D.K. Gupta vs Ravinder Kishore Sinha
2011 Latest Caselaw 5304 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 02.11.2011

+ CS(OS) No.1729/2010


D.K. GUPTA                                    ..... Plaintiff
                     Through: Mr. Prashant Pandey, Adv.

                     versus


RAVINDER KISHORE SINHA                          ..... Defendant
             Through: 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 declaration and

recovery of Rs.25 lacs.

2. The case of the plaintiff is that he had entered into

an agreement dated 15.11.2005 with respect to purchase of

second and third floor built upon plot No.1, Block No.E of

East of Kailash, New Delhi from the defendant along with

the proportionate share in the garage block including

servant quarters for a total sale consideration of Rs.2.25

crores.

3. It is further alleged that while executing the

agreement, the defendant mis-represented to the plaintiff

that he had legal and legitimate right to enter into the

aforesaid agreement since he had already entered into an

agreement with the actual owner of the property, i.e. Smt.

Majula Bhushan and under that agreement, he had the

lawful right to sell the second and third floor of the property

to the plaintiff. On believing the false representation made

by the defendant, the plaintiff paid a sum of Rs.11 lacs as

earnest money which was duly acknowledged by the

defendant.

4. The defendant later informed the plaintiff that

since the owner of the property was not performing her part

of the contract with him, he had filed a civil suit against her

and till the adjudication in his favour, no sale deed could be

executed in favour of the plaintiff. The suit filed by the

defendant was dismissed by the Court holding that he never

had any right qua the second and third floor of the property

under the agreement dated 31.3.2005 which he had with

the owner of the property. The appeal filed by the defendant

against that order was also dismissed by the Division Bench

of this Court.

5. This is also the case of the plaintiff that the

defendant never disclosed to him about the dismissal of the

suit and the appeal filed by him and he kept on saying that

the matter was still pending and he would execute the sale

deed in favour of the plaintiff once the suit is decided in his

favour. The plaintiff has now claimed back the amount of

Rs.11 lacs, which he had paid to the defendant along with

the interest on that amount @ 18% per annum. The

plaintiff has also claimed a sum of Rs.6.46 lacs as damages

for the mental torture and agony suffered by him at the

hands of the defendant.

6. The defendant was proceeded ex-parte on

25.7.2011 since neither written statement was filed nor no

one appeared for him. It would be pertinent to note here

that the defendant was served with the suit summons

through his employees and vakalatnama on his behalf was

also filed on 28.10.2010.

7. „Ex.PW1/1‟ is the agreement executed by the

defendant in favour of the plaintiff on 15.11.2005 for sale of

the second and third floor built upon plot No.1, Block No.E

of East of Kailash, New Delhi for a total sale consideration of

Rs.2.25 crores. It was recorded in the agreement that the

vendor had entered into an agreement dated 31.3.2005 with

Smt. Manjula Bhushan for purchase of the basement,

ground, first, second and third floors built upon plot No.1,

Block No.E, situated in the residential colony known as East

of Kailash Residential Scheme, New Delhi along with the

proportionate share of the garage block including the

servant quarters and the sale deed in his favour was to be

executed within 36 months from the date of execution of the

agreement between him and Smt. Manjula Bhushan. A

sum of Rs.11 lacs was paid to the defendant, which was

acknowledged in the agreement and the balance was to be

paid within 30 months from the date of the agreement,

when called upon by the vendor giving 15 days notice for

the purpose. The plaintiff was also required to pay interest

@ 6% per annum on the balance amount of rupees. If so

desires by the defendant, a sum of Rs 1.96 crores was to be

paid in the name of Smt. Manjula Bhushan.

8. „Ex.PW1/2‟ is the copy of the judgment of this

Court dated 09.11.2009 passed in CS(OS) No.549/2008

titled as "Ravinder Kishore Sinha vs. Smt. Manjula

Bhushan". A perusal of the judgment would show that the

Court was of the view that the plaintiff (defendant herein)

had scrapped the agreement with respect to the second and

third floor of the property and he did not keep even the

token amount of Rs.4 lac with the seller, Smt. Manjula

Bhushan, holding that the contract with respect to the

second and third floor of the property was abandoned, the

suit filed by the plaintiff (defendant herein) was dismissed.

9. „EX.PW1/3‟ is the copy of the order passed by the

Division Bench of this Court in RFA(OS) No.102/2009 filed

by the defendant against the judgment dated 09.11.2009 in

CS(OS) No.549/2008. The appeal filed by the defendant

was dismissed by the Division Bench thereby upholding the

judgment passed by the learned Single Judge of this Court.

Since the defendant has not performed his part of the

contract with the plaintiff, he is obliged in law to refund the

amount of Rs.11 lacs which he had received from the

plaintiff. As far as the interest is concerned, admittedly,

there was no agreement between the parties for payment of

interest.

11. „Ex.PW1/4‟ is the legal notice which the plaintiff

sent to the defendant through registered post, calling him

upon to refund the amount of Rs.11 lacs along with the

interest @ 18% per annum w.e.f. 15.11.2005.

12. Section 3 of the Interest Act, 1978, to the extent it

is relevant provides that in any proceedings for the recovery

of any debt or damages or in any proceedings in which a

claim for interest in respect of any debt or damages already

paid is made, the Court may, if it thinks fit, allow interest to

the person entitled to the debt or damages or to the person

making such claim, as the case may be, at a rate not

exceeding the current rate of interest; from the date

mentioned in this regard in a written notice given by the

person entitled or the person making the claim to the

person liable that interest will be claimed, to the date of

institution of the proceedings.

13. Considering the nature of the transaction between

the parties, I am of the view that the interest should be

awarded to the plaintiff @ 6% per annum. The amount of

interest @ 6% comes to Rs.4,18,000/-. The plaintiff,

therefore, is entitled to recover a total sum of

Rs.15,18,000/- from the defendant.

14. I find no justification for awarding any damages for

the alleged mental torture and mental agony claimed by the

plaintiff, particularly when the interest is being awarded to

him.

15. A decree for recovery of Rs.15,18,000/- with

proportionate costs and pendente lite with future interest @

6% is hereby passed in favour of the plaintiff and against

the defendant.

Decree sheet be withdrawn accordingly.

(V.K. JAIN) JUDGE NOVEMBER 02, 2011 KA