Delhi District Court
Cs - 643/17 vs Sh. Rajinder Kumar on 6 September, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS - 643/17
M/s. R.G. Associates, through its partner
Sh. Rakesh Rajora
having its registered office at :
A3/253, Shahpur Jat, Panchsheel Park
New Delhi - 110049.
...........Plaintiff
VERSUS
1. Sh. Rajinder Kumar
S/o. Late Sh. Gurditta Mall
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
2. Sh. Vinod Kumar (since deceased)
S/o. Late Sh. Gurditta Mall
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
Through Legal Heirs :
2A. Smt. Kiran Verma
W/o. Late Sh. Vinod Kumar
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
2B. Sh. Gautam Verma
S/o. Late Sh. Vinod Kumar
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 1 of 18
2C. Sh. Sidharth Verma
S/o. Late Sh. Vinod Kumar
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
3. Sh. Davinder Kumar
S/o. Late Sh. Gurditta Mall
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
4. Sh. Narinder Kumar
S/o. Late Sh. Gurditta Mall
R/o. D10, Greater Kailash, EnclaveI
New Delhi - 110048.
5. Mrs. Aparna Khurana
W/o. Sh. Manesh Khurana
D/o. Late Sh. Virender
R/o. A12, Market Block
Ramprastha, Ghaziabad, U.P.
..........Defendants
Date of Institution : 15.04.2009
Date of Arguments : 02.08.2017
Date of Judgment : 06.09.2017
JUDGMENT
1. Plaintiff filed the suit for specific performance and permanent injunction against the defendants to handover vacant possession of the property to the plaintiff and to perform other obligation of CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 2 of 18 the collaboration agreement dated 16.11.2005 so that the property is developed and constructed as per the agreement between the parties, also seeking restraint of defendants from alienating suit property and / or creating any third party interest in it.
2. Adumbrated in brief the facts of the case of plaintiff are :
Plaintiff is a partnership firm duly registered and Mr. Rakesh Rajora, one of the registered partners of the plaintiff firm has filed the suit against the defendants. Defendants are coowners of the property bearing no. D10, Greater Kailash EnclaveI, New Delhi - 110048 admeasuring 303.33 sq. yards (hereinafter referred as 'suit property'). The defendants approached the plaintiff company for constructing and developing the aforesaid property after demolishing its existing structure and in pursuance thereof, and a collaboration agreement was duly recorded in a document on 16.11.2005 (hereinafter referred to as 'agreement') in respect of the said property.
3. It is further averred that in pursuance of the agreement, the plaintiff agreed to pay to the defendants a sum of Rs. 71,00,000/ out of which Rs. 4,00,000/ was paid in cash to the defendants on 16.11.2005 and the defendants executed the receipt for the same. It was further agreed that the balance of CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 3 of 18 Rs. 67,00,000/ was to be paid at the time of handing over of the vacant possession of the existing building for construction as per the terms and conditions of the agreement. In the agreement the actual date of handing over the possession was left blank at the request of defendants as they were to look for the alternative accommodation. The plaintiff approached the defendants in January 2006 to accept the balance payment as agreed and to hand over the vacant physical possession of the said property to start the work of construction but the defendants refused to give possession of the premises on the ground that they were still looking for some suitable alternate accommodation for their residence. Plaintiff again approached the defendants on 24.02.2006 to handover the possession of the property to start the construction work however defendants requested plaintiff to pay another sum of Rs. 1,00,000/ to arrange for the alternative accommodation and the plaintiff paid the same in cash and the defendants executed the receipt for the same. Thereafter, the plaintiff kept on contacting the defendants on different occasions and kept requesting them to handover the possession of the property but the defendants avoided the plaintiff on the same pretext. The defendants were not performing their part of the obligation under the agreement and adopted a very casual approach. The prices of the property had started increasing during that period.
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 4 of 18
4. It is further averred that the plaintiff sent a registered legal notice dated 13.06.2006 calling upon the defendants to perform their part of contract but the defendants instead of complying the same sent a reply dated 28.06.2006 stating that plaintiff backed out from the deal due to an order of the Supreme Court in a PIL by which the unauthorized construction carried out in the buildings in entire Delhi started getting demolished by MCD. The allegations leveled by the defendants against one of the partner of the plaintiff firm as alleged in the reply of defendants dated 28.06.2006 have been denied by the plaintiff.
5. It is further averred that when defendants did not perform their part of obligation as per the contract by not giving vacant possession of the property in question to the plaintiff not accepted the balance amount of Rs. 66,00,000/ despite approaching of the plaintiff on many occasions, the plaintiff finally gave a public notice on 21.05.2007 in Hindustan Times informing the public at large about its deal of the said property with the defendants but the defendants failed to abide by the terms of agreement dated 16.11.2005, hence this suit.
6. Defendants filed written statement denying the averments made by the plaintiff submitting that the plaintiff has no cause of CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 5 of 18 action to file the present suit as the plaintiff itself committed breach of the terms and conditions of the Collaboration Agreement dated 16.11.2005 and failed to perform its obligations and cancelled the collaboration Agreement and as such the suit is liable to be rejected under the provisions of Order VII Rule 11 CPC. Also was averred that the suit was barred by time as well as under section 14 of the Specific Relief Act, 1963.
7. It is averred in the Written Statement that the plaintiff after execution of the Collaboration Agreement dated 16.11.2005 did nothing and backed out from the deal due to the reason that just after the execution of the said agreement, the MCD started demolishing unauthorized constructions in the properties in Delhi in pursuance to the Orders passed by the Hon'ble Supreme Court of India in Public Interest Litigation. As the defendants are four brothers and residing with their respective families entered into the Collaboration Agreement with the plaintiff to have four independent flats and immediately shifted from their own residence to tenanted premises and started paying their respective rents. However the plaintiff's partners became unavailable for about three months and met the defendants after various visits and showed their inability to start performing their obligations in view of the demolition activities and market CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 6 of 18 conditions. No steps for the conversion of the property in question from leasedeed to free hold and no steps for the preparation and sanction of the plans from MCD were initiated by the plaintiff to give effect to the terms of the Collaboration Agreement dated 16.11.2005 thereby committing breach of the said agreement. After great insistence, the plaintiff's partners agreed to move forward and keeping in view the liabilities of rentals being incurred by defendants, paid a sum of Rs. 1 lakh on 24.02.2006 with a promise that necessary steps would be taken immediately. On 06.03.2006 the parties to agreement signed the drawings of the building plans so brought by the plaintiff and requested the plaintiff partner Sh. Rakesh Rajora to take necessary steps to start the construction as the same was already delayed but at that time Mr. Rakesh Rajora became furious and had torn the drawings so signed by the parties and said that the plaintiff is not interested in dealing with the defendants. The plaintiff's partners told the defendants that the Collaboration agreement dated 16.11.2005 stands cancelled and asked them to return a sum of Rs. 5 lakhs. The defendants decided not to play in the hands of the builders and decided not to construct the building and rather to continue to use the same for the residence of the defendants. Defendants prayed for dismissal of the suit.
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 7 of 18
8. Plaintiff filed replication in which it reiterated the facts of the suit and denied the averments of written statement.
9. Admission/denial of documents was conducted on 21.08.2009 wherein 5 documents of plaintiff were admitted by defendants and exhibited as Ex. P1 to P5 viz., Collaboration Agreement dated 16.11.2005 as Ex. P1; receipt of Rs. four lakhs dated 16.11.2005 executed by the defendants as Ex. P2; receipt of Rs. 1 lakh dated 24.02.2006 as Ex. P3; legal notice dated 13.06.2006 as Ex. P4 and reply dated 28.06.2006 to the legal notice as Ex. P5.
10. From the pleadings of the parties, following issues were framed on 16.03.2010:
1. Whether the plaintiff is entitled to a decree of specific performance in respect of property bearing no. D10, Greater Kailash EnclaveI, New Delhi and if so, its effect? OPP.
2. Whether the suit is barred under Section 14 of the Specific Relief Act and if so, its effect? OPD.
3. Whether the suit is not within the limitation? OPD.
4. Relief.
11. In evidence, plaintiff examined Sh. Rakesh Rajora, one of the CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 8 of 18 partners of the plaintiff firm as PW1 vide affidavit Ex PW1/X. PW1 relied upon documents viz., (i) Form 'A' of Registrar of Firms as Ex. PW1/1; (ii) Form 'B' of Registrar of Firms as Ex. PW1/2; (iii) Public Notice of 21.05.2007 in Hindustan Times as Ex. PW1/3; the copy of the construction specifications as Ex. P1/A which was a part of agreement Ex. P1. PW1 was cross examined.
12. Plaintiff also got examined Sh. Hemant Jain, one of the partners of M/s. S.B. Associates as PW2 vide affidavit Ex. PW2/X. PW2 was also crossexamined.
13. Plaintiff also got examined Sh. Raj Kumar, one of the partners of M/s. S.B. Associates as PW3 vide affidavit Ex. PW3/X. PW3 was also crossexamined.
14. Subsequent to expiry of defendant no.2 Sh. Vinod Kumar on 31.03.2013, on application under Order XXII Rule 4 CPC the legal representatives of defendant no.2 were substituted vide Order dated 14.02.2014.
15. Defendant no.1 Sh. Rajinder Kumar got examined himself as DW1 vide affidavit Ex. DW1/A and relied upon documents viz., (i) copy of Lease Agreement dated 13.12.2005 as Mark A;
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 9 of 18
(ii) copies of rent receipts Mark B (colly); (iii) copy of rent receipt dated 27.11.2005 as Mark C and (iv) copy of Summary of Accounts (colly) as Mark D. DW1 was crossexamined. Originals of Mark A to Mark D were not produced in defendant evidence.
16. Ld. Counsel for plaintiff has relied upon following precedents :
(i) M.C. Mehta Vs. Union of India, (2006) 3 Supreme Court Cases 399;
(ii) Ashok Kumar Jaiswal and Others Vs. Ashim Kumar Kar and Ors., 2014(2) MWN (Civil) 673;
(iii) M/s. Welcome Construction Vs. Starcon & Ors., 2016 SCC Online Cal 5026;
(iv) M/s. Best on Health Ltd. & Ors. Vs. M/s. Bestech India Pvt. Ltd., 2014 SCC OnLine P&H 11490 and
(v) Ahmmadsahab Abdul Mulla Vs. Bibijan, 2009 Law Suit (SC) 1479.
17. Ld. Counsel for defendant relied upon following precedents:
(i) JM Construction Pvt. Ltd. Vs. Krishna Sachdev & Ors., CS (OS) No. 1409/2007 IA No. 1138/2016 decided on 26.04.2017 by Hon'ble Mr. Justice Rajiv Sahai Endlaw;
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 10 of 18
(ii) Fatehji & Company & Anr. Vs. L.M. Nagpal & Ors., Civil Appeal No. 3912 of 2015 decided on 24.04.2015 by Apex Court and
(iii) Gurbir Kaur Vs. BDR Builders & Developers P. Ltd. O.M.P 253/2014 and IA No. 1282/2016 by Hon'ble Mr. Justice Vibhu Bakhru on 24.03.2017.
18.I have heard arguments addressed by Sh. Manish Sangwan, Ld. Counsel for plaintiff and Sh. Sanjiv Bahl, Ld. Counsel for defendants; also have gone through the written arguments/submissions and precedents relied by the Ld. Counsel for parties and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence and have also examined the record of the case.
19.My issue wise findings are as under :
Findings on Issue no. 1 and 2
1. Whether the plaintiff is entitled to a decree of specific performance in respect of property bearing no. D10, Greater Kailash EnclaveI, New Delhi and if so, its effect? OPP.
2. Whether the suit is barred under Section 14 of the Specific Relief Act and if so, its effect? OPD.
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 11 of 18
20. The foremost preliminary objection in Written Statement of defendants is that the suit was barred under the provisions of Section 14 of The Specific Relief Act 1963 and was not maintainable.
21. Following are the admitted facts interse parties to the lis:
Parties had entered into a collaboration agreement Ex. P1 dated 16.11.2005 for the redevelopment of the suit property. In terms thereof, Rs. 4 lakhs vide receipt Ex. P2 in cash were paid by plaintiff to defendants on 16.11.2005 and Rs. 1 lakh vide receipt Ex. P3 in cash was paid by plaintiff on 24.02.2006 to defendants.
22.Ex. P1 in para 2 at page 4 inter alia embodies of the term agreed interse parties that plaintiff was to carry out construction of a fresh building in suit property under collaboration, as per annexed construction specifications and building plans. The construction specifications are Ex. P1/A. No building plans as aforesaid are annexed with Ex. P1. In Ex. P1 and Ex. P1/A, there is no mention as to how many rooms including bed rooms, drawing room, dining room, kitchen, wash rooms, balconies, living room were to be constructed at the ground floor, first CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 12 of 18 floor which were to come in the share of the defendants with the four servant quarters to be raised at half portion of terrace of the second floor of the suit property. Even otherwise though the construction specifications Ex. P1/A contained broad parameters of the construction material, wood work, flooring, counters, polishing, bathrooms, kitchen, electricals, internal finishing, P.O.P. and external finish but they were not containing sufficiently precise terms to enable the Court to determine the exact nature of the work; for example good quality marble of approximately Rs.150 sq. ft. for the drawing, dining and passage was mentioned in Ex. P1/A. The precise quality of the marble was not specified. For all rooms, kitchen and bath rooms, there was mention of Indo Italian marble and for other areas, there was mention of Udaypur Green with border; but no rates or other specifications were there. The marble for drawing, dining and passage specified of Rs. 150 per sq. ft. was not having any further details. The building materials including marble have varied rates from various sources and they do not have any fixed rates. The enforcement of terms of the agreement in the fact of the matter require performance of a continuous duty that Court cannot supervise. There being no building plans alongwith Ex. P1 and Ex. P1A, it remains unexplained as to how many rooms, balconies, wash rooms, kitchen were to be so constructed by plaintiff for the CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 13 of 18 portions which would come in share of the defendants.
23. True that as per Ex. P1, it was the responsibility of defendant no.5 to get the 1/5th undivided share in the suit property mutated in her name in the records of DDA at her own cost and expenses having inherited it being sole legal heir from her parents on their demise. Nothing of the sort was got done by defendant no.5 to pave the wave and foundation for plaintiff to take steps for getting the suit property converted from lease hold into free hold from DDA. The suit property was not put at disposal of plaintiff by the defendants by delivering its possession as agreed. Defendant evidence is shorn of any admissible documentary evidence proved on record for defendants having obtained alternative accommodation for their residence, having shifted there for their place of abode or having taken any steps for handing over the possession of the suit property to plaintiff for its dismantling.
24. It is also a fact of the matter that no proposed plans of the suit property as per Ex. P1 are in existence by virtue of which the sanction for construction of buildings could be sought by plaintiff on behalf of defendants from concerned municipal authorities.
CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 14 of 18
25. In terms of law laid in the case of Ashok Kumar Jaiswal & Ors. (supra), suit at the instance of a developer (where the developer is a non owner party to the development agreement of the kind referred in said judgment) is not prohibited by Section 14 (3)(c) of the Specific Relief Act. Relying upon the law laid in the case of Ashok Kumar Jaiswal & Ors. (supra) the same ratio decisis was propounded in the case of Welcome Construction (supra).
26. Fact remains that the contract Ex. P1 and the construction specifications Ex. P1/A run into such numerous details and which are so dependent on the personal qualifications or volition of the parties, since though they embody broad specifications but sufficiently precise terms of the works are missing with respect to the materials to be used; also involving continuous duty for the court to supervise its performance in the fact of the matter. Accordingly, in the backdrop of their being no annexed plans agreed interse parties as per Ex. P1, the contract Ex. P1 is not specifically enforceable under Section 14(1) (b), (d) and (3)(c) of the Specific Relief Act, 1963. It is also so since even the broad parameters of number of bed rooms, wash rooms, balconies or their respective sizes are not accompanying Ex. P1 though it so finds mention, as elicited herein before, that building plans are annexed with Ex. P1. The CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 15 of 18 collaboration agreement of the nature alleged by the plaintiff is not one that could be specifically enforced.
27. Defendants have been able to discharge their onus on the issue no.2 and in the fact of the matter, in view of the aforesaid, the suit is held to be barred under Section 14 of the Specific Relief Act. The effect of the same is that the plaintiff is not entitled for decree of specific performance as sought. The plaintiff has not made an alternative prayer for compensation for breach, so there is also a bar in regard to award of any compensation under Section 21 of the Specific Relief Act. Accordingly, plaintiff is also not entitled for any permanent injunction against defendants for sale of suit property or creating any third party interest or parting with the possession of the suit property. Reliance placed upon the law laid in the case of Vinod Seth Vs. Devinder Bajaj & Anr., 2010 (8) SCC 1 and the decision of Hon'ble Mr. Justice Vibhu Bakhru in OMP 253/2014 and IA No. 1282/2016 decided on 24.03.2017 in High Court of Delhi. Issues no. 1 and 2 are decided against the plaintiff and in favour of defendants.
Findings on Issues no. 3
3. Whether the suit is not within the limitation? OPD.
28. Ex. P1 in para 5 had a blank with respect to the date of handing CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 16 of 18 over of possession and the date of handing over of physical possession of the suit property by defendants to plaintiff was not specified but it was so specified therein that the construction of the suit property was to be completed in 10 months from the date of handing over of the possession of the suit property.
29. It is own averment of the plaintiff PW1 that after the payment of Rs. 1 lakh on date 24.02.2006, the defendants avoided handing over the possession of the suit property on one pretext or the other. Only in crossexamination of PW1 on 24.09.2011, PW1 admitted of their being a meeting held on 06.03.2006 between him, his partner as well as defendants. PW1 in cross examination elicited that rough drawings were brought by the defendants from Architect which were signed by him as well as defendants on 06.03.2006 but in said meeting, defendants got annoyed and tore away these drawings. Per contra, DW1 elicited that after such drawings were signed by plaintiff and defendants, they were torn by plaintiff and not by defendants. The events of meeting of date 06.03.2006 find no mention in the pleadings in plaint, affidavit Ex. PW1/X and even in replication despite assertion of own version by defendants in their written statement. Even if the version of plaintiff/PW1 is presumed to be correct, by preponderance of probabilities, the fact of defendants having tore away the signed drawings of CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 17 of 18 construction to be raised on the suit property had put the plaintiff to notice that specific performance of contract had been refused by defendants on 06.03.2006; in terms of Article 54 of the Schedule of The Limitation Act 1963. The time begins to run from 06.03.2006 for period of limitation of three years for plaintiff to file the suit for specific performance. The suit has been filed on 15.04.2009 i.e. later to expiry of three years period when time had begun to run on 06.03.2006. Accordingly, the suit has been filed beyond the period of limitation. Issue no.3 is decided in favour of defendants and against plaintiff.
Relief
30. In view of my findings with respect to issues no. 1 to 3, the suit of the plaintiff is dismissed. Parties are left to bear their own costs.
Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (GURVINDER PAL SINGH) Court on 06.09.2017. Additional District Judge 01(SE), Saket Courts, New Delhi. (sm) CS - 643/17 M/s. R.G. Associates Vs. Rajinder Kumar and Ors. page 18 of 18