PRAMOD BEHL Vs. SHOVA MAYA GHOSH

JUDGEMENT

(1.) THIS appeal at the instance of the defendant -appellant stands directed against the impugned order dated 25.9.2003 passed in Title Suit No. 116 of 2001 by Shri R.K. Gupta, Sub -Judge III, Ranchi whereby and whereunder the petition under Order XXXIX, Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure filed by the defendant for grant of temporary injunction was rejected.

(2.) THE plaintiff -respondent (hereinafter referred to as plaintiffs) had filed Title Suit No. 116 of 2001 against the defendant -appellant (hereinafter referred to as defendant) for a declaration that the defendant has violated the terms and conditions of the agreement dated 11.2.1999 and thereupon for a further declaration that the cancellation/termination/discharge of the said agreement by the plaintiffs for breach of terms and conditions thereof on the part of the defendant was proper, legal and valid and binding upon the parties. A further declaration has been sought that consequent upon the discharge of the agreement, the defendant is only entitled to cost of the part construction done by him during the subsistence of the said agreement as per CPWD or PWD rates after deduction/adjustment of the amount owning from him to the plaintiffs.

(3.) THE defendant filed his written statement. The case of the defendant, inter alia, is that the plaintiffs got the map sanctioned on 14.2.1997 in B.C. Case No. 865 of 1996 for the purpose of construction of a multi -storied commercial -cum - residential building complex on the suit land and the said sanction was valid for a period of three years only and its validity period expired on 13.2.2000 and no order of revalidating the said period was obtained by the plaintiff. It is alleged that initially the construction was started by the plaintiffs by awarding a contract to the defendant and construction was initially started by him as such, but subsequently the aforesaid arrangement between the plaintiffs and the defendants was converted into a development agreement dated 11.2.1999. It is alleged that it is not the defendant who has failed and neglected to carry out his liabilities, obligations and duties causing stoppage/cessation of work but it is the plaintiffs who have failed to perform their part as contemplated in the agreement and they are guilty of committing breaches of the various terms of the said agreement making themselves liable for compensation, damages and payment of the loss sustained by the defendant for which a counter claim has been made in terms of Order VIII, Rule 6(A) of the Code of Civil Procedure detailed in his written statement and the defendant has prayed for grant of decree in favour of defendant and against the plaintiffs. It is alleged that the non -completion of work within the stipulated period as per Clause VII of the agreement is -solely on account of the failure of the plaintiffs to provide facilities as stipulated in the agreement to the defendant and the possession of the worksite was not handed over to the defendant immediately as agreed after the execution of the agreement and the defendant was not given any power of attorney by the plaintiffs to take steps for getting the sanctioned plan revalidated on its expiry after the completion of three years from the date of sanction which lost its validity on 13.2.2000 and the plaintiffs have also not taken steps themselves for the revalidation of the sanction plan by R.R.D.A., Ranchi. It is alleged that he has learnt reliably that the plaintiffs had applied for revalidation of the original sanctioned plan but the same was refused by R.R.D.A., Ranchi vide order date 6.7.2000 passed in Revalidation Case No. 182 of 2000 and it was the latches on the part of the plaintiffs as in the absence of revalidated plan, the defendant was unable to complete the construction within the time stipulated in the agreement and there is no question of breach of Clause VII (vi) of the agreement aforesaid by this defendant. It is further alleged that this defendant had almost complete the entire construction work by making huge investment of not less than Rs. 1,35,01,338.95 and in such circumstances the allegation of abandoning the project or ceasing the building activities by this defendant is palpably false and only some minor work are to be done in the said construction and the plaintiffs were asked to execute and give the separate power -of -attorney empowering and authorizing the defendant to deal with his share in these constructed area, but the plaintiffs in order to swallow the investment made by the defendant did not execute power of attorney and the alleged non - completion of minor work in the said construction is solely attributable to the plaintiffs themselves and so far the installation of firefighting is concerned until and unless the plaintiffs construct the staircase as provided in the agreement, the same cannot be installed and the determination of the agreement by the plaintiffs is unwarranted and illegal in view of Clause (IX) of the agreement according to which the right to determine the agreement is available only in case of latches/neglect/violation on the part of the defendant to abide by the commitments made in Clause I to VIII of the agreement and since there is no violation or latches on the part of this defendant, determination of the agreement cannot be done nor the same can be legal and valid. The defendant has made a counterclaim of Rs. 2,59,30,761.00 against the plaintiffs in terms of order VIII, Rule 6(A) of the Code of Civil Procedure, the basis for which has been detailed in the written statement.