Delhi District Court
Shiv Prasad Ghosh vs Mahavir Arya And Anr on 27 February, 2024
IN THE COURT OF MS. SHILPI M JAIN : ADDL. DISTRICT
JUDGE-05, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No. 17115/2016
CNR No. DLSW01-0025702016
SHRI SHIV PRASAD GHOSH
S/o SH. S.C. GHOSH FLAT NO. 201,
H-3/115, BENGALI COLONY,
MAHAVIR ENCLAVE,
NEW DELHI 110 045.
... Plaintiff
Versus
1. SHRI MAHAVIR ARYA
PROPRIETOR / BUILDER,
M/s. SHRADHA PROPERTIES,
H-4/76A, MAHAVIR ENCLAVE,
NEAR MOTHER'S LOVE SCHOOL,
NEW DELHI 110 045
2. SMT. BABITA RAJORIA
W/o. SHRI MAHAVIR ARYA,
R/o. C-124, DASHRATH PURI,
PALAM DABRI ROAD,
NEW DELHI 110045.
....Defendants
Date of Institution : 20.01.2014
Date of Arguments : 13.12.2023
Date of Judgment : 27.02.2024
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION.
JUDGMENT
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 1 of 20 INDEX FACTUAL BACKGROUND ....................2 ISSUES .....................8 EVIDENCE GIVEN BY PARTIES .....................8 SUBMISSIONS OF THE PARTIES .....................11 ISSUEWISE ANALYSIS & FINDINGS .....................11 CONCLUSION .....................20
1. Present case has been filed by plaintiff for specific performance and permanent injunction qua the property i.e. flat no. 101, H-4/101, near Kalibari Mandir, Mahavir Enclave, New Delhi-45 (hereinafter called as "Suit property") against the defendants.
FACTUAL BACKROUND:
2. It is the case of the plaintiff that, defendants are husband and wife and into real estate business. It is submitted that, the plaintiff was evaluating options of purchasing a MCD approved property in Mahavir Enclave, New Delhi - 110 045 locality in the month of May 2012 and met the defendant no. 1 who deals in real estate business in Mahavir Enclave, and requested him to show some MCD properties for evaluation. On this the defendant no. 1 showed him the property bearing No. 201, H-3/115, 2 nd Floor, Bengali Colony, Mahavir Enclave, New Delhi - 110045 (hereinafter referred as 'Flat No. 201').
3. It is averred that, defendant no. 1 claimed Flat No. 201 was MCD approved and subsequently the deal was finalized at Rs. 44,00,000/- (Rupees Forty four lacs). The Flat No. 201 was under construction at that time, therefore the defendant no. 1 showed an adjoining sample flat to the plaintiff. It was agreed between the plaintiff and defendant no. 1 that, the deal would CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 2 of 20 be executed on the basis of "Agreement to Sell". It was also agreed between the plaintiff and defendant no. 1 that, the entire sum of consideration had to be paid before handing over the possession within 120 days from the date of signing the agreement to sell. It is submitted that, few days after executing agreement the defendant No. 1 re-affirmed the above mentioned terms and conditions with a penalty clause mentioned at bottom of the third page of the Agreement to sale dated 28.05.2012. It is further submitted that, in persuasion of the finalization of the deal and agreement to sale, the plaintiff paid total money amounting to Rs. 37,00,000/- (Rupees Thirty Seven Lacs) to the defendants till 19.07.2012 as per following schedule.
a) On 13.5.12 against receipt (Cash) Rs. 50,000/-;
b) On 27.5.12 against receipt (cash) Rs. 12,00,000/-;
c) On 28.5.12 against receipt (cash) Rs. 12,50,000/-;
d) On 14.7.12 against receipt (cash) Rs.7,00,000/-;
e) On 19.7.12 vide receipt (a/c deposit) Rs. 5,00,000/-
Total Rs. 37,00,000/-.
4. It is submitted that, after receiving the above said amount of Rs. 37,00,000/- from the plaintiff in the month of July 2012, the defendants informed the plaintiff about the completion of construction work of the Flat No. 201 in question, pursuant to which plaintiff visited the Flat No. 201 and noticed several violations along with seepage on the walls/roof, cracks on the floor poor quality material used in the construction of the Flat No. 201 and discrepancy in the size.
5. It is further averred that, plaintiff immediately apprised the defendants of all these violations and asked for the MCD approved plan of the property as per terms of the agreement to sell. The defendants admitted to all the violations and discrepancies in the construction of the flat in question and the defendants also showed inability to provide MCD approved plan as per terms CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 3 of 20 of the agreement to sell. Feeling aggrieved plaintiff demanded full refund of the money with penalty as per agreement clause.
6. It is submitted that, the defendants proposed as under:
a) The price of the "Flat No. 201" would be reduced to Rs.
13,50,000/- from Rs. 44,00,000/- due to its construction without MCD approved plan and with poor quality material, broken floorings, seepage problem, absence of lift and lack of several amenities in violation to the terms of agreement to sell dated 28.05.2012.
b) The plaintiff would be provided with premium Flat at front side of upper ground floor situated on H-4/101, Bengali colony, Mahavir Enclave, New Delhi 110045 consisting of 3 BHK measuring area of 100 sq. yards (suit property) with all amenities which was also under construction and due to be completed by September 2012. The cost of the said premium flat would be Rs. 42,48,000/-;
c) This would make the total sum of money paid to the defendants as Rs. 55,98,000/- as total consideration for both flats. Therefore, the plaintiff would be required to pay balance amount of Rs. 18,98,000/- to the defendants on or before September 2012 and defendants would be required and to execute the sale deed of "Flat No. 201" and "Suit property". Excess paid money of Rs. 23,50,000/- till 19.7.12 in respect to the "Flat No. 201" would be adjusted towards payment for the "Suit property".
7. It is further averred that, the plaintiff agreed on this proposal of July 2012 made by the defendants and in persuasion of the same the plaintiff CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 4 of 20 agreed to purchase the "Flat No. 201" for a consideration of Rs. 13,50,000/- and also agreed to purchase the "Suit property" for a consideration of Rs. 42,48,000/- i.e. subject to payment of Rs. 18,98,000/- as additional balance amount towards full payment of Rs. 55,98,000/.
8. It is submitted that, as per the proposal of July 2012, the plaintiff was supposed to pay balance amount of Rs. 18,98,000/- on or before 31 st August 2012 and defendants was supposed execute the sale deed of the flat no. 201 in favor of plaintiff on or before 31st August 2012 and also undertook to execute the sale deed of Suit Property on or before 30 th September after completion of the construction work of the same in favor of the plaintiff. It is further averred that, thereafter Central Bank of India sanctioned Rs. 10,00,000/- considering the sale price of the suit property Flat no. 201 as Rs. 13,50,000/- in the name of the plaintiff and his wife and same was disbursed to defendants at the time of execution of the sale deed. The sale deed for Flat no. 201 was executed on 21st August 2012 in favor of the plaintiff and his wife Smt. Sushmita Ghosh vide registration no. 9380 in additional book no. I volume no. 6656 on pages 27 to 34. The possession for Flat no. 201 was handed over to the plaintiff and his wife accordingly.
9. It is submitted that, in view of the proposal of July 2012 the plaintiff paid balance amount of Rs. 18,98,000/- to the defendants as per following schedule:
1. On 11.8.12 A/c deposit - Rs. 5,00,000/-
11. On 21.8.12 Bank loan - Rs10,00,000/-
III. On 28.8.12 vide cheque - Rs. 3,98,000/-
Total: Rs.18,98,000/-
Till 19.07.12 paid - Rs. 37,00,000/-
Total paid till 28.08.12 - Rs. 55,98,000/-
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 5 of 20
10. It is submitted that, despite receiving the entire amount of consideration of Rs. 55,98,000/- the defendants did not execute the sale deed of suit property in favor of the plaintiff as per the proposal of July 2012. Subsequently the plaintiff followed up with the defendants numerous times and requested them to execute the sale deed and hand over the possession of suit property but the defendants kept lingering on some or the other false pretext. It is further averred that, the defendant also threatened the plaintiff.
11. It is submitted that, finally the plaintiff submitted a written complaint dated 04.12.2012 to the S.H.O. P.S. Dabri but no action has been taken saying that, it is a civil dispute. Thereafter the plaintiff filed a criminal complaint u/s 200 CrPC against the defendants wherein Dr. Shri. Jagminder Singh, Ld MM, Dwarka, New Delhi has issued summon to the defendants for the offence of 420 IPC for appearance.
12. It is submitted that, as per understanding the proposal and mutual in July 2012, the defendants were required to execute the sale deed and handover the peaceful and vacant possession of the suit property i.e. flat no. 101, H-4/101, Mahavir Enclave, New Delhi 110 045 and that, plaintiff contacted the defendants several times and on requested them to execute the sale deed of suit property in his favor but the defendants put the plaintiff off on false pretexts. It is further averred that, the defendants intentionally deceived, cheated and deprived the plaintiff of his hard earned money and as such with malafide intention acted for wrongly gain to themselves and wrongful loss to the plaintiff. Hence, plaintiff filed the present suit.
13. The summons of the suit were issued to the defendants and written statement was filed on behalf of defendant No. 1 wherein it is stated that, CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 6 of 20 the present suit filed by the plaintiff is based on false claims and has cooked up a self imaginary story. It is stated that, the agreement to sell which was entered into between the parties qua flat no. 201, Front Side, Second Floor on plot no. H3/115, Bengali Colony, Mahavir Enclave, New Delhi, has already concluded once the conveyance deed dated 22.08.2012 was executed by the Defendant no. 2 in favour of the plaintiff and his wife Sushmita Ghosh.
14. It is further stated that, the relief claimed by the plaintiff in the present suit, is not maintainable either in fact and law as there is no privity of contract between the plaintiff and the defendants qua the Suit Property no. 2, i.e. Flat No. 101, H4/101, Near Kalibari Mandir, Mahavir Enclave, New Delhi45. It is further stated that, there is no provision in law to impose Specific Performance as a relief when there is no privity of contract between the parties. It is further stated that in the status report filed by Inspector, Satvir Singh before the trial court at the time of disposal of application under 156(3), Cr.PC. filed by the plaintiff against the defendants, it is stated that from the enquiry conducted so far and study of documents the allegations leveled by the complainant could not be substantiated.
15. It is also averred in the WS that, the plaintiff has filed the present suit with oblique purposes, intentionally knowing at the time of filing the present suit that the suit property, i.e. Flat No. 101, H 4/101, Near Kalibari Mandir, Mahavir Enclave, New Delhi 45, has already been sold by the Defendant no. 1 on 17.04.2013 to Meena Choudhury w/o Manoj Choudhury, Residence of 24G Shivalik Apartments, Plot No. 32, Sector 6, Dwarka, New Delhi 110075, vide registered sale deed in her favour. As CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 7 of 20 such the plaintiff has deliberately not made Mrs. Meena Choudhry as a party to the present suit therefore, same is liable to be dismissed as such under the provision of Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 for nonjoinder of parties. It is further averred that the plaintiff has himself contradicted his pleas and false averments which can be corroborated with the contents of application U/s 200 read with Section 156(3), Cr.p.c. filed by him against the defendants.
16. Lastly it is stated that, the Plaintiff has filed the suit for oblique purposes and that, too by suppressing, concealing and misstating the facts. It deserves to be dismissed for this reason as well.
17. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
18. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor of this Court vide order dated 31.05.2018 :-
i. Whether the suit is bad for non joinder of necessary parties? OPD ii. Whether the plaintiff is entitled to decree of specific performance of the agreement to the understanding as prayed? OPP iii. Whether the plaintiff is entitled to decree for permanent injunction as prayed? OPP iv. Relief.
EVIDENCE GIVEN BY PARTIES
19. In support of his case, plaintiff examined four (4) witnesses in all. PW1 is Sh. Shiva Prasad Ghosh i.e. the plaintiff. He has tendered his CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 8 of 20 evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
SL. PARTICULARS OF DOCUMENTS EXHIBITS NO. 1. Agreement to sell dated 28.05.2012 Ex. PW-1/1 (colly.)
2. Five receipts of earnest money dated 13.05.12, Ex. PW-1/2 (colly.) 27.05.2012, 28.05.2012, 14.07.2012 and 19.07.2012
3. Copy of registered sale deed bearing Mark A (Colly.) registration no. 9380, Additional book no. 1, volume no. 6656 on page 27 to 34 dated 28.08.2012
4. Photocopy of criminal complaint Mark B (colly.)
5. Complaint dated 04.12.2012 submitted before Mark C (colly.) PS Dabri vide DD NO. 89B on 04.12.2012
20. PW-1 has been cross-examined at length on behalf of the Ld. Counsel for the defendants but, record reveals that same was deferred on 24.07.2017.
21. PW-2 Sh. Aman Mishra, DEO, Sub Registrar-IX, Kapashera, New Delhi was a summoned witness and brought original register containing sale deed dated 22.08.2012 executed by Babita Rajoria in favour of Shiv Prasad Ghosh and Sushmita Ghosh which was registered vide Registration No.9380, Book No.1, Vol. No.6656, Page Nos.27 to 34 dated 22.08.2012. True copy of said document is exhibited as Ex.PW2/A (Original register seen and returned).
22. PW-2 has not been cross-examined by Ld. Counsel for the defendants.
23. PW-3 Sh. Rajender Kumar Meena, Assistant Manager, Central Bank of India, Branch, Uttam Nagar, New Delhi was a summoned CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 9 of 20 witness and has brought the summoned record i.e. certified copy of statement of account bearing no. 3197783947 which stands in the name of Shiv Prasad Ghosh and Sushmita Ghosh. Certified copy of the same which was taken from the computer installed in the bank of the witness wherein date used to be fed on regular basis consisting of 9 pages is exhibited as Ex.PW-3/A. Same has been certified by Branch Manager Sh. Trilok Chand Mehar, whose signature and seal of Bank is at point A (signatures identified by the witness). As per entry at point X on Ex.PW- 3/A, a demand draft amounting to Rs. 10 lacs was prepared on 21.08.2012.
24. PW-3 has been cross-examined by Ld. Counsel for the defendants wherein witness stated that, he do not have any personal knowledge about this case and for what purpose this demand draft was prepared by the account holders. He also do not know to whom and for which property the account holders had handed over this demand draft.
25. PW-4 Sh. Vineet Saxena, Manager, HDFC Bank Branch, R.K. Puram, Sector-IV, New Delhi-110022 was a summoned witness who has brought the record i.e. certified copy of statement of account bearing no.05881000021411 which as per bank records stands in the name of Shiv Prasad Ghosh. Certified copy of the same which was taken from the computer installed in the bank wherein date used to be fed on regular basis consisting of 41 pages is exhibited as Ex. PW-4/A which has been certified by Branch Manager Sh. Sandeep Gupta, containing seal of Bank is at point A. As per this statement of account, vide entry at point X dated 29.08.2012, a cheque bearing no. 668706 amounting to Rs. 3,98,000/- was cleared for the account of Shraddha Builders.
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 10 of 20
26. As plaintiff has failed to lead further PE despite opportunities, Ld. Predecessor of this court has closed the right to plaintiff to lead further PE vide order dated 23.07.2022.
27. Thereafter, matter was listed for DE. However, as defendants failed to lead any evidence despite opportunities given to them for the same, Ld. Predecessor of this court closed the right of defendants to lead DE vide order dated 01.10.2022. Thereafter, matter was listed for final arguments.
SUBMISSIONS OF THE PARTIES
28. Ld. Counsel for plaintiff didn't address any oral argument rather filed Written submission. While defendant failed to argue in present matter.
29. Record perused.
ISSUE WISE ANALYSIS:
i. Whether the suit is bad for non joinder of necessary parties ? OPD ii. Whether the plaintiff is entitled to decree of specific performance of the agreement to the understanding as prayed? OPP iii. Whether the plaintiff is entitled to decree for permanent injunction as prayed? OPP
30. Above issues are interrelated, hence taken up jointly. Since present matter involves description of two flats, for the purpose of clarification same are reproduced as follows:
Flat No. 201: 201, H-3/115, 2nd Floor, Bengali Colony, Mahavir Enclave, New Delhi - 110045 front side (hereinafter referred as 'Flat No. 1'); Suit Property: 101, H-4/101, UGF, Bengali Colony, Mahavir Enclave, New Delhi - 110045 front side (hereinafter referred as 'Flat No. 2');
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 11 of 20
31. Further, plaintiff claimed to had made payment of Rs. 55,98,000/- (Rs. Fifty Five Lakh Ninety Eight Thousand Only) i.e. Rs. 13,50,000/- for Flat No. 1 and Rs. 42,48,000/- for Flat No. 2. But, on the contrary material placed on record reveals entire payment was made qua Flat no. 1 only. For the purpose of clarification same is summarized as follows:
S. DATE PARTICULAR AMOUNT DESCRIPTION/PURPOSE PROPERTY NO.
01. 13.05.2012 Receipt (Cash) 50,000/- Bayana Amount qua total H-3/115/2nd sale consideration of Rs. Floor/Front 44,00,000/- (Flat No.
201)
02. 27.05.2012 Receipt (Cash) 12,00,000/- Payment -do-
03. 28.05.2012 Agreement to Sell 12,50,000/- Advance payment -do-
(Cash)
04. 14.07.2012 Receipt (Cash) 7,00,000/- Part Payment -do-
05. 19.07.2012 Receipt (Cash) 5,00,000/- Part Payment -do-
06. 11.08.2012 Bank Deposit in cash 5,00,000/- Part Payment -do-
07. 22.08.2012 Pay Order : Rs. 10,00,000/- Full Payment -do-
10,00,000/- (as mentioned in Sale Deed (Registered)
08. 27.08.2012 Cheque 3,98,000/-
Total 55,98,000/-
32. However, in WS defendants acknowledged receipt of Rs. 43,48,000/- and mainly disputed on two aspects i.e. firstly, Receipt dated 28.05.2012 for Rs. 12,50,000/- on the ground that, same was in confirmation of earlier cash receipt Secondly, absence of any contract w.r.t. to Flat No. 2.
33. It is contention of plaintiff is that, since defendants failed to lead any evidence, Plaintiff's case stands proved and decree may be passed in his favour. But, this court is not inclined to accept said plea as plaintiff has to prove his own case. It is well settled law that, burden to proving facts raised upon the party which substantially asserts the affirmation of the issue. In the matter of Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 of Hon'ble Supreme Court of India held as follows :
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 12 of 20 "8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence"
indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate 9 the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 13 of 20 he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
34. In present matter, there are two disputed facts:
A. Receipt dated 28.05.2012 for Rs. 12,50,000/-:
(i) Defendant disputed said receipt, on the ground that, same was in confirmation of earlier cash receipts dated 13.05.2012 and 27.05.2012. For the purpose of clarification receipt dated 28.05.2012 is reproduced herein:
Receipt Date:
28/5/12 Received a sum of Rs.12,50,000/- (Twelve Lac Fifty Thousand only), from Sh. Shiv Prasad Ghosh S/o Sh. S.C. Ghosh, resident of E-63, Nanakpura Moti Bagh-II, New Delhi- 110021, towards an advance payment for the sale of property Front Side Pvt. Flat No.201, on 2nd Floor, area measuring 100 Sq. Yds., built on property bearing no. H3/115, situated at Bengali Colony, Mahavir Enclave, New Delhi-110045, as per the terms and conditions of the agreement dated............
Witness:
1. Sd/-
(SHRISH MISHRA) H-3/94, Bengali Colony Mahavir Encl. N.D 45
2. __________ Sd/-
Executant Mrs. Babita Rajoria W/o Sh. Mahavir Arya R/o C-124 Gali no.6, Dabri Palam Road CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 14 of 20 New Delhi-110045.
(ii) While relevant portion of ATS dated 28.05.2012 is also reproduced herein:
" Now this Agreement to sell is witnessed as under:
1. That the total sale consideration of the Flat No. 201 has been settled between the parties is as Rs. 44,00,000/- (Rupees Forty Four Lacs only).
2. That the seller has received a sum of Rs. 50,000/- (Fifty Thousand only) in cash, from the buyer towards advance/earnest money vide a separate receipt dated 13/5/2012 (signed by Mr. Mahavir Arya (husband of Smt. Babita Rajoria on behalf of the Smt. Babita Rajoria, the seller) and remaining payment/s to be made by the Buyer to the seller is as under:
a) First part payment of Rs. 12,00,000/- shall be made on or before 27th of May 2012.
b) Second part payment of Rs. _________ shall be made on or before________.
c) Third part payment of Rs._______shall be made on or before________.
Final payment of Rs. __________shall be made on or before 120 days from the date of this agreement.'
(i) This court carefully gone through entire material placed on record and is of considered opinion that, above receipt dated 28.05.2012 can't be taken as additional payment of Rs. 12,50,000/- for followings reasons:
Firstly, said receipt executed by defendant No. 2 as advance payment not the part payment;
Secondly, receipt dated 28.05.2012 was executed on the day of agreement to sell and has its reference;
Thirdly, terms of Agreement to sell dated 28.05.2012 are itself left blank. Hence, vague and unclear.
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 15 of 20
(ii) Thus, it is established that, Receipt dated 28.05.2012 was in confirmation of earlier cash receipts dated 13.05.2012 and 27.05.2012 as such no additional payment was made.
A. Privity of Contract wr.t. Flat No 2:
(i) It is the case of plaintiff that, after receiving the above said
amount of Rs. 37,00,000/- in the month of July 2012, the defendants informed the plaintiff about the completion of construction work of the Flat No. 1, pursuant to which plaintiff visited the Flat No. 201 and noticed several violations along with seepage on the walls/roof, cracks on the floor poor quality material used in the construction of the Flat No. 201 and discrepancy in the size of the "Flat no. 1" upon which plaintiff asked for refund but, defendants not only proposed for reduction of sale consideration for flat No. 1 from Rs. 44,00,000/- to Rs.
13,50,000/- but, also offered plaintiff to purchase Flat no. 2 at 42,48,000/-. But, this court does not find any merit in the contention of plaintiff. One side, each and every transaction for Flat no. 1 was reduced in writing other side, No document/material, letter, message placed on record for purported proposal given by defendant or acceptance by plaintiff for Flat no. 2. In fact, perusal of above tabular representation clearly reveals that, even after making considerable payment, plaintiff took loan for Flat No. 1 and made payment for Rs. 28,50,000/- qua Flat No. 1 only.
(ii) In para no. 13 of the plaint, it is averred that:
CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 16 of 20 "That, in view of the proposal of July 2012, the plaintiff paid balance amount of Rs. 18,98,000/- to the defendants as per following schedule:
I. On 11.8.12 A/c deposit - Rs. 5,00,000/- II. On 21.8.12 Bank loan - Rs. 10,00,000/- III. On 28.8.12 vide cheque - Rs. 3,98,000/- Total: Rs.18,98,000/-
Till 19.07.12 paid - Rs. 37,00,000/-
Total paid till 28.08.12 - Rs. 55,98,000/-"
(iii) But, said averment doesn't invite any confidence. As Bank Loan for Rs. 10,00,000/- was shown as mode of payment in Sale Deed dated 21.08.2012 executed for Flat No. 1. Further in their WS, defendant made specific pleading as follows:
"Para 8: XXXXXX The Plaintiff requested the Defendants to execute the sale deed of the amount of circle rate prevalent at that point of time to save the stamp duty. Accordingly, the sale deed was executed for 13.5 lacs, which is very natural and prevailing in the market. The copy of the said sale deed dated 22.08.2012 is being filed with the list of documents for the kind perusal of the Hon'ble Court."
But, in his replication no specific denial was made qua circle rate.
(iv) Further, in para 10, of preliminary submission of WS, defendants made following specific averment qua Flat No. 2:
"Para 10: That it is pertinent to mention herein that Flat No. H-101, Mahavir Enclave, New Delhi 110045, had been sold and a sale deed with regards to the same had been executed on the 17th of April 2013 for a Sale Price of Rs.
31,00,000/- between Shri Mahavir Arya (Defendant no. 1) and Meena Choudhury w/o Manoj Choudhury, Residence of 24G Shivalik Apartments, Plot No. 32, Sector 6, Dwarka, New Delhi 110075, and the same had been purchased CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 17 of 20 by Mahavir Arya on the 16th of March 2012 for price of Rs. 15,00,000/- from Shri Satish Sharma, s/o Shri. Som Dutt. The copy of the sale deed between Shri Mahavir Arya (Defendant no.
1) and Meena Choudhury dated 17/04/2013 and sale deed between Shri Satish Sharma and the Defendant no. 1, dated 16/03/2012 are being filed with the list of documents for the kind perusal of the Hon'ble Court."
But, same was denied by plaintiff for want of knowledge only. No, efforts were made to implead the buyer of Flat No. 2.
(v) Further, as per his own averment, there was penalty clause in Agreement to Sell dated 28.05.2012 but, plaintiff himself chosen to not invoked the same. Thus, by virtue of Doctrine of Estoppel he is precluded from asserting a claim or right qua violation, if any. In any case, in his cross examination, PW1 stated to have brought said violation into the notice of defendant in August, 2012 while in entire pleading he repeatedly averred that, defendant has given proposal in July, 2012.
(vi) Relevant cross of PW1 is reproduced herein below:
"The adjoining sample flat, which I had seen was flat bearing no. 201 in the same building. It is wrong to suggest that I had not seen any sample flat as it was not ready at that time. While entering into the agreement to purchase the property, I had stated certain conditions which were annexed with the agreement to sell Ex.PW1/1. There was a penalty clause in the Agreement to Sell Ex. PW1/1 in case of breach of any of the conditions. I tried to invoke the penalty clause mentioned in Ex.PW1/1. I had orally brought the same to the notice of defendants in the first week of August, 2012.
None of the conditions mentioned in the annexure to Ex.PW1/1 were fulfilled by the defendants. All CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 18 of 20 these things were purchased by me subsequently from the Market. I have not placed on record the bills regarding purchase of these articles/things alongwith my affidavit (However, I can produce the same as I have brought with me those bills).
At this stage, the witness is shown nineteen photographs and is asked as to whether these photographs are of his flat/property. After seeing the photographs, the witness admits that the same are of his flat/property. These photographs are collectively Ex.PW1/D2 (Volunteered:
These photographs depicts the fittings/articles which were purchased by me from the market and these photographs were taken by certain persons sent by defendants who claimed themselves as Bank Officials) (Objected to by learned counsel for the plaintiff on the ground that these photographs were not placed on record earlier). The witness is shown another photographs, who after seeing the same states that this photographs depicts the building in which his flat is Siteeted (Volunteered:- This photograph is the recent photograph of the building). The same is Ex.PW1/D3.
I have brought a bill Ex.PW1/D4 with respect to the articles purchased by me. Along with the bill there is visiting card of the shop from where I had purchased these articles. The same is Ex.PW1/D5.
It is incorrect to suggest that the articles were not purchased by me. It is incorrect to suggest that the bills which are produced by me today are forged and fabricated bills that is why I had not placed them on record earlier. It is wrong to suggest that all these articles/fittings were placed by the defendants before handing over the flat to me.
The initial consideration amount was fixed at Rs.44,00,000/- when for the first time I met defendant no.
1. The terms and conditions were also settled. The same were subsequently changed in August, 2012. The changes in the terms and conditions were not reduced into writing.
At the time of taking loan from Central Bank of India, I had already paid a sum of Rs.42,00,000/- to the defendants.
The consideration amount with respect to Flat No. 201, H-3/115, Mahavir Enclave was subsequently reduced to Rs.13.5 lacs. I had already paid Rs.13.5 lacs to CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 19 of 20 the defendants at the time of taking loan from Central Bank of India. It is correct that I had applied with the bank for Home Loan for purchase of flat no. 201, H-3/115, Mahavir Enclave."
(vii) Thus, considering the facts and circumstances of present case, this court is of the opinion that, there was no privity of contract between the parties qua Flat no. 2 i.e the suit property.
35. In view of above discussions and well settled principle of law, this court is of the opinion that, plaintiff is failed to prove his case hence, all above issues are decided against the plaintiff. CONCLUSION:
Issue no. iv: Relief
36. Plaintiff failed to prove his case. Hence, Suit stands dismissed.
37. No order as to cost.
38. Decree Sheet to be prepared accordingly. File be consigned to record room.
Announced in open court on 27.02.2024.
(SHILPI M JAIN) ADDL. DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS DJ ADJ 17115/16 Shiv Prasad Ghosh Vs. Mahavir & Anr. Pg. No. 20 of 20