Delhi High Court
Desein Private Limited vs M/S Ansal Properties And ... on 25 November, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA Nos. 744/2002, 190/2003 and 221/2003
% 25th November, 2011
RFA 744/2002
% THE INDURE PRIVATE LIMITED ..... Appellant
Through : Ms. Yogesh Malhotra, Ms. Vineet
Malhotra and Mr. Rohan Sharma,
Advocates.
versus
M/S ANSAL PROPERTIES AND
INDUSTRIES LTD. ..... Respondent
Through : Mr. B.B. Gupta, Mr. Harish Hari
Haran and Mr. Ravjvot Ghuman,
Advocates.
WITH
RFA 190/2003
% DESEIN PRIVATE LIMITED ..... Appellant
Through : Ms. Yogesh Malhotra, Ms. Vineet
Malhotra and Mr. Rohan Sharma,
Advocates.
versus
M/S ANSAL PROPERTIES AND
INDUSTRIES LTD. ..... Respondent
Through : Mr. B.B. Gupta, Mr. Harish Hari
Haran and Mr. Ravjvot Ghuman,
Advocates.
AND
RFA 221/2003
% DESEIN PRIVATE LIMITED ..... Appellant
Through : Ms. Yogesh Malhotra, Ms. Vineet
Malhotra and Mr. Rohan Sharma,
Advocates.
versus
RFA Nos. 744/2002, 190/2003 and 221/2003 Page 1 of 5
M/S ANSAL PROPERTIES AND
INDUSTRIES LTD. ..... Respondent
Through : Mr. B.B. Gupta, Mr. Harish Hari
Haran and Mr. Ravjvot Ghuman,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J. (ORAL)
1. The challenge by means of these Regular First Appeals (RFAs) filed
under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned
judgments of the trial Court dated 14.8.2002 and 5.12.2002. Two judgments
being the subject matter of RFA Nos. 190 of 2003 and 221 of 2003 are dated
5.12.2002 and one judgment, subject matter of RFA No. 744 of 2002 is
dated 14.8.2002. Since the operative portions of the judgments are the same,
i.e. the suits of the appellants/plaintiffs for specific performance were
dismissed, all the appeals are disposed of by this consent order.
2. The trial Court has dismissed the suits, firstly, by holding the same to
be barred by limitation as the same were filed in the year 1989 although, in
1983 the respondent had written letters that in case the
appellants/plaintiffs/proposed buyers did not pay the amount demanded, the
amounts already paid will be forfeited. The trial Court has also held that the
appellants/plaintiffs failed to prove that the appellants/plaintiffs did not fail
to pay the requisite payments at the relevant time as demanded by the
respondent/defendant under the contract and therefore it was held that
appellants/plaintiffs had committed a breach of contract and were hence not
entitled to specific performance being not ready and willing to perform their
obligations and which is a sine qua non. The trial Court has also dismissed
the suits because the suit lands have already been sold to third parties by
duly registered sale deeds/flat buyers agreements, however, these buyers, the
present actual owners, have not been made parties, which was a mandatory
requirement. This joinder of actual owner in my view was mandatory in
view of the decision of the Supreme Court in the case reported as Durga
Prasad and Anr. v. Deep Chand and Anr., AIR 1954 SC 75. The trial Court has
also held that the suits are time barred with respect to even refund of the
amounts already advanced by the appellants/plaintiffs to the
respondent/defendant.
3. In view of the above said correct findings and conclusions of the trial
Court, there is no question of setting aside of cancellation of allotment of
plots/flats to the appellants/plaintiffs and there is no merit in the appeal.
4. In view of the above, learned counsel for the appellants states that the
appellants should atleast be entitled to refund of the amount paid to the
respondent along with the interest @ 12% per annum simple. It is argued
that the appellants confine their reliefs in the appeals to this aspect. Learned
counsel for the respondent states that he has no objection to this course of
action and it is agreed that the respondent will pay the amounts which have
been paid by the appellants under the different contracts which are the
subject matters of the suits back to the appellants along with interest @ 12 %
per annum simple. Of course it is also urged that, if the
respondent/defendant has refunded certain amounts, the
respondent/defendant can adjust the said amounts from the amounts which
are now held to be payable.
5. In view of the above, appeals are disposed of with the directions that
the impugned judgment is set aside only to the extent of granting a money
decree in favour of the appellant/plaintiff in RFA No. 744 of 2002 for
`1,00,000/- and against the defendant in the suit along with interest @ 12%
per annum simple on `1,00,000/- with effect from 3.9.1982 till the date of
payment, a date of which is agreed to between the parties. With respect to
RFA No. 221 of 2003 a money decree is passed in favor of the
appellant/plaintiff against the defendants/respondent for `32,300/- along
with interest @ 12% per annum simple with effect from 1.4.1982 till the
date of payment. In RFA No. 190 of 2003, the appellant/plaintiff is held
entitled to a money decree of `1,00,000/- along with interest @ 12% per
annum simple with effect from 3.9.1982, a date which is agreed to by
learned counsel for both the parties.
6. It is clarified that the money decrees are for the amounts as afore-
stated, however, in case the respondent/defendant has refunded certain
amounts to appellants/plaintiffs then to that extent of such amounts, the
respondent/defendant will be entitled to adjustment from the money decrees
passed in favour of the appellants/plaintiffs. It is also agreed that the amount
due to the appellants/plaintiffs shall be paid within three months from today
failing which the rate of interest shall become 16% per annum simple.
7. Appeals are accordingly partly allowed to the extent stated above
whereby money decrees have been passed. Parties are left to bear their own
costs. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
NOVEMBER 25, 2011
AK
