ORION INDIA PVT. LTD. Vs. MUKUL SHARMA

JUDGEMENT

(1.) THE defendant of Title Suit No. 195 of 1998 of the Court of learned Civil Judge (Senior Division) No. 1 at Guwahati has preferred this First Appeal challenging the judgment and decree dated 26.09.2005 thereby, decreeing the suit for specific performance of contract as to conditions mentioned in Clause -1(i) to 1(iii) of the written agreement dated 25.08.1992 and also for payment of Rs. 3,00,000/ - in cash to the plaintiff within a period of 90 days.

(2.) THE sole respondent, as plaintiff, instituted the aforesaid title Suit No. 195 of 1998 in the Court learned Civil Judge (Senior Division) No. 1 at Guwahati stating that being an owner in possession of a plot of land measuring 1 B 2K 10L covered by Dag No. 913 and 1965 of K.P. Patta No. 301 under Village Japorigog under Beltola Mouza of Guwahati, he entered into a registered agreement with the defendant on 25.08.1992 being registered deed No. 5581 of Guwahati sub -registry agreeing to sell the same land to the defendant on various terms and conditions. The value of the land was mutually settled at Rs. 20,00,000/ - and it was decided that the same amount need not be paid entirely by cash but the plaintiff would get some amount in cash while in lieu of cash of the balance sum, he would be given built up area in the proposed multi storied building after the same is constructed by developing the land. Under Paragraph -1 of this agreement, it was settled that the plaintiff would get the following built up area: - -

(3.) IT is further pleaded that till the date of institution of the suit, the defendant had constructed multi storied building up to 9th floor but allotted 1530 Sq. ft. built up area on the first floor, 1479 Sq. ft. in the mezzanine floor and 4315.11. Sq. ft. built up area in the third floor only. The defendant did nto allow the plaintiff any built up area in the ground floor and did not allot the first floor in entirety as earlier agreed and also did not allot the balance area as per the agreement. At this stage, the defendant took a new plea that built up area as mentioned in the agreement includes the common areas such as lift well, corridor, ducts, toilets lobbies etc. The plaintiff did not accept this new definition and asserted that built up area must be the area within the four walls allotted to the plaintiff and it should not include any common area. The plaintiff, therefore, took up the matter with the defendant from time to time and after several talks, defendant wrote a letter to the plaintiff on 9.03.1998 accepting the definition of the built up area as claimed by the plaintiff and also agreed to allot the remaining built up area as per the agreement. By issuing a letter subsequently on 16.03.1998, defendant confirmed the aforesaid definition of built up area as suggested by the plaintiff but projected that the plaintiff is entitled to 8804.77 Sq. ft built up area only out of which 7629.86 Sq. ft. of built up area has already been handed over. But actually the defendant had allotted only 7324.11 Sq. ft. and an area of 224.34 Sq. ft. was deducted on account of room No. 201 out of the total built up area of 12172 Sq. ft.