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[Cites 12, Cited by 0]

Delhi District Court

Sir Sobha Singh & Sons Private Ltd vs The Union Of India on 31 August, 2009

                                                   1

   IN THE COURT OF SH. AJAY GOEL, SENIOR CIVIL JUDGE CUM
             RENT CONTROLLER(CENTRAL)DELHI

                                                    

S­1388/06/60

(Oldest Case :­ More than  49 years Old)

In the Matter of :­

Sir Sobha Singh & Sons Private Ltd.
Through
S.B. Sir Sobha Singh, 
Chairman of the Board of Directors,
I­A, Janpath, New Delhi.                                                              
                                                                                      ........Plaintiff.

                                             VERSUS

The Union Of India
Through
The Chief Commissioner,
 Delhi State, Delhi.                                     
                                                                                   ....... Defendant.

Date of Institution: 11.8.1960
Date of Assignment to this court: 05.11.2008
Date of Conclusion of the Arguments: 29.8.2009
Date of Decision:  31.8.2009

JUDGMENT

1. This is a suit for declaration and injunction filed by the plaintiff against 2 the defendant. It was stated that the plaintiff is a private ltd. company with its registered office at 1­A, Janpath, New Delhi and Sh. Sir Sobha Singh is the Chairman of the Board of Directors of the plaintiff company and is authorised to institute, sign and verify the plaint. As stated in the year about 1943­44, on the request of the defendant through its other officers and secretary of the Labour department, who was the then in­charge of the Government Estates and responsible for providing accommodation for the Government, in accordance with the requirement of the defendant, approached Sir Sobha Singh, Chairman of the Board of Directors of the plaintiff company to undertake the construction of hundred flats on a plot of land to be granted on a perpetual lease and with material to be arranged by the government against payment. As stated on the request of the defendant, Sir Sobha Singh formed and registered a private limited company with the object of executing the work aforesaid and a privity was thus established between the plaintiff and the defendant. As stated the then Secretary of the Labour Department, Mr. Prior, the Chief Architect to the Central Government, Mr. Medd, the representative of the Central Public Works Department, K.B. Mohammad Solaiman and the Chief 3 Commissioner of Delhi, Mr. A. V. Askwith guided and directed the plaintiff in the construction of the said building and a meeting was also held at the residence of the Chief Commissioner of Delhi attended by the L & DO on behalf of the defendant and Mr. Walter George, Architect of the plaintiff. As stated the entire building as it stands today was included in the scheme from the very beginning and all the variations in the scheme which were made from time to time were minor. As stated in full compliance of the covenants of the lease and by laws of the Municipal committee, the building was constructed as planned by the officers of the defendant and the portion of the building now called the 'Hotel Block' formed part of the construction and was included in the project. It was further stated that the Chief Commissioner of Delhi, the representative of the CPWD, the L & DO and the chief architect to the Government of India were parties to the construction thereof, from the laying of the first brick to the stage the last floor was reached. As stated on the cessation of war, the building called the 'Hotel Block' was incomplete only in the sense that the roof had to be laid on the top floor, the floors had to be laid and the plastering of walls and finishing had to be done on the building that 4 had been constructed. As stated on 8th October, 1945, an agreement to Lease was executed between the parties and plaintiff would rely on the terms and conditions of the said lease deed. As stated it was contended by the defendant that the construction of the Hotel Block is against the terms of lease and construction had been completed before the agreement was executed and had the approval of defendant's officers and the parties were bound by the terms set out therein. As stated the defendant started contending that the construction of the Hotel Block was in violation of the terms of lease and the same was unauthorised and it made a demand of Rs. 1,83,750/­ by way of additional premium and additional ground rent at the rate of Rs. 9,187/8 p.a. and defendant made a further claim of additional premium of Rs. 40,000/­ and additional ground rent of Rs. 2000/­ p.a. with respect to Laundary Block. As stated the above said demand was wholly unjustified and against the terms of lease. It was further stated that by its letter dated 2nd February, 1956 and the 6th April, 1956, the plaintiff company set out its entire case in respect of the allegations made by the defendant in the Chief Commissioner's letter No. 3200­L dated the 3rd January, 1956 and controverted the various allegations made in respect of 5 the Hotel Block, Laundry Block and 31 garages. As stated the plaintiff followed this up by a notice U/S 80 of CPC dated 29th October, 1958 addressed to the Secretary, Ministry of Works, Housing and Supply, Government of India, calling upon the defendant to withdraw its objections. It was further stated that by his letter No. 3200­L dated 24th February, 1959, the chief commissioner of Delhi for and on behalf of the President of India served a notice on the plaintiff, contending that the plot of land measuring 7.58 acres and bounded as follows:­ On the North by Himayun Road On the South by Service Road On the East by Cornwallis Road On the West by Service Road.

had been misused, that the building erected thereon are not in agreement with the provisions of lease and other breaches as mentioned below had been committed.

I) Misuse of ground floor of one of the blocks of servants' quarters as a laundry and a motor service station.

6

II)Misuse of 31 garages in the servants' blocks as petty shops and motor workshops III)Misuse of 'N' Block proposed for staff quarters for the offices of New India Typewriter Company and Workshop of Simla Hills Transport Co.. IV)Misuse of the open spaces as Muni Lal Nursery and Janta Nursery, who have also erected unauthorised huts and are carrying on the trade in the sale of flowers and plants.

2. As stated the chief commissioner called upon the plaintiff to remedy the breaches and threatened that on the failure of the company to remedy the same within the time prescribed, the defendant will thereupon re­enter and enforce its legal rights of re­entry. As stated by letter dated 24th February, 1959, the defendant took no action till the 5th August, 1960 and allowed the plaintiff to continue as before. It was further stated that plaintiff contended that the allegations made and breaches mentioned in the letter dated 24th February, 1959 were wholly baseless on the grounds out of which some are given below:­

a) That the agreement to lease dated 8th October, 1945 represented the structure as it then existed and recognized the construction of all that 7 has been later on objected to.

b) That there has been part­performance, precluding the defendant from contesting the propriety of the construction and the use to which it is being put.

c) That the allegations regarding the misuse of 'N' Block is completely wrong and no misuse has ever been made.

d) The notice had not been issued by any authority competent to do so.

e) The notice was malafide, oppressive, unjust and it could not be enforced.

3. It was further stated that by its letter No. Enf.1­3(1831)/60 dated 5th August, 1960, an Under Secretary acting for and on behalf of the Chief Commissioner of Delhi had served an order on the plaintiff received by it on the 8th August, 1960 intimating that the Chief Commissioner had re­ entered upon the property w.e.f. 29th July, 1960 and directing that the possession of the premises be made over to Mr. A.S. Tyagi, Assistant Engineer at 10. a.m. on the 12th August, 1960. As stated in spite of the warning, that no further action would be taken, the defendant threatens to take over possession of the premises on the basis of its order dated 5th 8 August, 1960. Hence it was prayed that a decree be passed in favour of the plaintiff against the defendant giving the reliefs as mentioned in the plaint.

4. Written Statement was filed by defendant in which the contents of plaint were denied. It was stated that the suit is barred by time in respect of the relief of specific performance and is bad for mis­joinder of causes of action. As stated that the Government of India intended to allot the two plots of the land in New Delhi, one on the North and other on the South of the junction of the Cornwallis and Himayun Roads, New Delhi for purpose of residential flats through private enterprise and consequently Sir Sobha Singh approached the authorities for the allotment of the two sites for the said purpose. It was further stated that the defendant intended to give on lease two plots of land to the plaintiff and the two agreements dated 10.8.45 were executed between the parties on the terms and conditions as mentioned in WS. It was stated that the Hotel Block never formed part of the construction to be set up, it was completely unauthorised, without permission and against the clear terms of the agreement and it amounts to a flagrant breach of the terms of the contract. As stated the plaintiff had not performed his part of the contract, nor had 9 he done any act in furtherance of the contract rather, he had committed breach of the terms of the agreement and it was stated that plaintiff could not make any variation of the two agreement unilaterally without the specific permission. It was stated that notice u/s 80 CPC dated 28.10.58 was received, but its contents were denied as these are wrong and incorrect. It was stated that plaintiff company had misused the buildings set up on the plot and these breaches are not in accordance with previously approved and sanctioned plans and designs of the Government and was without permission and authority and were being used for business purposes and some of the portions were being used as offices of New Type Writer Company and Simla Hill Transport and workshop was also set up there. It was further stated that during the currency of the said agreement, land could only be used for the purpose mentioned therein and plaintiff is not entitled to carry on Hotel Business on the land.

5. Replication was filed by plaintiff in which contents of WS were denied and those of plaint were reiterated.

6. Vide order dated 15.2.1961 two issues were framed:­

1) As to whether the suit is properly valued for purposes of court fees and 10 jurisdiction?OPP

2) Whether the suit is laid in the present form is not competent?

7. Vide order dated 1.5.1961 it was held that suit has not been properly valued for purposes of court fees and jurisdiction and thereafter application for amendment of plaint U/S 6 Rule 17 CPC was filed which was allowed which incorporated certain relief and again following two issues were framed:­

1. Whether the suit is properly valued for purposes of court fees and jurisdiction?

2. Whether the suit is bad for mis­joinder of cause of action?

8. Evidence was taken on these issues and thereafter it was held that suit has not been properly valued and plaintiff was directed to valuation of the suit and to pay the additional court fee but issue No.2 was decided against the defendant and it was held that suit is not bad for mis­joinder of cause of action vide order dated 27.9.1961.

9. Vide order dated 9.11.1961, the following issues were framed:­

1) Whether the suit is within time?OPP

2) Whether the suit for specific performance and injunction is not 11 competent?OPP

3) Whether the suit is bad for mis­joinder of cause of action?OPP

4) Whether the plaintiff has a locus­standi to file the suit?OPP

5) Whether the suit has been instituted by a person properly authorised on behalf of the plaintiff?OPP

6) Whether all the buildings on the plot leased to the plaintiff by the agreement dated 8th October, 1945 has been completed before the execution of that agreement?OPP

7) If issued No.6 is proved whether the defendant is entitled to contend

(a) that the buildings were not constructed in accordance with the designs and specifications sanctioned by the Chief Commissioner; and

(b) that the block of the building constructed by the plaintiff is unauthorised and not in accordance with the agreement dated 8th October, 1945?OPP

8) If issue No. 7 is proved, whether the blocks of flats were constructed with the approval of the chief Commissioner and whether they were authorised and in accordance with the agreement of 8th October, 12 1945?OPP

9) Whether the plaintiff has been guilty of contravention of the terms of the agreement to lease by making use of any part of building and structures for purposes other than those specified?OPP

10) Whether the plaintiff has failed to fulfil any of its obligation under the terms of the contract and whether there has been contraventions of the clauses 3 or 7 of the agreement?OPP

11) Whether the agreement dated 8.10.1945 stood revoked? If so how and on what date?OPP

12) Whether the plaintiff is debarred from claiming the reliefs claimed by reason of its conduct?OPD

13) Whether the notice u/s 80 CPC served on the defendant is invalid?OPD

14) Whether the defendant is estopped from contending that the terms of the agreement dated 8.10.1945 have been violated?OPP

15) Whether the defendant has exercised the right of re­entry in accordance with the terms of the agreement? If so with what effect?OPD 13

16) Whether the amended plaint has not been in accordance with my order dated 27.9.1961? If not to what extent and to what effect?OPD

17) Relief

10.Both the parties during the course of arguments has submitted that initially preliminary issue was framed vide order dated 15.2.1961.

1) As to whether suit as laid in the present form is not competent but as the same was not decided and now the same issue is merged with issue No.2 framed on 9.11.1961.

11. As per order sheet dated 23.10.1962 it is made out that certain witnesses were recorded on commission by way of interrogatories and the case was adjourned sine die for awaiting the outcome of those proceedings, meanwhile the case was transferred to Hon'ble High Court under Delhi High Court Act but later on transferred to District Judge Court on 31.1.06 which was marked to Senior Civil Judge. Another case bearing no. 1389/06 which was previously bearing no. 653/76 was also pending and the present case was bearing no. 642/76 at that time and both of them were clubbed/consolidated together vide order dated 17.9.1981 but now the 14 counsel for the plaintiff has submitted that he has already withdrawn the case bearing 653/76 on 16.9.08. Hence now I have to decide only this case which now bears no. 1388/06/1960.

12.Three witnesses were served interrogatories namely Khan Bahadur Mohd. Solaiman, Mr. H.A. N Medd and Mr. Walter Telham Bryant relevant extract of which and their respective replied are discussed as follows:­ Interrogatories served to Khan Bahadur Mohomed Solaiman and his replies Interrogatories Reply

3. Kindly state in what year and from Approximately from 1942 to 1946 I what time to what time were you the was Additional Chief Engineer and Additional Chief Engineer and from 1947 I was Chief Engineer. thereafter the Chief Engineer of CPWD?

4. Are you or are you not aware that 4. Yes, I am fully aware of it. there was proposal by the Govt. of India in April, 1943 to dispose off two plots of land measuring 7.58 acres each situated at junction of Cornwallis Road and Hamayun Road by negotiations instead of by public auction?

15

5. Did you write to S.B. Sir Sobha 5. I see Ex. 2 which is a copy of the Singh on the 14th April, 1943? Please letter dated 14.4.43 and say that it see the letter dated 14.4.1943 and say was written by to S.V. Sir Sobha whether it has your signatures? Singh. As it is merely a copy, it does not bear my signature.

7. Was the accommodation required 7. The condition was the Govt. of for use by the Govt. of India of an India would make use of the flats and urgent nature? the hotel according to their needs.

8. Is it correct that in view of the 8. Yes urgent nature of the project and the project having been sponsored by the Govt. of India, it was to be treated on the same level as any other Govt.

Project to the matter of sanction of the plans by the New Delhi Municipal Committee and the L&DO and compliance of any other formalities?

12. Did you ever inspect the building 12. Yes, I always inspected the same when under construction? every now and then.

13. Was the building constructed by 13. Yes.

Sir Sobha Singh in accordance with the directions given to him by the Chief Commissioner and the Ministry of Labour and the Chief Engineer, CPWD?

14. Did Sir Sobha Singh comply with 14. Yes, he did.

the conditions on which the two plots of land were alloted to him?

16

15. Did ever the construction of 15. No, it was not objected to by any buildings on both the plots on both of one named in the interrogatory. sides of Cornwallis Road consisting of flats, hotel block, servant quarters, garages and the laundry block objected to by you or any other officer of the Govt. of India/ Interrogatories that were served to Mr. H. A. N Medd and his replies:­ Interrogatories Replies

3. From what date to what date were 3. From a date in September, 1939 you the chief Architect to the Govt. which I cannot remember to 21st of India? September, 1947.

4. Were you concerned with the 4. In my capacity as Chief Architect I construction of the buildings on the was one of the Scrutinizing Officers two plots allotted to Sir Sobha Singh of all buildings schemes in the New on either side of Cornwallis Road? Delhi area. To that extent I was officially concerned in the construction of the buildings in question.

5. Was the design and layout of the 5. Yes.

flats, the hotel block, garages, servant quarters and the laundry block on both sides of Cornwallis Road, prepared by Mr. Walter George, ARCA, FRIBA with your approval?

17

           Interrogatories                                  Replies
6. Did you have occasion to inspect        6. Yes.
the spot?
7. Did Sir Sobha Singh Company             7. Yes.
with the requirements of the
allotment of land to him?
8. Was the construction in                 8. Yes.
accordance with therewith?
9. Did you have any objection to the 9. No. 
construction which had been done?

Cross Interrogatories were served to Mr. H.A.N Medd and his replies. (Relevant Extract)

3. It is correct that Sir Sobha Singh 3. Initially the sanction was for was only allowed to set up a block of blocks of flats for more Senior flats for officials and non officials of officials. I cannot remember whether good standing on the two plots. He the Original Sanction specifically was not authorized to set up any forbade the setting up of a hotel, but hotel block or do any hotel business sanctioned for one must have been in the said block. If you say he was given subsequently as it was thought authorized to do so? Then please that such facilities would be required, given particulars of that authority and since the construction of the hotel who granted him such authority was commenced before the flats whether that authority was in writing. completed. I cannot give the particulars of the authority or whether it was in writing.

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Interrogatories served to Mr. Walter Telham Bryant and his replies:­ Interrogatories Reply

3. Q. From what time to what time From the year 1942 to 1944. I do not were you the President of the New remember the month of the Delhi Municipal Committee? Commencement and the termination of my tenure.

4. Q. During your tenure as President I do not remember of the New Delhi Municipal Committee, did you come across the construction of flats, the hotel block, servant quarters, garages and laundry block on the two plots of land alloted to Sir Sobha Singh on either side of Cornwallis Road?

5. Q. Was the construction Does not arise undertaken by Sir Sobha Singh open to any objection on the part of the L&DO or the New Delhi Municipal Committee?

6 Q. Did you as President of the New Does not arise.

Delhi Municipal Committee or the NDMC as a body ever raise any objection tot he construction of the buildings as they were under construction?

7. Q. Please look at the letter dated I am shown the original letter dated 28th October, 1944(original 28th October, 1944 to Walter George, enclosed). Is the letter signed by Architect, 1 Scindia House New you? Are its contents correct? Delhi. The letter is signed by me. I must have been satisfied as to the correctness of the statements made therein at the time of my signature.

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Interrogatories Reply Further Cross Interrogatories were served to Mr. Walter Telham Bryant and his replied.

2. Q. Have you got any record to I have no records.

show that the construction made by Sir Sobha Singh was not open to any objection?

10 Q. under the by­laws of the New I presume so Delhi Municipal Committee it was imperative that sanction of the committee must be objtained for any building which is to be set up within the Municipal Jurisdiction.

13.In evidence the, the plaintiff examined following 7 witnesses in support of his case i.e. PW­1 Sh. D.N. Kapoor, PW­2 Sh. Radhey Shyam, PW­3 Sh. Rati Ram, PW­4 Sh. Moti Lal, PW­5 Sh. S. R. Sharma, PW­6 Sh. Ram Parshad, PW­7 Sh. K.L. Sabharwal. In the statement of PW­1 it was stated that he did not brought the summoned record. As stated the letter was purported to be from D.N. Gupta, Electrical Engineer to the effect that it was not possible to trace out the record as they were very old one and the letter was Ex. P1. In the statement of PW­2, it was stated that the 20 summoned record was not brought by him. As stated the he brought the letter from Sh. S. K. Sharma, Under Secretary, PWD dated 30.9.1982. In the statement of PW­3 it was stated that he had not brought the summoned record as the same relates to the year 1944 and only record of 10 years is kept in the office and the rest is destroyed. Therefore the said record could not be made available. It was stated by the counsel for plaintiff that he be allowed to produce secondary evidence in view of the destruction of the record. In the statement of PW­4, it was stated that he had brought the originals of some of the letters summoned from the L & DO and it was decided that the witness would bring the originals and th counsel for the plaintiff would get the Photostat copies prepared and those Photostat copies would be Ex. as P2 to P8. It was stated the documents are more than 30 years old and it is with a view to help the department to preserve the originals with them and therefore the originals were not being taken on record and only Photostat copies were being taken on record and exhibited and other summoned documents were not brought as the same were not traceable. In the Statement of PW­5, it was stated that the summoned record had been destroyed and therefore the same could not be brought. It 21 was prayed by the counsel for plaintiff that he might be permitted to produce secondary evidence in view of the destruction of the record and permission for the same was allowed. In the statement of PW­6, it was stated the Ambassador Hotel, New Delhi was owned by a Joint Stock company known as United Hotels Pvt. Ltd. and Hotel is located in Sujan Singh Park abutting Cornwallis Road, New Delhi. It was stated that PW­6 was the managing Director of the company United Hotels Pvt. Ltd. and the said company was the tenant of Sir Sobha Singh & Sons Pvt. Ltd. plaintiff and the tenancy was since 1950. It was stated that first of all they had to got themselves registered under the Sarai Act and then they applied for the excise licenses which were granted to them and they also applied to New Delhi Municipal Committee for running the Hotel Which was also granted the licenses under Sarai Act as well as the Excise Act and extra power of 150 KW for running the hotel was also given by Delhi Electric Supply Undertaking. It was stated that it was a four star Hotel approved by the Government of India. It was further stated that the letter bears the signature of Mr. C.S. Edward who was Under Secretary in the Ministry of Mines and Power, Government of India and it was stated by PW­6 that he 22 had been visiting to Mr. C.S. Edward many times and had been seeing him writing and signing therefore he could identify his signatures. In the statement of PW­7 it was stated that he was an Assistant Director in DDA and the Zonal Plans of DDA were in possession of DDA and zonal plans Nos. D­11 and D­12 were not brought by him relating to Khan Market area as it was not traceable in DDA and it was stated that the originals used to be with DDA while the prints were sent to the Government for approval but the approval had not been received as yet and if time is given, it might be traced. In chief examination certified copy of draft zonal plan D­11 and D­12 was brought a nd the said copy was marked as PW­ 7/1 and the portion marked red in this plan is the Hotel Block.

14. One witness namely Sh. Bhagwant Singh was examined by Local Commissioner Mr. Suryakant Singla, Advocate as per the order dated 16.5.1983 passed by Hon'ble High Court. In his statement, it was stated that he was the Chairman of plaintiff company. The original minute books of the company and the articles of association were brought by him. Certified copy of the Certificate of Incorporation of the plaintiff company was Ex. CPW­1/1, true copy of articles of association was Ex. CPW­1/2, 23 copy of resolution passed by the Board of Directors of the plaintiff company was Ex. CPW­1/3, another resolution passed in the meeting held on 9.8.60 was Ex. CPW­1/4, letter dated 14.4.1943 was Ex. CPW­1/5, letter of acceptance sent by the plaintiff was Ex. CPW­1/6, copy of letter dated 4.8.1943 was Ex. CPW­1/7, letter signed by Mr. Bhattacharya was Ex. CPW­1/8, other letters signed by different officers were Ex. CPW­1/9 to CPW­1/108 and it was stated that he was conversant with the signatures of officers and persons concerned to CPW­1/8 to CPW­1/108, notice U/S 80 CPC was Ex. CPW­1/109, certified copy of perpetual lease deed was Ex. CPW­1/110, letter signed by Mr. Bryant was Ex. CPW­1/111, letters signed by Mr. M.A. N. Medd were Ex. CPW­1/112 to CPW­1/115, Ex. CPW­1/116 and CPW­1/117 were addressed to the Chief Commissioner and signed by his father, notice U/S 80 CPC from his lawyer Bakshi Shiv Charan was Ex. CPW­1/118, copy of letter received by them was Ex. CPW­1/119. Thereafter, the evidence of plaintiff was closed by order dated 01.8.1984. However, the defendant did not lead any evidence and evidence was closed on 16.8.84 by court.

24

15.I have gone through the record, evidence, pleadings, interrogatories, citations and have heard the arguments of both the counsels. Both the counsels have taken number of dates to argue the matter which have been addressed in piecemeal and could be concluded only 29.8.09. My issue­ wise findings are given below:­

16. Issue No. 1: Whether the suit is within time?OPP:­ The onus of proving this issue was on plaintiff. It has to be kept in mind that defendant has not lead any evidence on any of the issues and there are only averments of the defendant. The defendant has simply taken the objection that suit is barred by time for the relief of specific performance of the contract but how is not specified. Thus it is left upon the court to go through the averments as well as the date of cause of action and the act committed by the defendant on the basis of which the present suit was filed. The suit admittedly has been filed on 11.8.1960 and the plaintiff has taken the stand that certain allegations were made in letter dated 24.2.1959 by the defendant against the plaintiff and further that on 5.8.1960 Under Secretary on behalf of the defendant has re­entered upon 25 the property on papers though the actual possession was not taken over and thus he was threatened and there was apprehension in mind that the defendant are bent upon in taking forcible possession. Hence the need for filing the present suit arose and therefore the suit is within limitation. It is further rightly argued that the defendant made his intention clear by way of present letter that they are not going to execute the documents, hence the present suit was filed. It was also submitted that on 1.12.1960 the plaintiff filed suit no. 235 of 1960 in the court of Sh. N.C. Gupta, Sub Judge, Ist class and notice of the suit and injunction application was issued to be defendant on 14.10.1960 and on the same day an injunction order restraining the defendant from enforcing re­entry was passed which order is still in force and the plaintiff is in continuous possession of the suit property since 1943, thus the suit is within limitation. There is nothing in rebuttal. Hence I hereby decide this issue in favour of the plaintiff and against the defendant and held that the suit is within limitation.

17. Issue No.2: Whether the suit for specific performance and injunction is not competent?OPP:­ Under this issue the plaintiff was required to prove that present 26 suit is maintainable. Though it seems that onus had been wrongly placed on plaintiff and it should have been the defendant to prove that how the suit is not maintainable, how the suit is not competent but keeping in view the ratio laid down in number of judgment by the superior courts where opportunity for evidence had been granted the onus losses significance. Hence I decide this issue without going into the controversy as to who should have proved it. The plaintiff has performed certain acts in view of the allotment of land and agreement which were availed as benefit by Government. The agreement dated 8.10.1945 is duly proved as being executed between the parties and notice of re­entry was issued. Hence in these circumstances the claim of the plaintiff to prevent the defendant from re­entering by way of decree of injunction and for crystallizing its rights by way of specific performance cannot be said to have been non competent. He has approached the court to seek relief and the same is to be seen under the remaining issues as to whether they have been proved or not. Even otherwise defendant has not pleaded any reason why the suit for specific performance and injunction is not competent. Under this issue the plaintiff was able to prove that his suit is competent. Accordingly I 27 decide this issue in favour of the plaintiff and against the defendant.

18. Issue No.3: Whether the suit is bad for mis­joinder of cause of action?OPP:­ This issue is already decided by my Ld. Predecessor vide order dated 27.9.61 and suit was not held to be bad for misjoinder of cause of action. Hence the issue is disposed off against the defendant.

19. Issue No.4: Whether the plaintiff has a locus­standi to file the suit?OPP:­ Under this issue the plaintiff had to prove that there exist locus standi in the plaintiff to file the present suit. The defendant has not denied the status of plaintiff regarding the undertaking of the construction of flats by the plaintiff on the request of the defendant. Admittedly the letters of re­ entry have been issued to the plaintiff and the cause of action has also arisen between the two. It is admitted that lease agreement was entered in favour of the plaintiff by the defendant which is dated 8.10.1945 and 28 Ex.P­1 . Possession of the plots in suit was given by the defendant to the plaintiff for construction of flats and Chief Commissioner of Delhi and other high officials dealt with the plaintiff, got the plans prepared, checked the same from time to time, defendant arranged the supply of building material to the plaintiff, plaintiff carried out construction of flats, servant quarters, garages and hotel in Sujan Singh Park and handed over the possession of the flats/quarters/garages to the defendant as and when the same were ready and defendant alloted the same to its officers and other persons. In para no. 2 of the WS the factum of agreement of lease is admitted. Rather in para no. 3 of the WS the terms and conditions of the agreement have been incorporated and dispute is with respect to breach of terms of the agreement dated 8.10.1945 which is separate matter to be decided under different issue but as far as locus standi is concerned the same is duly proved by the plaintiff. The statement of CPW­1 Bhagwant Singh had been recorded wherein he had clearly stated that he is the Chairman of the plaintiff company and Ex. CPW­1/1 is the certified copy of the incorporation of the plaintiff company. Ex. CPW­1/2 is the true copy of Articles of Association of the plaintiff company and CPW­1/3 is 29 the copy of resolution passed by the Board of Directors of the plaintiff company. It is clearly stated that since the inception of the company he is associated with the project in dispute alongwith his father. The defendant during the cross examination of this witness could not dispute the veracity of this deposition rather simple suggestion was given that he was a student in 1943 which was denied by this witness and no other suggestion has been given on the documents referred above. Thus in these circumstances no doubt remains that plaintiff has locus standi to file the present suit. Accordingly I decide this issue in favour of the plaintiff and against the defendant.

20. Is sue No.5: Whether the suit has been instituted by a person properly authorised on behalf of the plaintiff?OPP:­ Under this issue the plaintiff was required to prove that suit had been instituted by a person properly authorised on behalf of the plaintiff. As observed above the documents CPW­1/1 to CPW­1/4 has been duly brought on record by the plaintiff through CPW­1 Bhagwant Singh who is none other than the Chairman of the plaintiff company. There was no rebuttal to this evidence on behalf of defendant. Accordingly I decide this 30 issue in favour of the plaintiff and against the defendant.

21. Issue No.6: Whether all the buildings on the plot leased to the plaintiff by the agreement dated 8 th October, 1945 has been completed before the execution of that agreement?OPP:­ Under this issue the plaintiff was required to prove that when the plot was leased as per agreement dated 8.10.1945 the building had been completed before execution of the agreement. The Cl. for defendant has specifically submitted that the plaintiff was required to carry out construction as per the agreement and he cannot argue this and cannot take benefit of the construction if any carried out before the same. The plaintiff has submitted that the plot pertained to Union of India and the same was handed over to plaintiff in 1943 which is evident from CW­1/5 dated 14.4.1943 i.e. the proposal of the Government to give the plot on lease and argued that as there was immediate requirement of some structure for the purpose of residence of official involved in war during the second world war and the execution of documents could have taken time as an interim 31 measure the possession was given to carry out the construction which fact could not be belied by the defendant. The document Ex. CW­1/5 itself says that the construction was to be carried out in 11 months and in these circumstances the defendant cannot be permitted to wriggle out of the same and is bound by the terms and condition of the same. It is also clear that legislature in its wisdom had already foreseen such type of incidents and that is why the plea of unjust enrichment was introduced in Indian Contract Act. Thus in these circumstances when it is not denied that construction took place and that was carried out by the plaintiff in the given circumstances, explained from pleadings and evidence and which was availed by the defendant then even if no formal document was executed still the plaintiff cannot be deprived of from reaping the fruits of the same. Thus in these circumstances the plaintiff has been able to prove that before entering into the agreement dated 8.10.1945 the construction was carried out by the plaintiff on the leased plot. Thus this issue is decided in favour of the plaintiff and against the defendant. 32

22. Issues No.7, 8,9,10& 11 :

Issue no. 7 :­ If issue No.6 is proved whether the defendant is entitled to contend(a) that the buildings were not constructed in accordance with the designs and specifications sanctioned by the Chief Commissioner and that the block of the building constructed by the plaintiff is unauthorised and not in accordance with the agreement dated 8 th October, 1945?OPP Issue no. 8 : ­ If issue No. 7 is proved, whether the blocks of flats were constructed with the approval of the chief Commissioner and whether they were authorised and in accordance with the agreement of 8th October, 1945?OPP Issue no. 9:­ Whether the plaintiff has been guilty of contravention of the terms of the agreement to lease by making use of any part of building and structures for purposes other than those specified?OPP Issue no. 10:­ Whether the plaintiff has failed to fulfil any of its obligation under the terms of the contract and whether there has been contraventions of the clauses 3 or 7 of the agreement?OPP 33 Issue no. 11:­ Whether the agreement dated 8.10.1945 stood revoked? If so how and on what date?OPP:­ Under these issues the plaintiff was bound to prove the fact that buildings were constructed in accordance with designs and specifications and they are not unauthorised and the decision of these issues will determine the outcome of remaining issues. The case of the defendant is that the plaintiff failed to perform his part and thereafter the defendant was entitled to re­enter the premises without fulfilling the obligation of executing the perpetual lease. The defendant had admitted that two plots of land in Delhi were intended to be alloted for the purpose of residential flats through private enterprise and consequently plaintiff approached the authorities for the allotment of two sites. Terms of agreement dated 8.10.1945 are mentioned in the WS whereby as per them complete blocks of residential flats for officials of good standing were to be constructed and further he was restrained from using or allowing it to be used for any purpose other than as a private dwelling house and as per the defendant the terms were violated and no permission was obtained for hotel blocks, office out houses, garages and other structures and thus they 34 have misused the permission and construction of public hotel was against the agreement as per the defendant. Now these terms are to be read in consonance with the act committed and intended or permission oral or written, implied or express. Ld. Cl. for the plaintiff has relied upon provision of Section 91 and 92 of the Indian Evidence Act. The Ld. Cl. for the defendant has ruled out any estoppel, acquiescence and waiver. All these pleas are to be decided keeping in view the fact that defendant has failed to lead any evidence. The defendant had argued that the plea of promissory estoppel acquiescence and waiver are misconceived and contradictory prayers. The defendant has further argued that once the plaintiff prays for specific performance of the agreement then he means that he has to stick to the terms of the agreement and rest of the things become meaningless. As per the defendant estoppel and waiver are self contradictory and mutually destructive. It is settled law that where ever possible the pleading should be read harmoniously and under the plea of estoppel the plaintiff is praying that when the things were being carried out under the nose of defendant and they permitted it to carry it out and reap the fruits then they should be estopped from challenging the same 35 action. For this he has relied upon Section 72 of Indian Contact Act regarding unjust enrichment. To the same effect he has relied upon the plea of waiver and argued that if the construction was accepted which was carried out even before entering into the agreement in question and both the parties knew the status of past, present and future performances then again the question could not have been raised and the defendant impliedly waived off the rights. The rights of the parties are to be interpreted keeping in view the Section 91 and 92 of Indian Evidence Act. The counsel for the defendant has relied upon CPW­1/5, proposal letter dated 14.4.1943 and argued that lessee was required to construct about 100 flats on the plot. Another letter Ex. CPW­1/6 is letter dated 15.4.1943 wherein the plaintiff has admitted that "I agree to build 100 flats, in fact less than this number will be uneconomical and unmanageable." He has also relied upon Ex. CPW­1/46 letter dated 20.10.1943 from Mr. Walter George, Architect of the plaintiff and argued that construction of flats was required and not the construction of the hotel. He has also relied upon Ex. CPW­ 1/19 and argued that there is reference to flats/suites or rooms and dining rooms and argued that all these references suggest that there is reference 36 to construction units and not hotel. The Counsel for the plaintiff has relied upon Ex. CPW­1/48 letter dated 3.9.1943 and the letter is from Mr. Walter George, Architect of the plaintiff to the Additional Chief Engineer, CPWD wherein on page no. 2 and 3 the word " Hotel site" is mentioned. It is also argued that laundry facilities were to be arranged which cannot be arranged in flats and can only be arranged in hotel. He has rightly argued that Mr. Walter George was Architect and he was conscious of the fact as to what was to be written. The plaintiff has also placed reliance upon Ex.

CPW­1/108 letter dated 11.9.1943 which is again a letter written by Mr. Walter George to consulting Architect, Govt. of India having copy of drawing no. 5 showing the layout including the hotel site. It has to be kept in mind that agreement is dated 8.10.1945 and all these documents relied upon by plaintiff and defendant pertains to the period before that. Thus, it is clear that through these documents the intention of the Govt. can be looked into as to for what purpose the whole exercise was being carried out. The counsel has also relied upon Ex. CPW­1/46 which talks about kitchen requirement in service flats. There is another letter Ex. CPW­ 1/113 letter dated 18.5.1944 which also talks about shifting of boundaries 37 to accommodate hotel. Another letter Ex. CPW­1/95, letter dated 28.4.1945 which also talks about hotel. These letters are before the agreement was entered into. In Ex. CPW­1/95 name of M/s Sir Sobha Singh figures and this is prior to the agreement meaning thereby the verbal talks were going on and clear picture was available in the mind of both the parties as to what was to be done. The Cl. for the plaintiff has relied upon some of the letters/correspondence between different department and parties like Ex. CPW­1/20 letter dated 19.1.1946 which also talks about hotel block. Ex. CPW­1/20 is talking about switch room in the hotel building. Ex. CPW­1/71 letter dated 16.1.1950 is again talking about hotel block. Ex. P­9 is another important letter dated 7.9.1950 in which C.S Edwards, Under Secretary Ministry Works, Mines and Power wrote to General Manager, Hakman Grand Hotel by stating that "In the event of your securing lease of the hotel from Sir Sobha Singh Govt. agree not to requisition the building or otherwise interfere with the running of the hotel except to the extent permissible under Delhi Hotels Control of Accommodation Act 1949." This letter was written after the agreement 38 was entered into and the word used is 'running hotel' and further there is admission that the relevant Act is applicable and they will not requisition the building. In these circumstances the defendant has failed to substantiate their defence as to how it was not in the mind of the government that hotel was contemplated. All these documents are to be read now in conjunction with the replies made by the relevant government officials in interrogatories. Sh. Khan Bahadur Mohd. Suleman was Additional Chief Engineer on the relevant time and he knows the fact. He clearly admitted that condition was that the government of India would make the use of the flats and hotel according to the needs. He also admitted that Sir Sobha Singh complied with the conditions and further nobody objected to the construction of hotel at any point of time. Similarly Mr. H.A.N Medd also admitted that construction was in accordance with the rules. He was asked a specific question as to whether the plaintiff was not authorised to set up any hotel block to which he replied that initial sanction was for blocks of flats but sanction for hotel must have been given subsequently as it was thought that such facilities would be required and construction of the hotel commenced before the construction of flats 39 was completed. Ex. CPW­1/10 is another document which also shows the consensus regarding the construction of the hotel. Ex. P­1 is the agreement for the lease and it talks about the construction to be carried out and nowhere it talks about that the same was in the possession of the plaintiff even on the date when the agreement was entered into and further that the construction was going on and in these circumstances the other stipulations can be kept in mind if arising out of the other documents. The documents discussed above are to be read in aid of this document Ex. P­1. The study of all the correspondence available on the record conclusively establishes that before date of agreement of lease dated 8.10.1945 the hotel was being constructed and was almost fit for occupation. The building was constructed in full gauge of all the government officials, NDMC, CPWD, Ministry of Civil Supplies and they continued to cooperate with the plaintiff. Electricity connection, water connection were provided. Other civil supplies like cement, steel, bricks were also given. Vide letter Ex. CPW­1/67, letter dated 4/6.2. 1950 the Ministry has sought the proposed charges for the suits in the hotel block. Thus, all these documents clearly point that the defendant was aware of the nature of the 40 construction and later on they were not in position to raise the objection. It is very much clear that when it has been held that construction was being carried out and was complete before the agreement was entered,then the defendants were not in any emergency or pressure to execute the said agreement ignoring the defects and deficiencies later on pointed out. The defendant has not brought any iota of evidence to prove their averments. It is not disputed that the premises was being used by the Government during and after the Second World War. The officers were residing therein. The defendant has alleged two misusers i.e. misuser of ground floor of one of the ground floor as public laundry. The plaintiff has submitted that this misuser is not existing and moreover no evidence has been brought on record by the defendant to prove the same. The second allegation is misuse of 31 garages in several blocks as petty shops for which plaintiff has submitted that NDMC is fully authorised to remove the same and they are helpless in removing the same as are not controlled by them. Even otherwise this misuser has not been proved on record by the defendant by leading any cogent and reliable evidence. Now as far as the legal points are concerned Section 91 and 92 of Indian Evidence Act 41 comes to the help of plaintiff. Section 91 of the Evidence Act mainly forbids proving of the contents of the writing otherwise then by writing itself and merely lays down the best evidence rule. However it does not prohibit the parties to adduce evidence in a case the deed is capable of being construed differently to show how they understood the same. In the present case the plaintiff has led oral as well documentary evidence to construe the terms of the agreement and the circumstances behind which led to entering into the agreement. I rely upon JT 2006(8) SC 158 titled Tulsi vs. Chandrika Prasad for the same. The principle of unjust enrichment has been defined in AIR 1990 SC page 313 Mahabir Kishore Vs. State of M.P. wherein it has been held that " The principle of unjust enrichment requires: first that the defendant has been 'enriched' by the receipt of a "benefit", secondly that this enrichment is "at the expense of the plaintiff"; and thirdly; that the retention of the enrichment be unjust. This justifies restitution. Enrichment may take the form of direct advantage to the recipient's wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved." 42 Reliance is also placed on AIR 1962 SC page 779 State of West Bengal Vs. M/s B.K. Mondal and Sons where the facts of the case were almost similar as of the present case. There also the defendant had denied the claim of the plaintiff on the ground that constructions were invalid and unauthorised and did not constritue as valid contract. Then the Hon'ble Supreme Court discussed the principle of unjust enrichment and held that " Between the persons claiming compensation and person against whom it is claimed some lawful relationship must subsist­­­­­ but the said lawful relationship arises no because the party claiming compensation has done something for the party against whom the compensation is claimed but because what has been done by the former has been accepted and enjoyed by the later." It was further held that " This principle applies to individuals, corporations and Government also." The Hon'ble Supreme Court has rather gone to the extent that " If such act has been committed on the request which may be ineffective or invalid due to the reason that officer making the request was not authorised under the provisions of Act or that it was not followed by way of a contract and 43 if the thing has been delivered or the work has been done without a contract that brings the concept into the picture." The observations are clear which suggest that even in the present case there was no lease deed and the plaintiff had acted on the verbal representation and thereafter that has been accepted and enjoyed by the Government, it makes ample clear that Government was bound to do its duty and could not have denied to do the needful as per the right of the plaintiff. This ruling is fully applicable to the facts of the present case. The misuser has not been proved. Even otherwise vide notice dated 24.2.1959 the department has asked the company to remove the misuser within two months from the receipt of the notice failing which they had reserved the right to re­enter and proceed to take legal action. The misuser was mentioned in para no. 2 of the notice qua which it has already been held that they do not exist, hence in these circumstances no cause of action survives in the defendant to issue show cause notice and when right of re­entry in this manner is not found existing in the defendant then the lease agreement comes into operation . Thus in these circumstances it is not disputed that the plaintiff has constructed the building in the form of hotel which was utilised by the 44 defendant and now they cannot sherk from their liability. Issue no. 6 has already been decided against the defendants. Thus in these circumstances the defendants cannot contend that the building was not constructed in accordance with the designs and specifications sanctioned by the Chief Commissioner and that the block of building constructed by the plaintiff is unauthorised and is not in accordance with the agreement dated 8.10.1945. Thus this issue is decided in favour of the plaintiff and against the defendants. It is also held that the construction was authorised and was in accordance with the agreement which was written as well as oral negotiations took place between the parties. Thus issue no. 8 is also decided in favour of the plaintiff and against the defendants. Issue no. 9 is accordingly also decided in favour of the plaintiff and against the defendants. Issue no. 10 is also decided in favour of the plaintiff and against the defendants and it is held that there was no contravention of the clauses of the agreement. On the aforesaid reasoning the agreement dated 8.10.1945 cannot be revoked and is still valid and thus issue no. 11 also stands decided in favour of the plaintiff and against the defendant. 45

23. Issue No.12: Whether the plaintiff is debarred from claiming the reliefs claimed by reason of its conduct?OPD:­ The onus of proving this issue was on the defendant but no evidence has been lead by the defendant on this issue. Even during the course of the arguments the Cl. for the defendant had argued that as the notice of re­entry was issued and as the plaintiff has violated the terms of the agreement, hence he was debarred to file the present suit does not hold any water. As the matter of notice of re­ entry and alleged violation of the terms of the agreement had been adjudicated upon as supra hence the conduct cannot be implicit in view of the findings given above. Moreover, the plaintiff was not left with any alternative except to approach the court for redressal of his grievances and if he is debarred from claiming the relief then he will be left in a lurch without any right. Thus in these circumstances the defendant has miserably failed to prove this issue and this issue is accordingly decided in favour of the plaintiff and against the defendant.

24. Issue No.13: Whether the notice u/s 80 CPC served on the defendant is invalid?OPD:­ Under this issue plaintiff was required to prove that notice u/s 80 46 CPC was served. Plaintiff has relied upon Ex. CPW­1/118 which is notice dated 17.8.1960. The defendant has submitted that the same is invalid but how is not made out. The onus was on the defendant but he has not lead any iota of evidence to prove the same, even otherwise the plaintiff has clearly proved the notice on the record and no suggestion of any type regarding this notice was ever put to the witness of plaintiff by the defendant thus that part of evidence is deemed to have been admitted by the defendant and accordingly this issue is decided in favour of the plaintiff and against the defendant.

25. Issue No.14:Whether the defendant is estopped from contending that the terms of the agreement dated 8.10.1945 have been violated?OPP:­ The onus of proving this issue was on the plaintiff. In view of the findings given on above issues from issue no. 7 to 11 . It is held that defendants are estopped from contending that the terms of the agreement dated 8.10.1945 have been violated. Thus this issue is decided in favour of the plaintiff and against the defendants.

47

Issue No.15: Whether the defendant has exercised the right of

26. re­entry in accordance with the terms of the agreement? If so with what effect?OPD:­ The onus of proving this issue was on the defendants but when it has been held that there is no violation of the agreement dated 8.10.1945, then there cannot be any right of re­entry. Even otherwise the possession is with the plaintiff and re­entry is alleged merely on the papers. It has been held in AIR 1999 Supreme Court 997 State of UP Vs Lucknow Development Authority and argued that even though lease is cancelled, still lessor can take the possession only in a manner recognised by law. It has been observed by Hon'ble Supreme Court that "A lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're­entry' in the lease­deed does not authorise extra judicially methods to resume possessions. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible 48 dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the instant case the fact that the lessor is the state does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree',. Therefore, there is no question in the instant case of the Government thinking of appropriating to itself an extra judicial right of re­entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law". Thus in these circumstances this issue is also decided in favour of the plaintiff and against the defendants.

27. Issue No.16:Whether the amended plaint has not been in accordance with my order dated 27.9.1961? If not to what extent and to what effect?OPD :­ The onus of proving this issue was on the defendant but the 49 defendant neither lead any evidence nor could tell to the court as to how the amendment is not as per the order dated 27.9.1961. As per the order dated 27.9.1961 the plaintiff was directed to correction the valuation of the suit and pay the additional court fees. Earlier the suit was valued for the purpose of relief at Rs. 1,21,280/­ for the purposes of declaration and Rs. 200/­ for the purposes of injunction and the Ld. Trial Court( my Ld. Predecessor) also assessed the valuation at the rate of Rs. 79,590/­ for the purposes of specific performance and ordered the plaintiff to affix the court fees accordingly. The plaintiff thereafter on 4.10.1961 amended the same and paid the court fees accordingly which is evident from the order sheet dated 5.10.1961. Hence, there is no unauthorised amendment and this issue is accordingly decided in favour of the plaintiff and against the defendant.

28. Relief:­ Thus in view of the aforesaid discussion and findings of the case on all the issues the suit of the plaintiff stands decreed with cost. A decree of declaration is passed in favour of the plaintiff that the building constructed on the plot of land subject matter of the present suit has been 50 constructed as per the instructions and orders of the defendant and there is no misuse of the ground floor or servant quarters as laundry or garages or any other area. The demand notice dated 24.2.1959 is also declared as wrong and illegal. A decree of specific performance is also passed in favour of the plaintiff to the effect that the defendants are directed to do the needful required to be done by them in terms of agreement of lease dated 8.10.1945. Decree sheet be prepared accordingly. File be consigned to record room after due completion. 

Announced in the open court on                                               (AJAY GOEL)
    31.8 .09                                                           SCJ CUM RC(Central)/Delhi