Brij Kumar Aggarwal And Anr. vs Mukul Gupta And Ors.
2004 Latest Caselaw 1071 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the order dated 17th January, 2003, of the Civil Judge, whereby the learned Judge has allowed an application under Order 32 Rule 1 and 2 CPC and has restrained respondent Nos. 3 to 6 herein from selling the ground floor flat of property No. 2-A, Commissioners Lane to the appellants herein or anyone else in violation of terms and conditions contained in agreement dated 17th October, 1978 and sale deed dated 29th September, 1979. He has further restrained the appellants herein from purchasing the same in violation of the terms and conditions of the agreement and sale deed.

2. The brief facts of the case, as has been noted by the Civil Judge, are as under :

"Brief resume of facts as necessary for disposal of these applications are that plaintiffs filed a suit for recovery of Rs.1,24,000/- and permanent and mandatory injunction against 7 defendant. Averments as pleaded in plaint are that plaintiffs are owners of first floor with second floor and one servant quarter unit on the second floor and garage on the ground floor forming part of the property No. 2-A, Commissioner Lane, Delhi having purchased the same from defendant no.1 to 5 vide Agreement dt. 17.10.1978 and registered sale deed dt. 29.9.79. In the said sale deed certain conditions were put viz. the approach to the first floor will always be free and no bar will be placed on the approach road and the plaintiffs will have full right for parking their vehicles in the parking space. In the sale deed Clause 8 & 9 provides as follows:

"Clause No.8 of the Sale Deed :

That if the Vendor wishes to sell the ground floor flat of 2-A, Commissioner Lane of which he is the owner, he shall give the first option of purchase to the Vendees herein. The sale of ground floor flat to a third party if any, will be subject to this sale deed and the Agreement dated 17th October, 1978, executed between the Vendor and the Vendee."

"Clause No.9 of the Sale Deed :

That the Vendees on the execution of this Sale Deed shall have lien on 50% of the plot of the free hold land measuring approximately 938.10 Sq.Mtrs. on which the ground floor and the first floor is erected and shown in Schedule-I."

In para no.17 of the Agreement dt.17.10.78 it was agreed to between the parties that in case ground floor flat is sold by the defendant no.1 to 5 to any other party, defendant no. 1 to 5 shall safeguard the rights of palintiffs as provided in agreement dt. 17.10.78 and the sale deed. Defendant no. 1 to 5 started negotiations for sale of ground floor to defendant no. 6 and 7 to which the plaintiffs served a notice asking the minimum price. By letter dt. 3.12.93 defendant no. 1 and 2 quoted Rs.30 Lakhs as minimum price which was unacceptable to plaintiff no.1 as replied by plaintiff no.1 in letter dt. 7.12.93. Vide this letter dt. 7.12.93 sent by plaintiffs to defendant no. 1 and 2, the plaintiffs are stated to have made it clear to the defendant no. 1 and 2 that all the rights given to the plaintiffs vide agreement dt. 17.10.78 and sale deed dt. 29.9.79 be safeguarded and protected in case defendants sell the ground floor to third party. It is averred by plaintiffs that defendant no.1 to 5 are intending to sell part of the property which has been sold to plaintiffs. Plaintiffs further averred that the defendants entered into agreement to sell violating the terms and conditions of agreement dt. 17.10.78 and sale deed dt.29.9.79. When plaintiffs requested defendant no. 2 to 6 to disclose the terms and conditions of agreement of sale, the plaintiffs were insulted for which plaintiffs are claiming damages of Rs. 1,24,000/-.

The plaintiff also prays Permanent Injunction restraining the defendants no. 1 to 5 for selling the ground floor of property to defendant no. 6 and 7 or any other person in violation of the terms nd conditions of agreement and sale deed with plaintiffs, and defendant no. 6 and 7 from purchasing any part of property or right already sold to the plaintiffs. Plaintiffs pray a decree for Mandatory Injunction directing the defendant no.1 to 5 to protect rights of plaintiff.

III. Defendant no.1 to 5 are contesting suit for plaintiff averring therein that plaintiff is trying to blackmail the defendants. Defendant no.6 and 7 are stated to be residing in the ground floor of property since 1970 as a tenant. Agreement dt. 17.10.78 and sale deed dt. 29.9.79 is not denied. It is stated that as per agreement between parties the plaintiffs were given option to purchase the ground floor on as is where is basis but the plaintiffs were not ready to purchase it on minimum price quoted by the defendants. Therefore the defendant no. 6 was approached to sell the property to him as he is living in the ground floor as a tenant and the agreement to sell dt. 14.12.93 was executed and part payment was received and also necessary permission of Income Tax authorities was obtained. The defendant do not deny the agreement dt.17.10.78 and sale deed dt.29.9.79 or its contents only thing raised by defendants are that the said contents of agreement and sale deed are not being correctly interpreted. It is averred that in no way any of the terms and conditions of clauses of sale deed dt. 29.9.79 with plaintiff is being violated and the defendants are selling the property subject to the said terms and conditions only. Other allegations in the plaint are denied.

IV. Defendant no. 6 and 7 are also contesting the suit of the plaintiff on the averments that the plaintiff should have filed a suit for specific performance of the contract alleged to have been executed between defendant no. 1 to 5 and themselves and present suit is not maintainable. There exist no previty of contract between the plaintiff and defendant no. 6 and 7. Defendant no. 6 and 7 are neither necessary nor proper party in the suit. Defendant no. 6 and 7 also averred that the plaintiff is not properly interpreting the terms and conditions as contained in the sale deed and agreement to sell. Defendant no. 6 and 7 admitted that they have entered into an agreement to sell with defendant no. 1 to 5 regarding sale of entire ground floor of suit property Along with open area on the entire ground floor portion except garage with 50% share in the plot of land measuring 938.10 Sq. mtrs. for a consideration of Rs.25,000/-. Other averment of the Written Statement of defendant no. 6 and 7 are not necessary for disposal of the present application."

3. It is contended by counsel for the appellants that the appellants are in no way buying any property in contravention of the agreement dated 29th September, 1979. Such is also the undertaking given by respondent Nos. 3 to 6 to this Court upon affidavit. That being so, I see no reason why the ground floor which otherwise does not belong and has not been purchased by respondent Nos. 1 and 2 should be injuncted from being transacted. In this view of the matter, I modify the order dated 17th January, 2003 by permitting the respondent Nos. 3 to 6 to sell ground floor to the appellants herein, subject to the sale deed dated 29th September, 1979. With this, FAO 112/2003 and 271/2003 are disposed of.