S.N.F.LEASING And INVESTMENT CO.(P)LTD vs TRI MURTI ESTATE(P)LTD

THIS complaint has been filed by M/s. S.N.F. Leasing & Investment Co. (P) Ltd. against M/s. Tri Murti Estate (P) Ltd. of 30/3 Community Centre, East of Kailash, New Delhi. The brief facts of the case are that the claimant company was interested to purchase one flat at C-30, Friends Colony, New Delhi and the Directors of the respondent company informed the complainant that they had valid plans for construction of various units and that one unit bearing No. S-2 in the said building shall be given to the complainant in case they deposit a sum of rupees one lac as part payment with the respondent company. The applicant paid a sum of rupees one lac through cheque No. 627478 drawn on Syndicate Bank as part payment in the said unit. The respondent encashed the said cheque It is alleged by the complainant that the respondent company was aware that they had no approved plan for developing unit S-2 and that they had given wrong assurance with the intention of taking money from the complainant. The respondents were called upon to refund the said amount alongwith damages and notice charges in the sum of Rs. 550/- and also interest @ 24% p.a. but the respondent inspite of having received a notice dated 12.6.91, failed to pay the amount. It was also alleged by the complainant that the existing structure at the site was in violation of the building bye-laws and was not in accordance with the approved plan. The complainant has claimed a sum of Rs. 2,07,000/- as relief.

THE respondent, in the written statement, has denied the allegations. THEy, however, stated that one Shri Subhash Chand Bajaj had handed over a cheque for rupees one lac as loan to the respondent company. That Sh. Bajaj was a broker and that one flat was booked by Sh. Triveni Tikmani and Mrs. Kusum Tikmani with their address as 204, Padma Palace, 86, Nehru Place, New Delhi through the said Sh. S.C. Bajaj - a broker. That subsequently the said flat was cancelled by the above said party and they claimed refund of the earnest money. That the respondent company was represented by Sh. Subhash Bajaj who was running the firm namely M/s. Bajaj Financial Consultants at 1206, Surya Kiran, 19, Kasturba Gandhi Marg, New Delhi and that M/s. SNF Leasing & Investment Company (P) Ltd. also belongs to Sh. Bajaj. That at the request of Sh. Bajaj an amount of rupees one lac was given to him. THE respondent also stated that there was no agreement between the parties for sale and purchase of any flat and it was denied that any amount was paid as part payment for unit S-2 in property No. C-30, Friends Colony, New Delhi. THE respondent company had, however, entered into agreement to sell one flat to Mr. Triveni Tikmani and Mrs. Kusum Tikmani who had paid their earnest money to the tune of Rs. 1,10,000/- on 22.12.89. This agreement to sell was cancelled between the parties. It was further stated by the respondent company that the cheque mentioned in the complaint was paid to the respondent company as loan by Mr. Bajaj and that the same amount of rupees one lac has been refunded to Shri Subhash Bajaj. THEy denied that the respondent company had not got approved plan of the property at C-30, Friends Colony, New Delhi. THEy submitted that construction at the said address has been made as per sanctioned plan and that a completion certificate had also been issued by the appropriate authorities. THE respondent stated that in view of the above said version they were not liable to pay the claim of Rs. 2,07,000/- being a false and frivolous claim. In support of their claim the petitioner submitted an affidavit of one Sh. Manoj Fatehpuria who was one. of the Directors of the complainant firm of M/s. SNF Leasing & Investment Company (P) Ltd. In this affidavit the deponent Sh. Manoj Fatehpuria has verified the pleas made in the complaint. He has repeated the issuance of cheque No. 627478 for Rs. 2,00,000/- drawn on Syndicate Bank of India. THEre is an undated receipt on the pad of Trimurti Estates (P) Ltd. which also mentions about the receipt of said cheque. It is, however, not stated as to who actually issued the receipt and for what purpose the said cheque was issued. THEre is no contract or written agreement on record which could throw light on the version of claimants and or the respondents. On behalf of the respondents an affidavit was submitted by one Sh. Roop Chand Bajaj, Managing Director of respondent company He states that one cheque for rupees one lac was given to the respondent company for booking of a flat by Sh. Triveni Tikmani and Mrs. Kusum Tikmani with their address as 204, Padam Palace, Nehru Palace, New Delhi through Sh. Subhash Bajaj and that lateron the said flat was cancelled and the said party claimed back the earnest money. In this affidavit he, however, does not state as to whether the said amount was refunded to the relevant claimants. It is rather stated that the amount was returned to Sh. Bajaj. At the end of Para 2 of their affidavit the respondent states that the said cheque was paid to the respondent company as loan by Sh. Subhash Bajaj representing himself to be the owner of the said company and that the amount of rupees one lac has been refunded to Sh. Subhash Bajaj.

We have heard the parties at length and also examined the records. The respondent admits about the receipt of cheque of rupees one lac for the booking of a flat but he denies that the flat was for the claimant company he rather states that the flat was booked through Sh. Subhash Bajaj for a different party named Sh. Triveni Tikmani and Mrs. Kusum Tikmani. Under para 1 of their affidavit a payment of rupees one lac has been stated to have been made to Sh. Subhash Bajaj but under Para 3 of the said affidavit the amount refunded to Sh. Subhash Bajaj has been stated to be rupees one lac and ten thousand. There is thus a glaring self contradiction in the affidavit of the respondent who claims to be the Managing Director of respondent company. He has also claimed that construction at the disputed place C-30, Friends Colony had been done as per sanctioned plans and that a completion certificate has also been received but no such saiictioned plans or the certificate was placed before the Commission to authenticate and support their version on the contrary the claimants have placed on record a certificate dated 23.4.92 from the Syndicate Bank, Nehru Place Branch that the Cheque No. 627478 for rupees one lac in favour of M/s. Tri Murti Estate has been debited and paid from C.A. No. 1314 of M/s. S.N.F. Leasing & Investment Co.(P) Ltd. on 28.12.89 as per their records. Had the respondent paid back the sum of rupees one lac received by him vide Cheque No. 627478 to the plaintiff company. It is not understood as to why he could not place his relevant account books before the Commission and or at least mention the mode of refund of the said amount and or the Cheque No. etc. in support of his version.

IN the light of the above discussed facts it can be safely concluded that the respondent company has not come up with clean hands and has suppressed the facts with ulterior motive. On the other hand the version of the application company is supported from their affidavits and documents submitted and relied by them. We, therefore, partly accept the claim of the plaintiff and order the respondent company to pay back a sum of rupees one lac received by them through cheque No. 627478 alongwith interest @ 15% p.a. from the date of encashment of the said cheque upto the date of complaint which comes to Rs. 1,37,750/- (rupees one lac thirty seven thousand seven hundred and fifty only) and a further interest of 15% p.a. on this decretal amount upto the date of actual payment. The above element of interest covers claim of damages made by the complainant in the facts and circumstances of the case. The parties shall bear their own cost. Complaint allowed.