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[Cites 4, Cited by 0]

Delhi District Court

Shri Harbhagwan Takkar vs Sh. Manoj Jajodia on 21 April, 2016

         IN THE COURT OF MS. NEHA, CIVIL JUDGE­09, 
        CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI

Suit No. 178/16
Case ID No. 024001C1100342008

Shri Harbhagwan Takkar
R/o 1667­A/1,
GovindPuri Extension,
Main Road, New Delhi.                                                          ......... Plaintiff.
                                              Versus
Sh. Manoj Jajodia             
S/o Late Shari Murlidhar Jajodia
R/o S­72, First Floor,
Greatet Kailash,
Part - II, New Delhi.

Also at :
Copernicus India,
E­74, Sector­ 63,
Noida, U.P.

Also at :
A.T. Road
Bharalumukh
Guwahati - 7810.                                                      ...... Defendant.


                   SUIT FOR RECOVERY OF Rs. 2,32,755/­.
Date of Institution                                                   : 21.08.2008
Date of reserving Judgment                                            : 29.03.2016
Date of pronouncement                                                 : 21.04.2016



Suit No. 178/16                  Harbhagwan Takkar Vs. Manoj  Jajodia               Page 1 of 22    
 JUDGMENT

1. Vide this Judgment, I shall dispose of the suit of the plaintiff seeking decree for recovery of an amount of Rs. 2,32,755/­ along with pendente lite and future interest @ 24% per annum on the aforesaid amount.

2. Brief facts as stated in the plaint are as follows: ­ 2.1. The plaintiff is a Real Estate Agent and is engaged in the business of providing services for sale, purchase and renting of property. The plaintiff earns his livelihood from the commission that he gets in a property deal. The defendant was potential buyer and interested in buying a property in Noida. The defendant is resident of S­72, First Floor, Greater Kailash, Part II, New Delhi.

2.2. The defendant was interested in purchasing a property in Noida and he approached the plaintiff at his office at Govindpuri Extension, New Delhi. The plaintiff apprised the defendant of several properties in Noida. The defendant had shown his interest in a property at Noida, owned by Mrs. Gurdev Kaur. The plaintiff got the defendant introduced to Mrs. Gurdev Kaur, the owner of the Residential plot no. A­182, Sector­ 40, Noida, Distt. Gautam Budh Nagar, U.P. 2.3. With the assistance of plaintiff, a deal was finalized to purchase the said plot by defendant for the total sale consideration of Rs. 2,16,85,332/­ and an agreement to sell dated 31 st January, 2008 was also executed between defendant and the said owner. As per normal practice of the present market, 1% commission, on the total sale price of the plot, was to be paid to the property broker i.e. the plaintiff.

Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 2 of 22

2.4. In furtherance of aforesaid agreement to sell, a Transfer Deed cum sale deed dated 31/03/2008 in respect of the property was entered into between the defendant and Mrs. Gurdev Kaur. As per the terms of Agreement to Sell dated 31/01/2008, the defendant was required to pay the commission amount to the tune of Rs. 2,16,853/­ to the plaintiff on the execution of the Transfer Deed on 31/03/2008. But the defendant had been delaying the payment on one pretext or the other. The plaintiff made several visits to the defendant at his residence at Greater Kailash and his factory at Noida for payment but he was informed that the defendant was out of station.

2.5. The plaintiff issued a legal notice dated 28/04/2008 to the defendant through his lawyer M/s R.L Bhagat & Associates. Despite notice, the defendant has failed to release the commission. Therefore, the plaintiff has filed the present suit seeking following relief:

A decree for an amount of Rs. 2,32,755/­ along with pendente lite and future interest @ 24% per annum on the aforesaid amount.

3. Defendant has appeared through counsel and written statement was filed by the defendant. In the written statement, the defendant has raised the preliminary objections that this Court has no territorial jurisdiction to try and adjudicate upon the present suit. The suit is not maintainable and barred by Order 1 Rule 9 of the CPC for non joinder of necessary party. There is no privity of contract between the plaintiff and the defendant.

4. The defendant has stated in the written statement that he himself spotted the plot no. A­182, Sector­40, Noida, U.P. When he made Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 3 of 22 enquiries about its owners, it was found that it was owned by one Smt. Gurdev Kaur and he approached her in January 2008 for purchasing the said plot. Smt. Gurudev Kaur asked the defendant to finalize the deal or enter into any kind of transaction only with the involvement of the plaintiff as he was trusted man.

5. It is further stated that the negotiations for the sale­purchase took place between Smt. Gurudev Kaur and the defendant and the deal was finalized on the sale consideration of Rs. 2,16,85,332/­ in pursuance of which an agreement to sell dated 31/01/2008 was executed between the parties. In February 2008, the defendant came to know that fraud was played upon him in connivance with the plaintiff whereby market price of the plot had been artificially and malafidely inflated but the actual market price was about Rs. 1.45 to Rs. 1.5 crores. When this fact was informed to the defendant by his close friend, who is a practicing lawyer and deals in property matters in NCR region, he immediately contacted Smt. Gurudev Kaur to express his annoyance and willingness to walk out of the deal.

6. It is further stated that Smt. Gurudev Kaur pacified the defendant by saying that this has been done at the instance of the plaintiff. After consultation with her family, she offered to sell the said plot at current prevalent price subject to minimum offer price of Rs. 1.5 crore. Though, the said plot was worth less than that, but the defendant, for the sake of putting rest to controversies and also because his business was suffering, agreed to renegotiate the whole deal wherein Smt. Gurudev Kaur would sell the said plot to him and he would pay her Rs. 1.5 crores Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 4 of 22 excluding stamp duty and registration charges.

7. It is further stated in the WS that the plaintiff wanted to derive undue benefits out of this whole transaction by taking the cut from the margin of Rs. 2,16,85,332/­ whereas the actual price was about Rs. 1.45 to Rs. 1.5 crores thereby causing wrongful gain to Smt. Gurudev Kaur at the expense of the defendant. At the time of renegotiation, the defendant appointed his friend Mr. T.K. Dadhich, Advocate and asked the seller to deal with him on his behalf. The earlier agreement to sell dated 31/01/2008 was mutually rescinded by Smt. Gurudev Kaur and defendant in pursuance to which a fresh agreement to sell dated 14/03/2008 was executed between the parties which mentions the total sale consideration of Rs. 1.5 crores and the same was got registered in the office of Sub­Registrar, Noida in Book No. 1, Volume no. 1227, at pages nos. 385 to 506 as document no. 651 on 14/03/2008. The fresh agreement to sell does not mention about payment of any commission to the plaintiff. Hence, the plaintiff is not entitled to any relief and the suit may be dismissed.

8. The plaintiff has filed the replication to the written statement of the defendant wherein he has reiterated the averments made in the plaint while denying the allegations made against him.

9. On completion of pleadings, the following issues were framed by the then Ld. Predecessor of this Court on 19/04/2011 for consideration :

1. Whether this Court has the territorial jurisdiction to try and adjudicate upon the present suit ? OPP.
Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 5 of 22
2. Whether the present suit is not maintainable and barred by Order 1 Rule 9 of the CPC for the reason of non joinder of the necessary party as averred vide preliminary objection no. 2 of the written statement ? OPD.
3. Whether there is no privity of contract between the plaintiff and the defendant ? OPD.
4. Whether the plaintiff is entitled to recovery of money as prayed for ? OPP.
5. Whether the plaintiff is entitled for an interest on this amount ? If yes, at what rate and for what period ? OPP.
6. Relief.

10. The parties were then called upon to lead their respective evidence. The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments of the plaint. He relied upon the following documents:­ i. Copy of Agreement to sell dated 31/01/2008 as Mark A. ii. Photocopy of transfer deed cum sale deed dated 31/03/2008 as Mark B. iii. Office copy of legal notice dated 28/04/2008 and postal receipts as Ex. PW1/1 (colly) and Ex. PW1/2 (colly).

11. Sh. Devender Singh was examined as PW2. Sh. K.J.S Soni was examined as PW3. No other witness was examined on behalf of plaintiff Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 6 of 22 and PE was closed vide order dated 21/07/2014.

12. Defendant Sh. Manoj Jajodia examined himself as DW1. DW1 tendered his evidence by way of affidavit Ex. DW1/A, wherein he has reiterated the substance of the written statement. He has relied upon the copy of agreement to sell dated 14/03/2008 as Ex. DW1/1 (OSR).

13. The defendant also examined Sh. T.K. Dadhich as DW2 who tendered his evidence by way of affidavit Ex. DW2/A. DE was closed vide order dated 21/01/2016.

14. Parties were then called upon to advance their final arguments in the matter. Written arguments was also filed on behalf of parties.

15. I have heard the Ld. Counsels for the parties and have perused the case file. My issue­wise findings are as follows :­

16. ISSUE NO. 1: Whether this Court has the territorial jurisdiction to try and adjudicate upon the present suit ? OPP.

17. The onus to prove this issue was placed upon the plaintiff.

18. The defendant has contended that no cause of action has arisen in Delhi, the property is also situated in Noida and the defendant is also permanent resident of Gauwahti and therefore, this Court has no territorial jurisdiction to try the suit.

19. Ld. Counsel for the defendant has argued that the Court of Delhi has no jurisdiction to try and adjudicate upon the present suit as the suit property is situated in Noida and the defendant is also working for gain at Noida and he is permanent resident of Assam. It is also submitted that no cause of action arose in Delhi and the plaintiff has also admitted that the defendant is a resident of Guwahati, Assam.

Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 7 of 22

20. On the other hand, Ld. Counsel for the plaintiff has submitted that the summons have been received by the defendant himself at his residence of GK part II, New Delhi and he has been operating from the said address. It is submitted that this fact is also clear from the report of process server that the defendant had received the summons on the said address. It is also argued that seller Smt. Gurdev Kaur was also resident of Delhi and the contract took place in New Delhi. Therefore, the Court of Delhi has jurisdiction to try the present suit.

21. I have considered the contentions of the Ld. Counsels for the parties.

22. Defendant in his evidence by way of affidavit has stated that the local place of work is Noida and permanent resident at A.T. Road, Guhawati. However, in the evidence by way of affidavit, the defendant has not stated about his local residence, though his local place of work is Sector 2 Noida. It is noteworthy that in the memo of parties, the plaintiff has given three addresses of the defendant, one of Guhawati, second of Noida and third of GK Part II, New Delhi and the summons was issued to the defendant at all the three addresses. Summons issued to the defendant at the address of GK II have been duly served and received by him through ordinary process as well as through registered AD. This Court takes judicial notice of the fact that the summons issued to the defendant at the Delhi address have been received back duly served. The plaintiff has also stated in plaint and in his evidence by way of affidavit that he several times visited the defendant's residence at Greater Kailash and his factory at Noida to request him to expedite the payment.

Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 8 of 22

23. The fact that the plot was situated at Noida has no bearing in determining territorial jurisdiction as the plaintiff is not seeking enforcement of any right or interest in immovable property. I also get strength from the judgment of Hon'ble Delhi High Court in the matter of Mrs. Indira Rai vs Shri Bir Singh dated on 23 November, 2010. Hon'ble Court has observed as under:

" 9. The suit before this Court is not a suit for specific performance of the contract in respect of an immovable property. This is not a suit for a possession of an immovable property. This is a not suit for an injunction in respect of an immovable property. This is a suit for refund of the sale consideration, alleged to have been paid by the plaintiff to the defendant on the ground that due to non­performance of the agreement by the defendant, she had rescinded the transaction. This suit is not covered in any of the clauses of Section 16 of the Code of Civil Procedure. It was contended by the learned counsel for the defendant that the suit would be covered in clause (d). I, however, find no merit in this contention. The plaintiff is not seeking determination of any right to or interest in an immovable property. She is only claiming refund of the money, alleged to have been paid by her to the defendant. Hence, the limitation, prescribed in Section 16 of the Code of Civil Procedure does not apply and, in view of the provisions contained in Section 20(c) of the Code of Civil Procedure, this Court has jurisdiction to try the present suit. The issue is decided against the defendant and in favour of the plaintiff."

24. The plaintiff has proved on the balance of probability that the defendant's local address is GK II New Delhi. Since the defendant is residing at GK II Delhi, the Courts of Delhi has jurisdiction to try the present suit. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant.

25. Issue no. 2: Whether the present suit is not maintainable and barred by Order 1 Rule 9 of the CPC for the reason of non joinder Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 9 of 22 of the necessary party as averred vide preliminary objection no. 2 of the written statement ? OPD.

26. The onus to prove this issue was placed upon the defendant. It is contended in the written statement that seller Smt. Gurdev Kaur has not been made a party to the suit, though she is a necessary party to the suit.

27. Ld. Counsel for the defendant has argued that the plaintiff has admitted during his cross­examination that the agreement to sell was executed between defendant Manoj Jajodia and Smt. Gurdev Kaur. However, said Gurdev Kaur has not been made a party in the present suit and therefore, the present suit is not maintainable and barred under Order 1 Rule 9 CPC for reason of non joinder of necessary party.

28. Ld. Counsel for the plaintiff, on the other hand, has argued that Smt. Gurdev Kaur was the seller of the property and the defendant was the purchaser of the property. The seller has already paid her commission. It is submitted that the plaintiff has relied upon the agreement to sell dated 31/01/2008 in order to claim his commission as property dealer and in suit of recovery of commission from purchaser by property dealer, the seller is neither necessary nor a proper party to the suit.

29. I have perused the material on record and considered the submissions of the parties.

30. A necessary party is one whose presence is indispensable to the Constitution of the suit, against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed but whose presence is Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 10 of 22 necessary for a complete and final decision on the question involved in the proceeding. It is also settled that in absence of a necessary party no decree can be passed, while in absence of a proper party a decree can be passed so far as it relates to the parties before the Court.

31. The plaintiff has filed the present suit alleging that he is the real estate agent and the defendant approached him at his office of Govindpuri. The defendant had shown interest in the property of Ms. Gurudev Kaur and the plaintiff got the defendant introduced to Smt. Gurudev Kaur. It is alleged that with assistance of the plaintiff, the deal was finalized between the defendant and Smt. Gurudev Kaur and as per normal practice, both agreed to pay 1% commission of the total sale price to the plaintiff, being the property broker. However, the defendant, after the execution of the sale deed, did not pay the commission and therefore, the plaintiff filed present suit for recovery of commission.

32. The allegations made in the plaint show that the plaintiff has filed the suit for recovery of commission from the defendant for whom he had arranged the property and finalized the deal with the seller. The suit can be properly and effectively adjudicated upon even in the absence of the seller who sold the property to the defendant. The seller Smt. Gurdev Kaur is neither necessary nor a proper party to the suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.

33. Issue no. 3: Whether there is no privity of contract between the plaintiff and the defendant ? OPD.

34. The onus to prove this issue was placed upon the defendant.

Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 11 of 22

35. Ld. Counsel for the defendant has argued that there was no agreement between the plaintiff and defendant and the agreement to sell dated 31/01/2008 has been executed between Smt. Gurudev Kaur and defendant herein. Since there was no agreement with the plaintiff, there is no privity of contract between the plaintiff and defendant and the plaintiff is not entitled to any amount under the said agreement.

36. On the contrary, Ld. Counsel for the plaintiff has argued that the copy of agreement to sell, Mark A has been signed by the defendant as well as the seller which is acknowledgment of their liability to pay 1% commission to the property dealer / plaintiff herein. The plaintiff has contended that the copy of agreement has been signed by Smt. Gurudev Kaur and defendant Manoj Jajodia in order to acknowledge their liability towards the plaintiff to pay commission.

37. I have considered the contentions of Ld. Counsel for the parties and also perused the material on record.

38. During evidence, DW1 Manoj Jajodia was shown the copy of agreement to sell dated 31/01/2008 Mark A. After seeing the same, DW­ 1/the defendant has admitted his signatures on each page at point X, XA, XB and XC. The defendant has not stated that the copy of agreement to sell Mark A is not signed in original by him. It is not contended by the defendant that the signatures are forged. He has carefully seen the signatures on the document Mark A for 5­6 minutes (observed in testimony dated 10/09/2015) and thereafter admitted that Mark A bears his signatures.

39. The defendant /purchaser and seller Smt. Gurdev Kaur, both had Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 12 of 22 signed on the copy of agreement to sell dated 31/01/2008 and put their original signatures. The signatures put by the defendant and seller Smt. Gurdev Kaur on the copy of agreement to sell is an acknowledgment on their part to pay 1% commission to the plaintiff / property dealer.

40. Merely because, the agreement to sell, Mark A is not signed by the plaintiff / property dealer, it does not negate the fact that defendant had put his original signatures on the copy of agreement. The defendant has not given any explanation as to why he had put his original signatures on the copy of the agreement to sell, mark A and the document was handed over to the plaintiff.

41. In the present case, the defendant by putting his original signatures on the copy of agreement to sell has admitted his liability to pay 1% commission to the plaintiff and there is a contract between the plaintiff and the defendant to that effect that the defendant would pay the commission to the plaintiff. However, even if it is assumed for the sake of arguments that there was no privity of contract between the plaintiff and the defendant as the agreement was not signed by the plaintiff, there are certain exceptions to the rule of privity of contract. One of such exception is acknowledgment /estoppel. If a contract requires a party to pay to the third party and he acknowledges it to the third party, he will incur a binding obligation.

42. In the present case, as per agreement dated 31.01.2008, the seller and purchaser are required to make payment of commission to third party/property dealer and they also acknowledged it by signing in original on the copy of agreement and thus created a binding obligation Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 13 of 22 towards the plaintiff. The case of the plaintiff also falls under exception to the rule of privity of contract.

43. This Court is of the view that the signatures of Smt. Gurudev Kaur and defendant Manoj Jajodia on the copy of agreement to sell to pay 1% commission to the plaintiff/property broker is valid acknowledgment and the plaintiff has a right to file a suit for recovery of possession on the basis of said document, even though he is not a party to the agreement to sell. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.

44. Issue no. 4: Whether the plaintiff is entitled to recovery of money as prayed for ? OPP.

45. The onus to prove this issue was placed upon the plaintiff. It is admitted by the parties that seller Smt. Gurdev Kaur and defendant initially entered into agreement to sell dated 31/01/2008. It is also admitted that fresh agreement to sell dated 14/03/2008 was executed and registered with the Registrar, Noida and in pursuance to second agreement dated 14/03/2008, sale deed dated 31/03/2008 was executed between Smt. Gurdev Kaur and defendant Manoj Jajodia. The plaintiff has contended that the defendant had agreed to pay 1% commission of the total sale price to the plaintiff/property broker and therefore, he is liable to pay the amount claimed by the plaintiff. However, the defendant has contended that the agreement dated 14/03/2008 does not talk about payment of any commission to the plaintiff.

46. Ld. Counsel for the plaintiff has argued that the defendant is liable Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 14 of 22 to pay commission to the plaintiff under the agreement to sell dated 31.01.2008 and the execution of subsequent agreement to sell dated 14.03.2008 does not rescind the clause that the seller and buyer shall pay 1% commission to the plaintiff. It is also argued that the subsequent agreement to sell dated 14/03/2008 was executed between the parties as per circle rate of the plot which was Rs. 1.5 crores and the market rate of the property was Rs. 2.16 crores. It is submitted that the plaintiff had been present before the Sub­Registrar of Noida at the time of execution of agreement to sell dated 14/03/2008 and the deal was negotiated between the defendant and Smt. Gurudev Kaur through the plaintiff and therefore, the plaintiff is entitled to the commission claimed by him.

47. Per Contra, Ld. Counsel for the defendant has argued that the admission of the plaintiff that the sale deed dated 31/03/2008 was executed in pursuance to agreement to sell dated 14/03/2008 shows that the plaintiff is not entitled to any commission under the fresh agreement to sell. It is also submitted that the earlier agreement to sell dated 31/01/2008, upon the execution of fresh agreement, automatically stood rescinded and therefore, the claim of the plaintiff is not maintainable. It is submitted that fresh agreement dated 14/03/2008 does not aver anything about the entitlement of any commission. The plaintiff was called in the deal at the instance of Smt. Gurudev and he was a dealer on behalf of Smt. Gurudev only and he was never a property dealer of the defendant.

48. I have considered the submissions of Ld. Counsel for the parties and perused the material on record.

Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 15 of 22

49. The plaintiff has examined himself, draftsman of the agreement and witness to the sale deed to prove that the seller and purchaser/defendant had agreed to pay 1% commission to the plaintiff. PW­2 Devender Singh has stated that the dealing which occurred between Smt. Gurdev Kaur and the defendant prior to 31/01/2008 is not in his knowledge. He has admitted that his job is to draft the relevant documents between the sellers and purchaser and not to act as a property dealer / broker. He has also admitted that he only drafted the document and he was neither a party nor a witness to the document.

50. Similarly, PW­3 K.J.S Soni has stated that he does not have any idea as regards the terms and conditions of sale transactions in dispute between Smt. Gurdev Kaur and the defendant including the consideration amount fixed between the parties and the commission which was to be paid to the property dealer / agent. Perusal of the testimony of PW­2 Devender Singh and PW­3 K.J.S Soni would show that they did not have any knowledge about the transaction between the defendant and seller Smt. Gurdev Kaur or any condition of payment of commission to the plaintiff.

51. The plaintiff has stated, during cross­examination, "It is correct that Smt. Gurudev Kaur told the defendant that she would finalize the sale and purchase deed of the said plot with my involvement only." The plaintiff has further admitted that he was called in the deal at the instance of Smt. Gurudev Kaur and her son only. The plaintiff has also stated that because of renegotiation in the sale price of the said plot, a fresh agreement to sell dated 14/03/2008 was executed between the Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 16 of 22 defendant and Smt. Gurdev Kaur.

52. No doubt, the plaintiff has admitted that he was called in the deal at the instance of Smt. Gurdev Kaur and her son only. Even if it is assumed for the sake of arguments that the plaintiff was involved in the deal at the instance of seller Smt. Gurdev Kaur, however, once the deal between the seller and the defendant has been finalized with the involvement of plaintiff / property dealer, the defendant cannot take the plea that he is not liable to pay any commission to the plaintiff / property dealer.

53. Ld. Counsel for the defendant has also argued that PW2 Devender Singh has also admitted that the registered agreement to sell dated 14/03/2008 shall prevail over the agreement to sell dated 31/01/2008 and the plaintiff is not entitled to any commission under agreement to sell dated 14/03/2008.

54. I have considered the submissions and gone through the sworn testimony of the witness.

55. The plaintiff and PW­2, both have stated that the agreement to sell dated 14/03/2008 was converted into sale deed on 31/03/2008 and registered agreement to sell dated 14/03/2008 shall prevail over the agreement dated 31/01/2008. However, the execution of fresh agreement dated 14/03/2008 was in respect of terms of sale transaction between the seller and purchaser. Execution of second agreement dated 14/03/2008 can not revoke the liability acknowledged by the seller and defendant to pay commission to the property dealer / plaintiff.

56. Ld. Counsel for the defendant has argued that the plaintiff was not Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 17 of 22 present either at the time of execution of agreement to sell dated 14/03/2008 or at the time of execution of sale deed dated 31/03/2008 which shows that the plaintiff had not played any role in the sale transaction between the defendant and Smt. Gurdev Kaur.

57. I have considered the contentions raised by the Ld. Counsel. No document has been placed on record by the plaintiff to show that he was present at the time of execution of agreement to sell dated 14/03/2008 or sale deed dated 31/03/2008. The plaintiff has orally stated that the agreement to sell or the sale deed does not normally bear the name of the commission agent. However, even if it is presumed for the sake of arguments that the plaintiff was not present at the time of execution of agreement to sell dated 14/03/2008 and sale deed dated 31/03/2008, it does not show that the deal was not negotiated with the efforts of plaintiff.

58. Ld. Counsel for the defendant has also argued that the plaintiff has stated that the defendant has approached him through Mr. O.P. Goel but the plaintiff failed to examine Mr. O.P. Goel to substantiate his plea.

59. I have considered the contentions raised by Ld. Counsel. The plaintiff has stated that the defendant has approached him through O.P. Goyal. However, mere non­examination of Sh. O.P. Goyal does not make the testimony of plaintiff unreliable.

60. The defendant has examined himself and his friend T.K. Dadhich to prove that he is not liable to pay any money to the plaintiff.

61. DW2 T.K. Dadhich has deposed that Smt. Gurdev Kaur and the defendant had renegotiated the whole deal wherein Smt. Gurdev Kaur Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 18 of 22 agreed to sell the plot for a sum of Rs. 1.50 crores. During cross­ examination, DW2 had stated that defendant represented him that he had finalized the deal at much higher price than he suggested. The testimony of DW2 T.K Dadhich shows that he had no knowledge of execution of agreement to sell dated 31/01/2008 between Smt. Gurudev Kaur and the defendant or about transaction between the plaintiff and defendant.

62. Now, coming to testimony of DW­1 Manoj Jajodia, DW­1 has stated that the agreement to sell dated 31/01/2008 is unregistered. The erstwhile owner Smt. Gurdev and the defendant entered into a fresh agreement to sell dated 14/03/2008 which was registered in the office of Sub­Registrar, Noida. In January 2008, the deal was initially finalized on the sale consideration of Rs. 2,16,85,332/­ payable by the defendant to Smt. Gurdev Kaur.

63. The DW1 has stated that the registered agreement to sell dated 14/03/2008 does not aver about any kind of commission / money payable to the plaintiff and the negotiation and renegotiation for the sale purchase of the plot took place between Smt. Gurdev Kaur and the defendant. It was made clear that this was direct deal between the parties and there would not be any involvement of any kind of property broker / dealer / agent.

64. The defendant has admitted about execution of first agreement to sell dated 31/01/2008 between himself and Smt. Gurdev Kaur for a sale consideration of Rs. 2,16,85,332/­. Clause 11 of the agreement to sell dated 31/01/2008 reads:

"Both the parties seller and the purchaser shall pay 1% commission Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 19 of 22 charges separately to Mr. Harbhagwan Takkar, on the total sale price of the said plot as and when the payments are made i.e. at the time of advance payments, or the defaulter party shall pay 2% commission to the said property dealers without any hesitation and delay."

65. This Court is of the opinion that once the seller Smt. Gurdev Kaur and defendant Manoj Jajodia had agreed to pay 1% commission of the total sale price to the plaintiff, the defendant or the seller could not have rescinded the right created in favour of the plaintiff by executing another document / subsequent agreement to sell dated 14/03/2008. The role of property dealer is to bring seller and buyer together. Once the seller and buyer are brought to one table for negotiation with the efforts of property dealer and the deal is also finalized, the property dealer is entitled to his commission. Parties can not avoid payment of commission to the agent by renegotiating the terms of deal/agreement between themselves. Once the parties .i.e. seller and buyer had agreed to pay commission to the property dealer with whose involvement, the deal was finalized, the parties .i.e seller and buyer can not avoid payment of commission to property agent on the ground that the terms of sale and purchase have been renegotiated by subsequent agreement. If such circumstances are considered as valid for not paying commission to a real estate agent, no agent would be able to earn even a single penny even after providing best of his services.

66. Therefore, in the case in hand also, even though the plaintiff was involved in the deal at the instance of seller Gurdev Kaur, however the deal was finalized through the plaintiff and parties agreed to pay 1% commission of total sale price to the plaintiff. Entering into second Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 20 of 22 agreement to sell in respect of sale and purchase can not take away the right of plaintiff to claim his commission. Once right and benefit has been created under the first agreement, the right can be exercised or waived by the person holding the right and not by any other person. In the present case, right has not been waived by the plaintiff and he had taken the original signature of the seller and buyer on the copy of agreement to sell as part of their acknowledgment to pay commission. The defendant by executing document .i.e. agreement to sell Mark A has admitted his liability to pay 1% commission to the plaintiff. There is nothing on record to show that the price of the property was inflated by the seller on instructions of the plaintiff. Mere allegation to this effect is not sufficient. Therefore, this Court is of the opinion that plaintiff is entitled to 1% commission of total sale price from the defendant. In the case, the total sale price for the plot was Rs. 1,50,00,000/­ . Therefore, the plaintiff is entitled to recovery of Rs. 1,50,000/­ towards commission. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.

67. Issue no. 5: Whether the plaintiff is entitled for an interest on this amount ? If yes, at what rate and for what period ? OPP.

68. The onus to prove this issue was placed upon the plaintiff.

69. The plaintiff in this case has claimed interest @ 24% per annum. The agreement to sell Mark A does not talk of any interest being payable in case of any delay in payment of commission by the seller or the purchaser. There being no agreed rate of interest between the parties, the plaintiff is entitled to reasonable rate of interest from the date of demand Suit No. 178/16 Harbhagwan Takkar Vs. Manoj Jajodia Page 21 of 22 till the payment is received. Therefore, this Court is of the opinion that the plaintiff is entitled to the interest @ 6% per annum from the date of legal notice i.e. 28/04/2008 till the realization of payment.

70. Relief.

71. In view of my findings on issue no. 4 and 5, the suit of the plaintiff is decreed for a sum of Rs. 1.50 lacs with interest @ 6% per annum from the date of legal notice i.e. 28/04/2008 till the realization of the amount. The plaintiff is held entitled to the costs of the suit. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance. 

Pronounced in the open court                                                 (NEHA)
on 21st April, 2016                                                Civil Judge­09, Central
                                                                  Tis Hazari Courts, Delhi




Suit No. 178/16                  Harbhagwan Takkar Vs. Manoj  Jajodia               Page 22 of 22