Delhi District Court
Gurvinder Singh Luthra vs . M/S. Deenar Builders Pvt. Ltd. on 5 October, 2012
Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT JUDGE04 :
SOUTH DISTRICT : SAKET COURT COMPLEX, NEW DELHI
RCA. NO. 19/10
In the matter of :
1. Gurvinder Singh Luthra
S/o Late Sardar Hari Singh
R/o 109, Zamroodpur Auto Complex,
Near Greater Kailash, New Delhi
2. Smt. Ajinder Luthra
W/o Gurvinder Singh Luthra
R/o 109, Zamroodpur Auto Complex,
Near Greater Kailash, New Delhi .....Appellants
Versus
1. M/s. Deenar Builders Pvt. Ltd.
Having its Head Office at
C1/49, Safdarjung Development Area,
New Delhi16
2. Sh. B. K. Ahuja
R/o C1/49, Safdarjung Development Area,
New Delhi16
3. The Municipal Corporation of Delhi
Through: The Deputy Commissioner (MCD)
South Zone, Green Park, New Delhi
RCA. No. 19/10 Page 1 of 10
Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
4. The Delhi Development Authority
Through: The Deputy Director
(Commercial Land)
DDA, Vikas Sadan, New Delhi ....Respondents
Date of institution of case : 12.10.2010
Date of Reserving order : 29.09.2012
Date of Judgment : 05.10.2012
Judgment
1. This is an appeal U/s 96 CPC filed by the appellants challenging the order dated 06.08.10, passed by the Ld. Trial Court vide which the suit filed by the appellants was dismissed on the ground that same was time barred.
2. The appellants had filed a suit for declaration, permanent and mandatory injunction, relating to shops bearing no. G4 and G5 situated on the ground floor of the building known as Deenar Bhawan no. 44, Nehru Place, New Delhi and also in regard to passage termed as common passage for use of all the shopkeepers and the customers at Nehru Place, New Delhi. Appellants were claiming that they were Lawful owners of shops claiming G4 and G5, which were allotted by defendant no.1 which is a Pvt. Ltd. Company and is being run managed and controlled by Sh. B. K. Ahuja, respondent no. 2 and his family members. Respondent no. 3 is MCD and respondent no. 4, DDA. Both the shops were allotted to the appellant no. 1 in year 1977, RCA. No. 19/10 Page 2 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
appellant no. 2 is wife of appellant no. 1. Appellant paid a sum of Rs. 58,800/ for a shop on the ground floor, termed as office / showroom/ storage space no. G5. The appellants have claimed that vide Clause 10A of the Purchase Agreement between appellant and defendant no. 1 company, it was specifically mentioned that after completion of the building, known as Deenar Bhawan and receipt of the requisite permission of the DDA for the sale of the flat to the buyer, promoters shall complete the sale and effect the conveyance of the flat to the buyer. It is claimed that defendant no. 1 was duly bound to execute the Sale Deed immediately on receiving the consideration amount from the plaintiff or at the most, prior to handing over the possession of the shop in question in view of stipulation in Para 10 A of the Purchase Agreement dated 14.08.07 and suit was filed for specific purpose of the said agreement. The appellants were seeking alternative relief of declaration, that they are Lawful owners in possession of shops in question.
3. The appellants have claimed that as per Clause 18(d) of the Purchase Agreement dated 14.08.77, restrictions were put against all flat owners from interfering in any manner with the use of passage and other amenities available for common use. Appellants were claiming in the suit filed that a common passage shown in the plan at point A has been closed by defendants no. 1 and 2. It was claimed that defendant no. 1 kept shop no. 1, 2, 3 and 6 with itself and had closed the common passage. There were some allegations between the parties before RCA. No. 19/10 Page 3 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
Hon'ble High Court of Delhi when a suit bearing no. 943/1995 was filed by the appellants objecting to the encroachment made. The appellants are claiming that defendants have manipulated a report from MCD and DDA, wherein DDA filed false, frivolous and factually incorrect reports to the effect that there were no violations as alleged in the said proceedings before Hon'ble High Court and the petition filed by the appellant was disposed of accordingly by Hon'ble High Court. There had been allegations and even, complaints to the police, thereafter as regards action of defendants no. 1 and 2. As per the prayer clause in the suit filed before Ld. Trial Court, apart from seeking specific performance in terms of the Purchase Agreement dated 14.08.77 or in the alternative seeking declaration of the plaintiff having become owner in possession of shops bearing no. G4 and G5 on the ground floor of Deenar Bhawan bearing no. 44, Nehru Place, New Delhi, the appellants also sought the relief of mandatory injunction for directing respondents to demolish the existing structure, restore the passage. Declaration was also sought that there was no sanctioned plan permitting respondents no. 1 and 2 amalgamation of the passage into shops bearing no. G1, G2, G3 and G6. Appellants also sought mandatory injunction for restoring the out look of the building to original possession and for removal of the Genset from the roof of the Deenar Bhawan. Appellants also sought mandatory injunction for construction of a body corporate in terms of the Purchase Agreement dated 14.08.77 for managing and looking after the affairs of the shopping complex including maintenance of all amenities. Further, the appellant sought directions for deposit of the rent being received by RCA. No. 19/10 Page 4 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
defendant no. 1 from the hall converted after amalgamation of shops bearing no. 1, 2, 3 and 6 and the passage of the ground floor of Deenar Bhawan at Nehru Place, New Delhi.
4. Summons of the suit were not issued to the respondents by Ld. Trial Court but a preliminary issue was framed vide order dated 29.03.10, which reads as under:
i.) "Whether the present suit is barred by the provisions of the Limitation Act, 1963 ? "
5. Vide order dated 06.08.10, Ld. Trial Court decided the preliminary issue against the appellants and the plaint was rejected as barred by limitation, under provisions of Order VII Rule 11 (d) CPC.
6. Order dated 06.08.10 passed by Ld. Trial Court has been challenged on the ground that facts and circumstances of the case were not appreciated in true spirit and it was ignored by Ld. Trial Court that suit filed by the appellants was not a suit simplicitor for specific performance. There was an alternative prayer for declaration of the appellants having become owner in possession. It has been challenged also on the ground that cause of action in favour of the appellants was continuous in nature, as the prayer was pertaining to demolition of RCA. No. 19/10 Page 5 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
existing structure, illegally put up by respondent no. 1, and same was not hit by the provisions of Limitation Act. It was also contended that limitation for removal of encroachment from an immovable property is 12 years and since, the status report was got filed by respondent no. 1 in year 2003, on that ground also the suit was within period of limitation. It was also contended on behalf of the appellant that appellant had even challenged the alleged sanctioned plan which has been referred to by the respondent DDA permitting the amalgamation of the passage into the shops and so, the prayer contained in Clause 'C' was not hit by provisions of the Limitation Act. Similarly as regards prayer Clause 'D', 'E' and 'F', it is stated that cause of action was still continuing and still subsisting.
7. Affidavit alongwith documents were filed on behalf of respondent no. 1 and 2, but no formal reply was filed. Documents were filed on behalf of respondent no. 1 and 2 but no formal reply to the appeal.
8. Repeated adjournment were granted to the parties for arguments and on 27.07.12, last opportunity was granted to the parties to make submissions. Matter was adjourned to 29.09.12. On 29.09.12 also, adjournment was sought on behalf of both the parties stating that senior counsels were not available. Since, there was no justification of the adjournment being sought on behalf of the parties again and again, the matter was reserved for judgment. Subsequent to that written RCA. No. 19/10 Page 6 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
submissions were placed on behalf of respondent no. 1 and 2.
9. The suit filed by the appellants was dismissed by Ld. Trial Court on the ground that plaintiff was seeking a decree for specific performance in respect of an agreement, entered into in the year 1977 and same was clearly barred by provisions of Limitation Act, as well as Specific Relief Act and reliance in this regard was placed on a case titled as Sukhbiri Devi and Others Vs. Union of India and Others 162 (2009) DLT 720. As regards the alternative relief of declaration of the appellant as owner in possession of the suit property, it was held by Ld. Trial Court that period for limitation for a relief of declaration is three years from the date, when right to sue first accrues as per Article 58 Schedule 1 of the Limitation Act. While seeking alternative relief of declaration by the appellants that they are owner in possession, no ground as such were given by the appellants, how they have become owner in possession and on what basis, they were seeking alternative relief of declaration. So there was no infirmity or error in the conclusion drawn by Ld. Trial Court that suit filed by the plaintiff to the extent of seeking specific performance of an agreement entered on 14.08.77, was clearly barred by limitation and so, the alternative relief of declaration as all the rights of the appellants were flowing from the agreement dated 14.08.77. This was relating to prayer clause (a) in the suit filed by the appellants.
10. As regards prayer clause (b) of seeking mandatory injunction for RCA. No. 19/10 Page 7 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
restoration of the passage,and to demolish the existing structure, which was brought into existence by respondents no. 1 and 2 as alleged by amalgamation of the shops bearing no. 1, 2, 3 and 6 and the said common passage, limitation of 12 years for seeking removal of the encroachment as alleged is to be taken into consideration from the date, encroachment had come into existence and not from the date on which status report was filed by officials of respondent no. 4 before Hon'ble High Court in proceedings vide suit bearing no. 943/1995. Even that relief on showing of the appellants is barred by limitation.
11. As per prayer Clause 'C', the plaintiff is seeking a decree of declaration stating that there is no sanction plan permitting the amalgamation of passage, situated on the ground floor for access, basic amenities in Deenar Bhawan, bearing no. 44, no date of the said sanction plan has been given to. At the most, the appellants could have come to know about the same when the alleged illegal status report was submitted by respondent no. 4 in year 2003 and so, decree for declaration for the same will also be barred by limitation as that cannot extend beyond three years, the suit having been filed before Ld. Trial Court on 20.03.10.
12. As regards the Prayer Clause 'D', it seeks restoration of the out look of the buildings to original position and to remove the Genset from the roof of Deenar Bhawan. How, it is in violation of any legal right of the RCA. No. 19/10 Page 8 of 10 Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
appellant and what is the out look of the building sought to be restored has not been given and in any case, the prayer clause relates to alleged encroachment which were earlier to year 1995, when the suit for the same had been filed by the appellants before Hon'ble High Court in that year.
13. Prayer Clause 'E' also relates to giving in effect to the obligations and the rights under the Purchase Agreement dated 14.08.77 and that is only as regards formation of a body corporate of all the shopowners. The relief as against respondent no. 1 and 2 is barred by limitation and no mandatory injunction can be issued to other shopkeepers, particularly, when they are not in any way concerned with the present proceedings, and not party to the same.
14. Prayer Clause 'F' relates to the rental income of respondent no. 1 from the hall after amalgamation of shop bearing no. 1, 2, 3 and 6 and the passage on the ground floor of Deenar Bhawan. Shop no. 1, 2, 3 and 6 all owned by defendant no. 1. As regards the amalgamation of passage on the ground floor that said four shops, it has already come in the proceedings before Hon'ble High Court in suit no. 943/1995. As per status report that there were no violations of the sanctioned plan and which is the relief being sought by the appellants vide prayer Clause 'C' of the suit filed.
RCA. No. 19/10 Page 9 of 10Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
15. There is no substance in contentions on behalf of the appellant that apart from the prayer of seeking specific performance of the Purchase Agreement or the declaration of having become owner in possession there were other reliefs being sought from the appellants, cause of action for which was continuing one. All the reliefs of mandatory injunctions declaration etc directly arise out of Purchase Agreement dated 14.08.77 between the parties and so, the suit filed by the appellant was clearly barred by limitation and has been held so, rightly by the Ld. Trial Court. There is no infirmity or error in the order dated 06.08.10 passed by Ld. Trial Court. There is no merit in the appeal filed and same is dismissed accordingly. Trial Court record be sent back. Copy of the judgment be sent to the Ld. Trial Court.
Announced in the open Court (J.P.S. MALIK)
on 05.10.2012 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI
RCA. No. 19/10 Page 10 of 10
Gurvinder Singh Luthra Vs. M/s. Deenar Builders Pvt. Ltd.
RCA. No. 19/10
05.10.2012
Present: None for the appellant.
None for respondents no. 1 and 2.
Ms. Promila Kapoor, counsel for respondent no. 3 and 4.
Vide separate judgment of the date, appeal filed is dismissed. Copy of the judgment be sent to Ld. Trial Court. Trial Court record be sent back. Appeal file be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 05.10.2012 RCA. No. 19/10 Page 11 of 10