Delhi District Court
Dhiraj Grover vs Imperia Structures Ltd on 31 July, 2024
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH
EAST DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) 456/2019
1. SH. DHIRAJ GROVER
S/o Sh. L.D. Grover
2. SMT. SHIKHA PASRICHA
W/o Sh. Dhiraj Grover
Both R/o KU-41, Pitampura,
New Delhi-110088 ..... PLAINTIFFS
VERSUS
IMPERIA STRUCTURES LTD.
Through its Director
Harpreet Singh Batra
Having the registered office at :
A-25, Mohan Co-operative Industrial Estate
New Delhi - 110 044 .....DEFENDANT
Date of Institution : 02.11.2019
Date when final arguments heard : 20.07.2024
Date of Judgment : 31.07.2024
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 1/ 25
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of Rs. 6,18,540/- alongwith pendenta lite and future interest @ 18% p.a. filed by the plaintiffs against the defendant.
2. Brief facts of the case as per plaint that the defendant is engaged in the business of real estate and developing of plots/ buildings/ society/ flats. In the month of February/ March, 2012, one Brijesh Kumar, AR of the defendant approached the plaintiffs at their residence at Pitampura and represented that the investments in the project of defendant shall result in good profit and apprised of launching their new project of IT office spaces by the name of The Byron at Sector 62, Gurgaon, Haryana. also represented that the defendant company had the relevant sanctions and were permitted to allot various IT offices spaces of different specifications, sizes, developed/ constructed by the defendant persons.
3. On the assurances of representative and officers of the defendant, the plaintiffs agreed to book an IT office space measuring 500 sq. ft. at the basic sale price of Rs. 6,000/- per sq. ft. in the said project. The defendant through its agent got signed application form from plaintiffs at their address i.e. KU-41, Pitampura, New Delhi and also paid Rs. 3.5 Lacs towards installment through cheque which was collected by the agent from their residence address at Pitampura. The acknowledgment CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 2/ 25 receipt dt. 27.04.20212 for the said amount was also issued enclosing a welcome letter. The plaintiffs thereafter received a demand letter issued by AR of defendant dt. 28.06.2012 asking to deposit further amount of Rs. 2,68,540/- towards the installment. The plaintiffs accordingly made the payment through cheque dt. 07.07.2012 which was collected by the agent of defendant from the residential address of the plaintiffs.
4. The plaintiffs contacted the agents several times in the month of September, October and December, 2012 and in the month of March, August and November, 2013, however, Mr. Brijesh of the defendant gave false assurances that the project will start soon, however, in the month of January, 2014, the plaintiffs received a letter from Anthony Malik of defendant informing about the Bhoomi Poojan of the said project but nothing happened. The plaintiffs did not take off for last 2 years therefore, the plaintiffs again approached the CRM Junior Head Mr. Sachin Chaudhary who also assured that the project will start soon.
5. On 08.12.2015, after about 3 years, the defendant company raised a demand letter of Rs. 3,13,050/- towards the installment. The defendant company again sent a reminder to the said demand on 29.12.2015, however, as per the demand schedule, the third payment was due on 90 th day of the date of booking of flat which was on 14.07.2012 but the defendant CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 3/ 25 company not raised the demand for third payment for about 3 years. Thereafter the plaintiffs again approached Sh. Vipin Gupta (CRM Junior Head) for clarification to give original agreement asked about construction progress, date of possession, however, he remained silent and stated that it shall be provided shortly and insisted for payment.
6. On 15.03.2016, the plaintiffs again got another letter from the defendant that project has been changed from Byron to Mindspace and demanded more payment, however, the plaintiffs refused to make further payment. The plaintiffs also demanded the documents pertaining to such change, however, Sh. Vipin Gupta on behalf of defendant company insisted on making payment first and only then the documents would be made available. On 07.11.2016, the defendant company sent another demand letter to the plaintiffs demanding further amount. The plaintiffs left no option except to cancel the allotment and thereafter approached Sh. Vipin Gupta on 12.11.2016 who asked them to bring all the documents in their possession and assured them that the defendant company will pay the entire amount i.e. Rs. 6,18,540/- without any deductions. The plaintiffs waited for more than a year on false assurances given by the defendant to get back their hard earned money.
7. On 02.11.2017, the defendant company sent a cancellation letter referring to clause 20 and sent a payment of CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 4/ 25 Rs. 65,730/- in favour of plaintiffs towards refund. The plaintiffs was cheated and, therefore, lodged a complaint on 30.12.2017 but police has not taken any action. Thereafter, a complaint U/s 200 CrPC alongwith application U/s 156(3) of CrPC filed which is still pending. Thereafter the plaintiffs filed the present suit claiming following relief :
i) Direct the defendant and its directors etc. to pay a sum of Rs.
6,18,540/- (Rupees Six Lacs Eighteen Thousand Five Hundred and Forty Only) to the plaintiffs alongwith interest @ 18% p.a. from the date of payment till its realization.
ii) Award cost of the suit in favour of the plaintiffs and against the defendant.
8. In written statement, it is stated by the defendant that the defendant obtained the occupation certificate on 02.06.2022 in respect of Tower C which has been named as Mindspace and the unit which was allotted to the plaintiffs is located in the said tower. It is also stated that the plaintiffs seek to recover the entire amount paid by them to the defendant which recovery runs patently and independently contrary to both their own cancellation letter dt. 12.11.2016 and clause 12 of the application form itself. The plaintiffs thereafter cannot escape from admissions, and are preluded and estopped from leading any oral evidence contrary to the said letter dt. 12.11.2016. No cause of action exist in favour of the plaintiffs.
9. The defendant vide cancellation/ termination letter dt. 02.11.2017 deducted the amount of earnest money amongst CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 5/ 25 others is in complete consonance with the letter of cancellation dt. 12.11.2016 as furnished by the plaintiffs. The plaintiffs own case is that the third installment as per their plan was due and payable by 14.07.2012 which the plaintiffs has not paid till the sought cancellation orally in the month of August, 2016 at first instance and by way of writing vide letter dt. 26.11.2016 subsequently thereafter. The documentary proof record filed by the plaintiffs runs contrary to the avernments. It is stated that bare perusal of the payment schedule annexed that the application form would make it abundantly and explicitly clear that the said payment even otherwise was not linked to the stage of construction. The plaintiffs refusal to pay the demand in accordance to the demand letter dt. 08.12.2015 on account of the fact that the plaintiffs lost their faith on the defendant and the limitation in the suit start from 23.12.2015 (i.e. post the expiry of the 15 days period provided for in the demand letter dt. 08.12.2015), therefore, the suit is barred by limitation. Neither the cancellation letter dt. 02.11.2017 nor the cheque given come to the aid of the plaintiffs either under the Section 18 or Section 19 of the Limitation Act could come to aid of plaintiffs for extension of limitation
10. The defendant in parawise reply denied all the avernments of the plaintiffs and reiterated the defense taken in preliminary submissions.
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 6/ 25
11. In replication, the plaintiffs reiterated its stand and denied the avernments made by the defendant in written statement. It is stated that the defendant failed to allot the unit and even defendant failed to obtain the occupation certificate qua the said project after passing of considerable period and consequently plaintiffs was constrained to cancel the booking and called the defendant to pay the amount with interest. The plaintiffs issued the cancellation letter dt.12.11.2016 feeling aggrieved the inaction part of the defendant, therefore liable to refund the entire amount with interest and cost etc. The letter of cancellation dt. 02.11.2017 issued by the defendant was not received by the plaintiffs and there was no occasion for the defendant to issue the letter when the plaintiffs had already cancelled the said booking. The defendant had no right to deduct any amount from the earnest money or otherwise. The defendant always kept the plaintiffs in dark and always made false declaration about their project and their directors cheated and defrauded the plaintiffs. The plaintiffs were always ready to pay as per the agreed terms but the defendant failed to adhere to their premises and failed to start the project at the spot and other activities. The demand letter dt. 08.12.2015 is fabricated and manipulated one. The present suit is filed within limitation. The cancellation letter dt. 02.11.2017 and cheque are sufficient to file CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 7/ 25 and maintain the suit against the defendant and suit of the plaintiffs is within limitation.
12. On completion of pleadings, vide order dt.
10.04.2023, following issues were framed :
(i) Whether this court has subject matter jurisdiction to adjudicate the present matter? OPP
(ii) Whether the suit is within limitation? OPP
(iii) Whether the suit has been valued correctly for the purpose of court fee? OPP
(iv) Whether the plaintiffs is entitled to decree of recovery of Rs. 6,18,540/- ? OPP
(v) Whether the plaintiffs is entitled to interest, if yes, then at what rate? OPP
(vi) Whether the plaintiffs is entitled to cost of the present suit? OPP
(vii) Relief
13. The plaintiffs examined PW1 Ajay Grover and defendant examined DW1 Manish Gupta, AR of defendant company.
Brief Summary of evidence
14. PW1 Sh. Ajay Grover has tendered his affidavit of evidence as Ex.PW1/A and in cross examination stated that Sh. Dhiraj Grover was involved in the business with him and presently shifted to Canada for his business and the application form signed and submitted through the defendant was pertaining CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 8/ 25 to allotment of space at Sector 62, Gurugram. The said form was signed at Pitampura residence and thereafter shifted to present address in the year 2022, and at the time of signing of application form, the plaintiffs did not read all the terms and conditions. The acknowledgment receipt of Rs. 3.5 Lacs was received on 27.04.2012. The plaintiffs had paid a total sum of Rs. 6,18,540/- through cheque of Rs. 3,50,000/- dt. 14.04.2012, cheque of Rs. 2,68,540/- dt.07.07.2012. He stated that it is correct that no further payment was made by the plaintiffs despite issuance of demand letter dt. 08.12.2015. Volunteered that the demand letter was to be issued within 90 days but was received after 3 years. The defendant cancelled the booking of the plaintiffs on 02.11.2017. The said cancellation was not challenged in the present suit or any other proceedings.
15. DW1 Sh. Manish Gupta has tendered his affidavit of evidence as Ex.DW1 and in cross examination stated that he had joined the defendant company as Legal Manager one and a half years back and he did not aware whether he is authorized to lead evidence in the present matter. The project Byron was started by defendant company in the year 2011. He did not know when the defendant company got the sanction plan of the project namely Mindspace. He further stated that the plaintiffs applied for virtual IT office space in the year 2012 but he did not know whether the defendant company had taken any sanction plan after starting the CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 9/ 25 project Mindspace. All the approvals such as fire NOC and other related NOCs were taken by the plaintiffs time to time. He however stated that he did not remember when these NOCs was applied and obtained by the defendant company. He stated that it is correct that pursuant to the plaintiff's applied in the project namely Mindspace, the payment plan/price list was shared with the plaintiffs by the defendant. The demand letter dt. 28.06.2012 (Ex.PW1/4) was sent by the defendant company to the plaintiffs and the plaintiffs complied with the said demand letter and prior to said letter, paid the booking amount of Rs. 3.5 Lacs. He further stated that he did not know whether the demand dt. 08.12.2015 sent after lapse of 3 years. He also stated that it is correct that it is a matter of record that any interest charged to the plaintiffs in the letter dt. 08.12.2015 was unilaterally issued by the defendant company without any justification. He also stated that it is correct that the third demand was due within 90 days of the booking/ receipt of sanctioned plan. It is also a matter of record that in Ex.PW1/1 that this payment plan/ application form does not mention regarding the payment made on application or receipt of sanction plan. It is also correct that assured return of 12% p.a. is mentioned in the application form. He stated that it is correct that letter dt. 08.12.2015 (Ex.PW1/6) was not sent within the specified period, however, it is the responsibility of customer to follow the payment schedule. He also stated that it is correct CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 10/ 25 that the letter of cancellation/ refund of payment made to the defendant company by the plaintiffs is a formatted letter Ex.PW1/9. He further stated that he do not know when the occupation certificate was applied and it was applied within time as specified by clause 16 of application form. He also stated that it is a matter of record that in terms of clause 15, the defendant is liable to pay compensation of Rs. 10 per sq. ft. per month. He denied the suggestion that there was delay in the project. He also denied the suggestion that pursuant to the cancellation of booking by the plaintiffs, the entire amount was not given nor any compensation was given. He also stated that it is correct that some investors approached NCLT, however, only for assured return and the matter has already been settled.
Material Exhibits :
16. Mark A is the copy of police complaint dt.
30.12.2017; Ex.PW1/1(Colly) is the copy of application form and payment schedule; Ex.PW1/2 is the copy of letter dt. 27.04.2012; Ex.PW1/3 is the copy of receipt of amount of Rs. 3.5 Lacs dt. 20.04.2012; Ex.PW1/4 is the copy of demand letter dt. 28.06.2012; Ex.PW1/5 (OSR) is the copy of cheque dt. 07.07.2012; Ex.PW1/6 is the copy of demand letter dt. 08.12.2015; Ex.PW1/7 is the copy of letter dt. 15.03.2016; Ex.PW1/8 is the copy of Bhumi Poojan letter; Ex.PW1/9 is the copy of letter dt. 12.11.2016 regarding cancellation of booking CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 11/ 25 written by the plaintiffs to the defendant; Ex.PW1/10 is the copy of letter dt. 02.11.2017 is the copy of cancellation letter written by the defendant to the plaintiffs; Ex.PW1/11 is the copy of SPA; Ex.PW1/12 is the certificate U/s 65B of Indian Evidence Act.
Original cheque bearing no. 716196 dt. 24.11.2017 is exhibited as Ex.PW1/10A as the same is part of Ex.PW1/10.
Ex.DW1/1 (OSR) is the Copy of Board Resolution dt. 03.02.2023; Application form is already exhibited Ex.PW1/1; Ex.DW1/2 is the ledger account; Ex.DW1/3 is the occupation certificate dt. 02.06.2022; Demand letter dt. 08.12.2015 is already Ex.PW1/2; Cancellation/ termination letter dt. 02.11.2017 is already Ex.PW1/10; Cheque bearing no. 716196 for a sum of Rs. 65,730/- is already Ex.PW1/10A; Ex.DW1/4 is the certificate U/s 65B of Indian Evidence Act.
Submissions of counsels :
17. Ld. Counsel for plaintiffs submitted that the defendant failed to start its project and also failed to give appropriate response to the same. Further, the payment of third installment which is to be raised within 90 days, was raised after
3 years. The plaintiffs has to claim the refund amount on a formatted cancellation letter of defendant. The defendant issued a letter dt. 02.11.2017 accepting the request for cancellation of IT space, however, plaintiffs did not acknowledge the cheque of Rs.
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 12/ 25 65,730/- and the defendant not paid full amount. The formatted letter dt. 12.11.2016 Ex.PW1/9 itself reveals that the plaintiffs only filled the format provided by the defendant whereby the defendant himself mentioned in the last para of letter regarding "refund of the amount paid". The said letter do not mention about any forfeiture of the amount and if plaintiffs know forfeiture of the amount then the plaintiffs would not have gone ahead with the cancellation. The clause 20 of the application form is one sided clause only to the benefit of defendant, thus, cannot relied upon. The defendant made the payment agreed to the demand, however, the defendant failed to raise the third demand as per the schedule, and third demand is to be raised within 90 days which was raised on 08.12.2015, after a gap of 3 years. The third demand is to be within 90 days of sanction plan, however, there was not mention of receipt of sanction plan. The project was delayed on the part of the defendant even in terms of Ex.PW1/1. No assured return was paid by the defendant to the plaintiffs, the said assured return @ 12% would come to Rs. 1,44,000/- till the cancellation and if the interest is to be calculated at the meager 9% per annum on the said amount, the same would come around Rs. 2,50,000/- till today. As per clause 15 of MOU, the defendant company was to obtain the occupation certificate within 24 months from the date of signing of MOU. The MOU was not executed and the construction activity did not even start until CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 13/ 25 2015-16. The occupation certificate has been received by the defendant qua the project only on 02.06.2022. The defendant has to pay the compensation @ 10% per sq. ft. for the delayed period, however no such compensation has been paid to the plaintiffs. The registered office of the defendant is within the jurisdiction of this court, therefore, this court has jurisdiction to try the present matter. The limitation period will start when the plaintiffs received the cancellation letter Ex.PW1/10 and cheque. The suit is filed within the time. The appropriate court fees is paid. The defendant has no right to deduct such huge amount of Rs. 5,52,810/- and the plaintiffs is entitled for the relief claimed.
18. Ld. Counsel for defendant submitted that this court has no jurisdiction as the immovable property is at Faridabad. Furthermore, the suit is barred by limitation. The court fee is filed after a period of limitation, therefore, the suit is beyond limitation. The plaintiffs themselves opt for cancellation of allotment and the defendant upon the request of plaintiffs issued a cancellation letter and refund of Rs. 65,730/- after deducting 15% of the basis sales price constituting the earnest money alongwith terms and conditions annexed with the application form. The plaintiffs is not entitled for any relief, hence, the present suit is liable to be dismissed.
19. Written submission filed by both the parties.
20. Arguments heard. Record perused.
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 14/ 25
21. My issue-wise findings are as under :
Issue No. (iv) :Whether the plaintiffs is entitled to decree of recovery of Rs. 6,18,540/- ? OPP Issue No. (v): Whether the plaintiffs is entitled to interest, if yes, then at what rate? OPP Issue no. (vi): Whether the plaintiffs is entitled to cost of the present suit? OPP The case of the plaintiffs is that on the assurances of the representative of the defendant company that the plaintiffs will get multiple returns on investment of defendant's project which is to be launched within 3 months in 2012 and the date of possession is to be informed later on, therefore, the plaintiffs agreed to book the IT space measuring 500 sq. ft. in the aforesaid project and paid a sum of Rs. 3.5 Lacs as first installment and thereafter paid a sum of Rs. 2,68,500/- towards another installment on the basis of demand letter dt. 28.06.2012 issued by the defendant. The defendant thereafter not apprised about the initiation of the project, but in the month of January, 2014 received a letter of Bhoomi Poojan but the project could not took off. After about 3 years, on 08.12.2015 plaintiffs received a demand letter of Rs. 3,13,050/- and thereafter reminder of the same on 29.12.2015 but the third payment was due within 90 days i.e. 14.07.2012, however, the defendant not raised any demand letter within 90 days but after about 3 years. The plaintiffs thereafter enquired from Vipin Gupta about the progress CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 15/ 25 of the project but he was silent. However, on 15.03.2016, plaintiffs received another letter from the defendant that the project name has been changed and demanded more payments. Thereafter the plaintiffs refused to make the further payments and alleged to have been cheated by the defendant. The defendant again on 07.11.2016 raised another demand letter. Thereafter the plaintiffs approached Vipin Gupta on 12.11.2016 who assured to return the entire payment of Rs. 6,18,540/- without any deductions. The plaintiffs also handed over the request letter dt. 12.11.2016 for refund of the entire amount, however, not received the refund. But on 02.11.2017, defendant sent a cancellation letter after referring to clause no. 20, and sent a cheque of Rs. 65,730/- dt. 24.11.2017 for refund of the amount.
Therefore, being aggrieved the plaintiffs made police complaint as well as initiated criminal proceedings, and then filed the present suit.
22. The main defense of the defendant is that the plaintiffs themselves applied for the cancellation vide letter dt. 12.11.2016 (Ex.PW1/9), therefore the defendant vide cancellation letter dt. 02.11.2017 (Ex.PW1/10) after considering the relevant clause no. 20 refunded a sum of Rs. 65.730/- after valid deductions. The plaintiffs failed to adhere to the terms and conditions of the allotment, hence, there is no fault of the defendant in cancelling the said allotment.
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 16/ 25
23. To understand the true nature of the dispute, the court has to go through the communications and the documents executed between the parties. The application form (Ex.PW1/1) is admitted. This application form is for the allotment of the premises in question to the plaintiffs in the project of the defendant. There is a payment plan and price list in the said application form which is reproduced as under :
"Construction linked payment plan :
On Booking 10% of BSP
Within 45 days from the booking 10% of BSP
Within 90 days from the booking 10% of BSP
On casting of 2nd Basement floor slab 10% + 50% of EDC & IDC
On casting of ground floor slab 10%
On casting of 2nd floor slab 10% + 50% of EDC & IDC
On casting of 4th floor slab 10% of BSP
th
On casting of 7 floor slab 10% + 50% of car parking
On installation of plumbing 10% + 50% of car parking
On installation of electrical 5.0%
On notice of possession 5.0% + IFMS, EEC, FFC &
Registration charges
The amount to be paid at the time of booking would be applicable as per the status of the construction of relevant tower of the said unit.
Assured Return plan :
Basic Sale Price (BSP) Rs. 6,000/- per sq. ft. Assured Return of 12% per annum payable till possession Thereafter 10% per annum first lease guarantee.
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 17/ 25 As per this construction link payment plan, 10% of BSP (Basic Sale Price) is to be given on booking thereafter further 10% within 45 days of the booking and then further 10% within 90 days from booking, thereafter 10% plus 50% of EDC and IDC on casting of second basement floor slabs and so on. There is a clause of 12% assured return per annum payable till possession. There is no dispute to the fact that the plaintiffs have made an initial payment of Rs. 3.5 Lacs (Ex.PW1/2) and thereafter on demand letter dt. 28.06.2012 (Ex.PW1/4) paid an amount of Rs. 2,68,540/- through cheque (Ex.PW1/5). However, thereafter not received any communication for payment from the defendant and received the demand letter dt. 08.12.2015 (Ex.PW1/6) i.e. after more than 3 years. The defendant not acted upon its payment plan/ price list and the assured return plan as annexed with the application form. This itself suggests that the defendant has not started the project in terms of the assurances and representations made prior to the booking. The defendant even did not send any communication to the plaintiffs between the demand dt. 28.06.2012 and next demand dt. 08.12.2015 regarding reasons of its inability to start project. This itself suggests that the defendant violated the express terms as mentioned in the payment plan and price list, and not begun the construction.
24. DW1 Manish Gupta in his affidavit of evidence CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 18/ 25 exhibited the ledger account of the defendant as Ex.DW1/2. This ledger account is dt. 07.07.2017 and not of Bryon, however, of Imperia Mindspace showing the payment schedule as well as the payments of Rs. 6,18,540/- made by the plaintiffs in two installments. This is the construction link payment plan. The payment schedule mentioned in this Ex.DW1/2 is reproduced as under :
Payment Schedule :
S. Installment Install Total Other PLC IFMS Installment Amt.Dr. Cr. Net Inst. Amt. Amt.
No Name ment date B.P. Charges Amt. Recd. o/s
1. On Booking 20.04.12 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 300000 0
2. Within 45 days 04.06.12 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 300000 0
from the
booking
3. Within 90 days 21.12.15 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 0 300000
of booking/
receipt of
sanction plan
4. On casting of 2nd 22.11.16 3,00,000 97,500 0 0 3,97,500/- 0 0 3,97,500 0 397500
basement floor
slab
5. On casting of 22.07.17 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 0 0
ground floor
slab
6. On casting of 2nd NA 3,00,000 97,500 0 0 3,97,500/- 0 0 3,97,500 0 0
floor slab
7. On casting of 4th NA 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 0 0
floor slab
8. On casting of 7th NA 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 0 0
floor slab
9. On installation NA 3,00,000 0 0 0 3,00,000/- 0 0 3,00,000 0 0
of plumbing
10. On installation NA 1,50,000 0 0 0 1,50,000/- 0 0 1,50,000 0 0
of electrical
11. On notice of NA 1,50,000 75,000 0 75000 3,00,000/- 0 0 3,00,000 0 0
possession
Total 3000000 270,000 0 75000 33,45,000/- 0 0 3345000 600000 697500
In this Ex.DW1/2, the payment schedule do not
accompany the assured plan which was accompanied the CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 19/ 25 previous schedule. Admittedly, in present case, the defendant has also not given any assured plan return despite use of the installments paid by the plaintiffs. The plaintiffs are unilaterally changing the terms and conditions which are prejudicial to the defendant.
25. The main contention of the counsel for the defendant is that the plaintiffs themselves written a letter of cancellation dt. 12.11.2016 (Ex.PW1/9). Therefore, the allotment was cancelled after deducting the earnest money etc. in terms of clause 20 of the agreement vide cancellation letter dt. 02.11.2017 (Ex.PW1/10).
Now, it is pertinent to go through the request of cancellation dt. 12.11.2016 (Ex.PW1/9). This request letter is on a typed format of the defendant having blanks which are filled by the defendant. It is also accepted by the DW1 in cross examination that the cancellation request by the plaintiffs is on the formatted letter. In the said letter, the plaintiffs prayed as under :
" You are requested to please cancel my application/ booking and refund the amount paid in the name of Dhiraj Grover as full and final settlement which I fully accept"
Though this letter the plaintiffs is asking for the refund of the entire amount but there is mentioning of full and final settlement but admittedly no settlement is arrived prior to CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 20/ 25 this letter. This letter cannot be inferred as an admission of the plaintiffs to accept the meagre amount as per cancellation letter dt. 02.11.2017 of Rs. 65,730/- when the plaintiffs had already made an investment of Rs. 6,18,540/- without any receiving of assured return or the communication of progress in the project. DW1 could not state that when the sanctions were taken over the project even the occupation certificate Ex.DW1/3 is also of 02.06.2020 i.e. after delay of 8 years from the initiation of project in 2012.
26. Now, it is pertinent to look into the cancellation letter dt. 02.11.2017 (Ex.PW1/10). As per this cancellation letter, the allotment was cancelled because the plaintiffs had not made the payment inspite of their demand letter dt. 08.12.2015, 07.11.2015, 07.11.2016 and reminder dt. 29.12.2015. There is nothing mentioned in the said cancellation letter that cancellation is due to fact that plaintiffs already applied for cancellation/ refund of the amount paid in terms of letter dt. 12.11.2016 (Ex.PW1/9). The submissions of ld. Counsel for the defendant that the refund of Rs. 65,730/- through cancellation letter dt. 02.11.2017 (Ex.PW1/10) was given because of the cancellation request dt. 12.11.2016 of the plaintiffs(Ex.PW1/9) is thus not at all tenable.
The defendant had taken the substantial payment of Rs. 6,18,540/- in the year 2012, however, not informed about any CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 21/ 25 progress in terms of the assurances nor paid any assured plan return. The third demand was to be raised within 90 days, however, made after more than 3 years i.e. on 08.12.2015 and later on also changed the terms and conditions through letter (Ex.DW1/2) dt. 07.07.2017. There is nothing on record that the defendant acted bonafidely and paid the assured plan return to the other applicant in the similar situation or gave possession on the basis of allotment letter.
27. Upon appreciating the entire evidence on record, it cannot be inferred that the plaintiffs accepted the refund of Rs. 65,730/- on the basis of their request of cancellation of allotment letter dt. 12.11.2016 (Ex.PW1/9). The plaintiffs even not deposited the cheque of Rs. 65,730/-.
The defendant did not adhere to the terms and conditions with the application form. The payments is construction link, however, after taking two installments the defendant remained silent and not communicated with the plaintiffs till 2015. The plaintiffs are not apprised that the defendant is raising the project in terms of the assurances or the payment plan. No assured returns has ever been paid to the plaintiffs. The plaintiff's version that after frustration, they applied for cancellation, however, on a typed format provided by the defendant. The cancellation request dt. 12.11.2016 (Ex.PW1/9) do not in any manner suggests that the plaintiffs are CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 22/ 25 agreed for the deductions as done by the defendant in the cancellation letter (Ex.PW1/10). Even otherwise, the contents of the said cancellation letter dt. 02.11.2017 (Ex.PW1/10) do not suggests that it was issued on the ground of cancellation request dt. 12.11.2016 (Ex.PW1/9), however, it categorically shows that it was cancelled because despite demand letters dt. 08.12.2015, 07.11.2016 and 29.12.2015, the payments were not made. The plaintiffs cannot be forced to make the payments in violation to the initial terms and conditions particularly when the defendant has not undertaken the project in terms of the assurances nor communicated the reasons for non starting of the project. The plaintiffs are kept in dark about the sanction plan and the progress of the project. Therefore, the plaintiffs are entitled for refund of their entire amount. Accordingly, defendant is directed to refund the entire amount of Rs. 6,18,540/- alongwith interest @ 9% from the date of filing of the suit till its realization as well as costs. Accordingly, issue nos. 4, 5 & 6 are decided in favour of the plaintiffs and against the defendant.
Issue no. (i) Whether this court has subject matter jurisdiction to adjudicate the present matter? OPP
28. Ld. Counsel for the defendant submitted that the allotment of office space of 500 sq. ft. in the said project is to be allotted at Gurgaon which is not in the territorial jurisdiction of CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 23/ 25 this court, hence, this court do not have any territorial jurisdiction. The present suit is for refund of booking amount and not for allotment or possession of the said office space. The registered office of the defendant is within the jurisdiction of this court, therefore, this court has territorial jurisdiction to decide present recovery suit. Accordingly, issue no. 1 is decided in favour of the plaintiffs and against the defendant.
Issue No. (ii): Whether the suit is within limitation? OPP
29. The plaintiffs sought cancellation and refund of the amount of Rs. 6,18,540/- vide request letter dt. 12.11.2016 (Ex.PW1/9). The cancellation letter dt. 02.11.2017 (Ex.PW1/10) was issued by the defendant allowing the refund of Rs. 65,730/- which is not found acceptable to the plaintiffs, therefore the limitation begin from the said date and the present suit is filed on 02.11.2019 thus within limitation. The plaintiffs had not filed the appropriate court fees with the plaint. Vide order dt. 13.12.2019, the plaintiffs were granted last opportunity to file the court fees. Thereafter, vide order dt. 01.12.2020, Ld. Predecessor issued court notice to the plaintiffs as the court fees was not filed. The court fees was filed on 05.03.2021. Ld. Counsel for the defendant also submitted that as the court fees was filed after expiry of limitation period, therefore the suit is also barred by limitation on this ground also. However, the Hon'ble Supreme Court in Suo CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 24/ 25 moto writ petition no. 3/2020 vide order dt. 10.01.2022 has excluded the period for the purposes of limitation from 15.03.2020 till 28.02.2022, hence, the present suit is within limitation. Accordingly, issue no. 2 is decided in favour of the plaintiffs and against the defendant.
(iii) Whether the suit has been valued correctly for the purpose of court fee? OPP
30. The plaintiffs have paid the proper ad-volerum court fees of Rs. 8,350/- for recovery of amount of Rs. 6,18,540/-. There is nothing in evidence or arguments that this court fees is not proper. Accordingly, issue no. 3 is decided in favour of the plaintiffs and against the defendant.
RELIEF
31. In view of the aforesaid discussion, the suit is decreed in favour of the plaintiffs and against the defendant for a total sum of Rs. 6,18,540/- along with interest @ 9% p.a. from the date of filing of suit till its realization. Cost of the suit be also awarded to the plaintiffs. Decree sheet be drawn accordingly.
File be consigned to record room after due
compliance. AJAY Digitally signed by
AJAY KUMAR JAIN
KUMAR
Announced in the open court JAIN
Date: 2024.07.31
16:39:44 +0530
on 31st July, 2024 (Ajay Kumar Jain)
District Judge, Comm-03
South-East, Saket Courts, Delhi
CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 25/ 25