Delhi District Court
Ms. Parul Bharana vs M/S. Ajs Builders Pvt. Ltd on 14 July, 2020
In The Court of Ms. Shivali Sharma
Additional District Judge03 (West)
Tis Hazari Courts, Delhi
Suit No. 611902/2016/2009
In the matter of :
Ms. Parul Bharana
D/o Sh. Subhash Chander Bharana
R/o B1/264,
Janak Puri,
New Delhi.
.....Plaintiff
Versus
M/s. AJS Builders Pvt. Ltd.
805, Antriksh Bhavwan,
22, Kasturba Gandhi Marg,
New Delhi 110 001.
Through its Director
Also at:
M/s. AJS Builders (Pvt.) Ltd.,
Corporate Office :
8, Shaheed Bhagat Singh Marg,
Gole Market, 1st Floor,
New Delhi 110 001.
..... Defendant.
Date of institution : 10.09.2009
Date of decision : 14.07.2020
SUIT FOR RECOVEY OF RS. 4,09,144/
1.The plaintiff has filed the present suit against the defendant company for recovery of Rs. 4,09,144/ alongwith pendentelite and future interest @ Rs. 18% per annum.
CS: 611902/2016 Parul Bharana Vs. M/s. AJS Builders (P) Ltd. 1 of 8 Plaintiff's case:
2. The case of the plaintiff as per plaint is that defendant company is a private limited company working in real estate business in the name and style of M/s AJS Builders Pvt.Ltd, having its office at 805, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi and corporate office at 8, Shaheed Bhagat Singh Marg, Gole Market, 1st floor, New Delhi.
The plaintiff booked a plot in the upcoming project of the company in Ganour(Sonipat) "AJS City" and agreed to the terms and conditions in the Registration Form of the defendant company, for which basic sale price was fixed @ Rs.5,700/ per square yards for a plot of 240 square yards.
3. As per the demand raised by the defendant, the plaintiff paid Rs. 2,83,200/ by way of three cheques bearing no. 415005 and 554217 both dated 18.03.2006 for a total amount of Rs. 2,05,200/ both drawn on ICICI Bank , New Delhi and cheque no. 902851 dated 15.01.2007 for Rs. 78,000/ drawn on Banks of Baroda, New Delhi for which defendant company had issued the receipt dated 14.03.2006 and 17.01.2007 respectively.
4. The defendant company received he said amount of Rs. 2,83,200/ from the plaintiff towards advance registration of plot and further instalment for the purpose of further process of the scheme allotment of the said plot. The defendant company had intimated to the plaintiff vide letter dated 19.10.2017 that it had obtained Licence of Intend(LOI) from the concerned authority and the defendant company would provide the plaintiffs the allotment within 90 days after receiving the application for Preferential Location Allotment. It was also mentioned in Clause 5 of the registration form of the defendant company that "in case the company is not able to allot a residential plot in 12 months from the date of application made herein, then the company will refund the amount to the allotee(s) with simple interest @9% per annum for the period of delay beyond 12 months''.
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5. Despite receiving the said amount of Rs. 2,83,200/ from the plaintiff, the defendant company did not progress the matter any further. The plaintiff also visited the office of the defendant company as well as the site and was shocked to know that there was no progress at all towards the allotment of plot. The defendant company also did not return the amount received by them despite repeated requests and demands by the plaintiff.
6. The plaintiff also sent a legal notice to the defendant company. Despite service of the legal notice, the defendant company failed to refund the amount. Hence, the present suit is filed by the plaintiff for recovery of Rs.4,09,144/ alongwith interest @18% per annum w.e.f. 17.01.2007 till realization.
Defendant's case:
7. In response to the summons of the suit, the defendant company filed its written statement wherein the suit was in preliminarily objected to on the ground of being barred U/o 7 rule 11 CPC, as Delhi courts have no jurisdiction to try this suit. It is averred that it is admitted by the parties qua the agreement that all the disputes concerning the present transaction, shall be solely dealt with by the Hon'ble Court of Haryana. On merits, it is stated that the plaintiffs have intentionally violated the terms and conditions of the agreement and not fulfilling demands raised by the defendant company in terms of the agreement and hence, the plaintiff on committing the said breach is not entitled for any recovery. It is also stated that no undertaking was given by the defendant company to provide allotment within 90 days, after receiving the application for Preferential Location Allotment. It is stated that defendant company has good reputation in the market and has completed many projects. It is further stated that no legal notice was ever served on the defendant company and the plaintiffs are not entitled for recovery of Rs.4,09,144/ alongwith pendentelite and future interest @ Rs. 18% per annum, as prayed.
CS: 611902/2016 Parul Bharana Vs. M/s. AJS Builders (P) Ltd. 3 of 8 Issues:
8. Vide order dated 27.09.2010 the following issues were framed:
(i) Whether the plaintiff is entitled for Rs. 4,09,144/ as prayed for? OPP.
(ii) Whether plaintiff is entitled for any interest, if yes, at what rate and for what period?OPP.
(iii) Relief.
9. After filing the written statement, the defendant stopped appearing in the court, therefore, vide order dated 03.05.2014, it was proceeded exparte.
Evidence:
10. Plaintiff examined herself as PW1 and stated and reiterated on Oath, the averments made in the plaint. She relied upon following documents: (I)PW1/A and Ex.PW1/B : Receipts dated 14.03.2006 and 17.01.2007 issued by the defendant company.
(ii)PW1/C : Circular dated 20.06.2000 of defendant.
(iii)PW1/D : Allotment preferential location request letter dated 19.10.2007 issued by the defendant company in favour of the plaintiff raising a demand of Rs.
2,83,200/.
(iv) PW1/E : Reminder dated 19.11.2006.
CS: 611902/2016 Parul Bharana Vs. M/s. AJS Builders (P) Ltd. 4 of 8
(v)Ex.PW1/F : Final reminder dated 09.01.2007 issued
by the defendant company to plaintiff
raising a demand of Rs. 2,89,097/.
(vi) Ex.PW1/G : Legal notice dated 25.05.2009.
11. The witness of the plaintiff is not cross examined on behalf of the defendant.
12. On the same day, evidence of the plaintiff was closed.
13. No evidence has been led by the defendant company.
14. Final arguments have been heard and record carefully perused.
Findings:
15. Now, I shall proceed to give my issue wise findings: Issue No. 1 & 2
(i) Whether the plaintiff is entitled for Rs. 4,09,144/ as prayed for? OPP.
&
(ii) Whether plaintiff is entitled for any interest, if yes, at what rate and for what period?OPP.
16. The onus to prove these issues was on the plaintiff. The plaintiff has examined herself as PW1 and has relied on certain documents. Her testimony has remained unrebutted and uncontroverted as she has not been subject to cross examination. The defendant has also not led any evidence to confront the case of the plaintiff. Now, let us examine the evidence brought on record by the plaintiff.
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17. The first contention of the plaintiff is that she had booked a plot of 240 square yards @ Rs.550/ per square yards in the upcoming project of the defendant company in Ganaur (Sonepat) "ASJ City". A registration form containing the terms and conditions was filled up by the plaintiff in this regard. Interestingly, plaintiff has neither pleaded nor deposed about the date of the said registration form nor placed or proved the same on record. What is on record is a Circular dated 20.06.2006 (Ex.PW1/C) issued by defendant company in joint name of plaintiff and one Shilpi Bharana regarding prelaunch Group Housing Residential Project at Distt. Sonepat, Haryana. This Circular is only an invitation to make an offer. After issuance of the Circular, whether or not any agreement was entered into between the parties was a fact in the knowledge of the plaintiff. She was required to substantiate the said fact by leading cogent evidence. But the plaintiff has miserably failed to prove the same. Despite being in possession of the best evidence the plaintiff has failed to bring the same on record, so an adverse inference has to be drawn against her. This is more so as it is not the case of the plaintiff that the agreement between the parties was oral or that she is not in possession of the said agreement. Her failure to produce the alleged agreement without any justifiable reason forces the court to hold that plaintiff has failed to prove the very basis of the cause of action for filing the present suit.
18. Now, let us examine the receipts placed on record by the plaintiff. The first receipt Ex.PW1/A dated 14.06.2006 for a sum of Rs. 2,05,200/ is issued in the joint name of Parul Bharana and Shilpi Bharana. It does not mention the name of the project "AJS City" which is alleged to be the project in respect of which the payment was made by the plaintiff. Plaintiff has failed to explain the role of Shilpi Bharana and as to why the receipt is issued in the joint name. Moreover, the receipt mentions payment by post dated cheque bearing no. 415005 and 554217 both dated 18.03.2006. Plaintiff has failed to prove as to from whose bank account CS: 611902/2016 Parul Bharana Vs. M/s. AJS Builders (P) Ltd. 6 of 8 these cheques were issued and whether they were encashed or not. All this evidence was again within the control of the plaintiff but she has failed to bring the same on record for the reasons best known to her.
19. The second receipt dated 15.01.2007 (Ex.PW1/B) is again in the joint name of Parul and Shilpi Bharana, This receipt mentions the name of project as "AJS City" Ganaur (Plots). Again it shows payment by cheque dated 15.01.2007 for showing the clearance of which no evidence has been lead. The role of Shilpi Bharana is not explained and there is no clarity as to if she was a joint owner and had jointly made payment to defendant company and if so, why she is not made a plaintiff in this case.
20. In addition to this the reminder (Ex.PW1/E & F) placed on record by the plaintiff clearly show that the plaintiff had not made timely payments to the defendant company and repeated demands had to be raised by the company.
21. Letter (Ex.PW1/D) is a request letter issued by defendant company for submitting the preferential location allotment request application by 31.10.2007 but plaintiff has failed to prove that in response to the said request, she had timely furnished her application which was a prerequisite for allotment as per own case of the plaintiff.
22. Moreover, the legal notice (Ex.PW1/G) is not accompanied by any postal receipt to show that it was actually dispatched to and received by the defendant company.
23. Considering the overall evidence brought on record by the plaintiff, I have no hesitation in holding that she had miserably failed to support her case by cogent evidence. Complete set of documents regarding the alleged transaction has not been proved or placed on record by the CS: 611902/2016 Parul Bharana Vs. M/s. AJS Builders (P) Ltd. 7 of 8 plaintiff despite being in possession of the same. The role of Shilpi Bharana in the entire deal/transaction is not explained. The actual clearance of cheques vide which alleged payments have been mace is not proved on record. The basis for claiming interest @18% per annum has not been established on record. The plaintiff has also failed to establish on record that she had actually made an application for preferential location allotment with the defendant company within 12 months of which allotment was to be allegedly made. Thus, the evidence on record is highly insufficient for granting any relief in favour of the plaintiff. Since the cause of action for filing the suit is not supported by any evidence, these issues are decided in favour of the defendant and against the plaintiff.
Relief:
24. In view of my issue wise findings given above, the suit of the plaintiff is dismissed.
25. Decree sheet be prepared accordingly.
26. File be consigned to record room after due compliance.
Announced today during Covid 19 Lockdown through WeBex in the presence of Ld. Counsel for the plaintiff.
Digitally signed by SHIVALI SHARMASHIVALI Date:
SHARMA 2020.07.14
13:47:48
+0530
(SHIVALI SHARMA)
ADJ03/WEST/THC/DELHI
14.07.2020
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