DAMYANTI DEVI Vs. VIPUL INFRASTRUCTURE DEVELOPERS LTD.

JUDGEMENT

(1.) The plaintiff, on 19th November, 2007 instituted this suit for specific performance of contract, against (a) Vipul Infrastructure Developers Ltd. (Vipul); (b) Orchid Infrastructure Developer Ltd. (Orchid); and, (c) Delhi Development Authority (DDA), pleading (i) in the beginning of the year 2005 it was represented to the plaintiff that Vipul had purchased property No.6, Aurobindo Marg and was in the process of developing the same into a residential complex comprising of flats on various floors and was desirous of selling the flats in the said project; copies of the plans showing the Lay Out and Level Plans were also handed over to the plaintiff; (ii) the plaintiff, on 31st March, 2005 verbally agreed to purchase and Vipul verbally agreed to sell flat No.D-7 situated in Tower "B " measuring 4220 sq. ft. of property No.6, Aurobindo Marg @ Rs.4,100/- per sq. ft., with total sale consideration being calculated at the time of handing over of possession, as there was a possibility of 2 to 3 % variation in the area during the course of construction; a cheque dated 31st March, 2005 for Rs.5 lakhs towards part sale consideration was delivered by the plaintiff to Vipul for which Vipul issued receipt dated 4th April, 2005; (iii) the plaintiff, against receipt dated 28th October, 2005 made a further payment of Rs.15 lakhs to Vipul; both the cheques were encashed; (iv) the balance payment was to be made on receipt of demand from Vipul, based on the progress of the construction of the project; (v) the plaintiff, from time to time approached Vipul to find out the progress of the project and the balance payment and was assured that as and when any further amount was due, plaintiff shall be informed; (vi) on not getting a positive response for about six months, the plaintiff became suspicious and on making enquiry learnt that Vipul had sold the project to Orchid; (vii) on the plaintiff confronting Vipul, the plaintiff was assured that Vipul and Orchid were partners in various projects and there was a division between the two and the project in question had come to the share of Orchid, who would be completing the same and in fact Orchid demanded further payment of Rs.15 lakhs from the plaintiff which the plaintiff made vide cheque dated 6th May, 2006 from the account of her grandson which was however not encashed; (viii) the plaintiff again did not hear anything for 3-4 months and in the meanwhile certain amount was demanded in cash and since the plaintiff was not willing to make any cash payment, a sum of Rs.24 lakhs was taken in the name of one company namely Marudhara Pvt. Ltd. and a sum of Rs.21 lakhs was taken in the name of another agent of Vipul; however subsequently the said amounts were refunded by the said agents; (ix) the plaintiff, served a legal notice dated 6th March, 2007 upon Vipul and Orchid and their agents; (x) the plaintiff, on making further enquiry learnt that only 19 flats were to be constructed on the land for the benefit of 19 persons who were the owners of the said land, as per a Scheme approved by the Supreme Court of India, showing the transaction entered into with the plaintiff to be fraudulent; and, (xi) that out of the total agreed sale consideration of Rs.1,73,02,000/-, the plaintiff has paid part sale consideration of Rs.20 lakhs and is ready and has been ready and willing to perform her part of the contract. On the said pleas, reliefs, of (i) specific performance by directing Vipul and Orchid to transfer title and possession of Flat No.D-7 in Tower "B " situated at 6, Aurobindo Marg, New Delhi measuring 4220 sq. ft. in favour of the plaintiff against receipt of balance sale consideration and in the alternative, (ii) decree for determination of damages and for refund of Rs.20 lakhs, with interest, are claimed.

(2.) The suit came up first before this Court on 20th November, 2007 and thereafter on 29th November, 2007, when summons thereof were ordered to be issued. Orchid and DDA filed their separate written statements. Vipul, on 15th February, 2010 was ordered to be proceeded against ex parte and though applied for setting aside the order proceeding ex parte, but the said application was dismissed vide order dated 7th March, 2012. Vipul preferred FAO(OS) No.201/2012 against the order of dismissal of its application for setting aside of the ex parte but withdrew the same on 16th May, 2012, stating that it would join the proceedings in the suit.

(3.) On the pleadings of the plaintiff, Vipul, Orchid and DDA, vide order dated 4th October, 2012, the following issues were framed in the suit:--