Amarjit Singh Nagi Vs Radhakrishnan Construction and 2 Ors.

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909-S1796-11.DOC

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Agk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1796 OF 2011

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…Plaintiff

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Amarjit Singh Nagi…Plaintiff
Versus
Radhakrishnan Construction and others…Defendants

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Mr. Ketan Parekh, i/by K.R. Parekh & Co., for the Plaintiffs.
None for the Defendants.

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CORAM: G.S. PATEL, J DATED: 20th March 2014

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PC:-

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1.Today, the suit is listed for exparte decree. Although a writ of
summons has been issued and served, the defendants have not
entered appearance or filed their written statement. The suit was
thus transferred to the list of undefended suits and placed for an
exparte decree.

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2.An affidavit in lieu of examination in chief dated 6th
February 2014 has been filed. It is affirmed by one Mr. Amarjit
Singh Nagi. He is the plaintiff. Further examination in chief was
conducted and closed yesterday, i.e., 19th March 2014. The witness
deposed to the correctness of the contents of his evidence affidavit,
as also to the documents that have been separately compiled and

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handed in. The documents tendered by the plaintiff are marked
Exhibit “P1” (collectively) in evidence. The originals may be
returned to Mr. Parekh, learned advocate for the plaintiff, upon his
substituting the originals with photocopies.

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3.The plaintiff seeks a declaration that he is the absolute owner
of residential premises being Flat No. 501 on the 5th floor of Puja
Apartments, Plot No. 15, CTS No. 145 (Village Andheri),
Gulmohar Road No.1, Andheri (West), Mumbai – 400 049 and ad-
measuring 1450 square feet carpet area as also a car parking in that
building. The plaintiff is in possession of these premises.

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4.The defendants are builders and developers within the
meaning of the Maharashtra Ownership Flats Act. They
constructed the building now known as Puja Apartments some time
in the year 2000. The building is of stilts and seven upper floors. It
had seven newly constructed units. One of these is the suit
premises. It was agreed to be purchased by one A.C. Podar (HUF),
although no formal agreement was ever signed between the
defendants and that HUF. The A.C. Podar (HUF) did not make full
payment, nor did it obtain possession. The transaction between the
defendants and A.C. Podar (HUF) was cancelled. The defendants
then entered into a transaction with the plaintiffs for the very same
flat. The plaintiff was given a letter by the defendants evidencing
the cancellation of the previous transaction with A.C. Podar
(HUF).

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5.Having agreed to purchase the suit premises for a total
consideration of Rs. 1,12,00,000/-, the plaintiff first paid an

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amount of Rs.15 lakhs. By a letter dated 23rd November 2006, the
defendants demanded payment of the remaining Rs. 97 lakhs. The
plaintiff made payments from time-to-time in the aggregate amount
of Rs.65,75,000/- (in addition to the initial payment of Rs. 15
lakhs). The plaintiff obtained receipts. A total of Rs.1,05,95,000/-
has been paid by the plaintiff to the defendants. An amount of Rs.
6,05,000/- is due as payment against the price of the accompanying
garage/ parking space. The plaintiff is willing to deposit this
amount in this Court.

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6.Some time in December 2007, the plaintiff was put in
possession of the suit premises including the parking space. He has
been in uninterrupted possession of these premises and parking
space ever since.

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7.The plaintiff's case is that despite these payments and
despite the plaintiff having been placed in possession of both the
premises, the defendants have failed to execute the necessary
documents perfecting the plaintiff's title to the suit premises and
the parking space. The plaintiff, therefore, seeks a declaration that
he is the absolute owner of the suit premises and the parking space.

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8.I have heard Mr. Parekh, learned advocate for the plaintiff
and considered the material on record.

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9.There is no defence to the suit. It cannot be disputed that
aside from the amount of Rs. 6,05,000/-, the plaintiff has paid the
entire purchase consideration to the defendants. It is also not in
dispute that the plaintiff has been in possession of the suit premises

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and parking space for several years prior to the filing of the suit and
ever since, i.e., now for a period of about seven years.

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10.In my view, the plaintiff is entitled to a declaration as prayed.
As the plaintiff is also in possession of the parking space / garrage,
he is entitled to a declaration of ownership in respect of that also,
subject to his depositing the amount of Rs. 6,05,000/- in this
Court, and which the defendants shall be at liberty to withdraw at
any time, if they so desire, subject to some conditions.

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11.In these circumstances, there will be a decree in favour of the
plaintiff in terms of prayer clause (a), which reads as follows :

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“(a) that it be declared by this Hon'ble Court that the plaintiff is the absolute owner of the suit premises as more particularly described in Exhibit “A” hereto and that the defendants has no right, title and interest therein;”

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12.This decree shall operate as a conveyance in respect of the
residential flat, as also the parking space. The plaintiff may take
such steps as are necessary to have the decree registered and
stamped. The liability for payment of all duties shall that of the
plaintiff.

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13.The plaintiff shall, on or before 11th April 2014, deposit a
sum of Rs. 6,05,000/- with the Prothonotary and Senior Master
towards the balance amount due for the car parking space / garage.
The Prothonotary and Senior Master shall invest the amount in a
fixed deposit with any nationalized or scheduled bank at an optimal
rate of interest, initially for a period of one year and for like periods
thereafter.

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14.The defendants shall be at liberty to apply for withdrawal of
the said amount and accumulated interest without furnishing any
security. If no such application is made within a period of 24
months from the date of the deposit, the plaintiff shall be entitled to
withdraw the amount and accumulated interest, on the basis that
the defendants shall be then deemed to have waived or forfeited
their right to claim this amount.

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15.Decree be drawn up accordingly. Sealing of the decree is
dispensed with.

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(G. S. PATEL, J.)

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Amarjit Singh Nagi v. Radhakrishnan Construction and 2 Ors.

Case brief

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Amarjit Singh Nagi v. Radhakrishnan Construction and 2 Ors.

Case brief

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What the court decided

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