Madras High Court
Sheila Rajakumari vs M/S.Yes Square Foundations on 21 November, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.NO.729 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.NO.729 OF 2019
Sheila Rajakumari .. Plaintiff
VS.
M/s.Yes Square Foundations
Rep. By its Partner Mr.AMD. Shivakumar
No.11, First Floor, Anna Nagar Plaza,
C-47, II Avenue, Anna Nagar,
Chennai – 600 04. .. Defendant
PRAYER: Civil Suit filed under Order IV Rule 1 and 2 of High Court
Original Side Rules 1956 read with Order VII Rule 1 of Civil Procedure Code
for the following reliefs :
(a) Recovery of a sum of Rs.51,20,000/- with future interest @
18% from the date of the plaint till the date of realization from the defendant.
(b) Recovery of a sum of Rs.21,44,000/- with future interest @
18% from the date of the plaint till the date of realization from the defendant.
(c) Recovery of a sum of Rs.5,44,000/- with future interest @
18% from the date of the plaint till the date of realization from the defendant.
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C.S.NO.729 OF 2019
(d) Recovery of a sum of Rs.5,00,000/- with future interest @
18% from the date of the plaint till the date of realization from the defendant.
(e) Recovery of a sum of Rs.18,00,000/- with future interest @
18% from the date of the plaint till the date of realization from the defendant.
(f) Grant an order of mandatory injunction, directing the
defendant to return all the original title deeds of the Item 1 of schedule of the
property hereunder, morefully described in the schedule II as hereunder
which were handed over to the defendant by the plaintiff in pursuance to the
Joint Venture Agreement dated 09.07.2015 to the plaintiff herein on a date to
be fixed by this Court.
(g) Grant an order of permanent injunction, restraining the
defendant, their men, agents and servants, from, in any manner, from
alienating or dealing or encumbering with the property, morefully mentioned
in the schedule 1 of the property.
(h) For costs of the Suit.
For Plaintiff : Ms.Vasudha Thiagarajan
For Defendant : Set exparte
JUDGMENT
The Suit is filed for recovery of money and for mandatory
injunction directing the defendant to return all the original title deeds and for
permanent injunction restraining the defendant from alienating or dealing or
encumbering with the property, morefully mentioned in the schedule 1 of the
property.
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C.S.NO.729 OF 2019
2.The case of the plaintiff is that she is the original owner of the
property in Item I of the schedule of property. The plaintiff and the defendant
entered into a Joint Development Agreement dated 09.07.2015 wherein it was
mutually agreed that the property shall be developed into various Flats and a
Flat measuring 1,125 sq.ft in the ground floor and a covered car parking,
together with an undivided share of land measuring 583 sq.ft out of the 2175
sq.ft. shall be handed over to the plaintiff. In addition to that, the defendant
has agreed to pay a sum of Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs
Only) being the money compensation for the property morefully mentioned in
Item I of the schedule of property and the builder shall be entitled to retain
2,200 sq.ft in the first floor and 1,063 sq.ft in the second floor of the super
built-up area in accordance with the sanctioned plan, together with the
undivided shares of the land, measuring 1,592 sq.ft out of 2,175 sq.ft.
Pursuant to the Joint Development Agreement dated 09.07.2015, the plaintiff
also executed a General Power of Attorney in favour of the defendant on
11.08.2015 and registered the same as Document No.2215 of 2015. After
completion of the building, the defendant has made payment of only
Rs.1,00,00,000/- (Rupees One Crore Only) and for the remaining amount of
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C.S.NO.729 OF 2019
Rs.50,00,000/-, the defendant has handed over 5 cheques bearing
Nos.438283, 438284, 438285, 438286 and 438287 respectively, each for a
sum of Rs.10,00,000/-. Besides, the defendant, in the Mutual Agreement and
Declaration dated 03.10.2016 and 03.12.2016, has agreed to pay interest @
12% per annum for the remaining amount of Rs.50,00,000/-. However, the
remaining amount has not been paid and the cheques have not been encashed
as per the request of the defendant and till 2019, he was paying interest and
thereafter, he has stopped paying interest. Hence, the plaintiff has come up
with the present Suit.
3.It is the further case of the plaintiff that it is agreed between the
parties that in respect of the terrace and stilt area, the plaintiff has
relinquished her right, for which the defendant has agreed to pay a sum of
Rs.16,00,000/- towards such relinquishment. Accordingly, the plaintiff has
relinquished her right. But however, the said amount, as agreed between the
parties, has also not been paid.
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C.S.NO.729 OF 2019
4.It is also the case of the plaintiff that the defendant has not
handed over the furnished Flat, which forced the plaintiff to incur additional
expenses of Rs.4,00,000/- and Rs.18,00,000/- towards the store area in the
basement.
5.Admitting the Joint Development Agreement and payment of
Rs.1,00,00,000/-, the defendant has not disputed that the remaining amount
of Rs.50,00,000/- has not been paid by him to the plaintiff. As far as the sum
of Rs.16,00,000/- is concerned, it is the contention of the defendant in the
written statement that a sum of Rs.5,00,000/- has been paid by him and the
same has been set off against the amount meant for relinquishment of
plaintiff's right. In para 11 of the written statement, the defendant has also
admitted that he is agreeing to pay interest on regular basis and seeks two
years time to pay the principal amount as the same has been invested in
various projects of the defendant's firm.
6.Based on the pleadings, the following issues are framed by this
Court on 27.01.2021:
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C.S.NO.729 OF 2019
“a. Whether the defendant completed their work
with all specifications as mentioned by the Joint Venture
Agreement dated 09.07.2015 and was completed well
within a stipulated time?
b. Whether the plaintiff is entitled to receive the suit
amount from the defendant?
c. Whether the Original Title Deeds of the Item No.1
of the schedule property is in the hands of the defendant?
d. Whether the plaintiff is entitled to relief of
mandatory injunction as prayed for?
e. Whether the plaintiff is entitled to relief of
permanent injunction as prayed for?
d. To what relief ? ”
7.On the side of the plaintiff, the plaintiff was examined as
P.W.1 and Exs-P.1 to P10 were marked. P.W.1 was cross examined by the
defendant. However, the defendant, has not adduced any evidence and set
exparte. The plaintiff in her evidence has spoken about the Joint Development
Agreement. Ex-P.1 is the certified copy of the registered Will executed by her
father M.P.Victor in favour of the plaintiff on 17.05.1979; Ex-P.2 is the
original Joint Development Agreement 09.07.2015; Ex-P.3 is the original
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C.S.NO.729 OF 2019
General Power of Attorney executed by the plaintiff in favour of the defendant
dated 11.08.2015; Ex-P.4 is the original Mutual Agreement and Declaration
dated 03.10.2016; Ex-P.5 is the original letter of undertaking given by the
defendant dated 03.12.2016; Ex-P.6 is filed to show the nature of the
expenses incurred by the plaintiff and Ex-P.9 is the series of cheques issued
by the defendant towards remaining amount of Rs.50,00,000/-; Ex-P.10
is the legal notice. During the cross examination of P.W.1 by the defendant,
non-payment of Rs.50,00,000/- by the defendant has been clearly admitted
and the very question put to P.W.1 by the defendant with regard to the
relinquishment of her rights in the terrace area, a suggestion was put to the
P.W.1 to the effect that the defendant gave a cheque for Rs.16,00,000/- as
security and the interest aspect also she has clearly spoken about that he has
paid the interest. He has put a suggestion that he has paid interest as claimed
by the plaintiff. Ex-P.8 is also filed by the plaintiff to show the original
specifications undertaken by the defendant. P.W.1 in her evidence also clearly
spoken about the incomplete building by the defendant. The defendant also in
the written statement has pleaded that he will complete the remaining works.
8.Considering the very nature of the suggestion put to the
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C.S.NO.729 OF 2019
witness and the documents executed and the cheques issued, this Court is of
the view that the plaintiff has established her claim. It is relevant to note that
though this Court vide order dated 08.12.2020 passed interim decree in
respect of the principal amount since the same has been admitted by the
defendant, now, the lis is pending only with regard to the other claim made
by the plaintiff. As far as the sum of Rs.16,00,000/- with regard to
relinquishment of terrace area is concerned, the very suggestion put to the
plaintiff by the defendant and non-denial of the evidence of P.W.1 makes it
clear that the plaintiff is certainly entitled to the claim. That apart, with regard
to the expenses incurred by the plaintiff, she has spoken about the expenses
incurred around Rs.4,00,000/- which is also not denied and since the
defendant himself has admitted in the written statement that he has not
completed the store area in the basement, the plaintiff has clearly established
about the completion of such work by spending Rs.18,00,000/-.
9.Considering all these aspects, this Court is of the view that the
plaintiff is entitled to a further decree for a sum of Rs.38,00,000/- with
interest at the rate of 9% per annum from the date of filing of the Suit till the
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C.S.NO.729 OF 2019
date of realization and this decree is passed in addition to the interim decree
already passed by this Court on 08.12.2020. Apart from that, for the
remaining principal amount of Rs.50,00,000/- in respect of which an interim
decree has been passed, the plaintiff is entitled to 12% interest from the date
of issuance of the cheques till the date of filing of the Suit and thereafter 9%
interest with costs.
10.The Suit is decreed on the above terms.
21.11.2023
Index : Yes/No
Neutral Citation: Yes/No
Speaking / Non-speaking order
TK
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C.S.NO.729 OF 2019
LIST OF WITNESSES EXAMINED ON THE SIDE OF THE PLAINTIFF
P.W.1 – Mrs.Sheila Rajakumari
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE PLAINTIFF
Sl.No. Exhibits Description of documents Date
1 P-1 Certified copy of the registered Will 17.05.1979
2 P-2 Original Joint Venture Agreement 09.07.2015
3 P-3 Original General Power of Attorney 11.08.2015
4 P-4 Original Mutual Agreement and Declaration 03.10.2016
5 P-5 Original Letter of Undertaking 03.12.2016
6 P-6 Original Diary maintained by the plaintiff -
7 P-7 Office copy of the police complaint – CCB, Chennai -
8 P-8 Original specifications undertaken by the defendant -
9 P-9 Original series of cheques (6 Nos) -
10 P-10 Office copy of the legal notice 30.07.2019
LIST OF WITNESSES EXAMINED ON THE SIDE OF THE DEFENDANT – NIL
21.11.2023
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C.S.NO.729 OF 2019
N.SATHISH KUMAR, J.
TK
C.S.NO.729 OF 2019
21.11.2023
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