Delhi District Court
Nehru Place Hotels Pvt Ltd vs Gurmat Kaur on 25 November, 2024
IN THE COURT OF SH. SONU AGNIHOTRI, DISTRICT JUDGE-07
SOUTH-EAST DISTRICT, SAKET COURTS, DELHI
RCA No: 145/2019
CNR No. DLSE01-010538-2019
NEHRU PLACE HOTELS PVT. LIMITED
(Formerly known as Nehru Place Hotels Limited)
Through its Director/ Authorized Representative
Mr. Satish Kumar Sood
S-1, American Plaza,
International Trade Tower,
Nehru Place, New Delhi-110019.
..... Appellant
Versus
1. MRS. GURMAT KAUR (SINCE DECEASED)
Through her legal heirs i.e. Respondents No. 2 to 5.
2. MS. SIMRITH KAUR
D/o S. Gurdial Singh
(Now Mrs. Gurpreet Singh Sidhu)
8A, Check House, Civil Lines,
Bhatinda, Punjab.
3. MS. NIRMATA KAUR (NOW DECEASED)
Through :-
i) DR. TEJINDER SINGH SARA (HUSBAND)
1208, Hickory Lane,
Auburn,
Alabama-36830, USA.
RCA No. 145/19 Page No. 1 of 59
Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
ii) MALTI SARA TUTTLE (DAUGHTER)
1304, Claire Street,
Opelika, Alabama, USA.
iii) HARMALA SARA SERVIES (DAUGHTER)
1866, Olde Village Run
Dunwoody, Georgia-30338, USA.
4. MS. AMRITA KAUR
D/o S. Gurdial Singh
(Now Mrs. Jogeshwara Singh Mangat)
Mangat Industries, Doraha,
District- Ludhiana, Punjab.
5. MS. VINEET KAUR
D/o S. Gurdial Singh
R/o The Retreat, 30, Circular Road,
Amritsar, Punjab.
..... Respondents
APPEAL UNDER SECTION 96 CPC READ WITH ORDER XLI RULE
1 AND 2 AND SECTION 151 CPC AGAINST JUDGMENT/DECREE
DATED 19.11.2019
DATE OF INSTITUTION : 21.12.2019
DATE OF RESERVING FOR JUDGMENT : 24.08.2024
DATE OF DECISION : 25.11.2024
RCA No. 145/19 Page No. 2 of 59
Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
JUDGMENT
1. Appellant/defendant has filed present appeal challenging judgment and decree dated 19.11.2019, passed by Court of Sh. Vivek Beniwal, the then Ld. Civil Judge-02, Central, Tis Hazari Courts, Delhi (henceforth referred to as 'Ld. Trial Court') in Old Suit No. 170/16, New Suit No. 94050/16, titled as 'Gurmat Kaur & Ors Vs. Nehru Place Hotel Limited' whereby suit filed by plaintiffs was decreed.
2. In the appeal, brief facts of the case as stated by appellant are as under:-.
3. It is stated that at the time of filing of suit before Ld. Trial Court, appellant company was known by name of M/s Nehru Place Hotels Ltd., however, subsequent to filing of suit before Ld. Trial Court in March-2016, name of appellant company was changed to M/s Nehru Place Hotel Pvt. Ltd. Present appeal is being filed through Director / Authorized Representative of appellant company Mr. Satish Kumar Sood in whose favour resolution dated 24.05.2019 has been passed.
4. It is stated that Mr. Gurdial Singh, claiming him to be duly constituted attorney of plaintiffs/respondents, husband of plaintiff No. 1 and father of plaintiffs No. 2 to 5 filed civil suit seeking decree of specific performance of an agreement dated 12.11.1976 against defendant / appellant with respect to showroom space No. 12 in RCA No. 145/19 Page No. 3 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. proposed project of appellant i.e. Hotel Complex at Nehru Place, New Delhi to be constructed by defendant /appellant. It was stated in the plaint that having come across printed brochure issued by defendant pertaining to the said project in 1976, plaintiff No. 1 contacted defendant and moved an application dated 08.09.1976 for allotment of showroom No. 10 on the ground floor in block-C of the said hotel complex @ Rs. 525/- per sq. feet. It was further alleged that proposed plan of fully air-conditioned shopping arcade to be constructed at the hotel plot at Nehru Place was also supplied to plaintiffs. However, subsequently on 11.09.1976, plaintiffs proposed to change the same and requested for allotment of showroom No. 12 @ Rs. 550/- per sq. feet instead of showroom No. 10 in the said hotel complex. Accordingly, plaintiffs got attracted to buy space for showroom on the proposed hotel building and entered into an agreement dated 12.11.1976 with the appellant. It was further alleged in the plaint that plaintiffs have made entire payment except the last payment i.e. installment (j) which was required to be paid at the time of handing over possession of showroom by the defendant. It was further stated that after remitting amount of Rs. 26,000/- on 05.10.1985, plaintiffs were surprised when they noticed that in letter dated 28.09.1985, defendant mentioned subject matter of the letter as "Space No. 12 on the ground floor in the International Trade Tower, Nehru Place Hotel RCA No. 145/19 Page No. 4 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. Cum Commercial Complex, New Delhi" as they never booked space in the said building. On verification, plaintiff No. 1 and her husband were shocked to know that there was absolutely no construction for the proposed hotel building wherein plaintiffs booked showroom space and as such, appellant company was not entitled to receive any payment from them and that appellant company had been receiving payments from plaintiffs by playing fraud upon them. It was further averred in the plaint that plaintiffs issued notice dated 21.01.1986 to defendant to which no reply was given by defendant and thereafter, plaintiffs received another letter dated 22.02.1986 whereby defendant /appellant requested for further payment of Rs. 13,000/- and in the said letter, space number was mentioned as 14 on the ground floor in the International Trade Tower to which reply dated 05.04.1986 was sent by respondents through counsel wherein they reiterated contents of alleged notice dated 21.01.1986 to which no reply / clarification was received from defendant. It was mentioned in the plaint that defendant vide its letter dated 29.07.1986 demanded further payment of Rs. 22,420/- on account of fire fighting, electric connection, generator and air conditioning charges from plaintiffs in respect of Flat No. 20 on upper ground floor in the International Trade Tower, New Delhi which letter was misconceived. It was further alleged that appellant received money from plaintiffs without raising RCA No. 145/19 Page No. 5 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. any construction of hotel building and as such, defendant should pay interest on excess amount already received and also hand over possession of the showroom to respondents. Appellant sent reply dated 23.06.1987 to respondents threatening them either to accept space offered to them or to cancel / terminate provisional allotment to which reply dated 25.09.1987 was sent by plaintiffs and thereafter, suit was filed by them before Ld. Trial Court seeking specific performance of agreement dated 12.11.1976 and interest @ 18% per annum on amount of Rs. 1,24,000/-.
5. It is stated that after receiving summons of the suit, appellant filed written statement specifically challenging authority of Mr. Gurdial Singh to sign, verify and institute plaint on basis of alleged GPA filed with the plaint i.e. GPA dated 22.08.1974. Appellant averred that Mr. Gurdial Singh has no right, power or authority to sign, verify and institute plaint. Further, power of attorney is not a legal and valid document as admittedly respondent No. 5 was a minor on the date of execution of alleged GPA, at the time of signing of alleged agreement as well as on the date of filing the said suit as a minor cannot enter into a contract and cannot give power of attorney in favour of any person. It was admitted that appellant proposed to raise and construct a five star hotel cum commercial complex and in this regard, brochure and advertisement were issued but it was mentioned in the brochure RCA No. 145/19 Page No. 6 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. that "This Brochure only provides general information and cannot form basis of any legal commitment and company reserves that right to alter, modify or make any changes in the scheme at any time." Appellant further stated in the WS that only provisional booking was made and proposed plan was displayed in the office which was subject to change as may be required by DDA i.e. the sanctioning authority, architect or defendant. Appellant further mentioned that as per clause 14 of the agreement, appellant agreed to enter into and execute another flat buyer agreement with respondents and as such, agreement of which specific performance is sought for is not a concluded contract between the parties as plans were yet to be approved and hence, agreement is not enforceable being not a concluded contract. It was further stated that appellant never agreed to give or allot any showroom to plaintiffs in the Hotel building but proposal was to allot showroom space in Hotel cum commercial complex but since respondents failed to comply with their obligation to make due payment under agreement in question, appellant was left with no other alternative but to cancel allotment of showroom and since, allotment was canceled, no suit for specific performance can be filed or is maintainable. Even otherwise, suit for specific performance is not maintainable because of breach on part of plaintiffs in not paying demand for electricity connection charges, fire fighting charges, RCA No. 145/19 Page No. 7 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. property tax alongwith service charges and air conditioning charges despite repeated demands raised by appellant. Further, installments paid by plaintiffs /respondents were delayed and no interest on delayed payments was paid by respondents. Conduct of respondents demonstrate that they were not ready and willing to perform the said agreement. Even as per the said agreement, possession of alleged showroom was to be handed over to plaintiffs after receiving entire payment from them which they failed, neglected or avoided to pay.
6. It is stated that respondents filed replication through their alleged attorney whereas no such powers was conferred upon him to file replication as per alleged GPA.
7. It is stated that on basis of pleadings of parties, following issues were framed by Ld. Trial Court on 19.08.1997:-
1) Whether the plaint is signed, verified and filed by duly authorized attorney?
2) What was the agreement and for which space?
At whose instance spaces were changed and what is the effect of changes?
3) Whether the plaintiff is entitled to decree of specific performance?
4) Relief.
RCA No. 145/19 Page No. 8 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
8. It is stated that to prove their case, none of the respondents entered into witness box and only Mr. Gurdial Singh i.e. alleged attorney and Mr. Damodar Dass Batra were examined by them as PW-1 and PW-2.
9. It is stated that appellant examined Mr. P. D. Sharma as DW-1 but nothing contrary was brought out in his cross examination by plaintiffs. After listening to arguments, Ld. Trial Court vide impugned judgment and decree dated 19.11.2019 disposed of suit ignoring defence put forth by appellant and without referring to even single judgment relied upon by appellant.
10. Following grounds of appeal have been taken by appellant:-
a) Because impugned judgment and decree passed by Ld. Trial Court are bad in law as well as on facts as evidence led by plaintiffs/respondents was self contradictory and in-sufficient to decree the suit and thus, same are liable to be set aside and suit filed by respondents/plaintiffs is liable to be dismissed.
b) Because Ld. Trial Court committed gross error of law and facts and erroneously decided issue No. 1 RCA No. 145/19 Page No. 9 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
in favour of respondents and against appellant. It is stated that Ld. Trial Court in impugned judgment referred to alleged GPA Ex. PW-1/1 to be that of 26.08.1994 whereas there is no GPA of the said date on record.
c) Because Ld. Trial Court wrongly concluded that GPA Ex. PW-1/1 is valid power of attorney as the issue was as to whether suit has been signed, verified and instituted by an authorized person and not as to whether the alleged GPA was valid or not and impugned judgment and decree are liable to be set aside on this ground alone.
d) Because Ld. Trial Court erred in presuming authority in favour of PW-1 on behalf of plaintiff No. 5 to file the suit because she did not appear before court and did not state that her father PW-1 had no authority to file and contest the suit which was absolutely erroneous and illegal. Ld. Trial Court failed to take note of the fact that PW-1 clearly admitted that plaintiff No. 5 was minor on the date RCA No. 145/19 Page No. 10 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
of filing of suit and after attaining majority, she executed SPA Ex.PW-1/2 which is neither notarized nor attested by any one and that she did not ratify act already done by PW-1 on her behalf and thus suit filed by Mr. Gurdial Singh cannot be said to be validly instituted suit on behalf of plaintiff No. 5 and ought to have been dismissed on the said ground.
e) Because Ld. Trial Court failed to take into account the fact that even alleged POA Ex. PW-1/1 is of year 1974 when the agreement sought to be enforced and dispute in question was not in existence and as such, there cannot be any GPA conferring power upon alleged attorney to sign, verify and institute suit and appoint him as their attorney by respondents for the dispute which admittedly occurred in 1986-87.
f) Because Ld. Trial Court erred in relying upon alleged GPA Ex.PW-1/1 as no specific power to sign, verify and institute the suit and to file replication and depose on facts of the matter was RCA No. 145/19 Page No. 11 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
given on behalf of executants to PW-1 and in absence thereof, such powers cannot be presumed to have been conferred on PW-1. Further, original of alleged POA was neither shown at the time of cross examination of PW-1 despite asking by counsel for appellant nor original was filed before court in terms of Section 4 of Power of Attorney Act and as such, reliance placed on the same by Ld. Trial Court is misplaced.
g) Because Ld. Trial Court erred in not appreciating that POA is to be construed strictly and if specific power has not been given under it, the same cannot be presumed to have been given to concerned attorney. Ld. Trial Court failed to take into account law filed by appellant and written submissions filed on behalf of appellant in this regard.
h) Because Ld. Trial Court did not appreciate that power to initiate any civil or criminal proceedings and to take all legal steps does not mean and RCA No. 145/19 Page No. 12 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
include power to sign, verify and institute the suit and adduce evidence as the same are required to be given specifically in deed of power of attorney as per law.
i) Because Ld. Trial Court failed to draw an adverse inference against respondents qua their non appearance and deposing in support of their case.
j) Because Ld. Trial Court completely overlooked provisions of Order 6 Rule 14 CPC which mandates that every pleading shall be signed by the party and its pleader and if plaintiff is not signing the pleading but some other person is doing so on his behalf, then the said person has to be specifically authorized to sign, verify and file the suit which plaintiffs failed to do.
k) Because Ld. Trial Court failed to take note of the fact that none of documents filed on record by respondents have been signed, sent or issued by PW-1 Gurdial Singh. PW-1 in his cross-examination recorded on 06.02.1998 admitted that at the time of RCA No. 145/19 Page No. 13 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
execution of Ex.PW-1/6 (agreement dated 12.11.1976), he was not present and thus, he did not have any personal knowledge about the same. In cross-examination dated 12.01.1999, he stated that a notice was given by plaintiffs to defendant but that he cannot tell date of notice. PW-1 further deposed that there was an attorney given by all the plaintiffs except Vineet Kaur to counsel for issuance of notice but failed to tell date of alleged authority and failed to disclose mode of sending notice. All these facts were sufficient to conclude that PW-1 did not have any personal knowledge regarding facts of the case and thus, he was not competent witness to depose in the matter. Order III Rule 1 CPC empowers holder of power of attorney to act on behalf of principal. The word 'act' employed in Order III Rule 1 and 2 CPC confines only in respect of acts done by power of attorney holder in exercise of power granted by the instrument. The term 'acts' will not include RCA No. 145/19 Page No. 14 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
deposing in place and instead of principal. If power of attorney has done some acts in pursuance of power of attorney given, he may depose for the principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter regarding which only principal can have personal knowledge and in respect of which, only principal is entitled to be cross-examined. A power of attorney holder of a party can appear as a witness in his personal capacity and whatever knowledge he has about the case, he can state on oath but he cannot appear as a witness on behalf of party in capacity of that party.
l) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate well-settled law that power to sign and verify the plaint and to file and institute a suit has to be given specifically in deed of power of attorney RCA No. 145/19 Page No. 15 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
and there is distinction between power to file a suit and power to institute a suit. If no such power is given under the deed of power of attorney, the attorney holder does not have any such powers. To institute the suit is something more than mere filing of a suit. Ld. Trial Court ought to have held that suit was not filed and instituted by a duly authorized person and thus, it should have dismissed suit filed by plaintiffs.
m) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate that none of the plaintiffs appeared and deposed before Ld. Trial Court in support of the case. Adverse inference has to be drawn against respondents/plaintiffs for not appearing and deposing before Ld. Trial Court.
n) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate that since execution of agreement Ex.PW-1/6 was not in presence of PW-1 in view of RCA No. 145/19 Page No. 16 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
his own admission, his testimony qua execution of the said agreement is a heresay evidence which is not admissible in evidence. Moreover execution of a document has to be proved by executants or attesting witnesses and PW-1 is neither the executant nor the attesting witness. Thus, Ld. Trial Court ought to have dismissed the suit.
o) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate that so called power of attorney blew hot and cold in as much as at one place, he stated that he is not accepting the agreement in toto and at another place, he stated that suit claim is based on all the clauses of the said agreement. He again said that he partly admit the agreement and further tried to confuse the whole issue by saying that he cannot say as to which of the term is not acceptable to plaintiffs. Specific performance is an equitable and discretionary relief and should not be granted to a person who fails to state and prove RCA No. 145/19 Page No. 17 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
that he has performed all the conditions which he was bound to perform under the contract and that he has been ready and willing at all times from time of contract to date of suit to perform his part of contract as stipulated in Section 24(b) and 15(b) of Specific Relief Act and in a suit for specific performance, plaintiff is also bound to treat contract as subsisting all the times. Continuous readiness and willingness from date of contract to time of hearing without any interruption is requisite for grant of equitable remedy which respondents in present case miserably failed to prove.
p) Because Ld. Trial Court erred in passing impugned judgment and decree without noticing the fact that plaintiffs themselves repudiated the contract by taking a false plea that space allotted to them is in the hotel building and that they are not willing to take space in commercial building known as "International Trade Tower" thus, dis-entitling them for seeking relief of specific performance RCA No. 145/19 Page No. 18 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
which is an equitable and discretionary relief.
q) Because Ld. Trial Court erred in not appreciating judgment in case titled as "Man Kaur (deceased) Vs. Hartar Singh Sangha". Plaintiff has to prove that he was ready and willing to perform his part of contract and for the same, he should step into witness box and plaintiff cannot examine his attorney holder who did not have personal knowledge either of the transaction or of his readiness or willingness.
r) Because Ld. Trial Court failed to appreciate the fact that since respondents failed to produce and prove alleged attorney in accordance with law, the same cannot be read into evidence as mere exhibition of a document does not imply that it is proved in accordance with law.
s) Because Ld. Trial Court did not bother to refer to cross-examination of PW-1 with regard to alleged attorney and further did not take into account written submissions and judgments filed by RCA No. 145/19 Page No. 19 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
appellant which is sufficient to show that Ld. Trial Court completely ignored evidence adduced by parties while deciding case in hand. Hence, impugned judgment and decree are liable to be set-aside on this ground alone.
t) Because in view of the facts of the case, evidence adduced, written submissions and judgments filed by appellant on record qua issue No. 1, Ld. Trial Court ought to have decided issue No. 1 against plaintiffs/respondents, however, Ld. Trial Court came to wrong conclusion by misreading the evidence.
u) Because Ld. Trial Court failed to appreciate that no specific performance of alleged agreement Ex.PW-1/6 could have been allowed in view of clause 14 thereof whereby parties agreed to execute another flat buyer agreement which was sufficient to conclude that agreement of which specific performance was sought was not a concluded contract between parties and thus was RCA No. 145/19 Page No. 20 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
unenforceable.
v) Because Ld. Trial Court failed to appreciate the fact that agreement Ex.PW-1/6 is uncertain and was only a provisional agreement for provisional space and as such, there cannot be any specific performance of such an agreement.
w) Because Ld. Trial Court further erred in relying upon and passing impugned judgment and decree on basis of alleged agreement which is neither stamped as required under Indian Stamp Act nor has been attested by two witnesses and agreement for sale/purchase of specific space/showroom was yet to be reached.
x) Because Ld. Trial Court failed to appreciate that suit filed by respondents was not maintainable being barred by limitation. Ld. Trial Court failed to appreciate that alleged agreement is dated 12.11.1976 whereas suit in which, impugned judgment and decree has been passed was filed as late as on or about 25.03.1988 i.e. after more RCA No. 145/19 Page No. 21 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
than 11 years 04 months from date of alleged agreement whereas, as per Article 54 of Schedule appended to Limitation Act, period of limitation is stated to be 03 years from date of agreement. Thus, Ld. Trial Court should have dismissed suit keeping in view Section 3 of Limitation Act. y) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate that suit filed by respondents was not maintainable as per Section 14(d) of Specific Relief Act as a contract/agreement which in its nature is determinable cannot be specifically enforced. (z) Because Ld. Trial Court erred in passing impugned judgment and decree as it failed to appreciate that respondents vide their reply letter/notice dated 15.11.1986 have themselves have asked for refund of money paid by them and elected not to have the agreement specifically enforced. Thus, on the principle of 'election' also, claim of specific performance is not maintainable RCA No. 145/19 Page No. 22 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
and Ld. Trial Court ought to have rejected claim of specific performance instead of decreeing the suit. aa) Because Ld. Trial Court erred in passing impugned judgment and decree for specific performance but failed to appreciate that booking of space was done on basis of brochure whereas, as per said brochure, appellant reserved right to alter, modify or make any changes in the scheme at any time and that only provisional booking was done and as such, it was merely an invitation to book the space.
bb) Because Ld. Trial Court failed to appreciate that respondents were aware that space has been booked in Hotel-cum-Commercial Complex of which "International Trade Tower" is a part. Appellant has been repeatedly mentioning the fact of International Trade Tower in correspondences as well as in the receipts issued from time to time to which, respondents never objected to and as such, the said conduct of respondents dis-entitle them RCA No. 145/19 Page No. 23 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
relief of specific performance on the principles of estoppel, waiver and acquiescence and as such, suit was not maintainable under Section 115 of Indian Evidence Act and Section 41(g) of Specific Relief Act.
cc) Because Ld. Trial Court failed to appreciate that even as per agreement relied upon by respondents, the shop was to be allotted in Hotel- cum-Complex and not in Hotel Building as claimed by respondents. Ld. Trial Court as well as respondents failed to appreciate difference between Hotel-cum-Commercial Complex and Hotel Building in the sense that Hotel Complex means the entire area wherein Hotel is built along with other buildings whereas Hotel Building is a smaller portion within Hotel Complex and International Trade Tower where shop was offered by appellant is a Commercial Complex, shopping Arcade/building having various offices, shops and commercial establishments within Hotel-cum- RCA No. 145/19 Page No. 24 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
Commercial Complex adjacent to Hotel Building within same boundary wall.
dd) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to appreciate that relief of specific performance is an equitable and discretionary relief whereas respondents failed to show and prove as to why, discretion be exercised in their favour and against appellant.
ee) Because Ld. Trial Court erred in not appreciating the fact that respondents filed suit after more than 11 years after entering into alleged agreement and further suit has been decided after almost 44 years from date of alleged agreement and after almost 31 years from the date of filing of suit and as such, keeping in view the inordinate and unreasonable delay, discretionary relief ought not to have been granted in favour of respondents. ff) Because Ld. Trial Court erred in passing impugned judgment and decree and failed to RCA No. 145/19 Page No. 25 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
appreciate that respondents were otherwise not entitled to seek specific performance of agreement as alleged attorney who appeared on their behalf deposed that he is not accepting agreement in toto. In view of the admission that agreement and its terms are not accepted in toto, specific performance cannot be granted in respect of such an agreement. The said witness again in his cross- examination stated that he partly admits the agreement but cannot say as to which of the terms of the agreement are not acceptable to respondents which fact was sufficient to dismiss the suit.
gg) Because Ld. Trial Court erred in passing impugned judgment and decree and wrongly held that respondents are entitled to decree of specific performance and if space is already sold and transferred, to return the money on basis of market rate of the space despite the fact that there are no pleading or prayer of respondents in this regard. As RCA No. 145/19 Page No. 26 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
such impugned judgment and decree are unsustainable and liable to be set-aside and quashed.
hh) Because Ld. Trial Court erred in deciding Issue No. 2 in favour of respondents. Onus to prove this issue was upon respondents which they miserably failed to prove. PW-1 admitted that firstly an application for provisional allotment of showroom space No. 10 in C-Block was made through Ex.PW-1/4 but subsequently another application for change of space was made for provisional allotment of space No. 12 in C-Block through Ex.PW-1/5. Ld. Trial Court wrongly held that agreement to sell Ex.PW-1/6 was for specific space No. 12 whereas, the said agreement itself stipulates in its terms that the said allotment was provisional and subject to change. Ld. Trial Court failed to take note of clause No. 5, 6, 7, 14, 22, 32 and 44 of the said agreement which clearly demonstrates that a reservation of the space was RCA No. 145/19 Page No. 27 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
only provisional on the basis of drawing displayed in office of appellant and was subject to approval of sanctioning authorities and was further subject to change during course of approval or construction or any time thereafter without any rights or claims or interference or the allottee and as such finding given by Ld. Trial Court is contrary to terms of agreement filed and relied upon by respondents.
ii) Because Ld. Trial Court failed to take note of candid admission made by PW-1 in his cross examination dated 12.01.1999 when he admitted that "that I have no document to show that defendant agreed to allot the space to plaintiffs in Five Star Hotel Building" which was sufficient to dismiss the suit.
jj) Because Ld. Trial Court erred in not taking into consideration admissions made by PW-1 and also various clauses of Ex. PW-1/6 wherein it has been specifically stipulated that the space agreed to be allotted /purchased was not certain and RCA No. 145/19 Page No. 28 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
specified and area, location, measurements, number etc of the same were subject to change and plans displayed at the office of appellant at the time of making application were provisional and so do the booking /allotment. Thus, there cannot be any specific performance of such an agreement where there was no certainty. Moreover, as per clause 14, respondents had agreed to execute buyer's space agreement on standard form of the company as and when required by the company and as such, Ex. PW-1/6 was not a concluded contract.
kk) Because Ld. Trial Court further failed to appreciate the fact that when respondents through their counsel issued notice dated 15.11.1986 to appellant making false allegations that space has been changed without their consent, the same was replied to by appellant vide Ex. PW-1/44 that mentioning of space No. 20 and 14 is nothing but a typographical error and an option was given to RCA No. 145/19 Page No. 29 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
them to either accept space No. 14 or 12 subject to payment already demanded, however, respondents failed to exercise option which clearly demonstrates that respondents were not ready and willing to perform contract and in these circumstances, issue No. 2 ought to have been decided against respondents.
ll) Because Ld. Trial Court failed to appreciate that respondents had no authority or competence to object the name given by appellant to their Commercial Building within Hotel Complex. Even otherwise, after receiving Ex. PW-1/14, plaintiffs made payment against the demand raised by appellant without raising any such objection and act of raising objection subsequently was nothing but an after thought and an attempt to avoid payment of legitimate dues of appellant under garb of unsubstantiated objection with regard to name of "International Trade Tower" as the said name was even mentioned in Ex. PW-1/27 to Ex. PW-1/30 RCA No. 145/19 Page No. 30 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
and all subsequent receipts and correspondences exchanged between the parties which shows that false statement was made by PW-1 that plaintiffs for the first time came to know of the same when Ex. PW-1/14 dated 28.09.1985 was received. Respondents for the first time objected to allotment of space in "International Trade Tower" vide legal notice dated 15.11.1986 by taking false stand that booking was in Hotel Building which is contrary to documents filed on record and evidence adduced in this regard. In the said notice, another false plea was taken by respondents that they issued notice dated 21.01.1986 which notice was never filed or placed on record by respondents nor the said notice was sent to or received by appellant and so, there was no occasion to respond to the same.
mm) Because Ld. Trial Court erred in not appreciating the fact that legal notice dated 15.11.1986 was duly replied by appellant through counsel vide reply dated 12.03.1987 wherein all RCA No. 145/19 Page No. 31 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
objections raised by respondents were dealt in an appropriate manner by giving an offer to respondents to accept within 10 days space No. 12 or 14 in Commercial Complex known as "International Trade Tower" which is part and parcel of Nehru Place Hotel Complex measuring 5 acres which respondents failed to opt and as such, now they cannot be permitted to cry over spilled milk and issue No. 2 ought to have been decided against respondents.
nn) Because Ld. Trial Court erred in deciding issue No. 3 in favour of respondents. Onus to prove this issue was also upon respondents which they miserably failed to discharge as plaintiffs themselves failed to appear and depose in support of the case and their so called attorney who signed and verified the plaint and instituted the suit and appeared as attorney of plaintiffs had no right, power and competence to sign and verify the plaint and to file and institute suit and no power and RCA No. 145/19 Page No. 32 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
authority to appear and depose on behalf of plaintiffs.
oo) Because Ld. Trial Court erred in not appreciating the fact that Ex. PW-1/6 is no agreement in the eyes of law as the same is uncertain, it is neither stamped nor witnessed by two witnesses and was a provisional agreement and parties specifically agreed to execute Space Buyer Agreement on standard form of appellant company as and when required by appellant as per clause 14 thereof. As per clause 5 of the agreement, reservation of space is provisional and subject to change at sole discretion of appellant. As per clause 6, the plan is also provisional and price / consideration is also subject to change / variation dependent upon area, location, facilities etc of the space / showroom. Further, Ex. PW-1/6 is determinable at sole discretion of appellant company and in event of delay, failure or neglect of plaintiffs to pay money that may be demanded by RCA No. 145/19 Page No. 33 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
appellant company from time to time.
pp) Because Ld. Trial Court failed to appreciate the fact that respondents were never ready and willing to perform their part of agreement (Ex. PW-1/6). Plaintiffs admittedly failed to pay amounts as demanded by appellant towards cost of fire fighting charges, individual electric services connection charges for lighting and power, charges for electric connections for air conditioning plaint, their share towards cost of transformers, electrical equipments, main cable etc which appellant company asked for vide letter dated 29.07.1986 and reminders thereof Ex. PW-1/21 and Ex.
PW-1/22 duly sent by appellant and received by respondents. This clearly shows that respondents have violated various terms and conditions of the agreement and also failed to perform their part of agreement and as such, it cannot be said that plaintiffs were always and are still ready and willing to perform their part of alleged agreement. Thus, in RCA No. 145/19 Page No. 34 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
view of Section 16 (b) and (c) of Specific Relief Act, specific performance of agreement in question could not have been allowed. Further, as per admission of respondents, space was booked provisionally in block-C of Hotel-Cum-Shopping Complex and as per them, no block-C was constructed and hence, specific performance could not have been granted in favour of respondents. Respondents refused to make payment on account that space was booked by them in Hotel Building. Respondents have failed to prove that booking was made by them in Hotel Building and on this ground alone, Ld. Trial Court ought to have presumed that a false dispute has been raised by them.
qq) Because Ld. Trial Court failed to appreciate that DW-1 filed detailed affidavit in support of defence put forth by appellant but plaintiffs failed to cross examine DW-1 on most of averments contained therein which goes on to prove that it is not possible to impeach credibility of DW-1 as per RCA No. 145/19 Page No. 35 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
settled law.
rr) Because Ld. Trial Court committed gross error in passing impugned judgment and decree while ignoring the fact that even as per proposed plan allegedly made available to respondents at the time of booking, showroom space No. 12 was never part of Hotel Building as has been falsely claimed in the suit. Respondents filed copy of proposed plan before Ld. Trial Court which will clearly show that said space was not booked by them in Hotel Building.
ss) Because Ld. Trial Court did not take notice of false allegations of respondents to the effect that there was no construction. It is submitted that thought Hotel Building was constructed later on but commercial complex was constructed earlier and all payments were demanded by appellant in terms of the schedule.
tt) Because Ld. Trial Court failed to take note of the fact that false plea was raised by respondents RCA No. 145/19 Page No. 36 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
in saying that letter dated 22.02.1986 of appellant was replied by them vide reply dated 05.04.1986 whereas at the time of exhibiting the alleged reply Ex. PW-1/43, objection was taken by appellant qua its exhibition as the same was never dispatched or sent to by counsel for respondents as no postal receipt or proof of delivery has been placed on record.
uu) Because Ld. Trial Court erred in not appreciating the fact that respondents made false statement in the plaint that appellant has received money from them without raising any construction or that defendant /appellant should pay interest on alleged excess amount already received and also hand over possession of the showroom.
vv) Because Ld. Trial Court erred in coming to the conclusion that space which was booked in Hotel-Cum-Commercial Complex was changed to space No. 12 in "International Trade Tower" by appellant of its own without consent of RCA No. 145/19 Page No. 37 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
respondents. The said finding is not based upon any evidence and as such is liable to be set aside. ww) Because Ld. Trial Court erred in deciding issue No. 3 in favour of respondents. Ld. Trial Court erroneously observed that total sale consideration of allotted space was Rs. 1,29,800/- whereas the fact remains that it was only basic cost of space and not total cost and as such, the said finding is perverse based on no evidence.
xx) Because finding given by Ld. Trial Court to the effect that respondents have been regularly making payment of all installments in time is contrary to record and evidence adduced by parties.
yy) Because finding given by Ld. Trial Court that respondents did not pay last installment which was payable upon intimation of completion of building and handing over possession is erroneous and contrary to agreement sought to be enforced as respondents were under obligation to pay various RCA No. 145/19 Page No. 38 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
other charges in terms of said agreement apart from basic cost of the space allotted which respondents failed to pay despite repeated reminders by appellant in this regard.
zz) Because finding given by Ld. Trial Court that respondents only noticed through letter of appellant dated 28.09.1985 that they have been allotted space No. 12 on ground floor in the International Trade Tower in Nehru Place Hotel-cum-
Commercial Complex and hence, they did not make payment but the same is contrary to record as respondents were fully aware about their allotment in International Trade Tower right from start of construction of the same i.e. since 1984.
aaa) Because Ld. Trial Court has wrongly concluded that respondents did not pay installment as all the correspondences between parties only mentioned space in Hotel-cum-Commercial Complex, Nehru Place and after reading letter dated 28.09.1985 written by appellant, it came to RCA No. 145/19 Page No. 39 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
their knowledge that they have been allotted space in International Trade Tower and not in Hotel-cum- Commercial Complex and thus, respondents were well within their rights not to make any further payment as appellant was not eager to give them space in the Hotel Complex which was allegedly allotted in their names.
bbb) Because Ld. Trial Court erred in coming to conclusion that agreement entered into between the parties and all the subsequent letters written by appellant demanding installments from respondents reveal that space was booked only in Hotel-cum-Commercial Complex and not in International Trade Tower.
ccc) Because Ld. Trial Court committed error in decreeing the suit and allowing respondents to recover market value of the space allotted to them whereas there was no pleadings or prayed in that regard and thus, decree passed is liable to be set- aside as the same is unreasonable, untenable and RCA No. 145/19 Page No. 40 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
without appreciation of evidence or application of mind.
ddd) Because Ld. Trial Court did not understand that booking made by respondents was in the Hotel-cum-Commercial Complex i.e. within 05 Acres land allotted by DDA to appellant for developing Hotel-cum-Commercial Complex and not in the Hotel building and thus, Ld. Trial Court did not appreciate factual position correctly. eee) Because Ld. Trial Court erred in decreeing suit filed by respondents by holding that respondents have always been ready and willing to perform essential terms of contract and that they have made payment of installments timely. Ld. Trial Court failed to take note of conduct of respondents in not fulfilling their contractual obligations by not making balance payment towards basic cost as well as cost of various other services/amenities amounting to Rs.22,420/- which was demanded by appellant time and again. Ld. Trial Court failed to RCA No. 145/19 Page No. 41 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
appreciate that as per record of the case and evidence, respondents have committed default in not making due payments and as such, Ld. Trial Court should have dismissed the suit on this ground alone.
fff) Because finding on all the issues by Ld. Trial Court is based on conjectures, surmises and are unsustainable in law and are not borne out of either from documents filed on record by appellant and respondents or evidence adduced. It seems that Ld. Trial Court has blindly accepted version of respondents without even appreciating the documents and evidence and without verifying the same from record.
ggg) Because Ld. Trial Court misconceived whole law and facts involved in the suit and passed decree which is illegal as if respondents filed suit for recovery of cost of space allotted to them as per current market value whereas the said relief was neither sought by respondents nor could have been RCA No. 145/19 Page No. 42 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
granted as law is well-settled in this regard that Court cannot grant a relief which has not been prayed for and thus, Ld. Trial Court decided suit in a wrong way and therefore, impugned judgment and decree are not tenable in law and are liable to be set aside.
hhh) Because Ld. Trial Court committed error of law and facts in coming to conclusion that in case, space allotted is not available, respondents are entitled to recover current market value of the space which is beyond scope of a suit for specific performance of a contract.
iii) Because Ld. Trial Court erred in not giving a finding that respondents were guilty of not performing their contractual obligations and thus, were not entitled to discretionary relief of specific performance.
jjj) Because there was sufficient evidence led by appellant to disprove case put forth by respondents which respondents failed to effectively rebut. RCA No. 145/19 Page No. 43 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
kkk) Because Ld. Trial Court erred in relying upon oral testimony of PW-1 against written documents which was barred under Section 91-92 of Indian Evidence Act.
11. It is prayed to call for TCR, accept and allow present appeal and to set-aside impugned judgment and decree and dismiss suit filed by respondents with costs in favour of appellant and against respondents.
12. I have heard arguments addressed by respective counsels and perused the record including TCR, written arguments/ submissions and judgments filed/relied upon on behalf of parties.
13. Appellant has contended that Ld. Trial Court wrongly concluded that GPA Ex.PW-1/1 is valid power of attorney whereas issue was whether suit has been signed, verified and instituted by duly authorized person. Appellant further contended that Ld. Trial Court erred in presuming authority in favour of PW-1 on behalf of plaintiff No.
5. Ld. Trial Court failed to take into account that PW-1 admitted that plaintiff No. 5 was minor on the date of filing of the suit but that after attaining majority, she did not ratify acts of PW-1 vide Ex.PW-1/2 and thus suit instituted by PW-1 could not be treated as validly instituted suit on behalf of plaintiff No. 5. Appellant further contended that RCA No. 145/19 Page No. 44 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. Ex.PW-1/1 is of year 1974 when dispute in question was not even in existence and that vide Ex.PW-1/1, there is no specific power given to PW-1 to sign, verify and institute suit and to file replication and depose facts of the matter on behalf of executants. Appellant has contended that none of the documents filed on record on behalf of plaintiffs have been signed, sent or issued by PW-1.
14. Ld. Trial Court in impugned judgment while dealing with issue No. 1 held that power of attorney Ex.PW-1/1 is a valid power of attorney. It further held that however, SPA Ex.PW-1/2 is not a valid SPA. It further observed that suit has been filed in year 1988 and SPA Ex.PW-1/2 was executed after filing of suit. Ld. Trial Court further held that it can be inferred that though there were some procedural defects in institution of present suit but Ms. Vineet Kaur never appeared before Court and stated that her father had no authority to file and contest suit on her behalf. GPA Ex.PW-1/1 has duly authorized Mr. Gurdial Singh to sign, verify and file present suit and hence, this issue is decided in favour of plaintiffs and against defendant.
15. Perusal of GPA in favour of PW-1 Gurdial Singh Ex.PW-1/1 shows that the same has been executed in year 1974 i.e. much prior to execution of Ex.PW-1/4, Ex.PW-1/5 and Ex.PW-1/6 i.e. genesis of dispute in question. Ex.PW-1/4 to Ex.PW-1/6 have been executed in the year 1976. Further, vide Ex.PW-1/1, authority has been given to RCA No. 145/19 Page No. 45 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. PW-1 to appoint Lawyer, pleader to appear in any Court of law and to initiate any civil or criminal proceedings on behalf of executants and to take all legal steps.
16. Appellant has referred to judgment in case titled as "Manmohan Singh Dhaliwal Vs. Gurbax Singh Arora 94 (2001) DLT 820" wherein it was held that power of attorney has to be construed strictly and if specific power has not been given under the deed of power of attorney, the same cannot be presumed to have been given to the named authority.
17. Appellant further relied upon judgment in case titled as "Janki Vashdeo Bhojwani And Another Vs. IndusInd Bank Ltd. And Others AIR 2005 SC 439" wherein Hon'ble Supreme Court of India held that where a party to the suit does not appear into witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct. It further held that a power of attorney holder cannot depose in place and instead of principle. Order III Rule 1 CPC empowers holder of power of attorney to act on behalf of the principle. The word 'act' employed in Order III Rule 1 and 2 CPC confines only in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principle. If the power RCA No. 145/19 Page No. 46 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. of attorney has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot deposed for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which, the principal is entitled to be cross-examined. A power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. Hon'ble Supreme Court of India in this case further held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption under Section 114 of Indian Evidence Act would arise that the case set-up by him is not correct.
18. The appellant has further relied upon judgment in case titled as "M/s. Nibro Ltd. Vs. National Insurance Co. Ltd. AIR 1991 Delhi 25" wherein it has been held that unless power to institute a suit is specifically conferred on a particular Director of the company, he has no authority to institute a suit is not a technical matter but it has far reaching effects.
RCA No. 145/19 Page No. 47 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
19. In view of ratio of judgments relied upon by appellant as mentioned above, I am of the view that even if GPA executed in favour of PW-1 on 22.08.1974 (Ex.PW-1/1) by four plaintiffs is taken to be valid GPA for the purpose of filing suit before Ld. Trial Court for the sake of arguments, the same does not specifically provides authority to PW-1 to depose on behalf of four of the plaintiffs and thus, testimony of PW-1 cannot be said to be authorized by four plaintiffs particularly in the scenario when PW-1 in his cross-examination has admitted that at the time of execution of Ex.PW-1/6, he was not present.
20. Further, PW-1 in his cross-examination has admitted that Ex.PW-1/2 i.e. power of attorney allegedly given by plaintiff No. 5 Vineet Kaur was not attested and witnessed. He further admitted that acts done by him by virtue of Ex.PW-1/2 were not ratified by Vineet Kaur. Whatever has been stated by PW-1 in his cross-examination clearly shows that neither special power of attorney Ex.PW-1/2 was executed in the manner required by law nor acts done by PW-1 which includes institution of suit filed on behalf of plaintiffs was authorized by plaintiff Vineet Kaur. There is no power to depose given to PW-1 in Ex.PW-1/2.
21. PW-1 in his cross-examination produced further GPA Ex.DX-1 purportedly executed by Vineet Kaur in his favour but even RCA No. 145/19 Page No. 48 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. this GPA does not empower PW-1 to depose on behalf of plaintiff Vineet Kaur. Further, Ex.DX-1 is dated 23.11.1989 and acts of PW-1 after 23.11.1989 have been ratified vide this GPA meaning thereby that institution of suit filed before Ld. Trial Court cannot be said to be validly instituted so far as plaintiff Vineet Kaur is concerned.
22. So, in view of my above made discussion and law as cited on behalf of appellant as mentioned above, I am of the view that plaint filed before Ld. Trial Court was not signed, verified and filed by duly authorized attorney, so far as all plaintiffs are concerned and testimony of PW-1 cannot be taken into account as PW-1 has not been authorized to depose before Court by any of the plaintiffs vide power of attorneys given in favor of PW-1 by plaintiffs. Finding of Ld. Trial Court qua issue No. 1 therefore cannot be sustained and hence, reversed. It is held that issue No. 1 is decided in favour of appellant/defendant and against respondents/plaintiffs.
23. Respondents filed judgments in cases titled as "Virender Singh Sethi Vs. Vice Chairman, DDA MANU/DE/0867/1996", "Githa Hariharan and Ors Vs. Reserve Bank of India and Ors MANU/SC/0117/1999", "Roomal and Ors Vs. Siri Niwas MANU/DE/0355/1985" and "Manik Chand and Ors Vs. Ramchandra MANU/SC/0097/1980". Ratio in these cases is not applicable in facts and circumstances of present case as appellant RCA No. 145/19 Page No. 49 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. company has not disputed that allotment to minor Vineet Kaur was not valid or that her mother could not have entered into agreement on her behalf with appellant company or that she could not have filed present suit for specific performance. Facts of present case as discussed above indicate that it was not authorizedly instituted on behalf of plaintiff Vineet Kaur and other plaintiffs and PW-1 did not have any authority to depose on behalf of plaintiffs /respondents.
24. Qua issue No. 2, Ld. Trial Court in impugned judgment observed that application form Ex.PW-1/5 and Ex.PW-1/7 to Ex.PW-1/13 (letters demanding various amounts from plaintiffs purportedly issued by defendant/appellant), all state space as "Showroom Space in Hotel Commercial Complex, Nehru Place, New Delhi". It further observed that all these documents mentioned that showroom space was initially allotted in Hotel Commercial Complex. However, vide letter dated 28.09.1985 (Ex.PW-1/14) demanding Rs.26,000/-, space was mentioned as space No. 12, Ground Floor in International Trade Tower, Nehru Place, Hotel-cum-Commercial Complex, New Delhi. It further observed that this is for the first time, when defendant stated about International Trade Tower. It further observed that in all these letters, it was never mentioned that space allotted was in International Trade Tower and all these letters starting from agreement date till 28.09.1985, space was mentioned as RCA No. 145/19 Page No. 50 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. showroom space in Hotel-cum-Commercial Complex. It observed that thus it is evident that space which was booked in Hotel-cum- Commercial Complex was changed to space No. 12 in International Trade Tower by defendant of its own and without consent of plaintiffs and decided issue No. 2 in favour of plaintiffs and against defendant.
25. Ld. Trial Court failed to observe that space starting from Ex.PW-1/7 till Ex.PW-1/11 has been mentioned to be space No. 12. Space has been mentioned to be space No. 12 even in Ex.PW-1/5 and Ex.PW-1/6. Application form Ex.PW-1/5 mentions that showroom/commercial space is in Hotel Complex. Ex.PW-1/6 mentions that whereas the company is promoting, construction of a multi-storeyed building for the purpose of a hotel, shopping arcade, showrooms, commercial spaces etc. in terms of the lease. Agreement Ex.PW-1/6 clearly mentions that appellant was constructing not only a hotel but shopping arcade, showrooms and commercial spaces. No doubt Ex.PW-1/14 mentions name of the building wherein space No. 12 was allotted to respondents to be International Trade Tower but as mentioned in Ex.PW-1/6, appellant company allotted showroom/shop/commercial space bearing No. 12 on ground floor in Block-C to respondents and respondents were planning to raise various multi-storeyed buildings as mentioned earlier (Ex.PW-1/6), it was for respondents to get ascertained from appellant company as to RCA No. 145/19 Page No. 51 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. in which building, space will be allotted to respondents. Hotel complex is a larger term than the word 'Hotel' and as per Ex.PW-1/6, number of buildings were proposed to be raised in this Hotel Complex by appellant company and after erection of structure, if name of structure was given to be International Trade Tower by appellant company, it cannot be said that it was appellant company which changed space allotted to respondents. Further, receipts Ex. PW-1/27 to Ex. PW-1/30, all mention name of building to be International Trade Towe wherein space was allotted to respondents for which respondents deposited installments. In these circumstances, I am of the view that decision arrived at by Ld. Trial Court qua this issue is not in accordance with law and is accordingly reversed. Issue No. 2 is decided in favour of appellant company and against respondents. So far as effect of change of space is concerned, it has come on record in reply dated 12.03.1987 of appellant to legal notice issued by respondents (Ex.PW-1/44) that space No. 20 was referred to in one of the letters issued by appellant company on account of typographical mistake and appellant company vide this reply offered space No. 12 or space No. 14 whatever respondents deemed fit. So, when there was as such no change qua number of space offered to respondents by appellant company, it cannot be said that there was any effect of change. Further, clause 6 of Ex.PW-1/6 clearly provides that allottee has also RCA No. 145/19 Page No. 52 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. understood and agreed with the company that if for any reason, any changes are required to be made by the sanctioning authorities or by the Architect or by the company before or after sanction of any plans, resulting in reduction or increase in the area agreed to be allotted or any change in its shape or its location, the allottee shall have no rights to raise any claims, monetary or otherwise. The allottee has further agreed with the company to accept alternate space if it becomes necessary in the event the company is unable to allot the particular space mentioned in this agreement due to change in the plan displayed in the office of the company. This issue is accordingly decided in favour of appellant company.
26. Issue No. 3 was concerning entitlement of respondents qua decree of specific performance. Ld. Trial Court qua this issue observed that total consideration was Rs.1,29,800/- and that plaintiffs paid sum of Rs.1,24,000/-. It further observed that plaintiffs have been paying all the installments within time, however, they did not pay last installment which was payable upon intimation of completion of building and handing over possession. It observed that after payment of Rs.26,000/-, plaintiffs noticed on the letter dated 28.09.1985 that they have been allotted space No. 12 on ground floor in International Trade Tower, Nehru Place, Hotel-cum-Commercial Complex, New Delhi. It observed that plaintiffs did not pay this installment as RCA No. 145/19 Page No. 53 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. correspondence between the parties only mentioned space in Hotel- cum-Commercial Complex, Nehru Place, New Delhi and after reading letter written by defendant dated 28.09.1985, it came to knowledge of plaintiffs that they have been allotted space in International Trade Tower and not in Hotel-cum-Commercial Complex. By making these observations, Ld. Trial Court further observed that plaintiffs have always been ready and willing to perform essential terms of the contract and they have made timely payments and decided this issue in favour of plaintiffs/respondents.
27. Observations of Ld. Trial Court qua allotment of specific space in Hotel-cum-Commercial Complex are palpably wrong as held by me while dealing with issue No. 2. However, it is necessary to observe that in Ex.PW-1/6, clause No. 12 provides that allottee agrees that in case of his failure to pay to the company, the amounts due and as demanded by the company in accordance with this agreement and the annexures to this agreement, the company shall have the absolute right to cancel this agreement at its sole discretion and in such a case, the earnest monies as paid by the allottee will stand forfeited as liquidated damages for performance of the terms of this agreement and the agreement will stand canceled ipso facto. Clause 11 of Ex.PW-1/6 further provides that payment of all dues of the company according to the time and period mentioned in this agreement is the RCA No. 145/19 Page No. 54 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. essence of this agreement. Clause 7 of Ex.PW-1/6 provides that allottee has understood and agreed that the above mentioned price does not include the cost of individual electric service connection charges for lighting and power etc., for the space agreed to be allotted and also the charges for the electric connections for the air- conditioning plants etc.
28. Appellant company asked for payment of fire fighting, electric connection, generator and air-conditioning charges amounting to Rs.22,420/- from plaintiffs vide letter dated 29.06.1986 (Ex.PW-1/20). Plaintiffs failed to pay the same on account of which, reminders Ex.PW-1/21 (dated 18.08.1986) and Ex.PW-1/22 (dated 17.11.1986) were issued to plaintiffs but plaintiffs failed to make due payment along with their failure to pay last installment. It cannot be said that from this conduct of plaintiffs, it appeared that plaintiffs were ready and willing to perform their part of contract (Ex.PW-1/6) which is an essential condition for grant of relief of specific performance qua an agreement. As mentioned earlier, plaintiffs were again offered space No. 12 or 14 whatever they desired before institution of present suit by appellant company vide Ex.PW-1/44 (dated 12.03.1987). As discussed earlier, respondents made payment of installments for allotment in space in International Trade Tower vide Ex. PW-1/27 to Ex. PW-1/30 meaning thereby that respondents were amenable to RCA No. 145/19 Page No. 55 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. allotment of space in International Trade Tower. Conduct of plaintiffs does not show that plaintiffs were ready and willing to perform their part of contract. Further, PW-1 in his cross-examination stated that he is not accepting agreement in toto (question in reference to Ex.PW-1/6). PW-1 in his cross-examination further stated that he partly admit the agreement entered into between plaintiffs and defendant company. He stated that he cannot say what were the terms not acceptable to the plaintiff. In case, PW-1 deposing on behalf of plaintiffs/respondents is not accepting Ex.PW-1/6 in its entirety and is not sure of the terms acceptable to plaintiffs, plaintiffs cannot be said to be entitled to seek specific performance of this agreement. Hence, it cannot be said that Ld. Trial Court decided this issue correctly. This issue is accordingly decided in favour of appellant company and against respondents.
29. Respondents filed judgment in case titled as "Nehru Place Hotels Ltd. Vs. Kanta Aggarwal MANU/DE/1297/2011" in support of issue No. 3. I am of the view that the said judgment is not applicable in facts and circumstances of present case as there is no sanction plan proved on record by respondents or appellant for that matter from which it can be inferred that there was any change in the sanctioned plan vis-a-vis what was proposed by appellant company earlier to respondents. Further, there were number of other issues RCA No. 145/19 Page No. 56 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. involved in the said case, whereas issues in present suit are only three. Further, the same space with different building name within same complex was offered by appellant company to respondents vide Ex. PW-1/44 but respondents instead of accepting the same, filed present suit.
30. Ld. Trial Court after giving findings on all issues, in relief, held that plaintiffs are entitled to decree of specific performance of agreement dated 12.11.1976 entered into between parties. It further held that in case, the said agreement cannot be specifically enforced due to the reason that the said space which was allotted to plaintiffs has now been sold out to some other person, plaintiffs will be entitled to recover cost of said space as per current market value.
31. Decree of specific performance cannot be passed in the present case as discussed above. Plaintiffs did not plead that in case of non enforceability of decree of specific performance in any case, they will be entitled to recover cost of said space as per current market value but still Ld. Trial Court gave the said relief for reasons best known to Ld. Trial Court which relief cannot stand legal scrutiny and hence is declined. Further, in view of clause 12 of Ex. PW-1/6 which mentions that the allottee agrees that in case of his failure to pay to the company the amounts due and as demanded by the company in accordance with this agreement and the annexures to this agreement RCA No. 145/19 Page No. 57 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors. the company shall have the absolute right to cancel this agreement at its sole discretion and in such a case, the earnest monies as paid by the allottee will stand forfeited as liquidated damages for performance of the terms of this agreement and the agreement will stand canceled ipso facto, appellant company could have forfeited amount invested by respondents but as per Ex. PW-1/44 purportedly issued by appellant company to respondents, though contract stands frustrated still, appellant company through Ex. PW-1/44 has offered to refund amount of Rs. 1,23,945/-. Though appellant could have forfeited invested amount of respondents in terms of clause 12 of Ex. PW-1/6 but appellant has offered to return amount invested by respondents. So, I hereby order refund of amount of Rs. 1,23,945/- by appellant to respondents with interest @ 9% per annum from date of filing of suit before Ld. Trial Court till realization.
32. In view of my above made discussion, I am of the view that appeal filed by appellant deserves to be allowed and is accordingly allowed. Impugned judgment and decree dated 19.11.2019 passed by Ld. Trial Court is set aside subject to direction as made in last para in this judgment.
33. Ahlmad is directed to send copy of this judgment to Ld. Trial Court along with Trial Court record.
Decree-sheet be prepared accordingly.
RCA No. 145/19 Page No. 58 of 59 Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.
Appeal file be consigned to Record Room.
Digitally signed by
SONU SONU AGNIHOTRI
AGNIHOTRI Date: 2024.12.05
15:58:24 +0530
Announced in open Court (SONU AGNIHOTRI)
today on 25.11.2024 DJ-07, South East
District, Saket Courts/Delhi
RCA No. 145/19 Page No. 59 of 59
Nehru Place Hotels Pvt. Ltd. Vs. Gurmat Kaur & Ors.