Delhi High Court
M.L.Gupta vs M/S. Aerens Gold Souk ... on 3 January, 2018
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 13th September, 2017
Judgment delivered on: 03rd January, 2018
+ CS(OS) 2442/2011
M.L.GUPTA ..... Plaintiff
versus
M/S. AERENS GOLD SOUK INTERNATIONAL LIMITED
AND OTHERS .... Defendants
Advocates who appeared in this case:
For the Plaintiff : Mr Manish Vashisht with Mr Sameer Vashisht
For the Defendants : Ms Kaadambari Puri, Mr Ratul Sen and Ms Aditi
Sharma.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
IA No.8588/2016 (under Order 12 rule 6 CPC)
1. The plaintiff has filed the subject Suit seeking recovery of
Rs.15,68,63,508/- (principal amount of Rs.14,27,81,000/- +
Rs.1,40,82,508/-, as interest @ 18% as on the date of the filing of the
Suit), besides pendente lite and future interest at the rate of 18%.
2. The case of the plaintiff is that the plaintiff and defendants 3 to
6 had earlier entered into a transaction with regard to purchase of a
property, on account of which friendly relations developed between
the plaintiff and defendant Nos.3 to 6. Because of the friendly
relations, the plaintiff advanced several amounts as loan, to the
Companies of defendants 3 to 6, i.e. defendant Nos.1 & 2. It is also
contended that between plaintiff and defendants, there were several
transactions for sale and purchase of properties in the name of the
wife of the plaintiff, which transactions were concluded. The loan
given to defendants 1 and 2, at the asking of defendants 3 to 6, was a
friendly loan repayable on demand.
3. It is contended that defendants repaid a part of the loan leaving
the balance of Rs.14,27,81,000/-. Since the defendants failed to repay
the loan, plaintiff demanded the same. However, on defendants
refusing to repay the loan and contending that there was an
Agreement to Sell between the parties for purchase of Spaces in the
projects being developed by defendant No.1 and as such, the amount
was not repayable, the plaintiff filed the present Suit.
4. The defendants have opposed the Suit contending that the
plaintiff had not advanced any loan to defendants, however, had
entered into an Agreement to Sell dated 25.08.2009 for purchase of
Spaces bearing No.GF-06 and FF-08 in the Commercial Complex
named as Gold Souk, Jaipur situated at plot No.2, Jagatpura Road,
Near Jawahar Circle, Jaipur, Rajasthan, for a total sale consideration
of Rs.33,71,85,000/-, for which an Earnest Money Deposit of
Rs.3,37,18,500/- was paid by the plaintiff. The remaining payments
were towards part sale consideration of the said Units bearing No. GF-
06 and FF-08. It is contended that apart from the said two Spaces, the
plaintiff agreed to purchase other Units/Spaces being TF-2 to TF-14,
GF-2, GF-3, GF-4 and FF-9 in the Project at Gurgaon, Haryana, in the
name of his wife. It is contended that initially, it was agreed that on
payment of the entire sale consideration of all the Spaces agreed to be
purchased at Jaipur and Gurgaon, the sale documents would be
executed, however, since payments for the Spaces agreed to be
purchased at Gurgaon were made fully and finally, Transfer
Documents in respect of the Spaces purchased in Gurgaon Project
were executed in favour of the wife of the Plaintiff.
5. It may be pertinent to note that there is some dispute, inter alia,
with regard to the Assured Return/lease rentals claimed by the wife of
the plaintiff from the defendants for the Gurgaon properties, which is
the subject-matter of independent arbitration proceedings. These
proceedings are without prejudice to the said arbitration proceedings
pending between the Defendants and the wife of the Plaintiff.
6. Pending the present Suit, plaintiff has filed the subject
application under Order XII Rule 6, inter alia, contending that it is
admitted by the defendants that the sum of Rs.14,27,81,000/- has been
received by defendants 1 & 2; defendant No.1 having received
Rs.11,77,81,000/- and defendant No.2 having received
Rs.5,00,00,000/-. Defendant No.1 has re-paid a sum of
Rs.2,50,00,000/- leaving a balance of Rs.9,27,81,000/-, as principal
amount due and defendant No.2 has not refunded any amount. It is
disputed that any Agreement to Sell dated 25.08.2009 was executed
between the plaintiff and defendant No.1. The said Agreement is
stated to be forged and fabricated.
7. It is contended that even if assuming that Agreement to Sell
dated 25.08.2009 had been executed, the same stipulates that in case
the Vendee, i.e. the plaintiff fails to pay the balance sale consideration
within 15 days from the date of the execution of the Agreement, the
defendant No.1 would have full right to forfeit the said part-
payments/Earnest Money. It is thus contended that even if assuming
defendant No.1 was entitled to forfeit an amount of Rs.3,37,18,500/-,
the said defendants are admittedly liable to refund Rs.10,19,32,002/-.
8. The defendants, in reply to the application, have relied upon the
Written Statement and reiterated their stand as noticed above.
9. For a decree to be passed under Order XII Rule 6 of the Code of
Civil Procedure (CPC), what is implicit is that there should be an
unequivocal admission on the part of the defendants. The defendants
have admitted the contention of the plaintiff; that defendant No.1 had
received Rs.11,77,81,000/- and defendant No.2 has received a sum of
Rs.5,00,00,000/-. It is not denied that defendant No.1 has re-paid a
sum of Rs.2,50,00,000/-. Thus, there is admission on the part of the
defendant that defendants 1 & 2 have received a total sum of
Rs.14,27,81,000/-. The only contention of the defendants is that the
said amount was paid as part-consideration for purchase of
Units/Spaces bearing No.GF-06 and FF-08 in Gold Souk, under
Agreement to Sell dated 25.08.2009.
10. The contention of the defendants is that the total sale
consideration agreed to was Rs.33,71,85,000/- and Rs. 3,37,18,500/-
was received as part payment/earnest money.
11. The stand of the plaintiff is that the Agreement to Sell dated
25.08.2009 is a forged and fabricated document. This is a disputed
question of fact on which parties would be required to lead evidence.
Only after a trial the genuineness or otherwise of the said Agreement
to Sell can be established. However, for the present application and in
these circumstances, assuming the Agreement to Sell dated
25.08.2009 to be a valid document, what is borne out is that
admittedly defendant No.1 has received the said sum of
Rs.9,27,81,000/- and defendant No.2 has received the sum of
Rs.5,00,00,000/-, though allegedly towards part sale consideration.
The Agreement to Sell dated 25.08.2009 is only between plaintiff and
defendant No.1. Defendant No. 2 is not a party to the said agreement
to Sell.
12. Clause (2) of the said Agreement to Sell reads as under-
"2. That out of the Total Sale Consideration of
Rs.33,71,85,000/- (Rupees Thirty Three Crores Seventy
One Lacs Eighty Five Thousand Only), the Vendor has
received a sum of Rs.3,37,18,500/- (Rupees Three Crores
Thirty Seven Lacs Eighteen Thousand Five Hundred
Only) towards the part-payment/earnest money from the
Vendee, through cheque(s), as per details herein below:-
Cheque No. Amount(Rs.) Dated Drawn On
389603 3,37,18,500/- 25.08.2009 HDFC Bank Ltd.,
Greater Kailash-I, New
Delhi-110048.
TOTAL 3,37,18,500/- (Rupees Three Crores Thirty Seven Lacs
Eighteen Thousand Five Hundred Only)
the receipt of which, the Vendor hereby admits and
acknowledges the same and the balance sale
consideration of Rs.30,34,66,500/- (Rupees Thirty Crores
Thirty Four Lacs Sixty Six Thousand Five Hundred Only)
shall be paid by the Vendee to the Vendor within
15(fifteen) days from the date of execution of this
Agreement to Sell. In case the Vendee fails to pay the
abovesaid balance sale consideration to the Vendor
within 15(fifteen) days from the date of execution of this
Agreement to Sell, i.e. on or before 11.09.2009, then in
that event, the Vendor has full right to forfeit the
abvoesaid part payment/earnest money."
13. Reading of Clause (2) of the said Agreement shows that the
plaintiff is alleged to have paid a sum of Rs. 3,37,18,500/- towards
part-payment/Earnest Money for purchase of two Units bearing No.
GF-06 and FF-08. The said clause stipulates that in case balance sale
consideration of Rs. 30,34,66,500/- is not made within 15 days of the
execution of the said Agreement, the Vendor has full right to forfeit
the above-referred part-payments/Earnest Money. What is borne out
from the Agreement is that in case on default of the plaintiff, the
defendant No.1 would have a right to forfeit only a sum of
Rs.3,37,18,500/-, out of the entire payment made. Plaintiff has not
paid the alleged entire balance sale consideration. Admittedly,
defendant No.1 has received a sum of Rs.9,27,81,000/-. Even though
it is not the case of the defendants that the defendants have exercised
the option of forfeiture of the Earnest Money, at best, under clause
(2), defendant No.1 would be entitled to forfeit the sum of
Rs.3,37,18,500/-, out of the entire alleged part-consideration amount
received.
14. Learned counsel for the plaintiff has very categorically stated
that the plaintiff is not interested in purchase of the said two Units and
is not seeking specific performance of the Agreement to Sell dated
25.08.2009. This submission is without prejudice to the contention
that the Agreement to Sell dated 25.08.2009 is a forged and fabricated
document.
15. In the above circumstances, what is evident is that defendants 1
& 2 together have received a sum of Rs.14,27,81,000/- from the
plaintiff. At best defendant No.1 could forfeit a sum of
Rs.3,37,18,500/. Since there is an unequivocal admission on the part
of the defendants, that defendants 1 & 2 have received the above-
referred amount, which has not yet been re-paid and no justification is
forthcoming for retention of the same. Defendant No.1 is clearly liable
to repay to the plaintiff a sum of Rs.5,90,62,500/- (i.e.
Rs.9,27,81,000/- - Rs.3,37,18,500/-) and defendant No.2 is liable to
repay the amount of Rs.5,00,00,000/- totalling to Rs.10,90,62,500/-.
16. Plaintiff has claimed refund of the amount with interest at the
rate of 18% per annum. The stand of the defendants, in the written
statement, is that the defendant No.1 is ready and willing to execute
the documents of Transfer Deed in favour of the plaintiff provided the
plaintiff clears the balance sale consideration along with interest at the
rate of 18% per annum on the balance amount due. The defendants
themselves in the written statement have referred to '18%' as the rate
of interest, which the plaintiff would be liable to pay, for delay in
payment. The said stand of the defendants shows that the said rate of
18% is the rate which should be adopted for the delay in repayment of
the amount by the defendants.
17. In view of the above, the application is allowed. Part decree on
admissions is passed in favour of the plaintiff and against defendant
No.1 in the sum of Rs. Rs.5,90,62,500/-. Further part decree is passed
in the sum of Rs.5,00,00,000/- in favour of the plaintiff and jointly
and severally against defendants 1 & 2. The above-referred amount
shall also carry interest at the rate of 18% per annum from the date of
the filing of the Suit till payment in full. Decree sheet be drawn up
accordingly.
18. It is clarified that this decree is without prejudice to the claim of
the plaintiff for the balance amount claimed in the Suit and the period
for payment of interest, which would be determined after the trial is
concluded.
CS(OS) 2442/2011
List before the Roster Bench for directions on 10.01.2018.
SANJEEV SACHDEVA, J
JANUARY 03, 2018
'Sn'
