Delhi District Court
Sh Ajay Mehra vs Shailendra Chaturvedi on 22 May, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS No. 12828/16
In re :-
Sh Ajay Mehra
S/o Sh
R/o First /floor,
F-10/11, Vasant Vihar,
New Delhi. .................... Plaintiff
Versus
1. Shailendra Chaturvedi
R/o Ground Floor
F-10/11, Vasant Vihar,
New Delhi.
2. Rupendra Chaturvedi
R/o Ground Floor,
F-10/11, Vasant Vihar,
New Delhi ..........Defendants
Date of institution of present suit : 19.07.1995
Date of receiving in this Court : 29.01.2016
Date of hearing arguments : 12.04.2017
Date of Judgment : 22.05.2017
SUIT FOR PERMANENT INJUNCTION AND SPECIFIC
PERFORMANCE
II Counter Claim No. 620925/16
In re :-
1.Shailendra Chaturvedi
R/o Ground Floor
F-10/11, Vasant Vihar,
New Delhi.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 1 of 46
Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra
CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr..
Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
2. Rupendra Chaturvedi
R/o Ground Floor,
F-10/11, Vasant Vihar,
New Delhi .......Counter Claimants/Defendants
VERSUS
Sh Ajay Mehra
R/o First /floor,
F-10/11, Vasant Vihar,
New Delhi. ...........Respondent/Plaintiff
Date of institution of present suit : 06.04.1996
Date of receiving in this Court : 29.01.2016
Date of hearing arguments : 12.04.2017
Date of Judgment : 22.05.2017
COUNTER CLAIM FOR DEFENDANTS AGAINST THE PLAINTIFF
BY WAY OF SUIT FOR RECOVERY OF RS. 8,65,000/- AS
COMPENSATION/DAMAGES, SPECIFIC PERFORMANCE AND
MANDATORY INJUNCTION.
III CS No. 11256/16
In re :-
1.Ms. Rekha Mehra
(dead through LR)
1A. Ajay Mehra(Husband)
R/o First /floor,
F-10/11, Vasant Vihar,
New Delhi.
1B. Kunaljit Mehra(Son)
S/o Sh. Ajay Mehra
R/o First Floor,
F-10/11, Vasant Vihar,
New Delhi. ........ Plaintiffs
Versus
1.Shailendra Chaturvedi
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 2 of 46
Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra
CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr..
Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
R/o Ground Floor
F-10/11, Vasant Vihar,
New Delhi.
2. Rupendra Chaturvedi
R/o Ground Floor,
F-10/11, Vasant Vihar,
New Delhi .......... Defendants
Date of institution of present suit : 19.07.1995
Date of receiving in this Court : 29.01.2016
Date of hearing arguments : 12.04.2017
Date of Judgment : 22.05.2017
SUIT FOR PERMANENT INJUNCTION AND SPECIFIC
PERFORMANCE
IV Counter Claim No. 620924/16
In re :-
1.Shailendra Chaturvedi
R/o Ground Floor
F-10/11, Vasant Vihar,
New Delhi.
2. Rupendra Chaturvedi
R/o Ground Floor,
F-10/11, Vasant Vihar,
New Delhi ..........Counter Claimants/Defendants
VERSUS
1.Ms. Rekha Mehra
(since deceased through LR)
1A. Ajay Mehra(Husband)
R/o First /floor,
F-10/11, Vasant Vihar,
New Delhi.
1B. Kunaljit Mehra(Son)
S/o Sh. Ajay Mehra
R/o First Floor,
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 3 of 46
Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra
CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr..
Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
F-10/11, Vasant Vihar,
New Delhi. .......Respondent/Plaintiff
Date of institution of present suit : 06.04.1996
Date of receiving in this Court : 29.01.2016
Date of hearing arguments : 12.04.2017
Date of Judgment : 22.05.2017
COUNTER CLAIM FOR DEFENDANTS AGAINST THE PLAINTIFF
BY WAY OF SUIT FOR RECOVERY OF RS. 65,000/- ALONG WITH
INTEREST, SPECIFIC PERFORMANCE AND MANDATORY
INJUNCTION.
JUDGMENT
1. Vide this common judgment two suits filed by two different plaintiff (husband and wife) and two Counter Claim filed by common defendants shall stand disposed of. Plaintiff Ajay Mehra filed suit bearing No. 12828/16 against defendants. Similarly, Rekha Mehra wife of above said Ajay Mehra filed another suit bearing No. 11256/16 against the same very defendants. Defendants in both suit have filed Counter Claims which have been registered separately bearing No. 620925/16 and 620924/16 respectively. Facts are common and intermingling. Same issues have been framed in the both suits and counter claims. Consolidated evidence have been led.
2. Wherever the term "plaintiff" has been used in the body of judgment it has been used in the sense of plaintiff in their respective suits and wherever the word "plaintiff" was not found adequate to represent the concerned plaintiff specific name of the plaintiff has been used. Similarly, defendants is meant defendants for both the suits as well as the counter-claims. It is also worthwhile to note that during pendency of the case Smt. Rekha Mehra expired and in her place Sh Ajay Mehra and her son were brought on record.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 4 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
3. Brief facts of the case are that each plaintiff Ajay Mehra and Rekha Mehra of the respective suits entered into an agreement with defendants on the same day 21.06.1993 vide which Ajay Mehra agreed to purchase and defendants agreed to transfer convey their all rights, title interest in respect of the front portions of first floor of the property, F-10/11, Vasant Vihar, New Delhi (hereinafter entire property bearing No. F-10/11 has been referred to as the suit property). Similarly, Rekha Mahra agreed to purchase and defendants agreed to transfer convey their all rights in respect of the rear portion of the first floor of the suit property. It is worth noting here that only ground floor was existing and what was agreed to be sold to Ajay Mehra was the right to raise construction on the entire first floor and all right, title and interest in the front portion of the to be raised construction on the first floor along with proportionate rights over the common area against the consideration of Rs 5,00,000/- and cost of construction of the first floor and second floor (which was to belong to defendants) apart from cost of rectification to the damaged/affected area (on the ground floor) that may be caused as a result of the construction on the first floor and second floor. Rekha Mehra was agreed to be sold all the right, title and interest in the to be raised construction on the rear of the first floor of the suit property, along with proportionate rights over the common area against consideration amount of Rs 9,00,000/-.
4. It has been mentioned that defendants hold leasehold rights in plot no. F-10/11, Vasant Vihar, New Delhi in the layout plan of Government Servant Cooperative House Building Society Ltd. at Vasant Vihar, New Delhi admeasuring 406 Sq. Yards. It has been further mentioned that plot was alloted to late Sh. S. K. Chaturvedi by virtue of perpetual sublease deed dated 20.01.1970 between the CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 5 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra President of India and the allottee late S. K. Chaturvedi and the said lease is registered in the office of Sub-Registrar, New Delhi. It has been further mentioned that Late S. K. Chaturvedi got built the ground floor on the said plot and after the demise of S. K. Chaturvedi the defendants succeeded to the said property and got property mutated in their names in the records of the DDA and Government Servants Cooperative House Building Society.
5. It has been further mentioned that when the property was sought to be sold to the each plaintiff it was represented to respective plaintiff that the defendants were absolute owners of the said property and that they were competent to and had absolute and unfettered right to dispose off the said property. It has been further mentioned that at the time of entering into the agreement to sell, the defendants had represented to the plaintiff that the ground floor of the said property was constructed in accordance with plans and was as per the specifications approved by the competent authority but plaintiff was not aware of illegal/unauthorised construction raised by the defendants on the ground floor. It has been mentioned that on the said date, vide said agreements to sell, the defendants agreed and offered to transfer, convey, sell and assign all their rights, title, share and interest in part of the first floor rear portions and front portion approximately terrace rights to be constructed on the first floor level in the said property to the Rekha Mehra and Ajay Mehra respectively on the payment of agreed amount.
6. It has been further mentioned that vide said agreement to sell, defendant and plaintiff agreed that Ajay Mehra shall construct a part of the first floor and second floor on the existing ground floor at his own cost and on payment of the agreed consideration and after CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 6 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra completion of construction of the front and rear part of first floor as described in the plan would belong to the Rekha Mehra and Ajay Mehra respectively whereas the second floor would revert back to the defendants. It was agreed that the Ajay Mehra would pay a sum of Rs.5 Lakh in respect of the front portion of the first floor to be constructed by him apart from the cost of the construction and repairs of the damaged/affected area on the ground floor. It has been mentioned that Rekha Mehra was to pay Rs 9 Lakhs out of which had paid Rs. 8.5 Lakh to the defendants through cheques drawn on PNB, Green Park, New Delhi and balance sum of Rs.50,000/- was paid on 15.09.1994 vide cheque No.018860 drawn on ANZ Grindlays bank, New Delhi and all the payment due to the defendants under the agreement with Rekha Mehra has been paid by the Rekha Mehra thus entirely discharging her part of the performance.
7. Similarly, Ajay Mehra in his plaint has pleaded that he has paid a sum of Rs. 4 Lakh and has raised construction on the first floor and second floor at his own cost as he was required under his agreement with defendants and he was ready with the balance amount of Rs.1 Lakh. It has been further mentioned that vide the said agreement it was specifically agreed that on completion of the construction and payment of the agreed sale consideration including share of conversion fee, plaintiff shall be entitled to retain physical possession of the front and rear portion/first floor of the first floor of this property as of right and shall be at a liberty to let out the first floor portion of the said property to any tenant for residential purpose only.
8. It has been further mentioned that in the said agreement it was agreed that on the payment of the said consideration of Rs.9 lakh (in the case of Rekha Mehra) and consideration of Rs.5 Lakh and after CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 7 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra completion of construction of the second floor (in the case of Ajay Mehra), the plaintiff or anyone on their behalf shall be entitled to remain in peaceful and uninterrupted possession of the first floor which belong to the plaintiff. It has been further mentioned that Ajay Mehra would complete the construction of the first floor upon which the possession would remain with the plaintiff and the said construction was completed in September 1994 and the payments having been made towards the consideration as agreed, the plaintiff occupied and continued to occupy the first floor of the said premises. It has been further mentioned that plaintiff on discharging their respective part of the obligation under the agreement continued to be in possession of the first floor of the suit property and maintain a residential house therein with two children in part performance of their respective agreements to sell. It has been further mentioned that as per said agreement the plaintiff had agreed to pay and paid, 1/6 share of conversion fee payable to DDA for converting the said property from leasehold rights to freehold rights. It has been further mentioned that plaintiff also requested the defendants that if the need be, plaintiff be authorised by defendants to do the needful with regard to the freehold conversion but defendants continued to ignore their request and neglected to perform the obligations undertaken by them.
9. It has been further mentioned that on 09.07.1995 the plaintiff had gone to Ludhiana for the operation to be performed on the mother of the Ajay Mehra and plaintiff returned to Delhi on 13.07.1994 only to be harassed further by the defendants. Rekha Mehra while using the passage of ground floor was even manhandled in the presence of the tutor of the daughter of the defendant no. 1, by the wife of the defendant no. 1 leading to some small injuries. It has been further mentioned that plaintiff apprehends that defendants have CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 8 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra intention of erecting permanent obstruction in order to oust plaintiff from possession and enjoyment of the property. Hence, the present suit.
10. Upon service of summons, defendant appeared and filed written statement and raised preliminary objections thereby stating that plaintiff has not approached this court with clean hands; that plaint is liable to be dismissed under Order 7 Rule 11 CPC since the suit has been under valued; that the consideration under the agreement with Ajay Mehra comprised of an amount of Rs. 5 Lakh cost of construction of 2nd floor in accordance with the sanctioned plans by the plaintiffs at his own cost for the defendants and repairs to the damaged/affected portions of ground floor as a result of construction carried out by the plaintiff whereas consideration under the agreement with Rekha Mehra comprised of Rs 9 Lakhs and repairs repairs to the damaged/affected portions of ground floor as a result of construction carried out by the plaintiff; that plaintiff is not entitled to possession of the first floor which can only be handed over to Ajay Mehra on completion of construction and to Rekha Mehra on rectification/removal of all defects on the ground floor as a result of construction carried out by the plaintiff.
11. It has been further mentioned that whatever construction has been done by the plaintiff is in gross violation/deviation of the sanctioned plan, posses a serious safety and health hazard to the life and limb of all the residents of the building and the same is not acceptable to the defendants; that Ajay Mehra is liable to pay compensation inter alia on account of delay in construction and inconvenience to the defendants; that there is no cause of action in favour of Ajay Mehra as the construction not having been completed as required under the agreement and no cause of action arose in favour of Rekha Mehra as rectification of damaged/affected area has not been CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 9 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra carried out: that the plaintiff has no right to possession of the first floor which right will arise in favour of Ajay Mehra only on completion of first and second floor and removal/rectification of all damages to the ground floor on account of construction carried out by the plaintiff: that Rekha Mehra has no right of possession as removal/rectification of all damages to the ground floor has not been carried out.
12. On merits, defendants have admitted about the entering into the agreements with Ajay Mehra and Rekha Mehra separately on 21.06.1993 for the front and rear portion of the to be constructed portion on the first floor. It was submitted that plaintiff did not annex complete copy of said agreement including annexures; that ground floor of the said property has been constructed in accordance with the plan and there is no illegal/unauthorised construction on this floor. It has been submitted that consideration visualised in the agreement with Ajay Mehra comprised of a specified amount of Rs 5 Lakhs, repairs to the ground floor that may have been damaged/affected as a result of construction and also, construction of second floor in accordance with the sanctioned plans for the defendants.
13. It has been further submitted that consideration visualised in the agreement with Rekha Mehra comprised of a specified amount of Rs 9 Lakhs and repairs to the ground floor that may have been damaged/affected as a result of construction. It has been further submitted that only after the aforesaid consideration was paid/made to the defendants that the possession of the first floor was to be handed over to the plaintiff. It has been further pleaded that defendants have received Rs 4 Lakhs from Ajay Mehra and Rs 8.5 Lakhs from Rekha Mehra.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 10 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
14. It has been further submitted that Ajay Mehra in addition to agreed amount was obliged to carry out the construction of the 2 nd floor in accordance with the sanctioned plans as provided under the said agreement. Plaintiff was also obliged to carry out repairs to the damaged/affected portions of the ground floor, however, cash amount has been paid but the other parts of the consideration namely construction of second floor and repairs to be damaged/affected portions of the ground floor has not been completed. It has been further submitted that construction having been delayed by the plaintiff, the defendants have been put to a loss of interest on the residual sum of Rs. 1 lakh (Rs 50,000/- in the case of Rekha Mehra) which is being claimed, amongst others, by way of counter claim by the defendants. It has been submitted that Ajay Mehra has paid only Rs. 4 lakh but the construction of second floor is not yet complete and whatever construction has been done is in violation of the sanctioned plans, of extreme poor quality, lacks even the basics of construction in that roof/slab of the second floor is tilted and is much lesser in height than the sanctioned height of the roof and the construction poses a serious safety and heath hazard to the residents of the building.
15. It has been mentioned that Rekha Mehra has paid only Rs 8.5 Lakh and Rs 50,000/- paid on September 1994 was paid by the Ajay Mehra towards the compensation the delay caused in construction. It has been further submitted that work executed needs exhaustive repairs as there is extensive water seepage from the bathrooms on the first floor as well as second floor constructed by the plaintiff which is damaging the portion below the seepage, the finishing work like polishing, etc. has all not been completed.
16. It has been further submitted that there is major safety CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 11 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra hazard in the water tanks constructed/placed on the roof of the second floor have been placed on the slab/roof itself which brings the entire weight of the water tanks filled with water on the roof/slab, stone fixed on the exterior (front and side elevation) of the first and second floors are not fixed/fitted properly and there have been instances when the stones have come loose and crashed to the ground floor. In the case of Rekha Mehra apart from the above it has also been submitted that Rekh Mehra had paid only Rs 8.5 Lakhs and has not paid the remaining Rs 50,000/- and has also not carried out the repairs of the damaged/affected area on the ground floor. It has been further submitted that construction was not complete after expiry of 33 months whereas it was supposed to have been completed within 12 months from the date of the agreement, therefore, plaintiff has no right to possession of the first floor and defendants are entitled to compensation from Ajay Mehra @ Rs. 25,000/- per month for the 3 months after the agreed period of construction of 12 months and Rs. 30,000/- per month for the period exceeding 15 months.
17. It has been further pleaded in both written statement that since plaintiff has not completed the construction and repairs as required plaintiff is not entitled to retain the possession of the first floor which they illegally occupied and are not entitled to respective sale deed till the construction is complete, compensation and balance payment is paid. Rest of the contents of the both plaint have been denied by the defendants.
18. Defendants have filed counter-claim in both the suits on the basis of their grievance as noted above in brief. In the counter- claim filed in the suit of Rekha Mehra defendants have claimed balance amount of Rs.50,000/- along with interest whereas in the counter-claim CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 12 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra to the suit of Ajay Mehra defendants have claimed a sum of Rs.8,65,000/- as well as other reliefs including demolition of the entire construction and raising the same afresh in accordance with the agreed specification and sanctioned plan. In nutshell the pleading in the counter-claim is to the effect that Ajay Mehra has not carried out the construction in accordance with specification agreement and sanctioned plan.
19. Thereafter, plaintiff filed written statement to the counter claim and thereby raising preliminary objection that the present counter claim is mere counter blast to the plaintiff's suit for injunction and specific performance; that defendant has filed the counter claim as an after thought merely with a view to shifting the focus of the present case; that counter claim is legally not maintainable; that counter claim is of the defendant is barred by delay; that proper court fee has not been paid on the counter claim; that counter claim is liable to be dismissed in view of the provisions of Order 7 Rule 11 CPC; that counter claim does not disclose any cause of action in favour of counter claimant; that counter claim does not fall within the pecuniary jurisdiction of the court; that entire case of the counter claim is based on the premise that there has been unauthorised construction carried out by the plaintiff; that there has been no violation of the sanctioned plans.
20. It has been further mentioned that defendant has carried out unauthorised construction of an operational bath room on the ground floor under the common stair case, for the defendants exclusive use; that unauthorised construction of an operational bath room in the rear mandatory open area on the ground floor, thereby preventing to put an emergency stair case/fire escape, as provided in the sanctioned CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 13 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra plan; that encroachment of passage in the stair case landing area on the ground floor, establishment of two operational kitchen on the ground floor, with a single dwelling unit, which is not permitted in the bye laws on polo sizes below 500 sq. yards and misuse of garrage on the ground floor by converting it into a bed room in contravention of the building bye laws for Union Territory of Delhi, 1983.
21. On merits it has been submitted that counter claim is not maintainable and defendants has failed to perform and discharge its obligations under the agreement which compelled the plaintiffs to file the present suit for specific performance against the defendants. It has been further mentioned that vacant physical possession of the terrace of the above mentioned property was taken over by the plaintiff on the 14.08.1993, reveals the inherent contradictions in the argument/claims of the defendant. It has been further mentioned that agreement to sell having been signed in April, 1993, architectural drawing and the sanction plan was submitted in May, 1993 wherein the MCD found irregularities in the original building which fact was deliberately concealed and misrepresented in the said agreement.
22. It has been further mentioned that construction was immediately started after completing the initial formalities with the mutual agreed engineer/contractor in January, 1994 and during 12 months in 1994, the plaintiff lost approximately 3 months of productive work on account of stoppage of work by the defendants, manhandling the workers, getting into a fight with the contractor. It has been further mentioned that by December, 1994 the second floor flat for the defendant, as per the said agreement to sell, was completed after which it was carried out extensions/additions to the flat outside the sanctioned plan on his own account, which were not the liability of the CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 14 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra plaintiffs and the said flat has been subsequently rented out in June, 1995 to a foreigner by the defendant's for his own personal gains. It has been further mentioned that as per the contract the plaintiff was to complete the construction within 11 months, the plaintiff has fulfilled his obligations within 11 calendar months. Taking into account the unwarranted and willful disruption of work by the defendant and the delays affecting the construction's place planned, based on these realities, the construction could not under any circumstances be completed by January, 1995 and the possession finally taken over by the defendants in February, 1995. It has been further mentioned that plaintiff was put forth great amount of inconvenience to carry out the construction work and delays with the defendant's constant interference, intimidation and threats.
23. It has been further submitted that plaintiff has paid the money as per the said agreement. It has been further mentioned that earlier structure was necessitated the redesigning of the structural frame work thereby plaintiff established 16 pillars through and around the earlier structure for the new slab on which the first and second floors have been built. It has been further mentioned that plaintiff denied having paid Rs. 50,000/- to the defendant on 15.09.1994 as compensation, the amount was paid was the last installment which Rekha Mehra was to pay. It has been further submitted by the plaintiff that there is no violation in construction and the construction of the same is as per the sanctioned plan within the building bye laws of the Union Territory of Delhi, 1983. It is has been further mentioned that quality standards were specified in the agreement to sell and the contract with the Engineer/contractor, with full knowledge of the defendant who has been personally verifying by the defendant and there have been no instance of stones falling after they were fixed. CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 15 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra Rest of the contents of counter claim has been denied by the plaintiffs.
24. Counter claim titles as Shailender v. Rekha Mehra. Respondent raised preliminary objections thereby stating that counter claim has not been properly valued and the proper court fee has not been paid on the counter claim; that present counter claim is not maintainable as the amount of Rs. 50,000/- which is claimed by the defendants has already been paid to the defendant; that plaintiffs has completed her payment of Rs. 9,00,000/- to the defendant as per agreement dated 21.06.1993 and carried out construction on the first floor after obtaining the vacant possession from the defendant' that repair to the damaged and affected portions of the ground floor have been completed and this has been done directly under the instruction of the defendant and construction has been done exactly as specified in agreement to sell and does not amount to violation of the building bye law of Union Territory of Delhi 1993. It has been further admitted that building has been constructed with extra caution in order to ensure security for the inhabitants of the plaintiff's own family.
25. It has been further submitted that as per the architect the building has an RCC frame structure and sufficient care has been taken during structural designing to take care of the water tank load etc. on the RCC slab. It has been further mentioned that there is no damage to the ground floor and all the repairs on the ground floor on account of the construction of the first floor have been carried out and completed. It has been further submitted that defendant having already taken possession of the flat and having put the said flat into use, having earned rent from the said premises. It has been further submitted that last payment of Rs. 50,000/- was personally handed over to the defendant by a bank draft no. 018860 and construction was CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 16 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra completed in accordance with sanctioned plan with no violations of the building bye law of UT Delhi. Rest of contents of counter claim has been denied by the defendant.
26. Thereafter, plaintiff filed replication and denied the averments made in the written statement and reiterated the contents of the plaint.
27. On the pleadings of the parties following same issues were framed in both sets of suits and respective counter claim vide order dated 10.08.2000:-
1. Whether the plaintiff is entitled for a decree of specific performance of agreement dated 21.06.1993 entered into between the plaintiff and the defendant? OPP.
2. Whether the plaintiff is entitled to an order of mandatory injunction directing the defendant to execute and get registered the sale deed for the property as clearly mentioned and described in agreement dated 21.06.1993?
OPP.
3. Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendant from interfering with the plaintiffs' possession of the suit property and obstructing or creating impediment from use, peaceful possession and enjoyment of all the common areas facilities and appurtenances, by the plaintiffs, their agents and servants, family members, guests, relatives etc.? OPP.
4. Whether the counter claim of the defendant is at all maintainable? OPP.
5. Whether the counter claim has been properly valued and proper court fee has been paid? OPD.
6. Whether the construction done by the plaintiff is not in conformity with the sanctioned plans? OPD.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 17 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
7. Whether the plaintiff has not paid the entire consideration to the defendant as per the terms and conditions of the agreement? OPD.
8. Whether the counter claim of the defendant is not liable to be rejected by this Hon'ble Court due to lack of pecuniary jurisdiction? OPP.
9. Whether the defendant is entitled to a decree of damages as prayed for in the counter claim? OPD.
10. Relief.
28. All four matters were clubbed together and common evidence was led in both suits and counter claims. From the side of plaintiff only Ajay Mehra was examined whereas defendants examined only defendant No. 1.
29. Ld. Counsels for respective parties have addressed their respective arguments and have called for returning findings in their respective favour.
30. There is no dispute that plaintiff of each suit entered into an agreement dated 21.06.1993 with defendants. There is no dispute with respect to the terms and conditions mentioned in each of the agreement dated 21.06.1993 entered by defendants with plaintiff of each suit. There is no dispute that Ajay Mehra plaintiff of suit no. 12828/16 was required to pay a sum of Rs.5,00,000/- apart from raising construction on the first floor and second floor of the property bearing no. F-10/11, Vasant Vihar, Delhi, over and above the structure existing at the ground floor and repairs to the affected/damaged area on the ground floor. Similarly, there is no dispute that Rekha Mehra plaintiff of suit no. 11256/16 was required to pay a sum of Rs.9,00,000/-. There is no dispute that plaintiff(s) occupied and resided CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 18 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra in the first floor of the suit property in September 1994 and defendants have let out the second floor to Mr Steven Heart in June 1995 which implies that construction come to exist on the first floor and second floor over and above the existing construction on the ground floor in the property bearing no. F-10/11, Vasant Vihar, Delhi.
31. Contention of the defendants are that they are ready to execute the sale deed in terms of the both agreement dated 21.06.1993 provided plaintiff fulfills all the obligation under the said agreement.
32. Dispute is limited to the aspect that if Ajay Mehra did not raise the construction on the 2nd floor in accordance with the sanctioned plan and specification agreed, whether Ajay Mehra has not rectified the damaged caused to the existing construction on the ground floor occurred due to raising of construction on the first and second floor, whether the quality of construction and material was sub standard and whether there was delay in raising the construction in accordance with the agreement for which Ajya Mehra had undertaken to compensate @25,000/- per month for three months delay and thereafter @ 30,000/- per month till the completion of the construction. It has also been stated by the defendants that Rekha Mehra plaintiff of suit no. 11256/16 has not paid the balance sum of Rs. 50,000/- and Ajay Mehra plaintiff of suit no. 12828/16 has not paid the balance amount of Rs. 1 lakh. Apart from this, defendants have also claimed damages of a sum of Rs. 8,65,660/-, reconstruction of the entire property/construction on the first and second floor against plaintiff Ajay Mehra and Rs. 65,000/- with interest against Rekha Mehra apart from relief of specific performance against both plaintiff.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 19 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
33. Contention of the plaintiffs is that plaintiffs have already done his/her part of the agreement as was required under the agreement dated 21.06.1993 and is ready to make the balance payment of Rs. 1 lakh in the case of Ajay Mehra for the execution of the sale deed in respect of the portions in favour of each of the plaintiffs and Rekha Mehra has already paid her entire consideration. In these background, in order to decide the matter between the parties the first and foremost important issue which needs decision is the issue no. 6 "whether the construction done by plaintiff is not in conformity with the sanctioned plans?" Accordingly, issue No.6 is taken up first ahead of all issues.
34. However, before issues wise findings are recorded it is worth noting that in the present case both plaintiff Sh. Ajay Mehra and defendant No.1 Sh. Shailender Chaturvedi have filed their affidavit in examination in chief in which they have deposed on the lines of plaint, written statements, counter claim and reply giving detailed account of their respective grievances but their respective cross examination from both sides have not been in details touching upon the specific testimony made by the plaintiff or defendant No.1 in their respective affidavit in their examination in chief. It is settled proposition of law of evidence that when one witness testifies to any material point upon which there is no cross examination from other side in that eventuality the testimony made by witness is taken to have been admitted by the other side. Therefore, applying the said principle of appreciation of evidence to the respective chief examination of the Plaintiff and Defendant and their cross examination the result that comes out to the fore is to the effect that material averments/testimonies of each have remained uncontroverted and deemed to have been admitted by other. With aforesaid difficulties, this court is proceeding to decide the dispute CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 20 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra taking into account the basic principle of adjudication of civil dispute i.e. preponderance of probability.
ISSUE No. 6:- Whether the construction done by plaintiff is not in conformity with the sanctioned plans? OPD
35. Onus to prove this issue is upon the defendants. In his examination in chief, defendant no. 1 deposed on the lines of his stand in the written statement. He deposed that construction was not complete in accordance with the terms of the agreement. He pointed out that spiral stair case in the rear portion leading to second floor terrace has not been constructed, front iron gate as per specification not constructed, three phase power connection for second floor was promised but not provided, removed bore well pipe has not been replaced. He further deposed that construction was not in compliance with building specification and was extremely poor quality and caused constant safety threat. He further deposed that construction carried out was in gross violation of the sanctioned plan and he deposed that the same can be verified from a comparison between sanction plan and the completion plan placed by the plaintiffs on record. He also deposed that the construction done by plaintiff was in deviation from the sanctioned plan was also evident from inspection report Ex. PW-1/9 given by the Assistant Engineer and Junior Engineer (Building) of MCD.
36. He further deposed that there were other deviation such as riser size in stair case which leads from first floor to second floor is defective, landing on second floor is covered, height of the room at second floor is 9 feet 4 inches instead of 10 feet as sanctioned, amalgamation of garage block and being used as toilet at first floor, further the position of the kitchen on the first floor had been changed. CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 21 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra He further deposed that repairs works to the damage/affected area of the ground floor has not been carried out adequately. He further deposed that defects were pointed out but plaintiffs did not take any steps to remove the defects. He further pointed out that vide work plan received by him on 13.02.1995 Ex. DW-1/4 it is clear that work was not complete as the contractor engaged by the plaintiffs prepared 08 week plan to finish the pending work.
37. In cross examination of defendant as it was admitted by the defendant no. 1 that both plaintiffs are in possession of entire first floor of the property in question since 1994. He further deposed that possession of the second floor of the property in question after completion was given to him. He further admitted that second floor of the property in question was let out by defendants to one Mr. Steven Heart in June 1995. He denied the suggestion that since the second floor was built and constructed by the plaintiffs in terms of agreement to sell as such after taking possession from the plaintiffs, defendants had let out the same to the said Mr. Steven Heart. He admitted that Mr. Steven Heart was a foreigner. He further denied the suggestion that when defendants took the possession of the second floor and above the same had been constructed completely in accordance with terms and conditions of the agreement to sell. He voluntarily deposed that he had never taken the formal possession of the second floor. When he was asked that when he had not taken formal possession how did he let out the second floor to Mr. Steven Heart on rent in June, 1995. He deposed that since the construction was incomplete and in spite of telling verbally and writing to Mr. Mehra he was forced to complete the incomplete construction with his own funds. He deposed that he had all the records of construction carried out by him.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 22 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
38. He admitted that he had not placed those record on the record. He was unable to give the exact figure of expenditure incurred by him on the same and he was unable to recall if those expenditure were shown in his ITRs. He also admitted that plaintiffs had been repeatedly from December 1994 onwards approaching them to get the necessary sale deed executed in their favour. He voluntarily deposed that since the work was not completed as per sanction plan and there were various deviation and irregularities which were not rectified despite assurance therefore, they did not execute the sale deed. He further deposed that he had received notices from MCD with regard to unauthorised construction and demolition thereof. He complied with the said notices of the MCD. He again said that he had handed over the notices to Ajay Mehra who challenged the same before the Hon'ble High Court making him and MCD as respondent. He did not remember if he had given any affidavit to the MCD with regard to the compliance of the removable of unauthorised construction. He denied the suggestion that possession of the first floor was given by him voluntarily after having satisfied about the quality of construction and after taking possession of the same.
39. When plaintiff appeared in the witness box he denied the suggestion that the construction was carried out in gross violation and deviation of the sanctioned plan. He denied the suggestion that the construction caused a serious and health hazardous to the lives of the all residents residing therein. He denied the suggestion that due to the construction raised by plaintiffs, defendant have suffered a huge loss as well as damage to the building. He admitted that he had done rectification relating to consequential damages on the ground floor. A question was put to him that whatever was done by plaintiff as a matter of rectification on the ground floor, that caused heavy load and CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 23 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra because of this load the entire building developed cracks which were denied by the witness.
40. He was further asked that whatever rectification was done by him on the ground floor it caused load on the ground floor to which plaintiffs said that he is not qualified to answer as he is not architect or civil contractor. He denied the suggestion that RCC columns were raised without seeking permission from the defendants. He further denied that the suggestion that he raised the columns of his own choice. He voluntarily deposed that builders and the architect advised him and the defendants. He was specifically asked whether he agrees that the constriction on the first floor and second floor were not in compliance with the sanctioned plan to which he said no. He was asked about the other non compoundable deviation which exists at the building area as underlined at point 6, 7 and 8 in the report of the MCD Ex Pw1/9 to which PW-1 deposed that second floor construction was directly under the supervision and personal interest of the defendants.
41. There is no dispute that MCD has carried out inspection and has observed certain violation in the construction. MCD report Ex. PW-1/9 has already been placed on record. As per the said report 08 deviation were noticed, out of which three deviations are noted at the ground floor, two were noted at second floor and one was noted at the first floor. In the said report, it has been found that there is temporary shed existing at rear set back at ground floor, amalgamation of garage block and is being used as bedroom at ground floor and store as sanctioned is being used as a kitchen on the ground floor. Obviously these three deviations are not done by the plaintiff because all the three deviations are on the ground floor and same is being used by the defendants. Fourth deviation as noted is riser size in stair case found to CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 24 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra be defective which leads from 1st floor to second floor. It has also been found that height of room at second floor is 9 feet 04 inches instead of 10 feet sanctioned, amalgamation of garage block and being used as toilet at first floor and position of kitchen changed on first floor. As per the said report the last three deviations are compoundable and plaintiff has deposed that same has been compounded.
42. Thus, in strict sense of the term, it can definitely be said that there has been certain deviation from in the construction from the sanctioned plan has been carried out by the plaintiff but this deviation is compoundable and the same has been compounded as deposed by plaintiff which has not been disputed by the defendant. Thus issue No.6 is decided against the plaintiff and in favour of plaintiff.
ISSUE NO. 4:- Whether counter claim of the defendant at all maintainable? OPP.
ISSUE No. 8:- Whether the counter claim of the defendant is not liable to be rejected by this Hon'ble Court due to lack of pecuniary jurisdiction? OPP
43. Both issues are taken up together as they are interconnected and related. Onus to prove these issues are upon the plaintiff but plaintiff here means plaintiff in the counter claim i.e. defendants in their respective counter claims against the plaintiff of respective suit no. 11256/16 and 12828/16. Objection was raised by the plaintiff to the effect that the amount claimed in the respective counter claims were too low to fall within the pecuniary jurisdiction of the Hon'ble High Court (initially the present suit was filed in the Hon'ble High Court). At that time, the pecuniary jurisdiction with respect to civil suit having value above Rs. 5 lakh were with the Hon'ble High Court CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 25 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra and in the light of this fact the objection were raised by the plaintiff that since the pecuniary valuation of the counter claims were much below the starting limit of the pecuniary jurisdiction of the Hon'ble High Court, therefore, it was claimed that counter claim was not maintainable.
44. Law is well settled that one cannot file counter claim, value of which exceed the pecuniary jurisdiction of the court in which counter claim is being filed. Even if it becomes necessary to file counter claim having higher value than the pecuniary jurisdiction of the court in that eventuality the counter claimant can file an application to the court for transferring the matter to the court having competent jurisdiction or could get the matter transferred to the competent court. In any case, there is no bar upon the court to deal with matter having less pecuniary value. Court with higher pecuniary jurisdiction can definitely deal with matters having less pecuniary value than its jurisdiction but the courts will not be able to deal with matter having more pecuniary value than its pecuniary jurisdiction. Therefore, the counter claim filed by the defendants in the respective suits are maintainable.
45. One more argument was raised that counter claim was filed subsequent to the filling of written statements but perusal of the record shows that both counter claims in the respective suits were filed along with written statement on the same day., hence said argument of the Counsel for plaintiff is not taken into consideration.
46. One of the objection about the counter claim has been raised with respect to limitation. It has been contended by the plaintiff that in effect the suit of counter claim of the defendants is in the nature of suit for specific performance for which limitation is three years from the date of agreement and present counter claim having been filed in CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 26 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra April 1996 is barred by limitation.
47. Issue of limitation is unfounded for the reason that admittedly agreement is dt 21.806.1993 and counter claim having been filed in April 1996 is cannot be said to be beyond the period of three years. Even otherwise in the case of Counter claim date of institution is deemed to be the date of the date of institution of suit the in which counter claim is filed.
Hence, issue no. 4 and 8 in both suits/counter claims are decided in favour of counter claimants/defendants and against the plaintiff.
ISSUE No.5:- Whether the counter claim properly valued and proper court fee has been paid? OPP.
48. Onus to prove this issue is upon the plaintiff. Defendant in his counter claim to the suit bearing no. 12828/16 has asked for decree for a sum of Rs. 8,65,660/- along with future compensation @ 30,000/- per month, direction to the plaintiff to demolish the existing construction and reconstruct the building in accordance with sanctioned plans as envisaged in agreement dated 21.06.1993, direction to plaintiff to carry out the repair/rectified the damaged/affected portions on the ground floor. The counter claimant has valued his counter claim against Ajay Mehra @ Rs. 8,65,660/- for the recovery of the said amount and @ Rs. 200/- for the relief of each injunctions.
49. The prayer as made in the counter claim to the suit no. 12828/16 is in effect specific performance of the agreement dated 21.06.1993. Although, in the title of counter claim, it has been mentioned that the counter claim inter-alia is for specific performance and mandatory injunction but counter claimant has not valued the suit CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 27 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra in accordance with the relief of specific performance as is required in the case of suit for specific performance. Therefore, no court fee has been paid on the relief of specific performance which should have been equal to Rs 5 Lakhs plus the cost of construction on the second floor and cost of repair of the damaged/affected area on the ground floor.
50. As far as counter claim in suit no. 11256/16 against Rekha Mehra is concerned, same is properly valued for the purpose of court fee and jurisdiction. The said counter claim is only for recovery of balance amount of Rs. 50,000/- with interest and therefore, there is no defect in the valuation of the counter claim in the suit no. 11256/16.
51. In view of the above, the issue no. 5 in suit no. 12828/16 is decided against the counter claimants and in favour of plaintiff and in suit no. 11256/16 id issue is decided in favour of counter claimant against the plaintiff.
ISSUE No. 7:- Whether the plaintiff has not paid the entire consideration to the defendant as per the terms and conditions of the agreement? OPD
52. Onus to prove this issue is upon the defendants. There is no dispute that there is two agreement each dated 21.06.1993. One agreement was with plaintiff Ajay Mehra and another was with his wife namely Rekha Mehra, who is plaintiff in suit no. 11256/16. The consideration amount in both agreements are different.
53. Perusal of the agreement with Rekha Mehra shows that it was agreed by the defendants to transfer, convey, sell and sign all their rights, title, share and interest in the part of first floor rear portion measuring 1000 sq. yards feet approximately terrace rights to be CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 28 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra constructed on the first floor level in the property no. F-10/11, Vasant Vihar, Delhi for a total consideration amount of Rs. 9 lakh. It was further agreed that vacant physical possession of the terrace to use and construct on the said property will be handed over by the defendants to the plaintiff Rekha Mehra at the time of payment of Rs. 8, 50,000/- and Rs. 50,000/- shall be payable by the vendee within 12 months from the date of agreement. It was further agreed that even if the construction was not completed in 12 months and Rekha Mehra can get the sale deed executed from the vendor/defendants. Plaintiff Rekha Mehra also required to bear the proportionate share of conversion fee.
54. In the plaint, plaintiff Rekha Mehra has claimed that she had paid sum of Rs. 9 lakh i.e. Rs. 4,50,000/- on 21.06.1993 vide cheque no. 033807 drawn on Punjab National Bank another Rs. 4 lakh was given on 12.08.1993 vide draft/cheque no. 406437 drawn on Punjab National Bank and another sum of Rs. 50,000/- was paid on 15.09.1994 vide cheque no. 018860 drawn on ANZ Grindlays Bank. Thus entire payment has been made by her. In the written statement defendant has admitted to have received sum of Rs. 8,50,000/- and has disputed the payment of Rs. 50,000/- on 15.09.1994. It has been stated by the defendant that sum of Rs. 50,000/- was paid by the husband of Rekha Mehra towards compensation for delay in construction as per the provisions of agreement @ Rs. 25,000/- per month and since plaintiff Rekha Mehra has taken the possession of the first floor, defendant has filed counter claim to recover the said balance amount of Rs. 50,000/- along with interest. In the counter claim filed against Rekha Mehra no other claim has been raised against Rekah Mehra. However, there is no dispute that Rekha Mehra has paid her part of the conversion charges.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 29 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
55. PW-1 deposed that Rekha Mehra has paid Rs 50,000/- by way of cheque No. 018860 dt 15.09.1994 drawn on ANZ Grindlays Bank. There was no cross examination of PW1 that such cheque was given not towards consideration but towards compensation. Since receipt of the said cheque is not in dispute and there is no suggestion to PW1 in consonant with stand of the defendants, therefore it was for the defendants to prove that such payments was made towards the compensation and not balance consideration of Rekha Mehra. DW1 also deposed to the same effect but there was not even suggestion from the plaintiff that such payment was consideration and not compensation.
56. In the background of this evidence the stand of the defendants appears to be no reliable for the reason when defendants have received payments it becomes a responsibility to prove the nature of payment. By not cross examining PW1 on this aspect defendants failed to discharge upon them. Plaintiff may take shelter for his failure to give suggestion about the nature on payment in the fact that since there was no cross examination from the defendant therefore there was no need for him to put such question or suggestion to the DW1. Since defendants have not led any evidence to show that such sum of Rs 50,000/- was paid by Ajay Mehra towards the compensation for late construction, therefore, in these circumstances, an adverse inference is to be drawn against the defendant.
57. At times it has been pleaded that consideration under the agreement with Rekha Mehra comprised with Rs 9 lakhs and repairs of damaged/affected area on the ground floor. But perusal of the agreement Ex DW1/2 with Rekha Mehra shows that she was not required to carry out repairs etc as she was not obligation to raise CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 30 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra construction or consequent repairs. Thus, so far as plaintiff Rekha Mehra is concerned, it is hereby held that she has paid the entire consideration.
58. As far Ajay Mehra is concerned, he was required to pay Rs 5,00,000/- and bear the cost of construction on the second floor apart from the cost of repair of the damaged/affected area on the ground floor. There is no dispute that Ajay Mehra had paid Rs 4,00,000/- duly acknowledged by the defendants vide receipt Ex PW1/6 (though written as Ex Dw1/6 ion the document). There is no dispute that construction came to be existed on the first floor and second floor in the property. There is no dispute that cost of entire construction on the first floor and second floor, whatever manner and of whatever quality has been raised and remedial cost of damaged/affected area on the ground floor, irrespective of the satisfaction of the defendants, has been borne by Ajay Mehra. There is no dispute that Ajay Mehra has paid his part of the conversion charges.
59. It is the case of the defendants that since construction was defective, of poor quality and not in accordance with specification/sanctioned plan besides being delayed, therefore consideration amount cannot be said to have been paid by Ajay Mehra.
60. Ajay Mehra in his deposition has deposed that for the purpose of raising construction defendant No.1 in consultation with the broker Mr Parvesh Grover approved Mr Vijay Chauhan as the contractor to carry out the construction and he was introduced to the contractor by defendant No.1. This specific testimony has not been controverted by the defendants in the cross examination of PW1 Ajay Mehra. Thus, contractor was of the choice of defendant No.1. there is CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 31 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra no allegation against Ajay Mehra that because of financial handling contractor was unable to execute the good quality of work. This means that Ajay Mehra himself was dependent upon the workmanship of the contractor in the execution of the construction. Moreover, defendants were present throughout the period of construction in the suit property having better means to check the construction at each level that too when construction was being executed by a person who was selected by the defendants themselves.
61. Whether on the basis of deviation in the construction from sanctioned plan or alleged poor or defective quality of work would be said that Ajay Mehra has not paid the consideration amount so as dis- entitle the plaintiff from obtaining the relief of decree of specific performance? There is no dispute that plaintiff Ajay Mehra has paid the amount of Rs. 4 lakh and there is no dispute that entire construction on the first floor and second floor has been raised by the plaintiff at his own cost. In these circumstances, after spending almost the entire consideration amount, it cannot be said that consideration amount has not been paid by the Ajay Mehra except Rs 1,00,000/- which was to be paid at the time of execution of Sale deed.
Accordingly, issue No. 7 in both suits and related counter claims are decided in favour of plaintiff and against the defendants.
ISSUE No.3:- Whether the plaintiff is entitled for decree of permanent injunction restraining defendant from interfering with the plaintiff's possession of the suit property and obstructing or creating impediment from use, peaceful possession and enjoyment of all the common areas, facilities and appurtenances, by the plaintiffs, their agents, servant, family members, guests, relatives etc.? OPP.
62. Onus to prove this issue is upon the plaintiff. It has been alleged in the plaint that when plaintiff requested the defendant to CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 32 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra execute the sale deed, defendant remained silent and decided to adopt the course of inaction in order to avoid their obligation under the aforesaid agreement and to harass the plaintiff with sole aim of extorting money and with said view defendants started harassing the plaintiff by often blocking the common passage leading to the entry of the portion of the plaintiff thereby obstructing the peaceful and uninterrupted enjoyment of the said property which plaintiff is rightfully entitled to. It was further alleged that Rekha Mehra was manhandled in the presence of tutor of the daughter of the defendant no. 1, by the wife of defendant no. 1 leading to thumb injuries.
63. Defendants in their written statement have categorically denied of having prevented the plaintiffs from using the common area or ever blocked entry to the common passage or any such incidents as alleged by the plaintiff.
64. PW-1 in his evidence deposed that during the course of construction there was constant interference and harassment caused by the defendants to the contractor Mr. Vijay Chauhan as well as to him and his family. He further deposed that defendants have been constantly been harassing him and his family and has denied access to the water supply necessitating him to approach the Hon'ble High Court for getting an MCD connection installed. In his cross examination a general suggestion was given to the plaintiff that defendants have never created any harassment or obstructed the construction work.
65. It could be seen from the above that in the pleading there was specific allegation against the defendants by which defendants were preventing the plaintiff from accessing common areas, passage, of manhandling etc. But in evidence except for the water supply CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 33 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra problem no testimony is recorded to the effect that defendants blocked the common passage or denied access to any common area or harassed the plaintiff. The testimony of the plaintiff qua the harassment is more directed towards obstruction allegedly caused during the construction period and not thereafter except for the water problem which was got solved by the Hon'ble High Court by permitting the plaintiff to have MCD water connection. Thus, there is no evidence from the side of the plaintiff that any harassment of the sort as alleged by the plaintiffs was caused by the defendants during their stay in the property. Hence, plaintiff has failed to discharge the onus.
Accordingly, issue no. 3 in both suit and related counter claim are decided in favour of defendants and against the plaintiff.
ISSUE No.1 :- Whether the plaintiff is entitled for a decree of specific performance of agreement dated 21.06.1993 entered into between the plaintiff and the defendant? OPP.
ISSUE No. 2:- Whether the plaintiff is entitled to an order of mandatory injunction directing the defendant to execute and get registered the sale deed for the property as clearly mentioned and described in agreement dated 21.06.1993? OPP.
ISSUE No. 9:- Whether the defendant is entitled to a decree of damages as prayed for in the counter claim? OPD.
66. All the three issues i.e. issue no. 1, 2 and 9 are taken up together as they are inter connected and requires appreciation of same facts and evidence. Onus to prove this issue no. 1 and 2 is upon the plaintiff and onus to prove the issue no. 9 is upon the defendant.
67. In nutshell, case of the plaintiffs are that vide agreement dated 21.06.1993 they had agreed to purchase the property (to be constructed) on the first floor of the property bearing no. F-10/11, Vasant Vihar, Delhi. Plaintiff Ajay Mehra was required to raise CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 34 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra construction on the first floor which was to be owned by Ajay Mehra and his wife Rekha Mehra in the manner agreed. Ajay Mehra was also required raised construction on the second floor which was to be owned and retained by the defendants. Ajay Mehra was also required to carry out the repair of damaged/affected areas on the ground floor which damaged would have resulted from the construction on the first floor and second floor. The construction was to be raised in accordance with the specification agreed and within the time period of 12 months after which compensation @ Rs. 25,000/- per month for next three months and beyond thereafter @ Rs. 30,000/- per month was payable by the Ajay Mehra. As far as Rekha Mehra is concerned, she was only required to make the payment of Rs. 8,50,000/- at the time of possession being given for raising construction and balance Rs. 50,000/- was to be payable at the time of execution of sale deed or if construction got delayed thereafter also she could have obtained the sale deed after paying the balance consideration amount.
68. In nutshell, the case of the defendant is that the construction carried out by the plaintiff Ajay Mehra was not strictly in accordance with the specification agreed and sanctioned site plan, material used was sub standard, the affected areas at the ground floor has not been repaired, the quality of construction was very poor endangering life and property of the occupants and there is delay in completing the construction. It is further claimed that till the time construction is not completed in accordance with the specification agreed and sanctioned plan and till the time expenses incurred by the defendants in correcting the suit property and maintaining the suit property due to faulty construction is not paid off, plaintiff is not entitled for sale deed.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 35 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
69. Ld. Counsel for plaintiff apart from arguing on another aspect has sought to drive home the point by showing the testimony of the defendant recorded in his cross examination to show that plaintiff has carried out and completed the construction and defendant is lying about the same. He has specifically drawn the attention of the court to the testimony of DW-1 wherein he deposed to the following effect:-
"Both the plaintiffs are in possession of the entire first floor of the property in question since September, 1994. The possession of second floor of property in question after completion was to be given to us. The second floor of the property in question was let out by us to one Mr. Steven Heart in June, 1995. Mr. Steven Heart was a foreign national."
70. By referring to above testimony of the witness DW-1, it has been contended by the counsel for plaintiff that if construction was not complete or was not in accordance with the agreed specification, how could defendant have let out the property in June, 1995. It has been contended that the defendant is only taking false excuse to avoid the execution of the sale deed to which plaintiffs are entitled.
71. Per contra, it has been contended that since plaintiffs were not completing the construction and were not remedying the shortcomings that was pointed out, defendants were forced to complete the incomplete construction out of their own fund. It has been further contended that simply because second floor was let out in June, 1995, it cannot be concluded that construction was completed by the plaintiff.
72. On thoughtful consideration of the rival submission, one fact which comes out specifically is that in June, 1995 the second floor CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 36 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra which was to be owned by the defendant was complete otherwise, it could not have been let out by the defendants. Now, in these circumstances, the question is as to whether it was the Ajay Mehra who got it complete the construction or it was the defendant who was forced to complete the remaining incomplete construction. Plaintiff Ajay Mehra was under obligation to carry out and complete the construction and in these circumstances, where it has been admittedly proved on record that second floor was let out in June, 1995 goes to show that property stood completed. The onus shifts upon the defendant to prove that it was the defendants who have carried out the remaining construction on the second floor from the stage it was left by Ajay Mehra.
73. In this regard, defendants have placed on record certain bills of contractor and supplier of building materials which are Ex. DW- 1/31 to DW-1/40. However, apart from himself defendant did not examine either the contractor or the labourer who allegedly carried out the incomplete construction on the second floor or supplier who allegedly supplied the building materials. Defendants also did not place on record any other financial record to show expenses incurred on construction. In cross examination, when he was asked whether the expenses incurred by him were shown in the books of account to which the DW1 responded that he did not remember at the moment. It is worthwhile to note that cross examination of defendant was carried out on many dates of hearing, therefore, if he had shown the said expenditures in his ITRs or books of account, he could have brought the said records to show the expenses. Since, neither any records of expenses on the incomplete construction on the second floor has been placed nor did defendant examine any of the contractor, labourer or building material supplier to prove the completion of incomplete construction of the second floor, therefore, the necessary conclusion CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 37 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra which can be drawn in these circumstances, is that it was the plaintiff who completed the construction on the second floor.
74. Apart from this, it is also an admitted fact on record that plaintiffs have occupied and resided therein on the first floor of the property in question since September, 1994, this could not have been possible if the construction on the first floor had not been complete. No doubt, completion certificate from MCD has not been brought on record and in response to question on this issue it was deposed by PW-1 that completion certificate if any might have come in the name of the defendant about which defendants might be aware of. No suggestion was given by the defendant to the plaintiff that no such certificate has been issued by the competent authority. Therefore, in these circumstance, it cannot be said that plaintiff did not complete the construction.
75. With respect to poor quality of construction, it is worthwhile to note that neither plaintiff nor defendant have examined any expert in this regard and neither of them has claimed to be an expert in this field. Since, defendant has alleged that the quality of construction is poor, therefore, it was incumbent on the defendant to prove the same. Defendant has placed on record photographs Ex. DW-1/9 to DW-1/14 to show the status of construction and proving that construction was not yet complete. He in his Para 30 of his affidavit in examination-in- chief has given details of the defects existing on ground floor, second floor. He denied the suggestion that the defects mentioned in para 30 (wrongly typed as 13) were factually incorrect and false to his knowledge. In para no. 30 he deposed that poor quality of fitting and fixture were used, wood work and repair work was of extremely low quality, distemper was of poor quality etc. He has not explained as to CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 38 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra what quality or brand of material was to be used and what quality or brand of material has been used. Defendant being an ordinary person i.e. not an expert, his testimony could not be given much value as far as the quality of material and construction is concerned. Defendant should have examined the experts of this field who could have reported and deposed after inspecting the property in question. In the absence of expert opinion and in the absence of any agreement specifying the brand of material to be used, it is very difficult for the court to give any finding as to the quality of construction and material. Since onus of proving poor quality of construction and material is upon the defendants, therefore, it can be concluded that defendants failed to poor quality of construction and material used.
76. As far as carrying out construction not in accordance with sanctioned plan and specification agreed to are concerned, no doubt plaintiff himself has placed on record MCD report Ex. PW-1/9 as per which certain deviation has been noted, three of them are on the newly constructed portion but these deviations are compoundable in nature and has been compounded as pleaded by the plaintiff and not disputed specifically by the defendant.
77. As far as repairing of damage to the ground floor in pursuance to carrying out of the construction on the agreed portion is concerned, it is the case of the defendant that plaintiff did not carry out the repair of the damaged portion caused by the plaintiff during the course of construction and defendant had to undertake the said repair on his own expenses. But apart from the testimony of the defendant neither any of the contractor, building material supplier have been examined to prove the said repair nor has he produced his accounts so as to show the expenses incurred on the repair. Therefore, defendants CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 39 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra themselves have failed to prove that repair work of the damaged portion on the ground floor was got rectified, remedied by them at their own cost.
78. In any case, however, it has come in evidence that joint inspection by the inspection, meeting and report was prepared by jointly by Architects appointed by each party to evaluate the cost of defects in the construction work on the basis of report of Architect S. N Das. Said report of meeting to evaluate the cost of defects is Ex PW1/16. The estimated cost of all the defects assessed jointly does not go beyond Rs 1,00,000/-. But it did points out that certain defects were existing. It has not come whether after this joint meeting defects were removed or any payments was made in lieu of the same. In the said report it has also been mentioned that certain repair has already been carried out by defendants at their own expenses but extent of expenses is not clear.
79. Defendant has placed on record photographs of the year 2003. In strict sense, this photograph cannot be said to have been proved by the defendants for the reason neither the negatives has been placed on record nor certificate U/s 65 B of Indian Evidence Act has been placed on record if the photographs were taken from digital camera. therefore, these photographs cannot be said to be admissible in evidence. In any case, perusal of these photographs does show defective execution of work but the extent of defectiveness cannot be measured by these photographs. It is also worthwhile to note here that when these photographs were being exhibited by the defendant, neither any objection was raised by the plaintiff with regard to admissibility nor any cross examination has bee conducted pointing out that this photographs does not belong to suit property or that the CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 40 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra construction shown to be carried out was carried out subsequently. No doubt, there is a substance in the contention of the Ld. Counsel for plaintiff that even if these photographs are taken to be of the suit property, these photographs having been clicked in 2003 i.e. after almost 08 years and the kind of damages shown in the photographs could have been the result of passage of time as normal wear and tear.
80. Even if construction is well constructed in the absence of proper care any construction gets damaged faster than property poorly constructed but well maintained. Admittedly, plaintiff has not been residing in the property since 2001 and the damaged shown in the photographs are either on the roof of the second floor or on the ground floor. The said damage as shown in the photograph cannot be related to the alleged defective construction carried out 08 years ago.
81. There is another aspect which requires detailed deliberation. Admittedly, defendants and their family continuously resided in the ground floor of property during the entire tenure of the construction and the entire construction on the first floor and second floor has been got raised by the plaintiff through a contractor selected by defendants. Defendants were available in the suit property throughout the period of construction but they did not stop nor got it stop through the process of law the alleged defective construction work and it was only when the entire structure were already constructed that they have come up with plea that there was deviation from construction, poor quality of work etc. They having not stopped the work which were not going on in accordance with the specification agreed or in accordance with sanctioned plan, they cannot be allowed to say that there was a poor execution or defective construction or poor quality of material used or that there was a deviation in construction. CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 41 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra Defendants being very much available in the suit property could have stopped the construction if not orally then at least through the process of law but should not have allowed the construction so as to make it difficult for the plaintiff to reconstruct it without any substantial loss. Defendants are guilty of acquiesce and therefore, defendants cannot be heard on that account.
82. However, since in the joint report Ex PW1/16 defects in the construction was noted and cost of rectification was estimated to be around Rs 1,00,000/- and plaintiff has not brought on record any evidence to the effect that after such report defects were removed or amount equal to the cost of repairs was paid. Therefore, defendants are entitled to the said amount and they must get said amount at the price index prevalent after 21 years. There is no need to go into specific calculation, rough estimation of the same is enough. Roughly price of everything has increased by 5 to 10 times since 1996, therefore, taking the average increase to be seven times defendants must get Rs 7,00,000/- (seven times of the estimated cost of rectification). It is worthwhile to note that in calculation of damages such like the present one some amount of guess work is inevitable.
83. As far as claim of the defendants qua the delay in construction is concerned, it is the claim of the plaintiff that whatever delay that has taken place in the construction was on account of conduct of the defendants as he was obstructing the progress of the construction on one or other ground. Be that as it may, the stand of the plaintiff itself proves that there was delay in the construction. Now, the onus is upon the plaintiff to prove that the delay happened due to the conduct of the defendants. It has already been noted herein before that the cross examination of either party is such where substantial CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 42 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra testimony of the witnesses have not been tested by the other side and as a result thereof the substantial testimony of a witness is taken to have been admitted by the other party.
84. In order to appreciate the above observation it is worthwhile to note that PW-1 in his testimony deposed and cited instances causing delay in the construction which testimonies were not controverted by the defendant in cross examination. Similarly, DW-1 in his testimony deposed certain facts showing inaction or incompletion of the construction was also not controverted by the plaintiff in his cross examination. The effect of this kind of cross examination is that both parties appears to stick to their stand giving no clue to the court to adjudicate as to who is responsible for the delay.
85. However, since onus was upon the plaintiff, therefore, it was the plaintiff who should have brought sufficient evidence on record to enable the court to lean against defendants and in his favour. But plaintiff having not placed any specific material on record to show that construction was complete in all respect by a particular time.
86. However, since, it is not in dispute that plaintiffs occupied their first floor portion in September, 1994 and defendant let out the second floor in June, 1995 goes to show that so far as plaintiff is concerned, construction was complete by June, 1995. There is no dispute that the construction was to be completed within 12 months from the date of handing over of the possession of the roof of the ground floor for the purpose of construction and since plaintiffs have failed to prove that it was the defendants who caused obstruction in delay, therefore, as a necessary consequence, it can be concluded that the construction got delayed.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 43 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra
87. It is also matter of record that sanction plan was sanction only in December 1993 though same was immediately applied and therefore, plaintiff must be given 12 months time from the date of sanction of construction plan to complete the construction. In any case since plaintiff did not bring any specific date of completion though possession was taken over allegedly by defendants in January 1995 however since the same was let out only in June 1995 so it can be concluded that construction might have completed in May 1995 causing a delay of 5 months for which defendant is certainly entitled for compensation at agreed rate for the delay in construction .i.e Rs 1,35,000/-.
88. As far as Rekha Mehra is concerned it has already been held herein before while deciding issue No.7 that she had paid the entire consideration amount which she was required therefore, no amount is due from Rekha Mehra and she is entitle for the relief claimed in her suit.
89. In view of the above discussion and reasoning, issues No. 1 and 2 in both suit are decided in favour of respective plaintiff against the defendants, issue No.9 in suit No. 12828/16 is partly decided in favour of defendants/counter claimant against plaintiff and issue No. 9 in suit No 11256/16 is decided against the defendants/counter- claimants and in favour of plaintiff.
RELIEF in Suit No. 12828/1690. In view of the findings recorded on all issues, suit of the plaintiff is allowed only qua the relief of specific performance and CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 44 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra decree of specific performance is hereby passed in favour of plaintiff and against the defendants thereby directing the defendants to execute sale deed in respect of front portion of the first floor of the property bearing No. F-10/11, Vasant Vihar, New Delhi in favour of plaintiff after receiving the balance consideration of Rs 1,00,000/- (Rupees One Lakh) along with simple interest at the rate of 4% per annum from the date of institution of the suit till the date of payment.
RELIEF in Counter Claim No. 620925/16
91. In view of the above discussion and reasoning counter claim of the defendants/counter claimant is allowed to the extent of monetary claim and decree of recovery of Rs 8,35,000/-(Rupees Eight Lakhs Thirty Five Thousands Only) is hereby passed in favour of defendants/counter claimant and against plaintiff Ajay Mehra along with simple interest at the rate of 4 % on Rs 1,35,000/- (Rupees One Lakh Thirty Five Thousands Only) from the date of institution of the counter claim i.e. 06th April 1996 till realisation and at the rate of 6 % p.a. on the amount of Rs 7,00,000/- (Rupees Seven Lakh Only) from the date of judgment/decree till realisation.
RELIEF in Suit No. 11256/1692. In view of the findings recorded on all issues, suit of the plaintiff is allowed only qua the relief of specific performance and decree of specific performance is hereby passed in favour of plaintiff and against the defendants thereby directing the defendants to execute sale deed in respect of rear portion of the first floor of the property bearing No. F-10/11, Vasant Vihar, New Delhi in favour of the plaintiff.
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 45 of 46 Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr.. Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra RELIEF in Counter Claim No. 620924/16
93. In view of the findings recorded on all issues, counter claim of the defendants/counter claimants is hereby dismissed.
Applications, if any pending, stands disposed of as not pressed.
Parties to bear their own respective cost.
This judgment duly signed shall be placed on each file. Separate decree sheet be prepared in each file.
All the files be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains pages) Delhi/22.05.2017
CS No. 12828/16 Sh. Ajay Mehra v. Mr. Shailendra Chaturvedi & Anr.. Page No. 46 of 46
Counter claim no.620925/16 Shailender Chaturvei v. Ajay Mehra
CS No. 11256/16 Mrs. Rekha Mehra v. Mr. Shailendra Chaturvedi & Anr..
Counter claim no.620924/16 Shailender Chaturvei v. Rekha Mehra