Kishore Gupta v. K.K.Kurian

1. The plaintiff – Kishore Gupta has filed the instant suit for permanent and mandatory injunction to restrain the defendant from interfering with possession and construction in the suit property bearing No.303/A-87, Nehru Gali, Mandawali Fazalpur, Delhi and to sign and execute all correspondences, papers, etc. as well as sanctioned plan and get the same sanctioned from the competent authorities.

2. Case of the plaintiff as reflected in the plaint is that defendant is the owner of the suit property. He entered into a collaboration agreement dated 2014:DHC:6873 28.04.2014 with him whereunder he agreed to develop and construct shops and flats over it. The plaintiff was to arrange the entire finance for the construction of the entire building. He was required to pay ` 78 lacs in instalments to the defendant on various dates described in para No.5 of the plaint. After completion of the construction, the property was to be divided between him and the defendant as per details given in the para No.6 of the plaint. The building was to be completed within fifteen months from the date of possession.

3. Further case of the plaintiff is that after payment of ` 1 lac cash to the defendant on 28.04.2014, possession of the suit property was taken on 01.05.2014. Since then, he has invested ` 30 lacs towards construction on it. A cheque for a sum of ` 4 lacs was issued but due to overwriting over it, it could not be encashed. He had offered cash / cheque to the defendant who declined to accept.

4. Grievance of the plaintiff is that the defendant intends to hand over the suit property to some other builder.

5. Arguments on the maintainability of the suit were heard. During the course of arguments, learned counsel for the plaintiff opted to withdraw the relief for mandatory injunction. He relied upon ‘Anathula Sudhakar vs. P.Buchi Reddy’, 2008 (4) SCC 594 and ‘Vijay Kumar vs. K.N.Chopra & ors.’ 84 (2000) DLT 700 to urge that the suit for permanent injunction was maintainable.

6. Admittedly, the defendant is the owner of the suit property. The collaboration agreement dated 28.04.2014 was allegedly executed between the parties. It appears that terms and conditions of the collaboration agreement have not been complied with. The first payment of ` 5 lacs was to be made to the defendant No.1 at the time of taking over the possession of the suit property. The plaintiff paid a sum of ` 1 lac in cash. Cheque issued for a sum of ` 4 lacs vide cheque No.050358 dated 03.05.2014 was dishonoured on presentation due to overwriting on it. No payment was subsequently made in compliance of the terms and conditions of the collaboration agreement, though the plaintiff has alleged that ` 30 lacs were invested by him regarding construction over the suit property. The defendant has already served a notice to him for withdrawing from the collaboration agreement due to default on the part of the plaintiff not to comply with its terms and conditions.

7. The plaintiff did not prefer to file any suit for specific performance of the terms and conditions of the collaboration agreement and has opted to file the suit for permanent injunction simplicitor to restrain the defendant not to interfere in his possession and of raising of construction. No such injunction can be granted against the owner of the property in dispute when the plaintiff has not sought any compliance of the terms and conditions incorporated in the unregistered collaboration agreement and his willingness to perform his part of the obligation.

8. In the light of above discussion, the plaint does not disclose any cause of action to grant relief of permanent injunction to the plaintiff. The suit is dismissed as not maintainable.

9. Pending IA also stands disposed of. S.P.GARG, J DECEMBER 09, 2014 / tr