Ms. Shoes East Ltd vs Housing & Urban Development ... on 3 July, 2010

[Cites 107, Cited by 0]

Delhi District Court

Ms. Shoes East Ltd vs Housing & Urban Development ... on 3 July, 2010

   IN THE COURT OF SH. AJAY GOEL: SCJ CUM RC(CENTRAL):DELHI


Suit No. 1026/06/97


MS.  Shoes East Ltd.
Through its Managing Director,
Shri Pavan Sachdeva,
112 A, Ekta Enclave,
New Delhi                                                                               .................... Plaintiff.


                                                      VERSUS


1. Housing & Urban Development Corporation Ltd.,
   Core V Scope  Complex
   7, Lodhi Road, New Delhi110003
2. Union of India
   Through Secretary
   Ministry of Urban Affairs and Employment 
   Nirman Bhawan, New Delhi
                                                                                          .................Defendants 
Date of filing: 24.1.1997
Date of assignment to this court: 18.12.2008
Date of concluding of arguments: 11/21.5.2010
Date of decision: 03.7.2010

JUDGMENT

Brief History & Events in the Case:

1. This is a suit for declaration filed by plaintiff company incorporated under the Companies Act, 1956 against defendant no. 1(HUDCO), a public sector undertaking being a company incorporated under the Companies Act, 1956, and defendant no. 2(UOI), through Secretary, Ministry of Urban Affairs & Employment in respect of the suit property containing 5 star hotel land alongwith Suit No.:1026/06/97 Page:1/228 415 car park in basement built by defendant no. 1. The suit property was alloted to plaintiff company vide allotment letter dated 31.10.94 by defendant no. 1 which has been cancelled vide cancellation letter dated 2.5.96 which has been challenged in the present suit to be declared as null and void. The suit was filed on 24.1.97 initially against MCD as defendant no. 1 and HUDCO as defendant no. 2 for declaration declaring the cancellation letter dated 2.5.96 as null and void and directing defendant no. 2(HUDCO) by way of mandatory injunction to deliver possession of the suit property to plaintiff and restraining defendant no. 2 (HUDCO) to reallot the suit site and restraining defendant no. 1(MCD) from raising/charging House Tax demands in respect of the suit property. The said suit was filed before Ld. ADJ alongwith application u/o 39 Rule 1 and 2 seeking to restrain defendant no. 2(HUDCO) now defendant no. 1 from realloting the suit property at Andrewsgunj, New Delhi since the suit property was being retendered and the tenders were floated on 26.12.96 for submission of bids in January, 1997. The exparte status quo in respect of the allotment of the site in question was granted on 25.1.97 by Ld. ADJ till the next date of hearing. The written statement was filed by defendant no. 2(HUDCO) on 3.2.97 alongwith an application under Order XXXIX Rule 4 CPC for vacation of interim Order dated 25.1.97 which was disposed off vide Order dated 17.3.97 vacating the interim status quo. Plaintiff filed appeal against the order dated 17.3.97 being FAO No. 78/1997 and defendant no. 2 now defendant no. 1(HUDCO) also filed an appeal being FAO111/97 against Suit No.:1026/06/97 Page:2/228 the order dated 17.3.97 since many paras of this order had observations against defendant no. 1. It is stated by plaintiff that order dated 27.3.97 was passed in FAO No. 78/97 that any action of defendant no. 1 will be subject to out come of FAO 78/98 resultantly the suit property was alloted to Leela Hotels Ltd. vide allotment letter dated 31.3.97 subject to the outcome of present suit. Plaintiff has submitted that both the appeals were clubbed together as per order dated 28.4.97 of Hon'ble High Court of Delhi both of which have been disposed of by Hon'ble High Court of Delhi vide separate orders. Leela Hotels Ltd. was impleaded as one of the party to the suit vide order dated 15.11.97 of my predecessor on the application filed by Leela Hotels Ltd. u/o 1 Rule 10 CPC, plaintiff filed revision before Hon'ble High Court against the order dated 15.11.97 impleading Leela Hotels Ltd. as one of the party to the suit and the revision of plaintiff was allowed by Hon'ble High Court of Delhi against which Leela Hotel Ltd. filed an SLP No. 1266/1999 which was disposed of by Hon'ble Supreme Court vide order 19.4.99 allowing the petition of Leela Hotels Ltd. for impleadment as a party to the present suit with directions to expedite the suit. Further UOI was impleaded as one of the party to the suit vide order dated 2.7.99 of my predecessor on the application filed by plaintiff u/o 1 Rule 10 CPC. The amended plaint was allowed by this Court vide Order dated 2.7.99 by impleading UOI as defendant no. 2 and Leela Hotels Ltd as defendant no. 4. However, Leela Hotels Ltd. was deleted by this court vide Order dated 2.9.99 as one of the defendant on the application filed by plaintiff u/o 1 Rule 10 Suit No.:1026/06/97 Page:3/228 since the allotment of Leela Hotels Ltd. was also cancelled by defendant no. 2 (HUDCO) and the matter was referred to Hon'ble Arbitrator Retd. Chief Justice Sh. R.S. Pathak. Further MCD was deleted vide order dated 26.10.99 on the application of plaintiff as MCD had dropped the property tax demands raised on plaintiff in respect of suit property. The second amendment was allowed and the amended plaint was filed by plaintiff wherein HUDCO remained as defendant no. 1 and Union of India as defendant no. 2. Written statement was filed by defendant no. 2 and the amended written statement was filed by defendant no. 1 against which an application was filed by plaintiff under Section 151 CPC for setting aside the amended written statement filed by defendant no. 1 on the plea that the new materials and new paras have been added by defendant no. 1 in various paras. Plaintiff also filed the replication to the written statement filed by defendant no. 2 and the replication to the amended written statement was filed by plaintiff objecting to the new material and new paras added by defendant no. 1 in the amended written statement.

2. An application was filed on 17.2.00 by defendant no. 2 u/o VII Rule 11 CPC for rejection of plaint and an application was also filed by defendant no. 1 on 17.2.00 u/s 151 CPC for striking out of the amended plaint. The application of defendant no. 1 was dismissed by my predecessor vide order dated 20.5.00. Another application was filed on 19.5.00 by defendant no. 1 u/o VII Rule 11 CPC for rejection of the plaint which was dismissed as withdrawn on 24.8.00. The Suit No.:1026/06/97 Page:4/228 application filed by defendant no. 2 u/o VII Rule 11 CPC was dismissed by my predecessor vide order dated 3.3.01 against which defendant no. 2 filed Civil Revision No. 480/01 before Hon'ble High Court of Delhi which was allowed vide Order dated 24.8.01 and plaintiff was directed to pay court fees on the market value of the suit property vide order dated 24.8.01 of Hon'ble High Court of Delhi holding that relief of mandatory injunction of possession was consequential relief and hence plaintiff should pay court fee on market value as per section 7(iv)C and 7(v)C of Court fee Act. It was directed by my predecessor on 12.3.01 to all the parties to file original documents and to come for admission and denial of documents thereof and for framing of issues. Some of the original documents filed by plaintiff were admitted by defendants which were exhibited as Ex. P1 to P6 and the issues were framed on 4.7.01. An application was filed by plaintiff under order XXIII Rule 3 CPC alongwith amended plaint which was allowed by my Predecessor vide Order dated 17.11.01, plaintiff through this application abandoned the claim directing defendant no. 1 (HUDCO) by way of mandatory injunction to deliver possession of the suit property to plaintiff and restraining defendant no. 2 to reallot the suit site. Defendant no. 2 filed a C.M. Main No. 193/02 against the order dated 17.11.01 of Ld.ADJ before Hon'ble Court of Delhi.

In the meantime, the present suit was transferred to Civil Judge due to the change in jurisdiction by Order no. F3(4)/ADJ/2131 dated 27.3.02 of Ld. District Judge for jurisdictional value and was numbered as suit no. 123/04 which was further Suit No.:1026/06/97 Page:5/228 transferred on 3.3.06 to Sr. Civil Judge and numbered as 1026/2006/1997.

Hon'ble High Court disposed of C.M.(Main) No. 193/2002 by order dated 2.11.06 confirming the order dated 17.11.01 of my predecessor and accordingly the amended plaint was taken on record, the amended written statement was filed by defendant no. 1 on 9.8.07 and defendant no. 2 chose not to file amended written statement, plaintiff in his replication had objected to the illegal amendments inserted in the written statement alongwith additional paras. The said objections of plaintiff were recorded by this Court vide order dated 23.4.09 that original WS filed by defendant no. 1 will be read in conjunction with amended WS filed by defendant no. 1 and any unauthorised amendment if exists will not be read. Defendant no. 1 filed another application on 5.7.07 u/o VII Rule 11 for rejection of plaint which was dismissed by this court vide order dated 29.1.09 which has not been challenged by defendant no. 1 which attained the finality. Application was filed by plaintiff u/o XI Rule 12& 14 CPC for defendant no. 1 and defendant no. 2 for production of documents which were allowed vide order dated 23.4.09 and the fresh issues were framed on this date with the consent of defendants on the application filed by plaintiff u/o XIV Rule 5 CPC, no other issues were pressed by either of the parties to the suit. Plaintiff filed the list of 25 witnesses of which two witnesses were the officers of defendant no. 1 one of which was Sh. P.K. Garg who refused to accept the summons and one witness Sh. H.K. Dubey declined to enter the witness box in spite of he being present in the court and the observations were recorded by this court on date 27.5.09 Suit No.:1026/06/97 Page:6/228 that adverse inference if any at the time of final arguments regarding the documents and questions would be considered.

Pleadings:

1. The brief facts of the present case as made out by plaintiff from plaint, replication, documents, evidence and arguments are that defendant no. 2 is the owner of the land situated at Pinrapole, Andrews Ganj, New Delhi also called as Hudco Place, the land is measuring 17.6 acres for Community Centre, 17 acres Green and 25 acres residential which was given by defendant no. 2 to defendant no. 1 for development of Community Centre in the urgency of Afro Asian Games to be held in 1991. Defendant no. 1 was to construct the buildings comprising of the Guest House Blocks, restaurants, shops and car park basement and thereafter call for the bids of the properties to be developed in the Community Centre measuring 17.6 acres. The advertisements were issued by defendant no. 1 on the direction of defendant no. 2 to call for the bids of the properties at Andrews Ganj comprising of guest house blocks, restaurants, shops, shopping arcade land alongwith part of the built car park basement, cultural centre, 5 star hotel land alongwith part of the built car park basement, part of the same car park basement alongwith 210 car park with shopping arcade and 415 car park alongwith five star hotel land. The said advertisement was given by defendant no. 1 in the leading newspapers on 26.5.94. The brochure inviting the bids clearly states that the HUDCO place an integrated urban design complex is developed by defendant no. 1 under directions Suit No.:1026/06/97 Page:7/228 from defendant No. 2 and is offered for the properties for sale on lease hold basis being (a) Five Star hotel site: about 3 acres land with permissible buildable space of 25000sq.mtr. plus basement of 4000 sq. mtr. with underground built car parking space, the reserve price for site Rs. 50.00 crores earnest money of hotel site:Rs.2.00 crores and payment schedule a) 40% within four weeks of acceptance of offer b) 30% end of one year of acceptance of offer c) 30% at the end of two years of acceptance of offer, and other properties (b) Guest Houses built with high standard of construction and finished in permanent materials, using machine made brick tiles with blue glass mosaic on the roof etc. ( c) Restaurants/Kitchen in guest houses (d) shops (e) site for shopping arcade plus underground car parking for Rs. 11.50 crores (f) Site of Cultural Centre. In the disposal terms it is stated that Govt. has given the land to HUDCO on 99 years lease. The construction of unbuilt space for the alloted properties shall be done according to the basic design approved by Delhi Urban Art Commission (DUAC), it is further stated that on default in payment: interest will be charged on outstanding installments at 16% p.a and additional penal interest for delayed payment at 3% p.a, interested parties were to send offers alongwith (I) earnest money) (ii) technical information containing (1) name and address (2) present business (3) brief history of the offerer with particular reference to financial parameters enclosing copies of annual report, audited balance sheet/profit and loss account of last three years (4) details of collaboration proposed, if any (5) experience in running business being offered for Suit No.:1026/06/97 Page:8/228 purchase (6) any other relevant detail. The last date of submission of offer was 3.00 p.m on 15.7.94 to be submitted to Sh. H.K. Dubey, Assistant Chief, Housing and Urban Development Corporation. It is admitted fact that defendant no. 1 had issued certain clarifications on 30.6.94 in regard to the proportionate cost of common services for five star hotel site on account of basement car parking only would be approximately Rs. 14.00 crores after prebid meetings with the bidders. The plaintiff offered its bid for Rs.64.10 crores for five star hotel site against the reserve price of Rs. 50.00 crores and additionally Rs. 14.00 crores for car park basement which was fixed price further satisfying all the conditions of the brochure including the documents of financial capabilities and collaboration. The plaintiff's offer for five star hotel site alongwith built car park was found to be unconditional satisfactory as to the financial abilities and as well as they were found to be the highest on opening of the bids on 15.7.94 by defendant no. 1. Defendant no. 1 submitted the bids report to defendant no. 2 on disposal of properties of the bids received on 15.7.94 for the approval of defendant no. 2 before issue of allotment letters since defendant no. 2 directed defendant no. 1 to withhold the disposal decisions since allotments could not be issued without the approval of the bids by defendant no. 2. It is stated that defendant no. 1 had been in process of disposing off guest houses and hotel site and the allied components for the other properties for the last two years without much success prior to the bids of 15.7.94. It is also stated that for guest house blocks, restaurants/kitchen and shops Suit No.:1026/06/97 Page:9/228 the highest bidder was Chennai Holdings Ltd. and for Shopping Arcade Ansals Properties and Industries Ltd. name was recommended by defendant no. 1 to defendant no. 2 for their approval. It is stated that defendant no. 2 approved the allotment for hotel site and guest house complex to be given to bidder i.e. M/s Shoes East Ltd., plaintiff herein and disapproved the bids for shopping Arcade and defendant no. 2 directed defendant no. 1 to float a fresh tender in respect of Shopping Arcade. On approval of defendant no. 2 given on 26.10.94, defendant no. 1 issued the allotment letters for the suit property as well as other properties on 31.10.94. Proforma agreement to sublease(agreement to sell) dated 31.10.94 was duly signed by defendant no. 1 on foot of each page and it also issued allotment letters dated 31.10.94 for Guest house blocks, restaurants and shops alonwith other documents all signed by Sh. H.K. Dubey, Assistant Chief, HUDCO. The copy of the allotment letters are also marked to defendant no. 2. The said allotment letter dated 31.10.94 has been duly received alongwith the agreement to sublease by plaintiff. Plaintiff through letter dated 31.10.94, accepted the terms and conditions as contained in the allotment letter and the agreement to sublease(agreement to sell) and returned the agreement to sublease(agreement to sell) duly countersigned on foot of each page as required by defendant no. 1.

2. Consequently on the decision made by the defendant no. 2 the shopping arcade was retendered and a fresh brochure on similar terms was floated by defendant no. 1 for calling the bids on 16.2.95, it is observed that the conditions of the Suit No.:1026/06/97 Page:10/228 earlier brochure and the subsequent brochure are identical and similar in all respects. It is stated by plaintiff that they had also offered the bid under this brochure, however since Ansals Properties and Industries Ltd. were the highest bidders the shopping arcade was allotted to Ansals Properties and Industries Ltd. on the approval of defendant no. 2 and the earnest money of Rs. 1.50 crores paid by plaintiff has been adjusted towards the payment of the Ist installment of the suit property and accordingly the letter was issued on 24.2.95. The allotment letter was issued to Ansals Properties and Industries Ltd. on 10.3.95, from where it is observed that the allotment conditions of this allotment letter as well as the plaintiff's allotment letter are exactly similar and identical and even the part of car park basement is allotted to Ansals Properties and Industries Ltd. as well as to plaintiff, the only difference is the allotment consideration and the payment schedule in case of Ansals Properties and Industries Ltd. is that the 2nd installment is after one year and the 3rd installment is after 18 months as compared to the plaintiff's payment schedule being of 2nd installment after 12 months and the 3rd installment after 24 months, even the conditions of entry to the land on licence for construction of the building on receipt of the Ist installment is identical. The comparison chart of conditions of both the allotments of plaintiff of the suit property as well as of the Ansals Properties & Industries Ltd. has been admitted and certified by defendant no. 2.

3. The salient terms of allotment letter dated 31.10.94 of the suit property to plaintiff, Suit No.:1026/06/97 Page:11/228 and allotment letter dated 10.3.95 of shopping Arcade issued to Ansals Properties and Industries Ltd. are as follows:

Clause. 3. We are also pleased to allot to you the underground car parking space with the capacity to park about 415 cars on a separate area adjacent to the Hotel site.(Same as that of clause 3 of the allotment of Ansals Properties and Industries Ltd.) Clause 4. The hotel site as well as the car parking space as mentioned in para 2 and 3 above shall be on perpetual sub lease hold basis.(Same as that of clause 5 of allotment of Ansals Properties and Industries Ltd.) Clause 5. The broad terms and conditions for the allotment as under:

(i) The 5Star Hotel building shall be constructed within the parameters of the approved overall Urban Design/for after obtaining required approvals from the concerned local authority and the Delhi Urban Art Commission. The height coverage in basement and such related development controls shall be as per the operative norms of statutory authorities.(Same as that of clause6(i) of allotment of Ansals Properties and Industries Ltd.)

(ii) You shall make the payment of premium i.e. consideration of Rs.

64.10 crores for the allotment of the Hotel site and Rs. 14.00 crores for the allotment of car parking space. The payment shall be made in the following manner/stages:(Same as that of clause 6(ii) of allotment of Suit No.:1026/06/97 Page:12/228 Ansals Properties & Industries Ltd.) (A) Hotel site(Rs.64.10 crores)

(i) Within 4 weeks of the date of this allotment letter (i.e. before 28.11.94) 40% (Rs.25,64,99,000)

(ii) Before the end of one year of the date of this allotment letter (i.e. before 31.10.95) 30% (Rs. 19,23,00,000)

(iii) Before the end of two year of the date of this allotment letter (i.e. before 31.10.96) 30% (Rs. 19,23,00,000) 64,10,00,000 (B) Car Parking Space(Rs. 14.00 crores)

(i) Within four weeks of the date of issue of allotment letter(i.e. before 28.11.94) 10% (Rs. 1,40,00,000)

(ii)Before end of one year of the date of issue of allotment letter i.e. before 31.10.95) 40% (Rs. 5,60,00,000)

(iii)Within four weeks of issue of allotment letter by HUDCO Intimating that the services were ready for being handing over 50% (Rs. 7,00,00,000) ................................

Rs. 14,00,00,000) ................................

The above payments shall be made through demand drafts drawn in favour of HUDCO payable at New Delhi.

(iii)No interest will be charged on payments made before the due dates stated above. In case of default, interest shall be charged @ 16% p.a for three months if the payment is made after the due date. Additional penal interest @ 3% p.a. shall also be charged on the interest for three months. Any delay beyond three months would entail cancellation of allotment and/or forfeiture of the total amount deposited till date. (Same as that of clause 6(iii) of allotment of Ansals Properties & Industries Ltd.) Suit No.:1026/06/97 Page:13/228

(iv)You will be required to complete the construction of the hotel site within three years of the date of handing over possession of the hotel site on licence basis for construction of the hotel building as per terms and conditions contained in the proforma of agreement to sub lease, two copies of which are enclosed with this allotment letter. In the event of non completion of construction within stipulated time, HUDCO may consider granting extension if exceptional and unavoidable circumstances have prevented you to complete construction within the stipulated time. The decision of HUCO regarding the existence of the exceptional and unavoidable circumstances will be final and binding upon you. In case the construction is not completed within the prescribed period or the extended period as decided by HUDCO, HUDCO will have the right to take over the land alongwith the unfinished building with materials, fixtures, if any on the site without payment of any compensation to you. Since the underground car parking space will be made available to you in the adjacent building, you may provide underground linkage from the hotel with the parking space. However, cost of such linkage shall be borne by you.(Same as that of clause 6

(iv) of allotment of Ansals Properties and Industries Ltd.)

(vi)HUDCO will execute all required documents for obtaining approval of the competent authority under the Urban Land(Ceiling and Regulation) Act (ULCR), 1976 and also of the Appropriate Authority in terms of the chapter XXC of the Income Tax Act. If these approvals are not accorded HUDCO will refund the amount paid without any interest and you shall not be entitled to claim any compensation or damages(Same as that of clause 6(vii) of allotment of Ansals Properties and Industries Ltd.)

(viii)Initially, the hotel site will be on a licence under an Agreement to Sublease and upon fulfillment of the terms of the said Agreement including payment of all dues, perpetual sublease will be executed. The terms and conditions of the perpetual sub lease shall be as per the proforma duly approved by Govt. of India, a copy of which will be sent to you in due course. ((Same as that of clause 6(ix) of allotment of Ansals Properties and Industries Ltd.)

(ix) Upon the receipt of the first installment of the premium both for the hotel site as well as the car parking space as indicated in para 5(ii) and also after receipt of approvals as indicated in para 5(vi) the agreement to sub lease will be made available to you for execution for hotel site and upon its execution the possession of Suit No.:1026/06/97 Page:14/228 hotel site will be handed over to you for raising construction. (Same as that of clause 6(x) of allotment of Ansals Properties and Industries Ltd.)

(xiv)You shall not deviate in any manner from the layout plan nor after the size of the hotel site for said purpose either by sub division, amalgamation or otherwise failing which HUDCO in its discretion will be entitled to cancel the lease and forfeit the amount paid by you.

(xix)You shall ensure that licencees of the space carved out of the area meant for activities/trade, ancillary to the hotel, observe the general conditions of the sub lease entered into between you and HUDCO and the lease deed entered into between the HUDCO and the Govt. of India. The licencees of the space meant for activities/trade, ancillary shall not use or permit to be used the space referred to above or any portion thereof for any purpose whatsoever other than the prescribed use.

Clause 6. You are now requested to deposit an amount of Rs.2364 crores after adjusting the amount of Rs. 2.00 crores already deposited by you as earnest money with the offer towards the payment of first installment of hotel site. A sum of Rs.1.4 crores should also be deposited by you towards the proportionate cost of car parking space. You are therefore, requested to deposit the total amount of Rs.25.04 crores by bank draft on any scheduled bank on or before 28.11.94. You are requested to make the above payments and initiate action for obtaining approvals under para 5(vi) above. You are also requested to return a copy of the proforma of agreement to sub lease duly signed at the foot of each page in token of you having accepted the terms and conditions therein.(Same as that of clause 7 of allotment of Ansals Properties and Industries Ltd.) Clause 7. Please note that in the even of non payment of abovesaid amount by the dates specified hereinabove and return of the proforma of Agreement to Sub lease duly signed, the acceptance of offer made by you shall stand rescinded without further reference to you and the earnest money to Rs.2.00 crores paid by you shall stand forfeited.(Same as that of clause 8 of allotment of Ansals Properties and Industries Ltd.)

4. As admitted by defendant no. 1, plaintiff paid the Ist installment towards the hotel site as well as the car parking as per clause 5(ii) (A), 5(ii)(B) (i) and 5(iii) as given Suit No.:1026/06/97 Page:15/228 above i.e. Ist installment was paid as per Clause 5(iii) with default clause being with interest for three months lastly paid on 28.2.95 which was duly accepted by defendant no. 1 with default and the receipts have been issued by defendant no. 1. It is stated by plaintiff that it reminded defendant no. 1 various times to perform its obligations under the terms of allotment letter by executing the required documents under Income Tax Act and Urban Land Ceiling and Regulation Act (ULCR Act) and for execution of agreement to sublease(agreement to sell), the letter dated 2.3.95, letter dated 5.4.95, , letter dated 25.10.95 and letter dated 30.1.96 but defendant no. 1 did not execute any documents nor the agreement to sub lease and further defendant no. 1 threatened through its letter dated 18.10.95 to cancel the allotment. It is submitted by plaintiff that on receipt of letter dated 18.10.95, plaintiff submitted letter dated 25.10.95 personally to the CMD of defendant no. 1 and in continuation to this letter plaintiff submitted another letter dated 30.1.96 which was acknowledged by the Private Secretary of CMD of defendant no. 1 as CMD was not available on this date.

5. It is submitted by defendant no. 1 that plaintiff on receipt of the letter dated 18.10.95 filed a suit no. 275/96 before Hon'ble High Court for declaration that the dates of 31.10.95 and 31.1.96 are deemed to be extended till the defendants performed its obligation, interalia under clause 5(vi) and 5(ix) of the allotment letter dated 31.10.94 and the decree of permanent injunction in favour of plaintiff and against defendant restraining the defendant from canceling the allotment letter dated 31.10.94. It is contended by the defendants that Hon'ble High Court directed plaintiff to deposit Rs.15.00 crores by 8.4.96 vide order dated 16.4.96 Mark DW 1/I which was not deposited by plaintiff even on the extended time of ten days by Hon'ble High Court and resultantly the defendant no. 1 terminated the allotment through letter dated 2.5.96. It is submitted by defendant no. 1 that the stay granted by Hon'ble High Court in suit no. 275/96 was vacated on 17.5.96 and the suit was fixed for admission/denial of documents on 3.9.96 before Joint Registrar of Hon'ble High Court of Delhi. It is submitted by plaintiff that when the said suit 275/1996 was pending defendant no. 1 invited the fresh bids on 29.11.96 for the suit property and as well as filed the application in suit no. 275/96 for dismissal of the suit, on the plea that the plaintiff is not entitled to any of the relief sought in the plaint and that the suit has become infructuous since the letter of allotment stands terminated. The brochure of the suit property under which the bids were called on 29.11.96 giving the payment schedule for hotel site and basement car parking stipulated that "It is to be noted that the time for payment of the premium as per the allotment letter shall be essence of the contract and irrespective of whether the allottee has been able to start the construction on the allotted hotel site or not due to any reason whatsoever 2) Immediately after the payment of first installment the allottee, with the help of HUDCO shall take all required approvals in terms of Chapter XXC of the Income Tax Act and Urban Land (Ceiling and Suit No.:1026/06/97 Page:16/228 Regulation) Act .......". Further disclosing that the perpetual lease for hotel site is yet to be executed by Government in favour of HUDCO, the lease and sub lease and agreement to sub lease will be in the form approved/specified by the Government. The said hotel site is subject matter of litigation. In the meantime MCD raised the property tax demands for the 5 star hotel site and car parking alloted to plaintiff and pressed for its payment on plaintiff, hence the present suit was filed on 24.1.97 by plaintiff against MCD(defendant no. 1) and HUDCO (defendant no. 2) now defendant no. 1 and plaintiff filed the application on 30.1.97 for withdrawal of the previous suit no. 275/96 which plaintiff informed this court by filing the copy of application alongwith rejoinder to the reply of HUDCO. It is submitted by plaintiff that defendant no. 1 strongly opposed the application filed 30.1.97 for withdrawal of previous suit no. 275/96. The suit No. 275/96 was finally dismissed as withdrawn vide order dated 22.4.97 of Hon'ble High Court.

6. The interim exparte order was vacated by this court on 17.3.97 and defendant no. 1 issued the allotment letter to the successful highest bidder being Leela Hotels Ltd who were allotted the suit property on 31.3.97, the terms of allotment letter are similar to the terms of allotment dated 31.10.94 of plaintiff except that it is stated in the allotment letter to Leela Hotel Ltd. that " Please note that the time for payment of the premium as per the allotment letter shall be essence of the contract and irrespective of whether you have been able to start the construction on the alloted hotel site or not due to any reason whatsoever", the clause 4(x) regarding the lease period and the disclosure of the fact that execution of perpetual lease is yet to be executed by Govt. in favour of HUDCO and that the allotment will be subject to outcome of suit no. 1/97 filed before Ld.ADJ and any appeals or other proceedings arising there from or outcome of suit no. 275/96 filed before Hon'ble High Court of Delhi. The said allotment letter is also marked to defendant no. 2 for their necessary action. The perpetual lease by defendant no. 2 was executed with defendant no. 1 on 4.7.97 after the defendant No. 1 cancelled the allotment in favour of the plaintiff. On the same date on 4.7.97 the agreement to sublease was executed by defendant no. 1 with Leela Hotels Ltd. further giving the provisional entry to the land on licence on 7.7.97 for construction of the hotel building.

7. Written statement by defendant No. 1 and 2 was filed and plaint was amended later on and in the amended written statement filed by defendant no. 1 it is stated that the declaration without any consequential relief of possession is barred under section 34 of Specific Relief Act and that the suit does not disclose complete cause of action and that the mere declaration so claimed is barred by the provisions of Suit No.:1026/06/97 Page:17/228 Specific Relief Act, 1963. It is further stated that plaintiff itself had sought consequential relief of mandatory injunction for possession but abandoned it later on and the plaintiff is seeking to enforce the agreement which is an abuse of the process of the court, that plaintiff is liable to pay court fee on the allotment letter consideration. That plaintiff has claimed substantial relief in the garb of relief simplicitor and the said relief claimed is hardly a composite or complete relief and that the application u/o VII Rule 11 of CPC is pending disposal. This court has no jurisdiction as the subject matter is beyond pecuniary jurisdiction of this court. That plaintiff cannot value the suit for declaration that the letter dated 2.5.96 is null and void at a sum of Rs.1,05,000.00. That the plaintiff filed an earlier suit no. 275/96 and the issues in the said suit are same that have been raised by plaintiff in the present suit. That the further cause of action in the present suit is same and therefore forms the same cause of action as in the previous suit. That the present suit is barred by Order 2 Rule 2 CPC. That the allotment stands cancelled and plaintiff had no right, title or interest whatsoever in the suit property. That the plaintiff is in breach of essential terms of contract and cannot seek a declaration that letter of cancellation dated 2.5.96 is null and void. That the suit is for specific performance of allotment letter dated 31.10.94 which already stands terminated. That the suit is misjoinder of parties as defendant no. 2 is neither a proper nor necessary party to the suit. That the suit is not maintainable as suit no. 275/96 before Hon'ble High Court was withdrawn without any liberty and the suit is Suit No.:1026/06/97 Page:18/228 therefore barred by law that is Order 23 Rule 1 CPC. Defendant no. 1 in para no. 6 denies that there was any agreement between plaintiff and defendant no. 1 of any nature whatsoever except the terms of letter of allotment dated 31.10.94. Defendant no. 1 further denied that they had to execute any necessary documents in terms of allotment letter and that no provisional possession even could have been granted to plaintiff before payment of balance installments and that plaintiff breached the terms of allotment. That the letter of allotment was cancelled by defendant no. 1 in terms of the order of Hon'ble High Court of Delhi dated 16.4.96 and 17.5.96. Defendant no. 1 denied that the suit no. 275/1996 was on facts or circumstances prior to cancellation of allotment. That defendant no. 1 alloted the suit property in favour of Leela Hotels Ltd. which was also cancelled due to failure to pay the last and final installment on due date. Defendant no. 1 further denied that any provisional possession on licence of the suit property was to be given to the plaintiff after receipt of Ist installment. It was further denied that defendant no. 1 in a similar matter had given extension to Ansals Properties & Industries Ltd. and he has failed to show as to how it has been discriminated against Ansals Properties & Industries Ltd. Defendant no. 1 denied that the lease deed had not been executed and that the lease was executed on 4.7.97 which was retrospective. That defendant no. 1 admitted that the possession was to be legally handed over on licence basis only for construction purposes provided the requirements under Income Tax Act had been complied with by plaintiff. Defendant no. 1 stated that Suit No.:1026/06/97 Page:19/228 the land belongs to the defendant no. 2 but under the lease dated 4.7.97 it has the right to allot the land and to execute the sub lease and that they are not required to take permission of defendant no. 2 in terms of the lease executed for the cancellation of any allotment made. Defendant no. 1 admitted that in respect of Ansals Properties & Industries Ltd. they granted the extensions of installments since it related to delay in the regularisation of car parking basement but the case of Ansals Properties & Industries Ltd. has no connection/bearing whatsoever with that of plaintiff as two contracts are separate and distinct and that the plaintiff is not similarly situated as Ansals Properties & Industries Ltd. Defendant no. 1 further admitted that the terms of lease of letter of allotment 19.3.96 to them quoted in a plaint are a matter of record but the same has no relevance to the facts of the present case. Defendant no. 1 denied that the allotment of the land to them is governed by the Government Grants Act and that under the Govt. Grant Act the approval of Government was required for cancellation of allotment made by the grantee. Further defendant no. 1 denied any cause of action arose on 2.5.96.

8. Replication was filed by plaintiff in which contents of written statement filed by defendant no. 1 were denied and of those of the plaint were reiterated. It was pointed out in the replication that para 1 to 5, 7, 10,11 and 12 of preliminary objections and para 1,5,6,7,8,9,11,13,19, and 22 have new materials which cannot be read and the same has to be struck off from the record as defendant no. 1 in amended written statement has illegally and wrongfully tried to improve its case Suit No.:1026/06/97 Page:20/228 without the leave of the court which is in violation of the principles, pleadings and in particular or Order VI Rule 17 CPC. An application in regard to the same was also filed by the plaintiff.

9. Defendant no. 2 in its written statement to the earlier amended plaint stated that the suit is an abuse of process of law and is not maintainable and plaintiff is not entitled to discriminatory reliefs of declaration and the suit is for specific performance. That plaintiff had filed the earlier suit before High Court and the relief claimed in the present suit is similar to the one claimed in the suit no. 275/1996 which was withdrawn unconditionally. That the suit is not maintainable as no mandatory injunction for delivery of possession by defendant no. 2 can be sought since defendant no. 2 has already handed over the possession to defendant no. 1. That defendant no. 2 alloted the said land to defendant no. 1 vide letter dated 27.9.92 on perpetual lease basis which were modified vide letter dated 19.3.96 and the terms of allotment were modified in superession of letter dated 27.9.92. That the lease was executed on 4.7.97 between Govt. and HUDCO. That defendant no. 1 was authorised to take all necessary decision as per allotment letter dated 19.3.96 which was superseded by allotment letter dated 27.3.92. That there is no similarity between plaintiff and Ansals Properties & Industries Ltd. That plaintiff was to take appropriate action for clearances under Income Tax Act. That defendant no. 2 has not acted arbitrary, illegal and/or uncalled for manner. That the plaintiff had defaulted in making payment as per terms of allotment letter. That Suit No.:1026/06/97 Page:21/228 the land in question at Andrewsganj was alloted to defendant no. 1 by defendant no. 2 on terms and conditions contained in allotment letter dated 27.3.92 and 19.3.96 and the lease dated 4.7.97. Defendant no. 2 denied that any approval for allotment/extension of time had been given by them to defendant no. 1 and defendant no. 2 denied to have discriminated with plaintiff vis a vis Ansals Properties & Industries Ltd. That the suit has been grossly under valued since the relief of mandatory injunction and relief of possession of immovable property is to be based on market value.

10.Replication was filed by plaintiff in which contents of written statement filed by defendant no. 2 were denied and of those of the plaint were reiterated. Issues:

1. Two applications filed by the plaintiff under Oder 11 Rule 12 & 14 CPC against defendant no. 1 and defendant no. 2 to produce original documents which were allowed by this court vide order dated 23.4.09 and further on the same date in supersession of earlier issues the following issues were framed with the consent of all the parties and no other issues were pressed by either of the parties:

1) Whether defendant no. 1 performed its reciprocal obligations on receipt of 1st installment from plaintiff as per terms of allotment letter dated 31.10.94 and whether in the absence of not doing so defendant no. 1 could demand the 2nd installment?OPP

2)Whether defendant no. 1 has committed breach?OPP Suit No.:1026/06/97 Page:22/228

3)Whether defendant no. 1 misrepresented that entire complex of community centre is approved when the building plans of 5 star hotel could not be sanctioned without approval of revised lay out plans and unless the unauthorized constructions carried out car park and other buildings constructed by defendant no. 1 at HUDCO Place were regularized and whether defendant could demand the second installment in the absence of such approvals?OPP

4)Whether the act and conduct of the defendant no. 1 and 2 was arbitrary, illegal and discriminatory while dealing with the plaintiff in respect of the suit property and whether defendants have permitted various times interest free extensions under similar conditions of allotment to Ansals Properties & Industries Ltd. As of plaintiff because car park was built unauthorized by defendant no. 1?OPP

5)Whether timely payment is essence of allotment letter dated 31.10.94 in terms of clause no. 5(iii) issued by defendant no. 1 in favour of plaintiff and whether 2nd installment and 3rd installment were deferred payments payable in one year and two years for the date of possession on licence basis to facilitate the allottee for construction of building there upon?OPP

6)Whether defendant no. 1 had any valid allotment and lease of the subject land and in their favour at the time of allotment to plaintiff?OPP

7)Whether legally construction of 5 star hotel was permitted in the said Community Centre as per old Master Plan MPD1962 under which said Community Centre was alloted to defendant no. 1 by defendant no. 2 and whether the lease and allotment in favour of defendant no. 1 specified the use of land for construction of Suit No.:1026/06/97 Page:23/228 Hotel?OPP

8)Whether defendant no. 1 is an agent of defendant no. 2 and whether defendant no. 1 was given the said land under Govt. Grants Act and whether defendant no. 1 was to take permission of defendant no. 2 before allotments, permission to mortgage, any extension of payments and cancellation of allotments and whether defendant no. 1 took the permission/ approval of defendant no. 2 regarding allotment/cancellation of allotment of plaintiff?OPP

9)If the above issues are proved whether in view of the above issue the plaintiff is entitled to the decree of declaration as claimed in the suit in respect of letter dated 2.5.96, issued by defendant no. 1 as null and void?OPP

10) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?OPD

11) Whether suit as framed is not maintainable?OPD

12)Whether the suit of plaintiff is barred by the provisions contained u/o 2 rule 2 CPC?OPD

13)Whether the suit of plaintiff is barred by provisions contained under the Specific Relief Act?OPD

14)Whether the suit of the plaintiff is also barred under the provisions contained u/o 23 Rule 1 CPC?OPD

15) Relief.

Now these issues are required to be adjudicated for the disposal of the case. Evidence:

1. In evidence plaintiff examined 23 witnesses alongwith its Managing Director and Suit No.:1026/06/97 Page:24/228 Chairman in support of his case and for proving the documents which were not objected by the defendants and accordingly the documents exhibited stand proved as most of the witnesses were formal witnesses and defendants chose not to cross examine these 23 witnesses: Documents proved by plaintiff and exhibited PW2 Sh. M.Jeyaraman, Secretary of PW2/A to PW2/C Late Sh. R.S. Pathak, Retd. Chief Justice of India Pw3 Sh. Krishan Kaushik, Record Pw3/A Keeper, MCD New Delhi Central Zone, Lajpat Nagar, New Delhi PW4 Sh. S.C. Sharma, Asstt. Assessor PW4/A to PW4/B & Collector, MCD, Rohini, New Delhi Pw5 Sh. M.K. Bangia, Assistant Pw5/A to PW5/C Assessor and Collecto, GRP Branch, New Delhi Pw6 Sh. V.K. Tyagi, CPIO, DUAC, Pw6/A to Pw6/G New Delhi Pw7 Sh. D.S. Yadav, Assistant Pw7/A to PW7/D Divisional Officer, DFS, New Delhi Pw8 Sh. A.D. Biswas, Dy. Town Pw8/A to PW8/B Planner, MCD, Town Planning Deptt.

New Delhi Pw9 Sh. Such, Asstt. Town Planner, Pw9/A to PW9/E MCD, Town Planning Deptt. New Delhi PW10 Sh. V.P. Sharma, Delhi Jal Board, Pw10/A Office of the Ex. Engineer(P) W.III, Varunalaya Builing, New , Pw11 Sh. R.K. Chalia, Executive PW11/A Engineer, Delhi Jal Board, New Delhi Suit No.:1026/06/97 Page:25/228 Documents proved by plaintiff and exhibited Pw12 Sh. J.B. Kataria, Office of Chief Pw12/A Eng. (P) W.III Delhi Jal Board, New Delhi PW13 Sh. M.P. Singh, Asstt. Engineer Pw13/A to Pw13/B (Civil), Delhi Pw14 Sh. Gopal Rai, Executive PW14/A Engineer, MCD, Planning, New Delhi PW15 Sh. H.S. Dhillon, Jt. Director, PW15/A to PW15/B DDA, Vikas Minar, New Delhi Pw16 Sh. R.K. Gupta, Asstt. Engineer, PW16/A to PW16/W MCD, Town Hall, New Delhi PW17 Sh. Gous Mohd. Ahled, Ld. PW17A to PW17/MMM ACMM, Sanajay Bansal, New Delhi Pw18 Ms Deepali, Judicial Assistant at PW18/A to PW18/F High Court of Delhi, New Delhi Pw19 Sh. Kamlesh Saha, RKD Brach at PW19/A to PW19/B High Court of Delhi PW20 Sh. Daleep Bharti, Jr. Judicial Pw20/A Asstt. at High court of Delhi Pw21 Sh. Anil Tomar, Appropriate Pw21/A to Pw21/C Authority Income Tax, New Delhi Pw22 Mrs. Veena Garg, Add. Standing PW22/A to PW22/B Govt. Counsel, New Delhi Pw23 Sh. Tarun Mehta, Dy. Manager, Pw23/1 to PW23/SSS Ansal Properties and Industries Ltd. New Delhi Pw24 Sh. Surinder Singh, Dy. Land and Pw24/1 to PW24/4W Developent Officer, MOUD, Nirman Bhawan New Delhi

2. Plaintiff's company ChairmancumManging Director, Sh. Pavan Sachdeva appeared as witness as Pw1 and tendered voluminous affidavit by way of Suit No.:1026/06/97 Page:26/228 evidence on 22.5.09 running into 264 paras but defendants examined PW1 only. Defendant no. 1 had filed an application u/o XIV Rule 2 r/w Order XXIII Rule 1 CPC for deciding the preliminary issue of court fee and jurisdiction first which was kept pending and defendant no. 1 filed C.M. No. 726/09 before Hon'ble High Court of Delhi against order dated 6.7.09 of this court which was disposed off on the same date with directions to court to hear the application u/o XIV Rule 2 and directed for day to day trial of the suit without granting any further adjournments for cross examining plaintiff's witness and for defendant's evidence. The application of defendant no. 1 under Order XIV rule 2 CPC was dismissed by this court vide Order dated 28.8.09 by further granting opportunities to defendant no. 1 for examining plaintiff's witness against which defendant no. 1 filed C.M. main no. 937/09 before Hon'ble High Court which was disposed off vide order dated 7.9.09 further granting one final opportunity to Defendant no. 1 to cross examine PW1 and to file affidavit on the application under Order XI Rule 12 and 14 CPC of plaintiff which had been allowed by this Court vide Order dated 23.4.09. Defendant no. 1 filed an application u/o VIII Rule 1(A) CPC and u/o XIII rule 2 CPC for placing certain documents on record filed for the first time alongwith the affidavit by way of evidence of DW1. Both the applications u/o VIII Rule 1(A) and u/o XIII Rule 2 CPC were disposed off by this court allowing nine documents to be placed on record, this court declined to place on record the 5 documents being irrelevant to the present suit as the suit was not for specific performance Suit No.:1026/06/97 Page:27/228 against which the defendant no. 1 filed another C.M. main No. 26/2010 which was dismissed by Hon'ble High Court vide order dated 25.1.2010 against which defendant no. 1 filed the review petition which has been dismissed vide order dated 25.3.2010 of Hon'ble High Court. Various opportunities were granted to Defendant no. 1's witness for tendering the affidavit by way of evidence but the witness did not present itself for various dates and when the evidence was closed on 18.1.2010 after the last opportunity granted to Defendant no. 1. A review application was filed by defendant no. 1before this court for reviewing the Order dated 18.1.2010 which was allowed by this court and accordingly DW1 tendered her affidavit by way of evidence on 30.1.10 exhibiting the documents even if they were not proved as per law or even those which were photocopies and even they typed copies. The said mode of proof of documents being photocopies and typed copies were objected by plaintiff as they have not been proved as per Indian Evidence act. DW1 was cross examined by plaintiff which was closed on 9.2.10 when various documents certified by DW1 and duly stamped of defendant no. 1 were confronted during the cross examination and the documents were admitted by DW1 which were exhibited as MarkA, MarkB, DW1/P1 to Dw1/P177 out of which documents at Ex. Dw1/P7 and 25, Ex. DW1/P3536, 39, 40,41,44,45,47,51,52,60,61,62,66,68,70,71,73,74,76 and 102 were objected to exhibition of documents since they have been claimed to be not certified by DW1 personally but DW1 admitted that these exhibits have been certified by some Suit No.:1026/06/97 Page:28/228 other officers of defendant no. 1 and she cannot verify their signatures and cannot verify the rubber stamp of defendant no. 1. It is important to note that the same documents exhibited and admitted by DW1 were required to be produced by defendant no. 1 under the application filed by plaintiff u/o XI Rule 12 and 14 CPC which was allowed by this court vide order dated 23.4.09 under which defendant no. 1 was required to file an affidavit in form no. 5 in Appendix C specifying which of the documents therein mentioned in the application are objected to be produced but Defendant no. 1 did not file the affidavit as required to be filed under Order XI Rule 13 CPC instead defendant no. 1 simply stated under an affidavit that the documents are not traceable or the documents are not relevant and defendant no. 2 did not come forward with any affidavit to be filed as per CPC neither Defendant no. 2 produced any documents in spite of the directions and the order passed by this Court.

3. Plaintiff has submitted that this court has to take adverse inference against defendant no. 1 and 2 for not producing the documents on the applications allowed by this Hon'ble court. That in support of the above plaintiff relied upon AIR 1988 Del 322Niranjan Kaur Vs. New Delhi Hotels Ltd. & Ors. and also relied upon AIR 1968 (3) S.C. R 862 Gopal Krishanji Ketkar Vs. Mohammad Haji Latif & Ors. wherein it is laid down that when a party in possession of best evidence withholds it which would throw light on the issue in controversy, the court ought Suit No.:1026/06/97 Page:29/228 to draw an adverse inference against him not withstanding that onus of proof does not lie on him, and further that such party cannot rely on the abstract doctrine of onus of proof or on the fact he was not called upon to produce it. In my view on the face of the aforesaid authority there is all force in the contention of counsel for the plaintiff that an adverse inference has to be drawn by this court since defendants have not produced the documents directed to be produced by court since the same would have gone against them.

4. The Cl. for defendant no. 2 submitted on 30.11.09 that he may not like to produce any witness and they may adopt the stand and evidence of defendant no. 1, still further opportunities were granted to defendant no. 2 to produce its witnesses and file their evidence which was finally closed on 22.12.09, resultantly no affidavit by way of evidence is filed by defendant no. 2 and no witness is produced by Defendant no. 2 for cross examination by plaintiff. I am of the view that withholding of documents and non production of documents by defendant no. 1 which is a public sector organisation and is under the supervision of defendant no. 2 and defendant no. 2 is Government being Ministry of Urban Affairs and Employment, adverse inference is to be drawn by court against defendants wherever needed as observed in AIR 1987 Madhya Pradesh 156State of Madhya Pradesh Vs. Sardarmal: wherein it is observed that " It does not behove the State Govt. to keep back even any such document, the production Suit No.:1026/06/97 Page:30/228 of which may possibly not be in its own interest, yet necessary for a just decision of the case. Withholding of documentary evidence for a litigant, professed and held to be a virtuous, can hardly be said to be desirable". In the circumstances there is no way but to apply the doctrine and draw an adverse inference for non production of documents directed to be produced by this Court. Defendant no. 1 in the present suit kept back the documents which was supposedly in their possession on the plea that they all are irrelevant or that they are not traceable although the same documents had been certified and given under RTI Act by Defendant no1 which otherwise in the affidavit filed by the officer of Defendant no. 1 no less than Deputy Chief (Law), Sh. Y.P. Singh mentions that they are not traceable or irrelevant to the present suit. Various documents which have been claimed under the affidavit by Defendant no. 1 that they are irrelevant or not traceable were later on filed alongwith the affidavit of DW1 filed by way of evidence relying on the same documents and pressing this court vide an application for taking them on record, some of the examples are at serial no. 29 and 153 of the affidavit filed by Defendant no. 1 to the allowed application u/o XI Rule 12 and 14 CPC.

5. It is observed by me that when DW1 was being cross examined by plaintiff, she has replied on number of times that the questions were out of the affidavit by way of evidence tendered by her. On being asked by plaintiff in the cross examination Suit No.:1026/06/97 Page:31/228 of DW1 whether she has knowledge of all the pleadings, DW1 admitted to have vague knowledge of the plaint, written statement and replication, she specifically admitted " I was not involved in giving any instructions to my lawyer at the time of crossexamination PW1 and I am not aware who authorized him,I have not gone through plaint, WS and replication and has only vague/general idea of the suit. She further admitted that she has not gone through the affidavit filed by way of evidence of Pw1". She further admitted that she does not know the cross examination of PW1 as she was not supposed to know". On the contrary in the affidavit tendered by way of evidence of DW1, she has claimed that " I am fully conversant with the facts and proceedings of he case and I am in position to swear this affidavit" and in the verification she further declared "that the contents of the above affidavit are true and correct to her knowledge." Further on the various questions asked by plaintiff from DW1 in her cross examination she admitted that she is an architect and she was involved in construction of Andrewsganj projects since Sept., 1990 but in cross examination she denied to have any knowledge beyond the affidavit including in regard to the sanction of building plans and approval of revised layout plans. DW1 specifically stated that "she does not know which master plan was applicable to the suit land since these matters are not dealt by her in HUDCO as these are being dealt by another department." DW1 specifically stated that "she has no concern regarding other facts of the suit which are beyond her affidavit including sanctions and approvals of the plans etc." and Suit No.:1026/06/97 Page:32/228 she admitted that " she was not part of the bid and only concerned officer can answer" and further denied to answer various questions on her cross examination stating that "the questions are not related to the controversy in the present suit". To various questions asked by the plaintiff in cross examination DW1 she continued to state that "it is beyond her affidavit, issues related to approval are being dealt with other department." She also denied to have admitted the documents by the other officers which were admitted before my predecessor on 4.7.01 and were exhibited as Ex. P1 to P6. I take adverse inference against defendant no. 1 for evasive replies of DW1 as well as for Mr. H.K. Dubey not appearing in the witness box in spite of being present on date as he being important witness. Plaintiff has submitted that any vague, evasive denial and omission of the defendants to plead the factual is deemed to be admitted and to say that Defendant no. 1 's witness had no knowledge is not an enough denial of existence of facts even by implication, it must be deemed to be admitted, whenever defendants merely plead ignorance about a fact pleaded in the pleadings, it amounts to admission unless by necessary implication it amounts to denial of fact. Plaintiff has relied upon AIR 1967 SC 109 Jauri Sah and Others Vs. Dwarika Prasad Jhunjhunwala & Others in AIR 1994 Rajasthan 133 Roopi Bai Vs. Mahavir, I am also of the view that the defendants wherever they have not specifically denied various facts and it has in this context that this court has to come to the conclusion that a fact not denied should be deemed to have been admitted and court has to Suit No.:1026/06/97 Page:33/228 proceed on the basis of such admission. The Supreme Court in S.P. Gupta Vs. Union of India, AIR 1982 SC 149 has in no uncertain terms denounced such a plea being raised.

6. This matter was kept for day to day proceedings on the basis of Orders dated 19.4.99 of Hon'ble Supreme Court and orders dated 25.7.00, 31.7.09, 7.9.09 of Hon'ble High Court as this Court has to strictly follow the directions of both the Superior Courts in regard to disposal of the present suit without granting any undue adjournments.

7. I am of the view that before I decide the issues, it is important to decide certain points raised by plaintiff as well as defendant no. 1 in arguments and in the written submissions in regard to (i) letter dated 15.6.93, (ii) letter dated 12.4.94 of MCD and layout plan, (iii) letter dated 28.11.94 of plaintiff Ex. DW1/KA and para nos. 20 to 24 of the affidavit by way of evidence of DW1, (iv) misjoinder of the parties to the suit in respect of defendant no. 2, (v) letter dated 16.6.95 of defendant no. 2 in response of letter dated 6.6.95 of defendant no.1, (vi) letters dated 2.3.95, 5.4.95, 25.10.95 and 30.1.96 of plaintiff to defendant no. 1, (vii) the copy of suit no. 275/1996 filed by defendant no. 1 on 1997, (viii) Order dated 17.3.97 passed by this court on the interim application filed by plaintiff under Order 39 Rule 1 and 2, (ix) replication of plaintiff to written statement of defendant no. 1, (x) allotment letter dated 10.3.95 to Ansal Properties & Industries Ltd. of Shopping Arcade and allotment letter dated 31.3.97 to Leela Hotels Ltd. of Suit No.:1026/06/97 Page:34/228 suit property.

(i) Letter dated 15.6.93 issued by defendant no. 2 to L&DO, Nirman Bhawan, Ministry of Urban Development. : Cl. for defendant no. 1 started its arguments relying upon Ex. DW1/B being a letter dated 15.6.93 which is a sanction by the President of India to L&DO for allotment of the land at Pinjrapole, Andrews Ganj, New Delhi, it was argued that the said letter is most important and it was claimed that the whole process started from this letter and this date regarding the concerned land at Andrews Ganj wherein the suit property is situated and this is the allotment letter issued by defendant no. 2 in favour of defendant no. 1. The Cl. impressed upon that the entire proceedings were started on this date when this letter was received by defendant no. 1 which is at para no. 4 of the evidence filed by DW1 that the land measuring 42.6 acres comprising of 17.6 acres for Community Centre and 25 acres for residential at Pinjrapole, Andrews Ganj by the President to HUDCO as per terms and conditions contained in the letter. Cl. for defendant no. 1 further impressed upon para 3 of the allotment letter stating that it is important para since it authorizes defendant no. 1 to take investment decisions for the whole project and disposal decision for the property in the community centre which shall be taken by HUDCO. The Cl. for defendant no. 1 made me go through para (c ) & para 4 of the said Suit No.:1026/06/97 Page:35/228 letter which are reproduced here: " (c ) The land for the community centre should be utilized for development of hostel and guest house facilities, conference hall, shopping and other community centre facilities as per the urban design for the complex approved by this Ministry.

4. The decision so far taken by the Monitoring and Review Committee of Min. of Urban Development which was set up under para no. 4 of letter no. J13014/6/90LD dated Ist Nov. 1990 from the date of inception till date of issue of this letter on various facts of implementation including disposal policy and investment decisions shall stand valid for further follow up action now to be taken by HUDCO."

On the other side Cl. for plaintiff pointed out that this letter of 15.6.93 is issued in supercession of all earlier letters dated 1.11.90, 10.6.92 and 28.12.92, Ex. PW17/D which is the sanction of the President being conveyed to the Land and Development Officer, Nirman Bhawan, New Delhi of the allotment of land measuring 42.6 acres. The said letter is issued by defendant no. 2 to its own department being Land and Development Officer conveying certain conditions of the sanction by the President and is not issued to defendant no. 1 as being claimed by Cl. for defendant no.1. Plaintiff further submitted that defendant no. 2 issued the allotment letter dated 27.3.92, Ex. PW24/D which has been issued Suit No.:1026/06/97 Page:36/228 to defendant no.1 by the office of Land and Development Officer, Nirman Bhawan, New Delhi being defendant no. 2 in the present suit. It was further pointed out by plaintiff that this allotment letter was superseded on 19.3.96, Ex. PW24/1P as also admitted by defendant no. 2 in their written statement. It was further pointed out that the terms and conditions of allotment letters dated 27.3.92 and 19.3.96 are completely different than the allotment letter dated 15.6.93 being relied upon by defendant no. 1. Cl. for plaintiff further stated that in para 17 of the written statement of defendant no. 1,they have admitted that allotment letter dated 19.3.96 is a matter of record but nowhere in the written statement they have claimed letter dated 15.6.93 which was objected by plaintiff that defendant no. 1 cannot improve their case by now relying upon this letter dated 15.6.93 which in any way is not in their favour. Plaintiff further brought to the notice of the court that on the other side defendant no. 1 has stated in their written statement in the same para that the letter of allotment dated 19.3.96 does not have any relevance to the facts of the present case. It was further pointed out by the Cl. for plaintiff that defendant no. 2 in para 17 of the WS have admitted that letter dated 19.3.96 mentioned in para No. 17 of the plaint is a matter of record. Further in para 2 of the written statement filed by defendant no. 2 they have stated and admitted that vide letter dated 27.9.92(27.3.92) the Government of India had allotted 17.6 acres of land situated at Andrews Gunj, New Delhi to HUDCO on perpetual lease basis for the construction and development of a Suit No.:1026/06/97 Page:37/228 Community Centre Complex. Further defendant no. 2 has admitted that thereafter vide letter dated 19.3.96 the terms of allotment were modified in supercession of the letter dated 27.9.92( 27.3.92) admitting that a perpetual lease deed dated 4.7.97 was executed between L&DO( lessor) and HUDCO (lessee) in this regard. Plaintiff submitted that further defendant no.2 has admitted in para 1516 of WS that the land in question at Andrews Ganj has been alloted to defendant no. 1 by defendant no. 2 on the terms and conditions contained in the letters of allotment dated 27.3.92 and 19.3.96 and the lease deed dated on 4.7.97. Plaintiff also made me go through various exhibits no. Ex Pw18/A, Ex. PW18/B, Ex. PW18/C and Ex. PW18/E wherein defendant no. 1has claimed in their affidavits that allotment letter dated 19.3.96 contains the terms and conditions which shall apply to the land in supercession to all earlier terms and conditions of allotment and that the terms of this letter are of material importance which determined the status of land at Andrews Ganj in respect of defendant no. 1. In the said affidavits at Ex. PW18/A, Ex. PW18/B, Ex. PW18/C and Ex. PW18/E defendant no. 1 has admitted that they don't have right, title or interest in the property at Andrews Ganj in as much as they are merely an agent of Union of India. It was further pointed out by plaintiff that these are affidavits filed by defendant no. 1 in another C.W. No. 3179/1994 before Hon'ble High Court of Delhi and these affidavits are of period 20.3.98, 24.2.99, 10.7.99, 20.7.99 and these exhibits have been proved by plaintiff and Suit No.:1026/06/97 Page:38/228 now defendants cannot change their stand by producing a letter 15.6.93 alongwith their affidavit by way of evidence which in any way is not an allotment letter issued by defendant no. 2 in favour of defendant no. 1. The terms and conditions that are applicable on defendant No. 1 to the subject land at Andrews Ganj are of 27.3.92, 19.3.96, some of the terms of which were further amended on 15.10.96 Ex. DW1/P171.

Plaintiff further submitted that in view of the above, it is unwarranted of a public sector and Govt. being defendant no. 1 and defendant no. 2 to change their stand in spite of admitting in their written statement that allotment letters dated 27.3.92 and 19.3.96 are the allotment letters issued by defendant no. 2 in favour of defendant no. 1 on the terms and conditions given therein besides the other documents in which defendant no.1 has admitted in their affidavits that the terms and conditions applicable are of allotment letter 19.3.96 which again is not warranted from a Govt. company like HUDCO especially when the stand of Govt.(defendant no. 2) in their written statement has been that letter dated 19.3.96 is the relevant allotment letter.

In view of the above and the referred exhibits, I am of the opinion that defendant no.1 cannot change their stand already taken in written statement and cannot have different stands in different courts which plaintiff has proved from the affidavits of defendant no. 1 at Ex. PW18/A and Ex. PW18/B wherein they have themselves claimed that:

Suit No.:1026/06/97 Page:39/228 " The terms and conditions of the said letter of allotment dated 19.3.96 are of material importance and it is the said letter dated 19.3.96 which determines the status of the land and that of the defendant no. 1 with respect to the said land."

In view of the above I conclude that the terms and conditions of allotment letter dated 27.3.92, superceded by allotment letter dated 19.3.96 which has been admitted by defendant no. 2 in their written statement and further the terms were modified on 15.10.96 have to be read together in deciding the issues framed and the controversy in the present suit.

(ii)Letter dated 12.4.94 of MCD and layout plan dated 12.4.94 : Cl. for defendant no. 1 in his arguments stated that the next most important document is approval of layout plan dated 12.4.94 at Ex. DW1/C being relied upon in para 5 of the evidence filed by DW1 which is an approval by standing committee of Municipal Corporation of Delhi vide resolution/decision no. 2508/1994 dated 25.3.94 which contains the hotel site and the approvals of plans of car park.

On the other side Cl. for plaintiff pointed out that the said approval by MCD dated 12.4.94 being relied upon by defendant no. 1 is a layout plan as stated in the said letter dated 12.4.94 which was subject to the conditions given at point 1 to point 4 as below:

"1) The applicant shall obtain sanction of the Building Suit No.:1026/06/97 Page:40/228 Plans from Building Deptt. of MCD. In conformity of BBL's/Master Plan 1962. However the existing structures built up at site shall be got regularized from Building Deptt.

as per BBL's at the time of sanction of Building Plans.

2) The applicant shall obtain approval of various services schemes viz. Water Supply, Sewerage, S.W.D Road and Horticulture from respective Services Deptts of MCD and lay, develop and maintain the same.

3) The applicant shall maintain ROW of Marshal Titoo Marg(150 R/W) and Khelgaon Marg( 100' R/W) as per approved alignment plan and leave area effected under Road widening, if any, free of cost as and when asked for.

4) The applicant shall develop the site for 33 KV and 11 KV sub station as per approval of DESU."

Plaintiff pin pointed that from the layout plan being relied upon by defendant approved by MCD on 12.4.94 at Mark DW1/D, it may be seen that the above conditions have also been stipulated in the said layout plan. It is established that the relied upon layout plan was subject to approval of above conditions specifically that building plans shall be approved as per Building Bye Laws for all the structures built by defendant no. 1 including the car park basement, 12 guest house Suit No.:1026/06/97 Page:41/228 blocks at Andrewas Ganj and since the constructions of these properties were already carried out by defendant no. 1 they were subject to the compounding of the building plans of car park basement as well as guest house blocks and as claimed by defendant no. 1, the layout plan dated 12.4.94 being relied upon by defendant no. 1is not the sanction of building plans of car park basement or any other buildings. It was further pointed out by Cl. for plaintiff that as per condition no. 2 the layout plan dated 12.4.94 was subject to approval of various service plans as given in condition no. 2 above. Plaintiff submitted that defendant no. 1 has not proved whether these service plans were approved although plaintiff has proved that the service plans were approved by MCD on 6.9.99 and 7.9.99 Ex. PW17/LLL, Ex. Pw17/MMM. It is further brought to my notice by plaintiff that the layout plan dated 12.4.94 were subject to development of site for 33 KV and 11 KV as per approval of DESU, plaintiff pointed out from the Ex. DW1/P10, Ex. DW1/P69 that even the site for sub station was not alloted till dated 24.9.96 and the electric sub station was not operative till year 2000, Ex. PW23/QQQ and Ex. Pw23/RRR that the subject layout plan dated 12.4.94 being relied upon was not finalised till 7.9.99 and till year 2000 electric substation was not operative that is the conditions stipulated by MCD were not complied with till year Suit No.:1026/06/97 Page:42/228 2000.

Plaintiff further made me go through Ex. PW17/O and Pw 17/P wherein defendant no. 1 before DUAC on dated 12.7.95 has contented that they were seeking approval of conceptual revised layout plans and such conceptual plans were approved by DUAC reluctantly on dated 2.8.95, Ex. Pw17/R. Plaintiff further pin pointed the Ex. PW9/C which is approval of revised layout plans dated 10.6.98 approved by MCD by changing the use as per MPD, 2001 although the approval dated 12.4.94 was as per land used of community centre of MPD, 1962 as given in the layout plan dated 12.4.94 since there were various objections in respect of land use of hotel under MPD, 1962 which could only be approved after the lease deed dated 4.7.97 was executed for development of community Centre as per MPD 2001 which permitted the use of hotel. it was further submitted by plaintiff that approval of layout plans dated 6.7.98 at Ex. Pw9/D were also subject to approval of the following conditions: " 1. For the proposed buildings in the revised layout plan, the applicant shall get the building plan approved from the building deptt. of MCD, as per prevailing regulations of Master/Zonal Plan and Building Bye Laws.

2. Building deptt. will ensure that there are no adverse court Suit No.:1026/06/97 Page:43/228 orders barring sanction of plans before approval of building plans for the building in the community centre.

3. Applicant shall get the services plans approved afresh from the respective services deptt. of MCD before sanction of building plans.

4. The applicant shall indemnify MCD with regard to any dispute/litigation, if arise at any stage, pertaining to the size/extent and ownership of the site.

5. Other conditions of approval wherein applicable as per Stg. committee decision No. 2508/Stg. dated 28.3.94 shall be adhered to by applicant."

Counsel for plaintiff stated that now after the execution of perpetual lease, the building plans to be approved were as per prevailing regulations of Master/Zonal plans which is implied that MPD, 2001 will be applicable for approval of five start hotel buildings but earlier since MPD,1962 was applicable. No building plans could have been approved under the provisions of this Master plan in the absence of approval of revised lay out plans. It was also stipulated that service plans had to be approved from the respective service department of MCD before sanction of building plans which further implies that unless the respective service plans were not approved, no Suit No.:1026/06/97 Page:44/228 building plans for hotel could be sanctioned by MCD. It was further pointed out that the conditions of layout plans dated 12.4.94 being relied upon were also to be adhered to by defendant no. 1 especially the conditions discussed already in respect of 33 KV and 11 KV electric sub station. It was submitted by plaintiff that in the award decided by Retd. Chief Justice Sh. R.S. Pathak, Ex. PW2/C in favour of Leela Hotels Ltd. who were allotted the subject suit property on 31.3.97 it has been held that Leela Hotels Ltd. did not breach the contract and defendant no. 1 committed the breach since the construction of the hotel was to be completed in three years from the date of allotment and the building plans could not be got sanctioned by MCD till the approval of service plan which were approved on 7.9.99. It is further contended by plaintiff that as per Ex. PW19/B and Pw20/A this award has been upheld by Ld. Single Judge and by the Hon'ble High Court of Delhi and has also been upheld by Hon'ble Supreme Court. In view of the above and exhibits referred by plaintiff, I am of the view that the stand of defendant no. 1 that layout plan dated 12.4.94 was approved by MCD and no revised layout plan was approved or required to be approved is not sustainable. It has been proved by plaintiff that defendant no. 1 was aware of the fact that revised layout plans were required to be approved and till then no building plans of hotel could be Suit No.:1026/06/97 Page:45/228 approved by MCD and DUAC since defendant no. 1 immediately on receipt of Ist installment on 28.2.95 applied to DUAC for conceptual approvals of revised layout plans in April, 1995 itself. It is also proved by plaintiff that the conceptual approval of revised layout plan were reluctantly approved by DUAC on 2.8.95 as proved from Ex. Pw17/R and the final revised layout plans were approved by MCD on 6.7.98 as per Ex. PW9/D which were subject to approval of service plans which were lastly approved on 7.9.99 and till then the building plans for hotel could have not been entertained/sanctioned by MCD. Plaintiff has also further proved that the building plans of hotel could have not have been approved without approval of revised layout plans and service plans, the same view has been strengthened in respect of the same suit property by the award given in favour of Leela Hotels Ltd. by Retd. Chief Justice of India, Sh. R.S. Pathak and has been upheld by Ld. Judge and Division Bench Hon'ble High Court of Delhi as well as by Hon'ble Supreme Court. Thus in view of the above it is concluded by me that the applicable revised layout plans are of 6.7.98 at Ex. PW8/A and the service plans applicable are of 6.9.99 at Ex. PW10/A and 7.9.99 at Ex. PW13/A and defendant no. 1 at the time of inviting the bids were aware that revised layout plans were required to be approved as per MPD 2001 prior to which no building plans for hotel could have Suit No.:1026/06/97 Page:46/228 been entertained by MCD.

(iii)Letter dated 28.11.94 of plaintiff, Ex. DW1/KA and para nos. 20 to 24 of the affidavit by way of evidence of DW1.

The Counsel for defendant no. 1 in para no. 3(iv) of the written submission have submitted that plaintiff did not have funds to make payment, plaintiff has admitted in his letter at Ex. DW1/KA dated 28.11.94 that it is entering capital market with public issue to finance hotel project and it was also argued by defendant no. 1 that public issue of plaintiff failed on 18.2.95 due to which plaintiff could not arrange funds by public right issue and so he could not make payment due to which all the pleas of plaintiff for with holding payment are false and they are after thought and alibi.

The Cl. for plaintiff argued that the documents pertaining to the public issue have been denied to be taken on record by this Court vide order dated 14.12.09 against which defendant no. 1 filed C.M. Main No. 26/2010 which has been dismissed vide order dated 25.1.10 and even the review filed by defendant no. 1 before Hon'ble High Court has been dismissed vide order dated 25.3.10, thus the arguments of defendant no. 1 are displaced in regard to the public issue. Plaintiff further pointed out that in cross examination of PW1 Suit No.:1026/06/97 Page:47/228 on 6.10.09 this Court has disallowed the questions pertaining to the public issue. It is further submitted by plaintiff that there has been no averments in plaint and written statement in regard to the public issue which stand confirmed through the cross examination on 3.2.10 of DW1 wherein she has confirmed that she is not bound to reply since the matter has been crystalised by order dated 14.12.09 of this Hon'ble Court. It is submitted by plaintiff that the letter dated 28.11.94 at Ex. Dw1/KA being relied upon by defendant no. 1 does not prove anything and the arguments of defendant no. 1 are misplaced since they have argued that the public issue of plaintiff failed on 18.2.95 but it is an admitted fact that plaintiff paid the Ist installment on 28.2.95 of which the receipts are at Ex. Pw17/L which are of later dates. It was further submitted by plaintiff that no issue has been framed in regard to this aspect and all the issues were framed with the consent of defendants, no other issue was pressed by defendants.

In view of the above, I am of the view that since the 5 documents pertaining to public issue filed by DW1 alongwith her affidavit Ex. D1 which were Ex. DW1/4 and documents marked DW1/K, Ex. Dw1/5, Mark Dw1/L, mark DW1/M have been disallowed to be taken on record by me vide order dated 14.12.09 Suit No.:1026/06/97 Page:48/228 which has been further reconfirmed by order dated 25.1.10 and 25.3.10 of Hon'ble High Court and the questions in regard to the public issue in the cross examination of PW1 have been disallowed by me on 18.9.09 since the questions pertaining to public issue have been found to be beyond pleadings, accordingly the para nos. 20, 21, 22, 23,24 of the affidavit tendered by DW1 are also hereby concluded by me to be beyond pleadings since these paras pertain to the disallowed documents under my order dated 14.12.09. Still on merits, I am of further view that the letter dated 28.11.94 being relied upon by defendant no. 1 does not prove that due to failure of the public issue plaintiff was not able to pay since defendant no. 1 itself has stated that the public issue failed on 18.2.95 and admittedly the Ist installment has been paid on 28.2.95, Ex. PW 17/L, in view of which the contentions of defendant no. 1 are displaced and have no force as readiness and willingness of plaintiff is duly proved by making the first installment as per terms of allotment even though public issue failed as alleged by defendant No. 1. Mere failing of public issue does not prove that he had no arrangement of money. Mere raising the public issue for this purpose also does not conclude that he could not arrange the money otherwise than the public issue.

Suit No.:1026/06/97 Page:49/228

(iv) Misjoinder of the parties to the suit in respect of defendant no. 2: Defendants have also taken a plea in their written statement that defendant no. 2 is not a necessary party and the suit is misjoinder of parties due to which the suit is not maintainable as plaintiff cannot obtain declaration against defendant no. 2.

Plaintiff has submitted that defendant no. 1 has relied upon the terms and conditions of performa agreement to sublease at Ex. Dw1/7 from this exhibit it is proved that defendant no. 1 on its own could have not executed the agreement to sell as the said agreement was to be executed by defendant no. 1 and defendant no. 2 jointly, accordingly defendant no. 2 is a necessary party. That defendant no. 1 is an agent of defendant no.2 in respect of the community centre at Andrewas Ganj as already admitted by defendant no. 1 in their affidavits at Ex. PW18/A, Ex. PW18/B and Ex. PW18/E. That all the proceeds of community centre had to be transferred by defendant no. 1 to defendant no. 2. Plaintiff has further submitted that section 226 of the Contract Act deals with the enforcement on consequences of agent's contracts, it postulates that contracts entered into through an agent an obligation arising from an Act done by an agent may be enforced in the same manner and will have the same legal consequences as if the contract had Suit No.:1026/06/97 Page:50/228 been entered into and the acts done by the principal in person as also observed in Jai Krishan Trading Co. Vs. Kandsami Weaving Factory & Co., 1995(2) MadLJ255.

It is also submitted by plaintiff that in view of section 233 of the Contract Act also, the pleas of defendants that defendant no. 2 is not a necessary party and plaintiff cannot obtain declaration against defendant no. 2 is also misplaced since as per this section in cases where agent is personally liable, a person dealing with him may hold either him or its principal, or both of the liable". It has been held in Babu Lal Vs. Jagat Narain, AIR 1952 VP 51 that the expression "hold them both liable" means that he party dealing with the agent can join both the agent and the principal in one suit, there is no suggestion that if he does so he is only entitled to a decree against one or the other and not against both, whatever the legislature may have intended the expression "may hold both of them liable" mean that both may be sued to judgment in one suit.

I have gone through agreement to sublease ex. DW1/7 which is relied upon by defendant no. 1, the said agreement to sublease was to be executed by defendant no. 2 as well as defendant no. 1 as it reads as follows:

Suit No.:1026/06/97 Page:51/228 " Memorandum of agreement made this ........ day of ........ on the thousand nine hundred and ninety four between the President of India, having his office Nirman Bhavan, New Delhi110 001(hereinafter called "the President" which expression shall unless excluded by or repugnant to the context be deemed to include his successor's and assigns) of the One part and the Housing and Urban Development Corporation Limited, a Company registered under the Companies Act 1956 and having its registered office at "HUDCO House", Lodhi Road, New Delhi110 003(hereinafter called "the Corporation "

which expression shall unless excluded by of repugnant to the context be deemed to include its successor and assigns) of the Second part and the ________________________ a company incorporated under the Companies Act, 1956 and having its registered office at _______________(hereinafter called the "Intended SubLessee") which expression shall unless excluded by or repugnant to the context be deemed to include its successors in interest and permitted assigns) of the third part."

Further in the affidavit of defendant no. 1 at Ex. PW18/A, Suit No.:1026/06/97 Page:52/228 Ex. PW18/B and Ex. PW18/E they have claimed in para no.3: "That in the aforesaid petition, the petitioner has interalia specified that the land in questions belongs to the Union of India and that the same has been given to the petitioner only for the purpose of development of the same. It has further been specified the petitioner has no right, title or interest in the aforesaid property in as much as the petitioner is merely an agent of the Union of India for the development of the said land."

Further in the affidavit of defendant no. 1 at Ex. PW 18/E they have claimed that they are only agents of defendant no. 2 and are charging 17% interest on the funds deployed in the project and overhead charges of 1.5% and that all the amounts realized would accrue to defendant no. 2.

In view of the above and in view of the submissions of plaintiff, I am of the view that defendant no. 2 is a necessary party since defendant no. 1 and defendant no. 2 are to execute agreement to sublease with plaintiff and since defendant no.1 itself has claimed on oath that they are agents of defendant no. 2 in respect of Suit No.:1026/06/97 Page:53/228 the Andrews Ganj Project, further claiming that they have no right, title or interest in the Andrews Ganj Project and all the amounts accrued would be transferred to defendant no. 2. I am in consent with the submissions of plaintiff in regard to Section 226 and Section 233 of the Contract Act and the citations relied upon by plaintiff in respect of these sections, thus I conclude that there is no misjoinder of parties, the plea of defendants is misplaced and the suit is maintainable against defendant no. 2 as well and the relief if any granted would be enforceable against defendant no. 2 as well.

(v) Letter dated 16.6.95 of defendant no. 2 in response to letter dated 6.6.95 of defendant no. 1: Counsel for defendant further emphasized on letter dated 16.6.95 issued by defendant no. 2 at Ex. DW1/R stating that defendant no. 1 did not require to take any permission under the ULCR Act, so what was required was only under Income Tax Act which also plaintiff had to obtain.

Cl. for plaintiff submitted that the Ex. DW1/R, letter dated 16.6.95 is incomplete and it has been deliberately concealed by defendant no. 1 by not filing the guidelines no. 1/132/76UCU dated 23.12.76 issued by Ministry which have been stated to be enclosed with letter dated 16.6.95 Cl. for plaintiff contended that Suit No.:1026/06/97 Page:54/228 as per this circular defendant no. 1is not exempted to take permission under ULCR Act. Plaintiff relied upon the Ex. DW 1/P177 which is the certified copies of the documents filed by defendant no. 1in another suit by plaintiff for another property pending before Hon'ble High Court. Plaintiff submitted that this circular does not exempt defendant no. 1 if part of the building is constructed and admittedly the car park basement was constructed building which forms part and parcel of the allotment letter, the circular is reproduced:

"(4) Application of section 26 and 27 to transfer by the institutions referred to in Section 199(1), of vacant land/urban or urbanisable land containing a building or a portion only of such building.

As the authorities referred to in Section 19(1) can hold vacant land in excess of the ceiling limit, section 26 does not apply to its transfer to any other person. So the Registration authorities must not insist on compliance with section 26 before registering the documents of such transfer by such authority.

Section 27 will apply to transfer of urban or urbanisable land with a building or a portion only of such building by the authorities referred to in section 19(1).

Suit No.:1026/06/97 Page:55/228 (Min of W.&H letter No. 1/132/76UCU dated 23.12.76.)."Plaintiff further pointed out that the letter dated 16.6.95 at Ex. Dw1/R and Ex. Dw1/P177 is issued in response to letter dated 6.6.95 at Ex. Pw24/1H of defendant no. 1 sent to defendant no. 2 wherein defendant no. 1 has sought clarifications in regard to the lease to be executed by defendant no. 2 in favour of defendant no. 1 since the consideration amount is Rs.1/ per acre and is less than Rs. 10.00 lacs, whether they would be required to take permission under Income Tax Act and ULCR Act. In view of the above and on going through the Ex. PW24/1H being a letter dated 6.6.95 of defendant no. 1 wherein they have sought clarifications from defendant no. 2 whether for execution of the perpetual lease in their favour they will be required to take clearance from Income Tax Authority and under subsection(1) of Section 26 of Urban Land(Ceiling and Regulation) Act, 1976 since the amount the consideration is less than Rs. 10.00 lacs and there is no doubt that the letter dated 16.6.95 is in response to letter dated 6.6.95 which does not exempt defendant no. 1 from the contracts with private parties like plaintiff besides the circular no. 1/132 / 76UCU dated 23.12.1976 relied upon under letter dated 6.6.95 does not exempt defendant no. 1 if a portion of the property is a built property and undoubtedly the car park basement is a constructed property. Thus, I am of the opinion that defendant no. 1 was not exempted through letter dated 16.6.95 under ULCR Act qua transaction between plaintiff and defendant No. 1 involving constructed area consequently their plea that they were exempt under ULCR Act is not sustainable.

Suit No.:1026/06/97 Page:56/228 I further conclude that it is unwarranted of public sector like HUDCO and Govt. to rely upon letter dated 16.6.95 which is only a clarification for their own lease qua vacant land executed by defendant No. 2 in favour of the defendant No. 1 as the consideration price was less than Rs. 10.00 lacs for income tax clearance besides it is not expected of a public sector to conceal the circular dated 23.12.76 referred by plaintiff in cross examining the DW1 since this circular is very clear that defendant no. 1 was not exempted under ULCR Act regarding controversy.

(vi) Letters dated 2.3.95, 5.4.95, 25.10.95 and 30.1.96 of plaintiff to defendant no. 1: Counsel for defendant no. 1 submitted that plaintiff for the first time shooted the Ist letter on 30.1.96 to defendant no. 1 and otherwise there was no other communication and the letters dated 2.3.95, 5.4.95 & 25.10.95 at Ex. PW17/M, Ex. PW17/N, Ex. PW1/11 relied upon by plaintiff are forged and fabricated by the plaintiff prepared in back date to obtain favourable order from the court. Defendant no. 1 further submitted that these letters are purported to have been sent to defendant no. 1 but in fact neither these letters were sent to defendant no. 1 and nor they were received by defendant no. 1 and that PW1 in his cross examination on 14.10.09, 26.10.09 and 29.10.09 has stated that he does not remember which officer of the defendant no. 1 received the Suit No.:1026/06/97 Page:57/228 letter dated 25.10.95 and that he does not remember whether he dictated the said letter or some officer of the plaintiff had given the dictation of the letter. That PW1 in cross examination has stated that CMD did not sign the receipt of the letter dated 25.10.95 and he did not ask the Private Secretary of the CMD to give receipt of the letter and that the plaintiff has not proved the dispatch receipt of the letter dated 25.10.95 to defendant no. 1. It is further submitted that in regard to letter dated 2.3.95 that PW1 in his cross examination has stated that he does not remember what prompted him to write this letter. That plaintiff has not proved the receipt of these three letters by defendant no.1 by any means and now it is clear that the plaintiff has forged and fabricated these letters in back date, thus plaintiff has misrepresented facts by forging these letters. Plaintiff submitted that the letters dated 2.3.95, 5.4.95, 25.10.95 and 30.1.96 at Ex. PW17/M, Pw17/N, Ex. PW1/11 and Ex. PW 17/X stand proved as the documents including these letters were seized from the office of defendant no. 1in case no.

RC/BDI/2001/E/0001 and RC/BDI/2001/E/0002 by CBI lodged by plaintiff against defendant no. 1 and its officers. The documents have been proved by producing the original records Suit No.:1026/06/97 Page:58/228 from the court of Sh. Sanjay Bansal, ACMM, Tis Hazari Courts where the said complaints are pending. It was further argued by plaintiff that when the witness PW17 appeared in the witness box on 4.5.09 who had produced the original records which contained these letters and accordingly these letters and various other documents were proved by plaintiff which was never objected by defendants and they chose not to cross examine the witness on these letters in view of which these letters stand proved without any objections raised by defendant no. 1. When these letters were being proved by plaintiff and defendant no. 1 was still open to resummon the witness PW17 and was also open to summon the original records from the respective court but they did not do so, thus the objections now being taken at the time of arguments are belated in respect of these letters which already stand proved. It is further submitted by plaintiff that letter dated 30.1.96 was delivered by PW1 to the Private Secretary of CMD of defendant no. 1 at about 12.00 noon on 30.1.96 as CMD was not available in office which was acknowledged by Private Secretary and other letters dated 2.3.95, 5.4.95 and 25.10.95 were delivered to CMD, Sh. K.K. Bhatnagar by PW1 who met CMD personally to discuss the Suit No.:1026/06/97 Page:59/228 issues after payment of 1st installment on 28.2.95. It is submitted by plaintiff that in cross examination held on 14.10.09 it was stated that plaintiff had invoked the clause 5

(viii) of the allotment letter through Ex. Pw17/M, Ex. PW 17/N & PW17/X as well as letter dated 25.10.95 and Ex. PW 17/X was sent in furtherance to Ex. PW1/11 which is letter dated 25.10.95. It is submitted by plaintiff that defendant no. 1 in cross examining PW1 admitted to have received these letters by asking a question" This letter is in response to the letter of HUDCO dated 18.10.95. Please point out in the said letter an independent invocation Under Clause 5(viii) in terms" to which PW1 has replied that "these letters are for reciprocal performance of defendant no. 1after receipt of first installment and as such the specific clause number is not mentioned.

However, it is again matter of record". In the cross examination of PW1 it was further stated that these letters are matter of record and these exhibits have already been mentioned above which may be read. It has further been stated by PW1 in his cross examination that Ex. PW1/11 was received by defendant no.1. It is further submitted by plaintiff that in his cross examination on 26.10.09 that these letters were delivered to the Suit No.:1026/06/97 Page:60/228 Chairman cum Managing Director, Sh. K.K. Bhatnagar of defendant no.1, that these letters were delivered personally by Pw1 and were handed over to CMD of defendant no. 1, that it was never said that PW17/N was delivered to Sh. H.K. Dubey as being claimed by defendant no. 1. It is submitted by plaintiff that in further cross examination of PW1 on 29.10.09 it is stated by PW1 that when the letters are handed over personally to CMD they are not acknowledged in writing. PW1 in his cross examination has stated that letter at PW17/X was acknowledged by the Private Secretary as CMD was not available on 30.1.96 but the defendant no. 1 even has tried to allege in cross examination of PW1 on 29.10.09 as if the signatures on this letter of the private secretary are forged by asking a question on this letter dated 30.1.96" Did you not insist on the Private Secretary embossing the seal and stamp of HUDCO" to which PW1 replied "No" "I put it to you that the said letter dated 30.1.96 is afterthought and clearly manufactured" to which PW1 replied "It is incorrect".It is further submitted by plaintiff that in cross examination of PW1 defendant no. 1has alleged that letter dated 30.1.96 was an after thought but this letter was admitted by the officers of defendant Suit No.:1026/06/97 Page:61/228 no. 1 on 4.7.01 before Ld. ADJ which has been exhibited DW 1/P172 which has been objected by DW1 in spite of the admission of the document by the officer, Sh. P.K. Garg of defendant no. 1 before this court. It is further submitted by plaintiff that in cross examination on 3.2.10 of DW1 the question was asked "I put it to you that correspondence between defendant no. 1 and plaintiff were seized by CBI in an FIR against defendant no. 1 and its officers" she evasively replied that "I do not know anything about the above". It is submitted by plaintiff that such reply of DW1 itself is deemed to be admitted that the documents including these letters were seized from the office of defendant no. 1 under the FIRs being investigating by CBI and plaintiff has proved that these letters were submitted to the CMD personally and the allegations of defendant no.1 being taken for the first time in cross examining PW1 or at the time of argument are untenable. It is submitted by plaintiff that in cross examining DW1 on 5.2.10 a specific question was asked that " Sh. H.K. Dubey has deliberately not appeared for deposing as witness of plaintiff as he was the person alongwith his Chairman, K.K. Bhatnagar who dealt with all the allottees" to which DW1 replied that "it is wrong to Suit No.:1026/06/97 Page:62/228 suggest this". It is further submitted by plaintiff that it has been proved in the cross examination that the letters dated 2.3.95,5.4.95, 25.10.95 were delivered personally by Pw1 to CMD of defendant no.1 Sh. K.K. Bhatnagar and defendant no. 1 has not produced Sh. K.K. Bhatnagar, the burden was on defendant no. 1 to produce Sh. K.K. Bhatnagar to deny to have received these letters, In view of the above submissions of plaintiff as well as defendant no. 1 and on going through the evidence led I conclude that the letter dated 2.3.95, 5.4.95, 25.10.95 at Ex. PW17/M, PW17/N, Ex. PW1/11 stand proved by plaintiff since when the records were produced through witness PW17 from the court of ACMM, Sh. Sanjay Bansal, defendants did not object to the documents nor they cross examined the witness PW17, defendant no. 1 also chose not to recall the witness PW17. These letters also stand proved by plaintiff as it has been proved by PW1 that the letters were submitted to the CMD of defendant no. 1 but defendant no. 1 has not produced the CMD, Sh. K.K. Bhatnagar to deny the receipt of these letters in view of which these letters stand proved under section 114 Evidence Act. I am also of the view that such false Suit No.:1026/06/97 Page:63/228 allegations of defendant no. 1 that these letters are forged and fabricated are belated as they have taken no such stand against these letters in their own affidavit by evidence and they never objected to the documents filed by plaintiff in this court alongwith notice to admit given to defendant no. 1 and defendant no. 2 alongwith the copy of documents which contain these letters and these documents have been duly received by their counsels Sh. Ciccu Mukhopadaya on 12.11.99 as per the records of this court. It is also noticed that defendant no.1 at the time of cross examination of PW1 also denied to have received a letter dated 30.1.96, Ex. PW17/X which they have admitted now to have received at the time of arguments because plaintiff in cross examining DW1 has proved the letter dated 30.1.96 by showing that this letter has been admitted on 4.7.01 by the officer Sh. P.K. Garg of defendant no. 1 which has been exhibited as Ex. Dw1/P172. I hold that the contrary stands taken by defendant no. 1 at different times are unwarranted.

(vii)The copy of suit no. 275/1996 filed by defendant no. 1 in 1997: The cl. for defendant no.1 has submitted that the copy of previous suit no. 275/96 was filed on date 1.12.97 before Suit No.:1026/06/97 Page:64/228 this court and the suit is admitted between the parties. The Cl. for defendant no. 1 at the time of argument agreed that although contents of the suit is not proved and not exhibited nor it is marked but they will file the certified copy of the suit no. 275/96 but only orders in suit no. 275/96 are filed as Ex. Dw1/G to DW1/J. The cl. for plaintiff submitted that the burden of proving the previous suit no. 275/96 is upon defendants and if the suit and the proceedings of the previous suit are not proved by defendants in the evidence led by them, this court cannot rely on the photocopy if any filed which has not been proved nor exhibited or marked. It is further submitted by plaintiff that the previous suit was neither identical nor the prayers of the previous suit were identical which has not been proved by defendant no. 1 that they were the same as in the present suit. The orders referred to by defendant no. 1 at Ex. DW1/G till DW1/J are irrelevant to the controversy in the present suit which are also not proved by the defendant as they are typed copies which defendant no. 1 has failed to produce the court certified copies which cannot be relied upon neither can they be read. Plaintiff argued that submission of defendant no. 1 Suit No.:1026/06/97 Page:65/228 that PW1 in his cross examination has admitted all the proceedings and previous orders passed by Hon'ble High Court and Supreme Court does not prove the suit no. 275/96 which has not even been confronted by defendant no.1 in cross examining PW1. Plaintiff submitted that in respect of the above plaintiff relies upon Gurbax Singh Vs. Bhoorelal AIR 1964 SC 1810 has concluded that if in evidence the previous suit is not proved by defendants it cannot be objected too in the subsequent suit.

In view of the above submissions of plaintiff as well as defendant no. 1 I am of the view that I am not bound to go through the copy of the suit no. 275/96 filed on 1.2.97 as it has not been proved in evidence nor has been exhibited or marked. Though cl. for defendant no. 1had made the statement that they will file the certified copy after court had pointed out that the suit has not been proved nor marked, but still defendant no.1 failed to submit the court certified copy of the suit no. 275/96. It has been held by Apex Court in Gurbax Singh Vs. Bhoorelal Air 1964 SC 1810 and various other judgments relied upon by plaintiff that unless the previous suit is proved in evidence the defendant cannot take objection u/o 2 Rule 2 Suit No.:1026/06/97 Page:66/228 CPC as it is a technical objection and the burden is on defendant to prove the same. However, in view of the fact that defendants are Govt. company and Govt. itself, I take a lenient view and conclude that when the issue in regard to Order 2 rule 2 CPC is decided, I would reply upon the copy of the suit filed by defendant no. 1 on 1.2.97 although claimed to have filed on 1.12.97 in their written submissions.

(viii) Order dated 17.3.97 passed by this court on the interim application filed by the plaintiff u/o 39 Rule 1 and 2. : The Cl. for defendant relied upon order dated 17.3.97 passed by my predecessor on the application u/o 39 Rule 1 and 2 of plaintiff which has been dismissed by vacating the exparte status quo order dated 25.1.97, the cl. has relied upon para 55,58& 60 of the said order wherein it has been observed that the conduct of plaintiff was not that of a good commercial man, the plaintiff did not bother to comply with directions of Hon'ble High Court for depositing Rs. 15 crores towards payment of second installment, the said direction of Hon'ble High Court was without prejudice to right of the parties. It is further submitted by defendant no.1 that in the order dated 17.3.97 this court in para no. 58 and 60 has also observed that the proper course for the plaintiff was to amend these suit no. 275/96 Suit No.:1026/06/97 Page:67/228 instead of filing present suit. It is further submitted by defendant no. 1 that this order was passed prior to withdrawal of suit no. 275/96. In spite of the order of Hon'ble Court, neither the plaintiff amended the suit no. 275/96 and nor he sought liberty to continue the present suit while withdrawing suit no. 275/96. The Cl. for defendant has argued that this order dated 17.3.97 of my predecessor is binding upon plaintiff and the observations are binding on this court since plaintiff did not file any appeal against this order. The Cl. for plaintiff pointed out various paras including para 31 and 57 of the order dated 17.3.97 that the Ld. ADJ observed that the perpetual lease was still to be executed and defendant no. 1 was not in position to execute sublease even if plaintiff had paid the full premium as payable in terms of allotment, it is further observed by Ld. ADJ that defendant no. 1 could have not executed the sublease in favour of plaintiff nor an agreement to sublease could have been executed and therefore no such contract existed between the parties inviting the intervention of Article 299 of the Constitution. That para 58 relied upon by defendant no. 1 has to be read as whole and not in part as it has been observed in this para that so far as the first test, the plaintiff is having a primafacie case in his favour is concerned, from the discretion and observations of the above law point it can be Suit No.:1026/06/97 Page:68/228 safely concluded that plaintiff has primafacie case worth being tried on facts, the suit of the plaintiff was found by this court as prima facie and para 61 or order dated 17.3.97 clearly states that in the last that "it is made clear that the order dated 17.3.97 shall not tantamount to any expression of opinion on the merits of this case". It is further submitted by plaintiff that the order dated 17.3.97 is an order of the interim application which has been passed without leading any evidence of any parties and the trial which anyway cannot be relied upon in coming to any conclusion at this stage after the entire evidence has been led, it is a settled law that any observations in the interim orders do not form rejudicata to the final decision in the suit which is arrived at after the complete trial. Plaintiff further submitted that appeal against this order dated 17.3.97 was filed being FAO No. 78/97 and even defendant no. 1 filed the appeal against the order dated 17.3.97 being FAO No. 111/97 and both appeals were heard together.

In view of the above submissions of both the parties, I am of opinion that again adverse inference can be taken against defendant no. 1 as they claimed that plaintiff did not file any appeal, however I need not go into this controversy nor I need to reply on the observations in order dated 17.3.97 which was passed on an interim Suit No.:1026/06/97 Page:69/228 application u/o 39 Rule 1 and 2CPC relied upon by defendant and plaintiff as such observations are of no relevance after the trial has been led to decide the controversy in the present suit since all the issues framed would be dealt by me one by one in detail. The effect of nonpayment of 2nd installment will be dealt with in proper place while deciding the issues. It is also the practice of the courts that in any interim order on any interim application, the observations do not tantamount any expression or opinion on the merits of the case which has been observed by my predecessor in para 61 or order dated 17.3.97 that in the last, it is made clear that the order dated 17.3.97 shall not tantamount to any expression of opinion on the merits of this case. Thus I conclude that I cannot reply upon any observations made in order dated 17.3.97 as claimed by defendant no. 1 as well as plaintiff.

(ix)Replication of plaintiff to written statement of defendant no. 1 : It is submitted by defendant no. 1 that plaintiff has taken the false plea of misrepresentation for the first time in his replication, the plaintiff cannot set up a new case in replication, the plaintiff cannot mention new fact in the replication and further that in the replication the plaintiff can only give reply to the defence taken by the defendant in his written statement as it has been held in case Suit No.:1026/06/97 Page:70/228 titled as "Jeet mohinder Singh Vs. Harminder Singh Jassi 2000 AIR(SC) 256(DB) Para no. 46" that material facts and particulars alleged for the first time in replication cannot be made subject matter of issues framed by the court.

It is submitted by plaintiff that issues were framed on 23.4.09 with the consent of defendants and there was no objection raised to the issue being framed in respect of misrepresentation. It is further submitted by plaintiff that it is well settled law that the replication is also the pleadings and the issues are to be framed on pleadings from the contents of documents produced by either party. It is submitted by plaintiff that the voluminous documents had been filed before this Hon'ble Court which are in regard to the misrepresentation by defendant no. 1 and the admissions of defendant no. 2 that defendant no. 1 had not specified the risk factors in the brochure with the fear that they may not realize the proper values of the properties, plaintiff has relied upon Ex. PW 17/NN the brochure under which the bids were called under which the statutory approvals were concealed and the misrepresentation have been made in respect of various facts, Ex. Pw1/20 the later brochure where the status of the building approvals as well as the lease not executed in favour of Suit No.:1026/06/97 Page:71/228 defendant no. 1 have been mentioned, Ex. PW17/P, Ex. PW 6/B, Ex. PW6/C, PW6/G, Pw6/D, PW17/T, Ex. Pw1/13, DW1/P60, Ex. PW17/U, Ex. PW17/V, Ex. PW17/CC, Ex.

PW17/GG, Ex. PW17/JJ, Ex. PW17/LL, Ex. PW17/MM, regarding the approval of the building plans by Chief Fire Oficer, Ex. PW24/3L, Ex. PW24/3N in regard to the admissions of defendant no. 2, Ex. PW17/WW, Ex. PW 17/AAA, Ex. PW17/DDD, Ex. PW17/FFF, Ex. PW17/GGG in regard to the occupancy certificate of car park basement and Ex. PW9/B, Ex. PW9/C, ex. PW9/D, PW10/A, Ex. PW13/A regarding the approval of revised layout plans and service plans, all these documents relate to misrepresentation and the issues were framed by the Court from the contents of documents filed by plaintiff prior to framing of issues. Plaintiff relied upon Saligram Vs. Shiv Shankar, AIR 1971 Punj 437 in which it has been held that replication is the part of the pleading.

In view of above and the well settled law that the issues can be framed from the documents filed by either parties as well as from the replication which is part of the pleadings and the citation relied upon by plaintiff has been further relied upon in (1998)119PLR353 Ajit Singh Vs. Punjab State Electricity Board and Ors. wherein Suit No.:1026/06/97 Page:72/228 Hon'ble High Court has held that the replication is a part of the pleadings and the trial court can frame the issues from the replication filed by plaintiff. I am of the view that the decision"Jeet Mohinder Singh Vs. Hainder Singh Jassi 2000 AIR(SC) 256(DB) Para no. 46" relied upon by defendant no. 1 does not apply to the civil suit like the present suit as the decision cited by defendant no. 1 relates to the commission of corrupt practice required to be given in the election petition and also relates to expiry of period of limitation for filing the election petition because in the election petition respondent does not have an opportunity of denying the averments whether facts or particular, introduced for the first time in replication, secondly, as already stated, material facts and particulars as to corrupt practice are required to be supported by an affidavit in the prescribed proforma, the replication is not supported by any affidavit in the prescribed proforma. I am of the view that this citation is distinguishable to the present suit as defendants had sufficient opportunity to deny the averments in replication and lead evidence by filing affidavit as well as by cross examining the witnesses. The view taken by me is also further supported by a decision of High Court of Delhi, 1994IAD(Delhi)81Keshav Metal Works And Anr. Vs. Jitender Kumar Verma wherein it has been Suit No.:1026/06/97 Page:73/228 observed that if parties understood each other's case and led evidence accordingly then that party cannot be allowed to raise the objection later and if the objection is not purely a legal objection, it pertains to facts pleaded and understood by the parties and thereafter led evidence hence the objections cannot be raised at this stage and the objection not raised would amount to waiving of the grounds. It is a well established principle of law that the plea taken in replication forms part of the pleadings particularly when the replication was filed at the instance of the court.

(x) Allotment letter dated 10.3.95 to Ansal Properties and Industries Ltd. of Shopping Arcade with car park and allotment letter dated 31.3.97 to Leela Hotels Ltd. of the suit property:

1. It is submitted by defendant no.1 that the rights and obligations of the parties to a contract are governed by the terms and conditions of the contract executed between the parties, in respect of the present suit the terms and conditions of allotment letter dated 31.10.94 is binding on the plaintiff and defendant no. 1, thus plaintiff being a party to such contract cannot raise any plea outside the terms of such contract by citing/mentioning details in respect of any other contract that might have been executed between Suit No.:1026/06/97 Page:74/228 defendant no. 2 and other parties viz. Ansal Properties & Infrastructure Ltd. (APIL) and/or Leela Hotels Ltd. It is further submitted by defendant no. 1 that the provisions of Section 91 and 92 of Indian Evidence Act, 1872 also clearly bar production of such evidence as being trying to be adduced by the plaintiff. It is submitted by defendant no. 1 that the contracts/allotments of Ansal Properties & Infrastructure Ltd. and the plaintiff were in respect of different properties, the said terms and conditions contracts/allotments were different, that the PW1 in his cross examination conducted on 6.10.09 has stated that allotment to M/s Ansal Properties were not part of Plaintiff's allotment letter, thus the plaintiff cannot compare his allotment with the allotment and extensions of Ansal Properties & Infrastructure Ltd.. It is also submitted by defendant no. 1 that the car parking slots of Ansal Properties & Infrastructure Ltd. were different from car parking slots alloted to plaintiff for hotel site.

It is submitted by plaintiff that it is admitted by defendant no. 2 who has placed the comparison chart of terms and conditions of plaintiff's allotment visa vis Ansal Properties & Infrastructure Ltd. who were issued allotment letter on the similar and identical terms as that of plaintiff's allotment of the suit. It is further Suit No.:1026/06/97 Page:75/228 submitted by plaintiff that the same car park basement has been partly alloted to Ansals and the same has been allotted to plaintiff which is subject matter of the present suit, the only difference in the terms of allotment as compared to the plaintiff's allotment is that the third installment in case of Ansals is payable after 18 months while in case of hotel the third installments is payable in 24 months, the comparison chart of both the installment has been submitted to defendant no. 2 at Ex. PW24/3W, it is submitted that defendant no. 2 has even made observations visa vis Ansals which can been seen from Ex. PW24/4F. It is further submitted by plaintiff that the issues were framed by this court on 23.4.09 in the presence of all the parties and one of issue framed is discrimination visa vis Ansals and at this stage the objection taken by defendant no. 1 at the time of arguments is out of place after the entire evidence is led in regard to the issues framed by this Court. It is further submitted by plaintiff that defendants have acted arbitrary and discriminatory and as such violated Article 14 of the Constitution of India. Plaintiff has submitted that it has been laid down in AIR 2000 All47NTPC Sahakari Avas Saiti Ltd. Vs. Greater Noida Industrial Development Authority and Suit No.:1026/06/97 Page:76/228 Anr. in which the series of decisions by Apex Court have been relied upon. The Court observed that where the Govt. is trading with the public and the democratic process of the Govt. demands equality and absence of arbitrariness and discrimination in such transactions their should be fairness and equality and that the Govt. cannot Act in a manner which should benefit private party at the cost of the state. It is further submitted by plaintiff that Article 14 of Constitution stands breached by the malafide conducts of the defendants.

It is submitted by plaintiff that the same suit property was allotted to Leela Hotels Ltd. on 31.3.97 and initially Leela Hotels Ltd. was impleaded in the present suit as one of the party vide order dated 15.11.97 passed by Ld. ADJ in the present suit and the said order was confirmed by Hon'ble Supreme Court of India vide order dated 19.4.99. It is further submitted by plaintiff that Leela Hotels Ltd. was issued allotment letter which were similar and identical to the allotment letter of plaintiff except the term that timely payment was essence of the allotment. It is submitted by plaintiff that allotment of Leela Hotels Ltd. was also cancelled by defendant no. 2 (HUDCO) and the matter had been referred to Hon'ble Arbitrator Retd. Chief Justice Sh. R.S. Pathak who had Suit No.:1026/06/97 Page:77/228 awarded the award in favour of Leela Hotels Ltd. holding that it is defendant no. 1 who breached the contract.

In view of the above submissions by plaintiff and defendant no. 1, I am of the view that submissions of defendant no. 1 that the contract of Ansal Properties & Infrastructure Ltd. cannot be considered does not have force as there is no doubt that issues were framed in the presence of all the parties and one of the issue has been framed in regard to the discrimination, arbitrary treatment given to plaintiff visavis Ansal Properties & Infrastructure Ltd. and even the evidence has been led by all the parties in regard to said issue. The transaction is between the Govt. and Govt. corporation and they are bound to follow the principal of equality. I am of the view that Sections 91 & 92 of Indian Evidence Act are not attracted in the present case as held in Roop Kumar Vs. Mohan Thedani (2003)3 SCR 292 wherein Apex Court has held that Section 91 relates to evidence of terms of contract, grants and other dispositions of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself. It is covered by the ordinary rule of law of evidence. Now, in respect of allotment of Leela Hotels Ltd, I am of the view that the submissions of defendants have no force at all since it is the same Suit No.:1026/06/97 Page:78/228 suit property which was alloted to Leela hotels Ltd. and they were one of the defendants till their allotment was cancelled or Leela Hotels Ltd. opted to come out of the agreement due to breach by defendant no. 1 which has been upheld upto Hon'ble Supreme Court. I am of the further view that the objections of defendant no.1 taken at this stage are belated and are also not sustainable.

I have gone through the record, the documents exhibited, evidence, pleadings, citations and have heard the arguments of both the counsels and have pursued the written submissions submitted by plaintiff and defendant no. 1 and I shall decide the issues according to my observations given above in respect of various submissions by plaintiff and defendants. My issuewise findings are given below: ISSUE WISE DECISION: Issue no. 1:

Whether defendant no. 1 performed its reciprocal obligations on receipt of 1st installment from plaintiff as per terms of allotment letter dated 31.10.94 and whether in the absence of not doing so defendant no. 1 could demand the 2nd installment?OPP :

1) The point urged by Cl. for defendant no.1 is that financial bids for the suit property were invited on 15.7.94, Ex. PW17/NN and the bids of plaintiff were found Suit No.:1026/06/97 Page:79/228 to be highest and they were alloted the suit property vide allotment letter dated 31.10.94, Ex. DW1/1 on which entire case depends, defendant no. 1 further contended that this letter of allotment was duly accepted by plaintiff and the relevant conditions of this allotment letters are clause no. 4: " The hotel site as well as the car parking space mentioned in paras 2 and 3 above shall be on perpetual sub leasehold basis.

2) Cl. for defendant no. 1 further relied upon clause 5(ii) which gives the details of premium to be paid and also mentions the dates of such premium, the payments as per clause 5/A(i) and Clause B(i). The Ist installment was to be paid by 30.11.94 and the second installment was to be paid as per clause 5/A(ii) and clause B(ii) by 31.10.95 and the third installment was to be paid as per clause 5/A(iii) and Clause B

(iii) by 31.10.96 i.e. the second installment was payable after one year and the third installment was payable after two years. Defendant no. 1 admitted that the first installment was paid but it was also not paid on time and defendant no. 1 relied on Clause 5(iii):

" No interest will be charged on payments made before the due dates stated above. In case of default, interest shall be charged @ 16% p.a for three months if the payment is made after the due date. Additional penal interest @ 3% p.a shall also be charged on the interest for three months. Any delay beyond three months would entail cancellation of allotment and/or forfeiture of the total amount deposited till date."

3) The Cl. for defendant argued that this Clause 5(iii) is a mandatory Clause and Suit No.:1026/06/97 Page:80/228 it was at option of defendant no. 1 that on default of plaintiff that any delay beyond three months entail cancellation of allotment and/or forfeiture of the total amount deposited till date and it was in defendant no. 1's hand to cancel or forfeit or both on default. That Clause 5(vi) stipulated that:"HUDCO will executed all required documents for obtaining approval of the competent authority under the Urban Land (Ceiling and Regulation) Act competent authority under the Urban Land(Ceiling and Regulation) Act (ULCR), 1976 and also of the Appropriate Authority in terms of Chapter XX C of the Income Tax Act", it was stated that this clause only narrates to execution of documents by defendant no.1 which implies that all actions had to be taken by plaintiff in respect of permission under Income Tax Act and ULCR act. It is further submitted by Cl. for defendant no.1 that this clause implies that plaintiff should make the payment as per schedule and as per time given in the allotment and as such defendant no.1 was to only give the signatures on the documents under the Acts and it was plaintiff to get the permission fro the appropriate authorities under the Acts. Further the defendant no.1 relied upon Clause 5(viii):

" Initially the Hotel site will be on a licence under an Agreement to sublease and upon fulfillment of the terms of the said agreement including payment of all dues, perpetual sublease will be executed. The terms and conditions of the perpetual sub lease shall be as per the proforma duly approved by the Govt. of India, a copy of which will be sent to you in due course."

4) It is submitted by Cl. for defendant no. 1 that the entry to the land was to be Suit No.:1026/06/97 Page:81/228 given by defendant no.1 on licence under the agreement to sublease clarified as agreement to sell and unless the permissions as per clause 5(vi) were obtained by plaintiff, the agreement to sell could not be executed and that perpetual sublease was to be executed after two years from the date of allotment as per terms of allotment and the sublease could be only executed after the receipt of all the three installments. It is further submitted by Cl. for defendant no. 1 that it is implied from the above clauses that the entire payment was to be paid by plaintiff and only after permission under Income Tax Act, the agreement to sell was to be executed and thereafter the entry on licence basis to the land could be given for construction of the building. Cl. for defendant no.1 further emphasized on the clause (vi) that plaintiff was required to deposit the first installment on or before 30.11.94 and initiate action for obtaining approvals under para 5(vi) of the allotment letter. Further it was emphasized by the Cl. that defendant no. 1 had enclosed alongwith the allotment letter the copy of agreement to sublease which was duly signed by defendant no.1 and was also accepted by plaintiff by signing on each and every page, thus plaintiff accepted every terms of the allotment letter and agreement to sublease as well which is at Ex. DW 1/7. The Cl. emphasized that Ex. DW1/7 being agreement to sell is interesting document of which page no. 5 at para 3 it is specifically stated that if the payments are not paid on time or alongwith interest in case of delay for three months, defendant no. 1 would be entitled to cancellation of allotment and as well as the forfeiture of the deposited amount. Cl. for defendant no.1 stated that the terms of agreement to sell Suit No.:1026/06/97 Page:82/228 specified that timely payment is essence and in this admitted document agreement to sell 'OR' word has been taken away and instead of which 'AND' has been added, so defendant no. 1 cancelled the allotment and as well as forfeited the amount paid as both had to go as per terms of this agreement although in the allotment letter the word "OR" existed. The Cl. further submitted that plaintiff even failed to pay in time the first installment which was admittedly accepted with delayed period of three months by defendant no.1 with interest on 28.2.95.

5) On the other hand Cl. for plaintiff argued that the conditions of allotment letter dated 31.10.94 at Ex. DW1/1 and agreement to sublease which is agreement to sell at Ex. Dw1/7, are major documents and the conditions of these documents being allotment and draft agreement to sell being relied upon by defendant no. 1 have to be read as a whole and some clauses cannot be read in isolation. Plaintiff has relied upon AIR2009SC806, Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Anr. where Apex Court has currently held that an agreement is to be read as a whole so as to enable the Court to ascertain the true intention of the parties and to determine the meaning of the words used in the agreement. It is further submitted by plaintiff that it is a settled law that any conditions cannot be read in isolation and the intention of the parties is to be seen by relying upon all the clauses overall. Plaintiff relied upon the conditions of the bid document floated by defendant no. 1 and stated that no where it has been specified that time is essence of the allotment. Plaintiff further submitted that defendant no. 1 has admitted that agreement to sublease was to be executed on Suit No.:1026/06/97 Page:83/228 receipt of first installment which admittedly has not been done because it is alleged that plaintiff did not obtain permission of the appropriate authorities under Income Act and ULCR Act. Plaintiff further submitted that it is admitted by defendant no. 1 that the payment of 2nd installment or 3rd installment were deferred payments and defendant no.1 has also admitted that the conditions of the allotment letter and proposed agreement to sell being relied upon by defendant no. 1 were changed in regard to the forfeiture clause which were applicable as terms of this draft agreement which have been accepted by defendant no. 1 as well as plaintiff. Plaintiff further argued that defendant no.1 has admitted that defendant no. 1 was to execute all required documents for obtaining approval of the appropriate authority and Income Tax Act but whatsoever be the conditions of the allotment letter or agreement to sub lease, they cannot be beyond any prevalent Acts and Laws since Income Tax Act and ULCR Act is very clear that it is the seller who has to obtain the permission from the appropriate authorities. Cl. for plaintiff made me go through the term of agreement to sublease at para(xvi).

"the parties hereto shall obtain requisite clearances and approvals as applicable under law, especially those under the Urban Land(Ceiling & Regulation) Act, and Income Tax Act, and complete necessary procedural formalities as may be required under the relevant statutes, Rules & Regulations, if not obtained prior to execution of these presents. If required approvals are not granted by the concerned authority or authorities then in that event the corporation shall refund to the Intended SubLessee Suit No.:1026/06/97 Page:84/228 all payments made to the Corporation without any interest and the intended sub lessee shall also not be entitled to claim any amount towards compensation or damages of any nature whatsoever."

6) The Cl. for plaintiff relying upon the above clause stated that even if the permissions had not been obtained, defendant no. 1 was bound to execute agreement to sell on receipt of first installment which they failed to do so, resultantly the cancellation of allotment is null and void in view of non performance of this clause itself besides defendant no.1 has admitted that they were to execute agreement to sell with plaintiff on receipt of first installment but they did not do so because of non availability of permissions under Income Tax Act and ULCR Act. Plaintiff has submitted that now the next question is whether these permissions could be obtained in the absence of agreement to sell with plaintiff and whether agreement to sell could be executed by defendant no. 1 without having lease in their favour which this court must decide in coming to the conclusion on issue no. 1. It is submitted by plaintiff that the defendant no. 1 did not have title deed in their favour and they were unable to get the clearances from Income Tax department as well as under Urban Land(Ceiling & Regulation) Act and resultantly the allotment could have not come to an end as held in Ragunath Rai Vs. Jogeshwar Prasahad Sharma, AIR 1999 DEL 383 that where under the agreement to sell of property, the seller was required to obtain no objection certificate and Income Tax clearance before execution of sale deed, however the seller intimated to the buyer his inability to sell property on ground that Suit No.:1026/06/97 Page:85/228 in spite of his best efforts he could not get the no objection certificate and also the title deed from the bank where the property was mortgaged, the agreement would not come to an end.

7) The Cl. for defendant no. 1 relied upon letter dated 18.10.95 of defendant no. 1 at Ex. Dw1/E addressed to plaintiff and the Ld. Cl. submitted that plaintiff was put to clear notice that the allotment shall be determined on 1.2.96 if the payment is not made on or before 31.1.96. Further it is emphasized by the Cl. that defendant no.1 vide letter dated 31.1.96 in reference to letter dated 30.1.96 of plaintiff denied to have received any alleged letter dated 25.10.95 and defendant no.1 had claimed that the second installment is not connected to obtaining of approvals and that defendant no.1 on their part has always signed any document and ready and willing to execute any document legally required for obtaining the necessary approvals. The Cl. for defendant no. 1 further emphasized that in this letter defendant no.1 had specifically stated that plaintiff was obliged to obtain permission under Income Tax Act and ULCR Act before requesting for possession on licence and that defendant no.1 was only obliged to sign the documents required under clause 5(vi) of the allotment letter and accordingly defendant no.1 had put plaintiff to notice in regard to the termination of the allotment letter. Cl. for plaintiff further argued that letter dated 31.1.96 itself reveals that defendant no.1 has admitted that till the last date alongwith extension on default as per terms of allotment the required documents were not executed by defendant no.1 in regard to Income Tax Act and ULCR Act. It has been further Suit No.:1026/06/97 Page:86/228 submitted by plaintiff that the Acts and the market practice are very clear that it is the transferor who is responsible to obtain permissions under Income Tax Act and ULCR Act on execution of agreement to sell for property provided seller has clear title in its favour. The onus of proving of this issue was on plaintiff. It has to be kept in mind that defendant no.1 has not led any evidence on this issue and there are vague averments of defendant no.1 that it performed all its obligations on receipt of the first installment from plaintiff but no evidence in regard to such averments has been adduced by defendant no.1. On the contrary it is submitted by defendant no.1 in their written submission that they were not required to perform any alleged reciprocal obligation on receipt of first installment from the plaintiff. Admittedly plaintiff paid the Ist installment as stipulated in the allotment letter and on receipt of the same defendant no.1 as per clause 5(vi) was to execute all required documents for obtaining approvals of competent authority under the Urban Land(Ceiling & Regulation) Act, 1976 and also the appropriate authority in terms of chapter XX C of the Income Tax Act as per the evidence led it is admitted by defendant no. 1 that they for the first time executed on 5.2.1996 the documents in respect of Income Tax Act, Ex. DWI/P which admittedly was much after the alleged due date of 2nd installment. It is further observed that in the application at Ex. DW1/P to appropriate authority under Income Tax Act in para 5(iii) it is stated that the transfer of the land as well as car park is by way of lease on perpetual sublease hold basis in terms of letter of allotment dated 31.10.1994 and the agreement to sublease in fact which is Suit No.:1026/06/97 Page:87/228 admittedly not yet executed till date. Further in para 12 of the application, it is stated that the suit property was acquired under Govt. Lease in favour of HUDCO as per letter of allotment dated 15.6.1993. Further at para 16 the documents enclosed are (i) allotment letter dated 31.10.1994, (ii) agreement to sublease, (iii) copy of plaint filed by transferee against transferor (iv) copy of allotment letter dated 15.6.1993, the said application is form 37I (see 48L) being a statement of agreement for transfer of immoveable property to be furnished in the appropriate authority under section 269 UC of the Income Tax Act, 1961. It is admitted by defendant no. 1 in their written statement that they have not executed any agreement to sublease with plaintiff and that plaintiff is only licencee, it is obvious that in the application submitted on 5.2.1996 no agreement to sublease (agreement to sell) could have been enclosed with form 371. Further it is admitted by defendant no. I that the perpetual lease was executed on 4.7.1997 which could have not been enclosed with the said 37I form submitted to Income Tax department by defendant no. 1, further the letter dated 15.6.1993 being sanction of President issued to L&DO was enclosed which again as already concluded by me was not an allotment letter in favour of defendant no. 1. From various correspondence between defendant no. 1 & defendant no. 2 at Ex. PW24/W, E x. PW24/Y, Ex. PW24/lA, E x. PW24/lC, E x. PW24/lD, E x. PW24/lF, Ex. PW24/lG, Ex. PW24/1L , it is observed that it is admitted fact that defendant no. 1 could not execute agreement to sublease with plaintiff unless lease deed was executed in favour of defendant no. I by defendant no. 2. In the affidavit by way of Suit No.:1026/06/97 Page:88/228 evidence filed by plaintiff in para no. 33 plaintiff has relied upon these exhibits and the allegations in the para have not been controverted by defendant no. I. In cross examination of PWI neither defendant no. I has controverted the allegations of plaintiff by leading any evidence in respect of these allegations. Further it is observed that Ex. PW24/W is a letter dated 3.1.1995 from defendant no. I to defendant no. 2 wherein it is stated that:

"a) Memorandum of Understanding is to be signed between Hudco and MOUD for the disposal of the properties at Andrews Ganj, New Delhi" "Since signing of MOU is a major condition as per the allotment letter issued by the Ministry letter No. J 13014/6/90Ld dated 28.12.1992, it is requested that the MOU may be finalized so that the same could be signed. b) Signing of leasedeed for the sale of land at Andrews Ganj, between the Government (President of India) and Hudco, you may be aware that we have disposed major portion of the properties on the direction of the Ministry Of Urban Development and now we have to sign "Agreement to Sublease"

and Sublease Deed with the prospective buyers. This can be done only after signing of Perpetual Lease Deed between Government and HUDCO." Similar examples are letters dated 24.1.1995 Ex. PW24/Y, letter dated 3.3.1995 Ex. PW24/lA, letter dated 29.3.1995 Ex. PW24/lC, letter dated 6.4.1995 Ex. PW24/lD, letter dated 29.4.1995 Ex. PW24/lF, letter dated 9.5.1995 Ex. PW24/lG, letter dated 19.6.1995 Ex. PW24/1I, letter dated 8.12.1995 Ex. PW24/lL, all these letters indicate that defendant no. I alone could have not executed agreement to sublease (agreement to sell) in the absence of perpetual lease in their favour which was executed on 4.7.1997 much after the cancellation and consequently lease or agreement to sublease could have not been submitted alongwith form 37I although it is mentioned in the form submitted to Suit No.:1026/06/97 Page:89/228 income Tax Authorities that the transfer is as per agreement to sublease due to which the request of defendant no. I was not considered by the appropriate authority of income Tax. Further as admitted by defendant no. 2 in their written statement that allotment letter dated 19.3.1996 was issued to defendant no. I in suppression of letter dated 27.3.1992 which is also admitted by defendant no. 1 in their written statement although denied in the affidavit filed by way of evidence by DWI and also denied in the cross examination of DW1 as defendant no. 1 in its evidence relied on a letter dated 15.6.1993 since the same has been enclosed alongwith Form 37I. It seems it is an after thought and after admitting the letter dated 19.3.1996 being the allotment letter issued in suppression of earlier letter dated 27.3.1992. Defendant no. 1 cannot wriggle out of their own admissions in their written statement in regard to which I have already concluded above. It is proved by plaintiff that Form 37I was executed by defendant no. I after more than one year i.e. even after the alleged due date of 2nd installment on 31.10.1995 and also much after the default clause date with interest on 31.1.1996 since 37I form has been executed by defendant no. 1 on 5.2.1996 which itself is an evidence that the allotment letter could have not been cancelled by defendant no. I without performing the obligation by defendant no. I as per prevailing laws, Acts & as per terms of allotment letter in respect of statutory laws being Income Tax Act and the permission to be obtained under section 269 UC. PW21 produced the records from the appropriate authority being 371 submitted by defendant no. I under the Income Tax Act for the permission to transfer the property, PW21 deposed that the Income Tax department did not consider the permission due to lack of proper documents not submitted alongwith the application as there was no agreement to sell (agreement to sublease) and proper ownership documents enclosed with the application which were required to be submitted as per rule 48L in form 37I, further defendant no. I even did not submit the board resolution authorizing Sh. Anoop Aggarwal on behalf of defendant no. I to sign the application submitted to Suit No.:1026/06/97 Page:90/228 appropriate authority under section 269 UC(3). It is also seen from the terms of allotment dated 31.10.1994 in favour of plaintiff that in case the permission was not granted by the appropriate authority under income Tax Act, defendant no. I was to refund the amount paid without any interest and plaintiff was not entitled to claim any compensation or damages. Now considering the said clause even if plaintiff had paid the 2nd installment on 31.10.1995, it is obvious that still the permission by appropriate authority under income Tax Act could have not been granted in absence of agreement to sublease(agreement to sell) and perpetual lease in favour of defendant no. 1. Neither there was a proper accepted allotment letter in favour of defendant No. 1 till 15.10.96 as observed from Ex. DW1/P171 being the modification of terms of allotment in favour of defendant no. 1 which were accepted by defendant no. 2. The same would have been the situation even if 3rd installment was paid on 31.10.96. The allegations of defendant no. 1 that the permission under Income Tax Act was to be obtained by plaintiff are also not sustainable as the Act as it existed at the relevant time is very clear that under section 269 UC there was restriction of transfer of immoveable property without the permission from the appropriate authority and within atleast four months before the intended date of transfer and such transfer can only be effected after an agreement for transfer is entered into between the persons who intends transferring the immovable property and further Section 269 UC(2) clearly indicates that the agreement shall be reduced to writing in the for of statement by each of the parties to such transfer. Even the Section 269UC(3) of the Income Tax Act stipulates the both parties have to make an application as per rule 48(L) in form no. 37I and plaintiff could have not on its own submitted the application as per law without execution of the said form by defendant no. 1 besides plaintiff has proved that it approached various times to defendant no. 1 to execute the documents under Income Tax Act, Ex. PW17/M, Ex. Pw17/N, PW 1/11, Ex. PW17/X but of no avail. Plaintiff has led its evidence in para 45, 46, 47, Suit No.:1026/06/97 Page:91/228 54, 68, 69, 72 of the affidavit by way of evidence at Ex. PW1/AA in regard to non performance of defendant no. 1 by not executing the required documents under Income Tax Act as per law and as per terms of allotment letter which have not been controverted by defendants rather defendant no. 1 admitted that they for the first time on 5.2.1996 executed the required document as per law and as per terms of allotment letter which date is much after the due date of the 2nd installment while defendant no. 1 was to execute documents as per law under Income Tax Act immediately on receipt of first installment which has been admittedly received on 28.2.1995.

8) It is observed that plaintiff has proved its case in reply to his cross examination on 1.10.2009, 14.10.2009 that there were no installments that fell due because of non performance of reciprocal obligations of defendant no. I after receipt of first installment and that clause 5(viii) of the allotment letter was invoked by plaintiff for executing the agreement to sublease which was invoked through its various letters at Ex. PW17/M, PW17/N, PW17/X and Ex. PWI/11 that these letters were sent to defendant no.l for reminding them for performing their reciprocal performances after receipt of first installment.

9) It is observed that plaintiff has proved its case in regard to issue no. I in cross examining DWI on 3.2.2010 that plaintiff was always ready and willing to pay provided defendant no. I had performed its reciprocal obligations on receipt of first installment paid as per terms of allotment to which DWI has vaguely replied that plaintiff defaulted in making the payments for the reasons best known to him, then on asking DWI what obligations were performed by defendant no. 1, DWI replied that it is as per the records already placed in this suit, that again on asking whether she has knowledge of any one obligation performed by defendant No. I after receipt of first installment, the same reply was made that it is already on record placed in this suit.




10)      It is observed that plaintiff has proved its stand in cross examining DWI on



Suit No.:1026/06/97                                                                      Page:92/228

3.2.2010 to the question that when did defendant No. I execute documents in respect of ULCR Act and Income Tax Act, which year, she replied that it is as per record and she reiterated that she has personal knowledge of the case but she volunteered that she is deposing as per her affidavit which is on record. That on question being asked that defendant no. I did not execute any agreement except allotment letter to which she replied that defendant No. I issued allotment letter for the suit property. It is observed that plaintiff has proved its stand and its allegations in his cross examination on 25.7.2009 by defendant no. 2 that hotel site along with car park was allotted without the lease deed and MOU by defendant no. 2 in favour defendant no. I but it was condition precedent before the second installment could be demanded by defendant no. l. It is observed that on the other side defendant no. I cross examined plaintiff on 20.10.2009 claiming that as if defendant no. I had executed all necessary documents as per law under the Acts and under condition No. 5(vi) although it is admitted by defendant no. I that they did not execute any documents after receipt of the Ist installment. In view of the evasive replies of DWI in cross examination on 5.2.2010 on being asked "that the plaintiff paid the first installment to defendant no. I believing that defendant no. I and 2 would execute agreement to sell (agreement to sublease) and would also obtain permission under Income Tax Act and ULCR Act as required under the terms of allotment" to which DWI replied that "timely payments were the essence of the contract/allotment letter and is no way related to the other chapters/clauses of the allotment letter", in my view under the Indian Evidence Act such evasive replies are deemed to be admitted that defendant no. I was bound to perform the reciprocal obligations on receipt of the 1st installment. It is held that plaintiff has proved its case that defendant no. I did not have the lease till even the 3rd installment was due and that the lease was executed on 4.7.1997 effective from 1.11.1990 to cover the observations of Ld. ADJ in his order dated 17.3.1997, it is admitted by DWI in her cross examination on 5.2.2010 that the allotment letter is Suit No.:1026/06/97 Page:93/228 dated 31.10.1994, cancellation letter dated 2.5.1996 and that the date of perpetual lease deed in favour of defendant no. I is 4.7.1997 and to the question asked from DWI that "means you had no lease till this date", it was replied "that the lease was retrospectively effective from 1.11.90" which admittedly is executed much after the cancellation and the alleged due dates of 2nd and 3rd installment as well.

11) Plaintiff has also led its evidence in para 45, 46, 47, 68, 69, 70, 203 of the affidavit by way of evidence, Ex. PWI/AA in regard to nonperformance of defendant no. I that by not executing the required documents under Urban Land (Ceiling & Regulation) Act as per law and as per terms of allotment letter, that it is transferor who has to apply to the appropriate authority for permission to be obtained under Urban Land (Ceiling & Regulation) Act and that defendant no. I cannot claim that it was plaintiff who was to seek permission under the Act. Defendant no. I has claimed in its affidavit Ex. Dl filed by DWI that they have complied with all part of the terms of allotment letter and has admitted that there is no other agreement between plaintiff and defendant no. I of any nature whatsoever except the letter of allotment dated 31.10.1994 and also admitted that the car park basement built by defendant no. I had the total consideration amount of Rs. 14 crores which forms the part of allotment to plaintiff Defendant no. I has further admitted in its affidavit filed by DWI that they received the first installment in compliance with terms of letter of allotment dated 31.10.1994. DWI has further claimed in its affidavit that plaintiff intentionally and deliberately restrained himself from paying further installments.

12) Now as per clause 5(vi) of the allotment letter dated 31.10.1994 defendant no. 1 was to execute all required documents for obtaining approval of competent authority Urban Land (Ceiling & Regulation) Act, 1976. DW1 has relied upon a letter dated 16.6.1995 filed alongwith the affidavit by way of evidence at Ex. DW1/R the original of which has been claimed to have been filed in another suit no.

Suit No.:1026/06/97 Page:94/228 1551/2005 filed by plaintiff before Hon'ble High Court in regard to another property I have already concluded above that the letter dated 16.6.1995 relied upon is in response to letter no. Hudco/AG/SA/95 dated 6.6.1995 of defendant no. 1 to defendant no. 2 for clarification wherein defendant no. 2 has clarified that provisions of section 26 do not apply to Hudco in view of the guidelines no. 1/132/76UCU dated 23.12.1976 issued by the Ministry (copy enclosed). Defendant no. I relied upon this letter that the Urban Land (Ceiling & Regulation ) Act was not applicable to them but defendant no. I did not produce the copy of the guidelines mentioned in the Ex. DWI/R. However, plaintiff in cross examination of DWI confronted the said guidelines alongwith the letter by producing the court certified copy of the same submitted by defendant no. I in another suit no. 1551/2005 filed by plaintiff pertaining to another property, and the documents are exhibited as Ex. DW1/P177. Now on going through the guidelines no. I/132/76UCU dated 23.12.1976 issued by the Ministry, it is observed that by these guidelines the Ministry has clarified as to where the section 26 & 27 of Urban Land Ceiling and Regulation Act are applicable. The Section 27 applies to transfer of Urban or Urbanised land with a building or a portion only of such building by the authorities referred to in Section 19 (I). it is very clear that the guidelines clearly clarifies that defendant no. I could be exempted if the allotment was of vacant land and if any portion was built then section 27 will apply, legally as per law prevalent at that time defendant no. I was not exempted as the allotment pertains to five star hotel land alongwith already built car park basement by defendant no. 1. Further DWI in her cross examination stated that it is wrong to suggest that letter dated 6.6.95 of defendant No. I to defendant No.2 is the clarification sought from defendant No.2 whether HUDCO will be required to take clearance under Urban Land (C & R Act, 1976) Since the consideration amount is less than Rs. 10 Lac which means it was not related to any clearance under ULCR Act in respect of the suit property. On the contrary defendant nos. 1's counsel cross Suit No.:1026/06/97 Page:95/228 examined PWI claiming that defendant no. 1 as per condition No. 5(vi) had executed all the documents for obtaining approval of the competent authority under the Urban Land (Ceiling and Regulation Act, 1976) as also in terms of chapter XX C of the income Tax Act and that plaintiff had failed to perform its part of the obligations. Thus, I am of the view that the plea of defendant no. I has been contrary at one time they claimed to have executed the documents pertaining to ULCR Act and on the other hand defendant no. I claimed that they had not to execute any documents under ULCR Act as they were exempt by the letter dated 16.6.1995 issued by defendant no. 2 which is not sustainable in the eyes of law, the guidelines as well as the ULCR Act. Thus in my view defendant no. 1 was bound to execute documents to obtain permission under the Act. I have already dealt above in regard to letter dated 16.6.1995 that it was not issued in respect of approvals to be obtained under ULCR Act with allottees like plaintiff it is also further observed by me that if defendant no. I was exempted vide letter dated 16.6.1995 at Ex. DWI/R then why would they stipulate the same condition in regard to Urban Land (Ceiling & Regulation Act in the brochure floated in December, 1996, Ex. DWI/P3 for the same suit property and why would they stipulate the same condition in the allotment letter dated 31.3.1997 for the same suit property in favour of Leela Hotels Ltd., Ex. PW24/2E. Thus I hold that the stand of defendant no. I is not sustainable that they were exempt under ULCR Act and no such documents were required to be executed and that defendant no. I was bound to execute required documents after receipt of the Ist installment in regard to such permission under Urban Land (Ceiling & Regulation) Act and obtain the permission. Counsel for plaintiff while arguing sought to draw an analogy from 2006 (3)ARBLR67(Delhi) I.T.C. Limited Vs. Pradeep Anand and Ors. that where sanction had to be obtained from the Income Tax Authorities under Section 269UC of the income Tax Act, 1961 prior to concluding a sale for immovable property, it was held that no transfer could take place in the absence of noncompliance of the Suit No.:1026/06/97 Page:96/228 provisions but such provisions could only be complied after agreement to sell was executed and provided defendant no. 1 had title in their favour.

13) The counsel for plaintiff while arguing relied upon 151(2008)DLT402 Mrs. Nisha Raj and Anr. Vs. Mr. Pratap K. Kaula and Ors. that Section 269UC provides for restrictions on transfer of immovable property. Under Rule 48L Form 371 is prescribed which is to be filed before the Appropriate Authority signed by both the transferor and the transferee within 15 days from the date on which the agreement for transfer is entered into. The counsel for plaintiff further submitted that defendant no. 1 never executed the agreement for transfer as they were incapable to do so till 4.7.1997 i.e. till the lease was executed in favour of defendant no. 1 and the allotment in favour of plaintiff cannot be termed as the agreement for transfer under section 269 UC of Income Tax Act, as it was a mere allotment and as admitted by defendant no. 1 that plaintiff was only a licencee. The counsel for plaintiff further submitted that coming to section 269UC of the income Tax Act it imposes restrictions on transfer of certain immovable properties in the absence of an Agreement in the prescribed form, for transfer. The plaintiff submitted that when the suit was filed in Jan., 1997, the perpetual lease deed had not been executed in favour of defendant no. 1 which was executed subsequently to the filing of the suit in view of which plaintiff could have not sought the execution of agreement till defendant no. 1 had the perpetual lease in their favour of the suit land. The counsel for the plaintiff relying upon 68(1977)DLT914 S.K. Kochar Vs. Nimmi Singh and Ors. submitted that as per section 269 UC(4) submitted that if the application submitted under Rule 48L, 37I is defective and the defect is not rectified, the statement submitted before the Appropriate Authority of Income Tax shall be deemed never to have been furnished. It was submitted by plaintiff that there were defects in the application which could not be rectified unless agreement to sublease was executed with plaintiff and unless defendant no. 1 had perpetual lease in their favour. The counsel Suit No.:1026/06/97 Page:97/228 for plaintiff has submitted that similar are the provisions of ULCR Act. It is further submitted that both these Act are very clear that it is transferor who has to produce the permission in writing of the competent authority to the Sub Registrar prior to registration of the sale deed/sub lease. That plaintiff relied upon (1989) ICALLT224 (HC) Prasanta Kumar Seth and Ors. Vs. Special Officer and Secretary, Board of Revenue and Ors. wherein it is held that Urban Land has been defined in Section 2

(o). According to it urban land means any land situate within the referred to in Sub section (2) of that Section has elapsed and in case of transfer referred to in Section 27 no document shall be registered unless the transferor produces the permission in writing of the Competent Authority for such transfer or is satisfied that the period of 60 days referred to in Subsection (4) of that Section has elapsed. It is submitted by plaintiff that in the absence of any agreement to sell no such permissions could be accorded and it is the transferor who is bound to get the permission prior to execution of sale deed.

14) The submissions of plaintiff have force in regard to the fact that even if all the installments stood paid on 31.10.1996 as given in the allotment letter, defendant no. 1 could have not executed the sale deed (sublease) till they had the right to execute the same which was admittedly given to them on 4.7.1997 and the arguments of defendant no. 1 that the lease is retrospective from 1 .11.1990 has no force as the lease was executed much later than the last installment alleged to be due and much after the cancellation of the allotment. Further defendant no. 1 could have not executed the agreement to sell which obviously was to be registered under section 49 of the Registration Act and till defendant no. 1 had the right to do so under the lease which was executed in their favour on 4.7.1997 which is further proved from the agreement to sell executed with Leela Hotels Ltd. on 4.7.1997. I have already concluded that the permissions under income Tax and ULCR Act could have also not Suit No.:1026/06/97 Page:98/228 been granted without the agreement to sell and perpetual lease in favour of defendant no. I which has also been deposed by PW21 from the income Tax department. It is also well settled law that unless permissions under income Tax Act and ULCR Act are obtained, the sale deed cannot be executed prior to these permissions as also held in Bhagat Ram v. Kishan, AIR 1985 SC 962 the Apex Court of the land ruled that where obtaining permission is stipulated in the agreement and contrary to it sale deed is executed, on this score alone, it has been held that transfer is invalid for want of previous sanction.

15) Now reading the allotment letter as a whole and the prevalent laws and Acts applicable of Chapter XX C of Income Tax Act read with Rule 48(L) and section 269 UC of Income Tax Act, Section 26 of Urban Land (Ceiling & Regulation) Act, 1976 and the circular relied upon by DWI in regard to exemption to defendant no. 1 under Urban Land (Ceiling & Regulation) Act and on going through the evidence led by plaintiff and defendant, I reach the conclusion that defendant no. 1 was bound to execute the required documents under the said Acts on receipt of the Ist installment. Defendant no. 1 has no where in its evidence has been able to prove that they were always ready & willing to execute any documents except that they for the first time forwarded on 5.2.1996 the documents for permission under Income Tax Act which was much after the expiry of the due date of 2nd installment. There is nothing proved by defendant no. 1 that they had executed any document in regard to Urban Land (Ceiling & Regulation) Act and their claim that they are exempted is also not sustainable besides they have not proved that such exemption was communicated to plaintiff anytime. It cannot be asked from the allottee to pay the entire amount of other two installments and then defendant no. 1 would have executed agreement to sell and such documents required under law. It is admitted by defendant no. 1 in Ex. DWI/O letter dated 5.2.1996 that they had executed form 37I as per directions of Hon'ble High Court while my observations are that defendant no. 1 could have Suit No.:1026/06/97 Page:99/228 executed the required documents on receipt of Ist installment which was received on 28.2.1995 but the fact is that they were incapable to do so in the absence of title in their favour. There is no doubt that plaintiff has proved that they approached defendant no. 1 several times for execution of such documents, the example Ex. PW17/M & Ex. PW17/N and thus the plea of defendant no. 1 that plaintiff never approached defendant no. 1 for signing of documents is also not sustainable besides the law being very clear that it is the transferor who must apply for approvals from the appropriate authorities like Income Tax and Urban Land (Ceiling & Regulation) and defendant no. 1 did not do so.

16) In view of the relied upon citations by plaintiff Hillas & Co. Ltd. v. Arcos. Ltd. (1932) All. E. R. 494 and AIR2009SC806, Vimlesh Kumari Kulshrestha Vs.:

Sambhajirao and Anr., the allotment has to be read as a whole so as to enable the court to ascertain the true intention of the parties and to determine the meaning of the words used in the allotment letter as well as proposed agreement to sublease. Reading the allotment letter as a whole it can be easily concluded that the deferred payments of 2nd installment and 3rd installment after one year and two years was kept by defendant no. I alongwith the condition that the construction of the hotel will be completed within three years (clause 5(iv) of allotment letter dated 31.10.1994) which indicate that the intention was to facilitate the allottee to raise hotel building so that the burden of the entire payment of the allotment is deferred. Further on reading the clause in regard the approval in the Urban Land (Ceiling & Regulation) Act and income Tax Act and the condition of executing agreement to sublease (agreement to sell), it is held that all the conditions were to be complied with by defendant no. 1 on receipt of Ist installment, firstly execution of agreement to sell and thereafter to obtain permissions under Income Tax Act & ULCR Act. On going through the terms of allotment letter 31.10.1994 at Ex. DWI/I it is observed from clause 5(viii) that Suit No.:1026/06/97 Page:100/228 upon receipt of the Ist installment defendant no. 1 was bound to execute agreement to sublease immediately on receipt of Ist installment as it is also observed from the Ex.

DWI/7 which admittedly had been sent alongwith the allotment letter and is also dated 31.10.1994 which has also been countersigned by plaintiff and defendant no. 1 in which it is clearly stated in clause (xvi) that "the parties hereto shall obtain requisite clearances and approvals as applicable under law, especially those under the Urban Land (Ceiling & Regulation) Act, and Income Tax Act, and complete necessary procedural formalities as may be required under the relevant statutes, Rules & Regulations, if not obtained prior to execution of these presents". In view of the above I conclude that defendant no. 1 was bound to execute the agreement to sub lease(agreement to sell) on receipt of the Ist installment as per terms of allotment letter even if the permissions under income Tax and Urban Land (Ceiling & Regulation) Act were not obtained and there is no force in submissions of defendant no. 1 that they did not execute agreements to sublease because plaintiff did not obtain permission under income Tax Act . I also conclude that defendant no. 1 has not proved any single action taken by them or any single step taken by them after the receipt of the Ist installment from plaintiff which was nothing less than Rs. 25 crores, defendant no. 1 was bound to follow the terms of allotment letter and execute the agreement to sublease immediately after the receipt of Ist installment which has to be reasonable time as the Ist installment was paid on 28.2.1995, defendant no. 1 should have executed the agreement to sublease (agreement to sell) atleast within a week since the terms of agreement to sell were accepted by all the parties but it is already admitted by defendant no. 1 that they have not executed this agreement to sublease. It is also observed from the agreement to sublease Ex. DWI/ 7 that the said agreement to sublease was to be executed by defendant no. 2 as well as alongwith defendant no. I with plaintiff as the language of the agreement to sublease very clearly states that the said agreement is between the "President of India", having Suit No.:1026/06/97 Page:101/228 its office at Nirman Bhawan, New Delhi of the one part and Housing & Urban Development Corporation Ltd. of the second part to be executed with the allottee of the third part, it is also observed from Ex. PW24/N that the said agreement to sub lease (agreement to sell) was duly approved by defendant no. 2 before it was sent to plaintiff alongwith allotment letter, in the minutes between defendant no. 1 and defendant no. 2, it has been admitted by defendant no. 2 that defendant no. 1 is executing this project as an agent of the Govt., Hudco has been authorized to lease/licence these properties in favour of allottees and execute the sublease/licence deed on the terms and conditions finalized by the Govt. in which process tripartite agreement are to be executed between L&DO, Hudco and the allottee, yet the ownership of all the properties would vest in Govt. and Hudco's role is that of executor of the project which will be taken over by the designated agency or even L&DO & lessor, in that eventuality the allottees is to become lessee and L&DO as lessor. In view of this, I conclude that defendant no. 1 & defendant no. 2 were both bound to execute the said agreement to sublease on receipt of the Ist installment and thereby after its execution all parties were to follow the terms of this agreement to sell (agreement to sublease). It is observed that when the same suit property was allotted on 31.3.1997 to Leela Hotels Ltd., defendant no. 1 executed on 4.7.1997 the agreement to sublease with Leela Hotels Ltd. on receipt of the Ist installment i.e that the agreement to sublease in this case had been executed by defendant no. 1 within reasonable time on receipt of Ist installment.

17) From the correspondences between defendant no. 1 and defendant no. 2 being letters dated 24.1.1995 E x. PW24/Y, letter dated 3.3.1995 Ex. PW24/lA, letter dated 29.3.1995 E x. PW24/1C, letter dated 6.4.1995 Ex. PW24/1D, letter dated 29.4.1995 E x. PW24/lF, letter dated 9.5.1995 E x. PW24/lG, letter dated 19.6.1995 E x. PW24/lI, letter dated 8.12.1995 E x. PW24/lL it is observed that most of these letters are of dates after defendant no. 1 received the Ist installment and even after the 2nd Suit No.:1026/06/97 Page:102/228 installment was demanded vide Ex. D W l/E (dated 18.10.1995) and DWI/F, defendant no. 1 has admitted in all these correspondences that since they have already allotted the properties at Andrews Ganj and they have to execute agreement and sub lease with the allottees, the lease deed has to be executed prior to execution of any of these documents and in the absence of which they may not be able to demand the 2nd installment. It is also seen from the Ex. PWI/7 that defendant no. 1 demanded the deposit of corpus fund for maintenance agency from plaintiff as per terms of allotment dated 31.10.1994 and plaintiff complied with this term also by paying the demanded amount of Rs. 2,50,000/ on date 29.1.1996 as per Ex.PW1/8 which further strengthens the case of plaintiff that it was always willing to perform its part of obligations. It is also observed from Ex. PW24/3S & Ex. PW24/3T which are legal opinions given by Ministry of Law & Justice wherein it has been stated that the cancellation of allotment of plaintiff were illegal as defendant no. I did not perform its obligation under the allotment letter after receipt of the Ist installment, in my view this further strengthens the case of plaintiff. It is also seen from Ex. PW24/4F that on the representation of the plaintiff in respect of the suit property and also the other properties allotted to plaintiff being guest house blocks, defendant no. 2 passed a detailed order in restoring the guest house blocks but declined to interfere in regard to the suit property because the third party rights of Leela Hotels Ltd. had been created. It cannot be said that whether the order of the Minister of defendant no. 2 was implemented or not because I am not concerned with the same but on going through the Ex. PW24/4F it is observed that the Minister has categorically concluded that defendant no. 1 had not performed its obligations in respect of execution of documents required under law and Acts (Income Tax & Urban Land (Ceiling & Regulation) Act) and the Minister of Law & Justice also approved the same which observed from Ex. PW 1 /25. It is further seen from the Ex. PW24/4A, Ex.PW24/4T & PW1 6/V that defendant no. 2 admitted that the reply by the Ministry to a Suit No.:1026/06/97 Page:103/228 Parliament question No. 371 dated 20.3.1997 had furnished an inaccurate reply wherein defendant no. 2 has admitted that Hudco was at fault and had not performed its obligations towards the plaintiff after receipt of the Ist installment and the stand taken in the reply that agreement to sublease was not and legally could not have been executed in accordance with the provisions of income Tax Act was corrected by defendant no. 2 in the reply to the notice of privilege motion moved by one of the member of Rajya Sabha. In my view such observations of defendant no. 2 supports the case of Plaintiff. It is further observed from Ex. PW24/40 and PW22/A being the legal opinion obtained by defendant no. 2 from their own Counsel, it is admitted in the said opinion that defendant no. 1 did not execute agreement to sublease as per terms of the allotment letter after receipt of the Ist installment and did not forward the required documents for necessary permission under the Income Tax Act and Urban Land (Ceiling & Regulation) Act in case of plaintiff. In view of which the Govt. Counsel itself recommended to the Government to workout an out of court settlement which may only be the rightful solution. In my view if the Govt. Counsel who has been on records of the present suit if form an opinion as given on the request of defendant no. 2 with observations that defendant no. 1 was at fault, further supports the case of plaintiff. It is also observed from Ex. PWI/28 given by Hon'ble Retd. Chief Justice Sh. Y.V. Chandrachud which was obtained by defendant no. 1 in case of Leela Hotels Ltd. where it has been specially concluded that defendant no. 1 should cancel the allotment of Leela Hotels Ltd. and considered the reallotment of the property to M/s. MS Shoes East Ltd., that will see the end of what threatens(and promises) to be a long drawn out litigation by MS Shoes East Ltd., this further strengthens the case of plaintiff.

I am in consent with plaintiff that section 37 of Indian Contract Act also supports him which is to the following effect: The parties to a contract must either perform, or Suit No.:1026/06/97 Page:104/228 offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. If the authority is found to be responsible for the delay in its performance in terms of the allotment as well as proposed agreement to sublease arrived at or according to the assurance given in the brochure, the allottee cannot be burdened with the interest on the balance amount not paid by him as also observed in Prashant Kumar Shashi v. Ghaziabad Development Authority (2000)4SCC120 and as also held in Jai Durga Finvest Pvt. Ltd. V. State of Haryana AIR2004SC1484, that the state could not have forfeited the security deposit in view of the failure of state to fulfill its contractual promise .

In view of the above, I am of the opinion that defendant no. 1 was bound to execute documents under income Tax Act and ULCR Act on receipt of Ist installment and irrespective of execution of such documents agreement to sublease was to be executed by defendants with plaintiff and the letters 18.10.1995 or 31.1.1996 do not prove any thing except the demand of 2nd installment which on the face of it was unwarranted since admittedly defendant no. 1 had not executed documents under Income Tax Act and ULCR Act and nor did they enter into agreement to sublease which was mandatory prior to demand of 2nd installment.

The submissions of defendant no. 1 that the initiation of action means that the plaintiff was to find out the formalities which were required to be completed for obtaining approvals, that the plaintiff was required to obtain requisite forms, performas and documents from concerned authorities and to supply/present the same to the defendant no. 1 for their execution, that the defendant no. 1 was only required to execute such forms, performa and documents and was to pursue the approvals, in my view as already been concluded in above observations.

Suit No.:1026/06/97 Page:105/228 No allottee of any property can be asked to pay further amount in the absence of execution of agreement to sell of a property in its favour when 40% of the consideration amount has already been paid. The commercial transactions do not envisage that only one party has to go on performing even after payment of Ist installment of 40% and that that he must further pay 2nd installment and 3rd installment that too without any performance of the seller on receipt of Ist installment when even execution of agreement to sell has not been executed which is most unreasonable for any prudent person to think of, thus defendant no. I was bound to execute agreement to sell and in the absence of the same 2nd installment could have not been demanded by defendant no. 1 which in anyway could only be demanded after 12 months of the date of execution of agreement to sell. The defendant no. I could not provide the terms of perpetual leave which they were obliged to provide in due course which has to be reasonable time. Thus it is held that defendant no. 1 could not demand the further installments till this obligation was fulfilled. Accordingly I decide this issue in favour of the plaintiff and against the defendants.

Issue no. 2:

Whether defendant no. I has committed breach ? OPP :

1. In view of the issue no. I decided in favour of plaintiff and against defendant no. 1, I decide this issue also in favour of plaintiff and against defendant no. I since it is defendant no. I who has committed the breach by not executing agreement to sub lease (agreement to sell) with plaintiff on receipt of the Ist installment and thereafter by not executing the required documents under law and as per Acts as well as terms of allotment letter in respect of income Tax and Urban Land (Ceiling & Regulation) Act, further by not providing the terms of leasing arrangement which defendant no. I was in any way incapable of doing so till 4.7.1997 i.e. till the perpetual lease was executed in their favour. Thus, this issue is decided in favour of the plaintiff and Suit No.:1026/06/97 Page:106/228 against the defendant.

Issue no. 3:

Whether defendant no. I misrepresented that entire complex of community centre is approved when the building plans of 5 star hotel could not be sanctioned without approval of revised lay out plans and unless the unauthorized constructions carried out car park and other buildings constructed by defendant no. 1 at Hudco Place were regularized. and whether defendant could demand the second installment in the absence of such approvals ? OPP :

1. The plaintiff has drawn attention to Ex. PW17/NN which stated that "Hudco Place A Unique urban experience INTEGRATED URBAN DESIGN The HUDCO Place, an integrated urban design complex with design controls, graphic signage, landscape, parking and other common services is being developed by Housing and Urban Development Corporation Ltd. (A Government of India Undertaking) under direction from Government of India, Ministry of Urban Development. It is a perfect blend of traditional ambiance and upto date modern facilities. A spacious Central Plaza has been designed to create an environment of social interaction. A Five Star Hotel, Two Clusters of centrally air conditioned Guest House, each with six blocks, airconditioned Shopping Arcade, a Cultural Centre and a swimming pool are the highlights of this integrated urban complex. The two Guest House clusters on either side of the Central Plaza are designed as self contained units Suit No.:1026/06/97 Page:107/228 with facilities comparable to Star Hotels."

"LANDSCAPE An 18 acre stretch of land demarcated as a Green Zone with parks, Jogging Path and water bodies including musical fountain lies in the vicinity of HUDCO Place offering an added attraction. HUDCO offers following properties for sale on leasehold basis:

a) Five Star Hotel Site: About 3 acres of land with permissible buildable space of 25000 sqm Plus basement of 4000 sqm and Height Restriction of 34 mtrs. The hotel will be provided underground car parking space with the capacity to park about 415 cars in a separate area adjacent to the Hotel Site."

2. There is not doubt that inference from the clauses can be taken that, it was represented that the layout plan was approved and the building plans for construction of hotel will be required to be obtained by plaintiff from local authorities and Delhi Urban Art Commission, it has been represented by defendant no. I that car park basement allotted had all the approvals of building plans from local bodies and Delhi Urban Art Commission besides no ordinary person can believe that defendant no. I being a Government Company had constructed the huge car park basement and guest houses without the building plans sanction from MCD, Fire Department and Delhi Urban Art Commission. There is not even a word mentioned in the brochure that defendant no. I has yet to obtain the car park building plan approvals from all the local bodies which has been otherwise disclosed in the later brochure of June, 1996. Their representation that the Urban Design is approved and is being tendered on the directions of the Government implied that all the approvals must have been obtained prior to the construction of any structures at the complex. Defendant no. I has relied upon the approval dated 12.4.1994 of the layout plan, Ex. DW 1 /C alongwith the Suit No.:1026/06/97 Page:108/228 copy of the approved layout plan, Ex. DW1/B that this layout plan is the approval of the building plans and that no further approval of revised layout plan was required, the said point has already been decided by me in the above discussion and the submissions of defendant no. 1 are not sustainable.

3. It is further observed that thereafter the conceptual approval of revised layout plans by Delhi Urban Art Commission, the same revised plans were approved by MCD on 4.6.1998 which are at Ex. PW9/B which were placed before the standing committee MCD, it is observed that the proposal approved in 1994 was as per norms of master plan, 1962 since the layout plan was submitted prior to 1.8.90, which was clarified by Ministry of Urban Development vide its letter dated 18.3.1992, the present revision of the layout plan was required to be processed as per MPD, 2001 and accordingly the revised layout plan was approved vide resolution no. 84 item 7 at Ex. PW9/C being the present revisions processed as per norms of MPD,2001 under which the land use of hotel is permitted in the Community Centre. It is further observed from the approval of revised layout plan that :

"Xlll. Current Reference to Ministry:

4. During the processing of current revision in the layout plan, a number of letters including those from Hon'ble Members of Parliament. MLA's & Councilors, were received, raising the issues that layout plan as proposed by HUDCO is not as per Master Plan land use, that norms as applied to the complex are not appropriate, and that hotel is not permitted in community centre. Since that site is owned by Govt. of India and Hudco is planning and developing the land as given to it, and the Ministry earlier gave clarification regarding land use and applicability of norms, the matter was again referred to Ministry of Urban Affairs & Employment in view of the observations made by M.P.'s M.L.A's and other distinguished persons/public Suit No.:1026/06/97 Page:109/228 representatives. In the Hindustan Times dt. 28.2.98, judgment of Delhi Distt. Court has been quoted regarding the hotel project/and the community centre in Andrews Ganj. As per the report published in the newspapers, the judgment records that community centre developed by HUDCO, inclusive of restaurant and guest house are violative of both the Master and Zonal Development Plans of DDA. Plaintiff made me go through Ex. PWI/20 which is also a brochure in regard to guest house blocks at Hudco Place which was also allotted to plaintiff but was cancelled and brochure of June, 1996 was for retender of the same property in which it is mentioned:

"Status of statutory approvals: the building plans have already been sanctioned by MCD and Delhi Urban Art Commission, however regular electric connection from DESU and occupancy certificate from MCD is awaited."

It was pointed out by plaintiff that such status of statutory approvals has not been disclosed in the brochure of July, 1994 under which the bids were called and plaintiff was allotted the suit property. Plaintiff also made me go through the para nos. 18 & 19 of his affidavit wherein it has been claimed that in the prebid meetings held with defendant no. 1 prior to the bids it was not disclosed that the buildings at Hudco Place are built without any approval of MCD, DUAC & Fire Department and defendant no. I did not even disclose that the revised layout plan is needed to be approved by all the authorities, the impressions were given that entire complex has all the approvals of all the authorities, the only clarification issued in prebid meeting is at Ex. PW17/NN which again does not disclose the facts that the building plans of car park basement were yet to be sanctioned and that they did not disclose that without approval of revised layout plans the building plans of hotel cannot be sanctioned.

5. Plaintiff also cross examined DW1 in respect of the above but the reply of DWI was evasive and was given as follows:

Suit No.:1026/06/97 Page:110/228 Q. Is it correct that the plaintiff was made to believe through the brochure and the prebid meetings that the property is built by defendant no. I which were being offered had all the sanctions like from MCD, DUAC and fire department since the properties belonged to government ?

A. The layout plan was approved as per requirement and there was no question of believing the same as in fact it was so.

It is proved by plaintiff as well as admitted by defendants that defendant No. 2 issued the first installment letter in favour of defendant No. 1 on 27.3.1992, Ex. PW24/D which was partly modified on 2.4.1993, Ex. PW17/E, the said allotment letter of 27.3.1992 including the modification of 02.4.1993 it is established that defendant No. 1 had rights under the said allotment letter for 32 years lease. It is further established by plaintiff through Ex. Pw17/D that defendant No. 2 while modifying the terms of allotment letter dated 27.3.1992 defendant No. 2 objected that the land is to be utilized for development of hostel and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban design and the reasons for enhancement of lease period mentioned by Hudco as " hotel side disposal will attract better terms if the period of lease be 99 years....." The use of the land for a hotel, therefore does not appear to be in conformity with the allotment letter, moreover for disposal of hotel plots each case is required to be specifically considered in consultation with the Ministry of Finance.

It is also observed from allotment letter dated 27.3.1992, Ex. PW24/D issued in favour of defendant no. I by defendant no. 2 with a specific condition 2(iv) that the land for the Community Centre should be utilized for development of "Hostel" and guest house facilities, conference hall, shopping and other community centre facilities Suit No.:1026/06/97 Page:111/228 as per the Urban Design for the Complex approved by the Ministry of Urban Development.

2(x) that the construction plan shall be got approved from the local body and DDA, Delhi Urban Art Commission and the Land and Development Officer before undertaking any construction on the land.

6. Similarly it is observed from the allotment letter dated 19.3.1996, Ex. PW24/lP which superseded the allotment letter dated 27.3.1992 that the condition no.

(iii) it is stated that land for the Community Centre should be utilized for development of "Hostel" and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban Design for the Complex approved by the Ministry of Urban Development and condition no. (ix) it is stated that the construction plan shall be got approved from the local body and DDA, Delhi Urban Art Commission and the Land and Development Officer before undertaking any construction on the land. Even in the perpetual lease dated 4.7.1997, Ex. DWI/A, the condition 111(1) it is stipulated that the lessee i.e. Hudco on the said plot of land hereby demised shall undertake construction of the Community Centre as detailed herein above after obtaining requisite sanction of the building plans from the proper Municipal or other authority. The revised layout plans were approved on 6.7.1998, Ex. PW9/D which were approved subject to that Hudco shall get the services plans approved afresh from the respective services department of MCD before sanction of building plans after the execution of the perpetual lease on date 4.7.1997. It is observed that none of the evidence led by plaintiff in respect of the above and in respect of the issue no. 3 in para nos. 12, 23, 24, 54, 73, 74, 78, 80, 81, 82, 84, 85, 86, 94, 95, 98, 99, 119, 140, 160, 161, 174, 237, 238, 244, 258 & 259 of affidavit of PWI have been controverted by defendants and consequently the evidence led by PWI is Suit No.:1026/06/97 Page:112/228 proved in respect of issue no. 3. Further DWI relied upon only a revised layout plan approved on 12.4.1994 and no other evidence has been led by defendants in respect of issue no. 3. It is proved by plaintiff that defendant no. I was very well aware that the layout plan approved by MCD on 12.4.1994 had under gone lot of change and they required the revised layout sanction from MCD since defendant no. I had already submitted the revised layout scheme to Delhi Urban Art Commission for their approval. It is observed that even Ansal Properties & industries Ltd. informed on 17.5.1995 to defendant no. I prior to taking the possession of land that MCD had informed that revised layout scheme needs to approved and as such the buildings carried out at the whole complex are unauthorized and till they are compounded, no further building plans would be sanctioned by MCD, Ex. PW23/N. In view of the evasive replies of DWI in cross examination on 3.2.2010 are deemed to be admitted that the revised layout plans were submitted in 1995 which were approved in 1998 as the revised layout plans were required to be sanctioned prior to approval of any building plans for hotel. DW1 on the question being asked "that revised layout plans were submitted by defendant No. 1 to MCD, in 1995 which were approved in somewhere in 1998 " she replied that "I only know regarding layout plans and cannot depose regarding the other facts of the file and can only answer regarding layout plan passed in 1994 by MCD". Further while cross examining DWI on 3.2.2010 it was stated by plaintiff that he had asked the questions (from this witness) regarding all the issues as she is the witness of defendant to which witness has submitted that these questions does not pertain to her and she is unable to answer. The court had made the observations that hence now question regarding approved layout plan dated 12.4.1994 be asked as this witness has clearly stated that she has no concern regarding other facts which are beyond her affidavit including sanctions and approval of the plans etc. In view of this I am of the view that it is proved that defendant no. 1 did not have any approvals of building plans of car park basement from MCD, Fire Suit No.:1026/06/97 Page:113/228 Department DUAC which was not disclosed in the brochure and that the revised layout plan was required to be sanctioned before any building plans for hotel could be considered by MCD and the revised layout plans were approved in 1998. From the above I conclude that as per allotment letter issued by defendant no. 2 in favour of defendant no. 1, the terms of allotment letter stipulated that the building plans must be approved before construction of any buildings are taken up but it seems defendant no. 1 violated the terms of allotment letter and continued to construct the buildings without any sanctions of proper layout plans or the sanction of building plans from any of the authorities. Defendant no. I has not placed any document proving that the construction plans of car park basement were approved from the local body and DDA, Delhi Urban Art Commission and the Land and Development Officer before undertaking any construction on the land as the building plans sanction of car park basement have been compounded after the cancellation of the allotment of plaintiff and thereafter the sanction letter dated 28.5.1996 by MCD has been issued. From the above I further conclude that initially the approval of layout plan dated 12.4.1994, DWl/C was as per master Plan, 1962 and as per notification dated 8.9.1992, Ex. PW16/A which were subject to approval of service plans etc. and the same have not been proved by defendant no. 1. Plaintiff has proved that service plans were approved on 6.9.1999 & 7.9.1999. The external storm water drainage scheme, Ex. PW I 7/KKK was obtained by defendant no. 1 on 30.8.1999, the water supply scheme approved on 6.9.1999, Ex. PW17/LLL and sewerage scheme was approved on 7.9.1999, thus all the plans finally were approved on 7.9.1999 Ex. PW17/MMM and till then no building plans of hotel could have been approved by MCD. It is further concluded from the above that defendant no. 1 required to get the revised layout plans approved because in the earlier approval of layout plan the norms applicable were of MPD 1962 and after execution of the lease the norms applicable were of MPD 2001 as given in the perpetual lease which is also observed by MCD while approving the Suit No.:1026/06/97 Page:114/228 revised layout plan. Thus when allotment letter dated 31.10.1994 was issued MPD 1962 was applicable to the suit land and MPD, 2001 became applicable only after the perpetual lease was executed in favour of defendant no. 1. From above I further conclude that the building plan of five star hotel could have not been sanctioned by MCD till all the structures built at Andrews Ganj were regularized including the car park basement, guest house as well as till the revised layout plan were approved. It is observed from Ex. 24/lS & Ex. DWI/P69 that the condition of the layout plan regarding 33 KVA grid substation had not been complied with till 24.7.1996. From the letter of the Architect of defendant no. 1, Ex. DWI/P70 it is further concluded that MCD has refused to accept the drawings of the structures built by defendant no. 1 due to lack of ownership document lease document and no due certificate from L&DO, further that the building plans of car park basement were approved on 28.5.1996 Ex. PW17/MM on compounding charges paid by defendant no. I to MCD, Ex.17/LL. The approval of the car park basement by the Fire Department was obtained by defendant no. I on 23.10.1997, Ex.PW17/RR as earlier the same was declined to be approved since the electric substation was built in the second basement which was in gross violation of building byelaws. Finally the occupancy certificate for the car park basement from Delhi Urban Art Commission was obtained by defendant no. I on 19.6.1998, Ex. PW17/DDD from where it is observed that the commission reluctantly approved the car park basement postfacto and the occupancy certificate from MCD for car park basement was issued on 6.7.1998, Ex. PW17/GGG.

7. Concealment in the brochure at the time of calling of bid in regard to approval of the building plans and the revised layout plans is further strengthened by Ex. PW24/2N dated 3.6.1997 wherein defendant no. 2 has sought for fixing the exact responsibility by defendant no. I and to look into causes of the delay in regard to the Suit No.:1026/06/97 Page:115/228 regularization of building plans for the basement car parking to which defendant no. I has admitted in Ex. PW24/20 dated 4.7.1997 that there has been no willful negligence on the part of the dealing of ricer of Hudco and the delays have been due to change in land use and ownership documents.

Concealment by defendant no. I in regard to the fact that entire complex of community centre is approved and that revised layout plans are approved including the car park basement has all the sanctions is further proved and concluded from Ex. PW24/3L being the notings of the Govt. defendant no. 2 herein in which it is clearly admitted that:

"On that date, the authority in Hudco knew very well, the stage of the various permissions given and to be given in respect of this land. Going a step further back when the auction was announced, perhaps these likely delays should have been highlighted, in the brochures and other auction documents. Even as on today i.e. 18.2.1998 we may still face a problem from Ansals and other allottees on the following two grounds :

1. Hudco is yet to get a completion certificate form the MCD. It in the meantime, M/s. Ansals or others seek completion certificate from the MCD, they will be denied the same, as it will be linked to Hudco obtaining the completion certificate for the car parking basement later when possession was given. Here two factors may have played a role.

(a) confidence that the site plans, services plan and the building plans would be fully approved before the actual agreement.

(b) fear that the auction may not realize full value of the property if the risk factors are highlighted."

Suit No.:1026/06/97 Page:116/228

8. From the above I conclude that defendant no. 2 has admitted that defendant no. I did not disclose the facts about the layout plans and unauthorized constructions carried out by them at Hudco Place in the brochure and at the time of auction only for the reason with fear that they may not realize full value of the property which is admitted by defendant no. 2 that if the risk factors were highlighted, defendant no. I would have not realized the value of the properties. In view of the above, I conclude that defendant no. I could have not demanded the 2nd installment in absence of such approvals which were required to be taken from the local bodies etc. as also stipulated in their own allotment letters in their favour issued by defendant no. 2. The DW1 has evasively replies that "these matters are being dealt by another department and by asking such question, time of the court is being wasted". Similarly DWI has replied that she does not know when the building plans of Andrews Ganj projects were submitted to MCD since these matters are being dealt by another department, similarly she replied the same in regard to submissions of building plans of Car park submitted to DUAC, Chief Fire Officer. Similarly DWI has replied that on being asked "that even the occupancy certificate was issued by MCD somewhere in 1998"

she replied that "I again reiterate that despite of my answers as above, such type of questions are being repeatedly asked to me and they are also not relevant for present suit". In view of the evidence led, I am of the view that plaintiff has proved that all the approvals of statutory authorities were obtained by defendant no. I much after the cancellation of the allotment of plaintiff which was never disclosed by defendant no. 1 to plaintiff. In view of the evasive replies of DW1 in her cross examination on

9.2.2010 supporting the case of plaintiff since to a question "that defendant no. I constructed the entire buildings including car park at Andrewsganj without obtaining the requisite sanction of the building plans from the proper Municipal or other authority" to which she replied that "The issues related to approvals and sanctions Suit No.:1026/06/97 Page:117/228 from the concerned departments are being dealt by other department of defendant No.

1. The layout plan was approved on 12.4.94, 1 am of the view that plaintiff has proved its case that the entire buildings including car park basement at Andrews Ganj were constructed without obtaining sanctions of any authorities and the revised layout plan was required to be approved prior to the approval of building plans of hotel. Counsel for plaintiff also relied upon AIR 1960 SC 100 Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Ors. that admission is best evidence. It is proved by plaintiff that the above award given in favour of Leela Hotels Ltd. has been upheld by the Ld. Single Judge and by the Division Bench of Hon'ble High Court of Delhi, Ex. PWI9/B and that it has been even upheld by Hon'ble Supreme Court and resultantly the findings are final that revised layout plans were required to be approved before MCD could entertain the building plans of hotel.

9. Plaintiff has proved its case in regard to the present issue since DWI in her cross examination on 3.2.2010 has admitted that defendant no. I started the construction of guest houses as well car park basement at Andrews Ganj in October, 1990 as they were required for Afro Asian Games but defendant no. I did not have all the experiences of constructions and approvals of the same. I am of the view that the plaintiff has proved its case that defendant no. I did not have the sanctions of the car park basement and the revised layout plans were not approved which was not disclosed in the brochure deliberately to realize the proper values on the properties which is misrepresentation in the brochure. The allegations of plaintiff that defendant no. I mispresented in the brochure further stands proved on the question asked by defendant no. I in cross examining PWI on 20.10.2009 that "MCD and Delhi Fire Service had approved the schematic drawings and that a no objection certificate had been issued by them for carrying out construction activity at the hotel site despite Suit No.:1026/06/97 Page:118/228 which you failed to take any steps whatsoever for carrying out construction activity at the hotel site in terms of allotment letter dated 31.10.94" to which plaintiff has replied "It is a matter of record that the dates when MCD and Delhi Fire Service had approved the referred drawings. There was no such No Objection Certificate issued by MCD or Delhi Fire Service for carrying out any construction activity to build hotel. Further in cross examination of PWI on 29.10.2009 it stands proved that defendant no. I did not have approvals /sanctions from MCD since all the these approvals were obtained later and the approval of layout plan dated 12.4.1994 being relied upon by defendant no. I has no relevance as to the approval of building plans of car park basement and the approval of building plans for hotel. I am in consent with plaintiff that the approval of layout plan is not the approval of building plans of hotel or the car park basement and the reliance of defendant no. I is misplaced that the layout plan dated 12.4.1994 was approval of building plans which on the face of it is blatant lie as plaintiff has proved from various exhibits proved by MCD, DUAC & Fire Department that all these approvals have been obtained subsequently to the cancellation of allotment of plaintiff and also after the present suit was filed. The sanction of building plans of car park are at Ex. PW16/W which is dated 28.5.1996, Ex. PW17/RR is sanction of building plans of car park by Fire Department which is dated 23.10.1997, Ex. PW17/GGG is the occupancy certificate of car park issued by MCD which is dated 6.7.1998, Ex. PW9/C the sanction of revised layout plan of Andrewsganj Project by MCD which is dated 10.6.1998. It is observed by me that all these exhibits were confronted from DWI but the reply to all was that it does not pertain to her affidavit and all these approvals were being dealt by other department. I am of the view that plaintiff has proved that defendant no. I misrepresented the entire complex of community centre is approved when the building plans of 5 star hotel could not be sanctioned without approval of revised layout plans and unless the unauthorized constructions carried out of car park and other buildings constructed by Suit No.:1026/06/97 Page:119/228 defendant no. I at Hudco place were regularized in the absence of which defendant no. I could not demand the 2nd installment which also stands admitted by defendant no. I in cross examination on 8.2.2010.

10. From the above it is observed that all the dates of statutory approval of building car park basement are later dates than the date of cancellation of the allotment of plaintiff which was cancelled on 2.5.1996 and the said dates of approvals are also of later date than the date of demand of 2nd installment which was demanded on 18.10.1995 and 31.1.1996 and plaintiff was being threatened for cancellation if the 2nd installment is not paid when the defendant no. I had no approvals whatsoever of revised layout plans or building plans of car park basement which was not disclosed in the brochure nor in the allotment letter neither it was ever informed to plaintiff. It is also further observed that the last date was 7.9.1999, of regularization from all statutory authorities that were required to be taken by defendant no. 1 before demanding the 2nd installment (Ex. PW17/MMM), I conclude that defendant no. I could have not demanded the 2nd installment till 7.9.1999 as they were not capable of getting the building plans of five star hotel approved from any of the authorities till then. The submissions of defendant no. 1 that plaintiff can not take plea of building plans of 5 star hotel as he did not even take first step for construction of hotel, as the plaintiff did not initiate action for obtaining Income Tax clearance which was a prerequisite is not sustainable as I have already concluded the issue no. I in favour of plaintiff in regard to the Income Tax clearance and ULCR clearance and in regard to execution of agreement to sell. The submissions of defendant no. I that in the cross examination of PWI conducted on 25.07.2009 by the defendant no.2, he stated that MCD had not given any notice to the defendant no. I in respect to car parking which also shows that there was no unauthorized construction which could affect the sanction of building plan of hotel site, in my view the submissions are misplaced as Suit No.:1026/06/97 Page:120/228 plaintiff in his affidavit in para 170 has specifically led evidence that MCD had issued notice to defendant no. 1 on 19.4.1999 for revocation of building plans as per Ex. PW16/U because of misrepresentation by defendant no. 1 to MCD in regard to the ownership of the Andrews Ganj Project besides such notice is again of much later date than of cancellation. The submissions of defendant no. I that the plea taken by plaintiff of misrepresentation is contradictory to the conduct of the plaintiff is also not maintainable in the light of discussions above and the present issue proved by plaintiff against defendant no. 1. The submissions of defendant no. I that plaintiff in one breath has alleged that misrepresentations were made to it and in same breath it alleges that he wants to pursue the hotel project and the plea of misrepresentation is also flimsy and false, in my view such submissions of defendant no. I have no force because as discussed above and as per Contract Act if there is misrepresentation proved the allotment could be voidable at the option of plaintiff but in the present case plaintiff has proved the misrepresentation by defendant no. 1 and has opted to continue with the allotment by getting the declaration that cancellation is null &void. The submissions of defendant no. 1 are completely misplaced in view of the conclusion that defendant no. I had concealed various facts as well as had misrepresented various facts to plaintiff, in view of which as claimed by defendant no. I they were not entitled to demand 2nd installment from plaintiff till the service plans were approved which has also been observed by Hon'ble Retd. Chief Justice Sh. R.S. Pathak in respect of the same suit property holding in favour of Leela Hotels Ltd. and as well as the award given by Hon'ble Retd. Chief Justice Sh. B.P. Reddy to Ansal Properties & industries Ltd. by granting interest on the Ist installment due to unauthorized car park basement and also granting damages on the increased cost of construction due to delay in sanction of building plans of Shopping Arcade while in the present case the building plans could have not been sanctioned or considered by MCD before 7.9.1999. I accordingly hold the issue no. 3 in favour of plaintiff and Suit No.:1026/06/97 Page:121/228 against defendant no. 1.

Issue no. 4:

Whether the act and conduct of the defendant no. 1 and 2 was arbitrary, illegal and discriminatory while dealing with the plaintiff in respect of the suit property and whether defendants have permitted various times interest free extensions under similar conditions of allotment to Ansals Properties & Industries Ltd. As of plaintiff because car Park was built unauthorized by defendant no. I ? OPP:

1) From the allotment letter issued to Ansals Properties & Industries Ltd. for shopping arcade land at Ex. PW24/lB, it is observed that the conditions of the allotment letter of Ansal Properties & industries Ltd. and the conditions of allotment letter of plaintiff are identical and even the part of car park basement is allotted to Ansals Properties & Industries Ltd. as well as to plaintiff as also observed above, the comparison chart of conditions of both the allotments of plaintiff of the suit property as well as of the Ansals Properties & Industries Ltd. has been certified by defendant no. 2 which is at Ex. 24/3W and has been discussed above. On going through the terms of allotment letter of plaintiff as well as Ansals and the comparison chart of both the allotment letters I, conclude that there is no doubt that the allotment conditions are similar and identical.

I am of the view that plaintiff has proved in his cross examination by defendant no. I on 7.10.2009 that Ansal Properties & Industries Ltd. were allotted shopping arcade on the similar terms and conditions as that of plaintiff's allotment of the suit property which otherwise is also a fact.

Counsel for plaintiff has submitted that various interest free extensions were granted to Ansals because the car park basement was illegal and unauthorized and Suit No.:1026/06/97 Page:122/228 till the buildings plans of car park basement were sanctioned, interest free extensions of 2nd & 3rd installment were granted to Ansals by defendant no. I & defendant no. 2 considering the deemed date of possession on licence for construction, counsel for plaintiff made me go through various exhibits proving the contentions that Ansals were granted interest free extensions for two times for 2nd installment as well as 3rd installment which were originally due after twelve months of the allotment and after 18 months of the allotment, similarly the 2nd installment and 3rd installment in case of plaintiff were due after twelve months and after twenty four months from the date of allotment. Plaintiff has also proved that when plaintiff was being threatened for cancellation of the allotment that if 2nd installment is not paid as per the date stipulated in the allotment letter and at the same time interest free extensions to Ansals was being considered by defendant no. I and was granted on 7.3.1996, Ex. PW23/Y

2). On the other side Counsel for defendant no. I denied in its written statement at para 9 that the defendant no. 1 did not give in a similar matter twice time extension to "Ansals" or that they have cancelled the allotment of the plaintiff without any reasons and that the facts and circumstances relating to the allotment of the Shopping Arcade were completely different from that of the Plaintiff. Defendant no. I has further submitted that the plaintiff has failed to plead as to how, it is similarly situated to Ansals, how the facts are similar and how it has been discriminated against plaintiff On the contrary in para 15 of the written statement defendant no. I has admitted that they took a decision to grant the extension to Ansals but had referred the matter to the defendant no. 2 only for their final approval as a discretion exercised by the defendant no. I on the facts and circumstances of that case since the period of extension granted related to delay in regularization of the car parking space allotted to Ansal properties and Industries Suit No.:1026/06/97 Page:123/228 Limited. It is further argued by defendant no. I that the two contracts are separate and distinct, for separate sites on separate terms and conditions which has already been dealt by me above. Defendant no. I further denied that Ansal properties and industries Limited are similarly situated as the plaintiff. Defendant no. 2 also denied that the plaintiff has been discriminated against Ansals and they further denied that the plaintiff is similarly circumstanced as the Ansals. Defendant no. 2 denied that any benefit has been bestowed on M/s. Ansals. Defendants have not controverted the evidence led by plaintiff in his affidavit of PWI in various para nos. 51,65,66, 113, 114, 115, 116, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 138, 145, 146, 147, 150, 152, 153, 154, 158, 159, 163, 193, 206, 207, 208, 236, 250, 254 & 260 in regard to the arbitrary, illegal and discriminatory treatment vis a vis Ansals in view of which the allegations in these paras stand proved by plaintiff. Similarly in the cross examination of PWI, defendant no. I and defendant no. 2 did not controvert the evidence led by PW1 in his affidavit in regard to the act and conduct of defendant no. I and defendant no. 2 being arbitrary, illegal discriminatory while dealing with plaintiff in respect of the suit property and granting various times interest free extensions to Ansals because of car park basement being unauthorized except that defendant no. I took the stand that the contract between M/s Ansal Properties and defendant no.l has not been referred in the plaint which was replied by PWI affirming that the stand has been taken in the plaint in regard to the extensions granted to Ansals in the similar matter.

3). Plaintiff has proved its case in regard to the present issue by cross examining DWI on 1.2.2010 in which DWI has given evasive replies which are deemed to be admitted by her. DWI has replied that she was not dealing with the litigations of Andrews Ganj project, that she is not aware whether litigations are on the record of defendant No. I, that she is not aware of litigations of Ansals Suit No.:1026/06/97 Page:124/228 Properties & Industries Ltd. with defendant No. I and she cannot bring the same. DWI has further admitted that she does not know that the present suit property is the same which was allotted to M/s. Leela Hotels Ltd. and she has deposed that she is not aware whether Leela Hotels Ltd. was allotted the suit property subject to the present suit, again said subject to the pendency of the present suit, DWI admitted that she has no idea regarding the litigation with respect to Leela Hotels Ltd. pending or decided, that the details of litigation might be available in the of lice of defendant no. I and that she is not authorized to bring them, DW1 further admitted that her answer with respect to Ansal Properties and Industries Ltd. is also same. In view of these evasive replies by DWI I am of the view that either she is not aware of the facts about Andrews Ganj Project or that she was concealing the true facts from this Court since the decisions of the litigations with Ansals Properties & Industries Ltd. as well as of Leela Hotels Ltd. had been proved by plaintiff which are at Ex. PW2/C & PW23/B at page no. 589 which were shown to DWI in her cross examination dated 3.2.2010 in which Hon'ble Chief Justice (Retd.) Mr. B.P. Reddy has confirmed in his award given in favour of Ansals Properties & Industries Ltd. that defendant no l is liable for interest on is' installment paid by Ansals till the date car park was regularized. As observed above by me while concluding issue no. 3 the same view has to be taken in respect of the documents not produced by defendants and also the implied admissions of DW 1. I have already concluded in issue no. 3 that the car park basement was built without any sanctions of statutory authorities like MCD, DUAC & FIRE department and the approval of revised layout plan was required as the revised layout plan had already been submitted by defendant no. I to DUAC in April, 1995 which admittedly was never disclosed to plaintiff at any time. I have also concluded that the same car park basement was allotted to Ansals for 210 car park and to plaintiff for 415 car park and the conditions of both the allotment letters are similar since both the Suit No.:1026/06/97 Page:125/228 allottees had to construct the buildings for Shopping Arcade by Ansals and for 5 Star Hotel by plaintiff Both the allottees had their own responsibility to get the building plans sanctioned for Shopping Arcade by Ansals and 5 Star Hotel by plaintiff but I have also concluded that in the absence of the approval of revised layout plans the building plans of hotel could not be approved by MCD as also held by Retd. Justice R.S. Pathak in deciding the award in favour of Leela Hotels Ltd. who were allotted the suit property subject to out come of the present suit. Now on going through the Ex. PW23/E which is an agreement to sublease (agreement to sell) executed by defendant no. I and defendant no. 2 with Ansals Properties & Industries Ltd. the terms of which are also similar to the draft agreement to sublease (agreement to sell) of plaintiff at Ex. DWI/7 which was proposed to be executed with plaintiff on receipt of Ist installment, the condition no. (XVI) of Ex. PW23/E and also the condition no. (XVI) of Ex. DW 1/7, the condition to obtain permission under Income Tax Act and Urban Land (Ceiling & Regulation) Act exactly word to word are the same. The agreement to sublease has been executed by defendant no. I & 2 with Ansals on 1.8.1995 and it can be implied that till then no approvals from the appropriate authorities under Income Tax Act & ULCR Act had been obtained by Ansals and defendant no. I but in the case of plaintiff no such agreement to sublease (agreement to sell) has been executed by defendant no. I and 2 in spite of the receipt of Ist installment on the plea by defendant no. I that agreement to sublease could not be executed since plaintiff did not obtain the permission under Income Tax Act and ULCR Act. In view of the above I conclude that the act and conduct of defendant no. I & 2 was arbitrary, illegal and discriminatory while dealing with plaintiff in respect of the suit property by not executing the agreement to sublease with plaintiff. It is further observed from Ex. PW23/F dated 10.11.1995 which is a certificate of provisional entry on the licence basis upon the shopping arcade site given to Suit No.:1026/06/97 Page:126/228 Ansals in pursuance to the agreement to sublease dated 1.8.1995 wherein it is stated that the licencee shall not upon the entry upon the said premises be deemed to have acquired any right, title or interest in the same.

4. It is further observed by me from Ex. PW23/X which is a letter dated 21.2.1996 wherein Ansals sought extension of time for payment of next installment since the entire buildings constructed by defendant no. I at Andrews Ganj project including guest houses and car park basement were irregular and did not have sanctions of building plans due to which the building plans of Shopping Arcade could not be entertained by MCD, in the said letter Ansals sought eight months extensions without interest of the 2nd installment and for further delay if any, the extension was granted by defendant no. I on 7.3.1996, Ex. PW23/Y from where it is concluded that Ansals were granted extension of 2nd installment by six months due to the car park basement being unauthorized and due to other structures guest houses being unauthorized at Hudco Place. It is further observed that Ansals through their letter dated 11.3.1996, Ex. PW23/Z sought the extension of 3rd installment also for six months since there was a gap of six months between payment of 2nd and 3rd installment to which defendant no. I through its letter dated 20.3.1996, Ex. PW23/AA advised Ansals to make a separate representation and confirmed through letter dated 27.3.1996, Ex. PW23/BB that regularization amount as required by MCD has been deposited by defendant no. 1 in respect of construction of car parking basement for regularization. Further from the Ex. PW23/EE, Ex. PW23/FF, Ex. PW23/GG, Ex. PW23/HH it is concluded that defendant no. I considered the extension of 3rd installment without interest on the same grounds that car park was unauthorized and the extension was granted as admitted in Ex. PW23/JJ. However it is further observed that from Ex. PW23/II that Ansals sought another extension of 2nd and 3rd installment since the car park was unauthorized and other constructions of guest houses at the Hudco Place built Suit No.:1026/06/97 Page:127/228 by defendant no. I were unauthorized and since revised layout plans was yet to be sanctioned by DUAC, it is further concluded from E x. PW23/KK that defendant no. I agreed to consider rescheduling of the 2nd & 3rd installment by three months if Ansals would not press for losses arising due to delay in sanction of plans but Ansals reiterated that the extension be granted for the delay of the same period for when building plans of car park basement & guest houses were sanctioned since the same reasons continued to prevail even after the first extension which has been granted due to the unauthorized constructions built by defendant no. 1 which was further considered by defendant no. I and recommended to defendant no. 2 for their approval, E x. PW23/MM, Ex. PW23/PP, E x. PW23/RR which were approved subject to payment of ground rent of Rs. 7.85 crores from the date of entry of the land i.e. 10.11.1995. It is also observed from E x. PW23/NN, Ex. PW23/QQ, E x. PW23/L, Ex. PW23/YY, E x. PW23/AAA that defendant no.l allowed Ansals to raise loan to pay towards the Ist installment as well as the 2nd & 3rd installment as a good will and gesture although it was a condition of the allotment letters of Ansals as well as of plaintiff that no permission to obtain loan will be given to raise loan to pay towards the consideration of the allotment. It is observed that defendant no. I & 2 considered the interest free extensions of 2nd & 3rd installment in respect of Ansals Properties & Industries Ltd. by considering the Shopping Arcade project in public interest and also applying the commercial prudence and further considering the deemed date of possession (entry to land on licence basis given on 10.11.1995) as the date of sanction of building plans of car park basement, E x. DWI/P122, DWI/P127, E x. PW24/3Q, Ex. PW24/3S. It is further observed from Ex. PW23/SS that the extensions were granted in view of delay in being able to get their plans approved until regularization of the building plans and the extensions were granted by defendant no. I & 2 subject to the disclaimer that Ansals will not Suit No.:1026/06/97 Page:128/228 claim any damages on account of delay in handing over site or sanctioning of plans etc. It is further observed from Ex. PW23/TT, Ex. PW23/UU, Ex. PW23/VV, Ex. PW23/WW, Ex. PW23/XX, Ex. PW23/BBB, Ex. PW23/CCC, Ex. PW23/EEE, Ex. PW23/GGG, Ex. PW23/HHH, Ex. PW23/III, Ex. PW23/KKK that the extensions of installment to Ansals were granted subject to approval of Govt. and subject to payment of ground rent from 10.11.1995 but Ansals further demanded that the ground rent should be demanded from the deemed date of entry to the land on licence basis when their building plans were sanctioned i.e. from 10.8.1996 which was again recommended by defendant no. I to defendant no. 2 for their approval which has been admittedly accorded by defendant no.2 as admitted in the evidence led by both the parties and the same is also concluded from the Ex. PW24/2D wherein defendant no. 2 has admitted the deemed date for delay on account of nonsanctioning of Hudco plans for car parking basement wherein the loss of interest has been admitted to be approximately Rs. 10.90 crores and defendant no. 2 decided to demand the same amount from defendant no. I to compensate for the loss which has been caused due to the fact that they had not taken prior approval from MCD of the plans for basement, Ex. PW24/2B. It has been further admitted by defendant no. 2 that normally extension should have been allowed by Hudco after recovery of interest @ 16.48% but in view of the delay of nine months and eight days occurred between deemed date of possession being the date of sanction of car park basement plan and the proposal of extension has been considered by defendant no. 2 as reasonable. There are various exhibits to which may not be referred by me in view of the above discussions, although these are many exhibits which further prove that defendant no. I & defendant no. 2 did grant interest free extensions of 2nd & 3rd installment to Ansals because car park basement was built unauthorized by defendant no. I and which was not disclosed in the brochures. The letters referred in the order of defendant no. 2 are also Suit No.:1026/06/97 Page:129/228 proved and Exhibited Ex.PW23/L, Ex.PW23/M, Ex.PW23/P cat Ex. PW23/AA here in the present suit which are being relied upon by plaintiff. The submissions of defendant no. I that the car parking slots of Ansal Properties & Infrastructure Ltd. were different from car parking slots allotted to plaintiff for hotel site does not have any force since it has been proved by plaintiff that it was the same car park basement comprising of more than 600 car park out of which part of the car park basement was allotted to Ansal Properties & industries Ltd. and major part of it was allotted to plaintiff. The submissions of defendant no. l that the Shopping Arcade Project by M/s Ansals Properties & Infrastructure Ltd. (APIL) was to be built upon the already constructed underground car parking structure by HUDCO for which regularization process was nearing completion, the building plans of the shopping arcade to be raised by M/s APIL could only be sanctioned subsequent to regularization of already constructed under ground car parking structure by MCD, consequently, extensions were granted to M/s APIL upto the date of regularization of car parking structure, in my view these submissions are in form of admissions which anyway has been admitted by defendants in their written statements that they have granted interest free extension to Ansals which further stand proved from the documents that such extensions were granted because the car park basement was illegal and the other structure in the complex of Andrews Ganj constructed by defendant no. I had to be regularized and as already concluded by me above that without the sanction of revised layout plans no building plans for hotel could be approved as also held by Hon'ble Retd. Justice Sh. R.S. Pathak in case of this suit property. The extensions granted to Ansals were because of unauthorized structures and the same is the case of plaintiff which has been proved by plaintiff.




   5).             The submissions of defendant no. I that plaintiff did not seek extensions



Suit No.:1026/06/97                                                                      Page:130/228

and that Hon'ble High Court granted time to plaintiff to deposit the amount is also not sustainable in view of the discussions above and in view of the documents proved by plaintiff that it is defendant no. I who has arbitrarily and discriminatorily has treated plaintiff visavis Ansals in which case the project has been considered to be in public interest and the commercial prudence has been applied in spite of execution of agreement to sell with Ansals and in case of plaintiff defendant no. I has proceeded to cancel the allotment without executing the agreement to sell.

In view of the above, I am of the view that plaintiff has been discriminated against a favoured treatment accorded to Ansals Properties & Industries Ltd., the discrimination is a stark fact. Defendants cannot by their Act of deliberately delaying the execution of agreement to sublease with plaintiff in spite of receipt of Ist installment cannot claim that they have not treated plaintiff arbitrarily and discriminatorily. It is proved that car park basement was unauthorized as well as the revised layout plans were required to be sanctioned before the building plans hotel could be considered by MCD and on the same grounds of car park basement being unauthorized Ansals have been granted interest free extensions and the allotment of plaintiff has been cancelled, the Act of defendants were arbitrary and discriminatory.

In Saghir Ahmad v. State of U. P., 1955 (1) SCR 707: (AIR 1954 SC 728), the Constitution Bench of the Apex Court has held that the State is free to carry on trade or business in the same position as a private trader. In Kasturi Lal Lakshmi Reddy v. State of J. & K. 1980 (3) SCR 1338: (AIR 1980 SC 1992) it was further held that every activity of the government has public element in it and it must, therefore, be informed with reason guided by public interest and that it Suit No.:1026/06/97 Page:131/228 cannot act in a manner which would benefit a private party at the cost of the State. In M.C. Mehta v. Union of India, (1987) I SCC 395: (AIR 1987 SC 1086) another Constitution Bench of the Supreme Court held that it is dangerous to exonerate corporations from the need to have constitutional conscience which makes governmental agencies amenable to constitutional limitations that Court must adopt such standards against the alternative of permitting them to flourish as an imperium in imperia. It further held that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. It was held by the Supreme court that the Corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such Corporations. Every activity of public authority must be informed by Seasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard. The Apex Court further held that even in contractual relations the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium a imperia. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action.

6). I, therefore conclude that the act and conduct of defendant no. 1 & 2 was arbitrary, illegal and discriminatory while dealing with the plaintiff in respect of the suit property and admittedly they permitted various time interest free extensions when allotment conditions were same as of Ansals Properties & industries Ltd. and as of plaintiff. Such extensions have been granted because car park basement built by defendant no. 1 was unauthorized and was regularized on 28.5.1996, defendant in public interest and in commercial prudence extended the Suit No.:1026/06/97 Page:132/228 installments even if admittedly it was loss of interest involving huge amount by considering that deemed date of possession on licence be taken as cut of date being the date when car park basement was regularized. It is unwarranted of Govt. & public sector company to consider in one case under the same allotment terms in the same community centre the shopping arcade project in public interest and applied commercial prudence extending the 2nd installment without interest as well as extending the 3rd installment without interest but in another similar case that of plaintiff defendant no. I cancelled the allotment as if this project did not envisage commercial prudence and was not in public interest. The question arises before me is that if defendants could apply commercial prudence and consider shopping arcade in the community centre in public interest then how can they cancel the allotment of plaintiff without applying the same principles when the same car park allotted to plaintiff was also unauthorized. In view of the above, I decide the issue no. 4 in favour of plaintiff and against the defendants.

Issue no. 5:

Whether timely payment is essence of allotment letter dated 31.10.1994 in terms of clause no. S(iii) issued by defendant no. I in favour of plaintiff and whether 2nd installment and 3rd installment were deferred Payments payable in one year and two years from the date of possession on licence basis to facilitate the allotted for construction of building there upon :' OPP

1. On going through all the terms of the brochure at Ex. PW17/NN under which the bids were called and the suit property was allotted to plaintiff are given above and discussed above from where it is noticed that none of the conditions in the brochure specifically stipulate that timely payment would be the essence of allotment, similarly Suit No.:1026/06/97 Page:133/228 on going through all the terms of allotment letter dated 31.10.1994 at Ex. PW17/J it is noticed that none of the conditions in the allotment letter stipulate that timely payment is the essence of allotment. Plaintiff further made me go though, Ex. PWI/20 which is another brochure floated in June, 1996 by defendant no. I in regard to the guest house blocks in the same Hudco Place wherein the condition no. (E) in disposal terms specifically states "It to be noted that the time for payment of premium as per the allotment letter shall be essence of the contract".

Plaintiff argued that if time for payment of premium was intended to be essence of the contract, it should have been stipulated as has been stipulated in the later brochures of Hudco Place. Plaintiff relied upon another brochure floated in by defendant no. I in November, 1996 being Ex. PW1/21 which is regarding the same suit property in which it has been stipulated that "It to be noted that the time for payment of premium as per the allotment letter shall be essence of the contract and irrespective of whether the allottee has been able to start the construction on the allotted hotel site or not due to any reason whatsoever".

Plaintiff further made me go through the allotment letter dated 31.3.1997, Ex. PW24/2E of the suit property issued in favour of Leela Hotels & Convention Centre Ltd. in which clause 4(ii) states that "Please note that the time for payment of the premium as per the allotment letter shall be essence of the contract and irrespective of whether you have been able to start the construction on the allotted hotel site or not due to any reason whatsoever."

Further on going through agreement to sublease which was proposed to Suit No.:1026/06/97 Page:134/228 be executed with plaintiff Ex. DWI/7 it is no where stipulated that timely payment is essence of the contract but on going through the Ex. PW17/QQ which is an agreement to sublease of the suit property executed with Leela Hotels Ltd. on 4.7.1997 it is stipulated in clause III that:

"the time for payment of the premium as stated hereunder shall be the essence of the contract and irrespective of whether the intended sublessee has been able to start the construction of the demised premises or any reason whatsoever."

2. Plaintiff on the other side argued that the letter dated 18.10.1995 although not proved by defendant no. I pertains to the repeatation of clause 5(ii) (A & B) of the allotment letter and para 5(ii) A(i) & B(i) also the clause 5(iii) that the payment can be paid on default with interest as per terms of allotment and it was never stated in this letter that timely payment is essence of the allotment letter and in view of clause 5(iii) being relied upon, the intention of defendant no. I could not be the timely payment of installments and any way defendant could have not placed any fresh conditions under any letters after acceptance and receipt of 1st installment.

3. In view of the evasive replies of DW1 in her cross examination on 9.2.2010 the controversies are deemed to be admitted that timely payment was not intended to be the essence of the allotment since the question was asked from DW1 showing "Ex. PW24/2E, PW17/J, PW17/NN, PW1/21 that in the brochure dated 15.7.1994 & allotment letter dated 31.10.1994 of plaintiff it is not mentioned that timely payment is essence of the allotment although it was mentioned in the brochure dated 29.12.1996 & allotment of Leela Hotels Ltd. that timely payment is essence of the allotment" to which she has replied that "The PW17/J and PW17/NN shown to me pertains to suit property allotted to M/s MS Shoes East Suit No.:1026/06/97 Page:135/228 Ltd. As per Para 5(iii) of the allotment letter dated 31.10.1994 (PW17/J) timely payment is the essence of the contract and is an independent obligation. Ex. PW24/2E and PW1/21 pertains to another contract with another agency. These are not related to the present case nor are the part of my affidavit. So I cannot say anything for these documents".

4). In my view it is a settle law that some terms advantageous to defendant no. I cannot be read in isolation as the terms of allotment has to be read on the whole the intentions has to be seen as concluded by Apex Court in AIR1981SC679 New Bihar Biri Leaves Co. and Ors. Vs .: State of Bihar and Ors. in para 50 that "It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of document or transaction or reject the rest. In Manu/DE/2108/2009 H. Dohil Construction Com. Pvt. Ltd. Vs. Mr. Thakur Dass Malhotra and Anr. Hon'ble High Court of Delhi has considered the question as to time was essence of the contract considering the provision of section 55 of Contract Act has concluded : " that even if in the contract, the time was made the essence of the contract, in case there is no intention of the parties to follow it, it will make the clause regarding time as redundant. Thus according to Section 55(3) of the Contract Act, the defendant himself failed to perform his promise at the time agreed and accepted performance i.e. the payment after due dates. He cannot now take steps for cancellation of the Suit No.:1026/06/97 Page:136/228 agreement in question. Though it is settled law that where no time is fixed for completion of the contract or in other words where time is not originally of the essence, a party could by notice serve upon other call upon him to complete the transaction within the time fixed. Where the time is the essence, its extension should and ought to be categorical in nature rather than being vague or in the anvil of presumptions. When the parties knowingly gave a go by to the stipulations as regards time, the same may have several effects and the courts are not left with any other conclusion but to give a finding that the parties themselves by their conduct have given a go by to the original term of the contract as regards the time being the essence of the contract.

5). I am in consent with Plaintiff that tests for determining whether time is essence of contract depends upon the intention of the parties which has to be ascertained one from the terms of documents. Generally the time is not essence of contract but general principle is subject to the exception as may arise on the facts of a given case wherein parties may make time the essence of the contract even in cases relating immoveable properties. In my view in the present case three tests are not satisfied as there is no expressed stipulation in the allotment letter, the nature of the subject matter and surrounding circumstances also do not show that time is the essence as defendant no. I itself did not have lease in their favour till 4.7.1997 due to which they could not provide the leasing arrangement to plaintiff although stipulated in the allotment letter, defendants did not execute agreement to sublease on receipt of Ist installment nor did they execute any document in regard to income Tax and ULCR permissions, defendant no. I did not have the revised layout plans approved to enable the plaintiff to get the building plan sanctioned nor did they have the car park basement regularized till the date of cancellation and even they did not have the accepted terms of allotment in their own favour in view Suit No.:1026/06/97 Page:137/228 of which time could have not been the essence of allotment. I am of the view that plaintiff's reliance upon Anand Constructions Works Vs. State of Vihar AIR1973 Calcutta 550 is correct since it has been held in this case that where in a case of contract with Govt. to deliver goods on certain date, the condition of contract itself provides for extension of time than time is not the essence of contract. Plaintiff has submitted that as per clause 5(iii) of the allotment letter the terms of allotment itself provided for extension of time and accordingly the timely payment cannot be held to be essence of the allotment letter. In view of the above and comparing the same clause 2 (viii) of the guest house allotment dated 31.10.1994, Ex. PW17/K and the clause no. 5(iii) of the allotment letter dated 31.10.1994 in respect of the suit property which are exactly the same words, I hold that timely payment is not the essence of the allotment letter dated 31.10.1994. Now on going through the payment schedule in the allotment letter of the suit property it is noted that the 2nd installment is payable after 12 months from the date of allotment and the 3rd installment is payable after 24 months from the date of allotment and immediately on receipt of the Ist installment within a reasonable time. The agreement to sublease (agreement to sell) was required to be executed by defendant no. I & defendant no. 2 which was not done and as concluded above in the issue no. I & 2 that defendant no. I committed the breach by not executing the agreement to sell after receipt of the Ist installment. It is also noticed from Ex.DW1/P124, EX. DWI/P126, Ex. PW23/V being the letters from Ansals Properties & Industries Ltd. to defendant no. I who were allotted the Shopping Arcade under the similar conditions, the installments payable in their case was also deferred payments payable in 12 months and 18 months from the date of allotment to facilitate the allottees to construct the building thereupon the land but where the building were already constructed and built by defendant no. I as in the case of guest house blocks at Ex. PW17/K the payments scheduled as compared was that Suit No.:1026/06/97 Page:138/228 the 2nd installment was payable within three months from the date of allotment. In view of this it is inferred that the payments of two installments were deferred installments payable in one year and two years by giving the provisional entry to land to facilitate the allottee to construct the buildings and such provisional entry on licence was to be given on execution of agreement to sell which is admitted fact by defendant no. I but in the present case it was not so because defendants failed to execute agreement to sell on receipt of Ist installment. As discussed above I have concluded that the payment of two installments were deferred payments with intentions that the allottee could construct the building in the mean time in view of which the submissions of defendant no. I in respect of that it is not mentioned in the allotment letter that second and third installments would be payable in one year and two years from the date of provisional possession to facilitate the plaintiff for construction of building thereupon has no substance on the face of it.

6). It is also noticed by me from the agreement to sublease dated 4.7.1997 at Ex. PW17/QQ executed with Leela Hotels Ltd., they were given an entry to the land on licence basis on 7.7.1997 of same suit property to facilitate them for construction of the building and the 2nd installment & 3rd installment were deferred payment after one year & two years which is implied that Leela Hotels Ltd. were given the entry to the land on licence basis within three months from the date of allotment and within two months from the date of payment of Ist installment. Similarly from the agreement to sublease dated 1.8.1995 of Ansals at Ex. PW23/E the entry to the land to facilitate the construction of the building was given on 10.11.1995 at Ex. PW23/F and the 2nd installment and the 3rd installment were extended considering the deferred payments and considering the delay in giving the possession on licence basis and also considering the deemed date of possession being 28.5.1996 the date of regularization of the building plans Suit No.:1026/06/97 Page:139/228 of car park basement, Ex. PW23/V, Ex. PW23/GG, Ex. DW1/P122 wherein in the board minutes of defendant no. 1, it has been admitted that there was delay in handing over the possession of the shopping arcade site to Ansals for construction purposes and there has been delay in sanction of building plans of shopping arcade due to non sanctioning of building plans of car park basement to avoid litigation and in commercial prudence the extensions were granted subject to Govt. consent. In view of the above evidence and documents and on going through the conditions of the allotment as a whole I conclude that there is no doubt that the intention behind the deferred payment of 2nd & 3rd installment with permission to construct the building thereupon by giving the entry to the land on licence basis after agreement to sublease is executed was only to facilitate the allottees for construction of the building so as not to burden the allottee with entire consideration amount in one go.

In view of the above, I accordingly hold issue no. 5 in favour of plaintiff and against defendants.

Issue no. 6:

Whether defendant no. 1 had any valid allotment and lease of the subject land and in their favour at the time of allotment to plaintiff? OPP.

1) Plaintiff argued that the first allotment letter issued by defendant no. 2 in favour of defendant no. I is 27.3.1992 Ex. PW24/D the allotment letter is addressed to Chairman & Managing Director, Hudco and is issued by Ministry of Urban Development, L&DO Office, it is relevant to record the para 6 of the allotment letter which says "If the above terms and conditions are acceptable to the Hudco acceptance thereof in writing may please be communicated to this effect together with a cheque crossed 'Not negotiable' for a sum of Rs. 75/(Rs. Seventy Five only)) drawn in favour of the Land & Development Officer, New Delhi within 30 days from Suit No.:1026/06/97 Page:140/228 the date of receipt of this letter ......If no reply is received within 30 days from the date of receipt of this letter, it will be assumed that you are not interested in the allotment and the allotment will be cancelled at your risk."

2). It is seen from the Ex. PW24/E wherein defendant no. 1 has admitted the receipt of allotment letter dated 27.3.1992 conveying the allotment of land at Andrews Ganj, defendant no. I has sought certain amendments in the conditions of allotment letter dated 27.3.1992 which were amended vide letter dated 2.4.1993 at Ex. 24/H copy of which is also marked to Ministry of Urban Development with reference to their letter no. J13014/6/90/LD dated 28.12.1992. It is further seen from the Ex. PW24/1P which is the allotment letter dated 19.3.1996 addressed to Chairman & Managing Director, Hudco and is issued by Ministry of Urban Development, L&DO Office, it is relevant to record that this letter is issued in supercession of letter dated 27.3.1992 and in last para of the allotment letter says "If the above terms and conditions are acceptable to the Hudco acceptance thereof in writing may please be communicated to this effect within 30 days from the date of receipt of this letter. A cheque crossed 'Not negotiable' for a sum of Rs. 75/(Rs.

Seventy Five only)) drawn in favour of the Land & Development Officer, New Delhi ......if no reply is received within 30 days from the date of receipt of this letter, it will be assumed that you are not interested in the allotment and the allotment will be cancelled at your risk." The copy of the said letter has been marked to Ministry of Urban Development with reference to their letter no. J 13014/6/90/LD dated 15.6.1993. Defendant no. 1 on receipt of this allotment letter further sought certain amendments in the terms of allotment letter vide their letter dated 24.4.1996 at Ex. PW24/1Q which was further amended by defendant no. 2 vide their letter dated 15.10.1996 at Ex. DWI/P171. From the above any prudent person can conclude that defendant no. I did not have accepted allotment letter in Suit No.:1026/06/97 Page:141/228 their favour till 15.10.1996. No lease fees had been paid by them as admittedly mentioned in the lease executed on 4.7.1997 which clearly states that the first lease amount has been paid by defendant no. 1 on 29.3.1996. I have already concluded that the reliance by defendant no. 1 on Ex. DWI/B being an allotment letter dated 15.6.1993 is misplaced as it is not addressed to defendant no. I but is addressed to Land & Development Officer, New Delhi in lieu of which the allotment letter dated 19.3.1996 was issued by L&DO in favour of defendant no. I the terms of which were finally accepted and approved on 15.10.1996 as per Ex. DW1/P171. I have already concluded above that the letter dated 15.6.1993 is not an allotment letter to defendant no. I but is the sanction of the president to the allotment of land issued to L&DO in supercession of earlier letters and on comparison of conditions of allotment letter dated 19.3.1996 in favour of defendant no. 1 and allotment letter dated 15.6.1993, it is noticed that condition nos. v, vi, viii, ix, x, xi, xii, xiii, xiv, xv, xvi, xvii, xviii and the last para of the allotment letter dated 19.3.1996 do not find any place in the allotment letter dated 15.6.1993 issued to L&DO by the Ministry of Urban Development.

On going through the brochure under which plaintiff did the bid and the allotment letter do not show anywhere that defendant no. 1 disclosed the fact that they did not have the valid allotment letter for perpetual lease/99 years lease in their favour as on the date of allotment to plaintiff or as on the date when the 2nd instalment was demanded. Defendant no. 2 has admitted in para 15 16 of the written statement that the land in question at Andrews Ganj has been allotted to defendant no. I by defendant no. 2 on the terms & conditions contained in the letters of allotment dated 27.3.1992 and 19.3.1996 and the lease deed dated on 4.7.1997.Admittedly in the written statement of defendant no. 1 as well as defendant no. 2 have relied upon allotment letter dated 19.3.1996 and the perpetual Suit No.:1026/06/97 Page:142/228 lease dated 4.7.1997 which refers that for the purpose from time to time the first of such payment being lease fees has been made on 29.3.1996 which strengthens the argument of the plaintiff that defendant no. I did not have the accepted allotment letter and the lease in their favour when the 2nd installment were demanded on 18.10.1995 and 31.1.1996.

3). Further plaintiff has led its evidence through the affidavit of PW1 at Ex. PW1/AA, plaintiff proved in para nos. 15, 32, 164, 165, 166, 172, 173. 176, 189 the fact that defendant no. 1 did not have any valid allotment and the lease of the subject land in their favour, none of these paras have been controverted by defendants in their affidavits or in cross examining PW I. On the other hand DW1 was cross examined by plaintiff on the above issue and the question replied were in the form of admission by DW 1: That the allegations of plaintiff are deemed to be admitted by DW1 since in her cross examination on 3.2.2010 on the question asked "Have you placed any document in regard to possession given by Defendant No. 2" she replied that "the present suit do not require any such document. I do not know what all documents previously were placed in the present suit." Further to the suggestion put to DWl" that the first allotment letter issued in favour of defendant no. 1 by L&DO was dated 27.3.1992, Ex PW24/D produced by defendant No. 2 is shown to you" she replied that "this is highly incorrect and by asking such questions, it is an attempt to mislead the Court" again in another question asked that "allotment letter dated 19.3.1996 in favour of defendant no. 1 by defendant no. 2 is mentioned in the lease deed dated 4.7.1997" she replied that "Leasedeed is Exhibited document dated 4.7.1997 including the contents of said Exhibits". That the exhibits PW18A to PW18/E were shown to DW1 in cross examination on 8.2.2010 which are in respect of affidavits of defendant no. 1 where in they have admitted that "defendant no. 1 has claimed in these affidavit at Suit No.:1026/06/97 Page:143/228 Ex. PW I 8/A to 18/E that defendant no. 2 has superseded all earlier allotment letters and the fresh allotment letter dated 19.3.1996 issued in supercession to all earlier terms and conditions of allotment. In the present case the defendant no. I did not possess the rights in them to transfer their rights to plaintiff in the absence of any lease in their favour which admittedly they subsequently obtained on 4.7.1997 when the lease was executed in their favour, it is immaterial whether it was effective from 1.11.1990 since even the consideration has been paid by defendant no. 1 on 29.3.1996 as given in the lease dated 4.7.1997. It is held that plaintiff has proved its stand in respect of issue no. 6 that defendant no. I did not have any valid allotment and the lease of the subject land in their favour at the time of allotment to plaintiff nor did they have the same till the date of cancellation of the allotment of plaintiff.

I decide the issue no. 6 in favour of plaintiff and against defendants. Issue no. 7:

Whether legally construction of 5 star hotel was permitted in the said Community Centre as per old Master Plan MPD1962 under which said Community Centre was allotted to defendant no. 1 by defendant no. 2 and whether the lease and allotment in favour of defendant no. 1 specified the use of land for construction of Hotel? OPP.

1) Plaintiff has submitted that at the time of allotment dated 31.10.1994 and till the date of cancellation, legally the construction of 5 star hotel was not permitted since the subject land at Andrews Ganj comprising of Community Centre was to be developed as per MPD, 1962 under which the Community Centre does not permit the land use of hotel. Further the allotment letters in favour of defendant no. I do not permit the use of the land for hotel since hotel being a specific use the permission Suit No.:1026/06/97 Page:144/228 from Ministry of Finance was required. Even the Additional Solicitor General and the counsel of the defendant no. 2 have given the same opinion that the allotment letter in favour of defendant no. I does not permit the use of hotel. There are legal opinions taken from Ministry of Law & Justice by defendant no. 2 which have been placed on record wherein also it has been opined that lessee cannot grant the rights which have not been granted to the lessee by the lessor. The lease was executed much later than the cancellation letter and in the lease executed by defendant no. 2 in favour of defendant no. I it has been stated that the Community Centre can be developed as per MPD 2001 and under MPD, 2001 in the Community Centre hotel is permitted but it is doubtful whether without change in land use the lease could be executed for development of Community Centre as per MPD, 2001 since the land use was restored as per notification dated 8.9.1992 retrospectively to the land use as per MPD, 1962.

Even DDA had concluded that the land use of hotel in the Community Centre to be developed under MPD, 1962 is not permitted.

2). Counsel for defendant no. I argued that the layout plan was approved on 12.4.1994 by MCD and the use of hotel was permitted in the Community Centre and lease has been executed for development of Community Centre as per MPD, 2001 and the use of hotel in the Community Centre is permitted in Master Plan, 2001. I have been shown Ex. PWI/4 under which defendant no. 2 has directed defendant no. I on 4.9.1991 that they may proceed in regard to sanction of building plans with MCD with reference to old master plan provisions and as per Ex. PW24/A it was decided by defendant no. 2 that DDA be directed to restore the land use of 70 acres land at Andrews Ganj which comprised of 17 acres for commercial use as per the Master Plan, 1962 which was in effect at the time when the land was given to defendant no. 1. As per Ex. P W 16/A which is a notification K200013/27/91DDIB dated 8.9.1992, the land use of Andrews Ganj has been Suit No.:1026/06/97 Page:145/228 restored retrospectively to MPD, 1962, zone F3. As per Table3 of the Community Centre facilities permitted under master plan, 1962 at Ex. PW16/B it is seen that there is no mention of the use of hotel in community centre under master plan, 1962. Further on going through Ex. PW24/D which is an allotment letter dated 27.3.1992 issued by defendant no. 2 through L&DO in favour of defendant no. 1 the uses allowed are as per condition no. 2(iv) that the land for the Community Centre should be utilized for development of "Hostel" and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban Design for the Complex approved by the Ministry of Urban Development. Similarly it is observed from the allotment letter dated 19.3.1996, Ex. PW24/lP which superseded the allotment letter dated 27.3.1992 that the condition no. (iii) it is stated that land for the Community Centre should be utilized for development of "Hostel" and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban Design for the Complex approved by the Ministry of Urban Development. It is seen that the use of hotel is not specified or mentioned in the conditions of allotment to defendant no. 1, thus they were not permitted to allot the land for hotel atleast as per uses given in the allotment letter as well as per MPD, 1962. It is noticed from Ex. PW24/1Q that defendant no. I sought certain amendments in allotment letter dated 19.3.1996 which were amended by defendant no. 2 on 15.10.1996, Ex. DW1/P171, from here one easily come to a conclusion if as per MPD, 1962 hotel use was permitted then the allotment letter which has been modified so may times the said use could have also been amended by defendant no. 2. It is also seen from the PW24/X being Dy. No. 38 which is on the records of defendant no. 2 that they objected to the allotment for hotel since the allotment letter in favour of defendant no. 1 did not permit the use of hotel in the Community Centre. The contention of plaintiff is further strengthened by Ex. 24/G where defendant no. 2 has written the letter to Suit No.:1026/06/97 Page:146/228 DDA seeking the format of lease deed for community centre stating that "land was allotted to Hudco vide letter No. LII(974)/92193 dated 27.3.1992 of which one of the conditions of allotment is that land for community centre should be utilized for development of hostel and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban Design for the Complex approved by the Ministry of Urban Development." It is also noted that as per Ex. 24/H which is partial modification done on 2.4.1993 of the allotment dated 27.3.1992 in favour of defendant no. 1, the condition no. 2(c) still stipulated that "the land for community centre should be utilized for development of "Hostel" and guest house facilities, conference hall, shopping and other community centre facilities as per the Urban Design for the Complex approved by this Ministry". Admittedly the lease is executed in favour of defendant no. I on 4.7.1997, Ex. DWI/A wherein it is mentioned that the lessor wishes to develop the said land as Community Centre as described in MPD 2001 as an integrated urban design complex and that the land shall be used by the lessee for the construction & development of Community Centre as per integrated Urban Design for the complex approved by the lessor. It is seen that still in the lease the specified use of "Hotel" has not been mentioned which has also been observed in the opinion of Ministry of Law & Justice at Ex. PW24/3T and also the opinions of Additional Solicitors General Sh. C.S. Vaidyanathan at Ex. PW17/III & Ex. PW17/JJJ wherein it has been observed that the allotment letter of the Govt. of India dated 19.3.1996 (clause i & iii) and the perpetual lease deed dated 4.7.1997 (clause lI(a)) do not authorize or envisage the use of land in question a hotel site, there is a substantial difference between the use of site for a 5 star hotel and its use for a construction of a "Hostel" or a guest house and in the absence there of Hudco was not authorized to allot any land for hotel either to MS Shoes East Ltd. or to M/s. Leela Hotels Ltd. Further more in view of the stark difference between hostel, Suit No.:1026/06/97 Page:147/228 guest houses, conference hall and shopping facilities on the one hand and hotels on the other, the words, "other community centre facilities" cannot be taken to mean hotels. It is further observed from the Ex. PW22/A being the legal opinion given by the Additional Standing Govt. Counsel of defendant no. 2 which has been given on the assignment entrusted to her by defendant no. 2, the counsel has admittedly stated that it is necessary to change the land use for 5 star hotel by amending the allotment letter and perpetual lease deed. It is also noted from Ex. PW15/A & Ex. PW15/B which are from the files of DDA wherein DDA has arrived at the conclusion that the allotment letter dated 19.3.1996 and uses of Community Centre as per MPD, 1962 does not permit the use of land at Andrews Ganj as hotel nor the lease dated 4.7.1997 specify the uses of the community centre and the permission from DDA to develop the 5 star hotel is required. It is further noticed from the Ex. PW9/C which is a resolution no. 84 passed by MCD on 10.6.1998 approving the revised layout plans and approving the use of the land for hotel, the revision has been processed as per norms of MPD, 2001and since that DDA, however, clarified that hotel is permitted use in the Community Centre as per MPD 2001. Plaintiff in respect of the above led evidence in para nos. 8, 10, 11, 14, 15, 182, 188, 190, 191, 192, 193, 195, 196, 228, 231 & 263 of the affidavit at Ex. P W l/A A, none of these paras have been controverted by defendants in cross examining PWI nor they have led any evidence in respect of the allegations of plaintiff in these paras of his affidavit filed by way of evidence. The evasive replies given by DWI in her cross examination on 3.2.2010 in regard to the present issue are deemed to be admitted as on the question asked "that MPD 1962 was applicable to the suit land till the perpetual lease was executed and till the revised layout plans were approved in 1998 and "Which MPD was applicable" she replied that "she does not know since these matters are not dealt by me in HUDCO. These are being dealt by another department. In my view Plaintiff has proved its allegations since the replies of Suit No.:1026/06/97 Page:148/228 DWI are deemed to be admitted that the lease deed was executed as per MPD 2001 which was contrary to the land use restored under notification dated 8.9.1992, since on the question asked in her cross examination on 9.2.2010 that "the use of Community Centre as per MPD, 2001 given in the lease dated 4.7.1997 is contrary to notification no. 8.9.1992 at Ex. PW16/A wherein the land use of Andrewsganj Project falling in Zone F3 is restored retrospectively to the land use as per MPD, 1962" she replied that "the issues related to approvals etc. are being dealt by other departments so I cannot say anything."

3). From the above I conclude that as per allotment letters issued by defendant no. 2 in favour of defendant no. I nowhere it has been specified that the Community Centre will be utilized also for hotel, the word mentioned is hostel and there is stark difference between the word hotel and hostel as also observed in the Additional Solicitors General opinion, obtained by the Ministry at Ex. P W 17/III, Ex. PW17/JJJ, the same discrepancy was also pointed out by defendant no. 2, Ex. PW24/X when the allotment was made to plaintiff for hotel, even the Ministry of Law & Justice pointed out the same discrepancy, Ex. 24/3T & Ex. 17/ZZ which was also again pointed out by the Ministry of Law & Justice at Ex. PW24/2M at the time of the approval of the perpetual lease it was pointed out that a lessee can only grant those rights which he himself possesses. It was upto defendant no. 2 to amend the terms of allotment letter issued to defendant no. I but it seems that such an amendment in the allotment letter to defendant no. 1 was not carried out from where it can be concluded that defendant no. 2 had some legal reasons of not doing so which is obviously the land use notification dated 8.9.1992 wherein the Community Centre was to be developed as per MPD, since the construction already carried out were as per 1962. In view of the above and as already concluded by me that the submissions of defendant no. I that the lease in favour of Suit No.:1026/06/97 Page:149/228 the defendant no. I do not prohibit the construction of hotel at site is admitted fact but the lease was executed on 4.7.1997 and the plea of defendant no. I that it had retrospective effect has no substance since till this lease was executed, the Master Plan applicable was of 1962 under which the hotel was not permitted due to which defendant no. 2 executed the lease as per MPD 2001 regularizing the use of land on 4.7.1997. In view of this the submissions of defendant no. I that the plaintiff's plea that hotel could not be legally constructed at site is contradictory to the main averments of the suit of the plaintiff are not sustainable. I conclude that none of the allotment letters issued by defendant no. 2 in favour of defendant no. 1 stipulated that the land could be used for hotel, neither the MPD, 1962 permitted so which was applicable till the perpetual lease deed was executed as per MPD 2001 under which hotel is permitted in the community centre. Further the land use for hotel has been regularized in the revised layout plans approved as per provisions of MPD, 2001 which were approved after the execution of the perpetual lease and thus till revised layout plans, service plans, drainage plans were approved the building plans for hotel could not be approved/sanctioned. I conclude that defendant no. 1 did not have the right to allot the land for 5 star hotel till 4.7.1997 since they did not have the right in themselves and the allottee (defendant no. 1) could have not given the right which itself did not possess since such rights were given by executing perpetual lease which were finally regularized on the approval of revised layout plans, service plans & drainage plans lastly approved on 7.9.1999 and in my opinion till then defendant no. 1 could have not demanded the 2nd installment.

In view of the above, I decide the issue no. 7 in favour of plaintiff and against defendants.

Issue No. 8:

Suit No.:1026/06/97 Page:150/228 Whether defendant no. I is an agent of defendant no. 2 and whether defendant no. I was given the said land under govt. Grants Act and whether defendant no. I was to take permission of defendant no. 2 before allotments, Permission to mortgage. any extension of payments and cancellation of allotments and whether defendant no. I took the permission/approval of defendant no. 2 regarding~ allotment/cancellation of allotment of plaintiffs OPP

1) In support of the above issue in regard to the fact that defendant no. I is an agent of defendant no. 2 in respect of the Andrews Ganj project of which one of the portion is the suit property, plaintiff pointed out Ex. PW18A to PW18/E, PW24/P, PW24/4H & DW1/P160 wherein all these Exhibits it has been admitted by defendant no. I that they are agent of defendant no. 2 in respect of the Andrews Ganj project and defendant no. 2 has also admitted that defendant no. I is developing the Andrews Ganj project as an agent of defendant no. 1. Further in respect of the above issue in regard to the fact that the said land is given to the defendant no. I under Govt. Grant Act plaintiff in its support referred to the Ex.24/D, Ex. DW24/H, Ex. 24/1P, DWI/P171, these exhibits are allotment letters issued by defendant no. 2 through L&DO in favour of defendant no. I and are also modifications/amendments in the allotment letters dated 27.3.1992 and 19.3.1996, it is shown by plaintiff that the clause 2(xvi) of allotment letter dated 27.3.1992 and clause (xvi) of allotment letter dated 19.3.1996 it is stated that lease will governed under Govt. Grant Act. In support of the above issue in regard to the fact that defendant no. I was to take permission of defendant no. 2 before allotments, permission to mortgage, extensions of payments and cancellation of allotment, plaintiff made me go through the Ex. PW24/K, Ex. PW24/S, Ex. PW24/T, PW17/I which pertains for bids proposed to be called by defendant no. 1. The final decision that was to be binding on defendant no. 1 was to be taken by defendant no. 2 in regard to the allotments, further the Ex. 24/1B, EX. PW 24/1X, Ex. PW23/PP, EX. PW24/2F, EX. PW23/AAA, EX. PW24/2W, EX.

Suit No.:1026/06/97 Page:151/228 PW24/3D proved that interest free extensions granted to Ansals were subject to approval of defendant no. 2. Further plaintiff contended that it is admitted fact from the terms of allotment letter that defendant no. I could not take any decisions on their own without the approval of defendant no. 2 even in respect of mortgage of the suit property. It was further pointed out that as per Ex. PW24/1R defendant no. 2 had passed an order directing defendant no. I to cancel the retender of the properties of plaintiff and accordingly defendant no. 2 withheld all the rights of allotment/extensions/ mortgage/cancellation and without the approval or consent of defendant no. 2 the defendant no. I could not cancel the allotment of plaintiff and at the time of cancellation no such approval was obtained by defendant no. I from defendant no. 2. Plaintiff further supported its contentions in regard to the above issue by making me go through Ex. PW24/4F being an order/notings passed by the Minister restoring the other property being guest house blocks where it has been admitted by defendant no. 2 that they had all the rights in the Andrews Ganj project since the land was a grant granted by defendant no. 2 to defendant no. I.

2). On the other side defendant no. I denied to be an agent of defendant no. 2 and denied that the said land was given to them under Govt. Grant Act. Counsel for the defendant no. I submitted that they had been granted all the powers by defendant no. 2 through letter dated 15.6.1993 to make decisions for disposal of the properties in respect of Andrews Ganj project and that they did not require any permission from defendant no. 2 for allotments/mortgage/extension of payments or cancellation of allotment. Defendant no. I relied on Ex. DWI/B stating that was the only allotment letter dated 15.6.1993 authorizing them to make decision of disposal of the properties at Andrews Ganj in regard to which I have already dealt above.

Suit No.:1026/06/97                                                                      Page:152/228
    3).             It is proved by plaintiff that defendant no. I is an agent of defendant no.

2 in respect of the Andrews Ganj property which is very well admitted by defendant no. I & defendant no. 2 in Ex. PW18A to PWI 8/E, PW24/P, PW24/4H & DWI/P160. It is unwarranted of the Govt. and a public sector which is a Govt. owned company to change their stand inspite of their specific admissions in their written statement that defendant no. 1 is an agent of defendant no. 2. In their own affidavits at Ex. PW18/A to Ex. PW18/E defendant no. I has admitted that they are agents of Govt. and they have no title, right or interest in the said project wherein the suit property is one of the part. As already concluded above, defendant no. I has relied on a letter dated 15.6.1993 which is not an allotment letter issued to them but is issued to L&DO besides defendant no. I and defendant no. 2 have both admitted that the letter dated 19.3.1996 is the allotment letter which is issued in supresession of letter dated 27.3.1992. Further from the Ex. PW18A to Ex. PW18/E it is admitted by defendant no. I in CW. 3179/1994 before Hon'ble High Court of Delhi that allotment letter dated 19.3.1996 is the allotment letter which is to be considered in finalizing the dispute in the civil writ but defendant no. I with some ulterior motives have now denied the said letter dated 19.3.1996 although the same is seen to have relied upon in another suit filed by plaintiff being suit no. 1551/2005 in regard to another property before Hon'ble High Court of Delhi, Ex. DWI/P177. DWI in her cross examination said that "the defendant no. I is not agent of defendant no. 2 in regard to the Andrewsganj properties and is only lessee. She further deposed that this is legal question whether any declarations or admissions in the present suit would be binding on defendant no. 2 as defendant no. 2 has given the authority to defendant no. 1." and later in another question she replied that the question is not related to the controversy whether defendant no. I is an agent of defendant no. 2 in respect of the Andrews Ganj properties. I am in Suit No.:1026/06/97 Page:153/228 consent with plaintiff that the rights being claimed by defendant no. I are for disposal of the community center given under perpetual lease and the investment decisions have been authorized in this perpetual lease which anyways is of later date but it does not authorize defendant no. 1 to take the decisions in regard to cancellation/mortgage/ extensions of installments. I am of the view that the claim of defendant no. 1 that they could make all decisions is further not sustainable being an agent of defendant no. 2 since as held Durga Prasad Manna Lal Vs. Cownpore Flour Mills Co. Ltd. AIR 1929 Oudh 417(DB) that the position of an agent cannot be improved as to the status of a principal by the mere fact of his being given extensive powers or being allowed to make contracts in his name. On the other hand the evidence led by plaintiff in para nos. 6, 35, 167, 170, 212 & 263 in regard to the above issue that defendant no. I was agent of defendant no. 2 have not been controverted from PWI by both the defendants in view of which these paras are deemed to be admitted. Further in the cross examination of PWI by defendant no. 2, PWI has proved that "the allotments letters were issued after three and half months of the bid because the defendant no. I sought approval of defendant no.2 and all the bids received were sent to defendant no.2 for their approval which was informed to us by defendant no. l ." DWI who deposed for defendant no. I and no witness has been produced by defendant no. 2, DWI denied to answer the above questions by saying that the questions is not related to the controversy inspite of the present issue framed in the present suit, I have to conclude that these are implied admissions as also discussed above by me in another issue. It is deemed to be admitted by DWI in her cross examination on 1.2.2010 that defendant no. I had to obtain permission of defendant no. 2 prior to allotment /mortgage/cancellation/extension of instalment since DWI replied I have no knowledge whether Defendant No. 2 approved the bids, my views also supported by the Ex. PW17/H, Ex. DWI/P42, Ex. PW24/K, Ex. DWI/P151, Ex.

Suit No.:1026/06/97 Page:154/228 DW17/I wherein defendant no. I took the approval prior to issue of the allotment letters of the bids received on 15.7.1994 and it took them some months to issue the allotment letters as they could only do so after the approval of defendant no. 2. Plaintiff has further proved its case and has proved the present issue as the evasive replies of DWI in her cross examination on 8.2.2010 that defendant no. I were only agent of defendant no. 2 and that defendant no. I had no right, title or interest in the community centre at Andrew Ganj wherein the suit property is situated since on being asked a question that "You are shown Ex. nos. PW/18A to 18E (18/D Page 659665, para 3) which are affidavits filed by defendant no. I in CW. No. 3179/1994 in which defendant no. I on oath has claimed that they are only agent of defendant no. 2 and that defendant no. 1 has claimed that they have no right, title or interest in the Andrewsganj property" to which she replied that "I am not aware of the case as mentioned above". It is further observed by me from the lease dated 4.7.1997 at Ex. DWI/A executed by defendant no. 2 in favour of defendant no. I although executed subsequent to the cancellation of allotment of plaintiff, defendant no. 2 has retained all its powers and has right to review the leasing arrangement with defendant no. I which is further deemed to be admitted by DWI as on the question being asked in cross examining DWI on 9.2.2010 "that defendant no. 2 still remains the owner of the land as on today and retains the control over the said land as defendant no. 2 retained its right to review the leasing arrangement with defendant no. I and enter into fresh arrangement with any other Govt. agency" she replied that "It is as per records". The submissions of defendant no. I that the plaintiff has no concern with internal arrangements made between the defendant no. I and the defendant no. 2 has no substance as it is proved by plaintiff that agreement to sublease was to be executed by defendant no. I and defendant no. 2 both besides plaintiff was to be provided the leasing arrangement with the Govt. which proves that plaintiff had all concern of the arrangements between Suit No.:1026/06/97 Page:155/228 defendant no. I and defendant no. 2. Similarly submissions of defendant no. I that they had all the right to cancel the allotment has no force whatsoever. In view of the above, the submissions of defendant no. I that in cross examination of PWI conducted on 25.07.09 he has stated that no cabinet approval was requested prior to allotment, these submissions of defendant no. I are completely misplaced than the evidence led by plaintiff in para 57 of his affidavit, Ex. P W 24/L and as well as the reply relied upon by defendant no. 1. In view of the above it is conclusive that defendant no. I is an agent of defendant no. 2 inspire of the lease executed by defendant no. 2 in favour of defendant no. I which further supports that defendant no. I is an agent of defendant no. 2 in respect of Andrews Ganj project as seen from clause ii(c) of the lease dated 4.7.1997 that defendant no. 2 has reserved all its rights to review the arrangement with defendant no. I and enter into fresh arrangement with any other agency. As seen from the Ex.24/D, Ex. DW24/H, Ex. 24/1P, DWI/P171 it is proved that the land is a grant given by defendant no. 2 to defendant no. I and the land falls under the Govt. Grant Act as stated in the allotment letters but I don't see the reasons why defendants have denied the same inspite of the fact that it can be proved from the document admittedly relied upon by defendants in their written statements. It is not expected of Govt. and a public sector to deny the facts which are given in their own allotment letters and which can be proved by reading a document.

4). It further strengthens my view from the Ex. PW24/K, Ex. PW24/S, Ex. PW24/T, PW 17/I from wherein it is established that the decisions made by defendant no. I on the bids were sent for approval of defendant no. 2 and defendant no. 2 declined to accept the decision of defendant no. I in respect of some of the allotments and admittedly it took almost three and half months for defendant no. I to issue allotment letters to plaintiff including in respect of other properties which Suit No.:1026/06/97 Page:156/228 clearly proves that without the approval of defendant no. 2, defendant no. 1 could not issue the allotment letters. It is also proved by plaintiff from the Ex. 24/lB, EX. PW 24/lX, Ex. PW23/PP, EX. PW24/2F, EX. PW23/AAA, EX. PW24/2W, EX. PW24/3D, that defendant no. I although extended the interest free installments in respect of Ansals but such recommendation were sent to defendant no. 2 for their approval and the extensions granted were subject to approval of the Govt. as per their own letters written to Ansals which further proves that defendant no. 1 had to take the approvals of the interest free extensions to be granted to Ansals. On going through the conditions of the allotment letters of plaintiff as well as of Leela Hotels Ltd. in respect of the suit property, it is further seen that defendant no. l could not even permit the mortgage of the property to the allottees without the permission of defendant no. 2. It is observed by me from the evidence led and the exhibits that defendant no. 2 as a principle continued to hold al the rights in the Andrews Ganj project and defendant no. l's plea that they could make all the investment and disposal related decisions although not proved any where in the evidence led even if the contentions are admitted then even it implies that defendant no. I could only make decisions related to disposal of the properties and for investment of any surplus funds if any held by defendant no. I on behalf of defendant no. 2 in respect of the money realized from the Andrews Ganj Project. The submission of defendant no. l that as per lease they were given authority to make decisions for disposal and investments in respect of the community center at Andrews Ganj as per perpetual lease which is effective from 1.11.1990, the submission of defendant no. I are not sustainable in the eyes of law as the lease has been executed much after cancellation, and much after the alleged due dates of installment which cannot be made applicable to plaintiff's case just because it has been written that it is effective from I.11.1990. In view of the above discussions and conclusions it is held that it is admitted by defendant no. I and defendant no. 2 Suit No.:1026/06/97 Page:157/228 that no permission was obtained by defendant no. I from defendant no. 2 in regard to cancellation of the allotment of the plaintiff but from documents it is definitely proved that the permission/approval was obtained by defendant no. I of defendant no. 2 before the allotment was made to plaintiff. In view of the above, I conclude that defendant no. I is an agent of defendant no. 2, defendant no. I was given the said land under Govt. Grant Act and that defendant no. I was to take permission of defendant no. 2 before allotments, permission to mortgage, any extension of payment and as well as cancellation of allotments.

I decide the issue no. 8 in favour of plaintiff and against defendants. Issue No. 10 Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD.

Issue No. 10 to 14 are taken up early and issue No. 9 is decided in last.

1). The onus of proving this issue was on defendants, they have not produced any evidence to support their case. Defendant no. I submitted that the plaintiff herein is seeking declaration in respect of letter dated 02.05.1996 which pertains to cancellation of the allotment of immovable property at price of Rs. 78,10,00,000/, the plaintiff has valued the suit for the purpose of court fee and jurisdiction at Rs. 1,05,000/ only and has paid a nominal amount of Rs. 3,368/ as court fees. It is further submitted by defendant no. I that through present suit the plaintiff is not only claiming the relief of declaration, but in substance, is also seeking to enforce agreement alleged to have been entered into between the parties. Defendant no. I has submitted that plaintiff is liable to pay a proper court fee on the sum of Rs. 78,10,00,000/, that even otherwise valuation is absolutely arbitrary and is without any basis. It is further submitted by defendant no. I that it Suit No.:1026/06/97 Page:158/228 is not the case of the Plaintiff that there is no consequential or further relief which is available to it, that the plaintiff itself first sought consequential relief of possession but later abandoned the consequential relief on account of its inability to pay the relative court fee which inability does not itself make the suit for mere declaration maintainable. It is submitted by defendant no. I that this Court has no jurisdiction to entertain or try this suit as thc subject matter of the suit is much beyond the pecuniary jurisdiction of this Court, that the letter of allotment dated 31st October, 1994 in favour of the Plaintiff was for the hotel site Andrews Ganj, Delhi for a consideration of Rs. 64,10,00,000/ (Rupees Sixty Four Crores and Ten Lacs only) and additional Rs. 14,00,00,000/ (Rupees Fourteen Crores only) for car parking space, i.e. a total consideration of Rs. 78,10,00,000/ (Rupees Seventy Eight Crores and Ten Lacs only), that the said letter of allotment was cancelled vide letter dated 2nd May, 1996 by which the first installment of Rs. 25,64,00,000/ (Rupees Twenty Five Crores and Sixty Four lacs only) and Rs. 1,40,00,000/ (Rupees One Crore and forty only) i.e. Rs. 27,04,00,000/ (Rupees Twenty Seven Crores and Four Lacs only) has been forfeited. On the other side plaintiff has submitted that in the present suit plaintiff has only sought a declaration without any consequential relief as no further relief is required if the declaration is granted as claimed in the present suit, that plaintiff had abandoned the unnecessary reliefs claimed earlier which could have not been granted by this Court in the circumstances and facts of the case, that since now the suit is only for a declaration and to obtain a declaratory decree where no consequential relief is prayed, the suit should be treated as falling under Article 17, Schedule II of the Act. It is submitted by plaintiff that Article 17 of Schedule II of the Court Fees Act which is applicable to the present suit: Plaint or memorandum of appeal in each of the following suits: (iii) to obtain a declaratory decree where no consequential relief is prayed, the third column prescribes the fixed fee payable, that the fixed fee Suit No.:1026/06/97 Page:159/228 is payable under this article only when the suit is for a declaratory decree without any prayer for consequential relief. It is further submitted by plaintiff that on comparison of section 7(iv)(c) and Article 17 of Schedule II item (iii) of Court Fee Act, when plaintiff wants only a declaratory decree and have not prayed for any consequential relief the case squarely false within item (iii) of Article 17 of the Second Schedule. That Section 7(iv)(c) deals with the suit where a consequential relief is prayed along with a declaratory decree, that this subclause speaks of "consequential relief' whereas the proviso to Section 34 of the Specific Relief Act 1963 speaks of "further relief', that the provision that is therefore applicable to the present suit is Schedule II, 17A (1) which applies to a suit "to obtain a declaratory decree where no consequential relief is prayed", therefore plaintiff has fixed the value of the suit accordingly and also for the purposes of jurisdiction. It is submitted by plaintiff that it is seeking declaration in respect of letter dated 2.5.1996 as illegal, null & void and as such the value of property is of no consequence, that the plaintiff has valued the suit correctly for the purposes of court fee and jurisdiction at Rs. 1,05,000/ and has paid the correct amount of court fee., that the suit has been correctly valued, that the subject matter of the suit cannot be valued in terms of money and the plaintiff is entitled to value it at its own terms and need not be valued on market value since the suit is only a declaration suit, that this Court has jurisdiction to entertain the suit and the court fee fixed is sufficient. Plaintiff has relied upon various authorities of all High Courts and Apex Court submitting that in all these decisions it has been held that once the suit is for declaratory decree where no consequential relief is prayed the question of court fees falls under Article 17 clause (iii) ScheduleII of the Court Fee Act, 1870, accordingly the suit has been properly valued by plaintiff for the purposes of court fee and jurisdiction as plaintiff has claimed a declaratory relief only as no further relief is required neither any consequential relief is required by Suit No.:1026/06/97 Page:160/228 plaintiff than the declaration claimed. The plaintiff placed reliance on number of judgment discussed ahead. It is settled law that for deciding the question relating to the amount of Courtfees payable on a plaint, not only have the averments in the plaint alone to be taken into account but the said allegations are to be assumed to be correct. Decision on the question of Courtfees payable on a plaint can neither depend on the pleas raised in defence nor on the maintainability of the suit as framed or even upon the assumption that Court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed. The Court has to take the plaint as it is without omitting anything material therefrom and without reading into it by implication what is not stated therein.

2). Relevant part of Section 7(iv)(c) of the Courtfees Act of 187O, as amended by the Court Fees (Punjab Amendment) Act, 1979 (Punjab Act 9 of 1979), as extended to the Union Territory of Delhi, reads as follows: "7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) In suits ...

(c) to obtain a declaratory decree or order, where consequential relief is prayed.

according to the amount at which the relief sought is valued in the plaint or memorandum of appeal In all such suits the plaintiff shall state the amount at which he values the relief sought provided that the minimum courtfee in each case shall be thirteen rupees:

Provided further that in suits coming under Subclause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this Suit No.:1026/06/97 Page:161/228 section".

Article 17, clause (iii), Schedule II of the Court Fees Act (Vll of 1870):17. Plaint or memorandum of appeal in each of the following suits:1 II III. To obtain a declaratory decree where no consequential relief is prayed ....Ten rupees. A comparative study of the above mentioned two provisions of the (lourtfees Act shows that the decision of the point mooted before me would ultimately depend upon a finding on the question whether "consequential relief is prayed" for in the plaint of this suit or not? If the plaintiff wants only a declaratory decree and have not prayed for any consequential relief the case would squarely fall within item

(iii) of Article 17 of the Second Schedule. If on the contrary it can be held that consequential relief has in fact been prayed for by the plaintiffs, ad valorem court tees would have to be paid by them under Section 7(iv) (c) & (v) of the Act.

3). Section 7(iv) (c) & (v) deals with the suit where a consequential relief is prayed along with a declaratory decree. It would be seen that this subclause speaks of "consequential relief" whereas the proviso to Section 34 of the Specific Relief Act 1963 speaks of "further relief' . The expression "further relief' as used in the Specific Relief Act refers to "the legal character" or a right as to any property which any person is entitled to and whose title to such character or right any person denies or is interested in denying. It must, therefore, be a relief appropriate to and consequent on the right or title asserted and not merely auxiliary relief. The "further relief' must arise from the cause of action on which the declaratory suit is based. "Consequential relief' or "further relief' means such relief which flows directly from the declaration sought for. However, the operation of Subclause (c) of Clause (iv) of Section 7 of the Courtfees Act is confined to those cases where a Suit No.:1026/06/97 Page:162/228 "consequential relief" is claimed in addition to that of declaration. Every consequential relief would therefore, be "further relief'. But there may be other kinds of reliefs which may be granted as "further reliefs" but they may not be "consequential". No relief is consequential to a declaration unless it cannot be granted without declaration. What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading s. 7(iv) of the Act along with s. 8 of the Suits Valuation Act. This later section provides that, where in any suits other than those referred to in Court Fees Act s. 7 para. V, Vl and IX para X clause (d) court fees are payable ad valorem under the Act, the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under s. 7, subs. (iv) of the Act are concerned, s. 8 of the Suits Valuation Act provides that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of s. 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court fees and that is natural enough. The computation of court fees in suits falling under s. 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court fees, that determines the value for jurisdiction. The value for court fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court fees stated by the plaintiff that is of primary importance. It is from this value that the value for Jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and to vice versa, similar view has been taken in AIR1958SC245 S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm.

Suit No.:1026/06/97 Page:163/228 Ramanathan Chettiar. Under Section 4 of the Suits Valuation Act, the plaintiff is not entitled to put a higher value on the suit than what is covered by his interest in the litigation. Sections 4 and 6 of the Courtfees Act are the charging provisions.

They provide that no document of any kind specified in the first or second schedule shall be filed in any court unless the courtfee prescribed therefor in either Schedule has been paid. The first Schedule fixes the scale of ad valorum fees; the second Schedule prescribes fixed fees. Whenever there is a dispute about the quantum of courtfee, the Court should first ascertain whether the first or the second schedule applies to the plaint. If the second schedule applies, there is no further head to bother. But if the first Schedule applies, then the Court has to ascertain the "value of the subjectmatter in dispute". These words occur in Article I of Schedule I. For this purpose the Court should refer to Section 7 which provides for various modes of computing this value. The real question, therefore, to be decided is, whether the suit is governed by Section 7, Clause (iv) (c) or by Schedule II, Article 17A (1) of Act. The answer must in my opinion depend upon the relief which the plaintiff prays for because Courtfee must be determined with reference to the prayer contained in the plaint. Maclean, C. J. seems, with respect, to have stated the law correctly on this point in his judgment in Zinnatunnissa Khatun v. Girindranath Mukherji ILR (1903) C 788: "The safest course in these cases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success. " if this test is applied, the present suit has been properly valued.

4). I do not think that a litigant can be accused of having evaded the Court Fees Act it he asks for a relief to which he is entitled by law on the facts stated in the plaint. The grievance of the State, as stated above, is no more than this that he preferred a cheaper relief The proper remedy for the State is to abolish the cheaper Suit No.:1026/06/97 Page:164/228 relief altogether and not to make the litigant pay for something which he never asked for.

In AIR1931A11369 Radha Krishna Vs. Ram Narain and Ors. it was held that plaint as amended was sufficiently stamped and observed in para 23 that if "the plaintiff asks for a mere declaration, he studiously avoids asking for any consequential relief, the suit as framed therefore is clearly "to obtain a declaratory decree where no consequential relief is prayed." Fiscal statutes must be strictly construed If the plaintiff chooses to take the risk of asking for a mere declaration without consequential relief he is, in our opinion at liberty to do so under Article 17, (iii) upon payment of a fixed courtfee of Rs. 10". When he has carefully refrained from asking for consequential relief I do not consider that he should neverthe less be deemed to have asked for consequential relief This would be doing violence to the language of Section 7, (iv) (c). Shrimant Sayajirao v. Smith [18961 20 Bom. 736 is a clear authority in the plaintiffs favour. It was held that a suit in which the only prayer is for a declaration that 'a decree was null and void is a suit for a declaratory decree without consequential relief and Article 17

(iii) is applicable. This case is on all force applies to present case. In AIR1924Call83 Idol Sri Sri Gokul Nath Jiu Vs. New Birbhum Coal Co. Ltd. it has been observed that Article 17 of Schedule II of the Court Fees Act runs thus:

Plaint or memorandum of appeal in each of the following suits: (iii) to obtain a declaratory decree where no consequential relief is prayed. The third column prescribes the fixed fee payable. The fixed fee is payable under this article only when the suit is for a declaratory decree without any prayer for consequential relief. I have only to see whether it is a memorandum of appeal in a suit to obtain a declaratory decree where no consequential relief is prayed. I think, it is such a suit. Under the circumstances it seems to me, the Courtfee paid is sufficient according Suit No.:1026/06/97 Page:165/228 to the provisions of Schedule II, Article 17(iii) of the Court Fees Act. In 1924 875nd. Cas.660 Venkata Ramani Aiyar and Anr.Vs. M. Narayanaswami Aiyar and Ors. it has been concluded in para 5 that it is not logical to say that the relief is not properly valued because the plaint does not ask for an appropriate remedy. If the plaintiff is bound to ask both for a declaration and the setting aside of a document but prays merely for a declaration, the suit must be treated for purposes of Courtfees as one for declaration. The matter is concluded by authority and so far as the present point is concerned, whichever line of argument is accepted the same result follows. It is not for the Court to say that the plaintiff should have framed his plaint differently, and, if he had done so, a higher Court fee would become payable and therefore the plaint before the Court should be treated as containing a prayer which it does not in truth contain.

5). Further reliance is placed on AIR1933A11488 HC OF ALLAHABAD Sri Krishna Chandra Vs. Mahabir Prasad and Ors. wherein it has been observed in para 8 that there is also no' doubt that there is a long course of decisions in this Court in which it has been laid down consistently, and over and over again, that where nothing more than a mere declaration is sought for, the suit is one for obtaining a declaratory decree and no ad valorem courtfee for such a relief can be charged. AlR1949Nag37, HC OF NAGPUR Pandurang Mangal and Ors. Vs. Bhojalu Usanna and Ors. It has been held in para 6 & 11 that the weight of authority is in favour of the view that where the plaintiff seeks a declaration but does not sue for consequential relief, or it is not necessary for him to ask for consequential relief, the courtfee payable is under Article 17(iii), Schedule 2, Courtfees Act, 1870, and not under Section 7(iv)(e) thereof and it was concluded that if Courtfees Act is a fiscal enactment and has, therefore to be construed strictly and any ambiguity or doubt arising out of its interpretation has to be resolved in favour of the subject.

Suit No.:1026/06/97 Page:166/228 In AIR1958SC245 S.Rm.Ar.S.Sp. Sathappa Chettiar Vs. S.Rm.Ar.Rm. Ramanathan Chettiar Apex Court has concluded in para 15 that once the plaintiff exercises his option and values his claim for the purpose of court fees, that determines the value for jurisdiction. The value for court fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court fees stated by the plaintiff that is of primary importance. It is from this value that the value for Jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and to vice versa. In AIR1970A11488 Chief Inspector of Stamps, U.P., Allahabad Vs. Mahanth Laxmi Narain and Ors. it has been concluded in para 8 that if a declaratory relief alone has been prayed, for the court cannot superadd a consequential relief which it thinks the plaintiff ought to have prayed for and treat it as a consequential relief Courtfee has to be determined on the relief as prayed for in the suit The question of the applicability of Section 7(iv)(c) of the original Act or of Section 7(iv)(a) of the amended Act arises only when a declaratory relief and another relief have been asked for either as one composite relief or as two distinct reliefs. The judgment of the Supreme Court which is nearest to the point for consideration was given in the case of Nemi Chand v. Edward Mills Co. Ltd. 1953 SCR 197: AIR 1953 SC 28, "In which one of the questions related to the amount of court fee payable by a plaintiff who, at the appeal stage, relinquished his consequential relief and confined himself to a prayer for a declaratory relief. The Supreme Court reversed the decision of Judicial Commissioner Ajmer and held that had no jurisdiction to demand additional fee on the ground that, if the second prayer was eliminated from the suit, it would be liable to be dismissed under the proviso to Section 42 of the Specific Relief Act. Thus by implication, the Supreme Court rejected the argument that, in computing the court fee the Court should consider the ultimate Suit No.:1026/06/97 Page:167/228 effect of a declaratory relief or the benefit which will accrue to the plaintiff. It is always open to the appellant in an appeal to give up a portion of his claim and to restrict it. It Is further open to him, unless the relief is of such a nature that it cannot be split up, to relinquish a part of the claim and to bring it within the amount of courtfee already paid." Relying upon Apex Court's Judgement of Nemi Chand & Edward Mills Co. Ltd. it was held in AIR 1967 P&H 263 Jai Krishna Das & Ors Vs. Babu Ram & Ors. that "It is significant to note that the Supreme Court has authoritatively held in its judgment Nemi Chand & Edward Mills Co. Ltd that "the relief claimed in the memorandum of appeal determines the value of the appeal for purposes of courtfees." What applies to appeals applies fully in this regard to suits and the question whether Section 7(iv) (c) or Article 17 of Schedule II of the Court Fees Act applies must be determined according to the relief actually claimed in the plaint in a particular case and not on what relief the plaintiff should ask for in order to succeed. The question whether the suit would fail on account of the omission to ask for consequential relief is a question relating to the merits of the controversy and not relating to the payment of courtfees on the plaint as filed in Court. It is not open to Courts to import into the plaint or to read into it any relief which has not been asked for by the plaintiff only in order to levy higher courtfees. In my view in the present case, it is not alleged by defendants that the plaintiff has made any false allegation in the plaint or there has been any attempt to disguise the relief prayed for. Defendants have not contented that plaintiff is is not entitled to a declaratory relief on the allegations made in the plaint. Defendants grievance is that the relief will have ultimate effects to the benefit of the plaintiff. In other words, Govts. claim is no more than that the litigant thinks that the declaratory relief, which is cheaper from the point of view of court fee, will suffice for has purposes. I do not see how the State can object to this attitude." The same view has been taken in para 7 by High Court of Allahabad in AIR1960A11688, Suit No.:1026/06/97 Page:168/228 Smt. Bhagwan Dei Vs. Firm Het Ram Sureshchandra and Ors. Plaintiff has further contended that the safest course in these cases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success. It may very well be that as the result of declaring the cancellation letter as null & void, some ulterior benefit may directly or indirectly flow to the plaintiff. But court has to look at is what plaintiff asks for by his plaint. It is clear that plaintiff in the plaint has only asked for is a declaratory decree and plaintiff has not asked for any consequential relief and that it is not possible for him to seek any further relief in the declaration sought for.

5). In my view from the above rulings the following propositions appear to be well established:

(a) That the provisions of the Courtfees Act should be construed strictly and in favour of the subject, bearing in mind always that the object of the Act is not to arm a litigant with a weapon to harass his opponent.

b) That the amount of court fee payable should be determined on the allegations of the plaintiff in the plaint as to the cause of action and the reliefs and not on what is pleaded by the defendant in his pleadings; it is however open to the Court for this purpose to look to the substance and not merely to the form of the plaint.

In my view the submissions of defendant no. I that the Courtfee payable on the suit should be calculated upon the value of the subjectmatter in dispute and ad valorem courtfee should be paid is also not sustainable in view of the various decisions discussed above. In my view under Schedule I, Article I of the Act is for the purpose of determining the amount of courtfee payable after the pecuniary valuation of the suit or appeal is determined. The pecuniary valuation is determined by reference to Section 7 and by finding out under which of the clauses Suit No.:1026/06/97 Page:169/228 in that section the particular plaint or memorandum of appeal would come and from the above weighty authorities the suggestions of defendant no. I that section 7

(iv)(c) is applicable is not sustainable since section 7(iv)(c) applies if the relief asked for is declaratory decree plus consequential relief in this case it cannot be said reading the plaint and the prayer that the plaint prays for any consequential relief. In my opinion the arguments of defendant are not convincing enough to entitle me to alter the prevailing practice or to go against the weight of authorities of all High Courts & Apex Court cited by plaintiff.

The weight of authorities is in favour of the view that where the plaintiff seeks a declaration but does not sue for consequential relief, or it is not necessary for him to ask for consequential relief, the courtfee payable is under Article 17(iii), Schedule 2, Courtfees Act, 1870, and not under Section 7(iv)(c) thereof The courtfee paid in this case is proper and accordingly section 8 of the suit Valuation Act is not applicable to the present suit since the present suit does not fall under section 7 of the Court Fee Act as section 8 is only applicable to the suits falling under section 7 of the Court Fee Act. The provision that is therefore applicable to the present suit is Schedule II, 17A (1) which applies to a suit "to obtain a declaratory decree where no consequential relief is prayed." I hold accordingly that, in the present suit the value for the purposes of court fees has been correctly assessed as it is a suit for declaration without any consequential relief and plaintiff is free to value its declaration suit at its own which in the present case plaintiff has valued the declaration at Rs. 1,05,000/ and accordingly the value for the purpose of jurisdiction is, consequently Rs, 1,05,000/, the suit has been properly valued for the purpose of court fee and jurisdiction. The arguments of defendant that Hon'ble High Court vide order dated 2.11.06 ordered Suit No.:1026/06/97 Page:170/228 the plaintiff to pay the advolerum court fee cannot be brushed aside does not hold water as after the same the relief of possession/mandatory injunction was abandoned and permitted by Hon'ble High Court and the decision of maintainability was be left to be decided on merits. The earlier observation of the Hon'ble High Court were at the initial stage and now the evidence has been led and now the case is decided on the merits after considering the evidence and documents duly proved on the record.

I therefore, decide this issue in favour of plaintiff and against defendants. Issue no. 11 Whether suit as framed is not maintainable? OPD.:

1) The onus for proving this issue was also on defendants, they have not produced any decisions to support their case that the suit as framed is not maintainable. Learned counsel for the plaintiff submitted that Section 34 of the Specific Relief Act is not exhaustive of the declaratory reliefs. Such reliefs, according to the learned counsel, can also be granted under the general law. The present relief claimed by the plaintiff, according to the learned counsel, may not fall strictly within the ambit of Section 34 of the Act and yet such a suit and particularly one arising out of commercial transactions is maintainable. Shri A.k. Singh, learned counsel for the defendant no. I, on the other hand, contends that even if a declaratory relief could be granted apart from Section 34 of the Act, the scope is very limited. It was argued by plaintiff that if such a declaration does not satisfy the requirements of 'legal right to property' so as to attract the provisions of Section 34 of the Specific Relief Act, 1963, such a declaration can be sought and granted in exercise of the ordinary civil jurisdiction of Civil Court by virtue of Section 9 of the Code of Civil Procedure. In this connection it was further argued that the Supreme Court has, in Ramaraghava Suit No.:1026/06/97 Page:171/228 Reddy v. Seshu Reddy AIR1967SC436 ruled that Section 42 of the Specific Relief Act, 1877 is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the said Section. In view of the above, it is to be seen whether the case of the plaintiff falls within the ambit of Section 34 of the Specific Relief Act, 1963 and if not whether it would fall within the scope and ambit of the principles laid down by the Supreme Court in the said two decisions and the well settled principles laid down by the decisions while considering the provisions in Section 9 of the Code of Civil Procedure. The Supreme Court in Supreme General Films Exchange Ltd. v. Brijnath Singhji, AIR 1975 SC 1810 has observed that Section 42 cannot be deemed to be exhaustive of every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42. These authorities now well settle the law that Section 34 does not exhaust the field of declaratory decrees and the Courts do have jurisdiction to grant declarations apart from the terms of that section. In AIR1995SC2001, SCMost. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc., it has been held that one of the basic principles of law is that every right has a remedy. Ubi jus ibi remedied is the well known maxim. Every civil suit is cognizable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai v. Vijay Kumar and Ors. MANU/SC/0020/1974. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the Suit No.:1026/06/97 Page:172/228 ambit of the Section by use of the word 'shall' and the expression, all suits of a civil nature' unless 'expressly or impliedly barred'. It is thus wider in content. The word 'civil nature' is wider than the word 'civil proceeding'. The Section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature. There is yet another aspect of the matters that Section 9 debars only those suits which are expressly or impliedly barred. No such statutory bar could be pointed out. Therefore, the objection that the suit under Section 9 C.P.C. was not maintainable cannot be accepted.

2). It can at once be seen that a declaration falling outside Section 34 of the Specific Relief Act will be governed by the general provisions of the Civil P. C. like Section 9 or Order 7, Rule 7, in Supreme General Film Exchange Ltd. v. Brijnath Singhji, AIR 1975 SC 1810, the court held that "Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs." "An act to define and amend the law relating to certain kinds of specific relief it is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the Court in granting specific reliefs in a variety of fields. Even so the Act does not cover all specific reliefs conceivable. Its preceding enactment (Specific Relief Act, 1877) was held by the Courts in India as not exhaustive vide Ramdas Khatauu v. Atlas Mills. In Hungerford investment Trust Ltd. v. Haridas Mundhra and others, this Court observed that Specific Relief Act, 1963, is also not an exhaustive enactment and it does not consolidate the whole law on the subject." As the preamble would indicate, it is an Act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to specific relief in all its ramification."

In view of the above, I am of the view that the suit as framed is maintainable, Suit No.:1026/06/97 Page:173/228 however I will deal in regard to the maintainability of the suit under section 34 separately in issue no. 13.

Hence I decide this issue in favour of plaintiff and against defendants. Issue No. 12 Whether the suit of plaintiff is barred by the provisions contained u/o 2 Rule 2 CPC? OPD.:

1) The onus of proving this issue was on defendants, they have not produced any decisions to support their case. They have taken an objection that the suit is an abuse of the process, the Plaintiff had earlier filed a suit before the Hon'ble High Court of Delhi being suit no. 275 of 1996, in the said suit the Plaintiff claimed a decree of declaration that the dates of payment of second and third installments under letter of allotment dated 31 October, 1994 be deemed to be extended until HUDCO performed its alleged obligations under Clause 5(vi) and 5(ix) of the said allotment letter and a further prayed for permanent injunction restraining HUDCO from canceling allotment letter dated 31 October, 1994. Defendants in their written statement have contended that the issues in the said suit no. 275/1996 are in sum and substance the same as the have been raised by the Plaintiff in the present suit against Defendant no. I and cannot be reagitated. Defendants further argued that the cause of action in the present suit is a successive claim under the letter of allotment dated 31 October, 1994 and therefore forms the same cause of action as in the previous suit. The present suit is therefore barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908. Defendant no. I in their written statement opposed the present suit with the plea that the issues raised in the para 6 of the plaint in general are identical to the issues raised by the Plaintiff in Suit No. 275 of 1996 filed before the Hon'ble High Court of Delhi. Defendants further contested the plaint that the amount had been forfeited and letter of allotment being cancelled Suit No.:1026/06/97 Page:174/228 which was the subject matter of the suit being suit No. 275 of 1996 filed before the Hon'ble High Court of Delhi and the facts and circumstances are the same.

2) Plaintiff has contended as follows: (i) that in order to bring a case within the mischief of Order 2, Rule 2, Civil P.C., cause of action as alleged in the plaint in the previous suit must be shown to be identical with the cause of action as alleged in the plaint in the subsequent suit and the question whether or not the claims in the two suits are in respect of the same cause of action for the purpose of attracting the bar of Order 2, Rule 2, Civil P.C., reference is permissible only to the allegations made in the plaint; (ii) that in any case when the claim in the previous suit was in respect of different cause of action from the one to which claim is made in the present suit and consequently Order 2, Rule 2 does not stand in the way of the maintainability of the present suit. Plaintiff has contended authorities for saying that whether or not the two suits are in respect of the same cause of action, the allegations in the plaint alone would be decisive, plaintiff has further contended that in order to apply the bar imposed by Order 2, Rule 2 (ii) to a suit, it is, therefore, necessary to find: (1) what was. the cause of action in respect of which the claim was made in the previous suit, (2) whether that cause of action entitled the plaintiff to make also the claim either wholly or in part now made in the present suit. If so, the claim in the present suit shall fail to the extent to which it could have been but was not made in the prior suit. Counsel for the plaintiff further submitted that the present suit of plaintiff is not hit by Order 2 Rule 2 of CPC as the earlier suit having been with drawn, the provision which applied is Order 23 Rule 1 of CPC and in such a case, the plaintiffs shall be precluded from instituting any fresh suit only if the subject matter or the claim is the same in the earlier suit. Earlier suit was prior to the cancellation dated 2.5.1996 and was for a declaration that the dates of 31.10.1995 & 31.1.1996 are deemed to be extended and decree for Suit No.:1026/06/97 Page:175/228 permanent injunction whereas the present suit is based on the later cause of action and due to consequences of the illegal and discriminations acts of the defendants.

3) Plaintiff has further relied upon In AIR 2007 Ker 12 K.S.E.B. Vs. Abraham in which High Court has relied upon the decision of Apex Court in " Dalip Singh v. Mehar Singh Rathee and Ors (2004)7SCC650 that the defendants having failed to produce the necessary materials and data to prove their contentions with regard to the availability of Order II Rule 2 of the Code of Civil Procedure, it cannot be said that the suits are hit by Rule 2 of Order II of the Code of Civil Procedures. Moreover, the earlier suit having been withdrawn, the provision which applied is Order XXIII Rule I of the Code of Civil Procedure and in such a case, the plaintiffs shall be precluded from instituting any fresh suit only if the subject matter or the claim is the same in the earlier suit. The claim put forward in the earlier suit is entirely different from the claim put forward in the present suits and the subject matter and cause of action are also different. Plaintiff submitted that Rule 1, Order 23, CPC empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subjectmatter of that suit on such terms as it thinks fit. For deciding that question court has to see whether the suit from which the present suit arises is in respect of the same subjectmatter that was in litigation in the previous suit. The expression "subjectmatter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right to the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subjectmatter of the second suit is the same as that in the previous suit The subject matter referred in Rule I order 23 CPC has been discussed by Apex Court in AIR 1970 SC 987 Vallabh Das Vs. Suit No.:1026/06/97 Page:176/228 Madan Lal & Ors. Plaintiff in support of its case submitted that it is admitted fact that in the present suit plaintiff has sought the declaration that cancellation letter dated 2.5.1996 is null & void, in the first suit the cause of action was the threat of cancellation. In the first case his cause of action arose on the day the demand of 2nd installment was raised through a letter dated 18.10.1995 at Mark DW1/E. Plaintiff has further submitted that the present suit is not between the same parties even as the previous suit was between plaintiff and defendant no. 1 only, the previous suit was withdrawn on account of substantial change in the nature of rights available to plaintiff That the reason for withdrawal of the earlier suit was because defendant no. 1 claimed the suit to be infructuous and because rights of plaintiff were materially changed in light of interest free extensions being granted to Ansals because part of the same car park basement was allotted to them which was unauthorized & needed to be compounded by MCD resultantly rights had accrued to plaintiff to challenge the cancellation letter as null & void, plaintiff would be precluded from instituting any fresh suit only if it is in respect of same subject matter based on same cause of action. That in the present case, the subject matter as well as the cause of action underwent material changes, consequent upon discriminatory treatment given by defendant no. I visavis Ansals Properties & Industries Ltd. Therefore the plaintiff was not precluded from filing a fresh suit when the subsequent cause of action arose on 2.5.1996 and also in Nov., 1996 when defendant no. I filed an application in suit no. 275/1996 for dismissal of the suit claiming that the suit has become infructuous, Ex. PWI/14. That the cause of action in the present suit does not correspond to the previous cause of action available to him at the time of filing of the earlier suit and the parties are also not same .

4) Plaintiff has relied upon the latest decision by Hon'ble Supreme Court in 2009 (2) BomCR2O, Shantaram S/o Deochand Shinde and Ors. Vs. Eknath S/o Suit No.:1026/06/97 Page:177/228 Deochand Shinde in which it has been held that "It is true that both these suits were between the same parties. It is also true that the plaintiff withdrew the suits unconditionally. The relevant record reveals that though the suits were withdrawn, yet, the withdrawal was on account of substantial change in the nature of rights available to him. A plain reading of above provision would make it manifest that the plaintiff would be precluded from instituting any fresh suit only if it is in respect of same subject matter based on same cause of action. In the present case, the subject matter as well as the cause of action underwent material changes, consequent upon implementation of the Consolidation Scheme. It is difficult, therefore, to say that the plaintiff is precluded from filing a fresh suit when the subsequent cause of action does not correspond to the previous cause of action available to him at the time of filing of the earlier suits (RCS No. 342/70 and RCS No. 465/73). The first appellate Court rightly held, therefore, that the suit was not barred."

5) The Cl. for plaintiff relied upon AIR 1990 MP 80 Smt. Indubai and Anr. Jawaharlal and Anr. has held that it is clear that rule does not apply when the right to relief in respect of which further suit is brought, did not exist at the time of the previous suit. In AIR1980A11277 Smt. Aziz Fatima Vs. Munshi Khan it has been concluded that the expression "cause of action means the "cause of action" for which the suit was brought. In order that the "cause of action" in two suits could be the same, it was necessary that the facts which entitled the plaintiff to the right claimed must not only be the same, but also that the infringement of his rights at the hands of the defendant must have arisen, in substance, out of the same transaction. The resulting test would be whether, in fact, the subsequent suit was founded on a "cause of action" distinct from that which was the foundation of the former suit. In AIR2007SC989 S. Nazeer Ahmed Vs. State Bank of Mysore and Ors. it has been observed that it is difficult to uphold a plea based on Order II Rule 2. If the Suit No.:1026/06/97 Page:178/228 appellant wanted to show that the causes of action were identical in the two suits, it was necessary for the appellant to have marked in evidence the earlier plaint and make out that there was a relinquishment of a relief by the plaintiff, without the leave of the court. On the scope of Order II Rule 2, the Privy Council in Payana Reena Saminatha and Anr. v. Pana Lana Palaniappa XLI Indian Appeals 142 has held that Order II Rule 2 is directed to securing an exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they may arise from the same transactions. In AIR1996SC2367 State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another Apex Court relied upon Sidramappa v. Rajashettv [1970] 3SCR319, it was held that where the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff s subsequent suit is not barred by Order 2 Rule 2". In AIR1990Kerl 112 Raman Ittiyathi and Ors. Vs. Pappy Bhaskaran and Ors. wherein it has been held that the real test is whether inclusion of the relief in the previous suit was not only possible, but also its inclusion was obligatory and not optional. What Order II, Rule I gives is a general rule of guidance without any compelling force and what R. 4 provides is only enabling. The precise cause of action for the previous suit will have to be established by the defendant. Unless there is identity of cause of action in both the suits the bar cannot apply. Even though a relief is ordinarily traceable to a cause of action, it cannot be a universal rule. The plea is a technical bar and it has to be proved satisfactorily and cannot be presumed. For that purpose, the defendant is bound to produce and prove the pleadings in the previous suit. By cause of action in the previous suit is meant the facts which the plaintiff had then alleged to support the right to the relief that he claimed. If the relief claimed in the subsequent suit was not available on the facts alleged to support the right to relief, Suit No.:1026/06/97 Page:179/228 namely the cause of action, in the previous suit, there is no bar under Order II, Rule

2. In other words, the question is whether the relief in respect of which it was available on the cause of action pleaded in the earlier suit. In (1987)1 MLJ 369 Dominic Ammal and Anr. Vs. Muthuswamy and Anr. it has been held that Cause of action has got a factual protency for the claims of a plaintiff as a foundation for the relief which the plaintiff claims, he puts forth and he is bound to put forth the bundle of facts which go to constitute the cause of action for the suit. The Court is not bound to find out the cause of action for the plaintiff from the facts pleaded by the defendant. The moot question that should be posed for the purpose of Order 2, Rule 2 of the Code is, "Could and should the plaintiff have asked for the particular relief or reliefs on the basis of the bundle of facts which go to constitute the cause of action for the earlier suit which he has projected therein?". As pointed out by the Privy Council, the cause of action has no relation whatever to the defence that may be set up by the defendant. The ultimate finding rendered by the Court in the earlier suit is also not decisive to find out as to whether a plaintiff omitted to sue for a particular relief on the cause of action which he has disclosed in his suit. If, on the basis of the allegations in the plaint in the first suit, which go to form the cause of action for that suit, the plaintiff ought to have asked for particular relief or reliefs and if he omits to ask for them, he will be precluded from filing a subsequent suit for such reliefs."

"What could not be asked for on the disclosed allegations cannot come within the mischief of the rule in Order 2, Rule 2 of the Code. Neither the defendant nor the Court could make or give a cause of action for the plaintiff. The plaint allegations determine the cause of action for the plaintiff. The pronouncements are categoric when they countenance that the cause of action refers entirely to the grounds set out in the plaint as the cause of action or in other words, to the media or the basis upon which the plaintiff asks the Court to arrive at a conclusion in his favour. One useful test to find out as to whether the cause of action in the later suit is the same as that in Suit No.:1026/06/97 Page:180/228 the earlier suit, is to see whether the same evidence will sustain both suits; and due regard must be given to the facts alleged in the two suits and not to the facts as found by the Court in the earlier suit. In AIR2004SC1761 Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Ors. wherein Apex Court has held that the Courts below were, therefore, justified in holding that Order II Rule 2 of the Code had no application to the facts of the case since the cause of action in the previous suit and the present suit were different and consequently, the decree passed in favour of the plaintiffs for recovery of possession was affirmed and the appeal to that extent was dismissed". "In order that a plea of a bar Order 2, Rule 2(3) Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning".

6) The position was again illuminatingly highlighted by Apex Court in Bengal Waterproof Limited v. Bombay waterproof Manufacturing Company and Anr. MANU/SC/0327/1997: AIRI 997SC 1398 .

Suit No.:1026/06/97 Page:181/228 As observed by the Privy Council in Pavana v. Pana Lana, the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohammad Khalil Khan v. Mahbub Ali Mian MANU/PR/0050/1948.

7) On resume of the aforesaid authorities, the law position that emerges is that (1) the plea that the suit is barred under Order 2, Rule 2 of the Code of Civil Procedure is highly technical plea and in order to attract the bar of other provisions, it is necessary that the cause of action for the subsequent suit is the same as was in the previous suit (2) that the suit was between same parties (3) the earlier suit must have been decided on merits (4) The earlier suit having been withdrawn, the contention of defendants that the present suit is hit by Order II Rule 2 of the Code of Civil Procedure would not be available to the defendants, since Rule I of Order XXIII comes into play and if the bar under Subrule (4) of Rule I of Order XXIII is not applicable, the maintainability of the present suit cannot be doubted. It is settled law that if there are different causes of action for the suits instituted, the second suit would not be barred. If the relief claimed in the subsequent suit was not available on the facts alleged to support the right to relief, namely the cause of action in the previous suit there is no bar under order 2 rule 2. In support of the plea that the cause of action of the two suits is one and the same, the defendant no. I has relied upon the typed copies of some interim orders in the earlier suit no. 275/1996, Mark DWI/G to DWI/J and copy of the suit filed on 1.2.1997 but defendant no. I has not taken any steps to prove the pleadings, namely the plaint and the written statement in the earlier suit, the copy of the written statement is also not filed. In the entire evidence defendants have not even Suit No.:1026/06/97 Page:182/228 confronted the suit no. 275/1996 from plaintiff in his cross examination, the question asked by defendant no. 1 in cross examining plaintiff was that whether plaintiff filed suit no. 275/1996 on receipt of letter dated 31.1.1996 to which plaintiff admitted besides this no evidence has been led to prove the pleadings in the previous suit, even DWI in her cross examination admitted that she is not aware of the suit No. 275/1996. It is observed by me that admittedly the previous suit no. 275/1996 was filed by plaintiff on 30.1.1996 and not on receipt of letter dated 31.1.1996 which has been issued by defendant no. 1 later after the suit was filed. The counsel for defendant no. I relied upon para 24 of the previous suit no. 275/1996 and none other para could be shown to be identical to the present suit nor defendant No. I could show that the prayer of the previous suit are identical. I have gone through the copy of the suit filed by defendant no. I on 1.2.1997, none of the pleadings of the previous suit are the same as the present suit, nor the cause of action of the previous suit and the present are the same and defendant no. I has also only referred to para 24 of the previous suit which does not satisfy the conditions of the Order 2 Rule 2 CPC. The contentions of defendant no. 1 that plaintiff had not informed Hon'ble High Court in suit no. 275/1996 that the present suit has been filed is also not tenable as plaintiff has proved that he filed the application on 30.1.1997 to withdraw the suit no. 275/1996 which has even been observed in order dated 17.3.1997 of this court but defendant no. I itself had opposed the withdrawal and for the same reason suit could be withdrawn on 22.4.1997. Thus I conclude that contentions of defendant no. I that plaintiff let the previous suit go on till 22.4.1997 before Hon'ble High Court without informing of the present suit is also misplaced. Regarding deposit of Rs. 15.00 crores and stay order being vacated by Hon'ble High Court, defendant have not been able to prove any thing except the typed copies of the orders passed in suit no. 275/96, it seems defendant no. I although claimed that they waited till 2.5.1996 but it seems defendant no. 1 hurriedly cancelled the allotment of plaintiff without performing their Suit No.:1026/06/97 Page:183/228 reciprocal obligations. Plaintiffin its evidence on cross examining DWI has proved that he had deposited Rs. 35 crores with the Registrar, High Court of Delhi before Hon'ble High Court qua some other matter involving some other property allotted by defendant No. 1 which defendant no. 1 refused to accept, in my view the plaintiff's contentions that he could have not deposited another Rs. 15.00 crores have some force. However on going through the copy of the plaint although not exhibited nor proved, I am of the view that both the suits are not identical and are not based on the same cause of action, plaintiff has established and proved that the present suit is filed on the subsequent cause of action, the essential requirement for the applicability of Order 2 Rule 2, namely the identity of causes of action in the previous suit and the subsequent suit has not been established by defendants. This apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff even before the issues were framed in suit no. 275/1996. Admittedly the suit was not between the same parties as the suit no. 275/1996 was only against defendant no. I and the present suit originally filed was against MCD and defendant no. 2 (Hudco) now defendant no. I further Govt. has been impleaded as defendant no. 2. The relief claimed in the present suit was not available at the time the previous suit was filed. In the present case plaintiff was not aware of the right in the present suit and the right of challenging the cancellation was not possessed by plaintiff since such right did not exist when first suit was filed. A separate issue no. 14 has been framed whether the suit for plaintiff is barred under the provisions contained in Order 23 Rule 1 CPC which I shall decide separately. In my view plaintiff has rightly relied upon AIR1980A11277 Smt. Aziz Fatima Vs. Munshi Khan in which High Court has held that "If at the date of the former suit the plaintiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not Suit No.:1026/06/97 Page:184/228 know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim", within the meaning of Order 2, Rule 2, Civil P. C. See Amant Bibee v. Imdad Husain, (1885) 15 Ind App 106 at p. 112 (PC). The crux of the matter is presence or lack of awareness of the right at the time of first suit."

In my view from the evidence led by defendants and whatever documents have been produced, the cause of action for the former suit was based on an apprehension that the defendants were forcibly demanding the 2nd instalment, the cause of action for that suit was not on the premise that the allotment in fact had been illegally cancelled or needed the court's assistance to be restored. Therefore, the present suit being subsequent suit is based on a distinct cause of action not found in the former suit and hence I do not think that the suit is barred by Order 2 Rule 2(3) of the CPC. It may be that the subject matter of the suit is the very same property but the cause of action is distinct and so also the relief claimed in the subsequent suit is not identical to the relief claimed in the previous suit. In my view a prayer for declaring the cancellation letter as null & void was impossible on the cause of action alleged in the previous suit. The same view has been taken by the Apex Court in AIR 1993 SC 1756 Shri Inacio Martins, Deceased through LRs Vs. Narayan Hari Naik and others. My observations are that in the present suit the cause of action is not the same, cause of action arose on 2.5.1996 when allotment was cancelled and further cause of action arose when defendant no. I filed an application in the earlier suit that suit has become infructuous be dismissed, plaintiff had the right to file a fresh suit challenging the cancellation letter as illegal, null and void besides plaintiff came to know of interest free extensions being granted to Ansals because car park was illegally constructed by defendant no. I which was not disclosed in the brochure that it did not have any Suit No.:1026/06/97 Page:185/228 sanctioned building plans and the same part of car park was also allotted to plaintiff and plaintiff who came to know of illegal structures in later part of 1996 and plaintiff came to know that revised layout plan had been submitted by defendant no. I to MCD without the approval of which no building plans of hotel could have been sanctioned. It has also been concluded by (Retd.) Chief Justice Sh. R.S. Pathak in respect of the suit property which was allotted to Leela Hotels Ltd. that defendant no. I had committed the breach by not disclosing the fact that revised layout plan was required to be approved by the authorities while the construction period of hotel was restricted to three years from the date of allotment and the plan including service plans were approved on 7.9.1999 much after 29 months of the allotment, the award given by (Retd.) Chief Justice Sh. R.S. Pathak has been upheld by all the superior Court. It is a settled law that mere identity of some of the issues in the two suits does not bring about an identity of the subject matter in the two suits, as observed in Rakhma Bai v. Mahadeo Narayan, I.L.R. 42 Bom. 1155 the expression "subject matter" in Order 23, Rule 1, CPC means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiffto the relief claimed by him." Apex Court in AIR 1970 SC 987 Vallabh Das Vs. Madan Lal and Ors has observed that "We accept as correct the observations of Wallis C.J. in Singa Reddi v. Subba Reddi, I.L.R. 39 Mad. 987 that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit".

8) In view of the above, the submissions of defendant no. 1 that in the order dated 17.3.1997 this Court in para no. 58 and 60 has also observed that the proper course Suit No.:1026/06/97 Page:186/228 for the plaintiff was to amend the suit no. 275/1996 instead of filing present suit, thus the relief claimed in the present suit should have been taken upon in prior suit no. 275/1996 by way of amendment and not in present suit are not sustainable. I have already dealt above with whether the observations in order dated 17.3.1997 can be considered now when the entire evidence and the trial has been led and the order dated 17.3.1997 was passed without any evidence led by any of the parties, the said order was an interim order and did not finally decided the issues/questions raised, nor laid down by any principal of law. I conclude that the cause of action in the previous suit and the present suit is not identical and relief claimed in the present suit could have not been given in the previous suit on the basis, of the pleadings made in the plaint. Defendant no. I has not been able to show me the similar/identical averments in the present suit and the previous suit, therefore, the argument of defendants that the present suit is not maintainable has no merits. On a consideration of the facts of these two suits and the law on the subject I arrive at the finding that this suit is not barred under Order 2, Rule 2 C.P.C. On a consideration of the distinctive features in the two suits and the law on the subject as stated above I am convinced that the said suit is not barred by order 2 rule 2".

I therefore, decide this issue in favour of plaintiff and against defendants. Issue no. 13 Whether the suit of plaintiff is barred by provisions contained under the Specific Relief Act ? OPD. :

1) One of the point urged by counsel for defendant no. I is about the suit being not maintainable because there is no prayer for any consequential relief as such the plaintiff is not entitled to relief of declaration due to proviso of section 34 of The Specific Relief Act since plaintiff has only sought relief that a decree of declaration Suit No.:1026/06/97 Page:187/228 be passed whereby declaring the letter (impugned) dated 2.5.1996 as null and void. According to Ld. Counsel Mr. A.K. Singh, the relief asked for mandatory injunction to deliver the possession of property to the plaintiff and restrain them to reallot the suit site has been abandoned by plaintiff and the suit has been amended for simplicitor declaration and therefore the Counsel for defendant no. I submitted that this suit should be dismissed. In the written statement defendant no. 1 has contended that the plaintiffs are in effect sued for treating the cancellation of allotment as null & void and the mere fact that the plaintiffs have chosen to disguise the relief in a declaratory form cannot alter its real nature, that a consequential relief as in the shape of mandatory injunction to deliver the possession of property to the plaintiff earlier claimed from inception of the suit admittedly was open to the plaintiff and hence a suit for a mere declaration is incompetent. Defendant no. 1 has submitted that the relief that could be claimed by plaintiff could have been only of specific performance of the terms of allotment letter dated 31.10.1994 and the delivery of possession of hotel site or for refund/payment of the forfeited amount paid by plaintiff or in alternatively declaration with possession all of which have not been claimed although for the declaration claimed by plaintiff these consequential reliefs are necessary.

2). The main defence of defendant no. I is that the declaration suit is not maintainable without consequential relief besides the suit for declaration is not the right of plaintiff but it is discretion of the court and the court has to see the conduct of plaintiff and if conduct of plaintiff is malafide, no relief can be granted by this Court. That plaintiff had initially claimed in the plaint the entitlement for mandatory injunction for possession but the suit was amended due to plaintiff's inability to pay the court fees which debars this court to grant declaration. Defendant no. I further submitted that in para 264 of the affidavit filed by way of evidence, plaintiff has claimed praying that the decree be passed in favour of plaintiff company against the defendants declaring the cancellation letter dated Suit No.:1026/06/97 Page:188/228 2.5.1996 as illegal, null & void by putting the plaintiff in the same position as on 31.10.1994 and defendant no. 1 be directed to execute the agreement to sublease as per terms and conditions of allotment letter dated 31.10.1994 which is specific performance of the contract. Counsel for defendant no. 1 has submitted that as per the allegations of the plaintiff the defendant no. 1 has allegedly not complied with the terms and conditions of allotment letter and that defendant no. I has no intention to comply with the terms and conditions, thus it is evident that the specific performance of the terms and conditions of the allotment letter and handing over of the possession of the hotel site are essential consequential reliefs since in para 6 and para 11 of the plaint as well as para 6 and para 10 of the replication plaintiff has alleged that defendant no. 1 did not comply with its obligations, in alternative if the plaintiff wishes not to pursue the project then he should have prayed for recovery of the forfeited amount. Counsel for defendant no. 1 relied upon para 9 of their written statement that plaintiff being in breach of essential terms of allotment letter cannot seek a declaration that the letter of cancellation dated 2.5.1996 is null & void and that plaintiff has no right, title or interest whatsoever in the suit property. The counsel for defendant no. 1 further relied on para 6 & 7 of their written statement that there was no agreement with plaintiff of any nature whatsoever except the terms of allotment letter, that letter of allotment was cancelled in terms of order of Hon'ble High Court of Delhi dated 16.4.1996 and 17.5.1996. The counsel for defendant no. 1 argued that in para 31 of the affidavit of DW1 the evidence has been led that as per the clause 5 (viii) of the allotment letter dated 31st October, 1994 hotel site was purely, on a licence and no right, title or interest was created in the property and it is specifically mentioned in the said letter of allotment that upon fulfillment of the terms of the agreement to sublease including payment of all dues and obtaining of necessary approvals as required under Para 5(vi) of allotment letter, an agreement to sublease will be Suit No.:1026/06/97 Page:189/228 executed, hence, the question of seeking specific performance does not arise as no such relief can be granted in respect of a licence. The counsel for defendant no. I argued that this evidence of DWI has not been controverted by plaintiff and its stands proved that plaintiff was only a licencee, thus the essential consequential reliefs have not been sought by the plaintiff as such this suit is not maintainable. The main defence of defendant no. 1 is that there was no agreement to sell in fact binding on both the parties and that it was a mere allotment letter which stood cancelled due to non payment of second installment by plaintiff. It is urged by defendant no. 1 that the plaintiff had no legal title and no legal right in the property which would sustain a suit for a declaration. The point urged by counsel for the plaintiff is that even in the case of a declaratory suit flowing from the cancellation letter struck down as void must accrue to him and he must be deemed to be in a position identical to that existing prior to the passing of the order of termination of cancellation letter. Reliance for this proposition has been laid by plaintiff on Radha Ram v. Municipal Committee, Barnala, (1983) 85 P.L.R. 21.

3). In view of the above, there are five stands taken by defendant no. 1 that plaintiff should have claimed consequential relief which are not claimed by plaintiff (1) relief of possession (2) specific performance or (3) refund of amount (4) that conduct of plaintiff does not allow this Court to use its discretion to grant declaration without further relief and (5) Mere declaration as claimed is not enforceable against defendants. In view of these stands taken by defendant no.1, I would deal with each of them separately one by one but before dealing with these I would deal in detail with "Further Relief' under the proviso of Section 34 of Specific Relief Act. Plaintiff has relied upon various decisions in regard to "further relief" as given in the proviso of Section 34 of Specific Relief Act, claiming that he does not require any further relief than a declaration claimed in the suit :

AIR1973AP189, Dumpala Ramachandra Reddy Vs. | Dumpala Kanta Reddy and Suit No.:1026/06/97 Page:190/228 Ors. _431nd. Cas.25, (1917) H.C. of Madras Kanniammal alias Janakiammal minor by next Friend, G. Sundara Aiyar Vs. Sanka Krishnamurthi it has been held in para 2 that the meaning of the proviso is that as things stand at the time when the suit is brought the plaintiff should be entitled to further relief, which she omits to Claim, either because she does not want to pay the stamp duty or for any other reason, and that the proviso does not extend to cases where the plaintiff is not entitled to the further relief unless she does something further which she is not bound to do and which she may not be in a position to do, as, in this instance, to find the mortgage money. It was concluded that the further relief contemplated under section of Specific Relief Act means further relief arising from the cause of action on which the plaintiffs suit for declaration is based. Here the cause of action was the existence of a decree alleged to have been illegitimately obtained, by which the plaintiff was required to redeem a mortgage within a specified time. The cause of action for a redemption suit will be independent of the existence of the decree. It will simply be the fact that the property has been mortgaged. AIR1937Mad495 Chellammal and Ors. Vs. Aiyamperumal Kudumban and Ors., in para 4 the decision of the lower Court was held to be wrong because. 'Further relief in Section 42 does not mean every kind of relief that may be prayed for; what is contemplated is a relief arising from the cause of action on which the plaintiffs suit is based: Kanni Ammal v. Sankar Krishnamurthy AIR 1919 Mad

956. If the plaintiff by reason of the declaration he seeks and obtains, becomes entitled in some remote way to other reliefs, they are not so related to his cause of action, as to be properly termed 'further reliefs' within the meaning of the section. I do not think that this suit should fail on account of the fact that possession has not been prayed for. If the plaintiffs succeed in obtaining the reliefs they now seek, the former suit, O.S. No. 91 of 1924, will be revived and must be proceeded with. If they ultimately fail in that suit, they will not be entitled to possession by way of Suit No.:1026/06/97 Page:191/228 restitution. Moreover, the situation is complicated by the fact that possession has passed to defendant 4 who subsequent to the Courtsale, brought the property from the decreeholders (i.e., the Court auction purchasers) and so far as he is concerned, as regards obtaining possession, other questions may arise, such as his bona fides. I think it would be outside the scope of the present suit to raise questions of this sort, and I am, therefore, of the opinion that the decision of the lower Courts that the suit fails by reason of Section 42 is wrong. In AIR1975MP193 Santoshchandra and Ors. Vs. Smt. Gyansundarbai and Ors., in para 6 it was considered whether a suit for bare declaration is maintainable in the circumstances of the case. Proviso to Section 34 of the Specific Relief Act, 1963, lays down that no Court shall make any such declaration where the plaintiff being able to seek further relief than mere declaration of title, omits to do so. The object of this proviso is to avoid multiplicity of suits. Where the plaintiff is entitled to some consequential relief directly flowing from the right or title of which he seeks declaration in the suit, he must seek such relief along with the declaration. It is not open to him to seek a declaration in the first instance and a consequential relief at a later stage by 2 separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled as a natural consequence of the declaration. The plaintiff is not entitled to any consequential relief which directly is flowing from the declaration claimed in the suit, thus it was concluded that the relief must flow directly from the right or title of which plaintiff seeks declaration and that further relief which plaintiff is entitled as a natural consequence but plaintiff is not entitled to any consequential relief which directly flows from the declaration claimed. In AIR1992Delhill8 Sanjay Kaushish Vs. D.C. Kaushish and others, in para 37 High Court has relied upon Fariduddin Alimad v. Murtaza Ali, Khan AIR 1936 Oudh 67 wherein it was held that a suit for a mere declaration Suit No.:1026/06/97 Page:192/228 that a decree is absolutely illegal and void on certain grounds and is not binding on the plaintiffs is maintainable without any prayer for further relief. In AIR1998SC743 SC State of M.P. Vs. Mangilal Sharma, in para 5 & 6 Apex Court has concluded that it is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a Government servant throughout as if the order of termination of service never existed. It was not necessary for the respondent to seek relief of arrears of salary in a suit for declaration as he may be satisfied with a mere relief for declaration that he continues to be in service. Of course if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order 2 Rule 2 of the CPC. Since it is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. It was further held that the suit for mere declaration filed by the respondent plaintiff was maintainable.

4) In view of the above citations and considering the submissions of plaintiff as well as of defendants, the real point for decision by me is whether a suit of this nature is competent, I shall refer very briefly to the history of the legislation which resulted in the enactment of Section 34 of the Specific Relief Act as that will show what classes of cases the legislature intended to bring within its operation. The legal development of the declaratory action is important. Formerly it was the practice in the Court of Chancery not to make declaratory orders unaccompanied by any other relief But in exceptional cases the Court of Chancery allowed the subject to sue the Suit No.:1026/06/97 Page:193/228 Crown through the AttorneyGeneral and gave declaratory judgments in favour of the subject even in cases where it could not give full effect to its declaration. In 1852 the Court of Chancery Procedure Act was enacted and it was provided by s. 50 of that Act that no suit should be open to objection on the ground that a merely declaratory decree or order was sought thereby, and it would be lawful for the court to make binding declarations of right without granting consequential relief. By s. 19 of Act VI of 1854, s. 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts. With regard to courts other than the courts established by Charters the procedure was codified in India for the first time by the Civil Procedure Code, 1859, where the form of remedy under s. 19 of Act VI of 1854 was incorporated as s. 15 of that Act which stood as follows:

No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief ". In 1862 the provisions of the Civil Procedure Code of 1859 were extended to the courts established by Charters when the Supreme Courts were abolished and the present High Courts were established. In 1877 the Civil Procedure Code, 1859 was repealed and Civil Procedure Code of 1877 was enacted. The provision regarding declaratory relief was transferred to s. 42 of the Specific Relief Act which was passed in the same year which undoubtedly widened the scope of the remedy. This section of the Specific Relief Act, 1877 (old Act), has been replaced by Section 34 of the Specific Relief Act. 1963 (present Act). Under Section 42 of old Act the plaintiff had only to show that he has some legal character or some right to property, and that his opponent is either denying or interested in denying such legal character or title. The object of the section is really to perpetuate and strengthen testimony regarding the title of the plaintiff or right to the property so that adverse attacks upon it may not weaken it. The policy of the legislature is not Suit No.:1026/06/97 Page:194/228 only to secure if a cloud is cast upon his right to property he is entitled to seek the aid of the Court to dispel the cloud. I think that is a sufficient grievance which the Courts should remedy under Section 34 of the Specific Relief Act. From the above and the citations relied upon by both the parties and arguments the legal position on the scope of Section 34 of the Specific Relief Act, 1963 may be summed up thus:

Thus, Section 34 invests the Civil Court with discretion to entertain a suit for declaration of status or legal right to property. Any person entitled to any right as to any property may institute a suit against any one denying, or interested to deny, his such right to property. The Court, in such a case, may make a declaration, in exercise of its discretion, that he is so entitled although the plaintiff need not ask for any further relief.

The proviso to Section 34 makes it abundantly clear that the Court shall not make such declaration in favour of a plaintiff who has omitted to seek further relief than a mere declaration of title, if he is entitled to do so. The object of this section is obviously to provide a perpetual bulwark against adverse attacks on the right of the plaintiff to the property, where a cloud is cast upon it, and to prevent further litigation by removing the existing cause of controversy. It is convenient to refer to a few leading cases dealing with the scope of Section 42 of the old Specific Relief Act and section 34 of the new Specific Relief Act relied upon by both the parties which I shall do so in deciding the objections one by one of defendant no. 1. I have to examine the relief of declaration sought by plaintiff in the present suit in the light of fact admitted by defendant no. I in their written statement as well as arguments and evidence led that in the present case plaintiff is not entitled to actual physical possession unless sublease (sale deed) is executed and registered which Suit No.:1026/06/97 Page:195/228 can only be executed after receipt of two installments within two years and provided defendant no. I had perpetual lease in their own favour as in the absence of registered lease in their favour they cannot part with any right which they do not possess. It is further admitted by defendant no. 1 in their written statement and arguments that even entry to land on licence basis on receipt of Ist installment could only be given on execution of agreement to sell but agreement to sell was not executed because plaintiff did not get permission under Income Tax Act which as per defendant no. I was mandatory prior to execution of agreement to sell. Now the question is as per agreement to sell countersigned and accepted and relied upon by defendant no. 1 which is at Ex. DW 1/7 which clearly states that this proposed agreement to sell is to be executed by defendant no. I & defendant no. 2 with plaintiff and that as per clause it had to be/can be executed prior to obtaining the approval of Income Tax Act and ULCR Act although defendant no. 1 has claimed now in the suit that they are exempt under ULCR Act as per letter dated 16.6.1995 relying on Ex. DWI/R which I have already dealt with in deciding issue no. I & 2 that the claim of defendant no. 1 under this letter is false and knowingly that this letter does not pertain to exemption for permission in regard to with plaintiff of the suit property besides guideline no. I/132/76UCU does not exempt defendant no. I to take such permissions since car park basement is built and the claim that permission was to be obtained by transferee is also not maintainable as already concluded by me in deciding issue no. I & 2. Defendant no. I argued that it is really the proviso which came as a hindrance to the maintainability of the suit. The proviso uses the words "able to seek further relief'. It is well settled that object of the proviso to Section 34 of the Specific Relief Act is to prevent the multiplicity of the suit by preventing a person from getting a mere declaration of right in one suit and then later seeking the remedy without which the declaration would be useless. The words "further relief' referred to in the proviso mean a relief flowing directly Suit No.:1026/06/97 Page:196/228 and necessarily from the declaration sought, a relief appropriate to and necessarily consequent on the right or title asserted. As Section 34 of the Act intends to avoid the multiplicity of the suits, so if possible, plaintiffs must conclude all possible reliefs in a single suit. The words "able to seek further relief" mean that the plaintiffs must be in a position to seek further relief. If it is not possible for him to seek further relief, the proviso is not attracted (emphasized). The key to the proviso is that the plaintiff should be able to ask for a consequential relief then and there. In my opinion, the thrust of the words "being able to seek further relief' is firstly against the defendants. It is only when the plaintiff is able to seek further relief against the defendants that the proviso becomes applicable. The words under Section 34 are "further relief" and not 'other relief.' The term "further relief is meant not any other kind of relief but one which would complete the claim of the plaintiffs and not lead to a multiplicity of the suits. Further relief must flow necessarily from the relief of the declaration but if the relief is remote and is not connected with the cause of action then the plaintiff need not claim it. I am of the view that it cannot be said that the Court has no jurisdiction to entertain such a suit provided the requisite conditions specified in Section 34 of the Specific Relief Act, 1963 are satisfied. I am aware that the Court has to exercise the discretion vested in it judiciously but not arbitrarily. In view of the above decisions, I am of the view that further relief contemplated means further relief arising from the cause of action on which plaintiff's suit for declaration is based, here the cause of action is the illegal, cancellation of allotment, by which the plaintiff right to the allotment of the suit property has been alleged to be illegitimately taken away, there is no other cause of action, in the necessarily present suit plaintiff is not entitled to any title as no title is being asked for and there is no other relief claimed nor is there any further relief required by plaintiff and as such there is no incidental relief to the declaration sought for. Question is whether plaintiff is asking by way a declaration Suit No.:1026/06/97 Page:197/228 of his right as to the property? Clearly he is. The right to any property must mean the right to any existing property. In this case he is asking for declaration to an existing property. This, in my opinion, is contemplated by Section 34 of the Specific Relief Act as the suit property stands as it is and is not given away to any one although it was allotted to Leela Hotels Ltd. subject to outcome of the present suit, such allotment to Leela Hotels Ltd. was made on 31.3.1997 after the present suit was instituted and has been admitted by defendant no. 1 in their written statement that the allotment of Leela Hotels Ltd. stands cancelled and the agreement entered with Leela Hotels Ltd. has come to an end who has been awarded the refund of entire amount by the award of Arbitrator at Ex. PW2/C. A similar view has been taken in 50Ind. Cas.938 (1919) Allahabad High Court Balbhader Prasad and Ors. Vs. Prag Datt and Ors. In my view, further relief is to be prayed for only in cases where the decree would otherwise become infructuous. If there is no necessity, further relief need not be asked for. In Vemareddy Ramoraghava Reddy v. Konduru Seshu Reddy : AIR1967SC436, it has been pointed out that S. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have powers to grant such a decree independently of the requirements of the section. Whether further relief apart from the declaration should be asked for or not depends upon the allegations with which the plaintiff comes to Court.

5) As already concluded above that I am of the opinion that in fact plaintiff could not have joined with the prayer for a declaration, a claim for possession since unless the entire amount of balance two installments are paid, which are to be paid within two years of allotment, plaintiff cannot claim or get any title or possession since defendant will continue to have all the right to reenter the suit property on any legal default of payment by plaintiff and they can cancel the allotment if further installments are not paid provided defendant no. I performs its reciprocal obligations Suit No.:1026/06/97 Page:198/228 under the allotment letter. It is the case of defendant that plaintiff is a licencee only besides it is defendants case that licence to enter to construct hotel could only be given after agreement to sell (agreement to sublease) is executed which they would anyway will have to do so if cancellation letter is declared as null & void. It is plain, therefore, that, in view of the case, it was not competent to the plaintiffs to ask for any further relief. In other words, the Legislature intends that if the plaintiff, at the date of his suit, is entitled to claim as against the defendant to the cause some relief other than and consequential upon a bare declaration of right, he must not vex the defendant twice, but he is bound to have the matter settled once for all in one suit.

The object of the plaintiff here is to get a declaration of cancellation letter as null & void and in the event of plaintiff's success maximum that plaintiff can claim is to institute a suit against the defendant for damages if they wish to. I am of the opinion that plaintiff has not failed to sue for a further relief since there is no relief open to them, viz. cancellation letter is null & void is the only relief that could have been availed by plaintiff or granted by the Court. Execution of agreement to sublease is merely an 'auxiliary equitable' relief and not such 'further relief as is contemplated by Section 34, Specific Relief Act. It is therefore concluded that the plaintiff is competent to maintain a suit for a mere declaration. It may be observed that as the plaintiff could not have claimed the possession of the suit property, there was no question of their suing for possession in the present case since real possession as already claimed by defendants can only be given after payment of two more installments which any way fall due after one year and two years and till then as admitted by defendant no. 1 that plaintiff would remain a licencee. The two installments could have been demanded by defendant no. I only after execution of lease in their favour and after the layout plans were regularised which were finally regularized on 7.9.1999~ Ex. PW17/MMM, similar view has been taken in AIR1941NULL97, HC of Lahore Mt. ZebulNisa and Ors. Vs. Chaudhri Din Suit No.:1026/06/97 Page:199/228 Mohammad and Ors.

In view of the above decisions, I now come to the substantial question posed one by one.

(1) Regarding the plea of defendants that declaration cannot be granted without the Relief of Possession, effect of abandonment of consequential relief claimed of mandatory injunction for possession and restraining defendant to retender the suit property.

1. Defendant no. I has relied upon the following citations claiming that plaintiff should have claimed possession and that without the claim of possession declaratory suit is not maintainable, that plaintiff abandoned the relief of mandatory injunction for possession and restraining defendant to retender the property:

It is submitted by plaintiff relying upon various decisions of High Courts as well as Apex Court that it is a settled law that the suit for a declaration without a claim for the relief for possession will be still competent if it is not necessary to ask for relief of delivery of possession since defendant no. I was not able to deliver even the provisional entry to land on licence in the absence of agreement to sell (agreement to sublease) which has also been admitted by defendant no. I in their written statement as well as in the affidavit of DW1, further the abandonment of relief does not debar the plaintiff's claim of declaration as the relief abandoned could have not been granted by this court in the given circumstances of the present suit :

Defendant no. I has relied upon the decision of the Apex Court in AIR 1993 SC 957 Vinay Krishma Vs. Keshav Chandra that "the plaintiff had filed suit for declaration that she is the owner of the suit premises and claimed that she is also in possession of the same. In trial it was revealed that she had share in suit property, but was not in possession of suit land. The Hon'ble Court held that though she is Suit No.:1026/06/97 Page:200/228 entitled to declaration of ownership but such declaration cannot be granted in absence of consequential/further relief of possession".

The decision relied upon by defendants AIR 1993 SC 957 Vinay Krishna Vs. Keshav Chandra is not applicable as already submitted that plaintiff could have not claimed possession as per the terms of allotment and as also admitted by defendant no. I in the written statement in para 6 and para 8, para 31 of the evidence tendered by DW1 besides Hon'ble Supreme Court in the above citation has concluded in para 15 that merely because the plaint says in the prayer such other relief be granted to the plaintiff it does not mean that without a specific plea for possession and disregarding bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession but the plaintiff's case is entirely different and is distinguishable as plaintiff cannot claim possession unless title of the land is registered under section 49 of Registration Act, 1908 which would have arisen only after two years and only after perpetual lease was executed in favour defendant no. I which has been admittedly subsequently executed on 4.7.1997 in favor of defendant no. I after the suit was filed. It is further submitted by plaintiff that allottee would remain licencee till sub lease is executed and registered after the payment of instalments after I year and 2 years.

The counsel for defendant no. I also relied upon AIR 2007 Delhi 183 Virender Gopal Vs. Municipal Corporation of Delhi wherein it has been held that the MCD took possession of the land of the plaintiff and made the sewage lines etc in it. The plaintiff filed suit for declaration that he has half share in the suit property and that the MCD must remove the sewage lines etc from the property. He did not reclaim possession of suit land. It was held that the plaintiff is not entitled to declaration as he has not claimed consequential/further relief of possession. The suit is hit by proviso of section 34 of the Specific Relief Act. The decision relied upon by Suit No.:1026/06/97 Page:201/228 defendants AIR 2007 Delhi 183 Virender Gopal Vs. Municipal Corporation of Delhi is not applicable to the plaintiff's suit since the claim of possession could have not been granted by this court, the plaintiff abandoned the relief of mandatory injunction for possession, it was unnecessary relief and that defendant no. 1 has admitted in their written statement in para 6 that the terms of the letter of allotment does not indicate at all that possession of the hotel site and car parking space was to be granted before payment of the second installment, no alleged further agreement exists, the same has been reiterated by DWI in her affidavit filed by way of evidence . It is submitted that in para 31 of the evidence filed by DWI, it is admitted that as per the clause 5 (viii) of the allotment letter dated 31st October, 1994 hotel site was purely, on a licence and no right, title or interest was created in the property and it is specifically mentioned in the said letter of allotment that upon fulfillment of the terms of the agreement to sublease including payment of all dues and obtaining of necessary approvals as required under Para 5(vi) of allotment letter, an agreement to sublease was to be executed. That as admitted and claimed in para 6 of written statement and in para 31 of the evidence led by defendant no. I plaintiff could have not claimed possession unless the balance two installments were paid within one year and two years which were payable only after defendant no. I would have performed its reciprocal obligations after receipt of the Ist installment. That as per their own case of defendant no. I and the evidence led that even the entry to land on licence basis for the purposes of construction could have not been given without execution of agreement to sub lease (agreement to sell) which admittedly was not executed, thus plaintiff could have not even claimed the relief of entry to land on licence basis in the absence of agreement to sell which defendant no. I otherwise was bound to execute on receipt of Ist installment whether the permissions under Income Tax Act and ULCR Act were obtained or not. Thus in the circumstances and in terms of allotment as well Suit No.:1026/06/97 Page:202/228 as proposed agreement to sub lease the claim of possession claimed earlier by plaintiff was unnecessary and this court could have not granted the prayer of possession in view of which the citation relied upon by defendants is distinguishable from the plaintiff's case. The counsel for defendant no. I further relied upon AIR 1978 Cal 463 Gulam Mohiuddin Vs. The Official Assignee and Ors. that the claim in the suit was for declaration that the lease deed and agreement of tenancy are null and void inoperative and not binding on plaintiffs. The plaintiffs did not claim eviction of tenants under said lease and termination of tenancy agreement. The Hon'ble Court observed that the plaintiffs should have also added in the suit consequential relief of possession against tenants and mere suit for declaration is not maintainable. The decision relied upon by defendants AIR 1978 Cal 463 Gulam Mohiuddin Vs. The Official Assignee and Ors. defendants is not applicable to the present case since it was concluded in the above case that the possession will have to follow but as explained above that plaintiff in the present suit could have not claimed possession in the terms of allotment letter and as also admitted by defendant no. I in their written statement in para 6 and para 8, para 31 of the evidence filed by DWI. Further the above citation is not applicable as para 18 of the above judgement it has been concluded that the suit is substantially one for adjudication or a determination of rights and interest in a immoveable property and the suit has been held for land. It is submitted that in the present suit plaintiff is not claiming the "title in the property " but is claiming "right to the property" on licence for two years as per terms of allotment, which admittedly will be on licence for two years after the agreement to sell is executed by defendants.

2). The learned counsel for the plaintiff has placed reliance on decisions by Apex Court & all High Courts all over India, separately in regard to the question of Suit No.:1026/06/97 Page:203/228 possession, abandonment of relief of mandatory injunction for possession and restraining defendant no. I to retender the property and claiming that the declaration as claimed is sufficient and is itself a substantial relief since no further relief is required. It is made out by plaintiff that the declaration as claimed in the suit is maintainable and is not barred by section 34 specific relief act and plaintiff does not need any further relief nor any consequential relief is required if cancellation is declared as null & void, that as per terms of allotment no title of the suit land passes in favour of plaintiff inasmuch as recital relating to payment in the allotment letters which are deferred payments to be paid in one year & two years and as per proposed agreement to sell defendants continue to have the right to enter into the land or cancel & forfeit the amount paid as per clause 5(iv) if the construction of the hotel is not completed within three years or within the extended period for construction which is at their discretion which defendant no. 1 has retained the right to take over the land alongwith unfinished building and or on default of any future payment of instalments even thereafter the execution of agreement to sell. It is clear by plaintiff that here also if that test is applied, it would be plain that defendant no. I was unable to deliver possession till 4.7.1997 i.e. the execution of lease in their favour besides the sub lease could only be executed after receipt of balance two installments within two years, in fact the entry to land as licencee as admitted by defendant no. 1 could not be given without execution of agreement to sell, thus plaintiff cannot claim even naked possession (entry on licence basis) without the registered agreement to sell and it is case of defendant no. I that they did not execute the agreement to sell in the absence of approvals from Income Tax authorities & under ULCR Act and that these Acts have been repealed/amended/withdrawn subsequent to the filing of the present suit. That it is further the case of defendant no. I that these permissions were to be obtained immediately on receipt of Ist installment as per clause 5(vi & ix) of the allotment letter but plaintiff did not present the documents for its signatures by Suit No.:1026/06/97 Page:204/228 defendant no. I due to which agreement to sell could not be executed. It is submitted by plaintiff that although the case of defendant no. I is that they did not execute agreement to sub lease in the absence of approval under ULCR Act and Income Tax Act but it is the case of plaintiff that as per terms of agreement to sub lease it was to be executed irrespective of such approvals and thereafter both parties were to follow the terms of the agreement after its execution. It is held in AIR1966SC359, SC Deokuer and Anr. Vs. Sheoprasad Singh and Ors., in para 6 it has been held, where defendant is not in possession or not able to deliver possession no need to ask recovery of possession, suit not hit by Proviso to Section 42. Apex Court further concluded that these cases clearly establish that it was not necessary for the appellants to have asked for possession. It has been held by Apex Court that the fact that it may not be binding would not affect the competence of the suit. The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession. It is submitted rightly by plaintiff that when the suit was filed in Jan., 1997, the perpetual lease deed had not been executed in favour of defendant no. 1 which was executed subsequently to the filing of the suit in view of which plaintiff could have not sought the relief of execution of agreement to sublease till defendant no. 1 had the perpetual lease in their favour of the suit land. Plaintiff has relied upon MANU/DE/2108/2009 Dohil Construction Com. Pvt. Ltd. Vs. Mr. Thakur Dass Malhotra and Anr. wherein it has been held that proviso to section 34 of the Specific Relief Act fully applies to the cases where at the date of the suit, the consequential relief is available. Moreover, proviso to Section 34 of the Specific Relief Act provides for relief which is inherent in the original declaration claimed and without which declaratory relief claimed would be meaningless and infructuous. It is true that after the institution of the suit, the relief to the possession of the Suit No.:1026/06/97 Page:205/228 property has become available to the plaintiffs which is not being claimed as yet, but it is no ground to reject the suit.

3). It is clear that plaintiff could only claim entry to land on licence to facilitate the construction of hotel building that also only after the agreement to sell was executed by defendant no. I which has been admitted by defendant no. 1 in their written statement as well as evidence and the terms of allotment including the proposed agreement to sell at Ex. DWI/7, defendants continued to have right to reenter the land at any time till sale deed (sublease deed) was executed i.e. till the title was transferred to plaintiff which situation could only arise after the receipt of two installments within next two years and after the perpetual lease dated 4.7.1997 was executed in favour of defendant no. 1 by defendant no. 2 besides the fact that defendant no. 1 on its own could not execute agreement to sell till they had perpetual lease in their favour and only thereafter the 2nd & 3rd installment could fell due. It is admitted fact that as per terms of allotment as well as agreement to sell defendants could reenter the land if plaintiff was unable to construct the hotel building within three years. Thus admittedly the entry to land on licence was a naked possession which cannot be termed as further relief as contemplated under section 34 of Specific Relief Act which again admittedly could only be given after execution of agreement to sublease which defendant No. 1 was bound to execute on receipt of 1st installment. Defendant no. 1's contentions that originally the plaintiff had prayed for the recovery of possession over the suit property, he, however, amended the plaint due to inability to pay court fee when he was asked to pay a courtfee on the relief for mandatory injunction for possession and plaintiff confined his claim to a declaration is also not sustainable in the eyes of law as plaintiff is open to relinquish or abandon part of its claim under Order 23 Rule I of CPC. It is no doubt true that it was open to the plaintiff to withdraw the relief of possession by amending the plaint when they Suit No.:1026/06/97 Page:206/228 realized that they cannot claim possession under the suit in question as also claimed by defendant no. 1 in their written statement. But on that ground alone their right to seek a declaration cannot be denied. Ability of the plaintiff to seek further relief within the meaning of Section 34 means ability at the time of the institution of the suit and a suit for declaration which was maintainable at the time of the institution does not cease to be so on the happening of some subsequent event which may necessitate consequential relief. The right of plaintiff to maintain a declaratory suit is not affected by the fact that relief of possession was withdrawn by plaintiff. Thus the mere fact that the plaintiffs did not seek the consequential relief of possession by relinquishing the claim would not affect their right to seek a declaration of the right to property if it was available to them on the date of the suit.

4) The question whether plaintiff can claim possession of the land or not is a pure question of fact or not of law much less a substantial question of law, the finding have to be based on proper appreciation of evidence, considering the evidence and the documents on record, I am of the view in the present case plaintiff is not entitled to possession till he would get sale deed registered of the land. In view of the above discussion, I conclude that the cases that have been cited by the defendant no. 1 are cases where consequential relief either by way of possession or otherwise was necessary but in the present case the relief of possession was unnecessary which otherwise even this court was not able to grant. The plaintiff's submissions definitely has force since it is not the case of the defendants that on the date of the suit, the plaintiff could have asked for any "further relief' other than the declaration of his right as claimed in the suit. Counsel for defendant no. 1, however, submitted that the plaintiff could have not abandoned the consequential claim of mandatory injunction to deliver possession and restraining defendant no. 1 to reallot this site or the consequential relief of refund of the amount should Suit No.:1026/06/97 Page:207/228 have been claimed. It is admitted fact that consequential relief of mandatory injunction to deliver possession and restraining defendant no. 1 to reallot this site has been abandoned by plaintiff which had been allowed to be abandoned by my predecessor vide order dated 17.11.2001 which has been upheld by Hon'ble High Court vide its order dated 2.11.2006. This court has already dismissed the application of defendant no. I under Order 7 Rule 11 of CPC vide order dated 23.4.2009 in regard to the allegations that the plaint is not maintainable u/s 34 of the Specific Relief Act which has admittedly not been challenged in any higher court. This submission of defendant no. 1 cannot be given effect to since the matter is already decided in respect of the relief abandoned by plaintiff except the question whether the plaint as framed after abandonment of claim is maintainable or not has to be decided by me as also observed in order dated 2.11.2006 of Hon'ble High Court of Delhi. In view of the above my findings are that the relief of possession or injunction was clearly unnecessary and was not required for final adjudication of this case. In my view the declaration itself is sufficient for protection of the plaintiff in view of which plaintiff cannot be compelled to seek a consequential relief since plaintiff can execute the decree and persue the property for the satisfaction of the decree on the strength of declaration claimed. (2) Regarding the Plea of defendants that suit is for Specific Performance

1) It is submitted by plaintiff relying upon various decisions of High Courts as well as Apex Court that defendant no. 1 has itself led evidence in para 31 of the affidavit of DW1 that plaintiff cannot claim specific performance as plaintiff is a licencee and the same has even been argued by defendant no. 1. It is submitted by plaintiff that it has been proved that relief of possession was not available to plaintiff in the suit and that submissions of defendant no. I that the suit is for specific Suit No.:1026/06/97 Page:208/228 performance is also misplaced as defendant no. I in its own evidence of DWI at para 31 has claimed that as per the clause 5 (viii) of the allotment letter dated 31st October, 1994 hotel site was purely, on a licence and no right, title or interest was created in the property in favor of plaintiff and it is specifically mentioned in the said letter in para No. 12 of allotment that upon fulfillment of the terms of the agreement to sublease including payment of all dues and obtaining of necessary approvals as required under Para 5(vi) of allotment letter, an agreement to sublease will be executed which allegedly could not be executed in absence of approvals under ULCR Act and Income Tax Act although the payment of 1st installment was received as per clause 5(viii). That DWI has further led evidence that plaintiff is a licencee and specific performance cannot be sought by plaintiff, DW1 in para 31 of her evidence has categorically stated that "Hence, the question of seeking specific performance does not arise as no such relief can be granted in respect of a licence". Plaintiff submitted that in view of the admissions by DWI that the agreement to sell is not executed nor registered as yet, plaintiff cannot claim possession nor specific performance as also admitted by defendant no. 1 in their written statement in view of which such plea of defendant no. I that suit is for specific performance is untenable. It is submitted by plaintiff that the proposed agreement to sell (agreement to sub lease) is a document styled an agreement and the allotment letter is styled as "allotment" which gave right to the suit property as an allottee and unless agreement to sell is executed, plaintiff could have not claimed specific performance a similar view has been taken in AIR1951Madl2Muruga Mudaliar (Deceased) and Ors. Vs. Subba Reddiar that in para 4 that the document is styled an agreement. The label given to it by the parties is of some significance as to their intention although not conclusive. It may be noted that the English word "agreement" itself is used at the head of the vernacular document. If the document is an agreement, as it purports to be, it can be nothing else than an agreement of lease. It contains the terms of the Suit No.:1026/06/97 Page:209/228 bargain between the parties and is in my opinion the bargain itself, the agreement itself as it professes to be on its face, and not merely an informal or incomplete memorandum of the terms of a bargain already concluded and later sought to be reduced to writing. The word "agreement" is used not merely in the preamble but twice again in the body of the document and seems designed deliberately to emphasise such purpose. That an agreement for sale of immovable property is a transaction affecting the property within the meaning of Section 49(c) Registration Act, "inasmuch as if carried out it will bring about a change of ownership." A contract for the sale of immovable property does not by the statute law of India of itself create any interest in or charge on such property. Nevertheless, their Lordships had no difficulty in holding that such an agreement is a transaction affecting immovable property. Para 55. A "lease" is defined in Section 2(7) of the Act as including "an agreement to lease." A lease is the transfer of an interest in immovable property and creates a right in rem. If an agreement to lease fixes the terms of the lease and gives the lessee a right to possession of immovable property, either immediately or at a future date, the document is treated for purposes of registration as a lease, though it does not purport to transfer an interest in the property by way of lease. It is submitted by plaintiff that in view of the above the allotment letter only gives a right to the allotment towards the property allotted and the agreement to sell which was not executed would have only given right to plaintiff to seek specific performance. It is further submitted that in view of the above even agreement to sell would have not extinguished the rights of defendant no. I to the property unless the sublease was registered which was proposed to be registered after two years from the date of agreement to sublease. The fact has also been observed by High Court of Delhi in its order dated 24.8.2001 that the suit is not for specific performance. The same fact that the present suit is not for specific performance had even been observed by me in my order dated 14.12.2009 disallowing certain documents which has been Suit No.:1026/06/97 Page:210/228 upheld by Hon'ble High Court of Delhi vide order dated 25.1.2010 & 25.2.2010.

2) I am of the view that submission of defendant no. I that plaintiff in its plaint at para 6 & 11 of the plaint as well as para 6 & 10 of the replication as well as para 264 of affidavit has alleged that defendant no. I did not comply with its obligations on receipt of Ist installment due to which the suit be treated for specific performance is not sustainable in the eyes of law as plaintiff has even proved so and I have decided the issue nos. I & 2 against defendant no. I that they really did not comply with its reciprocal obligations on receipt of Ist installment. It is matter of fact that plaintiff has not sought any specific performance in the plaint nor the prayer says so and if in affidavit plaintiff has prayed for execution agreement to sell, in my view the same can not be treated as if specific performance has been sought by plaintiff being beyond pleadings. The contention of learned Counsel for defendant no. I is that plaintiff is claiming title to the suit property on the basis of declaration claimed is unsustainable. I am of the view that under Section 54 of the Transfer of Property Act an agreement to sale does not confer any title to a person in whose favour even the agreement is executed as per Section 54 an agreement to sale merely creates right in the suit property. Hence, plaintiff can not be declared owner of the property on the basis of even the agreement to sell which any way has not been executed. It is urged by defendant no. 1 that the plaintiff had no legal title and no legal right in the property which would sustain a suit for a declaration. But in my view Section 34 of the Specific Relief Act does not require that the plaintiff should have a "right in the property" which is the subjectmatter of the suit. The wording is:

Any person entitled to any legal character or to any "right as to any property" . Any right as to any property is certainly not any right in the property. An agreement to sell in favour of a person certainly gives him a right as to or in relation to the property which is the subject of the agreement. In this case, the Suit No.:1026/06/97 Page:211/228 plaintiff having filed a suit for declaration that cancellation is null & void as defendant no. I could have not demanded the 2nd & 3rd installment as allegedly claimed by defendant no. 1, plaintiff would have a right as to the suit property and therefore Section 34 would cover the case.

In view of the above, I am of the opinion that the present suit is not a suit for specific performance.

(3) in regard to the plea of the defendant no. 1 that in case plaintiff does not want to persue the project, he should have sought refund of amount paid.

1) Plaintiff relied upon the decisions of High Court as well as Apex Court that the document has to be construed as a whole and no clause can be read in isolation, defendant no. 1 did not have title in their own favour and as such they could have not registered the sale deed or an agreement to sell as required under the Registration Act and on the right flowing from the cancellation letter struck down and void, the allotment stays and that plaintiff has no where stated that he does not want to persue the project neither plaintiff has claimed refund of amount in the suit which is anyway cannot be further relief as per Section 34 of Specific Relief Act nor it is a suit for refund of money and this court cannot import any relief on its own, besides section 34 of the Specific Relief Act does not cover pecuniary relationship between the parties to contract: The counsel for defendant no. 1 relied upon 2008(38) PTC 222 (Del) Ravissant Pvt. Ltd. Vs. D.F. Exports S.A. (Formerly known as Franklin Export S.A.) that in the suit the plaintiff claimed relief of declaration that the termination of the contract is null and void. The plaintiff did not claim appropriate consequential relief i.e. decree for any amount allegedly spent by it towards expenses during the subsistence of contract. The averments in plaint show that such claim was available. As such it was held that no declaration can be granted in absence of above consequential relief of recovery of money. The suit is hit by proviso to section 34 of Suit No.:1026/06/97 Page:212/228 the specific relief act. The decision relied upon by defendants 2008(38) PTC 222 (Del) Ravissant Pvt. Ltd. Vs. D.F. Exports S.A. (Formerly known as Franklin Export S.A.) is not applicable to the present suit since firstly it does not pertain to property and the relief sought by plaintiff in the case cited by defendant was for declaration further showing that the amount of money allegedly spent by them under the franchise agreement which they could have claimed as consequential relief but in the present case plaintiff has no where claimed any expenses incurred by them nor that plaintiff has claimed refund of money neither there is any intention of plaintiff to claim the money paid as Ist installment since the plaintiff's case is that cancellation is null & void since defendant no. I did not perform its reciprocal obligations on receipt of Ist installment besides there were misrepresentations by defendant no. I in regard to the constructions of car park basement and layout plans and the cancellation was arbitrary and discriminatory visavis Ansals Properties & industries Ltd. who were under similar conditions allotted shopping arcade alongwith car park basement, they at the same time granted interest free extensions to them but they cancelled the allotment of plaintiff, the declaratory relief being discretionary, this Court must observe the conduct of defendant no. 1 in dealing with plaintiff. It is submitted by plaintiff that defendant no. 1 did not have title in their own favour and as such they could have not registered the sale deed or an agreement to sell as required under the Registration Act, plaintiff has relied upon 2001(1)ALD349 Dadi Reddy Sivanarayana Reddy Vs. Kasi Reddy Chinnamma wherein it has been held in para 16 that it is well settled that where the document is to be construed, the document itself should be looked into to gather the intention of the parties. The document has to be construed as a whole and no clause can be read in isolation in an attempt to resort to extraneous enquiry as to what the parties thought or intended. If there is any ambiguity in the language employed it is however permissible to look to the surrounding circumstances to determine what was intended. The document in Suit No.:1026/06/97 Page:213/228 question purports to convey immovable property to the plaintiff with all rights of sale, gift etc. One should ask a question whether on the basis of the sale document the plaintiff can validly convey title of the property to third parties, that is to say whether the plaintiff has a marketable title vesting in him (see Section 49(a)) and whether the agreement has extinguished the right in the defendant. As per Section 17(2)(v) of the Act when a document creates right, title or interest in one party and extinguishes any right, title or interest in the other party, then only it is registrable.

2) In AIR1942Pat60 Ramautar Sao Vs. Ram Gobind Sao and Ors., in para 9 applying the principles applicable in regard to section 42 it was held that if the plaintiff establishes his case, is the document voidable or wholly void? Void undoubtedly, since executed by a minor, who cannot contract at all (Contract Act, Section 11). and, secondly, a colourable transaction which was never acted upon and was never intended to be acted upon, a document in fact similar to that contemplated by their Lordships in Petherpermal Chetty v. R. Mvmiandi Servai ('08) 35 Cal. 551. Is it a declaration that is necessary to give the plaintiff relief, or only a finding? Surely, a finding that no such document was ever actually executed by the plaintiff would be enough. In short, the present plaint in terms asks only for a partition. It is proved by plaintiff that the same suit property when allotted to Leela Hotels Ltd., the Hon'ble Retd. Chief Justice Sh. R.S. Pathak has held in in its award that Leela Hotels Ltd. could not get the hotel building plans approved till 7.9.1999 due to which they withdrew from the contract as they opted to be out of contract and sought refund of the amount paid alongwith interest but in the present case plaintiff has not opted to be out of the allotment letter and has not sought refund of the amount. In view of the decision in AIRI942Pat60, HC OF PATNA Ramautar Sao Vs. Ram Gobind Sao and Ors. that the court cannot import into it by necessary implication either a prayer or any consequential relief, simply because, if the plaintiff can establish his allegations Suit No.:1026/06/97 Page:214/228 he can succeed without either, I am of the view that the refund of amount cannot be the consequential relief or further relief as contended by defendant no. 1. In view of the above submissions of both parties and in view of the section 34 of Specific Relief Act, I am of the view that plaintiff has in no words in its plaint, replication or affidavit and evidence led has claimed the refund of amount paid and it is settled law that I can not import anything new in respect of refund of amount if not prayed for by plaintiff The decisions relied upon by defendant no. I are completely distinguishable to the present case since in these cases there had been the claim of monies due to which it has been held that plaintiff should have claimed the amount spent by them in promoting the franchise, in another case cited is that amendment is sought in time barred and in the other case penalty clause has been asked to be in operative. In view of above and decisions relied upon by plaintiff that pecuniary relationship in contracts cannot fall under Section 34 of Specific Relief Act, I am of the view that plaintiff could have not sought refund of the amount and this Court could have not granted refund of amount paid under the declaration suit, which is anyway cannot be consequential relief nor can it be further relief Further defendants contentions that if plaintiff does not want to continue with the project, he should have sought refund of the amount is also not sustainable in the eyes of law since plaintiff has no where stated that he does not want to continue with the project and I cannot assume so myself or import any thing new in the plaint or evidence led, thus the contention of defendants have no force at all. Besides the proviso to Section 34 is "further relief' and not "consequential relief' as what is being claimed by defendant no. 1 is that plaintiff should have claimed the consequential relief of refund of money. In my view if the cancellation letter is struck down as void, the rights would flow and must accrue to plaintiff which existed prior to passing the order of termination of allotment through the cancellation letter dated 2.5.1996 and relief of refund of amount was not required to be claimed. In is my finding that was the cancellation letter is declared as Suit No.:1026/06/97 Page:215/228 null & void, the temporary cloud upon the decision of the cancellation is cleared away. Thus this plea of defendant is also not maintainable.

(4) Regarding the plea of defendant that discretion of the Court to grant declaration cannot be applied seeing the conduct of plaintiff.

1) Plaintiff in support of its case has relied upon various decisions to support that the suit is maintainable and within the S. 34 of the Specific Relief Act and section 42 of the old Specific Relief Act, further submitting that the application of section 34 of Specific Relief Act depends upon the facts and nature of each case, plaintiff has relied upon decisions by Apex Court as well as by all High Courts all over India in regard to the question of mere declaration and the discretion of the Courts under Section 34 of Specific Relief Act in regard to the declaration claimed, further submitting that the court has discretion under section 34 of Specific Relief Act if plaintiff establishes that plaintiff does not require any further relief and applying the equity, the court must use its discretion to grant justice which plaintiff submitted that he has established in proving its case in regard to issue nos. I to 8 already. In AIR1973AP189, HC OF ANDHRA PRADESH Dumpala Ramachandra Reddy Vs. Dumpala Kanta Reddy and Ors., in para 18 the legal position on the scope of Section 34 of the Specific Relief Act, 1963 has been summed up thus:

Where any person is entitled to institute a suit denying, or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relief The plaintiff must be incompetent at the time of the institution of such declaratory suit to ask any further relief relating to the delivery of possession of property or recovery of any sum of money. If, at the time of the declaratory suit, the plaintiff could successfully seek for the other relief of delivery of possession or recovery of money, it is not permissible Suit No.:1026/06/97 Page:216/228 for him to seek only for a declaration without asking for the other requisite relief It cannot be said that the Court has no jurisdiction to entertain such a suit provided the requisite conditions specified in Section 34 of the Specific Relief Act, 1963 are satisfied. The Court has to exercise the discretion vested in it judiciously but not arbitrarily.

2) In AIR199OKerll2 Raman Ittiyathi and Ors. Vs. Pappy Bhaskaran and Ors., in para 5 the court concluded that they fail to understand how there can be a bar under Section 34 of the Specific Relief Act so far as the present suit is concerned.

The Court is entitled in its discretion to grant a declaratory relief even without the plaintiff asking for any further relief. The bar is only under the proviso to Section 34. That is against granting the declaratory relief when the plaintiff, who is able to seek further relief than a mere declaration of title, omits to do so. The language of the section is very clear that the declaratory relief is purely discretionary. The proviso is also clear. The proviso only enjoins that the result of the plaintiff being able to seek further relief omitting to do so is only that the Court shall not grant the declaratory relief. Here, in the previous suit, the declaration was granted even without a prayer for recovery of possession in spite of the refusal of the prayer for injunction on the ground that the plaintiffs were out of possession. The bar under Section 34, if at all, could have applied only to the suit in which further relief was not claimed and not to a future suit in which it was claimed on the ground that further relief was not claimed in a previous suit. The Court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the judgment Court granting the decree. Plaintiff further submitted that defendant no. 1 obtained the 1st installment by practicing fraud and once the principles aforementioned are to be given effect to, indisputably this court must be held to have inherent jurisdiction in relation thereto in Suit No.:1026/06/97 Page:217/228 the interest of justice and in equity since the suit for declaration is not barred under section 34 Specific Relief Act. In view of the above, it is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for. A claim to a declaratory decree is not a matter of right, but that it rests with the judicial discretion of the Courts. In my view the present litigation cannot be treated as vexatious litigation in the light of the above issues proved in the favour of plaintiff nor the suit can be said to be harassing defendants as being alleged by them. In my opinion judged by the principle above laid down, the plaint cannot be read as a plaint for declaration with consequential relief. It should be borne in mind that the plaintiffs' allegation is that defendants have played fraud upon plaintiff by concealing that car park basement had no approvals of any local bodies and that revised lay out plans had to be approved before the building plans of Hotel could be approved besides reading the allotment as a whole and as per Law & Acts defendant was bound to seek permission under Income Tax Act and ULCR Act as already concluded by me in issue no. 1. Further defendants did not execute agreement to sell with plaintiff which they were bound to on receipt of 1st installment, which has already been established and proved by plaintiff, the letter of cancellation is void has already been established by plaintiff and I have decided the above issue nos. I to 8 in favour of plaintiff and against defendants, in that view of the matter, that no consequential relief need be asked for.

3) In applying the tests as laid down in AIR2007SC414, SC M.P. Mathur and Ors. Vs. D.T.C and Ors. to the present case, there is mutuality. There is contract between defendant and plaintiff There is allotment letter dated 31.10.1994 under which 1st installment of Rs. 27.04 crores is admittedly received. Sale consideration is Suit No.:1026/06/97 Page:218/228 fixed. The plaintiffs were called upon to make first payment as per terms of allotment which stands paid. The decision to allot the suit property to plaintiff was approved by defendant no.2. Defendant no. I was bound to execute documents under Income Tax Act and ULCR Act and get the permissions under the acts, both defendants were bound to execute agreement to sub lease (agreement to sell) on receipt of Ist installment irrespective of whether permissions were obtained under Income Tax Act or not. In the circumstances, l am of the view that contract and equity existed at all point of time due to non disclosure of unauthorized structure and by not executing agreement to sell, considering the entire conduct of the parties, I am of the view that plaintiff deserves the declaration. The issues raised by defendant no. I do not really arise in the case. The plaintiff, as I have said, cannot ask for possession, and has not asked for it. There is prayer for declaration that the cancellation is null & void to make the cancellation as inoperative. On going through one of the term of the allotment letter in clause 5(xvii) it is stated that if it is discovered that the allotment of the hotel site has been obtained by suppression of any fact misstatement or misrepresentation or fraud defendant no. I would be entitle to take over the site and the building and allottee will not be entitled to any compensation whatsoever nor to the return of the premium paid by them, if the same term applies to defendant no. I as the conditions of the allotment have to be read applicable to both the parties, I have already concluded above in deciding the issues that defendant no. I has definitely suppressed facts, have made misstatements and misrepresentations and have really committed fraud on plaintiff by receiving the 1st installment by concealing the fact that the building plans of car park basement and other structures are not approved and the revised layout plans were required to be approved and by not disclosing that they did not have lease in their favour. In my view it is not accepted of the public sector organization which is a state to deal with any public person in such a manner and even Govt. being defendant no. 2 was aware that the plans were not approved as they Suit No.:1026/06/97 Page:219/228 have themselves observed in Ex. PW24/3L wherein they have admitted that if defendant no. I would have disclosed the risk factors they would have not been able to realize the proper values of the property. In view of the above, the submissions of defendant no. 1 that conduct of plaintiff does not deserve this court to use discretionary power under Section 34 of Specific Relief Act are completely not sustainable besides defendant no. 1 has not been able to prove the conduct of plaintiff except that he had filed the earlier suit which was withdrawn subsequently which has already been dealt with by me in deciding the above issues.

4) This Court can refuse to give a declaration decree and can also impose certain conditions and such discretion being used is guided by judicial principles and well recognized equitable considerations. In view of the above issues proved in favour of plaintiff, applying judicial principles further the equity lies in favour of plaintiff as defendant after receiving 40% of the consideration declined to execute agreement to sublease (agreement to sell) which was otherwise counter signed by both the parties, in the absence of which defendant could have not demanded further installments. I am of the view that in the background of the huge amount received from plaintiff, concealing of various facts by defendant No. 1 only to realize the proper value of the property and thereafter not executing the agreement to sell as plaintiff had nothing in his hand except the allotment letter and the receipts of the monies paid, applying the principle of equity, I must apply the discretion under Section 34 of the Specific Relief Act as I have already concluded that the proviso to this section is not applicable to the plaintiff's case as no further relief is required.

5. The plea of defendants that mere declaration as claimed is not enforceable against them .

Suit No.:1026/06/97                                                                      Page:220/228
 1)       In respect of the above plaintiff relied upon various citations stating that the

declaration claimed would be enforceable and will have coercive effect against defendants as they will have to follow the allotment letter since the declaration that cancellation is null & void would bring plaintiff to its original position as on the date of allotment:

2) In AlR1984Delhi38 Union of India Vs. Kewal Krishan Mittal, in para 22 it has been decided that what is the effect of a declaration judgment? It seems to lack a sanction, for you cannot enforce a judicial statement of right by the machinery of the law. Whether to act in defiance of a declaration would amount to a contempt of court is a question which is increasingly coming before the courts in recent years in one form or another. Hon'ble High Court further relied upon Pyx Granite Co. Ltd. Vs. Minister of Housing (1960) Ac 260, Lord Goddord said, apparently with the concurrence of other peers) that declaration and certiorari were not mutually exclusive. No one should get away with the impression that declarations are unenforceable and the courts are powerless to enforce declarations. The courts will implement their declaratory judgments by issuing appropriate directions to public authorities. It has been held that this is no misapplication of the legal tool of declaration if to effectuate its purpose a direction to pay is given in fact the right to arrears of salary inherits in it. The Court only makes that explicit what is implicit in it. It is essentially a purposive approach that the courts adopt. It is submitted by plaintiff that he has prayed for relief, namely that the cancellation letter is null & void and defendants are accordingly bound to follow the allotment letter if cancellation letter is declared as void. In the present case cancellation letter is obstructing to the right to the allotment to plaintiff and unless the cancellation is set aside, the rights to allotment cannot be claimed, so it is sufficient if cancellation letter is declared as void Suit No.:1026/06/97 Page:221/228 which would be sufficient for plaintiff to sustain a declaratory decree. Plaintiff has relied upon AIR1998SC743 SC State of M.P. Vs. Mangilal Sharma which is applicable to the present case of plaintiff that it is a clear intendment of the declaration that defendants have to follow the allotment letter and if the defendants would default in discharging their obligations under the allotment letter, the plaintiff would be entitled to seek appropriate remedy. This Court has power under section 34 to make a declaration although discretionary to be used with caution and I conclude that declaration sought for is useful and is definitely sufficient to put a stop to the dispute between the plaintiff and defendants and am of the view that plaintiff deserve the declaration as claimed. There is no doubt that the declaration claimed by plaintiff gives him immediate effect and future effect can also be given once cancellation is declared as null & void being the immediate relief as defendants are resultantly automatically bound to follow the terms of allotment letter and the position would go back to the date of allotment. A declaratory decree being a discretionary relief, the Court is expected to take into consideration all the above aspects in deciding whether relief should be given. The object of the proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking in another suit the remedy without which the declaration would be useless. In my view, the object is served by the present proceedings and plaintiff would be in position to enforce his rights under the allotment letter, similar view has been taken in AIR1979Ker96 John Guruprakasam Vs. Yovel Nesan and Ors.

3) In my view plaintiff is entitled to declaration because on the facts such a declaration would be effectual. In view of the above discussions and in view of the other issues decided in favour of plaintiff I am of the opinion that it is sufficient grievance of plaintiff which this Court should remedy under Section 34, Specific Suit No.:1026/06/97 Page:222/228 Relief Act. As claimed by defendant that plaintiff was only licensee and that there was no contract in fact binding on both the parties, on reading the whole allotment letter, it is clear that defendant no. l as agent on behalf of defendant no.2 has received 40% of the consideration, they cannot claim or deny to perform their own obligations on receipt of such huge consideration, the allotment conditions are binding on defendant no.2 also though issued by defendant no. l on behalf of defendant no.2, in this view both defendants can be asked to follow the terms of allotment and do the needful as required under allotment and receive the balance installments as stipulated in the allotment letter.

Issue no. 14 Whether the suit of the plaintiff is also barred under the provisions contained u/o 23 Rule I CPC? OPD.

1) The onus of proving this issue was on defendants, they have not produced any decisions to support their case. They have simply taken an objection that the suit is not maintainable as much as it was filed subsequently to suit no. 275 of 1996 before the Hon'ble High Court of Delhi and which suit was withdrawn without any liberty to continue with the present suit due to which the present suit is barred by law i.e. Order 23 Rule I CPC as the suit was withdrawn unconditionally.

Counsel for the plaintiff pleaded that plaintiff has led evidence that plaintiff filed the present suit on 24.1.1997 and subsequently withdrew the suit no. 275/1996 pending before Hon'ble High Court of Delhi by filing an application on 30.1.1997 which was strongly opposed by defendant no. 1, however Hon'ble High court vide order dated 23.4.1997 dismissed the suit as withdrawn and the order withdrawing the previous suit has been exhibited at Ex. PWI/16. The plaintiff submitted that the present suit filed by plaintiff is maintainable and is not barred under order 23 rule I Suit No.:1026/06/97 Page:223/228 of CPC since the fresh suit (present suit) was filed prior to withdrawal of the earlier suit and no such liberty was required to be taken to file the present suit in the suit no. 275/1996. Plaintiff further contained that order 23 rule I is not applicable to filing of the fresh suit as the language of order 23 rule 1 of CPC is very clear in this respect.

Order 23 rule I withdrawal of suit or abandonment of part of claim ~1 ) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit for abandon a part of the claim:

(2) ......

(3) Where the Court is satisfied (a) ......

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subjectmatter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim. (4) Where the plaintiff(a) abandons any suit or part of claim under subrule (I ) or,

(b) withdraws from a suit or part of a claim without the permission referred to in subrule (3) He shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim.

(5) ......

From Order 23 Rule 1, 3 & 4, it is apparent that when a plaintiff withdraws his suit, there is no necessity for any finding on the issues arising in it and the suit is dismissed without any findings being recorded. The Code has attached a definite consequence to a withdrawal or abandonment of a claim of this kind and that consequence is that the plaintiff is debarred from instituting a fresh suit with Suit No.:1026/06/97 Page:224/228 respect to the same subjectmatter, except in those cases where the suit is withdrawn with the permission of the Court to institute a fresh suit, as laid down in Rule 1, Order 23, Civil P.C.

2) As noticed above, Subrule (4) of Rule I of Order XXIII, C.P.C. precluded the plaintiff from instituting a fresh suit where the earlier suit was withdrawn or abandoned without permission of the Court. It is clear that the prohibition is in regard to the institution of a fresh suit after the earlier suit on the same cause of action had been withdrawn without the leave of court. But, where the subsequent suit was pending when the earlier one was dismissed as withdrawn, abandoned or as not pressed, the provisions of Order XXIII, Rule 1, in terms, would be inapplicable". The above findings are further supported by plaintiff by relying upon AIR 1985 P&H 219 Girdhari Lal Bansal Vs. The Chairman, Bhakra Beas Management Board, Chandigarh and Ors., wherein the decisions of Ram Mal v. Upendra Dutt, AIR 1928 Lah 710 and Mangi Lal v. Radha Mohan, AIR 1930 Lah 599 have been relied upon as they hold good and have not been overruled, High Court held that the second application was filed before the first application which was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted as the earlier application was filed on 6th Oct. 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18 11 - 1982. In AIR 1992 Ker 85 P.A. Muhammed Vs The Canara Bank and Anr., it has been held that the dismissal of the earlier suit which was not on the merits could certainly not operate as a bar for the subsequent suit on the same cause of action. That Subrule (4) of Rule I of Order XXIII, C.P.C. precluded the plaintiff from instituting a fresh suit where the earlier suit was withdrawn or abandoned without permission of the Court. It is clear that the prohibition is in regard to the institution of a fresh suit after the earlier suit on the same cause of action had been withdrawn without the leave of court. But, where Suit No.:1026/06/97 Page:225/228 the subsequent suit was pending when the earlier one was dismissed as withdrawn, abandoned or as not pressed, the provisions of Order XXIII, Rule 1, in terms, would be inapplicable. It is obvious that Order 23, Rule I refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been instituted before the other suit had been abandoned or dismissed. It is certain that the legislature could not have intended that such an obvious device should be permitted as its effect would be to defeat the provisions of the rule by dispensing with the necessity of obtaining permission of the Court. I am not concerned with the intention of the legislature as the section itself is clear and can only be applied to suits instituted after withdrawal or abandonment of previous suits. Apex Court has currently in AIR2009SC806, Vimlesh Kumari Kulshrestha Vs.: Sambhajirao and Anr. relied upon Ram Mal v. Upendra Datt A.I.R. 1928 Lah. 710, a case similar to AIR 1930 Null 599, Mangi Lal and Anr. Vs. Radha Mohan and Anr. holding that these decisions hold good till today in which it has been held that Order 23, Rule 1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order 23, Rule 1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits. The reliance of defendant no. 1 on the observations in order dated 17.3.1997 passed by my predecessor on the interim application of plaintiff is unsustainable on the reasons and the decisions already discussed by me in issue no. 12.

3) In view of the above decisions considering the above decisions and the language of order 23 CPC, in the present instance no such permission was required since the plaintiff had already instituted the present suit on 24.1.1997 against MCD Suit No.:1026/06/97 Page:226/228 & Hudco (now defendant no. 1). The first suit no. 275/1996 was dismissed as withdrawn vide order dated 22.4.1997 and hence the provisions of that rule cannot apply as the present suit was instituted prior to withdrawal of the earlier suit. It is held that a second suit will not be barred in the case of withdrawal of a previous suit unless the conditions of Order 23, Rule 1, Civil P.C., are fully satisfied the provisions of Order 23 Rule 1 will not apply herein and the suit is not barred under Order 23 Rule I. Hence I decide this issue in favour of plaintiff and against defendants. Issue No. 9: If the above issues are proved whether in view of the above issue the plaintiff is entitled to the decree of declaration as claimed in the suit in respect of letter dated 2.5.96, issued by defendant no. 1 as null and void ? OPP This issue is taken up now. In view of all issue nos. I to 8 stand proved in favour of plaintiff and against defendants, I decide this issue in favor of plaintiff and against defendants and plaintiff is entitled to decree of declaration as prayed for.

: Thus in view of the aforesaid discussion and findings of the case of all

15.Relief the issues the suit of the plaintiff stands decreed with cost. A decree of declaration is passed in favour of plaintiff that the cancellation letter dated 02.5.96 is null & void and inoperative. 1 am of the further view that defendants have utilized Rs. 27.04 crores for several years being more than 15 years now and defendant no. 1 being in business of finance which is state owned company and defendant no. 2 being Govt. must have earned continuous interest on this amount, further illegally and wrongfully canceling the allotment as already discussed in deciding all the above issues, accordingly it is expected of defendants to follow the terms of allotment letter by doing the needful. Decree sheet be prepared accordingly. File Suit No.:1026/06/97 Page:227/228 be consigned to record room after due completion.

  Announced in open court                                                            (Ajay Goel)
on  03.7.2010                                                            SCJ cum RC(Central)/Delhi




Suit No.:1026/06/97                                                                      Page:228/228

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