Delhi District Court
Sh. Surinder Pal Singh vs Sh. Lavi Pal Singh on 31 May, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI.
Unique ID No. : 02401C0359112013
C.S No. : 171/13
Date of Institution : 23.07.2013
Date of reservation of judgment : 17.05.2016
Date of pronouncement of Judgment : 31.05.2016
Sh. Surinder Pal Singh
S/o Late Sh. Manohar Singh Kocchar
R/o C1/128, Second floor
Janak Puri, New Delhi58.
.................Plaintiff
vs
1.Sh. Lavi Pal Singh S/o Sh. G.P.Singh R/o K39, Kirti Nagar New Delhi.
2. Smt. Jaspreet Kaur W/o Sh. Lavi Pal Singh R/o K39, Kirti Nagar New Delhi.
..............Defendants SUIT FOR RECOVERY Judgment
1. In brief, the facts of the present suit are that on 28.11.2012, plaintiff entered into an agreement to sell and purchase with defendants Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 1/12 for purchase of one residential plot of defendant bearing C40, area measuring 233.33 Sq. Yards (35'x60') situated at Ansal City, Amritsar, Punjab (henceforth referred to as 'suit property') allotted by M/s Ansal Builders Pvt. Ltd vide reference no. ABL/AMR/L0003/201011/8157 for a total sale consideration of Rs.16,33,310/. Out of the above consideration amount, a sum of Rs.1,50,000/ was paid by plaintiff vide cheques bearing no. 177136 and 177137, both dated 28.11.2012, drawn on IDBI Bank Ltd., Vikas Puri, New Delhi, to the defendants as earnest/bayana money. It was further agreed between the parties that the balance sale consideration was to be paid and all formalities were to be completed on or before 31.03.2012 after which proper sale deed was also to be executed.
2. Plaintiff further states that at the time of agreement, he had duly informed the defendants that he will require the chain of entire documents of plot as he had to apply for housing loan from the bank to purchase the suit plot. After entering into agreement to sell & purchase and upon obtaining the copy of title documents of suit plot made available to him by the defendants, when plaintiff applied for grant of housing loan from LIC Housing & Finance, he was informed by the bank officials that the documents provided by defendants do not confer any legal title as they (defendants) are neither in possession of suit plot nor they have any sale deed executed in their favour. The defendants only possess the builderbuyer agreement from Ansal Builders Pvt. Ltd. which does not have sanctity of a title document of an immovable Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 2/12 property. Similarly, other banks also refused to grant loan on the basis of above documents.
3. Under such circumstances, as loan facility was not made available to the plaintiff due to defect in the title documents of defendant, it was not possible for him to purchase the suit plot and hence he was compelled to cancel the deal. Therefore he asked the defendants to pay Rs. 3 lacs i.e the double of Rs. 1,50,000/ paid by him to them due to cancellation of deal but defendants did not pay the same. Accordingly, he was compelled to issue a legal notice dated 05.07.2013 to the defendants asking them to make payment of Rs. 3 lacs in terms of Agreement dated 28.11.2013 but defendants sent a frivolous reply to the legal notice and did not make payment though they admitted having received Rs.1,50,000/ from plaintiff pursuant to execution of agreement to sell. Hence this suit has been filed by plaintiff seeking recovery of Rs. 3,00,000/ from defendants alongwith future and pendente lite interest @ 18 % p.a.
4. Joint written statement has been filed by the defendants stating that the suit plot has been allotted in their joint names by Ansal Builders Pvt. Ltd (ABPL). Due to family decision, they wanted to sell the suit plot for which an advertisement was placed on Website 'Magicbricks.com' on 11.04.2012. Pursuant to the said advertisement, plaintiff approached them and expressed his willingness to purchase the suit plot. The defendants showed all the concerned documents relating to allotment and payments made by them to promotors and developers, Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 3/12 i.e Ansal Buildwell Ltd. (erstwhile ABPL). Plaintiff also got himself satisfied from the office of Ansal Buildwell Ltd., New Delhi in all respects. Thereafter an agreement to sell and purchase dated 28.11.2012 was executed qua the suit plot, for which an advance part payment of Rs.1,50,000/ was made by plaintiff to the defendants being earnest money of the suit plot. Further the suit plot was to be sold on "as is where is" basis.
5. It is further contended that plaintiff never informed the defendants during execution of above Agreement about his need for applying housing loan from bank as alleged in the plaint. The plaintiff entered into agreement after satisfying himself about bonafide status and position of defendants, upon perusal of relevant papers. Further it was specifically mentioned in the said agreement that defendants will deposit all payments in respect of suit plot in the office of Ansal Builders Pvt. Ltd and thereafter take physical possession of suit plot from them.
6. It is further contended that plaintiff had asked them to provide documents for loan i.e Allotment letter, payment receipts, builderbuyer agreement vide his email dated 25.03.2013, and accordingly, the same were supplied to the plaintiff on 28.03.2013. Further contended that it was evident that plaintiff was avoiding to pay the remaining balance amount of Rs. 14,83,310/ since refusal by bank to grant loan facility to plaintiff cannot be a ground to treat the allotted suit plot in favour of defendants by Ansal Buildwell Ltd., as a defect in Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 4/12 their title. More so when the plaintiff got himself satisfied about the other details pertaining to allotment of plot before entering into the agreement.
7. It is further submitted that it is mentioned in the said agreement that if plaintiff backs out from said transaction on any ground, then his earnest money was liable to be forfeited by the defendants and hence plaintiff is not entitled to claim any amount from the defendants. Further plaintiff never asked them to pay a sum of Rs. 3 lacs nor informed that he had cancelled the deal and this fact came to their knowledge only upon the notice of plaintiff, through his lawyer.
8. It is also submitted that plaintiff is a real estate professional and developer and also doing allied business from 1988, in the name and style of "Elevation" under the flagship of Kbgroup. It is denied that defendants induced plaintiff to enter into agreement. It is further denied that defendants had backed out from the aforesaid agreement and it was alleged that plaintiff had infact backed out from the aforesaid agreement. Prayer is accordingly made for dismissal of suit.
9. Replication was also filed by the plaintiff wherein the contentions made in written statement were denied.
10. Vide Order dated 19.09.2013, following issues were framed by the Ld. Predecessor of this court :
1. Whether plaintiff is entitled for decree of sum of Rs. 3 lakhs as prayed for? OPP
2. Whether plaintiff is entitled to interest, if any, at what rate Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 5/12 and for what period?OPP
3. Relief.
11. In order to prove his case, the plaintiff examined himself as PW1. In his testimony the following documents were exhibited :
"Affidavit of PW1 is Ex. PW1/A wherein averments of plaint have been reproduced, the Agreement to sell and purchase is Ex. PW1/1, legal notice is Ex. PW 1/ 2, its postal receipts are Ex. PW 1/3 and Ex. PW1/4 and the reply sent by defendants to legal notice is Ex. PW1/5. One visiting card of plaintiff was exhibited during his cross examination which is Ex. PW 1/D1."
Plaintiff was crossexamined and thereafter PE was closed.
12. On the other hand, defendant no.1 examined himself as DW1 as sole witness. In his testimony, following documents were exhibited :
"The affidavit of DW1 is Ex. DW 1/A, Internet advertisement is Mark A, copy of email dated 25.03.2013 is Mark B, copy of email dated 20.10.2012 (colly.) are Mark C to E, Internet copy of payment plan of Ansal Buildwell Ltd's website is Mark F, one letter dated 30.09.2013 is Ex.DW1/6 and another letter dated 11.07.2013 is Ex. DW 1/7."
13. The witness was duly crossexamined and discharged. Thereafter DE was closed and final arguments were addressed on Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 6/12 behalf of both parties. Ld. Counsel for plaintiff has relied on Judgment in AVM Sales Corporation vs. Anuradha Chemicals Pvt. Ltd. I (2012) SLT 422. On the other hand, Ld. Counsel for defendants relied on the judgments in Satish Batra vs Sudhir Rawal Civil Appeal No. 7588/2012 of Hon'ble Supreme Court dated 18.10.2012; Laxman Prasad Vs. Prodigy Electronics Ltd. & Anr. AIR 2008 SC 685; Executive Engineer, Road Development Division No. III Panvel Vs. Atlanta Ltd. AIR 2014 SC 109; Harshad Chiman Lal Modi vs DLF Universal AIR 2005 SC 4446 ; and Rehmania Academy of Sciences, Mathura vs. BBD Bhargava 2011 (4) AD (Delhi) 579 in support of his contentions.
14. I have now considered the arguments advanced by Ld. counsels for parties as well as perused the evidence on record. My issuewise findings are as under :
ISSUE No.1
1. Whether plaintiff is entitled for decree of sum of Rs. 3 lakhs as prayed for?
The onus to prove this issue was upon the plaintiff. The undisputed facts in this suit are that the defendants have admitted having entered into an Agreement to Sell and Purchase Ex. PW1/1 qua the suit plot and have also admitted having received Rs. 1,50,000/ from the plaintiff as bayana/advance bring part consideration towards the sale of suit plot. The contention of plaintiff is that the title Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 7/12 of defendants in the suit plot was defective due to which he could not obtain loan from LIC Housing & Finance when he submitted the documents provided by defendants for verification for the purposes of grant of loan facility, so he was compelled to cancel the deal.
15. During final arguments, initially a legal contention was raised on behalf of defendants regarding territorial jurisdiction of the court on the ground that the suit plot was situated in Amritsar, Punjab, which was beyond jurisdiction of this court. As far as this contention is concerned, it has to be taken into consideration that the plaintiff is merely seeking enforcement of one of the terms and conditions of Agreement to Sell and Purchase Ex. PW1/1 which provides for remedy in case of breach of contract by any of the parties to the agreement. This Agreement Ex. PW1/1 has admittedly been entered into between the parties in Delhi and not at Amritsar. Plaintiff is also not seeking specific performance of contract or possession of the suit plot. So no relief directly attributable to the suit plot is being claimed in this suit but merely compensation for breach of contract is sought. Hence, provisions U/s 15 to 20 of CPC are not applicable to the facts of the present case nor the judgments as relied by the counsel for defendants. In my considered opinion, the territorial jurisdiction does lie with this court.
16. As far as merits of the suit is concerned, upon perusal of Agreement to Sell and Purchase Ex. PW 1/1, it can be seen that it is nowhere mentioned by the defendants that they were the owners of suit Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 8/12 plot at the time of agreement. Infact it is clearly mentioned that the defendants are allottees of suit plot. It is further stated in the said Agreement that defendants were still required to deposit money towards all demands raised qua the suit plot in the office of Ansal Builders Pvt. Ltd., which is also an indicator of the fact that complete payment towards the allotted suit plot had not been made by the defendants to Ansal Builders Pvt. Ltd. Hence there was no question of any misrepresentation by the defendants that they were absolute owners of the suit plot as contended by the plaintiff.
17. Infact the allegations made in the plaint and Affidavit in evidence of plaintiff Ex. PW1/A that his bank refused to provide loan to him as title of defendants qua suit plot was defective, is vague in nature since on basis of which documents this conclusion was drawn, is not mentioned in the plaint or affidavit. In his crossexamination, plaintiff admits that certain documents had been provided to him by the defendants but does not specify as to which documents were supplied by the defendants and which documents were not supplied by them. He merely alleges that the defendants did not supply complete required relevant documents. He also does not tell as to which documents ought to have been provided by the defendants. Under such circumstances, defendants cannot be blamed for not supplying the requisite documents.
18. Furthermore, the written communication/letter received from LIC Housing & Finance regarding nongranting of loan facility due to defective title documents of defendants, has not been placed on Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 9/12 record despite the fact that it was a very material document so as to corroborate the allegations made by plaintiff regarding defect in their title. It is also worth mentioning that in the plaint, plaintiff has stated that the bank informed him about the fact that defendants did not had any title deed of the suit plot nor where in possession of the same. This fact is already mentioned in the Agreement Ex. PW1/A that defendants were merely allottees of suit plot and were yet to take possession of the suit plot. So no new fact was communicated to plaintiff by the bank.
19. At this stage it is also worth noting that the plaintiff is not a layman and is infact well conversant with immovable property affairs since he is admittedly running a real estate business and is also doing the work of builder. He also arranges loans for his customers as per their requirements through the bank as admitted by him in his cross examination. Under such circumstances, he must have been fully aware of the legal formalities and the nature of documents which are required to be provided by an applicant for obtaining home loan from bank. It is also not plausible to believe that being a builder and engaged in real estate business, he would have entered into a contract with the defendants without proper verification. Even otherwise, defendants being merely allottees of suit plot was a fact with which plaintiff was well aware since beginning, hence he cannot now turn back and say that the defendant's title was defective. Furthermore, in the Agreement to Sell Ex. PW 1/1, it is nowhere mentioned that plaintiff intended to apply for home loan in order to make payment of full and final Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 10/12 consideration towards suit plot and he was entitled to cancel the agreement, if loan was not sanctioned to him.
20. During arguments, it had been contended on behalf of plaintiff that defendants had not deposited all the demands in the office of Ansal Builders Pvt. Ltd and had not taken possession of suit plot from the builders. The sale transaction was to be completed latest by 31.03.2013 as per Agreement to Sale Ex. PW1/1 but neither of the parties gave any notice to the other party for extension of time. So defendants had even otherwise not completed their part of the contract. As far as this contention is concerned, it is apparent from the plaint, and Affidavit Ex. PW1/A that the Agreement to Sell and Purchase had not been cancelled by the plaintiff on the ground of nonpayment by defendants of demands in the office of Ansal Builders Pvt. Ltd. or for not taking possession of the suit plot but entirely due to nongrant of loan facility to the plaintiff by his bank as defendants' title was defective. Even legal notice Ex. PW1/2 was served on defendants by making the same contention that the said Agreement was cancelled due to nongrant of loan facility on account of defect in title of defendants. Furthermore, no separate notice had been given by the plaintiff to the defendants regarding nondeposit of demands by them or for not taking possession of the suit plot from Ansal Builders Pvt. Ltd. prior to 31.03.2012. Hence plaintiff cannot be permitted to take this plea at this stage.
21. In view of above observations, it is apparent that the Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 11/12 plaintiff has failed to prove the allegations levelled by him. Infact the plaintiff is himself guilty of cancelling the agreement without any lawful justification. Hence in terms of last clause of page 3 of Agreement Ex. PW 1/1 and also in view of judgment in case titled as Satish Batra vs Sudhir Rawal (supra), the defendants are legally entitled to forfeit the earnest money given to them by the plaintiff.
Accordingly, this issue is decided in favour of defendants and against the plaintiff.
22. ISSUE No.2 Whether plaintiff is entitled to interest, if any, at what rate and for what period?
The onus to prove this issue was upon the plaintiff. However in view of findings given qua Issue No.1, this issue is also decided in favour of defendants and against the plaintiff.
23. Relief.
In view of my above mentioned observations and findings, the suit of plaintiff stands dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 31.05.2016 Civil Judge 01 ( West)/Delhi Suit No. 171/13 Surinder Pal Singh vs. lavi Pal Singh 12/12