Delhi High Court
Anand Prakash Gupta vs M/S Gold Cause Constructions Pvt ... on 17 October, 2012
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17.10.2012
+ CS(OS) 231/2012 and 232/2012
ANAND PRAKASH GUPTA ..... Plaintiff
Through: Mr. Ashish Bhagat, Mr. Abdesh
Chaudhary and Mr. Akshat Gupta, Advs.
versus
M/S GOLD CAUSE CONSTRUCTIONS PVT LTD & ANR .... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
1. By this common order, I shall dispose of both the suits referred above. The
case of the plaintiff is that he entered into an agreement with defendant No. 1 for
purchase of two shops, one bearing No. F-39 and the other bearing No. F-40 both
on the first floor of Paradise Mall at Shivaji Place, District Centre, Main Ring
Road, Raja Garden, New Delhi, the first shop measuring 617.85 sq. feet of super
area, equivalent to 401.60 sq. ft of covered area and the other shop measuring
637.39 sq. feet of super area equivalent to 414.31 sq. ft. of covered area. The sale
consideration agreed between the parties for purchase of Shop No. F-39 was Rs
30,58,357/-, whereas the consideration agreed for purchase of shop No. F-40 was
Rs 31,55,080.50/-. The plaintiff claims to have paid Rs 3,05,835/- for Shop No. F-
39 and Rs 3,15,508/- for shop No. F-40 as the booking amount.
The plaintiff claims to have paid a total sum of Rs 19,87,930/- to the
defendant in respect of Shop No. F-39 and Rs 20,50,802/- in respect of Shop No. F-
40. The plaintiff is now seeking specific performance of the agreement to sell
executed in his favour for sale of the aforesaid Shops F-39 and F-40 on the first
floor of Paradise Mall at Shivaji Place, District Centre, Main Ring Road, Raja
Garden, New Delhi.
2. The defence was struck off vide order dated 14.09.2012 since no written
statement was filed by them. The plaintiff was, however, directed to file affidavit
by way of evidence in order to satisfy the Court with respect to the merits of his
case. In his affidavit by way of evidence, the plaintiff has supported on oath the
case set out in the plaint and has proved the documents filed by him. He has stated
that he paid Rs 20,50,802/- in respect of Shop No. F-40 vide three cheques, first of
Rs 3,15,508/-, the second of Rs 11,04,278/- and the third of Rs 6,31,016/-, thereby
making payment to the extent of 65% of the sale consideration. He has further
stated that he paid Rs 19,87,930/- in respect of shop No. F-39 vide three cheques,
one of Rs 3,05,835/-, the second of Rs 10,70,425/- and the third of Rs 6,11,670/-.
He has further stated that he has always been ready and willing to perform his part
of the agreement and had also got prepared two pay orders for the balance amount
and attached the photocopies of the same along with letter dated 30.11.2009
(Ex.PW-1/4) which he had sent to the defendants.
3. The plaintiff has now filed the original agreement executed by the defendant
with him for sale of commercial space No. F-39 and F-40, first floor of Paradise
Mall. The original agreements are exhibited as P-1 in view of the supplementary
affidavit filed by the plaintiff.
4. The agreement in respect of Shop No. F-39 show that the defendant had
agreed to sell commercial space admeasuring 401.60 sq. ft covered area equivalent
to 617.85 sq. ft. super area to the plaintiff at the rate of Rs. 4950 per sq. feet. The
total sale consideration reflected in the agreement between the parties in respect of
shop F-39 is Rs. 30,58,357/-.
The agreement in respect of commercial space shop No. F-40 on the first
floor of Paradiese Mall would show that vide this agreement the defendant had
agreed to sell space measuring 414.31 sq. feet of covered area equivalent to 637.39
sq. ft super area to the plaintiff at the rate of Rs.4950/- per sq. feet for a total
consideration of Rs. 31,55,080.50/-
5. Under the terms of agreement between the parties, the plaintiff was required
to make payment as per the following schedule:
SCHEDULE OF PAYMENT
Payment Particulars Basic Cost
On Registration/Booking 10%
On Commencement of Construction 5%
On Casting of Lower Basement Slab 15%
On casting of Upper Basement slab 15%
On casting of Lower Ground Floor 10%
Slab
On Casting of Atrium Level Ground 10%
Floor Slab
On Casting of First Floor Slab 10%
On Casting of Second Floor Slab 10%
On application for completion of 10%
certificate
At the time of Possession 5%
6. The deposition of the plaintiff would show that he paid a sum of Rs.
20,50,802/- to the defendant vide three separate cheques one of Rs. 3,15,508/-
which constitutes 10 % of the agreed sale price, the other of Rs. 11,04,278/- which
constitutes 35 % of the agreed sale price and also paid Rs. 6,31,016/- vide third
cheque which constitutes 20 % of the agreed sale price, thereby making a payment
to the extent of 65 % of the sale price.
The deposition of the plaintiff further show that he paid Rs. 3,05,835/- by a
cheque dated 13.09.2005 which constitutes 10 % of the agreed sale price, in respect
of F-39 Rs. 10,70,425/- vide cheque dated 27.03.2009 which constites 35 % of the
sale price and Rs. 6,11,670/- vide cheque dated 12.08.2009 which constitutes 20 %
of the sale price. Thereby the plaintiff claims to have paid 65 % of the agreed sale
price in respect of this shop as well.
7. Vide letter dated 09.02.2010 (Ex.PW-1/5) the defendant confirmed that the
plaintiff had paid 65 % of the value of the space, amounting to Rs. 40,38,732/-. It
was further confirmed that the balance 35 % shall be collected only at the time of
settlement of the space and shall be numbered. It was also agreed vide this letter
that no interest will be charged on the balance 35 % payment and no action would
be initiated against the plaintiff for withholding that amount.
8. The case of the plaintiff is that the defendant has been issuing the composite
receipt with respect to the payments made for shop Nos. F-39 and F-40 despite his
repeated request to bifurcate the receipts.
9. Since the defendant has agreed to accept the balance 35 % of the sale
consideration at the time of giving possession and numbering of the shops, the
plaintiff is entitled to specific performance of the agreement accepted between the
parties on payment of the balance sale consideration.
10. For the reasons stated hereinabove, I hold that the plaintiff is entitled to
specific performance of the agreements dated 16.05.2005 for sale of commercial
space no. F-39 admeasuring 401.60 sq. ft covered area equivalent to 617.85 sq. ft.
super area and commercial space No. F-40 admeasuring 414.31 sq. feet of covered
area equivalent to 637.39 sq. ft super area on the first floor of Paradise Mall, Plot
no. 23, Shivaji Place, District Centre, Main Ring Road, Raja Garden, New Delhi.
11. The plaintiff is directed to deposit the balance sale consideration by way of a
pay order/demand draft in the name of Registrar General of this Court within two
weeks from today. The defendant shall thereafter execute the requisite document
in favour of the plaintiff within four weeks of deposit of the balance sale
consideration under intimation to it and shall hand over peaceful and vacant
possession of the aforesaid commercial spaces to the plaintiff. If the defendant does
not comply with the order within the time stipulated above, the plaintiff shall be
entitled to apply to the court for appointment of a Local Commissioner to execute
the documents on behalf of the defendant and for delivery of possession of
commercial space No. F-39 and F-40 on the first floor of the Paradise Mall, Plot
No. 23, Shivaji Place, District Centre, Main Ring Road, Raja Garden, New Delhi to
him. The plaintiff shall also be entitled to costs of the suits.
Decree sheet be drawn accordingly.
V.K. JAIN, J
OCTOBER 17, 2012/bg/NR
