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2017 Supreme(Del) 1191
IN THE HIGH COURT OF DELHI AT NEW DELHI
INDERMEET KAUR, J.
KOHLI ONE HOUSING & DEVELOPMENT PVT. LTD. – Petitioner
Versus
DR. DHANANJAYAN KG – Respondent
CS (COMM) No. 1295 of 2016
Decided On : 18-04-2017
For the Petitioners: Mr. Shailen Bhatia and Ms. Priyanka Anand.
The burden of proof in a contractual dispute lies with the parties involved, and it is essential to establish contractual obligations to claim entitlement to a decree.
Headnote:
Real Estate Fraud - Contractual Dispute - [Transfer of Property Act, Section 54; Indian Contract Act, Section 17; Code of Civil Procedure, Order IX Rule 7; Code of Civil Procedure, Order XXXVIII Rule 4] - The court discussed the provisions of the Transfer of Property Act, which governs the transfer of immovable property, and the Indian Contract Act, which deals with the essentials of a valid contract. The court also referred to the procedural rules under the Code of Civil Procedure, specifically Order IX Rule 7 and Order XXXVIII Rule 4, which pertain to the appearance of parties and attachment of property. The court emphasized the importance of proving contractual obligations and the burden of proof in a contractual dispute, ultimately influencing the decision to decree the suit in favor of the plaintiff.
Fact of the Case:
Plaintiff, a real estate company, entered into an agreement to purchase land from the defendant, who claimed to be the owner. Plaintiff paid a substantial sum but later discovered that the defendant did not own the land as alleged. Plaintiff filed a suit for recovery of the paid amount.
Finding of the Court:
The court found that the defendant failed to prove his defense that he acted as an agent of the plaintiff in transactions with the alleged landowners. The court also noted the defendant's history of non-appearance and the lack of evidence to support his claims.
Issues: The issues included the entitlement of the plaintiff to a decree for the claimed amount, entitlement to interest, and the relief sought.
Ratio Decidendi: The court held that the plaintiff had proven the case and was entitled to a decree, emphasizing the importance of proving contractual obligations and the burden of proof in a contractual dispute.
Final Decision: The suit was decreed in favor of the plaintiff for the claimed amount with a reduced interest rate.
INDERMEET KAUR, J.
1. Plaintiff is a private limited company having its registered office at 3, Shivaji Marg, Westend Greens, Rangpuri, New Delhi. The main object of the plaintiff was to purchase and develop real estate and buildings etc. The directors of the plaintiff were introduced to the defendant by a broker by the name of Sunil Choudhary. Pursuant to the meetings between the plaintiff and the defendant, the defendant, who claimed himself to a real estate owner, had agreed to sell 300 acres of land in Village Badshahpur and Medawas of Gurgaon District to the plaintiff. Defendant had impressed upon the plaintiff that he is the owner of the aforenoted land besides other huge passages of land owned by him in Delhi and in the NCR. The defendant exhibited a high life style.
2. In this background the plaintiff had agreed to purchase this aforenoted land pursuant to a due diligence of the documents conducted by the plaintiff. Defendant promised to supply all the requisite papers to the plaintiff. Plaintiff paid a sum of Rs. 3,00,00,000/- accordingly. A sum of Rs. 2,00,00,000/- was paid vide cheque dated 28.10.2006 and the balance sum of Rs. 1,00,00,000/- was paid by cash on the same date. This was after the withdrawal of the cash from the bank account of Sudarshan Kohli, the director of the plaintiff company. A receipt of all the aforenoted payments was given to the plaintiff.
3. Contention of the plaintiff is that defendant has duped the plaintiff and did not thereafter hand over the requisite papers pertaining to the land which was the subject matter of the suit. Thereafter the defendant even stopped responding to the calls of the plaintiff. Plaintiff made enquiries from Registrar of Companies and learnt that no land was owned by the defendant as alleged by him. There was also every likelihood that the defendant would flee from country. The present suit claiming Rs. 3,00,00,000/- along with the pendent (space) lite interest was filed.
4. Defendant was served. He filed a written statement. Contention was that the suit has been falsely filed. The defence set was that the bhumidhars of the land in question had agreed to give this land to the defendant at low rates and the plaintiff had then agreed to purchase this land from the defendant. It was at the asking of the plaintiff that various agreements to sell were entered into by the defendant with these bhumidars and earnest money had been paid by the defendant to them. The defendant was in fact acting as an agent of the plaintiff in facilitating these transactions on behalf of the plaintiff. Defendant had made payment of Rs. 3,70,00,000/- collectively as earnest money to various such persons. A sum of Rs. 70,00,000/- is in fact due from the plaintiff. It would be relevant to note that the defendant has otherwise not denied that he has received the sum of Rs. 3,00,00,000/- from the plaintiff.
5. On 21.7.2010 issues were framed; they read as under:
(1) Is the plaintiff entitled to a decree for a sum of Rs. 6 crores against the defendant as claimed? OPP
(2) Is the plaintiff entitled to interest, if so, at what rate, on what sum and for what period? OPP
(3) Relief.
6. Plaintiff filed his affidavit by way of evidence but thereafter the defendant chose not to appear. He did not cross-examine the witnesses of the plaintiff. On 29.9.2011 it had been recorded that the defendant had been declared a proclaimed offender in FIR No. 265/2009 (Economic Offence Wing). The defendant thereafter moved an application under Order IX Rule 7 of the Code of Civil Procedure which was after the plaintiff had filed an application under Order XXXVIII Rule 4 of the Code seeking attachment of the property of the defendant. Defendant was at that time in judicial custody. He was thereafter granted bail but he again chose to absent himself. The plaintiff in support of his case had filed his affidavit by way of evidence supported by documents. Mark-A was the cheque vide which payment of Rs. 2,00,00,000/- was mad
