Amit Miglani v. Dinesh Chaudhary

1. Present suit has been filed by the plaintiff for recovery of Rs. 3,45,00,000/- (Rupees Three Crore Forty Five Lacs only) against the defendant, alleging that the defendant had entered into a Bayana Agreement dated 25th July, 2012, claiming himself to be the sole and absolute owner of the Suit Property bearing Plot No.112-113, area measuring 500 sq. yds. part of Khasra No.11/21, situated in the area of Village Nilothi Colony, known as Nihal Vihar, Block – R, Nangloi, New Delhi. It is stated that the plaintiff had paid a sum of Rs.50,00,000/- (Rupees Fifty Lacs Only) to the defendant in cash on 2019:DHC:1451 25th July, 2012 which was duly acknowledged by the defendant by signing and executing the Bayana Receipt. It is also averred that apart from making the payment of Rs.50,00,000/- (Rupees Fifty Lacs Only) on 25th July, 2012, the plaintiff paid various part payments including Rs.40,00,000/- (Rupees Forty Lacs Only) on 29th September, 2012, Rs.30,00,000/- (Rupees Thirty Lacs Only) on 24th November, 2012, Rs.50,00,000/- (Rupees Fifty Lacs Only) on 27th November, 2012 and Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lacs Only) on 11th December, 2012 in cash which were duly acknowledged by the defendant.

2. It is the plaintiff’s case that in total it had paid a sum of Rs.2,95,00,000/- (Rupees Two Crores Ninety Five Lacs Only) to the defendant in pursuance to Bayana Receipt dated 25th July, 2012 and Agreement to Sell and Purchase dated 24th November, 2012.

3. It is further averred that the defendant had acknowledged the said payment on Bayana Receipt dated 25th July, 2012 (Ex.PW1/1) and Agreement to Sell and Purchase and separate Receipt dated 24th November, 2012 (Ex.PW1/2 and Ex.PW1/3).

4. Learned counsel for plaintiff states that as far as the payment of Rs.50,00,000/- (Rupees Fifty Lacs Only) made on 27th November, 2012 and Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lacs Only) made on 11th December, 2012 are concerned, the defendant had duly acknowledged the same by executing separate receipts in respect of said amounts on the back side of the first page of Agreement to Sell and Purchase dated 24th November, 2012 (Ex.PW1/2).

5. It is the plaintiff’s case that though the final date for execution of the sale documents was 05th December, 2012, it was extended from time to time and lastly it was extended on 13th May, 2013. When the defendant did not comply with the terms and conditions of the Agreement to Sell and Purchase, the plaintiff filed the present suit.

6. Since the defendant did not appear despite service of summons on 30th April, 2016, he was proceeded ex parte on 06th October, 2016.

7. Thereafter, defendant filed an application under Order IX Rule 7 of the Civil Procedure Code, 1908, for setting aside the ex parte order dated 06th October, 2016, which was allowed by a Coordinate Bench of this Court, vide order dated 03rd February, 2017, subject to cost of Rs.40,000/-.

8. However, the defendant did not pay the said cost and vide order dated 27th March 2017 the right of the defendant to file his written statement was closed and thereafter the defendant was proceeded ex parte on 19th February, 2019.

9. During the course of evidence, the plaintiff was examined as PW[1], who proved the Bayana Receipt dated 25th July, 2012 as Ex.PW1/1, which reflected the receipt of payment of Rs.50,00,000/- (Rupees Fifty Lacs Only) on 25th July, 2012, Rs.40,00,000/- (Rupees Forty Lacs Only) on 29th September, 2012 and Rs.30,00,000/- (Rupees Thirty Lacs Only) on 24th

10. The PW[1] also proved on record the documents Ex.PW1/2 and Ex.PW1/3 wherein the defendant had acknowledged the previous payment of Rs.50,00,000/- (Rupees Fifty Lacs Only) on 25th July, 2012, Rs.40,00,000/- (Rupees Forty Lacs Only) on 29th September, 2012, Rs.30,00,000/- (Rupees Thirty Lacs Only) on 24th Further, PW[1] proved the back page of the first page of Ex.PW1/2, which reflected payments of Rs.50,00,000/- (Rupees Fifty Lacs Only) on 27th November, 2012 and Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lacs Only) on 11th December, 2012, by the plaintiff to the defendant.

11. The PW[1] also proved the Legal Notice dated 17th September, 2015 which was served upon the defendant, but was not replied to. The PW[1] also relied upon the police complaints and Right to Information application and had proved the said documents as Ex.PW1/8 to Ex.PW1/10.

12. The plaintiff had also filed the evidence by way of affidavit of Mr. Raman Nandwani (PW[2]) and Mr. R.S. Kathuria (PW[3]).

13. PW[2] in its evidence affidavit stated that the plaintiff had paid Rs.50,00,000/- (Rupees Fifty Lacs Only) in cash on 27th November, 2012 and Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lacs Only) on 11th December, 2012 in his presence and in the presence of Mr. R.S. Kathuria (PW[3]). The relevant portion of the evidence affidavit of PW[2] is reproduced hereinbelow:- “5. That I say that thereafter, plaintiff further paid Rs.50,00,000/- (Rupees fifty lacs only) in cash on 27.11.2012 and 1,25,00,000/- (Rupees One crore twenty five lacs only) on 11.12.2012 in my presence and presence of R.S. Kathuria.”

14. PW[3] has in its evidence affidavit stated that the defendant had signed the Bayana Receipt dated 25th July, 2012, Agreement to Sell and November, 2012 and separate Receipt dated 24th November, 2012 in his presence as well as in the presence of other witnesses. The relevant portion of the evidence affidavit of PW[3] is reproduced hereinbelow: “7. That I say that the defendant had signed on bayana receipt dated 25.07.2012 which are already as Ex.PW1/1 and Agreement to sell and separate Receipt dated 24.11.2012 Ex.PW1/2 & Ex.PW1/3 in my presence as well as in presence of other witnesses after acknowledging the payment of Rs.50,00,000/received by him from the plaintiff on 25.07.2012 and I can identify the signature of plaintiff and defendant and one of the attesting witness namely Binny.” Kathuria.”

15. It is pertinent to mention that though the Agreement to Sell and November, 2012 had not been signed by the plaintiff, yet in terms of the judgment of the Coordinate Bench of this Court in M/s. Nanak Builders and Investors Pvt. Ltd. v. Sh. Vinod Kumar Alag, AIR 1991 Delhi 315, the Bayana Receipt dated 25th July, 2012 can be specifically enforced by the plaintiff.