Delhi High Court
Ram Babu Aggarwal vs Shreya Developwell Pvt. Ltd. & ... on 5 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 12/2018
% 5th January, 2018
RAM BABU AGGARWAL ..... Appellant
Through: Mr. Robin Tyagi and Mr.
Nagender Deswal, Advocates.
versus
SHREYA DEVELOPWELL PVT. LTD. & ANR. ..... Respondents
Through: Mr. Anshuman, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 327/2018 (for exemption)
Exemption allowed, subject to all just exceptions.
C.M. stands disposed of.
RFA No. 12/2018
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
impugning the judgment of the trial court dated 22.9.2017 by which
the trial court has decreed the suit of the appellant/plaintiff for
recovery of moneys for a sum of Rs.17,28,200/- as against the
respondent no. 1/defendant no. 1, but the suit stands dismissed against
the respondent no.2/defendant no. 2. Trial court has also not granted
pre-suit interest. The present appeal is therefore filed by the
appellant/plaintiff seeking two reliefs of being granted a decree
against the respondent no.2/defendant no. 2 and also for grant of pre-
suit interest. It is noted that respondents/defendants were ex-parte in
the suit and thus the suit was not contested by the
respondents/defendants.
2. On the issue as to whether the respondent no.2/defendant
no. 2 is liable, it is seen that admittedly the contract of
appellant/plaintiff was with the respondent no. 1/defendant no. 1. It
was the respondent no.1/defendant no. 1/company which proposed to
make a project at Hindon Heights, Ghaziabad, U.P., wherein the
appellant/plaintiff had booked a flat. Therefore, appellant/plaintiff
only has privity of contract with the respondent no.1/defendant no. 1.
Respondent no.2/defendant no.2 is pleaded to be liable to the
appellant/plaintiff on account of the fact that the respondent
no.2/defendant no. 2 has taken over the project from the respondent
no.1/defendant no. 1, however I have repeatedly asked the counsel for
the appellant/plaintiff to show me any document whereby the
appellant/plaintiff agreed that respondent no.2/defendant no. 2 will
only be liable and respondent no.1/defendant no. 1 will no longer be
liable i.e the contract of appellant/plaintiff with respondent
no.1/defendant no. 1 stood substituted by the contract of
appellant/plaintiff with the respondent no.2/defendant no. 2 but it is
seen that admittedly no evidence whatsoever, much less documentary
evidence, could be pointed out to this Court as led in the trial court, to
show that contract of appellant/plaintiff with respondent
no.1/defendant no. 1 was substituted with respondent no.2/defendant
no. 2 and appellant/plaintiff accepted this position and discharged the
respondent no.1/defendant no. 1. Therefore, in my opinion trial court
has committed no error in dismissing the suit by holding that there is
no liability of respondent no.2/defendant no. 2.
3. On the aspect of grant of pre-suit interest, admittedly
there is no contract between the parties as to appellant/plaintiff being
entitled to interest. The only basis of claim of interest was on the
ground of appellant/plaintiff having issued a legal notice dated
27.5.2015. It is argued that once legal notice is given, the
appellant/plaintiff hence under the Interest Act, 1978 will be entitled
to interest.
4. In view of sending of the legal notice dated 27.5.2015,
the appellant/plaintiff therefore under the Interest Act would be
entitled to interest from the date of sending of the legal notice to the
date of filing of the suit and I note that this period is not a large period
but just a period of six months. In my opinion, therefore no purpose
would be served in issuing any notice in this appeal in view of the fact
that the respondents/defendants were ex-parte in the trial court.
However since the issue is of grant of pre-suit interest in view of the
legal notice having been issued under the Interest Act, and noting that
the appellant/plaintiff has been granted pendente lite and future
interest at 9% per annum, the impugned judgment and decree is
modified by granting interest at the rate of 9% per annum from
1.6.2015 till the date of filing of the suit on 26.11.2015.
5. Appeal is accordingly dismissed so far as the relief
prayed of passing of a decree against the respondent no.2/defendant
no. 2 is concerned, but, the impugned judgment and decree is modified
by granting pre-suit interest from the date of legal notice till the date
of filing of the suit as stated above.
6. The appeal is accordingly disposed of.
JANUARY 05, 2018 VALMIKI J. MEHTA, J
AK
