Delhi District Court
Prakash Chand Pandey vs . Ramandeep Singh on 12 March, 2015
Prakash Chand Pandey Vs. Ramandeep Singh
CS311/13
1
IN THE COURT OF SH. MANISH KHURANA:JSCCCUMASCJCUM
GUDN. JUDGE (NORTH): ROHINI COURTS:DELHI
CS NO. 311/13
Shri Prakash Chand Pandey
S/o Late Sh. Hari Dutt Pandey
R/o House No. C37 Mata Mandir,
Old Gupta Colony,
Delhi 110009 .....................Plaintiff
Versus
Sh. Ramandeep Singh
S/o Sh. Davinder Singh
R/o B24 Vijay Nagar,
Delhi09
Also at:
B32 Vijay Nagar
Delhi09
......................Defendant
DATE OF INSTITUTION : 14.07.2013
DATE OF DECISION : 12.03.2015
SUIT FOR RECOVERY OF DAMAGES, ARREARS OF DAMAGES,
PERMANENT AND MANDATORY INJUNCTION
J U D G M E N T :
1. Vide this judgment I proceed to dispose of the suit for recovery of damages and arrears of damages, permanent and mandatory injunction filed by the plaintiff and against the defendant.
Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 2
2. As per case of the plaintiff, he is the owner of the plot bearing no.6B and 7B (new house no.69) area measuring 240 sq. yards situated at Old Gupta Colony, Delhi vide registered sale deed. It is further alleged that plaintiff was residing in the said property but for redevelopment of the said property, the plaintiff entered into a collaboration agreement dated 25.07.2010 with the defendant Ramandeep Singh for reconstruction of the said property as four storey house after removal of the existing structure. It is alleged that said collaboration agreement was canceled between the parties and in lieu of the same, parties entered into a fresh collaboration agreement dated 29.06.2011 and as per said agreement defendant was required to reconstruct the property measuring 240 sq. yards upto four storey comprising of ground floor, first floor, second floor and third floor alongwith stilt parking with installation of lift after removal of the existing structure and the entire construction work was required to be completed by the defendant within 15 months from the date of execution of agreement i.e. 29.06.2011. It was agreed between the parties that the defendant will bear the entire cost of construction of the said property and he shall construct the same as per specification as described in Annexure 'A' of the collaboration agreement and he would obtain the sanctioned building plan for raising the construction. It was also agreed Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 3 that after completion of the construction of the building the entire built up second floor portion without roof rights in the said property with common use of passage, stairs, stilt parking with lift usage would be taken by the defendant. It was also agreed that during the course of the construction, the defendant could negotiate the deal for sale of second floor portion with any person at the price of his choice and it was agreed that the defendant shall positively hand over the possession of the entire building to the plaintiff except the second floor within the specified period of 15 months and all the taxes and dues w.e.f. 25.07.2010 till the completion of construction shall be paid by the defendant. It is alleged that the defendant failed to complete the said construction within stipulated period of 15 months and as per the clause (23) of the collaboration agreement dated 29.06.2011, defendant is liable to pay a sum of Rs.30,000/ per month to the plaintiff till the construction is completed by him. The plaintiff has claimed the recovery of arrears of damages w.e.f. October 2012 till June 2013 to the tune of Rs.2,70,000/ and he has also claimed the damages at the rate of Rs.80,000/ per month w.e.f. July 2013 (month in which the present suit was filed) till the completion of construction of the property. The plaintiff has also prayed for decree of permanent injunction for restraining the defendant from creating any third party interest in the suit property on the basis of collaboration agreement dated 29.06.2011.
Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 4 The plaintiff has also sought the decree of mandatory injunction seeking directions to the defendant to complete the construction within a reasonable period of time or in alternative and failure of the defendant to complete the construction, for restraining the defendant from interfering and disturbing the possession of the plaintiff in the entire suit property and not to create any obstruction and hindrance in the construction work if so carried out by the plaintiff. The plaintiff has also sought directions to the defendant to pay the arrears of electricity charges and the property tax. The plaintiff has also prayed that the defendant be directed to complete the construction of the property in accordance with collaboration agreement dated 25.07.2010 and on failure of the same the defendant be directed to pay the damages for the breach.
3. The defendant was summoned vide order dt. 26.07.2013 and the defendant appeared and the WS was filed in which he alleged that the plaintiff filed the instant suit with ulterior motive to use the clause of the collaboration agreement in his favour and he further alleged that the plaintiff has been breaching the terms of the agreement by stalling the work of the construction site. It is alleged that the work has been stopped by the plaintiff and there has been consistent threats to the labourers at the site. The defendant admitted the collaboration agreement and he alleged that the construction could not be completed due to the fault of Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 5 the plaintiff and the plaintiff has filed this suit with the intention to gain the amount of damages as stipulated in the collaboration agreement.
4. From the pleadings following issues were settled by this court vide order dated 10.07.2014:
1. Whether the plaintiff is entitled to the decree of damages as prayed for? OPP.
2. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP.
3. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
4. Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action? OPD.
5. Relief.
5. Plaintiff examined himself as PW1 and the defendant examined himself DW1.
6. The issue wise findings are as under: ISSUE NO. 1 "Whether the plaintiff is entitled to the decree of damages as prayed for? OPP."
Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 6
7. The plaintiff has prayed for recovery of arrears of damages as well as for the damages from the date of filing of the present suit till completion of construction of the suit property by the defendant . The plaintiff has alleged that he is the owner of suit property i.e. plot bearing no.6B and 7B (new house no.69) area measuring 240 sq. yards situated in Old Gupta Colony Delhi and that a collaboration agreement dated 25.07.2010 was entered into between the parties which was canceled and a fresh collaboration agreement dated 29.06.2011 was executed regarding the construction of the suit property. It is alleged that as per the said agreement the second floor portion including the common use of passage, stairs, stilt parking and lift was to be given to the defendant in lieu of the entire construction upto third floor in the suit property. The defendant has not denied the ownership of the plaintiff in the suit property and he has also not denied the execution of collaboration agreement between the parties.
8. The plaintiff has alleged that as per collaboration agreement Ex.PW1/2 the entire construction was to be completed by the defendant within 15 months from the date of execution of the agreement Ex.PW1/2 dated 29.06.2011 failing which the defendant is liable to pay the amount of Rs.30000/ per month to the plaintiff towards damages till the completion of the construction. As per the said agreement the Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 7 th construction was to be completed on or before 30 September 2012. the defendant has neither denied the collaboration agreement Ex.PW1/2 nor the clause no.23 of the said collaboration agreement in which the amount of damages to the tune of RS,.30000/ has been stipulated and agreed upon between the parties. It is also not in dispute that the construction at the suit property is not completed within the stipulated period of 15 months as per collaboration agreement Ex.PW1/2. The defendant has alleged that the construction over the suit property could not be completed due to the fault of the plaintiff and it is the plaintiff who threatened the labourers at the construction site and stalled the construction work.
9. The collaboration agreement Ex.PW1/2 required that the construction had to be completed by month of September 2012 failing which the defendant is liable to pay the damages @ Rs.30,000/ per month. It has been proved on record that the construction over the suit property has not be completed within the stipulated period as per written agreement between the parties and therefore the defendant is liable to pay the amount of damages as stipulated and agreed upon between the parties. The defendant has taken the plea that the plaintiff stalled the construction work and threatened the labourers and it is for the defendant to prove the facts alleged by him, however, the defendant has not Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 8 examined any labourer who was allegedly threatened by the plaintiff and the defendant has failed to prove that the construction work was stalled at the instance of the plaintiff. Parties to a contract are bound by its terms and the defendant has not taken any steps for cancellation of abovesaid agreement between the parties and he has not even served a notice to the plaintiff that he would not be able to complete the construction within the stipulated period of 15 months because of the alleged acts of the plaintiff. The defendant simply did not perform his part of contract and when the plaintiff has filed the instant suit to claim damages as stipulated in the said contract, he came up with the plea that the delay in construction is attributable to the plaintiff. If the defendant was unable to perform the terms of contract due to any reason, he should have taken steps for cancellation of the contract or for novation thereof. The pleas raised by the defendant in the pleadings cannot be accepted as the defendant has not complied the contract and has not performed his part of contract. The defendant has not disputed the clause in the agreement vide which he is liable to pay the damages @ Rs.30,000/ per month if the construction is not completed by September 2012. As the construction has not been completed and the defendant has not been able to prove any ground for rescission of the contract between the parties, the said contract cannot be avoided by the defendant on the Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 9 basis of averments made him in the WS.
10. The document Ex.PW1/20 is an affidavit dated 08.07.2013 signed by the defendant and the defendant Ramandeep Singh has categorically stated therein that the pending construction work would be immediately started w..e.f. 11.08.2013 and he also stated therein that the delay in construction work of the suit property occurred due to his 'some personal problems'. The abovesaid document Ex.PW1/20 is not disputed and it clearly reveals that the construction was not completed by the defendant within stipulated time due to fault of the defendant and the delay in completing the construction is not attributable to the plaintiff.
11. The plaintiff has claimed arrears of damages @ Rs.30,000/ per month however, he has claimed damages @ Rs.80,000/ per month from the date of filing of the present suit till the construction is completed by the defendant. The plaintiff has not proved as to how he is entitled to recover damages at an enhanced rate of Rs.80,000/ instead of Rs. 30,000/ per month. Plaintiff has not proved as to what he would have earned had the construction been completed by the defendant. In view of the evidence on record I am of the opinion that plaintiff is entitled to the decree of recovery of arrears of damages to the tune of Rs.2.70 lacs (Rs.30,000/ per month w.e.f. October 2012 till June 2013) and the plaintiff is also entitled to the damages @ Rs.30,000/ per month from the Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 10 date of filing of the present suit till the construction on the suit property is completed by the defendant as agreed between the parties. This issue is accordingly, decided in favour of the plaintiff and against the defendant. ISSUE NO. 2
"Whether the plaintiff is entitled to the mandatory injunction as prayed for? OPP."
12. The plaintiff has prayed for decree of mandatory injunction for directions to the defendant to complete the construction within reasonable time or in alternative for restraining the defendant from interfering or disturbing the possession of the plaintiff in the entire property. The plaintiff has also prayed for directions to the defendant to pay arrears of electricity charges and the property tax to NDMC. The plaintiff has also prayed for directions to the defendant to complete the construction in the property in accordance with collaboration agreement dated 25.07.2010 annexure A and B and on failure to do so to pay the damages to the plaintiff.
13. Section 39 of the Specific Relief Act defines the cases in which mandatory injunction can be granted.
14. Section 39 of the said Act reads - when, to prevent the breach of an obligation, it is necessary to compel the performance Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 11 of certain act which the court is capable of enforcing, the court may in its discretion grant and injunction to prevent the breach complaint of, and also to compel performance of requisite acts.
15. Therefore, two elements have to be taken into consideration for granting in mandatory injunction i.e. (i) the court has to determine what acts are necessary in order to prevent a breach of obligation and (ii) the requisite acts must be such as the court is capable of enforcing.
16. In the case in hand, the contract Ex. PW1/2 has already expired on 30.09.2012 i.e. the date by which the defendant was obliged to perform the contract and to complete the construction. Therefore, the breach of obligation has already occurred and further the requisite acts sought by the plaintiff are such which require continuous monitoring as the construction is sought to be completed as per various specifications enumerated in annexure A to the collaboration agreement. The plaintiff has sought the directions to the defendant to complete the construction in accordance with collaboration agreement dated 25.07.2010 however, as per pleadings of the plaintiff the collaboration agreement dated 25.07.2010 had already been canceled and in lieu of thereof another collaboration agreement dated 29.06.2011 was executed between the parties. Therefore, the plaintiff can not seek directions against the defendant to comply the terms of an agreement which has admittedly Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 12 been canceled.
17. In see Kunhammad Vs. C.H. Ahamad Hazi AIR 2001 KER. 101 the court observed that the exercise of power to grant mandatory injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purposes of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The Court will not interfere except in cases where there are extreme serious damages caused which cannot be compensated.
18. However, in the instant case the plaintiff has quantified damages and has also prayed for damages which has already been granted. Further the plaintiff has sought specific performance of contract in the guise of relief of mandatory injunction. The plaintiff has sought directions to the defendant to perform his part of contract as per collaboration agreement Ex.PW1/2. As per section 41 (h) of Specific Relief Act 1963 an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings. The relief of mandatory injunction sought by the plaintiff is also barred by section 41 (h) of Specific Relief Act as an efficacious remedy by filing the suit for specific performance of contract was available with the plaintiff.
19. So far as the damages which have been granted by this Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 13 court while deciding issue no.1 is concerned, there is no such bar for granting the relief of damages arising out of the terms of a written contract between the parties however, the relief of injunction is specifically barred u/s 41 (h) of Specific Relief Act 1963 if an efficacious remedy is available to the plaintiff by any other usual mode of proceedings. The plaintiff has not proved any electricity bill or property tax charges which are payable by the defendant.
20. in view of the abovesaid discussion I am of the opinion that the relief of mandatory injunction as sought by the plaintiff cannot be granted to the plaintiff. This issue is accordingly, decided against the plaintiff and in favour of the defendant.
ISSUE NO. 3
"Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP."
21. The plaintiff has sought the decree of permanent injunction for restraining the defendant from creating any third party interest on the basis of collaboration agreement dated 29.06.2011 vide which the second floor portion in the property is to be given to the defendant. The plaintiff has relied upon the collaboration agreement dated 29.06.2011 as Ex.PW1/2 and as per the case of the plaintiff himself the entire built up Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 14 second floor without roof rights alongwith common use of passage, stairs, stilt parking and lift is to be given to the defendant. As per the agreement the defendant is at liberty to deal and to enter into an agreement regarding the sale of second floor portion as agreed and the liberty to negotiate with the prospective buyers of second floor portion was also granted to the defendant.
22. The plaintiff is claiming the relief of permanent injunction in contravention to the written agreement between the parties.
23. Section 38 of the Specific Relief Act defines the cases in which perpetual injunction can be granted.
24. Section 38 of the said Act reads (1) Subject to other provisions contained in or referred to by this chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:
(a) Where the defendant is trustee of the property for the plaintiff;
(b)Where the exists no standard for ascertaining the actual Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 15 damage caused, or likely to be caused, by the invasion;
(c)where the invasion is such that compensation in money would not afford adequate relief;
(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings
25. Section 38 of the Specific Relief Act, 1963 enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of the applicant, whether express or implied. This is again subject to exceptions. The query, therefore, has to be 'whether there exists an obligation in favour of the applicant'. Even where an obligation is made out, if the case falls within Sec. 41 of the Specific Relief Act, an injunction cannot be granted.
26. It is pertinent to mention that there is no stipulation in the contract dated 29.06.2011 that the defendant would not have any right to deal with second floor portion in the suit property if the construction is not completed within time. The defendant cannot be restrained in the manner as alleged by the plaintiff in contravention to the written contract between the parties. Hence the plaintiff is not entitled to the decree of permanent injunction as prayed for. This issue is accordingly decided against the plaintiff and in favour of the defendant.
Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 16 ISSUE NO. 4 "Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action? OPD."
27. Cause of action is a set of facts sufficient to justify a right to sue and for the enforcement of a right against another party. Cause of action are the facts alleged in plaint which are required to be proved and while rejecting the plaint for want of cause of action, the court is required to see the averments made in the plaint and the written statement or the documents relied upon by the defendant cannot be looked into. Hon'ble Supreme Court in Saleem Bhai Vs. State of Maharashtra AIR 2003 SC 759 held that it is only the plaint in which the relevant facts are to be seen and not the written statement for the purpose of order 7 rule 11 CPC for deciding as to whether the plaint be rejected or not.
28. The onus to prove this issue was conferred upon the defendant but the defendant has failed to prove the same. The plaintiff has prayed for damages and other reliefs on the basis of written collaboration agreement dated 29.06.2011 which is Ex.PW1/2 and the averments made in the plaint cannot be said to be without any cause of action. Hence this issue is decided against the defendant and in favour of the plaintiff.
Prakash Chand Pandey Vs. Ramandeep Singh CS311/13 17 RELIEF:
29. Hence, the plaintiff is entitled to the decree for recovery of arrears of damages to the tune of Rs.2,70,000/ (Rs.30,000/ per month w.e.f. October 2012 till June 2013) against the defendant and the plaintiff is also entitled to the damages @ Rs.30,000/ per month from the date of filing of the present suit till the construction on the suit property is completed by the defendant. Cost of suit is also awarded in favour of the plaintiff and against the defendant. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced in the open (Manish Khurana)
Court on 12.03.2015 JSCCcumASCJcumGudn. Judge
North, Rohini Courts, Delhi