Delhi District Court
Deepika Guglani vs M/S. Rock Field Buildtech Pvt. Ltd on 12 May, 2011
:1:
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, DELHI
Presided by : Mr Jay Thareja, DJS
Civil Suit No: 242/10
Unique Case ID No. 02403C0311562010
Deepika Guglani,
W/o Sh. Sanjay Guglani,
Through P.O.A. Sh. H.R. Gulani,
S239, 1st Floor, Panchsheel Park.
New Delhi110017 ... Plaintiff
Versus
M/s. Rock Field Buildtech Pvt. Ltd.
Regd. Office: H65, Connaught Circus,
New Delhi110001 ... Defendant
SUIT FOR RECOVERY OF RS.1,53,955/
(RUPEES ONE LAKH FIFTY THREE THOUSAND
NINE HUNDRED AND FIFTY FIVE) ALONGWITH
PENDENTE LITE AND FUTURE INTEREST
DATE OF INSTITUTION : 25.09.2009
DATE OF ARGUMENTS : 30.04.2011
DATE OF DECISION : 12.05.2011
JUDGMENT
1. The plaintiff has filed the present suit against the defendant, through her special power of attorney holder, Sh. HR Guglani, for recovery of Rs.1,53,955/ along with costs and pendentelite and future interest at Civil Suit No.242/10 :2: the rate of 18% per annum.
2. The facts, that have allegedly given rise to the present lis are that the plaintiff, through her special power of attorney holder, Sh. HR Guglani, had purchased a commercial flat bearing number 408, Naurang House, 21, Kasturba Gandhi Marg, New Delhi (henceforth 'the flat'), from the defendant. The physical possession of the said flat was handed over to the plaintiff on 19.06.2006. In clause 4(g) of the registered agreement for sale dated 17.6.2006, executed between the parties, the defendant had covenanted that all obligations in respect of the said flat including the housetax, water and electricity charges and the charges payable to the maintenance society had been discharged by the defendant. Further, in clause 7 of the said agreement dated 17.06.2006, the defendant had undertaken to pay and discharge all liabilities including housetax to NDMC upto the date of handing over of possession of said flat. Clause 7 of the said agreement reads as under:
"That the Vendor shall pay and discharge all outgoings namely House Tax to NDMC, ground rent and maintenance charges etc. to the maintenance Agency upto the date of handing over possession of the said Flat to the Vendee and thereafter the same shall be borne and paid by the Vendee. The Vendor hereby agrees Civil Suit No.242/10 :3: and undertakes that in the event any amount is subsequently claimed by any authority or authorities pertaining to any claim prior to the date of handing over possession the Vendor shall make all such payment and agree and undertake to indemnify the Vendee on that account."
3. When the plaintiff had applied for mutation of the said flat in her name, she received a notice of order of bifurcation and assessment order of demand of housetax for the said flat dated 30.05.2008 from NDMC for the period, 22.06.2000 till the date of sale and for the period thereafter. The total demand for the said period had worked out to be Rs.6,94,581/ for the said flat. Out of the said demand, the liability of the defendant had worked out to be Rs.4,69,581/, which was to be paid by the defendant in terms of the aforesaid clause 7 of the registered agreement to sell dated 17.6.2006, being the housetax liability prior to the date of execution of the said registered agreement.
4. The plaintiff had written to the defendant on 15.9.2008 for payment of the aforesaid liability as per clause 4 (g) and clause 7 of the agreement for sale dated 17.6.2006. The defendant had not replied to the said letter. Thereafter, the plaintiff had issued a legal notice dated 30.10.2008 to the defendant for payment of the aforesaid liability. In reply Civil Suit No.242/10 :4: to the said legal notice, the defendant had stated that the legal notice is bad because the plaintiff had always known that the defendant had been in possession of the aforesaid flat only from 14.1.2006 to 26.4.2006 and prior to the said period, the flat had been in possession of Sh. Jasbir Singh Sachdeva. Also, the defendant had stated that the liability to pay house tax is of Sh. Jasbir Singh Sachdeva, who is willing to make the payment.
5. With respect to the demand made by the NDMC for 22.6.2000 to 16.6.2006, the plaintiff had raised an objection with the NDMC vide letter dated 04.08.2008 and sought remission from house tax liability on the ground that the flat had remained vacant during 22.6.2000 to 16.6.2006. On account of the efforts of the plaintiff, the NDMC had granted 66% remission and reduced the house tax liability for the said period to Rs. 1,53,955/.
6. On the aforesaid facts, the plaintiff has claimed that the defendant is liable to pay Rs.1,53,955/ to the plaintiff as despite repeated requests and reminders, the defendant has not paid the said amount to the plaintiff.
7. Upon service of summons, the defendant has contested the suit. In the written statement filed on behalf of the defendant, the relevant preliminary objections taken are that the suit has not been properly signed, verified and instituted on behalf of the plaintiff and that the suit is bad for Civil Suit No.242/10 :5: nonjoinder of necessary party, Sh. Jasbir Singh Sachdeva. In preliminary submissions, the defendant has stated that at the time of sale/ purchase of the aforesaid flat, the plaintiff was aware that defendant was acting as a vendor on the basis of the agreement for sale read with supplementary agreement executed between the defendant and Sh. Jasbir Singh Sachdeva. The defendant had become owner of the aforesaid flat only on 19.01.2006. Further, it is stated that it was in the knowledge of the plaintiff that any liability prior thereto was of Sh. Jasbir Singh Sachdeva. The plaintiff had agreed that the defendant was only liable to make the payment of the property tax from 14.01.2006 to 26.04.2006. However, at the time of execution of the documents, the plaintiff had requested the defendant, not to put this fact regarding liability of Sh. Jasbir Singh Sachdeva in the said documents. The flat was lying vacant but the plaintiff made payment to the NDMC contrary to the statutory provisions and the property tax has been paid by the plaintiff at a higher rate and the recoveries, if any, were to be made by NDMC from Late Sh. Kanwaljeet Singh Sabrawal.
8. In reply on merits, the defendant has denied that as per clause 7 of the registered agreement dated 19.06.2006, it had agreed and undertaken to pay and discharge all outgoings including house tax to NDMC upto the date of handing over of the possession of the said flat to the plaintiff. The remaining contents of the plaint have also been denied by the defendant. The defendant has specifically denied that it had ever admitted the liability of the amount claimed. Instead, the defendant has Civil Suit No.242/10 :6: stated that the liability of a third party cannot be fastened upon the defendant. Lastly, it has been prayed that the suit of the plaintiff be dismissed with costs.
9. In the replication, the plaintiff has traversed the contents of the written statement, denied the contents therein and reiterated and reaffirmed the contents of the plaint.
10. On the pleadings of the parties, the following issues were framed by the Ld. Predecessor on 21.07.2010 : "1. Whether the plaintiff is entitled for a recovery of amount of Rs.1,55,955/ as claimed for ?
OPP.
2. Whether plaintiff is entitled for interest as claimed for? OPP.
3. Whether the plaint has been instituted by an authorised person? OPD.
4. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD.
5. Relief."
11. In support of the case of the plaintiff, the plaintiff examined PW1, Sh. HR Guglani who deposed in line with the plaint and tendered in evidence, the following documents:
(i) Special Power of Attorney dated 16.9.2009 (EX.PW1/1 OSR)
(ii)Agreement for Sale dated 17.6.2006 (EX.PW1/2 OSR)
(iii)Order of Bifurcation and Assessment received from NDMC, dated Civil Suit No.242/10 :7: 30.5.2009 (EX.PW1/3)
(iv)Letter dated 4.8.2008 (EX.PW1/4)
(v)Copy of Letter dated 15.9.2008 (Mark A)
(vi)Legal Notice dated 30.10.2008 (EX.PW1/6)
(vii)Reply dated 1.11.2008 to the Legal Notice dated 30.10.2008 (Mark B)
(viii)Original Receipts upto 31.3.2009 (EX.PW1/8, page 6 to 14)
(ix) Copy of the Letter dated 7.4.2009 (EX.PW1/9)
12. During crossexamination, PW1 Sh. HR Guglani admitted that the plaintiff resides at Singapore and intermittently visits his house in Delhi and that the SPA, EX.PW1/1 was signed by the plaintiff but not attested in her presence by the Notary Public. PW1 Sh. HR Guglani denied that he was not authorized to sign, verify and institute the plaint on behalf of the plaintiff; that he was not authorized to depose on behalf of the plaintiff and that he could have got a better concession from the NDMC with respect to the property tax payable qua flat no. 408, Naurang House, 21, Kasturba Gandhi Marg, New Delhi. Upon being confronted with the back side of EX.PW1/3, Sh. HR Guglani stated that the statement written at point X to X was written by an NDMC official. Further, upon being confronted with letter dated 7.4.2009, EX.PW1/9, Sh. HR Guglani admitted that he had made the payment on the assurance of Sh. SS Sabharwal that Sh. Jasbir Sachdeva would make the payment. Voluntarily, Sh. HR Guglani testified that the plaintiff had no privity of contract with Sh. Jasbir Sachdeva. After cross examination of PW1 Sh. HR Guglani, the plaintiff evidence was closed. Civil Suit No.242/10 :8:
13. In support of its case, the defendant examined DW1, Sh. Sarabjit Singh, who deposed in line with the written statement, but did not tender any document in evidence.
14. During crossexamination, DW1 Sh. Sarabjit Singh admitted that the agreement for sale dated 17.6.2006, EX.PW1/2 contains his signatures at every page including the last page and that he knew that in respect of flat no. 408, Naurang House, 21, Kasturba Gandhi Marg, New Delhi, there was a liability towards the NDMC under the head of house tax, but he was unaware about the quantum of liability. After cross examination of DW1 Sh. Sarabjit Singh, the defendant evidence was closed.
15. I had heard Sh. MS Ramamurti, Ld. Advocate for the plaintiff and Sh. Rahul Kumar and Sh. Saurabh Khanna, Ld. Advocates for the defendant on 30.4.2011. The issue wise findings, in this case are as follows:
ISSUE NO. 1
16. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had referred to the letter dated 4.8.2008, EX.PW1/4, the front side and the back side of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3, the unexhibited letter dated Civil Suit No.242/10 :9: 18.2.2009 and clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2.
17. Drawing reference to the letter dated 4.8.2008, EX.PW1/4, the Ld. Advocate had submitted that as on 4.8.2008, the demand raised by the NDMC on the plaintiff was of Rs.4,69,581/. Further, drawing reference to the back side of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3, the Ld. Advocate had submitted that the calculation for arriving at the amount of Rs. 4,69,581/ has been given at point X to X.
18. Drawing reference to the front side of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3, the Ld. Advocate had submitted that as per the said document, the ratable value of the suit property from 22.6.2000 to 17.6.2006 was Rs.3,09,700/, that the tax payable on the said amount was at the rate of 25% per annum i.e. approximately Rs.77,436/ per annum and that on the basis of the said calculation, the total tax payable for 22.6.2000 to 17.6.2006 i.e. for six years was approximately Rs.4,61,349/ (Rs.77,436/ x 6).
19. Drawing reference to an unexhibited document i.e letter dated 18.2.2009, written by Sh. P.K. Sain, Administrative Officer (Tax) of NDMC, the Ld. Advocate had submitted that the plaintiff had been granted remission of Rs.3,16,164/ in respect of the suit property for the period 22.6.2000 to 31.8.2006. Further, the Ld. Advocate had submitted that after Civil Suit No.242/10 :10: granting the proportionate benefit of the remission to the defendant i.e. for 22.06.2000 to 16.06.2006, the defendant is liable to pay Rs.1,53,955/ to the plaintiff.
20. Finally, drawing reference to the clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2, the Ld. Advocate had submitted that the liability to pay Rs.1,53,955/ falls squarely on the defendant.
21. In support of the case of the defendant on this issue, the Ld. Advocate for the defendant had challenged the calculation given at point X to X on the back side of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3 and submitted that the said calculation is erroneous; that it does not bind the defendant and that it was incumbent upon the plaintiff to examine the NDMC official, who had written the said calculation. Further, the Ld. Advocate had submitted that this Court cannot look into the unexhibited letter dated 18.2.2009 as the same had not been tendered in evidence by the plaintiff.
22. In rejoinder arguments, the Ld. Advocate for the plaintiff had drawn reference to the judgment of the Hon'ble High Court of Delhi in Rajdhani Films v Rajesh Arora, 1995 Rajdhani Law Reporter 205 and submitted that this Court can look into the unexhibited letter dated 18.2.2009 as it is an ancillary document and not a document that forms the basis of the suit.
Civil Suit No.242/10 :11:
23. After hearing the Ld. Advocates for the parties and perusing the record of the Court file, I find that the unexhibited document i.e letter dated 18.2.2009, written by Sh. P.K. Sen, Administrative Officer (Tax) of NDMC can be looked into by this Court because it is a public document within the meaning of Section 74 of the Evidence Act, 1872 and because it had been filed alongwith the plaint and supplied to the defendant. In my view, the error of the plaintiff, in not formally tendering the said document cannot be fatal for the evidentiary value of the said document.
24. Further, I find that DW1, Sh. Sarabjit Singh had partly admitted the case of the plaintiff by stating that he was aware that there was some liability towards the NDMC under the head of house tax, but he was unaware about the quantum of liability. In my view, the said admission had bound the defendant to the extent that it had made it incumbent upon the defendant to come up with its own version/calculation of the house tax liability qua the aforesaid flat. Further, in my view, the mere denial by the defendant of the plaintiff's version of the calculation, given at point X to X on the back side of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3 is not sufficient to conclude that the said version is erroneous. Upon examining and comparing the contents of the letter dated 04.08.2008, Ex. PW1/4, the backside of the order of bifurcation and assessment dated 30.5.2008, EX.PW1/3, the unexhibited letter dated 18.2.2009 and bill dated 15.07.2008, I find that the calculation given at point X to X on the backside of of the order of bifurcation and assessment Civil Suit No.242/10 :12: dated 30.5.2008, EX.PW1/3, is believable as it tallies/matches with the other documents available on record of the Court file.
25. In so far as the application and interpretation of clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2 is concerned, I find that during crossexamination, DW1, Sh. Sarabjit Singh had admitted that the said agreement contains his signatures at every page. In view of this admission, I find that the only relevant question to be considered is whether clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2 fastens the liability of paying housetax for the period, 22.06.2000 to 17.06.2006, on the defendant. Upon a literal reading of clause 7, I find that the only possible interpretation of clause 7 is that the defendant is liable to pay the housetax for the the period, 22.06.2000 to 17.06.2006. Therefore, in my view, the defendant is liable to pay Rs. 1,53,955/ to the plaintiff.
26. During final arguments, the Ld. Advocate for the defendant had not pressed the averments made in paragraph 3 of the written statement. Nevertheless, in respect of the said averments, I find that once DW1, Sh. Sarabjit Singh has admitted the agreement for sale dated 17.6.2006, EX.PW1/2, it is not open for the defendant to contend that there was any oral understanding between the parties regarding clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2.
27. Thus, as a net result of the aforesaid discussion the issue is Civil Suit No.242/10 :13: decided in favor the plaintiff and against the defendant. It is held that the plaintiff is entitled to Rs. 1,53,955/ from the defendant. ISSUE NO.2
28. The onus of proving this issue was on the plaintiff. By proving that the plaintiff is entitled to the suit amount, the plaintiff has established that she is entitled to the interest. In the prayer clause of the plaint, the plaintiff has claimed pendentelite and future interest at the rate of 18% per annum. In my view, the rate of interest claimed by the plaintiff is excessive and the ends of justice would be met, if the plaintiff is granted pendentelite and future interest at the rate of 10% per annum.
ISSUE NO.3
29. In support of the case of the defendant on this issue, the Ld. Advocate for the defendant had challenged the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 on the grounds that it is a false and fabricated document and that it did not authorize PW1, Sh. H.R. Guglani to depose on behalf of the plaintiff.
30. In order to buttress the first ground, the Ld. Advocate had drawn reference to the crossexamination of PW1, Sh. H.R. Guglani and Section 85 of the Evidence Act, 1872. In the crossexamination of PW1, Civil Suit No.242/10 :14: Sh. H.R. Guglani, the Ld. Advocate had pointed out that the said witness had admitted that the Special Power of Attorney dated 16.9.2009, Ex.PW1/1 had been signed by the plaintiff but not attested in her presence. Drawing reference to Section 85 of the Evidence Act, 1872, the Ld. Advocate had submitted that by extracting the aforesaid testimony from PW1, Sh. H.R. Guglani, the defendant has discharged its onus and it was for the plaintiff to demonstrate that the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 had actually been executed by the plaintiff.
31. In order to buttress the second ground, the Ld. Advocate for the defendant had drawn reference to the contents of the Special Power of Attorney dated 16.9.2009, Ex.PW1/1 and submitted that it does not authorize Sh. H.R. Guglani to depose on behalf of the plaintiff. Further, the Ld. Advocate had referred to the judgments in Janki Vashdeo Bhojwani and Anr v Indusind Bank Ltd. & Ors, (2005) 2 SCC 21 and Dr. Manmohan Singh Dhaliwal v Gurbax Singh Arora & Ors., 94 (2001) DLT 820 and submitted that Special Power of Attorney dated 16.9.2009, Ex. PW1/1 has to be strictly interpreted and no meanings or intention can be attributed to the words used therein.
32. In support of the case of the plaintiff, the Ld. Advocate for the plaintiff had submitted that the nonattestation of the Special Power of Attorney dated 16.9.2009, Ex. PW1/1, in the presence of the plaintiff, does not prove that the said document was not executed by the plaintiff. With Civil Suit No.242/10 :15: respect to the content of the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 and the applicability of the law laid down in Janki Vashdeo Bhojwani and Anr v Indusind Bank Ltd. & Ors, (supra) and Dr. Manmohan Singh Dhaliwal v Gurbax Singh Arora & Ors., (supra), the Ld. Advocate had submitted that the evidence given by Sh. H.R. Guglani in this Court, was, as per his own knowledge and that Sh. H.R. Guglani was authorized to depose in the present suit on the basis of the residuary clause i.e. clause 3 of the Special Power of Attorney dated 16.9.2009, Ex. PW1/1.
33. After hearing the Ld. Advocates for the parties and perusing the record of the Court file, I find that the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 stands proved on record by virtue of the unchallenged testimony of PW1, Sh. H.R. Guglani that the plaintiff had signed the said Special Power of Attorney in his presence. Neither in the written statement nor during cross examination of PW1 Sh. H.R. Guglani, the defendant had made any suggestion to the effect that the signatures of the plaintiff on the said Special Power of Attorney are forged and fabricated.
34. Further, I find that in a civil proceeding, the test for determining whether a particular fact had occurred or not is whether on preponderance of probabilities it can be concluded that the fact had occurred. In the present case, keeping in mind, the fact that the relationship between the plaintiff and her Special Power of Attorney Holder, Sh. H.R. Guglani is that Civil Suit No.242/10 :16: of a daughter in law and father in law and the fact that the sale/purchase of the flat had also been done by Sh. H.R. Guglani on behalf of the plaintiff, I have no hesitation in concluding that the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 had been executed by the plaintiff, Ms. Deepika Guglani in favor of PW1, Sh. H.R. Guglani.
35. With respect to the submission made by the Ld. Advocate for the defendant that on account of the applicability of Section 85 of the Evidence Act, 1872 in the present case, the onus had shifted on the plaintiff to prove the execution of the Special Power of Attorney dated 16.9.2009, Ex. PW1/1, I find that the Power of Attorney Act, 1882 1, does not mandate that a power of attorney should be an attested document. In my view, in the absence of such a requirement, a power of attorney can be proved as per Section 72 read with Section 67 of the Evidence Act, 1872, which, as stated in the aforesaid paragraphs, has been done by PW1, Sh. H.R. Guglani.
36. With respect to second objection taken by the Ld. Advocate for the plaintiff that the Special Power of Attorney dated 16.9.2009, Ex. PW1/1 does not authorize Sh. H.R. Guglani to depose in the present suit, I find it appropriate to refer to clause 3 of the said Special Power of Attorney, which reads as under: "3. And to do all acts necessary that are required with 1 Reference is craved, interalia, to Section 5 of the Power of Attorney Act, 1882. Civil Suit No.242/10 :17:
regard to the above said flat in his own name on my behalf and thereof and to do all other acts, deeds and things in connection there to."
37. In my view, the aforesaid clause authorized PW1 Sh. H.R. Guglani to depose in the present case. Further, in my view, the testimony of PW1, Sh. H.R. Guglani cannot be disregarded in the present case, because PW1, Sh. H.R. Guglani, has testified on the basis of his personal knowledge derived from his dealing with the defendant and the NDMC on behalf of the plaintiff. In taking this view, I am supported by the judgment of the Hon'ble Supreme Court of India in Janki Vashdeo Bhojwani and Anr v Indusind Bank Ltd. & Ors, (supra).
38. Thus, as a net result of the aforesaid discussion the issue is decided in favor the plaintiff and against the defendant. It is held that the suit has been properly signed, verified and instituted on behalf of the plaintiff.
ISSUE NO. 4
39. In respect of this issue, no submission was made by the Ld. Advocate for the defendant. However, upon perusing the written statement, I find that this issue had been framed because the defendant had taken an objection to the effect that Sh. Jasbir Singh Sachdeva is a necessary party Civil Suit No.242/10 :18: to this suit.
40. In my view, Sh. Jasbir Singh Sachdeva is not a necessary party to this suit as this suit has been filed on the strength of clause 4(g) and clause 7 of the agreement for sale dated 17.6.2006, EX.PW1/2 and Sh. Jasbir Sachdeva is not a party to the said agreement for sale dated 17.6.2006, EX.PW1/2. Thus, the issue is decided in favour of the plaintiff and against the defendant.
RELIEF
41. In view of the aforesaid findings, the suit of the plaintiff is decreed. It is held that the plaintiff shall be entitled to Rs. 1,53,955/ (Rupees One Lakh Fifty Three Thousand Nine Hundred and Fifty Five Only) along with pendentelite and future interest at the rate of 10% per annum from the defendant. The plaintiff shall also be entitled to costs from the defendant.
42. After preparation of the decreesheet, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja)
On 12.05.2011 Civil JudgeI, New Delhi District
New Delhi
Civil Suit No.242/10