BHAWANI INVESTMENTS PRIVATE LIMITED v. PROPERTIES — 1987 DIGILAW 241 (DEL)

C. L. Chaudbry,j. ( 1 ) THE plaintiff has filed this suit for the reliefs ofperpetual injunction and mandatory injunction. The allegations disclosed inthe plaint are that the defendants were constructing a building on plot No. 7,masjid Moiii Community Centre, New Delhi, which was under progress. By anagreement of lease dated 22. 4. 1985 the plaintiff agreed to take on lease theentire first floor of the building No. 7, Masjid Moth Community Centre, Newdelhi on the terms and conditions incorporation in the agreement. Theagreement was subsequently got registered. The relevant terms of tagreement are that the defendants would lease out the entire first floor of thesaid building comprising of an area of 200 sq. mtrs, to the plaintiff and thatthe defendants would obtain occupancy certificate on or before 30. 7. 1985 toenable the plaintiff to take possession of the premises. The lease money wasagreed at Rs. 5,000. 00 per month and the possession of the premises was to behanded over by the defendant to the plaintiff with complete electrical and waterconnections and complete in all respects on or before 30. 7. 1985. It was furtherprovided in the agreement that the defendants would allow the plaintiff to workfor the interior decoration, partition etc. and in the event the defendants failedto complete the construction in all respects and hand over the possession ofthe premises to the plaintiff on or before 30. 7. 1985 the plaintiff would havethe option to take possession of the said premises and/or sue the defendantsfor damages, if the plaintiff so desires. It is further staled that on 2. 7. 1985the plaintiff approached the defendant No 1 and visited the said premises toascertain the progress of the construction, and it was found that the progressof the construction was not satisfactory. The defendant failed to completethe building by 30/07/1985 as provided in the agreement. The defendantsought 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 dueto certain unavoidable circumstances and labour problems. The plaintiffagreed to this extension of time without prejudice to its rights. Thereaftera notice was given on behalf of the plaintiff on 3. 9. 1985 calling upon thedefendants to complete the said premises by 15. 9. 1985. It is stated that thedefendant failed to complete the building premises by 15. 9. 1985. The plaintiffagreed to this extension of time without prejudice to its rights. Thereaftera notice was given on behalf of the plaintiff on 3. 9. 1985 calling upon thedefendants to complete the said premises by 15. 9. 1985. It is stated that thedefendant failed to complete the building premises by 15. 9. 1985. It is claimedthat the plaintiff in exercise of its right under the agreement and particularlyclause (16) took possession of the said premises on 16. 9. 1985, and thereaftercalled upon the defendant to complete the said premises in all respects to makeit 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, electricalwiring to be laid, window frames and panes to be installed, sanitary fittingsto be installed. It is stated that the defendants did not deliberately complete thepremises and did not obtain the occupancy certificate. By a registered noticethe defendants were called upon to complete the premises. It is stated that byletter dated 16. 9. 1985 the defendant terminated the agreement on the groundsthat the construction was likely to be delayed considerably and the defendantsforwarded the draft of Rs. 50,000. 00 given by the plaintiff to the defendants. The plaintiff alleges that the termination of the agreement by the defendant isillegal, unlawful and malafide and the plaintiff apprehends and has reason tobelieve that the defendant No 1 would try to forcibly dispossess the plaintifffrom the said premises. ( 2 ) ALONGWITH the suit an application, which is under disposal, has beenfiled under Order 39 Rules 1and2 read with Section 151 Civil Procedure Code seeking to restrainthe defendants from dispossessing the plaintiff during the pendency of the suit. The defendant are contesting the claim of the plaintiff. The written statementand reply to this application has been filed. ( 3 ) IT is stated in the written statement that the plaintiff is not inphysicalpossession of the premises or any part thereof: that the plaintiff has notcome to this court with clean hands. On the merits the agreement to lease hasnot been denied. The written statementand reply to this application has been filed. ( 3 ) IT is stated in the written statement that the plaintiff is not inphysicalpossession of the premises or any part thereof: that the plaintiff has notcome to this court with clean hands. On the merits the agreement to lease hasnot been denied. It is stated that as per terms of the agreement otherwiseagreed between the parties the possession for limited purpose of the lease wasto be given by the defendant No 1 to the plaintiff only after the building hadbeen completed in all respects and the relevant certificate for using the occupa-tion of the said commercial building had been issued by the Competentauthorities including Municipal Corporation of Delhi and Delhi Developmentauthority, It is further stated that in accordance with the terms and conditionsof the lease in favour of the defendant No 1, the said plot and the buildingconstructed thereupon could not be put to any use or occupation till the legalformalities had been completed, which could not be completed for the reasonsbeyond the control of defendant No. 1. The time was not the essence of thecontract and without completion of the building the plaintiff could not takerecourse to any of the terms of the agreement. It is further stated that a sumof Rs. 50,000. 00 was paid upon the signing of the agreement and the balance ofrs. 2,50,000. 00 was to be paid at the time of possession of the property to theproperty to the plaintiff. The plaintiff has not paid any amount after theinitial payment of Rs, 50,000. 00 and also committed the breach of the termsof the agreement. It is further stated that the difficulty for not completing thebuilding was related to labour problems, shortage of cement and also heavyrains. The termination of the agreement is justified. ( 4 ) I have heard the learned counsel for the parties and have given mythoughtful consideration to the matter involved. ( 5 ) FOR the purpose of this application the only thing that is to be seenat the present moment is whether the plaintiff is in possession of any portion ofthe premises and if so by what. In order to substantiate the plea of possessionthe plaintiff has placed or record a copy of the letter written to the Stationhouse Officer, Kalkaji, Police Station, dated 16. 9. In order to substantiate the plea of possessionthe plaintiff has placed or record a copy of the letter written to the Stationhouse Officer, Kalkaji, Police Station, dated 16. 9. 1985 herein it is stated thatthe plaintiffs have taken possession of the entire first floor of plot No. 7 inmasjid 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 requestof the plaintiff he visited the first floor of premises No. 7, Masjid Mothcommunity Centre, New Delhi and found that the building was complete in allrespects excepting the window frames and glass panes were to be fixed and nofurniture 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 bythe plaintiff since 16. 9. 1985 to provide security guards at their premises-Firstfloor, building No. 7, Masjid Moth Community Centre, New Delhi on a roundthe clock duty. ( 6 ) THE defendants are contesting the claim of the plaintiff regardingpossession. According to the defendants the premises are not in physicalpossession of the plaintiff but they are in possession of jyoti Theatres Pvt. Ltd. and Maya Builders. The agreement of lease does provide that in theevent of the defendants failing to complete the construction in all respects andhand over the possession of the premises to the plaintiff on or before 30. 7. 1985the plaintiff would have the option to take possession of the premises and/orsue the defendants for damages, if the plaintiff so desires. By virtue of thisclause the plaintiff is empowered to enter into possession but the plaintiff isrequired under Clause 4 of the agreement to pay Rs. 2,50. 000. 00 to the defendantat the time of taking over the possession. ( 7 ) PRIMA facie, it appears that the plaintiff is in possession of thepremises. If the plaintiff is forcibly dispossessed, he is likely to suffer irreparable injury and substantial loss. The balance of convenience is also in favourof the plaintiff and maintaining the status quo. Consequently, the applicationis allowed. The order dated 27. 9. 1985 is confirmed and the defendants arerestrained from dispossessing the plaintiff except in due course of law till thedecision of the suit. However, this order is subject to the condition that theplaintiff would deposit Rs. 2,50,000. 00 in the Court lipto 15. 7. 1987. Consequently, the applicationis allowed. The order dated 27. 9. 1985 is confirmed and the defendants arerestrained from dispossessing the plaintiff except in due course of law till thedecision of the suit. However, this order is subject to the condition that theplaintiff would deposit Rs. 2,50,000. 00 in the Court lipto 15. 7. 1987. I. A. isdisposed of.