.2008 to the plaintiff thereby demanding payment of Rs. 2,27,500/ at their recorded address of Meerut, UP. As the said letter was not delivered, company officials gave a telephonic call to the plaintiff on his mobile number and plaintiff informed the officials of the company that at present he was residing at Noida for some time and requested to depute an officer for collection of cheque. Hence, defendant company sent their officer of company to collect the said cheque from him from the Noida address. It is denied that plaintiff ever intimated the defendant company about change of his address in writing or otherwise permanently.
CS No. 57871/16 Page 7 of 1815. It is further the case of defendant that vide letter dated 17.05.2008. Allotment Letter regarding allotment of plot no. 229, measuring 350 sq. yds at Mohali, Punjab was sent to plaintiff which was received by him at the Meerut address.
16. It is further the case of defendant that vide letter dated 08.07.2008, a further payment of Rs. 2,88,750/ was demanded and was sent at the same Meerut address.
17. Thereafter, another letter dated 05.09.2008 was again sent at the registered address with defendant i.e Meerut thereby demanding Rs. 5,16,250/. The said letter was also delivered through courier but plaintiff failed to make payment, oral reminders were also given. Thereafter, again vide letter dated 26.12.2008 was sent to plaintiff at his Meerut address thereby requesting plaintiff to make a payment of sum of Rs. 12,60,000/ which was delivered at Meerut address to plaintiff through courier, oral requests were also made telephonically. It is further the case of defendant that final reminder letters dated 23.02.2009, 21.05.2009 and 05.07.2009 were sent by the defendant to the plaintiff at the recorded address of Meerut. The plaintiff was called upon to pay and oral request was also made telephonically but payment was not made.
18. It is further the case of defendant that again vide letter dated 08.09.2009, a last and final opportunity was given to the plaintiff to CS No. 57871/16 Page 8 of 18 make payment of Rs. 14,97,035/ which was due and payable as per agreement between the parties. When the courier person went to deliver the said letter at plaintiff's address at Meerut, some person informed them that they had shifted to Noida. Consequent, courier agency after taking instructions from defendant delivered the said letter to the plaintiff at Noida. Consequently to the same, plaintiff came up with a false and concocted story regarding change of address. It is further denied by defendant that any letters were handed over to the plaintiff by hand during his visits to defendant's office on any occasions. It is further submitted that at no point of time any change of address was ever intimated by the plaintiff to the defendant. Further plaintiff on his own deposited a cheque for a sum of Rs. 2,40,000/ with the defendant and assured that the entire balance amount would be paid by 20.11.2009. However, as plaintiff failed to make any payment. Consequently, vide the letter dated 02.12.2009, his plot was canceled. It is admitted that plaintiff has made payment of Rs. 11,50,000/ till date but he has failed to make subsequent payment in accordance with payment schedule and hence plot was canceled. It submitted that all the communications were sent at the address on record i.e Meerut and even oral communications were made through telephone as well and had avoided making payments on time. It is further the case of defendant that vide written communication CS No. 57871/16 Page 9 of 18 dated 14.09.2009, a request was made to the defendant for the first time for change of address which was accepted.
19. Upon completion of pleadings, following issues arose by Hon'ble High Court on 17.09.2013.
Issues: (I) Whether the plaintiff is entitled to a declaration that the letter dated 2nd December 2009 issued by the Defendant canceling the allotment in favour of the Plaintiff is null and void? OPP.
(ii) Whether the Plaintiff is entitled to a permanent injunction as prayed for? OPP.
(iii) Whether the Plaintiff is entitled to a mandatory injunction for restoration of the allotment? OPP.
(iv) Whether the Plaintiff is entitled to damages as prayed for? OPP.
(v) Relief.
20. To prove its case, Plaintiff examined himself as PW1 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex. PW1/1 Letter of allotment bearing allotment no. 1 ALNO/10104 dated 17.05.2008 2 Mark PW1/A Cheue bearing no. 475644 dated 04.06.2005 3 Mark PW1/B Memo of cheque dated 04.06.2005 by the CS No. 57871/16 Page 10 of 18 defendant 4 Mark PW1/C Cheque bearing no. 687762 dated 09.10.2006 Mark PW1/D Memo of cheque dated 09.10.2006 by the 5 defendant 6 Mark PW1/E Cheque bearing no. 503112 dated 11.02.2008 7 Ex. PW1/2 Receiving memo of cheque dated 11.02.2008 8 Ex.PW1/3 Demand letter dated 11.02.2008 9 Mark PW1/F Cheque bearing no. 672155 dated 05.11.2009 10 Ex.PW1/7 Receiving memo of cheque dated 05.11.2009 11 Ex.PW1/4 Demand letter dated 08.07.2008 12 Ex.PW1/5 Letter dated 8.09.2007 13 Ex.PW1/6 Letter dated 14.09.2009 14 Ex.PW1/8 Letter dated 02.12.2009 15 Ex.PW1/9 Letter of cancellation of plot dated 08.12.2009 16 Mark Ex.PW1/H Objections vide letter dated 06.01.2010
21. To prove its case, Plaintiff examined Sh. Anup Kumar as PW2 and exhibited the following documents S.No. No. of Exhibits Details of the documents Ex. PW2/1 (OSR) Relevant request form of telephone no. 0121 1 2670824 2 Ex. PW2/2 Certificate dated 16.07.2007 bearing no. 7498 3 Ex.PW2/3 Covering letter of Ex.PW2/2
22. I have heard both the sides and gone through the record. Reasons for Decision
23. A bare perusal of the plaint would show that plaintiff had CS No. 57871/16 Page 11 of 18 made first payment by way of a cheque on 06.06.2005 and he was allotted the flat vide allotment letter dated 17.05.2008. Plaintiff has not mentioned the date on which he made any application for booking of the said plot or the total consideration of the flat. This itself would show that the plaintiff had not come to the Court with clean hands. It is impossible to presume that a person would book a flat and would make payment by way of cheque but would not have taken any document from the defendant company about its total sale consideration or payment schedule and also specifying other details. Defendant has placed on record Advance Registration Form dated 06.06.2005 which is admitted by plaintiff before Joint Registrar of Hon'ble Delhi High Court during admission/denial of documents on 17.07.2013. Though during cross examination it is denied. Original of the said advance registration form is also on record. Despite admitting the said document during admission/denial, in the cross examination, plaintiff denied said documents or his signatures on page 3. The explanation given is that he was not in possession of this document and his counsel might have admitted the same. However, I do not agree with the stand taken by plaintiff for two reasons. Firstly, having admitted the document either himself or through counsel during admission/denial, he is prohibited from taking the contradictory stand during his cross examination without giving any CS No. 57871/16 Page 12 of 18 cogent reason. The same counsel who admitted the document is representing plaintiff till date, hence defence taken is a non convincing. Secondly, plaintiff himself has not filed any document on record pursuant to which he might have booked a flat with defendant and also issued a cheque. It is inconceivable that plaintiff would have given simply a cheque towards booking without even a single agreement in any form between the parties. Hence this Advance Registration Form is proved.
24. This advance registration form contains payment plan which is not construction linked except 10% which is to be paid at the time of possession. The details of the payment plan have already been reproduced while detailing the facts of the defendant's case. As per the said payment plan, 90% of the payment was to be made within 14 months from the date of launch. Further in the demand letters filed himself by plaintiff on record, it is mentioned in those demand letters that payment has to be made as per schedule of payments. One letter dated 08.07.2008 which is placed on record by plaintiff is reproduced herein as follows Date : 8Jul2008 To, MPP10376DLMPP13 Mr. Harbaksh Singh ID No.: MPP10376 271A, Prabhat Nagar, Meerut250001 Mobile: 09837353842 CS No. 57871/16 Page 13 of 18 Subject: Intimation regarding due payment.
Dear Sir(s)/Madam, Pursuant to your Advance Registration Form for a Residential Plot in our future township project, we offered you a Residential Plot of 350 sq.yd in our project TDI CITY MOHALI, Punjab on ChandigarhKharar road (N.H.21).
The said offer stipulates Schedule of Payments. Time being the essence of payments, you were bound by the terms of the same by making timely payments. We request you to remit an amount of 5,16,250.00 (Rupees Five Lakh Sixteen Thousand Two Hundred Fifty Only) in favour of 'Taneja Developers & Infrastructure Ltd', payable at Delhi/New Delhi only, towards, 50% of sales consideration & 50% of tentative E.D.C. You are requested to make payment of above said amount within 10 days of date of this letter. Please note that any delay in making the above payment will attract interest @ 21% p.a from the date of launch.
Thanking you, assuring you of our best services at all times.
Note: (You may ignore this letter, in case you have already paid the above said amount.) Yours Faithfully, for TANEJA DEVELOPERS & INFRASTRUCTURE LTD.
25. A bare perusal of this letter would show, it is mentioned in the letter itself that the payment is to be made as per schedule of payment and the time mentioned in the contract. Hence, the defence taken by plaintiff that he was not aware of the schedule of CS No. 57871/16 Page 14 of 18 payment does not inspire any confidence. As per documents on record, letter of allotment was sent to plaintiff on 17.05.2008 at his Meerut address which was received by him but subsequent letters were not received by him. There is no explanation in the plaint, how plaintiff received the said letter of allotment at his previous address. It is mentioned in replication by plaintiff that he received the aforesaid letter only on 15.09.2008 on his personal visit at defendant's office. Hence, when plaintiff had visited the defendant's office on said date i.e 15.09.2008, he could have also enquired about dues and payment plan against him but he did not mention of the same. By 15.09.2008, defendant had already made two more demands from the plaintiff but plaintiff did not make payment of the same. It is inconceivable and unimaginable that when plaintiff would have visited defendant's office on 15.09.2008, he was not informed regarding the payment schedule or dues against him. It is commercial venture of defendant and purpose of commercial business is profit only.
26. Hence, in view of the overall facts on record, it is proved that plaintiff was aware of the payment plan and that 90% of the payment was to be made within 14 months of the date of launch.
27. Further the fact that plaintiff has concealed the main form filled by him thereby seeking allotment also proves malafide intention on his part. Further, when questions were put to the PW1 CS No. 57871/16 Page 15 of 18 in cross examination regarding Advance Registration Form, he says that he does not know who filed the said form and has denied his signatures also. He says he does not remember receiving any telephonic calls also. The case of plaintiff is based on bare denial of the said advance registration form.
28. Further, as per the plaint on record, plaintiff is a retired Government official and hence burden was on him to show that he was in possession of sufficient funds to make payment. It is the case of defendant that on receipt of the final demand letter, he made request to defendant to give him six months time to make payment. However, admittedly as per record, plaintiff had made last payment on 11.02.2008 and made next payment on 05.11.2009 after reminder letter. Hence for 1 ½ years, he did not make any payment. The part payment being made by him on 05.11.2009 instead of the entire payment is of no benefit to the plaintiff. Defendants being commercial builders are not expected to hold a person's flat for months together if he is unable to make payment on time.
29. Though, plaintiff had made request to the defendant to grant extension of time in making payment and deletion of penalty charges, however, it is the discretion of defendant whether they have allow extension of time for payment or to waive off penalty or not. There is not illegality in the said letter thereby cancelling the CS No. 57871/16 Page 16 of 18 allotment.
Territorial Jurisdiction
30. Though, it is correct that the property is situated at Mohali, Punjab and it is only the office of defendants is at Delhi and the present suit is for a declaration that said allotment be declared as null and void. By way of the said declaration, plaintiff is seeking specific performance of the sale deed on behalf of defendant and also that possession be handed over to him. In view of Section 16, the present Court does not have jurisdiction. However, it is settled law that the issue regarding territorial jurisdiction has to be raised before the settlement of issues which was not done so in the present case.
Maintainability of the Suit
31. It is the argument of Ld. Counsel for defendant during final argument that the present suit is not maintainable as relief of possession is not sought for. It was held in Anuthula Sudhakar case that in case, title of plaintiff is under cloud or in dispute and he is not in possession, the plaintiff will have to file a suit for declaration, possession and injunction. In the present case, only declaration and injunction are sought but possession is not sought. Hence, present suit is not maintainable in present form. Issuewise findings is as follows Issue no.1 Whether the plaintiff is entitled to a declaration CS No. 57871/16 Page 17 of 18 that the letter dated 2nd December 2009 issued by the Defendant canceling the allotment in favour of the Plaintiff is null and void? OPP.
Issue no.2 Whether the Plaintiff is entitled to a permanent injunction as prayed for? OPP.
Issue no.3 Whether the Plaintiff is entitled to a mandatory injunction for restoration of the allotment? OPP.
32. The burden was on plaintiff to proof this issue but he failed to prove the same. These issues are decided against the plaintiff. Issue no.4 Whether the Plaintiff is entitled to damages as prayed for? OPP.
33. As none of the above reliefs is made out in favour of plaintiff, hence plaintiff is not entitled to damages. Issue no.5 Relief.
34. The present suit is dismissed.
Digitally signed
File be consigned to record room. by TWINKLE
TWINKLE WADHWA
Announced in an open Court WADHWA Date:
2018.10.23
On 23rd day of October, 2018. 15:42:03 +0530 (Twinkle Wadhwa) ADJ03/PHC/NEW DELHI 23.10.2018 CS No. 57871/16 Page 18 of 18