Bangalore District CourtSmt.Rekha Hiremath vs M/S.Tgs Constructions Pvt. Ltd on 3 February, 2020O.S.No.928/2018\n                              1\n\n     IN THE COURT OF LXVII ADDL CITY CIVIL AND\n    SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)\n\n                       PRESENT\n          SRI.K.SUBRAMANYA, B.Com., LL.M.\n      LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,\n                     BENGALURU.\n\n        Dated this the 3 rd day of February 2020.\n                   O.S.No.928/2018\n\nPLAINTIFF :           Smt.Rekha Hiremath,\n                      W/o.Mallikarjun Hiremath,\n                      38 years,\n                      R/at.Flat No.T-2, 3rd Floor,\n                      S.L.V.Nest 2nd Main Road,\n                      Coconut Garden,\n                      Nagarabhavi Main Road,\n                      Bengaluru.\n[\n                      (By Sri.H.M., Advocate)\n\n                       .Vs.\nDEFENDANTS :          1. M/s.TGS Constructions Pvt. Ltd.,\n                         A Company registered and\n                         incorporated under theCompanies Act.\n                         Office at No.L-142, 5th Avenue,\n                         Ground Floor, 5th Main Road,\n                          6th Sector, HSR Layout,\n                          Bengaluru.\n                          Rep. by its Managing Director,\n                          Dr.Mandeep Kour.\n\n                      2. Sri.Mandeep Kour,\n                         S/o.Harjith Singh.\n                        O.S.No.928/2018\n     2\n\n3. Sri.Jasdeep Singh,\n   S/o.Harjith Singh.\n   Defendant Nos.2 and 3 are the\n   Directors of defendant No.1.\n   R/at.No.12-70/6,\n   2nd 'B' Main Road,\n   Kempanna Layout,\n   Hulimavu, Bannerghatta Road,\n   Bengaluru.\n\n4. Sri.Dileep Singh,\n   Director.\n\n5. Sri.Kushal,\n   Director.\n\n6. Sri.Buddam Sudhakar,\n   Director.\n    Defendant Nos.4 to 6 are the\n    Directors of the defendant No.1.\n    No.L-142, 5th Avenue,\n    Ground Floor, 5th Main Road,\n    6th Sector, HSR Layout,\n    Bengaluru.\n\n7. Sri.Sachin Nayak @\n   Sumanthkumar Das @ Yogesh,\n   S/o.Late Vasanth Nayak @ Deenanath,\n   37 years,\n   R/at.No.974, 4th Cross,\n   2nd Main Road, 1st 'A' Block,\n   Kothanur Dinne,\n   Jambusavari Layout,\n   J.P.Nagar 8th Stage,\n   Bengaluru.\n\n(Defendant Nos.1 to 7 - Exparte)\n                                                  O.S.No.928/2018\n                                 3\n\n Date of institution of suit :                2.02.2018\n Nature of Suit :                             Money Suit\n Date of commencement of                      20.12.2019\n evidence :\n Date on which the judgment is                3.02.2020\n pronounced:\n Duration taken for disposal :       Year/s    Month/s     Day/s\n                                      02         00         01\n\n\n                           (K.SUBRAMANYA)\n                LXVII Addl.City Civil and Sessions Judge,\n                             BENGALURU.\n\n\n                         JU DG M E NT\n      The plaintiff has filed this suit under Order VII Rule 1\nr/w.Section 26of C.P.C., praying the court to direct the\ndefendants to pay a sum of Rs.7,78,400/- together with\ninterest at 8% per annum, from the date of suit till realization\nand also costs of the suit.\n\n2.     The plaint averments in brief are as under:\n\n        The defendant No.1 is the Private Limited Company\nregistered under the provisions of theCompanies Act, 1956having its Registered Office at HSR Layout, Bengaluru. The\ndefendant Nos.2 to 7 are the Directors of the defendant No.1\ncompany.\n                                               O.S.No.928/2018\n                               4\n\n The defendants have issued a paper publication inviting\napplications from the public, who are aspirants to own a\nresidential plots in and around Bengaluru and they have\npublished that they are the owners of the land bearing survey\nNo.86/P-P3 measuring 2 acres of land, situated at Kodigehalli\nVillage, Yeshwanthpur Hobli, Bengaluru North Taluk and they\nare forming a layout in the said land.       The said land is\navailable by way of house sites to the public. The defendants\nhave assured that the layout will be developed in all respects\nwith all civic amenities. On readover the advertisement, the\nplaintiff had approached the defendants and expressed her\nwillingness to purchase the plot and the price has been\nnegotiated between the plaintiff and defendants for valuable\nconsideration of Rs.15,15,000/-. The plaintiff had agreed to\npurchase the plot as offered by the defendants.\n\n        The defendants have executed a Memorandum of\nUnderstanding, dated:1.08.2016 agreed to allot the plot\nmeasuring 1200 sq. feet to the plaintiff and the said project is\nknown as "TGS Bhagyalakshmi".         The said layout is fully\ndeveloped under the aforesaid name and hence, the plaintiff\nhas paid a sum of Rs.6,95,000/- by way of RTGS to the\ndefendants from her account.          The defendants having\nacknowledged the receipt of the said amount from the\nplaintiff, have executed a Memorandum of Understanding in\nfavour of the plaintiff.   As per the said Memorandum of\n                                                 O.S.No.928/2018\n                                 5\n\nUnderstanding, the defendants have agreed and assured that\nthe plot will be allotted within 14 months from the date of\nbooking and any rate not later than 20 months from the date\nof Memorandum of Understanding.            The defendants have\nfurther agreed that in the event of their failure to allot the\nplaintiff within 20 months as agreed, they have agreed to\nrefund the entire amount they received together with interest\nat 8% per annum within 90 days upon expiry of 20 months.\nThe defendants were not able to form the layout, were not\nable to allot the plot in favour of the plaintiff as assured.\n\n      Finally, the plaintiff had approached the defendants on\nseveral occasions and requested them to allot the plot as per\nthe Memorandum of Understanding. However, there is no\nresponse from the defendants either for allotment of plot or\nfor refund of the advance amount paid by the plaintiff. The\nplaintiff having doubted the bonafides of the defendants, has\nissued the legal notice, dated:19.06.2017 calling upon the\ndefendants to cancel the Memorandum of Understanding,\ndated:1.08.2016 and requested them to refund the advance\namount of Rs.6,95,000/-, which was paid by the plaintiff on\n1.08.2016. The said legal notice was returned unserved as\n"left".   Thereafter, the plaintiff had approached Madiwala\nPolice and lodged the complaint in Crime No.103/2017 for the\noffence underSections 406,409,420and120(B)of IPC and\nthe criminal case is pending consideration.O.S.No.928/20186In spite of receiving a sum of Rs.6,95,000/- from the\nplaintiff, the defendants have neither allotted the site as per\nthe Memorandum of Understanding, dated:1.08.2016 nor\nrefund the said amount. Hence, the plaintiff was constrained\nto file this suit against the defendants seeking the aforesaid\nrelief.3.        The suit summons was issued to the defendant was\nreturned unserved. Hence, the paper publication was issued\nunderOrder V Rule 20 of C.P.C. In spite of it, the defendants\nhave failed to appear before the court and hence, they were\nplaced exparte.4.    The plaintiff came to be examined herself as P.W.1 and\ngot marked the documents Exs.P.1 to 10.5.    Heard the arguments of the learned counsel for plaintiff.\nThe learned counsel for plaintiff has also submitted his\nwritten arguments.6.         The point that arise for my consideration are as under:(1) Whether the plaintiff proves that she has paid\n            an advance amount of Rs.6,95,000/- to the\n            defendants and the defendants have failed to\n            allot the plot as per M.O.U., and failed to\n            refund the amount, as agreed ?(2) Whether the plaintiff is entitled for recovery of\n          the amount as claimed in the plaint ?\n      (3) What Order or Decree ?O.S.No.928/201877.   My findings to the above points are as under:POINT No.1 - In the Affirmative,\n            POINT No.2 - In the Affirmative,\n            POINT No.3 - As per the final order,\nfor the following :R E A SON S8.   POINT No.1 :     The plaintiff (P.W.1) has filed an affidavit\nunderOrder XVIII Rule 4 of C.P.C., and reiterated the facts\nstated in the affidavit. The plaintiff has contended that the\ndefendant No.1 is the Private Limited Company registered\nunder the provisions of theCompanies Act, 1956having its\nRegistered Office at HSR Layout, Bengaluru. The defendant\nNos.2 to 7 are the Directors of the defendant No.1 company.\nThe defendants have issued a paper publication inviting\napplications from the public, who are aspirants to own a\nresidential plots in and around Bengaluru and they have\npublished that they are the owners of the land bearing survey\nNo.86/P-P3 measuring 2 acres of land, situated at Kodigehalli\nVillage, Yeshwanthpur Hobli, Bengaluru North Taluk and they\nare forming a layout in the said land.          The said land is\navailable by way of house sites to the public. The defendants\nhave assured that the layout will be developed in all respects\nwith all civic amenities.    It is further contended that, on\nreadover   the   advertisement,     she   had   approached    the\ndefendants and expressed her willingness to purchase the\n                                                O.S.No.928/20188plot and the price has been negotiated between herself and\ndefendants for valuable consideration of Rs.15,15,000/- and\nshe had agreed to purchase the plot as offered by the\ndefendants.The defendants have executed a Memorandum of\nUnderstanding, dated:1.08.2016 agreed to allot the plot\nmeasuring 1200 sq. feet to her and the said project is known\nas "TGS Bhagyalakshmi". The said layout is fully developed\nunder the aforesaid name and hence, she has paid a sum of\nRs.6,95,000/- by way of RTGS to the defendants from her\naccount. The defendants having acknowledged the receipt of\nthe   said    amount,   have   executed    a   Memorandum   of\nUnderstanding in her favour. As per the said Memorandum\nof Understanding, the defendants have agreed and assured\nthat the plot will be allotted within 14 months from the date\nof booking and any rate not later than 20 months from the\ndate of Memorandum of Understanding. The defendants have\nfurther agreed that in the event of their failure to allot the\nplaintiff within 20 months as agreed, they have agreed to\nrefund the entire amount they received together with interest\nat 8% per annum within 90 days upon expiry of 20 months.\nThe defendants were not able to form the layout, were not\nable to allot the plot in favour of her as assured.Finally, she had approached the defendants on several\n                                                               O.S.No.928/20189occasions and requested them to allot the plot as per the\nMemorandum               of   Understanding.      However,       there   is   no\nresponse from the defendants either for allotment of plot or\nfor refund of the advance amount paid by her. She is having\ndoubted the bonafides of the defendants, has issued the legal\nnotice, dated:19.06.2017 calling upon the defendants to\ncancel the Memorandum of Understanding, dated:1.08.2016\nand requested them to refund the advance amount of\nRs.6,95,000/-, which was paid by the plaintiff on 1.08.2016.\nThe said legal notice was returned unserved as "left".\nThereafter, she had approached Madiwala Police and lodged\nthe complaint in Crime No.103/2017 for the offence underSections 406,409,420and120(B)of IPC and the criminal\ncase is pending consideration. In spite of receiving a sum of\nRs.6,95,000/- from her, the defendants have neither allotted\nthe      site    as     per    the     Memorandum        of    Understanding,\ndated:1.08.2016 nor refund the said amount.9.        In support of her case, the plaintiff has relied upon the\ndocumentary evidence marked in 'P' series such as Receipt,\nLetter      of        plaintiff,     dated:19.08.2016,    Memorandum          of\nUnderstanding, Bank Account Statement info., Copy of legal\nnotice, Postal Receipt, Returned RPAD Cover, Certified copy of\nRegistration Certificate, Certified copy of FIR and Copy of\ncomplaint.O.S.No.928/20181010.     The primary documentary evidence is relied underSections\n62to65of Indian Evidence Act. On perusal of the documents, it is\nclear that the defendants TGS Constructions Pvt. Ltd., has offered\nto allot sites and the plaintiff intended to purchase the same under\nproposed project i.e., TGS Bhagyalakshmi, situated at Kodigehalli,\nBengaluru.         As per the Memorandum of Understanding, the\nplaintiff    has    deposited     amount   of   Rs.6,95,000/-,   but   the\ndefendants have failed to allot the plot and made repayment as\nagreed with interest.        Therefore, there is violation and breach of\ncontract      and    terms    &    conditions      of   Memorandum      of\nUnderstanding.         The defendants remained exparte and not\nsubjected the plaintiff/PW.1 to cross examination so as to place\nrebuttal evidence.      Therefore, the unrebutted and unchallenged\ntestimony of P.W.1 remains on record for appreciation in favour of\nthe plaintiff's case. The defendant Nos.2 to 7 being the Directors of\nthe defendant No.1 company are jointly and severally liable to pay\nthe suit claim of the plaintiff. Hence, I answer the Point Nos.1 and\n2 in the Affirmative.11.         POINT No.3: My finding on this point is as per the\nfollowing :O R DE R\n       The suit of the plaintiff is decreed with costs.The defendant Nos.1 to 7 are jointly and severally liable to\npay the suit claim amount of Rs.7,78,400/- together with\n                                                      O.S.No.928/201811interest at the rate of 6% per annum from the date of suit till\nrealization, as perSection 34of C.P.C.,\n\n      Draw decree accordingly.(Dictated to the Judgment-writer, transcript thereof is corrected and then\npronounced by me in the open court on this the 3rd day of February 2020)\n\n\n\n\n                           (K.SUBRAMANYA)\n                LXVII Addl.City Civil and Sessions Judge,\n                             BENGALURU.SCHEDULE "A" PROPERTY\n     All that piece and parcel of the property bearing survey\nNo.86/P-P3, measuring 2-00 acres, situated at Kodigehalli\nVillage,   Yeshwanthpur        Hobli,    Bengaluru      North     Taluk,\nBengaluru and bounded on :East by :        Property belonging to Narasimhaiah;West by :        Government Road ;\n      North by :       Property belongs to Lakshminarasimhaiah;\n      South by :       Channappa.\n\n\n                   SCHEDULE "B" PROPERTYAll that piece and parcel of the plot measuring 1200 sq.\nfeet in the proposed Project known as "TGS Bhagyalakshmi"\nto be developed in the schedule 'A' property.O.S.No.928/201812A NN E X U R E1. WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:P.W.1     Rekha Hiremath2. DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:Ex.P.1    Receipt\n   Ex.P.2    Letter of plaintiff, dated:19.08.2016.\n   Ex.P.3    Memorandum of Understanding\n   Ex.P.4    Bank Account Statement info.\n   Ex.P.5    Copy of legal notice\n   Ex.P.6    Postal Receipt\n   Ex.P.7    Returned RPAD Cover\n   Ex.P.8    Certified copy of Registration Certificate\n   Ex.P.9    Certified copy of FIR\n   Ex.P.10   Copy of complaint3.WITNESSES EXAMINED AND THE DOCUMENTS MARKED IN\n     FAVOUR OF THE DEFENDANTS :-- NIL --(K.SUBRAMANYA)\n             LXVII Addl.City Civil and Sessions Judge,\n                          BENGALURU.