SIRTAJ CONSTRUCTIONS LTD Vs. COL SURESH CHANDRA

JUDGEMENT

(1.) This application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure Is preferred by the applicant/plaintiff (hereafter referred to as 'the plaintiff) seeking interim relief of restraining the defendants/respondents (hereafter referred to as 'the defendant') from interfering with the possession of the plaintiff or dispossessing him from Flats Nos. 1, 8, 9 and 5 constructed by the plaintiff over the suit land and also further restraining the defendants from selling, transferring or encumbering the suit property in any manner.

(2.) Brief facts leading to the presentation of thfs application are that the plaintiff had instituted a suit for permanent prohibitory injunction and a decree for Rs. 17,14,446/-. The case of the plaintiff as made out in the plaint is that it is a construction company and the defendants are the owners of the suit land, measuring, 595 square meters situate in Brock Hurst Chhota Shimla. the parties entered into a collaboration agreement on 28-1-2000 whereby it was agreed that the plaintiff will carry out the construction of the building on the suit land and 75% of the constructed area of flats will be that of the plaintiff and t'he remaining 25% will be owned by the defendants. To facilitate the execution of the agreement. Irrevocable general power of attorney by the defendants in favour of the plaintiff was also agreed to be executed and the plaintiff was to deppsit a sum of rupees five lacs in the name of the owners. The plaintiff claims to have complied with all the terms and conditions of the collaboration agreement and out of, the flats constructed over the suit land, it sold Flat Nos. 2, 3, 4, 6, 7, 10, 11 and 12 and only Flat No. 5 remains to be sold. Flat Nos. 1, 8 and 9 have to go to the defendants as owners as per the said agreement. It is also claimed that pursuant to the terms and conditions of the collaboration agreement, the defendants have to pay the suit amount to the plaintiff on account of return of security deposits, expenses incurred in re-Construction of the retaining walls etc.. and unless the suit amount is paid, the defen- dants are not entitled for possession of Flat Nos. 1, 8 and 9. The defendants, however, failed to abide by the terms and conditions of the collaboration agreement which resulted in the delay of the execution of the work and incurring of other expenses by the plaintiff and the failure of the defendants to execute the irrevocable general power of attorney has also led to complications in final execution of the agreement. It is further averred that non-compliance 61" the terms of the agreement by the defendants evidently is with the intention of interfering with the transfer of the ownership of the flats. It is further the case ot the plainttff that Flat Nos. 1, 8 and 9 have fallen to the share of the defendants whereas Flat No. 5 has been allotted to the plaintiff itself. However, till the due amounts are cleared, the defendants have no right to interfere with the possession of the plaintiff over the aforesaid flats which they are bent upon to do. Hence the suit.

(3.) Along with the plaint, the plaintiff had preferred this application seeking the in terim relief on the premises that the defendants are threatening to interfere with the possession of the plaintiff over Flat Nos. 1, 8, 9 and 5 or to dispossess the plaintiff therefrorn without paying the due amounts and in case they arc permitted to do so. the paintiff will suffer irreparable loss and injury which cannot be compensated and the balance of convenience is in favour of the plaintiff as no harm or prejudice is going to be caused to the defendants if the interim relief as prayed for is granted.