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Showing contexts for: m-tech developers in Sh. Kawaljeet Singh Kohli vs M/S. M. Tech Developers Ltd on 30 August, 2014Matching Fragments
1. The present suit was filed by the plaintiff against the defendant on 04.08.2010. The brief facts of the suit as narrated in the Plaint are as follows: "Defendant is a company incorporated under Companies Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 Act, 1956 and engaged in the business of various land projects including the residential complexes/ townships/commercial complexes/built up houses, villas, etc. On the inducement and allurement of the defendant, the plaintiff had booked an individual Villa in the land project of defendant at Bhiwadi (Rajasthan) @ Rs.1,250/ per sq. ft. on plot admeasuring 300 sq. yards and made a part payment of Rs.3,00,000/ (Rupees Three Lacs only) vide cheque no.305007 dated 19.05.2006. The said payment was duly acknowledged by the defendant by issuing receipt no.2027 dated 15.06.2006 to the plaintiff. At the time of booking, the plaintiff was assured by the defendant that the possession of the said Villa would be handed over to him within a period of 24 months. But despite a number of enquiries made by the plaintiff from time to time from the defendant regarding development of the project, no proper response was received from the latter. On making further enquiries, the plaintiff came to know that no approval was obtained by the defendant from the competent authorities for the said project and that no construction had started at the site even after the lapse of three years. The plaintiff immediately brought the said fact to the knowledge of the defendant and asked for refund of his registration amount of Rs.3,00,000/ and the defendant agreed to refund the aforesaid booking amount along with interest @15% per annum. The plaintiff, on the instructions of the defendant, Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 surrendered the provisional registration with photocopy of Receipt no.2027 to the defendant by moving Surrender Request Application dated 29.12.2008 and while acknowledging the surrender request, the defendant issued a letter dated 22.01.2009 to the plaintiff assuring therein that the defendant would refund the advance/booking amount to the plaintiff by way of demand draft on 25.05.2009. But the said amount was never refunded by the defendant to the plaintiff despite several requests made by the plaintiff. Finally, the plaintiff served a legal notice dated 29.12.2009 upon the defendant for refund of the advance/booking amount of Rs.3,00,000/ along with interest @15% per annum. But despite the service of legal notice, the defendant failed to refund the said amount and hence, the present suit."
Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10
13. Now let us come to the interest sought by the plaintiff. The plaintiff has sought interest - presuit, pendentlite and future, @15% per annum. The plaintiff/PW1 has deposed that when he demanded refund of his money, while bringing to the notice of the defendant the facts regarding not obtaining any approval from the competent authorities for the land project by the defendant and further regarding fraudulent tactics adopted by the defendant to usurp the hard earned money of the plaintiff and other innocent investors, the defendant agreed to refund his booking amount of Rs.3,00,000/ along with interest @15% per annum. The counsel for plaintiff has argued that the standard format of Surrender Application/Letter dated 29.12.2008 i.e. Ex.PW1/4 was provided by the defendant itself to the plaintiff and one of the terms of the said letter grants interest @15% per annum. But the counsel for defendant has vehemently argued that the said letter could not be termed as agreement between the plaintiff and the defendant regarding the rate of interest. I find force in his contention as the said letter is simply a letter written by the plaintiff to the defendant expressing therein his wish to surrender his provisional registration of Villa due to non development in the project and further requesting the defendant to refund his amount along with interest @15% per annum from the date of payment. This request of plaintiff in no manner can be construed as agreement between the plaintiff and the defendant Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 even if the standard format of said letter was provided by the defendant. The counsel for defendant has further argued vehemently that the interest clause has already been deleted in the Surrender Application Ex.PW1/4 and therefore, the plaintiff could not claim any interest. The plaintiff/PW1, in his crossexamination, has deposed that he had not deleted the said clause and that the same might have been deleted by the defendant only. The same sounds convincing as the deletion would have affected him adversely but favourably to the defendant. Moreover the said deletion/cutting is not bearing any signature/initials of any of the parties and hence could not be relied upon. There is one more reason also i.e. the said deletion pertains not only to interest but to the principal amount also i.e. the amount paid by the plaintiff to the defendant and had the said clause been deleted, then why the defendant would have issued letter dated 22.01.2009 i.e. Ex.PW1/5, assuring therein to refund plaintiff's amount by way of demand draft on 25.05.2009 !! Hence the contention of the counsel for defendant is rejected being totally baseless and meritless. This Court is of the considered opinion that the plaintiff is entitled to reasonable rate of interest as he has suffered loss because his money is lying blocked for the last almost 8 years and he has been deprived of its use by the defendant.
14. Now the question arises that from which date the interest should be Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 awarded? The plaintiff has claimed interest from the date of booking i.e. from 19.05.2006. But the counsel for defendant, while relying upon judgment of Hon'ble High Court of Delhi in Zile Singh Vs. Mangloo Ram Bansal, RSA No.195/04, has vehemently argued that the interest, if awarded, could not be awarded from the date prior to the date of legal notice although the defendant has denied the receipt of legal notice. Let us first take up, before taking up point relating to ascertaining the date from which interest could be awarded, the issue raised by the defendant's counsel regarding nonservice of legal notice. The defendant has simply denied the service of legal notice in Written Statement as well as in the suggestions given to PW1 in his crossexamination. The PW1 has deposed that he had served the legal notice dated 29.12.2009 i.e. Ex.PW1/6 upon the defendant vide postal receipt and AD card i.e. Ex.PW1/7 and Ex.PW1/8. It is settled law that once the letter is sent through registered post at correct address and AD card is received back bearing some signatures, the presumption is drawn about its service upon the addressee unless the same is rebutted. It is held by Hon'ble High Court of Delhi in Smt. Bhavneshwari Devi Vs. Kalyan Singh, 1993 (2) RCR (Rent) 330 that presumption of service arises in law if the AD card of registered post is received back bearing signatures of someone. The Hon'ble Supreme Court has gone even a step further and held that even if the AD card is Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 lost or does not come back for any reason, the presumption of service could still be drawn. It has been held by the Hon'ble Supreme Court in Basant Singh Vs. Roman Catholic Mission, 2002 A.I.R. (SC) 3557, "Civil Procedure Code, Order 5 Rule 19A(2) General Clauses Act, 1897, Section 27 Service by Registered post Registered post Presumption of Service Summons properly addressed sent by registered post with acknowledgement due Notwithstanding loss of A.D. card/not received back for any reason, a presumption of due service is attached However the presumption is rebuttable It is for the addressee to prove that the registered notice was not presented/reached to him for service."
Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10
15. Now let us take up the other issue raised by the counsel for defendant regarding the date from which interest could be awarded. The Hon'ble High Court in Zile Singh Vs. Mangloo Ram Bansal (supra) has held that so far pendentlite and future interest are concerned, Sec.34 CPC is applicable but the payment of presuit interest is governed by Sec.3 and 4 of Interest Act, 1978. As per Sec.3(1)(a) of Interest Act, if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, the interest may be allowed from the date when the debt is payable. And as per Sec.3(1)(b) of Interest Act, if proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, then the Court may allow interest from the date mentioned in this regard in the written notice given by the person entitled. It has been held by the Hon'ble High Court in the abovesaid case, "There is no dispute that in the present case there is no written instrument under which the debt is payable at a certain time. The plaintiff has also not averred in the plaint that there was any agreement with the defendants regarding payment of interest or there is any usage having the force of law regarding payment of interest. In the absence of any proof of agreement, either express or implied, or usage having the force of law regarding payability of interest, and in the absence of any written instrument, the claim of interest can be Kawaljeet Singh Kohli Vs. M/s. M. Tech Developers Ltd. CS No. 162/13/10 sustained only if it is proved that a written notice of demand to that effect has been issued."