Delhi District Court
Shashi Sharma vs Sh. Arun Khanna on 26 March, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
CS No. : 32/14
In the Matter of :
1. Shashi Sharma
W/o Sh. Vijay Kumar Sharma
House no. 3469, Raja Park,
Rani Bagh, Shakur Basti, Delhi - 34
2. Mrs. Madhu Sharda
W/o Late Sh. Inder Mohan Sharda
House no. 52, Sector 19A, Chandigarh
Presently at House no. 5/3, Punjabi Bagh Ext. , New Delhi 26
3. Mrs. Renu Sharma
W/o Sh. Kamlesh Kumar
R/o H. No. 5/3, Punjabi Bagh Ext. , New Delhi 26
4. Ms. Ritu Sharma
D/o Late Sh. Om Prakash Sharma
R/o H. No. 5/3, Punjabi Bagh Ext. , New Delhi 26
5. Mr. Vinu Kumar Sharma
S/o Late Sh. Om Prakash Sharma
R/o H. No. 5/3, Punjabi Bagh Ext. , New Delhi 26
.........Plaintiffs
Vs.
Sh. Arun Khanna
S/o Late Sh. Hira Lal Khanna
CS No. : 32/14 1/39
R/o House no. 5/3, Punjabi Bagh Extension
New Delhi 26
.........Defendant
Date of Institution : 21.05.2009
Date of Arguments : 04.02.2015, 09.02.2015 and 21.03.2015
Date of Judgment : 26.03.2015
JUDGMENT
1. This is suit for damages, mandatory and permanent injunction filed by plaintiffs against the defendant. The facts as pleaded in the plaint are that the property bearing house no. 3, Road no. 5, Punjabi Bagh Ext. , New Delhi - 26 belonged to Late Sh. Om Prakash Sharma who was the sub lessee in the said property vide sub lease dated 27.8.1973 and after his demise, the property fell in the names of all the legal heirs who are plaintiffs herein. Plaintiffs being the owners of said property entered into a collaboration agreement/agreement of construction with defendant on 5.5.2005 and relevant documents were also executed between the parties in terms of which the defendant had agreed for renovation of ground floor and new construction of first floor and second floor of the suit premises and in turn plaintiffs had offered the first floor without roof rights to the defendant. Sum of Rs. 18 Lacs were also required to be paid to the plaintiffs by the defendant and it was made clear that the defendant shall hand over the finished floor of the plaintiff's part to them and then give the possession of the first floor to the prospective buyer. In pursuance to the agreement, defendant paid the sum of Rs. 18 Lacs in phased manner and after final payment of Rs. 1,30,000/ to the plaintiffs vide post dated cheque on CS No. : 32/14 2/39 9.12.2005, the possession of ground floor as well as entire roof had been handed over to the defendant in first week of July 2006 and it was assured by the defendant that the entire work shall be completed within a period of ten months. As stated, due to construction which had been started on the ground floor, the condition of same became completely inhabitable and for the said reason, defendant had arranged a leased accommodation in House no.1, Road No.1, Punjabi Bagh Extension, New Delhi26 for plaintiff no.5 from 10.7.2006 to 9.7.2008 vide lease dated 10.7.2006 and it was assured by the defendant that the construction of house shall be duly completed by April 2007 and till then rent of the alternative premises shall be paid by defendant. However, the construction of property in question had been substantially delayed without any fault on the part of plaintiffs and plaintiffs were constrained to vacate the tenanted premises after their overstay till January 2009 since the defendant also stopped paying the rent of said tenanted premises and plaintiffs due to financial constraints were forced to shift to second floor of property in question though the same was not in habitable condition, whereas the ground floor was also in badly dilapidated condition. As stated, the defendant in order to carry out the construction on first and second floor had virtually dismantled/demolished the substantial portion of the ground floor and not only this even the electric and water connections had been got disconnected and a temporary commercial electric meter for construction had been applied and got installed which also stood surrendered by the defendant after obtaining a new regular electric connection for the first floor which he had occupied illegally, unauthorisedly and against the terms of collaboration, whereas plaintiff had to obtain the electric and watter connection CS No. : 32/14 3/39 for the ground floor and second floor portion of their premises at their own cost. Since the construction work was substantially delayed due to which plaintiffs were facing many problems, a legal notice dated 13.3.2009 was served upon the defendant but of no use and rather the plaintiffs were threatened that if the sale deed/registry in respect of the first floor is not executed by the plaintiffs in favour of the defendant, then on the basis of agreement to sell, he would dispose off / transfer the physical possession of first floor to such bad elements who would in turn make the lives of plaintiffs a real hell and miserable, who, as stated, is also attempting to part with the possession of the first floor to prospective buyers. Hence, present suit was filed by plaintiffs against the defendant seeking reliefs as mentioned in plaint.
2. In response to the suit of the plaintiff, defendant filed the written statement wherein the collaboration cum construction agreement between the parties was admitted to have been entered. However, it was stated that no time limit was prescribed for the completion of the project. It was denied that any assurance was ever given to the plaintiffs that the work would be completed within 10 months, though it was informed that the work would be completed in reasonable time. It was further submitted that the construction of the building could be started only after receipt of the sanction plan in July 2006 and even if it is assumed that the work was to be completed by April 2007 as per the averment made by the plaintiffs, the plaintiffs themselves acquiesced in accepting the performance of the work at a later date and therefore now cannot turn around and claim compensation for the alleged delay in the completion of the project, though it was denied that there had been any delay in completion of CS No. : 32/14 4/39 the same. It was submitted that rather the defendant fulfilled his contractual obligations and completed and handed over the entire construction work to the plaintiffs in September 2007 itself as per the specifications forming part of the collaboration agreement. Having got the possession of the completed project as per the specifications and having shifted to the premises admittedly in January 2009 though actually in the year 2008 itself, the plaintiffs found no defect/deviation from the prescribed modalities to point out any defect/deviation forthwith after coming into the possession in September 2007 or having shifted therein for residential purpose. In addition to the same, the condition precedent for the registration of sale in favour of the defendant i.e. conversion of the property into freehold property too had been fulfilled and the instant suit has been filed by the plaintiffs only in order to avoid performance of their part of the contract with respect to the first floor of the property and furthermore as a belated back lash to the defendant's insistence on having the execution of sale documents registered subsequent to fulfillment of all the conditions precedent. As further stated, since there was neither the defect liability period clause nor risk and cost clause in the agreement, the plaintiff's demand for any amount or alternatively insisting on the defendant for repairing the alleged defect and deficiencies in the workmanship after 20 months of having taken the possession of the completed premises was wholly mis conceived. It was reiterated that the plaintiffs were handed over the possession of the suit premises in September 2007 and admittedly they shifted to the premises in the month of January 2009 and started living there without any demur or objections and no defect in the construction work was ever pointed CS No. : 32/14 5/39 out by way of any notice or otherwise either after September 2007 or after physically shifting to the premises. As stated, the plaintiffs became vengeful only after the defendant stopped the payment of a cheque worth Rs. 1 Lac drawn in favour of plaintiff no.3. As stated, the defendant had taken a friendly loan of Rs. 1 Lac from plaintiff no.3 in December 2008 at very nominal interest but the same has nothing to do whatsoever with the construction/completion of the project. It was also submitted that the plaintiffs themselves had given the peaceful possession of the first floor to the defendant on 9.12.2005 after receipt of the full consideration for the first floor in terms of the collaboration agreement and the sale agreement pursuant thereto whereas it was denied that the defendant could have legally and validly apply for the water connection and electricity connection for the ground floor and the second floor and since the aforesaid portions were under the ownership of the plaintiffs only they could have applied for the same, though in reality defendant had borne all the expenses for the aforesaid installations as well. It was submitted that as there was no defect in the completion of the project, therefore there was no question of the defendant reexecuting the project particularly when the plaintiffs had taken possession of the completed project and even admittedly started residing therein. It was further submitted that due to the abovesaid facts the plaintiffs do not deserve any damages or relief of permanent or mandatory injunction or any other relief as claimed.
3. Replication was filed by plaintiffs in response to the written statement wherein contents of plaint were reiterated and reaffirmed and those of written statement were denied by plaintiffs. It was denied that the defendant in CS No. : 32/14 6/39 fulfillment of his contractual obligations completed and handed over the entire construction work to the plaintiffs in September 2007 as per the specifications. It is submitted that the plaintiffs had been constrained to shift to the second floor of the premises in question in Jan 2009 even though the portion of the building falling in the share of the plaintiffs was incomplete and the sole plea that the defendant completed and handed over the entire construction work to the plaintiffs in September 2007 is falsified by the writing/noting dated 29.12.2008 wherein it was informed to the plaintiffs that they may shift to their portions of property on or before 14.1.2009 which may be ready for living. The plaintiffs after shifting to the second floor, sent a notice dated 13.3.2009 notifying the defects and deficiencies in the construction to the defendant and the said notice despite having been admittedly received by the defendant was not replied, therefore it is also false on the part of defendant to submit that the plaintiffs accepted the possession of the premises as complete and did not point out any defects. The amount of Rs. 1 Lacs obtained as loan by the defendant was also not spent for doing the needful jobs nor the amount was refunded to the plaintiffs and the cheque issued of that amount by the defendant in lieu of payment also got dishonoured. It was clarified that the small portion of the ground floor had always been with the plaintiff no.5 where he was running a shop and the said portion had not been handed over to the defendant at any point of time . It was denied that the suit has been filed by the plaintiffs in retaliation to the insistence on the part of the defendant to register the sale deed of the first floor of the property. Though it is admitted that a sum of Rs. 18 Lacs had been received by the plaintiffs but the said receipt, as stated, cannot be CS No. : 32/14 7/39 considered in isolation and the same has to be dealt with in juxtaposition with the terms and conditions of the collaboration agreement in pursuance to which the said receipt was executed.
4. From the pleadings of parties, following issues were framed vide order dated 05.03.2010: (1) Whether the defendant has committed breach of collaboration agreement dated 5.5.2005? OPP (2) Whether the defendant is liable to apply and obtain completion certificate as well as form C and D in respect of the building involved in the suit? OPP (3) Whether the plaintiff is entitled to the decree of mandatory injunction? OPP (4) Whether the plaintiff is entitled to the decree of Rs. 10,50,000/, as prayed for ? OPP (5) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP (6) Whether the plaintiff had sold the first floor of the suit property to the defendant vide agreement to sell dated 9.12.2005. If so, what is its effect? OPD (7) Relief.
5. In evidence, plaintiffs examined four witnesses. Two of the plaintiffs namely Vinu Kumar Sharma and Renu Sharma were examined as PW1 and PW2 who placed reliance upon documents Ex. P1 to P13 and Ex. PW1/14 to Ex. PW1/70. PW3 is Sh. Suresh Chandra, Record Keeper from the CS No. : 32/14 8/39 office of Sub Registrar, Punjabi Bagh who proved the copy of lease deed bearing registration no. 6290, dated 3.11.2008 as Ex. PW3/1 and PW4 is Sh. R.S. Yadav, Civil Engineer who proved his report with respect to inspection of suit premises as Ex. PW4/1.
6. Defendant examined two witnesses to prove his case. He examined himself as DW1 and placed reliance upon documents Ex. D1 to D7 , whereas Sh. Satish Kumar, Chief Section Supervisor from MTNL was examined as DW2 who placed reliance upon document Ex. DW2/1 (collectively).
7. I have heard Ld. counsel for plaintiffs as well as Ld. counsel for defendant and have perused the record. Issuewise findings are as under:
8. Issue no.1: The onus to prove this issue was upon the plaintiffs. As argued by Ld. counsel for defendant, the plaintiffs were put in possession of the completed suit premises w.e.f. September 2007 when the possession of the suit premises was handed over to them which is evident from the fact that the plaintiff no.5 had been continuing his business from the shop on the ground floor where he had a telephone connection installed. As further argued, the proving of records of this telephone as Ex. PW 2/1 (collectively) w.e.f. October 2007 onwards clearly prove that the possession of the completed project was handed over to the plaintiffs in September 2007 itself and there had been no complaint regarding deficient workmanship after that. It was also argued that in terms of own case of plaintiffs, they stayed in the rented accommodation which deed expired on 9.7.2008 but the plaintiffs have not produced any document pertaining to the extension of said lease as they claimed to have overstayed in CS No. : 32/14 9/39 the said accommodation nor they have produced any evidence to show that they paid the penal charges prescribed in the said deed which is only suggestive of the fact that they occupied the second floor of the suit property actually in the month of July 2008 whereas in terms of their own plea, the first notice complaining alleged deficiencies in the workmanship was issued on 13.3.2009 but the plaintiffs did not even seek the appointment of local commissioner at the time of filing of the suit, though they tried to rely upon certain photographs in respect of their claim that the defendant had left the project incomplete but these photographs did not pertain to the time when the plaintiffs actually took over the possession of the project in July 2008 or even in January 2009. At the same time, negatives of the photographs have not been produced on record and no secondary evidence in this respect has also been led. Similarly the professional valuer should have been appointed immediately after taking over the possession by the plaintiffs and they would not have waited till 25.4.2009 which itself casts a serious doubt on the bonafides of the plaintiffs. It was further argued that the very fact that there had been no complaint regarding the alleged deficiencies immediately after taking over of the possession of the alleged premises clearly shows that there had been no breach of collaboration agreement and the plaintiffs themselves are responsible for the state of premises. Reliance was placed upon Surinder Singh Vs. Surbir Singh & Anr. , RFA 115/2013 & CM no. 3539/2013 by Ld. counsel for defendant wherein while referring to Lourdu Mari David Vs. Louis Chinnaya Arogiaswamy (1996) 5 SCC 589 1996 Indlaw SC 2392, it was observed that " the conduct of the plaintiff is an important CS No. : 32/14 10/39 element for consideration in exercise of discretion". In the said case, the plaintiff in a suit for specific performance was found to have set up a false case of possession of the property having been delivered to him in pursuance to the Agreement to sell and had also set up a plea of having informed the subsequent purchaser of the prior agreement to sell, which plea was not proved and yet further having claimed a payment which was not made and which plea was also found to be false, it was observed by Hon'ble Supreme Court that a party who seeks to avail the equitable jurisdiction of the court and specific performance being equitable relief, must come to the court with clean hands and a party who makes false allegations, does not come with clean hands, is not entitled to the equitable relief ".
9. Per contra, it was submitted on behalf of plaintiffs that the findings given by the court with respect to committal of breach of terms of collaboration agreement by the defendant while passing of order on the application under order 39 rule 4 have not been challenged by the defendant ; the breach is further established from the admitted handwriting of defendant dated 29.12.2012 and further by not replying to the legal notices dated 13.3.2009 and 2.5.2009, receipt of which notices have been admitted by the defendant though, as claimed, he could not reply to the said notices due to being bed ridden .
10. The bone of contention regarding this issue between the parties, as submitted by plaintiffs, was that the defendant had not completed the construction as per the collaboration agreement till even January 2009 and the plaintiffs were forced to shift to the said uncompleted second floor of the property in question as the defendant had also stopped making payment of rent CS No. : 32/14 11/39 to the alternative accommodation arranged by him for which the lease deed was upto July 2008 and the plaintiff had to over stay there because of the non completion of the construction. Per contra, the contention of defendant remained that the construction of the property in question had been completed in the year 2007 itself when the possession of the ground floor and the second floor of the house was handed over to the plaintiffs though they shifted to the said premises only in year 2008. To substantiate the said contention, defendant by way of examining DW2, placed reliance upon the telephone bills pertaining to telephone number 25222217 which was installed at the shop located at ground floor of the same property in the name of one of the plaintiffs. Telephone bills w.e.f. 11.10.2007 to 11.8.2010 were produced by DW2 i.e. representative of MTNL Rajauri Garden. It was submitted on behalf of defendant that since the entire ground floor had been handed over to the defendant for renovation and additional construction and the shop was forming part of the said ground floor and as admitted by plaintiffs themselves that the entire ground floor was given to the defendant, therefore running of the business activities in the said shop located at ground floor in year 2007 supports the contention of defendant that the possession of the ground floor was given to the plaintiffs in year 2007 itself, otherwise he would not have been in position to conduct his business from the shop at the ground floor. However, the plaintiffs sought to clarify in replication as well as in the deposition of PW1 that though it was mentioned in the collaboration agreement that the entire ground floor was given to the defendant but they had given the possession of the property from the main gate whereas he used the shop from west side which though is located on the ground floor but CS No. : 32/14 12/39 has separate entrance. In the cross examination of same witness i.e. DW2 the telephone bills for period prior to 2007 were put to the witness which as stated by DW2 himself were correct as per the original bills shown to him in the court. In terms of Ex. DW2/P1 (Collectively), the bills were generated for the period throughout w.e.f. year 2003 upto 2008 ranging from Rs. 1100/ to 1900/ which were more or less for the similar amount with the bills generated after 2007 as per the record produced by DW2. The contention of plaintiff was that the possession of the shop located at ground floor which had a separate entrance was never handed over to the defendant and the plaintiff no.5 always continued his business activities from the said shop throughout the period of construction. The telephone bills on record in these circumstances rather support the contention of the plaintiffs .
11. Further, though the plaintiffs have stated that the defendant had undertaken to complete the construction work within period of 10 months, however, they admitted that the abovesaid fact that the construction was to be completed within 10 months was not recited in the collaboration agreement but was the oral assurance given by the defendant. The defendant himself denied having given any such assurance however submitted that it was informed to the plaintiffs that the construction would be completed within reasonable period whereby the defendant was also able to complete the construction by September 2007 and the possession of the newly constructed house was also handed over to the plaintiffs in September 2007 itself. However, PWs in their categorical statement before the court stated that they shifted to the uncompleted second floor in January 2009 and denied that they shifted there in September 2007. It CS No. : 32/14 13/39 was stated by PW 1 that the defendant had promised to hand over the complete project within 10 months from the sanction of layout plan by the civic authorities however, he did not issue any notice to the defendant after the expiry of 10 months period showing his intention to claim damages from the defendant for his failure to complete the project in time. As the covenant regarding completion of the construction within 10 months was not mentioned by any of the parties in their written agreement, therefore the contention of the defendant that the same was to be constructed within reasonable period has to be accepted and now the next question comes with respect to the contentions of both the parties as to whether the defendant had completed the project in the year 2007 itself and handed over the possession of the same to plaintiffs in September 2007 or whether the construction was never completed even by January 2009 and the plaintiffs were forced to shift to the uncompleted portion of the building as claimed by the plaintiffs. No document has been filed by the defendant on record to support his contention that he had handed over the possession of the newly constructed house to the plaintiffs in September 2007. The defendant has also not placed on record any completion certificate obtained by him in respect of the completion of the construction from the competent authorities. The photographs which are on record as placed by plaintiffs Ex. DW1/P2 are sufficient to point out towards the incomplete status of the construction of the building in question. In his cross examination, defendant gave evasive reply with respect to the photographs of the building placed on record by the plaintiffs. Though he claims to be in possession of the first floor of the building since 2007 and is the one who was given task to build the CS No. : 32/14 14/39 premises but did not remember how many pillars had been erected/constructed at the time of construction or whether there was 12 pillars at the time of construction and later on 16 pillars were erected at the time of construction or which area was dismantled at the time of putting the pillars. DW1 further was not able to identify if the photographs Ex. DW1/P2 were of the building in which he was residing on the first floor and stated that the boundary wall and gate seen in photograph no.1 of Ex. DW1/P2 is the same as it was in the year 2005 at the time of entering into collaboration agreement though sought to bring on record that the plaintiffs had told him that since the boundary wall bears the name of their father and they have emotional attachment with it, therefore he was not required to touch the said wall. Further he was not able to point out the difference in structure existing in 2005 and the structure seen in photograph no. 87 of Ex. PW1/4. In answer to the question pertaining to photographs numbering 1 to 29 of Ex. DW1/P2, whether the same were of the premises in question, it was stated by DW1 that the photographs might have been taken after setting the things according to the convenience of plaintiffs and to extract money from him since when he had handed over the complete ground floor and second floor in September 2007, the construction was very well done and was handed over as per the contractual obligation as well as plaintiffs had never complained or pointed out any defect which they had created themselves to extract money from him.
12. The argument put forth by Ld. counsel for defence regarding the non filing of the negatives or of non leading secondary evidence on the part of plaintiffs is not tenable since DW1 himself did not deny with respect to the CS No. : 32/14 15/39 photographs being of the property in question, though put the very strange plea of photographs having been taken by plaintiffs after damaging the property. It is highly unbelievable that the plaintiffs would like to resort to the extent of damaging their own property in order to fulfill the ulterior motive as tried to be projected by the defendant. The defendant himself could have placed on record the photographs of the complete construction or the completion certificate or any documents regarding handing over of the possession with complete construction in favour of the plaintiffs on record, which he himself has failed to do and seems to be trying to put unfounded allegations against the plaintiffs in order to over come his own fault.
13. The bills Ex. DW1/P4 and Ex. DW1/P5 were of the electricity meter installed in the name of defendant in the suit premises which was the commercial electricity meter but DW1 did not know whether the connection was of domestic or commercial category and also did not remember when the electricity meter pertaining to those bills was got disconnected. He stated that he had not got installed the electricity meter as the plaintiffs had taken money from him for the installation of electricity meter on ground floor and second floor and the plaintiffs had informed him that the prospective buyer will get the electricity meter installed and he also did not remember whether he got the electricity meter installed for the first floor. Besides the fact that the abovesaid deposition of DW1 is contrary to the collaboration agreement between the parties whereby the defendant was under obligation to provide three electricity meters for all the floors, even otherwise, the contention of Ld. counsel for plaintiffs is appreciable that the commercial meter was to get disconnected and CS No. : 32/14 16/39 converted to domestic meter only after the construction was completed which was not till year 2009. Ex. DW1/P4 and Ex. DW1/P5 are pertaining to non domestic user with energisation date 6.8.2007, with meter reading 5659 as on 25.3.2009 which bills had been raised in year 2010 and 2011 with meter reading as ' Zero', thereafter, which, as correctly pointed out, is reflective of the user of non domestic connection at least till March 2009 and thereby substantiates the plea of plaintiffs that the construction was not completed till that time.
14. It was further the argument of Ld. Counsel for defendant that in terms of own case of plaintiff, they stayed in the rented accommodation which lease deed expired on 9.7.2008 but the plaintiffs have not produced any document pertaining to the extension of said lease as they claimed to have overstayed in the accommodation nor they have produced any evidence to show that they paid the penal charges prescribed in the said deed which is only suggestive of the fact that they occupied the second floor of the suit property actually in the month of July 2008. On the other hand, it is the contention of the plaintiff that the alternative accommodation was arranged by the defendant himself and the defendant was also paying the rent for the said accommodation which was to expire on 9.7.2008 but neither the constructed building was handed over to the plaintiffs and rather the defendant stopped making the payment of the rent of said alternative accommodation as well. The plaintiffs however over stayed in the said accommodation and shifted to the property in question in January 2009. Though the plaintiffs have not placed on record any rent receipt with respect to the payment made by them to the landlord after the defendant stopped making payment of rent but orally submitted that upto January 2009 rent was adjusted CS No. : 32/14 17/39 against the security amount deposited with the landlord. No receipt in this respect was also placed on record. Be that as it may. Defendant himself has never admitted with respect to the arrangement of alternative accommodation for the plaintiffs during the period of carrying out of the construction with respect to property in question though stated that he was aware of the property taken on rent by plaintiff no.5 as he had signed as witness to the lease deed but in the form of putting the suggestion to PW1 it was denied that the defendant used to make payment of rent of Rs. 6000/ per month for the said accommodation, therefore in these circumstances, the defendant cannot derive any benefit from the failure of plaintiffs to place on record the rent receipts for the period after July 2008 up till January 2009 as the plaintiffs have not placed on record rent receipts pertaining to the period even prior to July 2008. Failure of the plaintiffs to place on record the rent receipts also cannot make the defendant to be able to discharge the onus with respect to bringing on record any evidence pertaining to handing over the possession of completely constructed house to the plaintiffs in September 2007 or any date thereafter. So much so, Ex. P12 on record is sufficient to demolish the entire defence of the defendant with respect to handing over of the possession of the property to the plaintiffs in September 2007. Vide Ex. P12 dated 29.12.2008 the defendant informed to PW1 that they may shift to the property in question on or before 14.1.2009 which may be ready for living. On behalf of the defendant, there was no denial with respect to communication sent to plaintiffs vide Ex P12 except that a suggestion was given to PW1 in cross examination that vide Ex. P12 the defendant no.1 had only told to make up for minor deficiencies when the same CS No. : 32/14 18/39 were pointed out by the witness, but the contents of Ex. P12 do not corroborate the suggestion given to PW1. The defendant seems to be blowing hot and cold at the same breath as first of all he stated that the possession of the premises in question after completion of construction was handed over to the plaintiffs in September 2007 and was occupied by the plaintiffs in year 2008 but then stated that some of the defects were pointed out by the plaintiffs in the first week of January 2009 and DW1 assured that the same would be rectified by 14.1.2009 and asked them to vacate the building for the said purpose. If merely some defects were pointed out , why the plaintiffs were required to vacate the premises for few days and where they were supposed to stay during those days is not clarified by DW1 while putting this suggestion on record. Apparently this submission was put forth as an after thought to get away from the rigor of writing of Ex. P12 which was suggestive of the fact unerringly that the construction of the property in question had not been completed at least till January 2009 and the property was not ready for living whereby the defendant by writing letter Ex. P12 dated 29.12.2008 conveyed PW1 that they may shift to the said premises after it would be ready for living on or before 14.1.2009.
15. Besides the fact that the construction of the suit premises had not been completed by the defendant in time, on the request of defendant that he was short of funds, sum of Rs. 1 Lac was given to him as loan by the plaintiffs. The cheque issued for the return of said amount was dishonoured though the defendant sought to take the plea that the cheque was got dishonoured as the plaintiffs were not getting the sale deed registered in his name despite his requests but stated that after the receipt of notice u/s 138 N.I. Act, he had gone CS No. : 32/14 19/39 to the plaintiffs to pay the money but plaintiffs refused to accept the same.
16. Ld. counsel for defendant sought to emphasize again and again that in notice u/s 138 N.I. Act, the plaintiffs nowhere stated about any deficiency in the construction carried out in the building and once the said matter has already been compounded, therefore it was wrongly tried to be linked as friendly loan for the completion of construction in pursuance of the loan agreement. In terms of Ex. P10, which was the notice issued u/s 138 N.I. Act, there is specific mention of the building being not in habitable condition and the loan having been extended in favour of the defendant only to get the construction completed in time.
17. The contention of Ld. counsel for defendant that the plaintiffs became vengeful only after the defendant stopped the payment of a cheque worth Rs. 1 Lac drawn in favour of plaintiff no.3 is also contrary to record, since the notice with respect to pointing out the deficiencies was issued by the plaintiffs on 13.3.2009, whereas the said cheque had been issued on 30.3.2009 by the defendants which was presented before the bank on 4.4.2009 when the same got dishonoured/payment was stopped.
18. Many questions and suggestions were put to DW1 regarding another case filed by him for specific performance/ recovery of possession in year 2004 against one Rajiv Gupta and Judge Chawla. Though the facts of that case have no bearing or relevance with respect to the instant suit except to point out the conduct of the defendant. The suit filed by him was dismissed by Ld. ADJ on the ground that he had not approached the court with clean hands which order CS No. : 32/14 20/39 was challenged by the defendant in the higher courts but was confirmed with further observation that the defendant herein had approached the said court with unclean hands and suppressed material and relevant facts which were relevant and necessary for effective determination of the issues and had tried to play fraud upon the court.
19. Having discussed as above, the only conclusion which can now be arrived at, is that it was the defendant who did not comply with the terms of collaboration agreement and committed breach of the same who failed to complete the construction within reasonable time and hand over the same to the plaintiffs. This issue is accordingly decided in favour of plaintiffs and against the defendant.
20. Issue no. 2 & 3 : Both these issues are interconnected and therefore are being dealt with together. Counsel for defendant argued that the collaboration agreement did not provide for a new construction after demolishing the existing structure and it provides for renovation of the ground floor. It was further argued that it is not the plaintiff's case that there was no sewer connection earlier, whereas form C and D pertain to a situation where there is no drainage work and the drainage pipes have to be laid afresh. While the form C notifies the Delhi Muncipal Corporation about the time in which the drainage work would be completed for inspection, the form D is a notice to the Municipal Corporation notifying one's intention to cover up the drainage work after its completion. As further argued, it is the plaintiff's own case that no sewerage had to be laid down afresh and all that the collaboration agreement CS No. : 32/14 21/39 required was that all the floors shall be connected to a common sewer which was already in existence and therefore there was no requirement for obtaining the form C and D and the plaintiffs also have not produced any evidence to show that the same was required as per law. It was also submitted that there was no obligation on part of defendant to obtain the completion certificate in terms of collaboration agreement.
21. By way of prayer seeking decree of mandatory injunction plaintiffs have sought directions against the defendant to comply with and carry out his obligations strictly in accordance with collaboration agreement and further directions to the defendant to ensure that the deviation, if any, are get compounded by him at his own cost and also to provide C & D forms as well as completion certificate from the concerned authority in respect of the building . As stated, the plaintiffs have suffered huge damages on account of non execution/non completion of the items of construction and to redo the defective items and renovate the ground floor as per the schedule attached with the collaboration agreement . If the said jobs are not completed by the defendant, the same shall have to be completed by the plaintiffs at risk and cost of the defendant and the amount so spent for incomplete/defective items will have to be reimbursed by the defendant to the plaintiffs in terms of the valuer's report. It was also stated that the plaintiffs will have to pay compounding charges for getting the deviations approved from concerned authority namely MCD and in that eventuality, the plaintiffs have sought alternative relief of money decree in the sum of Rs. 8,26,113/ so as to enable the plaintiffs to complete the work left incomplete by the defendant. Per contra, it was argued by Ld. counsel for CS No. : 32/14 22/39 defendant that the plaintiffs are not entitled to such a claim of mandatory injunction as the plaintiffs in essence is asking for specific performance. It may be noted that vide order dated 23.11.2009 of my Ld. Predecessor, the issue with respect to maintainability of suit in view of section 41 (h) of Specific Relief Act, already stood decided in favour of plaintiffs, which order was also upheld by Hon'ble High Court and therefore the defendant cannot agitate the same point again. In terms of collaboration agreement, the defendant was to make all the arrangements for approval of MCD plan for the construction at his own expenses and the plaintiffs were required to sign all the required documents for the purpose of renovation/construction of ground floor, first floor and second floor. The defendant had undertaken all responsibilities for the construction, supervision of all day to day problems during construction period and any other job/payments whatsoever arises/payable during the tenure of construction and all DDA/MCD/Labour /Penalties/dues, were to be borne by the defendant. The defendant was also to provide three separate water tanks at the roof of the second floor, three electricity meters and a common sewer connection for all the floors. Since the entire responsibility was upon the builder/defendant to do the needful regarding the approval from MCD or the other authorities concerned, it was also mandated for him to obtain the sanction/completion certificate or to obtain all the necessary certificates as per requirement. The filing of application by plaintiffs to seek sanction of layout plan is not suggestive of the liability of the plaintiffs to obtain necessary sanction/certificates from the authorities concerned but is in consonance with the terms of agreement as the plaintiffs being owner were required to assist and sign all such documents as may be CS No. : 32/14 23/39 necessary from time to time to enable the defendant to discharge the obligation undertaken by him without any delay. It may be noted that the agreement between the parties was for renovation of ground floor and the construction of first and second floor. The plaintiffs themselves have not denied the existence of a sewer and in fact during the course of arguments, counsel for plaintiffs conceded that since the sewer connection was already in existence, there was no requirement for obtaining form C and D afresh, however it was reiterated that the defendant was duty bound to obtain the completion certificate. Reliance was placed upon by Ld. counsel for plaintiff upon Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr. (2008) 10 Supreme Court Cases 345. As was noted in the abovesaid authority " Under the agreement, the builder is required to construct the ground floor in accordance with the sanctioned plan, and specifications and the terms in the agreement and deliver the same to the owner. If the construction is part of a building which in law requires a completion certificate or C & D forms (relating to assessment), the builder is bound to provide the completion certificate or C & D forms. He is also bound to provide amenities and facilities like water, electricity and drainage in terms of the agreement. It the completion certificate and C & D forms are not being issued by the corporation because the builder has made deviations/ violations in construction, it is his duty to rectify those deviations or bring the deviations within permissible limits and secure a completion certificate or C & D forms from MCD. The builder cannot say that he has constructed ground floor and delivered it and therefore fulfilled his obligations. Nor can the builder contend CS No. : 32/14 24/39 that he is not bound to produce the completion certificate but only concerned whether the building is in accordance with the sanctioned plan or not, whether it fulfills the requirements of the municipal bye laws or not or whether there are violations or deviations. The builder cannot be permitted to avoid or escape the consequences of his illegal acts. The obligation on the part of the builder to secure a sanctioned plan and construct a building carries with it an implied obligation to comply with the requirements of municipal and building laws and secure the mandatory permissions/certificates. It was further observed that even if such a provision for providing completion certificate or payment of penalties is not found in the agreement, the builder cannot escape the liability for securing the completion certificate and providing a copy thereof to the owner if the law requires the builder to obtain completion certificate for such a building ". It was submitted by Ld. counsel for defendant that the abovesaid authority to the extent of seeking support for the arguments of Ld. counsel for plaintiffs is not applicable in the facts of instant case since in the said matter, ground floor was also to be constructed, therefore form C & D were required to be obtained which is not the case in the instant matter. It may be noted that the abovesaid has already been taken care of in terms of conceding by Ld. counsel for plaintiffs that since ground floor was already in existence as well as sewer connection, therefore there was no requirement for obtaining C & D form but in terms of law laid down in the abovesaid authority, the defendant cannot shirk from his liability for providing the completion certificate. It was argued on behalf of defendant that though many deviations were made in the suit premises but since the defendant became owner of only first floor, therefore he is under no CS No. : 32/14 25/39 obligation to seek completion certificate for the entire building. At the cost of repetition, it may be stated that in terms of agreement between the parties, it was the liability of the defendant to complete all the formalities required for the purpose of completion of the building and the only obligation upon the plaintiffs was to cooperate and sign the documents whatever necessary. It was further argued that PW1 himself admitted the possession letter regarding first floor in favour of defendant i.e. annexure P2 exhibited as Ex. PW1/16A whereby the construction of the first floor was handed over to the defendant. The deviations, if any sought by the plaintiffs were not negated by the defendant as has been admitted by him in his deposition. In answer to the question whether the renovation of ground floor , construction of first floor and construction of second floor had been carried out by the defendant strictly as per the plan sanctioned by the MCD, defendant replied in negative and stated that the plaintiffs wanted some deviations which were carried out by him. He also stated that he was the owner of the first floor and he had right to deviate according to the permissible limit and the deviations asked by the plaintiffs were regarding ground and second floor and he had not asked the plaintiffs to give deviations in writing as everything was not in black and white and there were some oral adjustments also. It is pertinent to mention here that had the deviations sought by the plaintiffs not in accordance with the agreement and the sanctioned plan or against the rules and regulations of MCD, the defendant was under no obligation to agree for the same but the defendant having agreed to make the deviations as already noted in terms of his deposition, he is also estopped from claiming that because of the said deviations, he is under no obligation to seek CS No. : 32/14 26/39 the completion certificate for the building. Even otherwise, nothing has been pointed out by the defendant on record to show that the deviations suggested by the plaintiffs were not in consonance with the sanctioned plan or beyond permissible limits.
22. In terms of the valuers report placed on record by the plaintiffs which remained unrebutted, the total cost of incomplete work was assessed at Rs. 8,26,113/. Numerous defects and incompletion of work was pointed out in the inspection report Ex. PW4/1. In these circumstances, the defendant having not complied with the terms of collaboration agreement and having not completed the project as per the agreement between the parties, he becomes liable to comply with the terms of the agreement as per the schedule attached with the agreement and further in terms of the laxaties pointed out in the inspection report and the plaintiffs deserve the order in their favour with respect to issuance of directions to the defendant to comply with and carrying out his obligation strictly in accordance with the collaboration agreement who is also duty bound to obtain the completion certificate for the building.
23. The plaintiffs in the alternative have claimed sum of Rs. 8,26,113/ as the expenses which shall have to be incurred by them to complete the work left incomplete by the defendant. The claim at Rs. 8,26,113/ is based upon the inspection report and the details of expenditure required to meet out the deficiencies and to complete the building, which as already noted has remained unrebutted. The receipt of notices by the plaintiffs in this respect is not denied by the defendant which remained unreplied. Though the defendant submitted that he could not reply to the said notices being bed ridden but failed to produce CS No. : 32/14 27/39 the record of his ailment for the relevant period to justify his stand of not being able to reply to the notices due to justified reason and in these circumstances, the contents of notices also are deemed to be admitted by the defendant. The plaintiffs have confined their claim to Rs. 8,26,113/ only and have neither asked for enhanced amount considering the escalation in prices due to time gap nor have asked any interest on the same, therefore this court restrains the grant of claim to the amount as asked for by the plaintiff. In these circumstances, in case of failure of the defendant to comply with terms of collaboration agreement and to complete the deficiencies mentioned in the inspection report, plaintiffs deserves the amount of Rs. 8,26,113/ as assessed in the inspection report so as to enable them to complete the work left uncompleted by the defendant.
24. Both these issues are accordingly decided in favour of plaintiffs and against the defendant.
25. Issue no. 4: The plaintiffs have also claimed loss of rental income @ Rs. 50,000/ per month which they could not fetch since premises had not been completed or handed over to them as per the assurance given to them by the defendant. The amount of Rs. 50,000/ as stated was the prevalent market rate of rent of the ground floor of similar property in the vicinity and as stated the plaintiffs have suffered financially on account of nonusability and would have earned at least Rs. 10,50,000/ as rent for the last 21 months.
26. The suit has been filed in May 2009 and the plaintiffs have claimed for the loss of rental income since September 2007. The defendant himself also stated about handing over of the possession of ground floor and second floor of CS No. : 32/14 28/39 the premises in question in September 2007 itself , though failed to prove the same on record whereas in view of the findings on other issues, plaintiffs have been able to prove that they got the possession of the ground floor and second floor of the property only in January 2009 that too not in habitable condition. Though if the submission of the defendant is considered that he handed over the possession of the ground floor and second floor of the premises to the plaintiffs in September 2007, which itself is suggestive of the fact that the construction was to be completed by that time, but at the same time, the plaintiffs also themselves continuing to stay in alternative accommodation till July 2008 without any objection, thereby themselves agreed for the completion of the construction of building at least till July 2008. The letter issued by the defendant and placed reliance upon by the plaintiffs that the plaintiffs can shift to the premises in January 2009 was also not objected to by the plaintiffs and in these circumstances the plaintiffs themselves having condoned the delay in construction of the premises in question cannot claim loss of rental income for the intervening period. The rate of rent prevailing in the area of similar premises, as per the deposition of PW1, was Rs. 50,000/ per month whereas PW2 stated that the ground floor of the property in the same vicinity having area of 200 sq. yds was fetching rent of Rs, 27000/ per month. PW3 was examined from the office of sub registrar who proved the registered sale deed Ex. PW3/1 of another property in vicinity regarding monthly rent of Rs. 27,500/ for the ground floor property having area of 200 sq. yards w.e.f. 1.12.2008 subject to increase of rent @ 10 % after the expiry of said period. The suit property, as stated, is measuring 299.15 sq. yards and as stated the rental in CS No. : 32/14 29/39 respect of the ground floor of the suit property should therefore be not less than 50,000/ per month during the relevant period. Per contra, it was submitted on behalf of defendant that the completed building was handed over to the plaintiffs in 2007 and even otherwise the plaintiffs in order to seek damages on account of alleged delay in completion of the project were bound to issue notice to the defendant and in absence of such notice, plaintiffs are precluded from claiming any compensation.
27. The notice admittedly was issued by the plaintiffs in March 2009 and as already noted, the defendant having failed to hand over the possession in complete form to the plaintiffs is also liable to make good the loss suffered by the plaintiffs, the loss on account of rental income or damages, which in the circumstances noted above shall be available to the plaintiffs only after issuance of notice in March 2009. DW1 himself was not aware of the rate of rent of ground and second floor and the assessment of rent prevailing in area @ Rs. 50,000/ per month made by the plaintiffs in respect of the said valuation has remained unrebutted, therefore the plaintiffs are held entitled to claim for the loss of rental income @ Rs. 50,000/ per month w.e.f. April 2009 i.e. after the date of issuance of notice Ex. P7 till the premises is made habitable by defendant.
28. Issue no. 5 & 6 : The issue no. 5 pertains to whether the plaintiffs are entitled for decree of permanent injunction i.e. seeking restrain order against the defendant from selling, transferring, alienating, mortgaging, renting or parting with the possession etc or creating third party interest in any portion of first floor coupled with issue no. 6 i.e. whether the plaintiff has sold the first CS No. : 32/14 30/39 floor of the said property vide agreement to sell dated 9.12.2005, if so, what is its effect.
29. As submitted on behalf of defendant, the plaintiffs cannot claim any relief of permanent injunction with regard to the suit property as the same had been sold to the defendant after the receipt of the valuable consideration and after the execution of the necessary documents. It was pointed out that Ex. P3 dated 9.12.2005 was executed without any reference to collaboration agreement and is conclusive proof of the plaintiff's having sold the property after the receipt of valuable consideration and handing over the physical vacant possession thereof. Further all the documents executed on 9.12.2005 being the contemporaneous documents, give further indication of the intention of the parties to treat this document Ex. P3 as independent of the collaboration agreement. As argued there was no ambiguity in the recitals made therein which makes it conclusively a registered document of sale. For the abovesaid, reliance was placed upon State Bank of India Vs. Mula Sahakari Sakhar Kahkhana Ltd. AIR 2007 Supreme Court 2361, Inderjeet Singh Sial Vs. Karam Chand Thapar (1995) 6 SCC 166 at P.173 and Vayallakath Muhammedkutty Vs. Illikkal Moosakutty (1996) 9 SCC 382 at P. 387 wherein interalia it was observed that " A document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document, the court shall not supply any words which the author thereof did not use. It was further observed that surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and CS No. : 32/14 31/39 not otherwise. It is one thing to say that the nature of a transaction would be judged by the terms and conditions together with the surrounding and/or attending circumstances in a case where the document suffers from some ambiguities but it is another thing to say that the court will take recourse to such a course, although no such ambiguity exists".
30. It was further the submission of Ld. counsel for defendant that the construction of a document would depend upon its pith and substance and not upon the labels that the parties may put upon it. It was also argued that even if the abovesaid documents are not considered to be the registered sale deed and is considered to be only an agreement to sell, even then in view of the possession of the first floor of the property given to the defendant after the receipt of entire consideration, the plaintiffs are left with no right whatsoever in the first floor of the property in terms of section 53 A of the Transfer of Property Act and therefore plaintiffs are debarred from claiming any right in the property qua the defendant. Reliance was also placed upon AIR 2004 Supreme Court 4342 Rambhau Namdeo Gajre Vs. Narayan Bapuji wherein it was observed that "
It is seen that many a times a transferee takes possession of the property in part performance of the contract and he is willing to perform his part of the contract. However, the transferor somehow or the other does not complete the transaction by executing a registered deed in favour of the transferee , which is required under the law. At times, he tries to get back the possession of the property. In equity, the courts in England held that it would be unfair to allow the transferor to take advantage of his own fault and evict the transferee from the property. CS No. : 32/14 32/39 The doctorine of part performance aims at protecting the possession of such transferee provided certain conditions contemplated by section 53A are fulfilled and if these conditions are fulfilled then there is an equity in favour of the proposed transferee who can protect his possession against the propose transferor even though a registered deed conveying the titles is not executed by the propose transferor. In such a situation, equitable doctrine of part performance provided under section 53A comes into play and provides that ' the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract ".
31. It was further submitted on behalf of defendant that even if issue no. 6 is decided against the defendant and Ex P3 is held not to be the registered document of sale, the plaintiffs are not entitled for relief of permanent injunction against the first floor of the property in view of the doctrine of part performance since in either case the plaintiffs are left with no enforceable right against the defendant qua the first floor of the property.
32. In terms of collaboration agreement, same was executed between the parties with specific mention that the plaintiffs are unable to renovate/construct/make additions/alterations in the property in question because of insufficient funds and have offered the first floor without roof rights to the defendant and the defendant has accepted their offer and is willing to invest his money. It was also specifically mentioned that against the CS No. : 32/14 33/39 construction, renovation, additions/alteration etc of the said property by the defendant, the plaintiffs have agreed to give the entire first floor of said property to the defendant against which the defendant agreed to pay sum of Rs. 18 Lacs to the plaintiffs out of which the plaintiffs had already received sum of Rs. 1,50,000/ vide receipt dated 5.5.2005. It was also specifically mentioned that the plaintiffs shall execute the registered will and registered power of attorney in favour of defendant on receiving the balance amount of Rs. 16,50,000/ or earlier as required. However it was made clear that the defendant shall hand over the finished floor of the plaintiff's part and then give the possession of the first floor to the prospective buyer. Thereafter the agreement to sell, will and power of attorney were executed between the parties on 9.12.2005 after receipt of payment of the balance amount of Rs. 16,50,000/. Apparently the plaintiffs were not in position to raise construction over the property in question, therefore agreed to offer the first floor without roof rights to the defendant against his investing of the money for construction in the building as well as against further payment of Rs. 18 Lacs pursuant to which the necessary documents were also executed between the parties. The defendant sought to put much of the emphasis on the plea that the documents pertaining to sale transaction of the first floor property did not find any mention with respect to the collaboration agreement therefore the said sale transaction regarding the first floor of the property was independent of the construction agreement dated 5.5.2005 and then stated that in pursuance to the understanding to have the sale of the first floor independent to the collaboration agreement dated 5.5.2005, parties decided to execute the separate deed which has no connection with deed dated CS No. : 32/14 34/39 5.5.2005. As argued, after the receipt of the entire sale consideration amount of Rs. 18 Lacs, parties registered the transaction before the Registrar and the sale was completed vide registered sale deed dated 9.12.2005. Copy of registered sale agreement cum sale deed dated 9.12.2005 as deposed by defendant has already been exhibited by the plaintiffs themselves as document Ex. P3. Defendant further insisted while answering to the question if he could produce any document which can even remotely suggest that the agreement to sell dated 9.12.2005 was independent of collaboration agreement dated 5.5.2005, he stated that the registered agreement to sell itself explains that it was an independent document separately from the collaboration agreement as it did not mention about the said collaboration agreement. But at the same time contradicted his own statement in cross examination by admitting that as per the collaboration agreement he was required to pay Rs. 18 Lacs to get possession of the first floor. It may be noted that the documents by which the first floor of the property in question was sold in favour of the defendant were the the agreement to sell, GPA , Special Power of Attorney and will etc. though the defendant sought to project those documents as the proper sale deed as required under law while at the same time admitting that he could not get the first floor mutated in his name with the MCD as the plaintiffs had not executed the sale deed in his favour. The defendant continued blowing hot and cold in the same breath ; firstly by denying execution of annexure P2 and rather submitted that the plaintiffs have tried to suppress the material facts by filing forged and fabricated documents on record and thus have committed forgery before the court, while in cross examination admitted that Ex. P2 was executed between the parties. He CS No. : 32/14 35/39 admitted 'mark B' which was an affidavit signed by him and given by him to the plaintiffs though had previously denied as is reflected from his denied signatures on the photocopy of the mark B. In terms of this affidavit he admitted having entered into a collaboration agreement with respect to the property in question with specific mention that the entire first floor shall be the share of the builder and he can sell/book his share in the said property i.e. entire first floor proposed to be constructed but the possession of the said first floor shall be handed over only after handing over of the possession of second floor and ground floor to the second party i.e. owners. DW1 further volunteered to state in his deposition that he had executed this affidavit for the peace of mind of plaintiffs as they wanted some assurance that he would hand over the renovated ground floor and second floor after the sale of first floor. Besides the apparent intention of the parties with respect to the execution of sale documents in favour of defendant in pursuance to the collaboration agreement only, the defendant himself having acting upon the same and by admitting the affidavit, cannot put a contention on record contrary to the intentions and agreement between the parties. Though the correct documentation with respect to the sale of the first floor of property has not taken place although the building in question as admitted on record by the parties has been converted to free hold property and the proper sale can be made only on the basis of registered sale deed but plaintiffs themselves very fairly have not disputed selling of the first floor of suit property in favour of defendant against the investment made by defendant for the construction of building and also against the further payment of Rs. 18 lacs and also stated about handing over of the building i.e. ground floor for renovation CS No. : 32/14 36/39 and first floor as well as second floor for construction albeit that is again with the rider i.e. that the entire first floor shall be the share of the builder and he can sell/book his share in the said property i.e. entire first floor proposed to be constructed but the possession of the said first floor shall be handed over only after handing over of the possession of second floor and ground floor to the second party i.e. owners. In terms of recital in the collaboration agreement itself, there was no reason or occasion for the plaintiffs to offer the first floor without roof rights to the defendant against meager sum of Rs. 18 Lacs which in terms of own admission of the plaintiff was put to sale for an amount of Rs. 1.20 Crores, had it not been in pursuance to the collaboration agreement between the parties. Argument put forth by counsel for plaintiff is appreciable that the case attempted to be set up by the defendant to the effect that the agreement to sell was independent of collaboration agreement is not legally tenable. Importantly the amount of Rs. 1,50,000/ shown in the receipt dated 5.5.2005 is identically mentioned in collaboration agreement and all the documents executed subsequent to the collaboration agreement were in fact agreed to be executed in collaboration agreement itself, therefore by no stretch of imagination, agreement to sell can be divorced/segregated from the collaboration agreement . As rightly argued, if stand of defendant is assumed as true for very heck of it, he had not agreed to complete the structure out of charity. In these circumstances, the plea of defendant that the subsequent sale documents executed between the parties were independent of the collaboration agreement is not only unfounded but also contrary to the written agreement between the parties and natural corollary that follows is that the defendant CS No. : 32/14 37/39 remains bound by the said rider before acquiring absolute right over the first floor of suit property. Issue no. 5 & 6 accordingly stand decided against the defendant and plaintiffs are held entitled for decree of permanent injunction to the above extent with respect to first floor in their favour. Accordingly both these issue are decided in favour of plaintiffs and against the defendant.
33. Relief: In view of the discussion made herein above, instant suit is decreed with cost in favour of the plaintiffs and against the defendant. Plaintiffs are held entitled for following reliefs: (1) It is directed that defendant shall complete the construction of suit premises without any further delay strictly in compliance with the terms and conditions of the collaboration agreement and shall complete the deficiencies mentioned in the inspection report Ex. PW4/1. The defendant shall also obtain and provide the completion certificate to plaintiffs. In case of failure of the defendant to carry out the deficiencies mentioned in the inspection report Ex. PW4/1 within one month , he shall be liable to pay the amount of Rs. 8,26,113/ to the plaintiffs as assessed in the inspection report so as to enable them to complete the work left uncompleted by the defendant.
(2) On account of loss of rent suffered by the plaintiffs, defendant is directed to pay Rs. 50,000/ per month to the plaintiffs w.e.f. April 2009 i.e. after the date of issuance of notice Ex. P7 till the premises is made habitable by defendant.
(3) A decree of permanent injunction is also passed against the defendant restraining him from parting with the possession or creating any third CS No. : 32/14 38/39 party interest in respect of first floor of the suit premises, till the compliance of other directions passed.
34. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in Open Court
on 26.03.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
CS No. : 32/14 39/39