Rajiv Maira & Anr. vs M/S Apex Apartments Pvt Ltd & Ors.
2013 Latest Caselaw 5252 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 18th November, 2013

+                 RFA 232/2013 & CM No.15440/2013 (for stay).

      RAJIV MAIRA & ANR.                                 ..... Appellants

                          Through:      Mr. Sudhanshu Batra, Sr. Adv.
                                        with Mr. Sushil Shukla, Selender
                                        Singh & Mr. Arjun Mahajan, Advs.

                                     versus

      M/S APEX APARTMENTS PVT LTD & ORS. ..... Respondents

                          Through:      Mr. Harish Malhotra, Sr. Adv. with
                                        Ms. Radhika Chandrasekher, Adv.

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

1. The appeal impugns the judgment and decree dated 23rd January, 2013

of the Court of the Addl. District Judge-04, South District, Saket Court

Complex, New Delhi of in limine dismissal, of the CS. No.366/12 filed by

the two appellants for specific performance of an Agreement of Sale of

immovable property being space No.S-4 on the second floor of plot No.E-

480, Greater Kailash Part-II, New Delhi and for permanent injunction, on

the ground of the claim of the appellants/plaintiffs being barred by time. The

learned Addl. District Judge thus rejected the plaint under Order VII Rule 11

(d) of the CPC.

2. The senior counsel for the appellants/plaintiff on 30 th August, 2013

contended, (a) that the appellants / plaintiffs had agreed to purchase

apartment / space / unit No.S-4, admeasuring 1500 sq.ft., second floor of E-

480, Greater Kailash-II, New Delhi proposed to be constructed by the

respondents; (b) that though in the Agreement to Sell dated 14.10.1987, it

was mentioned that the building was proposed to be completed by 30 th

September, 1989 but the construction was stalled for long and has

recommenced 'now' only and since the respondents refused to honour the

Agreement, the suit was filed; (c) that the learned Additional District Judge

has been unduly swayed by the clause in the Agreement of the construction

being proposed to be completed by 30th September, 1989; and, (d) that the

purchase consideration was payable by the appellants / plaintiffs as per the

stage of construction and since the construction was stalled, the question of

the Agreement becoming enforceable on an earlier date did not arise.

3. On the aforesaid contentions, notice of the appeal was issued and even

though the appeal was not accompanied with any application for interim

relief but on the oral prayer, the respondents were till the next date of

hearing restrained from alienating, encumbering or parting with possession

of the apartment/space/unit agreed to be sold to the appellants/plaintiffs.

4. The respondents filed reply, but upon the appellants/plaintiffs on 27th

September, 2013 seeking time for rejoinder, the senior counsel for the

respondents/defendants expressed readiness to argue even without reference

to the reply. However on request of the appellants/plaintiffs, hearing was

adjourned.

5. During the hearing on 4th October, 2013 the issue between the parties

was found to boil down to, whether the second floor of property No.E-480,

Greater Kailash-II was constructed in the year 1988-89 as contended by the

senior counsel for the respondents or in the year 2011-2012 as contended by

the senior counsel for the appellants/plaintiffs. The senior counsel for the

respondents/defendants on that date showed the House Tax Survey Report

dated 1st December, 1988/January, 1989 showing the second floor in

existence and Form-C and Form-D under the Building Bye-Laws having

been issued on 5th January, 1988 and 7th December, 1988 respectively and

which suggested that the construction activity had been completed by that

time. The hearing was however again adjourned on the request of the senior

counsel for the appellants/plaintiffs to enable the appellants/plaintiffs to

enquire further into the matter, however cautioning the appellants/plaintiffs

that if inspite of satisfactory proof of construction in the year 1988-89 being

available the appellants/plaintiffs insist upon trial, the same would be on

such terms as may be imposed by the Court.

6. The senior counsel for the appellants/plaintiffs has today handed over

a list of documents dated 18th November, 2013 which is taken on record and

has invited attention to the report dated 15th May, 1995 of a Local

Commissioner appointed in a Court proceeding relating to ground floor of

the property, at pages 66 to 68 and an order dated 19th November, 1991 of

the MCD Appellate Tribunal pertaining to the said property at pages 44 to

47 thereof to contend that the construction was not complete even on the

ground floor on that date. However the documents at pages 66 to 68 are only

with respect to the ground floor and the documents at pages 44 to 47 clearly

refer to the existence of a ground, first as well as second floor. The same are

thus not found to support the case of the appellants/plaintiffs of the

construction having been raised only in the year 2011-12.

7. The senior counsel for the appellants/plaintiffs faced therewith has

contended that as per the plans sanctioned in the year 1987 only a barsati

comprising of two bed rooms, dining room, kitchen, lobby etc. could be

constructed on the second floor.

8. However that is not the case with which the appellants/plaintiff have

approached the Court; rather it is the case of the appellants/plaintiffs at page

74 in para 27 of the plaint that till the year 2009-10 only basement roof slab

was constructed. The appellants/plaintiffs claim to have made the payment

till stage no.6 of the Agreement to Sell i.e. the payment due on the

commencement of casting of the ground floor roof slab and have not paid

the payment due w.e.f. commencement of casting of the first floor roof slab.

The documents prima facie suggest that not only the first floor but even the

second floor was in existence as on 12th August, 1991 when the MCD had

issued notice for demolition, the order on appeal whereagainst is at pages 44

to 47 supra of the compilation handed over today.

9. However this is not the stage to adjudicate the matter further. In the

light of the aforesaid though the impugned judgment cannot be sustained but

it has been enquired from the senior counsel for the appellants/plaintiffs that

since the appellants/plaintiffs are insisting on trial when prima facie it

appears that the appellants/plaintiffs did not make the requisite enquiries or

did not perform their part of the Agreement (the contention of the senior

counsel for the appellants/plaintiffs is that the appellants/plaintiffs were to

perform their part only upon demand being made by the

respondents/defendants and which was not made), why terms should not be

imposed on the appellants/plaintiffs including of making it clear that the

principles of lis pendens as enshrined in Section 52 of the Transfer of

Property Act, 1882 would not apply to the transaction, as the Supreme Court

in Vinod Seth Vs. Devinder Bajaj (2010) 8 SCC 1 has held within the

competence of the Court to do.

10. The senior counsel for the appellants/plaintiffs has contended that the

appellants/plaintiffs may be denied interim relief but their right in law to

applicability of lis pendens be not denied. It is contended that the

appellants/plaintiffs have paid 60% of the agreed sale consideration and the

documents do show that the property was under dispute in several litigations

and the appellants/plaintiffs even if ultimately not found entitled to the relief

of specific performance would be in any case entitled to the relief of

damages against the respondents/defendants and would be severely

prejudiced if the right in law of lis pendens is revoked.

11. The genesis of the judgment in Vinod Seth supra was the prejudice

suffered by the defendant in a suit for specific performance even in the

absence of any restraint order against him, due to applicability of the

principle of lis pendens and which virtually made the property inalienable or

inencumberable at market rates and with no measure left to compensate the

defendant in the event of the plaintiff in a suit for specific performance

ultimately failing. The costs, as suggested by the senior counsel for the

appellants/plaintiffs in the present case, also were not found sufficient to

compensate the defendant in such a situation. It has thus been put to the

senior counsel that it is but fair that if the appellants/plaintiffs want to put a

fetter on the property of the respondents/defendants, the appellants/plaintiffs,

suit should agree to compensate the respondents/defendants in the specified

amount, if ultimately losing in their case which, as per the procedure laid

down in law has to be entertained even though found to be doubtful.

12. The senior counsel for the appellants/plaintiffs has contended that the

said aspect be left to be adjudicated by the Trial Court.

13. I am not willing to agree. Once this Court has heard the counsels and

is setting down a suit which has been dismissed by the Trial Court, for trial,

inspite of availability of documents to show to the contrary to the case set up

by the appellants/plaintiffs, this Court would be failing in its duty if does not

settle the terms of the Trial.

14. The senior counsel for the appellants/plaintiffs on instructions states

that the appellants/plaintiffs are not willing to agree to any compensation to

the respondents/defendants in the event of ultimately failing in the suit.

15. In the circumstances, this Court is not left with any option but to make

principles of lis pendens inapplicable to the suit which though will have to

be put to trial.

16. The appeal therefore succeeds on aforesaid terms. The judgment and

decree of dismissal of the suit as barred by time is set aside observing that

the question of limitation cannot be decided without trial. The suit is

remanded to the Trial Court for decision afresh. However the property is

exempted from the operation of Section 52 of the Transfer of Property Act,

1882. The counsel for the respondents/defendants who are defendants in the

suit accept notice of the suit and state that written statement shall be filed

within 30 days. The parties to appear before the Addl. District Judge-04,

South District, Saket Court Complex, New Delhi and if the said Court does

not exist, before the District Judge (South) on 10th January, 2013.

17. Interim order is vacated.

18. The Trial Court record if had been requisitioned in this Court be

returned forthwith.

19. No costs.

20. Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

NOVEMBER 18, 2013 pp