S.R. Bhattacharya vs Subrata Majumdar And Ors.
1998 Latest Caselaw 765 Del

JUDGMENT

Dr. M.K. Sharma, J.

1. In a suit filed by plaintiff against the defendants seeking for a decree of declaration and permanent injunction and in the alternative seeking for a decree for damages for an amount of Rs.15 lac, the plaintiff filed an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure praying for an interim injunction restraining the defendants from selling, transferring or otherwise disposing of the second floor of the said suit property and to maintain status quo thereof till the disposal of the suit.

2. The plaintiff filed the suit seeking for the aforesaid relief on the ground that the plaintiff and defendants No.1 to 3 entered into a collaboration agreement dated 10.5.1996 to make construction at property No.A-51, Chitranjan Park, measuring approximately 160 Sq. Yds. The defendants No.1 to 3 are the owners of the said property. In the said collaboration agreement it was mentioned that the Collaborator namely, "the plaintiff would enjoy the exclusive rights of the lower ground floor and terrace rights above second floor whereas the owners namely", the defendants No.1 to 3 would have exclusive rights over the ground floor, first floor and second floor. Process of construction of the aforesaid building was started by the plaintiff and the building came to be completed. It is stated in the plaint that the plaintiff subsequently came to learn that as per rules, regulations and building bye-laws of the Municipal Corporation of Delhi the construction of a third storey on the properties in the area is prohibited and under such circumstances no construction can be made over the terrace of the second floor or anything over and above the second floor and thus the defendants 1 to 3 have defrauded the plaintiff and therefore, the present suit.

3. On 1.5.1997 the aforesaid suit as also the injunction application filed by the plaintiff and registered as LA. No.3875/1997 were placed for necessary orders whereupon this court directed for issue of summons and notices to the defendants. By an order on the same day the defendants were restrained from selling, transferring or disposing of the second floor of the suit property. On service of summons and notices the defendants 1 to 3 made their appearance in the suit and filed their written statement and reply to the injunction application. Subsequently however, on 26.3.1998 as there was no representation on behalf of the plaintiff the suit as also the injunction application was dismissed in default and the interim order was vacated. The plaintiff however, immediately thereafter filed an application in this court under Order 9 Rules 3 & 4 of the Code of Civil Procedure praying for setting aside and/or recalling of the order dated 26.3.1998 and for restoration of the suit to its original number. The plaintiff also filed an application under Order 39 Rules 1 & 2 seeking for a fresh order of injunction restraining the defendants from selling, transferring or otherwise disposing of the second floor of the suit property and for maintaining status quo during the pendency of the suit. On 3.4.1998 an interim injunction was passed by this court restraining the defendants from selling, transferring or disposing of the second floor of the suit property. On 14.5.1998 the application filed by the plaintiff under Order 9 Rules 3 & 4 CPC praying for restoration of the suit was allowed and the suit was restored to its original number. The applications namely IAs No3063/1998 and 3875/1997 which are got restored alongwith the restoration of the suit to its original number were listed before me and I heard the learned counsel appearing for the parties on the merits of the said applications.

4. Counsel appearing for the plaintiff, during the course of his submissions submitted that the plaintiff was defrauded by defendants No.1 to 3 in entering upon the aforesaid collaboration agreement whereunder the plaintiff was offered roof rights/terrace rights above the second floor although under the building bye-laws and other rules and regulations of the Municipal Corporation of Delhi such construction of a third storey on the properties in the area was prohibited. He further submitted that the plaintiff, although is shown to be a resident of Delhi in the plaint, actually hails from Calcutta and therefore, he had no knowledge about such building bye-laws of the Municipal Corporation of Delhi. The counsel further submitted that the roof rights on the second floor meant the right to construct a flat on an area of about 1100 Sq.Ft. above the second floor as agreed by defendants 1 to 3 in the specification agreement and in case such construction is allowed to be made under the law it would have a market value of atleast Rs.20 to 25 lacs, to which amount the defendants No. l to 3 have caused loss/damage to theplaintiff. Thus the counsel submitted that the plaintiff is entitled to a declaration that the plaintiff has a right to the transfer of the constructed portion on the permissible area on the second floor of the house in dispute in lieu of his roof rights over the second floor and above,, failing which the plaintiff is entitled to claim an amount of Rs.15 lacs as damages. According to the counsel since the plaintiff has a strong prima facie case in support of his aforesaid claim, the plaintiff is entitled to have the order of interim injunction granted by this court made absolute.

5. On the other hand the counsel appearing for defendants 1 to 3 submitted that on the face of the collaboration agreement the plaintiff does not have any prima facie case in his favour. He also stated that the plaintiff has already sold his share of the property namely the lower ground floor (basement) and roof rights above the second floor and thus left with no right or interest in the property. The counsel also submitted that the plaintiff has failed to state the aforesaid facts in the plaint and has suppressed material facts and thus not entitled to any equitable relief from this court. While refuting the submissions made by the counsel appearing for the plaintiff, the counsel for the defendant placed reliance on a number of documents filed by the parties. He has drawn my attention to the contents of the letter dated 15.3.1997 of the plaintiff which was issued prior to the filing of the suit and on the basis thereof submitted that in the said letter the plaintiff had admitted that the possession of the share of defendants 1 to 3 i.e. on the ground floor, first floor and second floor had been handed over to the said defendants in terms of the said agreement. In the said letter it is also slated that the roof rights above the second floor which was the plaintiffs share apart from the lower ground floor has been sold to Mr. Praveen Ahuja, defendant No.4 vide sale agreement dated 12.11.1996.

6. In the context of the aforesaid submission, let me consider the merits of the submission of the learned counsel appearing for the parties in order to come to a conclusion as to whether the plaintiff has been able to make out a prima facie case for making the order of ad interim injunction passed by this court absolute.

7. A copy of the collaboration agreement having been filed by the plaintiff, is on record. The said agreement specifically indicates the areas falling within the owner's allocation and collaborator's allocation. It is stated therein that the owner's allocation would mean complete/entire ground, first and second floor whereas the collaborator's allocation means the entire lower ground floor and roof rights of second floor and above. The plaintiff has also filed on record a copy of the agreement signed by the plaintiff as also by defendants 1 to 3. In the said agreement also the owner's portion in the building stated to include exclusive rights of ground, first and second floor and the collaborator's portion was said to be lower ground floor and the terrace rights above the second floor. Thus at the time when the aforesaid agreement was entered into between the plaintiff and defendants 1 to 3 it was agreed to by the parties that the areas covered by the second floor of the suit property would fall to the share of defendants 1 to 3 and that the terrace rights above the second floor would go to the share of the collaborator i.e. the plaintiff. The building in the aforesaid suit property was constructed and after completion thereof admittedly possession of the ground floor, first floor and second floor had been handed over to defendants 1 to 3. This is also borne out by the letter dated 15.3.1997 written by the plaintiff to defendants 1 to 3 which is placed on record.

8. I have carefully perused the contents of the said letter which indicates that the construction work on the suit property was completed. By the said letter the defendants No. 1 to 3 Were requested to acknowledge the satisfactory possession of their allocated share namely ground floor, first floor of the said property. In the said letter the plaintiff further confirmed that the roof rights above the second floor vest with Shri Praveen Ahuja vide sale agreement dated 12.11.1996. The aforesaid sale agreement dated 12.11.1996 is also placed on record which is also signed by the plaintiff, defendants 1 to 3 and Shri Praveen Ahuja defendament No.4. By virtue of the aforesaid agreement to sell terrace rights of second floor and above of the said property for a sum of Rs.2,50,000/- were sold to defendant No.4 and the consideration amount for the aforesaid sale was received by the plaintiff. The defendants have also placed on record an agreement to sell dated 12.11.1996 which is also signed by the plaintiff, defendants 1 to 3 and defendant No.4 whereunder the entire basement was sold to defendant No.4 at an amount of Rs.6 lacs which amount was received by the plaintiff.

9. It is thus, apparent that the plaintiff has already sold out the areas allocated and falling to his share in the aforesaid property in terms of the collaboration agreement. Thus the terms and conditions of the collaboration agreement were given effect to by the plaintiff himself and he has already received the consideration amount thereof by selling the same to defendant No.4. The aforesaid facts were however, not stated in the plaint by the plaintiff. It is also disclosed from the letter dated 15.3.1997 written by the plaintiff to defendants 1 to 3 that possession of the ground floor, first floor and second floor have already been handed over to defendants 1 to 3 in pursuance of the collaboration agreement. The plaintiff, thus, having given effect to the terms and conditions of the collaboration agreement and he also having acquired and received his part of the share in terms of the said agreement and having also received consideration towards the aforesaid floors cannot turn around to state now that he was defrauded by defendants No. 1 to 3 in entering into the aforesaid collaboration agreement. The plaintiff in the suit has sought for a declaration that the plaintiff is the owner of the second floor of the property No.A-51, Chitranjan Park, New Delhi in lieu of the terrace rights, roof rights above the second floor in pursuance of the collaboration agreement dated 10.5.1996. The, terrace rights and roof rights above the second floor of the building in pursuance of the collaboration agreement dated 10.5.1996 have already been sold out by the plaintiff himself to defendant No.4 and thus primafracie the aforesaid declaration sought for by the plaintiff cannot be given effect to.

10. However, on the facts stated above I am prima facie satisfied that the plaintiff has failed to make out a strong prima facie case in his favour nor he has been able to prove balance of convenience in his favour. I am also of the prima facie opinion that the plaintiff shall also not suffer any irreparable loss and injury even if no ad interim injunction is granted as sought for by the plaintiff. The defendants No.1 to 3 have placed on record an undertaking given by them to this court wherein it is stated that in case the injunction order passed by this court is vacated the defendants would furnish a security in the sum of Rs.5 lacs to the satisfaction of this court in the form of a fixed deposit receipt in the name of the defendants No.1,2 & 3 within 2 months. I accept the aforesaid undertaking given by the said defendants 1 to 3 and direct that a fixed deposit receipt for an amount of Rs.5 lacs in the name of defendants No.1,2 & 3 be deposited in this court within a month from today which will be kept as a security for satisfying the decree, if any, given in favour of the plaintiff in the suit.

11. On consideration of the documents on record and for the reasons stated above, I am satisfied that the plaintiff is not entitled to any relief by way of an ad interim injunction in the present suit. The injunction orders passed by this court on 3.4.1998 and 1.5.1997 stand vacated. In terms of the aforesaid directions and observations the applications stand disposed of with a direction to defendants 1 to 3 to furnish the aforesaid security in the form of a fixed deposit receipt within a period of one month from today.

12. It is however, made clear that whatever is stated in this order is my tentative and prima facie view at this stage on the basis of the documents available on record and are subject to final decision taken by this court in the suit.