Delhi District Court
Pardeep Garg vs M/S Tdi Infrastructure Pvt. Ltd on 17 May, 2023
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
CS (Comm.) No. 606/2020
Pardeep Garg
S/o Sh. Bharat Singh Garg
R/o E-859, Saraswati Vihar, Delhi-110034 ...Plaintiff
versus
1. M/s TDI Infrastructure Pvt. Ltd.
Through Its Directors
Having its regd. Office at 9,
Kasturba Gandhi Marg, New Delhi-110001
2. M/s Intime Promoters Pvt. Ltd.
Through Its Directors
Having its regd. Office at 9,
Kasturba Gandhi Marg, New Delhi-110001 ...Defendants
Date of Institution : 28/11/2017
Arguments concluded on : 29/03/2023
Decided on : 17/05/2023
Appearances : Sh. Nitin Goel, Ld. Counsel for plaintiff.
Ms. Kanika Agnihotri, Ld. Counsel for defendant no. 1.
JUDGMENT
1. Plaintiff had filed the civil suit for recovery of Rs.54,69,421/- with interest and cost against arraigned defendants on 28/11/2017. Filed civil suit was allocated to the Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi. On 11/07/2018, since no written statement was filed by defendant nos. 1 and 2, right to file written statement was struck off by the Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi. On 11/09/2018 application under Order IX CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 1 of 47 Rule 13 CPC was moved by defendant no. 1 before the Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi and therein it was the submission of Ld. Counsel for plaintiff that though said application was not maintainable but in order to avoid further delay in the matter the application may be allowed subject to cost. In view of no objection given by Ld. Counsel for plaintiff, the Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi allowed the said application on 11/09/2018 subject to cost of Rs. 25,000/- to be paid to plaintiff and applicant/defendant no.1 was permitted to file written statement within 30 days with advance copy to plaintiff and plaintiff was directed to file replication within 30 days thereof and both parties were directed to file their affidavit of admission and denial of documents of each other and case was kept for framing of issues on 08/01/2019. On 10/05/2019 Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi dismissed the application of plaintiff under Order VIII Rule 10 CPC with the observation that no objections were raised on 08/01/2019 when written statement was filed by applicant/ defendant no. 1 in the presence of Counsel of both parties and said written statement was taken on record. On 22/10/2019 Court of Ld. Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi recorded that plaintiff did not wish to file replication, whereas since the affidavits of admission and denial of documents were not filed by both parties, to avoid further delay, same was dispensed with and the issues were framed after which the case was fixed for 30/03/2020 for evidence of plaintiff, directing parties to file list of witnesses in CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 2 of 47 two weeks and plaintiff to file affidavit in evidence within 30 days. Record reveals that against aforesaid order dated 10/05/2019 plaintiff preferred CM (M) No. 819/2019 titled Pradeep Garg vs. M/s TDI Infrastructure Pvt. Ltd. & Anr. before Delhi High Court, which petition was disposed off by Delhi High Court vide order dated 07/02/2020 with the directions that the written statement of applicant/defendant no. 1 be taken on record subject to payment of Rs. 10,000/- as cost to be paid to plaintiff, suit after numbering/registering to be proceeded as a commercial suit accordingly, since till then the suit was not registered as a commercial suit and procedure as per the Commercial Courts Act.
2. This case was received in this Court on transfer on 26/11/2020, as per order dated 21/11/2020 of Ld. Principal District & Sessions Judge, New Delhi District, Patiala House Courts, New Delhi. On 26/11/2020 it was observed that no Power of Attorney was filed on behalf of defendant in favour of any Counsel and in the Index of written statement it was mentioned for filing of written statement on behalf of defendant no. 1 whereas in the bottom after the particulars in the Index, there was mention of defendant nos. 1 and 2 and at page no. 11 of written statement, two signatures were there above typed matter of defendant nos. 1 and 2 after which was typed the name of Kanika Agnihotri and Vaibhav Agnihotri, Advocates and said signatures were appended after mention for word "for". Defendants were directed to file Power of Attorney of their Counsel within a week and the parties/Counsel were directed to appear via video conferencing/physically, as would be permissible and feasible.
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 3 of 47On 02/12/2020, an application under Order VI Rule 17 CPC to place on record the amended written statement with Annexures and application under Section 151 CPC for recall of the order dated 22/10/2019 were filed on behalf of defendant no. 1. It was directed to supply copies of aforesaid to plaintiff/Counsel and case was kept for 18/12/2020 for arguments on aforesaid applications. On 21/01/2021, Counsel for defendant no. 1 gave statement to withdraw aforesaid applications under Order VI Rule 17 CPC and under Section 151 CPC dated 27/11/2020, filed on 02/12/2020 and these applications were dismissed as withdrawn. On 29/01/2021 written statement was filed on behalf of defendant no. 1. On 18/02/2021, it was observed that parties were to comply the order dated 21/01/2021 as per procedure since on 21/01/2021 the parties were directed to do and comply all necessary pre-requisites for commercial disputes, as per procedure established by law within period of 10 days since as per order dated 07/02/2020 of Delhi High Court, aforesaid, matter was proceeded as a commercial suit. On 18/03/2021 case management hearing was done and schedule/time line was fixed for speedy disposal of the case, as detailed therein. On 18/03/2021 also for compliance of aforesaid order dated 07/02/2020 of Delhi High Court in letter and spirit, the applications of plaintiff as well as defendant no. 1 for placing on record the requisite statements of truth and list of documents compliant for commercial dispute of a specified value were allowed and these were taken on record. In the filed statement of truth in prescribed form of affidavit sworn on 19/02/2021 AR of defendant no. 1 in para no. 6 therein inter alia had affirmed on oath that all documents in his (defendant no. 1) power, CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 4 of 47 possession, control or custody pertaining to the facts circumstances of the proceedings were enclosed with the pleading and he (defendant no. 1) does not have any other documents in his power, possession, control or custody. Matter was also referred to Mediation Centre, Patiala House Court, New Delhi. Thereafter came the second wave of Covid-19 pandemic leading to initial lock down, later on en-bloc adjournments of all cases in terms of orders of Delhi High Court and thereafter resumption of the Court hearings, also in terms of orders of Delhi High Court.
3. Following are the brief relevant material facts of plaintiff. Plaintiff invested in the project 'TDI City' at Kundli, Sonipat, Haryana of defendant nos. 1 and 2 through advertisement by showing willingness by applying to purchase plot measuring 250 sq. yards from defendant nos. 1 and 2 through their representatives who had taken Advance Registration Form on 05/10/2005 from plaintiff. With said form plaintiff had given booking amount to defendant nos. 1 and 2, totaling Rs. 6,50,000/- vide two cheques of October, 2015. Subsequent payments were made by plaintiff to defendants on demand. Total sum paid by plaintiff to defendants was Rs. 22,67,908/- and no other amount was demanded by defendants from plaintiff. Final payment of Rs. 2,06,250/- was to be paid by plaintiff to defendants at the time of possession of said property. Defendants failed to offer the possession of said property to plaintiff despite various requests and visits of plaintiff in their office at Kasturba Gandhi Marg, New Delhi-110001 but there was no response from the side of defendant nos. 1 and 2 and officials of defendant nos. 1 and 2 CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 5 of 47 delayed the giving of possession of property and the officials of defendants were unable to give any adequate reason for the delay in handing over the possession. Plaintiff then had filed suit for mandatory injunction before Court of Sh. Nishant Garg, Civil Judge-02, Patiala House Court, New Delhi against defendants, wherein defendant had filed an application under Order VII Rule 11 CPC and the said Court of Civil Judge vide order dated 14/07/2017 rejected the suit of the plaintiff under Order VII Rule 11 (d) of CPC. In said order, it was observed by the Court of Ld. Civil Judge that by mandatory injunction relief, plaintiff was seeking direction to defendant to handover the possession of suit plot and apparently seeking specific performance of contract and by seeking direction to defendants to refund the amount already paid by plaintiff, plaintiff was seeking recovery of money and both these reliefs needed to be separately valued and appropriate court fees to be paid, so the suit so drafted was not maintainable in that form, so the plaint was rejected. Along with suit plaintiff has also filed the copy of Advance Registration Form TDI City dated 05/10/2005 which is on the printed format, blanks had been filled in ink, signed by plaintiff. Along with said Advance Registration Form the amount of Rs. 6,50,000/- by two cheques, as aforesaid, was given by plaintiff to defendant. Later thereto the letter of allotment dated 17/02/2006 was unilaterally issued by defendant no. 2 to plaintiff. Even said letter of allotment dated 17/02/2006 bears registered office address of Kasturba Gandhi Marg, New Delhi of defendant no. 2. Para no. 2 (c) of application of defendant under Order VII Rule 11 read with Section 151 CPC dated 25/01/2017 before Court of Civil Judge finds mention that plaintiff had paid Rs. 22,74,581/- towards the part sale CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 6 of 47 consideration of the plot allotted to him but the possession of plot could not be handed over to plaintiff due to certain technical reasons related to development of the land, though defendant no. 1 possesses the permissions of developments and title of the land comprising of Plot No. J-96A allotted to plaintiff. Since it came into the notice of plaintiff that the defendants could not give the possession of the allotted plot to him and were enjoying the money of plaintiff, so plaintiff felt cheated and thereafter plaintiff filed suit for recovery of money and interest with cost.
4. Following are the brief relevant material facts of defendant no. 1. In the written statement of defendant no. 1, the tone and tenor of the averments had been as if the lis was filed under the Consumer Protection Act and was before Consumer Forum. Also it had been averred that plaintiff was not consumer and plaint was not maintainable before Consumer Forum under The Consumer Protection Act, 1986. There is no mention in the written statement of applicant/defendant no. 1 that it was an ongoing project or it was a completed project or the defendant had received part completion certificate. In fact defendant had denied averment of plaint in para 2(G) of reply on merits in written statement wherein defendant no. 1 denied of delay in project. It had been the bald, vague assertion of applicant/ defendant no. 1 in the written statement that plaintiff had defaulted in the performance of his obligations under allotment terms and defaulted in making timely payments towards the installments due in accordance with the terms agreed between the parties. The averments in the written statement are bereft of any pleadings and better particulars as to which payments were CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 7 of 47 defaulted by plaintiff.
5. Following issues were framed by the Court of Ld. Additional District Judge-03, Patiala House Court, New Delhi on 22/10/2019:-
ISSUES "1. Whether plaintiff is entitled to recovery of Rs.
54,69,421/- (principle of Rs.2267908 + interest @ 12% p.a) from defendant? OPP.
2. Whether plaintiff is entitled to cost of suit? OPP.
3. Relief."
6. Sh. Pradeep Garg, plaintiff examined himself as PW1 and sole witness in led plaintiff evidence and tendered his affidavit Ex PW1/A in evidence.
7. PW1 has relied upon the following documents:-
S.No Documents Exhibit
1. Certified copy of order Ex PW1/1
dated 14/07/2017 of the
Court of Ld. Civil
Judge-02, New Delhi
whereby application of
defendant no. 1 under
Order VII Rule 11 of
CPC allowed and plaint
was rejected under
Order VII Rule 11 (d)
CPC
2. Certified copy of Ex PW1/2
application under Order
VII Rule 11 of CPC
dated 25/01/2017 of
defendant no. 1 moved
before the Court of Sh.
Nishant Garg, Civil
Judge, Patiala House
New Delhi, seeking
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 8 of 47
rejection of plaint
3. Certified copy of the suit Ex PW1/3
of the plaintiff for
mandatory injunction
filed before the Court of
Ld. Sr. Civil Judge, New
Delhi
4. Certified copy of receipt Ex PW1/4
no. R-2/ 2291 dated
31/10/05 issued by
defendant no. 1 in the
name of plaintiff
5. Certified copy of Letter Ex PW1/5
of Allotment dated
17/02/2006 of defendant
no. 1 to plaintiff with
respect to Plot No. J-
96A of 250 square yards
6. Certified copy of Ex PW1/6
account statement dated
22/05/2007 of defendant
no. 1 in the name of
plaintiff
7. Certified copy of Ex PW1/7
account statement dated
12/08/2009 in the name
of plaintiff
8. Copy of advance Mark A
registration form of TDI
City dated 05/10/2005
in the name of plaintiff.
9. Copy of cheques (i) Mark B
bearing no. 836365
dated 09/10/2005; (ii)
bearing no. 836366
dated 13/10/2005 by
plaintiff in the name of
defendant no. 2 of
Rs.3,00,000/- and
Rs. 3,50,000/-.
8. Ld. Counsel for plaintiff closed the plaintiff evidence vide separate statement on 23/04/2022.
9. Defendant no. 1 examined sole witness Sh. Ritesh Vijhani, its Authorised Representative as DW1 in defendant evidence.
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 9 of 47DW1 tendered his affidavit Ex DW1/A in evidence.
10. DW1 has relied upon the following document:-
S.No Documents Exhibit
1. Board Resolution/ Ex DW1/1
Authority letter issued
in the favour of DW1
11. Ld. Counsel for defendants closed the defendant evidence vide separate statement on 27/08/2022.
12. Written arguments with precedents were filed by Ld. Counsel for the parties. Oral arguments were also addressed by Ld. Counsel for the parties. I have perused the record and have considered the rival contentions put forth by Ld. Counsel for the parties.
13. Ld. Counsel for plaintiff argued that it is admitted case of defendant no. 1 of receipt of Rs.22,74,581/- from plaintiff towards booking of 250 square yards plot in TDI City Project at Kundli, Sonipat, Haryana comprising booking amount and subsequently received amounts. Defendants failed to offer the possession of allotted plot J-96A in aforesaid project of defendants to plaintiff despite issuance of allotment letter Ex PW1/5. Final payment of Rs. 2,06,250/- was to be paid at the time of delivery of possession of said property by defendant nos. 1 and 2 to plaintiff. In application Ex PW1/2 of defendants under Order VII Rule 11 read with 151 CPC dated 25/01/2017 filed before the Court of Ld. Civil Judge, New Delhi in suit of plaintiff for mandatory injunction against defendants, it was revealed by CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 10 of 47 defendants that "possession of the plot could not be handed over to the plaintiff due to certain technical reasons related to the development of the land". Then it was brought to the notice of the plaintiff that defendants cannot give the possession of allotted plot to plaintiff and were enjoying the money of the plaintiff without even disclosing the actual position to the plaintiff. Written statement of defendants only contains the vague denial of averments of plaintiff, terming plaintiff to be consumer and averments made therein were as if they were made before Consumer Forum. Though defendant no. 1 pleaded delay and default of plaintiff in timely payment and about reminder letters but qua the same no document was filed nor proved by defendant no. 1 in support of said defence. Even DW1 in cross examination of plaintiff Counsel admitted that possession of plot J-96A in question was never offered to plaintiff. Though it was alleged that defendant no. 1 had offered possession of alternate property to plaintiff in writing as well as orally, however, in support of said contention no document was filed nor proved. Ld. Counsel for plaintiff argued that this Court has territorial jurisdiction to adjudicate the present suit with respect to which plea taken by defendant no. 1 in application under Order VIII Rule 10 CPC was adjudicated and turned down. It was argued that in the present case relief sought is for recovery of money which can be obtained by personal obedience of defendant as per proviso to Section 16 of CPC and plaintiff has not sought the relief of specific performance and/or relief of possession as were sought in the case of Harshad Chiman Lal Modi vs DLF Universal Ltd. & Anr., (2005) 7 SCC 791. It was argued that dispute in this case is not qua late objection of subject matter jurisdiction but CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 11 of 47 late objection of defendant qua territorial jurisdiction whereas facts in the case of Cantonment Board & Anr. vs Church of North India, (2012) 12 SCC 573 are different and distinguishable to the case in hand. Ld. Counsel for plaintiff argued that suit is not barred by Section 79 of The Real Estate (Regulation & Development) Act, 2016 (in short RERA Act) as it is the case of defendants itself that they received completion certificate, so RERA Act is not applicable, whereas the case of Imperia Structures Limited vs Anil Patni & Anr., (2020) 10 SCC 783 has not dealt with cases where jurisdiction is barred in view of Section 3(2)(c) of RERA Act which says that RERA Act is not applicable when completion certificate is already received. Ld. Counsel for plaintiff argued that Supreme Court in the case of Meerut Development Authority vs Mukesh Kumar Gupta, Petition (s) for Special Leave to Appeal (Civil) /2012 CC 8481/2012 decided by Supreme Court on 09/05/2012 held that in cases of non delivery of possession of plot, the cause of action is recurring; so the present suit is within limitation and the contention of defendant through Counsel of suit being barred by Limitation Act has no force though it has been alleged that since plaintiff paid last payment in year 2009, so as per Article 24 of the Schedule of The Limitation Act, the limitation for filing the present case expired in year 2012. Ld. Counsel for plaintiff argued that even otherwise the present suit is within limitation in terms of Article 27 and Article 55 of Schedule of The Limitation Act, 1963 as in terms of the agreement between the parties 10% of the consideration price was to be given on possession; therefore, it is not a simple case that entire payment was made in year 2009 and/or limitation having expired in year 2012. It was a CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 12 of 47 continuing agreement whereby plaintiff was regularly assured by defendants for possession; therefore, plaintiff waited for the same. Hence, there was continuing cause of action. Defendant had failed to offer possession of the plot in question despite repeated requests and kept on assuring that possession would be given in another 6-8 months, therefore, on each and every occasion fresh cause of action arose. Plaintiff had filed the present suit only when in suit for mandatory injunction before Ld. Civil Judge plaintiff was informed by defendant through application under Order VII Rule 11 of CPC that they are having technical difficulty with the development of land and upon this disclosure by defendant plaintiff realized that he will never get the plot, so filed the present suit for recovery of money with interest. Ld. Counsel for plaintiff argued that even otherwise Section 46 of The Indian Contract Act is applicable to present case since there is no time fixed for performance; the contract needs to be performed within a reasonable time. What is reasonable time will depend upon case to case basis. As per agreement, no time of performance was fixed since it was an upcoming future township project of defendants. Plaintiff had waited for 10 years in the hope of getting the plot. In no way plaintiff should be reprimanded for honestly waiting for getting possession of plot after making payment of huge sum of money. Ld. Counsel for plaintiff argued for decree of pre-suit interest from 05/10/2005 till 28/11/2017 submitting that plaintiff is entitled to interest from the date of first payment i.e., 05/10/2005 till realization. Ld. Counsel for plaintiff argued that as per Section 4(2)(c) of The Interest Act, 1978, in case where money or other property is obtained or retained by fraud, the interest is be CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 13 of 47 allowed from the date of the cause of action to the date of institution of the proceedings at such rate as the Court may consider reasonable. It was argued that defendants had taken money from plaintiff by cheating and only through an application of defendant under Order VII Rule 11 CPC before the Court of Ld. Civil Judge, New Delhi, plaintiff came to know that he cannot get the possession of plot as there were certain technical reasons related to development of land. It was also argued that even interest can be granted in equity for causes of action from the date on which certain cause of action arose till the date of institution of proceedings. Ld. Counsel for plaintiff placed reliance upon the cases (i) Dushyant Dalal & Ors. vs Securities and Exchange Board of India, MANU/SC/1239/2017; (ii) Satinder Singh & Ors. vs Amrao Singh & Ors., MANU/SC/0292/1961 and (iii) Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji & Ors., MANU/PR/0017/1937. Ld. Counsel for plaintiff argued that defendants had enjoyed the money of plaintiff illegally and unlawfully on the pretext of giving false hopes of possession and later it was discovered that defendants had cheated/duped plaintiff of his money as they do not have necessary permission related to development of plot. Accordingly, on equity the plaintiff is also entitled for recovery of amount for the amount paid with interest from the period from 05/10/2005 onwards.
14. Ld. Counsel for defendant no. 1 argued that this Court does not have subject matter jurisdiction to try the suit as it is barred by Section 79 of RERA Act since the dispute in question pertains to purchase of plot J-96A by the plaintiff in the project developed CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 14 of 47 by defendant in TDI City, located at Kundli, Sonepat, Haryana. Plaintiff is seeking refund of monies deposited with the defendants, a promoter, on account of alleged failure of or delay caused by defendant in handing over possession of the property. The present dispute falls within the jurisdiction of Authorities established under RERA, in terms of Sections 2,18,31,71 and 79 of RERA Act; so present suit ought to be dismissed. Ld. Counsel for defendant argued that as per terms and conditions of Allotment Letter dated 17/02/2006 executed between the parties, any dispute arising from the said agreement was subject to the exclusive jurisdiction of the Courts at Haryana; so Court at Haryana alone should have the jurisdiction to try the instant suit. No part of cause of action has arisen within the jurisdiction of this Court because cause of action for filing the present suit lies within the jurisdiction of aforesaid courts at Haryana. Subject property is situated in Haryana. The contract between parties pertains to development and consequent handing over of the possession of the property by defendant on payment of sale consideration by plaintiff. The contract was agreed to be performed in Haryana. It is the case of plaintiff that defendant failed to develop and consequently failed to hand over the possession of the property; so alleged breach has arisen in Haryana. No part of cause of action had arisen within the jurisdiction of this Court. Suit property is located in Haryana. Present suit ought to be tried in Haryana where subject property is located. Ld. Counsel for defendant no. 1 argued that as per version of plaintiff in evidence that he never visited the project since the year of booking i.e., in year 2005 and thus, is unaware about the developments in the project, whereas DW1 deposed CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 15 of 47 that project is developed and defendant company has given possession of over 5000 units in the project. Ld. Counsel for defendant no. 1 argued that it is trite law that the jurisdiction to try a suit pertaining to an immovable property must lie with the court within whose jurisdiction the property is situated. Therefore, this Court does not have the jurisdiction to try the present suit. Ld. Counsel for defendant no. 1 argued that plaintiff had slept over his contractual rights whereas the lackadaisical attitude of the plaintiff is clear as after making last payment on 05/09/2009 to defendant; in May, 2016 after passage of over seven years, the plaintiff instituted a suit for mandatory injunction before the Court of Ld. Civil Judge against the defendants and plaint in said civil suit was rejected on 14/07/2017 under Order VII Rule 11 of CPC whereas after passage of over 12 years from the date of booking the plaintiff instituted the present suit in November, 2017 seeking recovery of money from defendants. It is established unambiguously that plaintiff conveniently waited for over 8 years since the last payment and 12 years since the date of booking to institute the present suit for recovery of monies against the defendants. It is the averment of plaintiff in the plaint that it was promised to him by defendant company that the property will be delivered to him in a "short span of time" whereas plaintiff also averred that he always intended to take possession of the property and it was on account of delay on the part of defendant, that the plaintiff had instituted the present suit. Ld. Counsel for defendant no. 1 argued that plaintiff was unable to prove in the trial that he ever communicated in writing with defendant company to enquire, let alone, request for possession of the property. Ld. Counsel for CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 16 of 47 defendant no. 1 argued that accordingly plaintiff had forfeited his right to any relief as prayed in the suit and suit deserves dismissal. Ld. Counsel for defendant no. 1 argued that the contract between parties is based on reciprocal promises and defendant is not bound to perform its contractual obligations since plaintiff is not ready and willing to perform his contractual obligations. Ld. Counsel for defendant no. 1 argued that parties to the lis executed the Advance Registration Form and Allotment Letter whereas plaintiff was under contractual obligation to make payments to the defendant in a timely manner whereas defendant was under obligation to complete the development of the suit property and hand over its possession to the plaintiff. Ld. Counsel for defendant no. 1 argued that defendant no. 1 company was not bound to perform its contractual obligation, unless the plaintiff performed his obligations, whereas defendant no. 1 company performed its contractual obligations but plaintiff failed to perform its obligations. Ld. Counsel for defendant no. 1 argued that as per Clause (a) of Advance Registration Form, defendant no. 1 company alloted the suit property to plaintiff on 17/02/2006 within the promised period of six months from the date of registration. Plaintiff had opted for a Time Linked Payment Schedule, as per Advance Registration Form; so time was essence between the parties and 90% of the payments were to be made by the plaintiff, as per payment schedule within 12 months period from allotment and plaintiff was contractually bound to make the entire payment of EDC charges within 6 months from the date of booking. Allotment of unit was made on 17/02/2006. Plaintiff was contractually obligated to make 90% of the payments by 17/02/2007. Last payment was made by plaintiff CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 17 of 47 on 05/07/2009 i.e., two years beyond the stipulated period. As a result of delay, defendant no. 1 company was compelled to issue demand letters and similarly plaintiff committed delay in paying EDC charges. Plaintiff was in breach of the contract. Since, the plaintiff has acted in breach of his contractual obligations, defendant no. 1 company was discharged from performing its contractual obligations. Accordingly, suit deserves dismissal. Ld. Counsel for defendant no. 1 argued that plaintiff is barred by the doctrine of estoppel to allege any delay or default on part of the defendant company while making booking with defendant no. 1 company. Plaintiff was aware that project of the defendant was of future scheme. It was on this account that no time was fixed for delivery of possession. It was for this reason that parties never agreed for a time-line for delivery of possession of the suit property. Having not done so, plaintiff is now estopped from alleging that defendant has committed delay in handing over the alleged property. As per allotment agreement, plaintiff had agreed that allotment of the property was provisional in nature and subject to any alteration, modification, addition or substitution as conducted by defendant company or directed by the competent authorities. When defendant no. 1 company offered possession of an alternate unit to the plaintiff, plaintiff refused to accept the said offer. Having agreed to terms of allotment agreement, plaintiff is estopped from alleging any delay or default on part of defendant. As per Article 24 of the Schedule of The Limitation Act, 1872, the limitation for filing the present suit expired in year 2012, so suit is barred by limitation. Since plaintiff failed to perform its contractual obligation and committed breach of agreement between parties and for the failure of the plaintiff to CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 18 of 47 perform contact, defendant no. 1 company is entitled to forfeit the earnest money i.e., Rs.6,50,000/-. Ld. Counsel for defendant no. 1 company relied upon the cases (i) Imperia Structures Limited vs Anil Patni & Anr., (2020) 10 SCC 783; (ii) M/s Omaxe Limited vs Mrs. Arun Prabha, Appeal No. 182 of 2019 decided by Haryana Real Estate Appellate Tribunal on 19/12/2019; (iii) Sanju Jain vs TDI Infrastructure Ltd., Complaint No. RERA-PKL-COMP-144-2018 decided on 12/06/2018; (iv) Manoj Suneja vs TDI Infrastructure Pvt. Ltd., Comp No. RERA-PKL-451/2018 decided by Haryana Real Estate Regulatory Authority Panchkula, Haryana on 20/12/2018, submitting the Court is not vested with the subject matter jurisdiction to entertain the present suit. Ld. Counsel for defendant no. 1 relied upon the case of Harshad Chiman Lal Modi vs DLF Universal Ltd. & Anr., (2005) 7 SCC 791 and argued that suit is barred by law and this Court is not vested with territorial jurisdiction. Ld. Counsel for defendant no. 1 relied upon the cases (i) Swastic Gases Private Limited vs Indian Oil Corporation Limited, (2013) 9 SCC 32; (ii) A.V.M. Sales Corporation vs Anuradha Chemical Private Limited, (2012) 2 SCC 315; (iii) Angile Insulations vs Davy Ashmore India Ltd & Anr., (1995) 4 SCC 153 and argued that parties by agreement i.e., allotment letter gave the courts at Haryana exclusive jurisdiction to try any dispute between the parties, so this Court does not have territorial jurisdiction. Ld. Counsel for defendant no. 1 argued that the objection of jurisdiction can be taken at any stage and relied upon the case of Cantonment Board & Anr. vs Church of North India, (2012) 12 SCC 573. Ld. Counsel for defendant no. 1 relied upon the cases of (i) A. Venkata Subbarao & Ors. vs CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 19 of 47 State of Andhara Pradesh etc., (1965) 2 SCR 577; (ii) Standing Conference of Public Enterprise vs BSES Rajdhani Power Limited & Ors., 2013 SCC OnLine Del 224; (iii) SMC Comrade Ltd. vs Narnoli Bullion & Ors., 2019 SCC OnLine Del 11216;
(iv) XS Infosol Pvt. Ltd. vs M/s. GLS Technologies Pvt. Ltd. & Ors., 2018 SCC OnLine Del 6601; (v) Sham Lal Gupta vs Hamco Industries (P) Ltd., 1994 SCC OnLine P&H 477 and argued that under Article 24 of the Schedule of The Limitation Act, 1872, the limitation to file a suit expired in 2012. It was also argued by Ld. Counsel for defendant no. 1 that without prejudice to the arguments on behalf of defendant, in case suit is decreed against the defendant, then defendant is entitled to forfeit the earnest money and reliance was placed upon the case of Satish Batra vs Sudhir Rawal, (2013) 1 SCC 345. Ld. Counsel for defendant no. 1 relied upon the case of Brij Praksh Gupta vs Ashwini Kumar, 2020 SCC OnLine Del 1759 and argued that affidavit by way of evidence of defendant merely elaborated and explained the pleadings taken by the defendant in the written statement with the intention of proving its case and cannot be said to have traversed beyond the pleadings. Ld. Counsel for defendant no. 1 prayed for dismissal of the suit.
15. My issue-wise findings are as under:-
Findings on issue no. 1
1. Whether plaintiff is entitled to recovery of Rs.
54,69,421/- (principle of Rs.2267908 + interest @ 12% p.a) from defendant? OPP.
16. Written statement of defendant no. 1 finds no defence with CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 20 of 47 respect to Court having no territorial jurisdiction to try this case. Application dated 02/08/2021 under Order VII Rule 10 CPC was filed by defendant no. 1 on 04/08/2021 seeking return of plaint alleging this Court does not have territorial jurisdiction to adjudicate the instant lis. Said application was adjudicated vide detailed order dated 24/12/2021 and was dismissed with cost. Defendant no. 1 impugned the order dated 24/12/2021 of this Court in petition under Article 227 of The Constitution of India before Delhi High Court and in petitions (i) CM (M) 216/2022 and (ii) CM (M) 217/2022, vide order dated 10/03/2022, Delhi High Court directed that proceedings before the Trial Court to be continued subject to the orders passed in aforesaid petitions. In above referred order dated 24/12/2021 on application of defendant no. 1 under Order VII Rule 10 CPC following was held by this Court:-
"9. In the plaint plaintiff averred of having invested in the project 'TDI City' at Kundli, Sonipat, Haryana of defendant nos. 1 and 2 through advertisement by showing willingness by applying to purchase plot measuring 250 sq. yards from defendant nos. 1 and 2 through their representatives who had taken Advance Registration Form on 05/10/2005 from plaintiff. With said form plaintiff had given booking amount to defendant nos. 1 and 2, totaling Rs. 6,50,000/- vide two cheques of October, 2015. Subsequent payments were made by plaintiff to defendants on demand. Total sum paid by plaintiff to defendants was Rs. 22,67,908/- and no other amount was demanded by defendants from plaintiff. Final payment of Rs. 2,06,250/- was to be paid by plaintiff to defendants at the time of possession of said property. Defendants failed to offer the possession of said property to plaintiff despite various requests and visits of plaintiff in their office at Kasturba Gandhi Marg, New Delhi-110001 but there was no response from the side of defendant CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 21 of 47 nos. 1 and 2 and officials of defendant nos. 1 and 2 delayed the giving of possession of property and the officials of defendants were unable to give any adequate reason for the delay in handing over the possession. Plaintiff then had filed suit for mandatory injunction before Court of Sh. Nishant Garg, Civil Judge-02, Patiala House Court, New Delhi against defendants, wherein defendant had filed an application under Order VII Rule 11 CPC and the said Court of Civil Judge vide order dated 14/07/2017 rejected the suit of the plaintiff under Order VII Rule 11 (d) of CPC. In said order, it was observed by the Court of Ld. Civil Judge that by mandatory injunction relief, plaintiff was seeking direction to defendant to handover the possession of suit plot and apparently seeking specific performance of contract and by seeking direction to defendants to refund the amount already paid by plaintiff, plaintiff was seeking recovery of money and both these reliefs needed to be separately valued and appropriate court fees to be paid, so the suit so drafted was not maintainable in that form, so the plaint was rejected. Along with suit plaintiff has also filed the copy of Advance Registration Form TDI City dated 05/10/2005 which is on the printed format, blanks had been filled in ink, signed by plaintiff, whereas no term therein incorporates any vesting of territorial jurisdiction with Haryana Courts and the said Advance Registration Form is addressed by plaintiff to defendant no. 2 at Kasturba Gandhi Marg, Connaught Place address. Along with said Advance Registration Form the amount of Rs. 6,50,000/- by two cheques, as aforesaid, was given by plaintiff to defendant. Later thereto the letter of allotment dated 17/02/2006 was unilaterally issued by defendant no. 2 to plaintiff which incorporated the following Clause 11:-
"11. JURISDICTION:
In case of any disputes or controversary arising out of or in connection with the letter of allotment, courts at Haryana will have the jurisdiction."
Even said letter of allotment dated 17/02/2006 bears CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 22 of 47 registered office address of Kasturba Gandhi Marg, New Delhi of defendant no. 2. Plaintiff averred that para no. 2 (c) of application of defendant under Order VII Rule 11 read with Section 151 CPC dated 25/01/2017 before Court of Civil Judge finds mention that plaintiff had paid Rs. 22,74,581/- towards the part sale consideration of the plot allotted to him but the possession of plot could not be handed over to plaintiff due to certain technical reasons related to development of the land, though defendant no. 1 possesses the permissions of developments and title of the land comprising of Plot No. J-96A allotted to plaintiff. Since it came into the notice of plaintiff that the defendants could not give the possession of the allotted plot to him and were enjoying the money of plaintiff, so plaintiff felt cheated and thereafter plaintiff filed suit for recovery of money and interest with cost.
10. In the written statement of defendant no. 1, the tone and tenor of the averments had been as if the lis was filed under the Consumer Protection Act and was before Consumer Forum. Also it had been averred that plaintiff was not consumer and plaint was not maintainable before Consumer Forum under The Consumer Protection Act, 1986. It is pertinent to mention that in the entire written statement no objection/defence of defendant was there with respect to territorial jurisdiction of this Court nor was any claim laid that this Court did not have territorial jurisdiction or Courts at Haryana would have territorial jurisdiction in the subject matter. Also in the written statement there was no whisper that The Real Estate (Regulation and Development) Act, 2016 (in short RERA Act) was applicable to the project in question or the project of defendant no. 1, wherein the subject plot was allotted to plaintiff, was a pending project or not completed for any reasons whatsoever. There is no mention in the written statement of applicant/defendant no. 1 that it was an ongoing project or it was a completed project or the defendant had received part completion certificate. Infact defendant had denied averment of plaint in para 2(G) of reply on CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 23 of 47 merits in written statement wherein defendant no. 1 denied of delay in project. It had been the bald, vague assertion of applicant/ defendant no. 1 in the written statement that plaintiff had defaulted in the performance of his obligations under allotment terms and defaulted in making timely payments towards the installments due in accordance with the terms agreed between the parties. The averments in the written statement are bereft of any pleadings and better particulars as to which payments were defaulted by plaintiff.
11. Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs A.P Agencies, Salem (supra) inter alia held as follows:-
"11. The jurisdiction of the court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors.
12. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the fight sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
...........................................................................
16. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the court. If under the law several courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 24 of 47 policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy.........
...........................................................................
21. From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only ', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius'-expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed."
12. Division Bench of Delhi High Court in the case of Vipul Infrastructure Developers Ltd. & Anr. Vs Rohit Kochhar & Anr.(supra) inter alia held as follows:-
"11. Section 16 is one of the provisions found in the Code of Civil Procedure which deals with territorial jurisdiction of the Courts. It provides that the suits for recovery or partition of immovable property or for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property or for determination of any other right to or interest in immovable property, or for compensation for wrong to immovable property, or for recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The proviso attached to the aforesaid provisions provides that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 25 of 47 voluntarily resides, or carries on business, or personally works for gain."
Also was held therein that the proviso to Section 16 of CPC would be applicable to a case where relief sought for by plaintiff was entirely obtainable through the personal obedience of the defendant i.e., defendant has not at all to go out of the jurisdiction of the Court for the aforesaid purpose.
13. Bombay High Court in the case of B.S.I Limited, Mumbai vs m.v. "CRISTIAN-C & Ors. (supra) inter alia held as follows:-
"5. Therefore, when the stage of filing written statement has been reached, then the only option available to the defendants is to file their written statement raising therein their objection regarding jurisdiction. There is no other stage which gives a right to defendants to take out notice of motion taking objection to jurisdiction. Such an objection can only be raised only now in the written statement and if such an objection is raised then the court can at the time of framing of issues under Order XIV of the Civil Procedure Code which empowers the court to frame and decide the issues relating to the jurisdiction of the court or relating to a bar to the suit created by the law for the time being in force as a preliminary issues. But if the court decides otherwise even these issues can be decided simultaneously along with the other issues framed in the suit. From this provision of Order XIV, Rules 1 and 2 it will be clear that after the pleadings are over, the court has to frame issues, decide whether there are issues of fact and issues of law and thereafter decide whether all the issues are required to be decided at the time of final hearing of the suit or some of them can be decided as a preliminary issue....................."
14. It is the fact of the matter that defendants did not raise any objection as to the place of suing at first instance at the earliest possible opportunity in the written statement and before settlement of issues in accordance with Section 21 (1) of CPC. In terms of law laid in the cases of Sneh Lata Goel vs Pushplata & Ors. (supra), A.B.C. Laminart Pvt. Ltd. & Anr. Vs A.P Agencies (supra), Vipul Infrastructure Developers Ltd. & Anr. Vs Rohit Kochhar & Anr. (supra) and B.S.I Limited, Mumbai vs m.v. "CRISTIAN-C & Ors.
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 26 of 47(supra), after the framing of issues, no objection to the place to suing can be allowed at this stage by this Court when such an objection did not form part of defence of defendant no. 1 in the filed written statement. Facts and circumstances in the case of Swastik Gases Private Limited vs Indian Oil Corporation Limited (supra) are different and distinguishable to the facts and circumstances of the case in hand. Therein was a clause that Courts at Kolkata shall have jurisdiction for which the remedy under Section 11 of The Arbitration and Conciliation Act, 1996 was to be invoked at Kolkata accordingly. Therein was no case of any written statement having been filed by respondent/defendant nor was there any scope for invocation of Section 21 (1) of CPC. Accordingly, the law propounded in the case of Swastik Gases Private Limited vs Indian Oil Corporation Limited (supra) will not help applicant/defendant no. 1 for return of the plaint."
17. No defence was set up in written statement of defendant no. 1 that this Court does not have subject matter jurisdiction to try this suit. In application under Order VII Rule 11 CPC dated 02/08/2021 filed on 04/08/2021 by defendant no. 1, rejection of plaint was prayed for inter alia on the premise that (i) relief claimed by plaintiff is barred under Order II Rule 2 CPC in view of previously instituted suit for mandatory injunction; (ii) there is no cause of action in favour of plaintiff; (iii) before seeking refund of money plaintiff was bound to cancel/seek cancellation of agreement; (iv) suit is barred by Section 79 of RERA Act. Said application of defendant no. 1 was adjudicated vide detailed order dated 24/12/2021 and was dismissed with cost. Similarly said order dated 24/12/2021 was impugned by defendant no. 1 in petition under Article 227 of The Constitution of India before Delhi High Court and above elicited order was passed by Delhi CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 27 of 47 High Court on 10/03/2022. In above referred order dated 24/12/2021 on application of defendant no. 1 under Order VII Rule 11 CPC following was held by this Court:-
"7. In the plaint plaintiff averred of having invested in the project 'TDI City' at Kundli, Sonipat, Haryana of defendant nos. 1 and 2 through advertisement by showing willingness by applying to purchase plot measuring 250 sq. yards from defendant nos. 1 and 2 through their representatives who had taken Advance Registration Form on 05/10/2005 from plaintiff. With said form plaintiff had given booking amount to defendant nos. 1 and 2, totaling Rs. 6,50,000/- vide two cheques of October, 2015. Subsequent payments were made by plaintiff to defendants on demand. Total sum paid by plaintiff to defendants was Rs. 22,67,908/- and no other amount was demanded by defendants from plaintiff. Final payment of Rs. 2,06,250/- was to be paid by plaintiff to defendants at the time of possession of said property. Defendants failed to offer the possession of said property to plaintiff despite various requests and visits of plaintiff in their office at Kasturba Gandhi Marg, New Delhi-110001 but there was no response from the side of defendant nos. 1 and 2 and officials of defendant nos. 1 and 2 delayed the giving of possession of property and the officials of defendants were unable to give any adequate reason for the delay in handing over the possession. Plaintiff then had filed suit for mandatory injunction before Court of Sh. Nishant Garg, Civil Judge-02, Patiala House Court, New Delhi against defendants, wherein defendant had filed an application under Order VII Rule 11 CPC and the said Court of Civil Judge vide order dated 14/07/2017 rejected the suit of the plaintiff under Order VII Rule 11 (d) of CPC. In said order, it was observed by the Court of Ld. Civil Judge that by mandatory injunction relief, plaintiff was seeking direction to defendant to handover the possession of suit plot and apparently seeking specific performance of contract and by seeking direction to defendants to refund the amount already paid by plaintiff, CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 28 of 47 plaintiff was seeking recovery of money and both these reliefs needed to be separately valued and appropriate court fees to be paid, so the suit so drafted was not maintainable in that form, so the plaint was rejected. Along with suit plaintiff has also filed the copy of Advance Registration Form TDI City dated 05/10/2005 which is on the printed format, blanks had been filled in ink, signed by plaintiff, whereas no term therein incorporates any vesting of territorial jurisdiction with Haryana Courts and the said Advance Registration Form is addressed by plaintiff to defendant no. 2 at Kasturba Gandhi Marg, Connaught Place address. Along with said Advance Registration Form the amount of Rs. 6,50,000/- by two cheques, as aforesaid, was given by plaintiff to defendant. Later thereto the letter of allotment dated 17/02/2006 was unilaterally issued by defendant no. 2 to plaintiff which incorporated the following Clause 11:-
"11. JURISDICTION:
In case of any disputes or controversary arising out of or in connection with the letter of allotment, courts at Haryana will have the jurisdiction."
Even said letter of allotment dated 17/02/2006 bears registered office address of Kasturba Gandhi Marg, New Delhi of defendant no. 2. Plaintiff averred that para no. 2 (c) of application of defendant under Order VII Rule 11 read with Section 151 CPC dated 25/01/2017 before Court of Civil Judge finds mention that plaintiff had paid Rs. 22,74,581/- towards the part sale consideration of the plot allotted to him but the possession of plot could not be handed over to plaintiff due to certain technical reasons related to development of the land, though defendant no. 1 possesses the permissions of developments and title of the land comprising of Plot No. J-96A allotted to plaintiff. Since it came into the notice of plaintiff that the defendants could not give the possession of the allotted plot to him and were enjoying the money of plaintiff, so plaintiff felt cheated and thereafter plaintiff filed suit for recovery of money and interest with cost.
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 29 of 478. In the written statement of defendant no. 1, the tone and tenor of the averments had been as if the lis was filed under the Consumer Protection Act and was before Consumer Forum. Also it had been averred that plaintiff was not consumer and plaint was not maintainable before Consumer Forum under The Consumer Protection Act, 1986. It is pertinent to mention that in the entire written statement no objection/defence of defendant was there with respect to territorial jurisdiction of this Court nor was any claim laid that this Court did not have territorial jurisdiction or Courts at Haryana would have territorial jurisdiction in the subject matter. Also in the written statement there was no whisper that The Real Estate (Regulation and Development) Act, 2016 (in short RERA Act) was applicable to the project in question or the project of defendant no. 1, wherein the subject plot was allotted to plaintiff, was a pending project or not completed for any reasons whatsoever. There is no mention in the written statement of applicant/defendant no. 1 that it was an ongoing project or it was a completed project or the defendant had received part completion certificate. In fact defendant had denied averment of plaint in para 2(G) of reply on merits in written statement wherein defendant no. 1 denied of delay in project. It had been the bald, vague assertion of applicant/ defendant no. 1 in the written statement that plaintiff had defaulted in the performance of his obligations under allotment terms and defaulted in making timely payments towards the installments due in accordance with the terms agreed between the parties. The averments in the written statement are bereft of any pleadings and better particulars as to which payments were defaulted by plaintiff.
9. Order VII Rule 11 (a) and (d) of CPC read as under:-
"ORDER VII PLAINT ..................................................................................................
11. Rejection of plaint.-The plaint shall be rejected in the following cases:-CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 30 of 47
(a) where it does not disclose a cause of action;
.........................................................................................
(d) where the suit appears from the statement in the plaint to be barred by any law;
..........................................................................................."
10. For adjudication of the present application under Order VII Rule 11 CPC, the averments contained in the plaint only as germane facts can be looked into and not the pleas taken in the written statement of defendant. Reliance placed upon the law laid in the cases (1) Saleem Bhai vs State of Maharashtra, (2003) 1 SCC 557; (2) Popat and Kotecha Property vs SBI Staff Association, (2005) 7 SCC 510; (3) Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors, (2004) 3 SCC 137 and (4) Srihari Hanumandas Totala vs Hemant Vithal Kamat & Ors (supra).
11. Supreme Court in the case of Srihari Hanumandas Totala vs Hemant Vithal Kamat & Ors (supra) inter alia held as follows:-
"26. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the 'previous suit' is decided,
(ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 31 of 47
(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused."
12. Division Bench of Bombay High Court in the case of Neelkamal Realtors Suburban Pvt Ltd & Anr. vs Union of India & Ors. (supra) inter alia held that the projects already completed are not in any way affected and therefore, no vested or accrued rights are getting affected by RERA.
13. In the case of M/s Rukmini Beverage Pvt. Ltd. vs M/s. Shreeniwas Cotton Mills Ltd. & Ors. (supra); M/s OMAX Limited vs Mrs. Arun Prabha (supra); Emaar MGF Land Ltd. vs Ms. Simmi Sikkha & Anr. (supra), the Real Estate Regulatory authorities concerned had placed reliance upon the law laid by Bombay High Court in the case of Neelkamal Realtors Suburban Pvt Ltd & Anr. vs Union of India & Ors. (supra).
14. Supreme Court in the case of Imperia Structures Limited vs Anil Patni & Anr. (supra) inter alia held that legislature had given choice or discretion to the allottee whether he wishes to initiate appropriate proceedings under the Consumer Protection Act or to file an application under the RERA Act before authorities concerned in case of applicability of RERA Act but Section 79 of RERA Act bars jurisdiction of civil court to entertain any suit or proceeding in respect of any matter which authorities concerned are empowered under the RERA Act.
15. The photocopies of (1) order dated 12/06/2018 in case of Sanju Jain vs TDI Infrastructure Ltd., Complaint No. RERA- PKL-COMP-144-2018 (supra) and (2) order dated 20/12/2018 in case Manoj Suneja vs TDI Infrastructure Pvt. Ltd., Complaint No. RERA/PKL451/2018 dated 20/12/2018 of RERA concerned have been filed by applicant/defendant counsel, which are neither CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 32 of 47 certified copies nor are these of publication in any reliable Journal; whereas even their perusal reveals them to be embodying facts not akin but different and distinguishable to the facts and circumstances of the case in hand. The case in hand relates to allotment of plot no. J-96A, TDI City, Kundli, Sonipat, Haryana and with respect to said plot in the filed written statement in reply on merits to para 2G of plaint, the applicant/ defendant no. 1 categorically denied of any delay in project. Filed written statement of defendant no. 1 finds no mention of any ongoing project or any part completion certificate having been received. Even in the written statement of applicant/ defendant no. 1 there is no mention that the project embodying subject plot was completed or not.
16. In absence of any specific pleading with respect to the project having subject plot in question to be ongoing project, it cannot be inferred that the booking made in year 2005 by plaintiff was with respect to a project, which was an ongoing project in year 2017 when suit was filed, for RERA Act to be applicable. In terms of law laid in the case of Srihari Hanumandas Totala vs Hemant Vithal Kamat & Ors (supra) for adjudication of application under Order VII Rule 11(d) of CPC, as has been stated above, to reject the plaint on the ground that suit is barred by any law, only the averments in the plaint will have to be referred to.
17. For non compliance of mandate of Order VII Rule 2A of CPC for claim of interest, plaint is not liable to be rejected and only in case of decree of suit, the facet of quantum of interest needs to be adjudicated appropriately, as per law. Plaint finds clear averment of alleged incapacitation of defendant no. 1 in delivery of possession of aforesaid subject plot to plaintiff due to technical reasons, elicited above, in the application preferred by defendant no. 1 in earlier suit for mandatory injunction before Ld. Civil Judge in year 2017 itself and resting premise only thereon plaintiff has averred of cause of action having arisen in his favour seeking recovery of CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 33 of 47 money paid to plaintiff with interest and cost as buyer cannot be made to wait for several years for delivery of possession after making all payments called for; whereas plaintiff waited for about 12 years for possession of subject plot, which he never obtained from defendants despite several demands. In the fact of the matter, in the backdrop of the averments in the plaint, elicited above, no case is made out for rejection of the plaint being bereft of cause of action. Also in the former suit, above said, mandatory injunction was claimed, which was without valuing the suit either for specific performance or for recovery of money and payment of court fees thereon. As per law laid in the case of Srihari Hanumandas Totala vs Hemant Vithal Kamat & Ors (supra), the adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, which decision in former suit should be by a court competent to try the subsequent suit; so such a plea will be beyond the scope of Order VII Rule 11 (d) of CPC; whereas also the court of Ld. Civil Judge was not a court competent to try the subsequent suit i.e., the present suit. Also in the fact of the matter, since there is no material placed on record that the project in question was an ongoing project, it cannot be said at present that RERA Act will be applicable and bar of Section 79 of RERA Act to be operative in the fact of matter."
18. Above facets of territorial jurisdiction and subject matter jurisdiction raised by defendant no. 1 in its aforesaid applications were adjudicated vide detailed orders of this Court dated 24/12/2021 which have been impugned by defendant no. 1 in its filed petitions before Delhi High Court which are pending adjudication.
19. It is not the case of defendant no. 1 in pleadings in written statement that RERA Act was applicable to project in question or CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 34 of 47 the project of defendant no. 1, wherein the subject plot was allotted to plaintiff, was a pending project or not completed for any reasons whatsoever. Also there is no mention in written statement of defendant no. 1 that it is an ongoing project or it was completed project or defendant no. 1 had received part completion certificate. In absence of specific pleading in written statement of defendant no. 1 with respect to project having subject plot in question to be ongoing project, in order dated 24/12/2021 of this Court, referred above, it was so held that it cannot be inferred that the booking made in year 2005 by plaintiff was with respect to a project, which was an ongoing project in year 2017 when suit was filed, for RERA Act to be applicable.
20. In this fact of the matter defendant no. 1 cannot be now again permitted to reagitate the facets of (i) territorial jurisdiction and (ii) subject matter jurisdiction, terming this Court not having such jurisdiction; more so when on these facets the petitions, above said of defendant no. 1, are pending adjudication before Delhi High Court.
21. Following are the Articles of the Schedule of The Limitation Act, 1963 relied/pressed by the Counsel for the parties:-
THE SCHEDULE PERIODS OF LIMITATION [See sections 2(j) and 3] ...........................................................................................................
FIRST DIVISION-SUITS ______________________________________________________ Description of Period of Time from which suit limitation period begins to run ______________________________________________________ ...........................................................................................................CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 35 of 47
PART II-SUITS RELATING TO CONTRACTS ...........................................................................................................
24. For money payable by the Three years When the money is defendant to the plaintiff received.
for money received by the defendant, for the plaintiff's use.
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27. For compensation for Three years When the time specified breach of a promise to arrives or the contingency do anything at a specified happens.
time, or upon the happening of a specified contingency.
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55. For compensation for the Three years When the contract is broken breach of any contract, or (where there are successive express or implied not breaches) when the breach herein specially provided in respect of which the suit for. is instituted occurs or (where the breach is continuing) when it ceases.
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22. Facts and circumstances of the case in hand are neither akin nor in any manner similar but are infact different and distinguishable to the facts and circumstances laid in cases (i) A. Venkata Subbarao & Ors. vs State of Andhara Pradesh etc. (supra); (ii) Standing Conference of Public Enterprise vs BSES Rajdhani Power Limited & Ors. (supra); (iii) SMC Comrade Ltd. vs Narnoli Bullion & Ors. (supra); (iv) XS Infosol Pvt. Ltd. vs M/s. GLS Technologies Pvt. Ltd. & Ors. (supra); (v) Sham Lal Gupta vs Hamco Industries (P) Ltd. (supra); relied upon by Counsel for defendants terming claims of plaintiff being barred by limitation. So these are of no help to defendant no. 1 for dismissal/rejection of suit for being barred by limitation. As per the case set up by plaintiff in pleadings and evidence and as discussed above, upon launch of future project of allotment of land in the project TDI City by defendants and on promises and assurances of defendants subject plot was booked by plaintiff with defendant nos. 1 and 2 upon which the Advance CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 36 of 47 Registration Form Mark A was executed between the parties on 05/10/2005 and booking amount of Rs.6,50,000/- was paid in year 2005 by plaintiff to defendants, which is admitted by defendants whereas subsequently till year 2009 plaintiff made payments for booking of said plot to defendants and defendants have admitted of receipt of Rs.22,74,581/- from plaintiff with respect to booking of subject plot and on that facet there is no dispute inter se parties. It has been the case of plaintiff since inception that all through plaintiff had been under the faith and belief upon assurances of defendants that he will receive the promised plot from the defendants and only when in suit for mandatory injunction, copy Ex PW1/3, filed by plaintiff before the Court of Ld. Civil Judge, Patiala House Court, New Delhi, the application Ex PW1/2 under Order VII Rule 11 CPC dated 25/01/2017 was filed by defendant no. 1 in said court of Ld. Civil Judge; from averments made in para 2 therein that plaintiff became aware that possession of subject plot could not be handed over by defendants to plaintiff due to certain technical reasons related to the development of land, as was contended by defendants therein with the averment that though defendant no. 1 possessed permissions of developments and title of land comprising of subject plot alloted to plaintiff. Court of Ld. Civil Judge-02, Patiala House Court, New Delhi in CS 57134/2016, titled Pradeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Ors. vide order dated 14/07/2017, Ex PW1/1 rejected the plaint therein under Order VII Rule 11 (d) of CPC on application Ex PW1/2, above said of defendant no. 1, holding that by said suit for mandatory injunction plaintiff was infact seeking specific performance of the contract for which neither there was any CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 37 of 47 separate valuation for jurisdiction and court fees nor requisite court fees was paid. Also by valuing the suit for mandatory injunction at Rs. 130/- therein, plaintiff by no figment of imagination could have sought the relief for recovery of money from defendants without valuing the suit for recovery of money and paying court fees. Also the present claim of plaintiff in this case was beyond the pecuniary jurisdiction of Court of Ld. Civil Judge. After becoming aware of above elicited averments of defendant no. 1 laid in application Ex PW1/2 under Order VII Rule 11 CPC dated 25/01/2017; plaintiff PW1 as per averments in plaint and deposition in Ex PW1/A realized that though promised, defendants were not in a position to deliver the possession of subject plot promised by them to plaintiff for which they had received aforesaid admitted amounts from plaintiff. Present suit was filed/instituted on 28/11/2017.
23. 10% of the total amount payable for subject plot by plaintiff to defendants as per the contract between the parties to the lis was payable on receipt of possession by plaintiff from defendants. Also accordingly there is no occasion in the fact of matter to hold suit to be barred by limitation by calculating the time to begin to run from last date of payment made by plaintiff in year 2009 to defendants for subject plot. Plaintiff PW1 only became aware that defendants will not be in a position to deliver the possession of subject plot to him by virtue of averment in Ex PW1/2 in the month of January, 2017. Accordingly, the applicable Article in the Schedule of Limitation Act, 1963 is Article 55 of the Schedule of The Limitation Act, 1963. In accordance thereof the present suit has been filed within the CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 38 of 47 period of limitation. Also Supreme Court in case of Meerut Development Authority vs Mukesh Kumar Gupta (supra) inter alia held that when depositor patiently waited for 27 years with the hope that possession of plot will be delivered to him then the claim of such party is not barred by limitation as the cause of action was recurring for non delivery of possession of the plot in question therein.
24. I accordingly find the claim of the plaintiff to be within the period of limitation.
25. In the course of deposition of DW1 Sh. Ritesh Vijhani; Ld. Counsel for plaintiff, in terms of application of plaintiff under Order XVA Rule 6 read with Order XVIII Rule 4, Order XIX Rule 3, Section 151 CPC filed on 16/08/2022 had sought striking off stated part of para no. 3 of Ex DW1/A; para nos. 7,9 to 12 of Ex DW1/A. Ld. Counsel for both parties relied upon the case of Brij Praksh Gupta vs Ashwini Kumar (supra) praying for decision on the objections with the final adjudication.
26. Following are the objected aforesaid parts of para no. 3 of Ex DW1/A; para nos. 7, 9 to 12 of Ex DW1/A:-
"......................................................................................................
3. It is necessary to state that the project 'TDI City-
Kundli', where the Plaintiff made his booking is developed and hundreds of families are residing therein. I say that all the permissions that are necessary for construction and subsequently, completion have been applied/obtained by the Defendant Company. I state that the said project is complete with all for which the competent authorities have CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 39 of 47 granted the Defendant Company part competition certificates. I state that the Defendant Company has offered possession to over 5,250 allottees of the said project and around 3,750 allottees of the said project have executed sale deed with the Defendant Company till 31.03.2022. Thus, I state that the project 'TDI City-Kundli' has been developed to a large extent and there is no reason or basis for the Plaintiff concerns.
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7. I further state that at the time of executing the said agreements, the Plaintiff had knowledge that the project of the Defendant Company was an upcoming scheme, proposed to be launched, and that the layout plans were only tentative in nature and subject to alteration, modification, addition or deleting as directed by the competent authorities. Thus, the Plaintiff was aware that the allotment of the plot was only provisional in nature and could be altered at the time of possession.
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9. I state that after conveniently waiting for over 10 years since date of allotment and with the intention to reap the benefits of interest accumulated, on 11.05.2016 the Plaintiff instituted a frivolous and vexatious Civil Suit bearing no. Civ SCJ No. 57134 of 2016 before Ld. Sr. Civil Judge, Patiala House Courts, New Delhi, praying for mandatory injunctions against the Defendant Company or in alternate, refund of monies. A copy of the said Civil Suit is exhibited as Exhibit PW-1/3. I state that objecting the maintainability of the said Civil Suit, the Defendant Company filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. A copy of the said Application is exhibited as Exhibit PW-1/2. I state that vide order dated 14.07.2017, the Ld. Sr. Civil Judge rejected the said Civil Suit under Order VII Rule 11. A copy of the order dated 14.07.2017 is exhibited as Exhibit PW-1/1.CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 40 of 47
10. I state that while rejecting the earlier suit of the Plaintiff the Ld. Sr. Civil Judge did not grant liberty to the Plaintiff to institute a fresh suit seeking relief of Refund/Recovery of Monies. I further state that as per the records available with the Defendant Company, the Plaintiff did not impugn the order dated 14.07.2017, which eventually became the decree of the said Ld Court and attained finality.
11. I state that despite the above, on 28.11.2017, the Plaintiff filed the instant Suit praying for the identical relief as stated in Para No. 4 of Prayer Clause of the earlier suit i.e. Recovery of Money.
12. I state that the present suit is frivolous, vexatious and merits to be dismissed. The instant suit is an attempt of the Plaintiff to satiate his avaricious needs at the cost of the goodwill and reputation of the Defendant Company. I state that the transaction between the parties is still in subsistence and that the contract/agreement between the parties has not been terminated. I further state that the reason that the Plaintiff is not in possession of the property he booked is because of his own defaults. "
27. It is objection of the plaintiff through Counsel that aforesaid parts of affidavit of Ex DW1/A are beyond pleadings in written statement of defendants and in no manner resemble or remotely relate to pleadings in written statement and need to be struck off.
28. Ld. Counsel for defendants argued that the averments in the affidavit are mere elaboration and explained the pleas taken in the written statement and not a new case or plea or ground set CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 41 of 47 up by defendants in written statement and objections of plaintiff are frivolous, vexatious and ought to be rejected. Ld. Counsel for defendant no. 1 argued that contents of para no. 7 are based on Advance Registration Form and allotment letter executed between parties to lis whereas contents of para nos. 9 to 12 are matter of record and within personal knowledge of DW1 and based on information derived by DW1 from records maintained by defendants.
29. Elicited facts in quoted objected paras of Ex DW1/A inter alia include the factual narration of defendant company having offered possession to over 5250 allottees of said project and around 3750 allottees of said project having executed the sale deed with the defendant company and assertion of fact that project 'TDI City-Kundli' having been developed to large extent. None of these facts find mention in the pleadings of defendant no. 1 in the written statement. Facts in para 8 of Ex DW1/A with respect to alleged default of plaintiff in making payments towards EDC and IDC, compelling defendants company to issue reminders/demands to the plaintiff; find no mention in the written statement of defendant no. 1, whereas defendant no. 1 did not file any reminders/demand letters sent to plaintiff. Accordingly, aforesaid facts by no figment of imagination can be considered as mere elaboration or explanation of pleas taken in defence in written statement of defendant no. 1. Accordingly, these above elicited facts put forth in Ex DW1/A are struck off from the evidence affidavit Ex DW1/A, in terms of law laid in case of Brij Praksh Gupta vs Ashwini Kumar (supra).
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 42 of 4730. In elicited para no. 12 of Ex DW1/A it is own version of DW1 that transaction is still in subsistence and the contract/agreement between the parties has not been terminated. If that is so, how can defendant no 1 cry hoarse of suit being barred by limitation? Fact remains that at no point of time defendants ever offered possession of subject plot to plaintiff nor they ever offered in writing possession of alternate plot to plaintiff; whereas prior to filing of application Ex PW1/2 under Order VII Rule 11 of CPC dated 25/01/2017 before Court of Ld. Civil Judge at no point of time defendants ever put forth any impediment in their way of delivery of possession of subject plot to plaintiff. Plaintiff PW1 testified of having only got repeated assurances from defendants and not the possession of subject plot. Should plaintiff wait till eternity? Of course not. Admitted case of defendant no. 1 is that plaintiff paid total sum of Rs.22,74,581/- for obtaining possession of subject plot to defendants and last payment was made in year 2009 whereas 10% of the agreed sum of consideration was payable on the date of receipt of possession of subject plot from defendants by plaintiff. In the defendants evidence, no document was proved by DW1 for defendant company to prove of receipt of payments by defendants without prejudice to their rights or having issued any letter/ communication to plaintiff for any delay in payment or invoking any clause of the contract with respect to delay in making any payments. It is also fact of the matter that defendants did not invoke any clause for forfeiture of any deposit amount by plaintiff for subject plot. Before filing/institution of the suit and even during pendency of the suit defendants did not serve any notice upon plaintiff for forfeiture of any deposit amount of CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 43 of 47 plaintiff with defendants for subject plot. Plea of defendants for forfeiture of earnest money of plaintiff for subject plot is bereft of merits and is not maintainable. As has been above said that mere filing of suit for mandatory injunction before Court of Ld. Civil Judge by plaintiff seeking direction for delivery of possession of subject plot by defendants to plaintiff and its consequent rejection of plaint in no manner can be made a basis for dismissal of the present suit seeking recovery of money paid with interest.
31. It is also fact of the matter that before institution of the suit plaintiff never served any notice upon defendants for demand of any interest for the amounts deposited by him with defendants for any claim of interest on said sum. Accordingly, the claim of plaintiff for interest for pre suit period has no basis, even as per Section 4(2)(c) of The Interest Act, 1978, since the present suit has been instituted on the premise that plaintiff became aware only on filing of application by defendant no. 1 in January, 2017 before Court of Ld. Civil Judge that it cannot deliver possession of subject plot to plaintiff as there were certain technical reasons related to development of land; accordingly thereafter cause of action arose for plaintiff to seek recovery of monies paid with interest. Cases (i) Dushyant Dalal & Ors. vs Securities and Exchange Board of India (supra); (ii) Satinder Singh & Ors. vs Amrao Singh & Ors. (supra) and (iii) Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji & Ors. (supra); embody facts and circumstances entirely different and distinguishable to facts and circumstances of case in hand; so they are of no help to plaintiff for award of pre-suit period interest claimed.
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 44 of 4732. Plaintiff has claimed pendente-lite and future interest @ 12% per annum.
33. Order VII Rule 2A of Code of Civil Procedure (hereinafter referred as CPC) in respect of a commercial dispute of a specified value was brought in by way of amendment in respect of the requirements of pleadings where interest has been claimed by the plaintiff but the perusal of the plaint reveals that no case has been set up by the plaintiff in accordance with Order VII Rule 2A of CPC.
34. Under Section 34 of CPC it is provided that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there in no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions.
35. Ld. Counsel for plaintiff failed to show that contract/agreement inter se parties embodies any clause for rate of interest in case of refund of deposits of plaintiff with defendants.
36. It has been established that it has been commercial transaction. In my opinion, keeping in view the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions, it would be expedient in the interest of justice and accordingly plaintiff is held entitled for pendente-
CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 45 of 47lite and future interest @ 9% per annum.
37. In view of foregoing discussions, plaintiff is held entitled for recovery of Rs.22,74,581/- with interest @ 9% from the date of filing of the suit till the date of decree and from the date of decree till the realization of the decreetal amount payable by defendants, jointly and severally. Issue no. 1 is answered accordingly Findings on issue no. 2
2. Whether plaintiff is entitled to cost of suit? OPP.
38. Plaintiff has also claimed the cost of the suit. Keeping in view Sections 35 and 35A of CPC, it has been established that defendants failed to pay the amount despite service of summons and during pendency of the suit. Therefore, defendants themselves are responsible for the cost of the litigation to the extent of court fee proportionate to principal amount of Rs.22,74,581/- and lawyers fee etc. as per rules. Plaintiff is accordingly held entitled for cost of litigation against the defendants, jointly and severally. Issue no. 2 is answered accordingly.
Relief
39. In view of the above discussions, suit for recovery is decreed in favour of the plaintiff and against the defendants, jointly and severally, for an amount of Rs.22,74,581/- along with interest @ 9% per annum from the date of filing of the suit till the date of decree and from the date of decree till the realization CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 46 of 47 of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendants, jointly and severally, to the extent of court fee payable on amount of Rs.22,74,581/- and advocate's fee as per rules.
Decree sheet be prepared accordingly.
File be consigned to the record room
Digitally signed by
GURVINDER PAL
GURVINDER SINGH
PAL SINGH Date: 2023.05.17
10:17:06 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
On 17th May, 2023. Patiala House Court, New Delhi.
(DK) CS (Comm.) No. 606/2020 Pardeep Garg vs M/s TDI Infrastructure Pvt. Ltd. & Anr. Page 47 of 47