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* IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE

HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ CS(COMM) 111/2021 & I.A. 3609/2021

BIRMALA PROJECTS PVT. LTD.

PLOT NO. 162-A, 3RD FLOOR

SECTOR-7, DWARKA

NEW DELHI-110045,

THROUGH ITS AUTHORIZED DIRECTOR

....PLAINTIFF

(Through: Mr. Naresh K. Daksh, Advocate.)

Versus

1. ASHWANI AHLUWALIA

S/O LATE SHRI RATTAN CHAND

R /O D-25, ANAND NIKETAN

NEW DELHI - 110021.

2. NAKUL AHLUWALIA

S/O SHRI ASHWANI AHLUWALIA

R/O D-25, ANAND NIKETAN

NEW DELHI - 110021.

....DEFENDANTS

(Through: Mr. Nakul Gandhi and Mr. Mujeeb, Advs., Advocates.)

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% Reserved on: 24.01.2025

Pronounced on: 18.02.2025

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JUDGMENT

I.A. 12343/2021 ( by defendant – for rejection of the plaint under Order VII Rule 11(d) )

The instant application, I.A. 12343 of 2021, has been filed by the defendants under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, seeking rejection of the plaint.

2. The present suit has been filed by the plaintiff for the recovery of ?2,14,41,950/-, along with pendente lite and future interest at the rate of 18% per annum from 02.03.2021, as well as for the grant of a permanent injunction. The controversy herein stems from a Collaboration Agreement executed on 09.12.2019 between the plaintiff and the defendants concerning the property bearing No. D-25, Anand Niketan, New Delhi, admeasuring 271.50 square yards [the suit property]. Pursuant to the terms of the agreement, the plaintiff paid a sum of ?1,50,00,000/- to the defendants in cash, amongst payment by other modes, which came to be recorded in the terms of the Collaboration Agreement.

Case of the plaintiff in the main suit

3. The plaintiff entity is a company incorporated under the Companies Act, 1956, and is engaged in the business of constructing and redeveloping immovable properties, either on a contractual or collaborative basis, and subsequently selling such properties. The Defendant No. 1 is the absolute owner of the suit property.

4. In late November 2019, the plaintiff, through its Directors, learnt that the suit property was available for collaboration. Acting on this information, the plaintiff initiated negotiations with the defendants. The plaintiffs sought to re-develop the property, consisting of a Basement, Stilt, and Ground to Third Floors. The defendants shared the title documents and proposed terms of consideration and sharing of the redeveloped property.

5. The parties entered into a Collaboration Agreement for re-development, agreeing that in exchange for constructing the property and paying ?4.75 crore, the plaintiff would receive the Basement, Ground Floor, First Floor, 50% of the Stilt Area, and 55% undivided ownership rights. The defendants would retain the Second and Third Floors, Terrace/Roof, 50% of the Stilt Area, and 45% of the undivided ownership rights.

6. On 05.12.2019, the defendants requested ?50,00,000/- in cash, purportedly citing the marriage of the daughter of defendant No.1 on 07.12.2019. The plaintiff arranged the payment, which was handed over in cash. Defendant No.1 signed a Memorandum of Understanding (MoU)-cum-Receipt, confirming the receipt and agreed to execute the Collaboration Agreement post-marriage. On 09.12.2019, the defendants executed the Collaboration Agreement, acknowledged balance payments, and handed over the possession of the Basement and Ground Floor to the plaintiff, on execution of a possession letter.

7. Within ten days of executing the Collaboration Agreement, the plaintiff discovered that the defendants had entered into similar agreements with other parties and accepted advance payments. As part of this alleged fraud, the defendants did not present the cheque of the plaintiff of ?90,00,000/- for encashment.

8. Suspecting fraud, the plaintiff lodged a police complaint, leading to an FIR against the def