KAMAL CHUG Vs. NARINDER KUMAR GULATI

JUDGEMENT

(1.) Before I come to the point in issue, I need to furnish the background and the essential facts. At the centre of the dispute is property bearing No. N-79, Panchsheel Park, New Delhi. It was owned by one Mrs. Promila Kapoor. On January 19, 1993 she agreed to sell it to plaintiff Nos. 1 and 2. An agreement to that effect was executed. Not only this, she even executed a General Power of Attorney in favour of plaintiff No. 3 empowering him to do all acts, deeds and things in performance of her obligation under the said agreement. On October 29, 1993 plaintiff Nos. 1 and 2 entered into an "Agreement to Sell'" with defendant Nos. 1 and 2 with regard to the first floor of the building which was to be constructed as per the requirements and specifications of the said defendants. 1 need not deal with all that was stated and undertaken in the said Agreement of October 29,1993. What, however, needs to be noticed is its Clause 11 which is the bone of contention and which is at the centre of the litigation. It runs as under:

(2.) Pursuant to the said "Agreement to Sell" plaintiff Nos. 1 and 2 and defendant Nos. I and 2 applied for and obtained 'No Objection Certificate' in Form 37-1 under the Income Tax Act, 1961. Later the first floor was constructed In terms of the agreement and its possession was handed over to the said defendants even though the defendants were yet to pay the balance consideration. This happened on 24.8.1995. On 20.5.1997 plaintiff No. 3, who, it may be recalled, was the holder of the General Power of Attorney of Mrs. Promila Kapoor, the original owner, executed a Power of Attorney in favour of defendant No. 3. It may be mentioned that defendant No. 3 is none other but the son of defendant Nos. 1 and 2. What further needs to be noticed is that in April, 2000 plaintiff Nos. 1 and 2 got the property converted into free-hold by depositing the entire conversion charges with the Delhi Development Authority and as a consequence a Conveyance Deed dated 4.4.2000 was executed by the Delhi Development Authority in favour of Mrs. Promila Kapoor. Thus Mrs. Promila Kapoor became legally free to execute a Sale Deed in terms of the 'Agreement to Sell' entered into between her with plaintiff Nos. 1 and 2 on January 19, 1993 and she did execute the same in their favour on June 7, 2002. It was now the turn of plaintiff Nos. 1 and 2 to perform their part of the obligation in terms of the 'Agreement to Sell' entered into by them on October 29, 1993 with defendant Nos. 1 and 2. They approached them with an offer to execute a Sale Deed in their favour in terms of the said Agreement. However, they were in for a shock. Defendant Nos. 1 and 2 told them that they had already got a Sale Deed executed in their favour for the premises in question on the basis of Power of Attorney executed by plaintiff Nos. 1 and 2 in favour of defendant No.3. They even handed over a copy of the same showing that the Sale Deed stood executed on October 18, 2000. The plaintiffs found, to their dismay, that the Sale Deed so executed did not contain the terms and conditions of 'Agreement to Sell' dated October 29, 1993. Aggrieved by all this, the plaintiff Nos. 1 and 2 filed the present suit for declaration that the Sale Deed executed on October 18, 2000 was invalid, null and void and for permanent injunction restraining the defendants from creating any third party interest or dealing with the suit property in any manner contrary to the covenants contained in the 'Agreement to Sell' of October 29, 1993 or to carry out any structural changes.

(3.) Though in the preceding paragraphs 1 have provided in some detail the background, what further needs to be noticed is that the learned Single Judge while dealing with the application of the plaintiffs under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure by his order dated 4.10.2002 passed an order on the application and aggrieved by the same an appeal was preferred which was disposed of by Division Bench of this Court on January 28, 2003. The said order of the Division Bench limited and crystallized the issue before me. I feel it would be desirable to reproduce the same. Here it is: