Delhi District Court
Balpreet Kaur vs M/S M.M.K.Usari Co on 23 November, 2023
IN THE COURT OF MS. HEMANI MALHOTRA, DISTRICT JUDGE
(COMMERCIAL COURT)-02, WEST, TIS HAZARI COURTS
EXTENSION BLOCK, DELHI
CNR NO.DLWT01-006386-2022
CS (COMM) NO.537/2022
1.SMT. BALPREET KAUR W/O SH. JASBIR SINGH R/O A-19, HARI NAGAR, CLOCK TOWER, NEW DELHI-110064
2. SMT. JASVINDER KAUR W/O SH. JASPAL SINGH GUJRAL R/O A-19, HARI NAGAR, CLOCK TOWER, NEW DELHI-110064 BOTH THROUGH THEIR SPECIAL POWER OF ATTORNEY JASPAL SINGH GUJRAL R/O A-19, HARI NAGAR, CLOCK TOWER, NEW DELHI-110064 ......PLAINTIFFS VERSUS
1. M/S M.M.K USARI CO.
(A NEW VENTURE OF JOLLY GROUP) THROUGH ITS PARTNER
2. BHUPINDER SINGH HAVING OFFICE AT:
F-2, GURU NANAK PURA, NEW DELHI-110018 ALSO AT:
71/144, PREM NAGAR, JANAK PURI, NEW DELHI-110058 CS (Comm) No.537/2022 Page No.1 of 8 ALSO AT:
18/5, CSM, JANAKPURI,
NEW DELHI-110058
......DEFENDANTS
Date of institution : 08.07.2022
Date of receiving by this Court : 08.07.2022
Date of conclusion of arguments : 25.10.2023
Date of announcement of judgment : 23.11.2023
SUMMARY JUDGMENT
1. By this judgment, I shall dispose off the application under Order XIII A CPC filed by the plaintiff seeking Summary Judgment.
2. Plaintiffs filed the present suit against defendants seeking permanent and mandatory injunction along with damages @ Rs. 2,00,000/- per month and an application under Order 39 Rule 1 and 2 CPC. Brief stated, plaintiffs are the owners of property bearing No. WZ-20A, built on portion of Plot No.E-11, Khasra No.453, Jail Road, Delhi-18 admeasuring 115 sq. yards (hereinafter referred to as 'suit property'). Since, plaintiffs were on a look out for a prospective builder to build the suit property, defendants in the month of December 2021 approached the plaintiffs to do the needful. After due deliberations between the plaintiffs and defendants, a construction agreement dated 29.12.2021 was executed between them, as per which, the defendants were to complete the construction within 14 CS (Comm) No.537/2022 Page No.2 of 8 months after receiving the sanction plan. In pursuance to the said agreement, plaintiffs made a payment of Rs. 16 lakhs to defendants on various dates commencing from 29.12.2021 to 01.01.2022 which was duly acknowledged by the defendants by way of receipts. In the month of January 2022, defendants started demolition work of the already built portion on the suit property and in February 2022, defendants commenced construction work.
However, thereafter, defendants started avoiding plaintiffs on one pretext or the other and did not give any information w.r.t. sanction plan, progress of construction work, material etc.
3. In March 2022, defendant No.2 and his associates started threatening the plaintiffs on the premise that if plaintiffs did not give two floors in the suit property to the defendants, defendants would neither construct the suit property nor allow any construction on the suit property to take place. However, defendants continued the construction work on the suit property. On 03.05.2022, when plaintiffs visited the suit property to enquire about the sanction plan and to inspect construction activity, defendant No. 2 along with his associates, started threatening plaintiffs with dire consequences and did not permit them to enter the suit property. Plaintiffs made several complaints to the police officials but to no avail. Thereafter, plaintiffs got issued a legal notice dated 18.06.2022 to the defendants calling upon them to provide sanction plan of the suit property and to allow the plaintiffs to inspect the suit property.
CS (Comm) No.537/2022 Page No.3 of 84. Again on 22.06.2022, when plaintiffs went to inspect the progress of construction, they were stopped and threatened by defendant No.2 and his associates. Due to fear and misdeeds of defendants, plaintiffs lodged a police complaint dated 23.06.2022, but to no avail. The plaintiffs also made several calls to defendants to carry construction as per the agreement and to allow the plaintiffs to enter into suit property but in vain. Plaintiffs also made complaints to BSES, DJB and Sub-Registrar Office to not to issue or allow any new connection or document to be executed in respect of suit property without the presence of plaintiffs.
5. It is thus the case of plaintiffs that since, as per Clause 5, 8 and 11 of the construction agreement dated 29.12.2021, defendants could start the construction work only after obtaining sanction plan from the concerned authority failing which they were liable to pay Rs. 2,00,000/- per month to the plaintiffs, the plaintiffs were entitled to the relief of permanent and mandatory injunction as prayed in the prayer clause and the relief of damages.
6. After the assignment of present suit, summons to the defendants were issued by this Court and defendants put their appearance through their counsel on 21.07.2022. On 23.07.2022, the statement of defendant No.2 was recorded to the effect that the defendants will not create any third party interest and accordingly, the application under Order 39 Rule 1 and 2 CPC was disposed off. Vide the same CS (Comm) No.537/2022 Page No.4 of 8 order, defendant No.2 was directed to provide the sanction plan qua the construction of suit property to the plaintiffs. On the next date of hearing i.e. on 19.09.2022, it was submitted on behalf of defendants that no sanction plan was obtained from the MCD and that the MCD had undertaken that it will regularise the construction undertaken by the defendants in the suit property.
7. Subsequent thereto, vide order dated 16.03.2023 passed by this court, defence of defendants was struck off as they did not file any written statement along with Statement of Truth and Affidavit of admission/denial of documents within the stipulated period of 30 days or even within 120 days of the service. Resultantly, learned counsel for plaintiff filed the present application under disposal.
8. I have heard Sh. Sachin Wadhwa, learned counsel for the plaintiffs and have perused the entire record with utmost care.
9. Summary judgment as the name suggests is an outcome of the case decided summarily, based on the documentary evidence produced before the Court by the parties, without going for recording of evidence. The rule of Civil Procedure empowers the court to narrow issues and expedite proceedings by granting summary judgments where the common law permits. It is an effective tool for deciding cases where it can be clearly demonstrated that a trial is unnecessary. However, to grant a summary judgment, the court must be satisfied that there is no issue CS (Comm) No.537/2022 Page No.5 of 8 for trial. Rule 3 of Order XIII A of the CPC lays down the following grounds for Summary Judgment against a party on a claim, when it considers that :
(a) The plaintiff has no real prospect of succeeding on a claim or the defendant has no real prospect of successfully defending the claim : and
(b) There is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
10. In a case titled as "AMBAWATTA BUILDWELL PRIVATE LIMITED VS. IMPERIA STRUCTURE LTD. AND ORS. reported as 2019 SCC ONLINE DL 8657, it was held by the Hon'ble High Court of Delhi as under:
"What has to be seen is, whether the defence pleaded, has any chance of succeeding of in law and if the answer is in the negative, a decree on admissions or order XXV of CPC or a summary judgment Under Order XIII A CPC as applicable to commercial dispute where Chapter X-A of the Delhi High Court (in original sites) Rules 2018 has to follow."
11. Similarly, in SYRMA TECHNOLOGY PVT. LTD. VS.
POWERWAVE TECHNOLOGIES SWEDEN AD and another reported as 2020 SCC ONLINE MAD 5737, it was held by the Hon'ble Madras High Court as under:
"This rule provides sufficient powers to the court to pass the conditional order. This power has to be exercised when it appears to the court that it is possible that a claim or defence may succeed but it is improbable that it shall do so. If we read Order XIII A Rule 6 & 7 together, a clear picture would emerge. If it appears to the court that a claim or defence may succeed and it is also probable, then the application filed seeking a Summary judgment will have to be dismissed. If it appears to the Court that it is possible but improbable as stated in Rule 7 of Order XIII-A of the Code, then it may consider passing a conditional CS (Comm) No.537/2022 Page No.6 of 8 order."
If the court considers that a plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim there is no other compelling reason as to why the claim should not be disposed of before recording of oral evidence, it may give a Summary judgment. Alternatively, the Court can also consider striking out the pleadings either in whole or in part. This discretion is given to the Court before deciding to give a summary judgment. Therefore, the court has to keep in mind and decide as to whether it is a fit case for striking out the pleadings dismissing an application and proceed further or a conditional order could be passed. After exhausting these stages, the question of granting a summary judgment would arise."
12. Now applying the principles of summary judgment to the facts of the instant case, this Court is of the view that plaintiff is entitled to a decree under Order XIII A especially when the averments in the plaint have not been controverted by the defendants. Resultantly, the application of plaintiff under Order XIII A CPC is allowed. Plaintiff is held entitled to permanent and mandatory injunction.
13. So far as damages @ Rs. 2,00,000/- per month is concerned, plaintiff claimed the damages for a period of six months amounting to Rs. 12,00,000/- w.e.f. February 2023 till the institution of the present suit along with interest @ 12% per annum. The perusal of construction agreement dated 29.12.2021 shows that as per Clause 8 of the said agreement, the defendants were to complete all the construction work within 14 (fourteen) months from the date of starting the construction work after sanction plan, failing which defendants shall be liable to pay the CS (Comm) No.537/2022 Page No.7 of 8 demurrage charges of Rs. 2,00,000/- per month to the plaintiffs. Since, it was conceded by defendant No.2 who is one of the Partners in defendant No.1 firm, that he had not obtained any sanction plan to construct the suit property, plaintiff is also held entitled to recover an amount of Rs. 12,00,000/- as damages along with pendente lite and future interest @ 12% per annum w.e.f. the date of institution of the present suit till its actual realization.
Decree sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 23RD NOVEMBER, 2023 (HEMANI MALHOTRA) DISTRICT JUDGE (COMMERCIAL COURT)-02/WEST, TIS HAZARI COURTS EXTN. BLOCK, DELHI $ CS (Comm) No.537/2022 Page No.8 of 8