Delhi District Court
Sh. Anoop Arora vs . M/S M. Tech. Dev. P. Ltd. on 21 August, 2018
Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE-
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
CS No. 7502/16 Digitally
Case ID No. DLST01-000399-2012 signed by
In the matter of:
JYOTI JYOTI KLER
Date:
Shri Anoop Arora
KLER 2018.08.23
10:34:49
S/o Sh. Sudesh Kumar Arora +0530
R/o House no. 1242, Sector-16
Faridabad-121002 (Haryana)
.............Plaintiff
Versus
M/s M-Tech Developers Pvt. Ltd.
144-4/A, 4/B
Hari Nagar, Ashram
New Delhi - 110014
Through It's Managing Directors
Also At:
M/s M-Tech Developers Pvt. Ltd.
ANS House
LGF, 144/2
Ashram, Mathura Road
New Delhi - 110014
..............Defendant
CS No.7502/16 Page 1 of 14
Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
Date of Institution : 09.01.2012
Date of Reserving the Judgment : 03.08.2018
Date of Pronouncement : 21.08.2018
Decision : Decreed
JUDGMENT IN A SUIT FOR RECOVERY OF RS. 5,12,000/-
(RUPEES FIVE LACS TWELVE THOUSAND ONLY) ALONGWITH
PENDENTE LITE AND FUTURE INTEREST @ 24% P.A.
1.Plaintiff is the citizen of India, residing at Faridabad, Haryana. The defendant company is having its office at Ashram, Mathura Road, engaged in the business of real estate development including construction and development of various residential and commercial projects.
Case of the Plaintiff
2. The defendant launched a residential project M-Tech Camellia Garden, Phase-II, Bhiwadi, Rajasthan (hereinafter referred as 'the Project'). Plaintiff was interested to purchase a plot in the Project and approached the defendant for detailed information. On the basis of representation of the defendant that the project was one of the elegant town ship, plaintiff agreed to purchase a plot measuring 200 square yards for consideration of Rs.8,50,000/-. A sum of Rs.2,00,000/- was paid towards the booking amount by way of cheque bearing no. 718954 dated 17.07.2006 drawn on Oriental Bank of Commerce. Defendant issued a receipt bearing no. P-588 dated 04.08.2006. The defendant informed vide its letter dated 25.06.2008 that approval from CS No.7502/16 Page 2 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
various departments were taking time, the investment would give excellent return and plaintiff was advised to remain patient. The defendant had promised to hand over the plot within 36 months from the date of booking however no information was received from the defendant for 5 years. The plaintiff also got to know that the defendant had indulged into mass scale fraud with investors. Hence, a notice dated 17.10.2011 was issued by the plaintiff to the defendant terminating the contract. Plaintiff also sought return of Rs.2,00,000/- with interest @24% per annum and Rs.50,000/- for damages towards breach of contract. Defendant did not return the amount however. Hence, plaintiff instituted the present suit seeking Rs.2,00,000/- towards principal amount, Rs.2,62,000/- towards interest w.e.f. 17.07.2006 till 01.01.2012 and Rs.50,000/- towards damages for breach of contract i.e. total sum of Rs.5,12,000/- with pendente lite and future interest @24% per annum.
Case of the Defendant
3. Defendant alleged that the plaintiff did not serve any notice before instituting the present suit. There was no written contract between the plaintiff and the defendant. Suit was barred under Section 41 of the Specific Relief Act. It is also averred that the suit is barred by limitation. It is stated that the plaintiff had invested money with the defendant with sole motive of multiplying it. The defendant invested huge amount for purchasing and improving the land so plots could be allotted to the intended purchasers. However, some of the intended purchasers like plaintiff invested only a proportion of the total cost and did not pay the remaining amount. Since CS No.7502/16 Page 3 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
plaintiff also had failed to pay the balance amount, the booking amount of Rs.2,00,000/- was forfeited.
Rejoinder
4. Plaintiff has denied the averments raised in the written statement and reiterated contents of the plaint. It is stated by the plaintiff that there was written contract between him and defendant since application dated 17.07.2006 was filled by him and part payment was received by the defendant against receipt. The defendant failed to deliver possession within stipulated period of three years. The instant suit has been filed within three years from the date fixed for performance of contract.
Issues
5. On the basis of pleadings, following issues were framed vide order dated 04.10.2012:-
1) Whether the present suit is barred by limitation? OPD
2) Whether no written contract was executed between the plaintiff and the defendant with respect to present suit and what are the consequences? OPD
3) Whether the plaintiff is entitled to recovery of suit amount? OPP
4) Whether the plaintiff is entitled to interest on the suit amount? OPP
5) Relief.CS No.7502/16 Page 4 of 14
Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
Plaintiff's Evidence
6. Plaintiff stepped in the witness box and examined himself as PW1 by way of evidence affidavit Ex.PW1/A. He reiterated contents of the plaint in the said affidavit and relied upon the following documents:-
S.No. Documents Exhibit numbers
1. Receipt of payment dated 04.08.2006 Ex.PW1/1
2. Print out taken from the web site of the Ex.PW1/2
defendant company reflecting that
approval was pending with respect to the
Project.
3. Legal notice dated 17.10.2011 sent by the Ex.PW1/3
plaintiff to the defendant
4. Two postal receipts and two courier Ex.PW1/4 to Ex.PW1/7
receipts.
5. Tracking report of the couriers sent to the Ex.PW1/8.
defendant company.
6. Plaint Ex.PW1/9
7. Letter dated 25.06.2008 Ex.PW1/10
8. Copy of Advance Registration Mark A
Application Form
9. Copy of a newspaper report on which Mark B
date and name of the newspaper is not
reflected.
10. Affidavit under Section 65 B of the Ex.PW1/B
Indian Evidence Act with respect to
Ex.PW1/2 & Ex.PW1/8.
7. PW1 was cross examined by the defendant wherein he admitted that he did not make any other payment to the defendant except Rs.2,00,000/-. He admitted that there was no written contract between plaintiff and the defendant. He stated that he had document to show that he had booked a plot in CS No.7502/16 Page 5 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
the Project.
Defendant's Evidence
8. Defendant examined Sh. Amit Jha, its Director, as DW1 by way of evidence affidavit Ex.DW1/A wherein the defence as per written statement was reiterated.
9. Defendant no. 1 deposed during his cross examination that possession of the plots at the Project had been handed over to each of the buyers who made full payment. He also deposed that a notice regarding forfeiture of payment was sent to the plaintiff and demand notice for further payment, after Rs.2,00,000/-, was also sent to the plaintiff. He however admitted that none of these two documents i.e. demand notice & notice regarding forfeiture were placed on record by the defendant. He admitted the payment receipt Ex.PW1/1. He denied the suggestion that no demand letter or notice regarding forfeiture of payment was placed on record because no such notices were sent. He admitted that official web site of the defendant was www.m-techdevelopers.com.
Final Arguments
10. Final arguments were heard.
11. Ld. Counsel for the plaintiff argued that entire case of the plaintiff has been admitted by the defendant and the defendant was not able to prove its CS No.7502/16 Page 6 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
defence hence, plaintiff is entitled to return of booking amount of Rs.2,00,000/- with interest.
12. Ld. Counsel for the defendant argued that there was no contract between the plaintiff and defendant. The sum of Rs.2,00,000/- paid by the plaintiff to the defendant was a deposit made by the defendant and time for recovering this deposit was three years from the date of deposit. The instant suit was filed after almost three years and therefore is barred by limitation.
Appreciation of Evidence and Finding in view thereof
13. I have considered the rival contentions and perused the record. My issue wise findings are as below:-
Issue no.1: Whether the present suit is barred by limitation? OPD
14. Onus to prove issue no.1 was upon the defendant. Ld. Counsel for the defendant argued that payment of Rs.2,00,000/- made by the plaintiff was a deposit. However it is not the case of the defendant in entire pleadings. It is clearly discernible from the record that the plaintiff had paid a sum of Rs.2,00,000/- to the defendant as booking amount for purchase of a plot in the Project. This fact was admitted by DW1 in his cross examination also. Plaintiff deposed in his evidence affidavit Ex.PW1/A that possession of the plot was to be handed over to him by the defendant within 36 months of the booking. No cross examination of PW1 was done by the defendant on this aspect. This aspect has therefore gone unrebutted and unchallenged.
CS No.7502/16 Page 7 of 14Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
15. It thus is established on the scale of balance of probabilities that there was an agreement between the plaintiff and the defendant for purchasing a plot in the Project for which plaintiff paid an amount of Rs.2,00,000/- on 17.07.2006. Possession of the plot was to be handed over within three years from the date of booking. Hence, the contract was to be performed by 17.07.2009. The instant suit has been filed on 09.01.2012 i.e. within three years from the expiry of period fixed for performance of contract. It is provided in Article 55 of the Schedule to the Limitation Act, 1963 that a suit for compensation due to breach of contract shall be instituted within three years from the date contract is broken. In the present case, contract was to be performed by 17.07.2009 and hence limitation period began to run on 17.07.2009. The suit has been filed on 09.01.2012 i.e. within three years from the said date and hence is within the limitation period. Issue no.1 is accordingly decided in favour of the plaintiff and against the defendant.
Issue no.2: Whether no written contract was executed between the plaintiff and the defendant with respect to present suit and what are the consequences? OPD
16. Onus to prove issue no. 2 was upon the defendant. It is case of the defendant that no written contract was executed with the plaintiff and therefore the suit is not maintainable. The plaintiff avers that there was a contract between him and the defendant for purchasing a plot in the Project, but it was not reduced in writing, and the application form filled by him, copy of which is CS No.7502/16 Page 8 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
Mark A & the payment receipt Ex.PW1/1 amount to written contract. None of these documents have been denied by the defendant. The document Mark A has not been proved as original was not produced. Ex.PW1/1 is only a receipt of payment and does not contain other terms and conditions of the contract. It is an admitted case that no further documents were executed in writing between the parties with respect to the transaction in question. It is thus clear that there was no written contact between the plaintiff and the defendant for purchasing a plot by the plaintiff in the Project.
17. There is no legal requirement that every contract has to be in writing. A contract may be oral or in writing except when it is provided by any law that a specific contract shall be in writing only. (Referred Section 10 of the Indian Contract Act, 1872). The contract which is subject matter of this suit is a contract for sale of a plot. The contract for sale of immovable property need not be in writing except in cases where possession of the immovable property is also being delivered in part performance of the contract for sale. Possession in this case was not delivered to the plaintiff and therefore there was no requirement that the contract for sale was to be reduced in writing. Hence, the fact that there was no written contract between the plaintiff and the defendant is of no consequence as long as oral contract has been proved. Issue no.2 is accordingly decided in favour of the plaintiff and against the defendant.
Issue no.3: Whether the plaintiff is entitled to recovery of suit amount? OPP and CS No.7502/16 Page 9 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
Issue no.4: Whether the plaintiff is entitled to interest on the suit amount?
OPP
18. Onus to prove issue no. 3 & 4 was upon the plaintiff. It is case of the plaintiff that he had paid a sum of Rs.2,00,000/- to the defendant. The factum of payment was specifically denied by the defendant in the written statement. The plaintiff relied upon payment receipt Ex.PW1/2 in proof of the fact that Rs.2,00,000/- was paid. This payment receipt was admitted by DW1 during cross examination. It is thus sufficiently proved that plaintiff had paid a sum of Rs.2,00,000/- to the defendant.
19. It is case of the plaintiff that he is entitled to recover the said amount because defendant did not perform its part of the obligation under the contract for sale. It is averred that possession of a plot was to be handed over within 36 months of booking which was not done. The time fixed for performance of the contract for sale was not controverted by the defendant and no cross examination of PW1 was done on this aspect. Admittedly, no plot was given to the plaintiff by the defendant. Plaintiff relied upon Ex.PW1/2, print out taken from the website of the defendant, reflecting that certain approvals were pending with respect to the Project. No questions were put to PW1 with respect to this document and DW1 rather admitted the website address of defendant company.
20. The case of the defendant is that the plaintiff did not make balance CS No.7502/16 Page 10 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
payment due to which the booking amount of Rs.2,00,000/- was forfeited. However, defendant has not proved any demand notice to show that balance payment was demanded. No letter regarding forfeiture of booking amount also has been proved by the defendant. To the contrary, there is a letter dated 25.06.2008, which is Ex.PW1/10, written on the letter head of the defendant company reflecting that the Project had not been approved by the Government. In such a scenario, it clearly appears from the material on record that defendant was unable to perform its part of the contract within the agreed time period i.e. 36 months & even beyond that for next two years.
21. Plaintiff terminated the contract vide legal notice Ex.PW1/3 dispatch of which has been proved by receipts Ex.PW1/4 to Ex.PW1/8. Ex.PW1/4 & Ex.PW1/5 are postal receipts of registered post sent to the defendant. It is not the case of the defendant that these postals are not properly addressed. Thus there is a presumption that the notice was delivered to the defendant. The contract between the plaintiff and defendant stood terminated due to non performance by the defendant, in view of notice Ex.PW1/3. The rebutable presumption of delivery of notice has not been rebutted by the defendant. It is crystal clear from the record now that defendant was guilty of non performance of its obligation under the contract for sale. Contract was therefore terminated by the plaintiff. Since defendant is guilty of non-performance, it is the defendant who is bound to pay damages as per Section 73 of the Indian Contract Act, 1972, that reads as below:-
CS No.7502/16 Page 11 of 14Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
"73. Compensation for loss of damage caused by breach of contract. - When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Compensation for failure of discharge obligation resembling those created by contract.-- When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.-- in estimating the loss or damages arising from a breach of contract, the means which existed or remedying the inconvenience caused by the non-performance of the contract must be taken into account."
22. Plaintiff has claimed return of booking amount of Rs.2,00,000/- and damages for breach of contact to the tune of Rs.50,000/-. No specific evidence was led on the aspect of damages to the tune of Rs.50,000/-. Damages for breach of contact can be awarded as per Section 73 of Indian Contract Act, 1872, for which actual damages / loss will have to proved. Plaintiff has only proved payment of Rs.2,00,000/- which is being enjoyed by the defendant since 17.07.2006. Plaintiff is also entitled to claim interest against the said deposit which was wrongfully withheld by the defendant from the date of termination of contract. Plaintiff is thus entitled to refund of Rs.2,00,000/- only and not the further damages. Issue no. 3 is accordingly partly decided in CS No.7502/16 Page 12 of 14 Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
favour of plaintiff and against the defendant.
23. Coming to the rate of interest, plaintiff has not averred that there was any agreement between him and the defendant regarding rate of interest that was to be paid. The plaintiff has claimed interest @24% per annum which is exorbitant and cannot be awarded in the absence of any specific contract to this effect. Plaintiff however is entitled to interest at least upto Prime Lending Rates prescribed by RBI.
Relief
24. In view of discussion above, it is held that plaintiff is entitled to recover a sum of Rs.2,00,000/- from the defendant with pre suit interest @ 12% per annum w.e.f. 17.10.2011 (date of termination of contract), pendente lite interest @ 12% per annum and future interest @ 6% per annum.
Decision
25. The suit is decreed in favour of plaintiff and against the defendant in the sum of Rs.2,00,000/- with pre suit interest @ 12% per annum w.e.f. 17.10.2011, pendente lite interest @ 12% per annum and future interest @ 6% per annum.
26. Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
CS No.7502/16 Page 13 of 14Sh. Anoop Arora Vs. M/s M. Tech. Dev. P. Ltd.
27. Decree sheet be prepared accordingly.
28. File be consigned to Record Room.
Announced in the open (JYOTI KLER)
Court on 21.08.2018 ADJ-05 (SOUTH DISTRICT)
(Judgment contains 14 pages) SAKET COURTS, NEW DELHI
CS No.7502/16 Page 14 of 14