Delhi District Court
Purshotam Kumar Dhawan vs Revanta Multi State Cghs Ltd on 3 January, 2025
IN THE COURT OF MS. SHILPI M JAIN, DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ 610/2020
DLSW01-008646-2020
IN THE MATTER OF :
SH. PURSHOTAM KUMAR DHAWAN
S/O SH. KRISHAN LAL DHAWAN
R/O HOUSE NO.181, SECTOR-7,
KARNAL, HARYANA -132001. .....Plaintiff
Versus
REVANTA MULTI STATE CGHS LTD.
THROUGH ITS PRESIDENT
REGD. 16/14,17/2
MAJOR BHOLA ENCLAVE, POCHANPUR,
NEAR RAMA KRISHNA APARTMENTS,
SECTOR-23, DWARKA, NEW DELHI ....Defendant
Date of institution of the suit : 27.11.2020
Final Arguments heard on : 03.01.2025
Date of Judgment : 03.01.2025
SUIT FOR RECOVERY OF RS.13,17,500/- (RUPEESS
THIRTEEN LAKHS SEVENTEEN THOUSAND
HUNDRED ONLY)
EX-PARTE JUDGMENT :
1. Initially, plaintiff filed the present suit under Order XXXVII
CPC for recovery of Rs. 13,17,500/- (Rupees Thirteen Lakhs seventeen
Thousand Five Hundred only) with pendente lite and future interest and
CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 1 of 10
thereafter, the suit was converted into an ordinary civil suit.
FACTUAL BACKGROUND
2. In the plaint, it is averred by the plaintiff that the defendant is a multi-state CGHS society, namely Revanta Multi CGHS Society Ltd., which is registered under the Cooperative Societies Act, 1912 and Multi - State Cooperative Societies Act, 2002.
3. It is further averred that, on 02.03.2017, the plaintiff applied to purchase the membership of the Defendant CGHS society, namely Revanta Multi CGHS Society Ltd., whereby the defendant through its then president, namely Satender Maan, promised to deliver a 3 BHK flat admeasuring 1475 square feet at the rate of Rs. 1350 per square feet for the land cost. It is further averred that, the said application for membership was duly accepted by the defendant on 06.03.2017 and subsequently a membership number SR51189 was accordingly allotted to the plaintiff and a letter dated 06.03.2017 was also issued by the defendant.
4. It is further averred that, the plaintiff has time to time made several payments for purchase of the above mentioned membership as per demands and agreement. The details of the payment are as follows:
S.No. Mode of Cheque Cheque Drawn On Net Amount
Payment No. Date
1. Cheque 903667 02.03.2017 HDFC Bank 10,900
2. Cheque 551926 02.03.2017 HDFC Bank 50,000
3. Cheque 551927 11.03.2017 HDFC Bank 2,00,000
4. Cheque 551928 20.03.2017 HDFC Bank 2,13,750
5. Cheque 551929 29.03.2017 HDFC Bank 2,00,000
CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 2 of 10
6. Cheque 551930 15.05.2017 HDFC Bank 2,63,750
7. Cheque 000001 10.06.2017 HDFC Bank 2,00,000
8. Cheque 227717 30.05.2017 HDFC Bank 2,00,000
TOTAL 13,38,400
5. It is averred that, the said flat was supposed to be completed and delivered to the plaintiff by January, 2021. However, until January 2020, no construction work had begun at the sight of construction and it came to the knowledge of the plaintiff that the land which the defendant through its representative claimed to be allotted to them for construction of the societies was not even allotted to the defendant. It is further averred that, the plaintiff complained to the defendant through its representative including the President, Treasurer and Secretary about the delay, however, the defendant through its representative, kept on making excuses that they are about to get clearance from the government department to begin the construction work but in vain. As such, the plaintiff was left with no other option but to surrender the membership and take back the refund as there was no possibility that the society being completed anytime soon. It is further averred that, the plaintiff entered into a settlement agreement/memorandum of understanding with the defendant through its president on 03.02.2020 at New Delhi whereby defendant through its president have duly acknowledge the receipt of Rs. 13,27,500/- as land cost and agreed to refund the same to the plaintiff after deducting Rs.10,000/-. It is further averred that, the said refund was supposed to be paid in five equal installments of Rs.2,63,500/- on the last date of every month beginning from February, 2020 to June, 2020, however, the defendant defaulted with all the installments and did not make even a single payment as per the CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 3 of 10 settlement. It is further averred that, plaintiff requested the defendant several times through telephonic message for release of the said outstanding payment, but the defendant have always been intentionally avoiding the same on one pretext or other other and so far, have not paid even a single penny out of the said outstanding undisputed amount.
6. It is further averred that the plaintiff sent a legal notice dated 18.09.2020 to the defendant on 18.09.2020 for recovery of payment and the said legal notice was duly delivered at the registered address of the defendant on 21.09.2020. However, the plaintiff has not received any reply to the said legal notice. It is further averred that, the defendant may be directed to pay a sum of Rs. 13,17,500/- to the plaintiff alongwith interest from the due date, pendent lite and future interest @ 24% per annum till the date of realisation.
WRITTEN STATEMENT FILED BY THE DEFENDANT
7. Summons of the suit were issued to defendant and after entering appearance, Written Statement has been filed on behalf of the defendant wherein it has been stated that the plaintiff has no locus-standi to file the present suit against the defendant before this court, therefore the plaintiff is not entitled to get any discretionary relief from this court. It is further stated that, the suit of the plaintiff is based on totally false pretext just to extract money from them on false and frivolous grounds. It is further averred that, it is un-disputed that the defendant is a society registered with the Multi State Cooperative Societies Act, 2002. It is further stated that, the recovery of amount is sought mainly on the ground that till date, even no construction has not been initiated as the alleged proposed land of the said CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 4 of 10 society of the defendant. It is submitted that the main reason is that the Defendant had not been returned with any land as such by the concern department/authorities under the scheme which was to be returned by the DDA/Ministry of Urban Development. It is further stated that, the defendant cannot be held liable for a fault which had not been done by the society. It is further stated that, the present suit is not maintainable as the society is registered under Multi State Cooperative Societies Act, 2002, per se hit by section 84 and Section 115 of Multi State Cooperative Societies Act, 2002 so. the present suit may be rejected on this ground as the society of the defendant is registered with Multi State Cooperative Societies Act, 2002 and the plaintiff may pursue his remedy before an appropriate forum.
8. It is further submitted that there is neither intending buyer nor defendant has entered into any sale agreement of the property which was to be developed and the land is still to be returned to the defendant. Therefore, the defendant herein cannot apply for the registration as the legal entitlement of the land is still not with the defendant as per the Land Pooling Policy. It is further submitted that the transaction between the Plaintiff and the Defendant is based on membership of society and the present proceedings are barred under law as firstly for the reason that the provisions of the act in general are not applicable on the present transaction as evident from the terms of the application form as the transaction was purely of membership under society and the remedy lies before the Central Registrar of Cooperative Society, secondly, the act has its own procedure of law, therefore, as per the act, remedy lies under the Arbitration & Conciliation Act, hence the present proceedings be dismissed from the present court. It is further submitted that the plaintiff for investment CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 5 of 10 purpose being aware of the fact that the proposed project is provisional & tentative, they were further aware that the Defendant have not been returned the land by the DDA/Ministry of Urban Development and the same is to be provided by the appropriate authority under the "Land Pooling Policy" and the obligations and liabilities of both the parties are defined under the cooperative society act, and since the land has not been returned by the appropriate authority to the Society, till date and the adjudication of the same lies in the Central Registrar of Cooperative Society, per se being competent to try and adjudicate the matter of contractual obligation and therefore, this Hon'ble Court possess jurisdiction under the Civil Procedure Code, is not competent to try and adjudicate such matter under law, thus, the present Plaint is not maintainable.
9. It is further stated that that the Plaintiff is a speculative investor who invested in a society and became member being aware of the pros and cons of the investment and were duly aware of the requirement and obligations under the law and their rights and interest are duly covered and protected under the Multi State Cooperative Societies Act, 2002 and Central Registrar of Cooperative Society, for which reason, they should availed the remedy available with them under the law by approaching the authority which have jurisdiction and hence, the present proceedings be dismissed. It is further stated that the delay in completion of the scheme is due to force majeure reasons, which is beyond the control of defendant as the defendant society is totally dependent upon the Progressive actions from the competent authority. It is further stated that the present suit contains incorrect & misconceived submissions and has been filed by the plaintiffs just to harass the Defendants in order to obtain wrongful financial CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 6 of 10 gain. It is submitted that the plaintiffs have pleaded incongruent averments and have based the present suit on false surmises and vague conjectures and have tried to portray a distorted and incorrect picture of the real facts of the present case in an attempt to mislead this Hon'ble Court.
10. It is further submitted that, plaintiff falls within the definition of "Member" and does not deserve compensation or refund under the Order 37CPC, as he is merely investors in the real estate for earning profits from the transaction which is commercial in nature and in case, he is aggrieved with the transaction the remedy lies as per the law of Contract and the said commercial relationship is also duly acknowledged by them which is evident from the various emails annexed by the Plaintiff with the suit. Hence, present suit is liable to be dismissed with exemplary cost.
11. Replication to the written statement of defendant was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
12. On the basis of pleadings of parties, following issues were framed by the present court vide order dated 26.07.2024:
i. Whether plaintiff is entitled for decree of Rs. 13,17,500/- as prayed for ? OPP.
ii. Whether plaintiff is entitled for pendentelite and future interest on decretal amount, if any and at what rate of interest? OPP. iii. Whether plaintiff is entitled for the cost of the suit? OPP.
iv. Relief. CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 7 of 10
13. As none has appeared on behalf of defendant since 06.10.2023, vide order dated 26.07.2024, defendant was proceeded ex-
parte and matter was fixed or ex-parte evidence.
EVIDENCE GIVEN BY THE PLAINTIFF
14. The plaintiff in order to prove his case examined himself as PW-1 and tendered his affidavit in evidence is Ex.PW1/A. The witness proved the following documents:-
Sl. Particulars of Documents Exhibits/Mark
No.
1. Copy of Welcome letter issued by Mark A
defendant dated 06.03.2017
2. Copies of receipts issued by defendant Mark B (colly)
for payment
3. Original copy of settlement agreement Ex.PW1/1
dated 03.02.2020 between plaintiff and
defendant
4. Original copy of NOC given in the form Ex.PW1/2
of indemnity bond dated 24.01.2020 (OSR)
executed by plaintiff
5. Original copy of legal notice dated Ex.PW1/3
18.09.2020 sent to the defendant
6. Original postal receipts alongwith Ex.PW1/4
tracking report (colly)
15. Thereafter, plaintiff's evidence was closed.
16. Heard. Record perused.
CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 8 of 10
17. PW1 in his examination-in-chief through affidavit Ex.PW1/A has deposed on line of averments made in the plaint mentioned above. He inter-alia proved on record Copy of Welcome letter issued by defendant dated 06.03.2017 which is Mark A, Copies of receipts issued by defendant for payment which are Mark B (colly.), Original copy of settlement agreement dated 03.02.2020 between plaintiff and defendant Ex.PW1/1, Original copy of NOC given in the form of indemnity bond dated 24.01.2020 executed by plaintiff which is Ex.PW1/2 (OSR), Original copy of legal notice dated 18.09.2020 sent to the defendant which is Ex.PW1/3 and Original postal receipts alongwith tracking report Ex.PW1/4 (colly). There is no cross-examination of PW1. As such, the testimony of PW-1 and the documents proved by him has remained unrebutted.
18. As mentioned above, vide order dated 26.07.2024, defendant was proceeded ex-parte and therefore, there was no occasion for him to lead defendant's evidence.
19. It is well settled law that, even in case of ex parte proceedings, Trial Court is bound to determine the claim of the plaintiff as per procedure of law. Record reveals that, defendant was regularly appearing before this court until dismissal of his application u/o VII Rule 11 CPC. In said application u/o VII Rule 11 CPC, defendant raised objection u/s 84 r/w Sec. 115 of Multi State Cooperative Society Act, 2002 but, same was dismissed vide order dated 08.11.2023 by this court thereby holding that, in terms of MOU dt. 03.02.2020, defendant relaxed general rules laid down in the by- laws and agreed to refund land cost of Rs. 13,17,500/- and issued five equal installments. In said order, this court also adjudicated its jurisdiction and CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 9 of 10 limitation under Article 137 of Limitation Act.
20. In view of unrebutted testimony of PW1, duly corroborated by documents on record, the plaintiff is held entitled to a money decree of Rs. 13,17,500/- (Rupees Thirteen Lakhs seventeen Thousand Five Hundred only). The rate of interest @24% per annum, as claimed by plaintiff, is on higher side. In the facts and circumstances of the case, plaintiff is awarded pende lite and future simple interest @ 6% per annum.
CONCLUSION
21. In view of the foregoing discussions, the suit of the plaintiff is allowed. The plaintiff is held entitled to a money decree of Rs. 13,17,500/- (Rupees Thirteen Lakhs seventeen Thousand Five Hundred only) with pendente lite and future interest @ 6 % p.a. from the date of institution of the suit till the realization of the amount against the defendant. Cost of the suit is also awarded to the plaintiff.
22. Decree sheet be prepared accordingly and file be consigned to Records after due compliance. Digitally SHILPI signed by SHILPI M JAIN M Date:
2025.01.03 Announced in open court JAIN 16:17:26 +0530 on 03.01.2025 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi CS DJ ADJ 610/20 Purshotam Kumar Dhawan Vs. Revanta Multi State CGHS Ltd. Page no. 10 of 10