Kavita Kacker vs Mukesh Kumar & Anr
2015 Latest Caselaw 7799 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Order Pronounced on: 12th October, 2015

+                        CS (OS) No.1650/2014

       KAVITA KACKER                                          ..... Plaintiff
                    Through           Mr.S.N.Choudhri, Adv.

                         versus

       MUKESH KUMAR & ANR                                ..... Defendants
                  Through             Ms.Bina Gupta, Adv. with
                                      Ms.Radhika Sharma, Adv. along
                                      with defendants in person.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for recovery of money and damages of Rs.21 lac. The case of the plaintiff is that the defendant No.1 approached the plaintiff and informed that he along with defendant No.2 were owners of a residential apartment No.N-706, approximately measuring 1015 sq. ft. in Amrapali, Princely Estate, Sector 16, Noida, Uttar Pradesh (hereinafter referred to as the "suit property"). The defendants also represented that they had the authority to sell and transfer the suit property and that the suit property was free from all sorts of encumbrances such as previous sale, dispute, wills, mortgage, gift, lien, decree, charges, court injunctions, enactment, surety, security, litigation etc. and there was no legal defect in the title or the suit property.

2. The defendants also assured that prior to the proposed agreement to sell with the plaintiff they had not entered into any agreement to sell in respect of the suit property with any other person. Believing the said assurances and representations made by the defendants to the plaintiff, the plaintiff entered into an agreement to sell and purchase on 18th September, 2013 (though initially it was executed on 7th September, 2013 and signed on 18th September, 2013) for the suit property, for a total consideration of Rs.44,66,000/-. As per the aforesaid agreement to sell between the plaintiff and defendants, out of the total sale consideration of Rs.44,66,000/-, Rs.32,73,375/- was to be paid by the plaintiff to the defendants and the balance sum of Rs.11,92,625/- was to be paid to the builder at the time of possession of the flat.

3. The plaintiff paid a sum of Rs.10,50,000/- towards earnest money to the defendants vide four cheques dated 29th August, 2013, 17th September, 2013, 19th September, 2013 and 18th September, 2013 for a sum of Rs.1,00,000/-, Rs.4,00,000/-, Rs.1,00,000/- and Rs.4,50,000/- respectively, two drawn on Bank of Maharashtra, and one each on IndusInd Bank and IDBI Bank. The said cheques were drawn in the name of the defendant No.1 as per his instructions and the same were encashed by the defendant No.1. The balance amount was to be paid on or before 15th October, 2013 and the sum of Rs.11,92,625/- was to be paid to the builder at the time of possession of the flat. The plaintiff had more than sufficient amount available with her to pay the balance sale consideration at all times.

4. It is contended by the plaintiff that after entering into the agreement to sell and after paying the defendants the earnest money

of Rs.10,50,000/-, it came to the notice of the plaintiff that the defendants had already entered into an agreement to sell with one Smt. Mona Nichani W/o Ashu Nichani and Jitesh Nichani S/o Ashu Nichani of the same property, much prior to agreement with the plaintiff, i.e. around February 2013 and had received more than Rs.13,00,000/- as earnest money from the earlier buyers. The plaintiff confronted the defendants with the information of existence of earlier agreement to sell and the same was subsisting. The defendants initially avoided the issue but in the next meetings admitted the earlier transaction. They also gave the copies of notices to the plaintiff which were exchanged with earlier buyers and them. As the defendants were not ready to refund or pay any amount to the plaintiff as demanded on the plea that they were left with no money, rather, the defendants asked the plaintiff to contact the earlier buyers and resolve the issue, as they were unable to resolve the issue, the plaintiff has filed the present suit.

5. The written statement was filed by the defendants. The contention of the defendants is that the plaintiff is in breach of contract by not performing her part of contractual obligations. She has not paid the balance amount of sale consideration within the stipulated time. As such, the plaintiff is not entitled for any claim. The suit filed by the plaintiff for recovery of money and damages is not maintainable. As a matter of fact, inspite of not preferring the remedy of filing the suit for specific performance of the obligations on the part of the defendants in respect of the agreement to sell dated 18th September, 2013, the plaintiff has chosen to file the present suit for recovery and damages. The defendants have not disputed the

fact that the defendants executed the agreement to sell dated 11th February, 2013 with one Mrs. Mona Nichani and Mr.Jitesh Nichani. The said buyers paid an advance amount of Rs.10,36,450/- to the defendants. After the said advance payment made by the said parties, they failed to pay the balance consideration amount to the defendant which they were supposed to pay within a stipulated period of 45 days. Thus, the defendants entered into the present agreement dated 18th September, 2013 with the plaintiff.

6. The act of the defendants did not stop here as despite of the first agreement with the third party, the defendants have entered into the agreement with the present plaintiff and after execution of the agreement with the present plaintiff, the defendants again started approaching the third party, who had entered into the agreement with the defendants at earlier point of time, by notices dated 4th September, 2013, 18th September, 2013 and 8th January, 2014.

7. In support of his contention, learned counsel for the plaintiff has referred the clauses 5 and 6 of the agreement which reads as under:-

"5. That the First Party hereby assures to the Second Party that the above described property under sale is free from all sorts of encumbrances such as previous sale, disputes, wills, mortgage, gift, lien, decree, charges, court injunctions, attachments, surety, security, litigation etc. and there is no legal defect in the title of the Property.

6. Whereas the First Party hereby assures to the Second Party that all pending dues, if any to the builder or any civic agency till transfer of title would be paid by the First Party. And after the Transfer of Interests, rights and titles of Property to Second Party, First Party won't be responsible for any dues or changes, if any, made by the builder or any civic agency."

8. In case, the Clauses 5 and 6 of the agreement are read, it amounts to misrepresentation, cheating and fraud committed by the defendants.

9. As far as the receipt of the amount of Rs.10,50,000/- is concerned, the defendants have not denied having received the same as mentioned in the plaint. Learned counsel for the plaintiff states that in fact, the defendants have cheated the plaintiff as they did not inform the plaintiff at the time of entering into the agreement with her that they had already entered into agreement with the third party. Even, despite of entering into the agreement with the plaintiff, the defendants side-by-side were also approaching the said third party. When it came to the notice of the plaintiff, the plaintiff decided to receive back the money in order to avoid any litigation with the third party.

10. Despite of the above said facts, the learned counsel for the plaintiff states that the plaintiff being a lady is not interested to fight such a long litigation but is praying that the defendants may refund the money to her with nominal interest and in case the defendants are agreeable to refund the said amount to the plaintiff, she will not press for any other relief. It is also informed by the learned counsel for the plaintiff that as the husband of the plaintiff is a Government Servant, the agreement was entered by him through his wife, i.e. the plaintiff.

11. In view of the aforesaid admitted facts in the matter, I am of the view that the parties are not at issue on any question of law. The Court otherwise is empowered to exercise its discretion to pass a

decree on admitted facts under Order XII Rule 6 CPC and under Order XV CPC without any written application.

12. Having considered the pleadings in the suit and the documents placed on the record, I am of the view that the plaintiff is entitled to a decree for recovery of the amount paid by her to the defendants to the tune of Rs.10,50,000/- along with interest @ 9% per annum from the date of making the payment till its realization, as this Court feels that the parties are not at issue on the question of law and facts and as such, no trial is necessary because of the reason that the defendants have admitted that the said earnest money was received by them from the plaintiff.

13. Since the plaintiff is not pressing the relief of damages of Rs.10,50,000/- as claimed in the suit, thus the said prayer is given up. As far as the pendent lite and future interest @ 24% per annum as claimed by the plaintiff is concerned, I have already mentioned that the plaintiff is entitled to receive the interest @ 9% per annum from the date of payment till its realization. Thus, the said relief has become infructuous.

14. The suit of the plaintiff is accordingly decreed.

15. The plaintiff is also entitled for cost of the proceedings.

16. A decree be drawn accordingly. The suit is disposed of accordingly.

(MANMOHAN SINGH) JUDGE OCTOBER 12, 2015