J.M. CONSTRUCTION PVT. LTD. Vs. KRISHNA SACHDEV

JUDGEMENT

(1.) IA. No. 1138/2016 (of the defendants no. 1 to 9 under Order 7, Rule 11 CPC).

(2.) The plaintiff instituted this suit pleading (i) that one Sheela Devi (since deceased) was the exclusive owner of property no. C-10, Defence Colony, New Delhi ad measuring 325 sq. yds. and construction thereon; (ii) that the said Sheela Devi vide Memorandum of Understanding executed on 17th June, 1996 (MoU) agreed to sell the said property to the plaintiff for a total sale consideration of Rs. 2,60,00,000.00; (iii) that the MoU inter alia required the plaintiff to from its own funds make payment of charges for conversion of leasehold rights in the land underneath the property into freehold; the plaintiff in discharge of the said obligation deposited a sum of Rs. 77,955.00 with the Land and Development Officer (L&DO); (iv) the plaintiff on 18th Sept., 1996 paid an amount of Rs. 2,00,000.00 to Sheela Devi and receipt whereof was acknowledged in writing by Sheela Devi on 18th Sept., 1996; (v) the plaintiff, on payment of the remainder sale consideration of Rs. 2,58,00,000.00, was/is entitled to get the transaction completed in its favour; (vi) the plaintiff, since the date of the MoU has been solvent, ready and willing to pay remainder part of the sale consideration and complete the transaction; (vii) that on many occasions the plaintiff called upon and reminded Sheela Devi of her obligation under the MoU and for completing the transaction; (viii) however disputes had broken out amongst the family members of Sheela Devi with regard to distribution of sale consideration and owing whereto Sheela Devi could not complete the transaction but kept the performance of her part of obligations in abeyance; (ix) in May, 1997 Sheela Devi informed that the internal family disputes amongst her family members could not be resolved and as an alternative requested the plaintiff to execute a collaboration agreement for demolition of the property and construction of new building by the plaintiff on joint venture basis; (x) after discussions, the parties entered into and executed a Collaboration Agreement dated 22nd May, 1997; as per the said Agreement the plaintiff was to demolish the existing structure on the property and thereafter at its own costs construct a new building comprising of basement, ground, first and barsati floors and of which Sheela Devi was to own and retain the entire ground floor and the plaintiff to own and retain the entire basement, first and barsati floors with terrace; "cash consideration for Collaboration Agreement authorising the plaintiff company to demolish the then existing structure of the building on the plot of suit property, and reconstruct a new building on space sharing basis was settled at Rs. 1,50,00,000.00 [Rupees One Crore and Fifty lacs Only] out of which, simultaneously along with the execution of the aforesaid collaboration agreement on 22.05.1997, the plaintiff company paid to late Smt. Sheela Devi Rs. 2,82,045.00 (Rupees two lacs eighty two thousand and forty five only) in cash being part payment of cash consideration specified in the collaboration agreement. Of this part cash consideration, the owner paid Rs. 1,00,000.00 to the defendant no. 7"; that the balance Rs. 1,46,90,000.00 was required to be paid by the plaintiff to Sheela Devi within 30 days after getting permission in Form 37-I under the Income Tax laws and simultaneously at the time of taking vacant physical possession of the property; (xi) the plaintiff immediately after signing the Collaboration Agreement handed over Form 37-I to Sheela Devi for countersigning the same and returning to the plaintiff for onward submission to the Income Tax Department; (xii) the plaintiff repeatedly informed Sheela Devi during the months of June, 1997 to March, 1998 to come forward to complete her part of obligations; (xiii) Sheela Devi kept on delaying the handing over of possession of the property in terms of Collaboration Agreement; resultantly the balance amount payable by the plaintiff also could not be paid; in addition Sheela Devi did not hand over Form 37-I either; Sheela Devi died on 5th May, 1998; she never revoked or cancelled the Agreement in her lifetime; (xiv) the defendants no.1 to 9 herein namely Krishna Sachdev, Lt. Col. (Dr.) Deepti Sablok, Major Deepak Sachdev, Neelima Bhalla, Sarvadaman Bhalla, Anuradha Chopra, Shano Prakash, Lt. (I.N.) Pradeep Prakash Sachdev and Vishal Prakash Sachdev are the natural heirs of Sheela Devi; (xv) the plaintiff contacted the defendants no. 1 to 9 in Nov., 1998 immediately on coming to know of the demise of Sheela Devi and the defendants no. 1 to 9 being fully aware of the Agreement qua the suit property promised to perform the obligations of Sheela Devi after their inter se disputes over the distribution of balance consideration are resolved; (xv) "that the defendants during the years 1998-2005 repeatedly expressed their inability to hand over vacant, peaceful and physical possession and take balance consideration for the suit property. However, the defendants promised that they shall not dispose off the suit property in any manner to any third person or enter into collaboration agreement in respect of the suit property and shall complete their part of pending obligations as required by the aforesaid agreements with the plaintiff company"; (xvi) the defendants no. 1 to 9 at no time cancelled or revoked or terminated the written agreements; (xvii) the plaintiff got issued legal notice dated 9th Feb., 1999 calling up the legal heirs of Sheela Devi to perform the obligations of late Sheela Devi; "even this legal notice was met with all sorts of assurances and commitments from the defendants that the needful as required by the agreements in respect of the transfer or in the alternative handing over the vacant, peaceful and physical possession of suit property in favour of the plaintiff company shall be done once inter se disputes among the legal heirs of late Smt. Sheela Devi get resolved out and settled"; (xviii) the plaintiff by way of abundant caution through its Advocate on 19th Nov., 1999 published in the newspaper a legal notice about its rights, charge, lien, encumbrance, title and interest in the property; the defendants no. 1, 7 and 10 met the Directors of the plaintiff and assured that in accordance with the Agreements the defendants shall perform their part of the contract the moment their internal disputes are over; (xix) the defendants no. 1, 7 and 10 and other defendants between Dec., 1999 to June, 2005 repeatedly visited the office of the plaintiff and assured and held out that the defendants shall not negotiate with anybody else in respect of the property; (xx) the defendants cleverly and clandestinely concealed the developments in the legal proceedings in Suit No. 2020/1999 (however there is no reference to the said suit at any earlier stage of the plaint); (xxi) that in end of June, 2005 the plaintiff learnt that the defendants no. 1, 7 and 10 were trying to dispose of the property to third parties in pursuance to decision of Suit No. 2020/1999; (xxii) the Directors of the plaintiff attempted to contact the defendants but the defendants avoided; (xxiii) on 7th July, 2005 defendant no.7 gave information to the Directors of the plaintiff that the property had been mutated in their names and Suit No. 2020/1999 had been decided; (xxiv) the plaintiff on 8th July, 2005 served notice on defendants no. 1 to 9 reminding them of their obligations in respect of the said property; (xxv) the defendant no.7 sent reply dated 20th July, 2005 wherein he for the first time implied refusal to perform the obligations of Sheela Devi under the Agreement and unilaterally sent a Pay Order for Rs. 3,10,000.00 in favour of the plaintiff; (xxvi) that in the aforesaid reply the defendants have also referred to a document dated 22nd May, 1997 alleged to have been signed on the date of signing of the Collaboration Agreement; the plaintiff has never executed any such document; even if there was any private understanding between Sheela Devi and any of the shareholders/officer bearers of the plaintiff, the plaintiff would not be bound by the same; there was no reference to the said document in Suit No. 2020/1999 also and on the contrary the defendants no. 1 to 9 had been assuring the plaintiff; (xxvii) that the plaintiff did not accept the Pay Order for Rs. 3,10,000.00 and is filing the same before this Court; (xxviii) no replies to the legal notice dated 8th July, 2005 were received from any of the other defendants; (xxix) a legal notice from the defendant no. 7 to one of the Directors of the plaintiff was also received on 22nd Aug., 2005; (xxx) the plaintiff got sent another notice dated 12th Dec., 2005 to take back the Pay Order for Rs. 3,10,000.00 and to collect Rs. 2,58,00,000.00 and execute necessary documents in respect of the suit property; (xxxi) in Aug., 2006 the plaintiff traced the particulars of Suit No. 2020/1999 and learnt that it had been transferred to the District Courts and on perusal of records thereof realised that the defendants no. 1 to 9 had misled the Court in which the same was pending by stating that J.K. Malhan of the plaintiff had stated that if Rs. 3,10,000.00 is paid to him he will leave all his rights in the property and that J.K. Malhan had been compensated and was not pressing his rights in the property; (xxxii) that the defendants in collusion with defendant no. 14 K.K. Sharma have demolished the property and are re-constructing thereon; (xxxiii) defendant no. 13 Sanjeev Anand has been impleaded because he also claims some interest in the property; and, (xxxiv) defendants no. 10, 11&12 i.e. Lt. Col. Din Dayal Sachdev, Bharat Bhushan Jain and Baldev Sahai have been impleaded as they were the named executors of the Will dated 29th Oct., 1995 of Sheela Devi.

(3.) Reliefs of (i) specific performance of the MoU dated 17th June, 1996 and in the alternative of Collaboration Agreement dated 22nd May, 1997; (ii) of permanent injunction restraining the defendants from dealing with the property; and, (iii) of damages/compensation in lieu of specific performance have been claimed in the suit (however the damages/compensation have not been quantified).