ILA GUPTA Vs. OM PRAKASH GUPTA

JUDGEMENT

(1.) The instant first appeal under Sec. 96, C.P.C. has been preferred by the plaintiff against judgment and decree dtd. 6/4/2013 passed by the Additional Civil Judge(Senior Division) Court No. 4, Ghaziabad in Original Suit No. 1485 of 2006 Dr. Ila Gupta v. Om Prakash Gupta and another, whereby the plaintiff 's suit for the main relief of declaration, permanent injunction and possession, regarding the flat No. 2-C/322, Sector 2-C, Vasundhara Scheme, Ghaziabad, has been dismissed.

(2.) The plaintiff- appellant filed a suit in the trial court with the averments that the defendant No. 1 Omprakash Gupta was her paternal uncle, she regarded him immensely and had full faith in him. The defendant No. 1 contacted her in the month of January, 2005 and informed her that the defendant No. 2 Uttar Pradesh Awas Evam Vikas Parishad had constructed in Vasundhara Scheme, Ghaziabad duplex houses of high income category (HIG), which were semi-finished, which were available for allotment and if, she desired, then she can apply for allotment for a house in the above scheme. Since, she was busy in her medical profession and was unable to spare time to move an application for allotment in the above scheme, as such, she requested the defendant No. 1 to move an application for allotment of house in the above scheme on her behalf, which was accepted by the defendant No. 1. Since she trusted defendant No. 1 immensely, she accepted the proposal of defendant No. 1 and as such, consented that defendant No. 1 may make an application for allotment of house in the above scheme on her behalf, in his own name. It is also the case of the plaintiff that being her real paternal uncle, the defendant No. 1 was in a fiduciary capacity. Thereafter, the defendant No. 1, for the benefit of plaintiff, moved an application number 1348 on 23/1/2009 for allotment of HIG, semi-finished duplex house in the above scheme, by making an application in the office of defendant No. 2, accompanied by registration amount of Rs.85,000.00 paid by draft No. 035788 dtd. 23/1/2005, drawn on Canara Bank, Vivek Vihar, New Delhi. The amount of Rs.85,000.00 and the commission of demand draft of Rs.192.00 was paid from the bank account No. 26547 of the plaintiff.

(3.) It is the case of the plaintiff that, the defendant No. 2 vide letter No. 1323 dtd. 23/2/2005 intimated defendant No. 1 that, he had been allotted the above house, having estimated cost of 16.90 lakhs and 50% of that cost amounting to 7.60 lakhs was to be deposited by 30/4/2005. Thereafter, the plaintiff got issued a demand draft No. 8077363 of 7.60 lakh dtd. 2/4/2005 drawn on Canara Bank, Vivek Vihar, Delhi, in favour of defendant No. 2. The demand draft was issued from the savings bank account No. 26547 of the plaintiff and the commission of rupees Rs.1,673.00 was also debited from the above bank account. The bank draft of 7.60 lakhs was given to the defendant No. 1, who deposited it on 28/4/2005 in the Ghaziabad office of the defendant No. 2. Thereafter, on 17/11/2005 the office of the defendant No. 2 informed vide letter No. 11203, that house number 2-C/322, Sector 2-C, Vasundhara, Ghaziabad had been allotted.