Final Order 1

Order Details: Ex-parte Judgement
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MHCC010103872019 Presented on : 14-10-2019
Registered on : 07-01-2020
Decided on : 02-08-2022
Duration : Y M D
02 09 19
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.571 OF 2021
(S.C. SUIT NO.120 OF 2020)
Ex.14
M/s. Sharcon Infrastructure Private Limited
A Company registered under
The Companies Act, 1956
having its registered address at Krishna Kunj,
Swami Bhakti Vedant Marg,
Juhu, Mumbai 400049
Through its Director
Vijay Sharma
Residing at Krishna Kunj,
Swami Bhakti Vedant Marg,
Juhu, Mumbai 400049 ..Plaintiff
VERSUS
Bajranglal Chamanlal Bajaj, Hindu
Indian Inhabitant, residing at
3rd Floor, DWing,
Gomati Cooperative Housing Society Ltd.,
Near Ajay Nagar, Bhimwadi, Thane 421302. ..Defendant
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______________________________________________________
Ld. Advocate Divya Menon along with Adv. Rupa Bhave for
plaintiff.
DefendantEx parte.
______________________________________________________
JUDGMENT
(Delivered on this 02 nd August, 2022)
Suit is filed for declaration and cancellation of
instruments and for recovery of an amount of Rs. 8,15,600/
along with further interest.
Material averments, made in the plaint, may be
summarized as under:
2. Plaintiff is a private limited company registered
under the Companies Act. In the year 2013, defendant
approached plaintiff through one Ashok Chhajed for
redevelopment of the property mentioned in schedule.
(hereinafter, referred to as 'suit property'). Plaintiff entrusted
the work of verifying the title of the suit property to said Ashok
Chhajed. It was informed to the plaintiff that one Chamanlal
Bajaj was owner of the suit property. He passed away on
01/01/1978 leaving behind him his wife Vijayalaxmi Chamanlal
Bajaj. It was further informed to the plaintiff that defendant is
the adopted son of Vijayalaxmi Chamanlal Bajaj. Smt.
Vijayalaxmi Chamanlal Bajaj passed away on 13/03/2010 and
defendant is the sole owner of the suit property. There were five
occupants in the suit property. All of them gave consent for
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development of the suit property. On the basis of assurance given
by defendant and Ashok Chhajed regarding title of the suit
property, plaintiff entered into a development agreement dated
06/12/2013 for consideration of Rs.1.17 Crores with defendant.
Defendant also executed Special Power of Attorney in favour of
plaintiff. Both these documents were duly registered with the
SubRegistrar. Plaintiff handed over cheques of the consideration
amount to defendant. Plaintiff has given particulars of those
cheques. Out of those cheques, defendant encashed cheque of
Rs.2 lacs.
3. As per the terms of the development agreement,
defendant was required to take steps for giving alternate
accommodation to the occupants in the suit property. However,
defendant failed to take steps. Defendant left his residence after
signing the development agreement. Later on, plaintiff came to
know that occupants in the suit property were holding their
respective flats on ownership basis. Defendant committed fraud
by suppressing material facts regarding title of the suit property.
Plaintiff was required to incur expenses of Rs.6,15,600/ towards
stamp duty and registration of development agreement and
special power of attorney. Plaintiff also paid an amount of Rs.2
lacs to defendant. By making all these averments, plaintiff prayed
for declaration that development agreement and special power of
attorney are void and it also prayed for cancellation of these
instruments. Plaintiff further prayed for recovery of an amount of
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Rs.8,15,600/ from defendant.
4. As per service affidavit (Ex.3 & 4), defendant was
deemed to be served with writ of summons, but, he failed to
tender his appearance and therefore suit proceeded without
appearance of defendant as per order dated 27/10/2021.
5. Heard Ld. advocate for plaintiff.
6. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff prove that
development agreement dated
06/12/2013 executed between
plaintiff and defendant is void ?
Proved
2. Does the plaintiff proves that
Special Power of attorney dated
06/12/2013 executed by defendant
is void ?
Proved
3. Whether the plaintiff is entitled for
cancallation of instruments as
prayed for ?
Yes
4. Whether plaintiff is entitled for an
amount of Rs.8,15,600/ ?
Yes
5. What order? Suit is partly
decreed as per final
order.
REASONS
Point No.1
7. In order to substantiate the claim, plaintiff has
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examined it's director Vijay Bholanath Sharma at Ex.5 and placed
reliance upon following documents below list Ex.6 as under:
Art.A Copy of consent terms
Ex.7 Development agreement
Ex.8 Special power of attorney
Ex.9 Bank statement
Ex.10 colly Photocopy of the legal notice dated
03/12/2018 along with photocopy
of acknowledgement.
Ex.11 Board resolution
Ex.12 Office copy of complaint given to
police station dated 23/04/2019
Adv. for plaintiff filed evidence closing pursis at
Ex.13.
8. PW1 Vijay has reiterated all the facts pleaded in the
plaint in his evidence affidavit. PW1 Vijay testifies that defendant
and one Ashok Chhajed informed plaintiff company that
defendant is the owner of the suit property. Relying upon the
information given by Ashok Chhajed and defendant, plaintiff
entered into a development agreement dated 06/12/2013.
Development agreement dated 06/12/2013 is placed on record at
Ex.7.
9. Plaintiff further testifies that defendant executed a
special power of attorney on 06/12/2013. Said power of attorney
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is placed on record at Ex.8.
10. As discussed supra, suit proceeded exparte,
therefore, plaintiff's evidence remain unchallenged. Plaintiff is
coming with the specific case that defendant misrepresented him
regarding title of the suit property. He came to know that
defendant is not the owner of the suit property. On perusal of
development agreement dated 06/12/2013(Ex.7), it is evident
that defendant executed said development agreement as a owner
of the suit property. Plaintiff submits that after executing
development agreement and special power of attorney, defendant
left his residence. Thus, from the oral and documentary evidence
filed on record, it can be safely inferred that defendant got
executed development agreement dated 06/12/2013 and special
power of attorney dated 06/12/2013 by misrepresentation of
facts regarding title of the suit property.
11. Plaintiff has reasonable appreciation that these
instruments, if left outstanding, may caused him serious injury,
therefore, plaintiff has prayed declaration that these instruments
are void. Plaintiff has proved that these instruments were
executed by defendant by misrepresentation of facts. Therefore,
plaintiff is entitled for the declarations as prayed for. Point Nos.1
to 2 are answered accordingly.
Point No.3
12. As both these instruments are declared as void,
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therefore, these instruments are required to be cancelled. Thus,
plaintiff is entitled to the relief of cancellation of instruments also.
Point No.3 is answered accordingly.
Point No.4
13. Record shows that plaintiff has paid an amount of
Rs.2 lacs to defendant towards the consideration of development
agreement. Said development agreement is cancelled, therefore,
plaintiff is entitled for refund of said amount. Plaintiff, is
claiming an amount of Rs.6,15,600/ which it incurred towards
stamp duty and registration of development agreement and power
of attorney. Both these documents are declared as void.
Therefore, plaintiff is also entitled to get charges of these
documents from defendant. Thus, plaintiff is entitled to get an
amount of Rs.8,15,600/from defendant. Point No.4 is
answered accordingly. In the result, following order:
ORDER
1. Commercial Suit No.571 of 2021 is partly decreed with
costs.
2. It is hereby declared that redevelopment agreement
dated 06/12/2013 executed between plaintiff and
defendant bearing registration No.BBE3/101/2014 dated
06/12/2013 is void.
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3. It is hereby also declared that Special Power of Attorney
bearing registration No.Mumbai 31022014 dated
06/01/2014 is void.
4. Defendant shall pay an amount of Rs.8,15,600/(Rupees
Eight Lacs Fifteen Thousand Six Hundred only) along with
interest @ 12% p.a. to plaintiff from the date of the suit till
its realization within two months.
5. A copy of the decree be sent to the officer in whose office
above mentioned instruments have been so registered.
Concerned officer is directed to note on the copies of the
instruments contained in his books, the fact of its
cancellation.
6. Court fees be refunded as per (E) Rules framed under
Section 11(2) of the Bombay City Civil Court Act, 1948, for
the refund of Institution Fee.
7. Decree thus follow.
02/08/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 02/08/2022
Transcribed on : 03/08/2022
Signed on : 06/08/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
08/08/22 at 05.00 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 02/08/22
Judgment and order signed by P.O. 06/08/22
Judgment/order uploaded on 08/08/22
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