JOGINDER LAL KAPOOR Vs. GIRISH CHOPRA

JUDGEMENT

(1.) This is an application on behalf of the plaintiff under Order 12 Rule 6 read with Section 151 CPC seeking a judgment on admissions and the passing of a decree in terms of prayers (i), (ii) and (iii) of the plaint. The suit filed by the plaintiff is one for specific performance, mandatory and prohibitory injunctions and recovery of damages of Rs.50 lakhs and in the alternative for damages of Rs.1 crore. The prayers (i), (ii) and (iii) referred to above read as under:-

(2.) The plaintiff is the proposed purchaser. The defendant No.1 is the builder and the defendant No.2 is the owner. The defendant Nos. 1 and 2 allegedly entered into a collaboration agreement on 02.02.2000 for the purposes of development and sale of the property in question. A registered General Power of Attorney was executed by the defendant No.2 in favour of the defendant No.1 for the purposes of effectuating the collaboration. As per the collaboration agreement, the defendant No. 1 was to get the first floor and second floor, whereas the defendant No.2 would get the ground floor, basement and third floor. On 05.06.2000, the defendant No.1 entered into an agreement to sell in respect of the first floor of the premises to the plaintiff for a total sum of Rs.40 lakhs. It is averred that as per the agreement to sell, a sum of Rs.38 lakhs was to be paid to the defendant No.1 on the execution of the sale deed. However, on the request of the defendant No.1, the plaintiff paid Rs.38 lakhs by 16.12.2000 and the remaining two lakhs was not paid due to non-execution of the sale deed and alleged incomplete construction. The plaintiff submits that the balance two lakhs is also ready and available with the plaintiff. The bank draft is ready and stamp duty has been purchased. It is submitted by the plaintiff that the sale deed is not being executed by the defendant No.1 because there is a dispute between the defendant Nos. 1 and 2 with regard to which the conversion of the property from lease-hold to free-hold was held up. For permitting the conversion, the Delhi Development Authority required the clearance of all the dues which included misuse charges of Rs.1.32 crores. The defendant No.2, who is the owner, is not willing to pay the misuse charges nor is the defendant No.1. It is as a result of this that a situation of impasse has developed. While the defendant No.1 does not deny the entering into sale agreement in respect of the first floor of the premises in favour of the plaintiff, he disputes his liability towards misuse charges. On the other hand, the defendant No.2 (the owner) is of the view that the liability of misuse charges cannot fall upon him. One of the recitals contained in the collaboration agreement between the defendant Nos. 1 and 2 recites that the owner has assured the builder that he is the absolute owner of the property, free from all encumbrances, attachments, litigation, disputes and claims, etc. and nobody else except the said owner has any right, title, claim or interest, etc in the said property and that he is fully authorised to deal, negotiate or handle the said property in any manner he deems fit and proper. Clause 12 of the said collaboration agreement prescribes that all the rates, cesses, taxes and demands due and payable upto the date of handing over charge of the building alongwith the land underneath the building shall be the exclusive responsibility/ liability of the owner and after this date, it shall be the exclusive responsibility / liability of the builder till the completion of new building and even after completion of the building, till the respective portions of the newly constructed building are handed over to the owner/builder, whereafter the responsibility / liability of rates, cesses, taxes, such as house tax, electricity and water charges, etc. shall be that of the respective owner /builder. It is further provided that the owner shall not be responsible in any way for any of the rates, cesses, taxes, etc. other than pertaining to his own share in the newly constructed building. Clauses 24 and 25 of the said collaboration agreement were also referred to by the plaintiff. They read as under:

(3.) The plaintiff also referred to clause 16 of the General Power of Attorney executed by the defendant No.2 in favour of the defendant No.1's father. Clause 16 of the said General Power of Attorney is qua the power to sell, convey, rent, transfer, etc. in respect of the first floor and second floor of the premises. However, clause 16 was subject to clause 18 of the General Power of Attorney which reads as under:-