Delhi High Court
Roopak Malik & Anr vs Daryao Singh Dahiya & Ors. on 19 January, 2018
$~OS-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19.01.2018
+ CS(COMM) 86/2017
ROOPAK MALIK & ANR ..... Plaintiff
Through Mr.Mann Seshadri, Adv.
versus
DARYAO SINGH DAHIYA & ORS. ..... Defendant
Through None
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present suit is filed seeking various reliefs. Learned counsel
for the plaintiffs submits that the plaintiffs confines the relief as stated
in para 16(b), namely, a decree in favour of the plaintiffs and against the
defendants jointly and severally for a sum of Rs.4.2 crores with interest
at 18% per annum.
2. The case of the plaintiffs is that the plaintiffs are exclusive owners
of Flat No. HI A021, Second Floor, Block-A, having a super built up area
of 263.95 sq.mt. along with covered/open parking space located at
Westend Heights, Phase-V, DLF City, Gurgaon, Haryana(herein referred
as "the said property"). A conveyance deed was executed by the original
owners M/s. Nilgiri Cultivators Private Limited in favour of the plaintiffs
CS(COMM) 86/2017 Page 1
on 11.05.2007.
3. Acting on the representations and offer made by the defendants
and also keeping in view the medical condition of plaintiff No.1 the
plaintiffs took interest in an exchange scheme offered by the defendants
and agreed to sell their said property located at Westend Heights and
entered into an Agreement to Sell on 31.07.2013 with defendant No.6
whereby plaintiffs sold the said property for a total consideration of
Rs.4.2 crores. It was agreed between the parties that the said Agreement
to Sell would be in force and the defendants would invest the sale
consideration on behalf of the plaintiffs in the upcoming Manhattan
Business Suites i.e. the said project being developed by the defendant
No.6. Plaintiff executed a Sale Deed on 06.09.2013 for sale of the
plaintiff's property being Flat No. H1 A021, 2nd Floor, Block A, Building
No. 1, Westend Heights, DLF City, Phase V, Gurgaon, Haryana in favour
of defendant No.6 where a consideration of Rs.1.3 crores was stated. It is
stated that the sale deed was executed at the Circle Rate on the
insistence of defendant No.6. The sale amount on receipt was
transferred back to defendant No.6 by the plaintiffs by four separate
RTGS payments. Pursuant to the above, the parties entered into eight
Developer Anchor Agreements. In terms of the eight Developer Anchor
Agreements, the sale consideration received by the plaintiff was
invested in 7636.36 sq.ft. space at Rs.5500 per sq.ft. in the name of
plaintiffs No.1 and 2 individually in the Manhattan Business Suites
Project. The plaintiffs were also assured of a monthly return of Rs.4.2
lacs less TDS, under the aforesaid allotments. Hence, it is the case of the
CS(COMM) 86/2017 Page 2
plaintiffs that they have paid a total of Rs.4.2 crores for allotment of
7636.36 sq.ft. in the said Manhattan Business Suites Project which has
till date not materialised. It is also pointed out that Defendant No.7 had
issued monthly PDC's (post dated cheques) in the name of the plaintiffs
as per the Assured Return Agreement for the period 06.09.2013 to
05.09.2018 i.e. a total of 61 post dated cheques each amounting to
Rs.94,500/- which were issued by defendant No.7. The plaintiffs and
defendant No.7 have also entered into an Addendum to each of the
Developers- Anchor Agreements. It is also pleaded that for the first five
months, namely, from September 2013 till March 2014 the cheques
given by defendant No.7 were duly honoured. Subsequent to five
months none of the cheques have been honoured by the defendants. The
plaintiffs have also not received possession of the assured built up space
which was agreed upon. Hence, the present suit for recovery of Rs.4.2
crores.
4. Notices of this suit were duly served to the defendants. Learned
counsel for the defendants entered appearance but no written statement
was filed despite being given sufficient time and opportunity. Hence,
defendants were proceeded ex-parte by this court on 14.09.2016.
Evidence was recorded of the plaintiffs and arguments have been heard in
this suit.
5. Plaintiff has filed his affidavit by way of evidence of Ms.Manjula
Tiwari Malik (PW1). She has exhibited the concerned documents. The
conveyance deed dated 11.05.2007 in favour of the plaintiff is exhibited
as Ex.PW1/1. The Agreement to Sell dated 31.7.2013 has been marked.
CS(COMM) 86/2017 Page 3
Developer-Anchor Agreements dated 06.09.2013 are marked
collectively. Cheque Nos. 371046 and 370742 dated 14.07.2014 and
10.07.2014 were returned dishonoured because of insufficient funds. A
copy has been marked. Copy of the legal notice dated 21.08.2014 has
been exhibited as Ex.PW1/11. The contents of the plaint have been
reiterated and it has been pleaded that the defendants have exchanged
the space at Westend Heights, Phase V, DLF City, Gurgaon which was
handed over to Defendant No.6. In return the plaintiff was assured that
the said amount of Rs.4.2 crores which was the agreed consideration
would be invested and returns would be received by the plaintiff on
account of which there is a default.
6. It is manifest that the plaintiff has parted with the flat at Udyog
Vihar and was in return promised investment in Manhattan Business
Suites. He has neither received the possession or title of the property
nor the consideration for the property he sold in Udyog Vihar. However,
as far as Defendants No.1 to 5 are concerned, it has been pleaded by the
plaintiff that these parties are directors/agents of defendants No.6 to 9
who have acted in together to try and deceive the plaintiff. Further,
some of these directors are said to be in Judicial Custody.
7. In my opinion, the said persons being Directors cannot be held
liable for the dues of defendants No.6 to 9. The Agreements have been
entered into by the plaintiffs and between defendants No.6 to 9.
Accordingly, a decree is passed in favour of the plaintiffs and against
defendants No.6 to 9 for a sum of Rs.4.2 crores. Plaintiff shall also be
entitled to simple interest @ 8% per annum w.e.f. from the date of filing
CS(COMM) 86/2017 Page 4
of the suit till date of the decree. The plaintiff shall also be entitled to
future interest @ 8% per annum from the date of decree till recovery.
Plaintiff shall also be entitled to costs.
8. The suit is accordingly disposed of. All pending applications, if any,
also stand disposed of.
JAYANT NATH, J
JANUARY 19, 2018
n
CS(COMM) 86/2017 Page 5
