Delhi High Court - Orders
Basant Goel vs Som Prakash Sethi & Ors on 18 January, 2024
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 557/2022
BASANT GOEL ..... Plaintiff
Through: Mr. Rupesh Tyagi, Adv.
versus
SOM PRAKASH SETHI & ORS. ..... Defendant
Through: Mr. Saurabh Seth, Ms. Neelam Deol,
Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 18.01.2024 I.A. 3792/2023-SEEKING SUMMARY JUDGMENT
1. This is an application filed under Order XIIIA read with Section 151 CPC seeking summary judgment in favour of the plaintiff and against the defendants for recovery of the sum of Rs. 1,50,00,000/- as advance payment and interest of Rs. 7,50,000/- on advance payment of sale consideration.
2. The facts in brief are that the plaintiff and defendants entered into an agreement to sell dated 27.06.2021 with respect to sale of property bearing No. E-16, Block-B1, Mohan Cooperative Industrial Estate, New Delhi-110044.
3. As per the said agreement to sell, the parties had agreed as under:
"2. That Out of the total consideration of Rs.18,50,00,000/- (Rupees Eighteen Crores and Fifty Lakhs Only), the SECOND PARTY has paid to the FIRST PARTY a sum of Rs.1,50,00,000/- (Rupees One Crore and Fifty Lakhs Only), as advance money and part sale consideration, in the following manner:-
Amount in Payment Number Dated Drawn on
Mode
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23 Rupees 5,00,000/- Cheque 002195 21/06/2021 ICICI Bank, Durgapuri Branch, Delhi 70,00,000/- Demand 507470 24/06/2021 ---- do ----
Draft 70,00,000/- Demand 507508 25/06/2021 ---- do ----
Draft 5,00,000/- Demand 507509 25/06/2021 ---- do ----
Draft the receipt of which the FIRST PARTY hereby admits and acknowledges.
(c) The balance sale consideration of Rs.17,00,00,000/- (Rupees Seventeen Crores Only) shall be paid by the SECOND PARTY to the FIRST PARTY on or before 25th September, 2021 (subject to the fulfillment/completion of the "Compulsory Requirements" by the FIRST PARTY at its own cost as mentioned in Clause No.5 below). Simultaneously on receipt of the balance sale consideration, the FIRST PARTY shall execute and get registered the Sale Deed as well as all the deeds and documents as may be required by the SECOND PARTY for the conveyance, transfer and sale of the said property in favour of the SECOND PARTY or his nominee(s).
....
5. That it has been precisely agreed between the parties hereto, that the FIRST PARTY at its own cost and expenses shall complete the following formalities, before the final payment;
S. No. "Compulsory Requirements"
(a) To repay the entire loan amount together with interest
thereon and provide No Dues Certificate to the SECOND PARTY and also get released and obtain the original documents of the said property from Indiabulls (IVL Finance Limited);
(b) Provide upto date payment receipts of House Tax, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23 Electricity charges and other outgoings in respect of the said property;
Hereinafter collectively referred to as the
"COMPULSORY REQUIREMENTS". Upon
completion of the Compulsory Requirements, the FIRST PARTY will inform the SECOND PARTY be by registered A.D. Post.
4. It is stated that pursuant to the said agreement to sell, the plaintiff paid a sum of Rs. 1.5 crores to the defendant No.1 and the sale was to be completed on or before 25.09.2021.
5. It is stated by Mr. Tyagi, learned counsel for the plaintiff that since the defendants did not complete the sale proceedings, the plaintiff issued legal notice dated 28.09.2021 calling upon the defendants to comply with their obligations contained in the agreement to sell.
6. The defendants replied on 06.10.2021, wherein the defendants sought to modify the terms of the agreement to sell and requested the plaintiff to clear the dues of M/s Indiabulls Finance Private Limited.
7. According to Mr. Tyagi, learned counsel, the defendants unilaterally modified the terms of the agreement to sell and hence both the parties terminated the agreement to sell.
8. On the said basis, the plaintiff has filed the present application seeking recovery of the advance money along with interest and damages.
9. In response, Mr. Seth, learned counsel appearing for the defendants has drawn my attention to WhatsApp chat dated 21.09.2021 by the plaintiff to the defendant No.4, which reads as under:-
"This is with reference of out meeting dated 20.09.2021 That the ATS dated 27th June 2021 should be treated as modified by including following terms:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23
1. That the second party will pay Rs.______to the First Party Via payorder in favour of India Bulls (IVL finance Limited).
2. That the Second party will pay the balance amount to the first Party on of before 15th October 2021. 3. That the Second party will pay interest @ 12% for the period from 26th August 2021 to the date of final payment on the balance amount."
10. He states that the parties by written communication had altered the terms of the agreement to sell, wherein the defendant had agreed to pay the loan amount to M/s Indiabulls Finance Private Limited.
11. I have heard learned counsels for the parties.
12. Whether the WhatsApp chat dated 21.09.2021 is modification of the terms of the agreement to sell dated 27.06.2021 is a triable issue and the parties would have to lead evidence for the effect, interpretation and the conclusiveness of the said WhatsApp message. A perusal of the WhatsApp chat prima facie shows that the plaintiff had offered to make some payments to M/s Indiabulls Finance Private Limited.
13. For the said reasons, at this stage, this Court cannot give a conclusive finding that the defendant has no real prospect of successfully defending his claim.
14. The application is dismissed and the issue would be decided after the parties have led evidence. The observations made hereinabove are only for the purpose of deciding this application and will have no bearing on the final adjudication.
15. On the pleadings of parties, the following issues are framed:-
a. Whether the plaintiff has always been ready and willing to perform his obligation in terms of the agreement to sell dated 27.06.2021? -OPD This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23 b. Whether the agreement to sell dated 27.06.2021 contemplated reciprocal promise (onus of proof on both parties)? c. Whether the terms of the agreement to sell dated 27.06.2021 have been modified?-OPD d. Whether the defendants have violated the terms of the agreement to sell dated 27.06.2021 and / or amendment (if applicable)?-OPP
16. With consent of parties, Ms. Rajni Anand, Adv. (Mobile: 9891593401) is appointed as a Local Commissioner to record the evidence between the parties. The Local Commissioner is requested to conclude the evidence within 7 months from today.
17. The Local Commissioner shall be paid a fee of Rs. 10,000/- plus Rs.
1000/- clerical expenses for every effective cross-examination and Rs. 2500/- for non-effective date.
18. The Local Commissioner is also at liberty to book the consultation room for the purpose of recording evidence and the charges shall be borne by the parties in equal proportion.
19. The parties shall file their list of witnesses within 4 weeks from today and the plaintiff will file his affidavit by way of evidence within 4 weeks.
20. The amended memo of parties be filed within 2 weeks from today before the Joint Registrar.
21. List before the Local Commissioner on 19.02.2024 at 3:30 p.m. for preliminary hearing.
22. It is stated that defendant No. 5 has expired and defendant No. 5‟s LRs are already on record. Let amended memo of parties be filed within 1 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23 week from today. List before the Joint Registrar on 05.02.2024 for filing of amended memo of parties.
23. List before the Court 25.09.2024.
JASMEET SINGH, J JANUARY 18, 2024 / (MS) Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/01/2024 at 22:28:23