Bhawani Investments Private Limited v. Shree Properties & Another

C.L. Chaudhry, J.

1. The plaintiff has filed this suit for the reliefs of perpetual injunction and mandatory injunction. The allegations disclosed in the plaint are that the defendants were constructing a building on plot No. 7, Masjid Moth Community Centre, New Delhi, which was under progress. By an agreement of lease dated 22.4.1985 the plaintiff agreed to take on lease the entire firs floor of the building No. 7, Masjid Moth Community Centre, New Delhi on the terms and conditions incorporation in the agreement. The agreement was subsequently got registered. The relevant terms of the agreement are that the defendants would lease out the entire first floor of the said building comprising of an area of 200 sq. mtrs, to the plaintiff and that the defendants would obtain occupancy certificate on or before 30.7.1985 to enable the plaintiff to take possession of the premises. The lease money was agreed at Rs. 5,000 per month and the possession of the premises was to be handed order by the defendant to the plaintiff with complete electrical and water connections and complete in all respects on or before 30.7.1985. It was further provided in the agreement that the defendants would allow the plaintiff to work for the interior decoration, partition etc. and in the event the defendants failed to complete the construction in all respects and hand over the possession of the premises to the plaintiff on or before 30.7.1985 the plaintiff would have the option to take possession of the said premises and/or sue the defendants for damages, if the plaintiff so desires. It is further stated that on 2.7.1985 the plaintiff approached the defendant No. 1 and visited the said premises to ascertain the progress of the construction, and it was found that the progress of the construction was not satisfactory. The defendant failed to complete the building by July 30, 1985 as provided in the agreement. The defendant sought time upto 15.9.1985 to complete the premises and hand over its possession to the plaintiff. The reason expressed for extension of time was due to certain unavoidable circumstances and labour problems. The plaintiff agreed to this extension of time without prejudice to its rights. Thereafter a notice vas given on behalf of the plaintiff on 3.9.1985 calling upon the defendants to complete the said premises by 15.9.1985. It is stated that the defendant failed to complete the building premises by 15.9.1985. It is claimed that the plaintiff in exercise of its right under the agreement and particularly clause (16) took possession of the said premises on 16.9.1985, and thereafter called upon the defendant to complete the said premises in all respects to make it usable. The short-comings have been mentioned in para No. 11 of the petition. Those are to the effect the grinding and polishing of the floors, electrical wiring to be laid, window frames and panes to be installed, sanitary fittings to be installed. It is stated that the defendants did not deliberately complete the premises and did not obtain the occupancy certificate. By a registered notice the defendants were called upon to complete the premises. It is stated that by letter dated 16.9.1985 the defendant terminated the agreement on the grounds that the construction was likely to be delayed considerably and the defendants forwarded the draft of Rs. 50,000, given by the plaintiff to the defendants. The plaintiff alleges that the termination of the agreement by the defendant is illegal, unlawfu1 and mala fide and the plaintiff apprehends and has reason to belie that the defendant No. 1 would try to forcibly dispossess the plaintiff from the said premises.

2. Along with the suit an application, which is under disposal, has been filed under Order 39 Rules 1 and 2 read with Section 151 CPC seeking to restrain the defendants from dispossessing the plaintiff during the pendency of the suit. The defendant are contesting the claim of the plaintiff. The written statement and reply to this application has been filed.

3. It is stated in the written statement that the plaintiff is not in physical possession of the premises or any part thereof; that the plaintiff has not come to this court with clean hands. On the merits the agreement to lease has not been denied. It is stated that as per terms of the agreement otherwise agreed between the parties the possession for limited purpose of the lease was to be given by the defendant No. 1 to the plaintiff only after the building had been completed in all respects and the relevant certificate for using the occupation of the said commercial building had been issued by the Competent Authorities including Municipal Corporation of Delhi and Delhi Development Authority. It is further stated that in accordance with the terms and conditions of the lease in favour of the defendant No. 1, the said plot and the building constructed thereupon could not be put to any use or occupation till the legal formalities had been completed, which could not be completed for the reasons beyond the control of defendant No. 1. The time was not the essence of the contract and without completion of the building the plaintiff could not take recourse to any of the terms of the agreement. It is further stated that a sum of Rs. 50,000 was paid upon the signing of the agreement and the balance of Rs. 2 50,000. was to be paid at the time of possession of the property to the property to the plaintiff. The plaintiff has not paid any amount after the initial payment of Rs. 50.000 and also committed the breach of the terms of the agreement. It is further stated that the difficulty for not completing the building was related to labour problems, shortage of cement and also heavy rains. The termination of the agreement is justified.

4. I have heard the learned counsel for the parties and have given my thoughtful consideration to the matter involved.

5. For the purpose of this application the only thing that is to be seen at the present moment is whether the plaintiff is in possession of any portion of the premises and if so by what. In order to substantiate the plea of possession the plaintiff has placed or record a copy of the letter written to the Station House Officer, Kalkaji, Police Station, dated 16.9.1985 herein it is stated that the plaintiffs have taken possession of the entire first floor of plot No. 7 in Masjid Moth Community Centre, New Delhi, which was leased out to them. Then there is a certificate by the Notary Public dated 21.9.1985. On the request of the plaintiff he- visited the first floor of premises No. 7, Masjid Moth Community Centre, New Delhi and found that the building was complete in all respects excepting the window frames and glass panes were to be fixed and no furniture of course was there. There is one certificate from SENTINELS dated 18..9.1985 by which it has been certified that they have been retained by the plaintiff since 16.9.1985 to provide security guards at their premisesFirst Floor, building No. 7, Masjid Moth Community Centre, New Delhi on a round the clock duty.

6. The defendants are contesting the claim of the plaintiff regarding possession. According to the defendants the premises are not in physical possession of the plaintiff but they are in possession of Jyoti Theatres Pvt. Ltd. and Maya Builders. The agreement of lease does provide that in the event of the defendants failing to complete the construction in all respects and hand over the possession of the premises to the plaintiff on or before 30.7.1985 the plaintiff would have the option to take possession of the premises and/or sue the defendants for damages, if the plaintiff so desires. By virtue of this clause the plaintiff is empowered to enter into possession but the plaintiff is required under Clause 4 of the agreement to pay Rs. 2,50,000 to the defendant at the time of taking over the possession.

7. Prima facie, it appears that the plaintiff is in possession of the premises. If the plaintiff is forcibly dispossessed, he is likely to suffer irreparable injury and substantial loss. The balance of convenience is also in favour of the plaintiff and maintaining the status quo. Consequently, the application is allowed. The order dated 27.9.1985 is confirmed and the defendants are restrained from dispossessing the plaintiff except in due course of law till the decision of the suit. However, this order is subject to the condition that the plaintiff would deposit Rs. 2,50,000 in the Court upto 15.7.1987. I.A. is disposed of.