SUPRIO GHOSH Vs. EVA MARIA BOONSTRA

JUDGEMENT

(1.) The learned trial Court, decreed, the plaintiff's suit, for a recovery of a sum of Rs.7,28,000.00, against, the defendant along with interest at the rate of 6% per annum, from, the date of institution of the suit, till realization thereof, and, with the defendant being aggrieved therefrom, hence, has instituted the instant Regular First Appeal, before this Court.

(2.) Briefly stated the facts of the case are that, the plaintiff is a Dutch National with Passport No. 94699023. The plaintiff stood married to Shri Albertus Boonstra (Passport no.88738795). The plaintiff and her husband had visited India and had been staying at Sidhbari (Dharamshala). They had been in need of good residential accommodation. The defendant is stated to be owner-proprietor of house property in the area of Sokni-Da-Kot (Dharamshala). The defendant had agreed to provide/lease residential accommodation to the plaintiff and her husband for their lifetime. The plaintiff and her husband had paid a sum of Rs.6,50,000.00 to the defendant. The defendant was to complete construction sought to be leased on or before 15.12.2001. The plaintiff and her husband had been requested the defendant to complete the construction within the stipulated period. The defendant had informed the plaintiff that he would perform his part of the job within the stipulated period and the plaintiff and her husband need not worry. It had been averred that the defendant did not do the construction upto 15.12.2001. The plaintiff and her husband had requested the defendant to return the amount of Rs.6,50,000.00 to them. The defendant putting off the plaintiff and her husband on one pretext or the other. On 22.5.2002, the defendant had executed agreement Ex.PW1/D and had undertaken to pay the amount of Rs.6,50,000.00 to the plaintiff and her husband on or before 30.09.2002. In case the defendant did not pay the amount of Rs.6,50,000.00 on or before 30.09.2002, he had agreed to pay interest at the rate of 20% per annum, till payment thereof. The plaintiff and her husband had let for Germany during the end of May, 2002. In Nov., 2002, Shri Albertus Boonstra had died in Germany leaving behind the plaintiff as his sole legal heir. The plaintiffs pleads that the defendant did not pay the amount of Rs.6,50,000.00 to the plaintiff or her husband. The plaintiff was entitled to interest @20% per annum. However, the plaintiff had restricted her claim of interest @12% per annum. A sum of Rs.78,000.00 had accrued in favour of the plaintiff on account of interest from 22.5.2002 to 21.5.2003, and, hence the suit for recovery of Rs.7,28,000.00.

(3.) The defendant contested the suit and filed separate written statement, wherein, he has taken preliminary objections inter alia non joinder. He had denied the relationship of the plaintiff with Mr. Albertus Boonstra. The death in Nov., 2002 of Sh. Albertus Boonstra had also been denied. The plaintiff was not legal heir of Sh. Albertus Boonstra. She was also not a Dutch National. The plaintiff or Mr. Albertus Bonstra had not paid Rs.6,50,000.00 to the defendant. The defendant had not agreed to construct the house for the plaintiff or Mr. Albertus Boonstra for their live and possession thereof was not be delivered on or before 15.12.2001. The defendant had submitted that his father Shri B.K. Ghosh had been constructing a house. Much of the construction was complete when Mr. Albertus Boonstra had contacted him for hiring the house under construction. The plaintiff had figured nowhere during the negotiations for lease on rent for five years of the house by Sh. B.K. Ghosh in favour of Sh. Albertus Boonstra. The house required a sum of Rs.1 lac for completion. Shri Albertus Boonstra had suggested that he would pay Rs. One lac. Sh. Albertus Boonstra was stated doing construction work and had been knowing the job of electrical works and plumbing. Sh. Albertus Boonstra wanted expensive material like marble, granite and mosaic marble to be used in the house. He also wanted expensive electrical equipment in bathroom and kitchen. As per the negotiations, the expenditure over and above Rs. One lac was to be borne by Sh. Albertus. Sh. Albertus Boonstra was not to be charged rent for five years. The house stood completed in mid Jan., 2002. Shri Albertus Boonstra had taken possession of the house, having got the same completed with considerable modifications. However, after occupation of the house in Jan., 2002, Shri Albertus Boonstra had suddenly made up his mind to leave India, probably for health reasons. At that time, he had started pressurizing for payment of a sum of Rs. 6 lacs to him as the said amount was stated to have been spent for carrying out additional renovation and modifications etc. The defendant had not voluntarily executed agreement Ex.PW1/D, in favour of the plaintiff on 22.5.2002. Shri Albertus Boonstra had instituted a complaint of cheating, breach of trust and fraud against the defendant and his parents before the local police. The defendant and his father had been sent for by the local police. The local police had started shouting at the defendant and his father. They were sought to be booked in a case of breach of trust and fraud. The defendant and his father had denied having cheated Sh. Albertus Boonstra in any way. AT such stage, even the Superintendent of Police and Add. Superintendent of Police had reached the Police Station. They had entered into a discussion with other party. The defendant had been compelled to execute the agreement Ex.PW1/D. Immediately after the execution of the agreement, Sh. B.K. Ghosh had reported the matter to the Deputy Commissioner on 23.5.2002. The suit of the plaintiff was based on document Ex.PW1/D. Since, the defendant had not executed this document, the plaintiff was not entitled to any relief.