Delhi District Court
Yogesh Gandhi vs . Suresh Raheja. on 10 January, 2013
Yogesh Gandhi Vs. Suresh Raheja.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT JUDGE04 :
SOUTH DISTRICT : SAKET COURT COMPLEX, NEW DELHI
CS. NO. 126/10
In the matter of :
Sh. Yogesh Gandhi,
S/o Sh. V.P. Gandhi,
R/o 16, State Bank Colony,
G.T. Karnal Road,
Delhi110009
Presently Posted at:
P.O. Box 1720,
Sharjah,
United Arab Emirates .....Plaintiff
Versus
1.Sh. Suresh Raheja, Chairman, M/s. Raheja Design & Contract Ltd., A201, Main Road, Okhla Indl. Area PhaseI, New Delhi110020
2. M/s. Raheja Design & Contract Ltd.
Through its Chairman Sh. Suresh Raheja, M/s. Raheja Design & Contract Ltd., A201, Main Road, Okhla Indl. Area PhaseI, New Delhi110020
3. Ms. Smiriti Sahani, Managing Director (North India), M/s. Raheja Design & Contractor Ltd., CS. No. 126/10 Page 1 of 8 Yogesh Gandhi Vs. Suresh Raheja.
A201, Main Road, Okhla Indl. Area PhaseI, New Delhi110020
4. Sh. Naveen Arora R/o 1239, Sector31, Gurgaon, Haryana ....Defendants Date of institution of case : 11.05.2009 Date of Reserving order : 07.01.2013 Date of Judgment : 10.01.2013 Judgment
1. The plaintiff, Yogesh Gandhi has filed a suit for recovery of Rs. 8,60,000/ against all the four defendants and case of the plaintiff is that defendant no. 1, Suresh Raheja, being Chairman of defendant no. 2 having been engaged in the business of builder/ promoter and colonizer, allured the plaintiff to invest in the forthcoming project of defendants no. 1 and 2 of raising commercial mall at Kundli, Sonepat, Haryana and made plaintiff to pay a sum of Rs. Five Lakhs to defendant no. 2 company vide a cheque dated 12.05.06 drawn on Bharat Overseas Bank, Connaught Place Branch, New Delhi, where plaintiff was maintaining a bank account called NRE 407163. The plaintiff was introduced to defendant no. 4, Naveen Arora by a common friend and it was defendant no. 4 who induced plaintiff to pay the money to the defendant no. 2 company, assuring of handsome returns. Plaintiff has claimed that it was assured CS. No. 126/10 Page 2 of 8 Yogesh Gandhi Vs. Suresh Raheja.
that the money being given by the plaintiff shall be returned with interest at least @ 24% per annum. Interest as promised was not paid to the plaintiff and in month of April 2009, after making enquires, plaintiff came to know that said project has been dropped by defendant no. 2 and they were not refunding the registration money received from various applicants, who had applied for commercial units in the said mall. Legal notice dated 23.04.09 was issued by the plaintiff to the defendants and when payment was not received, suit has been filed for recovery of the amount alongwith the interest.
2. Written statement was filed separately on behalf of defendants no. 1 to 3 and defendant no. 4. The case of defendants no. 1 to 3, as per the written statement filed is that plaintiff was an investor and had invested the money after having applied alongwith other customers under advance registration for space at commercial mall Kundli, Sonepat, Haryana. Defendants have denied having received any loan from plaintiff. It is also claimed on behalf of defendants no. 1 to 3 that as per the agreed terms and conditions of advance registration form, the plaintiff was to make further due payments to the defendants for the booked shop in the project and demand letters/ reminders were issued by defendants on 28.12.06, 28.02.06, 17.08.07 and 20.08.07. It is also claimed that plaintiff intended to back out from the project because of falling price CS. No. 126/10 Page 3 of 8 Yogesh Gandhi Vs. Suresh Raheja.
and recession in the real estate market and had come up with the false story of having given amount of Rs. Five Lakhs to the defendants as loan. Similar is the stand taken on behalf of defendant no. 4 in the written statement filed and the allegations made by plaintiff against defendant no. 4 and other defendants in general, have been denied.
3. In the light of the pleadings of the parties following issues were framed:
1. Whether the plaintiff is entitled to the decree of recovery, as prayed for ? OPP
2. Whether the plaintiff has no cause of action to file the present suit ? OPD
3. Whether the suit of the plaintiff is within limitation ?
OPP
4. Relief.
4. Later on, defendant no. 4 stated absenting from the proceedings and has not participated in the proceedings. Case was defended on behalf on all the defendants generally, by the counsel appearing for defendants no. 1, 2 and 3.
5. Plaintiff filed his affidavit of evidence and was crossexamined on behalf CS. No. 126/10 Page 4 of 8 Yogesh Gandhi Vs. Suresh Raheja.
of defendants no. 1, 2 and 3 in evidence of defendants no. 1, 2 and 3. Dinesh Kumar Shukla, authorized attorney of defendant no. 1 company filed his affidavit of evidence and was crossexamined on behalf of plaintiff. No witness was examined on behalf of defendant no. 4.
6. Arguments were heard on behalf of both the parties and I hold as under: 7. Issue No. 1
There is no dispute as regards the payment of Rs. Five Lakhs by plaintiff to defendant no. 2 company which was by way of cheque no. 113831 dated 12.05.06 drawn on Bharat Overseas Bank. Plaintiff is claiming that money was given as a loan to defendant no. 2 company after assurance was given by defendant no. 4 for handsome returns on the amount and interest at the minimum rate of 24% per annum was assured. The said fact has been denied on behalf of the defendants and it is claimed that a sum of Rs. Five Lakhs was invested by plaintiff for a shop in the commercial mall being constructed by defendant no. 2 company at Kundli, Sonepat, Haryana. There is no written agreement between being relied upon on behalf of either of the party. DW 1, Dinesh Shukla through his affidavit of evidence has testified that documents Ex. DW1/B to Ex. DW1/E which are the photocopies of the communications dated 28.12.06, 28.02.07, 17.08.07 and 20.08.08 and are the demand CS. No. 126/10 Page 5 of 8 Yogesh Gandhi Vs. Suresh Raheja.
letters written by defendants, particularly defendant no. 2 company to the plaintiff for payment of the amount towards the sale consideration of the shop booked by plaintiff in the said mall. However, original of these documents were not produced and in crossexamination DW 1, Dinesh Shukla admitted that receipts of the letters having been sent has not been placed on record. It was claimed that documents Ex. DW1/B to DW1/E were sent to the plaintiff by courier. It is also stated by DW 1, Dinesh Shukla in crossexamination that construction of the said mall at Kundli, Sonepat, Haryana was abandoned midway by defendant no. 2 company and at present construction is stalled. Plaintiff is clearly entitled to the refund of the amount deposited by him as defendant no. 2 company has not placed on record any document to show that the money was given by the plaintiff, only as an investment for a shop. This issue is accordingly decided in favour of the plaintiff and against defendants and it is held that plaintiff is entitled to the decree of recovery of the money from defendants.
8. Issue No. 2
The defendants have taken the objection as regards to the entitlement of the plaintiff to file the suit claiming that there was no cause of action for the plaintiff to file the suit against the defendants. The plaintiff is seeking recovery of the money given by him to defendant no. 2 company CS. No. 126/10 Page 6 of 8 Yogesh Gandhi Vs. Suresh Raheja.
claiming that it was a loan given on the assurance made by defendant no. 4 and since defendant has failed to prove money was received as an investment or that any default was committed on the part of the plaintiff disentitling him to recover the money from the defendant. Plaintiff clearly has a cause of action to file the present suit against the defendants. The suit filed by the plaintiff is clearly maintainable and plaintiff indeed has a cause of action to file the suit. 9. Issue No. 3 This issue was as regards the suit having been filed by the plaintiff within limitation. As per the case of the plaintiff, plaintiff having testified through affidavit of evidence, the money was paid by defendant vide a cheque dated 12.05.06 and suit was filed on 11.05.09, same being within limitation having been filed within three years of date of issuance of the cheque and actual date of receiving of the money under the cheque could be after 12.05.06 only. As such, it is held that suit filed by the plaintiff is within limitation.
10. Issue No. 4 Plaintiff is claiming a sum of Rs. 8,60,000/ from the defendants. Rs. Five Lakhs is the amount paid by the plaintiff and rest is the interest component calculated @ 24% per annum. No agreement as regards the CS. No. 126/10 Page 7 of 8 Yogesh Gandhi Vs. Suresh Raheja.
payment of the interest has been placed on record or proved by the plaintiff and there is no evidence other than the deposition of the plaintiff himself. The plaintiff is as such not entitled to claim interest on the amount prior to the date of issuance of legal notice dated 23.04.09. DW 1 in his deposition has denied having received legal notice dated 23.04.09. Plaintiff in his evidence has proved the postal receipts Ex. PW1/2 in proof of the notice having been issued. Pendente lite and future interest is allowed @ 10% per annum in view of the nature of transaction between the parties, as it was a commercial transaction. Money was received by defendant no. 2 company. Defendant no. 1 is the Chairman of the company and defendant no. 3 is the Managing Director of the company and so, all three defendants, defendants no. 1, 2 and 3 are jointly and severally liable to pay the money to the plaintiff. Accordingly a decree for a sum of Rs. Five Lakhs is passed in favour of the plaintiff and against defendants no. 1, 2 and 3 who are jointly and severally liable under the decree. Pendente lite and future interest is allowed @ 10% per annum. Costs of the suit is also allowed to the plaintiff. Decree be drawn accordingly.
Announced in the open Court (J.P.S. MALIK) on 10.01.2013 ADJ04 : SOUTH DISTRICT All pages signed NEW DELHI CS. No. 126/10 Page 8 of 8 Yogesh Gandhi Vs. Suresh Raheja. CS. No. 126/10 10.01.2013 Present: None.
Vide separate judgment of the date, suit of the plaintiff is decreed for a sum of Rs. Five Lakhs. Pendente lite and future interest is allowed @ 10% per annum. Costs of the suit is also allowed to the plaintiff. Decree be drawn accordingly.
File be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 10.01.2013 CS. No. 126/10 Page 9 of 8