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Delhi High Court

Asif Sayed Khan vs M/S Ajs Builders(Pvt) Ltd. on 20 August, 2014

Author: G.S.Sistani

Bench: G.S.Sistani

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: August 20, 2014

+            CS(OS) 2112/2012

       ASIF SAYED KHAN                                 ..... Plaintiff
                    Through:          Mr.Harkirat Sawhney, Adv
                    versus

       M/S AJS BUILDERS(PVT) LTD.           .... Defendant
                     Through: None
       CORAM:
            HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (Oral)

1. Plaintiff has filed the present suit for recovery of Rs 39, 51,931 along with pendent lite and future interest @ 18% per annum.

2. Summons in the suit were issued on 20.07.2012. The Defendant was served with the summons in the suit as noticed in the order dated 5.8.2013. Despite service of summons none appeared on behalf of the Defendant so on 23.10.2013, the Defendant was proceeded ex parte.

3. Plaintiff, Mr Asif Sayed Khan, (PW1) has filed his affidavit by way of evidence and the same has been exhibited as Ex-PW1.

4. PW-1 has deposed that Defendant is a private limited company duly incorporated under the provisions of Indian Companies Act, 1956 presently having its office at F-8, Shaheed Bhagat Singh Marg, Gole Market, New Delhi and is engaged in real estate development. PW1 has further deposed that the Defendants made public representation by advertisements and broachers that they were developing a residential complex , in SECTOR 62, Gurgaon being "AJS Hill View Apartments ".

5. PW1 has next deposed that he was in look out for acquiring a residence in Gurgaon and he through his son visited various developers in Gurgaon enquiring about the going rates for flats. The defendant assured him and the other prospective buyers that the project being developed by it would positively be completed within a period of three years as they had all the requisite clearances/ permissions and offered rate @Rs. 2700/- per sq. feet . PW1 further deposed that he was assured by the defendant that the possession of the flat would be delivered within 3 years of the booking of the said flat.

6. PW1 has also deposed that on 28.05.2007, on defendant's assurances and undertakings he booked one three bedroom flat along with servant quarter ad measuring 1550 Sq Ft. being Flat No 1004 in Block A-2 at a settled price of Rs. 2,700/-Sq Feet in the complex being raised by the defendant i.e. AJS Hill View Apartments.

7. Mr Asif Khan, PW1, has deposed that at the time of booking the said residential plot, he signed and executed a registration form envisaging the terms and conditions for allotment of the said plot. The said registration form dated 16.05.2007 is exhibited as Ex. PW1/1. PW1 further deposed that at the time of the booking, he paid to the defendant a sum of RS. 3, 64,500/- which was acknowledged by the defendant in the registration form itself.

8. PW1 has also deposed that the defendant, called for further payment for the apartment so booked, so a sum of Rs. 3, 64,500/- was paid to Defendant on 15.03.08 vide two cheques: (a) a sum of Rs. 1, 64,000/- vide cheque no. 930753 dated 15.03.2008 drawn on HDFC Bank and (b) a sum of Rs. 2, 00,000/- vide cheque no. 059263 dated 15/03/2008 drawn on CITI Bank. The payments so made were duly acknowledged CS(OS) 2112/2012 Page 2 of 6 by the Defendant. The said Letter of acknowledgement dated 16.06.2008 has been exhibited as Ex. PW1/2

9. PW1 has next deposed that the Defendant raised a further demand of Rs 78,435/- on account of IDC which too was met by him on 01.12.2008 and a further payment of Rs. 314,000/- was made to the Defendant believing that the defendant was going ahead with the construction of the project.

10. PW1 has further deposed that the defendant on 15.12.2009 was paid an amount of Rs. 2, 00,000/- towards EDC charges and believing that the defendant is carrying on with development of the project, further payment of Rs. 2, 00,000/- was made on 10.03.2010 vide cheque no. 930756 drawn on HDFC Bank, Sandoz House, Dr. A B Road, Worli, Bombay 400018. Copy of the Cheque has been exhibited as Ex-PW1/3

11. Mr. Asif Khan, PW1 has further deposed that a total sum of Rs.

15,21,935/- has been paid to the Defendant for the aforesaid Flat booked by him on the assurances and undertaking given by the defendant and all the Payments so received by the Defendant have been acknowledged by the Defendant vide its email dated 12.3.2010 which has been exhibited as Ex.PW1/4 and letter dated 3.3.2010 which has been exhibited as Ex. PW1/5.

12. PW1 has also deposed that he went to the site where the defendant had undertaken the development in Gurgaon and to his utter dismay, there was no sign of construction or development of any kind at the site which was barren as it was at the time of booking made by him, thus causing great mental anguish and harassment to him.

13. PW1 has further deposed that the defendant had an evil design from the very inception and the only motive was to collect money from innocent people for its ulterior gains. Enquiries further revealed that the person at CS(OS) 2112/2012 Page 3 of 6 the helm of affairs of the defendant is part of the same family which started Skipper Constructions. PW1 has also deposed that the Hon'ble Supreme Court of India, piercing the corporate veil, took control of all the properties whether in the name of company or in individual names of the family members of its promoters. The defendant, its promoters and person controlling its affairs are guilty of willful act of omission and commission.

14. PW1 has deposed that efforts were made to reach out to the officials of the Defendant to enquire about the state of affairs with respect to construction of residential complex but the Defendant gave no positive response and started avoiding him.

15. PW1 has also deposed that he booked the said flat on the assurances of the defendant, at prevailing rate of Rs. 2,600/- to Rs. 2,800/- per sq feet. The Defendant at that time was providing the Flat with amenities like Master Bed Room having Laminated wooden flooring, other bedrooms, drawing and dining room installed with vitrified tiles, modular kitchen etc (Details regarding specification list have been exhibited as Ex PW1/6) . The prevailing rate now being offered by the Builders/Developers for Flats with similar type of amenities are to the tune of Rs 4500/- per sq. feet. In case plaintiff wishes to book any flat for his residence he has to acquire it at the present rate and will have to pay minimum of Rs.60, 75,000/- for the subject type of flat as against Rs 36,45,000 which plaintiff would have paid. The current Broachers of Ireo Skyon, Madison, Park Prime and Palm Terraces which are for the flats so developed in the vicinity are exhibited as Ex. PW1/7, Ex. PW1/8 and Ex. PW1/9.

16. PW1 has next deposed that the defendant through his willful acts of omission and commission and false undertakings have willfully CS(OS) 2112/2012 Page 4 of 6 defrauded him of his hard earned money of Rs.15,21,935 /- and since defendant has no intention of raising the residential complex, he is thus liable to refund of Rs 15,21,935/- and compensate a sum of Rs 24,30,000/- being the difference between the booking price of Rs. 2700/- per sq. feet and Rs. 4500/- per sq. feet (the prevalent market rate).

17. PW1 has further deposed that he is entitled to Rs.39,51,935/-

(Rs.15,21,935/- as the amount paid and Rs.24,30,000/- as the damages calculated @1800/- per sq feet).

18. I have heard counsel for the Plaintiff and also perused the plaint and documents filed along with affidavit by way of evidence. The present suit is based on money advanced by Plaintiff to the Defendant for booking an apartment in a residential complex raised by the Defendant. Plaintiff has also filed a copy of letter dated 3.3.2010 and an email dated 12.3.2010 where Defendant has acknowledged the payment received by him in the amount of Rs.15,21,935.20. The plaintiff has also placed on record brochures of Ireo Skyon, Madison, Park Prime and Palm Terraces. All builders who have developed flats in close vicinity of the flat booked by the plaintiff and the rates prevailing are to the tune of Rs.4,500/- per sq. ft. and in case the plaintiff has to book any flat today he would have to pay minimum sum of Rs.60,75,000/- as against Rs.36,45,000/- which the plaintiff would have paid to the defendant. This Court can also take judicial notice of the fact that prices in real estate have increased. Thus the plaintiff is not only entitled to a decree for a sum of Rs.15,21,935/- which has been paid by him together with interest @18% but would also be entitled to decree for the realisation amount paid and damages as claimed @Rs.1800/- per sq. ft. which is a conservative estimate to the present market value. Accordingly, the CS(OS) 2112/2012 Page 5 of 6 present suit is decreed in terms of prayer (a) and (b) of the plaint. Plaintiff would also be entitled to pendent lite and future interest @18%.

19. Let a decree sheet be drawn up accordingly.

(G.S. SISTANI) JUDGE AUGUST 20, 2014 NS CS(OS) 2112/2012 Page 6 of 6