D P VARMA Vs. R P MISHRA

JUDGEMENT

(1.) The complainant executed agreement dated 7.10.1990 with the opposite party and entrusted the development rights in respect of the premises viz. Old Chawl at Lokmanya Nagar, Pada No.1, Thane. The said Chawl was admeasuring about 18' x 38' + 22' x 13ft. and the same was situated at Survey No.406 with House No.977. In addition to this agreement, the opposite party had agreed to provide 1,455 sq. ft. of premises in the new building viz. shop on the ground floor, self contained flat on 2nd floor, self contained flat on the 3rd floor and 2 self contained flats on the 4th floor. The construction was to be completed within 18 months. According to the complainant nothing was done and that the complainant is without house. The complainant therefore, gave notice dated 25.4.1994 coupled with public notice dated 4.5.1994 and terminated the agreement and also the power of attorney given in favour of the opposite parties. However, the opposite party begged from the complainant to continue the agreement and on humanitarian ground, the complainant allowed the opposite party builder to carry out the construction. However, even this could not work and the net result was that no construction has come up. Whatever has come up is of poor construction of sub-standard material. The complainant is not given possession of shop or any of the flats, but on the other hand, some other persons are inducted in those premises. Complainant, therefore, filed the complaint for delivery of possession of the above premises or in the alternative damages of Rs.18,60,000/-.

(2.) We find that the opposite party has stoutly denied all these allegations. The opposite party has contended that by tendering various documents, when the complainant was holding only 970 sq. ft. , he cannot demand larger area of 1,455 sq. ft. consisting of various flats etc. On the other hand, the landlords of the adjoining land join the complaint and surrendered their land, so that the multi-storied building could be put up. There was the agreement between 4 landlords and 4 tenements in the existing premises on one side and the opposite party on the other side. However, when the builder wanted to carry out the construction, the other rivals did not allow. One Mr. Parab of Omkar construction has been instigated the complainant to revoke the agreement. The opposite party, therefore, filed regular Suit No.669/95, where the complainant has filed the caveat in the said suit in respect of the same agreement. It is the complainant, who have been obstructing the progress of the construction, he has been instigated by other builders and the present story is that the complainant has already sold the rights in favour of the 3rd party. The complainant also filed police complaint against the builders. The opposite party is entitled to the amount of loss incurred by the opposite party i. e. to the tune of Rs.74,64,000/-. He is also entitled to seek the termination of the agreement between the complainant and the Omkar Construction. All these averments are supported by documents. The order regarding injunction passed in regular Civil Suit No.669/95 regarding the disputes relates to the same property and the allegations are also the same. We, therefore, feel that there are several disputed question of facts. There are also serious questions of law viz. validity of the agreement between the parties, the matter has not rested only up to the first agreement but the some 3rd parties are also involved in and hence the matter requires proper consideration at the end of the Civil Court side. We, therefore, pass the following order : order the complaint is dismissed. The parties to approach proper forum for agitating their rights.