Delhi District Court
Smt. Sharda Negi vs Sh. Rajesh Kumar on 25 August, 2014
CS312/2014
Sharda Negi v Rajesh Kumar
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
ADDITIONAL DISTRICT JUDGE04, SOUTHWEST,
DWARKA COURTS, NEW DELHI.
CS NO.312/2014
Computerized I.D. No. 02405C0333252011
Smt. Sharda Negi,
W/o Sh. Sh. Pancham Singh Negi,
R/o RZ G1/28, Mahavir Enclave,
New Delhi110045
.....Plaintiff
Versus
Sh. Rajesh Kumar,
S/o Late Sh. Bindu Ram,
R/o RZ22A, Gali No.3,
Sitapuri, New Delhi.
Also at:
RZG1/28, Mahavir Enclave,
New Delhi110045
.....Defendant
DATE OF INSTITUTION : 02.12.2011
DATE OF RESERVING JUDGMENT : Not reserved
DATE OF PRONOUNCEMENT : 25.08.2014
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CS312/2014
Sharda Negi v Rajesh Kumar
J U D G M E N T
1. Plaintiff has filed the present suit for Specific Performance of Contract/Agreement dated 03.02.2010 and for permanent injunction against defendant. In the suit, plaintiff has prayed the following reliefs:
a) Pass a decree of specific performance in favour of the plaintiff and against the defendant thereby directing the defendant to perform his part of contract/agreement dated 03.02.2010 entered into between the plaintiff and the defendant with regard to :
i) Construction of one bed room plus drawing set on parking space at stilt floor and hand over the possession to the plaintiff;
ii) Carry out the necessary rectifications and modifications in the lower/stilt floor, upper ground floor and third floor as per letter and spirit of the contract dated 03.02.2010 entered into between the parties;
iii) Pay the balance amount of Rs. 51,000/ being rent to the plaintiff.
iv) Pay damage @ Rs. 1,00000/ per month for the delay of 8 months, total
2 of 20 CS312/2014 Sharda Negi v Rajesh Kumar being Rs.8,00000/ to the plaintiff for the delay in completion of construction.
b) Pass the decree of permanent injunction in favour of the plaintiff and against the defendant, thereby restraining the defendant, his agents, representatives, legal heirs, nominees, assignees, executor, successors, administrators, etc., or any person on his behalf to sell, mortgage, transfer, alienate, lease out and from creating third party interest in the first floor, second floor of the property bearing no. RZG1/28, Mahavir Enclave, New Delhi110045 to any party/third party till the disposal of the present suit and;
c) Award the cost of the present suit in favour of plaintiff and against the defendant.
2. Briefly stated, plaintiff's case is that she is owner of a plot bearing no. RZG1/28, admeasuring 100 sq. yds out of Khasra no. 15/21 and 22 situated in village Mirzapur, Palam Village known as Mahavir Enclave, New Delhi (hereinafter referred to as 'suit property'). On the said plot, a single story house was built in which the plaintiff with her other family 3 of 20 CS312/2014 Sharda Negi v Rajesh Kumar members were residing.
3. Defendant is engaged in the business of construction of building. Both the parties knew each other for last 23 years. Defendant approached plaintiff with the proposal to build a multistoried residential complex on the above plot after demolishing the existing structure thereon and after entering into a collaboration agreement with plaintiff. A Collaboration Agreement was entered into between the parties on 03.02.2010. Plaintiff has apprehension that the defendant has tried to change/manipulate various clauses of the agreement dated 03.02.2010 thereby changing the terms of various clauses favouring him and against her as the original of the agreement is with the defendant.
4. As per clause 2 of the Agreement, defendant was required to make payment of Rs.2,00,000/ (Rs. two lacs only) to plaintiff. In part performance of said clause of the agreement, defendant paid a sum of Rs. 50,000/(Rs. fifty thousand only) by cheque no. 073918 dated 03.05.2011 drawn on Bank of Baroda, Janakpuri, New Delhi. It is stated that on 4 of 20 CS312/2014 Sharda Negi v Rajesh Kumar presentation the said cheque was dishonored and returned back with remarks 'alterations/correction on instruments are prohibited under CTS'. Plaintiff informed the defendant about dishonour of the cheque and requested him to issue a fresh cheque in lieu of cheque no. 073918 for Rs.50,000/ (Rs. fifty thousand only)
5. Defendant promised to issue a fresh cheque within a day or two but he failed to keep his promise. Plaintiff could not file criminal complaint under Section 138 of The Negotiable Instrument Act for dishonour of the cheque as there was delay in fulfilling the promise by the defendant. It is stated that as per clause 2 of the agreement, defendant was required to make a further payment of Rs.1,50,000/ which he failed to do so in spite of various requests made by plaintiff. Plaintiff states that whenever she approached the defendant for balance payment, she was abused and threatened with dire consequences.
6. As per clause 4 of the Agreement, the upper ground, ground floor, third floor with roof rights and one bed room plus one drawing 5 of 20 CS312/2014 Sharda Negi v Rajesh Kumar room set on parking space at stilt floor were to be in possession of the plaintiff. It is alleged that defendant failed to construct one bed room plus one drawing room set on parking space at stilt floor. Defendant did not pay any heed to the request of plaintiff for constructing the aforesaid bedroom therefore, plaintiff was constrained to file a complaint on 11.09.2011 at Police Station, Dabri, New Delhi.
7. It is stated that it was mutually agreed between the parties that defendant will pay 50% of the rent of the rented space which the plaintiff was to take on rent for her residence during the period when the building was being constructed. Plaintiff states that she had to pay Rs.6000/ per month for the rented accommodation that she had taken on rent. Defendant is stated to have paid 50 % of the above said rent for six months.
8. As per clause 3 of the Agreement, the builder/defendant was obliged to construct the building within a period of seven months. However, he failed to construct the building within the stipulated period. Defendant is stated to have taken 15 months to complete the construction and 6 of 20 CS312/2014 Sharda Negi v Rajesh Kumar to handover possession of the portion as per agreement to the plaintiff. On account of delay of construction of the building, plaintiff was compelled to stay in the rented accommodation as there was no alternative left with her. Therefore, plaintiff has claimed balance agreed rent @ Rs.3000/ per month for the delayed period.
9. It is submitted that defendant was required to complete the construction with specification as provided in the Annexure appended to the agreement. Plaintiff alleges that defendant has not carried out the construction up to the normal standard and various equipments used in the construction are not as per specifications and substandard. Plaintiff approached defendant to carry out minimum required rectifications but to no avail. Plaintiff states that defendant has intentionally evaded to build one bedroom and one drawing set on parking space at stilt floor as per the agreement. Defendant succeeded in getting the first floor and second floor of the suit property registered in his name without performing his part of contract i.e. paying balance Rs.2,00,000/ to him. Plaintiff finding no 7 of 20 CS312/2014 Sharda Negi v Rajesh Kumar response from the defendant got issued a legal notice dated 13.10.2011 to him vide registered AD and through courier. The legal notice was received back undelivered with remarks 'no such person on the above address'. She again sent legal notice dated 21.10.2011 to defendant through courier as well as registered AD. Defendant refused to accept the notice with malafide intention.
10. It is stated that defendant wants to sell/ transfer the first floor and second floor of the built up portion of the suit property to some other person without fulfilling and completing his liability as per agreement dated 03.02.2011.
11. Defendant has contested the suit of the plaintiff by way of filing written statement. He took preliminary objection that suit of the plaintiff is barred under Section 10 of CPC. He stated that plaintiff has filed the present suit to extort money from him. Defendant stated that he has already sold out all the five flats much prior to the filing of the present suit. He contended that as per agreement, he paid Rs.5,10,000/ to plaintiff through 8 of 20 CS312/2014 Sharda Negi v Rajesh Kumar cheques and balance payment of Rs.1,90,000/ was paid in cash before the Sub Registrar, New Delhi at the time of execution of Sale Deed by plaintiff in his favour.
12. Defendant stated that there was no mutual agreement between him and plaintiff to pay 50% of the rent for the period of 6 months. He further stated that he never paid any rent to plaintiff as alleged. He contended that delay in construction work was done due to non handing over of the physical and vacant possession of the plot and also due to interference in the construction work by plaintiff from time to time. He further stated that plaintiff herself stopped to construct one room on the parking space at stilt floor to save the parking space for the vehicle of her son. Rest of the averments as made in the plaint has been denied by the defendant.
13. On the basis of pleadings of the parties, the following issues were framed on 11.07.2013, for adjudication of matter in dispute between the parties:
(i) Whether the suit is barred under Order 2 R.2 CPC? OPD 9 of 20 CS312/2014 Sharda Negi v Rajesh Kumar
(ii) Whether the plaintiff is entitled to the relief of specific performance, as prayed for? OPP
(iii) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
(iv) Relief.
14. In the course of trial in the case, defendant stopped appearing in the court. He was proceeded ex parte vide order dated 15.05.2013.
15. In order to prove her case, the plaintiff has examined herself as PW1. She filed her evidence by way of affidavit, wherein she has reiterated and reaffirmed the same facts as stated in the plaint. In the course of her deposition, PW1 relied upon and proved the following documents:
(i) Collaboration Agreement Ex. PW1/A
(ii) Photocopy of Cheque Mark A
(iii) Photocopy of Returning Memo dated 05.05.2011 Mark B
(iv) Complaint dated 11.09.2011 Ex. PW1/B and 10 of 20 CS312/2014 Sharda Negi v Rajesh Kumar
(v) Legal Notice Ex. PW1/C
16. I have heard and considered the submissions advanced by learned counsel for plaintiff and perused the record of the case. My issue wise finding are given as under: 17. ISSUE NO. 1 "Whether the suit is barred under Order 2 R.2 CPC? OPD"
Onus to prove this issue lies on defendant. Defendant has not led any evidence to discharge the onus to prove this issue. The object of Order 2 R. 2 is to prevent multiplicity of suits. Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause. When defendant pleads Order 2 R 2 CPC, he must file the pleadings of the previous suit.
18. As the plea of Order 2 R. 2 is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. The plea of bar under Order 2 R. 2 CPC can be established only if the defendant proves to the court the identity of the cause 11 of 20 CS312/2014 Sharda Negi v Rajesh Kumar of action as well as identity of the parties in the two suits. (Reference may be had 'Dwarika Prasad v Ram Kishan' 2003 (3) MPLJ 233 and Gurinderpal v Jognitteir Singh (2004) 11 SCC 219).
19. In the instant case, defendant has failed to prove on record that there is identity of cause of action in the present suit and the earlier suit filed by plaintiff against him before the court of learned Civil Judge. He has miserably failed to discharge onus to prove this issue. Hence, this issue is decided against the defendant and in favour of plaintiff. 20. ISSUE NO. 2
"Whether the plaintiff is entitled to the relief of specific performance, as prayed for? OPP"
Onus to prove this issue lies on plaintiff. In order to discharge the onus to prove the issue, plaintiff has examined herself as PW1. She filed her evidence by way of affidavit wherein she has reiterated and reaffirmed the same facts as stated in the plaint. She relied upon various documents as mentioned in the affidavit. Plaintiff has not been cross 12 of 20 CS312/2014 Sharda Negi v Rajesh Kumar examined by the defendant despite opportunity given to him. The testimony of PW1 has gone unrebutted and unchallenged. There is no reason to doubt the veracity of the plaintiff. The averments made by the plaintiff in the plaint, being uncontroversial and unrebutted, are deemed to have been proved against the defendant.
21. The first prayer of plaintiff is to direct the defendant to construct one bed room plus drawing set on parking space at stilt floor and handover the possession to her. In para no. 17 of reply on merits, in the written statement filed by defendant, defendant has stated that one room set on parking space at stilt floor was sold by her to defendant through registered sale deed. He contended that plaintiff had allowed only to construct one room set instead of two room set to save the space for the parking of the vehicle of her son. Thus, from the admission of defendant himself, it is seen that there was an agreement between the parties to construct two room set on parking space at stilt floor of the suit property. Plaintiff has denied to have ever stopped and not allowed the defendant not to construct one more room set on the parking 13 of 20 CS312/2014 Sharda Negi v Rajesh Kumar space. Defendant has failed to prove his contentions that he was ever stopped by plaintiff not to construct two room set on the parking space. He has neither led any oral nor any documentary evidence to prove his contentions. In the given circumstances, it stands proved on record that defendant failed to comply with the terms and conditions of the Collaboration Agreement Ex. PW1/A in construction of two room set on parking space at stilt floor of the suit property. Defendant was under an obligation to construct the building as per the terms and conditions of the Collaboration Agreement. As he failed to discharge his obligation, therefore, defendant is directed to construct one bed room plus drawing room set on parking space at stilt floor and handover possession of the same to plaintiff within 3 months from today.
22. The second prayer of plaintiff is to direct the defendant to carry out necessary rectifications and modifications in the lower/stilt floor, upper ground floor and third floor as per the letter and spirit of the contract dated 03.02.2010 entered into between the parties. Plaintiff stated in her affidavit that defendant has not carried out the construction upto the normal 14 of 20 CS312/2014 Sharda Negi v Rajesh Kumar standard and various equipments used in the construction are not as per specifications and are sub standard. She has further stated that she approached defendant a number of times to carry the minimum required rectifications, however, every time she was threatened with dire consequences.
23. As per clause 10 of the Collaboration Agreement Ex. PW1/A, after completion of the project, the builder/defendant was to handover possession of the portions to the owner/plaintiff first to her satisfaction and, thereafter, the builder could deal with his portions. Plaintiff being satisfied with the construction carried out by the defendant took possession of the agreed portions of the suit property and also executed sale deeds in terms of the agreement in favour of defendant. If, the defendant had not constructed the building as per specifications and was substandard, the plaintiff ought not to have received the possession of the property. She should have first insisted for construction of the building as per specifications and thereafter, would have executed sale deed in favour of defendant. Moreover, the plaintiff has brought nothing on record as to what equipments and material were not used 15 of 20 CS312/2014 Sharda Negi v Rajesh Kumar by the defendant in construction of the building which he was obliged to do as per agreement Ex. PW1/A. In the given circumstances, on the basis of vague assertions, no direction can be issued to defendant to carry out rectification and modification in the building.
24. Plaintiff has further prayed to direct the defendant to pay her balance amount of Rs.51,000/ being rent due to her. Plaintiff has stated that the parties mutually agreed that defendant will pay 50% of the rent of the rented space where plaintiff will reside during the period when the building was constructed. She stated that she had to pay Rs.6,000/ per month for the rented accommodation. According to plaintiff, defendant paid 50% of the said rent for the period of 6 months i.e. @ Rs.3,000/ per month. The building was to be constructed within a period of 7 months. Defendant could not construct the building within the stipulated period and took around 15 months to complete the construction and handover possession of the same to her. Plaintiff has claimed rent @ Rs.6,000/ per month for a period of 8 months and also 50% of agreed rent @ Rs.3,000/ for one month. Defendant has 16 of 20 CS312/2014 Sharda Negi v Rajesh Kumar denied that there was any such agreement between him and the plaintiff. He stated that he never agreed to pay 50% of the rent during the period of construction of the building. In the Collaboration Agreement Ex. PW1/A, there is no such stipulation that defendant will pay 50% of the rent to plaintiff during the period of construction. No material has been placed on record by plaintiff to prove that there was any such agreement. No witness has been examined by plaintiff to prove that defendant ever paid 50% of the agreed rent either to plaintiff or to the landlord of the building which the plaintiff took on rent. Thus, the plaintiff has failed to prove on record that there was any mutual agreement between the parties, where defendant was required to pay 50% of the agreed rent of the rented accommodation during the period of construction of the building.
25. Plaintiff has further prayed to direct the defendant to pay damages @ Rs.1,00,000/ per month for the delay of 8 months in completion of the construction. As per the agreement between the parties, the building was to be constructed by defendant at his own cost within a period of 7 17 of 20 CS312/2014 Sharda Negi v Rajesh Kumar months. Admittedly, defendant could not construct the building within the period as agreed. He took around 15 months to complete the construction and to handover possession of the building to plaintiff. Defendant has contended that plaintiff gave the vacant possession of the property to him very late so the construction could not be completed within time. Plaintiff has given no date on which she handed over possession of the building to defendant. In the Collaboration Agreement Ex.PW1/A, there is no such stipulation that in case of delay in completion of the building and handing over possession of the same to plaintiff within the time as agreed, defendant is under an obligation to pay damages to plaintiff. Plaintiff has brought nothing on record to substantiate her claim for damages as prayed in the suit. On what basis, the damages have been claimed, are also not specified. Plaintiff has failed to prove her claim for damages. Hence, she cannot be awarded the damages for the delayed period of construction as prayed in the suit.
26. ISSUE NO.3 'Whether the plaintiff is entitled to the relief of permanent 18 of 20 CS312/2014 Sharda Negi v Rajesh Kumar injunction, as prayed for? OPP' Onus to prove this issue lies on plaintiff. Plaintiff in the suit has prayed for restraining the defendant, his agents, representatives, legal heirs, nominees, assignees, executor, successors and administrators etc. or any person on his behalf to sell, mortgage, transfer, alienate, lease out and to create third party interest in the first floor and second floor of suit property. On 08.05.2012, defendant appeared and gave statement on oath in the court. He stated that he had already sold the property in question i.e. all five flats prior to receiving notice of the suit. He gave particulars of the persons to whom the flats were sold. Photocopy of the sale deeds were also placed on record by defendant. As defendant has already sold the property in respect of which prayer for permanent injunction has been made, therefore, the relief has become infructuous. In the given circumstances, the relief of permanent injunction cannot be granted to plaintiff.
27. RELIEF 19 of 20 CS312/2014 Sharda Negi v Rajesh Kumar For the reasons discussed above, suit filed by the plaintiff is partly decreed. Defendant is directed to construct one bed room plus drawing set on parking space at stilt floor within three months from today and handover possession of the same to plaintiff. Plaintiff is also held entitled for cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court (RAJ KUMAR TRIPATHI)
on 25th August, 2014 ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
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