Lt Gen L.M Misra vs Sushil Kumar Mehta & Anr
2011 Latest Caselaw 2690 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 19.05.2011

+           CS(OS) No. 2491/2010 AND IA No.16641/2010

LT GEN L.M MISRA                                ....Plaintiff

                            - versus -

SUSHIL KUMAR MEHTA & ANR                        .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr Mahinder Singh, Adv.
For the Defendant:      None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                  No

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

V.K. JAIN, J. (ORAL)

1. This is a suit for recovery of Rs 1,51,61,000/- and

permanent injunction. The plaintiff is a senior citizen,

having retired as a Lieutenant General from Indian Army.

Defendant represented to the plaintiff that he was the sole

and absolute owner of Plot No. 7, Paschim Marg, DLF City,

Phase-I, Gurgaon, admeasuring 400.40 sq. metres and the

aforesaid plot was free from all kind of encumbrances, such

as sale, gift, mortgage, litigation, etc. He agreed to sell the

aforesaid plot to the plaintiff for a total consideration of Rs

51,61,000/-. In order to convince the plaintiff, the

defendant provided him the original receipt, which the

erstwhile owner of the property Mr Harish Bhandari, had

executed in his favour. Believing the representation made by

the defendant, the plaintiff paid the entire sale

consideration of Rs 51,61,000/- to the defendantm from

time to time. Since the defendant was unable to get the plot

transferred in the name of the plaintiff, a Settlement

Agreement was executed between the parties on 15th

November, 2007. Under the settlement, the defendant

undertook to execute the sale deed of the plot in favour of

the plaintiff by 30th November, 2007. As a proof of his

commitment to honour the agreement, the defendant

handed over one cheque of Rs 51,61,000/- dated 15th

November, 2007, drawn on Bank of Baroda, East of Kailash,

New Delhi to the plaintiff. Another cheque of Rs 1 crore,

drawn on the same bank, was also handed over to the

plaintiff to show his bona fide and convince him that the

defendant intends to fulfil the commitment being made by

him. It was also agreed that if the sale deed was not

executed in terms of the settlement, the defendant would

pay difference between Rs 51,61,000/-, which he had

received from the plaintiff and Rs 3.5 crore, which was the

actual market value of the plot on the date of the

agreement, to the plaintiff. Two Special Power of Attorneys,

executed in favour of the defendant, one in respect of Plot

No.7. Paschim Marg, DLF City, Phase-I, Gurgaon and the

other in respect of Shop No. 9, DDA Market, behind IOC

Building on Aurobindo Road, New Delhi, were also delivered

by the defendant to the plaintiff.

2. It is alleged by the plaintiff that the defendant

failed to honour his commitment since neither the sale deed

was executed in his favour nor was the difference between

the agreed sale consideration of Rs 51,61,000/- and the

market value on the date of the agreement dated 15th

November, 2007 was paid to him by the defendant. Both

the cheques, which the defendant had delivered to the

plaintiff, were, when presented to the bank, dishonoured for

want of funds. Since the defendant failed to honour the

settlement, the plaintiff has now claimed a sum of Rs

1,51,61000/- from him which comprises the principal sum

of Rs 51,61,000/- paid by him to the defendant and Rs 1

crore out of difference between the agreed sale consideration

and market value of the plot as on 10th November, 2007.

3. Initially, the suit was filed against the present

defendant Mr Sushil Kumar Mehta and Mr Harish

Bhandari, in whose name the title deeds of Plot No. 7,

Paschim Marg, DLF City, Phase-I, Gurgaon, stand. However,

Mr Harish Bhandari was given up on 28th March, 2011 and

an amended memo of parties impleading only Mr Sushil

Kumar Mehta as defendant was accordingly filed.

4. The defendant Sushil Kumar Mehta did not appear

despite service and, therefore, was proceeded ex parte vide

order dated 28th March, 2011.

5. The plaintiff has tendered his affidavit by way of ex

parte evidence and in his affidavit, he has affirmed, on oath,

the averments made in the plaint. He has stated that the

defendant represented to him that he was the sole owner of

Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon,

admeasuring 400.40 sq. metres and that the original seller

Mr Harish Bhatia had executed a sale deed pertaining to the

aforesaid plot in his favour. He has further stated that he

agreed to purchase the aforesaid plot from the defendant for

a consideration of Rs 51,61,000/- and paid the aforesaid

amount to him partly by cheque and partly by cash.

According to him, the defendant did not transfer the plot in

his name nor was the sale deed executed in his favour. A

Settlement Agreement was entered into between the parties

on 15th November, 2007, whereby the defendant undertook

to execute the sale deed of the plot in his favour by 30 th

November, 2007 and also handed over two cheques, one of

Rs 51,61,000/- and the other of Rs 1 crore to him. He also

handed over two Special Power of Attorneys, executed in his

favour, to the plaintiff. The plaintiff has further stated that

the defendant has not fulfilled his commitment in terms of

the agreement dated 15th November, 2007.

6. Ex.PW-1/A is the receipt executed by Mr Harish

Bhatia in favour the defendant, while receiving Rs 22 lakhs

from him as the sale consideration for sale of Plot No. 7,

Paschim Marg, DLF City, Phase-I, Gurgaon. In this receipt,

Mr Bhatia confirmed having received full and final payment

from the defendant, having executed the sale deed in favour

of the defendant and having given physical possession of the

plot to him.

7. Ex.PW-1/B is the receipt of Rs 5,60,000/- by the

defendant from the plaintiff in cash in the year 2000,

Ex.PW-1/C is the receipt of RS 6,45,000/- received as part

payment in the year, 2001, Ex.PW-1/D is the receipt of Rs

14,20,000/- received as part payment in the year 2002,

Ex.PW-1/E is the receipt of Rs 1,30,000/-, acknowledging

receipt of Rs 1,30,000/- from the plaintiff in the year 2003,

Ex.PW-1/F is the receipt, whereby receipt of Rs 6,60,000/-

in the year 2004 has been acknowledged by the defendant,

Ex.PW-1/G is the receipt of payment of Rs 13,86,000/- in

the year 2005 and Ex.PW-1/H is the receipt of Rs

3,60,000/- from the plaintiff in the year 2006. It thus

stands that the defendant received payment of Rs

51,61,000/- from the plaintiff in instalments during the

period 2000-2006.

8. Ex.PW-1/I is the Settlement Agreement dated 15th

November, 2007. Vide this agreement, the defendant

confirmed his ownership in respect of Plot No. 7, Paschim

Marg, DLF City, Phase-I, Gurgaon which he claimed to have

purchased form Mr Harish Bhatia for a consideration of Rs

22,00,000/-. The defendant, in para 2 of this agreement,

acknowledged having received Rs 51,61,000/- from the

plaintiff as the total agreed consideration in respect of the

plot, subject matter of the agreement. Vide clause 3 of the

agreement, he undertook to execute the sale deed of the plot

in favour of the plaintiff by 30th November, 2007 and to

hand over all the original documents, relating to the

aforesaid plot to him. He also agreed to hand over the

physical possession of the plot to the plaintiff

simultaneously with execution of the sale deed and handing

over of the documents to him. Vide clause 5 of the

agreement, the defendant acknowledged issue of chque No.

578642 dated 15th November, 2007 for a sum of Rs

51,61,000/- to the plaintiff. Vide clause 6 of the agreement,

the defendant agreed that in case of his failure to transfer

the ownership of the plot to the plaintiff, he would pay to

him, in addition to the amount of Rs 51,61,000/- received

from him, the difference between agreed sale consideration

and actual market value of the plot which on 10 th

November, 2007 was stated to be about Rs 3.5 crores. The

defendant admitted that the market value of the plot,

subject matter of the agreement was Rs 3.5 crores on 10 th

November, 2007 and in the event of his failure to execute

the sale deed of the plot in favour of the plaintiff, he would

pay to him not only the sale consideration received from the

plaintiff, but also the amount, being the difference between

the agreed sale consideration and market value of the plot

as on 10th November, 2007. The defendant also

acknowledged having delivered a cheque of Rs 1 crore to the

plaintiff along with two Special Power of Attorneys, which he

was holding in his favour one in respect of Plot No. A-55/7,

DLF City, Phase-I, Gurgaon, and the other in respect of

Shop No. 9, DDA Market, behind IOC Building on

Aurobindo Road.

9. Ex.PW-1/J is the copy of the cheque of Rs

51,61,000/- drawn on Bank of Baroda, East of Kailash, New

Delhi, whereas PW-1/K is the copy of the chque of Rs 1

crore drawn on the same bank. PW-1/L to PW1/O are the

memos where these chques were dishonoured by the bank.

10. I see no reason to disbelieve the unrebutted

deposition of the plaintiffs which has been fully

corroborated by the documentary evidence in the form of

the Settlement Agreement dated 15th November, 2007,

receipts executed by the defendant from time to time and

the cheques issued by him in favour of the plaintiff. The

plaintiff has today filed an additional affidavit stating

therein that the market value of the aforesaid plot as

ascertained from the market was Rs 3.5 crores on 10th

November, 2007. Thus, besides admission of the defendant,

there is substantial evidence in the form of affidavit of the

plaintiff as regards value of the plot, subject matter of the

agreement between the parties as on 15th November, 2007.

The plaintiff has not claimed the entire difference between

the market value of the plot as on 10th November, 2007 and

the sale consideration agreed between him and the

defendant. He has claimed only a sum of Rs 1 crore out of

the difference between the agreed sale consideration and the

market value of the plot. I see no reason to deny the

aforesaid amount to the plaintiff.

11. For the reasons given in the preceding paragraphs,

a decree of Rs 1,51,61,000/- with costs and pendente lite

and future interest at the rate of 6% per annum is hereby

passed in favour of the plaintiff and against the defendant.

The suit and IA stand disposed of.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE

MAY 19, 2011 BG