SITA RANI SHARMA Vs. MANCHANDA PROPERTIES PRIVATE LIMITED

JUDGEMENT

(1.) The plaintiff has filed the instant suit for declaration, specific performance of contract with reaped to property at C-471, Defence Colony, New Delhi (for short 'suit property'), recovery of mesne profits/damages and for permanent injunction. Facts can be stated in capsulated form as that would serve the purpose. Husband of the plaintiff. Major Siriram Sharma was the owner of the property. He died on 10th September, 1975. After his death property was mutated in the name of the. plaintiff in the records of L&DO/defendant No.4 in September, 1986. Thereafter, the plaintiff went to Toronto, Canada and settled there. In 1989 she came to India, Her case is that the defendant No.2 approached the plaintiff and gave an offer for development of the aforesaid property. The plaintiff and defendant No.1, of which defendant No.2 is the Managing Director, agreed on terms and conditions' on which builder's Agreement was to be arrived at, on 7/08/1989. However written documents could not be executed. As per these terms, defendant No.1 was to develop and construct the property at its own cost and was to pay a sum of Rs.9 lacs towards security deposit. After the construction the plaintiff and the defendant No.1 were to share 50 per cent each of the constructed portion. The defendant No.1 paid a sum of Rs.4,55,000/-. The details of this payment as per the plaintiff, are as under:

(2.) The case of the plaintiff further is that after the signing of the agreement. It was mutually agreed between the plaintiff and the defendant No. 1 that the plaintiff would get Ground Floor and Second Floor of the property with rights of terrace and the defendant No.1 would take the other portion of the building constructed over the said plot of land. In the year 1992 it was further agreed between the parties that the defendant No.1 would provide an additional room measuring 10' x 12' along with bathroom including all fittings on the top floor. The defendants 1-2 however did not perform their obligations under the agreement. During her visits bo India, she came to know that the defendants 1-2 were forging the signatures of the plaintiff and had been filing petitions in the courts. Again in August, 1994 the plaintiff came to India and noticed that necessary modifications were made and the building was complete. The plaintiff got in touch with the defendant No.2 who asked the plaintiff to execute the General Power of Attorney(for short 'GPA') in favour of his daughter i.e. defendant No.3 which was required for getting the property freehold as well as for the purpose of getting the completion certificate. The plaintiff executed the GPA. In May, 1996 the plaintiff again came to India to resolve the matter but the defendants 1-2 failed to recognise the plaintiff. She visited the office of Sub-Registrar, got the record inspected and cancelled the GPA given by her in favour of defendant No.3 on 10/05/1996. She also got a public notice issued to this effect. The suit is filed for specific performance of agreement dated 7/08/1989 and direction is sought against the defendants 1 and 2 to hand over and deliver to the plaintiff vacant and peaceful possession of Ground Floor and Second Floor with terrace sides of the building constructed with additional room of 10'x12' with attached bathroom on the top floor of the suit property. Declaration is sought to the effect that action taken by defendant No.3 on the basis of GPA dated l 9/08/1984 be declared null and void. Further decree for Rs.18 lacs towards damages for non-handing over the posssession of the plaintiff's share is sought. Decree of Rs.1,50,000/~ as mesne profits for the month of August, 1996 and also future mesne profits at the rate of Rs.1,50,000 per month is also preyed for. There is also a prayer for decree of permanent injunction against the defendants 1 to 3 not to encumber, mortgage or sell the suit property and against the defendant No.4 not to grant any permission/sanction for sale of the suit property.

(3.) The case set up by the defendants 1 and 2 in the written statement is that no such builders. Agreement dated 7/08/1989 was executed between the parties. It is further stated that in fact agreement to sell dated 3/10/1969 was entered Into between the plaintiff and the defendant No.2 for a consideration of Rs.4,56,000/- as per which the plaintiff was agreed to sell the suit property to the defendant No.2. Full consideration was paid. Possession was given to the defendant No.2. Pursuant thereto GPA was also executed in favour of the defendant No.3. The defendant. No.2 has therefore, become the owner of the suit property which he purchased for consideration from the plaintiff and the plaintiff has no interest or title left in the suit property. Various allegations made in the plaint are denied. Various preliminary objections are also raised to the maintainability of such a suit which according to the defendants I and 2 has been filed with malafide intention to blackmail the defendants 1 and 2. It is also stated that the suit is time barred as well. The defendant No.3 has filed separate written statement, albeit on same lines.