Delhi High Court
Kulbhushan Rai Bajaj vs M/S A.J.S Builders Ltd & Anr on 1 September, 2015
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.09.2015
+ CS(OS) 186/2012
KULBHUSHAN RAI BAJAJ ..... Plaintiff
Through: Mr. Aseem Mehrotra, Adv.
versus
M/S A.J.S BUILDERS LTD & ANR ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Open Court)
1.
This is a suit for recovery of Rs.1,52,42,500/- along with
pendente lite and future interest @ 18% as well as costs. The
plaintiff's case is that he had entered into an agreement with
defendant Nos.1 and 2 for purchase of flat bearing Nos.11201 and
11202, each admeasuring 1120 sq.ft. and Unit Nos.11109 and 11210
each admeasuring 1420 sq.ft. and unit No.102 measuring 1645 sq. ft.
2. An amount of Rs.70 lacs had been paid to and duly
acknowledged by the defendants. The receipt is marked as
Ex.PW1/2. The agreement is exhibited as Ex.PW1/1. The defendants
defaulted in delivering possession of the flats although the plaintiff
repeatedly asked them to deliver the possession of the flat. A letter in
this regard, dated 12.1.2009, was also sent to the defendants
(Ex.PW1/3). Through a letter dated 22.1.2009 (Ex.PW1/4), the
defendants informed the plaintiff that: i) the project is being delayed
because of unavoidable circumstances but ii) they would complete it
by March, 2009; iii) and there would be some change apropos the
flats and the exact location of the flats would be informed to the
plaintiff within fifteen days thereof. Nevertheless, they assured the
plaintiff that the flats would be delivered at least by the first week of
April, 2009. The said deadline also was not adhered to by the
defendants hence, the plaintiff demanded the flat by his letter dated
20th May, 2009, (Ex.PW1/5).
3. It is contended that the defendants sought to pressurize the
plaintiff into signing a document/undertaking whereby the plaintiff
would not initiate either civil or criminal proceedings against the
defendants, which of course was declined by the plaintiff. This is
evident from the defendants' letter to the plaintiff dated 11.08.2009
(Ex. PW1/6). A legal notice (Ex.PW1/7) was issued on 10.10.2010
seeking possession of the flats within fifteen days thereof or in the
alternative, an amount of Rs.2 crores towards refund of the earnest
money along with interest thereon.
4. In these proceedings, the defendants were proceeded ex parte
on 13.2.2015.
5. Clause 8 of the agreement between the parties reads as under:-
"8. That is hereby specifically clarified and so agreed
by Smt. Madhu Sigh that she is the promoter, Director of
the company and is in charge and liable for day to day
affairs of the company, therefore the Smt. Madhu Sing
and the company are jointly and severally responsible for
the payment and performance of this agreement and in
case they fails to make the payment with in six months to
Second party, in that case she as the Directors of the said
company as well the company will be responsible for all
the implications and consequences as well as payment. It
is further assures the second party that he had entered in
to the agreement after passing a proper board resolution
to that effect. It is further agreed that the First party
shall be liable and bound to make the payment of
Rs.91,00,000/- (Rupees Ninety One lacs only) on or
before 27.3.2008 to the Second party within six months
i.e. on or before, in both the events, if the project is
completed and/or in case it is not completed due to any
reason whatsoever. It is also agreed between the parties,
that the said agreement can be extended for a further
period of one month if mutually agreed to between the
parties on the same terms."
6. It is contended that in view of the aforesaid, since an amount of
Rs.91 lakhs was agreed to be paid to the plaintiff within six months of
the date of the agreement, irrespective of completion of the project,
the said amount has now become payable to the plaintiff. The
plaintiff has led his evidence which is in terms of the plaint. There is
no rebuttal. There is no opposition or rebuttal to the contentions
made in the plaint.
7. Mr. Aseem Mehrotra, the learned counsel for the plaintiff
would submit that in three similar proceedings, i.e. CS(OS)
No.2112/2012, CS(OS) No.95/2011 & CS(OS) No.722/2011 against
the same defendants, this Court has ordered likewise. It is submitted
that in CS(OS) No.2112/2012 against the very same builder, this
Court has awarded pendente lite and future interest @ 18%.
8. In view of the aforesaid clause 8 of the agreement, the claim for
Rs.91 lakhs is made out and the claim is allowed. The Court would
take note of the fact that an investment in real estate is made not only
it is a secure investment but also with the understanding that its value
would increase as time passes by. The monies were invested in 2007;
real estate values have increased manifold in and around the NCT of
Delhi, therefore, an investment of Rs.70 lacs which has been
liquidated to Rs.91 lacs ought to fetch a fair amount of appreciation in
value during the pendency of this litigation. Accordingly, the interest
@ 18% as claimed by the plaintiff would not be unfair. The suit is
decreed in terms of prayers A and B of the plaint. Costs of
Rs.50,000/- is also awarded in favour of the plaintiff.
9. Let the decree sheet be drawn up accordingly.
10. The suit is disposed off in the above terms.
NAJMI WAZIRI, J
SEPTEMBER 01, 2015/ak
