Deepak Mohindra & Anr. vs Radhey Sham Maria & Ors.
2000 Latest Caselaw 684 Del

ORDER

J.B. Goel, J.

1. All these four applications under Order 39, Rules 1 and 2 CPC for various interim injunctions have been filed by the plaintiffs in a suit for specific performance based on an agreement to sell dated 16.7.1989 entered into between them and defendants No. 3 to 5 on behalf of defendants No.1 and 2.

2. The case of the plaintiffs, who are husband and wife, is that defendants No.1 and 2 are the perpetual lessees of plot of land No.C-6/37, Safdarjung Residential Scheme, New Delhi. Defendants No.3 to 5 had represented to them that defendants No.1 and 2 had entered into a collaboration agreement with defendants No.3 to 5 on 16.6.1987, the latter agreeing to develop and construct apartments over this plot of land at their own cost after obtaining necessary sanctions/permissions on the terms agreed therein with a right and authority to defendants No.3 to 5 to sell the flats to be constructed to others in pursuance of the collaboration agreement, defendants No. 3 to 5 had paid initially Rs. 50,000/- and further payment of Rs. 2.00 lakhs was paid subsequently on 10.5.1988 as advance payment; that they had also obtained the consent and approval of defendants No.1 and 2 for the sale of the said premises in favour of the plaintiffs and also about the sale consideration.

3. After so constructing the building, the defendants No. 3 to 5 had agreed to sell premises on first floor of the said property to plaintiffs for a consideration of Rs. 5,85,000/- for which agreement to sell dated 16.7.1989 was executed between defendants No.3 and 4 as attorneys for defendants No.1 and 2. Whole of the sale consideration was paid at the same time and possession of the premises was also handed over to the plaintiffs who are in occupation and residing there since then. The defendants, however, have failed to execute and get registered the sale deed in their favour despite requests made and also notices sent by them; defendants are harassing the plaintiffs and are refusing to execute the sale deed in their favour. The plaintiffs have filed this suit for specific performance and damages.

4. Along with the suit, the plaintiffs had also filed an application I.A. No. 8222/92 under Order 39, Rules 1 & 2 CPC on which by an ex parte interim injunction passed on May 29, 1992 the defendants were restrained from interfering in the possession of the plaintiffs with respect to the said first floor and also from transferring, alienating or encumbering with the possession thereof.

5. Defendants No. 1 and 2. defendants No.3 and 4 and defendant No. 5 have filed three separate written statements. Defendants No. 1 and 2 have disputed the claim and it is pleaded that they had entered into the collaboration agreement with defendants No.3 to 5 dated 15.6.1987 and not dated 16.6.1987 and also had executed General and Special power of attorneys but subject to the condition that the sale deed/documents will only be executed and registered before the Registrar of Assurances and the sale price will be accepted in their presence; that the period of construction was eight months, with three extensions of two months each, subject to payment of compensation for each extension; however, the period of 8 months has been forged into '18' months by defendants 3 to 5. It is alleged that the signatures of defendants No.1 and 2 were obtained on various blank papers and the collaboration agreement dated 16.6.1987 is fraudulent and fabricated document; that they did not give any authority/consent/approval for sale of any flats to anybody which was necessary; that the agreement to sell entered into with plaintiffs is also forged and fabricated as the property is of a considerable high value and could not be sold for a small amount as alleged for which they had lodged a complaint with the police where an FIR has been registered. They thus are not bound by this agreement to sell. And on the other hand, they claim that they are entitled to compensation and possession of the premises and also vacation of the interim injunctions.

However, no counter claim has been made.

6. Defendants No.3 and 4 and defendant No.5 in their written statements, have denied their liability to execute the sale deed. Defendants No.3 and 4 have admitted that in pursuance of the collaboration agreement between them and defendants No.1 and 2, they had paid a sum of Rs.2.00 lakhs on 10.5.1988 and another sum of Rs.1.85 lakhs thereafter besides initial payment of Rs.50,000/-. It is also admitted that they had entered into agreement to sell dated 16.7.1989 with the plaintiffs for the said sale price of Rs.5.85 lakhs which had been paid to them and also that possession of the flat in question was handed over to the plaintiffs in pursuance thereof. Defendant No.5 has pleaded that there is no privity of contract with him and the suit against him is bad for misjoinder of parties.

7. During the pendency of the suit, plaintiffs filed another application I.A. No.7761/94 under Order 39, Rules 1 and 2 CPC alleging interference in their water and electricity supplies by the defendants and seeking interim injunctions against (1) from interfering in their water supply and to allow them to go to the terrace; (2) to appoint a Local Commissioner to inspect the building and report about the position of the water outlets and the supply of water; and (3) for putting electricity supply meter in separate box. Another application I.A. No.2116/96 under Order 39 Rules 1 and 2 and Order 26 Rule 9 is for appointment of Local Commissioner alleging that defendants had broken a part of the load bearing wall in front and made digging below the staircase and at the entrance to make structural changes and thereby causing damage and danger to the safety of the building and interference in the use and enjoyment of the premises by the plaintiffs and seeking temporary injunction and appointment of the Local Commissioner to inspect the premises.

8. A similar application was also filed in connected Suit No. 1979/92 by another occupant of the ground floor wherein a Local Commissioner was appointed who has given his report dated 20.3.1996 reporting about the changes made in the property.

9. Plaintiffs filed yet another application I.A. No.3003/96 under Order 39 Rule 1 & 2 alleging that the basement in the property is meant for domestic storage but defendants want to let out the same for commercial use which is not permissible and further that the working of booster pump has been shut thereby their water supply has been stopped. Defendants No.1 and 2 have denied the averments plaintiffs made in these applications.

10. I have heard learned counsel for the plaintiffs and defendant No.1 who has appeared in person for himself and for defendant No.2 his wife.

11. Learned counsel for the plaintiffs has contended that the plaintiffs are bona fide purchasers for consideration with possession of the first floor of the house, are in use and occupation, enjoying the supplies of water and electricity from the beginning; the defendants are frequently interfering and tampering with these supplies by closing the knobs and booster pumps without any valid reason and illegally to harass the plaintiffs to accede to their unreasonable demands for further money, and otherwise create third party interest, that the defendants want to make illegal and unauthorised construction in the house to harass and throw out the plaintiffs. Whereas, defendant No.1 has contended that the agreement to sell relied by plaintiffs is a collusive and fabricated document; defendants No.3 to 5 have also forged and fabricated the collaboration agreement dated 16.6.1987; the agreement to sell in question is made without the consent/permission of the defendants No.1 and 2 and is not binding on them. He has denied that the defendants have been obstructing the supplies of water and electricity of the plaintiffs though it is contended that the plaintiffs have got no right to the use of existing water and electricity supplies which are meant for the exclusive use of defendants; plaintiffs have also not been paying charges thereof; as such they are not entitled to these supplies. It is further contended that there are certain seepages and leakages in the property for which some repair work is required in the house including in the courtyard and the basement for which some digging is required which the plaintiffs have been objecting to be done. He has contended that defendants No.1 and 2 have no objection if the plaintiffs obtain their own separate water and electricity supplies at their own cost and clear all the outstanding dues. He also contends that the plaintiffs are not entitled to any interim injunction and the interim orders already passed are liable to be vacated.

12. I have considered these contentions and perused the pleadings and the material on record. Copy of the document, named as "Agreement for Collaboration" (signed by the defendant No.1 on 16/6) shows that it was entered between defendants No.1 and 2 as first party and Shri Surender Pal Singh (defendant No.4) for and on behalf of M/s. Singh Builders and Contractors (defendant No.3) as builders of the other party, for construction of apartments on the plot of land bearing No.C-6/37, Safdarjung Residential Scheme. Inter alia, it has been agreed therein as under:-

1. Vacant possession of the entire plot was given "for the purpose of construction of a building thereon and selling of apartments/flats in due course....."

2. All costs of construction would be borne by the builders;

3. The defendants No.1 and 2 had simultaneously executed general power and special power of attorneys in favour of Shri Surender Pal Singh and Shri D.S. Pal, Architect of the builders for carrying out this agreement.

Clause 6 provided as under:-

"6. Sale of apartments/flats shall be done by the Builders, only in consultation with prior approval and concurrence of the owners/Landlords particularly in regard to price."

In Clause 7, it is stipulated that the sale proceeds will be shared in the ratio of 60% to builder and 40% to owners.

13. This document has apparently been entered into on 16.6.1987 and it is also attested by a Notary Public on 16.6.1987. By General Power of Attorney executed by defendants No.1 and 2 on 16.6.1987 in favour of Shri Surender Pal Singh (defendant No.4) and Shri Manjit Singh (defendant No.5) of M/s. Singh Builders and Contractors (defendant No.3), defendants No.1 and 2 had authorised the donees, inter alia, to sign and execute agreement(s) for sale of flat(s).

14. By means of receipt dated 10.5.1988, defendants No.1 and 2 have acknowledged receipt of Rs.2.00 lakhs from M/s. Singh Builders by means of a cheque dated 10.5.1988 as advance payment towards share of flat/apartment. The agreement to sell dated 16.7.1989 has been entered into on behalf of defendants No. 1 and 2 and M/s. Singh Builders and Contractors as sellers through Shri Surender Pal Singh (defendant No.4) as attorneys and the plaintiffs as purchasers. In clause 2, the sale consideration agreed is Rs.5.85 lakhs which amount was paid by means of four pay orders, all dated 15.7.1989 which is acknowledged in separate receipt, apparently executed simultaneously. Vacant possession was also delivered on 16.7.1989 as per separate receipt. It contemplated execution and registration of the sale deed in favour of the buyers.

15. Defendants No.1 and 2 in letter dated 11.3.1992 and in earlier letter dated 6.4.1990, had asked the plaintiffs to vacate as they were trespassers.

16. Plaintiffs had sent a lawyer's notice dated 22nd April 1992 to the defendants No.1 and 2 calling upon them to execute the sale in terms of the agreement to sell dated 16.7.1989. Plaintiffs had also sent notices to defendants No.3 to 5 by registered post. Sale deed having not been executed, this suit was filed on 23.5.1992.

17. One of the objections of defendants No.1 and 2 is that this agreement to sell was not entered into with their consent and permission as required under the Agreement of Collaboration and it is not binding on them. This question could be determined after the parties have led evidence during trial.

18. The agreement to sell dated 16.7.1989 and receipts available on record show that possession of the entire first floor was handed over to the plaintiffs on 16.7.1989 in pursuance of the agreement to sell after whole of the sale consideration was also paid to defendants No.3 to 5. It is not disputed by the defendants No. 1 and 2 that the plaintiffs are in use and occupation of the premises since then. It is also not disputed that water and electricity supplies are provided in the building and the plaintiffs have been enjoying these facilities since then. Collaboration agreement available on record shows that the defendants No.1 and 2 had entered into Collaboration Agreement with defendants No.3 and 4 authorising the latter to raise construction and to enter into agreement(s) to sell the flats with buyers. Apparently, the agreement to sell with the plaintiffs had been entered into in pursuance of this collaboration agreement. Whole of the sale consideration having been paid, nothing is to be done on the part of the plaintiffs to complete the sale and it is the defendants who have to execute the sale deed and perfect the title of the plaintiffs which they are not prepared to do. There is possibility of defendants 1 and 2 creating third party interest in the subject matter of the suit. Till this suit is decided, it will not be proper to create third party interest in the premises by the defendants. This has to be prevented.

19. Prima facie, the plaintiffs are entitled to the use, occupation and enjoyment of these premises. Plaintiffs have complained that the defendants No.1 and 2 off and on have been interfering in the water and electricity supplies enjoyed by the plaintiffs. Knobs of the water supply on the overhead tanks have been closed and the booster pump has been shut down. Prima facie, there is no reason to disbelieve the plaintiffs in this respect at this stage considering the facts and circumstances of the case. Defendants are not entitled to interfere with or stop the supplies of water and electricity of the plaintiffs in any manner or to tamper with the connecting lines, instruments, accessories or the meters provided for these supplies.

20. Principles for the grant of temporary injunction are well settled. At this stage, the Court has to be satisfied that the claim is not frivolous and vexatious; in other words, that there is a serious question to be tried and it cannot be said that there is no real prospect of succeeding in his claim at the trial; it is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature consideration; these are matters to be dealt with at the trial. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiffs during the period the dispute regarding the legal right asserted by the plaintiff is resolved. The principles for grant of temporary injunction have been reiterated by the Supreme Court in Dalpat Kumar and Anr. Vs. Parhlad Singh and Ors., as under:-

"It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that: (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff; (2) the Court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue, before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it... prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages, the third condition also is that "the balance of convenience" must be in favour of granting injunction. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued."

I.A. No. 8222/92

21. In this application under Order 39 Rules 1 and 2, plaintiffs have alleged that defendants have refused to perform their part of the agreement to sell and apparently they apprehend creation of right of third parties in the premises and seek interim injunction against defendants No.1 and 2 to restrain the defendants from interfering in their and enjoyment of the premises and from transferring or encumbering the property.

Prima facie plaintiffs in the facts and circumstances, are entitled to safeguard their rights and interest in the premises created by the agreement to sell dated, 16.7.1989. This I.A. No. 8222/92 is accordingly allowed and the interim order passed on May 29, 1992 is hereby confirmed.

I.A. No. 7761/94

22. In this application, plaintiffs have complained of interference in the supply of water and about tampering in electricity meters which serves the plaintiffs. This application is also allowed and by means of ad interim injunction, defendants are retrained from (1) interfering in the water supply to the first floor premises of the plaintiffs; (2) to remove the knobs or any other obstruction put in the outlets of the water tank on the terrace floor or any other obstruction caused in the water supply of the plaintiffs; (3) not to temper with or interfere in the electricity meters or the supply lines through which electricity supply is made to the plaintiffs.

23. Plaintiffs may have separate electricity connection for which the defendants No.1 and 2 have no objection as per the statement made by defendant No.1 in Court on 21.1.2000.

24. Plaintiffs will be entitled to go to the terrace floor only for the purpose of inspection of overhead water tanks after reasonable notice to the defendants No.1 and 2 and the defendants No.1 and 2 shall allow them to do so.

I.A. No. 2116/96

25. In this application, plaintiffs have alleged that on 28.2.1996 in disregard of the interim order dated 29.5.1992 the defendants No.1 and 2 came with some labourers and started (1) breaking portion of the wall and a part of the floor of the back courtyard to gain and make an entry in the courtyard and to trespass into it; (2) to demolish/break a part of the load bearing wall in front and below the staircase making structural changes and causing damage and threat to the safety of the building; (3) making holes into the wall at the entrance of the property at the start of the staircase in front before entrance to the plaintiff's property. This application is also allowed and it is ordered as under:-

Defendants No.1 and 2 are restrained from :

1. entering into or interfering with the use occupation, enjoyment by the plaintiffs of the premises on first floor of the house in dispute;

2. not to make any structural changes in the building which may cause any damage or endanger the stability and safety of the first floor premises thereof;

3. If any structural changes are intended to be made, the same shall not be carried out without the sanction/permission of the MCD that may be required under the Delhi Municipal Corporation Act and the building Bye Laws framed thereunder and also after giving prior notice of 15 days to the plaintiffs;

4. the defendants shall make repairs within 15 days to restore the broken portion of the building so far as it causes interference or obstruction to the plaintiffs right of entry into or use and enjoyment of the first floor premises or affects the safety and stability thereof.

I.A. No. 3003/96

26. In this application plaintiffs have alleged further acts of harassment by the defendants. Prayers made are that the defendants may be restrained from letting out or parting with possession of the basement or any part thereof to any person or from using the same contrary to the sanctioned building plan. This prayer is beyond the scope of the suit, and it is disallowed.

27. Other appropriate reliefs have already been granted in the orders passed in the other applications. This application is accordingly dismissed.

28. In the circumstances, parties are left to bear their own costs.

29. Nothing stated herein shall be deemed to be expression of opinion on the merits of the case.

30. I.As. No. 8222/92, 7761/94, 2116/96 and 3003/96 are accordingly disposed of.