Delhi District Court
Geetika Kapoor vs M/S Arun Dev Builders on 12 August, 2014
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IN THE COURT OF SHRI SIDHARTH SHARMA : ADDITIONAL DISTIRCT
JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No.43/13
In the matter of :
Geetika Kapoor .......Plaintiff
Versus
M/s Arun Dev Builders ........Defendant
12.08.2014
ORDER :
Vide this order, I shall dispose off the application for leave to defend filed by the defendant.
BRIEF FACTS ARE AS UNDER :
2 The plaintiff has filed the present suit under the provisions order 37 CPC through her Power of Attorney, Sh. V.K. Kapoor. It is the case of the plaintiff that defendant company is in the business of real estate and in the year 2007 they advertised their project regarding development of a colony at Shahpura, Rajasthan within two years' time and offered plots of various sizes to general public. The plaintiff after going through the advertisement expressed her desire to invest money in the said project and applied for a plot ad Contd....1 of 12 : 2 :
measuring 200 sq. yards which was duly acknowledged by the defendant vide registration No.15591 dated 24.07.2007. It was assured by the defendant that said project had commenced and the possession shall be handed over to her by the year 2009. Thereafter, one of the executives of the defendant contacted the plaintiff in September, 2007 and informed that there is another project of the defendant at Bhiwadi, Rajasthan which would provide her better returns than that of Shahpura, Rajasthan. The plaintiff thereafter made another investment for a flat ad measuring 610 sq. feet on 22.09.2007 vide registration No. 60810 in the Bhiwadi, Rajasthan project.
3 It is further the case of the plaintiff that by the year 2009 the plaintiff had invested a sum of Rs.3.32 lacs in Shahpura, Rajasthan project.
However, as Shahpura, Rajasthan project was not completed by the defendant in time, therefore, defendant requested the plaintiff to transfer the said amount invested in Shahpura, Rajasthan project to Bhiwadi, Rajasthan project as the project at Bihwadi, Rajasthan was nearing completion and there were chances of better returns from the investment from Bhiwadi, Rajasthan project. Thereafter, the plaintiff agreed to shift / transfer her investment from Shahpura, Rajasthan project to Bhiwadi, Rajasthan project and after completing the necessary formalities and documentation, the defendant issued a fresh receipt bearing No. 64834 dated 20.07.2010 and transferred the sum of Rs.3.32 lacs in Bihwadi, Rajasthan project from Shahpura, Rajasthan project. By the time of Contd....2 of 12 : 3 :
above transfer in July, 2010, the payment had already made payment of Rs.2.35 lacs towards Bhiwadi, Rajasthan project.
4 It is further the case of the plaintiff that when she requested the defendant to get her site of the project inspected at Bhiwadi, Rajasthan project.
In January 2011 she was taken to the site and was shocked to see that there was no construction work at the site and only a sample flat was existing which was being used as company office. When she enquired about the remaining construction / plots, she was informed by employee that possession of the entire site was not handed over to the defendant and on that account construction could not continue. Thereafter, the plaintiff approached the office of the defendant and sought refund after cancelling her registration at Bhiwani, Rajasthan project. The defendant asked to apply for cancellation and submit all the original receipts which were issued by the defendant to the plaintiff at the time of receipt of cash / cheque. The details of the original receipts are as follows :
SL. NO. Receipt No. Dated Amount paid
1 DC/BWD/60810/1/1983 24.07.2007 60,000/
2 DC/BWD/60810/2/2584 17.11.2007 10,000/
3 DC/BWD/60810/3/5630 29.01.2008 15,000/
4 DC/BWD/60810/4/13692 30.05.2008 20,000/
Contd....3 of 12
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5 DC/BWD/60810/5/28287 04.11.2008 60,000/
6 DC/BWD/60810/6/28288 04.11.2008 30,000/
7 DC/BWD/60810/7/38169 06.11.2008 15,000/
8 DC/BWD/60810/8/48843 12.09.2009 25,000/
9 DC/BWD/60810/9/64834 20.07.2010 3,32,000/
TOTAL 5,67,000/
5 The plaintiff has relied upon clause 5 of the allotment application
which is as follows :
"5 I agree that I accept 9% per annum
interest against my money if the company fails to return my money within six months and I request that my money may be given to me by way of an account payee cheque in the name of 'GEETIKA KAPOOR'".
6 It is further case of the plaintiff that she made the said application on 02.02.11, however, defendant did not return the money even after one year. Since the defendant failed to pay the said amount, the plaintiff issued a legal notice dated 21.11.2011 which duly served on the defendant. However, despite service of legal notice, the defendant did not return the money. Hence, the present suit.
7 The defendant was served with the summons of the suit U/o Contd....4 of 12 : 5 :
XXXVII CPC and filed their appearance on 23.08.2012. Thereafter, summons for judgment were issued and the defendants filed the present application for leave to defend along with an application U/s 5 of the Limitation Act for condonation of delay.
8 Before proceeding on merits, I propose to deal with the application U/s 5 of Limitation Act. For the reasons stated in the application, I allow the same and the delay in filing the application for leave to defend is condoned. 9 In the leave to defend application, various grounds have been taken by the defendant. The main ground is that the suit is barred by limitation as the entire money for allotment was paid in the year 2007 and the suit has been filed in the year 2012 and hence suit is clearly barred by limitation beyond period of three years. The other ground taken is that the suit is not maintainable as only because of delay in possession on part of defendant, the plaintiff is not entitled to recover the amount already invested by the defendant in the said project. The plaintiff should have gone for the remedy of specific performance for delivery of possession. It is further the case of the defendant that as the entire cost has not been paid and without paying the balance amount, the plaintiff cannot file the present suit. It was further case of the defendant that present suit is not covered under the provisions of Order 37 CPC. Lastly, it was contended by the defendant that the suit property is in Bhiwadi, Rajasthan and, Contd....5 of 12 : 6 :
therefore, the this court does not have territorial jurisdiction.
10 In reply to the leave to defend application, it was stated that the application is liable to dismissed as frivolous, false and moonshine defence has been raised and no triable issue has been raised. It was stated that defendant has not denied that they had advertised project and upon receiving duly complete application, the registration form and receiving money from the plaintiff, they had promised allotment of the plot within stipulated time period. It was further stated that suit is not barred by limitation as admittedly last payment was made vide receipt No. DC/BWD/60810/9/64834 dated 20.07.2011. Even otherwise, the transfer letter dated 12.07.2010 submitted by the plaintiff has been duly acknowledged by the defendant on 12.07.2010 for a sum of Rs. 3,32,000/. Since the defendant was unable to complete its project, the plaintiff filed an application for cancellation and refund of money dated 01.02.2011 which was duly acknowledged by the defendant on 02.02.2011. The said application also finds mention receipt No. DC/BWD/60810/9/64834 dated 20.07.2011 that has been acknowledged by the defendant on 02.02.2011. The plaintiff has relied upon clause 4 of the application for allotment which states as under :
"4. In case the company is not in a position of allotting a unit within a period of 36 months from the date of registration, we shall have the right to ask for the withdrawal of the money by giving 30 days notice."
Contd....6 of 12 : 7 :
11 It is the case of the plaintiff that as the plot was not allotted within 36 months of registration, she had right of refund. It is further stated that suit was based upon provision of Order 37 CPC as the application for allotment was given to the plaintiff which was duly filled and money was given by way of cheque which has been duly admitted and acknowledged by the defendant and hence a written contract is there between the parties, and therefore, the suit is maintainable under the provisions of Order 37 CPC. It was further stated that defendant has corporate office in Delhi and all the money was paid at this office and the allotment form was also given by the defendant and received thereafter at the corporate office at Delhi and therefore, the Delhi Court has jurisdiction. 12 At the outset, it may be mentioned here that the principles for grant of leave to defend have been laid down by Hon'ble Supreme Court in the case of Mechalec Engineers and Manufacturers Vs. Basis Equipment Corporation, AIR 1977 SC 577, it has been held that the question of granting leave to defend has to be considered in the light of following principles :
4. (a) If the defendant satisfContdies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.5.
6. (b) If the defendant raised a triable issue Contd....7 of 12 : 8 :
including that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
7.
8. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a Contdstate of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
9.
10. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then Contdordinary the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
11.
12. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinary the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Contd....8 of 12 : 9 :
Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.
13 I have heard ld. Counsels for both the parties at length and have carefully gone through the material on record.
14 In my opinion, the defence raised by the defendant is moonshine and sham and is afterthought to wriggle out of the contract. It was held in the similar circumstances in Piyush Colonisers Pvt. Ltd. Vs. Swami Nath Shanker by Hon'ble Mr. Justice S.N. Dhingra, Delhi High Court that in a case where the respondent had taken two plots and paid certain amount by cheque and filled the registration form and when respondent did not hear from the petitioner about allotment for a considerable time, he filed the suit U/o 37 CPC. It was held that contention of the petitioner that suit was not maintainable U/o 37 CPC must fail. The suit U/o 37 CPC can be based on a written contract as respondent had relied upon written documents executed between the parties. There is a contract by nature of registration form where receipt of the amount is admitted by the petitioner. It was held that amount by way of .cheque is admitted, the suit is squarely covered under order 37 CPC as the suit was based upon written contract entered between the parties. Since registration form supplied by the petitioner was filled by the respondent and accepted by the Contd....9 of 12 : 10 :
petitioner and money was taken and there is acceptance on the part of the petitioner, a written contract between the parties got concluded and suit is maintainable under provisions of Order XXXVII CPC.
The plaintiff has relied upon judgment titled Sushila Mehta Vs. Bansi Lal Arora, ILR (1982) Delhi 320; wherein it was held that "payment of application money for shares in a proposed company and its acceptance, constitute a written contract." and suit is maintainable under Order XXXVII CPC on basis of these documents.
The plaintiff has further relied upon judgment titled Kiranjit Singh Vs. Madan Lal Khanna, 53 (1994) DLT 86; wherein it was held that "From these receipts it is clear that these are in the nature of written contract and a suit to recover the liquidated demand in money payable by the defendant on the basis of these receipts is maintainable under Order 37 of the Code. The view I am taking is supported by a judgment of this Court in Smt. Sushila Mehta Vs. Bansi Lal Arora, ILR (1982) 1 Delhi 320."
The plaintiff has relied upon judgment titled Prahlad Swaroop Aggarwal Vs. Baldev Singh, 190 (2012) DLT 776; wherein it was held that "
In a judgment of a Bench of this Court reported in Smt. Sushila Mehta Vs. Bansi Lal Arora, ILR (1982) 1 Delhi 320, this aspect had come up for Contd....10 of 12 : 11 :
consideration and it was noted that the payment by the plaintiff as application money and its acceptance by the defendants constitute a contract, it may be labelled as a receipt, it does not mean that it is not a contract, there was a promise, there was a consideration, there was an acceptance, all the elements essential for the formation of the contract being present thus falling with the parameters of a suit under Order 37 of the Code."
15 On perusal of the above judgments, it is clear that in the present facts when the allotment application duly filled by the plaintiff was accepted by the defendant and it is also admitted by the defendant that they had received payment, it concludes into the written contract and within the provisions of Order 37 CPC. Similarly, the allotment application clearly provides for refund of the money. In case allotment gets delayed by more than 36 months and there is also provision of interest @ 9% per annum. In these circumstances, defendant cannot wriggle out of the present contract when they are responsible for the delay in the allotment of the plot. This court has the jurisdiction as the present is suit for recovery of money and the cause of action arose in Delhir where the defendant is having its corporate office and had received allotment form and money from the Delhi. The suit is also within period of limitation in view of receipts and acknowledgment made by defendant in the year 2010. 16 In these circumstances, I am of considered opinion that Contd....11 of 12 : 12 :
defendants have no plausible defence entitling them for unconditional or even conditional leave to defend. The defence is palpably false, illusory and sham. The leave to defend application fails and is accordingly dismissed.
17 In view of dismissal of leave to defend application, the documents placed on record including the original receipts, the plaintiff is entitled to a decree. Accordingly, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.5,67,000/ along with interest @ 9% per annum from the date of filing of the suit till realization. Decree sheet be drawn accordingly. Cost of the suit is also awarded to the plaintiff. 18 The file be consigned to Record Room after completion of necessary formalities.
Dictated and announced in the open court on 12.08.2014 (SIDHARTH SHARMA) ADJ04 (South) Saket Courts / New Delhi 12.08.2014 Contd....12 of 12