Delhi High Court
Ganesh Prasad Seth vs Karam Chand Thapar And Ors. on 22 May, 1998
Author: Arun Kumar
Bench: Arun Kumar, M.S.A. Siddiqui
JUDGMENT Arun Kumar, J.
1. This appeal is directed against the judgment of learned Single Judge of this Court dated 4th February, 1997, dismissing an application (I.A.No. 9849/94) filed by defendant No.1 in the suit. The plaintiff in the suit is respondent No.1 in this appeal. Since the main relief in the application was sought against the plaintiff, notice in this appeal was confined to respondent No.1.
2. We have heard the learned counsel for the parties at length. In order to appreciate the controversy in the appeal a reference to certain basic facts is necessary.
3. The appellant is the owner of 1/3rd share of property No. 85-A, Panchkuan Road, New Delhi. The other 2/3rd share in the property belongs to the respondents 2 to 4. The appellant entered into an agreement dated 27th July, 1987 with respondent No.1 regarding sale of certain portions of the multistoried building which was being constructed on the said plot by the appellant. The agreement entered into by the appellant was with respect to his 1/3 rd share in the property. The agreement contains recitals to the effect that the land use in respect of the property had been changed to commercial pursuant to the provisions of Delhi Development Act and notification No. K-13011/15/79 dated 22nd April, 1983. It is further stated New Delhi Municipal Committee vide its letter No. 2068/CA/RP dated 22nd July, 1983 sanctioned the building plan for construction of multistoried Commercial Complex in the name of "RISHYAMOOK" on the said plot. The Land and Development Officer had also granted permission to construct a multistoreied commercial building on the said property. Reference has also been made to a compromise arrived at between the appellant and respondents 2 to 4 who are none other than the appellant's own father, mother and sisters, in Suit No. 232/83 in this Court, in pursuance whereof the appellant was given 33% share in the said property for self and as karta of his smaller Hindu Undivided Family. In pursuance of the said compromise the parties agreed to construct separately in their respectively portions of the plot and were free to sell the same or any part thereof. Accordingly the appellant constructed a building in his 33% portion of the said plot. The building consists of two basements, ground floor and three upper floors.
4. Respondent No.1 agreed to purchase a substantial part of the said entire multistoreied building constructed by the appellant vide the said agreement dated 27th July, 1987. On January 11, 1988 another agreement to sell was executed between the parties wherein respondent No.1 agreed to purchase his entire 3rd floor of the proposed building and open space for parking six cars. The net result is that respondent No.1 has practically purchased about 75% of the entire multistoreied building constructed by the appellant while the rest remained with the appellant.
5. Respondent No.1 filed a suit for specific performance in this Court being Suit No. 1373/91. In the said suit a consent order was passed on 17th July, 1992 whereby on compliance of certain conditions by the plaintiff in the suit, i.e. , respondent No.1 in the present appeal, vacant physical possession of the following portions of the property was agreed to be handed over by the appellant to respondent No. 1. The details of the portion of which possession was to be handed over to respondent No.1 by the appellant are:-
DETAILS OF PROPERTY
1. Upper basement: Covered car parking space for eight cars - area 1200 sq. ft.
2. Lower basement: 1017 sq. ft. area.
3. Ground floor : 655 sq. ft. area.
facing main Panchkuian Road
4. Complete first floor
5. Complete Second floor
6. Complete third floor."
6. This appears to have been complied with and the possession has been delivered to respondent No. 1. The controversy in the present appeal relates only to the open parking space inside the building compound. Respondent No. 1 has already purchased open space for parking six cars in this area which it is entitled to use exclusively. The appellant moved an application I.A No. 9849/94 in the suit for specific performance of the agreement filed by respondent No.1 for aninterim injunction against the plaintiff in the suit, i.e., respondent No.1 herein restraining it from using or occupying the space in the open car parking area in excess of what was agreed to be sold to it. It was alleged that as per the agreement to sell dated 27th July, 1987 and 11th January, 1988 besides portions of the building in dispute, covered parking space for eight cars and parking space for six cars in the open parking area were agreed to be sold to the plaintiff and in pursuance to the court's order dated 17th July, 1992, the possession of those areas of the building was given to the plaintiff by defendant No.1/appellant. The grievance of the appellant was that after taking pos+session of the premises the plaintiff/respondent No.1 tried to grab additional area in the open parking space and started parking cars of his visitors in the open parking space belonging to the appellant/defendant No.1 in the suit. Defendant No.1 sought a restraint order against the plaintiff so that the plaintiff could not use rest of the open car parking space. The application was resisted by the plaintiff/respondent No.1 on the ground that the rest of the open parking space like certain other common areas in the property was meant for common use and defendant No.1 could not claim exclusive user thereof. It was stated that although in the agreement what was purchased by the plaintiff was mentioned, yet the recitals in the rest of the agreement made it clear that the plaintiff was entitled to the user of common areas and facilities such as passage, staircase, lifts etc. The said application of defendant No.1 was dismissed by the learned single Judge vide impugned order dated 4th February, 1997. The learned Single Judge mainly relied on the terms of the agreement between the parties to reach his conclusion.
7. During the course of hearing of the present appeal besides reliance placed on the agreement between the parties, the learned counsel for defendant No.1 also relied on certain provisions of the Delhi Apartment ownership Act, 1986 urge that in view of the said provisions the appellant was not entitled to seek the relief prayed by him in his application before the learned Single Judge or in the present appeal. On the other hand the thrust of the argument on behalf of the appellant was that the plaintiff/respondent No.1 was only entitled to use whatever was agreed to be sold to it as per the agreement and nothing more. Particularly with reference to the open car parking space it was argued that the fact that car parking space for six cars was sold to the plaintiff for its exclusive use shows that the rest of the car parking space inside the building boundary wall, i.e., within the compound of the building was retained by the owners and the plaintiff was not entitled to use the same. It was also argued on behalf of the appellant that the provisions of the Delhi Apartment ownership Act, 1986 did not apply to the facts of the present case.
8. So far as the relevant provisions of the agreement to sell entered into between the parties are concerned, the learned counsel for defendant No.1 placed reliance on:-
"2. Rates specified above in respect of first and second floors are for what is commonly known as 'SUPER AREAS' (i.e. for the covered area including walls and cupboard and window projections and balconies) plus proportionate share of area under passages, staircases, common area walls, lifts, on each floor, space taken by Electric Sub station, water supply and other common facilities etc. will be shared by all flat owners while computing their area, exclusive open terrace/spaces where provided, will be charged extra.
9. The multistoreyed building being constructed will be of RCC frame structure and of first class specification and shall be as per conditions set out in the Annexure to this Agreement.
".... and the Vendor agree and undertake to do all necessary acts, deeds and things for conveying and transferring the said floors/space together with an undivided interest in the common areas and facilities appurtenant to the said floors/space in favour of the Purchaser."
18. The Purchaser will have full right, title and interest in respect of the said floors/space and the use thereof. The Vendor hereby agrees and declare that as and when the Delhi Apartment ownership Act, 1986 comes into force in Delhi the Vendor shall execute and register the Deed of Apartment in respect of the said floors/space and an undivided interest in the common areas and facilities appurtenant to the said floors/space in terms of the said Act. Further the Vendor agree and declare that the Purchaser shall have equal rights to the common areas and facilities, such as use of passage, staircase, lifts, etc. with the owners of other Apartments.
21. The provisions of the Delhi Apartment ownership Act, 1986 and the rules and regulations made thereunder shall have effect, notwithstanding anything contained in any other law for the time being in force and/or instrument to the contrary or inconsistent therewith and shall be binding on the Vendor and the Purchaser."
9. Besides the above provisions, reliance has also been placed on the following portion of SCHEDULE 'C' to the agreement which is as under:-
SCHEDULE 'C' Covered Open Parking Areas
1. 4 Nos. covered parking spaces in the lower basement; and
2. 6 Nos. open reserved parking space in the reserve parking are, all incidental and appurtenant rights regarding the use of common pathways, passages, stairs cases, lifts and the like.
10. Further clause (14) of the ANNEXURE containing general specifications of the "RISHYAMOOK" Commercial Complex was also relied upon:
"14. The building will provide ample outdoor car parking facilities."
11. On the strength of the above provisions it was submitted on behalf of respondent No.1 that the open car parking space constitutes the several other common facilities available in the building to be shared by all the flat owners. Since clause (9) of the agreement to sell dated 27th July, 1987 makes the ANNEXURE to the said argument part of it, it is important to note that there is a promise from the side of the builder that the building will provide ample car parking facilities. It was submitted that denial of the use of the open car parking area to the plaintiff/respondent No.1 will be in violation of the said condition of the agreement. Agreement to sell itself contains a promise from the vendor, i.e., the appellant to the vendee, i.e., the appellant to the vendee, i.e., respondent No.1 that the vendor undertook to do all necessary acts, deeds and things for conveying and transferring the floors/space together with undivided interest in the common areas and facilities appurtenant to said floors/ space in favour of the purchaser. This promise is contained in clause 11(A) of the agreement to sell. Reference to undivided interest in common areas and facilities appurtenant to the floors/space includes the facility of open car parking area which is meant for common use. As per clause 18 of the agreement which has been extracted hereinabove, the vendor agreed and declared that the purchaser 'shall have' equal rights to the common areas and facilities such as use of passage, staircase, lifts etc. with the owners of other partments.
12. The submissions made on behalf of respondent No.1 are really based on the relevant terms of the agreement entered into between the parties. The agreement is an admitted document and there is no dispute about the existence of the aforesaid terms which are relied upon by respondent No.1. The only dispute raised by the learned counsel for the appellant is regarding interpretation of the above provisions. It is submitted that the above provisions did not confer any right on the plaintiff/respondent No.1 to use the rest of the open car parking space. Respondent No.1 purchased open car parking space for six cars and its user of the open car parking was restricted to the said car parking space for six cars. We are unable to accept this interpretation being put on the aforesaid clauses of the agreement by the learned counsel for the appellant. We are of the view that the aforesaid clauses leave no scope for the argument being advanced on behalf of the appellant. In the agreement the appellant held out a promise and made a declaration by way of clause (14) of the ANNEXURE to the effect that the building will provide ample outdoor car parking facilities. If this clause has to be given any meaning, the only meaning can be that the open car parking space has to be available for common use. If there happens to be available some car parking space outside the building boundary wall on the road or on the NDMC land, that cannot be considered for purposes of the said clause 14 of the ANNEXURE. Clause 14 runs - building will provide ample outdoor car parking facilities. If the building has to provide this, it has to be within the boundary walls of the building and not on public land. This can be the only meaning and interpretation of the said clause. The use of the words common area, common wall, common facilities in various other clauses in the agreement and in SCHEDULE 'C' to the agreement highlights the fact that there have to be common facilities and common areas, common passages, common pathways in the building meant for common use. The open car parking space is one of such common facilities and the appellant cannot claim exclusive use thereof. In this view of the matter the argument on behalf of the appellant that in view of the SCHEDULE 'C' to the agreement, the general provisions of clause 2 of the agreement will not apply is not tenable. We are unable to find any inconsistency between the two provisions of the agreement. Even in SCHEDULE 'C' reference has been made to rights regarding use of common pathways, common passages, common staircase, common lifts and the wall. The words "and the like" show that the definition is not exhaustive and is not confined to the words used in the clause, but can include other things also.
13. Next, the learned counsel for the respondent No.1 relied on the provisions of the Delhi Apartment ownership Act, 1986 to contend that the apartment owners have definite statutory rights in the common facilities in a multistoried building. Clause (j) of Section 3 of the Act refers to "common areas and facilities", in relation to a multistoreied building. It says - (iii) the basements, cellars, yards, gardens parking areas, shopping centres, schools and storage spaces. This means that parking areas fall within the definition of common areas and facilities. Besides this, Section 4 of the Act refers to ownership of apartments. Sub-section(4) is particularly relied upon in this behalf which provides:-
"(4) (a) The percentage of the undivided interest of each apartment owner in the common areas and facilities shall have a permanent character, and shall not be altered without the written consent of all the apartment owners;
(b) the percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment, even though such interest is not expressly mentioned in the conveyance or other inment.
(6) Each apartment owner may use the common areas and facilities in accordance with the purposes for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners."
14. A reading of the above provisions of the Act shows that the apartment owners have a definite specific interest in the common areas and facilities which form part of the building and they cannot be deprived of the same. These rights cannot be altered without written consent of all the apartment owners.
15. In answer to this, the learned counsel for the appellant relied on Section 6 of the Act to say that respondent No.1 could not claim any interest in the building by virtue of the provisions of the Act because it had failed to pay the full consideration. Secondly, it was argued that in the peculiar facts of the case, the Act even otherwise was inapplicable. Relying on the definition of "apartment" in clause (c) of Section of the Act, it was stated that in the building in question it has to be held that there 3 are only two apartments because the entire building is owned by only two parties, i.e., the appellant and respondent No.1.
16. In our view both these arguments are not tenable. So far as the question of payment of entire consideration is concerned, the matter is subjudice and by virtue of a consent order dated 17th July, 1992, certain payments were ordered to be made by respondent No.1 to the appellant as acondition precedent to the delivery of possession of portions of the property agreed to be sold by the appellant to respondent No.1. Therefore, in our view the argument based on Section 6 of the Act cannot be entertained. The second argument about non-applicability of the Act in view of the fact that there are only two parties which own the entire building, the same appears to be totally misconceived in view of the appellant's own declaration at several places in the agreement to sell that the provisions of the Act are applicable. Particularly reference is invited to clause 21 of the agreement to sell extracted hereinbefore. Another aspect to be noted in this connection is that the appellant himself always held out that it was a multistoreied commercial complex. This point is, therefore, not open to the appellant. Even while applying for sanction of the building plans etc. the appellant held out before the authorities that he proposed to construct a multistoreied building on the plot.
17. For all these reasons, we find no merit in this appeal. The appeal is dismissed leaving the parties to bear their respective costs.