Sanjeev Narula, J. - (1.) The Plaintiff by way of the present suit seeks joint and several decree against the Defendants for recovery of Rs. 2,51,000,00/- (Rupees Two Crores Fifty One Lakhs only) along with interest and damages. Case of the Plaintiff
(2.) The case of the Plaintiff, as stated in the plaint, is that (a) the Plaintiff is engaged, inter-alia, in the business of development of residential properties, commercial properties, townships, group housing projects and other related infrastructure facilities across India and holds an enviable reputation in its business with a valuable brand image; (b) the Defendant No. 2, on behalf of the Defendant No. 1, had approached the Plaintiff claiming that (i) the Defendant No. 1 is the absolute owner of land situated at Mouza Dabgram, P.S. Bhakti Nagar, District Jalpaiguri, West Bengal (hereinafter referred to as "the said land"), (ii) the Defendant No. 1 has the marketable title in respect of the said land, (iii) the said land is free from all encumbrances, charges, liens, attachments, claims, and other liabilities whatsoever and that the Defendant No. 1 is the absolute owner thereof and that no other person has any right, title and/or Interest in the said land in any manner whatsoever; (c) Defendant No. 2, on behalf of the Defendant No. 1, requested the Plaintiff to assist in developing the said land and for construction of several multi-storied buildings thereon as per the plans sanctioned by the concerned local authorities; (d) the Defendant No. 1 Company and the Plaintiff, on 1st December 2006 entered into a Memorandum of Understanding (hereinafter referred to as "MoU") for the development of the said land with the Defendant No. 1, through the Defendant No. 2 as its Director; (e) it was stipulated in the MoU that an amount of Rs 6.01 Crores shall be paid by the Plaintiff to the Defendant No, 1 in tranches towards refundable security deposit; (f) in terms of the tranches specified in the MoU, simultaneously with the signing of MoU, the Plaintiff paid to the Defendant No. 1, an amount of Rs 1.01 Crores vide a Cheque No. 093731 dated 2nd December 2006 handed over to the Defendant No. 2, as the first tranche, which payment the Defendant duly acknowledged in the said MoU; (g) the MoU stipulated that the Plaintiff and the Defendant No. 1 shall enter into a separate Agreement for the development of the said land; (h) it was further stipulated in the MoU that within 30 days of the signing of the MoU, the Plaintiff would carry out due diligence of the said land and to facilitate such due diligence, the Defendant No. 1 and 2 were under an obligation to provide all the documents of title and other documents as required by the solicitors of the Plaintiff. Further, the Defendant No. 1 was also required to hand over the physical possession of the said land to the Plaintiff in terms of Clause 6(b) of the MoU; (i) contrary to the express obligations under MoU, after the Defendant No. 1 and 2 had pocketed the payment of Rs 1,01,00,000/- , made against the first tranche, the Defendant No. 1 and 2 failed to hand over the copies of documents of title and other documents as required by the solicitors of the Plaintiff, despite specific requests being made by the Plaintiff in this regard; (j) after repeated follow-ups, in the month of May 2007, the Defendant No. 2 informed the Plaintiff that the title deeds and other documents related to the said land were not traceable at that point of time and shall soon be traced and shall be provided to the Plaintiff; (k) the Defendant No. 2 however, called upon the Plaintiff to agree for demarcation of the said land so that the process of handing over of possession of the said land by the Defendant No. 1 to the Plaintiff can be done; (l) on 31.08.2007, while an official of the Plaintiff was carrying out demarcation of the said land, police officials from Police Station Bhakti Nagar arrived at the said land and informed him that an order of temporary interim injunction dated March 21, 2005 had been passed in Suit No. 82/2005 by the Court of Civil Judge (Junior Division), Jalpaiguri in respect of part of the said land, in a Suit filed by one Kishan Chand Goyal against the Defendant No. 2 herein and others, thereby restraining the Defendant No. 2 and his men from entering into the said land; (m) the Defendant No. 1 and 2 have therefore, by concealment, deception and misrepresentation deceived the Plaintiff in parting with its money, which the Plaintiff would not have done had the Defendant No. 1 and 2 disclosed the existence of temporary injunction order and other encumbrances to the Plaintiff at the outset; (n) on January 8, 2009, a meeting was held between the Defendant No. 2, Defendant No. 1 Company, and the Plaintiff's representatives, wherein, the Defendant No.2 admitted to the deception and assured the Plaintiff's representatives that the aforesaid interim injunction would be vacated or the suit by the plaintiff will be settled by the Defendant No. 2 on or before January 30, 2009 or alternatively the Defendant shall refund the amount of Rs. 1,01,00,000/- along with the interest and also the expenditure already incurred by the Plaintiff towards development of the project; (o) contrary to the express assurances made by the Defendant No. 2 during the meeting held on January 08, 2008, neither has the aforesaid interim injunction order been got vacated nor has the suit of the plaintiff been settled till date. Case of the Defendants
(3.) The Defendant has filed the written statement and averred, that (i) it was the Plaintiff who approached the Defendants with the intention of developing the said land; (ii) the execution of the MoU and the schedule of payment envisaged under the MoU or the factum of payment of an amount of Rs. 1.01 crores is not denied; (iii) a perusal of the Legal Due Diligence Report dated 6th March 2007 filed along with the plaint does not indicate that any documents were sought from the Defendants were not provided and it is denied that the Defendants failed to hand over the concerned documents to the solicitors of the Plaintiff; (iv) in fact, it is the Plaintiff who sought to evade the obligations under the said MoU since property prices saw a slump around the time; (v) since the documents relating to the properties of the Defendants had been stolen in the month of April 2007, the Defendants were not in a position to provide the documentation to the Plaintiff in May, 2007 and in fact it was possibly after seeing the said Public Notice (filed along with Plaint, regarding loss of documents) that the Plaintiff sought the documentation in the month of May 2007; (vi) the commitment of the Defendants to carry out the terms of the MoU is evident in as much as it is admitted that the Defendants were seeking to hand over possession of the said land to the Plaintiff as early as possible; (vii) the existence of the order of temporary injunction passed by Ld. Civil Judge (Junior Division), Jalpaiguri had been disclosed by the Defendants to the Plaintiff at the time of initial discussions between the parties itself and it was informally agreed between the parties that since order pertained only to a small portion of the said land, development can start in area of the said land not covered by the said order upon disposal of the case; (viii) the Plaintiff deliberately and intentionally instructed its personnel to seek to demarcate the area covered by the said order so as to create controversy; (ix) the Plaintiff was aware of the order of temporary injunction;