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2014 DIGILAW 973 (PNJ)

Ansal Buildwell Limited v. Amit Sharma

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The defendant is in appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiffs has been partly decreed to the extent that cancellation of allotment by the defendant vide letters dated 16.11.2006 and 01.07.2005 is held illegal and is set aside, but the plaintiffs were not declared to be owners in possession of the shop in dispute. It is further ordered that the plaintiffs shall pay the balance sum to the defendant within a period of one month from passing of the decree and the defendant would complete all the procedural formalities in respect of the allotment within the same period. 2. In short, the case of the plaintiffs is that their mother Shobha Sharma purchased a shops space No.GF-24 in Sushant Tower, Gurgaon, in a scheme floated by the defendant. The shop in question was having super area of 385 sq. feet which was agreed to be sold @ Rs.2,800/- per sq. feet, i.e. for a total sale consideration of Rs.10,78,000/-. The parties entered into a Buyer’s agreement dated 23.10.1996 as per which the defendant was to deduct only 15% to 20% area for circulation out of total super area of the shop in question. The allottee had already paid a sum of Rs.8,08,500/- to the defendant and when she inspected the shop in question in October, 2000, the covered area of the shop was found to be just 200 sq. feet against the super area of 385 sq. feet. The allottee approached the defendant to enhance the covered area or to refund her extra money and when the defendant did not give any reply, she approached the District Consumer Disputes Redressal Forum, Gurgaon. Her complaint was dismissed by the Forum on 04.10.2006, the allottee expired on 04.03.2002 leaving behind the plaintiffs as her only legal heirs and beneficiaries as father of the plaintiffs relinquished his rights in the shop in question in favour of the plaintiffs. Her complaint was dismissed by the Forum on 04.10.2006, the allottee expired on 04.03.2002 leaving behind the plaintiffs as her only legal heirs and beneficiaries as father of the plaintiffs relinquished his rights in the shop in question in favour of the plaintiffs. Plaintiff no.1 approached the defendant for depositing the balance payment, but the defendant refused to accept the same on the plea that the booking/allotment of the shop was in the name of their mother, rather forwarded letter dated 16.11.2006 regarding cancellation of the allotment which has been challenged in the present suit as illegal, null and void and pleaded that already a payment of more than 80% of the total covered area of the shop (385 sq. feet) has already been made. 3. In their written statement, the defendant admitted that Shobha Sharma was the allottee and had paid Rs.8,08,500/- towards installment of the total sale consideration, but it was averred that she had not paid installments nos.12, 13 and 14 as per schedule of the payment despite demand letters and as per the terms of the Buyer’s Agreement, allotment was cancelled vide letters dated 01.07.2005 and 16.11.2006. 4. On the pleadings of the parties, the Trial Court framed as many as twelve issues. The Trial Court, after receiving oral as well as documentary evidence, vide its judgment and decree dated 06.03.2013, partly decreed the suit of the plaintiffs, as mentioned here-in-above. 5. The lower Appellate Court has also found that the defendant had not shown customer oriented approach interlaced with fairness and transparency as nothing has been brought on record to show that any communication was sent to the allottee or her successors, i.e. the plaintiffs, about the non-payment of the installments. It has also been observed that instead of placing the entire record pertaining to this site on the judicial file, the defendant had tried to conceal the facts and even the date of sending the cancellation letter (alleged to be of 01.07.2005 to the allottee) was not disclosed. It was also observed that the defendant did not follow due procedure which includes opportunity of hearing to the allottee and also did not refund the amount received after deducting 10% of the total cost of the site, rather it was admitted by DW1 that the site in question is still in the name of the allottee. 6. It was also observed that the defendant did not follow due procedure which includes opportunity of hearing to the allottee and also did not refund the amount received after deducting 10% of the total cost of the site, rather it was admitted by DW1 that the site in question is still in the name of the allottee. 6. Aggrieved against the judgment and decree of both the Courts below, the present appeal has been preferred along with an application under Order 41 Rule 27 CPC in which the applicant-appellant has averred that communications dated 25.02.2005, 25.03.2005, 25.04.2005 and 23.05.2005 requesting the allottee to clear the outstanding dues towards the sale consideration of the property in dispute before cancelling the allotment on 01.07.2005 followed by another communication dated 16.11.2006 were made, but the allottee-respondents did not respond or make the payments of the due installments. These letters are sought to be placed on record as additional evidence with a view to demolish the finding of the lower Appellate Court recorded in para 14 of its judgment. 7. Learned counsel for the appellant has vehemently argued that the documents sought to be produced on record are relevant for proper adjudication of the lis between the parties and has also submitted that the letters are not only sent to the allottee Shobha Sharma but also to the other defaulters also. In this regard, he has referred to the documents sought to be placed on record, which are allegedly sent to the allottee Shobha Sharma under the Posal Certificate (UPC). 8. I have heard learned counsel for the appellant in detail and perused the judgments under challenge. 9. There is no dispute that the defendant had offered to sell shop space No.GF-24 to the allottee with super area of 385 sq. feet. There is also no dispute that the allottee had already made the payment of Rs.8,08,500/- out of the total sale consideration of Rs.10,78,000/-. As per the Buyer’s agreement dated 23.10.1996, the defendant was entitled to deduct 15% to 20% area out of the total super area, but out of 385 sq. feet of the super area, the covered area was just 200 sq. feet, meaning thereby 185 sq. feet was deducted which, according to the allottee, was not 15% to 20% of the total super area which was offered. feet of the super area, the covered area was just 200 sq. feet, meaning thereby 185 sq. feet was deducted which, according to the allottee, was not 15% to 20% of the total super area which was offered. The defendant has claimed that the allotment had to be cancelled because the allottee had failed to make the payment of installment nos.12, 13 and 14 despite repeated reminders, whereas the case of the plaintiffs is that they have not received any letter/communication from the defendant in that regard. There is no dispute that before both the Courts below, the defendant had not led any evidence regarding the communication having been made with the allottee/plaintiffs with regard to the non-payment of balance installments, rather it has been found by the Courts below that the defendant has neither produced any such communication nor even the dates or particulars of such communication has been mentioned. Now, after loosing before both the Courts below, the defendant has come up with an application for additional evidence to place on record the letters mentioned in the application alleged to be reminders for clearing outstanding dues. It is really strange that a company of the level of Ansal would send reminder through UPC and not through courier or registered post especially when the allottee had also made a complaint to the District Consumer Disputes Redressal Forum, Gurgaon, about the unfair trade practices of the defendant. The allottee, Shobha Sharma, had already expired on 04.03.2002, but still the letters, which are sought to be placed on record, are addressed to her. Such type of documents, coming from the possession of the defendant, can never be relied upon because it could be prepared by them at any time, otherwise there was no impediment before the defendant in at least disclosing the dates of the communication before the Courts below. 10. Thus, the application for additional evidence is only to bring on record the manipulated documents and cannot be allowed. Hence, the application is hereby declined. 11. In view thereof, there is hardly any reason for this Court to interfere in the concurrent finding of fact recorded by both the Courts below while partly decreeing the suit of the plaintiffs as no question of law muchless substantial is found to have been involved therein. Dismissed. ---------0.B.S.0------------ —————————