Delhi District Court
Mr. Anurag Gupta vs M/S. M-Tech Developers Pvt. Ltd on 28 January, 2015
Page 1 of 28
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ-01 (SOUTH),
SAKET COURTS, NEW DELHI
Suit No. 338/11
Unique Case ID No.02406C0059312011
Mr. Anurag Gupta
R/o D-296, 1st Floor,
Sarvodaya Enclave,
New Delhi-110017.
................... Plaintiff
Vs.
M/s. M-Tech Developers Pvt. Ltd.
ANS House, LGF, 144/2, Ashram,
Mathura Road, New Delhi-110014.
................ Defendant
Date of Institution : 15.03.2011
Date of reserving order : 22.01.2015
Date of pronouncement of judgment : 28.01.2015
Suit for Recovery of a sum of Rs.10,13,980/- alongwith damages and
pendente-lite and future interest
J U D G M E N T :-
1. The present suit was filed by the plaintiff against the defendant on 14.03.2011. The brief facts of the suit as narrated in the Plaint are as follows:-
"Defendant is a company incorporated under the Companies Act, 1956 and engaged in the real estate business. In the year 2006, the defendant represented to the plaintiff that it had a vision to make a contribution to the process of nation building through participation in the real estate sector and had numerous successful construction and Housing/commercial projects in its portfolio at Bangalore, Indore, Lucknow, Alwar, Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 2 of 28
Goa and Pune. On the inducement and allurement of the defendant, the plaintiff booked a flat admeasuring 1200 sq. ft. @ Rs.1375- per sq. ft. in Camellia Garden-2, Bhiwadi. At the time of booking of the said flat, a sum of Rs.1,32,000/- was paid by the plaintiff to the defendant as advance payment vide cheque bearing no.258110 dated 10.05.2006 which was duly acknowledged by the defendant vide receipt bearing no. 2240 dated 14.06.2006. Then vide letter dated 16.04.2007, the defendant called upon the plaintiff to pay a sum of Rs. 1,98,000/- towards first installment of the flat within 30 days from the date of issuance of the said letter. The said payment of Rs.1,98,000/- was made by the plaintiff vide cheque bearing no.258115 dated 15.05.2007 which was also duly acknowledged by the defendant vide receipt bearing no. MJ/CG/33/01/845 dated 04.06.2007. Thus the plaintiff paid a sum of Rs.3,30,000/- (Rupees Three Lacs Thirty Thousand only) to the defendant towards the said flat. Thereafter, the plaintiff also booked a plot admeasuring 200 sq. yds. @ Rs.
4100/- per sq. yd. in Camellia Garden-2, Bhiwadi and paid a sum of Rs.2,00,000/- on account of its registration vide cheque bearing no.258112 dated 03.07.06. The said payment was duly acknowledged by the defendant vide receipt no.P112 dated 24.07.2006. The defendant company, in its brochure, had undertaken to handover the possession of the flat in 24 months from the date of launch and to pay penalty to Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 3 of 28
its customers @ Rs.2/- per sq. ft. per month in case the company would fail to handover the possession within stipulated time. But despite a number of enquiries made by the plaintiff from time to time from the defendant regarding development of the project, no satisfactory response was received from the latter. On making further enquiries, the plaintiff came to know that no approval was obtained by the defendant from the competent authorities for the said project and that no construction had started at the site. In August 2008, the defendant assured and undertook that in case the said project was not launched within 7 months from 19.03.2009, the defendant would refund the amount paid by plaintiff alongwith interest @ 10% per annum from the date of booking. But despite repeated assurances and promises made by the defendant, neither anything was done to start the development of the land for the aforesaid project nor was the amount refunded to the plaintiff. Thereafter, plaintiff vide letter dated 18.09.2009 made an application to the defendant for surrender of provisional registration of the flat booked by him. As per the terms and conditions of the brochure, the defendant was to refund the entire amount received by it within 30 days from the date of submission of refund application but defendant failed to do so. Therefore, a legal notice dated 21.04.2010 was issued by the plaintiff to the defendant to pay a sum of Rs.30.20 lacs alongwith interest @ Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 4 of 28
36% per annum which included Rs.5.30 Lakhs i.e. the money paid on account of registration of the flat and plot and loss of profit and damages suffered by the plaintiff amounting to Rs. 25 lacs. But despite service of legal notice, the defendant failed to refund the said amount. Hence, the present suit."
2. Summons of the suit were issued and served upon the defendant and after service the defendant filed the Written Statement wherein, while denying all the averments made in the Plaint, it has raised the following preliminary objections:- that the suit is not maintainable before this Court due to lack of pecuniary jurisdiction as the total cost of flat and plot booked by the plaintiff is more than Rs.25 lacs; that there is no written contract between the plaintiff and defendant; that the suit is barred by Sec.41 of Specific Relief Act; that the suit is barred by law of limitation and that the suit has been filed without any cause of action. On merits, the defendant, in WS, has denied that any assurance was given by the defendant for handing over the possession of the plot to plaintiff within 24 months from the date of booking or that it had undertaken to pay penalty to its customers @ Rs.2/- per sq. ft. per month in case of failure to deliver possession within stipulated time or that no approval was obtained by it from the concerned authorities. It is further submitted by the defendant in the Written Statement that the plaintiff was to pay the installments of the flat/plot as per the payment plan opted by him but he failed to make Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 5 of 28
payment of due installments in time and therefore his registration amount was forfeited. It is further submitted that the requisite permission from various concerned departments was obtained by the defendant and the construction work was also completed. It has been denied that the defendant had agreed in August, 2008 to refund the amount paid by plaintiff alongwith interest @ 10% p.a. if it failed to launch the project within seven months from 19.03.2009. The defendant has denied the receipt of plaintiff's application for surrender of provisional registration of the flat. The service of legal notice is also denied in the Written Statement.
3. The plaintiff has filed Replication to the Written Statement of defendant wherein he has denied almost all the averments of the defendant and reiterated and reaffirmed contents of his Plaint. It is submitted in the Replication that the plaintiff had sent the legal notice to the defendant by way of registered post and the defendant was duly served with it also, though he had chosen not to respond to the same. It is further submitted that the plaintiff had deposited a sum of Rs.5.30 Lacs with the defendant and the principal outstanding amount alongwith interest works out to be Rs.10.13 Lacs which is the substantiated claim of plaintiff and thus well within the pecuniary jurisdiction of this Court. It is further submitted that Sec.41 Specific Relief Act is not applicable to the present case as the plaintiff has not Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 6 of 28
sought any relief of injunction. It is further submitted that the Application for surrender of provisional registration to the defendant was submitted on 18.09.2009 and thus the suit is well within the limitation of three years. It is further submitted that the cause of action has duly accrued in favour of the plaintiff as in spite of filling up of Application for surrender of provisional registration, the defendant failed to return the money of the plaintiff. It is further submitted that the plea of the defendant is contradictory to its own stand as on one hand, the defendant has denied having accepted the payment of provisional registration from plaintiff but on the other hand, it has stated that the plaintiff had to pay the installments as per the payment plan opted by him. The plaintiff has denied that the installments were not paid in time and submitted that at no point of time the defendant had informed or intimated him that he was required to make any further payments, except for one letter dated 10.04.2007 for demand of Rs.1,98,000/- which was duly paid by the plaintiff.
4. After the completion of pleadings, the following issues were framed by Ld. Predecessor Court vide order dated 09.08.2011:-
1. Whether the plaintiff is entitled to the suit amount, as prayed for?
OPP
2. Whether the construction of Camellia Garden was to be completed by July 2008 i.e. within 24 months of the application made by the plaintiff? OPP Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 7 of 28
3. Whether the defendant had undertaken to pay penalty @ Rs.2 per sq. feet per month for failure to complete construction within the stipulated time period? OPP
4. Whether the suit is barred by limitation? OPD.
5. Whether this Court has pecuniary jurisdiction to entertain the present suit? OPD.
6. Whether the defendant is liable to pay damages? OPP.
7. Relief.
5. In plaintiff's evidence, the plaintiff has examined three witnesses i.e. himself as PW-1, Nitin Sabharwal as PW-2 and Sandipan Sharma as PW-3. Though a number of opportunities were given to the defendant to lead evidence, but it failed to lead any evidence and finally its opportunity to lead evidence was closed vide order dated 30.09.2014.
6. The plaintiff/PW-1 in his affidavit in evidence i.e. PW1/A has deposed on the similar lines as of his Plaint. While reiterating his submissions made in the Plaint, he, in order to prove his case, has exhibited the following documents:-
(i) Ex.PW1/1 - Brochure of Camellia Garden.
(ii) Ex.PW1/2 - Letter dated 25.07.2006 of INFOCUS, a
booking agent, wherein the agent had thanked the plaintiff for choosing it for booking plot in forthcoming project of M-Tech Developers, Camellia Garden Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 8 of 28
proposed at Bhiwadi and sent the payment Receipt alongwith it.
(iii) Ex.PW1/3 - There is no document marked as Ex.PW1/3 though it is mentioned in the affidavit as Receipt bearing no.2240 of sum Rs.1,32,000/-, paid by plaintiff to defendant at the time of booking of flat and copy of the same is lying on record.
(iv) Ex.PW1/4 - There is no document marked as Ex.PW1/4 though it is mentioned in the affidavit as letter dated 16.04.2007 whereby the defendant had called upon the plaintiff to pay a sum of Rs.1,98,000/- towards first installment of the flat. Only a copy of the same is lying on record.
(v) Ex.PW1/5 - There is no document marked as Ex.PW1/5 though it is mentioned in the affidavit as Receipt dated 04.06.2007 whereby the defendant had acknowledged the receipt of Rs.1,98,000/- from the plaintiff. Only a copy of the same is lying on record.
(vi) Ex.PW1/6 - Receipt bearing no. P112 dated 24.07.2006, issued by the defendant to plaintiff towards payment of Rs.2 Lacs as advance/part payment on account of provisional registration.
(vii) Ex.PW1/7, Ex.PW1/8 & Ex.PW1/9 - E-mails exchanged Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 9 of 28
between plaintiff and Mr. Susheel Vats, employee of defendant.
(viii) Ex.PW1/10 - Copy of the extract of the Website www.consumercomplaints.in. The PW-1 has deposed that the defendant had duped a large segment of society and a huge number of complaints had been filed against it which is evident from the above-said extracts.
(ix) Ex.PW1/11 - Copy of Article published in Financial Express on 08.12.2010, wherein the defendant is named amongst the real estate companies involved in the multi- crore scam.
(x) Ex.PW1/12 - Legal Notice dated 21.04.2010, issued by the plaintiff to defendant.
(xi) Ex.PW1/13 - Plaintiff's Application dated 18.09.2009 for Surrender of Provisional Registration of flat and for Refund of amount paid by him.
7. The PW-2, Nitin Sabharwal, has deposed in his affidavit of evidence i.e. Ex.PW2/A that he alongwith Sandipan Sharma had accompanied the plaintiff to the office of the defendant when he submitted Surrender Application and the same was accepted by the office of the defendant on 18.09.2009 and that the plaintiff was assured by one Mr. Susheel Vats, employee of the defendant that his money would be refunded Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 10 of 28
immediately but it was never refunded. During his cross-examination, he said that the Ex.PW1/13 was bearing his signature as a witness.
8. The PW-3, Sandipan Sharma, has deposed in his affidavit of evidence i.e. Ex.PW3/A that he is running a property business and had recommended project Camellia Garden at Bhiwadi to the plaintiff who had deposited a total sum of Rs.3,30,000/- on account of registration of flat admeasuring 1200 sq. ft. and the defendant had issued receipt Ex.PW1/3 towards the same. He has further deposed that on demand of first installment of Rs.1,98,000/-, the plaintiff had paid the same vide receipt dated 04.06.4007 Ex.PW1/5. He has further deposed that he alongwith Nitin Sabharwal had accompanied the plaintiff to the office of the defendant when he submitted Surrender Application and the same was accepted by the office of the defendant on 18.09.2009 and that the plaintiff was assured by one Mr. Susheel Vats, employee of the defendant that his money would be refunded immediately but it was never refunded. During his cross-examination, he said that the Ex.PW1/13 was bearing his signature at point X1.
9. I have heard the final arguments from counsel Sh. Nikhil Majithia for plaintiff and counsel Sh. Lalit Trakru for defendant. My issue-wise findings are as under:-
I have found it appropriate to deal with Issue No.2, 3, 4 and 5 prior to dealing with Issue No.1. So, accordingly these issue are taken up first Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 11 of 28
for consideration.
ISSUE NO.2:-
Whether the construction of Camellia Garden was to be completed by July, 2008 i.e. within 24 months of the application made by the plaintiff?
10. The onus to prove this issue was upon the plaintiff. The Plaintiff/PW-1, in para 7 of his affidavit in evidence i.e. PW1/A, has deposed that the defendant in its Brochure of Camellia Garden, had undertaken to handover possession of plot/flat in 24 months from the date of launch. But in para 12 of the same affidavit, he has stated that he was assured by the defendant that it would handover possession of flat and plot within the time stipulated in the Brochure i.e. within 24 months from the date of registration. The plaintiff has nowhere, either in the Plaint or in the affidavit of evidence, stated about the date of launch of the project or the date of registration. The plaintiff, in para 23 of his Plaint, has stated that the defendant had assured and undertaken in August, 2008 to refund the amount paid by him alongwith interest if the project was not launched within 7 months from 19.03.2009. This means that the project was not launched even till August, 2008. The counsel for defendant, during the arguments, submitted that the project was never launched and that the plaintiff had booked the plot in the pre-launch scheme only. I find his Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 12 of 28
contention to be correct on following accounts: Firstly, the plaintiff has nowhere stated in the entire Plaint or Replication or Affidavit of Evidence that the project was ever launched on a particular date; Secondly, as per his own case the payment of Rs.2,00,000/- was made by the plaintiff towards provisional registration only; and Thirdly, as per plaintiff's own submissions in para 23 of Plaint, the project was not launched till August, 2008 and the plaintiff has nowhere stated that the project was ever launched thereafter. Thus it is clear that the flat and plot were booked by the plaintiff in the pre-launch scheme only. As per the terms of the brochure Ex.PW1/1, the possession was to be handed over in 24 months from the date of launch. But the plaintiff has failed to prove/disclose the date of launch. The booking amount of the flat was paid by the plaintiff in May, 2006. Though the plaintiff has not proved any application of booking, yet for the purposes of Issue no.2, the date of said application is presumed to be date of his payment of booking amount. As held earlier, the plaintiff had booked in pre-launch scheme, so certainly, his date of booking/registration is not the date of launch. Hence it is held that the project Camellia Garden was to be completed within 24 months of its "launch" and not within 24 months of the application made by the plaintiff. Hence this issue is decided in favour of the defendant and against the plaintiff. ISSUE NO.3:-
Whether the defendant had undertaken to pay penalty @ Rs.2 per Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 13 of 28
sq. feet per month for failure to complete construction within the stipulated time period?
11. The onus to prove this issue was upon the plaintiff. Plaintiff/PW-1 has deposed that the defendant had admitted to pay damages @ Rs.2/-
per sq. ft. per month on the plot in question on the delayed handing over of possession. He has proved the Brochure of the defendant of its project Camellia Garden at Bhiwadi as Ex.PW1/1. The counsel for plaintiff has argued that as per Clause 3 of Note on page 6 of this Brochure, the defendant had undertaken to pay penalty to its customer @ Rs.2/- per sq. ft. per month if the possession was handed over after the committed period. It is pertinent to mention here that the defendant has not denied the Ex.PW1/1 as its brochure. Despite categorical deposition of plaintiff/PW-1 on defendant's brochure, neither was he cross-examined on this point nor was even a suggestion given to him to deny the said brochure being defendant's brochure. It is settled law that if the opposite party fails to cross- examine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in cross-examination, it must follow that evidence tendered on that issue ought to be accepted."
It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 14 of 28
Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Section 137 and 138 of Evidence Act - Cross-
examination - If a witness is not cross-examined on a particular point, the opposite party must be deemed to have accepted truth of the statement."
Similarly in the present case in the absence of any cross-examination it is deemed to be admitted by defendant that Ex.PW1/1 is its brochure of project in question. As per Clause 3 of Note on page 6 of this Brochure, the defendant had undertaken to handover the possession in 24 months from the date of launch and further to pay penalty to its customer @ Rs.2/- per sq. ft. per month if possession was handed over after the expiry of committed period. Thus it is held that the defendant had undertaken to pay penalty @ Rs.2/- per sq. ft. per month for failure to complete construction within the stipulated time period i.e. within 24 months from the date of launch. Hence this issue is decided in favour of the plaintiff and against the defendant. ISSUE NO.4:-
Whether the suit is barred by limitation?
12. The onus to prove this issue was upon the defendant but it has failed to discharge its onus as it has not led any evidence. But this does not mean that this legal issue should be decided in favour of the plaintiff due to failure of defendant to discharge the onus put upon it. As per Sec.3 of Limitation Act, 1963, it is obligatory for the Court to check up Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 15 of 28
if the suit is filed within the period of limitation and to dismiss it, if found time-barred. In the present case, not only the defendant has failed to lead any evidence to discharge its onus, it has also failed to disclose in its Written Statement as to how the suit is barred by limitation. It has simply stated in one line in the Written Statement that the suit of the plaintiff is barred by law of limitation. This case has been filed by the plaintiff for recovery of amount, paid by him to the defendant towards provisional registration of flat and plot alongwith interest. For determining the point of limitation, the brochure Ex.PW1/1 is a very crucial document. As per Clause 3 on page 7 of this brochure, it is stated as follows:-
"In case you wish to withdraw from the upcoming scheme, company shall refund the entire amount deposited by you without any interest within 30 days from the date of submission of refund application."
Thus as per this clause the defendant would become liable to refund the money after expiry of 30 days from the demand raised by its customer. It is pertinent to mention here that no time limitation has been prescribed in the Brochure for raising such demand. In the present case, the plaintiff had raised such demand vide Application for Surrender of Provisional Registration dated 18.09.2009 i.e. Ex.PW1/13. The Plaintiff/PW-1 had categorically deposed in para 18 of his affidavit of evidence i.e. PW1/A that on 18.09.2009, he had Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 16 of 28
made an application to the defendant for surrender of provisional registration of the flat booked by him. He had said so even in his cross-examination. But despite his categorical deposition on this point, not even a suggestion was given to him to deny the same. So as per the above-stated settled law, it is deemed to be admitted by defendant that the plaintiff had applied for surrender of provisional registration and refund of money paid by him. Otherwise also, PW-2 and PW-3 have also duly proved that the said application was submitted by the plaintiff and duly accepted in the office of the defendant on 18.09.2009. As per defendant's own undertaking given in Clause 3 of page 7 of the Brochure Ex.PW1/1, the defendant was required to refund the amount within 30 days of the submission of application. Thus the limitation period for filing the present recovery suit has started running from 18.10.2009. The present suit was filed on 14.03.2011, which is well within the period of limitation. Hence it is held that the present suit is not barred by limitation. So, this issue is decided in favour of the plaintiff and against the defendant. ISSUE NO.5:-
Whether this Court has pecuniary jurisdiction to entertain the present suit?
13. The onus to prove this issue was upon the defendant but it has failed to discharge its onus. But this legal issue could not be decided in Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 17 of 28
favour of the plaintiff merely on this ground that the defendant has failed to discharge its onus. Rather it is obligatory for the Court to peruse the record and check if it has the pecuniary jurisdiction to entertain the present suit. This suit was initially filed by the plaintiff with following prayers:-
(a) For decree of Rs.10,13,980/-.
(b) For decree of damages of Rs.25,00,000/-.
(c) For pendente-lite and future interest @ 18% p.a.
(d) For costs of the suit.
Thus the relief claimed was certainly beyond the pecuniary jurisdiction of this Court which is Rs.20 Lacs only. But on 22.12.2014, the counsel for plaintiff said that he had instructions from the plaintiff to withdraw the prayer stated in Clause (b) of the Plaint i.e. regarding decree of damages of Rs.25 Lacs. Accordingly, he withdrew the said clause by recording his statement in the Court. Now, after withdrawl of prayer of Rs.25 Lacs, the present suit is duly covered within the pecuniary jurisdiction of this Court. Hence this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.1:-
Whether the plaintiff is entitled to the suit amount, as prayed for?
14. The onus to prove this issue was upon the plaintiff. Plaintiff/PW-1 has deposed that he had booked a flat admeasuring 1200 sq. ft. @ Rs.
1375/- per sq. ft. and a plot admeasuring 200 sq. yards @ Rs.4100/- Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 18 of 28
per sq. yard in the project of defendant i.e. Camellia Garden-2, Bhiwadi (Rajasthan) and paid an amount of Rs.3,30,000/- towards the flat and Rs.2,00,000/- towards plot at the time of booking which was duly acknowledged by the defendant by issuing receipts bearing no. 2240 dated 14.06.2006, no.MJ/CG/33/01/845 dated 04.06.2007 and no.P112 dated 24.07.2006. He has proved the Brochure of the project as Ex.PW1/1 and payment receipt bearing no.P112 as Ex.PW1/6. Even in his cross-examination, the plaintiff/PW-1 has said that he had paid Rs.2 Lacs as booking amount of the plot and Rs.3,30,000/- for flat. But despite his categorical deposition, not even a suggestion was given to him to deny the same. Rather the suggestion given to him was that he had not paid the due installments as per the schedule. It is but obvious from this that the defendant has admitted that the plaintiff had booked a flat and a plot in defendant's project Camellia Gardeen-2, Bhiwadi (Rajasthan) and paid a total amount of Rs. 5,30,000/- to the defendant. Otherwise also, it is pertinent to mention here that in para 6, 8, 10 and 12 of the Plaint, the plaintiff had specifically stated that he had booked a flat admeasuring 1200 sq. ft. and a plot admeasuring 200 sq. yards in Camellia Garden-2, Bhiwadi and paid a sum of Rs.3,30,000/- and Rs.2,00,000/- respectively which was duly acknowledged by the defendant by issuing receipts bearing no.2240, MJ/CG/33/01/845 and P124, but despite the specific averment, the defendant did not deny the same specifically. In reply Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 19 of 28
to said paras, it has simply stated in WS that the contents of these paras are absolutely wrong, false and denied. Such general denial, in the absence of any specific denial, is no denial in the eyes of law. It is further pertinent to mention that in para 12 (reply on merits) of WS, the defendant has stated that the amount paid by the plaintiff was forfeited by the defendant as the plaintiff had failed to deposit the installments as per the payment schedule, meaning thereby that the defendant has admitted that the plaintiff had paid the amount to it. Hence, in view of the aforesaid discussion, it is clear that it has stood proved that the plaintiff had booked a flat and a plot with the defendant and paid Rs. 5,30,000/- to the defendant.
15. The Plaintiff/PW-1 has further deposed that at the time of booking, it was assured by the defendant that the possession of the said plot would be handed over to him within 24 months from the date of registration, but when the defendant failed to give any proper response to the inquires made by him regarding the development of the project, he himself visited the office of the defendant and site in question and was shocked to note that no work on the site had taken place and when he made inquiries, he came to know that the defendant had not even obtained any approval from the competent Authorities for the said project and therefore he brought the said fact to the knowledge of the defendant and asked it to refund the amount Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 20 of 28
deposited by him by submitting Application for Surrender of Provisional Registration of the flat i.e. Ex.PW1/13. He has further deposed that though the defendant was bound to return the money, as per the Brochure, within 30 days of submission of application, but it failed to do so and then he issued a legal notice to the defendant to refund the money paid by him towards the flat and plot alongwith interest and damages. Though the defendant has denied the receipt of said notice, but it is settled law that once the letter is sent through registered post at correct address, the presumption is drawn about its service upon the addressee unless the same is rebutted. It is held by Hon'ble High Court of Delhi in Smt. Bhavneshwari Devi Vs. Kalyan Singh, 1993 (2) RCR (Rent) 330 that presumption of service arises in law even if the AD card is lost or does not come back for any reason. It has been held by the Hon'ble Supreme Court in Basant Singh Vs. Roman Catholic Mission, AIR 2002 SC 3557, "Civil Procedure Code, Order 5 Rule 19A(2) - General Clauses Act, 1897, Section 27 - Service by Registered post - Registered post - Presumption of Service -
Summons properly addressed sent by registered post with acknowledgement due - Notwithstanding loss of A.D. card/not received back for any reason, a presumption of due service is attached - However the presumption is rebuttable - It is for the addressee to prove that the registered notice was not presented/reached to him for Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 21 of 28
service."
Though the presumption is rebuttable and it is always open to the defendant to rebut the presumption by leading convincing and cogent evidence, but here in the present case the addressee/defendant has utterly failed to lead any evidence to rebut this presumption. Moreover, it is not the case of the defendant that the address as mentioned in the legal notice is not its correct address. So, in view of the above case-laws and legal presumption contained in Sec.27 of General Clauses Act as well as Sec.114(f) of Indian Evidence Act (which has gone unrebutted in the present case), it is held that the defendant was duly served with legal notice Ex.PW1/12.
16. Thus the case of the plaintiff is that the defendant had failed to perform its part of the agreement as no development was carried out at the site by the defendant and this is the reason that he has been demanding back his money. Though, the said fact has been denied by the defendant in Written Statement but neither any evidence is led to disprove the same nor even any document/photograph is placed on record by the defendant to show if any development was carried out at the site. The defendant's case is that the plaintiff had failed to pay the installments as per the payment schedule and hence his amount was forfeited by the defendant. But neither the defendant has proved/placed on record any such payment schedule nor any document/agreement as per which it was entitled to forfeit the amount Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 22 of 28
paid by the plaintiff. The defendant has also failed to plead/prove/place on record any demand letter sent to plaintiff for demanding payment of installment from the plaintiff. Thus, in the absence of any willful default on the part of the plaintiff to the demand raised by the defendant, how the defendant could have cancelled the booking of the plaintiff? The defendant has failed to prove or place on record any document making him entitled to forfeit the money. The defence raised by the defendant is clearly sham and bogus and appears to be a result of an afterthought. Hence, in view of the aforesaid analysis, it is held that the booking of the plaintiff was never cancelled on account of non-payment of installments, rather the plaintiff had withdrawn from the defendant's scheme and demanded the refund of his money deposited for flat vide Application for Surrender of Provisional Registration of flat i.e. Ex.PW1/13 and of plot vide legal notice Ex.PW1/12 and thus the plaintiff is entitled to recover his amount of Rs.5,30,000/- from the defendant. Thus, Issue no.1 to this extent is decided in favour of the plaintiff and against the defendant. The plaintiff has filed the present suit for Rs.10,13,980/- which includes interest @ 18% per annum and the penalty at the rate of Rs.2/- per sq. ft. per month and the issue of interest and penalty is decided in the next issue i.e. Issue No.6 pertaining to damages. ISSUE NO.6:-
Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 23 of 28
Whether the defendant is liable to pay damages?
17. The onus to prove this issue was upon the plaintiff. It has been argued by the counsel for plaintiff that as per Clause 3 of Note on page 6 of Ex.PW1/1, the defendant is liable to pay penalty @ Rs.2/- per sq. ft. per month to the plaintiff. As per Sec.74 of Indian Contract Act, compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach. While granting damages, the Courts have to grant only the reasonable damages suffered by the parties and not as mentioned in the penalty clause in the agreements. But in the present case, there is no evidence that the plaintiff has suffered any special damage due to defendant's breach. Thus he is not entitled to recover amount as per penalty clause. It is also pertinent to mention here that as per the above-said clause, the defendant was required to hand over the possession in 24 months from the date of "launch", but as held earlier, the plaintiff has failed to plead/prove the date of launch. So, in the present suit, he is held not entitled to recover the penalty as stated above. Though the plaintiff is not entitled to recover the special damages but as per the considered opinion of this Court, he is entitled to reasonable damages which naturally arose in the usual course of things. It is argued on behalf of plaintiff that he has suffered damages because had the deal got materialized, the Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 24 of 28
price of the property would have become double. This Court is of considered opinion that the plaintiff is entitled to reasonable compensation as he has suffered loss because his money has been lying blocked for more than 8 years and he has been deprived of its use by the defendant and that the reasonable compensation in this case would be grant of interest to plaintiff on the amount paid by him to the defendant.
18. The plaintiff has sought interest - pre-suit, pendent-lite and future, @18% per annum. The plaintiff has claimed interest from the date of booking i.e. from 10.05.2006. But the counsel for defendant, while relying upon judgment of Hon'ble High Court of Delhi in Zile Singh Vs. Mangloo Ram Bansal, RSA No.195/04, decided on 15.11.2007, has vehemently argued that the interest, if awarded, could not be awarded from the date prior to the date of legal notice. The Hon'ble High Court in the said case has held that so far pendent-lite and future interest are concerned, Sec.34 CPC is applicable but the payment of pre-suit interest is governed by Sec.3 and 4 of Interest Act, 1978. As per Sec.3(1)(a) of Interest Act, if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, the interest may be allowed from the date when the debt is payable. And as per Sec.3(1)(b) of Interest Act, if proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, then Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 25 of 28
the Court may allow interest from the date mentioned in this regard in the written notice given by the person entitled. It has been held by the Hon'ble High Court in the above-said case, "There is no dispute that in the present case there is no written instrument under which the debt is payable at a certain time. The plaintiff has also not averred in the plaint that there was any agreement with the defendants regarding payment of interest or there is any usage having the force of law regarding payment of interest. In the absence of any proof of agreement, either express or implied, or usage having the force of law regarding payability of interest, and in the absence of any written instrument, the claim of interest can be sustained only if it is proved that a written notice of demand to that effect has been issued."
In the present case, there is no written instrument under which the debt is payable at a certain time. The plaintiff has also not averred in the Plaint that there was any usage having the force of law regarding payment of interest. There is also no agreement between the parties regarding payment of interest. So, this Court is of the considered opinion that the present case is falling under Sec.3(1)(b) of Interest Act and the plaintiff could be awarded interest from the date written in the notice of demand. As held earlier, the defendant was liable to pay the amount to plaintiff within 30 days of demand notice. The plaintiff Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 26 of 28
had raised demand for refund of amount paid towards flat vide his Application dated 18.09.2009 for Surrender of Provisional Registration of flat and raised such demand for amount paid towards plot vide legal notice dated 21.04.2010. Thus the defendant was required to refund the amount of Rs.3,30,000/- to plaintiff by 18.10.2009 and Rs. 2,00,000/- by 21.05.2010. Hence the plaintiff is entitled to claim pre- suit interest on Rs.3,30,000/- w.e.f. 18.10.2009 and on Rs.2,00,000/- w.e.f. 21.05.2010. Though the plaintiff has claimed interest @18% per annum, but this Court is of the considered opinion that it is on higher side and that the ends of justice would be sufficiently met if plaintiff is granted interest (pre-suit and pendent-lite) @ 12% per annum and future interest @ 6% per annum till realization. Hence this issue and Issue No.1 pertaining to interest and penalty amount is decided accordingly in favour of the plaintiff and against the defendant. Relief:-
19. The present suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,30,000/- (Rupees Three Lacs and Thirty Thousand only) alongwith interest (pre-suit and pendent-lite) @ 12% per annum w.e.f. 18.10.2009 till the date of this order and future interest @ 6% per annum till realization and for a sum of Rs. 2,00,000/- (Rupees Two Lacs only) alongwith interest (pre-suit and pendent-lite) @ 12% per annum w.e.f. 21.05.2010 till the date of this order and future interest @ 6% per annum till realization. Costs of the Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 27 of 28
suit are also awarded in favour of the plaintiff. Decree-sheet be prepared accordingly.
20. File be consigned to Record Room after necessary compliance.
(Announced in the open
Court on 28.01.2015) (Navita Kumari Bagha)
ADJ-01, South District,
Saket Courts, New Delhi
Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11 Page 28 of 28 CS No. 338/11 Anurag Gupta Vs. M/s. M-Tech Developers P. Ltd.
28.01.2015 Present: None.
Vide separate judgment, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,30,000/- (Rupees Three Lacs and Thirty Thousand only) alongwith interest (pre-suit and pendent-lite) @ 12% per annum w.e.f. 18.10.2009 till the date of this order and future interest @ 6% per annum till realization and for a sum of Rs. 2,00,000/- (Rupees Two Lacs only) alongwith interest (pre-suit and pendent- lite) @ 12% per annum w.e.f. 21.05.2010 till the date of this order and future interest @ 6% per annum till realization. Costs of the suit are also awarded in favour of the plaintiff. Decree-sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Navita Kumari Bagha) ADJ-01 (South), New Delhi.
28.01.2015 Anurag Gupta Vs. M/s. M-Tech Developers Pvt. Ltd. CS No.338/11