Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 COMM. SUIT NO. 760/2021
MHCC010023372019
Received on : 28-02-2019
Registered on : 02-05-2019
Decided on : 06-09-2023
Duration : Y-4, M-6, D-6.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 760 of 2021
Exh. 19
Mr. Yatin Chandrakant Gujar ]
Age : 37 years, Occ : Service, ]
R/a : Building No. 192, 4th Floor, ]
Room No. 5336, Geetanjali Apt., ]
Ghatkopar (E), Mumbai- 400 077. ] ...Plaintiff
Versus
1. M/s. Srushti Raj Enterprises (India) Ltd.’ ]
A Public Company Ltd. Having Regd. Office at ]
D-615, National Paradise, Plot No. 290/1, ]
Panvel, Raigad, Maharashtra- 410 206 & ]
Branch address at Kalpana Srushti, Flat No.5, ]
Plot No. 99, Tilak Nagar, Chembur, Mumbai- 400 089. ]
2. Mr. Venkatesh Ere Gowda. ]
Adult, Age : Not known ]
3. Mr. Satish Venkatesh Gowda. ]
Adult, Age : Not known ]
4. Mr. Chinniah Venkatesh Gowda. ]
Adult, Age : Not known ]
All are Directors of M/s. Srushti Raj Enterprises ]
-- 1 of 11 --
2 COMM. SUIT NO. 760/2021
(India) Ltd. having Office at D- 615, ]
National Paradise, Plot No. 290/1, ]
Panvel, Raigad, Maharashtra- 410 206 ]...Defendants.
Appearance:-
Ld. Advocate Mr. Vinod Naik for Plaintiff.
Ld. Advocate Mr. Sunil Tiwari for defendant no. 1 and 4. .
None for defendant no. 2 and 3.
CORAM : SHRI. A.S. SALGAR
JUDGE, (C.R. NO.24)
DATE : 6th SEPTEMBER, 2023.
JUDGMENT
( Delivered on 06/09/ 2023)
1. Plaintiff has filed present suit for recovery of amount of
Rs.18,51,707/- from defendants with interest at the rate of 21% per
annum from 2009 till repayment.
Brief facts of the plaintiff case is as under :-
2. Plaintiff was in need of Residential Flat on ownership basis
in August 2009 and he was looking the flat in Chembur area. The
defendants have been implementation one residential redevelopment
project at Tilak Nagar, Chembur. The Defendant No.1 has been assigned
with the redevelopment right of one old society building by virtue of
Development Agreement dated 09.05.2007. The plaintiff decided to
book the flat in redevelopment project. The defendant No.1 agreed to
allot to the plaintiff the flat bearing No. 1102 in Wing-B of the Building
No.93 to be known as ‘ Srushti Raj Tower’ situated at 13th Road, Tilak
Nagar, Chembur, Mumbai- 400 089 for the total consideration of Rs.
26,92,350/-. At the time of booking of the said flat, the plaintiff had
paid to the defendant No.1 an amount of Rs.1,00,000/- by way of
cheque dated 12.08.2009 drawn on ICICI Bank towards the booking
-- 2 of 11 --
3 COMM. SUIT NO. 760/2021
amount. Defendant No.1 issued the receipt in the favour of plaintiff for
the said amount. Thereafter, again on 15.08.2009, the plaintiff has paid
further amount of Rs.4,38,470/- by way of cheque dated 17.08.2009
drawn on ICICI Bank, Ghatkopar (E) towards the next installment
amount to the defendant No.1 as demanded by the defendant No.1. The
defendant No.1 has also issued one receipt to the plaintiff. The
defendant No.1 has issued the Reservation letter to the plaintiff on
19.08.2009 for allotment of the flat. It was assured by the defendant to
the plaintiff that the construction of the new building will be completed
within 40 months i.e. before 31.12.2012 and defendant will hand over
the possession of the flat in the new building of the said redevelopment
project to the plaintiff. From 2009 to 2015, the plaintiff had been
constantly following up with the defendant and making visit to their
officer for inquiring regarding status of the project. The defendant No.1
has been given false and wrong information to the plaintiff. The plaintiff
visited to the said project site in order to take the refund of the booking
amount in 2014. The plaintiff requested the defendant to execute an
agreement for sale for the said flat. The defendant demanded further
part payment and as per the demand raised by the defendant, the
plaintiff paid further amount of Rs.1,00,000/- by way of cheque dated
03.03.2015 and amount of Rs. 34,000/- by way of cheque. The
defendant No.1 thereby issued two receipts to the plaintiff for the said
amount. Despite repeated requests by the plaintiff to execute the
agreement for sale, the defendant failed and neglected to execute the
agreement. The plaintiff came across the news published in
Maharashtra Times dated 22.09.2018 reporting the rejection of the
appeal filed by the defendant in Hon’ble Supreme Court and upholding
the Arbitral Award dated 07.10.2017 passed by the Arbitrator.
Thereafter, the plaintiff approached the defendant and requested to
-- 3 of 11 --
4 COMM. SUIT NO. 760/2021
refund the earnest amount. The plaintiff has been following up through
telephone calls and personal visits to the office of the defendants to
claim the refund of the amount paid to the plaintiff for the booking of
the said flat. The defendants were neglecting the payment to the
plaintiff with one false pretext or other. Hence, the plaintiff sent a Legal
notice dated 03.12.2018 through his advocate calling upon the
defendants to repay to the plaintiff the advance amount of Rs.
6,72,470/- together with further interest of Rs.11,57,185/- from August
2009 to November 2018. The said notice was duly received by
defendants and the defendants have failed to reply to the said notice.
There is now due, owing and payable by the defendants to the plaintiff
a sum of Rs. 6,72,470/- towards principal amount and total amount is
due from the defendants is Rs. 18,51,707/- from defendants. Hence,
plaintiff was constrained to file the present suit for the recovery of
amount of Rs. 18,51,707/- from defendants with interest at the rate of
21 % p. a.
3. The defendant Nos.1 and 4 appeared in this case after
service of Writ of Summons but they failed to file Written Statement on
record . Hence as per order dated 8/04/2022 the suit was proceeded
without W.S of defendant Nos. 1 and 4.
4. The Writ of Summons was duly served to defendant Nos. 2
and 3 by RPAD. Both the defendant Nos. 2 and 3 remained absent.
Hence, suit proceeded ex-parte against defendant Nos.2 and 3 as per
order dated 06.08.2022.
-- 4 of 11 --
5 COMM. SUIT NO. 760/2021
5. In support of the pleading, the plaintiff namely Yatin
Chandrakant Gujar is examined at Exh.8. The documentary evidence
filed by the plaintiff is @ Exh.9. The plaintiff filed on record the original
receipts at Exh.10 and Exh.11. Original Allotment Letter at Exh.12 and
receipts at Exh.13 and 14 and Legal Notice at Exh.15. Evidence closure
pursis filed by plaintiff is at Exh.16.
6. After considering the evidence of plaintiff and evidence on
record, following points arise for my determination and I have recorded
my finding against each of them with reasons to follow:-
Sr. No. Points Finding
1) Whether plaintiff proves that an
amount of Rs.18,51,707/ is due
from defendants ?
Plaintiff proved that
an amount of
Rs.12,37,345/- is
outstanding from
the defendants.
2) Whether plaintiff is entitled to
recover an amount of
Rs.18,51,707/- from the
defendants ? If yes at what rate of
interest ?
Plaintiff is entitled
to recover an
amount of
Rs.12,37,345/- from
the defendants with
interest @ 9% p.a.
3) What order and decree ? As per final order
REASONS
7. Heard arguments of Ld. Advocate Mr. Vinod Naik for
plaintiff at length. The defendant Nos. 1 and 4 have failed to argue the
matter before the court.
8. As per plaintiff’s case at the time of booking of flat, plaintiff
-- 5 of 11 --
6 COMM. SUIT NO. 760/2021
paid amount of Rs.1,00,000/- to the defendant on 12.08.2009 and
thereafter he also paid the amount from time to time. As per plaintiff’s
case, on 2.04.2015 the defendant No.1 has issued the receipts of
Rs.1,00,000/- and Rs.34,000/-. Thus, it appears that there was
continuous cause of action for the plaintiff. The suit for recovery of
money paid towards flat booking amount can be filed within 12 years as
per Article 62 of Limitation Act. Article 62 of Limitation Act grants 12
years time for enforcing payment of money secured by mortgage or
otherwise charge upon immovable property. Admittedly the last
payment was made by the plaintiff to the defendants in the year 2015.
If said period is calculated it appears that the present suit filed by the
plaintiff is well within limitation from date of last repayment.
As to Point Nos.1 & 2:-
9. Both the points are interrelated to each other. Hence, for
avoiding repetition of evidence I discussed both these points
simultaneously. According to plaintiff, the defendants have agreed to
allot the flat to the plaintiff bearing No. 1102 in Srushti Raj Tower in
Wing-B at Tilak Nagar against total consideration amount of Rs.
26,92,350/-. At the time of booking of the said flat, the plaintiff has
paid to the defendant No.1 an amount of Rs.4,38,470/- by way of
cheque. According to plaintiff, the defendant No.1 has issued the receipt
to the plaintiff. The defendant No.1 also issued the Reservation letter to
the plaintiff against the allotment of the said flat. The plaintiff
requested to the defendants to execute the agreement for sale, but the
defendants have failed and neglected to execute the agreement.
According to plaintiff, the total amount of Rs.18,51,707/ is due from
defendants. Out of the said amount an amount of Rs. 6,72,470/- is
principal amount and amount of interest is Rs. 11,57185/-. At the
-- 6 of 11 --
7 COMM. SUIT NO. 760/2021
outset it is to be noted that in this case, the defendant Nos. 1 and 4
appeared in this proceeding but they failed to file W.S on record. Hence,
suit was proceeded without WS of defendant Nos. 1 and 4. The
defendant Nos. 2 and 3 failed to appear before the court. Hence, suit
was proceeded exparte against them. Thus, it appears that the
defendants have not contested the claim of the plaintiff by filing their
WS on record. Therefore, inference can be drawn that the averment in
plaint is deemed to be admitted by the defendants.
10. In support of the pleading, the plaintiff Yatin Gujar is
examined at Exh.8. He has reiterated the averment made in the plaint.
The oral evidence of the plaintiff is in consonance with the averment
made in the plaint. The oral evidence of the plaintiff is not subjected to
cross-examination by the defendants. The defendant failed to take the
cross-examination of the plaintiff. Therefore, the oral evidence of the
plaintiff was not challenged and hence, the said evidence cannot be
disbelieved.
11. The oral evidence of the plaintiff is supported by the
documentary evidence at Exh.10 to Exh.15. The copy of receipt at
Exh.10 shows that the defendant No.1 has issued the receipt in favour
of the plaintiff in respect of receiving the amount of Rs.1,00,000/-
against the flat No. 1102. The receipt at Exh.11 also shows that the
defendant No.1 issued receipt towards receiving an amount of Rs.
4,38,470/- from the plaintiff by way of cheque. Exh.12 is the
Reservation letter which shows that the defendant No.1 has issued the
letter in favour of the plaintiff wherein it is mentioned that the
defendants have reserved the flat No. 1102 at Tilak Nagar. Exh.13 is the
-- 7 of 11 --
8 COMM. SUIT NO. 760/2021
another receipt which shows that the defendants has issued the receipt
in favour of the plaintiff stating that he has received an amount of
Rs.1,00,000/- on 03.03.2015 from plaintiff. Another receipt at Exh.14
shows that on 02.04.2015 the defendants have received an amount of
Rs.34,000/- by way of cheque from the plaintiff. The aforesaid
documentary evidence and the receipts bears the signature of
defendant. From the documents i.e. Exh.10 to Exh.14, the plaintiff has
proved that plaintiff has paid amount of Rs. 4,38,470/- and Rs.
1,34,000/- to the defendents. Thus, the documents on record show that
the defendants have accepted the amount of Rs.6,72,470/- from
plaintiff by way of principal amount.
12. As the defendants have failed to refund of amount to the
plaintiff, the plaintiff was constrained to issue legal notice to the
defendants. The plaintiff placed on record the copy of legal notice at
Exh.15 which shows that the said notice was issued by the plaintiff to
the defendants and it was duly served to defendants. The defendants
failed to reply to the notice and also failed to comply the direction.
Therefore, adverse inference can be drawn against defendants that
amount was due from defendants to the plaintiff and hence they not
replied the notice. .
13. In present case the oral and documentary evidence
tendered by the plaintiff was not challenged by the defendants. The
defendants failed to conduct the cross-examination of the plaintiff.
Therefore, oral and documentary evidence of the plaintiff remained
unchallenged. Therefore, I have no reason to disbelieve the version of
the plaintiff.
-- 8 of 11 --
9 COMM. SUIT NO. 760/2021
14. In present case the plaintiff by leading oral and
documentary evidence, sufficiently established that the plaintiff has
booked the flat in the redevelopment project of the defendants.
Defendants have agreed to allot the flat to the plaintiff. The plaintiff has
sufficiently proved that he has paid the total amount of Rs.6,72,470/-
to the defendant No.1 towards booking amount of the flat. It is material
to note that the defendants have failed to make the repayment of the
outstanding amount. Therefore, in my view the plaintiff has sufficiently
established that the principal amount of Rs.6,72,470/- is due from
defendants.
15. The plaintiff has claimed the total amount of Rs.
18,51,707/- from defendants. Out of it, an amount of Rs.6,72,470/- is
principal amount and the amount of interest is Rs.11,57,185/-. I have
already observed that the plaintiff has sufficiently proved by leading the
documentary evidence that the principal amount of Rs. 6,72,470/- is
outstanding from the defendants. Hence, plaintiff is entitled to claim
the said amount. Hence, plaintiff is entitled to claim principal amount
of Rs. 6,72,470/- from defendants. The plaintiff claimed the amount of
interest from August 2009 to November 2018 of Rs. 11,57,185/-.
Admittedly, there was no agreement between the parties to pay amount
of interest. Plaintiff claimed interest at the rate of 21%. Admittedly,
defendants received amount of Rs.6,72,470/- from plaintiff towards
booking of flat in the year 2009 itself. From 2009 till filing of suit
defendants used said amount. In my view, considering nature of
transaction between parties, it is proper to award interest at the rate of
9% from August 2009 to November 2018. After calculation amount of
-- 9 of 11 --
10 COMM. SUIT NO. 760/2021
interest comes to Rs.5,64,875/-. In short, plaintiff is entitled to recover
total amount of Rs.12,37,345/- from defendants with interest at the
rate of 9% p.a. from date of filing of suit. Hence, I answer point Nos.1
and 2 accordingly.
16. In the light of foregoing discussion, it is concluded that
plaintiff sufficiently proved that he booked flat in redevelopment project
of defendants and plaintiff paid total amount of Rs.6,72,470/- to
defendants towards booking of flat. Plaintiff proved that total amount of
Rs.12,37,345/- is due from defendants. Hence, plaintiff is entitled to
recover amount of Rs.12,37,345/- from defendants. Therefore, suit of
plaintiff needs to be partly decreed. Hence, I pass following order :-
ORDER
1. Commercial Suit No. 760 of 2021 is partly decreed with costs.
2. The defendants are directed to pay to the plaintiff jointly and
severally an amount of Rs.12,37,345/- (Rs. Twelve Lakh Thirty
Seven Thousand Three Hundred and Fourty Five Only) along
with future interest at the rate of 9% per annum from the date of
filing of the suit till realization.
3. The defendants shall bear the cost of the suit.
4. Court fee, if any, be refunded to the plaintiff namely Yatin
Chandrakant Gujar as per rule.
5. Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
(A.S. SALGAR)
Judge
Dt.: 06/09/2023. City Civil Court,
-- 10 of 11 --
11 COMM. SUIT NO. 760/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
11.09.2023 3.40 p.m. POONAM YOGESH PAWAR
Name of the Judge (With Court
Room No.)
HHJ SHRI. A.S. SALGAR (CR 24)
Date of Pronouncement of
JUDGMENT /ORDER
06.09.2023
JUDGMENT /ORDER signed by
P.O. on
11.09.2023
JUDGMENT /ORDER uploaded on 11.09.2023
-- 11 of 11 --