SENTINEL CONSULTANTS PVT LTD Vs. SUDHIR MALHOTRA

JUDGEMENT

(1.) THIS is a suit for specific performance of the Agreement to Sell dated 27th March, 1997, recovery of Rs.25 lac as damages and for mandatory and perpetual injunction. The plaintiff Company was a tenant under defendant No.1 in respect of the ground floor of property No.A-249, Defence Colony, New Delhi. Defendant No.1 entered into a collaboration agreement with defendant No.2 whereunder the existing structure on property No. A-249, Defence Colony, New Delhi, was to be demolished and replaced by a new building having basement, ground floor, first floor and second floor. Under the collaboration agreement, basement, ground floor and terrace floor were to be given to defendant No.1 whereas the first floor and second floor were to go to defendant No.2. A tripartite agreement dated 27.03.1997 was entered into between the plaintiff and defendants whereby defendant No.1 agreed to sell all his rights, title and interest including property rights in the basement to be constructed by defendant No.2 on the aforesaid property of the plaintiff-company. It was also agreed that the basement would be for the maximum permissible covered area and will comprise a hall toilet and a pantry. The defendants also agreed to give right of user of common toilet to be constructed on the second floor, to the plaintiff, in addition to the right to install TV antenna, wireless and communication antenna on the roofs and free ingress and egress to use common passages, staircase and lift etc. The total consideration for the sale of the basement floor was fixed at Rs.12,25,000/- out of which a sum of Rs.25,000/- was paid by the plaintiff to defendant No.1 at the time of the execution of the agreement. Out of the balance sale consideration of Rs.12 lac, Rs.2 lac were payable to defendant No.1 on completion of the basement as per terms of the agreement or on the plaintiff company coming into possession after expiry of eight months (which was the period fixed for construction of the basement), whichever be earlier. A sum of Rs.10 lac, agreed to be paid to the plaintiff for relinquishment of subsisting tenancy rights in the ground floor and that amount was to be adjusted against balance sale consideration for the basement, at the time of giving its possession to the plaintiff company. The plaintiff company vacated the ground floor of the property in terms of the agreement between the parties. The defendants, however, failed to complete the basement within eight months from the date the possession of the ground floor was handed over by the plaintiff. It is alleged that in first week of May, 1998, an official of the plaintiff company visited the suit property which was under construction at that time and found that a highly truncated and abridged basement had been constructed. The plaintiff has now sought a decree for specific performance of the Agreement to Sell dated 27th March, 1997 by directing the defendants to sell the basement floor of the suit property to it, along with a decree for possession of the basement floor. The plaintiff has also sought recovery of Rs.25 lac from defendant No.1, being the liquidated damages for not handing over possession of the property agreed to be sold within the stipulated period of eight months. The plaintiff has also sought an injunction directing the defendants to construct basement to the extent maximum permissible covered area and complete the interior finish.

(2.) THE defendants filed written statement contesting the suit. THEy denied authority of Shri Kuldeep Singh to file the present suit on behalf of plaintiff and also claimed that the agreement between the parties is illegal and enforceable in law. It was also alleged that after completion of the building, necessary C and D form was obtained by the builder on 7th November, 1997 and the plaintiff was notified to take possession of the basement. THE plaintiff, however, failed to come forward to take possession of the basement and, therefore, committed breach of the agreement between the parties. THE defendants also took the plea that the suit as framed is not maintainable and the agreement dated 27th March, 1997 has expired by efflux of time on 27th November, 1997. On merits, the defendants have admitted execution of the tripartite agreement to sell dated 27th March, 1997. THEy have also admitted that the plaintiff was a tenant under defendant No. 1 in respect of the ground floor of property No. A-249, Defence Colony, New Delhi. It is also alleged that maximum permissible area for construction of basement about 251 square feet and basement was constructed accordingly.

(3.) IA 5530/2004 was filed by the plaintiff on July 12, 2004 seeking action under Order 39 Rule 2A of CPC on the ground that despite orders of this Court dated 3rd August, 1997 and 10th November, 1998, defendant No.1 delivered the possession of the basement of the suit property to M/s.ESSEMM Realtors. Notice of the application was also issued to M/s.ESSEMM Realtors through Mr. Sanjay Sharma and Mr. Manoj Kain.