PUSHPA BUILDER LTD Vs. VIKRAM HINGORANI

JUDGEMENT

(1.) Order impugned is the order dated 23.09.2011 vide which the two applications filed by defendants Nos. 4, 5 & 6 under the proviso to Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as the 'Code') as also a third application filed by defendant Nos. 4 & 5 under Section 151 of the Code had been dismissed.

(2.) Record shows that the present suit is a suit for delivery of legacy/shares in immovable property with the consequential reliefs of partition, perpetual and mandatory injunction as also for rendition of accounts. There were 6 plaintiffs and 5 defendants; subsequently defendant No. 6 i.e. ING Vysya Bank was also added as a party. Averments in the plaint disclose that plaintiffs No. 1 to 6 and defendant No. 1 were the successors in interest of the original owners i.e. Mr. Hardasmal Banasing Hingorani and Mrs. Sati Tahilramani; vide a decree dated 25.11.1975 passed in suit No. 640-A/1974, both the aforenoted persons were recognized as 50% co-owners in the suit property. The suit property is a bunglow situated at 13, Patel Road, West Patel Nagar, Delhi. On 20.09.1998 a collaboration agreement, in terms of which defendant Nos. 4 & 5 (hereinafter referred to as the collaborators) had to construct flats/units on the suit land and thereafter were to receive 50% of the sale proceeds, this collaboration agreement had been entered into by the predecessor of defendant No. 2 i.e. Sati Thilramani with the collaborators; contention in the plaint is that in terms of this collaboration agreement the collaborators were not to get any title in this property; at best they were entitled to 50% of the sale proceeds of the flats/units which were to be constructed within a period of 20 months from the date of the sanctioned plan and these sale proceeds were to be shared equally by Sati Thilramani and the collaborators. Admittedly, the construction of the property was not completed within the stipulated period. Further contention being that the collaborators had in contravention of the terms of the collaboration agreement inducted defendant No. 6 as a licensee in the suit land and have illegally parted with possession of the property to defendant No. 6; as noted supra relief of partition and delivery of possession of property as also rendition of accounts had been sought against defendants No. 1 to 5; defendant No. 6 was added subsequently i.e. after filing of the original plaint.

(3.) During the course of the suit proceedings on 18.03.2008, a compromise was entered into between the six plaintiffs and defendants No. 1 to 3; pursuant to this compromise, a final decree of partition was passed on 24.04.2008 wherein the rights and shares in the suit land of the plaintiffs and defendants No. 1 to 3 were determined. A preliminary decree has been passed for rendition of accounts as well. Record further shows that on this date i.e. on 24.04.2008, defendants No. 4 to 6 were also represented by the counsel.