Delhi District Court
) Mr. Saju John vs Saju John & Anr on 13 November, 2018
In the Court of Ms. Vineeta Goyal: Additional District Judge03
(South District) Saket Court Complex, New Delhi.
CS No. 5629/16
CNR No. DLST010001282014
In the matter of :
1) Mr. Saju John
S/O Sh. P.T. John
2) Mrs. Rini Elizabeth
W/o Saju John
Both R/O Flat No: 4 & 5 on UGF, Jyoti Apartment,
No: 156, Khasra No. 322,
Village Neb Sarai,
New Delhi110068
......Plaintiffs
V E R S U S
Mrs. Mercy John
W/O Mr. John Mathew,
R/o - Flat no.: 4 & 5 on UGF, Jyoti Apartment,
No: 156, Khasra no. 322,
Village Neb Sarai,
New Delhi 110068
.......Defendant
Date of institution : 10.07.2014
Date of decision : 13.11.2018
AND
CS No. 7063/16
CNR No. DLST010014182015
In the matter of :
Mrs. Mercy John
Wife of John Methew
CS No. 5629/16 Page 1 of 23
CS No. 7063/16
R/o 156, Jyoti Apartment,
Flat No. 4&5, Khasra No. 322,
IGNOU Road, Village Neb Sarai,
New Delhi110068 ......Plaintiff
V E R S U S
1.Mr. Saju John S/o Sh. P.T. John
2. Mrs. Rini Elizabeth W/o Saju John Both R/o Pyngattu Thottathil House, Vayalathala Post Office Ranny, Distt. Pathanamthitta, Kerala689672 .......Defendants Date of institution : 11.03.2015 Date of decision : 13.11.2018 Presence : Sh. Rajiv Bari, counsel for the plaintiffs.
Sh. Manish Aggarwal, counsel for the defendant.
J U D G M E N T
1. Vide this common judgment, I shall dispose off both the above stated suits in between the parties. The case titled Saju John & anr v. Mercy John, bearing CS no.5629/16 herein referred as first suit and other suit titled Mrs. Mercy John v. Saju John & anr, bearing CS no. 7063/16 hereinafter referred as second case. For the sake of convenience, Sh. Saju John and Mrs. Rini Elizabeth are to be considered as plaintiffs and Ms. Mercy John is to be considered as defendant.
CS No. 5629/16 Page 2 of 23 CS No. 7063/16CS no.5629/16 Saju John & anr v. Mercy John
2. The first suit is suit filed by the plaintiffs for possession, damages, mesne profits, permanent injunction and recovery of arrears of rent against the defendant.
2.1. Brief facts as averred in the plaint are that the plaintiffs are owner of flats No. 4 and 5 on UGF of property No. 156, Khasra No. 322, Village Neb Sarai, New Delhi measuring 810 sq. feet.(herein referred as suit property). The plaintiffs had purchased the suit property from its previous owner namely Sh. Ajay Kumar vide sale deed dated 29.03.2005. It is averred by the plaintiffs that in the second week of March 2013, the defendant alongwith her husband and legal advisors visited plaintiff's home at Neb Sarai, called plaintiff no.1 in Thailand as plaintiffs are working in Thailand for last many years, that they are interested to buy the plaintiff's flat, to which plaintiff no.1 replied that their house is under loan from Canara Bank, Green Park, New Delhi and is coowned by both the plaintiffs and the consideration price was fixed at Rs.30,00,000/ between the plaintiff no.1 and defendant on signing on agreement to sell. The plaintiff no.1 further informed as they are living in Thailand, the defendant will have to pay an advance which should be equivalent to plaintiffs' outstanding loan amount in the bank, so that the plaintiffs' can clear their balance loan amount of Rs.5,50,000/ and after obtaining all the documents from bank can proceed for executing sale deed of their flats (suit property) in favour of the defendant.
CS No. 5629/16 Page 3 of 23 CS No. 7063/162.2. The plaintiffs further averred that after speaking with the plaintiff no.1, the defendant alongwith her husband and a legal advisor went to Canara Bank to verify and verified everything and found everything correct and themselves inquired about the procedure of obtaining loan and bank agreed to give them loan for plaintiff(s)' flats, provided the defendant satisfied other conditions like income, tax papers, etc. as all the plaintiffs housing documents were in the custody of bank. On 01.07.2013, the plaintiff no.1 sent to the defendant the scanned copies of first three pages of their registry by email for defendant's reference in which it was clearly stated that it is a Lal Dora property and its number. The defendant after receiving the aforesaid, told the plaintiff no.1 not to send other details as Canara Bank was having all original documents of the plaintiffs. After being convinced of everything from the bank, on 04.04.2013, the defendants deposited a cheque for Rs.50,000/ in the account of plaintiff no.1. The plaintiff no.1 gave two months time to the plaintiff to process a loan from Canara Bank.
2.3. The plaintiffs further averred that the plaintiffs arrived at Delhi on 01.06.2013 to execute the agreement to sell after informing well in advance to the defendant by email on 22.05.2013and the agreement to sell was to be executed on 06.06.2013 and accordingly to which balance payment of Rs.24,50,.000 was to be paid on or before 04.08.2013. The plaintiffs were to execute Sale Deed after getting balance payment from her. The plaintiffs further averred that after signing the agreement to sell on 06.06.2016, the defendant requested to the plaintiff to allow her alongwith her family members to reside in the flat because they were paying heavy rent. The plaintiffs out of sympathy CS No. 5629/16 Page 4 of 23 CS No. 7063/16 and on the guarantee that the defendant has paid plaintiffs an advance amount, allowed the defendant to reside in flat/suit property and the defendant alongwith her family members starting living in the suit property from 10.06.2013 onwards. The plaintiff did not execute any rent agreement as they were sure that the defendant is going to purchase the suit property.
2.4. The plaintiffs further averred that plaintiff no.1 sent an email on 03.07.2013 to the husband of defendant about plaintiff's(s) arrival on 23.07.2013 to execute sale deed in favour of the defendant, which the plaintiff no.1 reconfirmed again from defendant and her husband regarding loan and other things before the plaintiffs fly from Bangkok. It is further averred that plaintiffs arrived at Delhi on 23.07.2013 and the defendant informed the plaintiff no.1 that bank is having some problem for giving the loan from the Lal Dora property. The defendant and her husband requested that plaintiff no.1 for extending the time for arranging the balance amount of Rs.24,50,5000 and then the plaintiffs out of sympathy extended the time and made a supplementary agreement dated 25.07.2013 extending it by another one month i.e. on or before 15.09.2013 for executing the sale deed. The plaintiffs asked the defendant to sign a rent agreement for security reasons as the defendant and her family members were residing in the suit property since 10.06.2013 and it was mutually decided that this rent agreement will come into effect after one month, in case, the defendant fails to get a loan. The parties to the suit signed the rent agreement on 25.07.2013 for 11 months w.e.f. 15.09.2013 and thereafter the plaintiffs left Delhi for Bankok.
CS No. 5629/16 Page 5 of 23 CS No. 7063/162.5. The plaintiffs further averred that there were lot of communications between the plaintiff and the defendant through emails where the plaintiff himself tried to arrange bank loan for the defendant by writing various email. An email in this regard was also sent by plaintiff no.1 to Smt. Mukesh Goel, Assistant General Bank, Canara Bank on 04.08.2013 and finally the plaintiffs realized that the defendant will not be able to arrange the balance consideration amount. The supplementary agreement too expired as the defendant was not able to arrange the balance consideration amount.
2.6. The plaintiffs further averred that plaintiff no.1 requested the defendant to handover the possession of suit property as she has not been able to arrange the balance amount and the plaintiffs being God fearing offered out of sympathy to defendant to return defendant's earnest money after deducting Rs.60,000/ which was nothing but the expenses incurred by the plaintiffs for their visit for signing the agreement to sell and coming again for registration which was near to Rs.1,75,000/ as compensation for plaintiffs' expenses plus the rent from September, 2015 until the day the defendant leaves the suit property, though plaintiffs could have forfeited the bayana amount as per agreement to sell but the defendant bluntly refused that she would not vacate the suit property until a full amount of Rs.5,50,000/ is returned back to her. The plaintiff no. 1 sent an email to the defendant on 02.09.2013 and thereafter sent a legal notice dated 28.09.2013 and despite request and legal notice, the defendant and her family members neither vacated nor handed over the vacant physical possession of the suit property to the plaintiffs. It is further averred that plaintiff no.1 received in between this period lots of mails for CS No. 5629/16 Page 6 of 23 CS No. 7063/16 amicable settlement but all failed. A criminal complaint was also lodged on 23.12.2013 but nothing happened. The plaintiffs further averred that recently they received a legal notice from the defendant's counsel wherein the defendant has admitted about the execution of the document and the possession over the suit property. On these grounds, a prayer was made that plaintiffs are entitled for decree of possession against the defendant as well as mesne profits @ Rs.16,000/ per month from 15.10.2013 till the possession is handed over to the plaintiffs alongwith recovery of Rs.8,000/ i.e. rent for the period 15.09.2013 to 14.10.2013, compensation/damages of Rs.1,75,000/ and permanent injunction.
3. Pursuant to notice issued, the defendant appeared and filed written statement inter alia raising various preliminary objections that the plaintiffs have not approached the Court with clean hands; that the present suit is not maintainable as the plaintiffs alleged about the execution of two documents on the same date i.e. one supplementary agreement and other is rent agreement regarding the suit property which cannot be possible in any case; that the plaintiffs and the bank played fraud with the defendant. On parawise reply, the averments of the plaint were denied and submitted that the defendant came to know through reliable sources that since the plaintiffs are residing in Thailand and therefore they wanted to sell the suit property as the plaintiffs are not legal owners. It is further submitted that the plaintiffs managed the bank officials that how the recovery of loan can be made, the bank officials initially gave false assurance to the defendant that the loan against the flats in question can be sanctioned without telling the correct facts about the property in question is CS No. 5629/16 Page 7 of 23 CS No. 7063/16 situated within the Lal Dora and without approval, the loan can be sanction. It is further submitted that when the defendant deposited the entire due amount against the suit property i.e. Rs.5,50,000/ and after issuing NOC by the bank, the plaintiffs took away the entire papers from the bank without telling the defendant and after few days when the defendant approached the bank for loan then only the bank told that the plaintiffs had already taken away bank loan file because the loan cannot be sanctioned against the said flat in question as the same is situated within Lal Dora which is not approved by the government. It shall be pertinent to mention here that the defendant and her husband immediately called the plaintiff no. 1 and told about fraud, upon which the plaintiffs told that they wanted to clear the loan by this manner only and not intended to sell the flat in question and further told that they will discuss upon this when they visit India.
3.1. It is further submitted by the defendant that when the defendant asked about the complete chain of title documents in the name of the plaintiffs, the plaintiff no.1 sent the scanned copy of only first three pages of registry by email and not complete. The defendant asked about the complete document, upon this, the plaintiff no.1 ensured that due to some problem in Internet and computer the complete documents could not be scanned and requested to go through the papers and the rest of the papers would be sent at the earliest and nothing to worry about the papers. It is further submitted that the plaintiffs did not provide the remaining papers to the defendant. The defendant doubt about the legal ownership of the suit property. It is further submitted that since the defendant had made part payment of total consideration and upon this the plaintiffs handed over the CS No. 5629/16 Page 8 of 23 CS No. 7063/16 physical possession of the suit property to the defendant and since the plaintiffs failed to provide the complete papers regarding the ownership of the property in question in the name of the plaintiffs, therefore, the transaction could not be proceeded further till date. It is further submitted that plaintiffs their own extended the time to trace out the remaining papers. The plaintiffs called upon the defendant at Tis Hazari Courts to introduce with a person who can sanction the loan from bank and the defendant visited Tis Hazari Courts and there he introduced one Sh. D.C. Narnolia who assured to sanction the loan, however, later on, it came to the knowledge of defendant upon receiving of legal notice that Sh. D.C. Narnolia is an Advocate. It is also submitted that no agreement was executed between the parties has been placed upon the defendant. The plaintiffs are in default and, therefore, cannot take undue advantage of their wrong. It is also submitted that no rent agreement was executed and it seems that plaintiffs got the signatures of the defendant on 25.07.2013 under threat. On these grounds, a prayer was made that the suit of the plaintiffs deserves dismissal.
4. Replication to written statement was filed reiterating and reaffirming the contents of the plaint.
CS no. 7063/2016 Mercy John Vs. Saju John & anr
5. Now coming to suit titled Mercy John Vs. Saju John & anr, the plaintiff therein (herein referred as defendant) has filed the present suit for recovery of Rs.5,50,000/ with pendente lite interest @ 24% per annum against the defendants (hereinafter referred as plaintiffs).
CS No. 5629/16 Page 9 of 23 CS No. 7063/165.1. Brief facts as averred in the plaint are that Mercy John alongwith her family is residing in suit property. It is averred that Saju John and his wife showed their bonafide to sell the aforesaid property as they were in urgent need of money of Rs.50,000/ for which Mercy John agreed and paid a sum of Rs.50,000/ through cheque bearing no. 155709 dated 04.04.2013 to them and it was further agreed the remaining amount will be paid at the time of entering into agreement.
5.2. It is further averred by the defendant that plaintiffs again showed their requirement of Rs.5,00,000/ to pay towards full and final settlement of the dues of the loan amount against the aforeasaid property to obtain NOC from the bank. Defendant agreed to purchase the property only on the condition, if the bank sanction the loan against the property and plaintiffs assured the defendant that the property is situated in the approved colony and the bank has already sanctioned the loan in their favour. Upon this assurance, the defendant agreed to purchase the said property and paid further sum of Rs.5,00,000/ through cheque bearing no. 819321 dated 05.06.2013. Defendant further asked the complete chain of title documents, to which plaintiffs assured her that they would send documents through email as the documents are at Thailand and assured that the property is free from all encumbrances and charges except a loan sanction by the Canara Bank against the same property.
5.3. It is further averred that as per the mutual agreement the defendant and the plaintiffs entered into Agreement to Sell dated 06.06.2013 for a total consideration of Rs.30,00,000/. Out of the total CS No. 5629/16 Page 10 of 23 CS No. 7063/16 consideration, the defendant had paid a sum of Rs.5,50,000/ as part payment and balance amount will be paid on or before 04.08.2013 after sanctioning the loan by the bank. Since the part payment of total consideration amount was paid to the plaintiffs, the plaintiffs handed over the physical possession of the flat on 10.06.2013. Since then the defendant is in possession of the property in the capacity of Agreement to Sell.
5.4. It is averred that defendant approached the Canara Bank for loan from where the plaintiffs have already been sanctioned the loan on the property. However, defendant came to know that the loan was sanctioned to plaintiffs without submitting the sanction plan and in fraudulent manner. The bank told the defendant that now the loan cannot be sanctioned as it is situated in Lal Dora and as per guideline of the bank, the loan cannot be sanctioned against the property situated in Lal Dora. The plaintiffs sent three discarded scanned page of the title document through email to the defendant and assured that they will provide the remaining paper very soon as the same are not traceable in his house at Thailand. The plaintiffs being aware that the property situated in Lal Dora, the bank would not sanction the loan and the plaintiffs played fraud with the defendant by concealing the material fact from the defendant. The plaintiffs informed the defendant through email dated 14.10.2013 showing his intention for settlement without deducting anything from the earnest money.
5.5. The plaintiffs advised defendant to approach Mr. D.C. Narnolia who helps in sanction the loan either from the Canara Bank or any other bank and accordingly defendant with her husband met Mr. D.C. CS No. 5629/16 Page 11 of 23 CS No. 7063/16 Narnolia, however, defendant came to know that Mr. D.C. Narnolia is an advocate. On 25.07.2013, the plaintiffs alongwith Mr. D.C. Narnolia came over nearby Bus Stop of the office of the defendant and told to sign the loan paper as they have already initiated the proceeding with bank for loan. The defendant requested plaintiffs to read the contents of the paper that whether it is regarding loan or not. Upon this the plaintiff shouted and threatened defendant to sign the paper or her earnest money of Rs.5,50,000/ will be forfeited. So, the defendant had no option except to sign the paper under pressure and threat. 5.6. It is further stated that on 25.07.2013, the plaintiffs got the signature of the defendant on the papers including Rent Agreement, Supplementary Agreement and some other papers which might be misused by the plaintiffs. Therefore, defendant made police complaint. Plaintiffs have filed a suit for recovery for possession, damages, mesne profit, permanent injunction and recovery of arrears of rent on the basis of Rent Agreement dated 25.07.2013 titled 'Saju John Vs. Mercy John, which is pending adjudication before the Court. Defendant has submitted that she is not a tenant and is in possession of the suit property since 10.06.2013. It is stated that as per the Rent Agreement, the period of the tenancy is mentioned from 15.09.2013 to 14.08.2014. However, the plaintiffs have admitted the physical possession of the defendant from 10.06.2013, but the Rent Agreement gives the effect from 15.09.2013.
5.6. The defendant has further averred that she is in possession of the suit property since 10.06.2013 under the capacity of Agreement to Sell dated 06.06.2013, it is very surprising how two documents i.e. Agreement to Sell and Rent Agreement simultaneously gives the same CS No. 5629/16 Page 12 of 23 CS No. 7063/16 legal effect. It is further averred that there is no doubt about the ownership of the plaintiff, therefore, they themselves issued a receipt dated 04.04.2013 in the presence of two witnesses that the total consideration of the flat is Rs.27,00,000/ instead of Rs.30,00,000/.
5.7. It is further averred that the plaintiffs issued a legal notice through their counsel Mr. D.C. Narnolia dated 28.09.2013 whereby the earnest money of Rs.5,50,000/ was forfeited. Defendant has averred that she does not want to purchase the property as there is fraud on the part of the plaintiffs and the defendant paid part payment under good faith and bonafide but the plaintiffs cheated the defendant. The defendant has averred that the earnest money paid to the plaintiffs was borrowed on interest and he is paying the interest till date. The defendant is ready to hand over the vacant possession of the suit property subject to repayment of earnest money with interest from the date of payment till its realization. On the basis of aforesaid averments, defendant has prayed to pass decree for recovery of Rs. 5,50,000/ with pendente lite interest @ 24% per annum on the date when the amount is due i.e. 06.06.2013 till its realization and to grant compensation of Rs. 2,50,000/ for harassment mentally and financially to the plaintiff
6. Pursuant to summons issued, the plaintiffs Saju John and Rini Elizabeth appeared and filed written statement inter alia making submissions in consonance to the averments made in the plaint of CS no. 5629/16, which has already been discussed in preceding paragraph number 2. In addition to that it is submitted that they were forced to file that suit which is pending and is at the stage of final arguments CS No. 5629/16 Page 13 of 23 CS No. 7063/16 and the defendant being fully aware of this fact has filed the present suit to mentally harass the plaintiffs. On the strength of these grounds, a prayer was made that the present suit filed by Ms. Mercy John is liable to be dismissed.
7. Replication to written statement was filed reiterating and reaffirming the contents of plaint and denying the averments made in the written statement.
8. From the pleadings of the parties, the following issues were framed in CS no. 5629/16 on 11.11.2014:
1. Whether the defendant is liable to put the plaintiff into the possession of the suit property/ flat no. 4 & 5 of Upper Ground Floor of property bearing no. 156, Jyoti Apartment, Khasra no. 32, Village Neb Sarai, New Delhi68? OPP
2. Whether the defendant is in unauthorized occupancy of the suit property and is liable to pay mesne profits to the plaintiff, if yes, at what rate? OPP
3. Whether the defendant is also liable to pay damages to the plaintiff? OPP
4. Whether the defendant has threatened the plaintiff for creating third party interest in respect of the suit property and she is liable to be restrained by way of a decree of Perpetual Injunction? OPP
5. Whether the plaintiff is entitled to any relief.CS No. 5629/16 Page 14 of 23 CS No. 7063/16
9. In order to prove its case, the plaintiffs examined plaintiff no. 1 as PW1 and tendered evidence by way of affidavit Ex. PW1/A and made statement in consonance to the averments made in the plaint and relied upon documents viz. Site plan Ex. P.1, Certified copy of sale deed dt. 29.03.2005 Ex. P.2, Electricity bill Ex. P.3, Copy of agreement to sell dt. 06.06.2013 Mark 'A', Copy of email dt. 03.07.2013 Ex. P.4, Copy of supplementary agreement dt. 25.07.2013 Mark 'B', Rent agreement dt. 25.07.2013 Ex. P.5, Signed copy of ID proof of defendant Ex. P.6, Copy of email dt. 04.08.2013 Ex. P.7, Copy of email dt. 02.09.2013 Ex. P.8, Legal notice dt. 28.09.2013 Ex. P.9, another legal notice dt. 28.09.2013 Ex. P.10, Reply to email dt. 30.09.2013 Ex. P.11 and Legal notice from defendant dt. 06.06.2014 Ex. P.12.
9.1. The defendant Ms. Mercy John appears as DW1 and tendered evidence by way of affidavit Ex. DW1/A and made statement in accordance with written statement and relied upon documents viz. Agreement dt. 06.06.2013 Mark 'A', Email dt. 31.03.2013 Ex. D.1, Discarded sale deed papers dt. 29.03.2005 Mark 'C', Email with passbook of Canara Bank Ex. D.2 (colly), Email and receipt dt. 03.04.2013 Ex. D.3, Email and receipt dt. 08.04.2013 Ex. D.4, Email dt. 21.05.2013 and 25.05.2013 Ex. D.5 (colly), Email dt. 03.07.2013 Ex. P.4, Cash receipt and passbook dt. 05.06.2013 Ex. D.6 (colly), Supplementary agreement dt. 25.07.2013 Mark 'B', Emails dt. 02.08.2013 Ex. D.7 (colly), Email dt. 03.08.2013 Ex. D.8, Email dt. 04.08.2013 Ex. D.9, Email dt. 02.09.2013 Ex. P.8, Police complaint dt. 14.10.2013 Mark 'D', Reply to legal notice dt. 05.10.2013 Mark 'E' and Legal notice dt. April, 2014 Mark 'F'.
CS No. 5629/16 Page 15 of 23 CS No. 7063/1610. From pleadings of parties, following issues are framed in CS no. 7063/16 on 12.05.2017 as under:
1. Whether the plaintiff is entitled to a decree for sum of Rs.5,50,000/ from the defendants, jointly and severally liable, as prayed for? OPP
2. Whether the plaintiff is entitled to any interest? If so, at what rate and for what period? OPP
3. Whether the plaintiff is entitled for compensation of Rs.2,50,000/ for harassment and mental agony as prayed for? OPP
4. Whether the suit is without any cause of action? OPD
5. Relief.
11. In order to establish its case, Ms. Mercy John tendered her evidence by way of affidavit as Ex. PW1/A and made statement in accordance with the averments made in the plaint and relied upon the documents viz. Agreement dt. 06.06.2013 Ex. PW1/1, Email dt. 31.03.2013 Ex. PW1/2, Discarded sale deed papers dt. 29.03.2005 Mark A, Email with passbook of Canara Bank dt. 03.04.2013 Ex. PW1/4, E mail and receipt dt. 03.04.2013 Ex. PW1/5, Email and receipt dt. 08.04.2013 Ex. PW1/6, Email dt. 21.05.2013 and 25.05.2013 Ex. PW1/7 (colly), Email dt. 03.07.2013 and Cash receipt and passbook dt. 05.06.2013 Ex. PW1/8 (colly), Supplementary agreement dt. 25.07.2013 Ex. PW1/9, Emails dt. 02.08.2013 Ex. PW1/10 (colly), Email dt. 03.08.2013 Ex. PW1/11, Email dt. 04.08.2013 Ex. PW1/12, Email dt. 02.09.2013 Ex. PW1/13, Police complaint dt. 14.10.2013 Ex. PW1/14, Reply to legal notice dt. 05.10.2013 Mark B and Legal notice dt. April, 2014 Mark C. CS No. 5629/16 Page 16 of 23 CS No. 7063/16 11.1. Ms. Mercy John further examined Sh. Desh Pal Singh Rathore as PW2 who tendered evidence by way of affidavit Ex. PW2/A and deposed that he is common witness at the time of signing of agreement to sell dt. 06.06.2013. There were various communications with him through email as well as through telephone for settlement. Sh. Saju John and Ms. Rini gave assurance to him as well as Ms. Mercy John that suit property will be approved for bank loan, however, the bank refused to sanction the loan with respect to the suit property as it falls under the area of Lal Dora. He further submitted that no rent agreement was executed between the plaintiffs and the defendant.
11.2. In defence, Saju John appeared as witness and tendered evidence by way of affidavit Ex. DW1/A and relied upon the documents viz. Sale deed dt. 29.03.2005 Ex. DW1/1, Copy of electricity bill Mark A, Agreement to sell Mark B, Email dt. 03.07.2013 Ex. DW1/2, Supplementary agreement Mark C, Rent Agreement Mark D, Email dt. 02.09.2013 Ex. DW1/3, Notice dt. 28.09.2013 and another legal notice dt. 28.09.2013 Mark E, Email dt. 30.09.2013 Ex. DW1/4 and Legal notice dt. 06.04.2014 Mark F.
12. I have heard arguments advanced by Ld. Counsel for the parties and gone through the material available on record in both the suits and my issuewise findings are as under:
Issue no(s). 1, 2 and 3 in CS no. 5629/16 and issue no(s).
1, 2 and 3 in CS no. 7063/16 CS No. 5629/16 Page 17 of 23 CS No. 7063/16 12.1. It is not disputed that one party namely Saju John and Rini Elizabeth are the owners of the suit property and entered into agreement to sell with the other party namely Mercy John on 06.06.2013 after drawing a formal agreement to sell cum advance receipt Mark 'A' (Ex. PW1/1) clearly stating that the suit property has been agreed to be sold for a consideration of Rs.30 lacs. It is mentioned that advance of Rs.5,50,000/ has already been received through two cheques. Thus, the issues framed in both the suits emanates from this agreement are being decided together. These issues are issue no(s). 1, 2 and 3 in CS no. 5629/16 and issue no(s). 1, 2 and 3 in CS no. 7063/16 12.2. In pursuance to agreement to sell on 06.06.2013 Ex. PW1/1 (Mark 'A') an advance of Rs.5,50,000/ was given to the owners through two cheques and clause 3 of this agreement states that physical possession would be handed over to the buyer/ defendant Ms. Mercy John after getting the final payment and execution of documents. The agreement mentions 04.08.2013 as the final date for the buyer to make payment of the balance amount and as per clause 11, the advance would be forfeited if the buyer fails to make the same within the stipulated period. It transpires from the evidence of the parties that owners (plaintiffs) of the suit property voluntarily as goodwill gesture handed over the possession of the suit property to the buyer/defendant Ms. Mercy John on 10.06.2013 as PW1 Sh. Saju John in his cross examination has stated that he allowed the defendant to stay in the suit property after receipt of advance of Rs.5,50,000/. The purpose of handing over the possession is stated to be saving of rent by the defendant because at that relevant time admittedly she was residing in a rented premises paying rent of Rs.7000/ per month. There are rival CS No. 5629/16 Page 18 of 23 CS No. 7063/16 contentions of the parties regarding failure to obtain bank loan over the suit property. The buyer/defendant Ms. Mercy John alleged that plaintiffs Saju John and Ms. Rini assured that the suit property is eligible for bank loan whereas when she approached the bank, loan was denied for the reason that property falls under lal Dora. On the other hand, the plaintiff no. 1 refuted this contention on the ground that he never assured of getting the loan sanctioned, secondly, the buyer/ defendant herself failed to qualify for the loan for her low salary income making her ineligible for loan of large amount and attention has been drawn to the crossexamination that at the time when the defendant applied for the loan, her net salary was Rs.22,000/ per month.
12.3. I have considered the rival contentions and find that plaintiffs/owners were not legally obliged to arrange for the finances for the defendant/ buyer because it is independent obligation of the buyer/ defendant to muster requisite resources for buying of the suit property.
Further, with a little due diligence on the part of defendant/ buyer about the location of the property being in lal dora, she could have ascertained eligibility of loan before entering into agreement with the plaintiffs. The defendant/buyer cannot be allowed to wriggle out from the consequences of the breach of the agreement with the contentions that plaintiffs/owners were responsible for not arranging the bank loan for the reasons discussed above. The evidence of the buyer/defendant that there was verbal assurance would not help her because there was no legal commitment of binding nature. If that be so, then the parties would have incorporated suitable clause in the agreement to sell cum receipt Mark 'A' (Ex. PW1/1) so as to make it binding on the plaintiffs / CS No. 5629/16 Page 19 of 23 CS No. 7063/16 owners to arrange for loan. In absence of any such clause in the agreement the contention of the defendant fails. Even for the sake of argument assuming that there was any verbal assurance, same cannot be taken to be valid defense in the event of breach of contract of agreement to sell. The plaintiffs/owners are legally entitled to forfeiture of advance by virtue of clause 11 of agreement to sell Mark 'A'. It is evident that plaintiffs/owners who are ordinarily resident of Thailand visited India to fulfill their part of obligation but the defendant was not ready to perform her part. There is another aspect to this transaction because on 25.07.2013, two more documents were signed, one was rent agreement Ex. P.5 for 11 months (15.09.2013 to 14.08.2013) for a sum of Rs.8000/ per month upon which signatures were not denied by the defendant/ buyer. The second document executed between the parties was supplementary agreement dated 25.07.2013 Mark 'B' (Ex. PW1/9) wherein the parties, after making reference to the original agreements to sell, extended the date of commitment from 04.08.2013 to 15.09.2013. It transpires that since commitment date was extended to 15.09.2013, therefore, subsequent to that rent agreement would have been operationalized. This corollary has been drawn for the reason even though the rent agreement was executed on 25.07.2013 yet it was made operational from 15.09.2013 possibly with a view that by that time, it is likelihood that buyer/defendant will fulfill her commitment of making the balance payment. It is admitted fact that suit property continued to remain in possession of the defendant/buyer since 10.06.2013 till date. From the facts above, it can be safely concluded that defendant/ buyer failed to fulfill her part of obligation under the contract by making the balance payment, therefore, advance of Rs.5,50,000/ is liable to be forfeited.
CS No. 5629/16 Page 20 of 23 CS No. 7063/16These kind of clauses incorporated in such agreement are more for the objective to achieve compliance of the contract but in order to make deterrent, these can be penal in nature also. It is no more res integra that courts have implemented such clauses by adopting an approach of compensation to the aggrieved party rather than adopting harsh route of forfeiting. In the present case, the defendant/buyer had been in possession of the suit property for five years and had adequately enjoyed the possession which in terms of the rental too become equivalent to the amount given in advance to the plaintiffs/owners. At the agreed rent of Rs.8000/ per month, the total rent for 5 years (60 months) would be approximately Rs.5,00,000/. The plaintiffs/owners are entitled to this amount under the rent agreement. The balance amount of Rs.50,000/ can be real forfeiture out of the advance. The issues in the suit CS no. 7063/16 filed by the buyer regarding recovery the advance of Rs. 5,50,000/ along with interest fails and in the light of discussion above there is no evidence of mental agony, therefore the issue of claim of Rs. 2,50,000/ also fails. Accordingly, issue no(s) 1,2 and 3 of CS no. 7063/16 are decided against the defendant namely Ms. Mercy John.
12.4. In totality of the discussion above, the plaintiffs/owners by retaining already received Rs.5,50,000/ will be fully satisfied both for the forfeiture and entitlement of the rent/damages/ mesne profits in continuation of the possession of the suit property. Thus, the issue no. 2 and 3 in CS no. 5629/16 are decided accordingly.
12.5. Further, since the defendant has not fulfilled her part of commitment under agreement to sell and the rent agreement dt.
CS No. 5629/16 Page 21 of 23 CS No. 7063/1625.07.2013 Ex. P.5 has already been terminated, therefore, the plaintiffs/owners are entitled to peaceful and vacant possession of the suit property, however, the defendant is given time upto 31.12.2018 and for this period i.e. from 13.11.2018 till 31.12.2018, the plaintiffs would be entitled for damages of Rs.8000/ per month from the defendant upto 31.12.2018 and thereafter, the rent/damages will be penal in nature which based on escalation for the last five years reckoned as Rs.15,000/ per month payable to the plaintiffs till the handing over of the vacant possession of the suit property to the plaintiffs. In view of above, issues no. 1 in CS no. 5629/16 is decided in favour of the plaintiffs and against the defendant.
Issue no. 4 of CS no. 5629/1612.6. The onus to prove this issue was upon the plaintiffs. Since the plaintiffs are entitled for possession of the suit property as discussed in preceding paragraphs, the defendant is restrained from creating any third party interest in the suit property, accordingly, this issue is decided in favour of the plaintiffs.
Issue no. 4 of CS no. 7063/1612.7. As discussed above, the defendant Ms. Mercy John is not entitled for Rs.5,50,000/ from the plaintiffs as she has failed to fulfill her part of obligation under the contract by making the balance payment, therefore, advance of Rs.5,50,000/ is liable to be forfeited and adjusted as discussed above in para 12.3, accordingly, this issue is decided against the defendant.
CS No. 5629/16 Page 22 of 23 CS No. 7063/16 Relief in CS no. 5629/1613. In view of above discussion in issue no(s) 1, 2 and 3 of CS no. 5629/16, this suit is decreed in favour of plaintiffs Sh. Saju John and Ms. Rini Elizabeth. The plaintiffs are entitled to peaceful and vacant possession of the suit property i.e. Flat no. 4 & 5 of Upper Ground Floor of property bearing no. 156, Jyoti Apartment, Khasra no. 32, Village Neb Sarai, New Delhi68 from the defendant Ms. Mercy John. However, the defendant is given time upto 31.12.2018 for vacating the suit property and for this period, the plaintiffs would be entitled for damages of Rs.8000/ per month from the defendant from 13.11.2018 upto 31.12.2018 and thereafter, the rent/damages will be Rs.15,000/ per month payable to the plaintiffs till the handing over of the vacant possession of the suit property to the plaintiffs. Parties are left to bear their cost.
Relief in CS no. 7063/1614. In view of above discussion in issue no(s) 1, 2 and 3 of CS no. 7063/16, the suit of the defendant Ms. Mercy John stands dismissed. Parties are left to bear their costs.
Decreesheets be prepared accordingly. Files be consigned to record room.
Digitally signed by VINEETA VINEETA GOYAL
Pronounced in the Open Court GOYAL Date:
2018.11.14
on 13.11.2018 12:59:29 +0530
(Vineeta Goyal)
Additional District Judge
South District: Saket: New Delhi
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