Delhi District Court
Shri Kali Das Dutt vs Shri Rajender Jaina on 27 February, 2018
IN THE COURT OF VISHAL SINGH, ADDITIONAL
DISTRICT JUDGE 06: CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
New CS No 10097/16
IN THE MATTER OF:
Shri Kali Das Dutt
S/o Late Sh. P.N. Dutt
22, Navjivan Vihar,
New Delhi110017.
....Plaintiff
VERSUS
1. Shri Rajender Jaina
Proprietor of M/s Rajendra's
N52A, Connaught Place,
New Delhi110001.
2. M/s Rajendra's
Through its Proprietors
Sh. Rajender Jaina
N52A, Connaught Place,
New Delhi110001.
.....Defendants
Other Details :
Date of Institution : 30.09.2002
Date of Reserving Judgment : 31.01.2018
Date of Judgment : 27.02.2018
New CS No 10097/16
Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 1/27
SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION
JUDGMENT
1 The case of the plaintiff is that defendant no. 1 is proprietor of the defendant no. 2 firm which is engaged in the business of construction and sale of houses, buildings and shops etc. whereas the plaintiff is an Architect.
1(a) As per plaint, in the year 1986, the defendant no. 1 represented to the plaintiff that the defendants are raising a commercial complex under the name and style of "Rajendra's Mahavira Towers" at MMTC/STC Shopping Centre, near Aurobindo College, Malviya Nagar, New Delhi and assured that the flats/shops are complete and would be handed over to the purchasers by the year 1988 positively. During that time, the plaintiff was residing at B17, Lajpat NagarII, New Delhi and was in search of office space, so, he booked an office space in the property of defendants which measured 416.75 sq. feet and in New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 2/27 pursuance of which, the defendants gave the private/tentative number of the booked office space/flat as No. 405 measuring 104.20 sq. feet and 403A and 404 measuring 312.55 sq. feet (hereinafter referred to as the "suit property" as shown in red colour in the site plan). The defendants also gave a layout plan to the plaintiff. The defendants also issued two acknowledgement letters, both dated 24.05.1986, one of which was with respect to office space bearing no. 405 and other was with respect to office space no. 403A and 404. It was agreed that the defendants would charge a sum of Rs.625/ per sq. feet with respect to the above booked office space/flats from the plaintiff and it was further agreed that as and when the payments were required, the defendants would give letter of demand to the plaintiff and the plaintiff would make the payment to the defendants.
1(b) The plaintiff submitted that according to the said agreement between them, the plaintiff made a total payment of Rs.1,19,925/ to the defendants from 24.05.1986 to 24.10.1986, as New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 3/27 per demands raised by the defendants for which the defendants also issued receipts. The plaintiff submitted that he had made the aforesaid payment on the understanding that the defendants would complete the construction and give possession of the booked flats/office space complete in all respect by the year 1988. The total consideration amount of entire suit property was Rs.2,60,469/, out of which the plaintiff had already paid a sum of Rs.1,19,925/ to the defendants in the year 1986. Thereafter, believing that the plaintiff would get the possession by the year 1988, he shifted to premises no. 22 Navjivan Vihar, Delhi and surrendered the earlier premises no. B17, Lajpat NagarII, New Delhi and thereafter, the plaintiff also wrote a letter dated 04.07.1986 to the defendants informing them about his shifting and asked them to honour their part of agreement and to give him possession of the suit property by the year 1988, but came to know that the defendants had not even started the construction work for several years and did not hand over possession of the suit property to the plaintiff within stipulated period. The defendants started New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 4/27 construction work in June, 1995, as a result of which, the plaintiff had to shift his office to the ground floor of property bearing no. 22, Navjivan Vihar, Delhi which could have fetched monthly rent to the tune of Rs.15,000/. The plaintiff submitted that since the defendants started construction in the month of June, 1995, he again wrote letter to the defendants that the balance amount would be paid to them in accordance with progress of construction work on the suit property. He submitted that due to delay caused by the defendants, he also suffered losses.
1(c) The plaintiff submitted that even in the year 1996, he wrote many letters to the defendants and was told by them that immediately upon completion of construction work, the possession of the suit property would be handed over to him on agreed rate on taking the balance amount, for which the documents would also be executed. In the month of August, 2002, he visited the office of the defendants and told them that he was still ready and willing to pay the balance amount of Rs.1,40,544/ and is ready to take New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 5/27 possession of the suit property, but the defendants told him for the first time in August, 2002 that apart from the balance amount of Rs.1,40,544/, the plaintiff was further required to pay Rs.1,37,904/ on account of "allied charges" and further, the plaintiff would also have to pay a sum of Rs.2,00,000/ as interest @24% per annum from the year 1996 to 2002 whereupon the plaintiff reminded them that an amount of Rs.1,19,925/ was already deposited by him with the defendants, on which he was ready to forgo his interest. The plaintiff was under the impression that the defendants would hand him over the possession of the suit property, however, he received a notice dated 23.08.2002 sent by the defendants, for which he sent a replycumnotice dated 03.09.2002 to the defendants thereby asked them to execute necessary documents of the suit property and to get them registered in his favour and also to hand over the physical vacant possession of the suit property to him after taking the balance amount on agreed rate. The defendants did not execute any documents of sale in favour of the plaintiff and rather sent reply dated 26.09.2002 New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 6/27 whereby the defendants claimed to have cancelled the agreement with plaintiff in the month of September, 1990. 1(d) As per the plaint, the defendants played foul and cannot be permitted to take advantage of their own wrong. The plaintiff sought a decree of specific performance in his favour and against the defendants with respect to the suit property. In the alternative, plaintiff has prayed for decree of recovery of Rs.10,00,000/ as damages alongwith pendentelite and future interest @24% per annum from the date of filing of the suit till realization of the amount. The plaintiff has prayed for a decree of permanent injunction against the defendants with respect to the suit property to restrain them from alienating or parting with its possession.
2. The defendants filed their joint written statement wherein they took preliminary objections that the suit is barred by limitation as the agreement in question was terminated for the first New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 7/27 time on 07.09.1990 on account of defaults committed by the plaintiff and thereafter, another opportunity was granted to the plaintiff to pay money with interest, but the plaintiff again defaulted. Hence, the agreement was again terminated on 12.03.1995, but even thereafter, a fresh opportunity was given to the plaintiff to deposit the money with interest which the plaintiff did not avail, whereupon, the agreement was again terminated vide notice dated 14.03.1999.
2(a) The defendants also submitted that the specific performance is not possible because they have already let out the flat No. 403A, 404 and 405 in Rajendra's Mahavira Towers, MMTC/STC Shopping Centre, near Aurobindo College, Malviya Nagar, New Delhi to Shri Sunil Kalyani who is in occupation of the said premises as lawful tenant under the defendants. They stated that no representations were made to the plaintiff about the completion of the construction in the year 1988 as by that time, even the possession was not delivered to the defendants by DDA New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 8/27 because there was encroachment of the said plots. The defendants came into possession of the said plots including the suit property as per orders dated 13.09.1988 passed by the Hon'ble High Court in CR No. 277 of 1987 and possession was delivered to them by the DDA for the first time on 29.09.1988. For this reason, the question of promise to the plaintiff that the suit property shall be handed over to him by the year 1988 does not arise.
2(b) The defendants admitted that the plaintiff booked a total space of 416.75 sq. feet of super area being part of office space no. 403A, 404 and 405, but the defendants did not give any layout plan to the plaintiff. The defendants submitted that they had issued various letters of demands to the plaintiff, but the plaintiff did not make the payment and at various point of time not only agreements were cancelled but also further opportunities were afforded to the plaintiff subject to payment of extra interest. The plaintiff did not avail all the said opportunities and the defendants have lawfully finally terminated the agreement on 14.03.1995. New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 9/27
3. The plaintiff, in his replication, reiterated and reaffirmed the various averments and contentions as raised by him in his plaint.
4. As per record, vide order dated 30.01.2004, the following issues were framed :
1. Whether the suit is within time? OPP.
2. Whether the agreement has been terminated, as alleged? OPD
3. Whether the plaintiff is entitled to the relief claimed? OPP.
4. Relief.
5. The plaintiff in support of his case has examined himself as PW1. He filed his affidavit of evidence vide which he deposed the facts as mentioned in the plaint. PW1 relied upon the following documents:
1. Site plan as Ex.PW1/1.
2. Acknowledgement letter dated 24.05.1986 issued by the defendants in respect of office space bearing New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 10/27 no. 405 as Ex.PW1/2.
3. Acknowledgement letter dated 24.05.1986 issued by the defendants in respect of flat no. 403A and 404 as Ex.PW1/3.
4. Advertisement got published by defendants as Ex.PW1/4.
5. Two demand letters issued by the defendants, both dated 24.06.1986, as Ex.PW1/5 and Ex.PW1/6 respectively.
6. Two payment receipts, both dated 01.07.1986, as Ex.PW1/7 and Ex.PW1/8 respectively.
7. Letter dated 04.07.1986 written by the plaintiff qua intimation of his new address as Ex.PW1/9.
8. Demand letter dated 04.10.1986 of Rs.16830/ in respect of flat no. 405 as Ex.PW1/10.
9. Payment receipt dated 24.10.1986 as Ex.PW1/11.
10. Demand letter dated 04.10.1986 of Rs.50,792/ in respect of flat nos. 403A and 404 as Ex.PW1/12.
11. Payment receipt dated 24.10.1986 as Ex.PW1/13.
12. Letter dated 29.06.1995 sent by the plaintiff to the defendants as Ex.PW1/14.
13. Letter dated 08.05.1999 sent by the plaintiff to the defendants as Ex.PW1/15 and courier receipt thereof as Ex.PW1/16.
New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 11/27
14. Letter dated 02.08.2002 sent by the plaintiff to the defendants as Ex.PW1/17.
15. Calculation given by the defendants as Ex.PW1/18.
16. Letter dated 20.08.2002 sent by the plaintiff to the defendants as Ex.PW1/18A1 and postal receipt thereof as Ex.PW1/18(A).
17. Letter dated 23.08.2002 sent by the plaintiff to the defendants as Ex.PW1/9 and courier receipt thereof as Ex.PW1/20.
18. Notice dated 23.08.2002 issued by the defendants to the plaintiff as Ex.PW1/21 and envelope thereof as Ex.PW1/22.
19. Replycumnotice dated 03.09.2002 sent by the plaintiff to the defendants as Ex.PW1/23, postal receipt thereof as Ex.PW1/24 and acknowledgement card thereof as Ex.PW1/25.
20. Reply dated 26.09.2002 of the defendants to the replycumnotice dated 03.09.2002 of the plaintiff as Ex.PW1/26.
6. The defendants examined Shri Sanjay Jain (employee of defendants) as DW1 who deposed by way of his affidavit Ex.DW1/A. He inter alia stated that defendant no. 1 was handed over the possession of the plot by the DDA on 29.09.1988 New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 12/27 after a prolonged litigation as there were encroachments upon the suit plot and the DDA was unable to remove the same. He deposed that defendants were granted the possession of the suit plot in pursuance of order dated 13.09.1988 of Hon'ble High Court in CR No. 277 of 1987. DW1 relied upon the following documents: Ex.DW1/1 Copy of order dated 13.09.1988 passed by Hon'ble High Court in case titled as DDA Vs. M/s Rajendras as Ex.DW1/1.
Ex.DW1/3 License agreements dated 24/06/1986 between (Also plaintiff and the defendants Ex.PW1/DX2 & Ex.PW1/DX3 & Ex. DW2/4) Ex.DW1/4 Cancellation notice dated 07/09/1990 by the
defendants to plaintiff at Lajpat Nagar for property no. 403A404 Ex.DW1/5 Notice for cancellation dated 12.03.95 to the plaintiff Ex.DW1/6 Last notice of cancellation dated 14.03.99 to the plaintiff Ex.DW1/7 Memo of parties filed by the defendants against DDA in Hon'ble High Court Ex.DW1/8 License deed issued by the defendants in favour of Mr. Sunil Kalyani New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 13/27 Ex.DW1/9 Site plan for property no. 403A, 404 and 405 DW1 did not complete his testimony as he did not turn up for cross examination.
7. No one was examined as DW2 by the defendants, although affidavit of evidence of DW2 Shri Ravinder Singh, Record Keeper of the office of defendants, was filed.
8. DW3 Shri Rajender Jaina (defendant no. 1) deposed in terms of his written statement through his affidavit Ex.DW3/A. He relied upon the following documents: Ex.DW2/1 Copy of order dated 13.09.88 of the Hon'ble High Court.
Ex.DW2/2 Copy of order dated 02.02.87 of Ld. ADJ. Ex.DW2/3 Letter of defendants to the plaintiff at address at Lajpat Nagar that alternative space can be given.
Ex.DW2/4 Licence Agreement dated 24/06/1986 entered into between the parties.
Ex.DW2/5 Letter of the defendants dated 17.09.86 for installments.
New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 14/27 Ex.DW2/6 Cancellation notice dated 7.9.90 for space for property no. 403 and 404.
Ex.DW2/7 Last notice of cancellation dated 12.03.95.
Ex.DW2/7A Postal receipt.
Ex.DW2/8 Last notice of cancellation dated 14.03.99
Ex.DW2/9 Order dated 19.02.90 of the Hon'ble High Court
Ex.DW2/10 Form C of the building dated 13.05.96, Form D
colly dated 31.05.96 and receipt dated 17.06.96 for
applying for completion certificate.
Ex.DW2/11 Copy of license deed by the defendants in
favour of Sh. Sunil Kalyani
Ex.DW2/12 Site plan for property no. 403A, 404 and 405
Ex.DW2/13 Legal notice dated 05.02.2000 and 12.02.2000
to the plaintiff at his Lajpat Nagar address.
Ex.DW2/14 Legal notice dated 24.02.2000
9. I have heard the arguments from both the sides and analyzed the evidence adduced by the parties. My issuewise findings are as under:
10. Issue No. 1: "Whether the suit is within time? OPP."
New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 15/27
This issue was framed upon the objections taken by the defendants in written statement that suit was instituted on 30.09.2002, whereas the defendants had terminated the agreement on 07.09.1990 on account of defaults committed by plaintiff in making the payment of installments. The defendants had granted another opportunity to plaintiff to pay installment with interest. Upon failure of the plaintiff to pay installments, the contract was again terminated on 12.03.1995. The defendants afforded fresh opportunity to the plaintiff to pay balance amount with interest. Upon failure of the plaintiff to avail of renewed opportunity, the agreement was finally terminated vide notice dated 14.03.1999. As per written statement, the suit was filed after lapse of limitation period of three years; the suit was instituted on 30.09.2002, although, the plaintiff was served with last notice dated 14.03.1999 of termination of agreement.
In this regard, plaintiff proved the notice Ex.PW1/21, dated 23.08.2002 which was sent by counsel of New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 16/27 defendants to the plaintiff. As per this notice, defendant was ready to revive the booking, if the plaintiff paid the balance amount and revival charges alongwith interest to the defendants as per terms of the agreement executed between the parties. The said notice called upon the plaintiff to make an application to the defendants to revive the booking and pay all the dues alongwith interest in terms of the agreement executed between the parties. Thus, it is apparent that, as on 23.08.2002, the defendants were still ready to negotiate with plaintiff in terms of the agreements Ex.PW1/DX2 and Ex.PW1/DX3. Thus the cause of action in favour of plaintiff would be reckoned from 23.08.2002. The suit being instituted on 30.09.2002, the same is within time. Hence, the Issue No. 1 is decided in favour of the plaintiff and against the defendants.
11. Issue No. 2: "Whether the agreement has been terminated, as alleged? OPD"
As observed in decision upon issue no. 1, by issuing letter dated 23.08.2002 Ex.PW1/21, the defendants were still ready New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 17/27 to negotiate with plaintiff in terms of the agreements Ex.PW1/DX2 and Ex.PW1/DX3. The defendants did not deny having issued the letter Ex.PW1/21 to the plaintiff through their counsel. Paragraph no. 1 of the said letter reads thus:
"That because you failed to pay the balance consideration amount to my client inspite of his notice of demand, as per the terms of the agreement, my client had no other option left but to cancel your booking of the said flats on 07.09.1990 strictly as per the terms of the said agreement, but now, in view of your request, my client is ready to revive your booking, if you pay the balance amount and revival charges alongwith interest to my client as per the terms of agreement executed by you."
The concluding paragraph of the letter Ex.PW1/21 reads thus:
"In view of the above, you are, therefore, requested to make an application to revive your booking and to pay all your dues alongwith interest to my client, strictly as per the terms of the agreement executed by you."
The letter dated 23.08.2002 Ex.PW1/21 refers to cancellation of the booking of the flats booked by the plaintiff on 07.09.1990. In the same breath, through the letter Ex.PW1/21, the New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 18/27 defendants offered to negotiate with the plaintiff to make payment in terms of the agreements executed between the parties. In essence, there was no cancellation/termination of agreements between the parties. Issue No. 2 is decided in favour of the plaintiff and against the defendants.
12. Issue No. 3: "Whether the plaintiff is entitled to the relief claimed? OPP"
The plaintiff seeks the decree of specific performance against the defendants. The plaintiff seeks directions to the defendants to execute sale deed/ documents of title in respect of suit property i.e. Flat Pvt. No. 405 measuring 104.20 sq. feet and Flats No. 403A and 404 measuring 312.55 sq. feet, Rajendra's Mahavira Towers, MMTC/STC Shopping Centre, near Aurobindo College, New Delhi17 as shown in red colour in the site plan attached with the plaint and get the same registered in the office of concerned SubRegistrar. In the alternative, plaintiff seeks decree of recovery of Rs.10 lac as damages alongwith interest and New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 19/27 permanent injunction to restrain defendants from selling or otherwise alienating the suit property to a third person.
13. There is no dispute between the parties about the genuineness and the factum of execution of the agreements Ex.PW1/DX2 and Ex.PW1/DX3. The said agreements are dated 24.06.1986 and are titled "LICENSE DEED". As per the said agreements, the defendants i.e. Party of the First Part, as builders of the suit property, had secured all rights to enter into the present License Deed from the owners, who have secured perpetual lease hold rights in the suit plot. The suit plot having been taken on perpetual lease in public auction by the owners or builders from DDA/MCD or any other competent authority or previous owners on terms and condition as set out in the perpetual lease deed and the terms and conditions on the basis of which the auction was held. The License Deeds reads that the builders (defendants) have planned to construct the building thereon in terms of the said Perpetual Lease Deed. The License Deeds further read that the New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 20/27 plaintiff, as Party of the Second Part, i.e. the Licensee, has approached the Party of the First Part and had shown the desire to take on license a portion admeasuring approx. super area xxxx sq. feet, on xx floor which is a private floor indicated by the builder with the height of approx. 8'6'' in Rajendra's Mahavira Towers building on plot no. B2, MMTC/STC colony, Malviya Nagar, New Delhi on the terms and conditions amongst others, that he shall pay periodical security deposit besides other charges as detailed in Annexure A and annexed to this agreement, @ Rs.635/ per sq. feet of the super area (discount Rs.10/ per sq. feet). The private number of the space is RMT403A8 404 and RMT 405. The first page of the License Deeds also read that the allotment to the licensee to buy is provisional and subject to sanction of plans by the local sanctioning authorities. They provide that if for any reason any changes are required to be made by the architect of the builder or builder himself at any time before or after sanction of such plan, resulting in reduction or increase in the above mentioned super area, shape or its location, no claim monetary or otherwise New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 21/27 will be raised or accepted except that the amount will be calculated on the changed area at the rate per sq. feet as agreed above. Thus, the agreements Ex.PW1/DX2 and Ex.PW1/DX3 are not agreement for sale of the properties in question. The agreements clarified that the builder himself has obtained only perpetual lease deed of the plot in question from the concerned government authorities. The agreements also clarified that the defendants, as builder of the plot in question proposed to grant license of the portions of the property to be built up on the plot to the licensee i.e. the plaintiff. The terms related to the drawings and location of the space allotted to the plaintiff in the proposed structure were provisional, and subject to change. The license deeds Ex.PW1/DX2 and Ex.PW1/DX3 contain detailed terms and conditions that are not compatible with terms and conditions of contract of sale of an immovable property. The plaintiff cannot seek any relief extraneous to the terms and conditions agreed upon between the parties through agreements New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 22/27 Ex.PW1/DX2 and Ex.PW1/DX3.
In any case, the plaintiff had not done substantial acts in consequence of the contract; he had paid lesser than 50% of the total consideration amount to the defendants. Thus, it is even otherwise not a fit case of grant of specific performance.
14. If it is correct that there was no agreement to sell between the parties, it is also correct that the defendants obtained total amount of Rs.1,19,925/ from 24.05.1986 to 24.10.1986 from the plaintiff in pursuance of the agreements Ex.PW1/DX2 and Ex.PW1/DX3. The payment receipts are Ex.PW1/2 (Rs.6,617/), Ex.PW1/3 (Rs.19,847/), Ex.PW1/7 (Rs.19,223/), Ex.PW1/8 (Rs.6,513/), Ex.PW1/11 (Rs.16,933/) and Ex.PW1/13 (Rs.50,792/). The same were admitted by DW3 in his cross examination. The defendants were in dominant position visavis the plaintiff in reference to the aforementioned agreement. The defendants obtained a considerable amount from the plaintiff in the New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 23/27 year 1986 itself, but did not deliver the promised flat/office space to him. Rather, the defendants misused their dominant position and coerced the plaintiff through notice Ex.PW1/21 dated 23.08.2002 to pay the penalty as "revival charges", alongwith interest to keep the original agreements Ex.PW1/DX2 and Ex.PW1/DX3 alive.
15. Defendant/DW3 Rajender Jaina admitted in his crossexamination that building plan of the property in question was sanctioned in MayJune, 1993. Before approval of sanction of building plan, defendants could not have started construction on the suit plot. It entails that the defendants could not have terminated the agreements Ex.PW1/DX2 and Ex.PW1/DX3 on 07.09.1990 i.e. even before sanction of the building plan. Out of the total consideration amount of Rs.2,60,469/, the plaintiff had already paid Rs.1,19,925/ in the year 1986 itself. The defendants enjoyed the money of the plaintiff for several years without intimating to him that they did not even have sanctioned building plan of the New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 24/27 proposed premises. The defendants rode roughshod over the plaintiff by demanding penalty, revival amount and interest without delivering on the agreements. Defendants could not prove that the notices dated 07.09.90, 12.03.95 and 14.03.99 were actually delivered to the plaintiff. Plaintiff has proved that he was always ready and willing to pay the balance amount of installments, out of the total consideration amount stipulated through agreements Ex.PW1/DX2 and Ex.PW1/DX3 if the defendants had delivered the possession/allotted the flats/office space to him. On the other hand, defendants took full advantage of their dominant position and kept hoodwinking the plaintiff by keeping the negotiations open at the terms of their own choice till the year 2002, through letter Ex.PW1/21 dated 23.08.2002. The defendants thereby violated the terms of agreements Ex.PW1/DX2 and Ex.PW1/DX3. The question is - whether the aforesaid agreements are amenable to specific performance of execution of sale deed/title deed. The answer has to be in the negative for the reasons mentioned above. The compensation in terms of money shall be sufficient remedy for New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 25/27 the plaintiff.
16. As an alternate relief, the plaintiff has prayed for decree of recovery of Rs.10 lac as damages alongwith interest and permanent injunction to restrain defendants from selling or otherwise alienating the suit property to a third person. As per plaint, due to nondelivery of flats/office space by the defendants, plaintiff was forced to keep his office at property no. 22, Navjivan Vihar, New Delhi, which he could otherwise have given on rent and earn the rent of Rs.25,000/ per month.
However, the plaintiff has not specifically proved the loss incurred by him due to nonallotment of the flats/office space by the defendants. The plaintiff has not proved that it was stipulated between the parties at the time of entering into the agreements Ex.PW1/DX2 and Ex.PW1/DX3 that if the defendants violated the contract, the plaintiff would suffer loss @ Rs.25,000/ New CS No 10097/16 Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 26/27 per month due to lost opportunity to earn rent. Thus, plaintiff is not entitled to claim damages on account of special loss suffered by him. However, the plaintiff should be compensated for the harassment suffered by him at the hands of defendants. Issue no. 3 is decided accordingly.
17. In view of the foregoing discussion and analysis, it is held that the plaintiff is entitled to recover from the defendants an amount of Rs. 1,19,925/ alongwith interest @9% per annum, compounded yearly, w.e.f. 24.10.1986 till the actual realization of the decreed amount. Plaintiff shall be entitled to costs of the suit. Decree sheet be prepared accordingly.
18. File be consigned to Record Room as per rules after compliance of necessary legal formalities. Digitally signed by VISHAL
VISHAL SINGH
Announced in open Court SINGH
Date:
2018.02.27
Dated: 27.02.2018.
16:06:36
+0530
(Vishal Singh)
Addl. District Judge06 (Central),
Tis Hazari Courts, Delhi
New CS No 10097/16
Kali Das Dutt Vs. Rajender Jaina & Anr. Page No. 27/27