Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment SU849/2020
MHCC010099082019
Presented on : 26-09-2019
Registered on : 20-02-2020
Decided on : 01-11-2022
Duration : 2 Ys. 8 Ms. 11 Ds.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO.849 OF 2020
(C.N.R. No.MHCC01-009908-2019)
Bhavanji Velji Lodaya }
Age: 66 years Occupation : Business, }
Indian Inhabitant and having his }
Address at 1101, Chandan CHSL, }
Chafekar Bandhu Marg, Mumbai 400 081 } … Plaintiff.
VERSUS
1. Mangalam Builders and Developers }
Private Ltd.
A company registered under the Indian }
Companies Act, having registered address }
at 6th floor, Apex Mall, Tonk Road, Satya }
Vihar, Greater Kailash Colony, Vidhayak }
Nagar, Lalkothi, Jaipur, Rajasthan – 302015 }
2. Omprakash Khatri, }
An adult, Indian Inhabitant, Occ. : Broker, }
Having address at 6th floor, Apex Mall, Tonk }
Road, Satya Vihar, Greater Kailash Colony, }
Vidhayak Nagar, Lalkothi, Jaipur, }
Rajasthan – 302015 }... Defendant.
Appearance:
Mr. Devyani Kataria, learned Advocate for the plaintiff
Exparte against the defendant.
-- 1 of 11 --
2 Judgment SU849/2020
CORAM : RAJESH A. SASNE,
Adhoc Judge
Date : 1st November, 2022
J U D G M E N T
( Delivered on 01.11.2022 )
This is a suit for recovery of amount from the defendant.
In brief, the plaintiff’s case is as under :
2. Defendant No.1 is builder and developer whereas
defendant No.2 is the broker. Somewhere in year 2016, defendant No.2
claiming to be the sale representative of defendant No.1, approached to
the plaintiff with brochure, plan and copy of agreement of on going
projects ‘Mangalam Aroma’ situated at village Ramsinghpura, Tehsil –
Sangner, Jaipur, Rajasthan and informed that the project offering
discount to senior citizen. He also informed that registration process for
flat shall commence after 34 months and for sake of booking the
plaintiff was required to deposit Rs.21,33,000/. The plaintiff sold his
existing flat and transferred booking amount Rs.21,33,000/ in the
account of ‘Mangalam Aroma’ by NEFT dated 01.06.2016.
3. It is further case of the plaintiff that inspite of repeated
reminders, the defendant No.2 sought time to complete the formalities
of registration. All of sudden, the defendant No.2 became untraceable.
The plaintiff approached the representatives of defendant No.1 and
requested for refund of booking amount. One Mr. Niteshji assured to
refund the amount, but the plaintiff never received any response. By
email dated 17.08.2017, letter dated 04.09.2017, 13.08.2017 and the
plaintiff advocate’s letter dated 15.02.2019, the plaintiff requested for
refund of amount, but the defendant No.1 failed and neglected to
-- 2 of 11 --
3 Judgment SU849/2020
respond the request. The plaintiff also filed complaint with Jyoti Nagar
Police Station, Jaipur against defendant No.1. Upon registration of FIR,
the defendant No.1 agreed to settle the dispute and called the plaintiff
to Jaipur for settlement before police. The defendant immediately
agreed to return the amount with 18% interest and further agreed to
pay amount towards damages mental agony and compensation and
accordingly transferred Rs.21,33,000/ to the account of the plaintiff.
Thereafter the defendant No.1 through his advocate addressed reply
dated 14.06.2019 to letter dated 15.02.2019 and denied the contents of
notice dated 15.02.2019. The plaintiff by his advocate’s letter dated
10.07.2019 submitted reply to the defendant’s letter dated 14.06.2019.
The plaintiff therein acknowledged the principal amount and further
demanded amount towards compensation, damages and mental agony.
The plaintiff with his letters demanded the amount in question together
with interest and hence, question of paying further amount to
defendant No.1 for purchase of flat does not arise. The plaintiff was in
need of money for urgent medical treatment and livelihood. The
plaintiff calculated his claim as follows :
A) Amount of interest @ 18% p.a. on Rs. 21,33,000/= Rs.11,51,820/
B) Injury loss to repetition, mental torture and
physical agony = Rs.15,00,000/
C) Legal Assistance and General = Rs.50,000/
Total = Rs.27,01,820/
4. It is further case of the plaintiff that the plaintiff by issuing
demand notice, called upon the defendant to pay the aforesaid amount
but the defendants have refused to comply with the same. It is alleged
-- 3 of 11 --
4 Judgment SU849/2020
that the act of the defendant has injured the plaintiff’s reputation. With
these contentions, the plaintiff has prayed for decree against defendants
directing them to pay the aforesaid amount.
5. By an order dated 05.02.2021 passed by my predecessor, the suit
is proceeded exparte against the defendants.
6. Heard learned Advocate for the plaintiff. Read the
plaintiff’s written notes of arguments. No arguments of the defendants.
Points for determination alongwith my findings thereon with reasons
are as follows :
POINTS FINDINGS
(1) Whether the plaintiff proves that he advanced
Rs.21,33,000/ to the defendant No.1 for booking
of flat in the scheme of defendant No.1?
Yes
(2) Whether the plaintiff proves that inspite of
liability to refund the amount of Rs.21,33,000/,
the defendant No.1 delayed the payment of
refund of said amount and thereby they are liable
to pay interest on the said amount, if yes, at what
rate?
Yes @ 6% p.a.
(3) Whether the plaintiff proves that the act of
defendants caused damage to the plaintiff’s
reputation, injured his profession and therefore,
the defendant No.1 is liable to pay damages to
him?
No
(4) Whether the suit is within limitation? Yes
(5) What order and decree ? Suit is partly
decreed.
R E A S O N S
AS TO POINT Nos.1 to 4 :
7. All these points are interlinked with each other and to
-- 4 of 11 --
5 Judgment SU849/2020
avoid repetition of findings they are taken together for consideration.
The plaintiff on the point of jurisdiction of the court has relied on
certain judgments. The judgments relied upon by the plaintiff in case of
Shaktibhog Foods Industries Ltd. vs. Central Bank of India, (AIR
2020 SC 2721) is in respect of rejection of plaint under Order 7 Rule
11 on the ground of limitation and judgment in State of Punjab and
Ors. vs. Gurudev Singh (AIR 1991 SC 2219), is in respect of suit for
declaration of continuous of service. Both are not helpful to the plaintiff
as the facts and issue therein are different. The judgment in Baroda Oil
Cake Traders vs. Parshottam Narayandas Bagulia, (AIR 1954 Bom
491), is in respect of return of plaint and jurisdiction. It was held that if
the part of casue of action arises within the jurisdiction, the court will
have jurisdiction to try the suit. In case before me the part of cause of
action has arisen within the jurisdiction of this court. The judgment in
Munirangappa vs. Amidayala Venkatappa and Anr., (AIR 1965 Kant
316), is in respect of jurisdiction of the court. Therein the fact was
regarding contract of supplying of goods, it was held that if part of
cause of action arises within the local limits of the jurisdiction of a
Court, then such Court would have jurisdiction to entertain and try such
a suit. In case before me the plaintiff has paid the amount to defendant
No.1 from Mumbai. Therefore, part of cause of action arises at Mumbai.
Accordingly this court have jurisdiction to decide this suit.
8. The plaintiff has examined himself as Bhavanji (PW1) at Exh.04
and Exh.06. Bhavanji (PW1) deposes that the defendant No.2
approached to him with brochure, plan and copy of agreement. He
informed him about the construction site of defendant No.1 and about
the facility of discount to senior citizens. He further deposes that he
-- 5 of 11 --
6 Judgment SU849/2020
accordingly booked a flat by making payment of Rs.21,33,000/ to
defendant No.1. He further deposes that inspite of several reminders,
there was no progress from the side of defendant No.1 and therefore, by
email dated 17.08.2017, letter dated 04.09.2017, 13.08.2017 and his
advocate's letter dated 15.02.2019, he requested for refund of amount,
but the defendant No.1 failed and neglected to respond the request.
The plaintiff also filed complaint with Jyoti Nagar Police Station, Jaipur
against defendant No.1. Upon registration of FIR, the defendant No.1
agreed to settle the dispute and called the plaintiff to Jaipur for
settlement before police. The defendant immediately agreed to return
the amount with 18% interest and further agreed to pay amount
towards damages mental agony and compensation and accordingly
transferred Rs.21,33,000/ to the account of the plaintiff.
9. According to the plaintiff, the defendant No.1 inspite of accepting
the booking amount, has failed to execute the agreement and also
denied to refund the said amount, therefore, the defendant is liable to
pay interest on the said amount and damages for the said act. The
plaintiff admits that before police, the defendant No.1 by settlement
had paid the amount of Rs.21,33,000/ to the plaintiff. Now the
question remains about the interest on the said delayed payment and
the question about damages. It is the case of the plaintiff that the
amount of Rs.21,33,000/ was paid on 01.06.2016. Agreement was to
be executed within 34 months. As it was not done so, the plaintiff tried
to contact defendant No.2 and later on the defendant No.1. On
17.08.2017, the plaintiff addressed email to defendant No.1 and
requested to refund the said amount. From the record, it appears that
on 17.08.2017, the plaintiff in writing called upon the defendant No.1
-- 6 of 11 --
7 Judgment SU849/2020
to repay the booking amount of Rs.21,33,000/. It is case of the
plaintiff that on registration of FIR, the defendant No.1 refunded the
booking amount. The copy of police complaint is at Exh.12. It was
registered on 06.04.2019. The account statement of HDFC bank at
Exh.13 shows that on 10.06.2019, the plaintiff has received
Rs.21,33,000/ from defendant No.1. From the above facts, it can be
summarized that payment was made on 01.06.2016, first demand for
refund of said amount was made on 17.08.2017, amount was returned
to the plaintiff on 10.06.2019.
10. It is the case of the plaintiff that when he lodged FIR, the
defendant No.1 agreed to settle the dispute and to return the amount
alongwith interest, damages, compensation. It is not explained by the
plaintiff why the defendant No.1 at that time paid only the principal
amount of Rs.21,33,000/ to the plaintiff and why amount of interest, if
any, compensation, if any, though agreed as alleged, was not paid. The
defendants have not raised any defence and therefore, if the plaintiff’s
words are believed, it is required to be considered that the defendant
No.1 by making payment of principal amount only declined to pay
interest and compensation thereon. Nowhere it is pleaded that the
defendant No.1 agreed to pay same at later date. Therefore, for the
purpose of cause of action for the payment of compensation, it is
required to consider that by making payment of principal amount alone,
defendant No.1 declined to pay compensation. Cause of action for
claim of compensation either occurred on issuance of first demand
letter dated 17.08.2017 and nonaction thereon or on 10.06.2019 by
payment of principal amount and declining the payment of
compensation. Even by considering the date of cause of action as
-- 7 of 11 --
8 Judgment SU849/2020
10.06.2019, the claim of compensation in view of Article72 of the
Limitation Act, 1963 is within limitation.
11. The plaintiff for the claim of compensation has averred in plaint
paragraph No.19 that the defendant has damaged the reputation of the
plaintiff and the credibility built by the plaintiff. Considering the nature
of dispute, the fact does not satisfy the contention that due to the first
defendant’s act of nonpayment there is damage to the plaintiff’s
reputation and credibility. No injury is caused to the plaintiff’s
reputation. It is simple question of nonpayment of booking amount
accepted by the defendant No.1 from the plaintiff. The plaintiff has not
claimed any compensation for breach of contract. Though in the
affidavit of evidence, the plaintiff has quantified the claim with respect
to the expenses of travelling, accommodation and other expenses, there
is no pleading in the plaint to that extent. Hence, same can not be
considered. After considering all material facts, I am of the view that it
is a case of delayed refund of booking amount. In such case, awarding
interest on the principal amount will justify the claim.
12. As aforesaid the plaintiff has paid the booking amount of
Rs.21,33,000/ to defendant No.1 on 01.06.2016. By his letter dated
17.08.2017, the plaintiff first time asked defendant No.1 to return the
same. No interest was claimed. In his second letter dated 04.09.2017
(Exh.10) no interest was claimed. By the legal notice dated 15.02.2019
(Exh.11), the plaintiff claimed said amount alongwith interest @ 18%
p.a. Thereafter the plaintiff has received the principal amount of
Rs.21,33,000/ on 10.06.2019. These facts show that first time the
plaintiff claimed interest by legal notice dated 15.02.2019. The
-- 8 of 11 --
9 Judgment SU849/2020
defendant by letter dated 14.06.2019 (Exh.14) blamed the plaintiff that
the plaintiff himself has not completed the transaction and has failed to
pay the remaining amount of the contract. It is to be noted that the
defendant No.1 never replied to the letter dated 17.08.2017,
04.09.2017 and 13.08.2017 of the plaintiff. After accepting payment in
the year 2016, for the first time on 14.06.2019 the defendant No.1
asked the plaintiff to complete the transaction. Inspite of accepting the
booking amount, the defendant No.1 has failed to execute the
agreement to sale in respect of the flat. Therefore, first of all, it was the
liability of defendant No.1 to execute the agreement which he failed to
do so. Hence, I am of the view that the defendant No.1 was liable to
refund the booking amount to the plaintiff. The defendant No.1 has
returned said amount on 10.06.2019 which was demanded on
17.08.2017, therefore, in my view, since 17.08.2017 till date of
payment i.e. 10.06.2019, the defendant No.1 is liable to pay interest on
the said amount.
13. What shall be the rate of interest? Admittedly, it is not the
commercial transaction. The plaintiff had booked flat in the first
defendant’s construction scheme. No written contract was executed.
There is no express condition as to payment of interest. The Ld.
advocate for the plaintiff urged that in view of Section 3 of the Interest
Act, 1978, the plaintiff will be entitled to claim interest @ 18% p.a. as
per the notice issued by the plaintiff. It appears that she wants to rely
on the legal notice dated 15.02.2019 (Exh.11). It is required to be
noted that before that also the plaintiff has issued two letters dated
17.08.2017 (Exh.09) and 04.09.2017 (Exh.10) wherein no interest was
claimed. Therefore, I am not satisfied with the submissions of the
-- 9 of 11 --
10 Judgment SU849/2020
plaintiff’s advocate on the point of rate of interest. To justify the
circumstance on record, I am of the view that the plaintiff is entitled for
the claim of interest @ 6% p.a. from 17.08.2017 till date of payment i.e.
10.06.2019. Hence, the plaintiff is entitled to recover amount of
interest @ 6% p.a on RS.21,33,000/ from 17.08.2017 till 10.06.2019.
I answer Point Nos.1 to 4 accordingly.
As to Point No.5:
14. In view of the aforesaid findings, the suit is liable to be
decreed partly. I am of the view that, the defendant No.1 shall pay cost
of the suit to the plaintiff. In the result in answer to point No.5, I pass
following order:
ORDER
1. The suit is partly decreed with costs.
2. The defendant No.1 do pay to the plaintiff an amount of interest
only @ 6% p.a. on an amount of Rs.21,33,000/ for the period
from 17.08.2017 till 10.06.2019.
3. Decree be drawn up accordingly.
Date :01/11/2022 (R.A. Sasne)
Dictated on : 01/11/2022. Judge, C.R.No.62,
Checked on : 03/11/2022. City Civil Court,
Signed on : 03/11/2022. Mumbai.
-- 10 of 11 --
11 Judgment SU849/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
03.11.2022 at 17.45 p.m. Ms. M. D. Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. R.A. SASNE (C.R.No.62)
Date of pronouncement of Order 01.11.2022
Order signed by P.O. on 03.11.2022
Order uploaded on 03.11.2022
-- 11 of 11 --