Delhi District Court
Suresh Kumar vs Swami Rameshwar Ananda Giri Purna on 12 September, 2022
IN THE COURT OF GAURAV RAO, ADJ-03 / NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 58655/16 ( Old No. 478/16)
CNR No. DLND01-004540-2016
Suresh Kumar
s/o Late Sh. K.L. Makihja
R/o D-5/6 Vasant Vihar,
New Delhi - 110057.
........Plaintiff
Vs.
Swami Rameshwar Ananda Giri Purna
1, Rajdoot Marg, First Floor,
Chanakyapuri,
New Delhi
Also at :
EG-1/48, Garden Estate
Gurgaon, Haryana
Also at :
17, Clarges Street,
Mayfair, London,
WIJ8AE, United Kingdom
..........Defendant
Date of institution : 10.06.2016
Date on which reserved for judgment : 03.09.2022
Date of decision : 12.09.2022
Decision : Dismissed
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 1/33
JUDGMENT
1. The present suit for recovery of Rs. 46,50,000/- has been filed by the plaintiff against the defendant.
Plaint
2. It is the case of the plaintiff that he is engaged in the business of real estate development and has been providing broker services on commission basis.
2.1 It is the plaintiff's case that he and defendant were known to each other and sometime in the year 2011 defendant approached him, representing that he desires to buy a house either in Vasant Vihar or Chanakyapuri and requested the plaintiff to provide him his services for the same.
2.2 It is further the plaintiff's case that he accepted the request of the defendant and also informed him that he works on commission basis @ 2% both from the seller and the buyer of the transacted amount as the same is the market practice and trend for such high end sensitive deals. It is his case that defendant agreed to the same and agreed to pay brokerage/commission @ 2% of the transacted amount after the purchase of the property to the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 2/33 plaintiff.
2.3 It is further the plaintiff's case that thereafter plaintiff started searching the houses for the defendant and since 2011 showed him different houses at Vasant Vihar, Anand Niketan, Malcha Marg and other posh areas of Delhi but the deals could not be finalized.
2.4 It is further the plaintiff's case that finally with lot of deliberations, sincere hard work and with the help of another broker the plaintiff identified the first floor of House no. 1, Rajdoot Marg, Chanakyapuri, New Delhi (hereinafter referred to as the said property) and deal was struck between the defendant and Sh. Arun Bhatia, the seller/owner of the said property with the help/service of the plaintiff. It is further his case that at the instance of the plaintiff, the seller of the said property agreed to sell the said property, to the defendant, at a reasonable price as compared to the prevailing market price and the plaintiff also persuaded Sh. Arun Bhatia to give the defendant a land share of 25% in place of 22% as a special case.
2.5 It is further the plaintiff's case that said property was purchased by the defendant for an amount of Rs. 18,75,00,000/- and a sale deed was duly executed on 21.05.2015 in favour of the defendant which was duly registered with the Sub-Registrar VII, New Delhi. It is further the plaintiff's case that plaintiff had even signed as a witness on the said sale deed as he CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 3/33 was actively involved in the deal. It is further the plaintiff's case that he had been repeatedly reminding the defendant even before this deal was finalized that the brokerage/commission payable by the defendant would be 2% of the sale consideration and the defendant had accepted to pay the same. (4).
2.6 It is further the plaintiff's case that Dr. Linda S. Spedding was also corresponding with the plaintiff on behalf of the defendant in respect to the abovesaid deal of the said property and there were several correspondences through emails between the plaintiff, defendant, Dr Linda. S. Spedding, Sh. Arun Bhatia, Sh. Dheeraj Bhatia and Sh. Naresh Gupta, advocate in regard to the completion of the said deal.
2.7 It is further the plaintiff's case that as agreed he demanded his commission @ 2% on Rs. 18,75,00,000/- amounting to Rs. 37,50,000/- from the defendant on 21.05.2015 which stood due to the plaintiff after the registration of the sale deed but the defendant failed to pay the said amount to the plaintiff and requested for some time.
2.8 It is further the plaintiff's case that on 25.05.2015 he again raised a commission bill/invoice along with a request letter which was handed over to the defendant personally by the plaintiff, however, the defendant again expressed his inability to pay the said amount on the pretext that he had taken a loan from the bank to buy the said property and promised the plaintiff that he would pay the said amount in near future i.e. on his next CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 4/33 visit to Delhi after selling his some other property which he intended to sell.
2.9 It is further the plaintiff's case that he also demanded his commission @ 2% amounting to Rs. 37,50,000/- from the Sh. Arun Bhatia, the seller at that time and he paid the said commission to him vide cheques bearing no. 800571 and 800572 both dated 29.05.2015 for Rs. 18,75,000/- each.
2.10 It is further the plaintiff's case that he repeatedly demanded the commission amount payable to him, by the defendant, but the defendant failed to pay any heed and thereafter the plaintiff got issued a legal notice dated 01.03.2016 to the defendant who sent a false reply dated 11.03.2016.
2.11 It is further the plaintiff's case that cause of action to file the present suit arose within the territorial jurisdiction of this court and this court has pecuniary jurisdiction to entertain the present suit. Hence the present suit.
Written Statement
3. Defendant denied the contents of the plaint and took a preliminary objection that the present suit is false & frivolous and has been filed by the plaintiff to cause unlawful gain to himself and unlawful loss to the defendant knowingly fully well that he is not entitled to recovery of the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 5/33 suit amount from the defendant and that the suit deserves dismissal with cost.
3.1 On merits it was further pleaded that the defendant never had any privity of contract with the plaintiff with regard to the payment of any amount towards brokerage/commission. It was pleaded that defendant never engaged the plaintiff as his broker nor ever agreed to pay any brokerage/commission to him and neither any such demand was raised till the date of execution & registration of sale deed of the property concerned.
3.2 It was pleaded that plaintiff was approaching the defendant from time to time with various proposals while acting for and on behalf of the builders/sellers from whom he was to get the brokerage/commission and even in the present transaction admittedly the plaintiff got the brokerage/commission from the owner/seller.
3.3 It was pleaded that pursuant to email dated 18.05.2015, sent on behalf of the defendant to the plaintiff, there was no response or reply on part of the plaintiff claiming entitlement to the brokerage in respect of the transaction in question. It was further pleaded that plaintiff did not respond to this email and had there been any contract between the parties with regard to the payment of brokerage, the plaintiff would have replied to the said email claiming his entitlement to brokerage which he did not do and rightly so because no brokerage was payable to the plaintiff.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 6/33 3.4 It was pleaded that from letter dated 25.05.2015, allegedly written by the plaintiff to the defendant, it is apparent that there was no contract/agreement between the plaintiff and the defendant with regard to the payment of brokerage, on the sale transaction of the property and that it was only an expectation of the plaintiff to get some amount from the defendant, which expectation the plaintiff got out of dishonesty after completion of the sale and purchase transaction. It was further pleaded that this letter also suggests that the defendant never agreed to pay the brokerage charges to the plaintiff @ 2% of the sale consideration or at any other rate.
3.5 It was pleaded that plaintiff, after completion of transaction, turned dishonest and forged letter dated 25.05.2015 and invoice for Rs. 37,50,000/- allegedly sent to the defendant however defendant never received the said letter or the invoice and in fact there was no occasion for the plaintiff either to write such letter or to raise any invoice. It was further pleaded that this letter and invoice were forged and fabricated to claim the amount from the defendant to which the plaintiff is not otherwise entitled to.
3.6 It was pleaded that all the communications between the plaintiff and defendant were through emails except the alleged letter dated 25.05.2015 and the alleged invoice which are fabricated documents as the plaintiff was not in a position to fabricate anti-dated email. It was further CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 7/33 pleaded that till the date of completion of transaction there were lot of communications on email and none of such communications anywhere suggests that any brokerage was agreed to be paid by the defendant to the plaintiff nor the plaintiff raised any claim or demand in any of the emails.
3.7 It was pleaded that bare perusal of letter dated 25.05.2015 shows that plaintiff himself had mentioned that he was dealing in sale & purchase of shares, is the member of National Stock Exchange of India Ltd and this itself falsifies the claim of the plaintiff that he was engaged in the business of real estate development or has been providing broker service on commission basis.
3.8 It was denied that the defendant had approached the plaintiff in the year 2011 or expressed desire to buy a house or that the plaintiff informed the defendant that he works on commission basis @ 2% from both sides or that the defendant had agreed to pay the commission at the said rate.
3.9 It was denied that the plaintiff had been searching house for the defendant and it was pleaded that the plaintiff was representing the builders/sellers and approached the defendant on behalf of those builders/sellers with various proposals which did not suit the defendant's requirement.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 8/33 3.10 It was pleaded that proposal of the said property was also given by the plaintiff to the defendant on behalf of the seller and the plaintiff was to get the commission/brokerage from the seller which he ultimately got. It was pleaded that most of the times there was direct interaction between the defendant and the seller of the property, in person, as well as through emails and almost all the work with regard to the said transaction was done by the advocate of the defendant namely Sh. Naresh Gupta and plaintiff hardly rendered any services to the defendant with regard to the purchase of the said property. It was further pleaded that whenever the plaintiff contacted the defendant it was done for and on behalf of the seller and same being part of his obligations towards the seller, entitled him to the brokerage from the seller.
3.11 It was denied that the seller had agreed to sell the property to the defendant, at a reasonable rate, at the instance of the plaintiff and it was pleaded that the property was purchased at the then prevailing market price and the defendant was also entitled to 25% of the land share, though it was immaterial in as much as it was only the floor built up area which was a relevant factor for the purpose of use and enjoyment of the said property. It was pleaded that plaintiff signed the sale deed as a witness being the broker of the seller, as a representative of the seller and in no way same suggests that the plaintiff was the broker of the defendant.
3.12 It was denied that the plaintiff had repeatedly reminded the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 9/33 defendant, before finalization of the deal, about his brokerage or that the defendant had agreed to pay the same and thus there was no occasion for the plaintiff to demand any commission or the amount in question.
3.13 It was prayed that the suit be dismissed as being without any cause of action.
Replication
4. In the replication, the plaintiff denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
Admission/denial
5. Affidavit of admission/denial was not filed by the plaintiff but the same was filed by the defendant on 28.01.2017.
Issues
6. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 11.01.2017-
1. Whether there is no privity of contract between the parties? OPD CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 10/33
2. Whether the suit has been filed by the plaintiff on the basis of forged documents specifically the letter dated 25.05.2015 and invoices for Rs. 37,50,000/-? OPP (in fact should be OPD)
3. Whether plaintiff is entitled to recovery of Rs. 46,50,000/- alongwith interest @ 24% per annum as brokerage of the real estate deal? OPP.
4. Relief.
Plaintiff's evidence
7. To prove its case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
A. Certified copy of sale deed dated 21.05.2015 as Ex. PW1/1. B. Emails exchanged between the parties as Ex. PW1/2 (colly).
C. Commission bill/invoice dated 25.05.2015 along with request letter as Ex. PW1/3 (colly). D. Legal notice dated 01.03.2016 as Ex. PW1/4. 7.1 Plaintiff also examined Sh. Manu S. Kumar as PW2 who
tendered his evidence by way of affidavit Ex. PW2/A and he relied upon emails exchanged between the parties as Ex. PW1/2 (colly) and certificate dated 07.06.016 u/s 65-B of the Indian Evidence Act as Ex. PW2/1.
7.2 Plaintiff also examined Sh. Arun Bhatia as PW3 in support of his CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 11/33 case.
Defendant's evidence
8. Defendant examined himself as DW1 and he tendered his evidence by way of affidavit Ex. DW1/A and relied upon reply dated 11.03.2016 to the legal notice as Ex. DW1/1.
8.1 Defendant also examined Dr. Linda S. Spedding as DW2 who tendered her evidence by way of affidavit Ex. DW2/A. 8.2 Defendant also examined as Sh. Naresh Gupta, advocate as DW3 in his defence.
Findings
9. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar and have carefully gone through the record. All the issues being interconnected my finding is as under:
Issue no. 2: Whether the suit has been filed by the plaintiff on the basis of forged documents specifically the letter dated 25.05.2015 and invoices for Rs. 37,50,000/-? OPP (in fact should be OPD) Issue no. 3 : Whether plaintiff is entitled to recovery of Rs. 46,50,000/-
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 12/33 alongwith interest @ 24% per annum as brokerage of the real estate deal? OPP.
Issue no. 1 : Whether there is no privity of contract between the parties?
OPD 9.1 In nutshell the case of the plaintiff is that he had rendered his services as a broker, commission agent to the defendant towards purchase of property i.e. first floor of House no. 1, Rajdoot Marg, Chanakyapuri, New Delhi (referred to as the said property) and though the defendant had agreed to pay the commission at the agreed rate of 2% of the sale amount/transaction, however, he failed to pay the same despite repeated requests/demands.
9.2 However, after going through the entire material available on record, evidence led by the parties and giving due consideration to the rival contentions raised at bar, I am of the considered opinion that the plaintiff has miserably failed to prove that there was any such agreement or that he was entitled to commission at the said rate from the defendant.
9.3 Admittedly no written agreement, understanding or undertaking was executed between the plaintiff and the defendant as regards payment of brokerage charges much least at the rate of 2% of the sale consideration/amount. Similarly there is no written agreement, understanding between the parties whereby the defendant had requested the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 13/33 plaintiff to provide his services as a broker and the plaintiff had agreed to the said request of the defendant.
9.4 It is the plaintiff's case that he had orally conveyed to the defendant that he charges 2% commission of the sale consideration and that the defendant had agreed to pay the same. However, the plaintiff miserably failed to prove that there was any such oral agreement between the parties.
9.5 It was the plaintiff's case that, being known to each other, the defendant in the year 2011 had requested the plaintiff that he needed to buy a house at Vasant Vihar or Chanakya Puri and to provide his services to him in this regard and that it was at that time that the plaintiff informed the defendant that he works on commission basis @ 2% of the transacted amount, from the seller as well as the buyer and that the defendant agreed to pay the brokerage/commission at the said rate. According to the plaintiff he started searching houses for the defendant and showed various houses to him at Vasant Vihar, Anand Niketan, Malcha Marg and other posh areas of Delhi including those belonging to few reputed builders, however, despite series of meetings the deals could not be materialized. According to the plaintiff after lot of deliberations & hard work and with the help of another broker plaintiff identified the first floor of the property in question and deal was struck between the seller Sh. Arun Bhatia and defendant for Rs. 18,75,00,000/- and the sale deed was executed in the favour of defendant on 21.05.2015 in this regard.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 14/33 9.6 To establish his case that he was working as a broker for the defendant and searching properties for him at his request, the plaintiff relied upon numerous emails which are on record as Ex. PW1/2 (colly). I have considered these emails carefully particularly email dated 14.12.2009, 06.01.2014 and 04.07.2014. These emails at best prove that the plaintiff was in touch with the defendant and that he was giving proposals to the defendant in respect of the various properties. But they do not prove anything more. Plaintiff admittedly was in the business of a broker/commission agent but then none of these emails prove that he was the broker/commission agent for the defendant. These emails merely prove that he was giving proposals of various properties of various sellers/owners and builders to the defendant and nothing more.
9.7 None of these emails prove that the defendant had requested the plaintiff to find a property for him much least that defendant had agreed to pay him any brokerage/commission @ 2% as agreed. In fact according to the plaintiff, the defendant had approached him in the year 2011 seeking his services to find a property for him whereas emails Ex. PW1/2 (colly) particularly email dated 14.12.2009 proves that plaintiff was sending proposals in respect of properties to the defendant since 2009. Plaintiff has not filed a single email of the year 2011 and no particular date, month or year has been mentioned in the pleadings either as regards the date when he was approached by the defendant for availing his services as claimed.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 15/33 9.8 The emails Ex. PW1/2 (colly) (dated 06.02.2014 & 04.07.2014) further reveal that the plaintiff again contacted the defendant requesting him to visit a property at Vasant Vihar and also to consider the proposed sale deed of a property of one particular builder. Again there is nothing to suggest that it was the defendant who had requested the plaintiff to find a property for him or had sought his services leave apart agreed to pay him commission/ brokerage @ 2% of the transacted amount for those services.
9.9 It is the admitted position of the parties that the defendant had purchased the first floor of the property belonging to Arun Bhatia i.e. the said property and the emails as well as evidence led by the parties also proves that the plaintiff had a role to play in these transactions but the said role was as the commission/brokerage agent of the defendant could not be even remotely proved by the plaintiff. It also stands proved on record that the plaintiff had received Rs. 37,50,000/- as his commission from seller Arun Bhatia and it appears from emails Ex. PW1/2 (colly) that he was acting as commission agent/broker for Arun Bhatia and he was not so acting on behalf of the defendant. Email dated 24.04.2015 admittedly written by the plaintiff to the defendant is reproduced in this regard:-
"April 24, 2015 Dear Shri Swami ji, Mr. Arun Bhatia, owner of the property has gone through the draft of Sale CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 16/33 Deed forwarded to him and in principle the same is acceptable to him except some minor changes.
I am really very happy that Mr. Arun Bhatia has accepted to give you 25% undivided, indivisible and impartible ownership rights in the total plot area measuring 517.5 sq. yds. Although Mr. Naresh Gupta, Advocate had mentioned your share in land as 22.5% as per rules but I had requested Mr. Naresh Gupta to mention your share as 25% and not 22.5%. The cost of land of this additional 2.5% share amounts to Rupees Two Crore and Twenty Lakhs. This is just for your kind information please. Mr. Arun Bhatia has made a humble request to you that he would really appreciate and will be grateful to you if Sale Deed can be executed before 15th May 2015. In case you cannot plan your visit before 15th May in that case Mr. Bhatia has requested for your kind cooperation to give your convenient date latest by 20th May 2015. Request plan your visit and let me know the convenient date to enable me to inform Mr. Bhatia accordingly"
9.10 The above email goes a long way to prove that the plaintiff was acting as commission/ brokerage agent for seller Arun Bhatia and he was accordingly paid his commission by seller/Sh. Arun Bhatia. Merely because the plaintiff was having correspondences with the defendant through emails or otherwise and just because he was present in the meetings between the seller and the defendant that by itself does not prove that he was working as a commission/ brokerage agent for the defendant or that the defendant had agreed to pay him brokerage @ 2% of the transacted amount.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 17/33 9.11 Though Ld. Counsel for the plaintiff relying upon the above email dated 24.04.2015 argued that the plaintiff was working as a broker/agent for the defendant and was making all efforts to secure the defendant's interest, however, I find no merits in his arguments or the reliance placed upon the said email. It stands proved on record that the seller/PW3 was also in contact with the defendant for negotiations of the covered area and other details like parking etc. and that the covered area was increased by the seller on the insistence of the defendant/DW1 and not at the instance of the plaintiff. The email dated 29.04.2015 in this regard is reproduced hereunder:-
"April 29, 2015 Dear Swami ji, Happily, everything is sorted out except for two points pertaining to shares and parking space.
It is very true I had verbally agreed to 25% as your share. This was an approximation. Detail calculation by our expert on the basis of covered area with a lesser weight for the stilt shows the share as 22%. I can send the calculation. (The calculation sent by me in the draft deed is different). However, I am very keen for the deal to come through and to have you as a partner in the property. The family reached this decision from the day we met you. Four hours flew past in our very first meeting. I do not wish to stretch the point regarding shares. I am ready to give you a share of 25% and close the issue.
Regarding the parking space I was verbally informed that 10 meters was to CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 18/33 be sold. But the sale deed states 15 and then 12.5 meters. I would like to submit that giving more space would affect the aesthetics of the glass enclosure and also obstruct the passage from the ground floor parking area to the lift. These factors would impact on the value of the other flats. Basing the area upon two "limos" would amount to selling three normal parking areas. I can only increase the area up to a maximum of 11 meters which I trust will suffice.
I hope you will appreciate my difficulty and not let this affect the transaction.
My warmest regards to Linda and Ajain (sp!). Always a great pleasure meeting good people.
Yours truly, Arun Bhatia"
9.12. When the seller Sh. Arun Bhatia (PW-3) was confronted with the said email he replied as under:-
"(Confronted with the document at page no. 154 of the plaintiff documents annexed with the plaint now marked as "Mark Y" for identification) Q56 Is this email, which is Mark Y is written by you?
A. It might be." 9.13 I have also considered email dated 18.05.2015 written by Ms.
Linda Spedding (DW2) to the plaintiff, which was heavily relied upon by Ld. Counsel for the plaintiff. This email also nowhere proves that the plaintiff was acting as the commission/brokerage agent of/for the defendant. This email at best proves that Ms. Linda Spedding was communicating with CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 19/33 the plaintiff on behalf of the defendant and requesting him for certain details/ clarification as regards stamp duty with respect to the sale deed. The plaintiff was the commission agent/broker of the seller and in this capacity, he was contacted by Ms. Linda Spedding and nothing more. Same is with respect to email dated 19.05.2015, on which much emphasis was laid by Ld. Counsel for the plaintiff to prove that the plaintiff was acting as a broker/commission agent for the defendant. Both these emails are reproduced hereunder:-
"May 18, 2015 Dear Suresh Could you please ask the advocate to send direct the final draft agreement and the final figures, the process steps for completion of this transaction and report so that we have this in writing to be clear. Please clarify the Stamp duty and other payments with percentages to avoid confusion as the document refers to 6% and you mentioned 1% on top and separately. Please explain all of this in writing as well as the other 1% deduction from the purchase price that has to be remitted within 30 days. Thank you so much Dr. Linda S Spedding International Lawyer and Advisor"
May 19, 2015 Dear Suresh and Naresh Thank you very much for your help today.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 20/33 Regarding receipts and apportionment clause 10 refers to this and clearly this should mean that they demonstrate payment to avoid any practical problems so do please ensure that this can be resolved calmly now, as well as the guarantee letter and inventory signing.
Thank you again Dr. Linda S Spedding International Lawyer and Advisor"
9.14 In fact there are numerous correspondences between the seller and Ms. Linda (DW2) which proves that direct negotiations were taking place between the seller and the defendant and that certain information/instructions provided to them by the plaintiff were not acceptable to them/defendant. These correspondences further prove that the plaintiff was acting as a broker of the seller/PW3. One such correspondence is email dated 20.05.2015. The said email is reproduced hereunder:-
"May 20, 2015 Dear Linda, Mr. Kumar has just spoken to me and made a new suggestion that at the time of signing of the sale deed I would be shown a "photocopy" of the bank draft and we'd proceed with the registration. Thereafter, keys and bank draft would be exchanged on returning to the flat after registration of the sale deed.
Normally handing over of keys, payment and signing are carried out simultaneously and prior to the registration. Maintaining this sequence we could do this tomorrow at my place, in Swamiji's new flat or the Registrar's CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 21/33 office.
Regards, Arun"
9.15 The sale deed in respect of the property was executed in the favour of the defendant on 21.05.2015. As discussed above there is not even a single written communication between the plaintiff and the defendant whereby the plaintiff had conveyed that he charges commission @ 2% of the transacted amount from the seller as well as the buyer or that the defendant had agreed to pay the same. In fact there is no demand by the plaintiff till the date of registration/execution of sale deed in the favour of the defendant. If the plaintiff was indeed acting as commission agent for the defendant and he had demanded & defendant had agreed to pay the commission @ 2% to the plaintiff, the plaintiff should have any time before the registration/execution of sale deed conveyed the same to the defendant through email or by any other mode in writing. I fail to understand that when the plaintiff was communicating with the defendant through emails since 2009, what stopped him from communicating with the defendant as regards his commission. This is more so when the transaction between the defendant and the seller Sh. Arun Bhatia had completely materialized.
9.16 Though it is the plaintiff's case that he had orally communicated the same to the defendant and that the defendant had agreed to pay the same, however, same is nothing but an afterthought and in my considered CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 22/33 opinion there was no such communication whatsoever as there was no such agreement between the plaintiff and the defendant. Plaintiff failed to provide the exact date or month when the defendant had requested him to find a good residential property for him. When he was specifically asked to point out any email wherein the defendant had requested him to search the property for him he failed to do so. The relevant portion of his cross examination in this regard read as under:
"Q. What is your business offer in 2011?
A. Since the defendant was aware about my business he requested me I
should look for a good residential property for him in posh areas like Vasant Vihar, Anand Niketan and Chanakyapuri.
Q. Which month of 2011?
A. I do not remember the exact month it must be in the beginning of
2011.
The defendant had sent me 1 or 2 emails. Vol. I had also sent the emails to the defendant.
Q. Did the defendant by way of those 1-2 emails ever asked you to show him some property?
A. I do not remember the contents of the said emails. Q. Were you in touch with the defendant through Whatsapp?
A. No.
Q. Is it correct to suggest that the defendant by way of email never
asked you to show any property?
A. As I already stated I do not know the contents of the email but I am
sure that the defendant through telephone or personal meeting, requested me to look for a residential property for his personal use in posh area.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 23/33 Q. As you have stated above that the defendant by phone or personal meeting, requested you to show him a property, when was this? A. He had been requesting me and showing his keen interest for buying a suitable property after the year 2011 as well as before that period between 2008-11 also.
Q. Is it correct that the defendant never asked you by any way other than the personal meeting and phone calls for showing him any property? A. We were not exchanging emails regularly that is why I stated he has deputed me to look for a property that how I started him showing property regularly and giving proposals.
Q. Have you filed on record, any document where the defendant has asked you to show any property?
A. No. Q. Have you filed on record any document where you have asked the defendant for your fees before registration?
A. I do not remember Vol. The Sale Deed was registered on 21.05.2015 and immediately after registration I requested the defendant to pay my brokerage and further I had personally handed over my invoice and letter on account of brokerage charges on 25.05.2015 at his residence (1 Rajdoot Marg).
Q. Have your filed any document on record, where you informed the defendant about your fee.
A. I have filed the invoice on record.
Q. No other document, you have filed on record to show that you have
informed about your fees to the defendant?
A. I have already filed the invoice on record.
Q. Did you do any written contract/agreement with the defendant for
your brokerage services?
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 24/33
A. No.
Q. It is correct that you have no contract with the defendant?
A. I had verbal understanding with the defendant and the defendant had
verbally agreed to give me 2% of the total sale consideration amount. Q. Did you take any receiving from the defendant on the bill?
A. No.
Q. Did you sent the bill by any other mode?
A. No."
9.17 Though the plaintiff tried to establish, through the testimony of
PW3 i.e. seller Sh. Arun Bhatia, that the plaintiff had demanded the brokerage charges and the defendant had agreed to pay the same in his presence, however, not only this fact was negated by DW3 Sh. Naresh Gupta but from the material on record, cross examination of PW3 it appears that Sh. Arun Bhatia was an interested witness, deposing falsely against the defendant, at the behest of the plaintiff, for the motives/reasons which became apparent during his cross examination. There was a dispute between PW3 and the defendant as well as his son and Ms. Linda subsequent to the execution of the sale deed and because of the said enmity/inimical relations he made a false statement in support of the plaintiff. The relevant portion of the cross examination of PW3, in this regard, is reproduced hereunder:-
"Q41.For what purpose did you meet the defendant?
A. The defendant abused and assaulted my employee and broke his cell phone. Q42. After noticing this incident as stated in your above answer, did you take any action against the defendant?
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 25/33 A. The victim has lodged the police complaint at Chanakyapuri Police Station.
Q43. What did you do when you last met the defendant after noticing the incident as stated above?
A. On the same day, the heated argument has been exchanged between me, the defendant, Ms. Linda and the defendant's son."
9.18 In fact, the plaintiff was Mr. Arun Bhatia's (PW-3) broker and not that of the defendant stands proved from the following statement of PW-3:-
"Q1. How do you know the plaintiff?
A. He was my broker, who sold my first floor flat at Rajdoot Marg. Q7. Is it correct that you were not introduced to the plaintiff by anyone?
A. Yes it is correct.
Q8. Is it correct that when plaintiff called you in the year 2015, you informed the plaintiff that you want to sell the first floor of your house at Chanakyapuri?
A. Yes." 9.19 The above cross examination/statements also falsifies the
plaintiff's claim that he had come to know about Mr. Arun Bhatia and that he was planning to sell the property, through his associate Mr. Harish Kumar. When plaintiff was not introduced to Mr. Arun Bhatia by anyone and he came to know that he was interested in selling the property in question from Mr. Arun Bhatia, the same negates the plaintiff's claim that he was searching property for the defendant as his broker/commission agent.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 26/33 9.20 Furthermore, the oral testimony of PW-3 was contradicted by Sh. Naresh Gupta (DW-3). Moreover though it was plaintiff's case that he had introduced Advocate Naresh Gupta (DW-3), who had drafted the sale deed, to the defendant, however he miserably failed to prove the same. He could not prove that Naresh Gupta was known to him independently of the defendant or that he was known to him much before the transaction in question or that but for his introduction, Naresh Gupta and defendant would have never met. In fact neither did he ever pay any charges to Naresh Gupta nor did he ever inform him that the defendant did not pay him his dues/charges as a broker. The relevant portion of cross examination of the plaintiff (PW1) in this regard is reproduced as here under:
"Q. Witness is confronted with the document at page no. 25 of the plaint as the same is part of Exhibit PW-1/3 (colly) at portion mark from "A" to "A", who is the advocate mentioned in the said portion?
A. Mr. Naresh Gupta.
Q. What was the fee for the legal opinion for the clearance of the title
of the property as referred to in mark portion "A" to "A"
A. The same was decided by the defendant and Mr. Naresh Gupta. Q. When did you first introduce Mr. Naresh Gupta to the defendant? A. I introduce Mr. Naresh Gupta to the defendant after the sale deed was drafted.
Q. Did you ever tell Mr. Naresh Gupta that the defendant did not pay your dues?
A. No.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 27/33
Q. Did you pay the charges of Mr. Naresh Gupta mentioned in marked
portion "A" to "A"?
A. No, the same has to be paid by the defendant."
9.21 According to Sh. Naresh Gupta he was never engaged by the
plaintiff and it was the defendant who had engaged him for carrying out the title verification, drafting of sale deed etc. During his cross examination, he categorically denied that it was plaintiff who had engaged his services on behalf of the defendant. The relevant portion of his testimony is reproduced here under:-
"I know the defendant since 2015. The defendant engaged my services for acquiring the property under reference i.e. 1, Rajdoot Marg, New Delhi. I carried out title verification, due diligence and drafting of deed and also assisting the defendant in registration work. Defendant engaged my services. I did not charge any thing from the defendant as I did charity for the defendant..............I was involved for settling the terms and conditions of the sale deed of the property in question. There were discussions with regard to the terms and conditions between the buyer and seller in my presence and in the presence of the plaintiff."
9.22 As far as payment of brokerage charges is concerned, DW3 categorically deposed that no brokerage charges were discussed between the plaintiff and the defendant in his presence. The relevant portion of his deposition is reproduced hereunder:-
"Nothing of brokerage charges was discussed between the plaintiff and the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 28/33 defendant in my presence. I was present at the time of registration of the sale deed of the property. Registration of the property was done at 1, Rajdoot Marg, New Delhi. Plaintiff was present at the time of registration of the Sale Deed. After registration, plaintiff and I left almost together. Since after registration, I and plaintiff left together therefore, I knew nothing thereafter regarding any demand of brokerage charges. Nothing regarding brokerage charges was discussed between the plaintiff and the defendant in my presence.............I received the emails from the plaintiff regarding discussion pertaining to sale deed to be executed in favour of the defendant. Sometimes, emails were directly marked to me and sometime copies were marked to the defendant also. In none of the emails there was any demand of any brokerage from the defendant by the plaintiff. Nothing was discussed with me regarding brokerage by the plaintiff. Plaintiff never discussed verbally or in writing regarding the brokerage charges with me. Plaintiff never informed me regarding the brokerage charges from the defendant."
9.23 According to the plaintiff, he was informed by his associate broker Mr. Harish Kumar that Mr. Arun Bhatia (PW-3) was planning to sell the property in question and as Mr. Harish Kumar was aware that he was looking for the property/floor for the defendant, Mr. Harish Kumar gave him the contact number of Mr. Arun Bhatia. Plaintiff for reasons best known to him did not examine Mr. Harish Kumar to prove the said fact i.e. he had told Mr. Harish Kumar that he was searching for a property for his client i.e. the defendant. He could have examined Mr. Harish Kumar to prove the fact that the defendant was the plaintiff's client or that the plaintiff had informed CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 29/33 him that defendant had agreed to avail the services of the plaintiff as well as agreed to pay him 2% of the transacted amount as commission/brokerage charges. Moreover the defendant during his cross examination, while denying that Mr. Arun Bhatia had sold the said property to him at a reasonable price as compared to the prevailing market rate at the instance of the plaintiff, had categorically stated that ".... Mr. Arun Bhatia advertise the property in Times of India newspaper and in Gym Khana club and he was most grateful to me for buying the property as the property was not sold in the market". This statement of DW1 could not be contradicted during the trial.
9.24 The first written communication whereby the plaintiff demanded brokerage charges from the defendant is of 25.05.2015. It is the plaintiff's case that on 25.05.2015 he raised a commission bill/invoice along with a request letter to the defendant and personally handed over the same to him. The said letter along with invoice are on record as Ex. PW1/3 (colly). However, in my considered opinion the said letter/invoice were never written/raised or handed over to the defendant. There is admittedly no receiving on the said letter or the invoice either of the defendant or any of his employee, representative etc. All this while plaintiff had been communicating with the defendant through emails. Why this particular letter was hand delivered along with the invoice, as is claimed and why no mail was sent to the defendant has not been explained by the plaintiff. Furthermore, the plaintiff admittedly remained in contact with the defendant CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 30/33 till March 2016 but nowhere did he even once again raise the issue regarding the brokerage/commission charges either via email or Whatsapp or otherwise.
9.25 Even otherwise Ex. PW1/3 itself makes it amply clear that the plaintiff neither worked as a commission/brokerage agent for the defendant nor the defendant had ever agreed to pay him commission @ 2% on the transacted amount. There is not even a single line in the said letter which even remotely proves that the plaintiff had at any given point of time informed the defendant that he charges 2% commission/brokerage or that the defendant had ever agreed to pay the same to the plaintiff. The plaintiff is merely talking about the services he provided to the defendant and nothing more. The relevant portion of the letter is reproduced hereunder:-
"May 25, 2015 Dear Shri Shri Swami ji, Pranam, I am taking the liberty to write you this letter as sometime it becomes embarrassing and difficult to express one's views in person. I am sure that you must be fully aware that I have lot of respect for you from the core of my heart. In fact from the day you expressed your desire to have a house in Vasant Vihar or Chanakaya Puri area, I had been working sincerely with full dedication for search of a suitable accommodation at a reasonable price. You would kindly recollect that I along with my partner had arranged your meeting with reputed builder of Vasant Vihar Mr. Ravi Arora when I took from him the entire proposal for having collaboration for your house D-3/12 Vasant Vihar but unfortunately CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 31/33 you had anticipated some problem with two daughters of your friend who were having possession of that house. We had also shown you a beautiful furnished floor built by Mr Ravi Arora in Anand Niketan sometime in the year 2011. Just to refresh your memory, I had also arranged your visit to a house at Malcha Marg which was built by a reputed builder Mr. Lovely Chandra with whom I had series of meetings to discuss financial terms etc. Finally in the year 2014 you had selected house No. F-4/1 (Ground Floor and Basement) in Vasant Vihar which was built by a reputed builder M/s. Saloon (Saluja Builders). For this house I had series of meetings with the Builder as well as financer Mr. R P Nargis. Ultimately at last stage after arranging your final meeting with the builder as well as the financer, Dr. Linda felt that the bed rooms are of smaller size as well as you felt that the ceiling of the house is quite low. Anyway I did not lose hope and sincerely continued putting my efforts for searching a suitable house for you. I had seen many houses but I never proposed to you as I was not satisfied myself.
Finally with the help of another Broker I identified 1st floor of house no. 1, Rajdood Marg, Chanakaya Puri which had been your first preference from the day I met you. Anyway, as good luck would have it and since you were destined to have this property, this deal has been materalised after putting in lot of sincere efforts and hard work. You would kindly appreciate that after having negotiations I have got you this property at a very reasonable price which is much lower than the prevailing market price. I have also been successful in persuading Mr. Arun Bhatia to agree to give you 25% land share in this property instead of 22% land share, as a special case. If we calculate the cost of 3% additional land share at prevailing market rate, this amounts to approximately around Rupees Three Crores. Moreover this property is having PLC i.e. preferential location charges as this is a corner house, facing park on both the sides and having a prestigious address i.e. one Rajdood Marg. Keeping CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 32/33 all this in view I am sure you will appreciate my efforts and will feel like giving me a suitable reward.
Since I have got very good feelings, greatest regard and lots of respect for you in my mind, I do not mind and feel free to express my present financial position before you. For the last about two years I am passing through extremely bad period as there is no fixed income. I must have appraised you earlier that we are Member of National Stock Exchange of India Ltd. and were doing sale purchase of shares. In the year 2013, we had undergone great losses and we were compelled to close down this business. Moreover, there is a recession in the real estate market and thus no deal has been materalised. I was confident and I put lots of efforts for a deal in West End Colony but unfortunately my buyer client took little more time in taking decision and by the time he agreed to have a final meeting with the seller the deal got materalised with some other client through some other broker just two days before and I lost this Big opportunity unfortunately.
Here I would also like to add that although I had taken loan from the Federal Bank for the construction of my house but due to lot of escalation I was forced to temporarily borrow funds from my close friends and with God grace I was successful in completing the construction of my house. As there is no regular income from the business till now, I had not been able to repay the temporary loan amount taken from my friends. Now I am under pressure as this has been over delayed and also I have to pay money to some of the contractors the balance and final payment.
In fact I was internally extremely happy when this Rajdood Marg deal got materalised around middle of April 2015. My friends and contractors who were continuously following up with me for their outstanding dues, I started assuring them that I will be able to honour my commitments sometime in the last week of May 2015 keeping in view that I will get from you the CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 33/33 professional charges of my services provided to you. I am submitting before you my Invoice for the professional charges for the services rendered and I would humbly request you to kindly pay this amount urgently as I am in dire need of funds at this juncture and this would give me a great relief.
With warm regards, Yours Sincerely, (Suresh Kumar)"
9.26 In the above letter, the plaintiff nowhere even once stated that he had told the defendant, in the year 2009 or 2011 or much before the transaction in question, that he charges 2% of the transacted amount as commission/brokerage or that the defendant had agreed to pay the said charges. Similarly, the said letter is absolutely silent that he had been repeatedly reminding the defendant for payment of the said commission/brokerage charges before the deal was finalized or that he demanded the same on 21.05.2015 as well but the defendant failed to pay the same and requested for some time. In fact the letter makes it amply clear that there was no such agreement between the plaintiff and the defendant and that the defendant only expected to be awarded for his efforts. The relevant line in the letter "Keeping all this in view I am sure you will appreciate my efforts and will feel like giving me a suitable reward" leaves CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 34/33 no doubt that it was merely an expectation, a hope and not an agreement. There was never any agreement/contract between the parties and their relations were on a different pedestal/footing and the following statement of the plaintiff, made during his cross examination sums up the nature of their relation:-
"I used to have regard for the defendant. I used to touch the defendant feet and he used to give blessings. I would sometimes carry sweets or fruits for the defendant. I had discussed with him about my business sometime in 2011."
9.27 The relevant portion of the cross-examination of the defendant in this regard read as under:-
"I know Mr. Suresh Kumar, he came to me through Mr. Chaudhary and he said that "Zindagi mai maine bhout paap kiya hai aur mai apki sewa karna chata hu, and I want to become your disciple and sawek aur bina labh lalach aur dhan ke ashirwad chaiye"
9.28 What emerges on record is the fact the plaintiff was working as a broker/ agent for various sellers/builders and approaching the defendant on their behalf, which almost every broker/agent does, since the year 2011. As was proved by DW2 Ms. Linda "I am only aware that the plaintiff pestered the defendant to move to a good address suitable to his standing as a noble being", same is the approach of almost all the brokers/agents. Fact remains that he was never engaged as a broker/agent by the defendant and the defendant never agreed to pay any commission much least @2% to the plaintiff. He had approached the defendant on behalf of seller/PW3 and was CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 35/33 corresponding with the defendant on behalf of the seller. However, the correspondences do not create any agreement or contract between the plaintiff and the defendant. Being the broker of the seller he was entitled to commission/brokerage from him and was accordingly given the brokerage charges by PW3. There being no agreement/contract written or oral between the plaintiff and the defendant, the defendant was/is under no obligation to pay the brokerage/commission charges to the plaintiff.
9.29 In view of the above discussion, issue no. 1 is decided in favour of the defendant and against the plaintiff. As issue no. 1 has been decided in favour of the defendant, plaintiff is not entitled to the suit amount or the interest thereupon and accordingly issue no. 3 is decided against the plaintiff. As far as issue no. 2 is concerned, letter and invoice Ex. PW1/3 (colly) were never handed over or delivered in person to the defendant and the said documents were created by the plaintiff to give a cause of action in his favour. No question of forgery arises, though the documents are indeed fabricated/doctored. Issue no. 2 is accordingly decided.
Relief
10. As issue no. 1 has been decided in favour of the defendant and issue no. 3 has been decided against the plaintiff, the plaintiff is not entitled to any relief. Suit of the plaintiff is liable to be dismissed. I order accordingly. Decree sheet be prepared.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 36/33
11. File be consigned to record room after necessary compliance.
Announced in the open court (Gaurav Rao)
on 12th September 2022 ADJ-03/ New Delhi District,
Patiala House Courts,
New Delhi.
CS No. 58655/16 Suresh Kumar Vs. Swami Rameshwar Ananda Giri Purna 37/33