Kapil Tanwar vs Usha Dutt
2020 Latest Caselaw 987 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 13th February, 2020

+                 CS(OS) 367/2017 & CC 51/2017, I.A. 7175/2018

       KAPIL TANWAR                                            ..... Plaintiff
                Represented by:         Mr.Dinesh Garg, Adv. with
                                        Ms.Rachna Agrawal, Adv.

                             versus

       USHA DUTT                                              ..... Defendant
               Represented by:          Mr.Amit Sibal, Sr. Adv. with
                                        Mr.Rajat Bali, Adv.


CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

I.A. 7175/2018 (under Order XII Rule 6 CPC filed by plaintiff)

1. By this application, the plaintiff seeks a judgment and preliminary decree on the admission of the defendant.

2. Case of the plaintiff in the present suit seeking recovery of ₹ 2,18,45,000/-, out of which, ₹ 1,70,00,000/- was towards the principal amount and ₹ 48,45,000/- towards interest upto the date of filing of the suit plus interest pendente lite and future, is that the defendant was the owner of agricultural/farm land measuring 12 Bighas 2 Biswas situated in Village- Asola, which she had purchased somewhere in the year 1988. The plaintiff claimed that the defendant wanted to sell the said property and thus, the terms were negotiated between the parties and plaintiff paid a sum of ₹

1,70,00,000/- by way of four cheques details whereof have been given in the plaint. The defendant decided not to sell the said property. After discussions between the parties and due to non-completion of sale and purchase transaction, both the parties agreed to cancel the said transaction and refund the amount. On 22nd July, 2016, the defendant agreed to refund a sum of ₹ 1,70,00,000/- within a period of three months without any interest and in case, the amount is not refunded within a period of three months, defendant would carry the liability to pay the interest @ 18% per annum from the date of receipt of payment till the date of refund in full. Having agreed to refund the amount, the defendant on 22 nd July, 2016, issued a post dated cheque dated 22nd October, 2016 drawn on Bank of Baroda for a sum of ₹ 1,70,00,000/- favouring the plaintiff towards refund of the amount. The defendant had assured that on presentation, the cheque would be encashed. Unfortunately, on 27th July, 2016, a survey/search of Income Tax Department was conducted at the residence of the plaintiff and during the said search operation, documents were seized including cheque given by the defendant for a sum of ₹ 1,70,00,000/- in original. Since the cheque was not released by the Income Tax Department till 22nd October, 2016, the plaintiff requested the defendant to issue another cheque, however, defendant stated that it would like to wait for the validity period of the cheque to be on the safer side and after expiry of three months, a fresh cheque would be issued. A cheque for a sum of ₹ 1,70,00,000/- was never encashed and thus, on 22nd January, 2017, plaintiff became entitled to a new cheque from the defendant for a sum due with interest. However, despite repeated promises/assurances etc., defendant did not make the payment and thus, the plaintiff issued a legal notice dated 25th May, 2017 calling upon the defendant to pay a sum of

₹ 1,70,00,000/- towards refund of the amount and a sum of ₹ 44,62,500/- towards interest. The plaintiff received a communication dated 28 th June, 2017 from the Advocate of the defendant, asking for two weeks' more time as the defendant was travelling. Thereafter, no reply was received. Hence, the plaintiff filed the present suit seeking recovery for a sum of ₹ 2,18,45,000/-, being the principal amount as also the interest up to the date of filing of the suit plus interest pendente lite and future.

3. It may be noted that along with the plaint, till date, no agreement to sell arrived at between the parties has been filed.

4. In the written statement, defendant took the plea that the plaintiff failed to discharge his obligations of the payment of the balance sale considerations under the agreement between the parties for sale of the defendant's farm land and thus, the sum of ₹ 1,70,00,000/- paid as earnest money stood forfeited and is not liable to be refunded. The cheque issued by the defendant was under coercion by the plaintiff. In the written statement, defendant has taken the plea that the plaintiff did not disclose the particulars and outcome of the raid by officials of Income Tax Department on the premises of the plaintiff as well as his father and when the cheque bearing No. 000777 dated 22nd October, 2016 for a sum of ₹ 1,70,00,000/- issued in favour of the plaintiff by the defendant was seized by the officials of Income Tax Department, the defendant was made to sign some papers to show that the said cheque was issued for discharge of loan liability and thus, these material facts have been concealed by the plaintiff in the plaint.

5. Case of the defendant is that though the defendant received the earnest money of ₹1,70,00,000/- out of the total sale consideration of ₹10,00,00,000/-, however, the plaintiff having failed to perform his part of

the obligations, the defendant was constrained to sell the land as threatened by the plaintiff for a throw away price of ₹ 6,60,00,000/- and defendant suffered huge financial losses of ₹ 3,40,00,000/- and even setting off the sum of ₹ 1,70,00,000/- received as earnest money, the defendant is entitled to recover balance sum from the plaintiff as damages and thus, the defendant filed the counter claim seeking a decree of ₹ 2,15,90,000/- in favour of the counter claimant along with the interest pendente lite and future. The defendant has stated in the written statement and the counter claim, the compelling circumstances created by the plaintiff whereby the defendant, who is an old woman, had to agree to sell the farm land to Mr.R.K.Sharma, an associate of the plaintiff at the price of ₹ 6,60,00,000/-. It is the case of the defendant that the plaintiff coerced the defendant and an advance payment was made for a sum of ₹ 50 lakhs and it was agreed that the balance payment would be made on 22nd October, 2016 and the defendant was also coerced to issue a cheque for a sum of ₹ 1,70,00,000/- dated 22nd October, 2016 exactly coinciding with the date of final payment for the farm land by Sh.R.K.Sharma, who was an associate of the plaintiff. Further, even Sh.R.K.Sharma could not make the balance payment as agreed within three months.

6. The legal position with regard to the judgment on admission is settled and a judgment/decree can be passed if the admission of the other party is unequivocal and clear. In the present case, neither the plaintiff nor the defendant have placed on record the so called agreement to sell in terms of which, sum of ₹ 1,70,00,000/- was paid which could clarify whether the plaintiff was not paying the balance sale consideration, whether the defendant was liable to forfeit the sum of ₹ 1,70,00,000/-. Case of the

defendant in the counter claim is that the plaintiff and his father, who were in real estate business and deal in farm lands in Delhi, adopted the modus operandi to block the property by paying advance to purchase the property and then try to sell the property at a profit to another buyer. In the event, the price of property falls in the market, then the seller is threatened of dire consequences of creating legal dispute over the property and thus, by this clout, seller is compelled to return the advance money or sell the property to the associates of the plaintiff at an absolutely low prices.

7. In view of the case set up in the written statement and counter claim and the decision of this Court in Meenu Upadhyay Vs. Kanwar Pal Singh, CS(OS) 929/2013, decided on 25th February, 2015, wherein, it was held that the averments in the pleadings of the defendant can be explained and the said explanation falls short of an admission, then, no judgment/decree on admission, can be passed and a party would have to be relegated to trial. Considering the fact that the original agreement to sell has not been filed by either of the parties and it is not clear as to whether the defendant was liable to return the earnest money as pleaded, no decree can be passed in favour of the plaintiff.

8. Application is dismissed.

CS(OS) 367/2017 & CC 51/2017

1. On perusal of the record and with the consent of the learned counsel for the parties, the following issues are settled:-

Issues in CS (OS) 367/2017

i) Whether the plaintiff is entitled to a money decree in favour of the plaintiff and against the defendant for

recovery of a sum of ₹ 2,18,45,000/- as prayed for in the suit? OPP

ii) Whether the plaintiff is entitled to interest, pendente lite and future? If yes, for what period and at what rate? OPP

iii) Costs.

       iv)        Relief.
       Issues in C.C. 51/2017
       i)         Whether the defendant/counter-claimant has suffered a

loss of ₹ 3,40,00,000/- and thus entitled to a decree for a sum of ₹ 2,15,90,000/-, after adjustment of ₹ 1.70 Crores? OPD-CC

ii) Whether the defendant/counter-claimant is entitled to any interest, pendente lite and future? If yes, for what period and at what rate? OPD-CC

iii) Costs.

iv) Relief.

2. In view of the stand taken by the defendant/counter-claimant, defendant would lead the evidence in the first instance so that the plaintiff can rebut the said evidence. If need be, the defendant would have right to lead rebuttal evidence. Consequently, list of witnesses and evidence by way of affidavit of the defendant's witnesses be filed within six weeks. Consequently, list of witnesses and evidence by way of affidavits of the plaintiff's witnesses be filed within six weeks thereafter.

3. Learned counsel for the plaintiff submits that the evidence be recorded before a Local Commissioner and plaintiff would bear the cost of Local Commissioner, subject to final outcome in the suit. Accordingly,

Ms.Ravinder Kaur, Retd. District & Sessions Judge (Mobile No. 9910384660) is appointed as Local Commissioner to record the evidence. The fee of the learned Local Commissioner is fixed at ₹ 1 lakh plus out of pocket expenses to be borne by the plaintiff, subject to final outcome in the suit.

4. List before the learned Local Commissioner for fixing the dates of trial on 13th April, 2020.

5. List before Court for monitoring the recording of evidence on 13th July, 2020.

(MUKTA GUPTA) JUDGE FEBRUARY 13, 2020/akb