LAWS(DLH)-2006-3-234

MOHINI MEHARA Vs. MALIBU ESTATE PVT LTD

Decided On March 24, 2006
MOHINI MEHRA Appellant
V/S
MALIBU ESTATE (PVT.) LTD. Respondents

JUDGEMENT

(1.) An usual and a stock plea of wrong noting of the date in the case diary and on the file cover set up as a defence to show sufficient cause for non-appearance on a date of hearing which led to the passing of ex parte decree is under judicial scanning in this appeal before us.

(2.) The appellant has got this appeal argued through her husband whom she appointed as her Attorney for the purpose. The appellant's Attorney has demolished the stand of the respondent bit by bit and has established that the respondent had set up a frivolous plea of wrong noting of date in the case diary as a ground for setting aside the ex parte decree against it. In order to appreciate the contentions of the appellant, it would be necessary for us to detail out the brief background of the case which led to the filing of this appeal. The factual matrix of the case is as follows: -

(3.) The appellant on 7.2.1996 had entered into an agreement with the respondent for purchasing an apartment bearing No.6/G-02 (Tower No.6 & Flat No.2 on G.F.) in Malibu Town, Gurgaon, Haryana. Under the terms of the Agreement, the respondent was required to hand over possession of the flat in question to the appellant within 3A1/2 years from the date of booking, i.e., on or before 7.8.1999. Though the appellant had paid the entire sale consideration of the flat amounting to Rs. 18,70,740/-, but the respondent failed to honour its commitment. When the appellant pressed for possession of the flat, the respondent offered an alternative flat in Tower No.6 but the proposal for alternative flat given by the respondent was not accepted by the appellant. The appellant ultimately opted for refund of the money paid by him to the respondent towards sale consideration and vide demand notice dated 12.3.2002 called upon the respondent to return the entire sale consideration amounting to Rs.18,70,740/- along with interest thereon. In reply to the legal notice, the respondent did not dispute the execution of the Agreement and the terms and conditions contained therein. Since the respondent failed to return the amount received by it from the appellant, the appellant filed a suit for recovery of Rs.35,54,406/- against the respondent on 21.10.2002 and this amount was inclusive of interest tilI that date.