Kishore Gupta vs K.K.Kurian
2014 Latest Caselaw 6609 Del

$~25
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                RESERVED ON : 14th NOVEMBER, 2014
                                DECIDED ON : 9th DECEMBER, 2014

+      CS(OS) 3177/2014 & IA No.20388/2014 (u/O XXXIX R 1 & 2)
       KISHORE GUPTA                                 ..... Plaintiff
                          Through :    Mr.Mukesh Anand, Advocate with
                                       Mr.Suresh Tripathi & Mr.Shailesh
                                       Tiwari, Advocates.

                          VERSUS

       K.K.KURIAN                                    ..... Defendant
                          Through :    None.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P. GARG, J.

1. The plaintiff - Kishore Gupta has filed the instant suit for permanent

and mandatory injunction to restrain the defendant from interfering with

possession and construction in the suit property bearing No.303/A-87, Nehru

Gali, Mandawali Fazalpur, Delhi and to sign and execute all

correspondences, papers, etc. as well as sanctioned plan and get the same

sanctioned from the competent authorities.

2. Case of the plaintiff as reflected in the plaint is that defendant is the

owner of the suit property. He entered into a collaboration agreement dated

28.04.2014 with him whereunder he agreed to develop and construct shops

and flats over it. The plaintiff was to arrange the entire finance for the

construction of the entire building. He was required to pay ` 78 lacs in

instalments to the defendant on various dates described in para No.5 of the

plaint. After completion of the construction, the property was to be divided

between him and the defendant as per details given in the para No.6 of the

plaint. The building was to be completed within fifteen months from the date

of possession.

3. Further case of the plaintiff is that after payment of ` 1 lac cash to the

defendant on 28.04.2014, possession of the suit property was taken on

01.05.2014. Since then, he has invested ` 30 lacs towards construction on it.

A cheque for a sum of ` 4 lacs was issued but due to overwriting over it, it

could not be encashed. He had offered cash / cheque to the defendant who

declined to accept.

4. Grievance of the plaintiff is that the defendant intends to hand over

the suit property to some other builder.

5. Arguments on the maintainability of the suit were heard. During the

course of arguments, learned counsel for the plaintiff opted to withdraw the

relief for mandatory injunction. He relied upon 'Anathula Sudhakar vs.

P.Buchi Reddy', 2008 (4) SCC 594 and 'Vijay Kumar vs. K.N.Chopra &

ors.' 84 (2000) DLT 700 to urge that the suit for permanent injunction was

maintainable.

6. Admittedly, the defendant is the owner of the suit property. The

collaboration agreement dated 28.04.2014 was allegedly executed between

the parties. It appears that terms and conditions of the collaboration

agreement have not been complied with. The first payment of ` 5 lacs was

to be made to the defendant No.1 at the time of taking over the possession of

the suit property. The plaintiff paid a sum of ` 1 lac in cash. Cheque issued

for a sum of ` 4 lacs vide cheque No.050358 dated 03.05.2014 was

dishonoured on presentation due to overwriting on it. No payment was

subsequently made in compliance of the terms and conditions of the

collaboration agreement, though the plaintiff has alleged that ` 30 lacs were

invested by him regarding construction over the suit property. The defendant

has already served a notice to him for withdrawing from the collaboration

agreement due to default on the part of the plaintiff not to comply with its

terms and conditions.

7. The plaintiff did not prefer to file any suit for specific performance of

the terms and conditions of the collaboration agreement and has opted to file

the suit for permanent injunction simplicitor to restrain the defendant not to

interfere in his possession and of raising of construction. No such injunction

can be granted against the owner of the property in dispute when the

plaintiff has not sought any compliance of the terms and conditions

incorporated in the unregistered collaboration agreement and his willingness

to perform his part of the obligation.

8. In the light of above discussion, the plaint does not disclose any cause

of action to grant relief of permanent injunction to the plaintiff. The suit is

dismissed as not maintainable.

9. Pending IA also stands disposed of.

S.P.GARG, J DECEMBER 09, 2014 / tr