Delhi High Court
Shri Sandeep Virmani & Anr. vs Shri Jay Kumar on 25 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on:25th August, 2014
+ CS(OS) No.1517/2009
SHRI SANDEEP VIRMANI & ANR. ..... Plaintiffs
Through Mrs.Gurkamal Hora Arora, Adv. with
Ms. Kritika Khanijo, Adv.
versus
SHRI JAY KUMAR .....Defendant
Through None
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The plaintiff has filed a suit for recovery for a sum of
Rs.42,20,000/- against the defendant.
2. Brief facts of the case are that the defendant is the owner of a
residential house bearing no. D-56, Adharshila situated within the
residential colony known as Sushant Lok, Phase-II, Gurgaon,
Haryana (hereinafter referred to as the "suit property") measuring 170
sq. yards (approximately) by virtue of registered sale deed bearing
Vasika No. 4900 dated 16th February, 2005. The defendant entered
into an agreement to sell with the plaintiffs on 17th November, 2005 to
sell the suit property for a total sale consideration of Rs.32,00,000/-
out of which the plaintiffs had paid a sum of Rs.5,00,000/- as earnest
money to the defendant. As per the terms and conditions of the
agreement to sell dated 17th November, 2005 last date for execution
and registration of sale deed by the defendant in favour of the
plaintiffs was initially agreed as 90 days from the date of execution of
agreement to sell i.e. 15th February 2006.
3. It is the case of the plaintiffs that the defendant had taken a
loan from M/s G.E.Countrywide, Delhi bearing Loan A/c. No. HDLH
00003569 against the suit property and the original title documents of
the suit property were pledged with G.E.Countrywide, Delhi. It was
agreed by the defendant that the defendant shall clear the said loan
amount and also hand over the original documents to the plaintiffs at
the time of transfer of the suit property. It was further agreed that in
case the defendant fails to get the suit property registered/transferred
in favour of the plaintiffs or their nominee(s)/representatives then the
defendant will pay double the amount of advance money which the
defendant had received from the plaintiffs as advance/earnest money
towards the sale of the said property.
4. It is stated that in the month of January, 2006 the defendant
requested for a further advance sum of Rs.3,00,000/- from the
plaintiffs and the plaintiffs bonafidely paid a sum of Rs.3,00,000/- by
way of cheque to the defendant towards the part payment of the
consideration amount and the said cheque was duly encashed by the
defendant. However, on 3rd April, 2006 the defendant again
requested the plaintiffs for a further advance of Rs.13,10,000/- as the
defendant was unable to repay the outstanding amount due against
the aforesaid loan which was agreed and paid by the plaintiffs by way
of cash. The defendant duly endorsed the receipt of the said payment
on the original agreement and further extended the date of execution
to on or before 25th April, 2006.
5. It is stated that on 5th August, 2008 the defendant discharged
his loan obligation by paying Rs.13,49,917/- to M/s G.E.Countrywide
vide receipt bearing no. CDL 0353211 and thereafter, was under an
obligation to perform his part of agreement and executed a sale deed
in favour of the plaintiffs. However, instead of execution of the sale
deed, the defendant malafidely and dishonestly filed a false and
frivolous suit for perpetual injunction against the plaintiffs before the
Senior Civil Judge, Tis Hazari Courts, Delhi and the suit was
dismissed vide order dated 25th January, 2010.
6. It is further alleged that the defendant with malafide intentions
got discharged his loan liability towards M/s G.E.Countrywide after
availing fresh loan from ICICI Home Finance, ICICI Bank after
pledging/mortgaging/hypothecating the suit property without the
knowledge of the plaintiff and that such act of the defendant is illegal,
void and ultra vires, as the defendant had availed the loan on the suit
property on which the plaintiffs have superior lien/charge because the
defendant agreed to sell the suit property to the plaintiffs vide
agreement to sell dated 17th November, 2005 for a total sale
consideration of Rs.32,00,000/- and out of which the defendant had
already received an advance sum of Rs.21,10,000/-.
7. It is stated that vide legal notice dated 5th May, 2007 the
plaintiffs called upon the defendant to execute the sale deed of the
suit property in favour of the plaintiffs. Despite the receipt of the
notice dated 5th May, 2007 and several requests the defendant failed
to perform his obligation under the said agreement to sell dated 17th
November, 2005 or pay the double of the advance amount received
from the plaintiffs.
8. Written statement on behalf of defendant has been filed
contending the following :
i) The suit is barred by limitation.
ii) There is no cause of action.
iii) It is liable to be stayed under Section 10 CPC.
iv) The suit is not legally maintainable.
v) The plaintiffs have failed to make the payment of balance
amount of sale consideration to the defendant on or before
25th April, 2006 and accordingly, the earnest money was
forfeited by the defendant as per the terms of the
agreement to sell dated 17th November, 2005.
vi) That the plaintiffs are not entitled for the double amount of
the earnest money as they failed to perform their part of
contract by not making the payment of balance sale
consideration upto 25th April, 2006.
9. Replication has been filed to the written statement by the
plaintiffs denying the contents of the same.
10. The suit was listed before Court on 21st August, 2009 when
summons were issued to the defendant in the suit.
11. Despite service of summons, there is no appearance on behalf
of the defendant since 17th January, 2012 and consequently, the
defendant was proceeded ex-parte vide order dated 24th October,
2013.
12. In ex-parte evidence, the plaintiff No.1 filed affidavit dated 29th
April, 2011 of Mr. Sandeep Virmani as PW1 reiterating the contents
of the plaint and also exhibited certain documents exhibited as
Ex.PW1/1 to Ex. PW 1/21 and Mark A and B in support of its case.
The same are as follows:
Original Agreement to Sell dated 17th November, 2011, Ex P-1.
Receipt issued by M/s G.E. Countrywide, Ex P-2.
Copy of the passport of the defendant, Ex. PW1/1.
Copy of the notice dated 26th April,2011, Ex.PW1/2.
Postal receipts, Ex.PW1/3 and Ex.PW1/4.
The receipts of payment made by predecessor-in-interest
towards the purchase of the suit property, Ex.PW1/5 to
Ex.PW1/20.
Certified copy of the order dated 25th January, 2010,
Ex.PW1/21.
Copy of the relevant extract of the newspaper, The Business
Standard dated 19th December, 2009, Mark B.
Copy of the legal notice dated 5th May,2007, Ex.P-3.
Copy of the legal notice dated 15th July,2009, Ex.P-4.
Reply to the legal notice dated 21st July,2009, Ex.P-7.
13. The details of the calculation with regard to the outstanding
dues pending against defendant is as follows :
Details Dated Amount
i In cash 17th November, 2005 Rs.5,00,000/-
ii. A/c payee cheque 14th January, 2006 Rs.3,00,000/-
No. 652304 drawn
on Oriental Bank of
Commerce,
Janakpuri, New
Delhi
iii. In cash for 3rd April, 2006 Rs.13,10,000/-
payment of dues of
M/s GE
Countrywide
Total Rs.21,10,000/-
14. PW-1 was not cross-examined by the defendant who also failed
to produce evidence in support of his defence. The ex-parte evidence
was closed vide order dated 18th November, 2013. The evidence filed
by the plaintiff has gone unrebutted as no cross-examination of the
plaintiff's witness was carried out, therefore, the statements made by
the plaintiff are accepted as correct deposition. Under these facts and
circumstances, the plaintiff is entitled for a decree for recovery of a
sum of Rs.42,20,000/- against the defendant. The plaintiff is also
entitled to pendente lite and future interest at the rate of 9% per
annum till realization of the total amount. The decree be drawn
accordingly. The suit is disposed of.
(MANMOHAN SINGH)
JUDGE
AUGUST 25, 2014
