Rudra Pratap Naryan Singh (Huf) vs Ansal Housing & Construction Ltd & ...
2013 Latest Caselaw 1883 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 26th April, 2013

+                                  CS(OS) 1853/2011

      RUDRA PRATAP NARYAN SINGH (HUF)            ..... Plaintiff
                  Through: Mr. Vikas Sharma,Adv.

                                       versus

      ANSAL HOUSING & CONSTRUCTION LTD
      & ANR                                       ..... Defendants
                  Through: Mr. Shivkant Arora and Mr. Prateek Yadav,
                           Advs.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


RAJIV SAHAI ENDLAW, J

1.

The plaintiff has instituted this suit for the relief of possession of Flat

No.103, Laxmi Deep, Laxmi Nagar District Centre, Laxmi Nagar, Delhi

and ancillary reliefs pleading -

A. that the defendant No.1 had vide separate agreements both of the year 1994, agreed to sell Flat No.103, Laxmi Deep, Laxmi Nagar District Centre, Laxmi Nagar, Delhi and Flat No.101, Vikas Deep, Laxmi Nagar District Centre, Laxmi Nagar, Delhi to the plaintiff;

B. that both the said buildings were then under construction;

C. that the defendant No.1 did not complete the construction within three years as promised;

D. that the defendant No.2 M/s Sunrise Estate Management Services in or about the year 2007 made a demand on the plaintiff of Rs.5,44,297/- towards maintenance charges of the suit flat and which was paid by the plaintiff;

E. that the defendant No.2 however vide its letter dated 27th July, 2007 informed the plaintiff that the said demand had been erroneously made on the plaintiff as the agreement to sell with respect to the suit flat stood cancelled;

F. the plaintiff however did not take the said refund;

G. that the plaintiff on making inquiries learnt that the agreement to sell with respect to the flat in Vikas Deep had also been cancelled by the defendant No.1;

H. that the cancellation by the defendant No.1 of the agreements to sell with respect to both flats was malafide;

I. that upon the plaintiff approaching the defendant No.1, the defendant No.1 asked the plaintiff to relinquish his rights under any one of the aforesaid agreements;

J. that the plaintiff under fear of losing both the flats had to agree for execution of relinquishment deed qua the suit flat and whereupon the possession of the flat in Vikas Deep was handed over to the plaintiff on 11th November, 2008;

K. that the plaintiff continued to make representations to the defendant No.1 that the relinquishment of rights with respect to the suit flat was on account of undue influence, coercion, duress etc and seeking possession of the suit flat;

upon the failure of the defendant No.1 to so deliver possession, the suit was filed in or about June, 2011;

2. Summons of the suit and notice of the application for interim relief

were issued to the defendants on 2nd August, 2011.

3. The defendants filed their written statement in December, 2011

pleading :

A. that the plaintiff had failed to comply with his part of the agreement to sell with respect to the suit flat leading to cancelation of the said agreement vide letter dated 28th March, 2003;

B. that the plaintiff was also in default of his obligation under the agreement for purchase of the flat in Vikas Deep building and the agreement with respect whereto also was cancelled on 17 th July, 2006;

C. that the demand of Rs.5,44,297/- towards maintenance charges of the suit flat was issued mistakenly though the agreement in favour of the plaintiff stood cancelled on 28th March, 2003;

D. that immediately upon realizing the said mistake, the said amount was refunded but the plaintiff maliciously refused to encash the cheque;

E. that on representations of the plaintiff and to maintain goodwill in the market, the defendant No.1 agreed to enter into a settlement deed dated 9th September, 2008 with the plaintiff whereby the plaintiff agreed to relinquish, surrender and abandon all its rights in the suit flat and to transfer the whole amount paid till then towards purchase price of the suit flat against the purchase price of the flat in Vikas Deep building and the defendant No.1 agreed to restore the agreement with respect to the Vikas Deep flat in favour of the plaintiff and possession thereof was delivered to the plaintiff;

F. that the suit flat was sold off to Smt. Asha Rani on 27 th February, 2009;

G. that the allegation of undue influence and coercion are an after-

thought;

H. that the plaintiff having relinquished his rights in the suit flat, is not entitled to possession or any other relief with respect thereto.

4. The plaintiff sought to file replication to the aforesaid written

statement and time wherefor was granted vide order dated 17th January,

2012. However the plaintiff thereafter neither filed the replication nor

appeared in the suit on 26th March, 2012, 17th July, 2012 and 3rd September,

2012. Thereafter, when the suit was listed on 10th October, 2012, the

counsel for the plaintiff appeared and sought opportunity to carry out

admission/denial of documents and which was granted subject to payment

by the plaintiff of costs of Rs.10,000/- The plaintiff again neither paid the

costs nor appeared on 3rd December, 2012, 4th March, 2013 and 19th March,

2013.

5. Today Mr. Vikas Sharma, Advocate for the plaintiff appears and

though admits that costs earlier imposed have not been paid, seeks

adjournment stating that he will engage a senior counsel. On inquiry

whether the plaintiff is present in Court, he replies in the negative.

6. The aforesaid conduct of the plaintiff is sufficient to dismiss the suit

for non prosecution. The Courts cannot keep the suits of litigants, who do

not appear to be interested in pursuing the same, pending and which

pendency comes in the way of expeditious disposal of cases of even those

litigants who diligently pursue their suits.

7. Be that as it may, the aforesaid narrative shows that the suit as framed

is not maintainable.

8. The plaintiff has sued for possession of a flat of which there is only an

agreement to sell in favour of the plaintiff and which agreement to sell also,

as per the averments made in the plaint itself stood cancelled by the

defendants. The remedy if any of the plaintiff against the cancellation by

the defendants of the agreement to sell was to sue for specific performance

of the agreement of sale and which has not been done. In this regard it may

be noticed that though the plaintiff has also sought a decree for mandatory

injunction against the defendants for execution of sale deed of the flat in his

favour but the same cannot take place of the appropriate relief of specific

performance and for which relief neither has the suit been properly valued

for the purposes of court fees and jurisdiction nor has the plaintiff made the

necessary requisite averments in the plaint. It is also significant that though

as per the defendants the agreement to sell of the suit flat stood cancelled

way back on 28th March, 2003, this suit was filed only in the year 2011. Not

only so, inspite of the plea of the defendants in the written statement filed in

or about December, 2011 of the defendants having sold the suit flat as far

back as on 27th February, 2009 to Smt. Asha Rani, the plaintiff has not

taken any step to implead the said Smt. Asha Rani as a party to the

suit. The title of the flat, subsequent to the agreement for sale of

which even if the plaintiff were to be said to be claiming specific

performance having vested in Smt. Asha Rani, no relief in the absence of the

said Smt. Asha Rani can be given to the plaintiff.

9. There is another serious lacuna in the claim of the plaintiff. The

plaintiff in the plaint itself admits relinquishment of the rights to purchase

the suit flat vide document dated 9th September, 2008. Though the plaintiff

in the plaint avers the said document to have been signed under undue

influence/coercion but no relief of cancellation of the said document has

been claimed. Till the said document stands, the plaintiff is not found to

have any right in the flat.

10. It may also be mentioned that the suit was filed shortly before the

expiry of three years from the execution of the document relinquishing the

rights in the suit flat. If the plaintiff was coerced or otherwise compelled

into relinquishing his rights, the plaintiff ought to have approached this

Court immediately. Instead, the plaintiff allowed the defendants to deal with

the suit flat on the basis of the relinquishment deed executed by him.

11. Thus even on merits, it is felt that this suit is a deadwood and no

purpose would be served in keeping the same pending.

12. The suit is accordingly dismissed. However I refrain from imposing

any costs on the plaintiff.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

APRIL 26, 2013 M