Shri P.K.Gupta vs M/S Ansal Properties & Industries ...
2010 Latest Caselaw 4713 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment : 06.10.2010

+                    RSA No.117/2001


SHRI P.K.GUPTA                                  ...........Appellant
             Through:          Mr.J.P.Sengh Sr. Advocate with
                               Ms.Geeta Batta, Advocate.

                   Versus

M/S ANSAL PROPERTIES & INDUSTRIES LTD.
                                       ..........Respondent
             Through: Mr.Gurinder Pal Singh, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the Digest?
                                                               Yes

INDERMEET KAUR, J.(Oral)

1.     This appeal is directed against the impugned judgment

dated 16.3.2001 which had endorsed the finding of the Trial Judge

dated 26.7.1997. Vide judgment and decree dated 26.7.1997, the

suit of the plaintiff Shri P.K.Gupta for permanent injunction had

been decreed.     The impugned judgment had reserved the finding

thereby dismissing the suit of the plaintiff.

2.     Briefly stated the factual matrix of the case is as follows:

       i. The plaintiff Shri P.K.Gupta had applied for a residential

       plot in the complex of the defendant i.e. M/s Ansal

       Properties & Industries (P) Ltd. at Ansal Palam Vihar.

       Plaintiff was provisionally registered for plot no.J-1131

       subject to payment of Rs.30,600/- which the plaintiff had

       made vide receipt dated 17.7.1985 (Ex.PW-1/1). The layout
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       plan of Ansal Palam Vihar Colony has been proved as Ex.PW-

      1/2.     The registration for allotment of the aforestated plot

      was acknowledged by the defendant vide its letter dated

      18.8.1987 (Ex.PW-1/3).            On 27.4.1988 plaintiff received a

      letter     (Ex.PW-1/4)      from     the   defendant      cancelling       his

      allotment. As per the plaintiff, the reasons were arbitrary

      and whimsical.           Present suit has accordingly been filed

      seeking a mandatory injunction against the defendant

      directing him to allot plot no.J-1131 in Ansal Palam Vihar

      Colony or any other alternate plot to pay the difference in

      the price not only of the principal but the market rate of the

      property with interest @ 24% per annum.

      ii.      Trial Judge had framed three issues. They inter alia

      read as follows:

               "1.Whether the plaintiff is entitled for the relief of declaration as
               prayed? OPP
               2. Whether the plaintiff is entitled for the relief of permanent
               injunction as prayed? OPP
               3. Relief."
      iii.     Issue no.1and 2 were decided in favour of the plaintiff.

      It was held that the plaintiff had deposited initial amount of

      Rs.30,600/- for the registration of the plot; merely because

      the licence had not been granted by the Government of

      Haryana to the defendant was no ground not to allot a plot

      to the plaintiff when DW-1 the witness of the defendant had

      himself admitted that out of 4700 plots in the colony most of

      the plots had already been allotted; this version of DW-1 had

      been relied upon by the Trial Court to decree the suit of the

      plaintiff.

      iv.      The impugned judgment had reversed the finding of

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       the Trial Court; it had returned a finding that the defendant

      had only made an offer to the plaintiff; no contract had

      matured between the parties; although, the defendant was

      willing to perform his part of the contract yet he could do so

      for reasons beyond his control; the contract had become

      impossible to perform; it had frustrated.             The impugned

      judgment had further held that under Section 41 of the

      Specific Relief Act an equally efficacious remedy was

      available to the plaintiff i.e. by filing a suit for specific

      performance.       In this view of the matter the discretionary

      relief of injunction was disallowed. Suit was dismissed.

3.    This is a second appeal. After its admission on 5.10.2010,

the following substantial question of law has been formulated:

      "Whether findings in the impugned judgment dated 16.3.2001
      amount to a perversity and if so its effect ?"


4.    The impugned judgment had scrutinized the evidence led on

behalf of the parties.       PW-1 the plaintiff himself had entered the

witness box and proved the documentary evidence.               Ex.PW-1/1 is

the receipt dated 17.7.1985 issued by the defendant wherein a sum

of Rs.30,600/- had been received from the plaintiff which was on

account of deposit for registration in terms of the application of

the plaintiff. This application has not been proved by either of the

party.   It is, however, not in dispute as is evident from Ex.PW-1/1

that this amount had been paid by the plaintiff only for the initial

registration with the defendant company.               The second document

Ex.PW-1/3 is a letter dated 18.8.1987 wherein the defendant had

communicated that he would inform the plaintiff about further

payments towards this plot i.e. plot no.J-1131, Ansal Palam Vihar;

RSA No.117/2001                                                   Page 3 of 6
 further reference in the letter was of another plot booking of the

plaintiff i.e. of 01-9. Contention of the appellant that an amount of

Rs.6,600/- was demanded as a second installment is belied by this

document; this payment of Rs.6,600/- was in lieu of the other

booking i.e. booking of 01-9 and not of the plot in question. Vide

Ex.PW-1/4 which is dated 27.4.1988 defendant informed the

plaintiff that Government of Haryana had not issued a licence to

the private developers, because of the change in their policy; it

would therefore not be possible to allot a residential plot to the

plaintiff. A sum of Rs.38,501/- calculated with interest @ 15% per

annum on the deposit of Rs.30,600/- was refunded back to the

plaintiff.

5.    Learned counsel for the respondent has drawn attention of

this Court to certain documents which had been filed by the

plaintiff before Trial Court which also includes newspaper cuttings

informing the general public that the Government of Haryana had

decided to promulgate an ordinance banning purchase of land for

colonization; further that no new licence would be given to such

colonizers.       The submission of the learned counsel for the

respondent that that is a document which is filed by the plaintiff

himself who clearly knew this fact that the Government of Haryana

had refused licences to colonize land; this was the reason why the

defendant could not colonize Ansal Palam Vihar Colony; pursuant

to which the provisional allotment of the plot in favour of the

plaintiff had to be cancelled.

6.    In this background, the submission of the counsel for

appellant that the grounds mentioned in Ex.PW-1/4 cancelling his

allotment are arbitrary is thus without any merit; it was brought to

RSA No.117/2001                                            Page 4 of 6
 the knowledge of the public at large which is evident from the

filing of these news readings by the appellant himself; he being

aware that such a policy had been adopted by the Government of

Haryana, it did not now lie in his mouth to state that his provisional

allotment had been cancelled on arbitrary terms. It is also relevant

to state that in the plaint itself, the plaintiff in para 4 has stated

that he was only "provisionally registered" for the aforestated plot.

7.    The testimony of DW-1 also clearly establishes that there

were various patches in Palam Vihar; some of which had been

licenced and some remained unlicenced; his version was clear to

the effect that the provisional plot of the appellant had fallen in the

unlicenced patch; it was for this reason that his allotment had to be

cancelled as the defendant did not get the licence from the

Government of Haryana.

8.    These findings in the impugned judgment can in no manner

be termed as perverse. The Supreme Court in (2001) 1 SCC 501

Gaya Din Vs. Hamuman Prasad              has defined the expression

"perverse" to mean a finding not supported by the evidence

brought on record or against the law or suffering from the vice of

procedural    irregularity.      The   Courts      below   had   correctly

appreciated both the oral and the documentary evidence placed

before it. Plaintiff was not entitled to relief.

9.    The present suit was a suit for mandatory injunction. Under

Section 41 of the Specific Relief Act 1963 injunction may be

refused in the various contingencies mentioned therein; under sub

clause (h) where an equally efficacious relief can be obtained by

any other usual mode of proceedings; injunction should not be

granted. In this case the plaintiff could have filed a suit for specific

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 performance of the purported agreement upon which he has relied

to base his claim. This machinery was well available to him.       The

discretionary equitable relief under Section 41(h) of Specific Relief

Act could not have been granted.

10.   There is no merit in this appeal. It is dismissed.




                                          INDERMEET KAUR, J.

OCTOBER 06, 2010 nandan