Delhi District Court
Ankita Arora vs Taneja Developers & Infrastructure Ltd on 25 August, 2012
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
C.S. No: 17/11
Unique Case ID No.02403C0011992011
Ankita Arora
D/o Shri Ajay Arora
B264/II, Derawal Nagar
G.T. Karnal Road
Delhi110 033 .....Plaintiff
Versus
Taneja Developers & Infrastructure Ltd.
G7, Ground Floor, Connaught Circus
Opposite Madras Hotel Block
New Delhi - 110 001 ..... Defendant
DATE OF INSTITUTION : 26.11.2010
DATE OF ARGUMENTS : 20.07.2012
DATE OF DECISION : 25.08.2012
JUDGMENT
1. By filing the present suit, the Plaintiff seeks a declaration that the letter / notice dated 21.10.2010, issued by the Plaintiff to him be declared as null and void being illegal. Another relief is to pass a decree of permanent injunction, restraining the Plaintiff from canceling the provisional allotment in the name of Plaintiff of Flat No. K20604 in TDI City, Kundli Township Project. A further relief is to pass a decree directing the Defendant to issue receipt of payment received through cheque dated 01.10.2010 and CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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15.11.2010/no dues Certificate till date qua the installments of Flat No. K20604 in TDI City, Kundli Township Project.
Background Facts
2. Background facts as stated in the plaint are that the Plaintiff was alloted a Flat, bearing No. K20604 in TDI City, Kundli Township Project vide I.D. No. KFL17334 in TDI City, Kundli Township Project by the Defendant vide Allotment Letter dated 09.12.2006. It is further stated that the Plaintiff had made the payment of Rs. 7,89,087.50/ (Rs. 7,37,750.50/ towards basic and Rs. 51,337/ towards E.D.C.) to the Defendant towards the payment of installment till 25.06.2008. On 13.08.2010, the Defendant issued a letter to the Plaintiff demanding Rs. 10,55,309.01/ by 31.08.2010. The Plaintiff was also offered change of provisional allotment by transferring her provisional allotment K20604 in Tower, to future blocks, in case, the Plaintiff needs some more time to arrange funds. The Plaintiff was asked to revert within a period of 20 days from the said communication, failing which, the offer of change of her provisional allotment would be deemed to have been accepted by the Plaintiff. On receipt of the said letter, the Plaintiff approached the Defendant through her father 4 - 5 times and finally on 13.09.2010, the father of the Plaintiff met Mr. Anil Kohli (GM Flats) of the Defendant and showed her willingness to make the payment of all the outstanding dues owed towards the Defendant. It was further told to the Defendant that Plaintiff did not want to change her provisional allotment of Flat No. K20604, Kundli Township Project. The father of the Plaintiff was told to wait till 20.09.2010 since, Mr. Kohli was busy in a new upcoming project of the Defendant. On 20.09.2010, the father of the Plaintiff met Mr. Kohli and showed her willingness to make the payment. However, he on behalf of the CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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Plaintiff raised objections regarding interest charged by the Defendant. After some discussion, the concerned authorised official of the Defendant was pleased to put on hold the change of allotment. On 25.09.2010, the concerned official of the Defendant Company told the father of the Plaintiff to wait for 10 minutes since he wanted to discuss the matter with the MD / Chairman regarding waiver of interest. After that, Mr. Kohli told the father of Plaintiff to issue cheques for outstanding amount as he had taken approval from the Chairman for waiver of interest on basic as well as EDC amounts. Thereafter, the father of the Plaintiff, on behalf of the Plaintiff, gave two cheques to the Defendant one of Rs.10,46,123/ dated 01.10.2010, bearing No. 517596 and the other for Rs. 79,250/ dated 15.11.2010, bearing No. 517597. The Plaintiff was also informed in writing on 25.09.2010 that her request for waiver of 100 % interest was approved by the senior officials. However, the Plaintiff was not given any receipt against the aforementioned two cheques that were issued by the Plaintiff to the Defendant. In this manner, it is stated that the Plaintiff had deposited a sum of Rs. 19,14,460/ till 25.09.2010, which constituted more than 90 % of total amount i.e. Rs. 20,72,980/. It is further stated that the Plaintiff had made payment of all the outstanding to the tune of Rs.11,25,373/ through two cheques. However, the Defendant did not present the said cheques into the Bank and illegally withheld the same to put the Plaintiff in the category of defaulter and tried to compel her to accept the offer of change of provisional allotment or to cancel her allotment. The Plaintiff wrote letter dated 05.10.2010 to the Defendant informing the MD of the Defendant Company about the payment of all the outstanding and further requested to close the issue of change of her provisional allotment. The Plaintiff further sent letters dated 10.10.2010 and CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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21.10.2010 for the said purpose to the defendant. However, the Plaintiff received the letter dated 21.10.2010 from the Defendant threatening her to cancel her provisional allotment on the ground that she had defaulted in making the payment on time after 25.06.2008. The Plaintiff submitted that on 25.09.2010, she had deposited a sum of Rs. 11,25,373/ by way of two cheques. However, the impugned letter dated 25.10.2010 ignored the same. The impugned letter dated 25.10.2010 further called upon her to make the payment of her entire due within 30 days, failing which her allotment will be cancelled. Hence, the Plaintiff filed the present Suit.
3. On 14.02.2011, the present Plaint was received by way of assignment. The Defendant was summoned and it filed its Written Statement. On 30.05.2011, Ld. Predecessor had allowed the plaintiff's application Under Order 39 Rules 1 & 2 of CPC by restraining the Defendant from cancelling the provisional allotment of Flat No. K20604, Kundli Township Project and from creating any 3rd party rights in the said flat till the disposal of the suit.
4. In its written statement, the Defendant has submitted that the Plaintiff has remained a defaulter and not honoured the terms of advance registration by defaulting the payment of the sale consideration of the Flat. It is further stated that the Plaintiff has only made payment of Rs. 7,39,087/. Further, the cost of Flat is more than Rs. 20 lacs. Hence, she is not entitled to any relief.
Issues
5. On 02.06.2011 the Ld. Predecessor Court framed the following issues :
1. Whether the plaint has been properly valued for the purpose of Court fees and jurisdiction and whether the appropriate Court fees thereon has been paid by the plaintiff? OPD.
CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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2. Whether this Court has the territorial jurisdiction to entertain the present suit? OPD.
3. Whether the defendant had granted any waiver of interest to the plaintiff on 25/9/2010? OPP/OPD.
4. Whether the defendant had accepted cheque no(s). 517596 and 517597 on 25/9/2010? OPP/OPD.
5. Whether the plaintiff is entitled to declaration, as prayed for? OPP.
6. Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP.
7. Relief.
Evidence led by parties
6. The plaintiff produced 2 witnesses. The first witness i.e. PW1 is Mr. Ajay Arora, the father of plaintiff who is also the Special Power of Attorney of the plaintiff. PW1 tendered his evidence affidavit Ex.PW1/A and documents Ex.PW1/1 to Ex.PW1/11 and Mark A and B. Documents Ex.PW1/4, Ex.PW1/6 and Ex.PW1/7 being photocopies were marked as Mark C, D and E respectively. The second witness produced by the plaintiff is Sh. Pradeep Arora who was examined as PW2, who tendered his evidence by way of affidavit Ex.PW2/A. Thereafter, PW2 was crossexamined. After examining these two witnesses, the plaintiff closed its evidence. The defendant examined only one witness Sh. Sharad Mehta as DW1 who tendered his evidence by way of affidavit Ex.DW1/A alongwith documents Ex.DW1/1 to Ex.DW1/4. Document Ex.DW1/2 was marked as Mark J since it was a photocopy. Thereafter, DW1 was crossexamined after which the defendant's evidence was closed.
Arguments
7. Sh. Rajiv Kumar Jha, Ld. Advocate for the plaintiff submitted the plaintiff had received CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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the letter dated 13.08.2010 Ex.PW1/3 from the defendant demanding Rs.10,35,309/. Thereafter, he submitted that the matter of change of allotment was put on hold till 20.09.2010. Thereafter, on 25.09.2010 vide document Ex.PW1/5, he submitted that the concerned officer of the defendant had written that the interest was waived in total on basic price + EDC and this decision was approved by the Chairman. He further submitted that on 25.09.2010, the plaintiff had handed over two cheques of 10,46,123/ and Rs.79,250/. However, the defendant did not deposit the said cheques into its bank. Moreover, they issued the impugned letter dated 21.10.2010 Ex.PW1/11 demanding a sum of Rs.11,25,373/ within 30 days. He, therefore, submitted that the said letter dated 21.10.2010 Ex.PW1/4 issued by the defendant is illegal and is void. He further submitted that up till now the plaintiff has made payment of Rs.7,89,087.50 + Rs. 10,55,309/ = Rs.18,44,396.50/ which amount to more than 90% of the total amount.
8. He further submitted that as per the Flat Buyers Agreement, upon payment of 90% of flat amount, the defendant had to hand over the possession of the flat to the plaintiff. However, the defendant has not yet given the possession to the plaintiff. Hence, the remaining 10% of the amount shall be paid only after the plaintiff gets possession of the aforesaid flat. Therefore, the plaintiff is entitled to receive the No Dues Certificate from the defendant qua the installment of flat no.K20603 in TDI City, Kundli Township Project. Since there was no appearance on behalf of the defendant, the defendant was given liberty to file written note of arguments. However, the defendant has not filed any written submissions. This Court has heard Ld. Advocate and perused the record. Findings
9. The issuewise findings of this Court are as under : CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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Issue no.1 Whether the plaint has been properly valued for the purpose of Court fees and jurisdiction and whether the appropriate Court fees thereon has been paid by the plaintiff?
10. The onus to prove this issue is on the defendant. No evidence has been led by the defendant to prove that the plaintiff has not properly valued the present suit for the purpose of Court Fee. Hence, the issue no.1 is decided against the defendant and in favour of the plaintiff.
Issue no.2 Whether this Court has the territorial jurisdiction to entertain the present suit?
11. The onus to prove this issue is also on the defendant. However, no evidence has been lead to prove this issue in favour of the defendant. Needless to say that the present suit is a suit for declaration and permanent injunction and not related to possession of the flat at Kundli, Haryana. Moreover, the office of the defendant, as can be seen from the memo of parties is at Connaught Circus, which falls within the jurisdiction of the New Delhi District. Since the defendant works for gain within the jurisdiction of this Court, this Court has territorial jurisdiction to entertain the present suit. Hence the issue no.2 is decided in favour of the plaintiff and against the defendant. Issue No.3 Whether the defendant had granted any waiver of interest to the plaintiff on 25/9/2010?
12. The onus to prove this issue is on both the parties. Ld. Advocate for the plaintiff has relied upon the document Ex.PW1/5 on which it has been written that "As approved by Chairman, the Int. waived in total on BSP + EDC", followed by signature and date i.e. CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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25.09.2010. While deposing on behalf of the plaintiff, PW1 Sh. Ajay Arora (Special Power of Attorney of the plaintiff) deposed that on 25.09.2010, after hearing him the concerned official of the defendant company asked him to wait for 10 minutes as he wanted to discuss the matter with the MD/Chairman and forward the request of the plaintiff for waiver of 100 % interest. After about 15 minutes, Mr. Kohli i.e. the official of the defendant told him to issue cheques for outstanding amount as he had taken approval from the Chairman for waiver of interest on basic as well as EDC amounts after which Sh. Ajay Arora gave two cheques and thereafter he was informed in writing that the request of the plaintiff for waiver of 100 % interest was approved by the senior officials. During his crossexamination, the defence has not confronted the fact of waiver of interest given by the concerned official of the defendant on 25.09.2010 except for a mere suggestion whether he had read and understood the contents of the document Ex.PW1/5, to which he replied that he had read and understood the contents of the document Ex.PW1/5. Moreover, PW2 Sh. Pradeep Arora has corroborated the meeting between the father of the plaintiff Sh. Ajay Arora and the officials of the defendant since he was also present in the said meeting and he has specifically deposed in his examination in chief that Mr. Kohli asked Mr. Ajay Arora to make payment as he had taken approval from the Chairman for waiving of interest from basic as well as EDC amounts following which PW2 Sh. Pradeep Arora gave two cheques to the father of the plaintiff to be given to the defendant. PW2 Sh. Pradeep Arora further deposed that Sh. Anirudh and Sh. Anil Kohli had given in writing an assurance to the father of the plaintiff about waiver of interest. He specifically deposed that the approval in writing was given by Sh. Anil Kohli whereby all the interest was waived on behalf of CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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the defendant and the father of the plaintiff was assured that very soon he will be handed over no dues certificate qua installment as on that date. He also deposed that Mr. Anil Kohli waived the interest on behalf of the defendant in writing by putting his signatures over there in his presence after consulting the concerned official. The witness produced on behalf of the defendant i.e. DW1 Sh. Sharad Mehta has not deposed anything about the meeting that was held on 25.09.2010 between the plaintiff, Sh. Pradeep Arora and the officials of the defendant. Hence, on the test of preponderance of probability the plaintiff has been able to prove that the interest on the basic as well as EDC was waived by defendant on 25.09.2010. Therefore, Issue no.3 is decided in favour of the plaintiff and against the defendant. Issue no.4 Whether the defendant had accepted cheque no(s). 517596 and 517597 on 25/9/2010?
13. The onus to prove this issue is on both the parties. On behalf of the plaintiff, PW2 Sh. Pradeep Arora has specifically deposed in his examination in chief that on 25.09.2010, Sh. Kohli had asked Sh. Ajay Arora to make payments as he had taken approval from his Chairman for waiving of interest on basic as well as EDC amounts. Following this, PW2 Sh. Pradeep Arora had given two cheques to Sh. Ajay Arora to be given to the defendant. PW2 further specifically deposed that Sh. Ajay Arora, in his presence, gave a demand draft and two cheques issued by PW2 himself to the defendant and the concerned authority of the defendant acknowledged the payment by issuing two receipts qua the demand draft but did not give any receipt in lieu of the cheques under the pretext that the receipts as well as no due certificate in respect of the payments CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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made by cheques will be issued only after clearance of the aforesaid cheques. In fact, PW1 Sh. Ajay Arora has also deposed in his examination in chief that he handed over the two cheques no. 517596 dated 01.10.2010 for Rs.10,46,123/ and cheque no. 577597 dated 15.11.2010 of Rs.79,250/ to the defendant. Even during his cross examination, PW2 Sh. Pradeep Arora has deposed that he had given one cheque for a sum of Rs.10,46,000/ approximately and other cheque was approximately of Rs. 79,000/. He further deposed that the two cheques handed over to the defendant were not encashed by the defendant. Moreover, it has already been found while deciding Issue No.3 that the defendant had waived the interest on 25.09.2010. Hence, the fact that interest was waived leads to a strong presumption in favour of the fact that the aforementioned two cheques were accepted by the defendant on 25.09.2010 after which the interest was waived. In its defence, the defendant has not produced any evidence to disprove the testimony of the witnesses of the plaintiff regarding the fact that the two cheques issued by Sh. Pradeep Arora were handed over to the defendant by Sh. Ajay Arora, the father of the plaintiff. Hence, the plaintiff has been able to prove that the two cheques no.517596 and 517597 were accepted by the defendant from the plaintiff. The issue no.4 is decided in favour of the plaintiff and against the defendant. Issue no.5 Whether the plaintiff is entitled to declaration, as prayed for?
14. The onus to prove issue no.5 is on the plaintiff. The plaintiff has already proved, as can be seen from findings of this Court in issue no.4, that the two cheque no. 517596 and 517597 were handed over to the defendant amounting to Rs.10,46,123/ and Rs. 79,250/ totalling to a sum of Rs.11,25,373/. Moreover, It is an admitted case of both CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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the parties that the plaintiff had paid a sum of Rs.7,89,087.50 till 25.06.2008. Hence, the plaintiff has made a total payment of Rs.19,14,462.50/ (Rs.11,25,373/ + Rs. 7,89,089.50/). It is an admitted case that as per the Flat Buyers Agreement, the plaintiff was liable to pay 90 % of the total sale consideration before handing over the possession of the flat in question to her by the defendant. The total sale consideration of the Flat no. K20604 is Rs.20,72,980/. The plaintiff has paid an amount of Rs. 19,14,462.50/. The plaintiff has already proved that the defendant had waived the entire interest on basic as well as EDC. Hence the plaintiff has paid more than 90 % of the total sale consideration. Once the defendant had accepted the two cheques from the plaintiff of Rs.11,25,373/ on 25.09.2010, it is estopped from changing its position and asserting that the plaintiff had not made payment of installments from 25.06.2008. Therefore, the impugned letter dated 21.10.2010 Ex.PW1/11 issued by the defendant to the plaintiff which states that they did not receive any payment from the plaintiff since 25.06.2008 is not correct since it is no fault of the plaintiff that the two cheques that were handed over to the official of the defendant on her behalf on 25.09.2010 were not presented to the bank for encashment by the defendant. Hence, the letter dated 21.10.2010 Ex.PW1/11 should be declared null and void. The plaintiff is entitled to the declaration as prayed for. Issue no.5 is decided in favour of the plaintiff and against the defendant.
Issue no.6 - Whether the plaintiff is entitled to permanent injunction, as prayed for?
15. In view of the findings of this Court in Issues no.3 and 4, since the defendant had waived interest on basic as well as EDC on the installment and had accepted two CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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cheques issued on behalf of the plaintiff, the plaintiff is entitled to the decree of permanent injunction against the defendant restraining it from cancelling the provisional allotment in her name of Flat no.K20604. The plaintiff is also entitled to the decree for direction to the defendant to issue No Dues Certificate qua the installments of flat no.K20604. Hence, the issue no.6 is also decided in favour of the plaintiff and against the defendant.
Issue no.7 - Relief.
16. In view of the findings in Issues no.3, 4, 5 and 6, it is hereby declared that the letter dated 21.10.2010 Ex.PW1/11 issued by the defendant to the plaintiff is illegal, being null and void. The plaintiff is entitled to the decree of permanent injunction and the defendant is restrained from cancelling the provisional allotment of Flat no.K20604 in her name subject to the plaintiff paying the remaining 10 % of total sale consideration upon getting possession of the Flat No.K20604 in TDI City Kundli Township Project. However, the fact remains that the cheques that were handed over to the defendant on behalf of the plaintiff have not been encashed by the defendant. Therefore, equity demands that the plaintiff makes payment of the total amount of the two cheques i.e. Rs.11,25,373/. The said amount shall be deposited by the plaintiff before this Court within two weeks which will then be withdrawn by the defendant. The defendant shall issue a No Dues Certificate qua the installments of Flat No.K20604 till date to the plaintiff at the time of deposition of the said amount by the plaintiff. In case the Defendant fails to issue a No Dues Certificate upon deposition of the said amount, the said Certificate shall be deemed to have been given. The suit is decreed in the above CS No. 17/11 Ankita Arora Vs. Taneja Infrastructure Ltd.
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terms. What is now required to be done is that the defendant hands over possession of flat to the plaintiff and the plaintiff makes payment of remaining balance of sale consideration to the defendant. Decreesheet be prepared. File be consigned to the Record Room.
Announced in the Open Court (Apoorv Sarvaria)
on 25 August, 2012
th
Civil JudgeI, New Delhi District
New Delhi
CS No. 17/11
Ankita Arora Vs. Taneja Infrastructure Ltd.
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