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Showing contexts for: m-tech developers in Sh. Gagan Deep Singh Kohli vs M/S. M. Tech Developers Ltd on 30 August, 2014Matching Fragments
1. The present suit was filed by the plaintiffs against the defendant on 04.08.2010. The brief facts of the suit as narrated in the Plaint are as follows: Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 "Defendant is a company incorporated under Companies 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 plaintiffs 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.3,75,000/ (Rupees Three Lacs and Seventy Five Thousand only) vide cheques no.466351 & 448879 dated 17.04.2006. The said payment was duly acknowledged by the defendant by issuing receipt no.769 dated 22.05.2006 to the plaintiffs. At the time of booking, the plaintiffs were assured by the defendant that the possession of the said Villa would be handed over to them within a period of 24 months. But despite a number of enquiries made by the plaintiffs 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 plaintiffs 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 plaintiffs immediately brought the said fact to the knowledge of the defendant and asked for refund of their registration amount Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 of Rs.3,75,000/ and the defendant agreed to refund the aforesaid booking amount along with interest @ 15% per annum. The plaintiffs, on the instructions of the defendant, surrendered the provisional registration with photocopy of Receipt no.769 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 plaintiffs assuring therein that the defendant would refund the advance/booking amount to the plaintiffs by way of demand draft on 08.06.2009. But the said amount was never refunded by the defendant to the plaintiffs despite several requests made by them. Finally, the plaintiffs served a legal notice dated 29.12.2009 upon the defendant for refund of the advance/booking amount of Rs.3,75,000/ 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."
2. Summons of the suit were issued and served upon the defendant and after service the defendant filed the Written Statement wherein, while denying all the averments made in the Plaint, it has raised the following preliminary objections: that the suit is not maintainable because the plaintiffs had not served any notice upon the defendant prior to filing of the suit; that this Court has no pecuniary jurisdiction Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 to try and entertain this suit as the total cost of the alleged plot booking by the plaintiffs was more than Rs.37,50,000/; that the suit is barred by the law of contract because there was no written contract between the plaintiffs and the defendant; that the suit is barred by Sec.41 of Specific Relief Act; that the suit is barred by law of limitation and that the suit has been filed without any cause of action. On merits, it has been submitted in the Written Statement that the plaintiffs had booked a Villa in a prelaunching scheme but had failed to deposit the installments as per the schedule opted by them and, therefore, the defendant had cancelled their booking and forfeited the amount paid by them. The defendant, in WS, has denied the acknowledgment of amount of Rs.3,75,000/ vide Receipt no.769 dated 22.05.2006. It is further denied that any assurance was given by the defendant for handing of the possession of the Villa to plaintiffs within 24 months from the date of booking or that no approval was obtained by it from the concerned authorities. It is submitted by the defendant in the Written Statement that the requisite permission from various concerned departments had been obtained by the defendant and the construction of Villas and flats was in full swing. It has further denied that the defendant had agreed to return the booking amount to the plaintiffs along with interest @ 15% per annum. The service of legal notice dated 29.12.2009 is also denied in the Written Statement. Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10
12. The PW1 has further deposed that at the time of booking, it was assured by the defendant that the possession of the said Villa would be handed over to them within 24 months, but when the defendant failed to give any proper response to the inquires made by them regarding the development of their project, they themselves made inquiries and came to know that the defendant had not even obtained any approval from the competent Authorities for the said land project and therefore they brought the said fact to the knowledge of the defendant and asked it to refund the amount deposited by them. Thus the case of the plaintiffs is that the defendant had failed to perform its part of the agreement and therefore, they had demanded refund of their money from the Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 defendant. The defendant, on the other hand, has put up his case that the plaintiffs had failed to pay the installments as per the payment schedule and hence their amount was forfeited by the defendant. But neither the defendant has proved/placed on record any such payment schedule nor any document/agreement as per which it was entitled to forfeit the amount paid by the plaintiffs. It was only in the crossexamination of PW1 that the defendant could elicit from the mouth of the witness that the payment was to be made as per the schedule of payment. But there also the PW1 had said that for the same agreement was to be formally drawn but the same was never drawn. PW1 had further said that the payment was to be made on construction link basis and no suggestion was given to him to deny the same. The case of the plaintiffs is that no construction was raised at the site by the defendant and this is the reason that they have been demanding back their money. Though, the said fact has been denied by the defendant in Written Statement but neither any evidence is led to disprove the same nor even any document/photograph is placed on record by the defendant to show if any construction had started at the site. Apart from this, it is also pertinent to mention here that the PW1 has categorically deposed that the defendant had never sent any demand letter for payment of any installment. But neither any suggestion was given to him to deny the same nor it is the case of the defendant that it had issued Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 any letter for demanding any payment of installment from the plaintiffs. Thus, in the absence of any willful default on the part of the plaintiffs to the demand raised by the defendant, how the defendant could have cancelled the booking of plaintiffs? The defendant has failed to prove or place on record any document making him entitled to forfeit the money. It is also pertinent to mention here that PW1 has categorically deposed that on their submission of Surrender Application/Letter i.e. Ex.PW1/4, the defendant had issued a letter dated 22.01.2009 i.e. PW1/5 to them, assuring them to issue a demand draft on 08.06.2009 against surrender of booking. But despite his said categorical testimony, he was neither crossexamined on this point nor any suggestion for denying the same was given, meaning thereby that the said document has been admitted by the defendant. Thus, if the defendant had agreed to refund the amount of the plaintiffs at the time of their surrender of booking, then where the question of cancellation of their booking arises on the ground of nonpayment of installments ! The defence raised by the defendant is clearly sham and bogus and appears to be result of an afterthought. Hence, in view of the aforesaid analysis, it is held that the booking of the plaintiffs was never cancelled on account of nonpayment of installments, rather the plaintiffs had surrendered the booking vide Ex.PW1/4 and the defendant had agreed to refund their amount Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 vide Ex.PW1/5 and thus plaintiffs are entitled to recover their amount of Rs.3,75,000/ from the defendant. Thus, Issue no.4 to this extent is also decided in favour of the plaintiffs and against the defendant.
13. Now let us come to the interest sought by the plaintiffs. The plaintiffs have sought interest - presuit, pendentlite and future, @ 15% per annum. The PW1 has deposed that when they demanded refund of their 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 plaintiffs and other innocent investors, the defendant agreed to refund their booking amount of Rs. 3,75,000/ along with interest @ 15% per annum. The counsel for plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs to the defendant expressing therein their wish to surrender their provisional Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 registration of Villa due to nondevelopment in the project and further requesting the defendant to refund their amount along with interest @ 15% per annum from the date of payment. This request of the plaintiffs in no manner can be construed as agreement between the plaintiff and the defendant 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 plaintiffs could not claim any interest. The 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 the plaintiffs 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 plaintiffs 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 plaintiffs' amount by way of demand draft on 08.06.2009 !! Hence the contention of the counsel for defendant is rejected being totally baseless and meritless. This Court is of the considered opinion that Gagan Deep Singh Kohli & Anr. Vs. M/s. M. Tech Developers Ltd. CS No. 160/13/10 the plaintiffs are entitled to reasonable rate of interest as they have suffered loss because their money is lying blocked for the last almost 8 years and they have been deprived of its use by the defendant.