Sh. Gobind Dewan vs Sh. Pravin Lalwani and Another

Manmohan Singh, J.—By this order, I shall dispose of I.A. No. 8827/2007 filed by the plaintiff under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, 1908.

The present suit has been filed for recovery of damages of Rs. 22,00,000/-, permanent injunction restraining the defendants and their agents and representatives etc. from selling, transferring, alienating or creating any third party interest over plots No. I-11/71 &72, Sector 16, Rohini, New Delhi�110085 (hereinafter referred to as the ''suit properties'').

The facts of the case are that the plaintiff was approached by defendant No. 1 who had a General Power of Attorney executed in his favour with respect to the suit properties by the owners of the suit properties.

Defendant No. 1 offered to sell the plots to the plaintiff for a total valuable consideration of Rs. 16,40,000/-. Believing defendant No. 1, the plaintiff entered into an agreement with him on 11th February, 2004 and paid earnest money amounting to Rs. 3,00,000/- in cash vide a receipt on the same date. On 25th November, 2004 the plaintiff paid another Rs. 3,00,000/- in cash on the assurances of defendant No. 1.

Thereafter, despite diligent payments and repeated requests on the plaintiff''s behalf, defendant No. 1 did not execute the documents of the suit properties in favour of the plaintiff due to some excuse or the other instead, defendant No. 1 represented to the plaintiff that he had certain personal problems because of which the plaintiff did not file any formal complaint against him.

However, as per the case of the plaintiff, defendant No. 1 in connivance with the owners of the suit properties has been trying to sell the same to someone else.

The plaintiff sent a Legal Notice dated 7th November, 2006 asking defendant No. 1to fulfill his obligations in reply to which the said defendant allegedly sent a frivolous reply full of absurd concoctions and refused to carry out his obligations.

Thereafter, defendant No. 1 involved the plaintiff and the plaintiff''s son into another agreement between the parties including defendant No. 2 herein, which agreement as per the plaintiff is a concoction. The plaintiff sent a copy of his legal notice to the Delhi Police Economic Defence Wing, though nothing came out of the same. The plaintiff claims that the price of the suit properties has increased and is now almost double the original cost, i.e. Rs. 32,40,000/-. Thus the plaintiff filed the present suit praying for permanent injunction, a decree of damages to the extent of Rs. 22,00,000/- along with the cost of the suit and interest @ 12 % p.a. up to realization of the amount of damages.

In his written statement, defendant No. 1 has stated that he is a property dealer and is engaged in the sale and purchase of properties on commission basis.

The defendant No. 1 has gone on to mention several transactions carried out by him and the plaintiff. As per defendant No. 1 the plaintiff approached him with regard to property No. I-9/14, Sector-16, Rohini, Delhi and on the representation that the said property belonged to his son, asked the former to look for a purchaser for the same. Thereafter, the said property was agreed to be sold to one Sh. Rajan Malhotra for a total sale consideration of Rs. 15,61,000/- out of which, Rs. 4,50,000/- were paid to the plaintiff''s son and a receipt was made. Likewise, when the plaintiff approached defendant No. 1 with respect to property No. I-9/67, Sector-16, Rohini, Delhi a buyer by the name of Sh. Navin Kumar gave earnest money of Rs. 2,50,000/- against the total sale consideration of Rs. 10,68,000/-. (Admittedly, the above-mentioned properties are not the subject matter of the present suit.)

Thereafter, defendant No. 1 entered into an agreement to purchase the suit properties from Sh. Satish Goel, defendant No. 2 herein for a total sale consideration of Rs. 16,25,000/- out of which the separate amounts of Rs. 1,00,000/-, Rs. 2,00,000/- and Rs. 3,00,000/- were paid by defendant No. 1 to defendant No. 2 on 16th January, 2004, 18th January, 2004 and 25th November, 2004 respectively. The plaintiff expressed interest in the suit properties and agreed to purchase the same for a total consideration of Rs. 16,40,000/- of which Rs. 6,00,000/- were paid and the rest Rs. 10,40,000/- were to be paid at the time of execution of perpetual lease deed.

Meanwhile, defendant No. 1 heard rumors as regards property No. I-9/67, Sector-16, Rohini, Delhi and property No. I-9/14, Sector-16, Rohini, Delhi to the effect that the same were available for sale. The execution of documents with respect to these properties had been stalled by the plaintiff on one pretext or the other. As per defendant No. 1, the plaintiff assured him that without clearing the deals as regards the above-mentioned two properties, he would not insist on completion of the deal with respect to the suit properties. With this background, defendant No. 1 has stated that the plaintiff ought to have completed his side of the deal and not approached this Court with the present false and frivolous case.

In the application under consideration, the plaintiff has stated that defendant No. 1 has admitted the factum of receiving the earnest money/advance of a total of Rs. 6,00,000/- in his reply to the plaintiff''s legal notice dated 7th November, 2006. Further, in the written statement itself defendant No. 1 has admitted the deal as well as his obligation therein though he has tried to entangle the present dispute with other properties which are the subject matter of suits pending in other courts.

The plaintiff has averred that defendant No. 1 has filed two separate suits against the plaintiff''s son which are pending in the Tis Hazari courts, wherein an application for transfer and hearing of all matters in one court has been made. It is the plaintiff''s submission that defendant No. 1 has admitted taking the advance amounts and even accepted his liability as regards the suit properties and on the basis of this admission, the present suit may be decreed in favour of the plaintiff.

In his reply to the plaintiff''s application, defendant No. 1 has submitted that the plaintiff has failed to disclose any specific pleading wherein the alleged admission has been made and it is the said defendant''s contention that no such admission has been made.

I have perused the contentions of both parties. It is the admitted position that the plaintiff has not filed the present suit for specific performance of the property in question. The plaintiff has merely filed the suit for damages as well as for injunction. As far as the injunction part is concerned, the same shall be taken up and decided on merit at the appropriate time. The second relief sought by the plaintiff is recovery of damages and the same cannot be granted at this stage of the proceedings as the plaintiff has to prove the damages in accordance with law, therefore, this Court is of the considered opinion that under the said circumstances, a trial is required in the matter. Even otherwise, I am not inclined to allow the prayer sought by the plaintiff at this stage of the matter in view of the case Shri Rajeev Mehra Vs. Shri Sudhir Kumar Sachdev, wherein Learned Single Judge Rajiv Sahae Endlaw, J. as regards applications under Order XII Rule 6 observed that under Order XII Rule 6 CPC it is the discretion of the court, even where admissions of facts have been made, whether to decree the suit or not. The court even in the face of admission is empowered to make such order as may be deemed fit.

It appears that the damages alleged in the plaint have not been proved. In view of the afore-stated and in view of the well settled law that in a suit for recovery of damages, such damages must be proved in order to obtain relief and no relief can be granted in lieu of an application under Order 12 Rule 6 of the Civil Procedure Code, I find that the damages claimed in the suit shall be proved at the time of trial and cannot be decided now and therefore, the present application is dismissed.

List before court on 11th February, 2010 for framing of issues.