Delhi District Court
Sh. K.K. Golyan vs The Ishwar Industries Ltd on 28 February, 2014
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 782/10/97
Unique Case ID No. 02401C232002001
In the matter of:
Sh. K.K. Golyan
s/o Sh. M.P. Golyan
r/o 171A, Sainik Farms,
New Delhi.
.....Plaintiff
VERSUS
1. The Ishwar Industries Ltd.,
th
Ishwar Nagar, 10 Milestone,
Delhi Mathura Road,
New Delhi110065
2. M/s Growth Techno Projects Ltd.
7, Doctors' Lane, Gole Market,
New Delhi.
3. M/s Cassia Chattels P ltd.
7, Doctors' Lane, Gole Market,
New Delhi. .....Defendants
DATE OF INSTITUTION : 17/03/1997
DATE OF RESERVING JUDGMENT : 14/02/2014
DATE OF PRONOUNCEMENT : 28/02/2014
Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.1 of 10
JUDGMENT :This is suit for declaration and permanent injunction. Brief facts of the case are as follows: Case of plaintiff:
1.
Plaintiff Sh. K.K. Golyan Submits that defendant no. 1, Ishwar Industries Ltd. being owner of land measuring approximately 13652 Sq. yds located in Khasra No. 1723/1705, 1724/1707, 264, 262, 257, 258/1, 259 and 256 having certain construction existing thereon situated at Ishwar Nagar, 10th Milestone, Delhi Mathura Road, New Delhi110065 entered into property development agreement dated 04.02.1986 with M/s B.D. Developers (ProjectI) to develop the above land on fiftyfifty basis for block4 of Tribhuwan Complex to be reckoned as Project1. Subsequently, all the rights, titles and interests of B.D. Developers in the said development agreement dated 04.02.1986 devolved on defendant no. 2,M/s Growth Techno Projects Ltd.
Plaintiff submits that in pursuance of the above a built up space i.e. a unit bearing no. 30 measuring 868.70 Sq. feet on ground floor in proposed multistoreyed building at Tribhuwan Complex was allotted by defendant no. 2 in favour of Sh. Desh Raj Mahajan, C99, NDSE, PartII, New Delhi110049 at the basic rate of Rs. 650/ per Sq. feet as per allotment letter dated 17.03.1997 and the allottee paid Rs. 1,12,840/ vide cheques no. 053903 dated 17.03.1997 of Bank of America, New Delhi and the balance amount was payable in the manner and as per the second schedule attached with the allotment letter. The said allotment was confirmed by defendant no. 1.
Plaintiff further submits that Shri. Desh Raj Mahajan transferred all his rights under the Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.2 of 10 said allotment letter to defendant no.3,M/s Cassia Chattels Pvt ltd. and same transfer was confirmed by Defendant no.2. That later on defendant no.3 also transferred all its rights under the said allotment letter to the plaintiff on 12/12/1991 together with the benefits of all payments made by defendant no.3 which was confirmed by defendant no.2. That defendant no.2 also gave a letter dated 12/12/1991 to the plaintiff informing that due to structural changes in the Tribhuwan complex renamed as growth center the unit no. 30 was raised to unit no.52 and the area was revised to 684.97 sq.ft. It was also confirmed that against this revised unit no.52, the defendant no.2 was to receive Rs. 2,39,739.50 at the rate of Rs. 350/ per sq. ft. which was payable by the plaintiff interlinked with the construction programe, the details of which were to be informed at a late stage.
Plaintiff submits that he had performed his part of the contract at that stage and at all relevant times was ready and willing to perform its remaining part of the contract but defendant no. 1 and 2 unduly delayed the construction of the project and till date have not started the construction of the project.
Plaintiff further submits that he has received a letter dated 04.03.1997 from defendant no. 3 wherein defendant no. 3 had stated that inspite of their repeated requests and reminders plaintiff has failed to return the canceled allotment letter no. 30 in respect of unit no. 52, Tribhuvan Complex, Mathura Road, New Delhi and further the plaintiff has been called upon to return the same within a one week of the receipt of the letter failing which defendant had threatened to take legal action against plaintiff.
Plaintiff further submits that the aforesaid stand of defendant no. 3 is absolutely Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.3 of 10 incorrect and against the facts of the case.That neither defendant no. 3 has any right to cancel the allotment of above unit nor the allotment was ever canceled and that the letter was issued by defendant no.3 with ulterior motives and malafide intentions and same has been replied by plaintiff vide letter dated 07/03/1997.Plaintiff apprehends that defendants with a view to cause wrongful loss to plaintiff and wrongful gain to themselves may create third party interest in the said unit which will cause irreparable loss and injury to plaintiff.
Plaintiff further submits that none of the defendants have any right to cancel the allotment of plaintiff in respect of unit no. 52 and plaintiff was not given any cause for same hence the cancellation of unit is unlawful and arbitrary and the allotment of the unit in favour of plaintiff subsists and survives to the benefit of the plaintiff for all intents and purposes. That the letter of defendant no.3 dated 04/03/1997 is absolutely malafide and illegal and deserves to be so declared hence plaintiff has filed present suit praying for following relief:
"a) A declaration be granted in favour of the plaintiff to the effect that there is not cancellation of the allotment of the plaintiff in respect of the unit no. 52, Tribhuwan Complex, (Growth Centre), Ishwar Nagar, Delhi Mathura Road, New Delhi110065.
b) That the declaration be also granted in favour of the plaintiff to the effect that the alleged cancellation of the allotment of the plaintiff as per letter dt.
4.3.1997 of the defendant no.3 is absolutely illegal, ultravires and of no effect.
c) A declaration be also granted in favour of the plaintiff to the effect that the Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.4 of 10 allotment of the plaintiff in respect of unit no.52, Tribuwan Complex, (Growth Centre), Ishwar Nagar, Delhi Mathura Road, New Delhi, subsists and survives for all intents and purposes.
d) That this Hon'ble Court may also be pleased to pass a decree for the grant of permanent injunction, thereby restraining the defendants, their agents, Attorney and successors in office from selling, transferring, alienating the said unit 52 in favour of any one else and creating any third party right in the said unit.
e) Any other order or relief be also passed and granted in favour of the plaintiff and against the defendants."
2. Defendant no. 1 was proceeded exparte vide order dated 15/02/01.
3. Stand of defendant No. 2 and 3:
Defendant no. 2 & 3 have filed their joint written statement taking preliminary objection regarding valuation of suit, pecuniary jurisdiction of Court and that suit of plaintiff is not maintainable being simplicitor suit for declaration and that suit for specific performance ought to be have been filed. Defendant no. 2 & 3 submit that offer to make allotment in favour of plaintiff was subject to payment of consideration amount 50% immediately and thereafter 50% interlinked with the construction. That plaintiff has not even paid 50% of the total consideration and hence the allotment stands canceled. Defendants deny that plaintiff had Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.5 of 10 performed its parts of contract and submit that even plaintiff does not disclose how much amount was paid by plaintiff. Defendants submit that plaintiff has no locus standi to file present suit as the offer of allotment is already canceled for nonpayment of consideration. That the unit in question is already allotted to third person.
Letter dt. 04.3.1997 is admitted by defendants and they submit that the allotment was already canceled for want of payment of consideration, hence, the letter of plaintiff dated 7/03/97 is wrong, false and misconceived as even in this letter, plaintiff is totally silent about payment of consideration amount. Defendants submit that plaintiff has no right, interest or lien in the unit offered to be allotted vide allotment letter dated 12/12/91 and as such cannot seek any relief against the said allotment, thus, plaintiff has not locus standi to interfere with the rights of the defendants in respect of the said unit which stands allotted to third person. Defendants submit that the suit of plaintiff be dismissed.
4. On completion of pleadings of parties, following issues were framed on 26/02/2004:
(1) Whether the suit of plaintiff is liable to be dismissed u/o 7 Rule 11 CPC for want of cause of action? OPD (2) Whether the plaintiff has not properly valued the suit for the purpose of jurisdiction & court fee?
(3) Whether this court has no pecuniary jurisdiction to try this suit? OPD (4) Whether the plaintiff is entitled for the relief of declaration, as Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.6 of 10 prayed for? OPP (5) Whether the plaintiff is also entitled for the decree for permanent injunction, as prayed for? OPP (6) Relief.
Evidence brought on record:
5. Plaintiff has led evidence vide affidavit Ex. PW1/A. Plaintiff has relied upon Ex. PW1/1 to Ex. PW1/5. Ex. PW1/1 is the allotment letter dated 17.03.1987, Ex. PW1/2 is the letter of defendant no.2 dated 12.12.1991. Ex. PW1/3 is letter dated 04.03.1997 for return of cancelled allotment letter. Ex. PW1/4 is letter /reply of plaintiff dt. 7.03.1997. Ex. PW1/5 are the photocopies of the postal receipts. Plaintiff has been cross examined by ld. counsel for defendant.
Defendant has not led any evidence in present suit.
6. I have heard the arguments as advanced by Ld. Counsels for both the parties and carefully perused the record.
7. My issue wise findings are as follows:
Issue No.1 : Whether the suit of plaintiff is liable to be dismissed u/o 7 Rule 11 CPC for want of cause of action? OPD The onus to prove this issue was on defendants. No evidence on this issue has been Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.7 of 10 led by the defendant thus it is not proved that the suit is liable to be dismissed u/o 7 rule 11 CPC. Issue is accordingly decided against the defendants and in favour of plaintiff. Issue No. 2 & 3 : Whether the plaintiff has not properly valued the suit for the purpose of jurisdiction & court fee?
and Whether this court has no pecuniary jurisdiction to try this suit? OPD The onus to prove these issues was on defendants. Plaintiff has filed this suit for declaration and permanent injunction and has accordingly valued the suit and filed the court fees. Defendant has not led any evidence to prove these issues. Further it is also not proved how the suit is beyond pecuniary jurisdiction. Hence, these issues are decided in favour of plaintiff.
Issue No. 4 & 5
: Whether the plaintiff is entitled for the relief of declaration, as prayed for?
OPP and Whether the plaintiff is also entitled for the decree for permanent injunction, as prayed for? OPP The onus to prove these issues was on the plaintiff. Section 34 of Specific Relief Act 1963 provides as follows:
"34. Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.8 of 10 character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."
Plaintiff herein in present suit is seeking simplicitor declaration of a status and is not seeking any consequential relief. Plaintiff has relied upon the case laws in Union of India,Ministry of Food and Agriculture vs. Pearl Hosiery and mills and others AIR 1961 Punjab. 281 (V 48 (85) and Syed Saulat Hussain vs. Syed Illmuddin AIR 1981 Rajasthan 29. However, in my humble opinion these case laws are not applicable to the facts of present case.
It is settled law that if plaintiff is out of possession then without seeking the relief of possession, declaration cannot be granted. Plaintiff has not sought relief of possession and further plaintiff has also not sought the consequential relief of specific performance in present suit. Defendant has relied upon AIR (36) 1949 Privy Council 53 wherein it has been held that declaratory decree is discretion of court and declaration without possession is ineffective and has to be refused. Further in the matter of Ram Saren and another vs. Smt. Ganga Devi AIR 1972 Supreme Court 2685(V 59 C 525) it was held that where defendant is in possession of Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.9 of 10 some of the suit properties and the plaintiff in his in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of suit properties,then the suit is not maintainable.
In Samad Dar vs. Mohammed Ismail Tantrary AIR 1983 J & K. It has been held that suit for declaration simpliciter is incompetent and Consequential relief of possession ought to have been asked for. Further in Didar Singh vs. Mohinder Singh also it has been held that if plaintiff is out of possession of suit property then suit for permanent injunction is not maintainable. Thus plaintiff being out of possession cannot seek simplicitor declaration and permanent injunction.
Plaintiff in present suit is admittedly out of the possession of suit property and has not sought the relief of possession thus plaintiff is not entitled to reliefs of simplicitor declaration and permanent injunction as prayed. Accordingly Issues No. 4 and 5 are decided against the plaintiff.
8. Relief: In view of aforesaid findings suit of plaintiff stands dismissed. No orders as to cost. Decree sheet be prepared accordingly. File be consigned to record room as per rules.
th Announced in open court on this day of 28 of February, 2014 Certified that it contains eleven (10) pages signed by me.
(Richa Parihar) CJ06/Central/28/02/2014 Sh. K.K. Golyan vs. Ishwar Industries & Ors. CS No. 782/10/97 Page No.10 of 10