TMI Blog2008 (12) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... . Certain other reliefs are also prayed for. 3. Before arguments were addressed on these applications, statement of Mr. Raj Singh Gehlot, Principal Officer and Director of the defendant was recorded in the Court on 16th September, 2008. 4. The two letters dated 8th September, 2004 and 29th October, 2005 are admitted documents. Mr. Raj Singh Gehlot has admitted the said documents in his statement recorded on 16th September, 2008 and they have been given Mark 'A' and 'D'. 5. By letter dated 8th September, 2004, plaintiff was informed by the defendant that they were pleased to allot shop No. G-79, (measuring 65.31 mts super area) on the ground floor under the installment payment plan. The allotment letter states as under: ...we are pleased to allot you Retail Shop No. G-79, having approximately 65.31 sq.mtrs. (703.03 sq.ft) of Super Area of space on Ground Floor under Installment Payment Plan as per enclosed Payment Plan. Kindly note that the above allotment is subject to your execution of the Commercial Space Buyers' Agreement on Company's standard format, contents of which have been explained and understood by you and your compliance of all the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant had executed two receipts given mark G and H dated 26th November, 2005 for ₹ 25,50,219/- and ₹ 30,75,329/-. Even if there was delay of 7 days in payment of ₹ 17,00,145/-, the said payment was accepted and receipt issued without protest or reservations. There is admittedly no communication of the defendant for this delay of 7 days in payment or any letter asking for interest. Thus there is no dispute about payment of ₹ 63,75,548/- out of total payment of ₹ 88,58,509/- 9. Along with the said letter dated 29th October, 2005, the defendant had enclosed an updated payment plan, Mark 'E' for further payments after the said date. As per the said plan two installments of ₹ 6,37,555/- each were payable 3rd December, 2005 and 3rd March, 2005 and the third installment of ₹ 9,95,330/- was payable on 3rd June, 2006. No date was fixed for payment of the last and balance installment of ₹ 2,12,518/- plus registration charges but Mark E stipulated that this amount to equal 2.5% of the price was payable on receipt of the occupation certificate. 10. As per the plaintiff she has made payment of the three installments as per chart given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for cancellation shall attract a penal interest of 18% p.a. for first 90 days of delay and 21% p.a. for any further delay as per terms of application for allotment and Space Buyers' Agreement. Thus in case of belated payment, the plaintiff became liable to pay interest as stipulated. In paragraph 20 of the plaint, the plaintiff has stated that she is ready to pay interest as per letter of allotment. 13. The defendant has admitted that construction was delayed in view of the stay order passed by the Supreme Court in 2006 and clearances required. In paragraph 4 of the written statement on merits it is stated as under; ...The dates mentioned in the payment plan were merely tentative and for purpose of payment of installments. 14. Inspite of the admitted delay in the project, the plaintiff had been making payments of substantial amounts from time to time. Total payments made are ₹ 86,45,987/-. The payments have been accepted and cheques given encashed. The only balance payment due is ₹ 2,12,518/- or 2.5% of the total price plus registration charges for which no specific date was fixed in the updated installment payment schedule Mark E but the same is pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read and examined the said letter before signing the written statement. 18. The admitted facts are startling and are completely one sided in favour of the plaintiff. The plaintiff has made payment of ₹ 86,45,987/- to the defendant between the period 2004 to 19th June, 2006. Payments were accepted, received and used. Claim for payment of ₹ 13,38,424.21/- including interest of ₹ 7,00,869/- was made by the defendant by letter dated 10th June, 2006. The plaintiff made payment of ₹ 9,95,330/- and wrote letters dated 24th June, 2006, 5th October, 2007 and 25th October, 2007 to which there was no written response from the defendant. There is no written communication by the defendant between 10th June, 2006 till 2nd January, 2008. By letter dated 2nd January, 2008 the defendant cancelled the allotment for alleged non payment of ₹ 3,43,094.21/- and after deducting earnest money from ₹ 86,45,987/-, a cheque of ₹ 63,64,763/- was enclosed towards refund. The plaintiff has not encashed the said cheque. These are not disputed facts but admitted facts. The defendant has not given break up of this claim of ₹ 3,43,094.21/- in the written statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Sobhag Narain Mathur v. Pragya Agrawal and Ors. reported in (141) 2007 DLT 356 the subject has been examined in depth and it was observed as under: 18. Therefore, a mere reference to a future formal contract will not in law prevent a binding bargain between the parties. The fact that the parties refer to the preparation of a formal agreement by which the terms agreed upon are to be put in a more formal shape, does not prevent the existence of a binding contract. The issue to be determined is whether it could be said that the parties did not intend to be bound by the first agreement until a formal contract was signed. This question is to be determined on the basis of the intention of the parties in the light of the special circumstances of each particular case. If the initial contract contemplates the execution of a further contract between the parties, the Court would determine whether the further contract is a condition or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed upon would go through. On a true construction of the first agreement, if it appears that the execution of a fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will only arise if there is already an existing legally enforceable contract/agreement between the parties and breach of obligations stipulated therein. 23. The plaintiff has made payment of ₹ 86,45,987/- on various dates from 2004 onwards till 24th June, 2006 for the shop. 97.5% of the total purchase consideration was paid by the plaintiff and accepted by the defendant. These payments have been made in terms of the installments payment plan (mark E). The defendant has accepted and encashed the cheques but is now alleging that the plaintiff has no right to enforce obligations of the defendant without execution of the commercial space flat buyers agreement and it is wish and desire and not a legal obligation of the defendant to execute commercial space buyers agreement. This plea is not acceptable. 24. It is a matter of common knowledge that builders execute flat/Commercial Space Buyers' Agreement with the buyers who have purchased flats/commercial space in buildings. Registered sale deeds are not executed because of terms on which land is allotted to the builders by Delhi Development Authority. The flat/Commercial Space Buyers' Agreements are treated as documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, the shop allotted to the plaintiff has been identified along with the size of the shop. True the letters do mention that a 'Commercial Space Buyer's Agreement' is to be executed, but the execution of the said document was not uncertain rather it was a direct consequence of the payments being made and the same being accepted. The 'Commercial Space Buyer's Agreement' was nothing but another name for the final deed. Just calling it an agreement would not make it into a second agreement. The letter/agreement was in every respect a complete binding contract. It has all the essential ingredients of a concluded contract, viz.; promise, consideration for the promise, acceptance and even performance of obligations by one of the parties and by the defendant also from 2004 till 2nd January, 2008. Further, a plain reading of the written statement submitted by the defendant brings out the fallacy in the argument that the letter dated 29th October 2005 (Mark 'D') is not a binding agreement. The defendant has admittedly sought to charge interest from the plaintiff for allegedly going against the terms of the said agreement, which has been said to be binding. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the courts should lean in favour of construction which keeps the remedy alive, that is if two constructions are possible then the one favouring continuance of the suit is to be preferred than the one barring the remedy. 28. Decree on basis of admissions is a matter of discretion but when facts are admitted in the pleadings or in documents; judgment or relief can be granted. Facts of the case are admitted by both parties. There is no dispute about letters written inter-see the parties. Payments made by the plaintiff to the defendant of ₹ 86,45,987/- is accepted. In the written statement no dispute about facts is raised. On the said facts only one conclusion is possible. In Uttam Singh Duggal and Co. Ltd. v. United Bank of India reported in (2000) 7 SCC 120, it was observed: 12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that 'where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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