Delhi District Court
Rajeev Chawla vs . Inderjeet on 28 January, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
CS No: 797/11
Rajeev Chawla Vs. Inderjeet
28.01.2012
ORDER
1. This order shall examine the maintainability of the suit. By the present suit, the plaintiff has prayed for specific performance of the collaboration agreement dated 30.03.2010. The plaintiff has also prayed for permanent injunction restraining the defendant from interfering in the construction carried out by the plaintiff over the property bearing no. WZ256 F/11, measuring about 80 sq. yards, situated at Inder Puri, New Delhi (hereinafter referred to as "the suit property"). The plaintiff has further prayed for a decree of permanent injunction restraining the defendant from creating third party rights in the suit property. The plaintiff has further prayed for permanent injunction restraining the defendant from entering into any agreement with any other party for the purpose of carrying out construction on the suit property.
2. The case of the plaintiff is that he is a builder whereas the defendant is the owner of the suit property. According to the plaintiff, he had entered into a collaboration agreement dated 30.03.2010 with the defendant in respect of the aforesaid suit property. As per the said agreement, the plaintiff was to raise construction on the property. In return, he would be Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 1 of 9 entitled to ownership rights of the first floor and third floor of the property. The plaintiff was also required to pay rent to the defendant. It is further pleaded that although the plaintiff had made payment of a sum of Rs. 51,000/ in cash to the defendant in pursuance of the collaboration agreement, the defendant did not hand over possession of the suit property to the plaintiff. In contravention of the collaboration agreement, the defendant has engaged some other builder for raising construction who is now in the process of carrying out construction over the property. On the basis of the above averments, the present suit has been filed by the plaintiff.
3. The collaboration agreement, specific performance of which is sought by the plaintiff, has been filed and is on record. The document is not registered with the SubRegistrar although it entitles the plaintiff to ownership over the first floor and the third floor of the suit property. Clause 8 of the collaboration agreement stipulates as under:
"That the first party shall permit the second party to construct the building upon the said plot of land and after the construction works in all respect, the said building will be divided between the parties as under: a. First party will become the owner of ground floor and second floor without Roof Rights/Terrace Rights with common rights of staircase and passage with proportionately rights of land the reorder.
b. Second party will become the owner of the First Floor and third floor with roof rights, with common rights of staircase and passage with proportionately rights of land thereunder."
Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 2 of 9 According to the plaintiff, the agreement purports to create rights in immovable property. The plaintiff has asserted the said rights through the suit. That the consideration flowing from the plaintiff for acquiring ownership rights is not money but his services as a builder and the cost of construction, is immaterial and does not affect the nature of the contract.
4. By the Registration and Other Related laws (Amendment) Act, 2001, Section 17 of the Registration Act, 1908 was amended. The following provision requiring compulsory registration of certain instruments was inserted :
"(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882(4 of 1882) shall be registered if they have been executed on or after the commencement of he Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A..."
In the present case, the agreement is not registered although, according to the plaintiff himself, it creates ownership rights in his favour.
5. Since the said document is not registered, having regard to Section 49 of the Registration Act, 1908, the said document cannot be deemed to be conferring any right, title or any interest in the suit property in favour of the plaintiff and is also inadmissible in evidence. Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 3 of 9 Hence, on the basis of the aforesaid document, the plaintiff cannot claim to have acquired ownership rights in the suit property.
6. Further, even if the said collaboration agreement is likened to an agreement to sell, it must be noted that an agreement to sell does not confer any right on the person agreeing to purchase the property except the right to obtain execution of sale deed through specific performance. Rights in the property accrue only after the said sale is carried out. Till that happens, no interest or charge over immovable property is created. In the case of Narandas Karsondas vs. S.A. Kamtam & Anr. (1977) 3 SCC 247, the Hon'ble Supreme Court observed as under:
"A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act".
In the case of Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra, 2004 (8) SCC 614, the Hon'ble Supreme Court observed as under:
"It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
In the case of Bai Dosabai Vs. Mathurdas Govinddass AIR 1980 SC 1334 it was held that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. It merely creates an obligation annexed to the ownership of immovable property, Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 4 of 9 not amounting to an interest in the property.
In the present case, the plaintiff has not pleaded or proved that pursuant to the collaboration agreement, a sale deed has been executed. Hence, on the basis of the collaboration agreement alone, the plaintiff cannot claim any right in the suit property.
7. Resultantly, ownership rights do not stand conferred upon the plaintiff on the basis of the aforesaid agreement. The plaintiff cannot assert the said rights. Consequently, he is not entitled to restrain the defendant from interfering in the construction work of the property or from creating third party interest in the suit property or from entering into any agreement with some other builder for raising construction over the suit property.
8. Moreover, the plaintiff has not claimed to be in possession of the suit property. Through prayer no.2 of the plaint, he has sought to restrain the defendant from interfering in the construction which he proposes to raise. Unless the plaintiff first obtains possession of the suit property, he cannot raise construction and therefore his prayer for restraining the defendant from interfering in the said construction does not, and cannot, come into play. Before making the said prayer, the plaintiff ought to first seek recovery of possession. This is an alternative remedy, the existence of which bars the prayer for injunction, in accordance with Section 41 (h) of the Specific Relief Act, 1963. Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 5 of 9
9. Further, the prayer for restraining the defendant from engaging some other builder or entering into an agreement with some other builder for carrying out construction has also been rendered infructuous. The plaintiff has himself stated that the defendant has already engaged some other builder for carrying out construction. This plea finds mention in paragraph no. 12 of the plaint which is quoted as under:
"In the above context, engagement of a new builder contrary to the agreement, executed and acted upon, the new builder is merely a trespasser in the said property in violation of the agreement dated 30.03.2011. The new builder does not have any right to remain in the suit property and is liable to hand back over the property to the plaintiff ."
10.In the present case, specific performance of the collaboration agreement also cannot be granted. Firstly, the collaboration agreement has not been pleaded to have been presented for registration or sought to be registered. In the case of Vijay Kumar Sharma vs. Devesh Behari Saxena First Appeal No. 240 of 1998 decided by Hon'ble Allahabad High Court on 16.11.2007, it was held that an agreement to sell which is not registered and which is also not presented before the SubRegistrar for registration by the plaintiff cannot be relied upon and its specific performance can also not be granted. The decision is squarely applicable to the facts of the present case. It is not the case of the plaintiff herein that he ever asked the defendant to register the collaboration agreement or that he ever presented the agreement Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 6 of 9 before the SubRegistrar for registration. Secondly, specific performance is an equitable remedy. Equity is not in favour of granting specific performance since, as noted above, the premises have already been given to some other builder for raising construction. Construction has also commenced, as pleaded in paragraph 17 of the plaint. Thirdly, for the breach of the said contract, the plaintiff can be adequately compensated in monetary terms. The damage that may accrue to the plaintiff can be easily ascertained. Hence, in accordance with Section 10 and Section 14(1)(a) of the Specific Relief Act, 1963, specific performance cannot be granted. Fourthly, the contract relates to carrying out construction on the property. It is bound to run into numerous details as to the nature of the construction, its quality and extent. It is also dependent on the qualification of the parties. Performance of the contract involves use of skills and is incapable of being measured. In accordance with Section 14(1)(b) of the Specific Relief Act, the contract cannot be specifically enforced. For the aforesaid reasons, the plaintiff is not entitled to specific performance of the collaboration agreement.
11. Further, the valuation clause of the suit is deficient. The suit has not been valued at all for the relief for specific performance. The plaintiff has also not valued the suit properly for the various reliefs of injunction prayed for by him. If properly valued, the suit for specific performance would clearly be beyond the pecuniary jurisdiction of this court. Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 7 of 9
12.Although the case is at an early stage, the plaint has been subjected to scrutiny to assess its maintainability in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others (2004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the plaint in the event of noticing any of the infirmities mentioned in Order 7 rule 11 of Code of Civil Procedure. The prayers made in the plaint cannot be granted even if its contents are deemed to be correct. In these circumstances, I find no good ground to keep the suit pending or to put it to trial.
In the case of T. Arivandam v. T.V. Satyapal and Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure. In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another (2004) 9 SCC 512 it was held that when no cause of action is disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of Rajeev Chawla Vs. Inderjeet C.S. NO. 797/11 Page 8 of 9 harassment.
In the case of Popat and Kotecha Property Vs. State Bank of India Staff Association 2005(7) S.C.C. 510, the Hon'ble Supreme Court has held that the use of the word "shall" in Order 7 Rule 11 of Code of Civil Procedure implies that a duty is cast on the Court to reject the plaint where it is barred by law or where there is no cause of action, even without intervention of the defendant.
13.For the aforesaid reasons, under Order 7 Rule 11 of Code of Civil Procedure, the plaint is rejected. File be consigned to record room.
Announced in the open court (Ashish Aggarwal)
th
on 28 day of January, 2012 Civil JudgeI/Dwarka Courts,
South West District,
Delhi
Rajeev Chawla Vs. Inderjeet
C.S. NO. 797/11 Page 9 of 9