DELHI STATE INDUSTRIAL & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED Vs. M/S. INDIAN DIAMOND INDUSTRY & ORS.

JUDGEMENT

(1.) This Regular First Appeal under Sec. 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree of the trial Court dated 31.10.2009. The appeal is filed by defendant No.2 in the suit and which entity allotted the subject plot No.83, Sector B, Pocket -E, Bawana Indl. Complex, Delhi to the plaintiff No.1/respondent No.1 which is a sole proprietorship concern of the plaintiff No.2, now represented by his legal heirs/respondent Nos.2(1) to 2(6). Respondent No.3/Delhi Financial Corporation (DFC) was defendant No.1 in the suit. Defendant No.1/respondent No.3 did not file any written statement in spite of many opportunities and therefore its defence was struck of in the trial Court. The appellant/defendant No.2 though filed its written statement yet led no evidence. The position therefore which emerged in the trial Court was that while plaintiffs/respondent Nos.1 and 2 led evidence, there was no evidence led on behalf of the defendants including the appellant/defendant No.2.

(2.) The facts of the case are that the original plaintiffs were allotted the subject plot vide allotment letter dated 23.10.2010 issued by the appellant/defendant No.2. The plaintiffs, pursuant to the allotment, paid an initial sum of Rs.15,000/ -. The plaintiffs thereafter deposited further amount of Rs.45,000/ - at the time of depositing the application and also deposited the sum of Rs.75,800/ - on 20.6.2000 making a total deposit of Rs.1,35,800/ -. The plaintiffs had to deposit a sum of Rs.2,05,000/ - and therefore it entered into a mortgage agreement with the respondent No.3/defendant No.1/DFC. The mortgage deed dated 8.10.2001 was signed between plaintiffs and the respondent No.3 whereupon the respondent No.3 paid a sum of Rs.2,05,000/ - to the appellant/defendant No.2. The plaintiffs therefore accordingly deposited 50% of the amount with the appellant. The case of the plaintiffs was that respondent No.3 had agreed to sanction Rs.13,35,000/ - to the plaintiffs as loan out of which Rs.4,42,000/ - was to be used for the purpose of purchase of the plot i.e. payment to the appellant. The plaintiffs surprisingly and to their shock came to know that the appellant/defendant No.2 had refunded an amount of Rs.2,05,000/ - alongwith an amount of Rs.1,35,000/ - deposited by the plaintiffs from his own source to the respondent No.3/defendant No.1 and also cancelled the allotment of plot made to the plaintiffs vide letter dated 15.12.2003. All these actions took place without any show cause notice to the plaintiffs and without any fault of the plaintiffs and consequently the plaintiffs filed the subject suit for declaration for declaring the cancellation letter dated 15.12.2003 of the appellant as illegal. A mandatory injunction was also prayed to restore the allotment of the plot to the plaintiffs. It was also prayed that the respondent No.3/defendant No.1 be directed to deposit back the amount received by it from the appellant/defendant No.2.

(3.) The appellant/defendant No.2 filed its written statement and basically stated that the amount was refunded by it to the respondent No.3/defendant No.1 on account of supposed failure of the plaintiffs to comply with the terms and conditions of the loan agreement and because the respondent No.3 had intimated to the appellant to refund the amount. It was claimed that plaintiffs were intimated vide letter dated 14.7.2003 and was required to show cause, and thereafter the amount of Rs.3,12,858/ - was refunded to the defendant No.1/respondent No.3.