Vinod Kumar vs Somnath Sachdeva
2015 Latest Caselaw 541 Del

$~A-17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Judgement reserved on:12.01.2015
                           Judgement pronounced on:20.01.2015
+    CS(OS) 2451/2013

      VINOD KUMAR                                             ..... Plaintiff
                           Through      Mr.Ashok Gurnami, Adv.

                    Versus

      SOMNATH SACHDEVA                                         ..... Defendant
                  Through               Mr. Prem B.Kshetri, Adv.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.19922/2013

1. This is an application under Order 39 Rule 1 and 2 CPC. The plaintiff has filed the accompanying suit seeking a Decree of possession under section 6 of the Specific Relief Act in respect of second floor portion of property No.465/1, Jheel Khuranja, Delhi-110031 of a land measuring 75 sq.yds. Other reliefs are also sought.

2. By the present application an ad interim injunction is sought to restrain the defendants from transferring, selling, parting with possession or creating third party interest in respect of the said second floor of the said property.

3. The above application came up for hearing on 9.12.2013 when notice was issued to the defendant. The defendant has filed his reply.

4. As per the averment in the plaint, it is averred that the parties entered into a collaboration agreement on 20.4.2012 relating to the said property. As

per the plaint, the property was to be constructed upto the third floor after demolishing its old structure. The defendant is the owner of the property and the plaintiff is the builder. After construction, the defendant was to execute a sale deed in respect of the second and third floor with roof rights in favour of the plaintiff or the nominee of the plaintiff. Rest of the portions, namely, ground, upper ground and first floor were to be handed over back to the defendant. It is averred that on the same date the plaintiff received vacant possession of the whole property measuring 75 sq.yds and paid to the plaintiff a sum of Rs.2 lacs. A balance of Rs.6.5 lacs was to be paid by the plaintiff to the defendant at the time of execution of the sale-deed.

5. It is urged that the plaintiff started raising construction over the suit property thereafter and spent about Rs.35 lacs.

6. On 5.10.2012 it is stated that the defendant on instructions of the plaintiff, executed a GPA and other related documents regarding the third floor which fell to the share of the plaintiff in favour of one Shri Rinku Aggarwal and the defendant received a sum of Rs.11,70,000/-.

7. However, possession of the said flat was not given by the defendant to the said Rinku Aggarwal on the said date. On 30.4.2013 the plaintiff is said to have completed the entire construction of the third floor and possession was handed over to the said Mr.Rinku Aggarwal.

8. On 16.5.2013, it is averred that it was decided that the plaintiff will hand over possession of the defendant's portion i.e. ground, upper ground and first floor and on the same date the defendant will execute the sale deed/GPA for the balance share of the plaintiff i.e., second floor flat in the name of the plaintiff and the defendant would pay a sum of Rs.5,20,000/- to the plaintiff i.e. the

balance left of Rs.11,70,000/- received by the defendant directly from Mr.Rinku Aggarwal less Rs.6,50,000/- which the plaintiff had to pay to the defendant at the time of getting title papers of the second and third floor.

9. On 14.5.2013 the defendant is said to have entered the property to perform Havan. Having completed the Havan, the plaintiff allegedly locked the building and blocked the entry of the defendant.

10. On 16.5.2013 when the plaintiff approached the suit property, a quarrel took place. The mother of the defendant expired and an FIR was registered against the plaintiff. Plaintiff was taken in judicial custody and could get bail only on 22.7.2013. He states that he has filed complaints against the defendant with the police on 18.8.2013 and 23.8.2013.

11. Hence, present suit.

12. The defendant has filed written statement. In the written statement he admits the collaboration agreement. He, however, states that despite a term in the Agreement, the plaintiff never got the plans sanctioned or the agreement registered. The MCD accordingly issued a show cause on 18.9.2012. A demolition order was passed on 5.10.2012 and a partial demolition took place on 14.3.2013. It is urged that the defendant cancelled the agreement orally on 15.2.2013 and returned the sum of Rs.2 lacs i.e. advance received on 20.4.2012 when the execution of the collaboration agreement took place. It is stated that thereafter the defendant started construction on his own and completed the entire building. Thereafter it is stated that on 16.5.2013 the plaintiff and his associates entered the said premises illegally and harassed the daughter and mother of the defendant. The mother of the defendant was pushed from the chair, she was sitting on. She fell down and expired. An FIR has been

registered under section 304/323/341/452/506 IPC and the plaintiff was sent to judicial custody. Case is stated to be pending in Karkardooma Courts, Delhi.

13. Learned counsel appearing for the plaintiff submits that the defendant is making false submissions and contradictory stands. It is stated that in the written statement at one place, it is urged that the defendant has started construction after the demolition on his own and has completed the entire building. This is stated in paragraph 8 of the preliminary submissions. In paragraph 9 of the written statement on merits it is stated that MCD demolished a part of the building on 14.3.2013 and later on the defendant has merely repaired and reconstructed the building. Hence, at one place it is stated that the entire construction has been carried out by the defendant whereas at another place it is stated that only repairs had been carried out. Hence, it is stated that the submissions of the defendant are contradictory and cannot be believed. The plaintiff has a prima facie and the defendant should be restrained from dealing with the second floor of the suit property till pendency of the suit.

14. Learned counsel appearing for the defendant has on the other hand relied upon copy of notice dated 18.09.2012 issued by MCD which shows that construction has taken place on the ground, first and second floors. He also relies upon the show cause notice dated 5.10.2012 issued by MCD. Relying on these documents, it is urged that defendant never completed the construction work. Whatever he constructed was demolished by MCD. Thereafter the defendant cancelled the Collaboration Agreement and refunded the money of the plaintiff. The defendant has built the present construction on his own and the plaintiff has no rights to the same. He also points out that the plaintiff is a murderer and has murdered his mother and hence no discretion should be

shown by this Court.

15. As far as the collaboration agreement is concerned, there is no dispute that the same was executed between the parties and that the defendant received Rs.2 lacs from the plaintiff. It is also apparent that the plaintiff did carry out some construction which admittedly includes construction of the ground, first and second floors inasmuch as the defendant relies upon the notice received from MCD which indicates construction having been raised to the said extent. It is the stand of the defendant that on account of breach of the terms and conditions of the collaboration agreement, the agreement was cancelled orally on 15.2.2013 and the entire consideration of Rs.2 lacs was refunded to the plaintiff. Needless to add there is prima facie no evidence placed on record to show cancellation of the agreement dated 20.4.2012 or refund of the said sum of Rs.2 lacs by the defendant to the plaintiff.

16. The controversy also revolves around the extent of demolition, if any, that has been carried out by MCD. The defendant in paragraph 4 of the preliminary objection to the written statement states that MCD demolished the building. In paragraph 8 he states that he started construction on his own and completed the entire building. In paragraph 9 of the written statement on merits he admits that the defendant has only repaired and reconstructed the building. These two allegations are contradictory to each other. In view of the contradictory stand in the written statement prima facie no definite conclusion is possible at this stage as to whether the building was demolished and if so which portion.

17. A question was posed to the learned counsel for the defendant as to whether the defendant has placed on record the demolition order passed by

MCD or any other material to show if any demolition took place and the extent of demolition if carried out. In reply he sought time to procure these documents and file them. This request was made after arguments had been nearly completed. It was not possible at this late stage to adjourn the matter to permit the defendant to file additional documents. In fact the defendant had entered appearance on 11.2.2014. Almost a year has lapsed. He had to file all documents that support his case for the purpose of the present application at the appropriate time.

18. Regarding the FIR filed against the plaintiff, again a question was posed to the learned counsel for the parties as to whether a chargesheet has been filed against the plaintiff in the criminal court. None of the parties are able to answer definitely as to whether any chargesheet has been filed against the plaintiff. Further, a perusal of the FIR shows that the allegation is that the plaintiff and his associates pushed the mother of the defendant who was sitting on the chair because of which the mother of the defendant fell down from the chair. Apparently because of this injury she succumbed to her injuries. Given the nature of allegations and the fact that none of the parties are clear about the stage at which the criminal trial is pending, at this stage, I am not inclined to disallow the present application merely on the ground of the conduct of the plaintiff.

19. What conclusions follow?

20. The collaboration agreement dated 20.04.2012 is admitted. The defendant has received Rs.2 lac as advance. The plaintiff has carried out construction in the building. There is a dispute as to whether the third floor was constructed by the plaintiff. The stand of the defendant that collaboration

agreement was cancelled orally on 20.04.2012 and a sum of Rs.2 lac was refunded to the plaintiff, is not supported by any document or evidence. Regarding the demolition of the building or part thereof. There is no evidence to show that demolition was actually carried out, and if so, how much of the building was demolished. In the light of these facts, keeping in to account the fact that as per the collaboration agreement dated 20.04.2012, the second floor and the third floor with roof rights were to go to the defendant, in my opinion, in these facts and circumstances, the plaintiff has made out a prima facie case. In case the defendant is permitted to sell, alienate or transfer the second floor, irreparable loss and injury is likely to be caused to the plaintiff. Presumably, the plaintiff is not asking for any injunction of the third floor as as per the plaintiff, the same is already sold to Mr. Rinku Aggrawal, his nominee.

21. Reference may be had to the judgment of the Supreme Court in the case of Faqir Chand Gulati vs. Uppal Agencies Pvt. Ltd. & Anr., MANU/SC/3133/2008 wherein in paragraph 23 it was held as under:-

"23. We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages...."

22. In view of the above facts and legal position, the defendant is restrained by way of injunction from selling, alienating or mortgaging the second floor of the suit property in question till pendency of the accompanying suit. The application stands disposed of. No order as to costs.

23. Needless to add that any observations made herein are only for the purpose of disposal of the present application and do not in any way bind the parties at the time of final adjudication.

JAYANT NATH, J JANUARY 20, 2015 n