Delhi District Court
Rajesh Garg vs Rakesh Kumar on 20 January, 2025
IN THE COURT OF SH. DEEPANKER MOHAN
DISTRICT JUDGE-04, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 841-16
IN THE MATTER OF:
Sh. Rajesh Garg
S/o late Sh. Rameshwar Dass
R/o A-8, Laxman Park, Chander Nagar,
Delhi-110051 .... Plaintiff
VERSUS
1. Sh. Rakesh Kumar
S/o Late Sh. Ramesh Chand
2. Sh. Manoj Kumar
S/o Late Sh. Ramesh Chand
Both R/o A-7, Laxman Park,
Chander Nagar, Delhi-110 ... Defendants
1. CS No. : 841/2016
2. Under Section : Suit for specific
performance with
consequential relief of
injunction.
3. Date of institution : 22/09/2014
4. Reserved for judgment : 21/10/2024
5. Date of Judgment : 20/01/2025
JUDGMENT
CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 1 of 33
Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:04 +0530
1. Vide this judgment, this Court shall dispose of the suit for specific performance with consequential relief of injunction filed by plaintiff against defendants on 22/09/2014.
AVERMENTS OF THE PLAINT
2. Defendants are the owners of the property bearing no.
A-7, measuring area 60 sq. yards out of Rect. No.11, Killa No.1/2/2, situated in the abadi of Laxman Park in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051. Defendants no. 1 and 2 wanted to re-build the entire property bearing no. A-7, Laxman Park, Chander Nagar, Delhi-110051. Plaintiff is neighbour of defendants no.1 and 2 and residing at bearing no. A-8, 1st Floor, Laxman Park, Chander Nagar, Delhi-110051. In order to expand the space, plaintiff had agreed to invest in the re-building of the said flat and entered into a collaboration agreement dated 03/01/2012 with defendants.
3. As per the terms and conditions agreed between plaintiff and defendants, plaintiff has to re-built the entire property after demolishing the old structure of ground floor consisting of two rooms. As per agreement re-constructed right from the bottom to the top floor consisting of stilt parking, ground floor to 3 rd floor.
CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 2 of 33
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2025.01.20
18:31:12
+0530
4. In terms of the collaboration agreement dated
03/01/2012, the entire amount for re-building the same has been borne by plaintiff and he admittedly paid a sum of Rs.5,70,000/- to defendants no.1 and 2 and out of which a sum of Rs.5 lakhs was paid at the time of signing of the Collaboration agreement and an amount of Rs.70,000/- which was acknowledged by the defendants no.1 and 2 on 09/01/2012.
5. Plaintiff did his level best to complete the construction but defendants no.1 and 2 had created all sorts of harassment. They had not permitted the plaintiff to build the construction and also did not provide the complete title documents of the property in the name of defendants. Plaintiff through his counsel had served a notice dated 19/04/2012 upon defendants. After receipt of the said notice, defendants no.1 and 2 sent a reply through their counsel vide reply notice dated 02/05/2012 and also delivered the photocopies of documents.
6. Plaintiff had already completed the construction including the portion of defendants no.1 and 2 within agreed time. Plaintiff is in possession of upper ground floor with car parking rights being the owner thereof as the entire consideration amount as agreed had been paid. Defendants no.1 and 2 did not spend even a single penny. Defendants no.1 CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 3 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:16 +0530 and 2 are bound to execute the sale deed/title documents in respect of the upper ground floor portion in favour of plaintiff. The possession of 1st to 3rd floors were handed over to the defendants on 25/10/2012, on the assurance of the defendants that after receiving the possession, they will execute the title documents of upper ground floor in favour of plaintiff.
7. Instead of execution of the transfer title documents, defendants had sent a false and frivolous notice dated 08/02/2013. The plaintiff had replied the said notice dated 20/02/2013. Defendants had also put wire from outside the main entry gate of ground floor to disturb the free access of plaintiff over the property under his possession. Plaintiff had sent a legal notice dated 13/03/2013 to defendants no.1 and 2 but they had failed to comply with the said notice. They also started raising threats to plaintiff that they will further create a third party interest in the suit property. The plaintiff is left with no other efficacious remedy except to file the present suit.
SERVICE OF SUMMONS
8. Vide order dated 23/09/2014 summons of the present suit was issued upon defendants. Upon receipt of summons, defendants no.1 and 2 through their counsel put their appearance in the present matter and file their written CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 4 of 33 DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Date: 2025.01.20 18:31:21 +0530 statement on 22/12/2014.
AVERMENTS OF THE WRITTEN STATEMENT FILED BY DEFENDANTS
9. Defendants admits execution of the collaboration agreement dated 03/01/2012 and Plaintiff was allowed to construct the property by them. The plaintiff did not get the building plan sanctioned from MCD and made illegal construction in consequence of which the same is lying booked vide booking no.30/B dated 24/04/2012. The Hon'ble High Court had passed the order of demolition, therefore, no sale deed can be executed and registered in favour of plaintiff or his nominee.
10. Defendants no.1 and 2 pleaded that they wanted to rebuild their property and plaintiff represented them that he has special knowledge regarding the constructions and was engaged in works of rebuilding the properties. Defendants assigned the work of reconstruction to the plaintiff, under the collaboration deed dated 03/01/2012 where plaintiff was agreed to undertake to rebuild the property and to spend entire expenses of dismantling and reconstruction of the said property including the cost of material, labour and expertise etc. In lieu of the said work, plaintiff was to take upper ground CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 5 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:26 +0530 floor with one car parking in the stilt parking space. Plaintiff failed to comply with the terms and conditions of the said deed as he did not get the requisite permission/sanctioned plan from concerned authority and started raising construction on the said plot. An employee of Corporation was arrested by PS Jagat Puri vide FIR No.124/2012 U/s 384 IPC and the corporation booked the construction on the said property.
11. Plaintiff issued a false notice dated 19/04/2011 to defendant which was duly vide reply dated 02/05/2012. After receiving the reply, plaintiff again started work. After some time, defendants came to know that Hon'ble High Court of Delhi passed the order with the direction to EDMC to inspect the property and take demolition action, if any unauthorized construction were found to have been made. The Corporation has taken action and they partly demolished the property in question. Plaintiff asked the defendants to occupy the incomplete and unfurnished accommodation since the Corporation was contemplating to take further demolition action and plaintiff illegally opened two doors of the upper ground floor into his adjoining property no.A-8, Lakshman Park, Chander Nagar, Delhi to deceive defendants and authorities to show that the said upper ground floor flat is part of plaintiff's property. It is also pleaded that opening of such CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 6 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:30 +0530 doors were never agreed between the parties.
12. The said collaboration deed dated 04/01/2012 stands cancelled and the property of defendants is liable to be restored by plaintiff or to pay the restoration expense to defendants for getting the property restored. As the entire building is lying booked, so no sale deed can be executed and registered at all.
AVERMENTS OF THE REPLICATION
13. On 23/02/2015, replication to the written statement of defendants was filed wherein plaintiff denied the averments of the written statement and re-affirmed the averments of the plaint.
FRAMING OF ISSUES
14. Upon completion of pleading, following issues were framed on 11/04/2017 which are mentioned as under:-
1. Whether plaintiff is entitled for specific performance of collaboration deed dated 03/01/2012 thereby defendants have to execute sale deed in respect of upper ground floor with one car parking of the property as mentioned in the prayer clause in the plaint? OPP
2. Whether plaintiff is entitled for permanent injunction as he prayed for? OPP CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 7 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:35 +0530
3. Relief.
EVIDENCE LED BY THE PLAINTIFF
15. Plaintiff to prove his case examined himself as PW-1. PW-1/plaintiff filed his evidence affidavit on the line of averments mentioned in the plaint. On 26.07.2017, PW-1 tendered his evidence by way of affidavit as exhibited as Ex.PW1/1 and also relied on documents i.e. (1) Ex.PW1/A- Collaboration Agreement dated 03.01.2012 with schedule; (2) Ex.PW1/B- Legal notice dated 19.04.2012; (3) Ex.PW1/C- Reply to legal notice dated 02.05.2012; (4) Ex.PW1/D- Legal notice dated 08.02.2013; (5) Ex.PW1/E- Reply to the legal notice dated 20.02.2013; (6) Ex.PW1/F- Site plan; (7) Ex.PW1/G- Legal notice dated 13.03.2013; (8) Ex.PW1/H- Reply to legal notice dated 02.04.2013 & (9) Ex.PW1/I- Reply to reply of legal notice dated 11.04.2013. On 17.08.2012, he was cross examined by Ld. Counsel for defendants.
16. PW-1 deposed that he had never done the collaboration with any person prior to present collaboration anywhere. He admitted that he had no experience in collaboration of raising building. He deposed that he had not got sanctioned the site plan for raising the construction on the land of defendants. He voluntarily deposed that construction was done as desired by the defendants. He admitted the suggestion that MCD booked CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 8 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:39 +0530 the property of defendants for raising unauthorized construction. He admitted that the officials of MCD had demolished the building in question twice. He deposed that he had handed over the duly constructed building to the defendants on 25.10.2012. He deposed that he did not know any person named Vinay Sharma and he was not aware about pendency of W.P. (C) No.3580/2012 before the Hon'ble High Court of Delhi. He deposed that he was not aware regarding action taken report 16.10.2012 filed on behalf of EDMC in W.P.(C) NO.3580/2012. He deposed that he was not aware if Hon'ble High Court of Delhi had directed not to raise any construction in the building of defendants after demolition of the same by the EDMC.
17. No steps were taken by plaintiff to call remaining witness(es), therefore, plaintiff evidence was closed vide order dated 08.02.2023.
EVIDENCE LED BY THE DEFENDANTS
18. Defendants to defend their case have examined four witnesses i.e. Sh. Manoj Kumar as DW-1, HC Asif Khan, Belt No.406/SHD, PS Jagat Puri, Delhi as DW-2, Ms. Hemant Kumari, JJA, Posted at Delhi High Court as DW-3 & Ms. Sudha Singh, Office In-Charge, Building Department, CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 9 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:43 +0530 Shahdara, South Zone, Posted at 419 Udyog Sadan, Parparganj, Industrial Area, Delhi-92 as DW-4.
19. DW-1 filed his evidence affidavit. On 28.03.2023, DW- 1 tendered his evidence by way of affidavit as Ex.DW1/1 and also relied on the documents i.e.:- (1) Mark A- Copy of FIR no.124/2012, PS Jagatpuri, (2) Ex.DW1/B(Colly.)(7 pages) (Objected to mode of proof)- Certified copy of Orders dated 31.05.2012, 26.09.2012 and 17.12.2012, (3) Ex.DW1/C (11 pages) (Objected to mode of proof)- Certified true copy of action taken report dated 16.10.2012 with letter dated 26.07.2012, (4) Mark B- Attested copy of show cause notice dated 24.04.2012, (5) Mark C- Copy of complaint dated 21.01.2013 addressed to Commissioner of Police, New Delhi & (6) Ex.DW1/F (Colly.) (6 pages) (photographs objected to mode of proof)- 15 photographs along with publication dated 08.12.2014 published in newspaper The Hindu. On 03.11.2023, he was cross examined by Ld. Counsel for plaintiff at length.
20. DW-1 deposed that he is residing at property A/7, Laxman Park, Chander Nagar, Delhi-110051 since he was aged about seven years. He deposed that the above said property was purchased by his father. He deposed that at the time of purchasing of the said property, his father raised CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 10 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:48 +0530 construction upto two storey. He deposed that he was having property documents in original with him. He deposed that he had not brought the same. He deposed that he could bring the same before this Court. He admitted the suggestion that at present, he had been residing on the third floor portion of the above said property. He deposed that the first floor is vacant and on the second floor, defendant No.1 is residing. He deposed that the first floor portion of the said property was let out to someone at the rate of Rs.12,000/- per month.
21. He deposed that there are two electric meters installed in the aforesaid property. He deposed that on the upper ground portion of the said property, plaintiff is residing. He admitted the suggestion that he entered into an collaboration deed on 03.01.2012 with the plaintiff. He admitted the suggestion that the plaintiff had been residing at the adjacent property bearing No.A/8, Laxman Park, Chander Nagar, Delhi. He deposed that the plaintiff has been residing in the property bearing No.A/8, Laxman Park, Chander Nagar, Delhi approximately four years prior to the execution of agreement dated 03.01.2012. He admitted the suggestion that plaintiff is residing on the first floor of property bearing No.A/8, Laxman Park, Chander Nagar, Delhi. He admitted the suggestion that at present, plaintiff is in possession of upper ground floor of property bearing No.A/7, Laxman Park, Chander Nagar, Delhi as well CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 11 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:52 +0530 as own's property bearing No.A/8, FF, Laxman Park, Chander Nagar, Delhi.
22. He admitted the suggestion that he had signed the agreement dated 03.01.2012 Ex.PW-1/A after reading and understanding the contents of the same. He admitted the suggestion that plaintiff had constructed their portion as agreed with the plaintiff but he constructed his portion as per his choice. He admitted the suggestion that nowhere it was mentioned that the plaintiff had to construct after sanctioning site plan. He admitted the suggestion that he had no writing regarding construction in the suit property as per sanctioned site plan. He voluntarily deposed that it was verbally agreed by the plaintiff to complete all the legal formalities. He deposed that he had no explanation as to why he agreed verbally despite the fact that all conditions had been agreed in writing.
He denied the suggestion that no such verbal clause agreed between him and the plaintiff for sanctioning of site plan.
23. DW-1 admitted the suggestion that in his reply to the notice sent to the plaintiff on 02.05.2012 or his notice dated 08.02.2013 it was nowhere mentioned about verbal agreement that plaintiff had to get the site plan sanctioned. He admitted the suggestion that he had received Rs.5,70,000/- in toto from the plaintiff as per agreement dated 03.01.2012. He denied the CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 12 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:31:57 +0530 suggestion that out of said amount of Rs.5,70,000/- a sum of Rs.70,000/- was to be paid by the plaintiff at the time of execution of the title document of the UGF of the suit property as per clause No.1 of collaboration deed dated 03.01.2012. He deposed that they had been residing on first, second and third floor of the suit property since the year 2012. He admitted the suggestion that he knew the plaintiff even before execution of Ex.PW-1/A being his neighbour.
24. DW-1 deposed that he came to know about case title Vinay Sharma Vs. EDMC filed in the High Court of Delhi from someone when the the suit property was booked by MCD. He deposed that MCD had demolished the floor which was repaired by the plaintiff. He denied the suggestion that no action was taken by MCD at any point of time on first, second and third floor which were under his possession.
25. DW-1 deposed that three water meters are installed for first, second and third floor. He admitted the suggestion that he had not filed any case against the plaintiff regarding any issue related to the suit property in the Court of law till date. He denied the suggestion that Hon'ble High Court of Delhi never passed any order for demolition of the suit property. He admitted the suggestion that he had supplied photocopies of his titled documents with cross along with reply to the legal CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 13 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:01 +0530 notice dated 02.05.2012. He admitted the suggestion that nobody from the MCD has come to take any demolition action on the suit property after 2012 till date. He denied the suggestion that any proceeding in the Hon'ble High Court of Delhi had nothing to do with the suit property. He admitted the suggestion that all the money for construction on the suit property was spent by the plaintiff. He deposed that he was not aware that there was no legal impediment in executing sale deed in favour of the plaintiff before Sub Registrar Office in respect of suit property as agreed in Ex.PW-1/A clause 7.
26. DW-1 deposed that he did not know if some baildar from MCD used to visit the plaintiff to extract money from the plaintiff, therefore, complaint was lodged against him by the plaintiff. He denied the suggestion that as plaintiff lodged FIR against the employee of the MCD, therefore, MCD in collision and connivance with himself started harassing the plaintiff on one pretext or the other. He denied the suggestion that as suit property was rebuilt, therefore, no permission was required from any authority as the area of the suit property is only 60 sq yards.
27. DW-1 deposed that he came to know from someone regarding lodging of FIR against the MCD employee. He deposed that he did not know the status of said FIR lodged CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 14 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:06 +0530 against MCD employee. He denied the suggestion that plaintiff had complied all the terms and conditions as agreed in Ex.PW- 1/A in respect of suit property and plaintiff had fulfilled his part of the performance by handing over first, second and third floor of the suit property to him as agreed in the clauses of Ex.PW-1/A. He denied the suggestion that he had failed to perform his part of the performance by not executing title documents in favour of plaintiff as agreed in clause no.7 of Ex.PW-1/A.
28. DW-2 HC Asif Khan, Belt No.406/SHD, PS Jagat Puri, Delhi who had brought the original FIR No.124/12, U/s 384 IPC, PS Jagat Puri. Same was exhibited as Ex.DW2/A(OSR).
On the same day, DW-2 was cross examined by Ld. Counsel for plaintiff wherein he deposed that the FIR pertained to the extortion. He deposed that the complainant of this FIR is Sh. Rajesh Garg. He admitted the suggestion that extortion from Sh. Rajesh Garg for Rs.50,000/- took place by the employees of MCD. He deposed that he did not have any other investigation report with him. He admitted the suggestion that Sh. Rajesh Garg was victim in this case.
29. DW-3 Ms. Hemant Kumari, JJA (DE, Posted at Delhi High Court who had brought the summoned record i.e. Writ CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 15 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:10 +0530 Petition (Civil) No.3530/2012 in the form of CD (soft copy) along with certificate U/s 65-B IEA. Same are exhibited as ExDW3/A(Colly.). She had not brought any hard copy of the CD. On the same day, DW-3 was cross examined by Ld. Counsel for plaintiff wherein she deposed that she had not brought the hard copy of the summon record. She voluntarily deposed that as per the direction of Hon'ble High Court, all the records had been scanned and digitalized.
30. DW-4 Ms. Sudha Singh, Office In-Charge, Building Department, Shahdara, South Zone, Posted at 419 Udyog Sadan, Parparganj, Industrial Area, Delhi-92 who had brought the summoned record i.e. show cause notice dated 24/04/2012. Same was exhibited as Ex.DW4/A(OSR). On the same day, DW-4 was cross examined by Ld. Counsel for plaintiff wherein she deposed that Ex.DW4/A was sent through speed post no.ED63882734019. She deposed that she did not know as to how the said notice was issued to the address of Sh. Rajesh Kumar. She admitted the suggestion that no house number was mentioned in the speed post receipt. She deposed that the speed post show that Ex.DW4/A was sent to one Rajesh Kumar at Chander Park, Delhi without house number. She deposed that she could not say whether the said notice was received by the addressee or not. She deposed that she did not have any tracking report in respect of above-said speed post CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 16 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:14 +0530 receipt. She denied the suggestion that that the notice was bogus and never received by the addressee or that the plaintiff Sh. Rajesh Garg had nothing to do with the said notice.
31. On 11/01/2024, DE was closed and the matter was listed for final arguments.
32. Final arguments were heard on 03/04/2024 and 21/10/2024. Written arguments were also filed on behalf of plaintiff on 21/10/2024.
FINAL ARGUMENTS ADDRESSED BY LD. COUNSEL FOR PLAINTIFF
33. Ld. Counsel for plaintiff argued that plaintiff has complied all the terms and conditions of the collaboration agreement dated 03.01.2012 and plaintiff has performed his part of performance and nothing remains to be performed on the part of plaintiff. It is further argued that subject property is to be constructed without getting the site plan sanctioned from EDMC/MCD, however, rough site plan was prepared. It is further argued that the construction over the subject property has been completed by plaintiff in all respect as per collaboration agreement Ex.PW1/A and plaintiff is in possession of the upper ground floor of the subject property since last 12 years and defendants are residing and are in occupation of three floors of the subject property i.e. first CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 17 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:19 +0530 floor, second floor and third floor. It is further argued that the subject property was booked in the year 2012 and the EDMC/MCD has also demolished some portion (punctured) at the upper ground floor of the subject property way back on 13.07.2012 and 15.10.2012. It is further argued that since then plaintiff is residing and is in occupation of the upper ground floor of the subject property and no stern action thereafter has been taken by the EDMC/MCD. It is further argued that the EDMC/MCD on the direction of Hon'ble High Court of Delhi passed in WP(C) No.3530/2012 has also booked other properties situated in the same vicinity. It is further argued that plaintiff has performed his part of performance and therefore, he is entitled for decree of specific performance with the directions to defendants to execute sale deed in favour of plaintiff in respect to upper ground floor of the subject property along with stilt car parking. It is further argued that the sale deed can be executed in view of the notification passed by the Revenue Department Govt. of NCT of Delhi and there is no impediment for granting the relief of specific performance.
FINAL ARGUMENTS ADDRESSED BY LD. COUNSEL FOR DEFENDANTS
34. Ld. Counsel for defendants argued that plaintiff has not performed his part of performance as per collaboration CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 18 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:23 +0530 agreement dated 03.01.2012. It is further argued that the plaintiff has not got the site plan sanctioned from EDMC/MCD prior to its construction. It is further argued that the subject property has already been booked by EDMC/MCD on the direction of Hon'ble High Court of Delhi and EDMC/MCD has also taken demolition action against the subject property twice in the year 2012. It is further argued that the act and conduct of plaintiff disentitle him from granting the relief of specific performance against defendants and prayed for the dismissal of the present suit.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE CASE ISSUE-WISE ISSUE NO. 1:- Whether plaintiff is entitled for specific performance of collaboration deed dated 03.01.2012 thereby defendants have to execute sale deed in respect of upper ground floor with one car parking of the property as mentioned in the prayer clause in the plaint? OPP
35. Before dealing with the arguments, it would be necessary to mention certain admitted facts/positions between parties which came on record by way of pleadings and during evidence.
I. The subject property bearing no.A-7, measuring area 60 CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 19 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:28 +0530 sq. yards out of Rect. No.11, Killa No.1/2/2, situated in the abadi of Laxman Park in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051 is owned and possessed by defendants which was earlier constructed upto 02 floors.
II. The collaboration agreement dated 03.01.2012 was executed between plaintiff and defendants and as per the said agreement, plaintiff has to demolish the old structure and re- built the subject property upto 5 floors i.e. stilt parking at lower ground floor, upper ground floor, 1 st floor, 2nd floor and 3rd floor with roof. As per the agreement, plaintiff has to pay Rs.5,70,000/- to defendants and reconstruct the entire subject property. In lieu of the said payment and act/expenses incurred on the reconstruction of the subject property, plaintiff shall be entitled for the upper ground floor of the subject property.
III. The plaintiff has paid the amount of Rs.5,70,000/- to defendants.
IV. The plaintiff has completed the construction of the subject property and has constructed stilt parking at the lower ground floor, upper ground floor, 1st floor, 2nd floor and 3rd floor with roof. All the expenses incurred on the construction of the subject property was spent by plaintiff.
V. Plaintiff is residing and is in occupation of the upper ground floor of the subject property since 2012. Plaintiff is CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 20 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:33 +0530 also residing at the first floor of the property bearing no.A/8, Laxman Park, Chander Nagar, Delhi since 2008.
VI. Defendants are residing and are in occupation of 1 st floor, 2nd floor and 3rd floor of the subject property since 2012. Defendants are also using the portion of stilt parking.
VII. No site plan has been got sanctioned from the competent authority qua the subject property prior to its construction/re- building.
36. The bone of contention between the parties is that the subject property has been constructed by plaintiff without obtaining the sanctioned plan from the competent authority and the subject property has been booked by the EDMC/MCD in the year 2012 which is still lying booked as on date. It has been argued by Ld. Counsel for defendants that as the plaintiff has not constructed the subject property after obtaining the sanctioned site plan from the competent authority i.e. EDMC/MCD and because of the said negligent act of the plaintiff, the entire subject property has been booked and twice demolished by EDMC/MCD, therefore, plaintiff is not entitled for the relief of specific performance in any manner whatsoever.
37. DW-1 Sh. Manoj Kumar, during his cross examination has deposed that he has signed the collaboration agreement CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 21 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:37 +0530 Ex.PW1/A after reading and understanding the contents of the same. It is noteworthy to mention that during the admission denial of documents, defendants have admitted their signatures on the collaboration agreement dated 03.01.2012, however, they have denied the contents of the collaboration agreement/deed. It is further noteworthy to mention that no question or suggestion has been put by defendants to PW-1 disputing the contents of the collaboration agreement Ex.PW1/A during his cross examination. Defendants have also not led any evidence to prove that the signatures at point A and B of the collaboration agreement Ex.PW1/A was obtained on blank papers or the contents of the said document has been manipulated. The defendants have not cited any reason for denying the contents of the said document, however, during his cross examination, DW-1 had deposed that he has signed collaboration agreement Ex.PW1/A after reading and understanding its contents.
38. The Clause no.9 of the collaboration agreement Ex.PW1/A, denotes that "That the builder will be responsible for all kind of consequences such as accident, demolition by the MCD or police liability, labour disputes, charges, suits, MCD sealing etc. whatsoever in any case, the owner will not be responsible for the same." The said covenant reflects that it was already agreed between plaintiff and defendants that if any CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 22 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:41 +0530 demolition action would be taken or MCD seals the subject property during construction then the defendants would not be responsible for the same. If any prudent man construct his/her property after obtaining the sanctioned site plan from the competent authority then in that case, a man would not have any apprehension in his mind that his property would be demolished or sealed or booked by MCD. The said covenant clearly reflects that defendants were having the knowledge from initiation that the subject property is to be constructed without obtaining the site plan from the MCD and for that reason only the said terms and conditions have been agreed between plaintiff and defendants and further was added in the collaboration agreement Ex.PW1/A. It is further noteworthy to mention that if the subject property is to be constructed after obtaining the site plan from MCD then what prevented defendants to add the said important covenant in the collaboration agreement Ex.PW1/A. Moreover, it has been deposed by DW-1, during his cross examination recorded on 03.11.2023 that "It is correct that nowhere it is mentioned that the plaintiff has to construct after sanctioning site plan. It is correct that I have no writing regarding construction of suit property as per sanctioned site plan. (Vol.) It was verbally agreed by the plaintiff to complete all the legal formalities. I have no explanation as to why I agreed verbally despite the CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 23 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:44 +0530 fact that all the conditions have been agreed in writing." The defendants have not given any explanation as to why the said term was not reduced into the writing. It is noteworthy to mention that defendants in their reply Ex.PW1/C and legal notice Ex.PW1/D, have not averred that it was verbally agreed between them and plaintiff that plaintiff has to obtain sanctioned site plan from MCD prior to its construction. The written statement is also silent about the said verbal agreement. It is pertinent to mention here that prior to filing of the present suit, defendants have never asked plaintiff to stop the construction of the subject property until he gets the site plan sanctioned from MCD. The defendants have also failed to explain that what prevented them from applying for getting the site plan sanctioned from MCD prior to handing over the possession of old structure of the subject property for reconstruction. The defendants have also not asked plaintiff to apply and obtain the sanctioned site plan from MCD prior to handing over the possession of old structure of the subject property for reconstruction and before starting the construction work. In view of the material came on record and above observations, this Court is of the view that it was never agreed between plaintiff and defendants that the subject property is to be constructed after obtaining the sanctioned site plan from MCD.
CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 24 of 33
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2025.01.20
18:32:48
+0530
39. The defendants vide legal notice dated 08/02/2013 Ex.PW1/D has cancelled the collaboration agreement dated 03/01/2012, however, the defendants have not taken the said ground nor did it argued that the present suit is not maintainable because plaintiff has not claimed the relief of declaration. The said act of defendants amounts to waiver of their rights to take such objection. Moreover, on 08.02.2013 when the legal notice Ex.PW1/D was sent to plaintiff, the construction of the subject property was already been completed and nothing remains to be performed on the part of plaintiff, therefore, defendants cannot revoke/cancel the collaboration agreement dated 03/01/2012.
40. Admittedly, plaintiff and defendants are residing and are in occupation of their respective portions of the subject property since 2012 i.e. plaintiff is occupying the upper ground floor and defendants are occupying 1st floor, 2nd floor and 3rd floor with roof of the subject property. Admittedly, plaintiff has paid the amount of Rs.5,70,000/- to the defendants;
plaintiff has completed the construction work of the subject property as per collaboration agreement Ex.PW1/A; all the expenses incurred in the construction work of the subject property have been borne by plaintiff and nothing remain to be performed on the part of plaintiff as per collaboration agreement Ex.PW1/A. CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 25 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:52 +0530
41. The main contentions of the defendants that subject property has already been booked by MCD and therefore, plaintiff is not entitled for relief of specific performance. The Hon'ble High Court of Delhi in RFA No.486-488/2005 titled as "Jaya Bhandari and Ors. Vs. M/s Malhan Builders and Ors"
vide its judgment dated 25.08.2010 has dealt with the issue/question- "Whether the relief of specific performance of contract can be denied to the appellants who are purchasers of the third floor of the property in question due to the existence of unauthorized construction on the third floor?" and has held that the existence of unauthorized construction could not have created any bar in granting the decree of specific performance. Para no.21 to 23 of the said judgment is reproduced.
21. The reasoning given by the Ld. Trial Court for not granting relief to the appellants is that since the third floor of the property was not constructed in accordance with the building plans and the construction on the third floor has been raised beyond permissible limits in violation of the building by-laws and in such a scenario to grant relief to the appellant would amount to perpetuating the wrong doing of the builder. This reasoning of the ld. Trial Court does not totally sound illogical as it was expected of the builder not to have raised the construction on the third floor in violation of the building plans and the floor area ratio but the more relevant question is CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 26 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:32:56 +0530 that if such a construction has been raised by the builder in violation of the building plans then should such unauthorized construction come in the way of the owners not to execute the sale deed in respect of the third floor which floor has been lawfully sold by the builders to the appellants. It is not in dispute that the entire construction raised by the builders on the third floor was not illegal even at the time of execution of the said agreement to sell. It also cannot be in dispute that any portion constructed by the builder in excess of the floor area ratio and in violation of the building by-laws would have resulted in demolition of only that portion which was unauthorized. Further in terms of clause 9 of the collaboration agreement, for any violation committed by the builder they were to keep the owners harmless and indemnified for any loss claims or demands resulted to the owners due to such non- performance or non-observance of rules and regulations. In the backdrop of these facts, it cannot be said that any illegality was committed by the builders in executing the agreement to sell in favour of the appellants for the sale of the third floor of the said property. As there was nothing illegal in the transfer of the third floor of the said property by the builders in favour of the appellants, therefore so far the said agreement to sell is concerned, the same can neither be treated as unlawful or void on account of unauthorized construction on the part of the CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 27 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:01 +0530 builder on the said floor. This court is therefore of the considered view that the existence of unauthorized construction on the third floor of the said property could not have created any bar in the grant of decree for specific performance by the Ld. Trial Court in favour of the appellants and against the respondents. The existence of any unauthorized construction on the third floor would have certainly caused suffering to the purchasers i.e. the appellants herein or the same could have been at the sufferance of the builders in terms of Clause 9 of the Collaboration Agreement had there been any loss occasioned to the owners as a result of raising of the illegal construction by the builder. Nevertheless, as already discussed above, this question in any case has now become academic since now the third floor construction already stands regularized by the MCD.
22 . In the light of the above discussion, this court is of the considered view that the appellants are entitled to the grant of decree of specific performance of the contract and accordingly the suit is decreed against all the respondents and in favour of the appellants. The impugned judgment and decree dated 29.03.2005 is accordingly set aside. The respondents are directed to execute the sale deed in favour of the appellants in terms of Clause 11 of the collaboration agreement dated CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 28 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:05 +0530 01.06.1983 within a period of one month from the date of this order and at the time of execution of sale deed the appellants shall pay the balance sale consideration amount to the builders i.e. respondent Nos. 1 to 5.
23. Hence, the appeal is allowed.
42. The Hon'ble High Court of Madras in R.Velammal Vs. R. Daivasigamani and Ors, AIR 1993 Madras 100 has held that there is no legal impediment could arise to grant the relief of specific performance of contract where the purchasers themselves had agreed and willing to purchase a property along with the encumbrances.
43. The Hon'ble Hon'ble High Court of Delhi in Ajit Prasad Jain v. N.K. Widhani and Ors., 38 (1989) DLT 456 has held that the relief of specific performance could not have been denied to the purchaser for want of permission from L & DO once the purchaser was ready and willing to perform his part of contract.
44. The plaintiff has filed a copy of order/notification issued in File No.F.1 (186)/Regn.Br/Div.Com/08 of 2008 passed by Sh. S.K. Khosla, COS (HQ)/SDM-I(HQ), Revenue Department of Govt. of NCT of Delhi which directs the sub- registrars that no sale deed can be refused for registration on the ground that it is booked for U/C. The relevant portion of CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 29 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:09 +0530 the said order is reproduced as under:-
"Attention of all the registrars and SR, Delhi/New Delhi is invited to this office order dated vide F.36(07)/Codn/Div/Com06/464-90 dated 09.05.2006 by the then DC/CCRA, Delhi for affixing special rubber stamp on first and last page of the document of sale/transfer of property revealing that "The property is unauthorized as per the list displayed by MCD" and non such property which appears in the list is registered without impressing the said stamp."
45. In view of the above order passed by the Revenue Department and judgments passed by the Hon'ble High Courts and considering the material on record, this Court is of the view that there is no legal bar in getting the sale deed executed in respect to the properties which are booked by MCD for unauthorized construction, therefore, sale deed qua the upper ground floor and stilt parking can be executed and registered with the Sub-registrar in favour of plaintiff particularly when plaintiff has complied with and performed all his part of performance as per collaboration agreeing Ex.PW1/A; nothing remains to be performed on the part of plaintiff; plaintiff has spent a handsome amount on the construction of the subject property out of his own pocket; plaintiff and defendants are in possession of their respective portions since 2012 and no CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 30 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:13 +0530 action from the MCD has been taken after 15.10.2012 and defendants are using and enjoying the first floor, second floor and third floor with roof and stilt parking since last 12-13 years which have been constructed from the hard earned money of plaintiff.
46. Considering the facts and circumstances of the case, material came on record and above observations/discussions, this Court concludes that plaintiff is entitled for decree of specific performance against defendants as prayed. Issue No.1 is accordingly decided in favour of plaintiff and against defendants.
ISSUE NO. 2:- Whether plaintiff is entitled for permanent injunction as he prayed for? OPP
47. This Court has concluded that plaintiff is entitled for relief of specific performance against defendants as prayed in the plaint and considering that plaintiff is residing in the suit property since 2012 and all the expenses towards the construction of the subject property was borne by the plaintiff from his own pocket and to preserve the suit property, therefore, this Court concludes that plaintiff is also entitled for decree of permanent injunction against defendants. This Court by way of decree of permanent injunction makes the order dated 26.07.2016 absolute. Issue no.2 is accordingly decided CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 31 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:18 +0530 in favour of plaintiff and against defendants.
FINAL JUDGMENT
48. The plaintiff is entitled for the following decrees/reliefs which are mentioned as under:-
I. A decree of specific performance is hereby passed in favour of plaintiff and against defendants thereby defendants are directed to execute and register the sale deed of the suit property i.e. upper ground floor with one car parking forming part of the property bearing no.A-7, measuring area 60 sq. yards out of Rect. No.11, Killa No.1/2/2, situated in the abadi of Laxman Park in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051, specifically shown in Red Colour in the site plan attached with the plaint, in favour of plaintiff, with the concerned Sub-registrar.
II. A decree of permanent injunction is hereby passed in favour of plaintiff and against defendants thereby defendants, their agents/their employees/their associates/their nominees/their heirs/their representative are restrained from selling, transferring and/or creating third part right or interest in respect to the suit property i.e. upper ground floor with one car parking forming part of the property bearing no.A-7, measuring area 60 sq. yards out of Rect. No.11, Killa No.1/2/2, situated in the abadi of Laxman Park in the area of Village CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 32 of 33 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2025.01.20 18:33:23 +0530 Khureji Khas, Illaqa Shahdara, Delhi-110051, specifically shown in Red Colour in the site plan attached with the plaint.
49. Present suit is accordingly decreed. Decree sheet be prepared accordingly.
50. Present suit is accordingly disposed of.
51. File be consigned to record room after due compliance.
Digitally signed by DEEPANKER DEEPANKER MOHAN
MOHAN Date: 2025.01.20
18:33:30 +0530
Announced in the open Court (DEEPANKER MOHAN)
on this 20 day of January, 2025 DISTRICT JUDGE-04, th SHAHDARA DISTRICT KKD Courts, Delhi CS No. 841/16 Rajesh Garg Vs. Rakesh Kumar Page 33 of 33