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Delhi District Court

Smt. Sunita Gupta vs Taneja Developers & Infrastructure Ltd on 13 August, 2014

             IN THE COURT OF MS. ANJU BAJAJ CHANDNA
             ADDITIONAL DISTRICT JUDGE­01 (CENTRAL)
                   TIS HAZARI COURTS, DELHI        


C.S. No. 124/2012
Unique I. D. No. 02401C0330542012

Smt. Sunita Gupta,
W/o Sh. Krishna Kumar Gupta,
R/o 57­B, MIG DDA Flats,
Motia Khan, Pahar Ganj,
New Delhi.
                                                                                          ......Plaintiff
                   Versus

Taneja Developers & Infrastructure Ltd.,
Formerly in time promoters (P) Ltd.
Regd. Office at - 9, Kasturba Gandhi Marg,
New Delhi­110001.
                                                                                            .......Defendant

 SUIT FOR DECLARATION, PERMANENT AND MANDATORY 
                   INJUNCTION

             Date of institution of suit               :                      02.07.2012
             Date of reserving the judgment            :                      13.08.2014
             Date of pronouncement of judgment :                              13.08.2014

CS No. 124/2012
Smt. Sunita Gupta  Vs. Taneja Developers & Infrastructure Ltd.                                     1/12
 JUDGMENT 

1. Vide this judgment I shall dispose of the preliminary issues framed vide order dated 04.02.2013.

2. The facts of the present case are that plaintiff filed the suit for declaration, permanent and mandatory injunction against the defendant on the ground that plaintiff applied for registration in present and future project of the defendant with respect to 1400­1500 sq. ft. residential flat and deposited a sum of Rs.4 Lakhs as registration amount vide receipt dated 23.02.2006. No written agreement was, however, executed between the parties. The defendant orally agreed to provide details and costs of the flat at the time of allotment and the plaintiff would pay balance amount of the flat at the time of possession. The defendant vide letter dated 30.10.2006 sent an offer to the plaintiff for residential flat in their township 'TDI City' at Kundli, District Sonepat, Haryana @ Rs.1625/­ sq. ft. plus external development charges and further demanded a sum of Rs.3 Lakhs. Another letter, seeking the amount of Rs.3 Lakhs was sent by the defendant on 09.03.2007 but there CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 2/12 was no mention in the letters about the basis for demanding money. The cost of the flat was also not mentioned. The plaintiff sent various letters to the defendant, asking for the details about cost of flat and the basis of demand of Rs.3 Lakhs but no response was received. The plaintiff again sent a letter dated 03.07.2007, seeking the complete details of the cost of the flat and also about the progress of the project but with no response. It is further asserted that defendant sent a letter dated 20.09.2008, cancelling the registration of the plaintiff. According to the plaintiff, she was kept in dark by the defendant and demand of Rs.3 Lakhs was wrongly made. The plaintiff came to know in the month of May, 2012 that defendant had delivered various flats to the applicants and defendant is going to complete the allotment process.

3. It is asserted that cancellation of registration is illegal, unwarranted and since the plaintiff was ready and willing to pay the balance amount of flat in question, the cancellation is liable to be declared null and void. The plaintiff has also filed a complaint before the Consumer Forum against the defendants. By way of present suit, the plaintiff has sought decree of declaration, thereby declaring the CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 3/12 cancellation letter dated 20.09.2008 as illegal, null and void, relief of permanent injunction, thereby restraining the defendant, his agents, servant etc. from allotting the flat of 1400­1500 sq. ft. in the said township TDI City at Kundli, District Sonepat, Haryana and also mandatory injunction, thereby directing the defendant to withdraw the cancellation letter dated 20.09.2008 and to restore the registration of the flat.

4. The defendant filed written statement taking preliminary objections that suit is bared by limitation. The plaintiff is not the allottee of any flat by the defendant and therefore she cannot seek any relief of injunction. The plaintiff is guilty of concealment of material facts from the court and the reliefs sought from the Consumer Forum have been with respect to the withdrawal of the letter dated 29.09.2009, which is similar to the prayer of the present suit and accordingly suit is liable to be stayed u/s 10 CPC. The plaintiff has also requested for another relief before the Consumer Forum, seeking refund of the amount of Rs.4 Lakhs with interest @ 18% per annum. On merits, it is admitted that plaintiff was registered for residential apartment with the defendant. The CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 4/12 plaintiff, however, was requested to remit an amount of Rs.3 Lakhs, which the plaintiff failed to make and accordingly the cancellation was done. The averments of the plaint as well as the claim of the plaintiff is denied and it is prayed that suit be dismissed with costs.

5. The application for interim injunction was dismissed by the court.

6. From the pleadings of the parties, following issues were framed vide order dated 04.02.2013 :­

1)Whether the suit is liable to be stayed under section 10 of Code of Civil Procedure?

Question of law.

2)Whether the suit is within limitation? OPP

3)Whether the suit is not maintainable as the plaintiff have already filed the complaint before the Consumer Forum, New Delhi or what is the effect of the same? OPD

4)Whether the plaintiff is entitled to declaration, as claimed? OPD CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 5/12

5)Whether the plaintiff is entitled to permanent injunction, as claimed? OPP

6)Whether the plaintiff is entitled to mandatory injunction, as claimed? OPP

7)Relief(s).

And the issue no­1 was treated as preliminary issue.

7. I have heard Sh. Y.P. Sharma, Ld. counsel for plaintiff and given due consideration to the pleadings of the parties, facts and circumstances of the case, nature of controversy and the record.

8. The issues no.1, 2 & 3 framed vide order dated 04.02.2013, being legal issues are taken up for decision. My findings on the above mentioned issues - 1, 2 & 3 are as follows:­ Issue No­(1) & (3)

1)Whether the suit is liable to be stayed under section 10 of Code of Civil Procedure?

Question of law.

CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 6/12 AND

3)Whether the suit is not maintainable as the plaintiff have already filed the complaint before the Consumer Forum, New Delhi or what is the effect of the same?

OPD

9. By way of present suit, plaintiff seeks the relief of declaration and injunction with respect to the cancellation of registration. It is admitted position that plaintiff has also preferred a complaint before the District Consumer Forum. According to section 10 CPC, the relief of declaration and injunction have been sought by filing the present suit, which can be granted by the civil court only. Although, similar kind of reliefs have been sought before the Consumer Forum but the proceedings, pending before the Consumer Forum will not affect the continuation of the present suit before this court. It has been held in "National Institute of Mental Health & Neuro Sciences Vs. C. Parmeshwara, AIR 2005 SC 242", that language of Section 10 suggests that it is referable to a suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute. CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 7/12

10. Although, the nature of facts and the dispute before the Consumer Forum involves same subject matter but the present suit is not liable to be stayed as proceedings before the Consumer Form are not a civil suit. The present proceedings are, therefore, not liable to be stayed u/s 10 CPC.

11. However, considering the issue of legal maintainability of the suit, I find that the present suit is not maintainable in view of alternative remedy available with the plaintiff u/s 41 (h) of Specific Relief Act, 1963, which reads as under :­ "41. Injunction when refused - An injunction cannot be granted -

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."

12. The plaintiff seeks injunction against the defendant so as to restrain the defendant from allotting the flat of 1400­1500 sq. ft. in their CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 8/12 township. It is evident that no particular or specific flat or property was allotted to the plaintiff and the plaintiff only got herself registered with the defendant company for residential flat, which was not materialized. No written agreement was drawn between the parties. The injunction has to be against some specific property and otherwise also if alternative remedy is available with the plaintiff, there is no entitlement to the reliefs of injunction. The plaintiff can seek compensation/damages or recovery of the amount paid to the defendant since the loss can be computed in terms of money. In the facts and circumstances the relief of injunction is not maintainable. The issues are accordingly answered with the conclusion that suit of the plaintiff is not maintainable in the present form for the reliefs of mandatory and permanent injunction. Issue No­(2) Whether the suit is within limitation? OPP

13. The plaintiff has also sought the relief of declaration with respect to the letter dated 20.09.2008, whereby registration of the CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 9/12 plaintiff was cancelled by the defendant. According to the law of Limitation Act, Article­58, the period prescribed for seeking declaration is three years from the accrual of cause of action. The letter dated 20.09.2008 was communicated to the plaintiff and the present suit has been filed in July, 2012 i.e. after the expiry of period of three years from the receipt of the letter. The suit of the plaintiff with respect to the relief of declaration is accordingly barred by law of limitation. The issue is answered accordingly.

14. In view of my aforesaid observations, the suit of the plaintiff fails being not maintainable as well as barred by limitation and same is hereby dismissed. No order as to costs.

15. The suit is disposed of in aforesaid terms.

Decree sheet be prepared and file be consigned to record room. Announced in open Court on 13th Day of August, 2014.

(ANJU BAJAJ CHANDNA) Addl. Distt. Judge(Central)­01, Tis Hazari Courts, Delhi.

CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 10/12 Sunita Gupta Vs Taneja Developers Infrastructure Ltd.

13.08.2014 Present: Sh. Y.P. Sharma, Ld. counsel for plaintiff.

None for defendant.

Arguments heard.

Vide my separate judgment dictated and announced in the open court suit of the plaintiff is dismissed on the terms therein. No order as to costs. Decree sheet be prepared accordingly.

File be consigned to record room.

(ANJU BAJAJ CHANDNA) ADJ (Central)­01, Delhi/13.08.2014 At this stage, Sh. Rajat Bhardwaj, Ld. Counsel for the defendant had appeared and he has been apprised about the case.

(ANJU BAJAJ CHANDNA) ADJ (Central)­01, Delhi/13.08.2014 CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 11/12 CS No. 124/2012 Smt. Sunita Gupta Vs. Taneja Developers & Infrastructure Ltd. 12/12