Romesh Pandita Vs. M/s Bestech India Pvt. Ltd. & another.

IN THE COURT OF PHALIT SHARMA, ADDITIONAL DISTRICT

JUDGE : GURGAON.

Civil Misc. Appeal No.87 of 15.2.2014.

CIS No.CMA/1463/2014.
Date of institution: 13.2.2014.
Date of decision : 11.1.2016.

Romesh Pandita son of late Sh.Laxmi Nath Pandita, resident of Q1/26,

DLF City-II, Gurgaon (Haryana).

….......Appellant-plaintiff.

Versus

1. M/s Bestech India Pvt. Ltd., registered office at 1/2873, Ram Nagar,
Loni Road, Shahdara, Delhi. Second Address : Bestech House, 124,
Sector-44, Gurgaon - 122002.

..........Contesting respondent-defendant No.1.

2. Mrs. Rupali Malik wife of Sh.Mohit Malik, resident of 26/14, New

Rohtak Road, New Delhi.

….... Respondent-Proforma defendant No.2.

CIVIL MISC. APPEAL AGAINST ORDER DATED

14.01.2014, PASSED BY THE COURT OF
SH.MANPREET SINGH, THE THEN LEARNED
ADDITIONAL CIVIL JUDGE (SR.DIVN.),
GURGAON, VIDE WHICH INJUNCTION
APPLICATION OF THE PLAINTIFF WAS
DISMISSED.

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Argued by:-

Sh.C.K. Sharma, counsel for the appellant-plaintiff.

Sh.J.K. Dang, counsel for respondent-defendant No.1.

Ms.Seema Goswami, counsel for the respondent-defendant

No.2.

JUDGMENT:

The appellant-plaintiff has preferred this appeal against order

dated 14.1.2014 passed by the court of Sh.Manpreet Singh, the then

learned Additional Civil Judge (Sr. Division), Gurgaon, vide which

application order Order XXXIX Rules 1 & 2 read with Section 151 CPC,

moved by the plaintiff-appellant was dismissed.

2. The brief facts of the plaintiff's case are that plaintiff is co-

allottee with defendant No.2 of an apartment bearing No.D-1003

admeasuring 2600 sq. ft. situated at 10th floor at Park View Grand SPA,

owner Daisy, Sector-81, Gurgaon. The allotment was issued by defendant

No.1 and plaintiff has paid ₹15.00 lac in all to defendant No.1 with regard

to the allotment of the said flat. A sum of ₹10.00 lac was paid initially by

plaintiff and defendant No.2 vide cheques detailed in para No.4 of the

plaint. Further, a sum of ₹5 lac was paid vide cheque No.14072 dated

1.5.2012 for which a receipt No.647 dated 5.5.2012 was issued in the joint

name of plaintiff and defendant No.2. It is further alleged that despite

joint allotment in the names of plaintiff and defendant No.2, it has come

to the knowledge of plaintiff vide reply of defendant No.1 dated

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23.2.2013 that the allotment has been cancelled by defendant No.1

though joint allotment letter dated 31.3.2012 was issued by defendant

No.1 in the joint names of plaintiff and defendant No.2 and plaintiff

adopted mode of payment as per form of installment plan but he has not

been informed about factual status and existing construction since it was

obligatory on the part of defendant No.1 to have disclosed the extent of

construction and plaintiff has been kept in dark about the construction and

progress made at the site and now, defendant No.1 has become dishonest

and with malafide intention and to cause wrongful loss to the plaintiff, has

mentioned about the cancellation of said flat. It is further alleged that

plaintiff had sent legal notice dated 28.3.2013 to defendant No.1

regarding its right and has asked defendant No.1 to inform about the

factual status of the construction and whether any dues are payable at the

end of plaintiff and to inform him in this regard. In reply to two notices

dated 28.1.2013 and 12.2.2013 sent by plaintiff, defendant No.1 sent a

composite reply dated 23.2.2013 wherein for first time, it was disclosed

that allotment of the said flat in the name of plaintiff and defendant No.2

has already been cancelled vide its letter dated 28.8.2012. However, no

communication prior to the composite reply was received by palintiff, nor,

any communication regarding balance sale consideration was ever

received and as such, there is no question of cancellation of the said flat in

the joint ownership/allotment of plaintiff and defendant No.2. Defendant

No.1 has no right to cancel the allotment. Hence, the present application

with prayer to restrain defendant No.1 from handing over possession of

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4

said flat/apartment bearing No.1003 to any third person or from creating

any lien, interest, transfer, charge in regard to the said flat in favour of any

third person except the plaintiff, except in due course of law.

3. In reply, it is stated by defendant No.1 that originally,

apartment in question was booked by plaintiff and defendant No.2. A

sum of ₹10.00 lac was paid initially vide two cheques of ₹5.00 lac each

bearing No.249378 dated 17.2.2012 and 868111 dated 15.2.2012. It was

mentioned in the booking form duly executed and submitted by plaintiff

and defendant No.2 that timely payment of installments/balance sale

consideration/security deposit/charges was the essence in respect of

application for booking and it was incumbent upon plaintiff and defendant

No.2 to comply with the terms of payment and other terms and conditions

of allotment/sale as contained in application form. It was specified that in

case plaintiff and defendant No.2 delayed payment of installments then

they would be liable to pay interest at the delayed payment @ 18% per

annum compounded quarterly at the time of every succeeding installment

without prejudice to the rights of the defendant No.1 to cancel the

allotment. It was further provided that if plaintiff and defendant No.2

failed to pay delayed installments alongwith interest within 75 days from

the due date, defendant No.1 would be entitled to forfeit the earnest

money/ registration money alongwith brokerage paid, if any, and the

allotment would stand cancelled and plaintiff and defendant No.2 would

have no right/ interest in respect of the apartment.

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It was mentioned in booking form that any sums paid over

and above the earnest money would be refunded without interest by

defendant to plaintiff and defendant No.2 after adjustment of interest on

delayed payments due from the plaintiff and defendant No.2. The

booking form was executed and submitted by plaintiff and defendant No.2

after fully understanding contents and implications incorporated therein.

The rights and obligations of parties are to be determined by terms and

conditions incorporated in the booking form and plaintiff cannot be

permitted to assert any right at variance with the terms and conditions

incorporated in the booking form.

It was specifically mentioned in booking form that plaintiff

and defendant No.2 would be bound to get complete address registered

with the company at the time of booking of the apartment and all

communcations/ notices would be sent at the first address indicated by

plaintiff and defendant No.2 and same would be deemed to have been

received by them. It was further mentioned that same would be without

prejudice to the stipulation contained in the booking form that plaintiff

and defendant No.2 would strictly comply with the schedule of payments

mentioned in the application.

Letter dated 31.3.2012 was got dispatched to defendant No.2

being first applicant conveying that plaintiff and defendant No.2 have

been allotted flat in question alongwith letter dated 31.3.2012. Payment

plan was also dispatched clearly communicating that at the time of

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booking a sum of ₹9,74,896/- was required to be paid by plaintiff and

defendant No.2 to the defendant No.1. Plaintiff has not disputed the

receipt dated 31.3.2012, therefore, plaintiff and defendant No.2 were

aware from the very inception that amounts indicated in allotment letter,

were required to be paid by them to defendant No.1, however, for reasons

best known to plaintiff and defendant No.2, they choose not to make

payment indicated in the plan.

Letter dated 31.3.2012 was dispatched to defendant No.2

being first applicant whereby she was required to pay a sum of

₹19,99,299/- being amount outstanding and calculated in accordance with

the payment plan opted for by them. Despite receiving aforesaid letter,

plaintiff and defendant No.2 choose not to make payment. Letter dated

11.6.2012 was sent alongwith two copies of Apartment Buyers Agreement

for execution thereof, however, agreement was neither executed by

plaintiff and defendant No.2, nor, returned to defendant No.1. Thereafter,

letter dated 28.6.2012 and 24.7.2012 were sent to defendant No.2 being

first applicant asking upon plaintiff and defendant No.2 to make payment

of their dues outstanding amount, even though plaintiff and defendant

No.2 were aware of the fact that defendant No.1 was under no obligation

to keep sending defendant No.2 or the plaintiff reminders to make

payment of the outstanding amount. Letter dated 9.8.2012 was sent by

registered post to defendant No.2 on 14.8.2012 conveying her that a sum

of ₹13,61,225/- has become outstanding. It was also intimated that

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interest amount of ₹99,366/- was also outstanding and vide that letter, it

was specifically communicated that if payment was not made upto

28.8.2012, defendant would be constrained to take action in the matter

including cancellation of the unit and due to intentional and willing

negligence on the part of plaintiff and defendant No.2 in not making

payment of outstanding amount, the allotment of aforesaid apartment was

cancelled by defendant No.1 vide letter dated 28.8.2012. Plaintiff in order

to create false evidence had got issued notices dated 28.1.2013 and

12.2.2013 to the defendant No.1 putting forthwith totally false and

frivolous contention to the positive knowledge of the plaintiff. After

denying rest of the averments, dismissal of the application has been

prayed for.

4. After hearing the parties and appraisal of the material on

record, learned trial court dismissed the injunction application under

Order 39 Rules 1 & 2 read with Section 151 CPC filed by the plaintiff,

vide impugned order dated 14.1.2014.

5. Feeling aggrieved, the unsuccessful, the appellant-plaintiff

has preferred this appeal.

6. Notice of the appeal was issued to the respondents-

defendants, who appeared to contest the appeal.

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7. For the sake of clarity, the parties are being referred to as

plaintiff and defendants in accordance with the original nomenclature

given by the learned trial court.

8. This court has heard Sh.C.K. Sharma, learned counsel for the

appellant-plaintiff, Sh.J.K. Dang, learned counsel for respondent-

defendant No.1, Ms.Seema Goswami, learned counsel for the respondent-

defendant No.2 and has also gone through the case file very carefully.

9. Learned counsel for the appellant-plaintiff has argued that

impugned order passed by learned trial court is against the facts and law

because learned trial court has wrongly held that the plaintiff was in

knowledge of the correspondence made by the defendant No.1 seeking

deposit of installments due failing which to face order of cancellation of

the unit because plaintiff had come to the knowledge of cancellation only

vide reply of defendant No.1 to his correspondence dated 23.2.2013 and

not prior thereto. He has further argued that learned trial court has

wrongly held that plaintiff has not adhered to the payment plan despite the

fact that it is the defendant No.1 who has been at fault by not providing

the basic amenities and due intimation regarding payment schedule.

Finally, he has prayed to set aside the impugned order and to allow the

appeal.

10. On the other hand, learned counsel for the respondent-

defendant No.1 has argued that impugned order passed by learned trial

court is legally justified because entire correspondence by defendant No.1

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was made at address given by plaintiff and defendant No.2 in their form

for allotment and despite service of notices, both did not abide by the

conditions, hence, as per terms and conditions of allotment letter, the

allotment was cancelled. He has further argued that there is also violation

of condition No.9 of the agreement as the plaintiff and defendant No.2 did

not deposit 20% of the basic sale price, hence, now plaintiff and defendant

No.2, the joint allottees, cannot get benefit of their own faults through the

present suit. Finally, he has prayed to dismiss the appeal and to affirm the

impugned order.

11. With due regards to the rival contentions and facts on record,

this court find no merit in the appeal because of following two reasons :-

Firstly, when there is no dispute from plaintiff and defendant

No.2, joint allottees of the unit by defendant No.1 that the address for

correspondence given by them is the one where defendant No.1 had sent

the correspondence repeatedly, now, the plaintiff and defendant No.2

cannot claim that such correspondence was not received by them by

claiming it not to be their correct address. Since, such correspondences

prima facie were sent through registered post demanding the money due

and cautioning the allottees to make the payment or lose the unit at the

address given by addressee themselves, the silence of plaintiff and

defendant No.2 in responding to such correspondence, would indicate that

in fact, they had been at fault and not the defendant No.1. Hence, prima

facie being defaulter of the terms and conditions, plaintiff cannot seek any
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relief against defendant No.1, who acted in accordance with terms and

conditions of the allotment.

Another prima facie defect in the case of plaintiff is that

plaintiff has not succeeded to lead any evidence to show that there had

been payments of the installments well in time by him and defendant

No.2, his co-allottee, to defendant No.1. If this be so, preponderance of

probability says that being defaulter in making the payment, who have

been cautioned through correspondence made at their given address by

defendant No.1, now through the present suit, plaintiff cannot seek any

relief against the defendant No.1, who is initiating action in accordance

with the terms of allotment.

12. No other issue or point was agitated by counsels for either of

the party.

13. As a sequel to above mentioned findings, the appeal is

dismissed, being devoid of merit. The impugned order dated 14.1.2014

passed by learned trial court is affirmed vide which the injunction

application filed by the plaintiff was dismissed. Memo of costs be

prepared accordingly. Parties through their counsels are directed to

appear before the learned trial court on the date already fixed there. A

copy of this judgment be sent to the court concerned through its Presiding

Officer forthwith for, further proceedings.

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18. Nothing expressed above, shall have bearing on the merits of

the case.

Appeal file be consigned to the record room after due

compliance.

Announced in open court. (Phalit Sharma),

Dated: 11.01.2016. Additional District Judge,
rg. Gurgaon.

Certified that this judgment contains eleven (11) pages which have been
checked and signed by me.

(Phalit Sharma),
Dated: 11.01.2016. Additional District Judge,
Gurgaon.