VIRENDER ARORA Vs. JITENDER SINGH

JUDGEMENT

(1.) IA 16253/2010 (on b/o. plaintiff u/O.1 R.10(2) CPC) Notice of the application be issued to the proposed additional defendants for 10th March, 2011. IA 16259/2010 (on b/o. plaintiff u/O.39 R.1 & 2 CPC) Notice of the application be issued to the defendants for the date already fixed above. The case of the plaintiffs is that the defendants had entered into a Collaboration Agreement with the owners of property No.1195, Dr. Mukherjee Nagar, New Delhi, under which they had to re-construct the aforesaid property and the third floor of the property was to fall to share of the defendants, whereas the other share were go to the owners. This is also the case of the plaintiffs that the defendants vide Agreement to Sell dated 15th April, 2009 had agreed to sell the third floor of the aforesaid property along with terrace rights to them for a total sale consideration of Rs.53,75,000/- and they have already made part-payment of Rs.15,60,000 to them. The plaintiff, therefore, filed this suit for specific performance of the Agreement to Sell dated 15th April, 2009 with respect to third floor alongwith terrace rights of property No.1195, Dr. Mukherjee Nagar, Delhi, alongwith common right of passage, entrance and staircase. Vide IA No. 4460/2010, the plaintiffs have sought injunction restraining the defendants from selling, alienating or encumbering the third floor of the aforesaid property during the pendency of the suit.

(2.) THE defendants have contested the suit and have stated that the plaintiffs have failed to make payment of the balance sale consideration on or before the stipulated date of 15th April, 2009. THEy have also claimed that in the event of their not honouring the agreement, the plaintiffs are entitled to an amount twice the earnest money, but, they cannot seek specific performance of the agreement. THEy have, however, not disputed having entered into a collaboration agreement with Shri Mohan Lal, the original owner of the suit property. THEy have also not disputed that under the collaboration agreement, they were to be the exclusive owner of the third floor of the property.

(3.) AS regards title in respect of the third floor and the terrace over it is disputed question of fact as to whether the collaboration agreement which was executed between the defendants and the owners of the property has been cancelled or not. The case of the plaintiffs is that the collaboration agreement has not been cancelled and the title with respect to the third floor and the terrace over it continues to vest in the defendants. If this is true, the plaintiffs would be entitled to injunction against sale, transfer or alienation of the third floor of the property by the defendants.