Delhi District Court
Shri Nishith Goyal vs Rajendras' (Builders) on 29 March, 2014
IN THE COURT OF MS. KADAMBARI AWASTHI: CIVIL JUDGE-2
(CENTRAL): TIS HAZARI COURTS: DELHI.
CS No.1219/10
In the matter of :-
SHRI NISHITH GOYAL,
S/O Late Shri Narendra Goyal,
R/OP F-23, Press Enclave, Saket,
New Delhi-110017.
...................Plaintiff
Versus
1. RAJENDRAS' (BUILDERS),
Through its Director,
Shri Rajinder Jain,
N-52A, Connaught Circus,
New Delhi-110001.
2. SHRI AJAY SINGAL
S/O Late Shri M.C. Singal,
R/O 11/125, Gali No.1.
West Azad Nagar, Krishna Nagar,
Delhi -110051.
................Defendants
Date of institution : 06.11.1999
Reserved for Judgement : 25.03.2014
Date of judgment : 29.03.2014
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit for Specific Performance, Declaration Injunction and Damages/ Compensation filed by the plaintiff against the defendant.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 1
2. As per the plaint the facts of the case in nutshell are as follows:-
2.1 It is submitted that the plaintiff entered into the licence agreement dated 11.06.1986 with the Defendant No. 1 for the purchase of a shop /space covering 70 Sq. Mt. of the plot No. B-2, Local Shopping Centre, MMTC/STC, Malviya Nagar, New Delhi @ of Rs.850/- per Sq. Mt. (less discount) @ Rs.10/- Per Sq. Mt.) Net Rs.840/-. And the Office space bearing No. RMT-212on upper ground floor of the above stated plot was allotted to the plaintiff.
2.2 The plaintiff on demand notice by Defendant No. 1 for payment of installment, as per licence agreement between the parties has made the payment totaling Rs.25,640/- out of Rs.58,800/- between 14.06.1986 to 29.11.1986 by various cheques drawn in favour of Defendant No.1. The plaintiff on inquiry came to know that no construction has started /raised as per the agreement, it was expected that the construction of the aforesaid shopping complex would be completed soon. The plaintiff had written various letters to the Defendant and also approached personally to enquire about the construction and handing over the possession of the shop in question to him but the same has of no effect. It is further submitted that on finding no reply to the quarries of his letters, filed a written complaint in the Office of Director General (Investigation and Registration), MRTP, Shahjhan Road, New Delhi against Defendant No. 1 on 10.12.1994. In reply to this complaint of plaintiff dt. 24.03.1995, the defendant disclosed that " The construction is going on and plaintiff is expected to get the space with above a year time"
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 2 2.3 After initial payment the plaintiff never received any notice or letter to pay installment as no letter for making payment or installment was sent by Defendant No. 1. Even as per the terms and condition of the licence the defendant was supposed to send demand notice for payment of installment to the plaintiff. It is also submitted that plaintiff was always ready and willing to perform his part of contract by paying remaining installments in lump sum and as when demand in terms of licence agreement. The plaintiff also wrote a registered letter to Defendant No. 1 dt. 01.01.1997, whereby demanding to know the manner and method of payment of balance amount and further in respect of the possession of shop in question, but no reply of the same has been received from defendant No.1. It is further submitted that before the complaint being filed at MRTP Defendant No.1 had neither demanded for payment of balance amount nor had made any correspondence with respect to the formalities of handed over the possession of the shop in question to the plaintiff. It is also submitted that the meanwhile plaintiff came to know that recently the construction of the building had come to near completion, and the Defendant No. 1 was selling and transferring the build up shop at higher rate as the price of land has gone sky high in South Delhi. No action taken on the part of the Defendant No. 1 to hand over the possession of the allotted shop to the plaintiff was taken by the defendant No. 1.
2.4 The plaintiff through his counsel served a legal notice dated 19.08.1998 to Defendant No.1, demanded the possession of the allotted shop NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 3 asserting his readiness and willingness to perform his part of contract as well as abstaining the Defendant No. 1 from transferring and creating any 3rd Party interest in the shop in question. It is further submitted that plaintiff is legitimate allottee and has not received the possession of the shop and office space in question as Defendant No. 1 is guilty of deficiency in service inspite of the fact that the plaintiff was always ready and willing to perform his part of contract and to pay the balance price.
2.5 It is submitted that Defendant No. 1 deliberately and maliciously concealed the material and relevant facts with respect to the property in question and did not disclosed the same to the plaintiff at the time of entering into the license agreement dt. 11.01.1986. It is further submitted that Defendant No. 1 did not disclosed that land/ plot in question stood encroached and Defendant No. 1 was not in possession of the plot in question, at the time of entering into the agreement dt. 11.01.1986. It is further submitted that this fact was disclosed by Defendant in his reply dt. 24.03.1995 before D.G. A Civil Suit No. 442/85 which has been filed on
03.06.1985 by Defendant No. 1 for permanent and mandatory injunction against DDA for getting the possession of the plait in question. It is further submitted that the pendency of the above suit was not disclosed by the defendant at the time of entering into the contract with the plaintiff and thereby concealed important relevant facts and induced the plaintiff for investing his money for the purpose of property in question by deceptive practice. It is also submitted that defendant No. 1 is not only NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 4 liable for deceptive practice and false representation and withholding the material fact but also misrepresented the true nature of the existing situation to the plaintiff. 2.6 On this account the plaintiff has suffered not only mental but also monetary loss. It is further submitted that in proceeding before MRTP, Commission contrary stand has been taken by the defendant against the complaint filed by the plaintiff. It is submitted that the plaintiff is entitled to the damages as compensation amounting to Rs 1,80,000/-on account of loss and income which would have accrued to the plaintiff, if the possession of the shop in question would have been delivered to the plaintiff three years before as the shop in question i.e suit premises would have been let out @ Rs. 5,000/- per month, which was minimum prevalent market rate as the property is situated in the prime location of Malviya Nagar, New Delhi.
2.7 It is further submitted that the a complaint under Section 32 A and B along with Interim Relief Under Section 12 A of the MRTP Act before MRTP Commission had been filed Shahjahan Road, New Delhi and prayed was made the possession of plot in question and for inquiry to be initiated against the defendant no. 1 indulging in unfair trade practice and further that defendant No.1 be restrained from selling, transferring or creating third party interest in respect of the shop in question. The defendant No.2 herein filed his reply dt. 18.02.1999, thereby stating that the plaintiff herein was guilty of failure to make payment as per demands and NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 5 that the plot in question was cancelled and sold to third party. However, learned Director General vide his letter dt. 20.08.1998 again inquired about the matter. The defendant vide letter dt. 26.10.1998 again reiterated their earlier stand, the plaintiff vide his reply stated that no letter dt. 11.05.1996, 01.07.1996 or 07.11.1996 for demand of payment of balance amount had ever been received and further that the letters were false and fabricated to defeat the process of law as they were never sent by defendant no. 1 and further that the plaintiff received all the documents in 1999 from defendant no.1 during the proceedings before MRTP Commission. 2.8 It is submitted that cause of action firstly arose on 11.01.1986 and all the subsequent dates when the payments were made to the plaintiff and the plaintiff received the documents from defendant no.1 on 06.04.1999. It is also submitted that cause of action is still subsists and still continuing one.
A prayer is made before the Court to pass a decree of declaration in favour of plaintiff and against the defendant, declaring that the alleged cancellation of shop / space No. RMT/212 on Upper Ground Floor, in Rajendras Mahavira Tower at Plot No. B-2, Local shopping Centre, MMTC/STC, Malviya Nagar, New Delhi vide letter dt. 07.11.1996 is void, illegal and inoperative and to further declare that agreement dt. 01.04.1997 between defendant no.1 and defendant no.2 for the transfer of shop in question in favour of defendant no. 2 by defendant no.1 is illegal an inoperative, null and void and not binding upon the plaintiff, further a decree of specific performance of agreement dt. 11.09.1986 be passed in favour of plaintiff NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 6 and against the defendants directing the defendant no.1 to execute the registered sale deed in favour of plaintiff in respect of shop in question and to hand over the possession of the same.
It is further prayed that in alternative, if it is found by the court that the shop in question cannot be transferred in favour of plaintiff as prayed above, then in alternative, space / shop of the similar space and value in the same building be directed to be transferred / sold to the plaintiff against the payment made by the plaintiff in compliance of agreement dt 11.01.1986. It is also prayed that a decree for a sum of Rs. 1,80,000/- be granted in favour of plaintiff and against the defendant no.1 with pendentelite interest as compensation amount @ 18 % per annum till its realization and further damages on account of loss of income is prayed.
Plaintiff also prayed for permanent injunction be passed in favour of plaintiff and against the defendant restraining them to further transfer, sell, convey or create any 3rd party interest in plot / space No. RMT/212 on Upper Ground Floor, in Rajendras Mahavir Tower at plot no. B-2, Local Shopping Centre, MMTC/STC, Malviya Nagar, New Delhi. Further defendant no.1 be also restrained from transferring the possession to the defendant no.2.
3. Defendants were served and filed their respective written statements. Defendant No.1 has taken a preliminary objection that the present suit has been filed with frivolous and malafide intention. Further more it is stated that plaintiff has not approached the Court with clean hand. It is also submitted that plaintiff guilty of NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 7 suppressing material facts from the Court. Various other preliminary objection were also taken by the defendants which relates to mis-joinder of necessary party, vague plaint, bar of Promissory Estoppal. It is also submitted that the suit is barred under the provision of Indian Contract Act and plaintiff is guilty of misconduct and unprofessional and unethical dealing and cannot be allowed to put balm of his own doings / wrongs on the defendant. It is also submitted that suit of plaintiff is hit by law of limitation and hopelessly barred by time.
4. In reply on merit all the averments and assertion made against the defendant no.1 has been denied in toto.
4.1 In reply on merits on behalf of defendant No.1, it is stated that the para No.1 of the plaint is matter of record. However any thing contrary to the records is wrong and denied by the defendant no.1. It is submitted by the defendant No.1 that the suit space was tentatively booked in the name of the plaintiff subject to the payment of the agreed installments as per the agreement dated 11.06.1986 in reference and the same was not allotted in the name of the plaintiff. It is denied that the agreement entered in to was for 70 sq. mtr.. In fact it was for 70 sq. ft of super area.
4.2 It is contented that para no.2 of the plaint is a matter of record. However any thing contrary to the records is wrong and denied by the defendant no.1. It is also NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 8 submitted that plaintiff has paid only Rs.20,760/ and not Rs.25,640/- as alleged by him. It is wrong and denied that the plaintiff has complied with the every demand notice sent by the defendant or has paid the installments as per the agreement. 4.3 The contents of para no.3 of the plaint are stated to be wrong and denied. It is wrong and denied that the plaintiff, on an alleged inquiry, came to know that no construction had started/raised. It is submitted that the constructions of aforesaid shopping complex was going on and was at on the verge of completion. It is also wrong and denied that the plaintiff has written the alleged letters to the defendant no.1. It is further wrong and denied that the plaintiff has approached personally to enquire about the construction.
4.4 It is submitted that para no.4 as far as it relates to the filing of a complaint with the MRTP is a matter of record hence needs no comments. Rest of the para is wrong and denied as alleged. However, it is wrong and denied that the plaintiff ever made any alleged queries or that there was ever an occasion for the plaintiff to raise the same. It is submitted that the plaintiff has filed a frivolous complaint, devoid of any merits, with the Hon'ble MRTP Commission hence the same was not proceeded further and later on was withdrawn by the plaintiff without seeking any liberty to file a suit on the same cause of action. Hence, the suit is liable to be dismissed as barred by Principle of Resjudicata.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 9
5. In his written statement defendant no.2 taken same preliminary objection as stated by the defendant no. 1 in his written statement. 5.1 In reply on merits on the behalf of defendant no.2, it is submitted by defendant No.2 that the contents of para no.1 of the plaint are denied for want of knowledge. However, the pleadings of the plaint show that the plaintiff entered into a license agreement with the defendant no.1 in respect of space no.RMT-212, Plot No.B-2, Local Shopping Centre, MMTC/STC, Malviya Nagar, New Delhi but the License Agreement does not create any substantive right in favour of the party unless and until the terms and conditions are duly complied with. 5.2 It is further submitted that the plaintiff has not complied with the terms and conditions of the said agreement which is reflected from the pleadings on record because as per the averments of the plaintiff in para no.2 of the plaint the total consideration was 58,800/- and against the said total consideration the plaintiff has paid only a sum of Rs.25,640/- and this fact itself shows that the plaintiff himself has not complied with the terms of the agreement, therefore, the defendant No.1 was well within the rights to cancel the allotment/agreement.
5.3 It is further alleged that the plaintiff cannot take the benefit of his own wrongs. The plaintiff has himself defaulted in making the payment of the total said consideration as per the agreement, therefore, the present suit does not lie and moreover the plaintiff is fully aware that the space No.RMT-212, Plot No.B-2, Local NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 10 shopping centre, MMTC/STC, Malviya Nagar, New Delhi have been duly to the defendant No.2 and the defendant No.2 is in actual physical possession of the said shop and has equitable right to enjoy the same.
5.4 It is submitted that defendant no.2 is bonafide allotee of the said space No. RMT-212, Plot No.B-2, Local shopping centre, MMTC/STC, Malviya Nagar, New Delhi and has the right to enjoy the same.
5.5 It is submitted that contents of para no.2 of the plaint are denied for want of knowledge. However, the pleadings on record show that the plaintiff has not made any payment from 1986 to 1997 and, therefore, the plaintiff has himself committed default in making the payment of the total consideration to the defendant no.1 and under these circumstances the plaintiff cannot agitate/file this kind of suit. 5.6 It is stated that there has been alternative efficacious remedy in favour of the plaintiff. However, the pleadings on record also show that the plaintiff himself has been claiming damages in the suit and the suit for Specific Performance does not lie under the circumstances where the damages can be awarded. At the most it can be a case for non-compliance of the agreement between the parties and the damages can be an appropriate relief but a suit for Specific Performance does not lie under these set of circumstances, moreover when the plaintiff himself was a defaulter in making the payment of sale consideration.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 11 5.7 It is stated that the contents of para no.3 of the plaint are denied for want of knowledge. However, it appears from the averments in the said para that the plaintiff has made false, frivolous submissions in this para in order to file the present suit. 5.8 It is further submitted that the plaintiff also filed an application u/s 12-A of the MRTP Act wherein the plaintiff had prayed for ad-interim relief before the Hon'ble MRTP Commission and the Hon'ble MRTP Commission was pleased to refuse the grant of ad-interim relief and only then thereafter, the plaintiff has filed the present suit that too without seeking any leave and liberty from the Hon'ble MRTP Commission.
5.9 It is further stated that in case if there was any grievances on the part of the plaintiff in respect of the order passed by the Hon'ble Commission over UTP No. 16/99, then the appropriate remedy available to the plaintiff was u/s 55 of the MRTP Act for filing an Appeal before the Hon'ble Supreme Court of India but instead of doing the same by the plaintiff, the plaintiff has misused the process of law and filed the present suit.
5.10 It is stated that the petitioner has withdrawn the plaint from the Hon'ble MRTP Commission which clearly shows that the false, frivolous complaint was filed before the Hon'ble MRTP Commission in order to misuse the process of law. 5.11 It is further stated that contents of para no.5 of the plaint are wrong and NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 12 denied for want of knowledge. However, it is submitted that the pleadings of the plaint and MRTP Commission clearly shows that the defendant no.1 cancelled the allotment after giving due notice to the plaintiff. However, it is a matter of record that from 1986 to 1997 the payment of balance consideration was not made by the plaintiff and the defendant was well within the rights to cancel the agreement. 5.12 It is further submitted that the agreement do not constitute any substantive right in favour of the party unless and until the terms and conditions of the said agreement are complied with. The plaintiff was suppose to make the payment of the balance consideration in compliance of the said agreement but as the plaintiff himself has not complied with the terms and conditions of the agreement, therefore, the plaintiff cannot take benefits of his own wrongs and under the facts and circumstances when the said space has already been sold to defendant no.2. 5.13 It is stated that there is no privity of contract between plaintiff and defendant no.2. The defendant no.2 has been falsely implicated in the present suit without any justification. It is stated that plaintiff has cooked up a false and frivolous suit defendant no.2 who is the bonafide purchaser of the space and is in actual and physical possession of the shop/ space in question.
5.14 It is also stated that the plaintiff was fully aware regarding the facts and circumstances of the case in regarding the cancellation of the agreement and also NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 13 non-performance by him regarding the terms of the agreement. It is further submitted that the shop in question has been sold by defendant no.1 to the defendant no.2 and defendant no.2 is in possession of the said space.
5.15 All the assertion and averments made against defendant no.2 are denied in to-to by the defendant and it is stated that the present defendant is not aware of the proceedings before MRTP Commission as alleged. The plaintiff has came out with willful suppression of the material facts and deliberate concealment of facts in order to substantiate this case. A prayer is made before the court to dismiss the suit with cost by the defendants.
6. The plaintiff has filed replication to the written statements of the defendant wherein the content of the plaint reiterated and reaffirmed and allegation made in the written statement are categorically denied.
7. Following issues are framed vide order dated 07.12.2000 passed by Ld. Predecessor of this Court : -
(i) Whether suit is bad for mis-joinder of parties ? OPD.
(ii) Whether suit is properly valued for purposes of court fees & jurisdiction ? OPP.
(iii) Whether the suit is bad on preliminary objections raised in the written statement ? OPD NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 14
(iv) Whether the suit is barred by limitation ? OPD
(v) Whether the plaintiff is entitled to the relief claimed ? OPP.
(vi) Whether the plaintiff is entitled to damages ? OPP
(vii) Relief.
8. In support of his case the plaintiff has examined himself as PW 1 and he relied upon Ex. PW 1 /1 to Ex. PW 1/13.
8.1 During the course of cross examination the PW 1 admitted that Ex. PW 1/ 1 was executed between his mother and defendant no.1. The witness vol. deposed that his mother signed on his behalf and the same was executed in his name. He further deposed that on 11.06.1986 he was approximately 24 ½ years old. He further admitted that Ex. PW 1/1 does not bear his signatures and was not executed by him. He further deposed that he gave an authority to his mother to sign on his behalf and the said authority was in oral. The witness denied the suggestion that the amount for booking of the premises in question was Rs. 10,706/- only. He further admitted that Ex. PW 1/1 does not bear his signatures and was not executed by him. He further deposed that he gave an authority to his mother to sign on his behalf and said authority was in oral. The witness denied the suggestion that the amount for booking of the premises in question was Rs. 10,760/-only. He further denied the suggestion that defendant no.2 has been impleaded unnecessarily. He further denied the suggestion that when he failed to get the relief from MRTP NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 15 Commission, he withdraw the said complaint and filed the false and frivolous suit. 8.2 He further denied the suggestion that when he failed to get the relief from MRTP Commission, he withdraw the said complaint and filed the false and frivolous suit. He further admitted the fact that at the time when the present suit was filed, the complaint filed by him in MRTP was pending. He denied the suggestion that he neither performed his part of the contract and nor he had intention to perform the same. He further denied the suggestion that one of the relief sought by him before MRTP was for refund of the amount paid by him. He deposed that from 1989 to 1995 he inquired from defendant no.1 about the process of the construction but he did not remember the exact date month and year when he contracted the defendant no.1. He further deposed that he inquired from the defendant no.1 from 1989 to 1995 in writing but in voluntarily he said that he contacted the defendant no.1 telephonically, personally and by sending persons on his behalf. He further deposed that no such document whereby he had informed the defendant no.1 that he was willing to make the payment, has been placed on record. The witness further deposed that he asked the defendant no.1 in writing asking the possession of the shop in question and Ex. PW 1/9 is the letter which was written by him asking for the possession of the shop. He denied the suggestion that he had not received the letters written by defendant no.1 on dt. 14.03.1995, 01.05.1996. He further deposed that he did not received the letter dt. 07.11.1996 written by defendant no.1 to him. NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 16
9. Plaintiff relied upon the following documents : -
1. License agreement as Ex. PW 1/1.
2. Receipts issued by the defendant no.1 against the payment as Ex. PW 1/2 to Ex. PW 1/5.
3. Letter dt. 28.02.1989 sent by the defendant no.1 as Ex. PW 1/6.
4. Reply of the defendant dt. 24.03.1995 against written complaint dt. 10.12.1984 before MRTP as Ex. PW 1/8.
5. Letter dt. 01.01.1997 whereby plaintiff demanded manner and method of payment of balance amount as Ex. PW 1/9.
6. Legal notice dt. 19.08.1998 as Ex. PW 1/10.
7. D.G. Letter as Ex. PW 1/13 and reply is Ex. PW 1/14.
8. Order of MRTP dt. 28.06.1999 as Ex. PW 1/15.
10. In support of his case defendants examined Sh. Sanjay Jain as DW 1, who is attorney of the defendant no1.
10.1 The DW 1 in his cross examination deposed that he is working with the defendant as a sale executive and employed with the defendant no. 1 since 1989 as a Supervisor and having the knowledge of the present suit as per record prior to his joining the defendant company. He further deposed that all the transactions in the present suit took place before his joining the defendant company and as such he has no personal knowledge of the same except what he gathered from the record. NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 17 He further deposed that he cannot tell about the agreement Ex. PW 1/1, which was executed between the parties. He further deposed that he has no knowledge that whether any discount was given in the said agreement. He denied the suggestion that said space was for total Rs. 58,800/- after giving the discount to the plaintiff. He voluntarily deposed that discount was always given after the full payment as per agreement. He further deposed that plaintiff had paid them a total sum of Rs. 25,000/- approximately and the same was paid by the plaintiff in form of cheques out of which two cheques of the plaintiff bounced. He further deposed that he cannot tell the exact amount of the bounced cheques and the only cheque was cleared for Rs. 10,760/-. He further deposed that he do not remember the exact amount of cheque which was given by the plaintiff on the day of agreement was executed. He also do not remember the last payment / cheque paid the plaintiff. He further deposed that he do not remember that they ever notify the plaintiff about the bouncing of the cheques. He further deposed that he do not remember if any notice / letter / personal information was every given to the plaintiff regarding his bouncing of the cheques. 10.2 He further deposed that he do not remember that if any legal proceedings were initiated against the plaintiff or the bouncing of his cheques. He admitted that they had not mentioned about the bouncing of the said cheques in the letter Ex. PW 1/6 dt. 28.02.1989 or in letter Ex. PW 1/8 dt. 24.03.1995 which is in the form of reply which was filed before Assistant Director General of Investigation and Registration or any other letter subsequent to it. He denied the suggestion that whole NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 18 story of bouncing of cheque has been concocted and is false. He denied the suggestion that plaintiff has paid a total amount of rs. 25,640/-. He admitted the fact that whenever plaintiff has paid his installments, they had issued duly executed receipts and the same have been exhibited as Ex. PW 1/ 2 to Ex. PW 1/5. The witness further deposed that they maintained the record of the letter served on various clients and they have also maintained the record of the letters they have issued or served on the plaintiff. He further deposed that he cannot tell the date of the first letter the defendant had sent to the plaintiff. He further deposed that he cannot till date of the letter prior to the year 1989. But voluntarily said that letters might have been sent after the agreement and there is no letter placed on record prior to February, 1989 i.e. Prior to Ex. PW 1/6. DW 1 further deposed that they have sent letters which are Ex. DW 1/2 to Ex. DW 1/5 and Ex. DW1/2 was sent vide speed post receipt Ex. DW 1/2A and its confirmation by the postal department is Ex. DW 1/2B.
10.3 Further DW 1 admitted the fact that on the said receipt Ex. DW ½ A the complete address of the plaintiff is not written. He further admitted the facts that Ex. DW 1/2B also do not mention the name and address of the plaintiff. He further deposed that speed post was sent without AD card, thus, it is correct that they do not possess the signed acknowledgment of the plaintiff. The witness voluntarily said that the confirmation of delivery is however made vide postal receipt Ex. DW 1/2B. He further deposed that Ex. DW 1/3 was sent vide UPC the entry of which is shown NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 19 in register Ex. DW 1/3A. Maintained in due course and the first entry in the dispatch register is beginning from Sl. No.1 dt. 23.05.1994. This serial number goes in chronological order up till serial No. 13.06.1995. It is correct that there is no entry no. 429 against serial No. 432 there is blank space and the space have been left in between serial no. 434 and 435 and after 436 also there is a blank space against Sl. No. 438, 439, 441, 442, 444-449, 452, 454, 455, 457-458 and there is no entry No. 459, 461,462. He further deposed that there is cutting of Sl. No. 481. He further deposed that the entry No. 481 which is dt 26.08.1995 is cancelled and there is no entry by the said serial in the next page which starts from Sl. No 482 and as dt. 25.08.1995 which is continued till 498 and there is no entry at Sl. No. 499, 500. The entries again start from Sl. No. 577 dt. 17.11.1995 till 579. There is no Sl. No. 580, there entries again start from Sl. No. 581 till 582 and there is no entry as 583 and SI. 10.4 Again starts from 584 to 586, there is no serial number DW 1 admitted the fact that said serial no. from 501 again starts from 10/15 pages down the register and there are double entries as 577 till 579 which dt. 17.11.1995 in the name of Mr. Khemraj Gauri Savaria, Sh. Ashvini Khanna, Sh Sunil Gandhi nad there are another set of entries from 577 to 579 dt. 25.10.1995 in the name of Mrs. Santosh Garg, Sh. Ishwar Chand and Sh. Surjeet Singh and similarly there is a double entry at SI No. 581 which is dt. 18.11.1995 and another entry which is 25.10.1995. DW 1 denied the suggestion that the entry which Ex. DW1/4A, which has been produced to prove the service on the plaintiff is manipulated and fabricated. He admitted the fact that there NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 20 are two entries as 1208 one is dated 01.07.1996 which is in the name of Sh. Nishith Goyal and the other is dt. 12.071996 which is in the name of Sh. K.L. Monga and Yogender Kumar. He further deposed that they have served the plaintiff with the cancellation letter on 07.11.1996 and in this letter they have not mentioned about the transfer of the said property to the defendant no.2. He denied the suggestion that cancellation letter dt. 07.11.1996 was never served on the plaintiff.
11. Defendant relied upon the following documents :
(a) SPA as Ex. DW1/1
(b) Demand notice dt. 14.03.1995, 01.05.1996, 01.07.1996 and 07.11.1996 as Ex. DW 1/2 and Ex. DW 1/5.
(c) Speed Post Receipt as Ex. DW 1/2A.
(d) Copy of postal endorsement as Ex. DW 1/2B.
(e) Copy of postal endorsement / dispatch registered as Ex. DW 1/ 3A
(f) Copy of dispatch registered Ex. DW 1/4A.
(g) Copy of dispatch register Ex. DW 1/5A.
12. My issue wise findings as follows :
13. ISSUE NO. 1
Whether suit is bad for mis joinder of parties? OPD -1.
13.1 In the cross examination of PW 1 it has been admitted that the
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 21
agreement Ex. PW 1/1 was executed between the mother of the plaintiff and defendant no.1. The mother of the plaintiff has signed on his behalf agreement and same was executed in the name of plaintiff. It has been deposed that the date of birth of plaintiff is 05.09.1961 and on the date of agreement he was of 24 and a half year of age and was a major. It is also admitted that Ex. PW 1/1 does not bear the signature of the plaintiff and was not executed by him. Plaintiff claims to have given authority to his mother to sign Ex. PW 1/1 on his behalf and it is also stated that said authority was so given was oral and there was no document in writing. Whereas it is claimed on behalf of plaintiff that the onus is on the defendant to prove the issue and since it is stated that agreement Ex. PW 1/1 dated 11.06.1996 was signed by mother of plaintiff who was not party of the case, hence there was no privity to the agreement. It is claimed that the said agreement itself speaks volumes and it is claimed to be executed between Sh. Nitish Goel and defendant no.1. It is also claimed that the plaintiff's mother signed the above said agreement for and on behalf of plaintiff who has authorized and give authority to his mother to do so and the said agreement was in the name of Sh. Nitish Goel and defendant no.1. It is also claimed that plaintiff has been acknowledged by defendant no. 1 as party to the agreement in his reply dated 24.03.1995 and Ex. PW 1/8 is evidence of the fact. Even before the director of MRTP the same has been admitted the name of plaintiff in the contract. It is argued that there is privity of contract between the plaintiff and defendant no.1, thus the plaintiff who is not a stranger to agreement has every right to enforce the same. It is also argued that allegations made and objections raised by the defendant NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 22 that the suit is bad for mis joinder of the parties is vague , frivolous and has no merit.
13.2 Perusal of the record reveals that the agreement Ex. PW 1/1 dated 11.06.1986 was executed by mother of the plaintiff and defendant no. 1. Admittedly mother of the plaintiff is not a party to the case and the plaintiff has no a privity to the agreement. It has also been admitted by the PW1 that agreement was executed by his mother. Plaintiff tried to raise the plea that there is an authority to enter into an agreement with the defendant by his mother who has executed the agreement on his behalf, however witness did not produced the any authority letter which may suggest so. It is also revealed in cross examination that the authority was oral in nature. It is also established law of the land that only the person who has execute the agreement is the party to the agreement. In the suit of specific performance the mother of the plaintiff has not been made a party nor she is produce as a witness by the plaintiff. Suit is of plaintiff suffer the defect of misjoinder of the property. 13.3 I am of the view that there is no privity of the contract between plaintiff and the defendants, especially when the plaintiff was major on the date when the agreement in question was entered between, mother of the plaintiff and the defendant, had the mother of plaintiff would have been a party in the case, the dynamic of the case would have been tilted in favour of plaintiff. No benefit of any principle of Estoppal or of 'Exclusion Clause' is to be given the plaintiff in view of the present facts and circumstances of the case.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 23 For the reasons above stated the issue is decided in favour of defendant and against plaintiff.
14. ISSUE NO.2
2. Whether suit is properly valued for the purpose of court fee & jurisdiction ? OPP 14.1 It is submitted on behalf of plaintiff that the value of the suit for the purpose of court fee and jurisdiction is of that they have valued the suit for the purpose of specific performance of Rs. 58,800/-, for the purpose of damages the court fee, the valuation of suit is fixed as Rs. 1,80,000/-, for the purpose of declaration court fee, the valuation of suit is fixed as Rs. 200/- and for the purpose of injunction Rs. 130/-. Accordingly the requisite court fee of the relief sought was paid by the plaintiff. However, it is argued on behalf of defendant that the suit is not property valued for the purpose of court fee and jurisdiction since the plaintiff has purposely mis-represented his claim and alleged damage as sought by the plaintiff on account of alleged loss of income which would have accrued to the plaintiff if the possession of shop in question would have been delivered to plaintiff three years before is not base of actual dynamics. However, defendant have not rebutted the claim of the plaintiff in respect of the appropriate valuation of the suit and court fees apart taking assertions in their WS. No evidence is adduced in regard to rebut the claim of the plaintiff in this regard. Further, keeping in view the same is issue related to court fee and jurisdiction is decided accordingly.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 24 15. ISSUE No. 3 AND ISSUE NO. 4
3. Whether the suit is bad on preliminary objections raised in the written statement ? OPD.
4. Whether the suit is barred by limitation ? OPD 15.1 Needless to say that onus was cast up on defendant to prove the issue, however, it is contended on behalf of defendant that the defendant has filed a complaint in 1994, under section of 12 & 13 MRTP Act before MRTP Commission. The same was withdrawn by the plaintiff on 10.12.1999. There was no question of seeking any liberty from the MRTP Commission as the plaintiff had filed the present suit before withdrawing the complaint before the MRTP Commission. It is argued on behalf of defendant that plaintiff has very strangely abandon the proceedings before the MRTP Commission and withdraw his complaint on 10.12.1999 instead of leading evidence therein. It is the contention of the plaintiff that specific agreement dated 11.06.1986 with the their party i.e. defendant no.2 is illegal and defendant no. 2 is not a bonafide purchaser.
15.2 It is argued on behalf of defendant no.1 that the similar issues and contentions have already been raised by the plaintiff before the MRTP commission and the said complaint was withdrawn without seeking any liberty to file present suit. Thus the present suit is barred from the u/o 2 Rule 2 CPC. Further, the objection NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 25 raised the suit of the plaintiff is barred from limitation as much as alleged objection relate back to year 1986-1987. However, it has been contended on behalf of plaintiff that as per the law of the land if the second suit is filed before the first suit is withdrawn, Order 23 Rule 1 CPC is not attracted and the second suit cannot be dismissed U/o 23 Rule 1 CPC even otherwise MRTP Commission is not a court, hence Order 23 Rule 1 CPC is not applicable to it. It is further contended that the present suit is not barred by Order II Rule 2 CPC on the principle of resjudicata as the claim in the present suit and cause of action are distinct form the one pending before MRTP. It is further contended that the complaint before the MRTP Commission was under Section 36 A & B for unfair Trade Practice and possession of the suit property while the present suit is for Specific Performance, declaration, injunction and damage / compensation.
15.3 The Court is of the view that, the contention of the ld counsel for the defendant has, substance, the there is no denial from the fact that the commission of MRTP is a quasi judicial institution, the plaintiff has not disclosed the true affiars of the facts before the commission and withdraw the suit without seeking the liberty to file a fresh suit on the same grounds before a civil court. Had the plaintiff sought the liberty from the MRTP Commission, the limitation of the suit would have been covered but since no such liberty was granted by commission of suit of the plaintiff is apparently becomes time barred.
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 26 15.4 The suit as alleged cause of action occurred in 1995-1996. It is also claimed that defendant had given many opportunity to plaintiff to take possession of the suit premises after making balance payment but the plaintiff himself avoid to take possession of the suit property. It is admitted that the last payment was made to the plaintiff on 29.11.1986 by way of cheque to the defendant no.1 and thereafter it is claimed that since he has not received any communication in respect of further payment despite best efforts hence the plaintiff could not deposited the rest of the amount in time to the defendant. However, it is pertinent to mention that the lease deed / contract on which the parties are relying upon stipulate vide clause 37 of the contract that, if the licensee fails to pay the installment of the shop in question for more than 45 days the allotment made to the second party would made to the party would be cancelled automatically.
15.5 Furthermore, Clause 37 (a) of the same contract provides, that a penalty of Rs. 500/- per day would be imposed on the defaulting party up to a delay of 45 days as liquidated damages and in case the delay in payment of any installment exceeds 45 days then the agreement for license will automatically stands cancelled and all amounts previously paid thereafter shall stand forfeited to the builder. It is also stipulated that time is essence of the contract. Contention raised by the defendant claiming that the suit of plaintiff is hit by law of limitation since first of all he has instituted a complaint before MRTP Commission bearing No. 369/98 which NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 27 was withdrawn by the plaintiff on 01.12.1999 after filing the present suit in November, 1999. It is stated that the last payment was admittedly made in July, 1986 and thereafter the plaintiff slept for more than 12 years. The limitation of relief of specific performance is of 3 years. Accordingly to article 59 of limitation Act. I find substance in the argument of ld counsel for the defendant since if the period when the said complaint was filed before the MRTP Commission and the institution date of the present suit be seen the in between period if treated to be a period when the plaintiff was bonafidely contesting his suit before the Commission and a benefit of Section 14 of Limitation Act be given then also the suit of plaintiff is hit by Section 3 of the Limitation Act. There is nothing on record to show that during the last 12 years ( July, 1986 to 1998) the defendant acknowledge the claim of the plaintiff and given any receipt within the meaning of Section 18 or 19 of Limitation Act. The suit of plaintiff is clearly hit by not only limitation but also barred under Order 2 Rule 2 CPC.
For the reasons above stated the issue are decided in favour of defendant and against plaintiff.
16. ISSUE NO. 4 AND ISSUE NO. 5
4. Whether the plaintiff is entitled to the relief claimed ? OPP.
AND
5. Whether the plaintiff is entitled to damages ? OPP 16.1 From the deliberation in the previous issue it is settled that suit of plaintiff is hit by limitation and hence the plaintiff is not entitled for the claim of Specific Performance as sought by him. The perusal of the record reveals that the NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 28 contract in question was subject to a automatic cancellation clause therein, which not only cancelled the license deed in favour of plaintiff due to non payment of the installment in time but also made it clear that time is essence of the contract. The contention of the plaintiff that he has not received any communication in respect of the demand of the shop in question by the defendant time to time hence, he was not able to furnish the installment in time. It is claim that by the plaintiff that due to the mischief of the defendant no communication in this regard was ever received by him, however, various letters, copies of postal receipts filed on behalf of defendant transpired otherwise.
16.2 It is also pertinent to mention that no where the plaintiff has claimed that these documents contains his incorrect address. Neither in the plaint nor his affidavit or cross examination. It is established law of the land that relief of specific contract is a discretionary relief which can be bestowed upon a party by the court after considering not only the compelling facts and circumstances of the cases but also sifting equitable consideration and the feasibility of the contract. In my opinion in the present case the plaintiff slept over his right for more than 12 years and one fine morning he moved before MRTP Commission with a complaint against defendant which was withdrawn and the present suit was filed by the plaintiff before the withdrawal of the complaint before MRTP. It also could not save the suit of the plaintiff and the same is inevitably hit by Section 3 of Limitation Act rendering the claim of the plaintiff unenforceable within the parlance of law, further more the NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 29 space/shop in question has been handed over to a third party, who has purchased the same for valuable consideration from defendant No 1. It is also pertinent to mention that plaintiff has himself claimed damages in the suit and in such circumstances the relief of specific performance can be bestowed upon the plaintiff. It also demands equitable consideration to be taken in account, while passing any such order. No grounds are made out to grant even the amount prayed by the plaintiff in alternate to the relief of specific performance. 16.3 As far as the amount of interest is sought by the plaintiff on the on the decreetal amount is considered the plaintiff has failed to show the quantum of damages on the basis of which he has been claiming the said interest. The assertion of the plaintiff that the shop in question would have fetch a rent of Rs. 5000/- per month has not been proved anywhere by any corroborative evidence. I have no hesitation in holding that the same is nothing but bald assertion made without any cogent evidence. Since the plaintiff is not entitle for any decreetal amount in lieu of the decree of specific performance, hence, no question of any interest upon the same arises.
For the reasons above stated the issue are decided in favour of defendant and against plaintiff.
17. RELIEF NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 30 17.1 For the forgoing reasons the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared.
File be consigned to record room.
Announced in Open Court
today i.e. 29.03.2014 (KADAMBARI AWASTHI )
Civil Judge-02/Central/Delhi
NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 31
CS No.1219/10
29.03.2014
Present: None.
Vide separate judgment the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared.
File be consigned to Record Room.
(KADAMBARI AWASTHI ) Civil Judge-02/Central/Delhi 29.03.2014 NISHITH GOYAL VS. RAJENDRAS' (BUILDERS) VS. ORS. CS/1219/10 PAGE NO. 32