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10. The defendant in parawise reply denied all the avernments of the plaintiffs and reiterated the defense taken in preliminary submissions.

CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 6/ 25

11. In replication, the plaintiffs reiterated its stand and denied the avernments made by the defendant in written statement. It is stated that the defendant failed to allot the unit and even defendant failed to obtain the occupation certificate qua the said project after passing of considerable period and consequently plaintiffs was constrained to cancel the booking and called the defendant to pay the amount with interest. The plaintiffs issued the cancellation letter dt.12.11.2016 feeling aggrieved the inaction part of the defendant, therefore liable to refund the entire amount with interest and cost etc. The letter of cancellation dt. 02.11.2017 issued by the defendant was not received by the plaintiffs and there was no occasion for the defendant to issue the letter when the plaintiffs had already cancelled the said booking. The defendant had no right to deduct any amount from the earnest money or otherwise. The defendant always kept the plaintiffs in dark and always made false declaration about their project and their directors cheated and defrauded the plaintiffs. The plaintiffs were always ready to pay as per the agreed terms but the defendant failed to adhere to their premises and failed to start the project at the spot and other activities. The demand letter dt. 08.12.2015 is fabricated and manipulated one. The present suit is filed within limitation. The cancellation letter dt. 02.11.2017 and cheque are sufficient to file CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 7/ 25 and maintain the suit against the defendant and suit of the plaintiffs is within limitation.

15. DW1 Sh. Manish Gupta has tendered his affidavit of evidence as Ex.DW1 and in cross examination stated that he had joined the defendant company as Legal Manager one and a half years back and he did not aware whether he is authorized to lead evidence in the present matter. The project Byron was started by defendant company in the year 2011. He did not know when the defendant company got the sanction plan of the project namely Mindspace. He further stated that the plaintiffs applied for virtual IT office space in the year 2012 but he did not know whether the defendant company had taken any sanction plan after starting the CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 9/ 25 project Mindspace. All the approvals such as fire NOC and other related NOCs were taken by the plaintiffs time to time. He however stated that he did not remember when these NOCs was applied and obtained by the defendant company. He stated that it is correct that pursuant to the plaintiff's applied in the project namely Mindspace, the payment plan/price list was shared with the plaintiffs by the defendant. The demand letter dt. 28.06.2012 (Ex.PW1/4) was sent by the defendant company to the plaintiffs and the plaintiffs complied with the said demand letter and prior to said letter, paid the booking amount of Rs. 3.5 Lacs. He further stated that he did not know whether the demand dt. 08.12.2015 sent after lapse of 3 years. He also stated that it is correct that it is a matter of record that any interest charged to the plaintiffs in the letter dt. 08.12.2015 was unilaterally issued by the defendant company without any justification. He also stated that it is correct that the third demand was due within 90 days of the booking/ receipt of sanctioned plan. It is also a matter of record that in Ex.PW1/1 that this payment plan/ application form does not mention regarding the payment made on application or receipt of sanction plan. It is also correct that assured return of 12% p.a. is mentioned in the application form. He stated that it is correct that letter dt. 08.12.2015 (Ex.PW1/6) was not sent within the specified period, however, it is the responsibility of customer to follow the payment schedule. He also stated that it is correct CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 10/ 25 that the letter of cancellation/ refund of payment made to the defendant company by the plaintiffs is a formatted letter Ex.PW1/9. He further stated that he do not know when the occupation certificate was applied and it was applied within time as specified by clause 16 of application form. He also stated that it is a matter of record that in terms of clause 15, the defendant is liable to pay compensation of Rs. 10 per sq. ft. per month. He denied the suggestion that there was delay in the project. He also denied the suggestion that pursuant to the cancellation of booking by the plaintiffs, the entire amount was not given nor any compensation was given. He also stated that it is correct that some investors approached NCLT, however, only for assured return and the matter has already been settled.

CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 12/ 25 65,730/- and the defendant not paid full amount. The formatted letter dt. 12.11.2016 Ex.PW1/9 itself reveals that the plaintiffs only filled the format provided by the defendant whereby the defendant himself mentioned in the last para of letter regarding "refund of the amount paid". The said letter do not mention about any forfeiture of the amount and if plaintiffs know forfeiture of the amount then the plaintiffs would not have gone ahead with the cancellation. The clause 20 of the application form is one sided clause only to the benefit of defendant, thus, cannot relied upon. The defendant made the payment agreed to the demand, however, the defendant failed to raise the third demand as per the schedule, and third demand is to be raised within 90 days which was raised on 08.12.2015, after a gap of 3 years. The third demand is to be within 90 days of sanction plan, however, there was not mention of receipt of sanction plan. The project was delayed on the part of the defendant even in terms of Ex.PW1/1. No assured return was paid by the defendant to the plaintiffs, the said assured return @ 12% would come to Rs. 1,44,000/- till the cancellation and if the interest is to be calculated at the meager 9% per annum on the said amount, the same would come around Rs. 2,50,000/- till today. As per clause 15 of MOU, the defendant company was to obtain the occupation certificate within 24 months from the date of signing of MOU. The MOU was not executed and the construction activity did not even start until CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 13/ 25 2015-16. The occupation certificate has been received by the defendant qua the project only on 02.06.2022. The defendant has to pay the compensation @ 10% per sq. ft. for the delayed period, however no such compensation has been paid to the plaintiffs. The registered office of the defendant is within the jurisdiction of this court, therefore, this court has jurisdiction to try the present matter. The limitation period will start when the plaintiffs received the cancellation letter Ex.PW1/10 and cheque. The suit is filed within the time. The appropriate court fees is paid. The defendant has no right to deduct such huge amount of Rs. 5,52,810/- and the plaintiffs is entitled for the relief claimed.

19. Written submission filed by both the parties.

20. Arguments heard. Record perused.

CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 14/ 25

21. My issue-wise findings are as under :

Issue No. (iv) :Whether the plaintiffs is entitled to decree of recovery of Rs. 6,18,540/- ? OPP Issue No. (v): Whether the plaintiffs is entitled to interest, if yes, then at what rate? OPP Issue no. (vi): Whether the plaintiffs is entitled to cost of the present suit? OPP The case of the plaintiffs is that on the assurances of the representative of the defendant company that the plaintiffs will get multiple returns on investment of defendant's project which is to be launched within 3 months in 2012 and the date of possession is to be informed later on, therefore, the plaintiffs agreed to book the IT space measuring 500 sq. ft. in the aforesaid project and paid a sum of Rs. 3.5 Lacs as first installment and thereafter paid a sum of Rs. 2,68,500/- towards another installment on the basis of demand letter dt. 28.06.2012 issued by the defendant. The defendant thereafter not apprised about the initiation of the project, but in the month of January, 2014 received a letter of Bhoomi Poojan but the project could not took off. After about 3 years, on 08.12.2015 plaintiffs received a demand letter of Rs. 3,13,050/- and thereafter reminder of the same on 29.12.2015 but the third payment was due within 90 days i.e. 14.07.2012, however, the defendant not raised any demand letter within 90 days but after about 3 years. The plaintiffs thereafter enquired from Vipin Gupta about the progress CS (COMM) 456/2019 DHIRAJ GROVERs. IMPERIA STRUCTURES LTD. dt. 31.07.2024 15/ 25 of the project but he was silent. However, on 15.03.2016, plaintiffs received another letter from the defendant that the project name has been changed and demanded more payments. Thereafter the plaintiffs refused to make the further payments and alleged to have been cheated by the defendant. The defendant again on 07.11.2016 raised another demand letter. Thereafter the plaintiffs approached Vipin Gupta on 12.11.2016 who assured to return the entire payment of Rs. 6,18,540/- without any deductions. The plaintiffs also handed over the request letter dt. 12.11.2016 for refund of the entire amount, however, not received the refund. But on 02.11.2017, defendant sent a cancellation letter after referring to clause no. 20, and sent a cheque of Rs. 65,730/- dt. 24.11.2017 for refund of the amount.