Sunny Jain S/O Sh. Pawan Kumar Jain vs M/S B.M.R.C. Construction Pvt. ...
2019 Latest Caselaw 3380 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of decision:24.07.2019
+      CS(OS) 461/2017
       SUNNY JAIN S/O SH. PAWAN KUMAR JAIN ..... Plaintiff
                       Through Mr.Amarjit Singh, Adv.

                          Versus

       M/S B.M.R.C. CONSTRUCTION PVT. LTD. & ORS..... Defendants
                      Through  Mr.Satya Priya Kamrah & Mr.Mukesh
                               M. Goel, Advs. for R-1 & 2.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J (ORAL)
1.

This is a suit filed for specific performance of contract to direct the defendants to execute and register a sale deed in the favour of the plaintiff with respect to the agreement to sell dated 22.02.2016 for the property being entire 3rd Floor, 10425 (15-A/4), Plot no. 4, Block no. 15A, WEA Karol Bagh, New Delhi-110005 along with roof rights (herein referred to as "the suit property") or in the alternative pay a sum of Rs. 2,90,00,000/- (Rupees Two Crore Ninety Lacs Only) with interest and other connected reliefs are also sought.

2. A perusal of the plaint shows that defendant no. 1 is a company which owned the suit property while in the suit the defendants no. 2 & 3 namely, Sh.Piyoosh Goyal and Sh. Rajnish Gupta were the directors of the said company. Plaintiff offered to purchase the said suit property on the assurance of defendant no. 2 who was a director of the company as per the plaint.

3. The plaintiff purchased the said proposed suit property from defendant Nos. 1 & 2 for a total sale consideration of Rs.2,90,00,000/- (Rupees Two Crore Ninety Lacs Only). Plaintiff transferred a sum of Rs.50,00,000/- (Rupees Fifty Lacs Only) to the bank account of defendant no. 1 and the residual amount being Rs.2,40,00,000/- (Rupees Two Crore Forty Lacs Only) was paid in cash to defendant no. 1 through defendant no. 2.

4. It is pleaded in the plaint that the plaintiff was put in vacant, physical possession of the suit property on 27.02.2016 and he was enjoying the peaceful possession of the property using it as a godown.

5. Thereafter, it is was decided between the plaintiff and defendant no. 2 acting for defendant no. 1 that the sale deed shall be executed for consideration of Rs.80,00,000/- (Rupees Eighty Lacs Only) for which the plaintiff bought stamp paper of Rs.4,80,000/- (Rupees Four Lac Eighty Thousand Only). But repeated efforts made by the plaintiff to get the sale deed executed in his favour went in vain due to the deliberate inaction of defendant no. 2.

6. That even after various efforts the plaintiff could not locate defendant no. 2 but came across defendant no. 3 who stated that defendant no. 2 had ceased to be a director even before he had sold the property to the plaintiff.

7. It is further pleaded in the plaint that the plaintiff had already paid the entire agreed sale consideration and also bought the stamp duty. The sale deed was signed and executed in the office of the Sub Registrar, but when the documents were submitted to the Registrar, defendant no. 2 ran away thus the registration process could not be completed.

8. Legal notice was served on defendant no. 2 on 15.07.2016.

9. In the meanwhile, it is stated that on 06.09.2017 the defendants broke open the lock of the suit property and took over the possession from the plaintiff.

10. Hence, this present suit is filed.

11. Notices were served to the defendants in the present suit by this court on 22.09.2017. Counsel for defendant no. 1 & 3 entered appearance on 06.11.2017 while defendant no. 2 stood served with summons on 13.10.2017 but no one appeared on his behalf. Thereafter, no one has appeared for defendant no. 2 and no written statement was filed.

12. This court on 08.12.2017 with the consent of the learned counsel for the plaintiff and defendants No. 1 and 3 passed a decree in favour of the plaintiff and against defendant No. 1 for a sum of Rs. 50 lakhs. The order further noted that the balance claim of the plaintiff will be recovered from defendant No.2 by leading appropriate evidence.

13. This court on 08.12.2017 ordered the defendant no. 2 be proceeded ex- parte. Evidence was led by the plaintiff.

14. Thereafter, on 08.01.2018 this court dismissed an application filed by defendant no. 2 to set aside the ex-parte proceedings initiated against him. He was not allowed to file his written statement but he was entitled to cross examine the witnesses of the plaintiff and also participate in final arguments. Later on, 06.09.2018, a Divisional Bench of this Court upheld the said order.

15. I have heard the learned counsel for the plaintiff and have also examined the contents of the plaint, the documents placed on record and the evidence led.

16. The plaintiff has filed his evidence and that of Sh. Sahil Garg by way of affidavit.

17. Plaintiff PW-1 in his affidavit by way of evidence has on oath stated that he relies on the documents marked as Ex PW-1/1 to Ex PW-1/7 and has repeated the contentions, as noted above. In his affidavit he has affirmed that defendant no. 2 approached him in February, 2017 and expressed his desire to sell the suit property representing that he has been duly authorized to sell the suit property, receive the sale consideration and give possession. He further stated that he agreed to buy the suit property for Rs.2,90,00,000/- (Rupees Two Crore Ninety Lacs Only). He stated that he transferred a sum of Rs.50,00,000/- (Rupees Fifty Lacs Only) vide RTGS to defendant no. 1 account (Rs.40,00,000/- on 22.02.2016 and Rs.10,00,000/- on 24.02.2016) and Rs.1,60,00,000/- (Rupees One Crore Sixty Lacs Only) was paid in cash as indicated in the receipt cum acknowledgement slip exhibited as Ex. PW- 1/2. He further stated that he paid a sum of Rs.50,00,000/- (Rupees Fifty Lacs Only) in cash on 27.02.2016 to defendant no. 2 when he got vacant, physical possession of the suit property which is proved by the issue of the possession letter exhibited as Ex. PW-1/3. The remaining amount of Rs.30,00,000/- (Rupees Thirty Lacs Only) was paid by him to defendant no. 2 in cash on 29.02.2016 at the Sub Registrar's office when the sale deed was to be executed and registered. Sh. Sahil Garg & Sh. Vikas Sharma were witnesses to the sale deed. Defendant no. 2 handed over a copy of Board Resolution exhibited as Ex. PW-1/4 duly certified by defendant no. 3. It is further stated that defendant no. 2 fled away from the Sub Registrar's office. The sale deed which bears defendant no. 2 signature and thumb impression is exhibited as Ex. PW-1/5. It is also stated that he met defendant no. 3 on various occasions but was told that defendant no. 2 had misappropriated the funds and the amount could only be recovered from defendant no. 2. He

further stated that legal notice was issued to the defendants to execute and register the sale deed or refund the amount of Rs.2,90,00,000/- (Rupees Two Crore Ninety Lacs Only) which is marked and exhibited as Ex. PW-1/6. He stated that he got a FIR registered against the defendant no. 2 marked and exhibited as Ex. PW-1/7. He further stated that despite various attempts the sale deed was not executed and registered by the defendants and also the possession was taken away from him forcefully by the defendants.

18. The affidavit by way of evidence of PW-1 was tendered in court on 19.07.2019. An opportunity was given to the defendant to cross-examine PW-1. However, no cross-examination has been done of PW-1 by the defendant and his testimony has gone un-rebutted.

19. The plaintiff has also filed the affidavit by way of evidence of Sh.Sahil Garg. However, from the order sheets it appears that this witness did not tender his evidence and no opportunity was also given to the defendants to cross-examine the said witness. The evidence of this witness cannot be noted.

20. On 19.07.2019, the plaintiff also summoned SI Yad Ram, IO of the case being FIR 180/2017, EOW Mandir Marg. The said witness produced the original documents, namely, Receipt-cum-Acknowledgment Ex.PW-1/1, Possession letter Ex. PW-1/3, Board Resolution Ex.PW-1/4, Sale Deed Ex. PW-1/5 and FIR Ex. PW1/7.

21. From the above un-rebutted testimony of the plaintiff, it is manifest that the plaintiff has transferred a sum of Rs. 50 lakhs to the account of defendant No. 1 via RTGS on 22.02.2016 and 24.02.2016. Further a sum of Rs.1.60 crores was paid in cash as is clear from the Receipt-cum- Acknowledgment which is Ex.PW-1/1. He has further paid a sum of Rs 50

Lakhs on 27.02.2016 and Rs. 30 Lakhs on 29.02.2016 in cash to defendant no. 2. This stands proved as the plaintiff's testimony has gone un-rebutted. A receipt has also been placed on record which is duly signed by defendant No. 2 as director of defendant No. 1 where he acknowledges receipt of Rs. 2.40 crores.

22. The above facts show that defendant No. 2 has received a sum of Rs.2.90 crores from the plaintiff. Sum of Rs. 50 lakhs was deposited directly into the account of defendant No.1 Company. Balance Rs.2.40 crores was received in cash by defendant No. 2. It appears that the said amount has not been transferred to the account of defendant No.1.

23. As a decree of specific performance has not been passed against defendant No.1, defendant No. 2 is liable to refund to the plaintiff the said sum of Rs. 2.40 crores.

24. The plaintiff has also sought interest @ 18% p.a. and hence, seeks a decree of Rs.2.90 crores.

25. Accordingly, a decree is passed in favour of the plaintiff and jointly and severally against defendant's no. 1 and 2 for a sum of Rs.50 lakhs. A decree is also passed in favour of the plaintiff and against defendant No. 2 for a sum of Rs.2.40 crores along with simple interest @7% p.a. from the date of filing of the suit till the date of the decree. The plaintiff shall also be entitled to simple interest @ 10 % p.a. from the date of the decree till recovery. The plaintiff shall also be entitled to cost.

26. Accordingly, the suit and all pending applications, if any, stand disposed of.

JAYANT NATH, J.

JULY 24, 2019/n