Delhi District Court
Inder Mongia vs Neelam Malhotra on 15 November, 2025
IN THE COURT OF SENIOR CIVIL JUDGE, (WEST)
TIS HAZARI COURTS, DELHI
PRESIDED OVER BY : MS. RICHA SHARMA
CS SCJ No.1576/2017
CNR Number:DLWT03003246-2017
Inder Mongia
S/o Late Sh. K.L. Mongia
R/o 32/16, Ground Floor, West Patel Nagar,
Delhi-110008
...Plaintiff
Versus
1. Neelam Malhotra
W/o Late Shri Suresh Kumar Malhotra
R/o 21/24, West Patel Nagar,
New Delhi-110008.
2. Sanjeev Malhotra
S/o Late Shri Mulkh Raj Malhotra
R/o 21/24, West Patel Nagar,
New Delhi-110008.
...Defendants
Date of filing : 22.11.2017
Date of order: 15.11.2025
ORDER
Suit for declaration and mandatory injunction
1. Vide the instant order, Court shall adjudicate upon the issue of maintainability, whereby, the same engulfs three subset issues under it, as follows:-
CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 1 of 17I) Whether the present suit is barred by the law of limitation.
II) Whether the collaboration agreement dated 25.02.2011, on the basis of which the vacant possession of the premises is being sought vide the present suit, after clearing of arrears of ground rent for reconstruction of the building, requires registration.
III) Whether the present suit is not maintainable in view of the Indian Registration Act and Indian Stamp Act.
2. Before adjudicating upon the issue in hand, this Court deems it fit to recapitulate the case of the contesting parties in form of brief facts as under:-
The plaintiff avers, that he is engaged in the business of real estate as a builder and that the defendant had approached the plaintiff for the construction of the property and had further shown their interest in entering into a collaboration agreement with the plaintiff for re-construction of property bearing No. 21/24, West Patel Nagar, New Delhi-110008. The defendant further represented, that the said property is a lease hold property and taxes and ground rents are duly paid by the defendants and the title of the property is clear.
3. Upon the assurances so advanced by the defendants, the plaintiff entered into a written Collaboration Agreement with defendant on 25.02.2011. Vide the said agreement, it was agreed that the plaintiff will raise construction comprising of basement, stilt parking and four floors on the property in question. The plaintiff had paid the defendants a sum of Rs. 30 Lacs and the CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 2 of 17 defendants had agreed to give second floor and 1/4th share in the stilt parking space to the plaintiff towards consideration for raising the construction over the property. It is further contended, that it was agreed between the parties, that the plaintiff will get the property converted from lease hold property to free hold property at his own expense.
4. Thereafter, on 18.04.2011, plaintiff applied for converting the property from lease hold to free hold and deposited Rs. 65,000/- with the L&DO at Nirman Bhawan, New Delhi for conversion from lease hold to free hold of the property in question but the conversion could not be done as the defendants had not paid the ground rent of property i.e. 21/24, West Patel Nagar, New Delhi-110008 since the allotment of the said lease hold property and the arrears on account of non payment of same had accumulated to Rs. 25 Lacs (approx.).
5. The said fact was immediately brought to the notice of the defendants but despite repeated requests defendants did not deposit even a single penny with L&DO towards the ground rent of the property as per the terms of the collaboration agreement dated 25.02.2011.
6. It is further averred, that on account of non-payment of the ground rent by the defendants, the plaintiff was unable to execute development on the said property as per collaboration CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 3 of 17 agreement dated 25.02.2011 and due to the aforesaid reasons the property of the defendants was not converted to freehold.
7. It is further stated, that neither the sanction plan nor a valid title of the floor could be passed on to the plaintiff as the property was not converted into freehold. It is the grievance of the plaintiff, that due to the aforesaid acts of the defendants, the plaintiff suffered losses as he was unable to raise the construction even after making such a hefty payment to the defendants.
8. It is further the case of the plaintiff, that as per clause 22 and 23 of the collaboration agreement dated 25.02.2011, entered between the plaintiff and the defendants, the defendants are liable to pay ground rent to the L&DO, Nirman Bhawan, New Delhi in respect of the property under collaboration agreement.
9. It is further stated, that in the year 2013 and 2014, plaintiff alongwith one Sh. Sanjay Mongia met the defendants on multiple occasions, thereby requesting them to pay the ground rent to the L&DO, so that the plaintiff is able to perform his part of the contract as per the terms contained in the collaboration agreement. It is also the case of the plaintiff, that though at that time the defendant's categorically were willing to pay ground rent but despite the said assurances they did not make any payment.
10. Thereafter, in the month of February 2014, defendant again assured that they will pay the dues of L&DO and further CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 4 of 17 stated, that they want the plaintiff to construct the said building by the end of March 2015 but all in vain.
11. Again in January 2015, defendant No.2 vide its letter dated 31.01.2015, stated that he is ready and willing to pay his share of ground rent but remained silent upon the share of defendant No. 1 with respect to the ground rent. The plaintiff replied to the said letter stating, that the ground rent has to be paid by both the defendants and further stated that the plaintiff is willing to perform his part of contract. Despite multiple reminders to make the payments for the ground rent, defendant paid no heed.
12. On 05.08.2015, defendant No. 2 had sent a letter stating, that the plaintiff failed to perform his part of contract and that he further failed to convince defendant No. 1 to make the payment for ground rent, thereby, sending a photocopy of a demand draft stating, that he is ready and willing to perform his part of contract. The plaintiff replied to the said letter through his lawyer vide legal notice dated 28.08.2015.
13. Thereafter, on 10.10.2015, plaintiff received a letter from defendant No. 2, whereby the defendant No. 2 had stated, that he is cancelling the collaboration agreement dated 25.02.2011 as the plaintiff has failed to pay the ground rent and further failed to get the property converted from lease hold to free hold.
CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 5 of 1714. It is further contended, that the plaintiff had sent a legal notice of demand, thereby challenging the cancellation of agreement dated 25.02.2011, thereby stating that unilateral cancellation is invalid. It is further averred, that defendant No. 1 has no right to cancel the agreement, specially when it is the defendants who had failed to perform their part of contract in terms of contract dated 25.02.2011.
15. Per contra, defendant No. 2 has stated in his WS, that the present suit is not maintainable as the simplicitor suit for declaration without claiming the relief of recovery of possession is not maintainable. It is further stated, that vide the present suit the plaintiff is making an endeavor to get his right, title and interest in the suit property defined and declared and the same requires the payment of Court fees on the market value of the suit property, being the subject matter of the suit.
16. The maintainability of the suit is further questioned on the ground, that the plaintiff has sought the declaration of notice dated 10.10.2015 canceling the collaboration agreement dated 25.02.2011, being null and void but the said agreement has lost its validity, more-so, with the expiry of the limitation period applicable to such deals while the plaintiff has never sought the specific performance of the said agreement at any stage.
17. It is further voiced, that the suit in its present form is barred by Section 14 of CPC as the same is not filed in the Court CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 6 of 17 of competent jurisdiction as the requisite Court fees on all the reliefs claimed is not adequately paid.
18. It is further stated, that admittedly the plaintiff has paid the advance consideration of amount of Rs. 30 Lakhs to the defendants i.e. payment of Rs. 15 Lakhs each and accordingly, the suit is liable to be dismissed for want of pecuniary jurisdiction of this Court.
19. The suit is further averred to be barred by limitation as the very basis of the suit is the collaboration agreement entered into on 25.02.2011 and the same has never been acted upon thereafter in any manner. Even the conversion charges of Rs. 15,000/- had been deposited on 18.04.2011 i.e. nearly seven years ago and that there has been no extension of time for either of the causes of the action alleged to be existing in favour of the plaintiff.
20. Another defence of the defendant, is that the suit is bad for non joinder of the parties as defendant No. 1 is reported to have sold part of her rights in the suit property to one Rajeev Mongia in a clandestine manner, while pocketing the proceeds thereof as well as the advance amount collected from the plaintiff in the present suit but then failing to pay her share of regularization and development charges of the property to the L&DO.
CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 7 of 1721. The defendant has always been ready to perform his part under the obligation of his contract as the said fact is evident from the legal notice dated 05.08.2015 sent by the replying defendant, whereby he had also sent photocopy of pay order for a sum of Rs. 12,09,000/- issued in favour of L&DO.
22. It is further contended, that for carrying out the construction of the property in terms of the agreement signed between the parties, the same required conversion of property from lease hold to free hold while the replying defendant had carried out the entire leg work and the L&DO had raised the demand for payment of arrear of ground rent and penalty and the replying defendant had offered to pay his share thereof, by sending the photocopy of the pay order to the plaintiff, thereby covering the payment of his share of the amount to be paid to L&DO for facilitating the conversion of the property to free hold. It stands surfaced, that the plaintiff was never interested in bringing defendant No. 1 to perform her part of the contract.
23. It is further argued, that the answering defendant cannot be expected to pay the share of other defendants in such conversion charges which do not fail within her liability in view of the ownership rights enjoyed by her in the suit property.
24. The plaintiff had introduced his brother namely Rajeev Mongia into the dispute by securing certain rights in a portion of the suit property directed to defendant No. 1 and entering into a CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 8 of 17 clandestine agreement for such deal and therefore, it was for plaintiff, his brother and defendant No. 1 to sort out the issue for clearing the liability for payment of conversion charges amongst themselves.
25. The facts remains that the plaintiff defaulted in the matter and had tried to bind down the replying defendant for indefinite period by awaiting the construction of the suit property and thereby causing harassment in mental agony.
26. The answering defendant has established his bonafide in the matter time and again by firstly approaching the office of L&DO and collecting the details of liability of payments of ground rent, interests and penalties imposed and secondly by making substantiate offer of payment of his share of liability but the plaintiff and defendant No. 1 had joined hands by ignoring such offer and by entering into one clandestine agreement between defendant No. 1 and plaintiff brother i.e. Rajeev Mongia for acquiring the ownership rights of certain portion of the suit property. All these was done behind the back of replying defendant, despite their consistent failure to come forward with any firm offer to establish their bonafide.
27. The defendant No. 2 cannot be kept bound down for any length of indefinite period merely because he had received some money from the plaintiff towards his acceptance of transfer of certain right in the suit property in favour of the plaintiff.' CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 9 of 17
28. It is significant, that there was definite provision of time for performance of obligations by all the parties to the collaboration agreements and also the period of limitation which comes into force according to the law to which all the parties to the agreement are subject to. Accordingly, it is prayed that the suit be dismissed with compensatory cost in favour of defendant No.
2.
29. It is apposite to note, that the defence of defendant No. 1 has already struck off on 07.03.2018.
30. I have heard the arguments advances at length by the Ld. Counsel for both the parties and have further perused the record carefully alongwith the written submissions filed on record by both the stakeholders.
31. Now, in the backdrop of the facts as above, admittedly, the defendant had entered into a collaboration between the plaintiff on 25.02.2011 for reconstruction of the property No. 21/24, West Patel Nagar, New Delhi-110008.
32. At the very outset, it is imperative to note, that the collaboration agreement so entered into on 25.02.2011, automatically lost its validity with the expiration of the period of limitation application to such deals, while the plaintiff never sought any relief of specific performance of the said agreement at CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 10 of 17 any stage. It is an admitted case of the plaintiff, that he had applied for the conversion of the suit property from lease hold to free hold on 18.04.2021, but the same was refused on the ground that the defendants had not paid the arrears of the ground rent. Now, even if the said calculation of the period of limitation is done from the date when the said fact came to the knowledge of the plaintiff, the present suit is hopelessly time barred, even if the said period of three years is calculated from the date of the knowledge of the plaintiff.
33. Moving forward, the under line premise of filing the present suit is the collaboration agreement itself dated 25.02.2011 and the conversion charges of Rs. 65,000/- were admittedly paid by the plaintiff on 08.04.2011 i.e. 07 years prior to the filing of the present suit. Nothing stands surfaced on record of the Court/suit to even prima facie deduce, that there has been an extension of time for the causes of action alleged to be existing and prayed in favour of the plaintiff.
34. It is further not out of place to mention, that as per Section 9 of the Limitation Act 1963, once the period of limitation begins to run, no further disability or inability to institute a suit or make an application can stop it.
35. Reliance is placed on the three bench judgment of the Hon'ble Supreme Court of India in Nusil Neville Wadia Vs Ivory Properties(2020) 6 SCC 557, whereby it was observed that if the CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 11 of 17 issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under order XIV Rule (2) (b) CPC. Accordingly, in the considered opinion of this Court, it can be safely deduced from the observations and findings made as above, that the suit is barred by limitation. Even otherwise, from the averments made in the para 04 of the plaint, reproduces as under:-
"that on 18.04.2011 the plaintiff in compliance with the terms and conditions of the said collaboration agreement dated 25.02.2011, applied for converting the property from lease hold to free hold and deposited Rs. 65,000/- with the L&DO at Nirman Bhawan, New Delhi for conversion from lease hold to free hold of the property in question but the conversion has not been done for the reason that the defendant had not paid the ground rent of the property i.e. 21/24, West Patel Nagar, New Delhi- 110008 since the allotment of said lease hold property and the arrears on account of non payment of the same had accumulated to 25 Lakhs (approx.) when the plaintiff applied for conversion to free hold which had to be paid to L&DO, Nirman Bhawan, New Delhi........"
36. It stands surfaced, that the plaintiff by seeking the relief of declaration alongwith consequential relief of mandatory injunction is trying to claim specific performance of the time barred agreement by giving it a color of injunction and declaration as the same is evident from the admissions so surfaced in para 04 of the plaint reproduced as above. Further, as per the settled proposition of law as entailed under section 41 (e) of the specific relief act 1963, no injunction can be granted to prevent the breach of the contract, the performance of which CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 12 of 17 would not be specifically enforced. The plaint is nothing but a clever drafting, whereby an attempt is made to create the illusion of cause of action vide disguising the relief of specific performance into that of injunction and declaration. The Court in this context deems it fit to place reliance upon the judgment of Mohit Kumar and Ors. Vs Bharat Singh and Ors. (2016) 3PLR 572, whereby it was categorically held, that the plaintiff is indirectly seeking the relief of specific performance while terming the decree for declaration in order to avoid payment of Court fee by mere jugglery of words. The relevant para is reproduced as under:
"Having considered the submissions made by Ld. Counsel for the parties this Court is of the considered view that the Court below has rightly decided the application under order 7 Rule 11 CPC because the petitioner had infact filed the suit for specific performance of agreement of sale dated 28.01.2008, though merely because of jugglery of words, petitioner sought decree for declaration just to avoid the payment of Court fees. The same is not permissible as per law. On these facts, the present case is distinguishable from the case of Bant Singh vs. Noble Trade Con Pvt. Ltd. & Ors. (2014) (1) PLR 713. For all intents and purposes, the decree for specific performance of agreement of sale was sought and the Court below has rightly directed the 2 of 3 petitioners to fix the Court fees".
37. It is an admitted case of the plaintiff, that he has paid an advance consideration of Rs. 30 Lakhs to the defendants i.e. payment of Rs. 15 lakh each to the said collaboration and accordingly the plaintiff ought to have filed the suit after proper valuation of Court fees and had the same been done, resultantly CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 13 of 17 the same could have divested this Court of the pecuniary jurisdiction to even entertain the present suit, if at all the suit had been valued properly for the purpose of jurisdiction as well as the Court fees.
38. Moving ahead, it is imperative to note, that the collaboration agreement forming the basis of the instant suit is dated 25.02.2011, and relying upon the same the plaintiff has sought relief of declaration, injunction and possession. Now, the aspect that requires adjudication is, if the said collaboration agreement on the basis of which the relief stands claimed vide the present suit required compulsory registration in view of the prevailing law or not. The plaintiff in support of his contentions has placed reliance upon the judgment title as "M/s Grovy India Ltd. Vs Balbir Singh" and has contended that as per proviso to Section 49 (c) of the registration act 1908, the present suit does not requires registration. For the ease of appreciation, Section 49
(c) proviso is reproduce as under:-
"Section 49. Effect of non registration of documents required to be registered -- no document required by Section 17 (or by any provision of the Transfer of Property Act 1882) to be registered shall -
(a) Effect any immovable property comprised therein, or
(b) Confer any power to adopt, or
(c) be received as evidence of any transaction effecting such property or conferring such power, unless it has been registered:
(Provided that an unregistered documents effecting immovable property and required by this Act, or the transfer of property Act 1882, to be registered may be CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 14 of 17 received as evidence of a contract in a suit for specific performance under Chapter II of the specific relief Act, 1882, or as evidence of any collateral transaction non required to be effected by registered instrument).
39. Thus, the law entailed under the proviso to Section 49 (c) of the registration act 1908, carves out an exception to the requirement of the registration only to the suit for specific performance and admittedly the case in hand is not a one where a relief of specific performance is prayed for. So, on the face of it the judgment so relied upon by the plaintiff is not applicable to the facts and circumstance of the present case, as the relief sought for by the plaintiff is that of declaration, possession and injunction and the underlined document/agreement, on the basis of which the said reliefs are claimed and prayed for, are required to be compulsorily registered. The reliance as made by the plaintiff upon the aforementioned judgment further amount to a tacit admission that he is indirectly seeking relief of specific performance under the camouflage of injunction.
40. It is further apposite to note, that it is a settled proposition of law, that in case of developer or collaboration agreement, whereby the owner transfers the property for development/construction to the builder against the consideration and therefore, such documents are required to be compulsorily registered under section 17 (1-A) of the Registration Act chargeable to stamp duty under Article 23 A of the Indian Stamp Act. A collaboration agreement between a builder and an owner is not merely for construction of a building or for mere execution of CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 15 of 17 the work on land and builder is not merely a contractor engaged to under take the construction but the builder is, under the collaboration agreement, himself promised a part of the construction as owner together with the proportionate area of plot of land. It is settled law, that a collaboration agreement of this kind involves transfer of immovable property, whereby a builder would be entitled not only to a part of constructive area but also to the proportionate share of the land on which the construction is made and the same requires compulsory registration.
41. In the case in hand, the collaboration agreement dated 25.02.2011, further makes the intent of the parties to get the said agreement registered very clear as para 14 of the said agreement clearly states, that the cost of stamping, registration fee etc. shall be born by the plaintiff itself.
"The cost of stamping, registration fee of this agreement and any other documents relating this agreement shall be borne by the second party".
42. It is further apposite to note, that during the course of argument so advanced, it stood surfaced, that the plaintiff through his brother had purchased the 50% terrace right of the defendant no. 1, thus creating new interest in the said property. The said fact nowhere stands pleaded in the pleadings as made in the plaint and was further not brought to the notice of the Court vide preferring appropriate application for bringing on record the addition facts/developments, if at all the same transpired during CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 16 of 17 the pendency of the suit. The said fact being a material fact was concealed from the Court, that after the execution of the collaboration agreement dated 25.02.2011 and after the due knowledge of the fact of the arrears of the ground rent/conversion charges, the plaintiff in a clandestine manner through his brother entered into an agreement with defendant no.
1. This fact per se goes to the root of the matter and thereby results in material improvement in the already existing and unsettled right of the parties as arising out of the collaboration agreement dated 25.02.2011. This subsequent inter se development between plaintiff and defendant no. 1 further to an extend explains the non participation of defendant no. 1 in the present proceedings.
43. Therefore, as an epilogue to the above, it is the consider opinion of this Court that the averments made in the plaint are merit less and accordingly, the suit is hereby dismissed for want of maintainability for the reasons elucidated as above.
44. Decree sheet be prepared.
45. File be consigned to Record Room after due compliance.
(Announced in open Court RICHA Digitally signed by RICHA SHARMA on 15th day of November, 2025) SHARMA Date: 2025.11.15 16:48:39 +0530 (Richa Sharma) Sr. Civil Judge - Cum - RC THC / Delhi /15.11.2025 CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 17 of 17 CS SCJ No.1576/2017 Inder Mongia vs. Neelam Malhotra & Anr. Page 18 of 17