Delhi District Court
Manna Devi vs . Kamal Jeet on 31 March, 2022
Manna Devi vs. Kamal Jeet
IN THE COURT OF SH. NIKHIL CHOPRA, ADDL. DISTRICT
JUDGE, ROOM NO. 606, SAKET COURTS, SOUTH DISTRICT,
NEW DELHI
In the matter of
CS No.84/2020
Filing No.917/2020
CNR No. DLST010014172020
Manna Devi
W/o Sh. Inderjeet
R/o 1116, Second Floor,
HBlock, Gali No.16,
Sangam Vihar, New Delhi110 062
................Plaintiff
Versus
Kamal Jeet
S/o Sh. Bansi Lal
R/o 1116, First Floor,
HBlock, Gali No.16,
Sangam Vihar, New Delhi110 062
.............Defendant
Date of Institution : 05.02.2020
Date of reserving the judgment: 31.03.2022
Date of pronouncement : 31.03.2022
Decision : Decreed
CS No. 84/2020 Page No. 1 of 9
Manna Devi vs. Kamal Jeet
SUIT FOR RECOVERY OF RS.4,00,000/ (RUPEES FOUR LACS
ONLY)
JUDGMENT
1. Judgment disposes of suit for recovery of Rs.4,00,000/ premised on the ground that the defendant, brotherinlaw of the plaintiff had proposed to sell the first floor, forming part and parcel of property bearing No.H 16/1116, Sangam Vihar, New Delhi, admeasuring 30 sq. yds for a sum of Rs.4,00,000/, vide agreement dated 10.04.2019 and did not hand over the possession.
2. It is averred that the plaintiff paid the entire sale consideration amount to the defendant and the defendant had also executed certain documents of title on 10.04.2019, in favour of the plaintiff with a promise to hand over the peaceful vacant possession of the first floor of the said property. It is submitted that after having received the whole consideration amount, intention of the defendant turned dishonest and mala fide, and he resorted to violence, whenever the plaintiff requested for handing over the possession of the suit property. A complaint in this respect is also stated to have been filed. The defendant is also stated to have filed a false and frivolous suit for injunction claiming that the total sale consideration CS No. 84/2020 Page No. 2 of 9 Manna Devi vs. Kamal Jeet amount was Rs.9,00,000/ in stead of Rs.4,00,000/ and that a sum of Rs.4,00,000/ was paid as an earnest money. It is averred that the defendant, out of dishonest intention, is not ready to hand over the peaceful vacant possession of the property and is disputing the execution of the documents, while also demanding extra Rs.5,00,000/.
3. While claiming the cause of action to have accrued on 10.04.2019, and on subsequent dates, the plaintiff has sought refund/ return of the of the amount so paid under the Agreement.
4. The defendant stood served through his wife, as well as through WhatsApp, as recorded in the order dated 16.12.2021. Since the defendant did not appear or file any WS, he was proceeded exparte.
5. Vide order dated 16.12.2021, following issues were framed:
1. Whether the defendant had entered into agreement to sell with respect to property bearing No. H16/1116, Sangam Vihar, New Delhi, and had received the entire sale consideration? OPD
2. Whether on account of default/ failure of the defendant to perform his part CS No. 84/2020 Page No. 3 of 9 Manna Devi vs. Kamal Jeet of the obligation, the plaintiff is entitled to recovery of entire amount advanced i.e. Rs.4 lacs, together with interest @ 18% per annum? OPP
3. Relief.
6. The plaintiff examined himself as PW1 and deposed on the lines of the plaint. She has also proved the documents of title executed by the defendant as Ex. PW1/1 (colly.); copy of medical records of the plaintiff as well as her husband as Ex.PW1/3 (colly.); certified copy of the plaint in civil suit filed by defendant as Ex.PW1/4; copy of the police complaint dated 22.10.2019 as Ex.PW1/5; postal receipt in relation with the above complaint as Ex.PW1/6; tracking report as Ex.PW1/7; and copy of the ID proof of plaintiff as Ex.PW1/8 (OSR).
7. I have heard the Learned counsel for the plaintiff and have gone through the records.
8. It is the contention of the Learned counsel for the plaintiff that vide Ex.PW1/1 (colly.) i.e. GPA, Agreement to Sell & Purchase, affidavit, receipt, all dated 10.04.2019, the defendant had agreed to sell the property to the plaintiff for a sum of Rs.4,00,000/. It is contended that although possession letter was also issued to the plaintiff, the defendant did not CS No. 84/2020 Page No. 4 of 9 Manna Devi vs. Kamal Jeet hand over the possession of the first floor, of property bearing No. H16/1116, Sangam Vihar, New Delhi. It is submitted by the defendant had also executed a Will in favour of the plaintiff and SPA in favour of husband of the plaintiff namely Sh. Inderjeet S/o Sh. Bansi Lal, in line with the Agreement to Sell. An Indemnity Bond dated 10.04.2019 is stated to have also been executed by the defendant.
9. Attention of the court is also invited towards the rent note dated 10.04.2019 and Relinquishment Deed respecting property.
10. Learned counsel for the plaintiff has submitted that although the documents were validly executed, the defendant, subsequently, started disputing the authenticity of the documents while wrongfully claiming that the total sale consideration was Rs.9,00,000/, out of dishonest intentions. It is contended that the Agreement to Sell and Indemnity Bond clearly record that the total sale consideration was Rs.4,00,000/ and that the defendant had also issued receipt of Rs.4,00,000/ in respect of the property. It is yet another contention of the Learned counsel for the plaintiff that none of the documents, mentions that total sale consideration was Rs.9,00,000/, nor even obligate the plaintiff to pay any balance amount of Rs.5,00,000/, as would be clear from the CS No. 84/2020 Page No. 5 of 9 Manna Devi vs. Kamal Jeet documents placed by the plaintiff. Learned counsel for the plaintiff has further contended that the defendant has resorted to violence and assault, which would be clear from the original office copy of the complaint dated 22.10.2019 and medical records annexe therewith.
11. It is submitted by Learned counsel for the plaintiff that the plaintiff is not pressing for any title, nor seeking any possession on the basis of the documents and is rather have invoked the jurisdiction of this court for recovery of amount advanced to the defendant, in view of failure to hand over the possession.
12. The issuewise findings are as under:
ISSUE NO.1 & 21. Whether the defendant had entered into agreement to sell with respect to property bearing No. H16/1116, Sangam Vihar, New Delhi, and had received the entire sale consideration? OPD
2. Whether on account of default/ failure of the defendant to perform his part of the obligation, the plaintiff is entitled to recovery of entire amount advanced i.e. Rs.4 lacs, together with interest @ 18% per annum? OPP CS No. 84/2020 Page No. 6 of 9 Manna Devi vs. Kamal Jeet
13. It transpires that onus of issue No.1 has been wrongfully placed on the defendant as the defendant was exparte.
14. Considering the fact that the plaintiff has proved the documents executed by the defendant as Ex.PW1/1 (colly.) and further, considering the fact that the defendant himself, in his suit titled as Kamal Jeet vs. Manna Devi, the certified copy of the plaint wherein has been proved by the plaintiff as Ex.PW1/4, has referred to the execution of certain documents, though claiming the total sale consideration of the property was Rs.9,00,000/. The same indicates that the documents were admittedly executed by the defendant. Coupled with the fact that there is nothing to rebut the inference generated by the documents Ex.PW1/1 (colly.), it stands proved that the defendant had executed the documents Ex.PW1/1 (colly.) in favour of the plaintiff.
15. It has been contended by the plaintiff that the documents i.e. Agreement to Sell and receipt, in particular, a part and parcel of Ex.PW1/1 (colly.), clearly indicate that the defendant has received a sum of Rs.4,00,000/. Besides, it is submitted that the factum of receipt of Rs.4,00,000/ is also mentioned in para8 of the plaint in suit titled as Kamal Jeet CS No. 84/2020 Page No. 7 of 9 Manna Devi vs. Kamal Jeet vs. Manna Devi & Anr. Having regard to the fact that the said amount was admittedly paid to the defendant, and further considering that the plaintiff has not been handed over the possession, it is a clear case of breach of contract thereby entitling the plaintiff to recover the suit amount.
16. It has been contended by the Learned counsel for the plaintiff that the payment was made in the year 2019 and the defendant has already utilized the said amount, the plaintiff is also entitled to interest on the said amount as well.
17. The above contentions merit consideration. Having failed to deliver the possession, the defendant is not entitled to appropriate the sale consideration. The plaintiff is well within her rights to elect her remedy of refund/ recovery, instead of performance.
18. Both the issues are, accordingly, decided in favour of the plaintiff.
RELIEF
19. Having regard to the fact that both the issues are decided in favour of the plaintiff, and as a sequel to the above discussion, the plaintiff is held entitled to recovery of Rs.4,00,000/ from the defendant, considering the failure of CS No. 84/2020 Page No. 8 of 9 Manna Devi vs. Kamal Jeet the defendant to hand over the possession, as well as the Indemnity Bond executed by the defendant on 10.04.2016. As regards the interest, the court is of the opinion that in the facts and circumstances of the case, the grant of interest @ 9% per annum from the date of payment i.e. 10.04.2019 till its realization would suffice the end of justice. The suit of the plaintiff is decreed with cost. Defendant is directed to pay the decretal amount within three months from today.
20. Decree sheet be drawn accordingly.
21. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (NIKHIL CHOPRA)
COURT ON 31.03.2022 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS,
NEW DELHI
CS No. 84/2020 Page No. 9 of 9