Delhi District Court
Sh. Nemi Chand Saluja vs Sh.Baldev Singh on 8 March, 2017
IN THE COURT OF SH. POORAN CHAND, ADDITIONAL
DISTRICT JUDGE 06, SOUTHEAST DISTRICT, SAKET
COURTS, NEW DELHI
CS No. 9920/16
Sh. Nemi Chand Saluja
S/o Late Sh.Khushi Ram,
R/o 1466D/13 on F.F.(Left side),
Govindpuri Kalkaji,
New Delhi110019 ......Plaintiff
VERSUS
1.Sh.Baldev Singh S/o Late Sh.Harbhajan Singh R/o 757/7 GovindpuriKalkaji, New Delhi110019
2. Mrs.Hardevi W/o Sh. Harkesh Kumar R/o 1466D/13 G.F. Govindpuri Kalkaji, New Delhi110019 ......Defendants Date of institution of case : 11.04.2016 Judgment reserved : 08.03.2017 Date of judgment pronounced : 08.03.2017 CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 1 of 15 SUIT FOR SPECIFIC PERFORMANCE, MANDATORY AND PERMANENT INJUNCTION J U D G M E N T:
1. It is averred that the defendant No.1 is the Builder and defendant No.2 is the owner of Property/plot No.1466D/13 Govindpuri, Kalkaji,New Delhi110019 measuring 100 sq.yds.
2. It is further averred that the Defendant No.1 and 2 had entered into a Collaboration Agreement dated 2312012 for the construction of flats on the above said property/plot. By virtue of the said Collaboration Agreement the Defendant No.1 was Authorized to sell the entire Upper Ground Floor(comprising of two flats/units) and entire First Floor(comprising of two flats/units) with common rights in the remaining terrace and common Scooter Parking on Lower Ground Floor size approximately 10'x12'.
3. It is averred that the defendant no.1 accordingly sold the left side flat portion of the first floor of the property bearing no.1466 D/13 Govindpuri, Kalkaji, New Delhi110019, measuring 55 sq. yards CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 2 of 15 out of khasra no.600/93, consisting of two bed rooms, two bathrooms, kitchen, drawing cum dinning room front balcony, with common terrace rights in the remaining(top) terrace and one scooter parking on the lower ground floor size approx.10'x12' alongwith fittings and fixtures installed thereon, separate electricity and separate water connection, separate overhead water tank, common right to use the stair case, passage, pathways, driveway, and other common facilities, amenities, easements and appurtenants attached thereto, with right, title, interest and privileges provided therewith,and proportionate undivided and indivisible ownership rights in the land underneath for a total consideration of Rs.11,00,000/ vide agreement to sell and other related documents, dated 10/04/2013.
4. It is averred that prior thereto, defendant No.1, on 01/08/2012 had agreed to sell the above flat, which was then under construction, and received an earnest money of Rs.1,00,000/ and thereafter he received a further amount of Rs.1,00,000/ on 06/08/2012 on which date a formal agreement to sell was also executed between them whereby the defendant No.1 agreed to give CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 3 of 15 possession of the above flat, complete in all respects, by 31/10/2012 and to execute and register the sale deed in favour of the Plaintiff.
5. It is further averred that the plaintiff made further payments of Rs.1,00,000/ on 22.08.2012 and Rs.2,50,000/ on 31.08.2012. However, the defendant No.1 failed to complete the construction and handover possession and consequently at his request the dates for further payments were deferred.
6. It is averred that on 28.10.2012, the defendant No.1 admitted in writing that the works in the above said flat had not been completed and also that he could not get the required electricity and water connections, and therefore he sought time upto 15.11.2012 and promised that he will complete all the works and obtain electricity and water connections and execute sale deed and register all the documents and papers before the competent registering authority and handover possession to the Plaintiff by the said date i.e.15.11.2012, failing which Defendant No.1 expressly agreed and promised to pay damages to the plaintiff.
7. It is averred that the defendant No.1 again failed to keep CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 4 of 15 his promise, constrained at which the Plaintiff sent a TELEGRAM on as well as a letter by Speed Post on 02.12.2012. The defendant No.1 thereafter vide his letter dated 05.12.2012 falsely claimed that the construction works were complete and that he had applied for the separate water and electricity connections and asked the plaintiff to keep ready the payment and get the sale deed registered. The Plaintiff by his letter dated 17.12.2012, by speed Post, refuted the claim of the defendant No.1 and stated that his payment was ready and the defendant No.1 may complete the Works, take the payment and get the sale deed registered. However, even thereafter the defendant No.1 failed to complete the works and to execute the sale deed in favour of the plaintiff.
8. It is averred that in the month of January,2013 the defendant No.1 offered to execute Notarized sale documents and complete the works if plaintiff paid Rs.3,50,000/ and further offered to receive the balance payment of Rs.2,00,000/ at the time of execution and registration of Sale Deed. Accordingly, the plaintiff got a Demand Draft/pay order No.264161 dated 05.01.2013 drawn on CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 5 of 15 Bank of India, prepared in the name of defendant No.1 and also got prepared the sale documents, however, later defendant no.1 back tracked, which forced the plaintiff to get a legal notice dated 21.01.2013 sent to him.
9. It is also averred that in the month of March2013, defendant No.1 approached the plaintiff with the request for further payment of Rs.1,00,000/ on the assurance that he would complete the balance/pending works by April2013 and that he would hand over the possession of the flat and execute notarized sale documents in the month of April2013. It was further agreed that the aforesaid Demand Draft/pay order of Rs.3,50,000/ would be paid when the possession would be delivered and documents executed, Rs.50,000/ would be paid when the water connection is provided and remaining Rs.50,000/ would be paid at the time of execution and registration of Sale Deed. The plaintiff believing and trusting the defendant No.1's assurances paid Rs.1,00,000/ on 17.03.2013 vide Cheque No. 617023 dated 16.03.2013 drawn on Bank of India, against due receipt. However, the defendant No.1 yet again failed to complete CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 6 of 15 the works.
10. It is averred that on persistent demands, and followup, the defendant No.1 and 2, handed over the possession of aforesaid flat on 10.04.2013, and executed Notarized Sale Documents after receiving Rs.3,50,000/ vide Demand Draft/Pay Order No.264161 dated 05.01.2013 (revalidated on 09.04.2013) drawn on Bank of India, with assurances and promise to complete all the balance pending/incomplete works in the flat as well as in the common areas which were duly mentioned in the Agreement to Sell dated 10.04.2013.
11. It is further averred that the defendants failed to attend the pending/incomplete works in the flat as well as in the common areas, rather the defendant No.1 approached the Plaintiff on 10/01/2014 and sought Rs.50,000/ for providing a legal water connection from Delhi Jal Board, which amount of Rs.50,000/ was duly paid by the Plaintiff to the defendant No.1 on 10/01/2014 under receipt. Yet again, the defendant No.1 failed to keep his promise and cheated the plaintiff and failed to provide even the legal water CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 7 of 15 connection.
12. It is averred that plaintiff has been chasing the defendants to do the needful and in that pursuit, in the last week of March,2014 the Plaintiff was shocked, when the officials of DJB, told him that the water connection provided by the defendant No.1 was unauthorized, fraud and fake and no such connection had been provided by the DJB. Aggrieved, immediately the plaintiff, through his wife, made Complaint to the local police, where the defendant No. 1. promised to sort out the issue and provide legal water connection from DJB and also provide original receipts for deposit of the requisite charges with/from DJB. At this stage, it was also agreed, by both the defendants, that the short term friendly loan of Rs.50,000/ (Rs. Fifty thousand) by cash and cheques, given by plaintiff to the Defendant No.2, shall be adjusted against the balance amount of Rs.50,000/ which was payable at the time of execution and registration of Sale Deed and that they would soon execute the Sale Deed and have it registered. However, the Defendants have been dillydallying and have yet not executed and registered the Sale Deed, though the entire Sale CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 8 of 15 consideration for the flat has been paid to and reached the Defendant No.1.
13. It is averred that the defendant No.1 and 2 tactfully and with ulterior motives extracted the full consideration amount of Rs.11,00,000/ from the plaintiff, however, they neither completed the remaining incomplete and pending works, nor provided legal water and electricity connection, house tax paid receipts and nor the defendants executed and registered the Sale Deed in favour of the Plaintiff till date. Thereafter, the plaintiff got a Legal Notice dated 12/12/2014, issued to the defendants, to do all the needful; however, they again failed to act.
14. It is averred that the defendants have encroached approx. fifty percent area of parking 23 months back and now they are also want to encroach the remaining parking area.
15. It is averred that despite repeated requests and pleas of the plaintiff the defendants No.1 and 2 have failed to do the needful. The Plaintiff has got no other efficacious remedy but to file the present suit.
CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 9 of 15
16. It is averred that the cause of action firstly arose on 01/08/2012 when the plaintiff made advance for the purchase of the flat in question to the defendant No.1 and then on 06/08/2012 when a formal agreement to sell was executed between them. It again arose on dates when payments were demanded and when the payments were made. It also arose on dates when the Defendant No.1 admitted that the works were incomplete and when he promised and assured to complete the pending works but failed to do so. It arose on 10/04/2013 when the Defendants sold the flat in question, executed notarized documents and handed over the possession thereof, to the plaintiff and defendant No.1 collected the demanded payment and promised to complete the pending works and further agreed to receive Rs.50,000/ when the water connection is provided and the remaining Rs.50,000/ at the time of execution and registration of Sale Deed. It again arose when the Defendant No.1 collected Rs.50,000/ in the garb of providing legal water connection and when he failed to do so. The cause of action also arose when notices were sent to the defendants but they failed tocomply with the same and on 05/04/2016. CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 10 of 15 As the defendants haveyet not completed the pending works and not executed and registered the sale deed, the cause of action still subsists.
17. The defendant was served with the summons of the suit. However, none appeared on behalf of defendants and were proceeded exparte vide order dated 25.07.2016 and matter was kept for exparte PE.
18. Plaintiff led his exparte evidence by examining himself as PW1 by way of affidavit which is Ex.PW1/A reiterating the averments made in the plaint. The Agreement to Sell is Ex.PW1/D1 and possession letter is Ex.PW1/D2. Payment receipt dated 06/08/2012 is Ex.PW1/D3. The payment receipts dt.22/08/12 and 31/08/2012 are Ex.PW1/D4 and PW 1/ D5. Defendant No.1 expressly agreed and promised to pay damages to the plaintiffwhich is Ex.PW1/D6. Telegram receipt is Ex.PW1/D7 and letter dated 02/12/2012 & speed post receipt is Ex. PW1/ D8 & its delivery receipt is Ex.PW1/ D9. The plaintiff again issued a letter dated 17/12/12 to defendant No.1, the speed post receipt & letter are CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 11 of 15 Ex.PW1/D10. Legal notice dated 21/01/2013 sent to defendant No.1 and its Speed Post receipt is Ex.PW1/D11. Vide cheque No 617023 dated 16/03/2013 drawn on Bank of India, plaintiff made payment of Rs. 1,00,000/. Payment receipt of cheque is Ex.PW1/D12. Plaintiff further paid Rs.3,50,000/ vide D.D/Pay Order No.264161 dated 05/01/2013 drawn on Bank of India, DD/Pay Order Receipt. Ex.PW 1/D13. The payment receipt of Rs. 50,000/ is Ex.PW1/D14. The police complaint is Ex.PW1/D15(Colly),and cheque encashment/payments PW1/D16(Colly). Legal Notice dated 12/12/2014, issued to the Defendants, to do all the needful is Ex.PW1/D17 and its delivery proofs AD/Cards are Ex.PW1/D18 to PW1/ D19. The replycum notices dated 19/03/2015 with speed post receipt is Ex.PW1/D20 and PW1/D21 and its delivery receipts are Ex.PW1/D22 and Ex.PW1/ D23. The List of pending works is Ex.PW1/D24.
19. I have heard the Learned Counsel for the plaintiff and perused the case file.
20. It is the case of the plaintiff that despite making full CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 12 of 15 payment of the consideration amount of Rs. 11,00,000/ defendants have failed to execute the sale deed in favour of plaintiff despite repeated requests. It is also the case of the plaintiff that despite repeated requests, defendants have failed to complete the work in the flat in question. Plaintiff has filed the documents showing the payments made to the defendants as well as the agreement to sell vide which the defendants were under obligation to execute the sale deed in favour of the plaintiff along with other things as prayed in the prayer clause of the plaint.
21. The present case has been filed within the limitation period and sufficient cause of action for filing the present suit has been established. The defendant has not appeared to rebut the testimony of PW1 or to crossexamine PW1 and the defendants were proceeded exparte.
22. In view of the unrebutted and uncontroverted testimony of PW1, there is no reason to disbelieve the averments made in the plaint and the testimony of plaintiff's witness and the documents which have been produced and proved on record by the plaintiff CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 13 of 15 especially as there is no evidence to the contrary. Accordingly, the suit of the plaintiff is entitled for decree of specific performance, mandatory and permanent injunction.
23. The suit of the plaintiff is decreed in the following terms.
(i) defendants shall execute and get a sale deed registered before the concerned SubRegistrar to perfectly convey the title in respect of Left side Flat/portion of the First Floor of the property bearing No.1466D/13 Govindpuri Kalkaji, New Delhi110019, in favour of plaintiff;
(ii) defendants shall complete the remaining balance works and remove the defects in the flat as well as in the common areas, i.e. provide the railings, do the running,polishing,etc. and complete all other pending works in the staircase well;
(iii) defendants shall clear all the property tax and other dues upto 1042013 and provide a No Dues Certificate to that effect;
(iv) defendants shall restore the common parking area in full size i.e. 10'x12' a Stilt level;
(v) defendants shall not create hindrances/constructions/obstructions CS No. 9920/16 Nemi Chand Saluja Vs. Baldev Singh & Anr. Page No. 14 of 15 and lock the way to the use of common terrace and parking by the plaintiff.
24. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
Announced in Open Court (Pooran Chand)
th
On this 08 day of March, 2017 ADJ06 (South East)
Saket Courts, New Delhi
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