Surya Kiran Maintenance Society ... vs Smt. Manju Puri
2011 Latest Caselaw 1026 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.389/2001


%                                                   21st February, 2011

SURYA KIRAN MAINTENANCE SOCIETY LIMITED             ...... Appellant
                             Through:   Mr. Rajesh Gupta, Advocate
                                        with Mr. Harpreet Singh,
                                        Advocate.
                    VERSUS

SMT. MANJU PURI                                              ...... Respondent
                                      Through:    None


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of the present Regular First Appeal

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree dated 8.8.2001 which has partly decreed the

suit of the respondent/plaintiff for recovery of the amount taken by the

appellant through coercion for giving a No Dues Certificate for sale of the flat

of the respondent/plaintiff being flat No.309, Surya Kiran Building, 19,

Kasturba Gandhi Marg, New Delhi.

2.            The facts of the case are that the respondent/plaintiff purchased
RFA No.389/2001                                                   Page 1 of 3
 the subject flat from M/s. Ansal & Saigal Properties Pvt. Ltd. (thereafter

known as M/s. Ansal Properties and Industries Ltd.). The respondent/plaintiff

wanted to sell the property in around October, 1999 and when it approached

the appellant/defendant, the appellant/defendant refused to give the No

Dues Certificate for sale and claimed an amount of Rs.61,461/- towards

maintenance and other related charges and Rs.35,660/- towards fire-fighting

charges    totaling   to   Rs.96,821/-   from   the   respondent/plaintiff.   The

respondent/plaintiff was forced to pay the amount because unless this

amount was paid the appellant was refusing to issue the No Dues Certificate.

3.           The respondent/plaintiff thereafter filed the subject suit for

recovery for refund of the amount paid under coercion. The trial Court has

decreed the suit partially for the amount which was claimed by the appellant

which had become time barred. The amount recovery of which was time

barred was under the heads of replacement fund charges and fire-fighting

charges.

4.           During the course of arguments, there has emerged an

undisputed fact that the appellant refused to give the No Dues Certificate

unless the respondent/plaintiff paid the amount claimed. Clearly, therefore

the trial Court was justified in arriving at a finding that the amount was paid

under coercion and therefore the same was liable to be refunded under

Section 72 of the Contract Act, 1872.

5.           Learned counsel for the appellant very vehemently argued that


RFA No.389/2001                                                     Page 2 of 3
 as per the Limitation Act, 1963 filing of a suit is barred, however, the

respondent/plaintiff was not prevented from claiming the amount without

filing a suit. I fail to understand as to how this argument will support the

appellant because the case as laid out by the respondent/plaintiff was that

the amount was extracted by the appellant as a result of coercion because

but for the fact that the amount would have been paid, the No Dues

Certificate would not have been issued by the appellant and which is an

admitted fact on record. It is not that the disputed amounts were already

with the appellant and which could have been adjusted by it against time

barred claims. I also put it to the counsel for the appellant during the course

of arguments as to whether the disputed charges which were claimed from

1990, and for which the decree was passed, were at all notified to the

respondent/plaintiff by writing letters and reminders as being due, however,

the counsel for the appellant admitted that in the trial Court no such

documents/letters have been filed which claimed till 1999 the amounts which

were allegedly due from the year 1990.

6.          In view of the above, I do not find any illegality and perversity in

the impugned judgment and decree which calls for interference by the Court.

The appeal, therefore, being devoid of merits, is dismissed, leaving the

parties to bear their own costs.



FEBRUARY 21, 2011                                VALMIKI J. MEHTA, J.

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