Delhi District Court
Ajay Arora vs Taneja Developers & Infrastructure Ltd on 25 August, 2012
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
C.S. No: 304/10
Unique Case ID No.
Ajay Arora
S/o Shri J.D. Arora
B264/II, Derawal Nagar
G.T. Karnal Road
Delhi110 033 .....Plaintiff
Versus
Taneja Developers & Infrastructure Ltd.
G7, Ground Floor, Connaught Circus
Opposite Madras Hotel Block
New Delhi - 110 001 ..... Defendant
DATE OF INSTITUTION : 25.11.2010
DATE OF ARGUMENTS : 20.07.2012
DATE OF DECISION : 25.08.2012
JUDGMENT
1. By filing the present Suit, the Plaintiff seeks a declaration that the letter / notice dated 27.09.2010, issued by the defendant to him be declared as null & void being illegal. Another relief sought is to pass a decree of permanent injunction, restraining the defendant from cancelling the provisional allotment in the name of Plaintiff of Flat No. K20603 in TDI CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 1 of 14
City Kundli Township Project. A further relief is to pass a decree, directing the Defendant to issue a No Dues Certificate till date qua the installments of Flat No. K20603 in TDI City Kundli Township Project. Background Facts
2. Background facts as stated in the plaint are that Shri Ajay Arora, the plaintiff was provisionally allotted a Flat bearing No. K20603 vide I.D. No. KFL17336 in TDI City, Kundli Township Project by the Defendant. It is further submitted that till 25.06.2008, the Plaintiff had made payment of Rs.7,89,087.50/ (Rs.7,37,750.50/ towards basic and Rs.51,337/ towards E.D.C.) to the Defendant towards the payment of installments. Thereafter, the Defendant issued Demand Letter dated 27.08.2010 to the Plaintiff whereby the Plaintiff was asked to deposit Rs.11,22,943/ as the total outstanding payable by the Plaintiff till that date. It is further stated that in accordance with the said Demand Letter dated 27.08.2010, the Plaintiff issued instructions to his Bank i.e. Indian Bank, Chandni Chowk Branch, Delhi where from the Plaintiff had availed Housing Loan to issue Demand Draft in favour of the Defendant and accordingly the Demand Draft dated 13.09.2010 for a sum of Rs. 11,22,943/ was issued in favour of the Defendant with a letter from the Bank to the builder dated 13.09.2010. It is further submitted that on 25.09.2010, the Plaintiff deposited the said Demand Draft dated 13.09.2010 as well as the letter dated 13.09.2010, issued by the Indian Bank to the Defendant. The Defendant issued two Receipts, bearing Nos. 152761 and 152762, both dated 25.09.2010 for a sum of Rs.9,32,799/ and Rs.1,90,144/ respectively towards payment of CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 2 of 14
basic installment Nos. 5 to 13 and E.D.C. installment Nos. 2, 3 and 4 (totalling Rs.11,22,943). It is further alleged in the plaint that the amount paid by the Plaintiff to the Defendant in respect of Flat No. K20603 in TDI City, Kundli Township Project exceeds by Rs. 2,47,300/ than the total amount due at the stage of construction, as per the records of the Defendant itself.
3. It is further stated that on 25.09.2010, when the Plaintiff went to deposit the aforesaid Demand Draft to the Defendant, he was asked to make payment of interest on account of delayed payment, which was strongly opposed by the Plaintiff by showing discrepancy in the Statement of Accounts given to the Plaintiff. It is submitted that the said Statement of Accounts was showing due date for payment of installment as 15.09.2009 for the beginning of work of 9th floor, top floor as well as completion of brick work. The Plaintiff states that he opposed the same since it was not practically possible to start and complete the 9th floor, top floor as well as complete brick work in one day i.e. on 15.09.2009. The Plaintiff states that there were some other discrepancies also and he insisted on waiver of interest. It is further stated that upon discussion with Mr. Anirudh and Mr. Anil, officers of the Defendant, the Defendant gave its approval in writing, whereby all the interest on basic as well as on E.D.C. was waived off on behalf of the Defendant and the Plaintiff was assured that he will be handed over the 'No Dues Certificate' qua installments as on that date. However, instead of that, the Plaintiff received Letter dated 27.09.2010 from the Defendant threatening the Plaintiff to cancel his provisional CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 3 of 14
allotment of Flat No. K20603 in TDI City, Kundli Township Project by the Defendant on the ground that the Defendant had not received any payment after 25.06.2008 from the Plaintiff and the Plaintiff had defaulted in making payments on time. The Plaintiff submits that two days prior to the issuance of the said Letter on 27.09.2010 i.e. 25.09.2010, he had made payment of Rs. 11,22,943/ to the Defendant in respect of which Receipts were also issued by the Defendant. However, by the impugned letter dated 27.09.2010 issued by the Defendant, the Plaintiff was called upon to make payment of Rs. 13,71,032/ within a period of 30 days, failing which, his provisional allotment of Flat No. K20603 in TDI City, Kundli Township Project will be cancelled by the Defendant. It is further sated that the Plaintiff replied to the said letter dated 27.09.2010 by email dated 08.10.2010 and letter dated 13.10.2010 and requested the Defendant to withdraw the impugned letter dated 27.09.2010 with immediate effect. The Plaintiff further sent reminders on 25.10.2010 and 28.10.2010 by email as well as letter. However, the Plaintiff received no reply to his own reply dated 27.09.2010 as well as to the reminders. Hence, the Plaintiff filed the present Suit.
4. The present Suit was received by way of assignment on 26.11.2010. Summons were issued to the Defendant. The Defendant filed its Written Statement. On 23.04.2011, the Ld. Predecessor had allowed the application Under Order 39 Rules 1 & 2 of CPC filed by the Plaintiff and the Defendant was restrained from cancelling provisional allotment of Flat No. K20603 in TDI City, Kundli Township Project in favour of the Plaintiff. CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 4 of 14
The Defendant was further restrained from creating any third party rights in the said flat till the disposal of the suit.
5. In its Written Statement, the defendant submitted that the Plaintiff cannot take benefit of its own wrong. It is further stated in the Written Statement that the Plaintiff was asked to make payment of the outstanding balance as demanded vide letter dated 27.09.2010. However, the Plaintiff asked for waiver of interest and Demand Draft of Rs. 11,22,943/ was received subject to approval of the Defendant and the Plaintiff, at no point of time, ever came to his terms for which the Plaintiff agreed and has now backed out from his own admissions. It is further stated that Pay Orders were received subject to approval of Directors of the Defendant as the interest was not included in the amount that was paid by the Plaintiff and which was required to be paid by the Plaintiff. It is further stated in the Written Statement that Plaintiff has not filed any document to show that the said amount of Rs. 11,22,943/ was credited in the account of Defendant and was paid towards full and final payment of sale consideration of the Flat in question. Since the Plaintiff did not make the payment of Rs. 13,71,032/ as demanded vide Letter dated 27.09.2010, he failed to make the outstanding payment and his allotment should be automatically cancelled. Further objections raised by the Defendant is on the valuation of the Suit and the Court fee as well as the pecuniary jurisdiction of this Court. It is further stated that vide Apartment Buyers Agreement dated 02.03.2010, the dispute between the Plaintiff and the Defendant should be settled by way of arbitration.
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Issues
6. On 02.06.2011, Ld. Predecessor framed the following issues:
(i) Whether the plaint has been properly valued for the purpose of Court fees and jurisdiction and whether the appropriate Court fees thereon has been paid by the plaintiff? OPD.
(ii) Whether this Court has the territorial jurisdiction to entertain the present suit? OPD.
(iii) Whether the defendant had granted any waiver of interest to the plaintiff on 25/9/2010? OPP/OPD.
(iv) Whether the plaintiff is entitled to declaration, as prayed for? OPP.
(v) Whether the plaintiff is entitled to permanent injunction, as prayed for? OPP.
(vi) Relief.
Evidence lead by parties
7. The Plaintiff produced two witnesses. He examined himself as PW1, tendered his Affidavit Ex. PW 1/A in evidence alongwith the documents Ex. PW 1/1 to Ex. PW 1/12. Thereafter, he was crossexamined. He further produced Shri Pradeep Arora, a close relative of the Plaintiff as PW2, who tendered his Affidavit Ex. PW 2/A by way of evidence. Thereafter, he was crossexamined. After that the Plaintiff's evidence was closed. In defence evidence, the Defendant produced Shri Sharad Mehta, Authorised Representative of the Defendant as DW1, who tendered his evidence by way of Affidavit Ex. DW 1/A and relied upon document Ex.DW1/1. Thereafter, the DW1 was crossexamined. Arguments
8. Ld. Advocate for the plaintiff Sh. Rajiv Kumar Jha relied upon document CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 6 of 14
Ex.PW1/5 on which he has alleged that the concerned officer of the defendant had written that the total interest was waived as per the decision of the Chairman of the defendant. He also relied upon the receipt no.152761 Ex.PW1/3 for the amount of Rs.9,32,799/ and receipt no. 152762 Ex.PW1/4 for the amount of Rs.1,90,144/, both receipts dated 25.09.2010 issued by the defendant. Relying upon receipts Ex.PW1/3 and Ex.PW1/4 and the noting of the concerned officer on Ex.PW1/5 acknowledging the waiver of interest, he submitted that the letter dated 27.09.2010 issued by the defendant threatening the cancellation of provisional allotment of Flat no.K20603 in the name of plaintiff is illegal and hence, should be set aside. He further submitted that Rs.7,89,087.50/ had already been paid by the plaintiff. Thereafter, Rs.11,22,943/ were paid by way of demand draft on 25.09.2010 as can be seen from the receipts issued by the defendant Ex.PW1/3 and Ex.PW1/4. Hence, the plaintiff has paid Rs.20,72,980/ to the defendant which is more than 90% of the cost of the flat. He further submitted that as per the Flat Buyers Agreement upon payment of 90% of Flat amount, the defendant had to hand over the possession of the Flat to the plaintiff. However, it has not yet given the possession to the plaintiff. Hence, the remaining 10% of the Flat amount shall be paid only after the plaintiff gets possession of the aforesaid Flat. Therefore, the plaintiff is entitled to receive the No Dues Certificate from the defendant qua the installment of Flat no.K20603 in TDI City, Kundli Township Project. Since there was no appearance on behalf of the defendant for addressing arguments, the defendant was CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 7 of 14
given liberty to file written note of arguments. However, the defendant has not filed any written submissions. This Court has heard Ld. Advocate for the plaintiff and perused the record.
Findings
9. The issuewise findings of this Court are as under : Issue no.1 Whether the plaint has been properly valued for the purpose of Court fees and jurisdiction and whether the appropriate Court fees thereon has been paid by the plaintiff?
10. The onus to prove this issue is on the defendant. No evidence has been led by the defendant to show that the plaint has not been properly valued and for the purpose of Court Fee and jurisdiction. Hence, the defendant is not able to prove that appropriate Court Fee has not been paid by the plaintiff. The issue no.1 is decided against the defendant and in favour of the plaintiff.
Issue no.2 Whether this Court has the territorial jurisdiction to entertain the present suit?
11. The onus to prove this issue is also on the defendant. However, no evidence has been lead to prove this issue in favour of the defendant. Needless to say that the present suit is a suit for declaration and permanent injunction and not related to possession of the flat at Kundli, Haryana. Moreover, the office of the defendant, as can be seen from the memo of parties is at Connaught Circus, which falls within the jurisdiction of the New Delhi District. Hence, since the defendant works for gain within CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 8 of 14
the jurisdiction of this Court, this Court has territorial jurisdiction to entertain the present suit. Hence the issue no.2 is decided in favour of the plaintiff and against the defendant.
Issue no.3 Whether the defendant had granted any waiver of interest to the plaintiff on 25/9/2010?
12. The onus to prove or disprove the issue is on both the parties. The plaintiff has relied upon the document Ex.PW1/5 which is a photocopy of the annexure dealing with the customer ID of the plaintiff Sh. Ajay Arora and it also contains the photocopy of the demand draft dated 13.09.2010 of Rs. 11,22,943/ in favour of the defendant. On the said document at point X, it has been written by blue ink that "As per Chairman, total Int. waived"
followed by signature of an alleged official of the defendant followed by the date i.e. 25.09.2010. In his examination in chief, PW1 Sh. Ajay Arora who is the plaintiff himself has specifically deposed that on 25.09.2010, the plaintiff himself went to deposit the demand draft of Rs.11,22,943/ with the defendant and the defendant demanded interest on account of delayed payment. However, the plaintiff strongly opposed the same by showing various discrepancies in the Statement of Account given by him such as the date of payment of installment on account of start of 9 th Floor, Top Floor as well as the completion of brick work were all shown to have begun from 15.09.2009 which fact was found to be practically impossible by the plaintiff. He further deposed that various other discrepancies were raised with Sh. Anirudh and Sh. Anil Kohli, G.M. (Flats) of the defendant. CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 9 of 14
Thereafter, PW1 further deposed that Sh. Anirudh discussed the matter with Sh. Anil Kohli and after some discussion, approval was given and interest on basic as well as EDC was waived and the plaintiff was assured that very soon he will be handed over no dues certificate qua the installments as on that date. PW1 further deposed that the handwriting at point X on the document Ex.PW1/5 is of Mr. Anil Kohli and it bears his signatures. Hence Mr. Anil Kohli who was the G.M. (Flats) of the defendant waived the interest on behalf of the defendant on 25.09.2010. Even during his crossexamination, PW1 has deposed that the document Ex.PW1/5 bears the signatures of Sh. Anil Kohli at point X. In fact, Sh. Pradeep Arora who deposed as PW2 also corroborated the testimony of PW1 and deposed that the plaintiff, in his presence, gave demand draft and two cheques to the defendant and two receipts were given in lieu of the demand draft given to the defendant. He further deposed that approval in writing was given by Sh. Anil Kohli whereby all the interest on basic as well as EDC was waived on behalf of the defendant and the plaintiff was assured that very soon he will be handed over no dues certificate qua the installments as on that date. He further deposed that Sh. Anil Kohli waived the interest on behalf of the defendant in writing by putting his signatures on the document Ex.PW1/5 in his presence after consulting the concerned official. During crossexamination of DW1 Sh. Sharad Mehta deposed that he did not see the plaintiff in his office on 25.09.2010. He further deposed that he did not know who had received the pay order on 25.09.2010. He admitted the receipt of the pay order. He CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 10 of 14
further deposed that after 25.09.2010, the defendant did not write any letter to the plaintiff claiming interest on delayed payment. DW1 further deposed in his crossexamination that he does not know if the document Ex.PW1/5 bears the signature or handwriting of Sh. Anil Kohli. He further deposed that he does not have any personal knowledge of whether the plaintiff had met Sh. Anil Kohli and Sh. Anirudh on 13.09.2010, 20.09.2010 and 25.09.2010. Therefore, the defendant has admitted the receipt of demand draft of Rs.11,22,943/ from the plaintiff. Such admission gives rise to a strong presumption in favour of the fact that such Demand Draft must have been received after waiving the interest, considering the natural course of such commercial transactions. Considering the aforesaid evidence led by both the parties, this Court is of the considered view that plaintiff has proved on the test of preponderance of probability that the writing on Ex.PW1/5 which states that "As per Chairman, total Int. waived" is of Sh. Anil Kohli, the official of the defendant. Hence, the plaintiff has proved that the defendant had granted the waiver of interest on delayed payment to the plaintiff on 25.09.2010. Issue no.3 is, therefore, decided in favour of the plaintiff and against the defendant. Issue no.4 Whether the plaintiff is entitled to declaration, as prayed for?
13. The onus to prove this issue is on the plaintiff. The plaintiff has sought a declaration that the letter dated 27.09.2010 issued by the defendant to the plaintiff is null and void being illegal. For proving this issue, the plaintiff CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 11 of 14
has to prove whether the plaintiff had made payment of the installments due as on 27.09.2010 i.e. the date of issuance of the impugned letter by the defendant. In its written statement, the defendant has itself admitted that the demand draft/pay order of Rs.11,22,943/ was received by the defendant. In fact, the DW1 Sh. Sharad Mehta has also deposed in his crossexamination that the pay order was received by the defendant. Hence, the receipt of the demand draft of Rs.11,22,943/ is not in issue. Moreover, this Court has already given finding in Issue no.3 that the defendant had granted waiver of interest to the plaintiff on 25.09.2010. Hence, in the considered view of this Court, the plaintiff had paid the installments as were payable till the date of issuance of letter dated 27.09.2010. Once the defendant had accepted the demand draft from the plaintiff of Rs.11,22,943/ on 25.09.2010, it is estopped from changing its position and asserting that the plaintiff had not made payment of installments from 25.06.2008. Hence, the impugned letter dated 27.09.2010 issued by the defendant to the plaintiff asserting that the defendant had not received any payment from the plaintiff since 25.06.2008 is false since on 25.09.2010, the plaintiff had made payments of Rs.11,22,943/ by way of demand draft/pay order to the defendant as can also be seen from the receipt no.152761 and 152762 Ex.PW1/3 and Ex.PW1/4 for the amount of Rs.9,32,799/ and Rs.1,90,144/ respectively as well as the defendant's own admission. Therefore, the demand raised by the letter dated 27.09.2010 is without any basis. Hence, the plaintiff is entitled to the declaration that the letter dated 27.09.2010 issue by the CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 12 of 14
defendant to the plaintiff is null and void being illegal. The issue no.4 is decided in favour of the plaintiff and against the defendant. Issue no.5 Whether the plaintiff is entitled to permanent injunction, as prayed for?
14. The onus to prove this issue is on the plaintiff. The permanent injunction as prayed by the plaintiff is to restrain the defendant from cancelling the provisional allotment in the name of plaintiff of Flat no. K20603 in TDI City Kundli Township Project and the direction to the defendant to issue No Dues Certificate till date qua the installment of the said Flat. It is an admitted case of both the parties that the total sale consideration of the Flat no. K20603 is Rs.20,72,980/ and 10 % of the basic amount is to be paid by the plaintiff after taking possession of the flat. Therefore, for obtaining the relief of permanent injunction as prayed for by the plaintiff, the plaintiff has to show that he has made payment of 90 % of the total sale consideration. It is not disputed that Rs.7,89,087.50/ were paid to the defendant by the plaintiff till 25.06.2008. Thereafter, the plaintiff had deposited Rs.11,22,943/ on 25.09.2010 with the defendant by way of demand draft, as can be seen from the finding of this Court in the Issue no.4. Interest was waived on 25.09.2010 by the defendant, as found out while deciding Issue No.3. Therefore, the plaintiff had paid a total amount of Rs.11,22,943/ + 7,89,087.50 which equals to Rs.19,12,030.50/ which is more than 90 % of the total sale consideration of the Flat No.K20603 in TDI City Kundli Township Project. Hence, the plaintiff is entitled to the CS No. 304/10 Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 13 of 14
permanent injunction as prayed for. The Issue No.5 is decided in favour of plaintiff and against the defendant.
Issue no.6 - Relief.
15. In view of the findings of this Court in Issues no.4 and 5, the plaintiff is entitled to the relief of declaration as well as permanent injunction as prayed for. The letter dated 27.09.2010 issued by the defendant to the plaintiff is declared null and void being illegal. The defendant is permanently restrained from cancelling the provisional allotment in the name of the plaintiff of Flat no.K20603 in TDI City Kundli Township Project. However, it is subject to the plaintiff paying remaining 10 % of the total sale consideration of the flat after taking its possession from the defendant. The defendant is also directed to issue a No Dues Certificate to the plaintiff till date qua the installments of the Flat no.K20603 in TDI City Kundli Township Project. The suit is decreed in the above terms. What is now left to be done is that the defendant has to give possession of the flat to the plaintiff after which the plaintiff has to make payment of the remaining balance amount of the sale consideration. Decreesheet be prepared. File be consigned to the Record Room.
Announced in the Open Court (Apoorv Sarvaria)
th
on 25 August, 2012 Civil JudgeI, New Delhi District
New Delhi
CS No. 304/10
Ajay Arora Vs. Taneja Developers & Infrastructure Ltd. Page No. 14 of 14