ASHOK RAI Vs. KAILASH NATH AND ASSOCIATES

JUDGEMENT

(1.) This order will govern the disposal of I.A.No.2742/97.

(2.) Suit was filed, inter alia, alleging that the plaintiff, Vikram Rai and Smt.Jyotsna Sahni are the heirs of Smt.Vimla Balwant Rai who died intestate on 28th September, 1988. Defendant No.1 is a registered firm carrying on the business of builders and developers of properties and defendants 2 and 3 are the partners thereof. Defendants 4 to 6 are the sons of Late Basheshar Nath and brothers of said Smt.Vimla Balwant Rai. Defendants 1 to 3, on the one hand, and Defendants 4 to 6, on the other hand, entered into a building and development agreement on 2nd May, 1971 with regard to property situated at 9, Barakhamba Road, New Delhi owned by defendants 4 to 6. In a letter dated 2nd May,1971 defendant No.1 had culled out the terms of contract for development of the said plot and construction of a multi-storey building thereon. Under the said agreement it was, inter alia, stated that out of the total saleable area of the multi-storey building 31.5% would belong to defendants 4 to 6 while the remaining 68.5% to defendants 1 to 3 on different floors. By the letter dated 17th March, 1980 defendants 4 to 6 requested defendants 1 to 3 enter into an agreement of sale on one flat to said Smt. Vimla Balwant Rai. Defendants 4 to 6 subsequently, wrote to defendant No.1 to allot 1282.5 sq.m. of gross area in the building. It is alleged that an agreement of sale was entered into between said Smt. Vimla Balwant Rai and defendant No.2 on 19th March, 1980 and it was agreed that a flat on the third floor of the building admeasuing 1100 sq.ft. carpet area would be allotted to her for a consideration of Rs.2.80 lakhs. Thereafter, amount of Rs.2.75 lakhs was paid by Smt. Vimla Balwant Rai vide Cheque No.0567771 dated 2nd April, 1984 after adjusting the advance amount of Rs.5,000.00 already paid in the past. Since defendant No.1 did not hand over possession of the flat, the plaintiff wrote a letter on 28th November, 1992 to the defendant asking them to hand over possession of the flat without any further delay. In reply to this letter, defendant no.1 wrote to the plaintiff on 21 st December, 1992 denying that they had agreed to sell 1100 sq.ft. or that by any subsequent letter the gross area was increased to 1282 sq. ft. It was asserted that under the agreement dated 19th March, 1980 a flat of only 900 sq. ft. was agreed to be sold to Smt. Vimla Balwant Rai.

(3.) In the said letter plaintiff was asked to send death certifictes of Smt. Vimla Balwant Rai and Balwant Rai, proforma affidavits and indemnity bonds from all the three legal heirs and no objection certificate from the land owners. It was further stated in the letter that flat No.301 on the third floor had been allotted to the plaintiff and possession thereof would be delivered after NDMC granted the completion/occupation certificates. It is alleged that certain changes were made in the aforesaid agreement in the hand of defendant No.2 himself whereby carpet area of 900 sq.ft. was raised to 1100 sq.ft. Plaintiff on behalf of himself and his said brother and sister kept on pursuing the defendants 1 to 3 to hand over possession of flat No.301 for which full consideration was already paid but they kept on evading the issue on one pretext or the other. In the meanwhile plaintiff submitted the death certificates of his mother and father, his indeminity bond and affidavit as demanded in the said letter dated 21st December, 1992. on the date of the filing of the suit indemnify bonds and affidavits of the brother and sister of the plaintiff have been despatched to defendant No.1. It is further alleged that the plaintiff got a legal notice dated 8th May, 1995 served on defendant No.1 calling upon it to hand over possession of flat No.301 within a fortnight of the receipt of the notice. Plaintiff thereafter got yet another legal notice dated 29th May,1996 served on the defendants. It is stated that at the behest of Sh.Atul Sharma, counsel for defendants 4 to 6 a meeting was held in the office of S.P.Sharma, Chartered Accountant on 16th December, 1996 to amicably sort out the matter. In that meeting it was revealed for the first time to othe plaintiff that defendants 4 to 6 had created, rights under an agreement dated 7th August 1992 in favour of Mira Exim Pvt. Ltd. in respect of said flat No.301 and full consideration of Rs.50 lakhs had been received by them. It was further divulged in the meeting that Suit No.1927/93 filed by defendant No.1 against devendants 4 to 6 was pending in Delhi High Court. On inspection of the file of the said Suit it was revealed that the suit was disposed of in terms of compromise on an application filed by the parties under Order 23 Rule 3 read with Section 151 Civil Procedure Code on 10th May, 1996. As per the compromise terms flat No.301 fell to the share of defendants 4 to 6 jointly. Compromise also recorded that flat bearing No.202 would not be amenable to sale or creation of third party rights till no objection of legal heirs of Smt.Vimla Balwant Rai was obtained. In that flat an area of 400 sq. ft. was sold to S.P. Sharma. It is stated that in an effort to circumvent the situation created by defendants 1 to 6 the plaintiff was asked to take possession of remaining area of 900 sq.ft. in above flat No.202 which was unacceptable. It was prayed that a decree of specific performance be passed against defendants 1 to 6 to perform their part of the agreement to sell dated 19th March, 1980 and hand over possession of flat No.301 without any encumberances to the plaintiff. Decree of permanent injunction is further sought to be passed against the defendants restraining them from creating any third party right in the said flat.