VALMIKI J. MEHTA, J.

C.M. No.10790/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.10789/2018 (for condonation of delay)

2. For the reasons stated in the application, delay of 68 days in filing the appeal is condoned.

C.M. stands disposed of.

RFA No.276/2018 and C.M. No.10788/2018 (stay)

3. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the defendant no.1 in the suit impugning the judgment of the trial court dated 23.8.2017 by which trial court has decreed the suit for recovery of moneys filed by the respondent/plaintiff. The amount which has been decreed is the amount paid by the respondent/plaintiff as an investment in the projects of the appellant no.1/defendant no.1. The suit has been decreed after framing issues by holding that there is no need of trial on account of admissions which have been made by the appellant no.1/defendant no.1 in its written statement.

4. The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of Rs.5,30,000/- pleading that this amount was paid by the respondent/plaintiff to the appellant no.1/defendant no.1 as investment in construction projects of appellant no.1/defendant no.1 but since however this investment was frustrated because the flats were not handed over to the respondent/plaintiff. Therefore, the subject suit for recovery came to be filed.

5. The relevant para of the plaint averring payments of amounts by the respondent/plaintiff to the appellant no.1/defendant no.1 is para 4. For the sake of understanding, however reference is also made to paras 3 and 5 of the plaint and therefore, paras 3 to 5 of the plaint are reproduced as under:-

“3. That the defendants in collusion with each other & some of their associates misrepresented, allured and induced the plaintiff to invest in their project “Himland Executive Residences” a housing project of M/s Himland Housing Pvt. Ltd. in Damrog, Solan, Himachal Pradesh and assured the plaintiff to allot flats in the name of the plaintiff.

4. That as per the requirements of the defendants, the plaintiff invested the amount in the project of defendants through RTGS/NEFT and the details of the same is as under:-

S.No.	Name	Date	Mode of Payment	Amount in Rs.	Name of Beneficiary
1.	Akash & Associates	26/03/14	RTGS from Corporation Bank	5,00,000/-	Himland Housing Pvt. Ltd.
2.	Akash & Associates	06/08/14	NEFT from Corporation Bank	30,000/-	P.K. Dass accountant/s upper wiser head (HHPL)

5. That the defendants despite duly receipt the aforesaid amount have not allotted the flat in favour of the plaintiff and further linger on the same on one pretext or the other.”

6. I may note that summons in the suit were only issued to the appellant no.1/defendant no.1 and in fact even the decree is only passed against the appellant no.1/defendant no.1. The paras of the written statement of the appellant no.1/defendant no.1 which do not dispute the contents of paras 3 to 5 of the plaint, are paras 3 to 5 of the written statement and these paras read as under:-

“3. That in reply to the contents of para no.3 of the plaint it is submitted that mere assertion is not sufficient to make allegations; as the submissions are import of the information derived by the husband of the plaintiff, who is also attorney holder of the plaintiff being connected with the defendant no.1 as Chartered Accountant and also to the defendant no.2 and his other family members and firms. The plaintiff shall stand to strict proof of her allegations that she was allured in any manner. Since there was no discussion, conversation with the plaintiff there was no assurance of any allotment of flat or flats as alleged. The plaintiff is making vague and bald assertions as to investment and allotment of flats and had not disclosed as to what wa