Sh. Gobind Dewan vs Sh. Pravin Lalwani & Anr.
2009 Latest Caselaw 4956 Del

*            HIGH COURT OF DELHI : NEW DELHI

+             I.A. No. 8827/2007 in CS (OS) No. 2386/2006


     Sh. Gobind Dewan                                        ...Plaintiff
                   Through       : Mr. R.K. Sinha, Adv.

                                 Versus

     Sh. Pravin Lalwani & Anr.                       ...Defendants
                     Through : Mr. R.K. Kashyap with
                               Mr. Imran Khan, Advs. for D-1


Reserved on : November 23, 2009
Decided on : December 3, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     No

2. To be referred to Reporter or not?                  No

3. Whether the judgment should be reported
   in the Digest?                                      No

MANMOHAN SINGH, J.

1. By this order, I shall dispose of I.A. No. 8827/2007 filed by

the plaintiff under Order 12 Rule 6 read with Section 151 of the Code of

Civil Procedure, 1908.

2. The present suit has been filed for recovery of damages of Rs.

22,00,000/-, permanent injunction restraining the defendants and their

agents and representatives etc. from selling, transferring, alienating or

creating any third party interest over plots no. I-11/71 &72, Sector 16,

Rohini, New Delhi - 110085 (hereinafter referred to as the 'suit

properties').

3. The facts of the case are that the plaintiff was approached by

defendant no. 1 who had a General Power of Attorney executed in his

favour with respect to the suit properties by the owners of the suit

properties.

4. Defendant no. 1 offered to sell the plots to the plaintiff for a

total valuable consideration of Rs. 16,40,000/-. Believing defendant no.

1, the plaintiff entered into an agreement with him on 11 th February,

2004 and paid earnest money amounting to Rs. 3,00,000/- in cash vide a

receipt on the same date. On 25th November, 2004 the plaintiff paid

another Rs. 3,00,000/- in cash on the assurances of defendant no. 1.

5. Thereafter, despite diligent payments and repeated requests

on the plaintiff's behalf, defendant no. 1 did not execute the documents

of the suit properties in favour of the plaintiff due to some excuse or the

other instead, defendant no. 1 represented to the plaintiff that he had

certain personal problems because of which the plaintiff did not file any

formal complaint against him.

6. However, as per the case of the plaintiff , defendant no.1 in

connivance with the owners of the suit properties has been trying to sell

the same to someone else.

7. The plaintiff sent a Legal Notice dated 7th November, 2006

asking defendant no. 1to fulfill his obligations in reply to which the said

defendant allegedly sent a frivolous reply full of absurd concoctions and

refused to carry out his obligations.

8. Thereafter, defendant no. 1 involved the plaintiff and the

plaintiff's son into another agreement between the parties including

defendant no. 2 herein, which agreement as per the plaintiff is a

concoction. The plaintiff sent a copy of his legal notice to the Delhi

Police Economic Defence Wing, though nothing came out of the same.

The plaintiff claims that the price of the suit properties has increased and

is now almost double the original cost, i.e. Rs. 32,40,000/-. Thus the

plaintiff filed the present suit praying for permanent injunction, a decree

of damages to the extent of Rs. 22,00,000/- along with the cost of the

suit and interest @ 12 % p.a. up to realization of the amount of damages.

9. In his written statement, defendant no. 1 has stated that he is a

property dealer and is engaged in the sale and purchase of properties on

commission basis.

10. The defendant no. 1 has gone on to mention several

transactions carried out by him and the plaintiff. As per defendant no. 1

the plaintiff approached him with regard to property no. I-9/14, Sector-

16, Rohini, Delhi and on the representation that the said property

belonged to his son, asked the former to look for a purchaser for the

same. Thereafter, the said property was agreed to be sold to one Sh.

Rajan Malhotra for a total sale consideration of Rs. 15,61,000/- out of

which, Rs. 4,50,000/- were paid to the plaintiff's son and a receipt was

made. Likewise, when the plaintiff approached defendant no. 1 with

respect to property no. I-9/67, Sector-16, Rohini, Delhi a buyer by the

name of Sh. Navin Kumar gave earnest money of Rs. 2,50,000/- against

the total sale consideration of Rs. 10,68,000/-. (Admittedly, the above-

mentioned properties are not the subject matter of the present suit.)

11. Thereafter, defendant no. 1 entered into an agreement to

purchase the suit properties from Sh. Satish Goel, defendant no. 2 herein

for a total sale consideration of Rs. 16,25,000/- out of which the separate

amounts of Rs. 1,00,000/-, Rs. 2,00,000/- and Rs.3,00,000/- were paid

by defendant no. 1 to defendant no. 2 on 16th January, 2004, 18th

January, 2004 and 25th November, 2004 respectively. The plaintiff

expressed interest in the suit properties and agreed to purchase the same

for a total consideration of Rs. 16,40,000/- of which Rs. 6,00,000/- were

paid and the rest Rs. 10,40,000/- were to be paid at the time of execution

of perpetual lease deed.

12. Meanwhile, defendant no. 1 heard rumours as regards

property no. I-9/67, Sector-16, Rohini, Delhi and property no. I-9/14,

Sector-16, Rohini, Delhi to the effect that the same were available for

sale. The execution of documents with respect to these properties had

been stalled by the plaintiff on one pretext or the other. As per defendant

no. 1, the plaintiff assured him that without clearing the deals as regards

the above-mentioned two properties, he would not insist on completion

of the deal with respect to the suit properties. With this background,

defendant no. 1 has stated that the plaintiff ought to have completed his

side of the deal and not approached this court with the present false and

frivolous case.

13. In the application under consideration, the plaintiff has stated

that defendant no. 1 has admitted the factum of receiving the earnest

money/ advance of a total of Rs. 6,00,000/- in his reply to the plaintiff's

legal notice dated 7th November, 2006. Further, in the written

statement itself defendant no. 1 has admitted the deal as well as his

obligation therein though he has tried to entangle the present dispute

with other properties which are the subject matter of suits pending

in other courts.

14. The plaintiff has averred that defendant no. 1 has filed two

separate suits against the plaintiff's son which are pending in the Tis

Hazari courts, wherein an application for transfer and hearing of all

matters in one court has been made. It is the plaintiff's submission that

defendant no. 1 has admitted taking the advance amounts and even

accepted his liability as regards the suit properties and on the basis of

this admission, the present suit may be decreed in favour of the plaintiff.

15. In his reply to the plaintiff's application, defendant no. 1 has

submitted that the plaintiff has failed to disclose any specific pleading

wherein the alleged admission has been made and it is the said

defendant's contention that no such admission has been made.

16. I have perused the contentions of both parties. It is the

admitted position that the plaintiff has not filed the present suit for

specific performance of the property in question. The plaintiff has

merely filed the suit for damages as well as for injunction. As far as the

injunction part is concerned, the same shall be taken up and decided on

merit at the appropriate time. The second relief sought by the plaintiff is

recovery of damages and the same cannot be granted at this stage of the

proceedings as the plaintiff has to prove the damages in accordance with

law, therefore, this court is of the considered opinion that under the said

circumstances, a trial is required in the matter. Even otherwise, I am not

inclined to allow the prayer sought by the plaintiff at this stage of the

matter in view of the case Sh. Rajeev Mehra Vs. Sh. Sudhir Kumar

Sachdev, MANU/DE/0150/2009 wherein Learned Single Judge Rajiv

Sahae Endlaw, J. as regards applications under Order XII Rule 6

observed that under Order XII Rule 6 CPC it is the discretion of the

court, even where admissions of facts have been made, whether to

decree the suit or not. The court even in the face of admission is

empowered to make such order as may be deemed fit.

17. It appears that the damages alleged in the plaint have not

been proved. In view of the afore-stated and in view of the well settled

law that in a suit for recovery of damages, such damages must be proved

in order to obtain relief and no relief can be granted in lieu of an

application under Order 12 Rule 6 of the Civil Procedure Code, I find

that the damages claimed in the suit shall be proved at the time of trial

and cannot be decided now and therefore, the present application is

dismissed.

List before court on 11th February, 2010 for framing of issues.

MANMOHAN SINGH, J.

DECEMBER 3, 2009