Delhi District Court
Smt. Nirmala Jain vs Sh. Prabhat Kumar Singh on 28 September, 2019
CS No. 1597/16 DOD:28.09.2019
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA,
ADDITIONAL DISTRICT & SESSIONS JUDGE/PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
Civil Suit no. 1597/16
Sh. Kamal Kumar Jain (since deceased)
S/o Sh. Manmal Jain,
Through his Legal heirs:
1. Smt. Nirmala Jain
W/o Late Sh. Kamal Kumar Jain
2. Sh. Puneet Jain
S/o Late Sh. Kamal Kumar Jain
3. Sh. Jitender Jain
S/o Late Sh. Kamal Kumar Jain
All R/o A80, First Floor, Surya Nagar,
Ghaziabad, Uttar Pradesh201011
.........Plaintiff.
VERSUS
1. Sh. Prabhat Kumar Singh
S/o Sh. Mahender Singh,
R/o 2A, Club Road, Civil Line,
Delhi110054
2. M/s Mahendra Developers Pvt. Ltd.
Through its Managing Director
Sh. Prabhat Kumar Singh,
2A, Club Road, Civil Line,
Delhi110054
Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 1 of 34
CS No. 1597/16 DOD:28.09.2019
3. New Delhi Power Limited(NDPL)
Through its Chairman
Hudson Line, Kingsway Camp,
Delhi110009
4. Municipal Corporation of Delhi.
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110054 ............Defendants
Date of Institution : 17.01.2006
Date of Arguments : 26.08.2019
Date of Judgment : 28.09.2019
APPEARANCES:
Sh. Vikrant Arora, Advocate on behalf of plaintiff.
Sh. Subhash Chand, Advocate on behalf of
defendants no.1 and 2.
SUIT FOR SPECIFIC PERFORMANCE, DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
1. This suit for specific performance, declaration and permanent injunction was filed by the plaintiff against the defendants. Brief facts of the case as per plaint are that the defendant no.1 Sh. Prabhat Kumar Singh alongwith Sh. Sri Niwas Aggarwal, Sh. Subh Karan Jain, sh. Shanti Kumar Ramsisaria and one Sh. Rajender Kumar Chhawri entered into a memorandum of understanding dated 08.02.1997 for the construction of the flats over the property bearing registration no. D143 and D144, situated at Mahendru Enclave, Delhi110033. It is stated that the plaintiff Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 2 of 34 CS No. 1597/16 DOD:28.09.2019 and the sister in law of the plaintiff were the owners of the said plots and the plots were given to the aforesaid persons for raising construction.
2. It is further stated that the defendant no.1 incorporated a company i.e. defendant no.2 M/s Mahendra Developers Private Limited so that the flats can be sold easily. The defendant no.1 became himself the Managing Director of this company. Wife of the plaintiff and his sister in law executed some documents i.e. power of attorney in favour of the defendants no.1 and 2. It was agreed that the cost of the plot i.e. Rs. 1,23,20,000/ would be given and if the cost are not paid then five flats are to be given to the said owners of the plot. That the total 16 flats were constructed by virtue of memorandum of understanding dated 08.02.1997.
3. It is submitted that some dispute arose between the executant of Memorandum of Understanding and one of the partner namely Sh. Shanti Kumar Ramsisaria filed suit bearing no. 2048/1998 before the Hon'ble Delhi High Court. It is submitted by the plaintiff that the said flats were constructed on the said property bearing no. D143 and D144, Mahendru Enclave, Delhi with the funds of the said partners mentioned in the memorandum of understanding and they were entitled to have their share. It is submitted by the plaintiff that his wife and sister in law are the owners of the said flat and his brother Sh. Shubh Karan Jain was partner of the memorandum of understanding. Therefore, the plaintiff is also entitled to a flat. It is submitted that the plaintiff has also invested his own amount with his brother Sh. Shubh Karn Jain in respect of aforesaid construction.
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4. It is further submitted that during the pendency of the civil suit bearing no. 2048/1998 it was agreed between the parties of the said suit that the flats being fallen in respect of one partner would be taken by the said partner or the nominee thereof and accordingly the share of the said Mr. Shanti Kumr Ramsisaria was taken by Sh. Priyaka Ramsisaria, Smt. Usha Ramsisaria and one flat by Sh. Shanti Kumar Ramsisaria and accordingly the share of Sh. Shubh Kumar Jain was however fallen in the share of Smt. Nirmala Jain, Sh. Kamal Kumar Jain, Sh. Mohan Lal Jain, Raj Kumar Jain and Smt. Meena Jain. The plaintiff had also invested some amount through his brother Sh. Shubh Karan Jain. It was also agreed that the defendant no.1 being the Managing Director of defendant no.2 would execute the necessary documents of title in respect of the different flats into the name of person to whom the flats were given or fallen in the share of respective partners.
5. It is stated that the plaintiff has invested substabtial amount through his real brother Sh. Shubh Karan Jain and accordingly a flat bearing no. S2 which was subsequently privately numbered as Flat no.10, Second Floor in respect of the said building/property bearing no. D143 and D144, Mahendru Enclave, G. T. Karnal road was alloted to him.
6. It is submitted that in view of understanding between the parties a compromise application dated 17.09.2001 was filed in civil suit no. 2048/1998. It is submitted by the plaintiff that pursuant to the said Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 4 of 34 CS No. 1597/16 DOD:28.09.2019 compromise defendants no.1 and 2 executed GPA and 'Will' dated 21.09.2001 in favour of plaintiff and the said GPA and 'Will' was also presented for registration before the Sub Registrar. That the defendants no.1 and 2 assured that the possession of the said property is with the plaintiff and therefore a proper sale deed would be executed later on and also registered and executed in favour of the plaintiff.
7. That the defendants no.1 and 2 in accordance with the compromise application executed several other documents in respect of the flat. However, after execution of the said document in favour of the plaintiff on 21.09.2001, because of some dispute with one Sh. Sri Niwas Aggarwal, the defendants no.1 and 2 had withdrawn the said compromise aplication dated 17.09.2001 and thereafter moved a separate application and executed documents in favour of Sh. Shanti Kumar Ramsisaria. It is stated that the defendants no.1 and 2 had executed documents on 21.09.2001 after the compromise application was withdrawn. The withdrawl of the said application did not affect the right of plaintiff qua the said property. It is stated that the possession of the said property was given long back and entire sale consideration was also paid by the plaintiff or adjusted from the share of Sh. Shubh Karan Jain.
8. It is stated that the matter had already been settled earlier, therefore the defendants no.1 and 2 represented to the plaintiff that they would execute proper sale deed in respect of the said property. It is submitted that all of sudden the defendant no.4 Municipal Corporation of Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 5 of 34 CS No. 1597/16 DOD:28.09.2019 Delhi had sealed some flats in the said building no. D143 and D144, Mahendru Enclave, G. T. Karnal Road, Delhi. Thereafter the owners of the other flats filed appeal before the Ld. Appellate Tribunal, Municipal Corporation of Delhi and writ petitions also. That when the said property was sealed by the defendant no.4, the plaintiff had requested the defendants no.1 and 2 to execute the sale deed in his favour so that in future no complications would arise. It is submitted that the plaintiff was shocked and surprised to receive notice dated 15.09.2003 by which the defendant no.1 had cancelled the power of attorney. The plaintiff approached the defendant no.1 who stated him not to worry as he had already executed the Will and GPA in his favour.
9. It is stated that the defendant no.1 alongwith his associates all of sudden on 08.06.2006 came to the said suit property and in order to take possession of the said property they forcibly started tampering the seal put by defendant no.4 MCD and also tried to remove the lock of the plaintiff. The plaintiff reached there and strongly protested it. Thereafter the defendant no.,1 divulged to the plaintiff that he had also applied for getting an electricity connection installed in his name. Thereafter the plaintiff visited the office of defendant no.3 NDPL and shocked to see that the defendant no.1 in December 1995 had applied for the installation of electricity connection. It is stated that the said property is lying under the seal of MCD/ the defendant no.4 and therefore, respondent no.3 can not be permitted to install any electricity connection. It is stated that the plaintiff has always performed his part of obligation and is still ready and willing to perform the Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 6 of 34 CS No. 1597/16 DOD:28.09.2019 same. It is stated that the plaintiff has fails to get his share, hence the present suit is filed.
10 . The plaintiff has sought the following reliefs:
a) Pass a decree of specific performance in favour of the plaintiff and against the defendants no.1 and 2 thereby directing the defendants no.1 and 2 to execute the sale deed or the other documents of title and get the same registered with the office of Sub Registrar concerned.
b) It is prayed that by the decree of permanent injunction, respondents no.1 and 2 be restrained from taking/getting sanctioned or installed any electricity connection in their name.
c) By the decree of permanent injunction respondent no.3/New Delhi Power Limited be restrained from installing any electricity connection in th ename of defendant no.1 on the said premises.
d) By the decree of the permanent injunction defendants no.1 and 2 be restrained from forcibly dispossessing the plaintiff from the suit property and from tampering the seal put by the defendant no.4.
e) It is also prayed that a decree of declaration be passed in favour of the plaintiff and defendants no.1 and 2 thereby declaring that the alleged cancellation of power of Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 7 of 34 CS No. 1597/16 DOD:28.09.2019 attorney dated 30.08.1998 as communicated by the defendants no.1 and 2 vide notice dated 15.09.2003 is illegal, null and void.
f) Cost of the suit may also be passed in favour of the plaintiff and against the defendants.
11. Summons of the suit were issued to defendants. The defendants no.1 and 2 filed their joint written statement. Defendants no.1 and 2 raised preliminary objections that this court does not have jurisdiction to try and entertain the present suit as the provisions of Section 185 of Delhi Land Reform Act bar the jurisdiction of any court to take cognizance of the suit, applications etc. On the reply on merits it is stated that the MOU dated 08.02.1997 was entered into between the parties but the same was not acted upon by any of the parties. That the property bearing no. D143 and D144, Mahendru Enclave, Delhi was sold by its owners, to defendant no.2 after receiving the sale consideration and the construction was done by the defendants no.1 and 2 from their own fund. It is denied that the flats in the said property were constructed by the parties to the memorandum of Understanding in accordance with the terms of MoU or that the partners are entitled to their share in accordance with MOU. That the wife of the petitioner and sister in law have executed and registered sale documents in favour of the defendant no.1 in respect of above said property after receipt of consideration amount. It is denied that the plaintiff is entitled to a flat as alleged. It is denied that the plaintiff has invested his own amount in the said construction. That the plaintiff has made allegations which are false to their knowledge.
Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 8 of 34CS No. 1597/16 DOD:28.09.2019
12. In their written statement defendants no.1 and 2 have denied any privity of contract or any agreement with the plaintiff qua the suit property. It is stated that the defendant no.2 company is in possession of the suit property. It is denied that the plaintiff is in possession of the suit property or was ever in possession of said property. It is denied that the suit property is under the seal of MCD. It is further stated that the suit property is a khasra land and thus the present suit is barred under Delhi Land Reform Act 1956 as only the Revenu Courts have jurisdiction to decide the subject of the suit. It is stated that under agreement with the original land owners both the plots were purchased by the defendant no.2 company and the flats were raised by the defendant no.2 company with its own funds and resources. That the land owners i.e. Smt. Nirmala Jain and Smt. Meena Jain sold the plots vide customary sale documents i.e. GPA, agreement, Will, receipt and possession letter of their respective plots.
13. It is stated by defendants no.1 and 2 that the compromise application dated 17.09.2001 was got signed from the defendant no.1 under broader compromise but since broader agreement was not acted upon, the application for compromise i.e. I.A. No. 8725/2001 was dismissed as withdrawn vide order dated 15.01.2002. That the broader agreement includes other properties also i.e. the exchange of respective shares of other property no. 2A, Club Road, Delhi of defendant no.1 with flat no. 33, Model Town, Delhi of Shri Niwas Aggarwal and transfer of share of Sh. Amit kUmar in Ashok Vihar property to the defendant no.1 and in Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 9 of 34 CS No. 1597/16 DOD:28.09.2019 consideration thereof the suit flat was to be transferred to the plaintiff. That under the broader agreement an exchange deed, an assignment deed and the power of attorney of the plaintiff were made on 21.09.2001. That the said Shri Niwas backed out and accordingly a suit was filed by the defendant no.1, another by the son of Shriniwas Aggarwal and in between it was revealed that the said Shriniwas has committed forgery and fraud against the defendant no.1 and 2 qua their properties and accordingly criminal cases were filed against him by the defendants no.1 and 2. The defendants no.1 and 2 denied any agreement for sale with the plaintiff or receipt of any amount or any sale consideration from the plaintiff. It is stated that the suit is bad for mis joinder of parties. It is stated that Shriniwas resiled from the settlement and the alleged GPA and 'Will' was not represented for registration. The contents of the plaint were denied.
14. Sh. Pradeep Kumar Pandaya, Advocate on behalf of defendant no.,3 New Delhi Power Limited (NDPL) has apreared on 05.04.2006 and stated that the defendant no.3 does not wish to file written statement.
15. Defendant no.4 the Municipal Corporation of Delhi (MCD) filed written statement stating therein that no relief has been sought against the defendant no.4 nor any cause of action arose against defendant no.4. It is stated that the plaintiff had in connivance and concurrence with defendants no.1 and 2 and other owner of the property bearing no. D143 and 144, Mahendru Enclave, GT Karnal Road, Delhi33 had amalgamated Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 10 of 34 CS No. 1597/16 DOD:28.09.2019 the property no. D143 and D144 of Mahendru Enclave without any sanction or approval from the defendant no.4. It is further stated that the plaintiff, defendant no.1 and 2 and other owners of the flats in property no. D143 and 144, Mahendru Enclave constructed 16 flats/dwelling units through some builder namely Mahveer and subsequent to the construction of the said flats it was found that the owner/builder had carried out the unauthorised construction of basement, ground floor, first floor, second floor and third floor and partition wall at each floor. The said construction was booked by the officials of the building department of Civil Line Zone of MCD for taking action against the defaulter under Section 343/344 of DMC Act vide file no. 264/B/UC/CLZ/98 dated 10.12.1998. That the show cause notice dated 10.12.1998 were issued to the owner/builder for submitting their comments/reply against the said unauthorised construction within three days but no reply was filed, hence demolition orders were passed on 28.12.1998 against the said unauthorised construction. It is stated that the defendant no.4/MCD passed several demolition orders but the owners of the flats filed appeal before the MCD Appellate Tribunal wherein the Appellate Tribunal after taking undertaking from the respective flat owner with the directions to remove unauthorised constructions, set aside the demolition order vide order dated 17.08.2004 until the colony is not regularised. It is further submitted that the Building Department of Civil Line Zone had also initiated sealing action against the said unauthorised construction and accordingly the sealing orders were passed by the competent authority. That some of the flat owners had filed appeal brefore the Appellate Tribunal which was dismissed vide order dated 01.12.2004 Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 11 of 34 CS No. 1597/16 DOD:28.09.2019 and the appeal filed before the Lt. Governor of Delhi was also dismissed vide order dated 06.04.2005. It is stated that the suit property falls in an unauthorised regularised colony and on the physical inspection of site by concerned JE, it was found that the seal of the suit property has been tampered with. It is denied that the suit has been properly valued.
16. The plaintiff filed the replication to the written statement of defendants no.1, 2 and 4(MCD) and denied the submissions made in their written statement and reaffirm and reasserted the plaint and its contents.
17. After completion of pleadings, following issues were framed vide order dated 13.03.2007:
1. Whether there is any agreement to sell between the plaintiff and defendant no.1 and 2? OPP
2. Whether the suit is bad for misjoinder of parties? OPD
3. Whether the suit is barred by limitation? OPD
4. Whether the plaintiff has paid any sale consideration to the defendants no.1 and 2? OPP
5. Whether the suit is barred under the provisions of Delhi Land Reforms Act?OPP
6. Whether the plaintiff is entitled to decree of specific performance? OPP
7. Whether the plaintiff is entitled to decree of declaration? OPP Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 12 of 34 CS No. 1597/16 DOD:28.09.2019
8. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP
9. Relief.
18. It be noted that during pendency of suit, the plaintiff has filed an application IA no. 13589/06 Under order 39 Rule 2 A CPC and Hon'ble High Court vide order dated 24.02.2014 observed that the plaintiff has claimed that on the day of filing of the suit, he was in possession of the suit property and he has been dispossessed by defendants no. 1 and 2 in violation of ad interim status quo orders but the defendants controverts the same. Therefore, the evidence is required to decide the matter of contempt petition i.e. IA no.13589/06. Accordingly vide order dated 24.02.2014 the Hon'ble High Court has framed the following issues on IA no.13689/06:
"1. Whether the plaintiff, on the date of institution of the suit was in possession of the property and has been dispossessed therefrom in violation of the ad interim orders? OPP
2. if the above issue is decided in favour of the plaintiff, to what punishment the defendants are liable? OPD.
3. Relief.
19. It be noted that defendant no.3/NDPL was deleted from array of parties vide order dated 30.08.2018 and defendant no.4/MCD was proceeded exparte vide order dated 03.12.2018.
Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 13 of 34CS No. 1597/16 DOD:28.09.2019
20. It be noted that during the course of trial the plaintiff Sh. Kamal Kumar Jain expired and vide order dated 18.01.2010 passed by Hon'ble High Court the application for substitution of Lrs of deceased was allowed and Lrs of deceased plaintiff were allowed to further proceed in the matter. The legal heirs of the deceased plaintiff in order to prove their case examined Sh. Puneet Jain, son of plaintiff as PW1. He has filed his evidence by way of affidavit Ex. PW1/A and deposed in terms of plaint. The son of the plaintiff has relied upon the following documents.
S.No. Description of documents Remarks
1. GPA dated 30.08.1998 Ex. PW1/1
2. GPA dated 21.09.2001 Ex. PW1/2
3. Will dated 21.09.2011 Ex. PW1/3
4. Legal notice dated 15.09.2003 of Ex. PW1/4
defendant no.1 for cancellation of
GPA
5. Demand note of NDPL qua the Ex.PW1/5.
sanctioned electricity connection
21. PW1 was crossexamined at length. During the course of crossexamination of PW1, following documents were tendered, exhibited and marked by defendants no.1 and 2:
S.No. Description of documents Remarks
1. Copy of MOU dated 08.02.1997 Ex. PW1/D1
2. Certified copy of the written Mark DX
statement filed by Sh. Subh Karan
Jain and Sh. Shriniwas Aggarwal
in suit no.2048/1998
Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 14 of 34
CS No. 1597/16 DOD:28.09.2019
3. Sale papers of plot no. D143 from Ex. D2 to D6
plaintiff Smt. Nirmala Jain to
defendant no.2 company
4. Sale papers i.e. agreement to sell, Ex. PW1/D2 to Ex.
registered GPA, registered Will, PW1/D6
possession letter and receipt, all
dated 24.08.1998 executed by
Smt. Meena Jain in favour of
defendant no.2
5. Certified copy of incorporation Ex.PW1/D7
certificate of defendant no.2
6. Copy of sale papers i.e. GPA, Ex. PW1/8
agreement to sell, SPA, receipt,
affidavit of flat no.12 executed by
defendant no.2 company to Smt.
Meena Jain
7. Certified copy of dismissal of suit Mark Y
no. 1286/06
8. Certified copies of compromise Ex. PW1/D9
application and statement for
settlement by defendants no.1 and
2 with Sh. Santi Kumar Ramsisria
for disposal of suit no., 2048/1998
as settled
9. Orders of Appellate Tribunal MCD Ex. PW1/D10
dated 25.07.2003 for desealing of
flats of building
10 Original deposit slip of electricity Mark X
connection in suit property
22. Thereafter the plaintiff evidence was closed on 03.12.2018. Defendants no.1 and 2 examined DW1 Sh. Prabhat Kumar Singh, defendant no.1 as DW1. He tendered in evidence his evidence by way of affidavit Ex. DW1/A and relied on following documents:
Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 15 of 34CS No. 1597/16 DOD:28.09.2019 S.No. Description of documents Remarks 1. Certified copy of written statemetn Ex. DW1/1 in suit no. 2048/1998 2. FIR no. 241/10 in respect of IA no. Ex. DW1/2 8725/2001 3. Original reply dated 29.09.2006 of Ex. DW1/3 Smt. Nirmala Jain, wife of deceased plaintiff 4. Original reply dated 29.09.2006 of Ex. DW1/4 Smt. Meena Jain, sister in law of deceased 5. Copy of orders of Hon'ble High Ex. DW1/5 Court on writ petition of plaintiff Smt. Nirmala Jain 6. Original deposit slip for electricity Ex. DW1/6 connection 7. Certified copy of dismissal of suit Ex. DW1/7 no.1286/06 filed by Smt. Meena Jain 8. Original complaint against the Ex. DW1/8 and Ex. dispossession attempts by plaintiff DW1/9 9. Certified copies of orders dated Ex. DW1/10 18.09.2011, 26.09.2011, 15.01.2002 and 04.08.2005 and statements of parties in suit no. 2048/1998 10 Copies of the title documents/sale Ex. DW1/11 papers executed by defendant no.1 to Smt. Nirmala Jain
23. DW1 was crossexamined at length by learned counsel for plaintiff. Defendants evidence was closed vide order dated 07.03.2019.
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24. I have carefully perused the material on record and heard the submissions made by Sh.Vikrant Arora and Sh. Ankur Setia, Ld.counsel for plaintiff and Sh.Subhash Chand, Ld.counsel for defendants no.1 and 2.
25. In view of evidence adduced and material on record, my issuewise findings are as under:
ISSUE NO.1
1. Whether there is any agreement to sell between the plaintiff and defendant no.1 and 2? OPP
26. The onus to prove this issue was on plaintiff. The plaintiff has expired during the pendency of suit. Therefore, the plaintiff could not appear in witness box. The son of the plaintiff Sh.Puneet Jain examined himself as PW1 and filed his evidence by way of affidavit Ex. PW1/A and deposed in terms of plaint. However, during his cross examination PW1 has admitted that no written agreement was executed between his deceased father and defendants no.1 and 2 concerning the flat no. 10 at any point of time. PW1 during his evidence has not produced on record any document in the form of agreement to sell executed between the plaintiff and defendants. The plaintiff has relied upon the document Ex. PW1/1 which is General power of attorney dated 30.08.1998 executed in favour of the plaintiff, however, the document Ex. PW1/1 does not contain any terms of agreement to sell. Ex. PW1/2 the GPA dated 21.09.2001 and Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 17 of 34 CS No. 1597/16 DOD:28.09.2019 Ex. PW1/3 is Will dated 21.09.2001 are also not agreement to sell. The plaintiff has not produced on record any receipt or document which could be considered as an agreement to sell executed between the plaintiff and defendants no.1 and 2.
27. The plaintiff has sought the relief of specific performance directing the defendants to execute the sale deed of suit property in his favour. A suit for the relief of specific performance can be based upon an agreement to sell. Therefore, the plaintiff is required to prove the existence of agreement to sell executed between the plaintiff and defendants. Before proceeding further it is necessary to reproduce the relevant provisions of law. Section 2(e) of the Indian Contract Act defines the agreement as 'every promise and every set of promise, forming the consideration for each other is an agreement'. Section 2(h) of the Contract Act gives the definition of the contract. Section 2(h) of the Contract Act defines that 'an agreement enforceable by law is a contract'.
28. The perusal of the interpretation clause of Section (2) of Contract Act for 'agreement' would reveals that there shall be promise or set of promise, forming the consideration for each other is an agreement. Therefore an agreement can be executed only between two persons. The law of contract has the relevance to the doctrine of privity. The doctrine of privity has defined that a contract cannot confer any rights or impose obligations upon any person who is not a party to the contract but the parties to the contract shall be entitled or bound by it. This principle is Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 18 of 34 CS No. 1597/16 DOD:28.09.2019 known as the doctrine of privity of contract. The contracting parties may confer right or benefit upon the 3rd party in the form of promise to pay or to perform service but the third party to whom such right is conferred by the contracting parties, can neither sue under it nor can rely upon evidence based on the contract. At the same time parties to the contract can not impose liability on a third party. A person can not be subjected to burden of contract, to which he is not a party.
29. Section 10 of the Specific Relief Act mention the contract which can be specifically enforced. In an application for specific performance the plaintiff is necessarily required to prove the existence of a valid contract between him and defendants and also that he was ready and willing all the material time, to perform his part of contract. A stranger to the agreement is not entitled to be joined as parties to the suit based upon the contract. Section 10 of the Specific Relief Act has clearly provided that unless there is a legal contract there can be no specific performance.
30. In the present case the plaintiff has relied upon the general power of attorney dated 30.08.1998 executed in his favour, however, the document Ex. PW1/1 does not fulfill the necessary ingredient of Section 2(e) 'agreement' or Section 2 (h) 'contract'. It is clear that the document Ex. PW1/1 GPA dated 30.08.1998 is not an agreement to sell.
31. Secondly the plaintiff has relied upon the general power of attorney and 'Will' dated 21.09.2001 Ex. PW1/2 and Ex. PW1/3. Both Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 19 of 34 CS No. 1597/16 DOD:28.09.2019 these documents also does not fulfill the pre requisite of an 'agreement' or the 'contract' under the provisions of Indian Contract Act.
32. During the course of arguments the Ld.counsel for the plaintiff has fairly conceded that this suit for specific performance is not based upon the document Ex. PW1/1 to Ex. PW1/3. It is categorically submitted by Ld.counsel for plaintiff that the plaintiff is seeking specific performance of the terms and conditions of the compromise application dated 17.09.2001 filed by the defendants in the civil suit no.2048/98 wherein the defendants no.1 and 2 and some other parties have agreed to transfer the suit property in favour of the plaintiff. It is submitted that the compromise application under order 23 Rule 3 CPC bearing no. 8725/01 filed in the civil suit no. 2048/98 is an agreement to sell for which the plaintiff has filed the present suit for specific performance.
33. The defendants have not disputed the filing of civil suit no. 2048/98 by Sh. Shanti Kumar Ramsisaria against the defendant no.1 and other persons. In the said civil suit a compromise application under Order 23 Rule 3 CPC Ex.PW1/10 was filed on 17.09.2001. However, the said application bearing no. 8725/01 has been dismissed as withdrawn by the parties as recorded in the order dated 15.01.2002 by Hon'ble High Court. The perusal of the record and the averments made by the Ld.counsel for plaintiff makes it clear that the plaintiff has filed the suit for specific performance of the terms and conditions contained in the compromise application dated 17.09.2001 which was filed by the parties to Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 20 of 34 CS No. 1597/16 DOD:28.09.2019 the civil suit bearing no. 2048/98 and the same was also withdrawn before the disposal of the civil suit in terms of compromise. It is admitted fact that the plaintiff was not the party to the civil suit no. 2048/98. The plaintiff was also not a party or signatory to the application dated 17.09.2001 under order 23 Rule 3 CPC. It is no doubt true that the name of plaintiff is mentioned as one of the beneficiary in the application under order 23 rule 3 CPC by the parties to the civil suit no. 2048/98, but it is not out of place that the said civil suit was not disposed off in terms of the application under order 23 rule 3 CPC. therefore, it is clear that the parties of the civil suit no. 2048/98 have not acted upon the application under order 23 Rule 3 CPC.
34. The consideration of the averment of the plaintiff regarding enforcement of the terms and conditions of the compromise application, on the touchstone of legal provisions would reveals that the same is not tenable in the eyes of law. Firstly the application under order 23 Rule 3 CPC has been withdrawn before the disposal of the civil suit no. 2048/98, therefore the same does not confer any right upon the parties to seek its specific performance. Secondly the plaintiff was neither the party to said civil suit, nor was he signatory to the application under order 23 Rule 3 CPC. Thirdly the application does not fell within the definition of agreement under Section 2 (e) or Contract under Section 2 (h) of the Indian Contract Act. Fourthly there was no privity of contract between the plaintiff and the defendants (signatory of the application under order 23 Rule 3 CPC). The plaintiff had no legal right to seek specific performance on the basis of application under Order 23 rule 3 CPC as he was third party to the said Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 21 of 34 CS No. 1597/16 DOD:28.09.2019 application.
35. In view of the above it is clear that the plaintiff has miserably fails to prove existence of any agreement to sell executed between him and the defendants. Accordingly issue no.1 is decided against the plaintiff and in favour of defendants.
ISSUE NO.2.
"2. Whether the suit is bad for misjoinder of parties? OPD"
36. The defendants no.1 and 2 in their written statement have raised preliminary objection that the suit is bad for mis joinder of the necessary parties. Plaintiff has filed the present suit against defendant no.3/New Delhi Power Limited and defendant no.4 Municipal Corporation of Delhi has been arrayed as party. The perusal of the plaint would reveal that no cause of action has been pleaded against defendant no.3/NDPL and no relief was sought against defendant no.4/MCD. The name of defendant no.3 has already been deleted from array of parties vide order dated 30.08.2018.
37. Order 1 Rule 9 of the CPC relates to the mis joinder and non joinder of necessary parties. Order 1 Rule 9 CPC has clearly laid down that no suit shall be defeated by reason of misjoinder and non joinder of parties. This rule makes it clear that the mis joinder and non joinder of parties is not fatal to the suit. In the present case it is clear that the suit is Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 22 of 34 CS No. 1597/16 DOD:28.09.2019 bad for misjoinder of parties i.e. defendants no.3 and 4, however,the same is not fatal to the suit of plaintiff because the dispute between the plaintiff and defendants no.1 and 2 can be adjudicated irrespective of fact whether defendants no.3 and 4 have been arrayed or not. In view of the above, this issue is decided against defendants and in favour of the plaintiff.
ISSUE NO.3.
3. Whether the suit is barred by limitation?OPD
38. The plaintiff has filed the present suit for relief of declaration, specific performance and permanent injunction. Law of limitation has provided the limitation for filing the suit for specific performance in Article 54 of Limitation Act. As per Article 54, the limitation for filing the suit for specific performance is 3 years from the date of accrual of cause of action. Article 58 of the Limitation Act provides the limitation for filing the suit for declaration within a period of 3 years from the accrual of cause of action. The Article 113 provide the limitation of 3 years for filing the suit for permanent injunction from the date of accrual of cause of action.
39. The plaintiff has filed the suit for specific performance and during the course of arguments it is fairly conceded by the Ld. counsel for the plaintiff that the suit for specific performance is based upon the terms and conditions mentioned in the application under order 23 Rule 3 CPC filed before Hon'ble High Court on 17.09.2001. The present suit was filed by the plaintiff in the year 2006. The application under order 23 Rule 3 Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 23 of 34 CS No. 1597/16 DOD:28.09.2019 CPC before the Hon'ble High Court has been proved as Ex. PW1/D9. It is not in dispute that the application bearing no.8725/01 in civil suit no. 2048/98 was dismissed as withdrawn on 15.01.2002. .The cause of action based upon the terms and conditions of the application dated 17.09.2001, has arosed on the date of filing of the said application. The cause of action for filing the suit for specific performance further arose on 15.01.2002 when the application was withdrawn. After the withdrawl of the said application under order 23 Rule 3 CPC the plaintiff has noticed the intention of the defendant not to comply with terms and conditions of the said application. It is clear that the suit of the plaintiff is filed beyond the period of three years from the date of filing the application under order 23 Rule 3 CPC or from its withdrawl on 15.01.2002. Therefore in the present facts and circumstances, I am of the considered opinion that the suit filed by the plaintiff for the relief of specific performance is beyond the limitation period from the date of accrual of cause of action.
40. The plaintiff has also sought the relief of declaration that the cancellation of power of attorney dated 30.08.1998 as communicated by the defendants no.1 and 2 vide notice dated 15.09.2003 is illegal, null and void and it is having no consequences. The law of limitation provides a limitation period of three years for filing the suit for declaration. It is admitted fact that the GPA dated 30.08.1998 executed in favour of the plaintiff has been cancelled by the defendants no.1 and 2 and communicated to him vide legal notice dated 15.09.2003. Cancellation of power of attorney has been communicated to the plaintiff by the defendants no.1 and 2 vide Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 24 of 34 CS No. 1597/16 DOD:28.09.2019 notice dated 15.9.2003. Present suit was filed on 16.01.2006 which is within the period of three years from the date of receipt of communication of cancellation of GPA by the plaintiff. Therefore, the suit of plaintiff is within the period of limitation for the relief of declaration as the same is filed within three years from the date of receipt of legal notice dated 15.09.2003.
41. The plaintiff has also filed the suit for the relief of permanent injunction. The plaintiff in para 20 of the suit stated that the defendant no.1 alongwith his some associates on 08.06.2006 came to the suit property and in order to take the possession of the suit property he straightway started tampering with the seal of defendant no.4. PW1 in his evidence by way of affidavit Ex. PW1/A has deposed that that on 08.01.2006 the defendant no.1 alongwith his associates came to the suit property and in order to take the possession of the suit property he straightway started tampering with the seal put by defendant no.4 MCD and also tried to remove the lock put by plaintiff. The present suit is filed on 16.01.2006 which is within 3 years from the date of alleged cause of action pleaded by the plaintiff. Therefore the suit of the plaintiff for the relief of permanent injunction is within the period of limitation.
42. This issue is accordingly decided.
ISSUE NO.4 "4. Whether the plaintiff has paid any sale consideration to the defendants no.1 and 2? OPP"
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43. The onus to prove this issue was upon plaintiff. The plaintiff has put three versions to raise his claim over the suit flat and payment of sale consideration. The plaintiff at one point has claimed that the suit flat was part of 5 flats to be given in lieu of the sale price of the plots sold by his wife and sister in law to the executant of MOU dated 08.02.1997. In the second version the plaintiff has claimed that the suit flat was part of share of Shri Subh Karan Jain under MOU dated 08.02.1997. In the third version the plaintiff has claimed that he has paid the consideration money of the suit flat by contribution in construction. It is alleged by the plaintiff that he contributed in the construction of 16 flats over the said plot through his brother Sh. Subh Karan Jain and the plaintiff through his brother invested in the said project and accordingly suit flat was alloted to him.
44. The plaintiff to prove his case has examined PW1 Sh. Puneet Kumar Jain. The PW1 even though in his evidence has deposed in terms of plaint but during his crossexamination he admitted that his father never paid any money concerning the plots no. D143 and D144 at any point of time. PW1 has not produced any documentary evidence with regard to the consideration amount of the suit flat allegedly paid by the plaintiff. Therefore, in the absence of the documentary proof, I have to examine the oral depositions of Pws regarding the payment of consideration amount.
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45. The plaintiff has given three different versions regarding the payment of consideration amount of the suit property paid to the defendants no.1 and 2. The plaintiff at one point has claimed that the suit flat was part of 5 flats to be given in lieu of the sale price of the plots sold by his wife and sister in law to the partners of MOU dated 08.02.1997, however, the plaintiff has fails to examine either of the executant of MOU dated 08.02.1997. The plaintiff has even fails to examine his wife and sister in law to prove this submission. It is not out of place to mention that the plaintiff has expired during the pendency of the suit and his wife was also substituted as LR of deceased/plaintiff. In the absence of any documentary evidence produced or failure to examine the seller of the property or the executor of MOU, it is crystal clear that the plaintiff has fails to prove that the suit flat was alloted to him in lieu of the sale price of the plots sold by his wife and sister in law to the partners of MOU dated 08.02.1997.
46. The plaintiff has also claimed that the suit flat was part of share of Shri Subh Karan Jain under MOU dated 08.02.1997. The plaintiff has fails to examine any independent witness in this regard. The perusal of the MOU dated 08.02.1997 would reveal that the plaintiff has nowhere been assigned any right, title or interest regarding the suit flat by Sh. Subh Karan Jain.
47. The plaintiff has also claimed that he contributed in the construction of 16 flats over the said plot through his brother Sh. Subh Karan Jain and accordingly suit flat was alloted to him. However, the Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 27 of 34 CS No. 1597/16 DOD:28.09.2019 plaintiff has fails to prove as to how in which manner he is entitled for the share of Sh. Subh Karan Jain. The present suit is not filed by the plaintiff for and on behalf of Sh. Subh Karan Jain. The plaintiff has fails to prove on record any authority, to be entitled for the share of Sh. Subh Karan Jain, therefore, it is clear that the plaintiff has fails to prove that the suit flat was alloted to him under MOU dated 08.02.1997 as share of Sh. Subh Karan Jain.
48. The petitioner has claimed that he contributed in the construction of 16 flats over the said plot through his brother Sh. Subh Karan Jain and therefore the suit flat was alloted to him, but PW1 examined by the plaintiff has nowhere claimed himself to be witness of such contribution made by the plaintiff for the construction of 16 flats. The petitioner has not brought on record any document regarding payment of contribution for the construction of 16 flats over the property in question. In the absence of any documentary evidence or the oral evidence produced by the plaintiff in this regard, I have no hesitation to hold that the plaintiff has fails to prove this version also.
49. In view of the above, I am of the considered opinion that the plaintiff has fails to prove issue no.4 regarding payment of consideration amount. Accordingly issue no.4 is decided in favour of defendants no.1 and 2 and against the plaintiff.
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ISSUE NO.5
"5. Whether the suit is barred under the provisions of Delhi Land Reforms Act?OPP"
50. The defendants in the present suit have also claimed that the suit property is a Khasra land where no sale deed can be executed. Hence the suit is barred under the provisions of Delhi Land Reforms Act.
51. The plaintiff or the defendants have not produced any material on record which proves that the suit property is governed by the provisions of Delhi Land Reforms Act. PW1 during his crossexamination has admitted that sale deed could be executed in respect of any property situated in Mahendru Enclave. However, no evidence in this regard is produced. The admission of PW1 could not be a substitute for the application of legal provisions. The plaintiff or the defendants have fails to bring on record any material evidence which establishes that the suit property is governed by Delhi Land Reforms Act. In the absence of the same it could not be held that the suit is barred under the provisions of Delhi Land Reforms Act. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO.6
"6. Whether the plaintiff is entitled to decree of specific performance? OPP"
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52. In view of findings on issue no.1 and 4 it is clear that the plaintiff has fails to prove the execution of any agreement to sale with the defendants no.1 and 2, or payment of consideration amount. Hence, in view of findings on issue no.1 and 4, the plaintiff is not entitled for the decree of specific performance. The issue no.6 is accordingly decided against the plaintiff and in favour of defendants no.1 and 2.
ISSUE NO.7.
"7. Whether the plaintiff is entitled to decree of declaration? OPP"
53. The petitioner has prayed for the decree of declaration that the cancellation of power of attorney dated 30.08.1998 Ex. PW1/1 as communicated by the defendants no.1 and 2 vide notice dated 15.09.2003 is illegal, null and void and it is having no consequences.
54. The GPA executed in favour of the plaintiff is proved by PW1 as Ex. PW1/1. The legal notice dated 15.09.2003 is not disputed by the defendant. Section 201 of Indian Contract Act defines the revocation of the authority. Section 201 of the Indian Contract Act clearly states that principal has power to revoke. The general rule is that the validity of an agency whether conferred by power of attorney or not formally may be revoked by its principal. Section 202 of Indian Contract Act creates an exception for termination of the agency. Section 202 of Contract Act lays Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 30 of 34 CS No. 1597/16 DOD:28.09.2019 down that where a person himself has an interest in the property which forms the subject matter of the agency, the agency can not, in absence of an express contract, be terminated to the prejudice of such interest. It is clear from the above provision that the defendant was having legal right to revoke the GPA Ex. PW1/1. The plaintiff has fails to prove that the GPA Ex. PW1/1 was coupled with consideration and falls within the exception under Section 202 of Indian Contract Act. The defendants no.1 and 2 have cancelled the GPA Ex. PW1/1 by a valid document and duly communicated the withdrawl of the said GPA to the plaintiff vide a legal notice Ex. PW1/4. It is clear that the plaintiff could not establish any legal ground against cancellation of GPA Ex. PW1/1 by the defendants. Therefore the plaintiff is not entitled for the decree of declaration, as such. This issue no.7 is accordingly decided in favour of the defendants and against the plaintiff.
ISSUE NO.8 "8. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP"
55. The plaintiff has prayed for the relief of permanent injunction. However, the relief of injunction against defendant no.3/NDPL was withdrawn by the plaintiff on 30.08.2018. The only relief remains pending for adjudication is that the defendants be restrained not to temper with the seal, put by MCD and not to enter into the property in question.
56. The plaintiff, for being entitled for the decree of Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 31 of 34 CS No. 1597/16 DOD:28.09.2019 permanent injunction has to prove his possession over the suit property. The PW1 examined by the plaintiff could not produce any documentary evidence which establishes the possession of the plaintiff over the suit property on the date of filing of suit. PW1 in his crossexamination has clearly admitted that the defendant no.2 was in physical possession of the property in question at the time of filing of suit. PW1 has also admitted that he can not produce any document to prove that the physical possession of the suit property was ever handed over to plaintiff. There is also categorical admission of the PW1 that he can not produce any document to show that the defendant no.1 has tried to remove the lock of the property at any point of time. The onus to prove this issue was on plaintiff but the plaintiff by way of oral or documentary evidence has fails to prove his possession over the suit property at the time of filing of suit. In the failure of the plaintiff to prove his possession over the suit property on the date of filing of the suit, he is not entitled for relief of permanent injunction as prayed for. Accordingly this issue no.8 is decided against the plaintiff and in favour of defendants.
ISSUE NO.9(RELIEF)
57. In view of aforesaid findings on the issues, I am of the considered opinion that the plaintiff is not entitled for the relief of specific performance, declaration and injunction. The plaintiff is not entitled to any of the relief claimed. Accordingly suit filed by the plaintiff is dismissed with cost. A decree sheet be prepared accordingly, as per rule.
58. Findings on issues framed vide order dated 24.02.2014 Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 32 of 34 CS No. 1597/16 DOD:28.09.2019 by the Hon'ble High Court in IA no.13689/06:
ISSUE NO.1 "1. Whether the plaintiff, on the date of institution of the suit was in possession of the property and has been dispossessed therefrom in violation of the ad interim orders? OPP"
59. In view of findings on issue no.8 in the main suit, it is clear that the plaintiff was not in physical possession of the suit property. The plaintiff has also not proved that he has been dispossessed. Since the plaintiff has not proved his possession on the suit property on the date of institution of suit, as held in issue no.8 in the main suit. Therefore this issue is decided in favour of defendants no.1 and 2 and against the plaintiff.
ISSUE NO.2 "2.if the above issue is decided in favour of the plaintiff, to what punishment the defendants are liable? OPD".
60. In view of findings on issue no.,1 in IA no.13689/06 (supra), this issue has become infructuous.
ISSUE NO.3(RELIEF)
61. In view of findings on issues no.1 and 2, the contempt application i.e. IA no.13689/06 filed by plaintiff is dismissed.
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62. File be consigned to record room after completion of necessary formalities. DEVENDER Digitally signed by DEVENDER Announced in the open KUMAR KUMAR JANGALA Date: 2019.10.01 Court on 28.09.2019 JANGALA 12:13:20 +0530 (Devender Kumar Jangala) Additional District & Sessions Judge Presiding Officer, MACT2 (North) Rohini Courts, Delhi Certified that above judgment contains pages and each page is signed by me.
(Devender Kumar Jangala) Additional District & Sessions Judge Presiding Officer, MACT2 (North) Rohini Courts, Delhi Kamal Kumar Jain Vs. Prabhat Kumar Singh & Ors. Page 34 of 34