Delhi District Court
Shubham Kumar vs Vaibhao Pratap Singh @ Prince And Anr on 9 May, 2024
CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW01-01177-2022
Civil Suit (Comm.) No.908/2022
In the matter of:
Shubham Kumar,
S/o Shri Bhanu Pratap Pal,
R/o E-120, Prem Nagar-1,
Village Kirari Suleman Nagar,
Delhi-110086.
.....Plaintiff
(Through Shri Badrinath Jha, Advocate)
Versus
1. Shri Vaibhao Pratap Singh @ Prince,
S/o Shri Ram Govind Singh,
R/o Village Khutahana Kharni,
Gorakhpur, Uttar Pradesh-273212.
Also At:
The Cairo Tales,
Vijaipur Colony, Vibhuti Khand,
Gomti Nagar, Lucknow, Uttar Pradesh-226010.
2. Ropeway Infra Project Pvt. Limited,
Through Its Director,
At: Opp. New High Court, Kamta,
Faizabad Road, Lucknow, Uttar Pradesh-226028.
3. Shri Akash Singh,
S/o Dr.R.P Singh,
R/o House No.249, Ghalib Apartment,
Pitampura, Delhi-110034.
.....Defendants
(Through Shri Rakesh Dhingra, Advocate)
DOD: 09.05.2024 || Page 1 of 13
CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024
Date of Institution of Suit : 30.11.2022
Date of transfer to this court : 29.05.2023
Date of hearing final arguments : 09.05.2024
Date of judgment : 09.05.2024
SUIT FOR RECOVERY OF Rs.5,10,000/- (Rupees Five Lakhs Ten Thousand
Only) ALONGWITH INTEREST
09.05.2024
JUDGMENT
1. The facts of the case in brief, as borne out from the record are that plaintiff has filed the present suit against the defendants on the premise that defendants No.1 and 3 had allured him to invest in a plot at District Barabanki, Uttar Pradesh. It is stated that defendant No.2 company was running a building construction project at Faizabad, District Barabanki, Uttar Pradesh and it had authorized defendant No.1 to sell out the units at the aforesaid project to the proposed customers. Defendants No.1 and 3 are stated to be cousin brothers (mosera bhai).
2. It is averred that defendant No.3 and his mother (who are stated to be residents of Delhi) contacted/approached the plaintiff in Delhi and allured him to invest money in the project run by defendant No.2. Thereafter, defendant No.1 also contacted the plaintiff in Delhi, who explained him the details of building project being run by defendant No.2 company and also allured him to invest in the said project. Pursuant to the assurances given by defendants No.1 and 3, plaintiff agreed to purchase a plot bearing No.C-27, Aman Basera, Faizabad Road, District Barabanki, DOD: 09.05.2024 || Page 2 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 Uttar Pradesh, admeasuring 1000 sq.ft. (hereinafter referred to as the "suit property"), for a total sale consideration of Rs.4,99,000/- (Approx. Rupees Five Lakhs) (@ Rs.499/- per sq.ft.). Accordingly, a plot buyers' Agreement was executed between the plaintiff and defendants on 01.07.2016 (hereinafter referred to as the "Agreement"). At the time of execution of the said "Agreement", plaintiff had paid a sum of Rs.1,28,000/- (Rupees One Lakh Twenty Eight Thousand Only) as "booking amount", while the remaining amount of Rs.3,71,000/- was agreed to be paid by the plaintiff to defendant No.1 in 53 months (4.5 years) @ EMI of Rs.7,000/- per month.
3. It is contended that as per the "Agreement", plaintiff kept on continuously making payment of EMI @ Rs.7,000/- per month to the defendant(s) by way of online transfer. It is further averred that on 25.02.2020, plaintiff had also made payment of a sum of Rs.50,000/- to the wife of defendant No.1 namely Smt.Aryushi Aggarwal on the pretext of purchasing stamp paper qua the suit property.
4. It is emphasized that even after making the complete payment of Rs.4,99,000/- to the defendants, they failed to deliver possession of the suit property to him/plaintiff. The plaintiff made several requests to the defendants to either give him possession of the suit property or refund his money and even personally approached defendant No.1 in this regard, but in vain. Thereafter, on the warning of plaintiff regarding initiation of legal action, defendant No.1 returned a sum of Rs.40,000/- to the plaintiff, DOD: 09.05.2024 || Page 3 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 however, even then the possession of suit property was not handed over to him. As such, the plaintiff sent a legal notice dated 02.05.2022 to the defendants, inter alia calling upon them to immediately refund the entire sale consideration of Rs.5,10,000/- alongwith interest @ 24% per annum, but that also did not yield any fruitful result to him.
5. As such, the plaintiff filed the instant suit against the defendants, inter alia praying as under:
(a) A decree in the sum of Rs.5,10,000/- (Rupees Five Lakhs Ten Thousand Only) alongwith pendentelite and future interest;
(b) Costs of the suit .
6. It is pertinent to mention here that prior to filing the present suit, plaintiff had also exhausted the remedy of pre-institution mediation in terms of Section 12-A of Commercial Courts Act, 2015. Nobody appeared on behalf of defendant(s) before the Delhi Legal Services Authority (North-West) during pre-institution mediation and consequently Certificate of Non-Starter dated 05.11.2022 was issued in the matter.
7. After getting served with the summons, defendant No.1 filed written statement inter alia claiming therein that present suit is nothing, but an attempt on the part of plaintiff to extort money from him. On merits, it was stated that defendant No.1 is neither a Director nor holding any managerial position in defendant No.2 Company and as such has no role/involvement in the affairs of defendant No.2. It was denied that DOD: 09.05.2024 || Page 4 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 defendant No.2 company had executed any authority in his favour. It was emphasized that he/defendant No.1 is not a party to the alleged Agreement, dated 01.07.2016. It was denied that defendant No.1 promised or offered to sell any plot to the plaintiff at Barabanki, Uttar Pradesh.
8. Defendant No.3 in his written statement took preliminary objections to the effect that no cause of action had arisen in Delhi as defendants No.1 and 2 are based in Uttar Pradesh and even the suit properyt is situated in District Barabanki, Uttar Pradesh. The plaintiff has arrayed him as defendant No.3 just to show that a part of cause of action has arisen in Delhi. On merits, it was admitted that he and defendant No.1 are cousin brothers. It was stated that neither he nor his mother ever promised or offered any plot to the plaintiff at District Barabanki, Uttar Pradesh. Defendant No.3 further denied having received any payment from the plaintiff.
9. Plaintiff filed replication in the matter inter alia denying the averments made by defendants No.1 and 3 in their respective written statements and reiterating the ones made by him in the plaint.
10. (i) Prior to proceeding further in the matter, it is pertinent to mention here that during the course of trial, defendant No.3 had preferred an application U/o VII Rule 11 CPC, inter alia claiming rejection of the plaint on the following grounds:
(a) That no cause of action has arisen against defendant No.3; and DOD: 09.05.2024 || Page 5 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024
(b) That this Court does not have territorial jurisdiction to entertain the present suit.
(ii) Relying upon the principle of "debtor has to seek the creditor"
and the law laid down by Hon'ble High Court of Delhi in case(s) reported as, "RFA (Comm.) No.6/2023", titled as, "Rukhmani Keshwani Trading As Vishwas Agarbatti Store V/s Naresh Jeswani" (DOO: 24.05.2023);
"Chandra Kishore Chaurasia V/s R.A Perfumery Works Private Limited"
[2022 SCC Online Delhi 3529]; and "Sonal Kanodia Vs Ram Gupta & Anr." [2023 SCC Online Del 1132], this Court vide order dated 27.01.2024 dismissed the said application.
(iii) Further, vide order dated 27.01.2024, this Court categorically observed that the defendants had not filed Affidavits of admission/denial of documents alongwith their written statement, as such the documents placed on record by the plaintiff are deemed to be admitted.
11. On the basis of pleadings of the parties, vide order dated 27.01.2024, following issues were settled for trial in the matter:
(i) Whether plaintiff is entitled to the decree of suit amount, as prayed for? OPP.
(ii) If answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
(iii) Relief.DOD: 09.05.2024 || Page 6 of 13
CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024
12. Pursuant to framing of issues in the matter, vide order dated 27.01.2024, Shri Pawan Kawrani, Advocate was appointed as "Local Commissioner" to record evidence in the matter.
13. In order to discharge the onus of issues put upon him, plaintiff/Shubham Kumar examined himself as PW-1; Shri Rakesh Kumar, Gunman with State Bank of India, Nangloi Branch as PW-2; and Shri Rahul Tanwar, Branch Manager of State Bank of India, Nangloi Branch as PW-3.
14. PW-1/Shri Subham Kumar in his evidence by way of affidavit Ex.PW1/X has reiterated the contents of plaint and proved on record the following documents:
(i) Copy of Aadhar Card of plaintiff as Ex.PW1/A;
(ii) Copy of Plot Buyers' Agreement, dated 01.07.2016, executed between defendant No.2 and plaintiff qua plot bearing No.C-27, Aman Basera, Faizabad Road, District Barabanki, Uttar Pradesh, admeasuring 1000 sq.ft.as Ex.PW1/B;
(iii) Copy of legal notice dated 02.05.2022, issued on behalf of plaintiff to the defendant(s) as Ex.PW1/C;
(iv) Copy of reply, dated 22.07.2022, sent on behalf of defendant No.3/Akash Singh to the legal notice of plaintiff as Mark 1 (inadvertently mentioned as Ex.PW1/D in the evidence affidavit of PW-1) and copy of postal receipts thereof as Mark 2;
(v) Computer generated copy of Tracking Report qua legal notice DOD: 09.05.2024 || Page 7 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 as Ex.PW1/F
(vi) Printouts of Whatsapp Chat between plaintiff and defendant No.3 as Ex.PW1/G (from page No.73 to 117 of the paperbook) (Note: Exhibition of the said document was objected to by learned counsel for defendant No.3 on the ground that the same was not accompanied by Certificate U/s 65-B of Indian Evidence Act as well as not attested by any Oath Commissioner);
(vii) Certified copy of order dated 25.07.2022, passed by learned ADJ-04, North-West District, Rohini Courts, thereby ordering for return of the plaint on the ground that dispute involved therein is of commercial nature as Ex.PW1/H;
(viii) CDR of call recording as Ex.PW1/I.
15. PW-2, Shri Rakesh Kumar, the Gunman from State Bank of India, Nangloi Branch, Delhi has proved on record the certified copy of the bank statement of plaintiff as Ex.PW2/1.
16. PW-3, Shri Rahul Tanwar, the Branch Manager from State Bank of India, Nangloi Branch, Delhi has proved on record the certified copy of bank statement alongwith beneficiary details in respect of S/B Account No.00000030566082136 in the name of plaintiff/Shubham Kumar as Ex.PW3/1.
17. The defendants did not prefer to lead any evidence in the matter. This is all as far as evidence recorded in the matter is concerned.DOD: 09.05.2024 || Page 8 of 13
CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024
18. I have heard arguments advanced at Bar by Shri Badrinath Jha, Advocate, learned counsel for the plaintiff and Shri Rakesh Dhingra, Advocate, learned counsel for the defendants. My issue wise findings in the matter are as under.
19. Issue No.(i):
Whether plaintiff is entitled to the decree of suit amount, as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. It is noted that earlier the plaintiff had filed the present suit as an ordinary civil suit for recovery before the court of learned ADJ, however, the learned ADJ vide his order dated 25.07.2022 (Ex.PW1/H) categorically observed that the dispute in the present matter is a "commercial dispute" and as such, the present matter came to be assigned to this Court.
20. The learned counsel for the defendants has very vehemently argued that the Plot Buyers' Agreement, dated 01.07.2016 (Ex.PW1/B) being an unsigned document is not admissible in evidence and as such is of no consequence to the plaintiff. The plaintiff has no legs to stand on and he has merely filed the present suit as a tool to extort money from the defendants. Though, it is admitted that defendants No.1 and 3 are cousin brothers, however, the learned counsel for the defendants made a strong pitch that defendant No.3 has nothing to do with the transactions/alleged online payment(s) made by plaintiff qua the suit property and in support of his aforesaid contentions he has taken me through the cross-examination of DOD: 09.05.2024 || Page 9 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 PW-1, wherein PW-1 had categorically admitted that he had not made any payment to defendant No.3.
21. As regards the payments made to defendant No.1, it is argued that even if the case of plaintiff is taken on its face value, then also it is evident that he/plaintiff had made last payment of Rs.50,000/- to the defendant No.1 on 28.12.2018 and as such, the suit could have been filed by 28.12.2021; whereas the insant suit was filed/registered on 30.11.2022 and as such the same is barred by limitation. I am afraid the aforesaid submission has been made by learned counsel in total ignorance of the fact that earler the plaintiff had preferred a civil suit before the court of learned ADJ on the same cause of action and the learned ADJ vide its order dated 25.07.2022 (Ex.PW1/H) had returned the plaint in the said case on account of there being a commercial dispute. It is matter of record that defendants have not challenged the said order of learned ADJ so far. Needless to say the benefit of Section 14 of Limitation Act is available to the plaintiff in the matter. The plaint being returned by learned ADJ vide its order dated 25.07.2022 and the present suit having been filed by plaintiff on 30.11.2022, the same is within the period of limitation. As such, the arguments of learned counsel for the defendants in this regard does not hold water and accordingly stands rejected.
22. Though, the plaintiff has proved on record the deluge of Whatsapp Chats between him and defendant No.3 (Ex.PW1/G) as well as the CDR of call recording (Ex.PW1/I), however, it is matter of record that DOD: 09.05.2024 || Page 10 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 the said Whatsapp chats are not accompanied by any Certificate U/s 65-B of Indian Evidence Act, 1872. Similarly, the CDR of call recording (Ex.PW1/I) is also not accompanied by any Certificate U/s 65-B of Indian Evidence Act, 1872.
23. This Court is conscious of the fact that Plot Buyers' Agreement, dated 01.07.2016 (Ex.PW1/B) is neither signed by the parties nor registered and even the so called Whatsapp Chats (Ex.PW1/G) and CDR of call recording (Ex.PW1/I) are not accompanied by any Certificate U/s 65-B of Indian Evidence Act, 1872. The plaintiff's case is not of specific performance. The plaintiff has merely sought recovery of the amount he had paid to the defendants, specifically defendant No.1 for purchase of the suit property. The plaintiff in order to prove its case that he had made various online payments to the defendant No.1 has examined PW-3 namely Shrhi Rahul Tanwar, Branch Manager of SBI, Nangloi Branch, who in his evidence has proved on record the bank statement of plaintiff bearing Account No.00000030566082136 as Ex.PW3/1. From the perusal of Ex.PW3/1, it is clearly evident that plaintiff had made payment(s) of different amounts on various dates by way of NEFT/online transfer to defendant No.1/Vaibhao Pratap Singh @ Prince. The entries contained in Ex.PW3/1 have not been disputed by the defendants, specifically by defendant No.1.
24. (i) Moving further, the plaintiff during his cross-examination has categorially admitted that he had not made any payment to defendant No.3.DOD: 09.05.2024 || Page 11 of 13
CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 In this regard, the plaintiff categorically admitted that on 15.10.2021, he had sent a Whatsapp message to defendant No.3 (Mark A, at page 75 of the paperbook) which reads as under:
xxxxx Well, I am not dragging you for your anything.
That's all my fault and I have to face it."
xxxxx
(ii) The plaintiff further admitted in his cross-examination that defendant No.3 had told him that he had not stood guarantor for defendant No.1. From the clear admission of plaintiff aforesaid, two things are clearly apparent, firstly the plaintiff had not made any payment(s) to defendant No.3 at any point of time qua the suit property and secondly defendant No.3 had not stood guarantor for defendant No.1, meaning thereby that defendant No.3 had not allured the plaintiff to invest in the suit property.
25. In view of the above, issue No.(i) is decided in favour of plaintiff and against defendant No.1.
26. Issue No.(ii):
If answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
As regards the quantum of interest, learned counsel for the plaintiff has claimed interest @ 18% per annum on the suit amount. In this regard, it is worthwhile to note here that though the plaintiff had made the payment(s) to defendant No.1 for purcahse of suit property, however, in my DOD: 09.05.2024 || Page 12 of 13 CS (Comm) No.908/2022: Shubham Kumar V/s Vaibhao Pratap Singh @ Prince & Ors.:
DOD: 09.05.2024 view interest @ 18% per annum appears to be on the higher pedestal. I am of the considered opinion that interest @ 12% per annum would meet the ends of justice. I order accordingly.
Relief
27. (i) In view of the above, a decree in the sum of Rs.5,10,000/- (Rupees Five Lakhs Ten Thousand Only) alongwith pendentelite and future interest @ 12% per annum from the date of filing of suit till realization thereof is passed in favour of plaintiff and against defendant No.1/Vaibhao Pratap Singh @ Prince only.
(ii) Plaintiff is also held entitled to costs and counsel's fee which is quantified as Rs.22,000/-.
28. Decree Sheet be drawn accordingly.
29. File be consigned to Record Room after completion of necessary formalities.
Dictated & Announced in the (Vinod Yadav)
open Court on 09.05.2024 District Judge (Commercial Court)-02
North-West/Rohini Courts
DOD: 09.05.2024 || Page 13 of 13