Delhi District Court
Dr. Sarven Kumar Singh Rawat vs Khemka Stuart Leisure Ltd on 10 November, 2022
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET COURTS,
DELHI
Presided By : Sh. Jay Thareja, DHJS
Civil Suit No: 208112/16
1. Dr. Sarven Kumar Singh Rawat
S/o Late Sh. S. S. Rawat
2. Mrs. Shailaja Rawat
D/o Late Sh. Prem Narain Bhatt
Both R/o 1S, Sector8,
Jasola Vihar, New Delhi110025.
...Plaintiffs
Versus
1. Khemka Stuart Leisure Ltd.
A Company Incorporated under
the Companies Act
Having its registered office at:
B8, Basement Floor,
Ansal Tower, 38,
Nehru Place, New Delhi110019.
2. AEZ Infratech Pvt. Ltd. (now known as ADTV Communication Pvt. Ltd.)
Through its authorized representative
Mr. Mohindra Singh Sapra
Registered office at:
B8, Basement Floor,
Ansal Tower, 38,
Nehru Place, New Delhi110019.
...Defendants
Civil Suit No.208112/2016
Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.1 of 21
SUIT FOR SPECIFIC PERFORMANCE ETC.
DATE OF INSTITUTION : 11.08.2015
DATE OF CONCLUSION OF FINAL ARGUMENTS : 17.10.2022
DATE OF DECISION : 10.11.2022
JUDGMENT
1. The plaintiffs have filed this suit against the defendants, seeking two substantive reliefs viz. (a) relief of specific performance of the flat buyers agreement dated 18.06.2007 and (b) relief of permanent prohibitory injunction to the effect that the defendants be restrained from creating third party rights in respect of shop no. AF10, AEZ Carnival Country Mall, Plot No. W2, Vaishali, Ghaziabad, U.P. (henceforth 'suit property').
2. In order to justify the grant of the aforesaid reliefs, the plaintiffs have interalia pleaded in the plaint of this suit that the defendant no. 1 is a builder/developer company that had developed/constructed AEZ Carnival Country Mall, Plot No. W2, Vaishali, Ghaziabad, U.P. (henceforth 'AEZ Mall'), after obtaining requisite permissions from Ghaziabad Development Authority (henceforth 'GDA'); that during the development/construction of AEZ Mall, the defendant no. 1 had advertised the sale of shops/commercial spaces in AEZ Mall; that in pursuance of the advertisements of the defendant no. 1, a number of investors like the plaintiffs had come forward to purchase shops/commercial spaces in AEZ Mall; that on 18.06.2007, a flat buyers agreement was executed between the plaintiffs and the defendant no. 1, whereby it was agreed that the Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.2 of 21suit property will be sold by the defendant no. 1 to the plaintiffs, for a consideration of Rs.16,47,000/; that in pursuance of the said flat buyers agreement dated 18.06.2007, the plaintiffs had paid the sale consideration of Rs.16,47,000/ to the defendant no. 1, through cheques; that prior to the execution of the flat buyers agreement dated 18.06.2007, the defendant no. 1 had entered into an MOU dated 18.01.2007 and agreement to lease dated 09.04.2007 with M/s. Pantaloon Retail India Ltd. qua a certain area of AEZ Mall; that the suit property was a part of the said area; that in such state of affairs, a tripartite agreement was executed between the plaintiffs, M/s. Pantaloon Retail India Ltd. and the defendant no. 1, on 16.10.2007; that as per the said tripartite agreement, it was agreed that the rent qua the suit property will be paid directly by M/s. Pantaloon Retail India Ltd. to the plaintiffs, till 10.12.2010; that thereafter, disputes and differences had arisen between the plaintiffs, other owners/investors like the plaintiffs and M/s. Pantaloon Retail India Ltd.; that as a result thereof, the plaintiffs and other owners/investors like the plaintiffs had approached the Hon'ble High Court of Delhi vide OMP No. 501/2012, M/s. Geeta Gahlawat & Ors. v Khemka Stuart Leisure Ltd. & Anr. (henceforth 'OMP No. 501/2012') and OMP No. 508/2012, M/s. Jitaditya Malik & Ors. v Khemka Stuart Leisure Ltd. & Anr. (henceforth 'OMP No. 581/2012'), seeking various reliefs; that in view of the consent given by the defendant no. 1 during the pendency of the said petitions, the Hon'ble High Court of Delhi, vide order dated 29.08.2012, had directed that the plaintiffs as well as the other owners/investors like the plaintiffs be put in possession of their respective shops; that before the Order dated 29.08.2012 could be executed, the GDA had sealed AEZ Mall on account of nonpayment of Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.3 of 21dues; that as a result of the dispute with M/s. Pantaloon Retail India Ltd., a proper sale deed qua the suit property was never executed by the defendant no. 1 in favour of the plaintiffs; that in order to obtain the said sale deed from the defendant no. 1, the plaintiffs had served a legal notice dated 16.05.2015 upon the defendant no. 1, seeking execution of the said sale deed, on or before 05.06.2015; that in response to the said legal notice, the defendant no. 1 had sent a false reply dated 11.06.2015 through AEZ Infratech Pvt. Ltd. (impleaded as defendant no. 2 in this suit, on 27.02.2016), refusing to execute the sale deed in favour of the plaintiffs; that the refusal of the defendant no. 1 to execute the requisite sale deed in favour of the plaintiffs, is unfair and unjust and that since, the plaintiffs have already paid the entire sale consideration qua the suit property to the defendant no. 1 and since, the plaintiffs have always been willing to perform their part of the flat buyers agreement dated 18.06.2007, the plaintiffs are entitled to the reliefs of specific performance and permanent prohibitory injunction, sought by way of this suit.
3. Upon service of summons for settlement of issues of this suit, the defendant no.1 has contested this suit by filing its written statement, on 13.10.2015. Also, upon impleadment vide Order dated 27.02.2016, the defendant no. 2 has contested this suit by filing its separate written statement, on 22.07.2016. In the written statement of the defendant no. 1, it is interalia pleaded that this Court does not have the territorial jurisdiction to hear this suit because the suit property is located at Ghaziabad, UP; that in view of the order dated 04.02.2008 passed by the Hon'ble High Court of Delhi in Company Petition No. Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.4 of 21237/2007 and the accompanying Company Application No. 73/2007, AEZ Infratech Pvt. Ltd. (impleaded as defendant no. 2 in this suit, on 27.02.2016) is a necessary party to this suit; that the relief of specific performance, sought by way of this suit, is barred by the law of limitation; that the flat buyers agreement dated 18.06.2007 is not sufficiently stamped as per the provisions of Stamp Act, 1899; that as a result thereof, the plaintiffs cannot seek the relief of specific performance of the flat buyers agreement dated 18.06.2007; that the plaintiffs are guilty of not disclosing to this Court that AEZ Mall is lying sealed on account of nonpayment of electricity, water, sewerage and house tax charges by investors like the plaintiffs (re: clause 6 of the flat buyers agreement dated 18.06.2007); that in view of the said position, no sale deed qua the suit property can be executed in favour of the plaintiffs; that the plaintiffs should not be permitted to derive any benefit from the order dated 29.08.2012, passed by the Hon'ble High Court of Delhi in OMP No. 501/2012 and OMP No. 508/2012 because the plaintiffs have not complied with the directions given by way of the said order to invoke the arbitration clause of the tripartite agreement dated 16.10.2007; that the reply dated 11.06.2015 (sent by the defendant no. 2, AEZ Infratech Pvt. Ltd.) to the legal notice dated 16.05.2015 of the plaintiffs, raises genuine concerns qua the nonpayment of maintenance, electricity charges, water charges, housetax etc. by the plaintiffs and till the plaintiffs do not pay the said charges, the plaintiffs cannot be said to be entitled to the desired relief of specific performance and that in such circumstances, this Court should dismiss this suit, with costs in favour of the defendant no. 1.
Civil Suit No.208112/2016Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.5 of 214. In the written statement of the defendant no. 2, it is interalia pleaded that this Court does not have the territorial jurisdiction to hear this suit because the suit property is located at Ghaziabad, UP; that the relief of specific performance, sought by way of this suit, is barred by the law of limitation; that without seeking the relief of possession qua the suit property, the plaintiffs are not entitled to seek the relief of specific performance of the flat buyers agreement dated 18.06.2007; that there is no privity of contract between the plaintiffs and the defendant no. 2; that the flat buyers agreement dated 18.06.2007 is not sufficiently stamped as per the provisions of Stamp Act, 1899; that as a result thereof, the plaintiffs cannot seek the relief of specific performance of the flat buyers agreement dated 18.06.2007; that the plaintiffs are guilty of not disclosing to this Court that AEZ Mall is lying sealed on account of nonpayment of electricity, water, sewerage and house tax charges by investors like the plaintiffs; that in view of the said position, no sale deed qua the suit property can be executed in favour of the plaintiffs; that the reply dated 11.06.2015 sent by the defendant no. 2 to the legal notice dated 16.05.2015 of the plaintiffs, raises genuine concerns qua the nonpayment of maintenance, electricity charges, water charges, housetax etc. by the plaintiffs and till the plaintiffs do not pay the said charges, the plaintiffs cannot be said to be entitled to the desired relief of specific performance and that in such circumstances, this Court should dismiss this suit, with costs in favour of the defendant no. 2.
5. In the replication qua the written statement of the defendant no. 1, the plaintiffs have traversed the contents of the said written statement, made the Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.6 of 21necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiffs have pleaded that this suit has been filed within the prescribed period of limitation because before noncompliance of the legal notice dated 16.05.2015 by the defendant no. 1, there was no dispute between the plaintiffs and the defendant no. 1 qua execution of the requisite sale deed in favour of the plaintiffs; that this Court has the territorial jurisdiction to hear this suit because the reliefs of specific performance and permanent prohibitory injunction, sought by way of this suit, can be obtained by personal obedience of the defendant no. 1, whose registered office, is located within the territorial jurisdiction of this Court; that before filing of this suit, the plaintiffs had no knowledge of the order dated 04.02.2008 passed by the Hon'ble High Court of Delhi in Company Petition No. 237/2007 and the accompanying Company Application No. 73/2007 because the defendant no. 1 had not disclosed the said order during the pendency of OMP No. 501/2012 and OMP No. 508/2012 and had itself contested the said petitions; that in the plaint of this suit, the plaintiffs have duly disclosed that AEZ Mall is lying sealed by GDA on account of nonpayment of dues; that in the absence of the requisite sale deed qua the suit property, the investors like the plaintiffs are unable to directly deal with GDA and solve the issue of payment of dues; that the flat buyers agreement dated 18.06.2007 is sufficiently stamped as per the provisions of the Indian Stamp Act, 1899 and that in pursuance of the directions given by the Hon'ble High Court of Delhi by way of order dated 29.08.2012 passed in OMP No. 501/2012 and in OMP No. 508/2012, the plaintiffs as well as other investors like the plaintiffs had served a notice upon the defendant no. 1 for appointment of an arbitrator but the defendant no. 1 had taken an objection.
Civil Suit No.208112/2016Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.7 of 216. In the replication qua the written statement of the defendant no. 2, the plaintiffs have traversed the contents of the said written statement, made the necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiffs have reiterated the stand already taken in the replication qua the written statement of the defendant no. 1.
7. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 02.08.2019: "1. Whether the suit is within limitation? OPP
2. Whether this Court does not have territorial jurisdiction to try the present suit? OPD
3. Whether the plaintiff is entitled for specific performance as prayed for? OPP
4. Whether the plaintiff is entitled for decree of injunction as prayed for? OPP
5. Relief."
8. During the trial of this suit, one witness viz. PW1 Dr. Sarven Kumar Singh Rawat was examined in support of the case of the plaintiffs. The defendants, who had failed to pay the costs imposed by way of the orders dated 03.05.2017, 06.12.2018 and 25.04.2019 and abandoned the defence of this suit w.e.f. 27.08.2020 (only to resurface, on 28.07.2022) had neither crossexamined PW1 Dr. Sarven Kumar Singh Rawat nor led any evidence.
Civil Suit No.208112/2016Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.8 of 219. During examinationinchief, PW1 Dr. Sarven Kumar Singh Rawat had deposed in line with the plaint of this suit and tendered in evidence flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR), tripartite agreement, Ex.PW1/2(OSR), copy of IA No. 13810/12 filed in OMP No. 508/2012, Ex.PW1/3 (CSR), copy of IA No. 13809/12 in OMP No. 501 of 2012, Ex.PW1/4 (CSR), copy of order dated 29.08.2012, Ex.PW1/5 (CSR), legal notice dated 26.12.2012, Ex.PW1/6 (OSR), copy of notice dated 05.09.2012, Ex.PW1/7 (6 pages) (OSR), reply dated 12.10.2012, Ex.PW1/8(OSR), copy of notice dated 16.05.2015 along with proof of dispatch, Ex.PW1/9, copy of the affidavit dated 05.06.2015, Ex.PW1/10 and copy of reply dated 11.06.2015, Ex.PW1/11. As stated earlier, the defendants had not crossexamined PW1 Dr. Sarven Kumar Singh Rawat.
10. In order to adjudicate upon this suit, I had heard Sh. Achal Gupta, Ld. Advocate for the plaintiff and Sh. Praveen Kumar Sharma, Ld. Advocate for the defendants, on 27.08.2022 and 17.10.2022. The issuewise findings in this suit, are as follows:
ISSUE NO. 111. In their separate written statements, the defendants have pleaded that the relief of specific performance, sought by way of this suit, is barred by the law of limitation. Therefore, in exercise of power under XIV Rule 5 of CPC, 1908, this issue is amended/reframed, as under:
Civil Suit No.208112/2016Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.Page No.9 of 21
"1. Whether the relief of specific performance, sought by way of this suit, has been sought by the plaintiffs, within the prescribed period of limitation? OPP"
12. In order to adjudicate upon this issue, I find it expedient to refer to Article 54 of the Schedule to the Limitation Act, 1963. The said provision stipulates that the 3 years period, for filing of a suit for specific performance of a contract, shall begin from the date fixed for the performance of the contract or if no such date is fixed, it shall begin when the plaintiff has notice that the performance is refused. In this suit, it is a matter of record that during the proceedings of OMP No. 501/2012 and OMP No. 508/2012, the defendant no. 1 had not informed the plaintiffs that either it or its successor in interest (viz. the defendant no. 2) has no intention of performing the obligations provided in the flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR) and to the contrary, the defendant no. 1 had consented to the handing over of the possession of the suit property to the plaintiffs. Also, in this suit, it is a matter of record that after disposal of OMP No. 501/2012 and OMP No. 508/2012 by the Hon'ble High Court of Delhi and till the service of the legal notice dated 16.05.2015, Ex.PW1/9 the defendant no. 1 had not informed the plaintiffs that either it or its successor in interest (viz. the defendant no. 2) has no intention of performing the obligations provided in the flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR). In such state of affairs, I have no hesitation in concluding that only upon the refusal of the defendant no. 1 and its successor in interest (viz. the defendant no. 2) to Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.10 of 21comply with the terms of the legal notice dated 16.05.2015, Ex.PW1/9 the plaintiffs had gained knowledge that the defendants have no intention of performing the obligations provided in the flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR) and therefore, the plaintiffs have rightfully filed this suit, within 3 years of 05.06.2015/11.06.2015 i.e. on 11.08.2015.
13. In view of the aforesaid, this issue is decided in favour of the plaintiffs and against the defendants. It is held that the plaintiffs have sought the relief of specific performance, sought by way of this suit, within the time period prescribed under Article 54 of the Schedule to the Limitation Act, 1963.
ISSUE NO. 2"2. Whether this Court does not have territorial jurisdiction to try the present suit? OPD"
14. In respect of this issue, the Ld. Advocate for the defendants had submitted that since, the sale deed sought by the plaintiffs, is to be registered at Ghaziabad, U.P., only the Courts at Ghaziabad, U.P., have the jurisdiction to hear and try this suit for specific performance and consequential relief of permanent prohibitory injunction. In order to buttress his submission, the Ld. Advocate for the defendants had relied upon the judgments of the Hon'ble High Court of Delhi in Vipul Infrastructure Developers Pvt. Ltd. v Rohit Kocchar & Anr., (2008) 102 DRJ 178 (DB) and M.K. Sharma & Anr. v Tek Chand & Ors., (2012) Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.11 of 21188 DLT 67.
15. In Vipul Infrastructure (supra), a division bench of the Hon'ble High Court of Delhi, has observed as under:
"17. The interpretation that is sought to be given by the respondents herein, if accepted, would in view of the aforesaid decision, lead to an incongruous situation, as a person who is located in Delhi and buys a property in Gurgaon or in Mumbai, would seek for declaration at Delhi and at the execution stage, get the decree transferred to Gurgaon or Mumbai for its execution.
18. In the present case, it is an admitted position that the appellant had entered into the aforesaid alleged contract at its Corporate office at Delhi. It is the specific stand of the appellant that they were initially residents of Delhi and that they had moved to Gurgaon and their corporate office is now also located at Gurgaon. It is the contention of the counsel appearing for the respondents that the proviso to Section 16 of Code of Civil Procedure is applicable which is sought to be invoked, for, the relief which is sought for could be entirely enforced through the personal obedience of the defendants in Delhi. There is however not only a prayer in the plaint for declaration of the right and title, but also to transfer the right, title and interest in the suit premises Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.Page No.12 of 21
situate at Gurgaon. As, in our opinion, the suit can be decreed in favor of the plaintiff only when the Court can get the sale deed executed and registered in favor of the plaintiff which would confer the title of the suit premises on the plaintiff, and the execution and the registration of the sale document would have to take place at Gurgaon and, for this the Court will also have to pass a decree directing the defendant to get the sale deed executed and registered at Gurgaon, implication of the same will be that a direction will have to be given to the defendant that he shall have to move out of Delhi and go to Gurgaon and get the same registered. No sale deed is sought to be registered at Delhi and, therefore, in our considered opinion such a relief cannot be entirely obtained through the personal obedience of the defendant, who in this case has to go to the jurisdiction of another court to get the decree executed and the sale deed registered.
19. Accordingly, we are of the considered opinion that the submissions of the learned Counsel for the respondent and the findings recorded by the learned Single Judge that the present case is covered by the proviso of Section 16 of the Code of Civil Procedure are misplaced. In the facts and circumstances of the case as delineated, the relief in the present suit cannot be entirely obtained through the Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.Page No.13 of 21
personal obedience of the defendants. The proviso to Section 16 of the Code of Civil Procedure would be applicable to a case where the relief sought for by the plaintiff was entirely obtainable through the personal obedience of the defendant, i.e., the defendant has not at all to go out of the jurisdiction of the Court for the aforesaid purpose. The present case is not a case of the aforesaid nature. In the present case for execution of the sale deed the defendants will have to go out of the jurisdiction of this Court and get the same executed and registered in Gurgaon."
16. In M.K. Sharma (supra), a single judge bench of the Hon'ble High Court of Delhi, after taking note of a majority of the previous judgments on the subject of applicability of proviso to Section 16 of CPC, 1908, to a suit for specific performance of an agreement to sell of an immovable property, has observed as under:
"6. Findings 6.1 The principles laid down by the Supreme Court in the cases of Babu Lal (supra) and Harshad Chiman Lal Modi (supra) and three Division Bench judgments of this Court in Vipul Infrastructure Developers Ltd. (supra); Pantaloon Retail India case (supra) and Splendor Landbase Limited (supra) are summarized as under: Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.Page No.14 of 21
6.1.1 This Court has no jurisdiction to entertain and try a suit for specific performance relating to an immovable property situated outside Delhi because the relief cannot be entirely obtained through the personal obedience of the defendant under the proviso to Section 16 of the Code of Civil Procedure as the defendant will have to go out of the jurisdiction of this Court to get the sale deed registered outside Delhi.
6.1.2 The relief of possession is inherent in the relief of specific performance under Section 22 of the Specific Relief Act, 1963 read with Section 55(1) of the Transfer of Property Act, 1882 and the plaintiffs can seek an amendment to claim delivery of possession at any stage of the suit.
6.1.3 This Court has no jurisdiction to get the decree of possession enforced for the property situated outside Delhi. 6.1.4 The proviso to Section 16 cannot be interpreted or construed to enlarge the scope of the principal provision. ..."
17. In response to the abovenoted submission of the Ld. Advocate for the defendants, the Ld. Advocate for the plaintiffs had submitted that this Court has the territorial jurisdiction to hear and try this suit because the plaintiffs have already secured the possession of the suit property through the order dated 29.08.2012 passed by the Hon'ble High Court of Delhi in OMP No.501/2012 and Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.15 of 21OMP No.508/2012; because in the wake of said factual position, the plaintiffs have rightly not sought the relief of possession of the suit property, through this suit; because the reliefs of specific performance and permanent prohibitory injunction, sought by way of this suit, are capable of being enforced by this Court through the personal obedience of the defendants and because as such, this suit falls within the four corners of the proviso to Section 16 of CPC, 1908. In order to buttress his submission, the Ld. Advocate for the plaintiffs had relied upon the judgment of the Hon'ble Supreme Court in Adcon Electronics Pvt. Ltd. v Daulat & Anr., (2001) 7 SCC 698 and the judgment of the Hon'ble High Court of Delhi in Bhawna Seth v DLF Universal Ltd. & Anr. 2007 (94) DRJ 710.
18. In Adcon (supra), it has been held by the Hon'ble Supreme Court that a suit for specific performance of an agreement to sell of an immovable property can be filed within the jurisdiction of the Court, where the defendant resides or works for gain, if the plaintiff has not sought the relief of possession (a) because such a suit will be a 'suit for enforcement of a contract' and not a 'suit for land' (b) because the decree passed in such a suit, will be capable of being enforced through the personal obedience of the defendant, available within the territorial jurisdiction of the Court and (c) because seen from such perspective, such a suit will fall under the proviso to Section 16 of CPC, 1908.
19. In Bhawna Seth (supra), the Hon'ble High Court of Delhi has interalia applied the judgment of the Hon'ble Supreme Court in Adcon (supra) and entertained the suit filed by the plaintiff seeking specific performance of an Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.16 of 21agreement to sell dated 15.09.1987 qua space no. 149, The Shopping Mall, DLF Qutab Enclave Complex, Gurgaon, Haryana.
20. After considering the rival submissions made by the Ld. Advocates for the parties qua this issue and studying the judgments in Vipul Infrastructure (supra), M.K. Sharma (supra), Adcon (supra) and Bhawna Seth (supra), cited by the Ld. Advocates for the parties as well as the judgment of a division bench of Hon'ble High Court of Delhi in Anil Verman v Raheja Developers Pvt. Ltd. (2011) 184 DLT 646, wherein the Hon'ble High Court of Delhi has tacitly accepted that its judgment in Bhawna Seth (supra), which was interalia based on Rohit Kochhar v Vipul Infrastructure Developers Ltd. 122 (2005) DLT 480, is no longer good law, in view of the judgment of its division bench in Vipul Infrastructure (supra) overruling Rohit Kochhar (supra), I find that the judgments which continue to hold the field for the Courts in Delhi and which bind this Court are the judgments of the Hon'ble High Court of Delhi in Vipul Infrastructure (supra) and M.K. Sharma (supra) and the only way this legal position can change is, if (a) a full bench of the Hon'ble High Court overrules Vipul Infrastructure (supra) in the wake of Adcon (supra)1 or (b) if the Hon'ble Supreme Court, while deciding SLP No. 1016910171/2008, Rohit Kochhar v Vipul Infrastructure Developers Ltd. overrules Vipul Infrastructure (supra) in the wake of Adcon (supra).
21. In both the aforesaid judgments, which I have found to bind this Court 1 In fact in Anil Verman (supra), the division bench of the Hon'ble High Court of Delhi had considered referring Vipul Infrastructure (supra) to a larger/full bench of the Hon'ble High Court of Delhi but later not done so, presumably on account of pendency of SLP No. 1016910171/2008, Rohit Kochhar v Vipul Infrastructure Developers Ltd, in the Hon'ble Supreme Court.
Civil Suit No.208112/2016Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.17 of 21viz. Vipul Infrastructure (supra) and M.K. Sharma (supra), the Hon'ble High Court of Delhi has held that the Courts in Delhi will not have jurisdiction to hear and try a suit for specific performance relating to an immovable property situated outside Delhi because the relief cannot be entirely obtained through the personal obedience of the defendant under the proviso to Section 16 CPC, 1908 as the defendant will have to go out of the jurisdiction of the Court to get the sale deed registered outside Delhi. In view of the said legal position, this issue is decided in favor of the defendants and against the plaintiffs. It is held that this Court does not have the jurisdiction to hear and try this suit for specific performance and consequential relief of permanent prohibitory injunction.
ISSUE NO. 3"3. Whether the plaintiff is entitled for specific performance as prayed for? OPP"
22. In my view, this issue is exfacie liable to be decided in favor of the plaintiffs and against the defendants (a) because the plaintiffs have already paid the entire sale consideration qua the suit property; (b) because through the tripartite agreement dated 16.10.2007, Ex.PW1/2(OSR) and through the above noted consent given by the defendant no.1 before the Hon'ble High Court of Delhi during the proceedings of OMP No. 501/2012 and OMP No.508/2012, the defendants have long acknowledged the right of the plaintiffs to get a valid title qua the suit property; (c) because through the unchallenged testimony of PW1 Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.18 of 21Dr. Sarven Kumar Singh Rawat, the conduct of the plaintiffs has been proven to be blemish free and (d) because whatever blemish the defendants had sought to put on the plaintiffs through the pleadings made in their written statements, has not been proved by the defendants, during the trial of this suit. 2
23. In view of the aforesaid, this issue is decided in favor of the plaintiffs and against the defendants. It is held that the plaintiffs are entitled to the specific performance of the flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR).
ISSUE NO. 4"4. Whether the plaintiff is entitled for decree of injunction as prayed for? OPP"
24. In my view, this issue is also exfacie liable to be decided in favor of the plaintiffs and against the defendants (a) because the plaintiffs have already paid the entire sale consideration qua the suit property; (b) because through the tripartite agreement dated 16.10.2007, Ex.PW1/2(OSR) and through the above noted consent given by the defendant no.1 before the Hon'ble High Court of Delhi during the proceedings of OMP No. 501/2012 and OMP No.508/2012, the defendants have long acknowledged the right of the plaintiffs to get a valid title 2 In regard to this observation, I rely upon the judgment in Vidhyadhar v Manikrao & Anr. (1999) 3 SCC 573, wherein the Hon'ble Supreme Court, after referring to a number of judgments of the Privy Council and the High Courts, has observed, "17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct...".
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Page No.19 of 21qua the suit property; (c) because through the unchallenged testimony of PW1 Dr. Sarven Kumar Singh Rawat, the conduct of the plaintiffs has been proven to be blemish free; (d) because whatever blemish the defendants had sought to put on the plaintiffs through the pleadings made in their written statements, has not been proved by the defendants during the trial of this suit and (e) because grave prejudice will be caused to the plaintiffs if the defendants are left free to create third party rights qua the suit property.
25. In view of the aforesaid, this issue is decided in favor of the plaintiffs and against the defendants. It is held that the plaintiffs are entitled to the relief of permanent prohibitory injunction, as prayed for, albeit not as a stand alone relief but as a relief, consequential to the relief of specific performance of the flat buyers agreement dated 18.06.2007, Ex.PW1/1(OSR).
RELIEF
26. In view of the aforesaid findings given qua the issues framed in this suit, on 02.08.2019, particularly the finding given qua issue no. 2, it is directed that the plaint of this suit shall be returned to the plaintiffs as per Order VII Rule 10 of CPC, 1908, for filing before the concerned Court in Ghaziabad, U.P.
27. Before parting with this judgment, I find it necessary to state for the benefit of the Ld. Advocates for the parties to this suit, who had rendered quality assistance to this Court, on 27.08.2022 and 17.10.2022, (a) that Adcon (supra) Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
Page No.20 of 21has been followed by the Hon'ble Supreme Court in Excel Dealcomm Pvt. Ltd. v Asset Reconstruction Company (India) Ltd. & Ors, (2015) 8 SCC 2019 and (b ) that despite the reservations expressed in Anil Verman (supra) qua the judgment in Vipul Infrastructure (supra), the said judgment has withstood the test of time and has been unequivocally relied upon/followed by the Hon'ble High Court of Delhi in Ansal Housing and Construction Ltd. v AJB Developers (P) Ltd., (2012) 130 DRJ 383 and MS Shoes East Ltd. v DDA, (2018) 249 DLT 199.
28. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. Digitally signed JAY by JAY THAREJA THAREJA Date: 2022.11.10 16:58:56 +0530 Announced in open Court (Jay Thareja) today on 10.11.2022 Ld. ADJ07, South East District, Saket Courts/Delhi Civil Suit No.208112/2016 Dr. Sarven Kumar Singh Rawat & Anr. v Khemka Stuart Leisure Ltd. & Anr.
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