SUNIL SOOD Vs. SHRI KRISHNA BUILDERS & ORS

JUDGEMENT

(1.) C.M. No.36303/2018 (for condonation of delay)

(2.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 16.4.2018 by which trial court has dismissed the suit for specific performance, injunction etc filed by the appellant/plaintiff.

(3.) The facts of the case are that the appellant/plaintiff was a tenant in first floor of the property no. K-23-A, Kalkaji, New Delhi (hereinafter "suit property") at a monthly rental of Rs. 1,050/-. The entire property belonged to the respondent no.3/defendant no.3, (now deceased and represented through her legal heirs). Respondent no.1/defendant no.1, M/s Shri Krishna Builders through the respondent no.2/defendant no.2 entered into a Collaboration Agreement dated 12.9.2005 with the respondent no.3/defendant no.3 for reconstructing the entire property. For this purpose, an MOU dated 10.10.2005/Ex.PW1/2 was entered between the appellant/plaintiff, respondent no.1/defendant no.1 and the respondent no.3/defendant no. Between the appellant/plaintiff and the respondent no.1/defendant no.1 simultaneously an Agreement to Sell of the same date was entered into with respect to the first floor of the property which was to be constructed. The total price under the Agreement to Sell was fixed at Rs. 17 lacs of which a sum of Rs. 1 lac was paid by the appellant/plaintiff and the balance amount of Rs. 16 lacs was payable within 15 days of completion of construction and at the time of execution and registration of the Sale Deed in favour of the appellant/plaintiff. The appellant/plaintiff pleaded that to enable reconstruction, he had to shift from the tenanted premises and the respondent no. 1/defendant no.1 agreed to provide alternative accommodation on rent, the rent for which was to be paid by the respondent no.1/defendant no.1. Therefore, the appellant/plaintiff shifted to the third floor of the property no.G-48, Kalkaji, New Delhi at rent of Rs. 7,000/- per month and for the said premises, rent was paid by the respondent no.1/defendant no.1 till the disputes arose. The case of the appellant/plaintiff was that the respondent no.1/defendant no.1 was to construct the first floor of two bedrooms, drawing/dining, kitchen and two toilets as per the document Annexure-A to the Agreement to Sell, and there was also attached a site plan to the same. The appellant/plaintiff pleads that the respondent no.1/defendant no.1 and respondent no.2/defendant no.2 (partner of the respondent no.1/defendant no.1 partnership firm) however failed to carry out construction in terms of Annexure-A and that the construction made was inferior and sub-standard. The appellant/plaintiff pleaded that he was to be given possession by October, 2006 which was not done and instead in December, 2006 the respondent nos.1 and 2/defendant nos.1 and 2 asked the appellant/plaintiff to bear for another 3-4 months. The appellant/plaintiff therefore left his tenanted premises and shifted to another rented accommodation at J-218, third floor, Kalkaji, Delhi at rent of Rs. 5,000/- per month. The appellant/plaintiff pleads that when he approached the respondent no.1/defendant no.1 for reimbursement of rent from 15.12.2006 alongwith penalty of Rs. 10,000/- as per the Agreement to Sell, the respondent nos.1 and 2/defendant nos.1 and 2 refused to honour their commitments and instead the respondent no.3/defendant no.3 handed over a copy of the notice dated 20.12.2006/Ex.PW1/DX2 whereby the Agreement to Sell was cancelled by the respondent nos.1 and 2/defendant nos.1 and 2. Therefore the subject suit for specific performance, decree for recovery of rent paid at Rs. 5,000/- per month for J-218 property from 1.12.2006 to 28.2.2007, mandatory and permanent injunction etc was filed against the respondents/defendants.