Gauhati High Court
Orion India (P) Ltd vs Mukul Sharma on 1 September, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
RFA 38/2006
Orion India Pvt. Ltd. ...... Appellant
-Versus-
Mukul Sharma ........ Respondent
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the appellant : Mr. D.K. Mishra, Sr.Advocate, Mr. P.Katoniar, Advocate For the Respondent : Mr. R.C.Sancheti, Advocate Date of hearing : 13.08.2015, 11.08.2015 & 23.07.15 Date of Judgment : 01.09.2015 JUDGMENT AND ORDER (CAV) The defendant of Title Suit No.195 of 1998 of the Court of learned Civil Judge (Senior Division) No.1 at Guwahati has preferred this First Appeal challenging the judgment and decree dated 26.09.2005 thereby, decreeing the suit for specific performance of contract as to conditions mentioned in Clause-1(i) to 1(iii) of the written agreement dated 25.08.1992 and also for payment of Rs.3,00,000/- in cash to the plaintiff within a period of 90 days. RFA 38 of 2006 Page 1 of 34 [2] The sole respondent, as plaintiff, instituted the aforesaid title Suit No.195 of 1998 in the Court learned Civil Judge (Senior Division)No.1 at Guwahati stating that being an owner in possession of a plot of land measuring 1 B 2K 10L covered by Dag No.913 and 1965 of K.P. Patta No.301 under Vilage Japorigog under Beltola Mouza of Guwahati, he entered into a registered agreement with the defendant on 25.08.1992 being registered deed No.5581 of Guwahati sub-registry agreeing to sell the same land to the defendant on various terms and conditions. The value of the land was mutually settled at Rs.20,00,000/- and it was decided that the same amount need not be paid entirely by cash but the plaintiff would get some amount in cash while in lieu of cash of the balance sum, he would be given built up area in the proposed multi storied building after the same is constructed by developing the land. Under Paragraph-1 of this agreement, it was settled that the plaintiff would get the following built up area:-
(i) Half of the built up area on the ground floor of the proposed North block of the complex as per the drawing No.GBA/891/03A dated 14.12.1990 by M/s Gautam Baruwa and Associates;
(ii) Half of the built up area on the mezzanine floor of the same building; and
(iii) Complete built up area on the first floor in the same building. [3] Apart from the aforesaid built up area, the plaintiff would also get an additional amount in cash and in case of deviation from the drawings the plaintiff shall always be entitled to the minimum built up area calculated as per the said drawing and any minor deviation either less or more than this entitlement shall be adjusted against the amount payable in cash by the defendant to the plaintiff. RFA 38 of 2006 Page 2 of 34 It was provided further that in the event of failure on the part of the defendant to fulfill the terms of the agreement, the plaintiff would be at liberty to terminate the agreement by giving 60 days notice in writing to the defendant and upon such termination the advance paid by the defendant would stand forfeited. The plaintiff was entitled to get 12,172 Sq. ft. of built up area in the following manner:
(i) Half of the ground floor which is equal to 2669.50 Sq. ft.
(ii) Half of the mezzanine floor measuring 2372.50 Sq. ft.
(iii) Complete first floor measuring 7130 Sq.ft. and thus, the plaintiff was entitled to a total of 12,172 Sq. ft. of built up area.
[4] It is further pleaded that till the date of institution of the suit, the defendant had constructed multi storied building up to 9th floor but allotted 1530 Sq. ft. built up area on the first floor, 1479 Sq. ft. in the mezzanine floor and 4315.11. Sq. ft. built up area in the third floor only. The defendant did nto allow the plaintiff any built up area in the ground floor and did not allot the first floor in entirety as earlier agreed and also did not allot the balance area as per the agreement. At this stage, the defendant took a new plea that built up area as mentioned in the agreement includes the common areas such as lift well, corridor, ducts, toilets lobbies etc. The plaintiff did not accept this new definition and asserted that built up area must be the area within the four walls allotted to the plaintiff and it should not include any common area. The plaintiff, therefore, took up the matter with the defendant from time to time and after several talks, defendant wrote a letter to the plaintiff on 9.03.1998 accepting the definition of the built up area as claimed by the plaintiff and also agreed to allot the remaining built up area as per the agreement. By issuing a letter subsequently RFA 38 of 2006 Page 3 of 34 on 16.03.1998, defendant confirmed the aforesaid definition of built up area as suggested by the plaintiff but projected that the plaintiff is entitled to 8804.77 Sq. ft built up area only out of which 7629.86 Sq. ft. of built up area has already been handed over. But actually the defendant had allotted only 7324.11 Sq. ft. and an area of 224.34 Sq. ft. was deducted on account of room No.201 out of the total built up area of 12172 Sq. ft.
[5] After several rounds of talks and meetings between the parties, the plaintiff issued a letter on 11.05.1998 requesting the defendant to allot the remaining area within one month failing which the agreement would be terminated and general power of attorney will be revoked. But the defendant instead of allotting remaining built up area took a different stand than the one taken in earlier letter dated 09.03.1998 and thereby gave a different meaning of the words 'built up area'. As per the said letter, the defendant claimed to have allotted 2,682.12 Sq. ft. in the first floor, 2586.20 Sq. ft. in the mezzanine floor and 5278.41 Sq. ft. in the third floor of the building to the plaintiff thereby claiming that 10,546.73 Sq. ft. of built up area have already been handed over to the plaintiff. This in addition to the area of 224.34 Sq. ft. in regard to room No.201 would amount to built up area of 10,771 Sq. ft already handed over and thus, the plaintiff was entitled to 1400.93 Sq. ft. of built up area only and that this balance area would be given to the plaintiff in the eighth floor. Aggrieved at such action of the defendant, plaintiff issued letter dated 16.06.1998 and refuted all charges alleged by the defendant in the letter dated 08.06.1998 and demanded balance built up area of 4623.55 Sq. ft. on the remaining floors as per agreement within 60 days failing which the agreement dated 25.08.1992 would be deemed to have been terminated after the notice period.
RFA 38 of 2006 Page 4 of 34 [6] The plaintiff further stated that apart from giving 12,172 Sq. ft. of built up area in the proposed building, the defendant was supposed to make payment of Rs.7,00,000/- to the plaintiff out of which he paid a sum of Rs.4,00,00-/- only and thus, plaintiff was entitled to balance Rs.3,00,000/- with interest @ 12% per annum since July 1994. The plaintiff, therefore, claimed that he is entitled to a decree for recovery of money not only of Rs.3,00,000/- as principal but also of Rs.1,50,000/- towards interest thereon till 22.09.1998. The plaintiff also claimed future interest @ 12% per annum on the said amount. With these averments the plaintiff prayed that a decree for specific performance of contract of Clause-1 of the agreement dated 25.08.1992 referred to above be passed, directing the defendant to allot balance built up area of 4623.55 Sq. ft. on the ground floor and the first floor in remaining balance area in the other floors of the North Block building known as Orion Tower and also for a money decree of Rs.4,50,000/- along with interest @ 12% per annum from the date of institution of the suit till realization and a further sum of Rs.20,00,000/- towards compensation for loss of income due to non-fulfillment of the agreement. He also made a prayer for prohibitory injunction against the defendant.
[7] On being summoned the defendant appeared and submitted a written statement contesting the claim of the plaintiff. Apart from denying the case of the plaintiff, the defendant took all usual objections like lack of cause of action, non maintainability of the suit, defect of parties, bar of limitation as well as proviso to Section 34 of the Specific Relief Act etc. The defendant also raised the issue that the plaintiff is not entitled to a decree of specific performance without expressing readiness and willingness to perform his part of contract and that claim of compensation and future interest cannot be claimed on the allegation of RFA 38 of 2006 Page 5 of 34 breach of contract. According to the defendant, the plaintiff is not entitled to injunction as prayed for without making out a clear breach of contract. [8] Coming to the merit of the case, the defendant pleaded that the plaintiff did not hand over 1B 2K 10L of land as claimed in Paragraph-3 of the plaint and had handed over much less land for which defendant informed the plaintiff by letter dated 1.10.1992 followed by letter dated 07.06.1993. The land was re-measured in presence of both sides and thereupon, it came to light that the land handed over by the plaintiff was 8.35 Lecha less than 1B 2K 10L. Because of this lesser area of land, the original drawing prepared by Gautom Baruwa, defendant's original architect could not be implemented and a new set of drawing had to be prepared by engaging another architect. However, in view of Clause-2 of the agreement in regard to deviation of drawing, the interest of the plaintiff was protected. Thus, the original drawings prepared by Gautom Baruwa became redundant except for calculating plaintiff's entitlement as to the built up area. Plaintiff by letter dated 30.03.1998 acknowledged the same and admitted that the original drawing had become 'meaningless'. According to the defendant, the original agreement dated 25.08.1992 did not quantify the built up area to be allotted to the plaintiff though claimed in Paragraph-3 of the plaint. The defendant further claimed that as per universally accepted definition of built up area in a multi storied building proportionate share of the common area such as lift well, lobbies, corridors, staircase etc are to be included so that right of egress and ingress to a premises is guaranteed to the apartment owner and the same principle has been applied in the present case. The defendant specifically claimed that in terms of Clause-1 of the agreement the plaintiff and the defendant jointly made calculation to determine the built up area to be allotted RFA 38 of 2006 Page 6 of 34 to the plaintiff and in so doing common areas such as staircase, lift well, lobby, corridors, toilet etc shown in the drawings were taken in to considerations as part of the built up area and thereupon, it was decided that the plaintiff would be entitled to 12172 Sq. ft. of built up area. The plaintiff confirmed this calculations by his letter dated 30.03.1998.
[9] Referring to the calculation of built up area in each floor as stated in Paragraph-6 of the plaint, the defendant pleaded that on the body of t he drawing itself the architect certified the total floor area of the mezzanine floor to be 440.97 Sq. meter which is equivalent to 4745 Sq. ft. and this includes all common areas such as staircase, lift wells, lobbies, toilets etc as shown in the drawing and this is why, the built up area of the mezzanine floor has been shown to be 2372.50 Sq. ft. by the plaintiff himself. According to the defendant, examination of all the three drawings which are part of the contract would show similar result in regard to other three drawings as well. In a sense, plaintiff himself has confirmed in Paragraph-6 of the plaint that built up area includes the common areas. Even in Paragraph-2 of the letter dated 25.07.1998 the plaintiff has accepted the position by referring to Paragarph-2 of the defendant's letter dated 08.06.1998. This principle of considering common area as part of the built up area was accepted by the parties since inception of the project and the plaintiff all along accepted the same.
[10] While replying to the statements made in Paragraph-7 & 8 of the plaint, the defendant stated that in view of handing over 8.35 Lechas less land than the agreed area of 1B 2K 10L discussions were held between the plaintiff and the defendant that the earlier drawing had become useless and they mutually had agreed on allotment of areas on different floors on the basis of the RFA 38 of 2006 Page 7 of 34 new drawings for the actual constructions and the plaintiff gave his signature in acknowledgement on 12.04.1994. The defendant confirmed the position in its letter dated 24.03.1995 while enclosing four drawings with the areas allotted to the plaintiff clearly marked therein and it was further mentioned that the same was mutually agreed between the parties. The said letter showed that plaintiff was being allotted in first floor, mezzanine floor, third floor and eighth floor as and when the building would be constructed. Even the same letter also contained in item No.3 that the built up areas allotted to him included common areas and service areas and most importantly in the last paragraph of the letter it was specifically mentioned that this agreement superseded all previous agreement between the two parties and that plaintiff also acknowledge this letter by reply dated 03.04.1995 without raising any objection. So, the plaintiff had in writing accepted as follows:
(i) That his allotment of built up area shall be in the floors designated letter dated 24.03.1995;
(ii) That built up area includes common areas and service areas; and
(iii) Allotment described in letter dated 24.03.1995 is in complete satisfaction of Clause-1(i) to 1(iii) of the original agreement dated 25.08.1992.
[11] The defendant further pleaded that the plaintiff was satisfied with such allotment on the first, mezzanine and third floor is also evidenced by Para-3 of his letter dated 06.03.1993 and this is why he requested the defendant for giving certificate of ownership in respect to these floors. Moreover, plaintiff thereafter applied for and obtained holding number with respect to these premises from Guwahati Municipal Corporation and has been paying taxes for the RFA 38 of 2006 Page 8 of 34 same. The plaintiff was handed over his entitlement as and when construction was made and the area handed over is shown in letter dated 24.03.1995. The plaintiff was given all the shops described in Clause-1(a) at first floor, all the shops described in Clause-1(b) in the mezzanine floor and the complete floor as described in Clause 1(c) in the third floor which comes to 10546.73 Sq. ft. for which plaintiff had already obtained holding number from the GMC. The defendant assured that balance area would be allotted to the plaintiff in the eighth floor as and when construction would be made.
[12] In paragraph-15 of the written statement, the defendant denied the allegation that a new plea was taken by including the common areas in the built up areas. The plaintiff had admitted in Para-1 of page-2 of his letter 15.09.1997 that common areas would be included in his allotment vide item No.1(b), 2(b) and 3(b) and in doing so the plaintiff himself relied on the letters dated 09.03.1998, 16.03.1998 issued by the defendant as to the entitlement and allotment of the built up area. However, by letter dated 30.03.1998 the plaintiff rejected the proposal out right by describing the same as not acceptable but this part of the matter has not been mentioned in the plaint which amount to suppression of material fact.
[13] According to the defendant by letter dated 08.06.1998, plaintiff was invited to take possession of the balance area in the eighth floor as full and final settlement of his entitlement as per letter dated 24.3.1995 issued by the defendant and confirmed by the letter dated 03.04.1995 issued by the plaintiff. In regard to room No.201, plaintiff was offered at a heavily discounted price as a gesture of good will for which plaintiff paid a sum of Rs.1,00,000/- on 29.03.1997 and another Rs.1,00,000/- on 2.05.1997. He also paid Rs.50,000/- on 04.02.1998 RFA 38 of 2006 Page 9 of 34 but did not pay the balance Rs.1,40,213/- till date for which it was mutually agreed that the area of 224.34 Sq. ft. would be adjusted against the total entitlement of the plaintiff on the eighth floor which he also admitted in his letter dated 30.03.1998. This is how, the total area handed over to the plaintiff came to 10771.07 Sq. ft. leaving only 1400.93 Sq. ft. to be handed over to the plaintiff which would also include proportionate share of the common area in the eighth floor. The plaintiff was informed that this built up area is ready and available for possession by the plaintiff at his earliest convenience. The letter dated 08.06.1998 issued by the defendant to the plaintiff explained all these necessary details. But even thereafter the plaintiff issued the notice on 16.06.1998 which has been replied by the defendant on 07.07.1998 requesting the plaintiff to substantiate his claim. This was followed by two letters on 27.07.1998 and 07.08.1998 but the plaintiff did not respond.
[14] Coming to the claim of money as made in Paragraph-18 of the plaint, the defendant pleaded that Clause-3 of the agreement dated 25.08.1992 provided for payment of Rs.7,00,000/- in cash out of which Rs.4,00,000/- has already been received by the plaintiff but the plaintiff in his letter dated 24.03.1995 agreed to contribute Rs.1,00,000/- towards exterior beautification of the building and thereafter, by letter dated 03.04.1995 plaintiff asked the defendant to adjust the amount due to him in cash. Even in letter dated 15.09.1997 the same has been confirmed. So far as the balance Rs.2,00,000/- is concerned, the plaintiff himself informed the defendant by letter dated 07.06.1993 that the amount equivalent to price of land which had fallen short, shall be deducted from the total amount and the same was mutually agreed to be Rs.4,00,000/- and this was confirmed by the plaintiff in his letter dated RFA 38 of 2006 Page 10 of 34 15.09.1997. Therefore, by admission of the plaintiff, he has already taken Rs.2lakhs more than his entitlement. This being the position the plaintiff is neither entitled to a decree of specific performance nor is he entitled to get any money decree from the defendant and so, the suit is liable to be dismissed with compensatory cost.
[15] Upon consideration of the pleadings of the parties, the learned trial court framed as many as 5 issues. But in course of argument the learned counsel for the defendant claimed that there should be three more issues are liable to be framed on the point of waiver, acquiescence and estopple and also in view of provisions of Section 12 and 18 of the Specific relief Act and Section 62 of the Contract Act. The learned counsel for the plaintiff objected to such reframing of issues. However, the learned trial court after hearing the parties reframed and rearranged the issues as follows:-
i. Is there any cause of action for the suit?
ii. Is the suit bad for non-joinder of necessary parties? iii. Is the suit time barred?
iv. Whether the agreement dated 25.08.92 bearing deed No. 5581 was executed between the plaintiff and the defendant and whether as per the said agreement, the defendant is bound to deliver to the plaintiff half of the built up area on the ground floor, half of the built up area of Mezzanine floor and complete built up are on the first floor of the building?
v. Is the plaintiff entitled to built up area on 12,172 sq.ft. and is entitled to a sum of Rs. 4,50,000/- as claimed in the suit together with Rs.20,00,000/-?
RFA 38 of 2006 Page 11 of 34 vi. Whether the suit is not maintainable in its present form in view of provisions of section 12 and 18 respectively of the Specific Relief Act, 1963 and Section 62 of the Contract Act? vii. Whether the suit is hit by the principle of waiver, acquiescence and estoppel?
viii. Whether the agreement dated 25.08.92 is liable to pay Specific Performance by the defendant in view of materials and substantial, alteration, modification, substitution and novation thereof by subsequent mutual stipulations and acquiescence? [16] In course of trial plaintiff examined 2 witnesses including himself. Plaintiff was examined as PW 1 and architect Gautam Baruwa was examined as PW 2. PW 1 proved 5 documents as Ext. 1 to Ext. 5 while PW 2 proved only Ext.
6. The sole defendant examined himself as DW 1 and adduced as many as 11 documents as Ext. A to Ext. K. Upon consideration of the evidence on record, both oral and documentary and upon hearing the learned counsel for the parties, the learned trial court passed the impugned judgment and decree dated 26.09.2005 and thereupon decreed the suit on contest for Specific Performance of Clause 1(i) to 1(iii) of the agreement dated 25.08.1992 and to deliver balance built up area of 4623.55 sq.ft. to the plaintiff as per the condition of aforesaid clauses of the agreement. The defendant was further directed to deliver possession of the said area and to execute necessary deeds 'to effectuate the allotment'. The learned court passed further decree for payment of Rs.
3,00,000/- to the plaintiff by the defendant within 90 days of the judgment and order and restrained the defendants from raising further construction on the suit land and from selling or renting any apartment/roofs/floors etc. till Clause No. RFA 38 of 2006 Page 12 of 34 1(i) to 1(iii) of the agreement are performed. However, no cost was decreed. Aggrieved, the sole defendant has preferred this appeal.
[17] I have heard Mr. DK Mishra, learned senior counsel assisted by Mr. PK Khatoniar on behalf of the appellant defendant and Mr. RC Sancheti, learned counsel for the respondent plaintiff. No reported or unreported judicial pronouncement has been relied on by any of the learned counsel. I have perused the pleadings of the parties and the oral and documentary evidence adduced by them.
[18] Mr. DK Mishra, learned senior counsel, has drawn attention of the court to Ext. 1, Ext. 2, Ext. 3, Ext. 4 and Ext. 6 along with the plaint and the amended written statement. According to him, before execution of the agreement (Ext. 1) on 25.08.92 M/s Gautam Baruwa and Associates, the architect of the defendant had prepared the drawing for the construction of the buildings. North Block of this apartment is the suit property and there is no dispute in regard to other properties. The parties entered into Ext. 1 written agreement keeping in view the building plan prepared by the architect and so it is necessary to peruse the drawing. Even in Ext. 1 it is recited at paragraph 1 that plaintiff would be entitled to built up areas on ground floor, mezzanine floor and first floor as per the drawing dated 12.12.90 although there was minor mistake in describing the drawing number. The parties were aware that there may be changes in the drawing and so made appropriate safeguard for the plaintiff at paragraph 2 of the agreement by providing that in case of deviation from the drawing mentioned therein the plaintiff would always be entitled to minimum built up area calculated as per the said original drawing and the minor deviations, either less or more than the entitlement, would be adjusted against the amount payable in cash by RFA 38 of 2006 Page 13 of 34 the defendant to the plaintiff. The payment schedule is provided in paragraph 3 of the Ext. 1 agreement. But after possession was handed over and measurement of the land was made it came to light that although the agreement had been entered into for a plot of land measuring 1 B 2 K 10 L but there was 8.35 lechas less than the said area and so it was not possible to make the construction as per the drawing prepared by Gautam Baruwa as referred in the Ext. 1 agreement. This being position, both the parties abandoned the earlier terms and conditions mentioned in paragraph 1 of the said agreement which would be evident from their conduct. Ext. 2 are the original drawings basing on which the Ext. 1 agreement was made. Pointing to Ext. 3 he argued that it is letter dated 09.03.98 written by the defendant to the plaintiff and this letter would show the real bone of contention between the parties. The defendant is agreeable to allot total built up area as agreed to between the parties at the time of execution of Ext. 1 but a difference of opinion cropped up later in regard to concept of the built up area. According to Mr. Mishra, built up area cannot be the area within the four walls of an apartment. An owner of an apartment cannot make use of his apartment without any means for ingress and egress and this is why he is bound to make use of the stair case, the lift, the lobby and other areas which are known as common areas. These common areas are owned by all the apartment owners jointly. While purchasing an apartment, one is bound to purchase proportionate title to such common areas as well and this is why it is an universally accepted proposition that built up area purchased by a purchaser includes not only the area within the four walls known as carpet area but it also includes proportionate share in the common areas. The parties entered into agreement knowing this basic fact but subsequently the plaintiff started claiming RFA 38 of 2006 Page 14 of 34 that area purchased by him should be within the four walls. In Ext. 3 letter the defendant not only made a reference to this difference of opinion in paragraph (1) and (2) but also indicated his intention to resolve the dispute between the parties. Accordingly, 7 days the defendant thereafter sent a letter on 16.03.98 to the plaintiff showing the recalculation as pledged in Ext. 3 letter. The letter dated 16.03.98 is Ext. 4. In this letter, the defendant informed the plaintiff that all common areas such as lift well, corridor, lobby, duct etc had already been excluded as suggested by the plaintiff and thereupon the plaintiff would be entitled to 8804.77 sq.ft. in all in three floors, namely, ground floor, mezzanine floor and third floor. As per the agreement plaintiff is entitled to half of the built up area of the ground floor, half of the built up area of the mezzanine floor and the complete first floor. As per the original drawing No. GBA/891/03-A, the built up area of the ground floor was 1824.68 sq.ft. in all. Similarly, that of mezzanine floor was 2641.96 sq.ft. and the complete third floor was shown as 6571.45 sq.ft. That being the position, the plaintiff was entitled to 912.34 sq.ft in the ground floor, 1320.98 sq.ft in the mezzanine floor and 6571.45 sq.ft. in the third floor. The total built up area already handed over to the plaintiff was 1611.875 sq.ft. in the ground floor, 1611.875 sq.ft. in the mezzanine floor and 4406.11 sq.ft. in the third floor and this is how plaintiff has already been given 7629.86 sq.ft. out of the total entitlement of 8804.77 sq.ft. and so the balance 1174.91 sq.ft. are to be handed over to him on the eighth floor. From this area 224.34 would be adjusted against balance payment of room No. 1 and so final built up area to be handed over to the plaintiff in the eighth floor would be 950.57 sq.ft. Pointing out to Ext. 6, he argued that the calculation given on Ext. 6 is absurd on the face of it and that it was prepared on 24.09.98, one day after institution of the suit only for the RFA 38 of 2006 Page 15 of 34 purpose of the litigation. In Ext. 6 built up area of ground floor has been shown as 415.39 sq.m and this is equivalent to 4469.59 sq.ft. but in paragraph 6 of the plaint, the plaintiff himself stated that half of the built up area of ground floor is 2669.50 which means that the total built up area of ground floor would be 5339 sq.ft. Similarly, in para (10) of the examination in chief plaintiff stated on oath that he is entitled to receive 12172 sq.ft. built up area in total out of which 2669 sq.ft ought to have been allotted in the ground floor. Thus, while the plaintiff himself pleaded and proved that total built up area of the ground floor was 5339 sq.ft. but in Ext. 6 this has been shown as 4469.59 sq.ft. (equivalent to 415.39 sq.m). He further argued showing Ext. 6 total built up area has been shown by PW 2 at the mezzanine floor to be 374.26 sq.m and this is equivalent to 4027.03 sq.ft. The half of this would be 2234.795 sq.ft. But in paragraph 6 of the plaint and in paragraph 10 of the examination in chief the plaintiff had stated that half of the mezzanine floor was 2372.50 sq.ft. Coming to the calculation of built up area in the first floor as per Ext. 6, the PW 2 has claimed the same to be 984.86 sq.m which is equivalent to 10597.09 sq.ft whereas in paragraph 6 of the plaint as well as in paragraph 10 of the examination in chief, the plaintiff himself showed that the total built up area in the first floor was only 7135.92 sq.ft. Moreover, if the built up area as shown in Ext. 6 is considered, the plaintiff would be entitled to the following built up area in total:-
Ground floor = 2234.79 sq.ft.
Mezzanine floor = 2013.51 sq.ft.
First floor = 10597.09 sq.ft.
__________________________
Total built area = 14,845.39 sq.ft.
RFA 38 of 2006 Page 16 of 34
But both in the pleading and in his deposition plaintiff claimed that he is entitled to 12,172 sq.ft. and so the Ext. 6 is beyond pleading and is also absurd. This exhibit, therefore, does neither help the plaintiff nor does it disclose the facts.
[19] Mr. Mishra by pointing out to the Ext. 2 drawings as prepared by PW 2 argued that drawing of the mezzanine floor exhibited by the plaintiff himself shows that total floor area in the North Block is 440.97 sq.m. This, if converted into square feet would be 4745 sq.ft and half thereof, would be 2372.50 sq.ft. The same area has been shown by plaintiff in paragraph 6 of his plaint so there is no dispute that total built up area of the mezzanine floor irrespective of whether it is described as floor area or not, it is 4745 sq.ft. From Ext. 2 in so far as it relates to drawing of mezzanine floor is concerned, the total floor area is same as that of total built up area as pleaded in paragraph 6 of the plaint. Now, the drawing of mezzanine floor itself contains common areas like staircase, lift well etc. and so it is clear that even in the drawing the total built up area included the common areas like lift well staircase, lobby etc. The PW 2 who prepared the drawing nowhere has made any positive statement that total floor area of the mezzanine floor does not include the common areas. According to Mr. Mishra, both the parties, therefore, were aware even at the time of execution of the agreement that the total built up area included the common areas. Even the plaintiff himself admitted in Ext. H at page 2 that he had been allotted possession of built up area in the first floor to the extent of 1464.50 sq.ft. in addition to common area in proportionate basis to the extent of 558.19 sq.ft. In mezzanine floor he had been allotted ten shop units measuring 1414 sq.ft. in addition to common area in proportionate share to the extent of 544.74 sq.ft. Similarly, in RFA 38 of 2006 Page 17 of 34 the third floor he got the complete built up area of 4205 sq.ft. in addition to common area (lift well, lobby, staircase, duct, toilet etc.) and this is how plaintiff had been handed over total built up area of 8736.43 sq.ft. Evidently, this 8736.43 sq.ft consists of 7083.50 sq.ft exclusively and 1652.93 sq.ft. jointly in the common areas. These calculations have been shown from page 2 of Ext. H, a letter written by plaintiff to the defendant on 15.09.97 and it was exhibited through the plaintiff during his cross examination as PW 1 and the plaintiff has not denied the content of this letter. Plaintiff has not denied to have issued the letter. The Ext. H, according to Mr. DK Mishra, finally negates the claim of the plaintiff that total built up area available to him as per paragraph 1 of the Ext. 1 agreement does not include common areas which is the only substratum for the suit. If this proposition goes, the whole suit of the plaintiff crumbles down. The learned trial court committed error in not noticing these apparent and glaring relevant aspects but for which the impugned judgment and decree has been vitiated. The suit, therefore, is liable to be dismissed by setting aside the impugned judgment and decree, Mr. Mishra argued.
[20] Mr. Mishra also argued by showing Ext. F that the defendant on 24.03.95 informed the plaintiff that as per mutual agreement entered into on that date plaintiff would be given areas at various floors including mezzanine floor and that he would be given total built up area of 12172 sq.ft. including common areas and service areas. Apart from that the available furnishings were also mentioned in the said letter. By showing this letter Mr. Mishra argued that it establishes deviation from original agreement dated 25.08.92 and also inclusion of common areas in the built up area. Even thereafter on 06.08.97, the plaintiff had asked for certificate of ownership and certificate of possession from the RFA 38 of 2006 Page 18 of 34 plaintiff without expressing any grievance about the allotment and possession. This letter dated 06.08.97 has been admitted in evidence as Ext. 5 without any objection. Thereafter on 12.08.1997 vide Ext. G defendant had informed the plaintiff in writing that he had already possessed the G.M.C. holding numbers for the areas allotted to him on the first, mezzanine and third floors and that agreement for the eighth floor had been drawn up for his signature during the next visit to Guwahati for which an advance copy was also sent to him. In that letter the built up area already handed over to the plaintiff was shown as to 2630 sq.ft. in the first floor, 3066 sq.ft. in the mezzanine floor and 5330 sq.ft in the third floor in December, 1996 itself. Thus, plaintiff had already got 11,026 sq.ft. from the defendant and he was entitled to balance 1,146 sq.ft which would be given in the eighth floor. It is only thereafter the Ext. H letter dated 15.09.97 was issued by the plaintiff to the defendant admitting that he had been given proportionate share in the common areas to the extent of 1652.93 sq.ft. in all (558.19 sq.ft. in the first floor + 544.79 sq.ft. in the mezzanine floor + 540 sq.ft. in third floor = 1652.93 sq.ft in all).
[21] Coming to the plea as to money claim made by the plaintiff, Mr. DK Mishra has pointed out that on his own showing, the plaintiff had received Rs. 4,00,000/- from the defendant during the period from August, 1992 to December, 1994. He by that letter allowed adjustment of Rs. 1,00,000/- towards beautification of the commercial building. He also himself valued the less amount of land handed over by him after physical verification at Rs. 4,00,000/-. This is because plaintiff was supposed to hand over 1 B 2K 10 L of land to the defendant but on physical verification it was found that he had handed over only 1 B 2 K 1.65 L and thus there was a deficit of 8.35 L for which there was a RFA 38 of 2006 Page 19 of 34 corresponding diminution in the total value of the land. The land was originally valued at Rs. 63,00,000/- as shown in Ext. H and the plaintiff himself calculated the price of 8.35 L to be Rs. 4,00,000/- in his letter dated 15.09.97 (Ext. H) at paragraph (4). So, plaintiff had already received Rs. 9,00,000/- in all although he was supposed to have received Rs. 7,00,000/- as claimed in paragraph 18 of the plaint. The plaintiff, therefore, is not entitled to Rs. 3,00,000/- as claimed by him in paragraph 18 of the plaint and his claim of money is demolished by his own letter Ext. H. The impugned judgment and decree for the money component, therefore, is vitiated for non-consideration of this valid piece of evidence. [22] Appearing for the sole respondent, Mr. RC Sancheti, learned counsel argued on the other hand that the learned trial court has not committed any error in passing the impugned judgment and decree. The defendant appellant undertook by entering into Ext. 1 agreement to hand over 12,172 sq.ft. of built up area to the plaintiff respondent and it is specifically mentioned in the paragraph 2 of this agreement that even if there is any deviation from the drawing prepared by M/s Gautam Baruwa & Associates, the plaintiff shall continue to remain entitled to 12,172 sq.ft. of built up area. Because of certain circumstances, the first drawing prepared by M/s Gautam Baruwa & Associates had to be abandoned but this does not mean that the agreement as a whole has ceased to exist. Even the defendant has not denied its liability to hand over 12,172 sq.ft. of built up area to the plaintiff but the defendant has taken a new stand by saying that the built up area would also include the common areas. This was never the intention of the parties at the time of entering into the agreement and this is also evidenced by defendants letter dated 09.03.1998. The defendant had specifically disclosed in this letter that they would agree to the plaintiff's RFA 38 of 2006 Page 20 of 34 definition of built up area which means that built up area means the area within the four walls excluding the common areas such as lift well, lobby, corridor etc. But by taking a different stand in Ext. 4 letter defendant in fact included the common area in the definition of the built up area and so such revocation of the agreement would be impermissible. The defendant actually handed over 7548.45 sq.ft. of built up area and so is liable to hand over balance 4623.55 sq.ft. to the plaintiff. The learned trial court having considered the relevant documents have come to finding that the plaintiff is entitled to specific performance of Clause 1(i) to 1(iii) of the agreement along with decree for recovery of money and as such there is no merit in the appeal which, accordingly, is liable to be dismissed. [23] Having heard the learned counsel for the parties and on perusal of the respective pleadings as well as the evidence on record vis-à-vis the findings of the learned trial court, the following points for determination are found to arise in the present appeal:-
i) Whether the parties had entered into agreement knowing that 'built up area' as mentioned in Ext. 1 agreement includes the common area?
ii) Whether the plaintiff is entitled to specific performance as claimed?
iii) Whether plaintiff is entitled to a money decree as prayed for?
Point No.1 Whether the parties had entered into agreement knowing that 'built up area' as mentioned in Ext. 1 agreement includes the common area? [24] Although it is apparent from the pleadings and evidence led by the parties that the bone of contention between them is about the concept of built up area but no issue was framed by the learned trial court on this point. RFA 38 of 2006 Page 21 of 34 However, parties have led evidence to establish their respective view as to whether built up area includes common area or not. The learned trial court did not make any discussion as to what was meant by the parties as to 'built up area' when they had entered into Ext. 1 agreement. The learned trial court by avoiding this discussion has impliedly accepted the definition given by the plaintiff and the possible reason for so doing appears to be recital of Ext. 3 letter dated 09.03.1998 whereby the defendant appears to have accepted the definition of the plaintiff. It is, therefore, necessary to decide as to whether the defendant had really abandoned its own definition of 'built up area' and accepted the proposition of the plaintiff that 'built up area' excludes common areas like lift well, lobby, staircase etc. While Mr. Sancheti strenuously urged that in last paragraph of the Ext. 3 letter the defendant had expressly accepted the plaintiff's definition, Mr. Mishra argued to the contrary. To understand this question, the Ext. 3 is carefully perused. The relevant part of the letter dated 09.03.1998 (Ext.
3) is quoted below for ready reference:-
"(1) That the "built up area" as in clause 1(i), (ii) & (iii) of the Agreement between yourself and the Company (Deed No. 5581 dt.
25.08.92) should be defined as "the area within the four walls excluding the common areas such as lift well, lobby, corridor etc."
(2) That our method of calculation and the area so calculated is not acceptable to you.
Since we wished to resolve this long outstanding issue as early as possible, we agree to your definition of "built up area'' and shall recalculate the area to be allotted to you and shall inform you shortly". RFA 38 of 2006 Page 22 of 34 [25] Ext. 3 letter dated 09.03.1998 indicates that the parties were at variance in regard to definition of 'built up area' and thereupon the defendant accepted the case of the plaintiff and assured to recalculate the area to be allotted to the plaintiff. The defendant also assured that the outcome of the recalculation would be intimated to the plaintiff shortly. The next communication by the defendant in this regard is the letter dated 16.03.1998 i.e. a letter sent by the defendant 7 days after the issuance of the letter dated 09.03.1998 (Ext. 3). The letter dated 16.03.1998 has been produced and exhibited by the plaintiff as Ext. 4. In this letter the defendant stated in page 1 under paragraph A and B that the plaintiff was entitled to 912.34 sq.ft. of 'built up area' being half of ground floor, 1320.98 sq.ft. being half of mezzanine floor and 6571.45 sq.ft. being total of the first floor and thus plaintiff was entitled to 8804.77 sq.ft. out of which he was already handed over 1611.875 sq.ft. at the ground floor, 1611.875 sq.ft. in the mezzanine floor and 4406.11 sq.ft. in the third floor and so plaintiff had already got 7629.86 sq.ft. This was disclosed in paragraph C of the letter. Thereafter further entitlement of the plaintiff was shown to be 1174.91 sq.ft. in paragraph D by deducting 7629.86 sq.ft. from 8804.77sq.ft. From this 'built up area' again 224.34 sq.ft. was adjusted against Room No. 201 and finally, plaintiff was said to be entitled to 950.57 sq.ft. in the eighth floor. Plaintiff is aggrieved by this letter on the ground that it is not in conformity with the previous letter dated 09.03.1998. According to Mr. DK Mishra, the defendant did not accept the contention of the plaintiff that 'built up area' does not include common area as without common area no one can make use of his apartment. Unless there is means for ingress and egress, there is no question of purchasing a flat. The whole apartment complex is owned by the flat owners. They own the common RFA 38 of 2006 Page 23 of 34 areas jointly and the carpet area exclusively. It is the consistent stand of the appellant that parties had accepted this ground reality and the plaintiff was no exception. Mr. Mishra has drawn attention of the court to Ext. H to show that even the plaintiff admitted to have got common area in proportionate share basis. I have perused Ext. H carefully. It is a letter dated 15.09.1997 written by the plaintiff to the defendant. This letter is important not only for the purpose of understanding the stand of the parties as to definition of 'built up area' but also for understanding the dispute between the parties on the money component. For the time being let us confine to the aspect relating to 'built up area' only. In this letter, after giving the calculation as to money component of the deal, the plaintiff narrated that he had been allotted possession of the 'built up area' as mentioned therein. The relevant part of this letter is quoted below for ready reference:-
"Till date I have been allotted possession of built up area in the following manner.
1.(a) Complete built up area i/e peripherial walls in the Ist Floor comprising of 10 shop units..............................................................................:- 1464.50 Sq.Ft.
(b) Common area in proportionate share basis.................. :- 558.19 ,, ,,
2.(a) Complete built up area i/c peripherial walls in the Mezzanine Floor comprising of 10 shop units................................................ :- 1414.00 ,, ,,
(b) Common area in proportionate share basis.................. :- 544.74 ,, ,, (3) a. Complete built up area i/c peripherial walls in the 3rd Floor........................................................... :- 4205.00 ,, ,, b. Common area (lift well, lobby,staircase,duct,toilets etc.)...:- 540.00 ,, ,, _______________ Total:- 8726.43 Sq.Ft.
RFA 38 of 2006 Page 24 of 34
Therefore the balance area (12172 Sq.Ft. - 8726.43 Sq.Ft.) 3445.57 Sq.Ft. will be accommodated to me in the top floor. And the cost of the remaining portion in that floor will be paid to you before start of construction in the said floor."
[26] If Ext. 3 and Ext. 4 are studied and compared it would appear that prima facie, defendant undertook to accept the definition of 'built up area' given by the plaintiff and thereafter deferred the matter for recalculation of the entitlement on the light of such definition. But in the subsequent communication, the defendant made recalculation as to entitlement of the plaintiff by applying his own definition of the 'built up area' and thus included common areas in the 'built up area'. This letter was written on 16.03.1998. But prior to that it is the plaintiff who had accepted the concept of 'built up area' as given by the defendant in his letter dated 15.09.1997 and made his own calculation about the entitlement of 'built up area'. According to the version of the plaintiff in the said letter dated 15.09.1997 (Ext. H), he was allotted possession of 8726.43 sq.ft of 'built up area' in total in three floors, namely, first floor, mezzanine floor and the third floor. Out of this total 'built up area' of 8726.43 sq.ft. plaintiff himself admitted in the said letter that there was 558.19 sq.ft. common area in the first floor, 544.74 sq.ft. common areas in the mezzanine floor and 540 sq.ft. in the third floor. Thus, out of 8726.43 sq.ft. 'built up area' handed over to the plaintiff, there was 558.19 sq.ft. + 554.74 sq.ft. + 540 sq.ft. = 1652.93 sq.ft. common areas and balance 7083.50 sq.ft. under exclusive possession of the plaintiff. The plaintiff after showing this calculation claimed thereafter that he was still entitled to 3445.57 sq.ft. in the top floor i.e. eighth floor. The sum of 8726.43 sq.ft. + 3445.57 sq.ft. is 12172 sq.ft. and so there is logic behind this calculation shown by the plaintiff. RFA 38 of 2006 Page 25 of 34 Once this calculation is accepted, it is to clear that prior to issuance of letter 09.03.1998, the plaintiff had accepted the proportion that built up area would include common areas. If plaintiff had accepted the proposition of the defendant in regard to concept of 'built up area' he cannot resile subsequently in view of bar under section 5 of the Indian Contract, 1872.
[27] However, as a matter of abundant caution it is necessary to verify from a different angle as to whether parties had understood common areas as a part of 'built up area' at the time of execution of the agreement and atleast prior to cropping up of the dispute between them. It is clear from above that drawings prepared by M/s Gautam Baruwa & Associates which are exhibited as Ext. 2 (series) and the same are the basis for execution of Ext. 1 agreement. It is only after physical verification of the land it came to light that the land under agreement was 8.35 L less than 1 B 2K 10 L and so the Ext. 2 maps became useless but for which Ext. A, B, C maps had to be prepared by engaging a different set of architects. Parties were aware even at the time of execution of Ext. 1 agreement that there is likelihood of deviation from the Ext. 2 drawings prepared by M/s Gautam Baruwa & Associates and this is why to safeguard the plaintiff who is the land owner appropriate provision has been made in paragraph 2 of the Ext. 1 agreement itself. Thereby it has been made clear that even if there is deviation from the drawing, plaintiff will continue to remain entitled to 12,172 sq.ft. of 'built up area'. To understand as to what was the idea of the parties about 'built up area' at that time is not expressed in the Ext. 1 agreement but there are clues in Ext. 2 drawings basing on which the Ext. 1 agreement was signed. The drawing of the mezzanine floor in Ext. 2 contains a key to find answer to this question. The drawing shows total floor area of the mezzanine RFA 38 of 2006 Page 26 of 34 floor in the North Block as 440.97 sq.m. This calculation is given in the C.G.S. system and its equivalent in the F.P.S. system can be found by multiplying this figure by 10.76391. This means that 440.97 sq.m. is equal to 440.97 x 10.76391 = 4745 sq.ft. This is the total area in the mezzanine floor in the North Block. Since, under the agreement plaintiff is entitled to half of this floor he is entitled to get 2372.50 sq.ft being half of 4745 sq.ft. In paragraph 6 of the plaint and paragraph 10 of his examination-in-chief, the plaintiff has claimed exactly the same amount of the 'built up area' in the mezzanine floor. So, there is no dispute between the parties that mezzanine floor under the drawings of M/s Gautam Baruwa & Associates as exhibited vide Ext. 2 measured 4745 sq.ft. only. Now, if this drawing is perused it would appear that apart from the rooms, there are lift well, staircase, lobby etc. in this floor as well. This being the position, 4745 sq.ft. being the total 'built up area' of this floor definitely included the common areas like lift well, lobby, staircase etc. as well. That means, the parties were aware at the time execution of the agreement that 'built up area' within the meaning of Ext. 2 drawings included common areas.
[28] Lastly, the concept of vertical village as initiated in post partition State of Maharastra which by now has been inculcated by the rest part of the country leading to legislation by the respective Governments is based on concept of community life where joint ownership of the ingress and egress and common facilities have been recognized. The concept of vertical village became a necessity in view of paucity of urban land associated with population explosion. One cannot afford to have an independent house with exclusive passage, lobby, staircase and all but he has the necessity for the same. This is why under the flat ownership system, the purchasers have to go for joint ownership of some RFA 38 of 2006 Page 27 of 34 facilities which are known as common facilities as well as common areas. Joint ownership of common areas has to be purchased because it involves construction cost and this is why a flat owner apart from purchasing his exclusive carpet area is required to purchase proportionate title to the common areas and is duty bound to contribute for its time to time maintenance and repairing. This has become a matter of general recognition that 'built up area' purchased by a flat owner includes proportionate share in the common areas as well. The first point for determination is accordingly decided in favour of the appellant and against the respondent plaintiff.
Point No.2 Whether the plaintiff is entitled to specific performance as claimed? [29] The parties had entered into agreement dated 25.8.1992 vide Ext.1. The plaintiff being the owner in possession of the land handed over the same to the defendant on the consideration that he would be paid some amount in cash and he would be given some built up area. The consideration for transferring the ownership of land, therefore, was of two categories. Coming to the component of finished built up area, the parties relied on Ext.2 drawings and based on calculation of floor areas as made in the said drawings. The plaintiff was entitled to get his share in 3 floors of the building. He was entitled to get half of each of the ground floor and the mezzanine floor and the complete built up area of the first floor. This was the original contract between the parties. However, a scope for modification was left in the body of the agreement itself at paragraph 2. It is RFA 38 of 2006 Page 28 of 34 provided in this paragraph that in case of deviation from the drawings, the total entitlement of the plaintiff would remain the same.
[30] After there was physical verification of the land and the same was measured, the parties realized that there was 8.35 lechas of less land than what was mentioned in the agreement. So, the Ext.2 drawings became useless necessitating the parties to go for a set of fresh drawings. Upto this stage there is no dispute between the parties. The fact that land handed over by the plaintiff to the defendant was not 1 B 2K 10 L and that there was a deficit of 8.35 L is not disputed by the plaintiff. Consequently, it is also not disputed that because of such difference in the area of land defendant had to go for a fresh set of drawings. Under such circumstances, there was need for recalculation of the entitlement of the plaintiff. But in doing so it was not open to the defendant to diminish the 'built up area'. The entitlement of the 'built up area' of the plaintiff by all means is saved by paragraph 2 of the agreement. This is how by considering the floor areas of the building under the Ext. 2 drawings, parties arrived at the consensus that the plaintiff was entitled to 12,172 sq.ft. 'built up area' in all. Applying the formula of deviation prescribed under paragraph 2 of the agreement, it is to be seen whether under Ext. A, B and C drawings on the basis of which the North Block has been constructed, plaintiff has got 12,172 sq.ft. of 'built up area'. In view of the findings recorded under point No. 1 above, this 'built up area' would contain the common areas as well. Both the sides agree that plaintiff has not yet received 12,172 sq.ft. of 'built up area'. While according to the plaintiff vide paragraph 12 of the plaint he has got only 7324.11 sq.ft., he is entitled to 4623.55 sq.ft. more, the defendant does not agree to the same. According to him, plaintiff has already been handed over 7548.45 sq.ft. RFA 38 of 2006 Page 29 of 34 Forgetting this difference for the time being it is to be seen whether the plaintiff is entitled to the specific performance as prayed for.
[31] According to the averment and prayer made in the plaint, plaintiff is entitled to specific performance of clause 1(i) to 1(iii) of the Ext. 1 agreement dated 25.08.1992. Clause 1(i) to 1(iii) have been discussed above. By these clauses plaintiff became entitled to half of the 'built up area' of the ground floor, half of the 'built up area' of the mezzanine floor and complete 'built up area' of the first floor. The agreement between the parties in regard to plaintiff's accommodation in various floors referred to above, there is no saving clause in paragraph 2 like saving clause for the total floor areas. The part of the agreement as to total entitlement of 'built up area', therefore, is immutable and not subject to change and so, plaintiff is entitled to specific performance as to quantum of total 'built up area' subject to provisions of clause 2 of the Ext. 1 agreement. First, there is no saving clause for choice of floors in case there is deviation from the drawing. The defendant, therefore, cannot be compelled to accommodate the plaintiff in the floors mentioned in Ext. 1 agreement in case there is deviation from the drawing. There is deviation from the drawing and admittedly defendant is not responsible for the same as the plaintiff himself was not aware about existence of actual area of the land under the agreement. No building has been constructed as per agreement Ext. 1 and drawings Ext. 2. Consequently, the accommodation of 12,172 sq.ft. have to be made as per the drawing in Ext. A, B and C. Under section 12 of the Specific Relief Act, if a part of the contract is unable of being performed, in that event a party may be entitled to obtain decree for specific performance of that part of the contract only which RFA 38 of 2006 Page 30 of 34 is capable of being performed and shall be entitled for compensation for the remaining part.
[32] Moreover, in view of variation of the drawings resulting from discovery that there was less land in existence, parties appear to have modified their contract for which the plaintiff accepted 'built up area' in first floor, mezzanine floor and the third floor instead of ground floor, mezzanine floor and the first floor. From Ext. H the letter dated 15.09.1997 written by plaintiff shows that he had been allotted possession of 'built up areas' in the first floor, mezzanine floor and the third floor. Even in Ext. G, the letter dated 12.08.1997 written by the defendant to the plaintiff, the defendant claimed to have handed over 11,026 sq.ft. of 'built up area' to the plaintiff in December, 1996 and so, the plaintiff, according to the defendant, was entitled to 1,146 sq.ft. at the eighth floor. Thus, in correspondence by both sides it is apparent that the plaintiff did not object to accepting accommodation at first, mezzanine and the third floor of the building instead of ground, mezzanine and first floor as enumerated in the agreement. The learned trial court has not considered these aspects of the matter. The learned trial court has passed decree for specific performance of clause 1(i) to 1(iii) of the agreement on 26.09.2005 when the construction of the building has been completed and the plaintiff had already been accommodated in first, mezzanine and third floor of the said building. What would happen to those 'built up areas' which have already been handed over to the plaintiff 19 years ago which he is either enjoying or has transferred a part of it to various parties and so those parts cannot be returned by the plaintiff to the defendant even if he is given accommodation in the floors as mentioned in the agreement? The decree passed by the learned trial court, therefore, is vitiated for non-consideration of RFA 38 of 2006 Page 31 of 34 the aforesaid aspects of the matter. The learned trial court has not noticed that by accepting accommodation in December, 1996, the suit was instituted only in the year 1998 and so, plaintiff became estopped from reviving his claim under clause 1(i) to 1(iii) insofar as the same relates to choice of floors. Apart from that it has been stated at the bar that both the parties agreed before the Hon'ble Supreme Court during pendency of SLP that plaintiff would get the balance floor area in the eighth floor. Considering the entirety of circumstances including event of impossibility to accommodate under Ext. 2 drawings, acceptance of 'built up area' in other floors in deviation from clause 1(i) to 1(iii) of the Ext. 1 agreement and the agreement of the parties for providing 'built up area' at the eighth floor which is evidenced in the order of the Hon'ble Supreme Court copy of which has been provided by learned senior counsel, Mr. DK Mishra, the plaintiff is not entitled to accommodation in ground, mezzanine and first floor as mentioned in clause 1(i) to 1(iii) of the agreement but he is entitled to specific performance for getting balance 'built up area' in the eighth floor. What shall be the quantum of such entitlement, however, is different question and the same cannot be deduced from the evidence available on record more particularly, when both the parties do not agree on fact as to what is the total 'built up area' already handed over to the plaintiff and he has been enjoying the same for nearly two decades last. To get the answer to this question, a further evidence is necessary. The second point is accordingly decided partly in favour of the plaintiff and partly against him as indicated above.
Point No. 3 Whether plaintiff is entitled to a money decree as prayed for? RFA 38 of 2006 Page 32 of 34 [33] The learned trial court noticed that the land under agreement was valued at Rs. 63,00,000/- out of which Rs. 4,00,000/- was deducted being value of the less land measuring 8.35 L. But even thereafter decreed that plaintiff is entitled to Rs. 3,00,000/- being the balance sum payable to him by the defendant. In so doing, the learned trial court has not considered Ext. H letter dated 15.09.1997 written by the plaintiff to the defendant. In this letter plaintiff admitted to have received Rs. 4,00,000/- from the plaintiff during the period from August, 1992 to December, 1994. He also admitted that a sum of Rs. 1,00,000/- payable by him towards beautification of the building was liable to be adjusted against the cash entitlement and that Rs. 4,00,000/- was also liable to be deducted from the total entitlement. Thus, on his own showing, the plaintiff is no longer entitled to Rs. 7,00,000/- being his total cash entitlement as consideration. The price of the land itself being diminished by Rs. 4,00,000/- due to less land, the entitlement comes down to Rs. 3,00,000/- out of which Rs. 4,00,000/- had been received in cash and Rs. 1,00,000/- was payable by the plaintiff towards beautification of the building. But since the defendant did not file any counter claim or did not claim set off, although plaintiff appears to have received more than his entitlement, the defendant would not be entitled to recovery. The result is that, plaintiff is not entitled to any more money from the defendant and accordingly, this point is decided against the plaintiff and in favour of the defendant. The decree for Rs. 3,00,000/- along with interest passed by the learned trial court, therefore, is hereby set aside.
[34] Summing up, the plaintiff is entitled to specific performance of contract for getting balance of the 12,172 sq.ft. being his entitlement under the agreement dated 25.08.1992 but not entitled to specific performance of clause RFA 38 of 2006 Page 33 of 34 1(i) to 1(iii) thereof except total 'built up area'. Since there is no sufficient material available on record to arrive at a finding as to what is the total 'built up area' already handed over to the plaintiff, this Court is not in a position to pass a decree for specific performance and the matter has to be remanded to the learned trial court by setting aside the impugned judgment and decree to decide the following issue:-
What is the total built up area already handed over to the plaintiff and how much more 'built up area' is to be handed over to the plaintiff in the eighth floor of the building?
[35] The learned trial court shall decide the aforesaid issue after affording adequate opportunities to the parties to lead further evidence and shall also appoint Commission for the purpose. Since the suit is of the year 1998, the same may be done as expeditiously as possible preferably within a period of 6 months from today. Parties shall appear before the learned trial court on 30.09.2015 for receiving necessary orders. The Registry shall send down the records immediately.
[36] The appeal stands allowed. The impugned judgment and decree is hereby set aside subject to observations made hereinabove.
[37] No order as to costs.
JUDGE
Sumita / Biswas
RFA 38 of 2006 Page 34 of 34