Delhi High Court
Ganpati Infrabuild Pvt Ltd. vs Sudarshna Duggal on 20 July, 2012
Author: Pradeep Nandrajog
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment pronounced on : July 20,2012
+ RFA(OS) 63/2012
GANPATI INFRABUILD PVT LTD. ..... Appellant
Represented by: Mr.A.K.Singla, Sr. Advocate
instructed by Mr.Sachin Mishra
& Ms.Neeti Suri Mishra,
Advocates
versus
SUDARSHNA DUGGAL ..... Respondent
Represented by: None
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
%
PRADEEP NANDRAJOG, J (ORAL)
CM No. 12187/2012 (Exemption)
1. Allowed.
RFA(OS) 63/2012 & CM No. 12188/2012
1. There is a delay of 23 days in filing the appeal. As we
understand, and as it has developed in India by judicial
verdicts, the law pertaining to limitation is that, if there is a
meritorious claim by a party it should not be sacrificed on the
altar of the law of limitation. Courts have held that procedural
laws are not the mistress but are the hand-maid of justice and
that every effort should be made by Courts to try and settled
issues on merit.
RFA(OS) 63/2012 page 1 of 6
2. We thus proceed to consider the issues raised in the
appeal, ignoring the delay in preferring the appeal, and for
which we record that the suit record has been requisitioned in
Court today, notwithstanding that the appeal comes up for
preliminary hearing for the first time before the Division Bench.
3. The order impugned dated May 24, 2012, allows IA No.
15597/2011 filed by the respondents i.e. the defendants in the
suit, instituted by the appellant. The appellant was seeking
specific performance of a stated Agreement to Sell, contours
whereof were to be found in a document labelled as a
„Receipt‟.
4. IA No. 15597/2011, filed under Order VII Rule 11 of the
Code of Civil Procedure, has merited approval by the learned
Single Judge with a finding returned that the document relied
upon by the appellant does not have the features of an
Agreement to Sell.
5. At the outset, we may note that in paragraph 7 of the
impugned decision, the learned Single Judge has categorically
held that it is not the label of a document but the contents
whereof which determine the transaction between the parties.
The learned Single Judge has held that a document labeled as a
„Receipt‟ can be treated as an Agreement to Sell provided it
has all the features of an Agreement to Sell. Therefore, we
think that it would be useless for us to note various decisions
which are cited by the learned senior counsel for the appellant
to bring home the point that a document labeled as a „Receipt‟
may be treated and can be treated in law as an Agreement to
Sell. Our reason for not noting the decisions is that the learned
RFA(OS) 63/2012 page 2 of 6
Single Judge has not held that the document which is the
foundation of a suit being a „Receipt‟ cannot be the foundation
of an action for specific performance of an Agreement to Sell.
6. Suffice would it be to state that a document signed by
one party can be the foundation of a claim, on the averment
that an offer in writing can be proved to be accepted by parole.
Thus, it would not matter that a „Receipt‟ in question bears the
signatures of only one party and not the other.
7. The learned Single Judge has noted the „Receipt‟ in
question. We reproduce the same. It reads as under:-
"Receipt
I, Mrs. Sudarshna Duggal W/o Late Shri N.L.Duggal
R/o A-8/15, Vasant Vihar, New Delhi-11--57, have
received a sum of ` 11,00,000/-(Rupees Eleven Lacs
Only), as per details given below from M/s Ganapati
Infrabuild Private Limited, through its Director Shri
Rajan Gupta having its Registered Office at B-4/10
(Third Floor), Vasant Vihar, New Delhi, as advance
consideration in respect of collaboration of my
house no.A-8/15, Vasant Vihar, New Delhi-110057,
measuring 258 Sq. Yds. The total non-refundable is
fixed ` 1,15,00,000/-(Rupees One Crore Fifteen Lacs
Only). In this I will keep Basement, Ground Floor,
First Floor, Third Floor with Terrace with three
servant Quarter with common W.C. and 3/4th stilt
car parking and the Builder (M/s Ganapati Infrabuild
Private Limited) will keep Second Floor with one
Servant Quarter with separate W.C. on terrace and
1/4th stilt car parking.
PLACE: NEW DELHI
DATED 13/03/2011
DETAILS OF PAYMENT
1. `10,00,000/- (Rupees Ten Lacs) in cash
2. `1,00,000/- (Rupees One lac) vide
cheque No.466240 dated 13/03/2011
RFA(OS) 63/2012 page 3 of 6
Drawn on Syndicate Bank, Vasant Vihar, New Delhi
Sd/- Sd/-
(ABHISHEK GUPTA) (Sudarshna Duggal)
S/o Shri Rajan Gupta R/o A-8/15,
R/o B-4/10, T.F. Vasant Vihar,
Vasant Vihar, New New Delhi
Delhi-110057"
8. The foundation of the suit was the „Receipt‟. The cause of
action was founded on the receipt. As per the appellant, who
was the plaintiff, it was stated that the plaintiff and
Mrs.Sudarshna Duggal, who had executed the receipt, had
entered into a collaboration agreement, terms whereof were to
be found in the „Receipt‟. It was pleaded that as per the
agreement between the parties, the plaintiff was to reconstruct
the building on plot bearing No. A-8/15, Vasant Vihar, New
Delhi and that upon reconstruction the second floor and one
servant quarter with 1/4th stilt car parking was to be the
property of the plaintiff and the remaining three floors as also
the basement and three servant quarters was to be the
property of Mrs.Sudarshna Duggal. Additionally, the plaintiff
had to pay a non-refundable sum of `1,15,00,000/- to
Mrs.Sudarshna Duggal, out of which, two sums mentioned in
the „Receipt‟ were paid to her.
9. Suffice would it be to state that as pleaded in the plaint,
and as per the Agreement i.e. the „Receipt‟, it is a case where
the plaintiff had to act as a builder and after demolishing the
existing construction the plaintiff had to reconstruct the same.
Upon reconstruction, the second floor with one servant quarter
with 1/4th stilt car parking had to be the property of the
plaintiff. The obligation of the plaintiff would obviously, be to
RFA(OS) 63/2012 page 4 of 6
attain municipal sanction and effect construction of a building
consisting of a basement, parking for cars, a ground floor, a
first floor, a second floor, a third floor and servant quarters.
10. How much was to be the built up area? The „Receipt‟
mentions none. In what manner was the FAR of the building to
be utilized? The „Receipt‟ mentions none. What was to be the
class of construction? The „Receipt‟ mentions none. What
would be the areas of various rooms i.e. whether it was a two
bedrooms floor, whether three bedrooms floor and whether
each bedroom was to have attached toilets etc. etc.; nothing
finds mention in the „Receipt‟. What was the time within which
the construction had to be completed? Nothing has been stated
in the Agreement. These are the deficiencies which have been
found by the learned Single Judge to opine that the unwritten
part in the receipt renders the same as inchoate document with
the result that the „Receipt‟ in question does not attain the
status of a collaboration document and even an Agreement to
Sell as envisaged by law.
11. We concur with the view taken by the learned Single
Judge and would additionally give one more reason. The
Agreement envisages the construction of a new building on the
plot. Executory contracts i.e. contracts to construct buildings
require constant supervision by the Court are which always
treated as contracts which are incapable of being specifically
enforced for the reason they require constant supervision by a
Court and damages are the remedy.
11. With respect to the money which appellant has parted
with under the document which is incapable of being enforced,
the appellant is free to avail such remedy as is available.
RFA(OS) 63/2012 page 5 of 6
12. The appeal is accordingly, dismissed in limine, and
therefore, all pending applications stand disposed of as
infructuous.
12. No costs.
PRADEEP NANDRAJOG, J
MANMOHAN SINGH, J
JULY 20, 2012
hk
RFA(OS) 63/2012 page 6 of 6
