Delhi High Court
Shri Jawahar Lal Manghani vs Shri Ravi Prakash Anand on 27 August, 2007
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 11386/2003 (Order xxxvII, Rule 5 r/w Section 151 CPC) in CS (OS) No. 380/2003
1. The plaintiff has filed the suit under the provisions of Order xxxvII of the Code of Civil Procedure, 1908 for recovery of Rs. 41,65,545/-. It is the case of the plaintiff that negotiations took place between the plaintiff and the defendant for sale of property bearing No. W-154, Greater Kailash I, New Delhi admeasuring 500 sq. yds. and a total consideration of Rs. 2,57,00,000/- was agreed upon. The plaintiff paid an earnest money of Rs. 15,00,000/- on 16.04.2002 consisting of Rs. 5,00,000/- in cash and Rs. 10,00,000/- by cheque and thereafter an MOU was executed on 26.04.2002 recognizing the payment and laying down the schedule of payment. The balance consideration of Rs. 2,32,00,000/- had to be paid by the plaintiff in a phased manner with the first payment of Rs. 1,50,00,000/- on 20.05.2002 and the balance of Rs. 82,00,000/- on or before 30.05.2002.
2. It is the case of the plaintiff that in terms of the MOU dated 26.04.2002, it had been agreed upon that the original title documents of the property would be handed over to the plaintiff. The plaintiff claims to have been ready with the money, but since the original title documents were not shown, disputes arose between the parties. It was in these circumstances that the suit for recovery was filed consisting of the principal amount paid by the plaintiff of Rs. 36,00,000/- plus interest.
3. In the application filed by the defendant for unconditional leave to defend the suit, it has been stated that inter alia the plaintiff failed to make arrangements for payment of the balance amount and that is why the defendant is entitled to retain the earnest money. The defendant has also alleged that the plaintiff has filed forged and fabricated document showing the receipt of Rs. 18,00,000/-, which was actually never received.
4. The plaintiff sought to amend the plaint into one of specific performance from a relief of recovery of money which amendment application was dismissed by the Order dated 31.07.2006. The said Order has not been challenged further.
5. In view of the facts stated herein-above, I am of the considered view that friable issues are raised inasmuch as the issue whether the plaintiff was at fault in complying with the obligation under the MOU dated 26.04.2002 or whether the defendant failed to do the needful is yet to be examined. Without recording evidence, these aspects cannot be decided. The defendant is granted leave to defend the suit but the amount of Rs. 36,00,000/- shall remain as a charge of the property. The application is, accordingly, allowed. CS (OS) No. 380/2003
6. Learned Counsel for the defendant states that in order to put an end to the litigation, without prejudice to the rights and contentions of the defendant in the application for leave to defend the suit, the defendant is willing to pay the amount of Rs. 36,00,000/- as prayed for by the plaintiff apart from any interest to be determined by the Court.
7. In view of the aforesaid statement, the only aspect which remains is the interest since the suit is for recovery of money. Learned Counsel for the plaintiff also states that the interest be determined by the Court and the costs be also awarded to the plaintiff.
8. In view of the aforesaid position, a decree is passed in favor of the plaintiff and against the defendant for the sum of Rs. 36,00,000/-. The plaintiff is also entitled to simple interest @ 8% p.a. from 01.05.2002 till the date of payment.
9. In the given facts of the case, the plaintiff is also entitled to costs confined to the court fee paid on the plaint.
10. In case the payment in terms of the decree is remitted within a period of 30 days from today, no future interest would be payable.
11. Decree-sheet be drawn up accordingly.
IA No. 1875/2003 in CS (OS) No. 380/2003
12. It is agreed that on payment of the decretal amount, the interim order dated 14.02.2003 shall cease to operate.
13. The application stands disposed of.
