Vantage Constructions Pvt. Ltd. ... vs Col. S.J. Chaudhari And Ors.
2007 Latest Caselaw 1884 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the order dated 20th July, 2006 and also the order dated 31st May, 2007 passed by the learned Single Judge. By the order dated 20th July, 2007, certain directions have been issued by the learned Single Judge and by order dated 31st May, 2007, review application filed by the appellants herein was rejected after imposing costs of Rs.10,000/-.

2. Findings and conclusions arrived at by the learned Single Judge are under challenge in this appeal on which we have heard the learned Counsel appearing for the appellants, who are defendants No.1-3 in the aforesaid suit, which is registered as CS(OS) No.1286/1990.

3. The appellants are contractors who had entered into a collaboration agreement for development of the property 20A, Friends Colony, New Delhi with the owner, the plaintiff. The collaboration agreement is dated 23rd April, 1997. The builder - appellants was to develop the property at his own cost and has rights to the extent of 54% of the total saleable space in the developed property, the balance 46% belonging to the owner - plaintiff. The appellants - builder transferred and alienated his entire 54% built up share in favor of defendants 5 to 13 in the suit. Thereafter the appellants stopped construction. In the said suit, an order was passed by the learned Single Judge on 12th January, 1996 directing appointment of a Receiver in respect of the suit property coupled with certain directions in respect of construction and disposal of the flats to be constructed. An appeal was preferred as against the said order. The Division Bench of this Court by order dated 31st October, 1996 disposed of the appeal by issuing certain directions ex debito justitiae which are contained in paragraph 30 of the said order. These directions having relevance, are extracted herein below:

30. For the foregoing reasons the appeal is partly allowed. The appointment of defendant No.2 respondent as the partner of defendant No.1 firm as receiver is set aside. In supersession thereof the following directions are made:

(i) The owner plaintiff and the flat buyers defendants 5 to 13 shall remain bound by the terms and conditions agreed upon by them and recorded in IA 8565/95,

(ii) Shri Vinay Bagla son of Shri SN Bagla resident of 30-A/1 Friends Colony, New Delhi is appointed the receiver who shall complete the remaining construction of the building subject to revalidation of the plans by the MCD and other local / statutory authorities involved and for the purpose the receiver shall have authority to

(a) file plans application, etc. as may be required to obtain requisite approvals, sanctions and authorization for completion of the flat including the flats falling to the share of the plaintiff as also the flats purchased by the defendants 5 to 13.

(b) to engage approved architect(s), contractors, labour etc. for the completion of the flats.

(c) to apply for and obtain completion certificate(s) form C and D, electrical and water connection etc. for all the flats.

(iii) The receiver will at the cost of flat buyers defendants 5 to 13 make arrangement for completing the construction of units allocated to defendants 5 to 13 namely A1, A2, C1, C2 and D1 + D2 (part) totaling up to an area of 54% of the built up area and up to a maximum of 5 dwelling units. Receiver will also at the cost of defendants 5 to 13 take steps for completing flat No.B1, E2 and D2 (part) falling to the share of the plaintiff.

(iv) The plaintiff's flats shall be completed according to the stipulated first class construction in terms of Clause 5 of the agreement dated 23.4.87 between the plaintiff and defendant No.1 and 2. In consideration of the defendants 5 to 13 agreeing to get the plaintiff's flat as aforesaid completed at their own expenses the plaintiff's right to obtain compensation from the defendants 1 to 3 shall stand assigned to the defendants 5 to 13. However, the amount of compensation to be claimed on account of the plaintiff and the defendants 5 to 13 shall not exceed an amount of Rs.5 lakhs as undertaken before this Court.

(v) As soon as the construction is completed and completion certificate is obtained possession of the respective flats shall be delivered simultaneously to the plaintiff and the defendants 5 to 13 subject to the previous permission by the trial court.

(vi) The above said appointment of receiver is without prejudice to the rights and contentions of defendants 1 to 4 which are sub judice in the suit and also without prejudice to the right of the defendants 1 to 4 to claim any compensation from any of the parties to the suit if the defendants 1 to 4 or any of them may choose to lay so in any appropriate proceedings. So also the rights of the plaintiff and defendants 5 to 13 to claim compensation from defendants No.1 to 4 for the alleged breach of contract is not prejudiced subject to an overall ceiling limit of Rs.5 lakhs on the claim.

(vii) The appointment of a local commissioner who shall be an architect either singly or in association with any one else for the purpose of inspecting the building and bringing on record the state of affairs as to construction completed and what remains to be done shall be in the discretion of the learned single Judge who may also appoint the fee and issue appropriate directions.

(viii) The receiver may at the option of the owner plaintiff also complete the construction of these or any of these units and obtain the completion certificate in respect of the same.

(ix) The flat buyers defendants 5 to 13 shall furnish a bank guarantee in a sum of Rs.10 lakhs within a period of fifteen days from the date of this order which bank guarantee will be liable to be discharged after the units have been constructed in accordance with the option of the plaintiff, completion certificate obtained and possession handed over to the plaintiff.

4. An application registered as IA No.7677/2006 was filed on behalf of the Court Receiver before the learned Single Judge. By filing the said application, the Court Receiver sought permission of the Court to hand over possession of flats B1, E2 and part of D2 to the plaintiff and flats A1, A2, C1, C2, D1 and part of D2 to defendants NO.5 to 9, 11 and 13 and to Ranchi Enterprise, Properties Ltd. and Orient Paper and Industries Ltd. The said application filed by the Court Receiver was considered by the learned Single Judge and the impugned orders were passed that since the Division Bench has already passed an order in respect of handing over of the flats constructed in the suit property and since the Receiver is seeking to implement the said order of the Division Bench, therefore, the application should be allowed with direction to the Receiver to hand over possession of the said flats in terms of the order of the Division Bench.

5. The appellants herein being aggrieved by the aforesaid orders and particularly in view of the fact that they were not heard when the order dated 20th July, 2006 was passed, filed a review application before the learned Single Judge. The said application was entertained, notice was issued and after hearing all the parties, the order dated 31st May, 2007 has been passed dismissing the said review application on merits and dealing with all contentions that were raised by the appellants - defendants No.1 to 3. While dismissing the said application, costs of Rs.10,000/- have been imposed.

6. The plaintiff and the defendants No.5 to 13 have been fighting out litigation in order to enable them to get possession of the flats to be constructed in the suit property and after a long legal battle they succeeded in getting the order dated 31st October, 1996 from the Division Bench of Court whereunder orders and directions were issued for construction of incomplete flats and as soon as the construction of the flats was completed, flat numbers A1, A2, C1, C2 and D1 + D2 (part) which are totalling up to an area of 54% of the built up area and up to a maximum of 5 dwelling units shall be allocated to defendants No.5 to 13. It was also directed that the Receiver will at the cost of defendants 5 to 13 take steps for completing flat No.B1, E2 and D2 (part) falling to the share of the plaintiff. A further order was also passed that as soon as the construction is completed and completion certificate is obtained, possession of the respective flats shall be delivered simultaneously to the plaintiff and the defendants 5 to 13 subject to the previous permission of the trial court. It may be noted that the defendant Nos.5 to 13 have paid Rs.2.5 crores to the appellants - defendants No.1 to 3.

7. The orders passed by the Division Bench are final and binding. Subsequent thereto, the Receiver filed an application before the learned Single Judge to get the said orders and directions implemented and handing over possession of the flats. Orders were passed by the learned Single Judge giving effect to the aforesaid orders and directions of the Division Bench. In the earlier order dated 31st October, 1996, there is a specific direction that once the construction is completed and completion certificate is obtained, possession of the respective flats will be delivered simultaneously to the plaintiff and the defendants No.5 to 13, but after obtaining prior permission of the trial court. In terms thereof, the Court Receiver filed an application seeking permission of the court to enable him to hand over possession of the said flats in favor of the defendants No.5, 9 to 11 and 13 and possession of other flats to the plaintiff and direction to hand over possession of the same simultaneously. What the appellant seeks by way of the present appeal is to ask for review and reconsideration of the earlier order dated 31st October, 1996 passed by the Division Bench. It may be noted that the plaintiff - owner and the defendant Nos.5 to 13 do not have any objection to the directions given by the learned Single Judge in terms of the order dated 31st October, 1996. The appellants - builder has already transferred and entered into agreements with defendant Nos.5 to 13 for 54% of the total built up area allocated to him. He left the construction mid way and the balance construction has been completed at the cost of the defendant Nos.5 to 13. He has received consideration from the defendant Nos.5 to 13.

8. Counsel appearing for the appellants states that in a suit filed by the plaintiff - owner for possession, no such direction could have been issued. However, the said contention cannot be accepted in view of the fact that the Division Bench has already passed an order dated 31st October, 1996 as to how after completion of the construction, the possession is to be handed over. The said order has become final and binding and, therefore, the said contention is without merit.

9. We find no reason to interfere with the orders passed by the learned Single Judge. There is no merit in the appeal, which is dismissed.

10. At this stage, counsel appearing for the appellants states that the aforesaid order dated 31st October, 1996 is an interlocutory order and should not affect the final decision of the case. As and when the said contention is raised at the time of final disposal, the same shall be considered by the learned Single Judge in accordance with law.