Delhi High Court
Ashok Rai vs M/S. Kailash Nath & Associates & Ors. on 17 July, 1998
Equivalent citations: 1998VAD(DELHI)163, 1998(46)DRJ826, 1998 A I H C 4214, (1998) 4 CURCC 1 (1998) 46 DRJ 826, (1998) 46 DRJ 826
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER K.S. Gupta,J.
1. This order will govern the disposal of I.A.No. 2742/97.
2. Suit was filed, inter alia, alleging that the plaintiff, Vikram Rai and Smt. Jyotsana Sahni are the heirs of Smt. Vimla Balwant Rai who died intestate on 28th September, 1988. Defendant No.1 is a registered firm carrying on the business of builders and developers of properties and defendants 2 and 3 are the partners thereof. Defendants 4 to 6 are the sons of Late Basheshar Nath and brothers of said Smt. Vimla Balwant Rai. Defendants 1 to 3, on the one hand, and defendants 4 to 6, on the other hand, entered into a building and development agreement on 2nd May, 1971 with regard to property situated at 9, Barakhamba Road, New Delhi owned by defendants 4 to 6. In a letter dated 2nd May, 1971 defendant No.1 had culled out the terms of contract for development of the said plot and construction of a multi-storey building thereon. Under the said agreement it was, inter-alia, stated that out of the total saleable area of the multi-storey building 31.5% would belong to defendants 4 to 6 while the remaining 68.5% to defendants 1 to 3 on different floors. By the letter dated 17th March, 1980 defendants 4 to 6 requested defendants 1 to 3 to enter into an agreement of sale of one flat to said Smt. Vimla Balwant Rai. Defendants 4 to 6 subsequently, wrote to defendant No. 1 to allot 1282.5 sq.m. of gross area in the building. It is alleged that an agreement of sale was entered into between said Smt. Vimla Balwant Rai and defendant No. 2 on 19th March, 1980 and it was agreed that a flat on the third floor of the building admeasuring 1100 sq. ft. carpet area would be allotted to her for a consideration of Rs. 2.80 lakhs. Thereafter, amount of Rs. 2.75 lakhs was paid by Smt. Vimla Balwant Rai vide Cheque No. 0567771 dated 2nd April, 1984 after adjusting the advance amount of Rs. 5,000/- already paid in the past. Since defendant No. 1 did not hand over possession of the flat, the plaintiff wrote a letter on 28th November, 1992 to the defendants asking them to hand over possession of the flat without any further delay. In reply to this letter, defendant No.1 wrote to the plaintiff on 21st December, 1992 denying that they had agreed to sell 1100 sq. ft or that by any subsequent letter the gross area was increased to 1282 sq. ft. It was asserted that under the agreement dated 19th March, 1980 a flat of only 900 sq. ft was agreed to be sold to Smt. Vimla Balwant Rai. In the said letter plaintiff was asked to send death certificates of Smt. Vimla Balwant Rai and Balwant Rai, proforma affidavits and indemnity bonds from all the three legal heirs and no objection certificate from the land owners. It was further stated in the letter that flat No. 301 on the third floor had been allotted to the plaintiff and possession thereof would be delivered after NDMC granted the completion/occupation certificates. It is alleged that certain changes were made in the aforesaid agreement in the hand of defendant No. 2 himself whereby carpet area of 900 sq. ft. was raised to 1100 sq.ft. Plaintiff on behalf of himself and his said brother and sister kept on pursuing the defendants 1 to 3 to hand over possession of flat No. 301 for which full consideration was already paid but they kept on evading the issue on one pretext or the other. In the meanwhile plaintiff submitted the death certificates of his mother and father, his indemnity bond and affidavit as demanded in the said letter dated 21st December, 1992. On the date of the filing of the suit indemnity bonds and affidavits of the brother and sister of the plaintiff have been despatched to defendant No.1. It is further alleged that the plaintiff got a legal notice dated 8th May, 1995 served on defendant No.1 calling upon it to hand over possession of flat No. 301 within a fortnight of the receipt of the notice. Plaintiff thereafter got yet another legal notice dated 29th May, 1996 served on the defendants. It is stated that at the behest of Sh. Atul Sharma, counsel for defendants 4 to 6 a meeting was held in the office of S.P. Sharma, Chartered Accountant on 16h December, 1996 to amicably sort out the matter. In that meeting it was revealed for the first time to the plaintiff that defendants 4 to 6 had created rights under an agreement dated 7th August, 1992 in favour of Mira Exim Pvt. Ltd. in respect of said flat No. 301 and full consideration of Rs. 50 lakhs had been received by them. It was further divulged in the meeting that Suit No. 1927/93 filed by defendant No.1 against defendants 4 to 6 was pending in Delhi High Court. On inspection of the file of the said Suit it was revealed that the suit was disposed of in terms of compromise on an application filed by the parties under Order 23 Rule 3 read with Section 151 CPC on 10th May, 1996. As per the compromise terms flat No. 301 fell to the share of defendants 4 to 6 jointly. Compromise also recorded that flat bearing No. 202 would not be amenable to sale or creation of third party rights till no objection of legal heirs of Smt. Vimla Balwant Rai was obtained. In that flat an area of 400 sq. ft. was sold to S.P. Sharma. It is stated that in an effort to circumvent the situation created by defendants 1 to 6 the plaintiff was asked to take possession o remaining area of 900 sq. ft. in above flat No. 202 which was unacceptable. It was prayed that a decree of specific performance be passed against defendants 1 to 6 to perform their part of the agreement to sell dated 19th March, 1980 and hand over possession of flat No. 301 without any encumbrances to the plaintiff. Decree of permanent injunction is further sought to be passed against the defendants restraining them from creating any third party right in the said flat.
3. In the suit aforementioned I.A. No. 2742/97 under Section 94 & Order XXXX read with Section 151 CPC was filed by the plaintiff with the following prayer:-
a) grant mandatory injunction against the defendants and in favour of the Plaintiff and his aforesaid brother and sister commanding the defendants to deliver the possession of flat No. 301, 3rd floor, Nilgiri Apartment, 9, Barakhamba Road, New Delhi to the plaintiff and his brother and sister as aforesaid forth with;
IN THE ALTERNATIVE:-
a) appoint the plaintiff as Receiver with respect to the aforesaid Flat No. 301, 3rd Floor, Nilgiri Apartment, 9 Barakhamba Road, New Delhi.
b) pass any further and/or other order/s as this Hon'ble Court may deemed fit and proper in the facts and circumstances of the case.
4. In the joint written statement by way of preliminary objections defendants 4 to 6 have pleaded that suit for specific performance is based on an agreement dated 19th March, 1980 to which defendants 4 to 6 are not the parties and thus there is no privity of contract between them and the plaintiff. On plaintiff's own showing defendant No.1 represented to the plaintiff in its letter dated 21st December, 1992 for the first time that number of the flat allotted to him was 301 on the third floor. This flat had been sold by defendants 4 to 6 to Mira Exim Pvt. Ltd. on 7th August, 1992. Therefore, the said agreement dated 19th March, 1980 is now not capable of being specifically performed. On merits, it is asserted that defendants 4 to 6 are the recorded owners of plot bearing No. 9, Barakhamba Road and the agreement dated 2nd May, 1971 was entered between defendant No. 1 and Basheshar Nath & Sons HUF. By the letter dated 17th March, 1980. defendant No. 4 as Karta of Basheshar Nath & Sons HUF informed defendant No.1 of having sold a two bedroom flat admeasuring 900 sq. ft. out of the built up space to be allotted to the said HUF to Smt. Vimla Balwant Rai. It is admitted that in pursuance of the letter dated 17th March, 1980 the plaintiff was to get 1282.5 sq. ft gross area. Defendants 4 to 6 never had the knowledge of the fact that defendant No.1 had sold flat No. 301 to the plaintiff. Agreement dated 19th March, 1980 did not contain any flat number nor was there any mention with regard to location of the flat. It is not disputed that a meeting was held on 16th December, 1996 and that the suit filed by the defendant No.1 was settled by compromise on 10th May, 1996 as alleged. It is stated that the plaintiff should accept flat No. 202 and not insist upon the allotment of flat No. 301.
5. Although the said defendants have not filed a separate reply to I.A. 2742/97 but have opposed it on the defense raised in the joint written statement.
6. Defendants 1 to 3 who are yet to file their written statement(s), have contested the said I.A. by filing reply. Since the main contest is in between the plaintiff and defendants 4 to 6 only two facts pleaded in the reply need to be referred. It is stated that defendant No.1 is willing and ready to deliver possession of flat No. 301 to the plaintiff, if so directed by the court. It is further stated that the plaintiff in his correspondence with defendant No.1 sent copies of the letter dated 29th March, 1984 of defendants 4 to 6 and the letter dated 2nd April, 1984 of the defendant No.1 to Smt. Vimla Balwant Rai to which there are some corrections which are not there in the office copy/original in the records of the defendant No.1. Defendant No. 2 under whose signatures the alleged corrections were obtained, is now 78 years of age and had in the year 1992 suffered paralytic attack. He does not recollect of any changes having been made by him.
7. I have heard Sh. Arun Jaitely, Sr. Advocate for the plaintiff and Sh. Atul Sharma for defendants 4 to 6 and have also been taken through the record.
8. Plaintiff has placed on record photo copies of bunch of documents. It is admitted case of the parties that an agreement to sell dated 19th March, 1980 was executed in between Smt. Vimla Balwant Rai and the partners of defendant No.1 pursuant to the letter dated 17th March, 1980 of defendants 4 to 6. In clause 3 of this agreement a flat on the third floor having covered area of 900 sq.ft. which figure was changed to 1100 sq. ft., is agreed to have been sold for Rs. 2.80 lakhs to Smt. Vimla Balwant Rai. A map is also attached to the said agreement and on its back under the alleged signatures of defendant No. 2 an endorsement appears to the effect that the area of the flat is 1100 sq.ft. In the letter at page 6 of the documents file sent by M/s. Basheshar Nath and Sons HUF to defendant No.1, defendant No.2 was asked to allot a flat of 1282.5 sq.ft. gross area and also to waive certain amounts and clauses of the agreement as detailed in paras 1 to 13 thereof. In the letter at page 35 sent to Smt. Vimla Balwant Rai, defendant No.1 had acknowledged the receipt of cheque No. 0567771 dated 2nd April, 1984 in the sum of Rs. 2,75,000/- towards the balance amount of the sale consideration in addition to the reaffirming that as per clause 3 of the agreement she will have clear carpet area of 900 sq.ft. which figure was changed allegedly under the signature of defendant No. 2 to 1100 sq. ft. By the letter dated 28th November, 1992 plaintiff had asked the defendant No.1 to intimate the date and time by which the possession of the flat was likely to be handed over and also the location and price of the flat allotted. In response to this letter defendant No.1 sent letter dated 21st December, 1992 wherein it was denied that under the agreement dated 19th March, 1980 flat having area of 1100 sq. ft. was agreed to be sold or that by any subsequent letter area was increased to 1282.5 sq. ft. of gross area as alleged. It was asserted that only a flat having plinth area of 900 sq. ft. was agreed to be sold and the plaintiff was requested to send the death certificates of his mother and the father, affidavits and indemnity bonds as per the proforma enclosed from all the three legal heirs and no objection certificate from the land owners. It is further mentioned in the letter that number of the flat allotted was 301 on the third floor of the building and the possession thereof would be handed over only after the NDMC granted completion/occupation certificates. A copy of this letter was also sent to Vijay Sarin, defendant No. 4. By the letter dated 25th August, 1994 sent by the plaintiff to defendant No.1 in response to the said letter dated 21st December, 1992 it was stated that as per modified Clause No. 3 of the agreement dated 19th March, 1980 Smt. Vimla Balwant Rai is to get carpet area of 1100 sq. ft. and the short fall be made good from the share of the owners as earlier confirmed by defendants 4 to 6. Along with the letter dated 29th May, 1996 sent on behalf of the plaintiff through counsel, death certificates of the mother and the father of the plaintiff together with the proforma affidavit and indemnity bond of the plaintiff were sent to defendant No.1. In response to this letter, by the letter dated 22nd July, 1996 defendant No.1 asked the plaintiff with the affidavits and the indemnity bonds of Vikram Rai and Smt. Jyotsana Sahni. It was also stated that possession of flat No. 301 can be handed over to the plaintiff only under the signatures of defendants 4 to 6 and on certificate being filed from all the legal heirs of Smt. Vimla Balwant Rai of which plaintiff was only one. With the letter dated 19th December, 1996 sent by the plaintiff through counsel to defendant No.1 in reply to the said letter 22nd July, 1996 affidavit and indemnity bond of Vikram Rai were forwarded to defendant No.1. It was further stated in the above letter that the affidavit and indemnity bond of Smt. Jyotsana Sahni will be sent as soon as the same are received from her.
9. In para 9 of the application filed by defendants 4 to 6 under Order 39 Rule 4 read with Section 151 CPC in S.No. 1927/93 which was later on disposed of in term of compromise between the parties on 10th May, 1996, it is alleged that defendants 4 to 6 had authorised defendant No.1 in this case to sell 7 flats on their behalf and flat No. 301 sold to Smt. Vimla Balwant Rai was one of those flats.
10. From the documents referred to above, it is prima facie proved that a flat having 1100 sq. ft. carpet area on the third floor of property No. 9. Barakhamba Road was agreed to be sold to Smt. Vimla Balwant Rai and by the letter dated 21st December, 1992 number of the flat allotted was communicated as 301 which in a compromise in S. No. 1927/93 fell to the share of defendants 4 to 6.
11. In the decision in Mrs. Vijay Srivastava Vs. M/s. Mirahul Enterprises & Other ILR 1987 (II) Delhi 51 relied upon by Sh. Jaitely, Sr. Advocate, placing reliance on a Division Bench judgment in Indian Cable Company Ltd. Vs. Smt. Sumitra Chakraborty the defendants were directed to hand over possession of the flats in question to both the plaintiffs by way of ad interim mandatory injunction. In that case flat S-2 was agreed to be sold to Rear Admiral Rishi Raj Sood for a sum of Rs. 2,64,261/- while flat No. S-1 to Smt. Vijay Srivastava for Rs. 2,68,000/- which they had paid to the defendants, builders. In Indian Cable Company's case (supra) the court was held to have the power to grant interim orders in mandatory form in exceptional cases. During the course of arguments it was pointed out by Sh. Jaitely that decision in Smt. Vijay Srivastava's case (supra) was modified by the Supreme Court in SLP only to the extent that the plaintiffs were to be put in possession of the said flats S-2 and S-1 as receiv-er of the court. Needless to say that in the present case entire sale consideration stands paid to the defendants in the past. Agreement with Mira Exim Pvt. Ltd. was made later in time. Therefore, decision in Smt. Vijay Srivastava's case (supra) as modified by the Supreme Court applies on all fours to the facts of the instant case. Plaintiff has thus prima facie made out a strong case for the relief sought for. Non-grant of the ad interim mandatory injunction is likely to cause irreparable injury to the plaintiff. Obviously, the balance of convenience also lies in plaintiff's favour.
For the foregoing discussion. I.A. 2742/97 is allowed and by means of an ad interim mandatory injunction defendants are directed to put the plaintiff in possession of aforesaid flat No. 301 in property No. 9, Barakhamba Road, New Delhi as a receiver thereof within 10 days from today. In case the area of the said flat exceeds 1100 sq. ft., defendants 4 to 6 can be compensated by making payment of difference in price on prorata basis by the plaintiff. No order as to costs.