Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 267/19. 1 Ex-parte Judgment.
MHCC010103702019
Presented on : 09-10-2019
Registered on : 18-12-2019
Decided on : 06-07-2021
Duration : 1 years, 8 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 267 OF 2019
Exh.20.
Universal Builders )
Through its proprietor )
Mr. Sultan Ahmed Qureshi )
Having address at )
505, Sane Guruni Marg )
Silver Arc Ground Floor, Gora Gandhi )
Compound, Tardeo, Mumbai 400 034 )...Plaintiff
Versus
Mr. Dineshkumar Bhavarlalji Doshi )
Age Adult, Occupation: Not Known )
Residing at Flat No.1005, Silver Arch C.H.S.)
Ltd., Tardeo Division, Bombay 400 034 )..Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 6th JULY, 2021.
Mr. Sanjay Shinde, Advocate for the plaintiff.
None for defendant. (Exparte).
JUDGMENT (EXPARTE)
1. This is the suit filed for recovery of money.
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Comm.Suit No. 267/19. 2 Ex-parte Judgment.
2. Case of the plaintiff, in brief, is as under :
The plaintiff agreed to sell Flat No. 1003 (presently
standing as 'Flat No. 1005 in the society record) in Silver Arch Co
operative Housing Society Limited (henceforth referred as 'the society')
situated on C.T.S.No. 337, Tardeo Division, Mumbai 400 034, having
fourboundaries as mentioned in para 2 of the plaint, for consideration
of Rs.60,00,000/ (Rupees Sixty Lakhs Only) as per registered
agreement dated 31/12/2010. This flat is referred as 'the suit flat'
henceforth. The defendant had paid Rs.50,00,000/ (Rupees Fifty
Lakhs Only) to the plaintiff and it was agreed that remaining
consideration of Rs.10,00,000/ (Rupees Ten Lakhs Only) shall be paid
at the time of giving possession of the said flat. The plaintiff handed
over possession of the flat to the defendant for carrying out furniture
work on his demand, but the defendant continued his possession of the
flat. The plaintiff frequently demanded remaining consideration
amount at the defendant, but he failed to pay. Then, the plaintiff issued
legal notice dated 19/09/2018 to the defendant for balance
consideration amount. As the defendant failed to pay remaining
consideration amount, the plaintiff filed this suit for recovery of money
by adding accrued interest of Rs.67,500/ (Rupees Sixtyseven
Thousand Five Hundred Only) at the rate of 9% p.a. from 01/10/2018
to 30/06/2019. The plaintiff prayed for recovery of total
Rs.10,67,500/ (Rupees Ten Lakhs Sixtyseven Thousand Five Hundred
Only) with interest at the rate of 9% p.a. from the date of filing of the
suit till the date of realization of the amount with cost.
3. The defendant was duly served with the writ of summons
as stated in affidavit of service (Exh.2) and it is supported with postal
receipt and acknowledgement. As the defendant failed to appear before
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Comm.Suit No. 267/19. 3 Ex-parte Judgment.
the Court, matter was fixed for exparte hearing as mentioned in
roznama dated 23/02/2021. Subsequently, the plaintiff filed his
evidence affidavit (Exh.4) on record. He proved certified copy of the
agreement dated 31/12/2010 (Exh.6), copy of letter for occupation
certificate addressed to Executive Engineer, BMC, 'E' Ward Office,
Byculla (Exh.7), electricity bill of the defendant regarding consumption
at the suit flat (Exh.8), postal receipt (Exh.9), copy of legal notice dated
19/09/2018 (Exh.10), reply given by the defendant dated 27/08/2019
(Exh.16), copy of order passed by District Deputy Registrar, Mumbai
dated 10/08/2020 (Exh.17) and copy of affidavit of the Society's office
bearer dated 30/08/2018 (Exh.18). The plaintiff closed evidence vide
pursis (Exh.19).
4. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that the
defendant agreed to purchase the suit
flat for consideration of Rs.60,00,000/
(Rupees Sixty Lakhs Only) as per
agreement dated 31/12/2010 ?
In the Affirmative.
2. Does the plaintiff prove that he received
consideration of Rs.50,00,000/
(Rupees Fifty Lakhs Only) ?
In the Affirmative.
3. Does the plaintiff prove that he put the
defendant in possession of the suit flat ?
In the Affirmative.
4. Does the plaintiff prove that he is
entitled to recover balance
consideration amount with accrued
In the Affirmative.
At the rate of 9%
p.a.
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Comm.Suit No. 267/19. 4 Ex-parte Judgment.
interest i.e. Rs.10,67,500/ (Rupees Ten
Lakhs Sixtyseven Thousand Five
Hundred Only) ? If yes, at what rate of
interest ?
5. Whether the plaintiff is entitled to the
relief as prayed ?
In the Affirmative.
6. What order as to cost ? As per final order.
7. What order and decree ? Suit is decreed.
REASONS
AS TO POINT NOS.1 TO 5 :
5. On perusal of evidence affidavit (Exh.4) and additional
evidence affidavit (Exh.13) filed by the plaintiff, it appears that the
plaintiff narrated details of his transaction with the defendant. He also
proved the agreement (Exh.6) in support of his verbal contention
regarding sale of the suit flat for consideration of Rs.60,00,000/
(Rupees Sixty Lakhs Only). It has come in his evidence that the
defendant is put in possession of the suit flat and he is entitled to
recover balance consideration of Rs.10,00,000/ (Rupees Ten Lakhs
Only) with accrued interest of Rs.67,500/ (Rupees Sixtyseven
Thousand Five Hundred Only). Learned counsel for the plaintiff Shri
Sanjay Shinde relied upon contents of the agreement (Exh.6) as well as
reply notice dated 27/08/2019 (Exh.16). According to him, the
defendant has not disputed his possession over the suit flat and he
cannot escape his liability to pay balance consideration amount to the
plaintiff.
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Comm.Suit No. 267/19. 5 Ex-parte Judgment.
6. Considering overall evidence on record, it is necessary to
go through contents of the agreement (Exh.6). The agreement (Exh.6)
reveals that Rs.50,00,000/ (Rupees Fifty Lakhs Only) were paid to the
plaintiff in three installments. It was further agreed that remaining
consideration amount of Rs.10,00,000/ (Rupees Ten Lakhs Only) was
to be paid at the time of giving possession of the suit flat. Before
handing over of the possession, it was necessary for the plaintiff to
obtain occupation certificate and completion certificate from the local
authority. The plaintiff has made endeavour to obtain occupation
certificate by filing lettercumapplication dated 10/05/2012 (Exh.7),
but he did not succeed in getting it. Ultimately, the society formed by
flat owners in the said building succeeded in getting deemed occupation
certificate from District SubRegistrar, Cooperative Societies, Mumbai,
as per order dated 10/08/2020 (Exh.17). Paresh Kantilal Panchmiya
executed selfdeclaratory affidavit as a Secretary of the society formed
by the flat owners in the said building (Exh.18). Electricity bill (Exh.8)
fortifies to the fact of the defendant's possession of the suit flat. On
perusal of these documents, it is explicit that the defendant is already in
possession of the suit flat.
7. In addition to it, Exh.17 and 18 demonstrates that
stipulation relating to occupation certificate came to be complied with
due to the action taken by the housing society. The plaintiff had
attempted to obtain occupation certificate by filing letter (Exh.7). In
short, bonafide of the plaintiff is clear from the record. The plaintiff
does not appear to have committed any lapse in fulfilling all stipulations
and conditions as mentioned in the agreement (Exh.6). As the
defendant is in possession of the suit flat and there is no rebuttal to this
fact in reply notice (Exh.16), the defendant is dutybound to pay
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Comm.Suit No. 267/19. 6 Ex-parte Judgment.
balance consideration amount with interest to the plaintiff. In reply
notice (Exh.16), the entire stress is given on necessity of handing over
of car parking space to the defendant and occupation certificate.
Contents in the agreement reveals that the plaintiff was required to allot
one parking area in the parking slot to the defendant. It means that
sale is restricted to the flat and parking slot is expected to be made
available in the parking slot for the use of the defendant. For this
purpose, the defendant cannot withhold balance consideration amount.
As the defendant has not appeared before the Court and not filed
written statement as well as evidence, this contention of the defendant
in reply notice (Exh.16) is not open for consideration to discard the case
of the plaintiff which is based on oral as well as documentary evidence.
8. In short, the plaintiff has succeeded in proving both facts
i.e. sale of the flat to the defendant for Rs.60,00,000/ (Rupees Sixty
Lakhs Only) and balance consideration amount to be recovered after
putting the defendant in possession of the suit flat. So far as the issue
of interest on balance consideration amount is concerned, it is agreed in
clause 10 of the agreement (Exh.6) that the promoter is liable to pay
simple interest at the rate of 9% p.a. while returning the consideration
amount to the flat owner in case of his failure to give possession of the
flat. Considering this agreed rate of interest, it can be adopted and
applied to the claim of the plaintiff regarding balance consideration
amount without any prejudice to the defendant. Accordingly, claim of
the plaintiff regarding balance consideration of Rs.10,00,000/ (Rupees
Ten Lakhs Only) and interest of Rs.67,500/ (Rupees Sixtyseven
Thousand Five Hundred Only) is just, legal and proper. Future interest
can be awarded at the rate of 9% p.a. Considering nature of transaction
and the period stretching the dealings between the parties from the date
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Comm.Suit No. 267/19. 7 Ex-parte Judgment.
of agreement (Exh.6), cost of the suit is liable to be imposed on the
defendant. Accordingly, I record my findings on Point No.1 to 5 in the
affirmative and proceed to pass the following order :
ORDER
1. Commercial Suit No. 267/2019 is decreed.
2. The defendant is directed to pay amount of Rs.10,67,500/
(Rupees Ten Lakhs Sixtyseven Thousand Five Hundred Only) to
the plaintiff with interest at the rate of 9% p.a. from the date of
filing of the suit till the date of realization of the amount, within
three months from the date of decree.
3. The defendant shall bear the costs.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 06/07/2021. Mumbai.
1. Dictated on : 06/07/2021.
2. Transcribed on : 06/07/2021.
3. Signed on : 06/07/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 267/19. 8 Ex-parte Judgment.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/07/2021. 2.17 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/07/2021.
Judgment/Order signed by P.O. on 06/07/2021.
Judgment/Order uploaded on 06/07/2021.
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