Delhi High Court
Shiv Ram Builders Pvt. Ltd. vs Jiwan Dass (Since Deceased) ... on 10 July, 2012
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ (1) CS(OS) No.693/2006
SHIV RAM BUILDERS PVT. LTD. ..... Plaintiff
Through: Ms. Meenakshi Singh, Advocate
versus
JIWAN DASS (SINCE DECEASED)
THROUGH LRs ..... Defendants
Through: Defendants are ex parte.
+ (2) CS(OS) No.1215/1999
RAKESH KUMAR SHARMA ..... Plaintiff
Through: Ms. Meenakshi Singh, Advocate
versus
JIWAN DASS (SINCE DECEASED)
THROUGH LRs AND ORS. ..... Defendants
Through: Defendants Nos.1 to 7 are ex
parte.
Mr. Sudhir K. Makkar,
Advocate for defendant No.8.
% Date of Decision : July 10, 2012
CS(OS) No.693/2006 and CS(OS) No.1215/1999 Page 1 of 34
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. By this common judgment, both the aforesaid suits are being
decided together in view of the commonality of facts and issues
involved. The subject matter of both the suits is the same being
property bearing Shop Nos.5 and 6, New Market, Malviya Nagar,
New Delhi.
2. The facts in Suit No.CS(OS) 693/2006 may first be delineated
as follows.
3. Late Shri Jiwan Dass was the owner of the suit property
bearing Shop No.5, New Market, Malviya Nagar by virtue of Lease
and Conveyance Deed duly registered in his favour as document
No.1430 and 1431, in Additional Book No.I, Volume No.1717, on
pages 160 to 170 and 172, dated 06.03.1967, in the office of the Sub-
Registrar, New Delhi.
4. Late Shri Jiwan Dass was also the owner/lessee of property
bearing Shop No.6, New Market, Malviya Nagar, New Delhi by
virtue of Mutation Letter No.L&DO/PS-III/373 dated 13.02.1987
issued by the Land Development Office, Nirman Bhawan, New Delhi
read with Sale Deed duly registered in favour of Shri Jiwan Dass as
Document No.8573 in Additional Book No.I, Volume No.5642 at
pages 47-48, dated 8th October, 1986 in the Office of the Sub-
Registrar at New Delhi. The original Lease and Conveyance Deed in
respect of Shop No.6, New Market, Malviya Nagar, New Delhi was
also duly registered as No.822-823 in Additional Book No.I, Volume
No.1087, at pages 49 to 51 and 52 to 54 dated 04.02.1964, in the
office of the Sub-Registrar, New Delhi in the name of late Shri Jiwan
Dass.
5. Late Shri Jiwan Dass was the husband of the defendant No.1,
Smt. Ram Datti and father of defendant Nos.2 to 7.
6. During his lifetime, Shri Jiwan Dass had entered into a
Construction Agreement dated 3rd April, 1995 with the plaintiff M/s.
Shiv Ram Builders Pvt. Ltd. through its Director Mr. Shiv Ram, by
virtue of which the plaintiff was to construct a four storeyed building
comprising of basement, ground floor, first floor and second floor, at
the property bearing Shop Nos.5 and 6, New Market, Malviya Nagar,
New Delhi, measuring 84 sq. yards each (168 sq. yards in total) as per
schedule of construction attached therewith on "WITH MATERIAL
CONTRACT" basis. The complete specifications were set out in
paragraphs 2(a) to (d) of the construction contract. In accordance
with Clause 5 of the contract, the contractor was to deposit a security
deposit of ` 6 Lacs (Rupees Six Lacs Only) with the owner, namely,
Shri Jiwan Dass, which was to be refunded without interest by the
owner to the contractor after completion of the construction, failing
which the owner was to pay interest @ 2% per month on the security
deposit and after further three months period Clause 10, which is
stated to be the essence of the Agreement, was to become applicable.
As per the aforesaid Clause 10, if the owner failed to make the full
and final payment of construction charges and to return the security
deposit to the contractor within a maximum period of nine months
from the date of sanction of plans by MCD, then the contractor was to
become the sole, absolute and exclusive owner and in possession of
the entire ground floor in lieu of its costs of construction and security
deposit along with interest on both. The relevant Clauses of the
Agreement are being reproduced hereunder for facility of reference:-
"5. That the CONTRACTOR has agreed to
deposit a Security Deposit of Rs.6,00,000/-
(Rupees six lacs only) with the OWNER, as
follows:
i) Rs. 1,10,000/- at the time of signing of this
Agreement.
ii) Rs. 25,000/- at the time of handing over
the possession of the said
property i.e. two Shops, for
carrying out the
construction.
iii) Rs. 4,65,000/- after sanction of plans by
the M.C.D. for the
construction over the said
property.
This security deposit will be refunded, without
any interest, by the OWNER to the
CONTRACTOR after completion of the
construction of the property, failing which the
OWNER shall bear 2% p.m. interest on the
security deposit and after further three months
period Clause No. 10, which is the essence of
this Agreement, will be applicable.
6. That the CONTRACTOR shall complete
the construction work of the said 4 storeyed
building, as mentioned above, within six months
from the date of sanction of the construction
plans by the M.C.D, failing which Contractor
will pay a penalty of Rs.500/- (Rupees five
hundred only) per day for the period of delay.
7. That the lumpsum rate for the
construction is settled between the parties at
Rs.29,00,000/- (Rupees twenty nine lacs only).
The full and final payment of construction as
mentioned above, shall be paid by the OWNER
to the CONTRACTOR either during the
construction by the Owner or within six months
from the date of sanction of plans of
construction, failing which the OWNER shall
be liable to pay interest on the delayed payment
@2% p.m. to the CONTRACTOR.
8. That all the materials and labour for
construction of the said 4 storeyed building
shall be arranged by the CONTRACTOR.
9. That any action/consequence by the
M.C.D, L&DO, Police, labour accidents, etc.
during the construction will be the liability and
responsibility of the CONTRACTOR.
10. That if under any circumstances the
OWNER fails to make the full and final
payment of construction charges and return
the security deposit to the CONTRACTOR
within a maximum period of 9 months from
the date of sanction of plans by MCD, then the
CONTRACTOR will become sole, absolute
and exclusive owner and in possession of the
entire Ground Floor in lieu of its cost of
construction and security deposit alongwith
interest on both. This clause is the essence of
this Agreement and cannot be challenged by
any party or their legal heirs or successors.
11. That till the full & final payment is made
by the Owner to the Contractor, the Owner
shall not use or enjoy the Ground Floor in any
manner."
7. It is the case of the plaintiff that the plaintiff in pursuance of
the aforesaid Agreement constructed Shop No.5, New Market,
Malviya Nagar, New Delhi measuring 84 sq. yards and the rear
portion measuring approximately 12ʹ - 9ʺ X 39ʹ - 0ʺ of the property
bearing Shop No.6, New Market, Malviya Nagar, New Delhi with
his own funds and resources.
8. It is further the case of the plaintiff that late Shri Jiwan Dass
also executed a Receipt/Writing/Memorandum dated 10.06.1996 in
favour of the plaintiff, whereby Shri Jiwan Dass agreed to sell the
First Floor of the property bearing Shop Nos.5 and 6, New Market,
Malviya Nagar, New Delhi to the plaintiff for a total sale
consideration of ` 4 Lacs. The amount of ` 2 Lacs was paid by the
plaintiff on 10.06.1996. A sum of ` 1,80,000/- was paid in cash
while a sum of ` 20,000/- was paid vide cheque No.600008 dated 10th
June, 1996 drawn on State Bank of India, Ring Road, Lajpat Nagar,
New Delhi, as advance/earnest money towards part sale consideration
of the property in question. The aforesaid cheque was duly encashed
by late Shri Jiwan Dass. The possession of the property in question
was also handed over by Shri Jiwan Dass to the plaintiff in part
performance of the said Agreement/Writing/Memorandum. As per
the Agreement, Shri Jiwan Dass, who had agreed to the sale of the
property in question, was to obtain the necessary permissions required
for executing and completing the sale documents within six months
from the date of the receipt. The balance sale consideration was to be
paid at the time of execution of and completion of the sale documents
by the plaintiff to late Shri Jiwan Dass. The sale documents were to
be executed in the name of the plaintiff or its nominee within six
months from 10.06.1996 as set out in the
Memorandum/Writing/Receipt, which was duly executed in the
presence of witnesses.
9. The plaintiff M/s. Shiv Ram Builders Pvt. Ltd. alleges that after
handing over of possession of the first floor of property bearing Shop
Nos.5 and 6, New Market, Malviya Nagar, New Delhi pursuant to
the receipt executed by late Shri Jiwan Dass in part performance of
the Agreement to Sell, late Shri Jiwan Dass and/or his legal heirs had
no right, title or interest of any nature whatsoever left in the aforesaid
portion of the property.
10. The plaintiff asserts that the plaintiff was always ready and
willing to perform his part of the contract within the stipulated period
of time as agreed between the plaintiff and Shri Jiwan Dass, but the
said Shri Jiwan Dass did not execute the instrument of transfer
whereby the plaintiff has suffered loss to its interest. Late Shri Jiwan
Dass and his legal heirs had turned dishonest and inspite of the
repeated requests made by the plaintiff, both orally and in writing,
failed to execute the Sale Deed of the property in question in favour
of the plaintiff and even failed to obtain necessary permissions to
enable them to execute the instrument of transfer in favour of the
plaintiff.
11. The plaintiff asserts that the plaintiff has been in continuous,
uninterrupted possession and enjoyment of the suit premises and has
been enjoying possession thereof without any interruption or
obstruction or demur or protest by late Shri Jiwan Dass and
defendant Nos.1 to 7 from the date of the Receipt/Writing/
Memorandum, i.e., 10th June, 1996.
12. It is alleged by the plaintiff that late Shri Jiwan Dass with
ulterior motives and designs lodged a false complaint against the
plaintiff for forgery and fabrication before the Crime Branch of the
Delhi Police in the middle of the year 1998, in order to wriggle out
of the Agreement dated 10.06.1996 and to avoid the execution of the
Sale Deed in respect of the first floor of the property in question in
favour of the plaintiff. The plaintiff on December 29, 1998 sent a
legal notice to Shri Jiwan Dass to comply with his obligations under
the receipt dated 10.06.1996 and to transfer the suit property in the
name of the plaintiff but with no result. Hence, the plaintiff was
compelled to institute the present suit for specific performance of the
Agreement/Receipt dated 10.06.1996 with a prayer for permanent
injunction against the defendant Nos.1 to 7, who are the legal heirs
of late Shri Jiwan Dass, restraining them from, in any manner,
obstructing the business activities of the plaintiff on the first floor of
the suit property and/or from in any manner interfering in the
plaintiff's peaceful possession and enjoyment of the suit property.
13. Adverting to the facts in CS(OS) 1215/1999, it is the case of
the plaintiff in the said suit, namely, Shri Rakesh Kumar Sharma,
that he is the purchaser of the entire ground floor of property bearing
Shop No.5, New Market, Malviya Nagar, New Delhi measuring 84
sq. yards, with rear portion measuring approximately 12ʹ - 9ʺ x 39ʹ -
0ʺ out of the property bearing Shop No.6, New Market, Malviya
Nagar, New Delhi with structure standing thereon, fittings and
fixtures installed therein along with proportionate share of leasehold
rights in the land underneath, by virtue of an Agreement to Sell dated
03.07.1996, entered into between him (Rakesh Kumar Sharma) and
Shri Jiwan Dass (father of the defendant Nos.2 to 7 and husband of
defendant No.1) and the defendant No.8, M/s. Shiv Ram Builders
Pvt. Ltd. through its Director Shri Shiv Ram Sharma.
14. It is alleged that Shri Jiwan Dass had entered into a
Construction Agreement dated 03.04.1995 with the defendant No.8
by virtue of which the defendant No.8 had constructed Shop No.5,
New Market, Malviya Nagar, New Delhi measuring 84 sq. yards and
rear portion of the property bearing Shop No.6, New Market,
Malviya Nagar, New Delhi with his own funds and resources.
15. In terms of the Construction Agreement dated 03.04.1995
between late Shri Jiwan Dass and defendant No.8, late Shri Jiwan
Dass was required to pay ` 29 Lacs as full and final payment for
construction in terms of Clause 7 of the said Agreement, either
during the construction by the owner or within six months from the
date of sanction of plans of the construction, failing which Shri
Jiwan Dass was liable to pay interest at the rate stipulated in the
Agreement itself. Clause 10 of the said Agreement further stipulated
that in case Shri Jiwan Dass failed to make full and final payment of
construction charges and return the security deposit of ` 6 Lacs to
the defendant No.8 within a maximum period of nine months from
the date of sanction of plans by MCD, then in such an event the
defendant No.8 will become the sole, absolute and exclusive owner
and shall be entitled to seek possession of the entire ground floor in
lieu of the costs of construction incurred by him and the security
amount deposited by him along with interest on both the said
amounts. It was specifically stated in the said Agreement that this
clause was the essence of the Agreement and could not be challenged
by either party or their legal heirs or successors. Hence, the said
Clause and the Agreement would bind defendant Nos.1 to 7, who are
the legal representatives of late Shri Jiwan Dass.
16. It is the case of the plaintiff that late Shri Jiwan Dass was not in
a position to make payment of the costs of construction in terms of
the Construction Agreement dated 03.04.1995 and thus committed
breach of Clause 10 of the Construction Agreement. The plaintiff
submits that since late Shri Jiwan Dass was unable to perform his
obligations under the Construction Agreement, he (late Shri Jiwan
Dass) by his letter dated 08.03.1996 required the defendant No.8
[plaintiff in CS(OS) No.693/2006] to retain the entire ground floor of
the property bearing Shop No.5, New Market, Malviya Nagar, New
Delhi and the rear portion of the property bearing Shop No.6, New
Market, Malviya Nagar, New Delhi measuring approximately
12'x9" X 39'x0" on ownership basis. Consequently, Shri Jiwan
Dass executed several documents on 27.03.1996 in favour of the
defendant No.8 transferring his right, title and interest in the property
in question in favour of the defendant No.8 for consideration,
including Registered General Power of Attorney and Will alongwith
supporting affidavits. According to the plaintiff, all the said
documents are of a binding nature and would also bind the legal
heirs of late Shri Jiwan Dass.
17. Consequent to the execution of the aforesaid documents by
Shri Jiwan Dass in favour of the defendant No.8, the property in
question built by the defendant No.8 was sold by the said defendant
to the plaintiff, Shri Rakesh Kumar Sharma for a sale consideration
of ` 27 Lacs. The total sale consideration was paid by the plaintiff to
the defendant No.8 on 03.07.1996, viz., ` 26,50,000/- (Rupees
Twenty Six Lacs and Fifty Thousand Only) was paid by cheque
No.511645 dated 03.07.1996, drawn on Punjab National Bank,
Sector 27, Noida, and the sum of ` 50,000/- was paid in cash. The
possession of the said property was also handed over on the spot by
the defendant No.8 to the plaintiff in part performance of the
Agreement to Sell dated 03.07.1996. Significantly, late Shri Jiwan
Dass, being the registered owner/lessee of the said built up property
and land had agreed to confirm and recognize the sale of the said
portion of the suit property to the plaintiff by the defendant No.8 and
his signatures, therefore, appear on the Agreement dated 03.07.1996
as a "Confirming Party".
18. Late Shri Jiwan Dass and defendant No.8 specifically stated in
the said Agreement dated 03.07.1996 that they had no right, title or
interest of any nature whatsoever left in the aforesaid portion of the
suit property sold by virtue of the said Agreement and the said
property had been transferred absolutely with all rights to transfer by
way of sale, mortgage, gift, lease, etc. by the plaintiff in favour of
any other party.
19. Apart from the aforesaid, the defendant No.8 [plaintiff in
CS(OS) 693/2006] also executed various other documents
confirming the right, title and interest of the plaintiff in the aforesaid
property including an Undertaking, General Power of Attorney,
Indemnity Bond, Special Power of Attorneys, Affidavit, Will,
Receipt and Possession Letter, all dated 03.07.1996. Late Shri Jiwan
Dass and Shri Tula Ram Sharma also signed the Possession Letter
executed by the defendant No.8 dated 03.07.1996. In fact, late Shri
Jiwan Dass signed as a witness on the said document in his capacity
of a Confirming Party to the Agreement to Sell dated 03.07.1996.
20. It is asserted by the plaintiff that after being put in possession
in part performance of the Agreement to Sell, in the property in
question on 03.07.1996, he started running a departmental store in
the premises in the name and style of "Uma Maheshwari General
Store" and remained in continuous and uninterrupted possession of
the suit property from the aforesaid date, i.e., 03.07.1996 till about
the middle of 1998. Thereafter, late Shri Jiwan Dass with ulterior
motives and designs started a cycle workshop right in front of the
departmental store of the plaintiff, thereby obstructing the business
activities of the plaintiff and causing harassment to the employees
and customers of the plaintiff by creating an impediment in the
ingress and egress to the shop of the plaintiff. Late Shri Jiwan Dass
also repeatedly interfered in the business activities of the plaintiff,
inter alia, by obstructing the water supply, putting sign board
adjacent to the stairs at the entrance of the plaintiff's departmental
store, etc., due to which the plaintiff had to approach the police
authorities from time to time. On 30th September, 1998, the plaintiff
learnt that late Shri Jiwan Dass had lodged an FIR with the Deputy
Commissioner of Police, Crime Branch, New Delhi alleging that the
defendant No.8 had illegally inducted several persons including the
plaintiff in the property in question, which was allegedly being
managed by one Manoj @ Chunnu. The lodging of the aforesaid
FIR by Shri Jiwan Dass clearly demonstrated the fact that he had
turned dishonest and was trying to resile from the Agreement to Sell
dated 03.07.1996 and to oust the plaintiff from his lawful possession
in the property in question in view of the escalation of the price of
property in the area.
21. The further case of the plaintiff is that the fear psychosis
generated by the police officials and the Crime Branch brought the
plaintiff's legitimate business activities to a standstill causing huge
financial losses to the plaintiff and tarnishing his name and goodwill.
The contents of the said FIR were false to the knowledge of late Shri
Jiwan Dass, who was a "Confirming Party" to the Agreement dated
03.07.1996 executed in favour of the plaintiff by the defendant No.8.
Hence, the present suit for specific performance of the Agreement
dated 03.07.1996 filed by the plaintiff Shri Rakesh Kumar Sharma
with a prayer for a decree of permanent injunction against the
defendant Nos.1 to 7, the legal heirs of late Shri Jiwan Dass, from in
any manner interfering in the peaceful possession of the plaintiff and
a decree of declaration that the plaintiff is in possession of the suit
property in part performance of the Agreement to Sell dated
03.07.1996.
22. Although initially the legal representatives of late Shri Jiwan
Dass appeared in response to the summons issued to them in both the
suits and filed their written statements, subsequently, for reasons best
known to them the said defendants were proceeded ex parte in
default of appearance. Ex parte evidence was adduced by the
plaintiff by way of affidavits in both the suits.
23. In CS(OS) No.693/2006, the plaintiff M/s. Shiv Ram Builders
Pvt. Ltd. adduced the evidence of Mr. Shiv Ram Sharma, who in the
course of his evidence reiterated the contents of the plaint and proved
on record the following documents:-
(i) Certified copy of the Board Resolution dated 30th April, 1999
of the plaintiff Company authorizing Mr. Shiv Ram Sharma,
Director of the plaintiff Company to file and institute the suit
on behalf of the Company - Ex.PI.
(ii) Memorandum and Articles of Association of the Plaintiff
Company - Ex.PII.
(iii) Receipt/Memorandum/Writing dated 10.06.1996 - Ex.PIII.
(iv) Site plan/map filed with the plaint - Ex.PIV.
(v) Statement of Account of the plaintiff - Ex.V.
(vi) Copy of the legal notice dated 29.12.1998 sent by the plaintiff
Company to late Shri Jiwan Dass by registered A.D. post
requesting him to execute the Sale Deed in its favour along
with registered A.D. receipt and A.D. Card - Ex.PVI.
(vii) Final Report under Section 173 Cr.P.C. in case FIR No.445
dated 21.10.2002 - Ex.PVII.
24. In CS(OS) 1215/1999, affidavit by way of ex parte evidence
was filed by the plaintiff Shri Rakesh Kumar Sharma, who apart
from reiterating the contents of the plaint and the allegations against
the defendants, proved on record the following documents:-
(i) Agreement to Sell dated 03.07.1996 - Ex.PW1/1.
(ii) Construction Agreement dated 03.04.1995 entered into
between late Shri Jiwan Dass and M/s. Shiv Ram Builders Pvt.
Ltd. - Ex.PW1/2.
(iii) General Power of Attorney dated 03.07.1996 executed by Shri
Shiv Ram Sharma in favour of the plaintiff Shri Rakesh Kumar
Sharma - Ex.PW1/3.
(iv) Indemnity Bond dated 03.07.1996 executed by Shri Shiv Ram
Sharma in favour of the plaintiff Shri Rakesh Kumar Sharma -
Ex.PW1/4.
(v) Will dated 03.07.1996 executed by Shri Shiv Ram Sharma in
favour of the plaintiff Shri Rakesh Kumar Sharma in respect of
the suit property - Ex.PW1/5.
(vi) Affidavit in support of the Will dated 03.07.1996 - Ex.PW1/6.
(vii) Special Power of Attorney authorizing the plaintiff to represent
before the offices of DESU/MCD or any concerned authority
for the purpose of getting water and electricity
connections/meters in the suit property - Ex.PW1/7.
(viii) Special Power of Attorney authorizing the plaintiff to
sell/transfer the suit property to any intending purchaser and to
sign and execute all relevant documents, including Sale Deed -
Ex.PW1/8.
(ix) Undertaking dated 03.07.1996 issued by Shri Shiv Ram
Sharma in favour of the plaintiff to sign and execute all
relevant documents in all times to come for the smooth transfer
of the suit property bearing the signatures of late Shri Jiwan
Dass as a witness thereto - Ex.PW1/9.
(x) Affidavit dated 03.07.1996 executed by Shri Shiv Ram Sharma
stating on oath that pursuant to the Agreement to Sell dated
03.07.1996 and the receipt of the full sale consideration, the
possession of the suit property had been transferred to the
plaintiff - Ex.PW1/10.
(xi) Possession Letter dated 03.07.1996 executed by Shri Shiv Ram
Sharma in favour of the plaintiff handing over the suit property
to the plaintiff which also bears the signature of late Shri Jiwan
Dass as a witness thereto - Ex.PW1/11.
(xii) Receipt in the sum of ` 27 Lacs dated 03.07.1996 executed by
Shri Shiv Ram Sharma bearing the signatures of late Shri Jiwan
Dass as a witness thereto - Ex.PW1/12.
(xiii) Telegraphic notice dated 10.02.1999 sent by the plaintiff to Mr.
R.S. Dahiya Assistant Commissioner of Police, Crime Branch,
stating that the plaintiff Shri Rakesh Kumar Sharma was the
owner of the property in question and was in lawful possession
of the said property by virtue of the Agreement dated
03.07.1996 executed by M/s. Shiv Ram Builders Pvt. Ltd. for
lawful consideration and asking the police to refrain from
threatening the plaintiff and his employees - Ex.PW1/13.
25. No evidence in rebuttal was adduced by the defendants either
in the first suit or in the second suit.
26. Having heard the learned counsel for the plaintiffs in both the
suits and scrutinized the documentary evidence on record as well as
the affidavits by way of evidence filed by the plaintiffs - Shri Shiv
Ram Sharma and Shri Rakesh Kumar Sharma, which are
unchallenged on record, it is deemed necessary to highlight the
admitted facts, but before doing so, a look at the written statements of
the ex parte defendant Nos.1 to 7 is warranted to gauge the nature of
the controversy involved and to note the facts which are not disputed
by the defendants.
27. In the written statement filed on behalf of the defendant Nos.1
to 7, the main defence set up by the said defendants is that all the
documents relied upon by the plaintiffs were either forged or drawn
on blank papers on which the signatures of late Shri Jiwan Dass had
been fraudulently obtained at the time of the execution of the
Construction Agreement dated 3rd April, 1995. In normal course,
such documents could not have been executed and thus a fraud had
been played upon late Shri Jiwan Dass by Shri Shiv Ram Sharma in
collusion with his henchmen who are land grabbers. In fact, late Shri
Jiwan Dass was not even the owner of the suit property in Suit
No.1215/1999, which was sold by Shri Shiv Ram Sharma to Shri
Rakesh Kumar Sharma after purchasing the same from late Shri
Jiwan Dass. It was the defendant No.1, Smt. Ram Datti (wife of Shri
Jiwan Dass), who was the owner thereof. It was asserted that the
defendant No.1 had filed Suit No.544/1995, in which suit a
compromise application was filed by the parties on the basis of which
the suit was decreed by the Court. It is further asserted that Shri Shiv
Ram Sharma was a signatory to the said compromise application and
had full knowledge of the fact that it was the defendant No.1 who had
ownership rights in the ground floor of the suit property. To put it
differently, the ownership rights of the defendant No.1 in the ground
floor of the Shop No.5 had been recognized by both late Shri Jiwan
Dass and Shri Shiv Ram Sharma in the compromise application dated
30.01.1996, and in view of this, the Agreement to Sell dated
03.07.1996 could not have been entered into by Shri Shiv Ram
Sharma in respect of the same portion of the suit property. Likewise,
late Shri Jiwan Dass could not have acted as "Confirming Party" to
the said Agreement.
28. Certain other circumstances have also been set out by the
defendant Nos.1 to 7, which are not narrated in detail in view of the
fact that the said defendants have chosen not to defend the suits and
were proceeded against ex parte in default of appearance. A
reference was, however, made to the written statements of the
defendant Nos.1 to 7 to bring out the admitted facts, which emerge as
follows.
29. The defendant Nos.1 to 7 have not denied the existence of
either the Construction Agreement dated 03.04.1995 between late
Shri Jiwan Dass and M/s. Shiv Ram Builders Pvt. Ltd. or for that
matter other documents executed between these two parties. The
defendant Nos.1 to 7 have also not denied in their pleadings the
execution of the Agreement to Sell dated 03.07.1996 between M/s.
Shiv Ram Builders Pvt. Ltd. and Shri Rakesh Kumar Sharma, on
which late Shri Jiwan Dass signed as "Confirming Party". As noted
above, the only defence raised by the defendant Nos.1 to 7 is that the
aforesaid documents were got signed from late Shri Jiwan Dass when
they were blank and a fraud was thus played upon him.
30. It also emerges from the record that at the time of execution of
the Construction Agreement dated 03.04.1995 and pursuant to Clause
7 thereof, a sum of ` 6 Lacs was deposited by M/s. Shiv Ram
Builders Pvt. Ltd. with the owner (late Shri Jiwan Dass), out of which
an amount of ` 5,40,000/- was paid by account payee cheques drawn
in favour of late Shri Jiwan Dass. The defendant Nos.1 to 7 have not
denied the receipt of this amount which was paid by cheque, although
there is some dispute about the payment of balance sum of ` 60,000/-.
There is also no material on record to suggest that late Shri Jiwan
Dass had paid the costs and expenses incurred in the construction of
the property by M/s. Shiv Ram Builders Pvt. Ltd. amounting to ` 29
Lacs. Inferentially, Clause 10 of the Agreement thus came into
operation which provided that if under any circumstances the owner
fails to make the full and final payment of the construction charges
and return the security deposit to the contractor within a maximum
period of nine months from the date of the sanction of plans by MCD,
then the contractor will become the sole, absolute and exclusive
owner of the entire ground floor in his possession in lieu of its costs
of construction and security deposit along with interest on both.
Clause 10 also specifically states:-
"This Clause is the essence of the Agreement
and cannot be challenged by any party or their
legal heirs or successors."
31. In CS(OS) No.693/2006, the plaintiff M/s. Shiv Ram Builders
Pvt. Ltd. has adduced the evidence of its Director Shri Shiv Ram
Sharma to state that the plaintiff had paid the security deposit of ` 6
Lacs to late Shri Jiwan Dass-` 1.10 Lacs was paid by cheque on
03.04.1995, ` 25,000/- was paid in cash on 17.04.1995, ` 65,000/-
was paid in cash before the sanction of the plans of the property and `
4 Lacs was paid on 14.12.1995. The witness has also deposed that all
the documents in favour of the plaintiff were executed by late Shri
Jiwan Dass of his own volition and no blank papers signed by him
were given by him to the plaintiff. The possession of the property in
question was given to the plaintiff by late Shri Jiwan Dass on
07.04.1995. The plaintiff did not get possession of the front portion
of Shop No.6 as late Shri Jiwan Dass stated that the possession of the
said portion was with one of the tenants, namely, Shri Amar Nath,
who remains a tenant till date. The gallery in Shop No.6 was also not
handed over to the plaintiff and hence no construction could be
carried out in the said portion. On 08.05.1995, late Shri Jiwan Dass
received a letter of re-validation of the building plans in respect of the
suit property; the entire security deposit had been furnished to him
before 14.12.1995 and the construction was completed by
31.01.1996, which had begun on 08.04.1995 after Shri Jiwan Dass
had handed over the property to the plaintiff (except for the front
portion of Shop No.6 and the gallery of Shop No.6). Since Shri Jiwan
Dass was not in a position to re-pay the amount of security deposit
and to pay the construction costs to the plaintiff, he executed various
documents in favour of the plaintiff giving the ground floor of the
property to the plaintiff, including Letter dated 08.03.1996,
Registered General Power of Attorney and Will along with
supporting Affidavit. The defendants had filed photographs of the
portion in occupation of the tenant and the gallery in Shop No.6 with
a view to mislead the Court and to make it believe that the building
had not been completed till date and hence there was no occasion for
late Shri Jiwan Dass to issue the letter dated 08.03.1996, or of his
failure to pay the sum of ` 29 Lacs along with the security deposit of
` 6 Lacs.
32. PW Shri Shiv Ram Sharma further stated in his sworn affidavit
that the plaintiff Company was in possession of the first floor of the
property in question on account of the fact that it had paid a sum of `
2 Lacs to late Shri Jiwan Dass for the suit property out of the sale
consideration of ` 4 Lacs. The balance sum of ` 2 Lacs was to be
paid by the plaintiff to late Shri Jiwan Dass upon the latter executing
the Sale Deed in his favour. Since he failed to execute the documents
of sale in favour of the plaintiff Company, it had no alternative but to
approach the Court by filing suit for specific performance. He further
stated that late Shri Jiwan Dass and the defendants had been harassing
the plaintiff by filing false criminal complaints in Malviya Nagar
Police Station, before the DCP (Crime Branch) in order to deprive the
plaintiff of the possession of the property due to the escalation in the
prices of the property. However, the closure report of the Crime
Branch dated 21.10.2002 (Ex.PVII) had been received closing the
case.
33. The testimony of PW Shiv Ram Sharma was corroborated by
the testimony of PW Rakesh Kumar Sharma in CS(OS)
No.1215/1999. In his affidavit by way of evidence, Shri Rakesh
Kumar Sharma stated on oath that the ground floor of Shop No.5,
New Market, Malviya Nagar and the rear portion of Shop No.6, New
Market, Malviya Nagar, New Delhi had been sold to him by M/s.
Shiv Ram Builders Pvt. Ltd. by an Agreement to Sell dated
03.07.1996; that he had paid the entire sale consideration of ` 27 Lacs
to M/s. Shiv Ram Builders Pvt. Ltd., which fact was admitted by the
said Company and that he was in continuous uninterrupted possession
of the said property ever since 03.07.1996 when possession was
handed over to him in part performance of the Agreement to Sell
dated 03.07.1996 and he was, therefore, entitled to seek specific
performance of the said Agreement to Sell, which was fully supported
by a registered General Power of Attorney, two Special Power of
Attorneys, Construction Agreement, Indemnity Bond, Will,
Affidavits, Undertaking, Possession Letter and Receipt in his favour.
34. The aforesaid evidence of the plaintiffs is unrebutted and
unchallenged on record. Thus, apart from the admissions contained
in the written statement filed by the defendant Nos.1 to 7, there is
evidence on record adduced by the plaintiffs to establish their case.
As stated hereinabove, the evidence is suggestive of the fact that
construction was completed by M/s. Shiv Ram Builders Pvt. Ltd. for
which it was not paid the agreed construction costs of ` 29 Lacs and
refund of the security deposit, thereby entitling the plaintiff to
possession of the entire ground floor of the suit property (Clause 10
of the Construction Agreement - Ex.PW1/2). There is also evidence
on record to show that a sum of ` 27 Lacs was paid by Shri Rakesh
Kumar Sharma to M/s. Shiv Ram Builders Pvt. Ltd. pursuant to
Agreement to Sell dated 03.07.1996, out of which a sum of `
26,50,000/- was paid by way of an account payee cheque drawn on
the Punjab National Bank. The payment of such a huge amount by
means of a cheque on execution of the agreement lends credence to
the case of the plaintiffs that such an agreement was in fact entered
into. Indubitably also, as on the date of the filing of the suit, M/s.
Shiv Ram Builders Pvt. Ltd. was in possession of the first floor of the
suit property and Shri Rakesh Kumar Sharma was in possession of
the ground floor of the suit property, who was running his business
from this property. Thus, the possession of the plaintiffs in the suit
property in both the suits also stands established.
35. It also deserves to be highlighted that the defendant Nos.1 to 7
have not filed any case against the plaintiffs to obtain possession of
the property which they claim had been illegally usurped from them
in the year 1995. They have also not filed any suit or proceeding
against M/s. Shiv Ram Builders Pvt. Ltd. or Shri Rakesh Kumar
Sharma, alleging that the plaintiff Company could not enter into the
Agreement to Sell dated 03.07.1996, as it was the defendant No.1
who was the owner of the ground floor of the property. On the
contrary, PW Shiv Ram Sharma has categorically stated in his sworn
affidavit that his signatures on the compromise application filed in
Suit No.544/1995 were forged and fabricated by the defendants in
order to procure a decree in their favour in the said collusive suit. It
was for the defendants to have rebutted the aforesaid evidence and to
have led positive evidence to prove their defence. The defendants
have chosen to sit on the fence rather than adduce any evidence in
support of the stand taken by them in their written statement. Clearly,
therefore, the plaintiffs are entitled to the relief prayed for by them in
both the suits.
36. In the result, the prayer in CS(OS) No.1215/1999 is allowed by
passing a decree in favour of Shri Rakesh Kumar Sharma and against
the defendant Nos.1 to 7 as follows:-
(a) A decree of specific performance of agreement dated
03.07.1996 directing defendant Nos.1 to 7, the legal heirs of
late Shri Jiwan Dass and the defendant No. 8 to execute a Sale
Deed in respect of ground floor of Shop No.5, New Market,
Malviya Nagar, New Delhi, measuring 84 sq. yds., with rear
portion, measuring approximately 12ʹ - 9ʺ x 39ʹ - 0ʺ of the
property bearing Shop No.6, New Market, Malviya Nagar,
New Delhi, along with fixtures and fittings installed therein
with the proportionate share of leasehold rights in the land
underneath in favour of the plaintiff in terms of the Agreement
to Sell dated 03.07.1996;
(b) A decree for permanent injunction against the defendant Nos.1
to 7, legal heirs of late Shri Jiwan Dass restraining defendant
Nos.1 to 7, their heirs, employees, servants, etc. from
obstructing the business activities of the Plaintiff in ground
floor,Shop No.5, New Market, Malviya Nagar, New Delhi,
measuring 84 sq. yds., with rear portion, measuring
approximately 12ʹ - 9ʺ x 39ʹ - 0ʺ of the property bearing Shop
No.6, New Market, Malviya Nagar, New Delhi, on the ground
floor, or causing harassment to the Plaintiff or his employees
and restrain defendant Nos.1 to 7 from in any manner
interfering in the peaceful possession of the plaintiff;
(c) A decree of declaration that the plaintiff is in possession of the
Suit property on the ground floor of Shop No.5, New Market,
Malviya Nagar, New Delhi, measuring 84 Sq. Yds., with rear
portion measuring approximately 12ʹ - 9ʺ x 39ʹ - 0ʺ of the
property bearing Shop No.6, New Market, Malviya Nagar,
New Delhi, in part performance of the Agreement to Sell dated
03.07.1996 entered into by and between the plaintiff and late
Shri Jiwan Das and defendant No.8.
37. CS(OS) No.693/2006 is decreed by passing a decree in favour
of M/s. Shiv Ram Builders Pvt. Ltd. and against the defendant Nos.1
to 7 as follows:-
(a) A decree of specific performance of Receipt/Writing dated
10.06.1996 executed by Jiwan Dass (since deceased) directing
defendant Nos.1 to 7, who are the legal heirs of late Shri Jiwan
Dass to execute Sale Deed and the instrument of transfer in
respect of the first floor of property, bearing Shop Nos.5 and 6,
New Market, Malviya Nagar, New Delhi, along with fixtures
and fittings installed therein with the proportionate share of
leasehold rights in the land underneath in favour of the plaintiff
in terms of Receipt/Writing dated 10.06.1996;
(b) A decree for permanent injunction against the defendant Nos.1
to 7, who are the legal heirs of late Shri Jiwan Dass restraining
them, their employees, servants, etc. from in any manner
obstructing the business activities of the Plaintiff on the first
floor of property No.5 and 6, New Market, Malviya Nagar,
New Delhi, or causing any harassment to the plaintiff or his
employees, servants, agents and restrain defendant Nos.1 to 7
from in any manner interfering in the peaceful possession and
enjoyment of the suit property of the plaintiff.
38. CS(OS) No.693/2006 and CS(OS) No.1215/1999 stand
disposed of accordingly.
REVA KHETRAPAL
JUDGE
July 10, 2012
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