Lt. Gen. L.M. Misra vs Sushil Kumar Mehta and Another

V.K. Jain, J.—This is a suit for recovery of Rs. 1,51,61,000/- and permanent injunction. The Plaintiff is a senior citizen, having retired as a Lieutenant General from Indian Army. Defendant represented to the Plaintiff that he was the sole and absolute owner of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon, admeasuring 400.40 sq. metres and the aforesaid plot was free from all kind of encumbrances, such as sale, gift, mortgage, litigation, etc. He agreed to sell the aforesaid plot to the Plaintiff for a total consideration of Rs. 51,61,000/-. In order to convince the Plaintiff, the Defendant provided him the original receipt, which the erstwhile owner of the property Mr. Harish Bhandari, had executed in his favour. Believing the representation made by the Defendant, the Plaintiff paid the entire sale consideration of Rs. 51,61,000/- to the Defendant from time to time. Since the Defendant was unable to get the plot transferred in the name of the Plaintiff, a Settlement Agreement was executed between the parties on 15th November, 2007. Under the settlement, the Defendant undertook to execute the sale deed of the plot in favour of the Plaintiff by 30th November, 2007. As a proof of his commitment to honour the agreement, the Defendant handed over one cheque of Rs. 51,61,000/- dated 15th November, 2007, drawn on Bank of Baroda, East of Kailash, New Delhi to the Plaintiff. Another cheque of Rs 1 crore, drawn on the same bank, was also handed over to the Plaintiff to show his bona fide and convince him that the Defendant intends to fulfil the commitment being made by him. It was also agreed that if the sale deed was not executed in terms of the settlement, the Defendant would pay difference between Rs. 51,61,000/-, which he had received from the Plaintiff and Rs 3.5 crore, which was the actual market value of the plot on the date of the agreement, to the Plaintiff. Two Special Power of Attorneys, executed in favour of the Defendant, one in respect of Plot No. 7. Paschim Marg, DLF City, Phase-I, Gurgaon and the other in respect of Shop No. 9, DDA Market, behind IOC Building on Aurobindo Road, New Delhi, were also delivered by the Defendant to the Plaintiff.

It is alleged by the Plaintiff that the Defendant failed to honour his commitment since neither the sale deed was executed in his favour nor was the difference between the agreed sale consideration of Rs. 51,61,000/- and the market value on the date of the agreement dated 15th November, 2007 was paid to him by the Defendant. Both the cheques, which the Defendant had delivered to the Plaintiff, were, when presented to the bank, dishonoured for want of funds. Since the Defendant failed to honour the settlement, the Plaintiff has now claimed a sum of Rs. 1,51,61000/- from him which comprises the principal sum of Rs. 51,61,000/- paid by him to the Defendant and Rs 1 crore out of difference between the agreed sale consideration and market value of the plot as on 10th November, 2007.

Initially, the suit was filed against the present Defendant Mr Sushil Kumar Mehta and Mr Harish Bhandari, in whose name the title deeds of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon, stand. However, Mr Harish Bhandari was given up on 28th March, 2011 and an amended memo of parties impleading only Mr Sushil Kumar Mehta as Defendant was accordingly filed.

The Defendant Sushil Kumar Mehta did not appear despite service and, therefore, was proceeded ex parte vide order dated 28th March, 2011.

The Plaintiff has tendered his affidavit by way of ex parte evidence and in his affidavit, he has affirmed, on oath, the averments made in the plaint. He has stated that the Defendant represented to him that he was the sole owner of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon, admeasuring 400.40 sq. metres and that the original seller Mr Harish Bhatia had executed a sale deed pertaining to the aforesaid plot in his favour. He has further stated that he agreed to purchase the aforesaid plot from the Defendant for a consideration of Rs. 51,61,000/- and paid the aforesaid amount to him partly by cheque and partly by cash. According to him, the Defendant did not transfer the plot in his name nor was the sale deed executed in his favour. A Settlement Agreement was entered into between the parties on 15th November, 2007, whereby the Defendant undertook to execute the sale deed of the plot in his favour by 30th November, 2007 and also handed over two cheques, one of Rs. 51,61,000/- and the other of Rs 1 crore to him. He also handed over two Special Power of Attorneys, executed in his favour, to the Plaintiff. The Plaintiff has further stated that the Defendant has not fulfilled his commitment in terms of the agreement dated 15th November, 2007.

Ex.PW-1/A is the receipt executed by Mr Harish Bhatia in favour the Defendant, while receiving Rs 22 lakhs from him as the sale consideration for sale of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon. In this receipt, Mr Bhatia confirmed having received full and final payment from the Defendant, having executed the sale deed in favour of the Defendant and having given physical possession of the plot to him.

Ex.PW-1/B is the receipt of Rs. 5,60,000/- by the Defendant from the Plaintiff in cash in the year 2000, Ex.PW-1/C is the receipt of Rs. 6,45,000/- received as part payment in the year, 2001, Ex.PW-1/D is the receipt of Rs. 14,20,000/- received as part payment in the year 2002, Ex.PW-1/E is the receipt of Rs. 1,30,000/-, acknowledging receipt of Rs. 1,30,000/- from the Plaintiff in the year 2003, Ex.PW-1/F is the receipt, whereby receipt of Rs. 6,60,000/- in the year 2004 has been acknowledged by the Defendant, Ex.PW-1/G is the receipt of payment of Rs. 13,86,000/- in the year 2005 and Ex.PW-1/H is the receipt of Rs. 3,60,000/- from the Plaintiff in the year 2006. It thus stands that the Defendant received payment of Rs. 51,61,000/- from the Plaintiff in instalments during the period 2000-2006.

Ex.PW-1/I is the Settlement Agreement dated 15th November, 2007. Vide this agreement, the Defendant confirmed his ownership in respect of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon which he claimed to have purchased form Mr Harish Bhatia for a consideration of Rs. 22,00,000/-. The Defendant, in para 2 of this agreement, acknowledged having received Rs. 51,61,000/- from the Plaintiff as the total agreed consideration in respect of the plot, subject matter of the agreement. Vide Clause 3 of the agreement, he undertook to execute the sale deed of the plot in favour of the Plaintiff by 30th November, 2007 and to hand over all the original documents, relating to the aforesaid plot to him. He also agreed to hand over the physical possession of the plot to the Plaintiff simultaneously with execution of the sale deed and handing over of the documents to him. Vide Clause 5 of the agreement, the Defendant acknowledged issue of cheque No. 578642 dated 15th November, 2007 for a sum of Rs. 51,61,000/- to the Plaintiff. Vide Clause 6 of the agreement, the Defendant agreed that in case of his failure to transfer the ownership of the plot to the Plaintiff, he would pay to him, in addition to the amount of Rs. 51,61,000/- received from him, the difference between agreed sale consideration and actual market value of the plot which on 10th November, 2007 was stated to be about Rs 3.5 crores. The Defendant admitted that the market value of the plot, subject matter of the agreement was Rs 3.5 crores on 10th November, 2007 and in the event of his failure to execute the sale deed of the plot in favour of the Plaintiff, he would pay to him not only the sale consideration received from the Plaintiff, but also the amount, being the difference between the agreed sale consideration and market value of the plot as on 10th November, 2007. The Defendant also acknowledged having delivered a cheque of Rs 1 crore to the Plaintiff along with two Special Power of Attorneys, which he was holding in his favour one in respect of Plot No. A-55/7, DLF City, Phase-I, Gurgaon, and the other in respect of Shop No. 9, DDA Market, behind IOC Building on Aurobindo Road.

Ex.PW-1/J is the copy of the cheque of Rs. 51,61,000/- drawn on Bank of Baroda, East of Kailash, New Delhi, whereas PW-1/K is the copy of the cheque of Rs 1 crore drawn on the same bank. PW-1/L to PW1/O are the memos where these cheques were dishonoured by the bank.

I see no reason to disbelieve the unrebutted deposition of the Plaintiffs which has been fully corroborated by the documentary evidence in the form of the Settlement Agreement dated 15th November, 2007, receipts executed by the Defendant from time to time and the cheques issued by him in favour of the Plaintiff. The Plaintiff has today filed an additional affidavit stating therein that the market value of the aforesaid plot as ascertained from the market was Rs 3.5 crores on 10th November, 2007. Thus, besides admission of the Defendant, there is substantial evidence in the form of affidavit of the Plaintiff as regards value of the plot, subject matter of the agreement between the parties as on 15th November, 2007. The Plaintiff has not claimed the entire difference between the market value of the plot as on 10th November, 2007 and the sale consideration agreed between him and the Defendant. He has claimed only a sum of Rs 1 crore out of the difference between the agreed sale consideration and the market value of the plot. I see no reason to deny the aforesaid amount to the Plaintiff.

For the reasons given in the preceding paragraphs, a decree of Rs. 1,51,61,000/- with costs and pendente lite and future interest at the rate of 6% per annum is hereby passed in favour of the Plaintiff and against the Defendant.

The suit and IA stand disposed of.

Decree sheet be drawn accordingly.