Delhi High Court
M/S Himland Housing Private ... vs M/S Akash & Associates on 20 March, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.276/2018
% 20th March, 2018
M/S HIMLAND HOUSING PRIVATE LIMITED & ORS.
.....Appellants
Through: Mr. Sumeet Kaul, Advocate.
versus
M/S AKASH & ASSOCIATES ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.10790/2018 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No.10789/2018 (for condonation of delay)
2. For the reasons stated in the application, delay of 68 days
in filing the appeal is condoned.
C.M. stands disposed of.
RFA No.276/2018 and C.M. No.10788/2018 (stay)
3. This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 (CPC) by the defendant no.1 in the suit
impugning the judgment of the trial court dated 23.8.2017 by which
trial court has decreed the suit for recovery of moneys filed by the
respondent/plaintiff. The amount which has been decreed is the
amount paid by the respondent/plaintiff as an investment in the
projects of the appellant no.1/defendant no.1. The suit has been
decreed after framing issues by holding that there is no need of trial on
account of admissions which have been made by the appellant
no.1/defendant no.1 in its written statement.
4. The facts of the case are that the respondent/plaintiff filed
the subject suit for recovery of Rs.5,30,000/- pleading that this amount
was paid by the respondent/plaintiff to the appellant no.1/defendant
no.1 as investment in construction projects of appellant no.1/defendant
no.1 but since however this investment was frustrated because the flats
were not handed over to the respondent/plaintiff. Therefore, the
subject suit for recovery came to be filed.
5. The relevant para of the plaint averring payments of
amounts by the respondent/plaintiff to the appellant no.1/defendant
no.1 is para 4. For the sake of understanding, however reference is
also made to paras 3 and 5 of the plaint and therefore, paras 3 to 5 of
the plaint are reproduced as under:-
"3. That the defendants in collusion with each other & some of their
associates misrepresented, allured and induced the plaintiff to invest in
their project "Himland Executive Residences" a housing project of M/s
Himland Housing Pvt. Ltd. in Damrog, Solan, Himachal Pradesh and
assured the plaintiff to allot flats in the name of the plaintiff.
4. That as per the requirements of the defendants, the plaintiff
invested the amount in the project of defendants through RTGS/NEFT
and the details of the same is as under:-
S. No. Name Date Mode of Payment Amount in Name of
Rs. Beneficiary
1. Akash & 26/03/14 RTGS from 5,00,000/- Himland
Associates Corporation Bank Housing Pvt.
Ltd.
2. Akash & 06/08/14 NEFT from 30,000/- P.K. Dass
Associates Corporation Bank accountant/su
perwiser head
(HHPL)
5. That the defendants despite duly receipt the aforesaid amount have
not allotted the flat in favour of the plaintiff and further linger on the same
on one pretext or the other."
6. I may note that summons in the suit were only issued to
the appellant no.1/defendant no.1 and in fact even the decree is only
passed against the appellant no.1/defendant no.1. The paras of the
written statement of the appellant no.1/defendant no.1 which do not
dispute the contents of paras 3 to 5 of the plaint, are paras 3 to 5 of the
written statement and these paras read as under:-
"3. That in reply to the contents of para no.3 of the plaint it is
submitted that mere assertion is not sufficient to make allegations; as the
submissions are import of the information derived by the husband of the
plaintiff, who is also attorney holder of the plaintiff being connected with
the defendant no.1 as Chartered Accountant and also to the defendant no.2
and his other family members and firms. The plaintiff shall stand to strict
proof of her allegations that she was allured in any manner. Since there
was no discussion, conversation with the plaintiff there was no assurance
of any allotment of flat or flats as alleged. The plaintiff is making vague
and bald assertions as to investment and allotment of flats and had not
disclosed as to what was to agreed cost, how the payment was to done and
what all payment is made by her and what all is/was due. It is strange to
note that for the mere sum of Rupees 5,00,000/- flats could be allotted to
the plaintiff that too at hilly area, where costs of land and construction is
too high.
4. That in reply to the contents of para no.4 of the plaint it is
submitted that one legal notice concerning the alleged payment was
received by the answering defendant and interim reply was sent to the
plaintiff's counsel and the present plaint neither discloses about the said
reply nor acknowledges the said reply intentionally, wherein certain
information was sought and is not supplied by the plaintiff so far to reply
to this para. It is denied that the amount of Rs.30,000/- given to P.K. Dass
was actually for the defendant no.1 or other defendant in any manner as
alleged.
5. That in reply to the contents of para no.5 of the plaint it is
submitted that reply to para 3 and 4 may kindly be read as reply to this
para besides submission in preliminary submissions cum objections. The
plaintiff is making bald assertions without disclosing as to when and who
made promises and prolonging the false promises on one ground or the
other. The plaintiff shall stand to strict proof of these assertions failing
which the plaint would deserved to be dismissed on this sole ground."
7. In view of the aforesaid position of non-traverse of
averments made in para 4 of the plaint by para 4 of the written
statement, trial court after framing of issues has decided issue no.1 in
favour of the respondent/plaintiff and granted a decree for a sum of
Rs.5 lacs in favour of the respondent/plaintiff and against the appellant
no.1/defendant no.1 by observing as under:-
"Issue No. 1.
2. After considering the pleadings, this court is of the opinion that this
issues can be answered without putting the parties for trial on the issues.
The entire claim of the plaintiff in this suit is based on para 4 of the plaint
as under:
" That as per the requirements of the defendants, the plaintiff invested the
amount in the project of defendants through RTGS/NEFT and the details
of the same is as under:
S. No. Name Date Mode of Amount in Name of
Payment Rs. Beneficiary
1. Akash & 26/03/14 RTGS from 5,00,000/- Himland
Associates Corporation Housing
Bank Pvt. Ltd.
2. Akash & 06/08/14 NEFT from 30,000/- P.K. Dass
Associates Corporation accountant/s
Bank uperwiser
head
(HHPL)
3. The suit is for recovery of a sum of Rs. 5.3 lakhs. The reply to para 4 on
merits in the W.S. is as under:
"That besides the other facts the territorial jurisdiction of the Hon'ble
court is under challenge as the place of occupation/ business of the
answering defendant against whom the present suit is alleged do not
fall within the jurisdiction of this Hon'ble Court."
4. A sum of Rs.30,000/- is denied, which is alleged to have been paid
through RTGS to Mr. P.K. Dass and not for defendant no.1-company.
5. After going through the pleadings, the aspect of investment of Rs. 5
lakhs by the plaintiff in the projects of the defendants is not denied. What
the defendant answered is that, they received a legal notice and that
interim reply was sent to plaintiff's counsel. What the interim reply sent by
the defendant is not mentioned in the W.S. and explained; nor a copy of
the said interim reply is filed by the defendant no.1 alongwith the W.S.
There is no specific denial of the investment of Rs. 5 lakhs made by the
plaintiff on 26.03.2014 through RTGS from corporation bank.
6. Order 8 rules 3 & 4 of CPC reads as under:
"3. Denial to be specific: - It shall not be sufficient for a defendant in
his written statement to deny generally the grounds alleged by the
plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does not admit the truth, except damages.
4. Evasive denial.- Where a defendant denies an allegation of fact in
the plaint, he must not do so evasively, but answer the point of
substance. Thus, if it is alleged that he received a certain sum of
money, it shall not be sufficient to deny that he received that particular
amount, but he must deny that he received that sum or any part
thereof, or else set out how much he received. And if an allegation is
made with diverse circumstances, it shall not be sufficient to deny it
along with those circumstances."
7. Order 8 rule 1 A of CPC also makes it mandatory for the defendant to
produce the document alongwith the W.S. In this case, the defendant has
taken a stand that some interim reply is filed in answer to the legal notice
issued. Such an interim reply is not filed.
8. Considering the silence on the part of the defendant in the written
statement, towards the allegation of the investment made by the plaintiff
on 26.03.2014 a sum of Rs. 5 lakhs through RTGS, which is not denied,
the only inference that can be drawn is that the defendant admits the
investment of Rs. 5 lakhs as averred in the plaint.
9. There are two parts of the claim, the first part is for recovery of a sum
of Rs. 5 lakhs and the second part is for recovery of a sum of Rs. 30,000/-.
10. Ld. Counsel Shri Manish Kumar appearing for the defendant submits
that a sum of Rs. 30,000/- is denied which is allegedly paid to the account
of Shri P. K. Dass as clearly admitted by the plaintiff. Therefore this sum
did not reach the sum of defendant no.1-company.
11. As regards the other part of the claim of a sum of Rs. 5 lakhs, the ld.
Counsel for the defendant submits that the same is neither admitted nor
denied.
12. Order 8 rule 5 of CPC is very clear as regards the denials to be made in
the W.S. as under:
"5. Specific denial.- (1) Every allegation of fact in the plaint, if not
denied specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken to be admitted
except as against a person under disability:
Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for
the court to pronounce judgment on the basis of the facts contained in
the plaint, except as against a person under a disability, but the Court
may, in its discretion, require any such fact to be proved. (3) In
exercising its discretion under the proviso to sub- rule (1) or under
sub-rule (2), the Court shall have due regard to the fact whether the
defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall
be drawn up in accordance with such judgment and such decree shall
bear the date on which the judgment was pronounced."
13. In view of the above, this court is bound to pass a decree on the
admitted part as a consequential inference to the pleadings. As regards the
second component of the claim concerning Rs. 30,000/-, the same is
credited into the account of beneficiary namely Shri P.K. Dass. The said
P.K. Dass is not a party to the present suit. Further more, this court is of
the opinion that at the first hearing itself after considering the pleadings, it
is made clear that the parties are not in variance or issue with regard to this
question of fact and considering order 15 rule 1 of CPC, this court may at
once pronounce its judgment.
14. In view of the above, the plaintiff is only entitled to the first part of the
claim that is Rs. 5 lakhs and the second part of the claim of Rs. 30,000/-
thus cannot be decreed against the defendant."
8. I do not find any illegality whatsoever in the aforesaid
discussion, reasoning and conclusion of the trial court inasmuch as I
have already reproduced above paras 3 to 5 of the plaint and replies
thereto in paras 3 to 5 of the written statement, and it is seen that there
is no denial that appellant no.1/defendant no.1 did receive an amount
of Rs.5 lacs from the respondent/plaintiff towards projects of the
appellant no.1/defendant no.1 but the flats under the projects have not
been delivered to the respondent/plaintiff and therefore
respondent/plaintiff was entitled to the decree of the amount of Rs.5
lacs. I may note that though the suit amount claimed Rs.5.30 lacs,
however, the trial court decreed the suit only for a sum of Rs.5 lacs as
a sum of Rs.30,00/- was not found to have been paid to the appellant
no.1/defendant no.1 but was paid to one Sh. P.K. Dass.
9. There is no merit in the appeal. Dismissed.
MARCH 20, 2018 VALMIKI J. MEHTA, J
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