Virender Arora & Anr vs Jitender Singh & Anr
2010 Latest Caselaw 5490 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 02.12.2010

+           CS(OS) No. 650/2010

VIRENDER ARORA & ANR                                .....Plaintiff

                                - versus -

JITENDER SINGH & ANR                                .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. Suhail Dutt, Advocate.
For the Defendant: Mr. Usha Srivastava, Adv. for D-8

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to the Reporter or not?                           No

3. Whether the judgment should be reported                          No
   in Digest?

V.K. JAIN, J. (ORAL)

IA 16253/2010 (on b/o. plaintiff u/O.1 R.10(2) CPC)

Notice of the application be issued to the proposed

additional defendants for 10th March, 2011.

IA 16259/2010 (on b/o. plaintiff u/O.39 R.1 & 2 CPC)

Notice of the application be issued to the

defendants for the date already fixed above.

IA 4460/2010 (O.39 R.1 & 2 CPC)

1. The case of the plaintiffs is that the defendants had

entered into a Collaboration Agreement with the owners of

property No.1195, Dr. Mukherjee Nagar, New Delhi, under

which they had to re-construct the aforesaid property and

the third floor of the property was to fall to share of the

defendants, whereas the other share were go to the owners.

This is also the case of the plaintiffs that the defendants

vide Agreement to Sell dated 15th April, 2009 had agreed to

sell the third floor of the aforesaid property along with

terrace rights to them for a total sale consideration of

Rs.53,75,000/- and they have already made part-payment

of Rs.15,60,000 to them. The plaintiff, therefore, filed this

suit for specific performance of the Agreement to Sell dated

15th April, 2009 with respect to third floor alongwith terrace

rights of property No.1195, Dr. Mukherjee Nagar, Delhi,

alongwith common right of passage, entrance and staircase.

Vide IA No. 4460/2010, the plaintiffs have sought

injunction restraining the defendants from selling,

alienating or encumbering the third floor of the aforesaid

property during the pendency of the suit.

2. The defendants have contested the suit and have

stated that the plaintiffs have failed to make payment of the

balance sale consideration on or before the stipulated date

of 15th April, 2009. They have also claimed that in the event

of their not honouring the agreement, the plaintiffs are

entitled to an amount twice the earnest money, but, they

cannot seek specific performance of the agreement. They

have, however, not disputed having entered into a

collaboration agreement with Shri Mohan Lal, the original

owner of the suit property. They have also not disputed that

under the collaboration agreement, they were to be the

exclusive owner of the third floor of the property.

3. The learned counsel appearing for the defendants

states that the owners of the property have already

cancelled the collaboration agreement which was executed

between them and the defendants and therefore the

defendants are not left with any right in respect of the third

floor of aforesaid property and terrace over it which are the

subject matter of this suit.

4. It is now an admitted case of the plaintiffs that the

third floor of the aforesaid property is no more in possession

of the defendants. Their case is that in July, 2010, they

have delivered the possession to Mr. & Mrs. Saroj Budhiraja

who are now in its possession. Since the defendants are no

more in possession of the third floor as well as the terrace

over it in property No. 1195, Dr. Mukherjee Nagar, New

Delhi, no injunction restraining them for handing over the

possession of the aforesaid portion of the property can be

granted and, therefore, the application has become

infructuous.

5. As regards title in respect of the third floor and the

terrace over it is disputed question of fact as to whether the

collaboration agreement which was executed between the

defendants and the owners of the property has been

cancelled or not. The case of the plaintiffs is that the

collaboration agreement has not been cancelled and the title

with respect to the third floor and the terrace over it

continues to vest in the defendants. If this is true, the

plaintiffs would be entitled to injunction against sale,

transfer or alienation of the third floor of the property by the

defendants.

6. In these circumstances, the defendants are

directed to maintain status quo with respect to title of the

third floor of the property No. 1195, Dr. Mukherjee Nagar,

New Delhi and the terrace over it. Presuming that the

defendants have no right, title or interest left in the third

floor of the suit property and terrace over it, the injunction

being granted by the Court is not likely to hurt them in any

manner.

The application stands disposed of accordingly.

CS(OS) 650/2010

List on 10th March, 2011.

(V.K. JAIN) JUDGE

DECEMBER 02, 2010 SN/bg