Final Order 6

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 286-24
Date of Institution: 06.06.2024
Date of Arguments: 05.05.2025
Date of Judgment: 05.05.2025
1. Smt. Renu Thaldi
W/o Sh. Ajay Chander Thaldi
2. Sh. Ajay Chander Thaldi
S/o Sh. Tota Ram Thaldi
Both R/o 2 B, Block-79,
Gole Dakkhana, Bhagat Singh Market,
Kali Bari Marg, New Delhi-110001.
.....Plaintiffs
Vs.
1. Amrish Kumar
S/o Sh. Mahaveer Singh Tyagi,
Aadhar No.2091 3179 4547,
PAN Card No.AHPPA8802N
2. Jyoti Tyagi,
W/o Sh. Amrish Kumar,
Aadhar No.7909 5961 6733,
PAN Card No.AIKPT3627J
Both R/o Tappal, Aligarh,
Presently residing at D-2, First Floor,
Padav Nagar, Near Agrawal Sweets,
Laxmi Nagar, Delhi-92.
3. Ramesh Gupta,
Prop. Annapurna Properties,
304 G Abhay Khand-3 near Mother Dairy,
Indirapuram, Ghaziabad, U.P 201014.
…..Defendants
Present: Ms. Sabi Gupta, Ld. Counsel for plaintiff along with
plaintiff no. 2 in person.
CS 286-2024
Renu Thaldi Vs. Amrish Kumar
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JUDGMENT (ORAL)
1. The defendants have already been proceeded
ex parte vide
order dated 28.03.2025.
2. The plaintiff no. 2 as PW-1 has tendered his affidavit in
ex
parte evidence.
3. Heard the
ex parte submissions of ld. counsel for the
plaintiffs.
4. The plaintiffs have filed the present suit seeking recovery
of sum of Rs.5 Lacs along with interest.
5. The case of the plaintiffs as pleaded in the plaint, in a
nutshell, is as follows. In February 2023, the plaintiffs
were looking to purchase a flat at Indirapuram through
property dealers and were introduced to the defendant nos.
1 and 2 who were interested in selling their flat. The
defendants nos. 1 and 2 represented that they were owners
of the Flat No.80-C, MIG, 3rd Floor, Abhay Khand-3,
Indirapuram, Ghaziabad, UP-201014, admeasuring 91.15
square meter. It was represented to the plaintiffs that there
was a loan against the said property, and that in order to
clear the loan a final payment of Rs. 5 Lacs was to be
made to the bank, and that thereafter, the bank would give
NOC and return the original property documents. The
plaintiffs were shown the photocopies of the title
documents. There was an agreement between the parties
for sale of the property for total sale consideration of Rs.
47 Lacs out of which Rs.5 Lacs was to be paid initially as
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Renu Thaldi Vs. Amrish Kumar
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the earnest money. An agreement to sell dated 13.03.2023
was also prepared in writing which was signed by the
defendants, although, it was not signed by the plaintiffs
since at the relevant time, the arm of the plaintiff no. 2 was
fractured. In terms of the agreement, the plaintiffs paid to
the defendants nos. 1 and 2, a sum of Rs. 1 Lacs through
cheque dated 27.02.2023 and a sum of Rs. 4 Lacs through
RTGS on 07.03.2022. Both these payments were also
reflected in the agreement to sell. The plaintiffs also got
sanctioned loan from HDFC Bank for sum of Rs.40 Lacs
on 22.03.2023. However, the defendant no. 1 and 2 did not
come forward to complete the sale transaction and did not
even show the original documents of the property to the
plaintiffs. The plaintiffs contacted the defendant no. 1 and
2 as well as the concerned property dealer i.e. the
defendant no.3 for return of the earnest money along with
penalty amount, however, they did not respond.
Ultimately, the plaintiffs issued legal notice dated
25.10.2023 to the defendants, however, the amount was
not paid. Hence, the present suit has been filed.
6. As per the record, the defendants nos. 1 and 2 could not be
served through the ordinary mode or Speed-post since they
were not found at the given address. As per the record, the
defendant no.3 had refused the service. Upon the
application of the plaintiff, the defendants were also
directed to be served through substituted service by way of
publication in the newspaper. The publication was duly
made and
vide order dated 28.03.2025, the defendants
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were deemed to be served by substituted service, and since
none appeared on behalf of the defendants, the defendants
were proceeded
ex parte.
7. In support of their case, the plaintiffs have examined the
plaintiff no. 2 as the PW-1 and he has tendered his affidavit
in evidence Ex. PW-1/A, in which he has deposed along
the lines of the plaint. He has relied upon the following
documents:
i. Photocopy of sale agreement dated 13.03.2023
is Mark A.
ii. Photocopy of bank passbook/statement of
UCO Bank is Mark B.
iii. Copy of legal notice is Ex. PW-1/3.
iv. Original speed-post receipt dated 16.11.2023 is
Ex. PW-1/4.
v. Copy of Aadhar card is Ex. PW-1/5 (OSR).
8. Ld. counsel for the plaintiffs has submitted that the
defendants have been proceeded
ex parte in the suit and
the averments of the plaintiffs in the plaint are
unchallenged and unrebutted. Ld. counsel has submitted
that the plaintiffs had made payment of amount of Rs. 5
Lacs under the agreement to sell to the defendant nos. 1
and 2. It is submitted that although under the agreement to
sell, the defendants were liable to pay double the amount
of earnest money to the plaintiff i.e. Rs. 10 Lacs in case of
failure to complete the transaction, however, the plaintiffs
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in the present suit are only limiting their claim to the
earnest money amount paid i.e. Rs. 5 Lacs only along with
interest. It is further submitted that the defendant no. 3 was
arrayed only as a proper party and that the plaintiffs are not
seeking recovery against him. It is submitted that the
plaintiffs’
ex parte evidence is also unchallenged, and that
the decree may be passed.
9. I have considered the
ex parte submissions of the Ld.
Counsel for the plaintiffs and I have perused the record.
10. The case of the plaintiffs is unrebutted and unchallenged
since the defendants have been proceeded
ex parte.
Through the
ex parte evidence led, the plaintiffs have been
able to show that they had paid a sum of Rs.5,00,000/- to
the defendants no.1 and 2 as earnest money. The plaintiffs
have also been able to show that the defendants no.1 and 2
did not come forward to complete the sale transaction. I
have no special reason to disbelieve the testimony of the
plaintiff no.2. As such, the plaintiffs would be entitled to
refund of the amount paid of Rs.5,00,000/-. It would also
be appropriate to grant interest @ 9% p.a. to the plaintiff
from the date when the amount was paid i.e. 07.03.2023
till the date of actual realisation.
11. Accordingly, decree is passed in favour of the plaintiff and
against the defendants no.1 and 2 jointly and severally, for
sum of Rs.5,00,000/- along with interest @ 9% per annum
from 07.03.2023 till actual realisation. Costs are also
decreed in favour of the plaintiff. Pleader’s fees is
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computed as Rs.20,000/-.
12. Let the decree sheet be drawn up accordingly.
13. File be consigned to record room after the due compliance.
(SATYABRATA PANDA)
District Judge-04
Judge Code- DL01057
PHC/New Delhi/05.05.2025
CS 286-2024
Renu Thaldi Vs. Amrish Kumar
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