Order 12

Order Details: COPY OF ORDER
Pdf Text: CS No. 174/22
Brahm Prakash (Senior Citizen) Vs. Nitin Gupta & Anr.
06.05.2025
Present: None for the parties.
ORDER: -
1. Vide this order, I shall dispose of two applications
under Order 7 Rule 11 CPC moved by the defendants.
2. It is stated in the applications that there is no privity
of contract between the plaintiff and the defendants. The
defendants were residing at Pankha Road, Dabri, Uttam
Nagar, New Delhi, while suit has been filed before this
Court whereas the jurisdiction was with the Dwarka
Courts. It is further averred that from a bare reading of the
plaint and the documents i.e. MOU dated 08.12.2020, it
shows that the same was executed on 08.12.2020, whereas
the stamp paper was purchased on 12.12.2020. As such,
the MOU is false and fabricated. It is further averred that
the MOU, collaboration affidavit and compromise deed
were executed at the residence of defendants, as such this
court has no territorial jurisdiction to entertain the present
suit. It is further averred that the defendants are not liable
to pay the suit amount or any amount, therefore the suit in
the present form is not maintainable and the plaint is liable
to be rejected as barred. It is further averred that suit is
filed solely on the basis of MoU and the said MoU shows
that there are 04 parties i.e. the plaintiff, defendants,
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 1 of 6
-- 1 of 6 --
namely, Nitin Gupta and Pankaj Gupta and Sh. Sanjeev
Kumar (owner of the property) but this MoU is signed by
only the plaintiff and Nitin Gupta, the defendant Pankaj
Gupta and Sanjeev Kumar’s signatures are not on this
MoU and as such MoU is incomplete document. It is
further averred that MoU is unregistered document and
therefore the suit is not maintainable. It is prayed that the
suit is liable to be dismissed.
3. The plaintiff has filed reply to the applications and
has prayed for dismissal of the same.
4. Perusal of the record shows that the plaintiff has
filed the present suit for recovery of Rs. 8,32,701/- against
the defendants. The plaintiff claims that he was
approached by the defendants who are builders by
profession along with the other persons to purchase a flat
in village Naraina. It was represented to the plaintiff that
the property bearing No. WZ-553, part of Khasra No.
1041, situated in Village Naraina was owned by Sh. Ram
Kumar and upon his demise the said property has devolved
upon his legal heirs who are entering into an
understanding/collaboration with the defendants for raising
construction over the said property. The plaintiff met the
defendants on 25.01.2018 where the defendants
represented that they were going to construct the said
property. The Collaboration Agreement was executed
between the defendants and legal heirs of Sh. Ram Kumar
as per which the defendants will raise the construction and
the legal heirs of late Sh. Ram Kumar shall execute the
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 2 of 6
-- 2 of 6 --
title documents in respect of entire second floor and half
part of third floor without roof rights and the remaining
floors shall remain with the legal heirs of Sh. Ram Kumar.
Thereafter, an Agreement dated 20.02.2018 was executed
between the plaintiff and the defendants whereby the
defendants claimed to be complete owner and in absolute
possession of property bearing No 553 and agreed to sell
of the second floor and the third floor of the said property
to the plaintiff for a sale consideration of Rs. 45 lakhs and
the possession was to be handed over upto August
September 2018. The plaintiff paid Rs. 43,50,000/- to the
defendants and legal heirs of late Sh. Ram Kumar by way
of cheques and in cash as per the details mentioned in para
no. 4 of the plaint. However, the defendants failed to
execute the title documents in favour of the plaintiff on
one pretext or the other. Suspecting the foul play, the
plaintiff lodged a complaint with the police. The plaintiff
also filed a writ petition before the Hon’ble High Court of
Delhi and, thereafter, a memo of understanding dated
04.12.2020 was executed between the plaintiff, Sanjeev
Kumar (owner of the legal heirs of Ram Kumar) and the
plaintiff. It was agreed that out of total cost borne by the
plaintiff, Sanjeev Kumar will pay Rs 35 lakhs directly to
the plaintiff which he also transferred after execution of the
said agreement. It is further stated that the balance of Rs. 6
lakhs will be paid by the defendants to the plaintiff. A
memo of Understanding dated 08.12.2020 was signed by
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 3 of 6
-- 3 of 6 --
the defendant no. 1 and the plaintiff for balance payment of
Rs 6 lakhs but the defendant no. 2 refused to sign the said
MoU after agreeing to all the terms and conditions of the
settlement. The defendants have failed to pay the balance
payment and hence the plaintiff has filed the present suit.
5. Along with the suit, the plaintiff has filed copy of
collaboration agreement dated 15.02.2018 executed
between the defendants and owner of the property, copy of
construction agreement dated 20.02.2018 between the
plaintiff and the defendants, copy of payment receipts,
copy of complaint dated 11.03.2020 in PS Naraina, copy of
order dated 16.07.2020 in the writ petition, copy of Memo
of Understanding dated 04.12.2020, copy of affidavit dated
04.12.2020 of owner Sanjeev Kumar, copy of Memo of
Understanding dated 08.12.2020 between the plaintiff and
the defendants, copy of complaint dated 11.06.2021 and
legal notice.
6. It is a settled law that in order to find out as to
whether the plaint discloses a cause of action, only the
averments made in the plaint and the documents filed along
with the plaint are to be looked into.
7. First contention of the defendants is that there is no
privity of contract between the parties. A bare perusal of
the averments made in the plaint, it will show that the
plaintiff has, prima facie, made out a case regarding the
privity of contract.
8. As regards the other contentions that this court has
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 4 of 6
-- 4 of 6 --
no territorial jurisdiction because the defendants’ address
is of Dwarka. The plaintiff in the suit has categorically
stated that property in respect of which claim of the
plaintiff for recovery has arisen is situated within the
territorial jurisdiction of this court and all the transactions
and agreements were executed between the parties within
the territorial jurisdiction of this court. The plaintiff has
also claimed that since all the transactions and agreements
were executed between the parties in Naraina, therefore
this Court has territorial jurisdiction to try and entertain
the present suit. In view of the same, the issue of territorial
jurisdiction of this court is disputed question of facts as to
whether the transactions and agreements had taken place in
Naraina i.e. within the territorial jurisdiction of this court
or not and the same is a matter of trial.
9. As regards the contentions of the defendants that
MoU is forged and fabricated or that the stamp paper was
purchased on 12.12.2020 and date of execution of MoU is
08.12.2020 or that MoU dated 08.12.2020 is incomplete
document because it is not signed by defendant Pankaj
Gupta and Sanjeev Kumar. All these contentions are again
matter of trial. The plaintiff himself has stated in the plaint
that after entering into the agreement, the defendant no. 2
Pankaj Gupta refused to sign the same. Though the same is
duly signed by defendant no. 1 Nitin Gupta and Sanjeev
Kumar, the owner of the property. However, the
contentions of the defendants as to whether the said MoU
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 5 of 6
-- 5 of 6 --
is forged and fabricated because of difference of dates of
execution and purchasing of stamp paper or on account of
not being notarized and registered, the same are matter of
trial and on these contentions, the plaint cannot be rejected.
10. In view of the aforesaid discussions, in my
considered opinion, there is no merit in the applications
moved by the defendants to reject the plaint under order 7
Rule 11 CPC and the same are hereby dismissed.
11. Case is now fixed for framing of issues for
14.07.2025.
(Balwant Rai Bansal)
District Judge-05, NDD,
PHC/ND/06.05.2025
CS No. 174/22
Brahm Prakash Vs. Nitin Gupta & Anr.
	Page 6 of 6
-- 6 of 6 --