Vijay Bhatia And Others vs Narinder Singh And Others
2015 Latest Caselaw 6844 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment pronounced on : 11th September, 2015

+                     I.A. No.3848/2015 in CS (OS) No.2534/2014

       VIJAY BHATIA AND OTHERS                             ..... Plaintiffs
                     Through Mr.P.P.Ahuja, Adv.

                           versus

       NARINDER SINGH AND OTHERS             ..... Defendants
                    Through Mr.Vinod Sharma, Sr.Adv. with
                            Mr.Rohit Sharma & Mr.Amarjeet
                            Singh, Advs.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order, I propose to decide the abovementioned application filed by the defendants for leave to defend.

2. The plaintiffs have filed the present suit for recovery of Rs.87,16,166/- against the defendants under the provisions of Order XXXVII CPC.

3. The plaintiffs are residing at property bearing No.31/42 Flat No.5, Punjabi Bagh, New Delhi-110026 (hereinafter referred to as the "said property"). The defendant No.1 is an HUF named Narinder Singh Chadha & Sons. Sh.Narinder Singh Chadha is the Karta of HUF. The defendants No.2 and 3 are the wife and son of Narinder Singh Chadha. The defendant No.4 is wife of Sh. Parminder Singh.

They all are the residents of 33/42 West Punjabi Bagh, New Delhi- 110026.

The case of the plaintiffs as per plaint

4. The defendant No.1 is HUF through its Karta and defendants No.2 to 4 are the co-owners of freehold built up roof and terrace floor (back portion) of second floor of the said property measuring 643.52 sq.yds. The remaining portions of the property have been sold to the respective purchasers of property by virtue of various registered sale deeds executed by the respective co-owners/landlords/landladies of the property in respect of the respective purchasers of portions of property.

4.1 The defendants had offered to sell the said portion of the property for a total sum of Rs.69,90,000/- to the plaintiffs. The plaintiffs had agreed to purchase the said portion of the property for the aforesaid consideration from the defendants.

4.2 The plaintiff No.1 Vijay Bhatia had remitted a total sum of Rs.22,47,500/- to the defendant No.1 from his Savings Bank A/c bearing No.2019171 with Union Bank of India and also from his sole proprietorship concern M/s Frontier Civil Construction with Yes Bank on various occasions. The defendant No.1 had returned a sum of Rs.5 lakhs out of Rs.22,47,500/- to plaintiff No.1. The plaintiff No.1 had remitted a sum of Rs.17,47,500/- to the defendant No.1 after adjusting a sum of Rs.5 lakhs received from the defendant No.1. Details of the payments made by plaintiff No.1 in the Bank account of

defendant No.1 which were remitted by means of RTGS are as under:

(i) 03.05.2013 UBI-A/c No.2019171 Rs.5,00,000 Rajouri Garden Branch UTR No.UBINH13123099066

(ii) 24.06.2013 YES BANK-A/c 010684000000771 15,00,000 Punjabi Bagh, New Delhi UTR No.YESBH13175001760

(iii) 30.10.2013 YES BANK-A/c 010684000000771 2,47,500 Punjabi Bagh, New Delhi UTR No.YESBH13303001922 Rs.22,47,500

(iv) 30.10.2013 UBI-A/c No.2019171 Rs. 5,00,000 Rajouri Garden Branch (A sum of Rs.5 lac was returned by the defendant No.1 to plaintiff No.1) UTR No.PSIBH13303009114 Net Amount remitted : Rs.17,47,500

4.3. The plaintiff No.1 had also remitted a sum of Rs.8,32,500/- in the Bank account of the defendant No.2 by means of RTGS. The details of payments made by the plaintiff No.1 to the Bank account of defendant No.2 are as under:

06.05.2013 YES BANK- A/C 010684000000771 5,00,000/-

Punjabi Bagh, New Delhi UTR No. YESBH13126002502 14.10.2013 YES BANK- A/C 010684000000771 2,50,000/-

Punjabi Bagh, New Delhi UTR No. YESBH13288001304 30.10.2013 YES BANK- A/C 010684000000771 82,500/-

Punjabi Bagh, New Delhi UTR No. P13103094154217

Rs.8,32,500/-

The Certificate dated 8th April, 2014 issued by Yes Bank, Punjabi Bagh Branch, New Delhi the bankers of the plaintiff No.1's firm M/s Frontier Civil Constructions regarding remittance of amount by means of RTGS in the accounts of defendant Nos. 1 and 2 has been filed.

The certificate issued by Union Bank of India, Rajouri Garden, New Delhi regarding remittance of amount by the defendant No.1 in the account of plaintiff No.1 has also been filed.

4.4. The plaintiff No.2 Digvijay Bhatia had remitted a total sum of Rs.22,47,500/- to the Bank account of defendant No.3, Parminder Singh Chadha, through RTGS. Out of Rs.22,47,500/-, a sum of Rs.5 lakhs was returned by the defendant No.3 to plaintiff No.2 on 30th October, 2013. After adjusting a sum of Rs.5 lakhs, a total sum of Rs.17,47,500/- was remitted by the plaintiff No.2 in the Bank account of defendant No.3. The details of payments made by the plaintiff No.2 to the account of defendant No.3 are as under:

(i) 03.05.2013 UBI-A/c No.435602010010670 Rs.5,00,000 Rajouri Garden Branch UTR No.UBINH13123098739

(ii) 05.07.2013 UBI-A/c No.435602010010670 Rs.5,00,000 Rajouri Garden Branch UTR No.UBINH13186062666

(iii) 09.07.2013 UBI-A/c No.435602010010670 Rs.10,00,000 Rajouri Garden Branch UTR No.UBINH13186062666

(iv) 30.10.2013 UBI-A/c No.435602010010670 Rs.2,47,500 Rajouri Garden Branch UTR No.UBINH13303000325

(v) 30.10.2014 UBI-A/c No.435602010010670 Rs.22,47,500 Rajouri Garden Branch Rs. 5,00,000 (A sum of Rs.5 lac was returned by the defendant No.3 to plaintiff No.2) UTR No.PSIBH13303009085 Rs.17,47,500

4.5(i) The plaintiff No.2 had remitted a sum of Rs.13,82,500/- in the Bank account of defendant No.2, Rameet Kaur. The defendant No.2 had returned a sum of Rs.8 lakhs out of Rs.13,82,500/- on 30th October, 2013 to plaintiff No.2. The plaintiff No.2 had paid a total sum of Rs.5,82,500/- after adjusting a sum of Rs.8 lakhs received from defendant No.2. The details of payments made by plaintiff No.2 to the account of defendant No.2 are as under :

(i) 14.10.2013 UBI-A/c No.435602010010670 Rs.8,00,000 Rajouri Garden Branch

(ii) 30.10.2013 UBI-A/c No.435602010010670 Rs.5,82,500 Rajouri Garden Branch UTR No.UBINH13303000664

(iii) 30.10.2013 UBI-A/c No.435602010010670 Rs.13,82,500 Rajouri Garden Branch Rs. 8,00,000 (A sum of Rs.8 lac was returned by the defendant No.2 to plaintiff No.2) UTR No.PSIBH13303009085 Rs.5,82,500

(ii) The certificate dated 15th July, 2014 issued by Union Bank of India, Rajouri Garden Branch, New Delhi regarding remittance of

amount in the account of defendant No.3 and defendant No.2 has been filed.

(iii) The certificate dated 15th July, 2014 issued by Union Bank of India regarding remittance of amount by Smt. Rameet Kaur Chadha, defendant No.2 in the account of the plaintiff No.2 has been filed.

4.6 The plaintiff No.3 Smt. Kamal Bhatia had remitted a sum of Rs.22,47,500/- to the bank account of defendant No.4, Smt. Dilveen Kaur Chadha by means of RTGS. Out of a sum of Rs.22,47,500/-, a sum of Rs.5 lakhs was returned by the defendant No.4 to plaintiff No.3 on 29th October, 2013. The plaintiff No.3 had paid a total sum of Rs.17,47,500/- to the defendant No.4. The details of payments made by the plaintiffs to the defendant No.4 are as under and also the amount received from the defendant No.4:

(i) 03.05.2013 UBI-A/c No.406302010038588 Rs.5,00,000 Punjabi Bagh Branch UTR No.UBINH13123099287

(ii) 15.07.2013 UBI-A/c No.406302010038588 Rs.10,00,000 Punjabi Bagh Branch UTR No.UBINH13196081021

(iii) 22.10.2013 UBI-A/c No.406302010038588 Rs.5,00,000 Punjabi Bagh Branch UTR No.UBINH13295032684

(iv) 29.10.2013 UBI-A/c No.406302010038588 Rs.2,47,500 Punjabi Bagh Branch UTR No.UBINH13302073306 Rs.22,47,500

(v) 29.10.2013 UBI-A/c No.406302010038588 Rs.5,00,000 Punjabi Bagh Branch (A sum of Rs.5 lakhs was returned by

the defendant No.4 to plaintiff No.3) Rs.17,47,500

4.7 The plaintiff No.3 had remitted a sum of Rs.13,82,500/- to the Bank account of defendant No.2 by means of RTGS. Out of a sum of Rs.13,82,500/-, a sum of Rs.8 lakhs was returned by the defendant No.2 on 29th October, 2013 to plaintiff No.3. After adjusting a sum of Rs.8 lakhs out of Rs.13,82,500/-, the plaintiff No.3 had remitted a total sum of Rs.5,82,500/- to the defendant No.2. The details of payments made by the plaintiff No.3 to the defendant No.2 and also the amount returned by the defendant No.2 are as under:

(i) 22.10.2013 UBI-A/c No.406302010038588 Rs.8,00,000 Punjabi Bagh Branch UTR No.UBINH1325099858

(ii) 29.10.2013 UBI-A/c No.406302010038588 Rs.5,82,500 Rajouri Garden Branch UTR No.UBINH13302073185

___________

(iii) 29.10.2013 UBI-A/c No.406302010038588 Rs.13,82,500 Rajouri Garden Branch Rs.8,00,0000 (A sum of Rs.8 lakhs was returned by the defendant No.2 to plaintiff No.3) ___________ Rs.5,82,500 ___________

(i) The certificate dated 15th July, 2014 issued by Union Bank of India, Rajouri Garden Branch, New Delhi regarding remittance of amount by means of RTGS in the account of defendant No.5 has been filed.

(ii) The certificate issued by Union Bank of India, Rajouri Garden, New Delhi, regarding remittance of amount from the account of defendant No.2 to the account of plaintiff No.3 has been filed.

4.8. (i) The plaintiff No.1 had paid a sum of Rs.17,47,500/- to the defendant No.1. The plaintiff No.1 had also paid a sum of Rs.8,32,500/- to the defendant No.2. The plaintiff No.1 had paid a total sum of Rs.25,80,000/- for the purchase of the aforesaid portion of the property to the defendant Nos. 1 and 2 qua the share of plaintiff No.1.

(ii) The plaintiff No.2 had paid a sum of Rs.17,47,500/- to the defendant No.3. The plaintiff No.2 had paid a sum of Rs.5,82,500/-. The plaintiff No.2 had paid a sum of Rs.23,30,000/- to the defendant No.3 and defendant No.2 qua the share agreed to be purchased by the plaintiff No.2.

(iii) The plaintiff No.3 had paid a sum of Rs.17,47,500/- to the defendant No.4. The plaintiff No.3 had paid a sum of Rs.5,82,500/- to the defendant No.2. The plaintiff No.3 had paid a total sum of Rs.23,30,000/- to the defendant Nos. 4 and 2.

4.9. The plaintiffs had paid a total sum of Rs.72,40,000/- by means of RTGS in the bank accounts of the defendants on different occasions mentioned above. The deal for the sale and purchase of the said portion of the property was for Rs.69,90,000/- though the plaintiffs had made excess payment of Rs.2,50,000/- to the defendants out of consideration amount settled which was for a sum of Rs.69,90,000/-.

5. It is submitted on behalf of the plaintiffs that admittedly, the defendants had received a total sum of Rs.72,40,000/- from the plaintiffs on different occasions mentioned above through RTGS in the bank accounts of the defendants. The defendants had agreed to execute the documents for conveying/transferring their terrace/roof rights in respect of the back portion of second floor portion of said property in favour of the plaintiffs.

6. It is also stated that defendants had also signed and executed the Possession Letter in favour of the plaintiffs thereby giving the possession of the said portion of the property to the plaintiffs. The defendants have not executed the registered Sale Deed in favour of the plaintiffs in respect of their respective shares in the said portion of the property as per the provisions of Transfer of Property Act.

7. At the time of sale, the defendants had not furnished/given the copy of sanction plan of the property to the plaintiffs. When the plaintiffs became suspicious about the conduct of the defendants by not furnishing the sanction plan of the property, upon enquiry, the plaintiffs came to know that a Civil Writ Petition No.3218/1994 was filed by the neighbourers namely Charan Dass, Dev Raj Sharma Versus MCD, Delhi Police and the defendants in this Court thereby praying in the said Writ Petition that the unauthorized and illegal construction which were being raised may be stopped in the said property. The said Writ Petition was listed before the Division Bench of this Court. It is submitted that the defendant Nos. 1 to 4 had given an undertaking dated 17th August, 1994 in the said Writ Petition to the

Division Bench of this Court that they would not make any unauthorized construction in the said property. In view of the said undertaking, the order dated 17th August, 1994 was passed by the Division Bench wherein the undertaking was accepted and the writ petition was accordingly disposed of.

8. It is contended by the plaintiffs that the defendants had not disclosed the aforesaid facts to the plaintiffs at the time of sale of demised portion of property. The defendants have concealed the aforesaid facts from the plaintiffs that the construction cannot be raised on the said portion i.e. terrace/roof situated on the rear side second floor portion of said property as per the undertaking given by the defendants/respondents in the said Writ Petition vide order dated 17th August, 1994 passed.

9. In fact the defendants had induced the plaintiffs in buying the said portion of the property. The defendants had also assured and signed the documents in favour of the plaintiffs that the plaintiffs can raise the construction on the upper floor of property and upto the sky. It is also submitted by the plaintiffs that the defendants have cheated the plaintiffs by inducing them to purchase the said portion of the property. The defendants have also not disclosed with regard to the undertaking given by them to this Court at the time of deal for the sale and purchase of said portion of the property. The defendants have concealed the material facts from the plaintiffs that the constructions cannot be raised in the said portion of the property.

10. The plaintiffs had requested the defendants on number of occasions to return the money which the defendants had received from the plaintiffs on various occasions. But, the defendants had been postponing the return of the same on one pretext or the other.

11. In view of the above, the plaintiffs have filed the suit for recovery of Rs. 72,40,000/- along with interest @ 21% p.a. under Order XXXVII CPC before this Court.

12. After completion of formalities, an application being I.A. No. 3848/2015 under Order XXXVII Rule 3(5) CPC has been filed by the defendants seeking for unconditional leave to defend on the many grounds and have stated that not only the defendants are entitled to leave to defend but also that the suit itself is not maintainable.

13. The grounds raised in the leave to defend application are as under:-

(i) The plaintiffs were admittedly the defendants' neighbours and the plaintiffs were residing in the same street at property No. 27/42, West Punjabi Bagh, New Delhi-110026 prior to their purchasing the said property. The defendants purchased the said property measuring 643.52 Sq. Yards vide 9 registered sale deeds executed in July, 1992. Thereafter, the structure existing on the said plot was demolished and the defendants started construction of a new building in the year 1992. During the construction process, a writ petition bearing CWP No. 3218 of 1994 was filed before this Court by Shri Shiv Charan Das and another complaining about certain construction by the defendants which were alleged to be unauthorized.

(ii) After filing of the writ petition, the defendants immediately demolished all the unauthorized construction which had been made. This fact was duly acknowledged by the writ petitioners before this Court and the same was recorded in the order dated 17th August, 1994. Apart from the fact that the unauthorized construction had been demolished, the defendants' undertaking to the effect that they would not raise any unauthorized construction was also recorded.

The defendants thereafter as per their case constructed front and rear portions on the said plot consisting of lower ground floor, upper ground floor, first floor and second floor, strictly in accordance with the sanctioned building plans of the Municipal Corporation of Delhi duly approved/sanctioned vide building file No.769/B/Hq/93/402.AEI, dated 13th September, 1993. After completion of the building, form "C" & "D" were also obtained from the Municipal Corporation of Delhi vide file No. 225/D/RZ/93, dated 21st December, 1993. Thus, thereafter the defendants sold the various flats on front and back portion to different persons in the years 1994-1996. The roof rights of second floor (back portion) were never sold by the defendants and were retained by the defendants.

(iii) It is alleged that the plaintiffs were throughout aware of the entire facts relating to construction of said property including the facts about the writ petition and the demolition of unauthorized construction as well as raising of construction thereafter in accordance with sanctioned plans and were satisfied with all particulars about the construction raised on the said property by the defendants and

plaintiff No. 3, in fact, purchased flat no. 5, first floor (front side) on this plot from the person who had purchased this flat from the defendants. The defendants had sold Flat No. 5, First Floor (front side) of the plot to Devinder Kaur and Dhanwant Singh vide two Registered Sale Deeds dated 1st March, 1996. The plaintiffs purchased flat no. 5 from Devinder Kaur and Dhanwant Singh vide Registered Sale Deed dated 13th October, 2008. True Copy of the registered sale deeds dated 1st March, 1996 have been filed.

After purchasing the first floor of plot no. 31 the plaintiffs started residing in the same and never raised any objection regarding the nature or quality of construction in respect of the entire building. Later on, the plaintiffs desired to purchase the roof/terrace rights of the second floor on the back portion of the same plot for their own personal use.

(iv) The plaintiffs were fully aware that as per law, construction of the third floor is permitted only with consent of all owners of the floors below. As the plaintiffs were residing in the same building, they were under the impression that they would be able to persuade other flat owners to give them consent for raising construction of the third floor. Accordingly, the plaintiffs approached the defendants for purchasing the roof rights of second floor (back portion) sometime in the last week of April, 2013.

The defendants informed the plaintiffs that although the defendants owned and were entitled to sell the roof rights of second floor (back portion) to the plaintiffs, however, construction of the third

floor would only be possible with the consent of owners of floors below. The plaintiffs expressed their understanding of the situation and stated that since they were residing in the same building they would not have much difficulty in obtaining consent.

Accordingly, the deal for purchase of roof rights of second floor (back portion) was orally agreed at Rs. 83,50,000/-. In pursuance of the oral understanding, the plaintiffs started making payments from 3rd May, 2013 when Rs. 15 Lacs were paid.

(v) Being neighbours and acting in good faith, the defendants handed over possession of the subject terrace to the plaintiffs on 26th May, 2013, when only Rs. 20 lacs out of the total consideration had been paid. The defendants never had any dishonest intention in their dealings with the plaintiffs.

By the end of August, 2013, the plaintiffs had paid the following amounts to the defendants:

Date Payment (Rs.) Payment made by Payment made to

3.5.2013 5,00,000/- Plaintiff No.1 Defendant No.1

5,00,000/- Plaintiff No.2 Defendant No.3

5,00,000/- Plaintiff No.3 Defendant No.4

6.5.2013 5,00,000/- Frontier Civil Defendant No.2 Construction (sole proprietorship of plaintiff No.1)

24.6.2013 15,00,000/- Frontier Civil Defendant No.1 Construction(plaintiff No.1)

• 5.7.2013 5,00,000/- Plaintiff No.2 Defendant No.3

9.7.2013 10,00,000/- Plaintiff No.3 Defendant No.3

15.7.2013 10,00,000/- Plaintiff No.3 Defendant No.4

TOTAL Rs.60,00,000/-

(vi) At this stage, the plaintiffs approached the defendants and informed them that the owners of floors below were objecting to construction of third floor on the back portion of said property. Plaintiff No. 1 forwarded a photograph of a notice put up on the said property by the owners of floors below, which stated that no construction would be allowed on the terrace.

In view of this new development, the plaintiffs requested the defendants to reduce the sale consideration amount. Although the defendants were not legally obliged to reduce the agreed amount since the oral understanding had been arrived at by both parties with open eyes, the defendants agreed to a reduction in the interest of having cordial relations with their neighbours. Thus, it was agreed that instead of Rs. 83,50,000/-, the plaintiffs would purchase the roof rights for total consideration of Rs. 69, 90, 000/-.

(vii) At this time, the plaintiffs had paid Rs. 60 Lacs to the defendants and were thus required to pay only Rs. 9,90,000/- more as per the new arrangement. However, the plaintiffs wanted to adjust the proportion in which individual plaintiffs had made payments to individual defendants. Thus, the plaintiffs requested that instead of simply paying the balance amount of Rs. 9,90,000/- to the

defendants, the plaintiffs would pay an amount of Rs. 43,40,000/- to the defendants in different proportions and requested the defendants to return Rs. 33,50,000/- in different proportions so that the share of individual payment by each plaintiff would be as per their needs. Accordingly, in October 2013, the plaintiffs paid a total amount of Rs. 43,40,000/- to the defendants and the defendants returned Rs. 33,50,000/-to the plaintiffs as under:-

Date Payment Made by plaintiffs (Rs.) Payment made by defendants 14.10.2013 2,50,000/-

[Frontier Civil Construction (Plaintiff No. 1) to Defendant No. 2] 8,00,000/-

[Plaintiff No. 2 to Defendant No.2] 22.10.2013 5,00,000/-

[Plaintiff No. 3 to Defendant No. 4] 8,00,000/-

                   [Plaintiff No.3to Defendant No. 2]
      29.10.2013   2,47,500/-                                5,00,000/-

                   [Plaintiff No.3 to Defendant No. 4]       [Defendant       No.4 to Plaintiff
                                                             No. 3]
                   5,82,500/-                                8,00,000

                   [Plaintiff No. 3 to Defendant No. 2]      [Defendant       No. 2 to Plaintiff
                                                             No. 3]
                                                             2,50,000/-
                                                             [Defendant No. 2 to Plaintiff No. 1]

14. Without expressing any opinion on merits, prima facie it appears to the Court that the present suit is not maintainable under Order XXXVII CPC since it doesn't comply with the requirement of sub-rule 2 of Rule 1 of Order XXXVII CPC. No such contract has been produced along with the plaint, even though the entire case of

the plaintiffs is based on an agreement to purchase the terrace/roof of the second floor (back portion) of property bearing No.31/42 West Punjabi Bagh, New Delhi, no mention of any agreement to sell alleged to have been signed and executed on any date has been made in the entire plaint. As the present suit is not based on any written contract, the same is not maintainable and liable to be dismissed on this ground alone. The plaintiffs at the time of purchase of roof rights were fully aware about the facts and circumstances.

15. It is clear from the above, that the plaintiffs agreed to purchase the roof rights in spite of knowing the objections being raised by owners of floors below. It appears that the plaintiffs were hoping for a change in the legal position so that they could raise construction of the third floor without any consent and thereby make a windfall. The same did not happen and the present suit is filed for refund of amount by raising various pleas which cannot be determined at this stage on merit, otherwise the finding would effect the merit of the case of one of the parties.

16. The defendants have admittedly already handed over possession of the concerned property and are willing to execute a registered sale deed as and when the plaintiffs come forward for the same. The plaintiffs are enjoying the roof rights which have been purchased by them with open eyes.

17. Thus, there are triable issues in the present case and the defendants are entitled to unconditional leave to defend in view of the facts and circumstances in the matter.

18. Having gone through the contents of the application and reply to the application. I am of the view that the defendants are entitled to leave to defend the case.

19. The application is allowed.

CS (OS) No.2534/2014

20. They are granted four weeks to file the written statement. Replication thereto be filed within two weeks thereafter. The matter be listed for admission/denial of the documents before Joint Registrar on 30th November, 2015.

21. After completion of admission/denial of documents, suit be listed before Court for framing of issues and direction for trial on 12 th January, 2016.

(MANMOHAN SINGH) JUDGE SEPTEMBER 11, 2015