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Delhi District Court

Sh. Nihal Singh vs Sh. Sarnam Singh on 6 September, 2014

                                                                               Suit No. 75/14

              IN THE COURT OF SH. SUBHASH KUMAR MISHRA, 
              CIVIL JUDGE­7, WEST, TIS HAZARI COURTS, DELHI

Sh. Nihal Singh                                                          .....Plaintiff

          Versus 

Sh. Sarnam Singh                                                         .....Defendant

ORDER

Vide this order, application of the plaintiff moved under Order XXXIX Rule 1 & 2 read with Section 151 CPC, will be disposed of.

Necessary facts for disposal of the instant application, as per plaint, are that the plaintiff is the owner of plot no.34, area 37.5 square yard, out of khasra no.322, situated in revenue estate of Village Nawada Majra, Hastal, Delhi, in the abadi known as Sidhatri Enclave, Bhagwati Garden Extn., Uttam Nagar, New Delhi­110059 (hereinafter referred to as the 'suit property'). Defendant entered into a collaboration agreement dated 14.01.2013, with plaintiff regarding the suit property whereby he was bound to construct five floors along with parking space on the suit property within six months from its execution. A grace period of one month was also provided to defendant to complete the work but the defendant has failed to complete the work till date and has put lock over the lock of plaintiff on the main gate of suit property. He also refused to complete the construction work. On 13.03.2014, plaintiff came to know that defendant is showing the suit property to the property dealer and he threatened the plaintiff that he would sell out the property and dispossess the plaintiff from the suit property.

Page 1 of 4 Suit No. 75/14

In the application, it is prayed that ad­interim injunction order may be passed restraining defendant and his agents from creating any kind of third party interest regarding the suit property and from dispossessing the plaintiff from the suit property during the pendency of the present suit.

In the written statement it is stated by defendant that in the collaboration agreement it was agreed that plaintiff will transfer the upper ground floor, first floor and common parking in favour of defendant. On 18.05.2013, when the construction work was in the last stage of completion, plaintiff along with his wife and son removed the plaster and misbehaved with defendant and the labourers. Defendant also states that the construction work was completed prior to 20.08.2013 and the keys of flat were given to the plaintiff. Defendant submits that after execution of title documents in favour of defendant, as per collaboration agreement the defendant is the owner of flat in question.

In reply, the averments made in the application have been denied praying that the application may be dismissed with costs.

I have heard the arguments and have gone through the material available on record.

Plaintiff has filed general power of attorney and agreement to sell of the suit property in his favour along with other documents to show that he is the owner of suit property. The said general power of attorney is registered.

Defendant has also filed general power of attorney and agreement to sell regarding the upper ground floor of property executed in his favour by plaintiff. However, the general power of attorney is not registered.

As per collaboration agreement relied on by the plaintiff and Page 2 of 4 Suit No. 75/14 defendant, the plaintiff was to transfer the upper ground floor and first floor to defendant after construction of property.

In the instant case, admittedly the plaintiff was the owner of suit property on which the building was constructed by the defendant in furtherance of collaboration agreement. The documents of property which have been alleged to be executed in favour of defendant by the plaintiff is not registered and therefore, prima facie the documents do not convey title of property to the defendant.

However, admittedly the property was constructed by the defendant in furtherance of the collaboration agreement as per which the plaintiff was to transfer the upper ground floor and first floor of the property to defendant.

Furthermore, in para 21 of plaint itself, the plaintiff has stated that the plaintiff has taken a rented accommodation i.e. F­2, gali no.13, Sidhatri Enclave, New Delhi. It means that the plaintiff is not in possession of the suit property. Plaintiff has also filed the copy of rent receipts in this regard. Therefore, no interim injunction directing the defendant not to dispossess the plaintiff from suit property can be passed as the plaintiff is not in possession of the suit property.

To ascertain as to whether both the parties complied with the terms and conditions of the collaboration agreement or not, evidence will be required to be adduced during the trial and if either the plaintiff or the defendant creates any kind of third party interest regarding the property constructed on the suit property, the same will cause irreparable loss to the other party.

In view of the above said discussion, both the parties are directed Page 3 of 4 Suit No. 75/14 not to create any kind of third party interest regarding the suit property or the superstructure constructed thereon, during the pendency of the suit, without due process of law.

Application of the plaintiff moved under Order XXXIX Rule 1 & 2 CPC stands disposed of in aforesaid terms.

Nothing observed herein will have any effect on the merit of the suit.

Announced in open court On 06.09.2014 (Subhash Kumar Mishra) Civil Judge­07/West/Delhi Page 4 of 4