Delhi District Court
Madhukar Arenja V Rawal Apartment Pvt ... vs Narendra Anand & Another on 30 November, 2019
Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
IN THE COURT OF SH.MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE (CENTRAL):
TIS HAZARI COURTS: DELHI
CIVIL SUIT No : 12651/2016
(18 YEARS & 4 MONTHS & 4 DAYS OLD)
SH.MADHUKAR ARENJA
son of Sh. Mohan Lal Arenja
resident of 537, Katra Ishwar Bhawan
Khari Baoli, Delhi 110 006
ALSO AT
D-1080, New Friends Colony,
New Delhi .....Plaintif
VERSUS
RAWAL APARTMENT PVT LTD
a Private Limited Company
incorporated and registered under
companies Act 1956, having its office
amongst other place at
101, Competent Office, F-14, Connaught Place,
New Delhi 110 001 ....Defendant
SUIT FOR SPECIFIC PERFORMANCE,
DECLARATION, INJUNCTIONS AND OTHER
RELIEFS
Date of Institution of the suit :27.7.2001
Date on which judgment was reserved :22.11.2019
Date of decision :30.11.2019
Result:Suit dismissed Page 1 of 73
Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
JUDGMENT
1. For record, this judgment though pertains to the present suit, it is also equally applicable to three more similar suits which are described below but not common for all intent and purposes - viz :
(a) Sh.Surender Arenja v Rawal Apartment Pvt Ltd being CS No.12648/2016 (Old No.1314/2001) instituted on 09.7.2001 on the Original Side of the Hon'ble High Court of Delhi
(b) Ms.Pramila Arenja v Rawal Apartment Pvt Ltd being CS No.12650/2016 (Old No.606/2001) instituted on 25.6.2001 in the District Courts Delhi
(c) Ms.Monica Arenja v Rawal Apartment Pvt Ltd being CS No.12674/2016 (Old No.1317/2001) instituted on 10.7.2001 on the Original Side of the Hon'ble High Court of Delhi
2. The suit which is subject matter of this judgment was also instituted on the original side of the Hon'ble High Court of Delhi as Suit No.1487/21001 on 27.7.2001.
3. The first suit filed most prior point of time is the suit titled Ms.Pramila Arenja v Rawal Apartment Pvt Ltd. However, the present suit is treated as a lead suit by virtue of an order dated 20.3.2007 passed on the suit titled Ms.Monica Arenja v Rawal Apartment Pvt Result:Suit dismissed Page 2 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Ltd, by virtue of which all the four suits were consolidated for the purpose of evidence to be recorded in the present suit and to be adopted in the remaining cases as well. For record, there is separate cross examination of PW1 also available on record of CS 12650/2016.
FACTS IN THE PLAINT
4. The plaintiff is a private individual while the defendant is a duly incorporated Company engaged in the business as Promoter and Developer of real estate in Delhi and other places.
5. In the year 198586, the defendant made various representations to the public that they were in the process of constructing a multistorey commercial building known as "N.S.House" at 14, Janpath Lane, New Delhi 110 001 claiming that they have entered into an agreement dated 25.7.1985 with one Sh.Shiv Darshan Singh owner to build/develop the same on the basis that they were entitled and empowered to sell space on ownership basis in the proposed building. Believing in such assurances, representations and promises of the defendant company, the plaintiff applied for allotment of commercial space in the proposed building and thus on 04.12.1986, the parties to this lis entered into an agreement of sale of office space in the form of Result:Suit dismissed Page 3 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 flat No.13 of approximate super covered area of 500 sqft on 6th floor denoted by number 613 at the rate of Rs.1,140/ per sqft. This document referred to as an "allotment letter" contains the terms and conditions of which clauses 4, 5 10, 11 and 13 are cited in the plaint.
6. Briefly stated, clause 4 provided for payment in installments and if not paid in stipulated period, then the allotment will stand cancelled and 20 per cent of cost of flat will be forfeited while the balance paid will be refunded without interest. Alternatively, in case of default by the flatbuyer, interest at the rate of 24 per cent per annum was chargeable. 20 per cent of cost was payable at the time of booking whereas 10 per cent each of the cost was to be payable in 7 phases at different stages of construction of the proposed building. The last 10 per cent of the final payment was payable in equal proportions upon completion of structure and finally upon handing over of the possession.
7. As per clause 5, the quoted rates were for super covered area including area under internal and periphery walls and columns, below widow sill plus proportionate share of area under passages, staircases, lifts etc and half of the area in case of common walls in between two walls.
Result:Suit dismissed Page 4 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
8. As per clause 10, the drawings displayed were provisional and subject to change.
9. As per clause 12, the building plans were to be approved from sanctioning authority and construction to be completed in two and a half years from the date of start of the construction subject to force majure circumstances. The builder (defendant) kept no liability unto itself for delay beyond their control.
10. As per clause 13, the rate of per sqft is based on the cost of construction as on 01.3.1986 holding good till 31.12.1986 stipulating that in case of increase in it, the value of salable space will be enhanced. Final sale price was left to be determined after taking into consideration such increase in the cost of construction. Interest thereupon is to be calculated on the basis of proportionate increase in the Building Cost Indice for Delhi as followed by CPWD and the cost index is to be applicable to the plinth area rates in Delhi as followed by the CPWD.
12. Accordingly, total sale consideration qua this plaintiff was at Rs.1140/ x 500 sqft i.e. Rs.5,70,000/ and 20 per cent of it i.e. Rs.1,14,000/, was deposited with the defendant through one firm Result:Suit dismissed Page 5 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 namely Sahil Enterprises to the account of the plaintiff held with the said firm as Creditor.
13. Vide letter dated 10.1.1987, the defendant was called upon to make further payment of 10 per cent of cost (which was to be actually payable within three months from the date of booking) immediately after execution of the agreement dated 10.1.1987 being Rs.57,000/. This was paid and acknowledged against receipt No.454 dated 12.3.1987 (as per documents available on record).
14. The plaintiff made simultaneous inquiries regarding further development qua completion of formalities and in response, the company and its official including Managing Director Sh.Narendra Anand represented that they are making all efforts to commence construction and the original representation will be honoured.
15. The next in line is the letter dated 05.8.1987 of the defendant to the plaintiff informing that the proposed building sent by the L&DO and terms for change of user from Residential to Commercial given by the L&DO, Ministry of Urban Development. It notified that the defendant has made payment of first installment as conversion charges and that the building plans stood approved by a SubCommittee of the Result:Suit dismissed Page 6 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 NDMC.
16. It is the grievance of the plaintiff that at the time of making representations and allotment of the proposed building, the defendant never informed that the land use was still Residential and that permission for change of user was to be obtained. As per clause 16 of the agreement, the land use of the plot was "Commercial" as per Delhi Zonal Plan. This is said to be a major misrepresentation. Nevertheless, the plaintiff did not agitate the matter as change of user stood granted by then. Query was however made regarding such concealment/non disclosure about which a standard response that the defendant company was assured of such conversion and hence the nondisclosure was made.
17. After this letter dated 05.8.1987, another such letter dated 07.8.1987 was received by the plaintiff from the defendant informing that in response to the letter of L&DO, they had paid partsum demanded towards conversion charges and another sum stood assured by way of a Bank Guarantee as security for the balance payment of conversion charges. It was informed that the defendant was awaiting NOC from the L&DO to commence construction. Enclosed was a letter addressed by Sh.Shiv Dharshan Singh to the L&DO dated 25.9.1987 Result:Suit dismissed Page 7 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
18. Taking into account the time taken in obtaining such permissions as above, the defendant represented that the proposed building will be completed by the year 1990 and during this period, the plaintiff remained a vigilant buyer making all enquiries qua progress of construction.
19. Next follows a letter dated 15.4.1989, intimating that Modified Comprehension Redevelopment Scheme of Janpath Land stood prepared by the DDA and sent to NDMC and further approved by it on 06.4.1989.
20. It is in the plaint that the plaintiff himself did not attend all the meetings as his wife brother and mother had also purchased different commercial spaces in the said building (subject matter of other three suits).
21. The plaintiff is aggrieved of this inordinate delay which the defendant passed on DDA on account of time taken for finalization of re development scheme which is a departure from the original representation as the defendant never ever disclosed about the then pending issues with respect to conversion of land use; with respect to comprehensive redevelopment scheme of Janpath and other such issues Result:Suit dismissed Page 8 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 including the matters concerning FAR; fire safety in respect of traffic flow/circulation of it to be obtained from traffic police etc.
22. The above noted letter further informed that the process will involve two months or so conveying that commencement of construction of the proposed building was expected sometime in June 1989. It also reminded the plaintiff to pay 10 per cent of the total cost.
23. During the course of such correspondences, the defendant also called the plaintiff to issue certain certificates regarding payments made by the plaintiff to the defendant for Income Tax authorities which the plaintiff signed and submitted accordingly with the defendant. Copy of such a certificate confirming payment of Rs.1,71,000/ till 31.3.1989 is relied upon (as per documents available on record).
24. The plaintiff thereafter visited the office of the defendant and had meeting with its Managing Director many a times to enquire with respect to construction when assurance that permission would be shortly obtained and construction would commence shortly was given.
25. Ultimately, vide a letter dated 25.3.1991, the plaintiff enquired from the defendant about the status of the construction and also Result:Suit dismissed Page 9 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 brought to its notice the inordinate delay, complaining that clearance of permission and obtaining of sanction was taking abnormal time as the defendant had had represented that conversion of the land user from residential to commercial was a routine matter. Placed on record are the letters dated 25.3.1991 and 05.5.1991 which were not replied to by the defendant.
26. During each meeting, the defendants confirmed, re affirmed and assured the plaintiff and apologized for the delay but in such meetings that if they disclosed that at the time of accepting the allotment that had they disclosed that the land user was residential and not commercial, their business would have suffered. However, in all such meetings, the assurance of the commencement of the building was reaffirmed and reassured. Despite all this, the construction did not commence and the defendant in the guise of formalities delayed the entire project.
27. Despite the fact that the building was to be completed in the year 198990, till the year 1991 the construction did not commence and in each meeting, to each representation and on their own, the defendant used to blame the municipal authorities for the delay. Ultimately, vide letter dated 06.8.1991, the defendant informed that the Result:Suit dismissed Page 10 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 long outstanding matter of redevelopment has been resolved and that the DDA had sent the approval of drawings to the NDMC and that the defendant would resubmit their plan. Placed on record is the letter dated 06.8.1991.
28. Despite assurance in August 1991 that construction would commence soon, followed by various visits of the plaintiff to the office of the defendant, the defendant failed and neglected to commence the construction.
29. On the lines of the letter dated 06.8.1991, the defendant again addressed letter dated 09.12.1992 to the plaintiff that re development scheme of Janpath Lane has been approved and that with the approval of Janpath Redevelopment Scheme, all the formalities including sanctioning of the building plan would be completed within two months and represented that they expected to commence the construction of the building in the month of February 1993. The plaintiff has placed copy of the letter dated 09.12.1992 on the record.
30. On 02.2.1993, by a letter the plaintiff informed the defendant of inordinate delay of six years since deposit of the amount. Again CS 12651/2016, a similar grievance was lodged with the Result:Suit dismissed Page 11 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 defendant and in return, the defendant vide letter dated 30.4.1996 revealed for the first time the issue regarding vacation of the property by its then occupants. There were 12 tenants who had engaged into litigation and thus the defendant offered 5 per cent rebate on list price on any other property.
31. On 21.10.2000, the defendant wrote letter to the plaintiff intimating approval of plans by the NDMC stating that provisional allotment was made on 250 FAR and was subject to increase/decease in accordance of Delhi Master Plan 2001 and that for the area of Janpath, it had been reduced to 150 FAR. It was informed that the allotment of 500 sqft in the year 1986 of the plaintiff stood reduced to 300 sqft. Consent in writing qua reduction of the area was sought from the plaintiff after 14 years since allotment.
32. This followed another letter dated 01.11.2000 by which the defendant sought to impose fresh terms on the plaintiff intimating that under the then condition of the Master Plan, the Government had made it mandatory to provide one parking space in the basement to every flat owner. The defendant had intimated that the NDMC had sanctioned two basements in the building which shall have to be constructed for parking of the vehicles. It meant that no storage space will be left in the building Result:Suit dismissed Page 12 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 and both the basements shall be used for parking only. Thus, a sum of Rs.3,50,000/ towards it was asked in two installments first payable by 15th November and second by15th December 2000.
33. On receipt of it, the plaintiff addressed to the defendant a reply letter dated 15.11.2000 expressing plaintiff's anguish and seeking a meeting with the Managing Director. No response to it was received. On 28.3.2001, the defendant sent a communication to the plaintiff imposing fresh condition that of increase in the cost of construction stating that they have calculated the escalation based on plinth area rates and that a policy decision was taken to charge Rs.3,000/ per sqft tentatively as on date. The building had to be centrally airconditioned and the financial terms shall be determined on completion of the building. It further informed that the project will be then concluded within two years. It granted one more opportunity to the plaintiff to exercise option and in the event of nonresponse, it threatened that it shall be presumed that the plaintiff is not interested.
34. The plaintiff by letter dated 10.4.2001 brought to the notice of the defendant that in all previous communications, the defendant had not disclosed whether all the permissions, No Objections and other requisite formalities had been complied as also had not commented upon Result:Suit dismissed Page 13 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 their alleged disputes with the tenants as also regarding the fate of the litigation and the stay orders of the Court. The plaintiff also sought information about the policy decision to charge Rs.3,000/ per sqft besides asking for basis for unilaterally imposing car parking upon the plaintiff at an exorbitant rate. In response the defendant sent letter dated 18.4.2001 informing that the present rate for construction of a multi storey including cost of land was tentatively Rs.3,000/ per sqft. The defendant blamed various Government authorities for the delay.
35. The plaintiff then wrote letter dated 28.4.2001 followed by another letter dated 12.5.2001 challenging the policy decision and car parking issue etc. The defendant vide letter dated 16.5.2001 acknowledged receipt of previous letters but failed top answer specific queries raised by the plaintiff.
36. The plaint then describes the threatened breaches by the defendant under the following heads, viz
(a) reduction of area alloted/sold to the plaintiff;
(b) increase in the cost of price; and
(c) car parking.
37. Stating the cause of action and its accrual, the plaintiff has Result:Suit dismissed Page 14 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 sought the following reliefs
(a) a decree of specific performance directing the defendant to specifically perform and fulfill the agreement to sell/allotment dated 04.12.1986 in favour of the plaintiff and not to commit any breach thereof with respect to flat bearing no.613, 6th floor, N.S.House, 14, Janpath Lane, New Delhi ad measuring 500 sqft;
(b) a decree of declaration directing the defendant to perform their contractual obligation in terms of the said agreement without insisting upon the unilateral terms as are being sought and to perform the agreement on the terms as agreed between the parties or on such as the Court may deem fit and proper with respect to the sale of office space in building proposed to be constructed by the defendant at 14, Janpath Lane with respect to flat bearing no.613, 6th floor, New Delhi;
(c) a decree of declaration declaring that the defendant has got no right in law or otherwise or in terms of the agreement to sell to impose conditions which are not in consonance with the terms of the agreement;
(d) direction to the defendant to render accounts of the amount deposited by the plaintiff with the defendant towards part sale consideration as also to render accounts with respect to the alleged proposed enhancement/levy/demands;
(e) a decree of permanent injunction against the defendant and in favour of the plaintiff to not to sell/alienate/part with the possession or offer for sale or encumber upon the flat bearing No.613., 6th floor, N.S.House, 14, Janpath Lane, New Delhi (proposed to be constructed);
Result:Suit dismissed Page 15 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
(f) a decree of permanent injunction in favour of the plaintiff and against the defendant restraining the defendant from selling, offering to sale, encumber, parting with possession or otherwise dealing with an area of 500 sqft in the building proposed to be constructed at N.S.House, 14, Janpath Lane, New Delhi;
(g) a decree of declaration thereby declaring that the defendant has no right to terminate the agreement and any alleged termination if effected in respect of the agreement dated 04.12.1986 entered into by the defendant with the plaintiff with respect to office space bearing no.613, N.S.House, 14, Janpath Lane New Delhi, is bad, illegal, null and void and can not be given effect to.
WRITTEN STATEMENT
38. The defendant appeared and filing written statement presenting "brief facts" stating that in the year 1985, it entered into a collaboration agreement with S.Shiv Dharshan Singh of a multistorey commercial building on plot No.3A, Block No.124 (popularly known as 14, Janpath Lane) New Delhi. Building plans were submitted with the NDMC in the year 1986 for approval but the application was rejected as Janpath Lane area was under Comprehensive Development Scheme to be prepared by the Government of India. Then, the building was to be allowed with an FAR of 250 with 10 storeys. Later, under the Master Plan Delhi 2001 notified in August 1991, only 150 FAR was allowed for Janpath Lane and other area of Connaught Place and Result:Suit dismissed Page 16 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Connaught Place Extension under Para 3(ii) with a maximum ground coverage of 25% and maximum height of 37 meters. Payment towards conversion charges for developing the plot into a commercial complex on the basis of FAR 250 was already made in the year 1987.The total demand by L&DO was Rs.1,93,82,391/. The first installment of Rs.58,66,260/ was deposited in the year 1987 and two bank guarantees for an equal amount were furnished. The DDA also filed an affidavit dated 12.5.1989 in the Hon'ble High Court of Delhi in Suit No.1445/1983 decided on 18.5.1989 that FAR 250 shall be granted. On that basis, the suit was decided but after introduction of Master Plan Delhi 2001 in August 1991, the FAR was reduced to 150. The Comprehensive Development Scheme of Janpath Lane was approved in the year 1993 and the Delhi Urban Art Commission approved the lay out vide letter dated 22.12.1994. Vide letter dated 31.5.1995, an objection was raised by the Land & Building Department with regarding to Urban Land Ceiling Act for extension of time. A Writ petition bearing no.3602/1995 was filed in the High Court of Delhi which was pending till the Urban Land Ceiling Act was repealed. As such, fresh plans were filed before the NDMC and approved on 18.9.2000 with FAR of 150 and compulsory car parking in the two basements.
39. It is pointed out that there have been discussions between Result:Suit dismissed Page 17 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 the NDMC, DDA, Delhi Fire Service and Delhi Police and Ministry of Urban Development in consultation with the DDA and the NDMC had finally decided that no parking shall be allowed on the road outside the building.
40. Admittedly, the plaintiff had made a booking (provisional) in the year 1986 for 500 sqft space when FAR was 250. Later, the FAR was reduced affecting the proposed constructed area of all the flats. Only five and a half storeys can be constructed as compare to earlier proposed eight storey. To accommodate all those who were allotted space area of each one of the persons who had booked space reduced from 500 sqft to 300 sqft superarea. Owing to statutory compulsions, all the allottees had agreed to have accepted 60% space instead of original booking. The plaintiff was similarly called upon vide letter dated 21.10.2000 to exercise option but the plaintiff failed to reply to this letter. The defendant then again sent letters dated 01.11.2000, 13.11.2000, 06.3.2001 and 28.3.2001 for exercising the option.
41. Further, the plaintiff was again sent letters dated 28.4.2001 and 06.5.2001 asking to make the payment. Since the plaintiff did not exercise option, the provisional allotment made to the plaintiff was called on 01.6.2001 and the cancellation was conveyed vide letter dated Result:Suit dismissed Page 18 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 15.6.2001.
42. It is stated that the provisional allotment letter dated 04.12.1986 was duly signed by the plaintiff and thus the plaintiff is bound by the terms thereof which are subject to signing of Flat Buyer's Agreement.
43. It is stated that after cancellation of allotment, the plaintiff had no remedy in the law on account of Section 14 of the Specific Relief Act and as such prayers (a) to (f) can not be granted. Prayer (g) shows that the plaintiff was aware of the permission and is guilty of suppression of flats.
44. It is stated that there is no contract existing between the parties and the completed contract could have come into existence only after the signing of the Flat Buyer's Agreement.
45. It is stated that the plaintiff has approach this Court with unclean hands and the fact is that the plaintiff did not want to make payment for the car parking space in the basement and wanted to have to the space without making any payment.
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46. It is submitted that there is no privity of contract with Sahil Enterprises and there is no agreement to sell between the parties. The allotment vide letter dated 04.12.1986 is stated to be provisional only which was subject to Flat Buyer's Agreement to be signed by the parties. It is admitted that the plaintiff had applied for provisional allotment. It is admitted that an agreement dated 25.7.1985 was entered with S.Shiv Darshan Singh. It is admitted that there was proposal to construct eight storey building and plans were submitted with the NDMC in the year 1986. It is denied that any representation was made to the public in general or by any public advertisement.
47. It is admitted that the provisional allotment was made for proposed 500 sqft on the 6th floor as flat No.613 in the proposed building. It is stated that due to delay by the Central Government and other Agencies the plans were not approved at all; the Master Plan was changed; the Comprehensive Zonal Plan for Janpath was drawn and eventually only five and a half storey building with 50 per cent of the 6 th floor was sanctioned by the NDMC which would not cover the proposed flat No.613 as only 50 per cent of the area was sanctioned on 6th floor.
48. The defendant relies upon clause (i), (iii) and (viii) of the Result:Suit dismissed Page 20 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 provisional allotment letter. It is stated that the building plan was sanctioned only on 18.9.2000.
49. It is also admitted that a sum of Rs.1,71,000/ was paid by the plaintiff as provisional payment for provisional allotment. It is stated that it was only a proposal, there is no building and no space even today. It is stated that as flat No.613 on the 6th floor has not been sanctioned by the NDMC, clause (iii) of provisional allotment letter disentitles the plaintiff from any space. Still the defendant, it is stated, wanted to accommodate the plaintiff and thus wrote several letters to accommodate the plaintiff but the plaintiff always remained adamant in not making any payment and was only interested to drag the defendant into uncalled for litigation despite cancellation of allotment on 01.6.2001 of which the plaintiff is aware of.
50. It is submitted that the provisional allotment letter is to be read as a whole along with Flat Buyer's Agreement. The defendant denies any meeting as alleged between the plaintiff and its Managing Director Narendra Anand or of any assurance whatsoever. It is also informed that the plaintiff was correctly told about the development with the L&DO and payment of conversion charges. The bank guarantee was furnished for Rs.43,00,000/ on 17.6.1998 as per orders of High Court of Result:Suit dismissed Page 21 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Delhi. It is reiterated that there is no fault or delay on the part of the defendant.
51. It is submitted that as and when the plaintiff made enquiries, the plaintiff was informed of the fact the Janpath Lane had been included for Comprehensive Development Scheme.
52. The fact of letter dated 15.4.1989 is not denied. It is submitted that the defendant had given no date for completing the building. In fact, two and a half years period will start only after sanction of the plan. After such sanction, the plaintiff and other family members of the plaintiff refused to make any payment leading to cancellation of allotment on 01.6.2001. The letter dated 06.8.1991 is not denied. It is stated that the defendant was always ready and willing to commence the construction upon sanction of the plan. The defendant was always hopeful that the plans would be sanctioned at an early date. There was no misrepresentation or concealment of facts. Payment from the plaintiff was demanded only after plans were sanctioned but no payment was made.
53. So far as possession of part of the property is concerned, it is stated that the defendant had settled with all the tenants and vacant Result:Suit dismissed Page 22 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 possession of 95% of the plot was already with the defendant as on the date of sanction of the plan. The entire plot had been dug out and the building could be constructed as per sanctioned plans.
54. Regarding the Court cases, it is submitted that a case was filed by the defendant for the sanction of the building plan which was withdrawn as soon as the plans were sanctioned. It is submitted that correct position was conveyed to the plaintiff vide letter dated 21.10.2000 when for the first time intimation for sanction of plan was conveyed to the plaintiff. While sanctioning the plans, the NDMC sanctioned two basements for parking which is the reason for sale of parking space to the plaintiff at pro rata rate of Rs.3,50,000/. It is stated that time is the essence for payment.
55. Letter dated 18.4.2001 is not denied. It is stated that letter dated 04.3.2001 was sent to the plaintiff earlier and its copy was again annexed to letter dated 18.4.2001. Receipt of letter dated 28.4.2001 and 12.5.2001 is not denied. It is stated that cost of Rs.3,000/ per sqft was most reasonable as it included the cost of land which as per the L&DO rates notified on 01.4.1998 was Rs.3589.74 paise per sqft.
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56. It is also submitted that the NDMC vide its letter dated 30.5.1995 informed the defendant that the clearance obtained under Urban Land Ceiling Act had expired and the competent authority under this Act should be approved for extension. The said Competent Authority threatened to charge more than Rs.two crores for the extension which was not payable by the defendant and moreover, it would have eventually cast burden on space buyers , thus, the defendant filed CWP No.3602/1995 and in the meantime the Urban Land Ceiling Act was repealed. Subsequently, plans were sanctioned by the NDMC on 18.9.2000, and therefore, the defendant did not cause any delay.
57. It is stated that the plaintiff had option till 31.5.2001 to continue to be a member of the Scheme and since no option was exercised and no payment was made, the allotment itself was cancelled. Thereafter, the plaintiff has no right to make any claim against the defendant except refund of money admissible under the provisional allotment letter.
Dismissal of the suit with the above averments, is made.
REPLICATION
58. The replication is reiteration, renarration and reassertion of the facts pleaded in the suit plaint as correct. It is stated that the Result:Suit dismissed Page 24 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 plaintiff was not concerned with any alleged change in the FAR in view of clause (i) of the agreement of sale dated 04.12.1986. It is submitted that the plaintiff is not concerned with the alleged payment of conversion charges by the defendant which was the contractual obligation of the defendant as per clause (xvi) of the agreement dated 04.12.1986. It is re iterated that as per it, the land use of the plot is commercial which was factually incorrect. It is stated that the plaintiff never received any alleged letter dated 28.4.2001 and 06.5.2001. It is stated that there was no occasion for the defendant to cancel the allotment and it was only due to the petition filed by the plaintiff before the MRTP Commission under Section 36(a) and Section 12(b) of the Monopolistic and Restrictive Trade Practices Act, 1969 in which notices were issued to the defendant for 09.6.2001. Hence, the defendant allegedly issued cancelled letter dated 01.6.2001 in a back date. The plaintiff denies about having any information about such cancellation by the defendant's letter dated 15.6.2001, the receipt of which is denied.
59. Rest of the contents of the replication are denial of the defendant's case except the admitted part of it.
ISSUES
60. Issues, in the present case, were framed on 22.2.2005 as Result:Suit dismissed Page 25 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 under :
1.Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? OPD
2.Whether the plaintiff is entitled to specific performance of the contact dated 04.12.1986?OPP
3.Whether the plaintiff is entitled to the decree of declaration? OPP
4.Whether the plaintiff is entitled to rendition of accounts?
OPP
5.Whether the plaintiff is entitled to the relief claimed? OPP
61. The evidence of the parties was recorded partly before a Local Commissioner and partly before the Court. The matter was then posted for final argument but during the interregnum the plaintiff moved an application under Order VI Rule 17 CPC seeking amendment of the plaint which was dismissed on 16.12.2017 observing that it is only in the prayer clause that relief of refund of the advance amount is being sought and no corresponding amendment was sought in the plaint. The factum of permissibility of no construction at the subject property as held by Result:Suit dismissed Page 26 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 the Apex Court in the case titled Archaeological Survey of India vs Narendra Anand & another, reported as JT 2012(1) 886 was duly stated in para 23 of the affidavit of the plaintiff in evidence.
62. As a matter of fact, the plaintiff has also filed an application under Order XIV Rule 5 CPC along with an application under Section 151 CPC for review of the order dated 11.5.2018 which imposed cost upon the plaintiff.
63. The first application seeking framing of additional issue was dismissed on 11.7.2018 and the same was challenged in CM(M) 1495/2018 which was finally decided on 17.9.2019. The plaintiff was seeking monetary compensation for breach of the contract in view of the judgment in JT 2012(1) SC 386 titled Archaeological Survey of India vs Narendra Anand & another, and another judgment titled Narendra Anand & another vs Archaeological Survey of India.
64. The Hon'ble High Court while disposing of the petition vide order dated 17.9.2019 observed for consideration by this Court, as under : "8. After hearing ld. counsels for the parties and perusing the pleadings on record, it is observed that the relief sought by the Result:Suit dismissed Page 27 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Plaintiff in the plaint includes reliefs of declaration and injunction. Prayer D specifically relates to rendition of accounts and payment of part sale consideration. Though the relief is not worded happily, the question as to whether the Plaintiff is to be granted any monetary amount is to be decided within the reliefs prayed for in the plaint. Since the evidence already stands concluded in the matter, the matter shall be heard finally and the ld. Trial Court should adjudicate as to which of the relief is liable to be granted to the Plaintiff and shall also consider the monetary compensation that is to be paid to the Plaintiff. The Petition and all pending applications are disposed of."
EVIDENCE ON BEHALF OF THE PLAINTIFFS
65. The plaintiffs tendered common evidence by way of affidavit of Sh.Madhukar Arenja in the present case as also as attorney of the plaintiffs in the three other connected case as mentioned in this judgment and exhibited the same as Ex.PW1/X. PW1 further exhibited original copy of the letter from the defendant regarding application for allotment as Ex.PW1/1, original copy of the letter dated 04.12.1986 from the defendant regarding allotment of commercial space in proposed building as Ex.PW1/2, original copy of the letter dated 04.3.1991 regarding booking of a flat in the proposed building as Ex.PW1/3, office copy of the letter dated 04.12.1986 addressed by Result:Suit dismissed Page 28 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Sahil Enterprises to the defendant as Ex.PW1/4, Office copy of the letter dated 10.1.1987 of the defendant to the plaintiff as Ex.PW1/5, Original copy of the letter dated 13.2.1987 of the defendant to the plaintiff as Ex.PW1/6, Original copy of the acknowledgment receipt dated 12.3.1987 issued by the defendant as Ex.PW1/7, Original copy of the letter dated 15.4.1989 from Sahil Enterprises to the defendant as Ex.PW1/8, Office copy of the letter dated 25.3.1991 from Sahil Enterprises to the defendant as Ex.PW1/9, Office copy of the letter dated 05.5.1991 from Sahil Enterprises to the defendant as Ex.PW1/10, Original copy of the letter dated 06.8.1991 from the defendant to the plaintiff as Ex.PW1/11, Original copy of the letter dated 27.4.1992 from the defendant to the plaintiff as Ex.PW1/12, Original copy of the letter dated 09.12.1992 from the defendant to the plaintiff as Ex.PW 1/13, Original copy of the letter dated 21.7.1993 from the defendant to the plaintiff as Ex.PW1/14, Office copy of the letter dated 08.2.1995 from the plaintiff to the defendant as Ex.PW1/15, Office copy of the letter dated 18.5.1995 from Sahil Enterprises to the defendant as Ex.PW1/16, Original copy of the letter dated 30.4.1996 from the defendant to the plaintiff as Ex.PW1/17, Original copy of the letter dated 10.5.1996 from Sahil Enterprises to the defendant as Ex.PW1/18, Result:Suit dismissed Page 29 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Original copy of the Regd letter dated 21.10.2000 from the defendant subjecting to commencement of construction as Ex.PW1/19, original copy of the letter dated 01.11.2000 from the defendant to the plaintiff as Ex.PW1/20, original copy of the letter dated 13.11.2000 from the defendant to the plaintiff as Ex.PW1/21, original copy of the letter dated 15.11.2000 from the plaintiff to the defendant as Ex.PW1/22, original copy of the letter dated 06.3.2001 from the defendant to the plaintiff as Ex.PW1/23, original copy of the letter dated 28.3.2001 along with envelope from the defendant to the plaintiff as Ex.PW1/24, original copy of the letter dated 10.4.2001 from the plaintiff to the defendant along with acknowledgment as Ex.PW1/25, original copy of the letter dated 18.4.2001 from the plaintiff to the defendant along with acknowledgment as Ex.PW1/26, original copy of the letter dated 28.4.2001 from the plaintiff to the defendant along with acknowledgment as Ex.PW1/27, original copy of the letter dated 12.5.2001 from the plaintiff to the defendant along with acknowledgment as Ex.PW1/28, and original copy of the letter dated 16.5.2001 from the defendant to the plaintiff as Ex.PW1/29.
66. In Pramila Arenja's suit, separate crossexamination of Result:Suit dismissed Page 30 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 PW1 Sh.Madhukar Arenja was recorded on 03.9.2002 and 23.4.2003. Order for common evidence was passed on 20.3.2007. In this suit, the plaintiff Smt.Pramila Arenja also filed her affidavit in evidence but it was never tendered nor she appeared in the witness box. As a matter of fact, evidence of the plaintiff was closed in this case by way of statement of the attorney dated 10.5.2006.
67. The witness was duly cross examined on behalf of the defendant whereafter common evidence of the plaintiffs was closed on 19.11.2007.
EVIDENCE ON BEHALF OF THE DEFENDANT
68. The defendant examined two witnesses. The first witness is Sh.Narendra Anand - Managing Director of the defendant who is DW1 and his affidavit in evidence is Ex.DW1/A. He relies upon the following documents :
(i) letter dated 30.4.1996 from the defendant to the plaintiff with postal receipt and AD card as Ex.DW1/1 to Ex.DW1/3,
(ii) letter dated 21.10.2000 from the defendant to the plaintiff with postal receipt as Ex.DW1/4 and Ex.DW1/5,
(iii) letter dated 01.11.2000 from the defendant to the plaintiff with Result:Suit dismissed Page 31 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 postal receipt and AD card as Ex.DW1/6 to Ex.DW1/8,
(iv) letter dated 13.11.2000 from the defendant to the plaintiff with postal receipt and AD card as Ex.DW1/9 to Ex.DW1/11,
(v) letter dated 06.3.2001 from the defendant to the plaintiff with postal receipt as Ex.DW1/12 to Ex.DW1/13,
(vi) letter dated 28.3.2001 from the defendant to the plaintiff with postal receipt and AD card as Ex.DW1/14 to Ex.DW1/16,
(vii) letter dated 18.4.2001 from the defendant to the plaintiff with postal receipt and AD card as Ex.DW1/17 to Ex.DW1/19,
(viii) letter dated 16.5.2001 from the defendant to the plaintiff with postal receipt and AD card as Ex.DW1/20 to Ex.DW1/22,
(ix) letter dated 15.6.2001 from the defendant to the plaintiff with postal receipt as Ex.DW1/23 to Ex.DW1/24,
(x) letter dated 27.6.2001 from the defendant to the plaintiff with postal receipt as Ex.DW1/25 to Ex.DW1/26,
(xi) letter dated 10.8.1993 sent by the NDMC as Ex.DW1/27, and
(xii) Development Controls for Development of Japath Lane area published by the DDA as Ex.DW1/28.
The witness was duly cross examined on behalf of the plaintiffs.
Result:Suit dismissed Page 32 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
69. Sh.Anand Prakash Tigga, Asstt Architect from NDMC, is DW2 who produced the summoned record i.e. the record pertaining to Building Plans of property no.14, Janpath Lane, New Delhi. Application for sanction for building plan was filed on 08.8.1986 when FAR was
250. Similar application was again filed on 24.6.1993 which was rejected on 26.7.1993. Redevelopment Plan of Janpath Lane by the DDA was approved on 24.5.1994. Ex.DW1/28 is stated to be the true copy of the development control. NDMC had received letter from DDA on13.12.1999 for providing parking in this area. On 14.6.1999, the defendant applied for sanction of the plan which was rejected vide order dated 12.8.1999 true copy of which is Ex.DW2/1. The defendant also filed an application for sanction of the plan dated 21.7.2000 which was approved by the Chairperson, NDMC on 18.9.2000 and at that time permissible FAR was 150 and permissible ground coverage was 25%. The proposed FAR was 149.97 and ground coverage was 24.12 %. The number of floors sanctioned were ground plus six upper floors (5 floors plus half 6th floor). Ground floor area was sanctioned as 704.13 sqmtrs and of 6th floor was sanctioned as 337.26 sqmtrs. Basement was sanctioned only for parking. According to the witness, the defendant had firstly sought sanction for construction of the ground floor upto ninth floor. ASI had written a letter dated 10.5.2001 to the NDMC mentioning that the existing building on the suit property was within prohibited or Result:Suit dismissed Page 33 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 regulated limits of centrally protected monuments. The NDMC was requested to stop the construction.
Thereafter, evidence of the defendant was closed on 18.5.2010.
70. Despite ample opportunities having been afforded the plaintiff did not turn up for oral arguments and even failed to file written submissions, as directed. Thus, the Court could not get able assistance of the learned counsel for the plaintiff and has therefore, taken extra care to go through each and every document, pleadings and crosspleadings and the evidence very minutely and carefully.
71. The defendant's counsel, however assisted the Court and also filed short written submissions.
72. Mr.Sanjay Dua, Advocate's arguments can be broadly categorized in to five headings
(a) absence of concluded contract;
(b) no breach on the part of the defendant in performing their part of obligation;
(c) failure of the plaintiff to show willingness and readiness to fulfill the obligations visavis Section 16(c) of the Specific Result:Suit dismissed Page 34 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Relief Act;
(d) the contract (assuming there was a subsisting contract) was rendered impossible attracting Section 56 of the Contract Act, 1872;
(e) nonjoinder of parties and failure of the plaintiff to pray for compensation/damages/refund of advance money etc; visavis absence of evidence of actual loss.
73. Mr.Dua, Advocate for the defendant would argue that the plaintiff is not entitled to either the relief of specific performance or any other relief as there was no concluded contract. It is urged that the letter dated 04.12.1986 is only a provisional allotment which does not constitute a concluded contract as the document itself is nomenclatured as "provisional". It is urged that size of the proposed office space/flat is uncertain as the provisional allotment specifies that the plans are still to be sanctioned. Final determination of the plot size was to be determined after sanction of plans only.
74. It is urged that even the very allotment was uncertain in view of the provisions in the letter itself that in case of absolute deletion of flat from the sanction plan, no kind of claim will be raised or accepted and the amount received will be refunded in full without interest.
Result:Suit dismissed Page 35 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
75. It is urged that as per the letter, even the drawings displayed in the office of the builder, were provisional and subject to changes by sanctioning authority, architects or builders during the course of construction without any objection or claim by the flat buyers as incorporated in clause 10 of the letter.
76. It is urged that as per clause 13 of the letter, proposed price of the office space was also uncertain being dependent on various factors. It was agreed that the parking space, storage, balconies wherever provided will be charged extra as per clause 6 and they were also to be part of final price which was to be revised in terms of increase in the cost of construction after 31.12.1986. It is urged that clause 14 specifically provided that final payable sale price will be determined after taking into consideration the increase in the cost of construction.
77. It is also urged while referring to clause 2 of the letter that there remained uncertainty about the provision for car parking.
78. It is also submitted during the course of arguments that time for completion of the project too, was uncertain. The construction of the building was to be completed in two and a half years subject to force Result:Suit dismissed Page 36 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 majure circumstances from the date of start of construction after all the sanctions and permissions were obtained.
79. It is also argued in accordance of the pleadings that the allotment was always subject to acceptance by the plaintiff of the Terms of Flat Buyer's Agreement as per clause 8 of the letter.
80. The contract is also said to be not concluded for the reason that the project or its part was to be abandoned, no claim was to be preferred against the builder except for refund of price deposited and that too, without any interest liability. On this argument, the defendant relies upon the following judgments :
(i) M.V.Shankar Bhatt v Claude Pointo reported as 2004 AIR (SC) 636
(ii) Mayawanti v Kaushalya Devi reported as MANU/SC/0453/1990
(iii) T Muralidhar v PVR Murthy reported as MANU/DE/2822/2014
(iv) Baij Nath v M/s Ansal & Saigal Properties Pvt Ltd reported as AIR 1993 Delhi 285.Result:Suit dismissed Page 37 of 73
Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
81. The next segment of alternative arguments of Mr.Sanjay Dua, Advocate for the defendant, is based on his plea that the contract (assuming there was one) stood frustrated. It is his case that the construction could not commence on account of delays purely attributable to the Government/Municipal authorities like L&DO, Urban Land Ceiling authority, DDA, NDMC etc. It is submitted that the evidence has been led to prove the above aspect and the fact that the defendant had submitted plans for proposed building for sanction by the NDMC in the year 1986 which were rejected as Janpath Lane was under
Comprehensive Development Scheme, prepared by the Govt of India. It is submitted that evidence has been led to prove that at the relevant time, the permissible FAR was 250 but in August 1991, after notification of Master Plan Delhi 2001, the FAR was reduced to 150 and the maximum ground coverage was reduced to 25% and the maximum height to 37 meters.
82. It is submitted that evidence is led to prove that this Comprehensive Development Scheme of Janpath Lane are was finally approved in the year 1993 and the Delhi Urban Art Commission approved the Lay out vide letter dated 22.12.1994 by which time, vide letter dated 31.5.1995 of the Land & Building Department, Ministry of Urban Development, raised objection regarding the extension of time Result:Suit dismissed Page 38 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 under Urban Land Ceiling Act. The defendant was constrained to file a CWP No.3602/1995 before the Hon'ble High Court of Delhi seeking extension of time under Urban Land Ceiling Act. During pendency of the CWP, the Act itself was repealed. Thus, the defendant applied afresh for sanction of the Building Plan which were approved on 18.9.2000 with changes in the FAR, ground coverage, maximum height and mandatory parking permitting a building structure of only five a half floors. It is, therefore, argued that the provisional allotment had already contemplated a space which was never sanctioned/permitted and the allotment stood frustrated and incapable of being enforced.
83. It is submitted that the matter did not rest here. Evidence is led to show that after sanction of the Building Plans on 18.9.2000 when construction was about to commence, it was stopped by the NDMC on the intervention of Archaeological Survey of India on the ground that the Project Site was near prohibited area of a National Protected Monument i.e. Jantar Mantar. The defendant then filed a suit No.645/2002 before the Hon'ble High Court of Delhi challenging the decision of NDMC and ASI. Initially, the defendant was permitted to raise construction upto the height of 55 feet vide an order dated 22.3.2002 but later modified that the defendant will not raise construction beyond the DPC level. On Result:Suit dismissed Page 39 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 30.10.2002, the earlier order dated 22.3.2002 was made absolute.
84. The ASI also filed an appeal No.FAO(OS) 414/2002 in the Hon'ble High Court of Delhi and the interim order in favour of this defendant was vacated. The Hon'ble Division Bench order was upheld by the Hon'ble Apex Court on 16.1.2012 in the case titled Archaeological Survey of India v Narendra Anand & anr AND Narendra Anand & anr v Archaeological Survey of India & ors reported as (2012) 2 SC 562. The defendant urged that in view thereof, this suit itself becomes "infructuous" as the allotment dated 04.12.1986 has become void.
85. The said judgment makes reference to a Central Government notification dated 04.10.1956 declaring Jantar Mantar as a "protected monument" as per the Ancient Monuments Preservation Act 1904. Notification dated 16.6.1992 is referred which is issued by the Department of Culture of Archaeological Survey of India by which area upto 100 meters from "protected monument" was declared as "Prohibited area" for the purpose of construction. Reference is also made to Sections 20A, 20B, 20C and 20F of the Ancient Monuments and Archaeological Sites and Remains (Amendment and Result:Suit dismissed Page 40 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 Validation) Act 2010 stating that as per Section 20A thereof, every area beginning in the limit of protected monument and extended to a limit of 100 meters is prohibited area in respect of such protected monument thereby prohibiting all mining and construction in the said area and one such monument is "Jantar Mantar". Thus, Mr.Sanjay Dua, Advocate, justifies his argument that even if it is assumed that there was any successful contract, it was hit by the doctrine of Supervening Impossibility as per Section 56 of the Contract Act 1872 and has thus become void. In support of the argument, the following judgments are relied :
(i) Archaeological Survey of India v Narendra Anand & anr reported as (2012) 2 SC 562
(ii) Rozan Mian v Tahera Begum reported as AIR 2007 SC 2883
(iii) M.Meenakshi & ors v Metadin Aggarwal & ors reported as (2006) 7 SCC 470
(iv) Boothalinga Agencies v V.T.C.Poriaswami Nadar reported as MANU/SC/0361/1968
86. With respect to Section 16(c) of the Specific Relief Act, Result:Suit dismissed Page 41 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 1963, it is urged that the plaintiff has failed to prove readiness and willingness to perform the plaintiff's obligations under the alleged contract. It is submitted that not even a single document has been filed in this regard. It is submitted that the plaintiff is under an obligation to prove readiness and willingness to perform the plaintiff's part of the agreement from the date of execution of the agreement till the date of the decree. It is argued that such readiness and willingness is required to be proved even when there is no defence in this regard. The plaintiff's failure to file any document like bank pass book, account statement etc and failure to prove the readiness and willingness to pay even the admitted balance amount is stated to be catastrophic to the plaintiff's case. To add to it, it is urged that there was no offer by the plaintiff to pay such amount even before or during the pendency of the suit. Failure of the other plaintiffs in the three other suits (referred to herein above) to appear as their own witness to prove their readiness and willingness is stated to be fatal to their case as such readiness and willingness has been always held to be a fact personal to the knowledge of the plaintiff only.
87. Attention of the Court is drawn to the fact that upon sanction of the building plan on 18.9.2000, the defendant called upon the plaintiff to give the consent within seven days for reduction of area of the flat to 234 sqft in view of reduction of the FAR from 250 to 150. It was Result:Suit dismissed Page 42 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 done vide letter dated 21.10.2000. This letter clarifies that in the case the plaintiff did not reply, the payment made by the plaintiff would be refunded. This letter was followed by another letter dated 01.11.2000 calling upon the plaintiff to pay a sum of Rs.3,50,000/ as cost of one parking space that was made mandatory by the NDMC in the sanction plan and also so stipulated as per clauses 2 and 6 of the provisional letter of allotment. Not only this, the defendant sent another letter dated 13.11.2000 requesting the plaintiff to communicate the consent making it clear that in case of noncompliance, it shall be deemed that the plaintiff is not interested in the booking which would stand cancelled without any further notice.
88. It is urged that the defendant has proved that the plaintiff did not agree with the proposed terms and neither gave the consent for agreement in accordance of changed building norms nor paid further amount.
89. Attention of the Court is drawn to letters dated 06.3.2001 and 28.3.2001 written by the defendant to the plaintiff to pay the amount a per proposed allotment letter. No payment was made. The defendant sent still another letter dated 18.4.2001.
Result:Suit dismissed Page 43 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
90. Vide letter dated 16.5.2001, the defendant once again called upon the plaintiff to provide consent and make requisite payment by 31.5.2001 or it would be presumed that the plaintiff was not interested in the scheme. Receipt of letter dated 16.5.2001 stands admitted in the crossexamination of the plaintiff dated 23.4.2003. No reply to it was sent. As a consequence, the provisional allotment was cancelled and revoked on 01.6.2001 and this fact was communicated to the plaintiff vide letter dated 15.6.2001. The plaintiff was also called upon to collect the cheque for refund of the amount paid upon return of original allotment letter and receipt within a period of 15 days. In this regard, the defendant sent another letter dated 27.6.2001 duly received by the plaintiff. It is submitted that the plaintiff has admitted to the correctness of the address on the letters during the crossexamination. It is pointed out that no question has been put to the defendant's witness in this regard during his crossexamination.
91. It is also argued that the flatbuyer agreement was never executed as the plaintiff did not agree to the final terms, and therefore, it is argued that the plaintiff was never ready and willing to perform plaintiff's part of the agreement and thus not entitled to the relief of specific performance. In this regard, the plaintiff relies upon the Result:Suit dismissed Page 44 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 following judgments
(i) N.P.Thirugnanam (D) by LRs v R.Jagan Mohan Rao & ors reported as 1996 AIR (SC) 116
(ii) Farzana Ranjan v Preeti Arora reported as 2018 VI AD (Delhi) 599
(iii) Mohinder Kaur v Sant Paul Singh reported as MANU/SC/1358/2019
(vi) Mehboob Ur Rehman (D) through LRs v Ahsanul Ghani reported as 2019(2) JT 417.
92. Regarding relief of compensation/damages, the defendant's counsel argued that the same are not to the entitlement of the plaintiff as not claimed. Section 21(5) of the Specific Relief Act contains specific directions in this respect. The following judgments are cited
(i) Shamsu Suhara Beevi v G.Alex reported as 2004 (8) SCC 569
(ii) Universal Land & Finance Company v Pearl Developers Pvt Ltd reported as 2018(5) AD 679
(iii) Pearl Developers Pvt Ltd v Universal Land & Finance Company reported as 2019 (257) DLT 289 Result:Suit dismissed Page 45 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
(iv) Order dated 11.2.2019 in SLP (C) No.2654/2019) reported as MANU/SCOR/24100/2019
(v) Prem Kumar Bansal v Ambrish Garg reported as 2015 (220) DLT 489.
93. It is also urged that otherwise also, the plaintiff has not led any evidence of any loss to claim compensation. Section 21(4) of the Specific Relief Act is cited according to which in determining the amount of compensation, the Court shall be guided by Section 73 of the Indian Contract Act. In such case, the plaintiff is required to prove actual loss suffered as a result of alleged breach of contract. It is urged that in this case, no evidence whatsoever has been led to prove any loss suffered by the plaintiff much less pleaded. Following judgments are relied
(i) Kailash Nath Associates v DDA reported as 2015(4) SCC 136
(ii) Iqbal Properties Pvt Ltd v Avtar Singh reported as 2011 (1) AD 269
(iii) Asha Varma v Monika Singla reported as 2019(257) DLT 653 Result:Suit dismissed Page 46 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
(iv) Ravinder Nath Sahni v Poddar Construction Company Pvt Ltd reported as 2014(2011) DLT
94. Regarding relief of rendition of accounts, it is argued that the plaintiff is not entitled to it, as the suit with regard to the main prayers has become infructuous; no evidence has been led by the plaintiff with respect to the relief of rendition of accounts and the prayer itself is vague; that there was no concluding and binding contract and even assuming that there was one, it stood completely frustrated; that the plaintiff was never ready and willing to perform the plaintiff's part of the contract and that the plaintiff has failed to establish any breach on the part of the defendant.
95. Regarding nonjoinder of necessary party, it is said to be admitted case of the plaintiff about knowledge of the fact that Shiv Darshan Singh is the owner of the property and the defendant had entered into a collaboration agreement with him. Such necessary and proper party not being impleaded, the suit is said to be worthy of dismissal on this count alone FINDINGS ON THE ISSUES Result:Suit dismissed Page 47 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 ISSUE No.1
1.Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? OPD
96. According to Order I Rule 13 CPC and Order I Rule 9 CPC, all objections on the ground of nonjoinder of parties shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. No suit shall be defeated by reason of mis joinder or nonjoinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. However, proviso appended to Order I Rule 9 CPC categorically provides that nothing in the said Rule shall apply to nonjoinder of a necessary party. In other words, if in a suit, a necessary party is not added, the suit shall be dismissed. If in a suit, a necessary party is not added, the suit shall be dismissed not for the reason of nonjoinder or misjoinder of the parties but because no effective order can be passed and consequently, no relief can be granted to the parties on record.
Result:Suit dismissed Page 48 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
97. The onus of this issue lay upon the defendant. Para 3 of the plaint describes the defendant's claim and representation that they have entered into an agreement dated 25.7.1985 with one Sh.Shiv Darshan Singh - the owner of the property in question to build/develop the same and that by virtue of the said agreement, the defendant was entitled and empowered to sell the space on ownership basis in the said proposed multistorey commercial building.
98. In response, the defendant has admitted this fact in the written statement.
99. These pleadings establish that whenever ownership rights were to be transferred from Sh.Shiv Darshan Singh to the proposed buyer (plaintiff in this case), a FlatBuyer Agreement would have become a necessity and in such scenario, the said agreement could have been a tripartite agreement. This fact is also reflected in clause 8 of the allotment letter dated 04.12.1986 which was subject to terms and conditions of the flatbuyer agreement yet to be signed by the parties. This is an admitted document and is Ex.PW1/2 which was executed between the builder and the flat buyer pursuance to another admitted document Ex.PW1/1 which is the application for allotment of office Result:Suit dismissed Page 49 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 space/shop/storage space in the said building. Ex.PW1/2 has not been drawn on any nonjudicial stamp paper and no stamp duty stands paid on it. The nomenclature of the document is not referred to anywhere in the document as "Agreement". On the contrary, the subject of the document specifies that it is "Allotment of commercial space in proposed multistorey building known as N.S.House at 14, Janpath Lane, New Delhi 110 001." The plaintiff refers to it as an agreement while the defendant refers to it as provisional letter of allotment. At page 4 of the document, the following is provided "Note Possession will be handed over only on payment of full consideration and other dues payable under the agreement". (underlining added by this Court)
100. Thus, for all intents and purposes, the parties to this document were executing an agreement. Article 5 of Schedule I of the Indian Stamp Act, 1899, is therefore attracted. As per Article 5(c), an agreement or a memorandum of an agreement, if not otherwise provided for, attract stamp duty of eight annas. I have already observed that no stamp duty has been paid thereupon and the same may result into impounding of the document itself.
Result:Suit dismissed Page 50 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
101. It is, however, an admitted document. As per clause 8 "The allotment is subject to your accepting the terms of the Builders Standard, FLAT BUYER AGREEMENT which you agree to sign before possession is given to you."
102. This agreement also refers to previous agreement dated 25.7.1985 entered into between the defendant and Sh.Shiv Darshan Singh son of Sh.Shiv Dev Singh - the owner of the property. The agreement is for building/developing the property along with the perpetual leasehold rights in the plot of land bearing plot No.3A, Block No.124, known as 14, Janpath Lane, New Delhi. The document refers to the fact that by virtue of this agreement Ex.PW1/2 and the General Power of Attorney, the builders (defendant herein) are empowered to sell spaces on "ownership basis". Neither the said agreement dated 25.7.1985 nor the General Power of Attorney in favour of the defendant have been produced in original before the Court. Only copy of agreement is on the record of the suit of Monica Arenja which has not been proved. In the presence of the GPA, if any, the builder alone might be competent to execute the flatbuyer agreement directly with the flat buyer without there being necessity of involving the owner Sh.Shiv Darshan Singh to become a signatory to such flatbuyer agreement.
Result:Suit dismissed Page 51 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
103. The question that arises here is as to what will be the status regarding the said GPA and the agreement if the same stood rescinded, cancelled, annulled etc or consequent upon the demise of the original owner. There can be situation that the original owner may have a different version or narration regarding execution of these two documents which have not seen light of the day. This crucial fact makes Sh.Shiv Darshan Singh not only a necessary but also a proper party.
104. During his cross examination dated 03.9.2002 as PW1 in CS No.12650/2016, Sh.Madhukar Arenja admitted that he has personal knowledge as regards the present case. This implies that he is affirming having knowledge regarding involvement of Sh.Shiv Darshan Singh.
105. As far as DW1 is concerned, he has deposed about the collaboration agreement entered into with S.Shiv Darshan Singh. In view of the above, it is held that the defendant has successfully discharged the burden of the issue and accordingly issue no.1 is decided in favour of the plaintiff and against the defendant.
ISSUE No.2
2.Whether the plaintiff is entitled to specific performance of the contact dated 04.12.1986?OPP Result:Suit dismissed Page 52 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
106. Onus of this issue remained on the plaintiff. Evidence of PW1 is in accordance with the pleadings. He has denied the suggestion that the allotment was provisional in his crossexamination dated 03.9.2002 in CS No.12650/2016. Plaintiff Madhukar Arenja appeared as Power of Attorney of the original plaintiffs in the three other connected cases. He has admitted that terms and conditions were read out and explained and thereafter his mother appended signatures on the letter of allotment. However, he was unable to recall the exact area of the flat booked. He also states it to be incorrect that when the site visit was made available to them, they were informed about the tenants in the property. He, however, admits it as correct that at the time of booking, it was assured that the flat would be handed over around two and a half year after commencement of construction. He also admits in his further cross examination dated 23.4.2003 that cost of construction as agreed by his mother Smt.Pramilla Arenja at the time of booking was applicable upto December 1986 and if there was any escalation in the cost of construction thereafter, it shall be borne by his mother as per the CPWD rates. He also admits as correct that his mother was informed about the nonsanctioning of the site plan by the NDMC at the time of booking of the flat. He also admits it as correct that his mother was informed that Result:Suit dismissed Page 53 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 possession will be given within two and a half years from the date of start of construction. He admits that his mother received defendant's letter dated 21.10.2000 which is Ex.PW/DW1. He admits that even after receipt of it, his mother did not go to the office of the defendant. He also admits receipt of the letter dated 16.5.2001,which is Ex.PW1/DW
2.
107. In his crossexamination dated 19.3.2007, PW1 states that "The allotment letter had been issued by the defendant in the year 1986. I do not remember if the said letter treated the allotment as provisional only."
108. Entire case of the plaintiff is based on this allotment letter Ex.PW1/2 and therefore it becomes surprising that PW1 would be actually unable to remember the factum as to whether the allotment was provisional or not. This is despite the fact that the plaintiff's very case has been of denial of the defendant's claim that the allotment was mere provisional or subject to flatbuyers agreement.
109. It is not the case that the plaintiff had signed the document in routine. As per own saying of PW1, "The allotment letter was Result:Suit dismissed Page 54 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 signed in the office of the defendant at Connaught Place. I do not remember but it is possible that I would have taken the documents home to get the same signed from my family members. I do not remember as to for how many days I kept the documents at home."
110. On 01.5.2007, PW1 affirms in the crossexamination that , "I must have read the agreement Ex.PW1/2 before signing the same. I do not remember if the allotment vide Ex.P1/2 was only provisional. Whatever mentioned in Ex.PW1/2 is correct. If it is mentioned in Ex.PW1/2 that a formal agreement regarding purchase of flat namely Flat Buyer Agreement was required to be executed between the parties, the same must be correct.... No flat buyer agreement was executed between the parties."
111. Careful perusal of Ex.PW1/2 reveals that the allotment was made subject to the plaintiff's acceptance of the terms and conditions. Page 2 of the agreement specifically contains the statement that, "THE allotment is 'provisional'." It states that the plans are yet to be sanctioned by various authorities. It speculates that if for any reason any changes are made by the sanctioning authorities or by the Architect or by the Builder resulting into reduction or increase not exceeding 5% Result:Suit dismissed Page 55 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 in the above mentioned area or its location, then no claim, monetary or otherwise, will be raised or accepted except that the above mentioned per sqft rate (Rs.1140/) will be applicable on the changed area. The allotment letter further stipulates that in case of absolute deletion of the flat from the sanctioned plan, no claim monetary or otherwise, will be raised or accepted but the amount received will be refunded by the builder in full without interest.
112. Clause 2 of the allotment letter also specifies that the car parking area, if allotted, will be an integral part of the flat and the flat buyer can not sell/transfer the said car parking space without selling or transferring the flat itself.
113. Clause 3 of the allotment letter is the force majure circumstances or supervening impossibility clause. As per it, "if for any reason whatsoever, whether within or outside builders' control, the whole or part of the project is abandoned, no claim will be preferred against the builder except that money received will be refunded in full without any interest".
114. Clause 4 of the allotment letter stipulates consequences Result:Suit dismissed Page 56 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 of non payment of installments stipulating that the allotment will be cancelled and 20% of the price of the flat will be forfeited and the balance amount will be refunded without any interest.
115. Clause 16 of the allotment letter is also very relevant. It provides for the land use of the said plot as Commercial as per the Zonal Plan/Mater Plan of Delhi. Any amount payable to the L&DO as conversion charges and sanction of the building plans will be payable by the builders.
116. Lastly, Clause 20 which is again a relevant clause binds the flat buyer to abide by all laws, bylaws, rules and regulations of the NDMC/local body/DDA/L&DO or the proposed body corporate of the flat buyers and shall be responsible for all the deviations, violations or breach of any of the conditions or laws/bylaws or rules or regulations.
117. Thus, the entire document speaks for itself that it is provisional and that it provides for uncertainties including absence of liability on the part of the builder in case the entire project or its part is not approved. The buyer is aware of all these stipulations. As pointed out earlier, PW1 admitted that whatever is mentioned in Ex.PW1/2 is correct and that no flat buyer agreement was ever executed.
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118. Thus, version of PW1 of not knowing if any permission was required from the Urban Land Ceiling Authority to construct the building or pleading ignorance of the fact in the guise of not remembering that in the year 1991, the building construction norms in Delhi changed as per Master Plan, 2001 will not make any difference. The same will apply to PW1's testimony that he is not aware that FAR was reduced along with Ground area coverage as well as height of the building.
119. All that the plaintiff is establishing are communications in the form of letters wherein the plaintiff objected to the delay and misinformation. PW1 does not utter a word that he was ever ready and willing to perform his part of the agreement. On the contrary, the witness admits that no payments were made despite repeated demands. Admittedly, no exercise of option to continue with the terms of the agreement as per changed building norms was ever made.
120. PW1 admits that he was told by the officials of the defendant that the model of the building shown to him was only provisional and subject to changes. He further admits as correct that the defendant had informed him in due course that permissions and sanctions Result:Suit dismissed Page 58 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 from various authorities were awaited. He also admits to his own detriment that as per record, the defendant kept trying to conclude the project. He also admits that the defendant kept on informing about the efforts done by them.
121. This is a case of unconcluded contract and further the alternate argument that even if the contract was concluded then the plaintiff failed to fulfill their part or the contract stands.
122. The following part of crossexamination PW1 throws light on the above, viz :
"I can not admit or deny that failure of defendant to construct the building was not due to defendant's fault but on account of nongrant of permissions and sanctions by various authorities."
123. This Court has already observed that Ex.PW1/2 fixed period of two and a half years from the date of commencement of construction and the plaintiff never exercised his/her option resulting into cancellation of provisional allotment on 01.6.2001 communicated to the plaintiff vide letters dated 15.6.2001 and 27.6.2001 dispatched to the plaintiff by Regd AD post which are Ex.DW1/20 to 24.
Result:Suit dismissed Page 59 of 73Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 124 Further, it is not the stand of PW1 that he was not aware of the parking space for which further demand of Rs.3,50,000/ was made. He admits of being informed in the year 2000 that as per changed building norms, the parking space also had to be provided in the building. He admits as correct that he did not agree to pay for or purchase the parking space. This Court has already observed that as per Clause 2 of Ex.PW1/2, the car parking area, if alloted, had to be an integral part of the flat and it is further established on record that the changed norms made basement parking mandatory.
125. PW1 adds further in detriment to his own case as well as to the detriment of the plaintiffs in other suits who have not entered into witness box to prove or even state about their own readiness and willingness to abide by their part of Ex.PW1/2 that he could not admit or deny that without parking space the defendant can not sell away the flat. He even could not admit or deny that two floors of sanctioned plans were allowed only for parking purposes even though he was informed that the building plans were sanctioned.
126. To the detriment to his own case as well as to the detriment to the cases of the plaintiffs in other suits who have not even cared to enter the witness box to at least depose the facts pertaining to Result:Suit dismissed Page 60 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 their personal knowledge that they were ready and willing to perform their part of the obligation under Ex.PW1/2; the witness denied the suggestion that demand of the defendant for Rs.3,000/ per sqft in the year 2000 was genuine and reasonable in view of inflation despite the fact that he was extensively crossexamined on price escalation. Just prior to this denial in his crossexamination dated 19.11.2007, his answers are quite intriguing, viz "I am not aware but there must have been rise in the value of the flats from 1986 to 2000. I cannot admit or deny the suggestion that there was substantial increase in value of the flats during the period 1986 to 2000. It may be correct that the cost of construction also escalated during this period. I can not admit or deny that from 1986 to 2000 value of the flats increase at least five times and the cost of construction increased much more. I am not aware of the CPWD rates of construction during this period. It is incorrect to suggest that contents of page 29 of my chief affidavit (where the witness deposes about his grievance about demand of enhanced rate of Rs.3,000/ per sqft instead of Rs.1140/ per sqft) are wrong and not based on my knowledge. (bracketed portion added by the Court) Result:Suit dismissed Page 61 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
127. The above manner of response given by the PW1 to these relevant questions establishes that his challenge to the enhanced rate of construction is totally baseless.
128. I have already referred to the fact that nothing has been uttered regarding readiness and willingness of the plaintiff. No documentary evidence is led on this aspect. PW1 demolishes his case by making the following statement, viz "It is correct that I never offered to pay the defendant even the admitted liability. Vol - The same was never demanded by the defendant."
The voluntary assertion of PW1 is against the proven record and thus inconsequential.
129. The witness further is aware of the supervening impossibility that arose in even acting upon the revised plans sanctioned in the year 2001. I have already referred to the judgment in the case titled Archaeological Survey of India vs Narendra Anand & another, and Narendra Anand & another vs Archaeological Survey of India reported as JT 2012(1) SC 386.
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130. The witness affirms in his crossexamination of being aware that construction of the building was restrained by the Archaeological Survey of India as the plot was being constructed in the vicinity of "Janter Mantar". Finally, the witness admitted it as correct of being informed in writing at the time of booking of the flats that sanctions from various authorities for construction were required to be taken. The entire plaint is replete with averments that the defendant had always made misrepresentation to the plaintiff. However, during cross examination PW1 stated, "I do not know whether or not the defendant made any misrepresentation to me. I can not say if for delay in construction, the defendant was not at fault."
131 On the other hand, the defendant through DW1 has cogently established that it was acting in right earnest and sticking to the terms of Ex.PW1/2 as well as ready and willing to commence construction at revised rates including the basement parking. As a matter of fact, PW1 had admitted that the defendant had been doing so. Nothing useful has emerged from the crossexamination offered to DW
1. The witness has not been even suggested to that effect.
132 Rather, the DW2 has proven Ex.DW1/28 which is the Redevelopment of Janpath Lane approved on 24.5.1994. He establishes Result:Suit dismissed Page 63 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 that the NDMC received letter dated 13.12.1993 about providing parking in the area. He also proves that the defendant had applied for sanctioned plan on 14.6.1999 which was rejected vide order dated 12.8.1999 Ex.DW2/1. He also proves that the defendant filed for sanction of site plan on 21.7.2000 which was approved by the Chairperson, NDMC on 18.9.2000. He deposes about permissible FAR, ground coverage, the number of floors and the area sanctioned. He also proves that the ASI had written letter dated 10.5.2001 to the NDMC in respect of the suit property mentioning that the existing building was within prohibited or regulated limits of Centrally Protected Monuments and the NDMC was requested to stop the construction.
133. This Court has referred to the argument of the defendant that the suit has become infructuous as the allotment dated 04.12.1986 has become void in view of the judgment reported as JT 2012(1) SC 386 alternate citation (2012)2 SC 562 (supra). This judgment arises out of the facts in this suit only. This judgment is passed on appeal against the judgment of Hon'ble Division Bench of High Court of Delhi whereby the appeal filed by ASI was allowed and the order of injunction by the learned Single Judge allowing Sh.Narendra Anand and M/s Rawal Apartments Pvt Ltd (defendant herein) to raise construction upto the height of 55 ft on the suit land was set aside and WPC No.2635/2002 Result:Suit dismissed Page 64 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 filed by Heritage and Cultural Forum was disposed of with a direction to the Central Government to review notification dated 16.6.1992 issued under Rule 32 of the Ancient Monuments and Archaeological Sites & Remains Rules, 1959. Essentially, order for review of the notification dated 16.6.1992 was under challenge.
134. Reference is made to previous Central Government notification dated 04.10.1956 by which Jantar Mantar was declared as a "Protected Monument" under the Ancient Monuments Preservation Act, 1904. By way of 16.6.1992 notification issued by the Department of Culture of Archaeological Survey of India, area upto 100 meters from the "protected monuments" was declared as "prohibited area" for the purpose of construction. It was held that with insertion of Section 20A of the Ancient Monuments & Archaeological Sites and Remains (Amendment and Validation) Act 2010, every area beginning at the limit of the protected monument and extended to a limit of 100 meter is prohibited area in respect of such protected monument and thus all mining and construction activities in the said area are prohibited. "Jantar Mantar" structure is already reflected as protected area and thus construction is not permitted on plot No.14. Janpath Lane, New Delhi.
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135. As per Section 56 of the Indian Contract Act, 1872, an agreement to do an act impossible in itself is void. A contract to do an act which after the contract is made becomes impossible or by reason of some event which the promiser could not prevent, unlawful becomes void, then the act becomes impossible or unlawful. The later part of Section 56 stipulates for compensation on acount of loss sustained by the promisee if the promiser had known or might have known with reasonable diligence that the performance of the act itself is impossible or unlawful.
136. One such case cited by the defendant is Rojan Mian's case (supra) wherein it was held by the Hon'ble Apex Court that in view of promulgation of West Bengal Thika Tenancy Act, 1981 during the pendency of the suit for specific performance, the agreement for sale and purchase of Thika tenancy entered into on 03.12.1973 became impossible of performance and thus void. Almost similar is the position in this case.
137. Another judgment of relevance is of Bootha Linga Agencies (Supra). Ex.PW1/2 incorporates clause 3 which is the supervening impossibility clause and well within the knowledge of the plaintiff.
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138. In yet another case so cited namely Baijnath (Supra) specific performance was declined in almost similar circumstances where there was an agreement for sale of space on 13 th floor of a building which was never constructed as additional FAR for the building was never sanctioned. It was held that booking was only original in case additional FAR was sanctioned and since the same was not sanctioned, the defendant was never in a position to offer any constructed area on 13th floor. In this case also, only 50% area on 6th floor was sanctioned and DW2 proves the reduced building norms which the plainiff never accepted.
139. Thus, in my considered view and having regard to the facts proven on record along with the judgments on the point, it is to be concluded that Ex.PW1/2 is not a concluded contract being only provisional and subject to execution of Flat Buyers Agreement which was never signed. In any case, performance of even the unconcluded contract stood frustrated in view of reduced building norms and further developments qua the litigation aspect referred to above, thereby finally rendering Ex.PW1/2 as void being incapable of performance.
140. In the result of the above discussion, it is held that plaintiff is not entitled to the relief of specific performance of Ex.PW1/2. The Result:Suit dismissed Page 67 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 issue is accordingly decided against the plaintiff.
ISSUE NO.3
3.Whether the plaintiff is entitled to the decree of declaration? OPP
141. The onus of this issue was also on the plaintiff. Question of grant of declaration as prayed for cease to exit as it always remained dependent on the plaintiff succeeding in issue No.1 which has been answered in negative against the plaintiff. This issue is, therefore, decided in negative.
ISSUE NO.4
4.Whether the plaintiff is entitled to rendition of accounts? OPP
142. The onus of this issue was also on the plaintiff. No evidence has been led on this issue. The factum of payment of amounts of Rs.1,50,000/ on 22.9.1986 and Rs.2,83,200/ by the plaintiff Madhukar Arenja to the defendant is proven in view of Ex.PW1/4. Admitted document Ex.PW1/7 is a receipt dated 12.3.1987 issued by the defendant in favour of Madhukar Arenja after having received the Result:Suit dismissed Page 68 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 same from M/s Sahil Enterprises in the sum of Rs.57,000/. The plaint is silent as to in what manner, rendition of account is sought for. The suit has been valued for this relief at Rs.200/ only. The prayer made with respect to this relief is to render account of the amount deposited by the plaintiff with the defendant towards part sale consideration as also to render accounts with respect to the alleged proposed enhancement/levy/ demands and thus the very nature of the prayer itself makes it vague. Moreover, no cogent evidence is led on this aspect. On the other hand, Ex.PW1/2 makes a provision for return of the amounts deposited and the relevant clause to that effect is clause No.4. The defendant has proven that it cancelled the provisional allotment and asked the plaintiff to seek refund. It was not acted upon.
143. In this view of the matter, no relief of the kind prayed towards rendering of accounts can be granted to the plaintiff. Even the Hon'ble High Court of Delhi has observed in the order dated 17.9.2019 in CM(M) 1495/2018 that prayer D specifically relates to rendition of accounts and payment of part sale consideration. It ha been observed that though the relief is not worded happily, the question as to whether the plaintiff is to be granted any monetary amount is to be decided within the reliefs prayed for in the plaint. This Court has been directed to consider any monetary compensation that is to be paid to the plaintiff.
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144. Two aspects arises for consideration the first pertains to Section 21(5) read with proviso appended to it and Section 22(2) of the Specific Relief Act 1963. In both the cases, it is to be seen that the plaintiff has not made any specific prayer in this regard.
145. In Shamsu Beevi (supra), it is laid down that order of the Hon'ble High Court granting compensation under Section 21 in addition to the relief of Specific performance in the absence of prayer made to that effect is contrary to the statute and not permissible.
146. This judgment was followed in Universal Land & Finance Company (supra). This case was upheld in appeal by the Hon'ble Division Bench in the case titled Pearl Developers Pvt Ltd (supra) and the judgment of the Hon'ble Division Bench itself was confirmed by the Hon'ble Apex Court on 11.2.2019 in SLP (C) 2654/20198 reported as MANU/SCOR/24100/2019.
147. Further, the Court is to be governed by the provisions of Section 73 of the Indian Contract Act, 1872. Actual loss or damage caused due to alleged breach and that too, which naturally arose in the Result:Suit dismissed Page 70 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 usual course of things from such breach or which the parties knew when they made the contract, to be likely to result from breach of it are to be proved. Such compensation is not to be given for any remote or indirect loss or damage sustained by reason of the breach. Further, in estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account. No such evidence has been led at all. Needless to say, the plaintiff remained bound by clauses 3 and 4 of Ex.PW1/2. The plaintiff did not exercise option. The plaintiff did not claim refund.
148. Section 21 of the Specific Relief Act, 1963 has been already amended by Act No.18 of 2018. However, in both the cases, it is essential for the person seeking specific performance of the contract to claim compensation for its breach and if the Court decides that specific performance ought not to be granted but there is a breach and that plaintiff is entitled to compensation for such breach, it must award such compensation accordingly after determining it under Section 73 of the Indian Contract Act, 1872.
149. It is, however, subject to Sub Section (5) of Section 21 of the Specific Relief Act, 1963, according to which no compensation shall Result:Suit dismissed Page 71 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016 be awarded under this Section unless the plaintiff has claimed such compensation in the plaint. The plaintiff has not made any such prayer in the plaint.
150. The next question arising for consideration is as to whether the Court may grant refund of the Deposit paid under Section 22 of the Specific Relief Act, 1963? Here also, the person seeking specific performance has to first ask for such relief which is apparent from Section 22(2) of the Specific Relief Act, 1963.
151. Both the relevant aspects are missing. Actual loss has not been proven. In the given circumstances the question of grant of compensation does not arise and any such grant will be contrary to the statute. This issue accordingly stands decided against the plaintiff.
ISSUES No.5
5.Whether the plaintiff is entitled to the relief claimed? OPP
152. In view of the findings on issues No.1 to 4 the plaintiff is not entitled to any relief whatsoever. In the result, the suit of the plaintiff is dismissed Result:Suit dismissed Page 72 of 73 Madhukar Arenja v Rawal Apartment Pvt Ltd CS 12651/2016
153. Parties are left to bear their own costs.
154. Decree sheet be drawn up accordingly in the above terms.
155. File be consigned to the record room.
Announced in the open (MANISH YADUVANSHI)
Court on 30.11.2019 ADDL. DISTRICT JUDGE-11
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
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