M/S Riviera Apartments P.Ltd. vs Rattan Gupta & Anr.
2008 Latest Caselaw 2030 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       RFA 124/2006

%                                  Date of Order : 19.11.2008

      M/S RIVIERA APARTMENTS P.LTD.      .... Appellant
                Through: Mr. Dinesh Garg, Advocate

                             versus

      RATTAN GUPTA & ANR.           ..... Respondents

Through: Mr. Anurag Kumar Aggarwal, Adv.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R.MIDHA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)

1. Heard learned counsel for the parties.

2. Respondent No.1 Ratan Gupta, the plaintiff had

booked a flat with the appellant and had paid Rs.15,00,000/-

on various dates to the appellant. Having received back

Rs.15,00,000/- and having executed a receipt, Ex.PW-1/DX1,

as also having executed a no claim certificate, Ex.PW-1/DX2,

both dated 30.11.1996 he proceeded to file a suit for recovery

of Rs.7,12,000/- impleading appellant as defendant No.1 and

one Rajiv Kumar as defendant No.2. He stated in the plaint

that notwithstanding the receipt and the no claim certificate

recording a full and final settlement between the parties, it

was agreed between him and the appellant that he would be

paid interest on Rs.15,00,000/- which he had paid from time to

time to the appellant interest being @ 24% per annum and

that apart from the payments made by cheque to the

appellant he had paid Rs.2,00,000/- in cash at the time of

booking of the flat which amount was stated to have been

agreed to be repaid to him. Defendant No.2 was stated to be

the broker who had finalized the deal.

3. In this manner, claiming Rs.5,12,000/- as the stated

interest and Rs.2,00,000/- as return of the advance payment

stated to have been paid in cash, suit was filed for recovery of

Rs.7,12,000/-.

4. Needless to state the defence of the appellant was

that no money was received in cash and that the respondent

No.1 was the defaulting party under the contract which

entitled appellant to forfeit the money received but as a

measure of good-will the same was returned without any

forfeiture. Any agreement to pay interest much less @ 24%

per annum on the amounts received by the appellant from

respondent No.1 was denied.

5. Ex.PW-1/DX1 reads as under:-

"Received from M/s RIVIERA APARTMENTS PVT. LTD. Rs. 15 Lacs (Rupees fifteen Lacs only) vide Bankers Cheque No.042190 dated 14-11-1996 in full and final refund of the entire amount paid to M/s RIVIERA APARTMENTS PVT. LTD., paid over a period of time

as follows:-

       S.No.      Date           Receipt No.    Amount

       1.         30-04-96       3887            Rs.2,00,000.00
       2.         06-05-96       3888            Rs.2,00,000.00
       3.         09-05-96       3890            Rs.1,00,000.00
       4.         01-08-96       3897            Rs.5,00,000.00
       5.         17-09-96       3906            Rs.5,00,000.00
                                                 _______________
                         Total                 Rs.15,00,000.00
                                               _________________

I confirm that the booking of the Dupliex Unit No.4 in the proposed project at Bungalow No.1, "VIVEK", 45, Mall Road, DELHI-110054 made by me vide the Company's Booking Confirmation letter dated 30-04- 1996 has been cancelled by me and this amount is being received in full and final consideration of my own free will without any pressure or compulsion.

After the receipt of this amount, I acknowledge that I do not have any claim or lien on the said booking as Company is free to deal with the same in any manner they deem fit. I further confirm that I have been fully satisfied with the dealings of the Company with me and in an amicable manner I am hereby withdrawing my booking after having received the full refund of the amounts paid to them. This receipt is binding on all my successors and heirs and no one shall claim any privileges or dues from the Company but in case there is any such claim, or any demand, I will cover the Company against all such harms, costs and expenses and shall keep them indemnify fully against any such proceedings by any individual claiming through or under me."

6. Ex.PW-1/DX2 reads as under:-

"NO CLAIM/LIEN RECEIPT

I, Rattan Gupta, R/o 30, North, Riviera Apartments, Mall Road, Delhi-110054, do hereby confirm that pending matter with regard to booking of proposed unit No.4 at Bungalow No.4, The Mall, Delhi , has since been resolved between me and M/s Riviera Apartments Pvt. Ltd. I have

received the refund of the amount paid by me. All bookings, agreements, correspondences, notices, etc. pertaining to the said unit No.4 stands cancelled/withdrawn. Now, I am left with no claim of any nature whatsoever on any account whatsoever either against Unit No.4 or against M/s Riviera Apartments Pvt. Ltd.

I further confirm that I did not enter into any further agreement or arrangement with any person whatsoever with regard to the said unit or based on the said booking in my favour and if M/s Riviera Apartments Pvt. Ltd. suffers any loss/damages because of my any act or conduct, I shall be responsible to reimburse the same and to keep M/s Riviera Apartments Pvt. Ltd. fully indemnified.

IN WITNESS WHEREOF, this receipt-cum-no claim/lien receipt is executed at Delhi on this 30th day of November 1996 in the presence of witnesses."

7. In view of the fact that the two documents record a

full and final satisfaction of the claim in respect of the

advances received by the appellant from respondent No.1 the

learned Trial Judge has returned a finding that the question of

payment of any interest on said deposits does not arise.

8. No cross objections or cross appeal has been filed

by respondent No.1. Thus, said finding has attained finality.

9. But, in respect of the claim of Rs.2,00,000/- stated

to have been paid in cash, holding that the evidence

establishes said payment being made, suit has been decreed

in sum of Rs.2,00,000/- with interest @ 9% per annum on said

amount from the date of institution of the suit till realization.

10. The reasoning of the learned Trial Judge to hold that

Rs.2,00,000/- was paid in cash is two fold. Firstly, that

defendant No.2, Rajiv Gupta, who was examined as PW-2

supported the case of respondent No.1 that when the deal was

finalized a sum of Rs.2,00,000/- was paid in cash. The second

reasoning of the learned Trial judge is on a question put by the

appellant to PW-1 on cross examination. The same is a

suggestion to PW-1 to which the answer is as under:-

"I do not know if defendant No.1 had paid a sum of Rs.2,00,000/- to the defendant No.2 or not."

11. Picking on the said suggestion, the learned Trial

Judge has noted as under:-

"Strangely enough, a suggestion was put to the plaintiff if he knew as to whether defendant No.1 had paid a sum of Rs.2,00,000/- to defendant No.2 or not. The plaintiff had denied any knowledge about this but had asserted that he had not received the said amount till date. The aforesaid suggestion tends to show that defendant No.1 had paid the aforesaid sum of Rs.2,00,000/- (paid in cash by the plaintiff to defendant No.1 on 30.4.1996) to defendant No.2 for the purpose of refunding it to defendant No.1."

12. Learned counsel for the appellant has drawn our

attention to the deposition of the plaintiff who appeared as PW-

1. In para 18 of his deposition by way of an affidavit towards

examination-in-chief, the plaintiff deposed as under:-

"I later on followed up the matter with defendant No.2 who assured me that he will take up the said matter with defendant No.2 to this effect also an affidavit was sweared by the defendant No.2 that an amount of Rs.2 lacs was paid in cash by me to the Defendant No.2."

13. Learned counsel for the appellant urges that

admittedly neither is there a receipt evidencing payment of

Rs.2,00,000/- in cash by the respondent No.1 to the appellant

nor has the said sum been reflected in the income tax return or

account books of respondent No.1 who is stated to be a

chartered accountant, a fact not in dispute.

14. Learned counsel for the appellant urges that in view

of the deposition of PW-1, the suggestion put to him cannot be

labeled as a strange suggestion and no adverse inference can

be drawn against the appellant. Counsel further urges that the

receipts Ex.PW-1/DX1 and the no due certificate Ex.PW-1/DX2

are both dated 30.11.1996 and record in no uncertain terms

that the respondent No.1 i.e. the plaintiff had received the full

amount and that there was a complete satisfaction of his claim.

Counsel further urges that in the absence of any receipt

evidencing payment of Rs.2,00,000/- to his client the oral

testimony of the witnesses of the plaintiff are rendered

meaningless.

15. Learned counsel for the respondent states that in

his deposition, the plaintiff stated that he had made payment

directly to the appellant and explains the averments in para 18

of the affidavit as a mistake. Counsel states that PW-2 was a

broker and had no animus against either party and being an

independent person there is no reason to disbelieve his

testimony.

16. It is apparent that the second reasoning given by

the learned Trial Judge is ex-facie wrong. Be it a mistake, the

fact of the matter remains that in para 18 of the affidavit by

way of evidence the plaintiff stated that he had paid the

amount in cash to defendant No.2. Lest said assertion

remained unchallenged the defendant No.1 i.e. the appellant

rightly questioned the witness whether he found out from

defendant No.2 of his having further parted with the money.

17. Pertaining to the second reasoning of the learned

Trial Judge that the testimony of PW-2, a neutral person,

requires to be believed, suffice would it be to state that the

plaintiff i.e. respondent No.1 being a chartered accountant is

expected to know the value of a receipt. Further, he admitted

being an income tax payee and conceded in his testimony that

he had not reflected said payment of Rs.2,00,000/- for the

purposes of income tax returns. We note that the receipts

Ex.PW-1/DX1 and the no due certificate Ex.PW-1/DX2 are both

dated 30.11.1996. They record a complete accord and

satisfaction between the parties. It is not the case of

respondent No.1 that he was coerced into executing the

documents.

18. The theory of a distinct oral agreement of return of

Rs.2,00,000/- is unbelievable for the reason we find no

documentary evidence, post 30.11.1996, wherein respondent

No.1 has raised a grievance, with reference to the alleged oral

agreement, of the appellant not paying to him Rs.2,00,000/-.

We note that the suit was instituted on 24.5.1997 i.e. after

nearly 6 months of 30.11.1996.

19. We hold that the learned Trial Judge has erred in

appreciating the evidence by ignoring the features which we

have noted hereinabove.

20. The appeal is allowed.

21. Impugned judgment and decree dated 18.11.2005 is

set aside.

22. Suit filed by respondent No.1 is dismissed.

23. Appellant shall be entitled to cost all throughout.

24. Money lying in deposit being deposited by the

appellant together with the accrued interest thereon is directed

to be returned to the appellant. The Registry shall endorse the

fixed deposit receipt in the name of the appellant and shall

hand over the same to the counsel for the appellant.

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J.

NOVEMBER 19, 2008 mm