Delhi High Court
Harish Kumar Bhalla vs Mannu Talwar on 17 April, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 22/2015
HARISH KUMAR BHALLA ..... Plaintiff
Through Ms. Shilpa Chohan, Advocate
versus
MANNU TALWAR ..... Defendant
Through Mr. Raman Duggal with Mr. Akshay
Choudhary and Mr Arun Kumar
Panwar, Advocates for Appellant in
O.A. No. 21/2018
Reserved on : 21st February, 2018
% Date of Decision: 17th April, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
I.A. 2434/2018 in I.A. 2433/2018
Allowed, subject to just exceptions.
O.A. 21/2018 & I.A. 2433/2018
1. Present appeal has been filed challenging the order dated 30 th January,
2018 passed by the Joint Registrar whereby the appellant's application being
I.A. 11489/2016 under Order 1 Rule 10 CPC for impleadment was
dismissed. The application being I.A. 2433/2018 has been filed seeking stay
of the proceeding in the present suit.
2. Learned counsel for the appellant/applicant stated that while deciding
the impleadment application, the learned Joint Registrar manifestly failed to
appreciate that the appellant/applicant's direct interest was involved in the
subject matter, i.e., Dwelling Unit No. 3 (2nd Floor) of property bearing no.
208, Sant Nagar, New Delhi - 110 065.
3. The relevant facts of the present case are that the respondent no.
1/plaintiff (hereinafter referred to as "owner") has filed the present suit for
possession, declaration and injunction with respect to Dwelling Unit No. 3
(2nd Floor) of property bearing no. 208, Sant Nagar, New Delhi - 110 065
against the respondent no. 2/defendant (hereinafter referred to as "builder").
4. The owner had entered into a Collaboration Agreement dated 21 st
October, 2013 with the builder for construction of property bearing no. 208,
Sant Nagar, New Delhi - 110 065. In terms of the said agreement, the
builder was allowed to sell one floor, in particular, the second floor, of the
property after it was duly constructed. Pursuant to the said Collaboration
Agreement, a Supplementary Agreement dated 8th April, 2014 was entered
into between the owner and the builder in terms of which the builder had a
right to take advance booking of the Dwelling unit no. 3 (2nd Floor).
5. Learned counsel for the appellant/applicant contended that by virtue
of the Collaboration Agreement dated 21st October, 2013 and the
Supplementary Agreement dated 8th April, 2014, the builder entered into a
Sale and Purchase Agreement (BAYANA) dated 16th October, 2014 with
the appellant/applicant, in terms of which, the appellant/applicant had paid
Rs. 1.52 crores to the builder for the sale of his share of second floor and
therefore, the appellant/applicant being invested in the building has a direct
interest in the building.
6. He contended that the learned Joint Registrar had failed to appreciate
that by way of prayer clause (E) of the suit, the plaintiff is seeking a
direction from this Court to cancel the Sale and Purchase Agreement dated
16th October, 2014 executed between the builder and the appellant/applicant.
The prayer clause (E) of the suit is reproduced hereinbelow:
"E. Pass the decree of Mandatory Injunction directing the
Defendant to cancel the agreement or bookings if any
received under the supplementary agreement regarding the
dwelling unit no. 3/second floor of the property bearing no.
208, Sant Nagar, New Delhi-110065"
7. Learned counsel for the appellant/applicant lastly stated that the
learned Joint Registrar manifestly failed to appreciate the law laid down by
the Supreme Court in Ramesh Hirachand Kundamal Vs. Municipal
Corporation of Greater Bombay and Ors., (1992) 2 SCC 524 wherein it has
been held as under:-
"The only reason which makes it necessary to make a
person a party to an action is that he should be bound by
the result of the action and the question to be settled
therefore, must be a question in the action which cannot be
effectually and completely settled unless he is a party. The
line has been drawn on a wider construction of the rule
between the direct interest or the legal interest and
commercial interest. It is, therefore, necessary that person
must be directly or legally interested in the action in the
answer, i.e., he can say that the litigation may lead to a
result which will affect him legally, that is, by curtailing his
legal rights."
8. In the opinion of this Court, the Joint Registrar has correctly
interpreted both the Supplementary Agreement dated 08th April, 2014 and
the Sale and Purchase Agreement dated 16th October, 2014 and in particular
Article 1 of the Supplementary Agreement and condition no. 2 of the Sale
and Purchase Agreement, which are reproduced hereinbelow:-
Article 1 of the Supplementary Agreement
"The contractor undertakes to bind the subsequent
buyer with the terms and conditions of the Mother
Agreement as well as the present Supplementary Agreement.
The subsequent buyer or any concerned understands that
they will not have privity of contract with the owner. The
subsequent buyer or investor cannot sue the owner of the
present property for enforcement of the terms of any
agreement which contractor may have with the subsequent
buyer/third party. In case the terms and conditions of any
agreement between the contractor and subsequent
buyer/investor contradicts the terms and conditions of the
Mother Agreement or the present Supplementary Agreement
the same may be null and void not binding in any sense.
(emphasis supplied)
Condition no. 2 of the Sale and Purchase Agreement
"THAT in case of any dispute, between the First Party
(Builder) and Owner by any reason, in that eventuality, the
Second Party/Purchaser shall not be liable and responsible.
And the amount already paid to the First Party (Builder)
shall be refund in the Double of the said amounts to the
Second Party/Purchaser alongwith all other damages thus
suffered by the Second Party/Purchaser, in all respects."
(emphasis supplied)
9. The Joint Registrar has rightly held that in terms of Article 1 of the
Supplementary Agreement, the appellant/applicant being the subsequent
buyer could not create privity of contract with the owner and therefore no
right of the appellant/applicant flows from this document against the owner.
The Joint Registrar has also correctly held that the appellant/applicant in
terms of condition no.2 of the Sale and Purchase Agreement has himself
limited his remedy against the builder to the extent of recovery of double the
amount of the money paid by him to the builder.
10. The learned Joint Registrar has further correctly opined that the
appellant/applicant is neither a necessary party nor a proper party to the
present suit, since the only relief available to the appellant/applicant is to sue
the builder in a separate suit and that too for double the amount of the
money paid by the appellant/applicant to the builder. Additionally, even if
the prayer (E) of the suit is allowed and the Sale and Purchase Agreement
dated 16th October, 2014 (BAYANA) is cancelled, the appellant/applicant's
remedy against the builder will subsist and he shall be open to claim
damages against the builder. Consequently, the present appeal and
applications are dismissed.
MANMOHAN, J
APRIL 17, 2018
rn
