JUDGMENT : 1. Heard the learned counsel for the appellant. 2. This appeal is directed against the Judgment and decree dated 19.12.2007 passed by the learned Sub Judge –II, Ranchi, in Title Suit No. 179 of 2004 by which the learned court below dismissed the suit on contest with cost. 3. The case of the plaintiff in brief is that the plaintiff is a Private Limited Company registered under the Companies Act, 1956 and doing development and construction work as promoter. The plaintiff constructs multistoried buildings and upon completion of construction transfers the same by way of sale in favour of prospective purchasers by the owners of the land in terms of the covenants. It is the further case of the plaintiff that in terms of the development agreement dated 19.02.1997 between the plaintiff and the land owners, the plaintiff inter alia constructed a multistoried building namely Hari Heritage. The defendant-purchaser agreed to purchase flat nos. 203 and 204 in Hari Heritage within City Complex and entered into an agreement dated 21.01.1999 with the plaintiff. Consequent upon the said agreement, the defendant took possession of the said flat on 12.04.2002 but behind the back of the plaintiff without the knowledge or consent of the plaintiff made additions and alterations in flat nos. 203 and 204 in her possession in the said Hari Heritage Block of City Complex contrary to approved plan in utter violation of covenants contained in Clause-21 of the said agreement dated 21.01.1999. Further it was pleaded by the plaintiff that the defendant in utter breach of the covenants contained in clause 17, 18 and 19 of the said agreement dated 21.01.1999 occupied the common space by her act of fixing an iron gate having its opening on the common space and in utter disregard and breach of the covenants contained in Clause – 23 of the agreement has been running a commercial coaching institute in the said building in name and style of “Ala Kata” in the flats under her occupation and imparting coaching to the students in batches throughout the day and night instead of using the flats exclusively for residential purposes as per the clause-23 of the said agreement and also creating nuisance inside the building premises by threats and acts of the young students to whom she imparts coaching. Though the defendant has been repeatedly requesting the plaintiff to stop running the coaching classes in the flats under her occupation and to remove the unauthorized construction and also to remove the iron gate fixed having its opening to the common place and to facilitate peaceful enjoyment of their respective flats by their owners but the defendant did not pay any heed to such request of the plaintiff and taking advantage of the post of her husband as the Secretary of the Flats Association went on continuing her illegal acts, for her gain, in violation of the terms of the said agreement and caused loss and injury to the plaintiff as well as to the land owners. The defendant further instigated others to act in contravention of the covenant of the agreement. It is also the case of the plaintiff that the plaintiff with the consent and desire of the land owners terminated the agreement dated 21.01.1999 entered into between the plaintiff and the defendant and notified the termination of the said agreement of the defendant in terms of notice dated 04.06.2004 through lawyer which was sent and served upon the defendant by registered post with A/D. The plaintiff has prayed for declarations that:- (i) The defendant did and acted in violation of her agreed covenants contained in agreement dated 21.01.1999. (ii) The termination of the said agreement dated 21.01.1999 in terms of the notice dated 04.06.2004 is legal, valid and binding upon the defendant. (iii) After termination of the said agreement dated 21.01.1999 the defendant is only entitled to get back the consideration amount with interest normally paid by the nationalized bank. (iv) and other reliefs. 4. After notice, the defendant entered appearance and besides usual defence, the defendant pleaded that she replied to the legal notice dated 04.06.2004 and subsequently filed a complaint case on 12.08.2004 before the District Consumer Forum and this Suit has been filed by the plaintiff on 19.09.2004 in order to create mental agony and harassment to the defendant. The defendant further pleaded that the construction of the City Complex was belatedly completed by the plaintiff and the possession was not given in due time. The defendant further pleaded that the construction of the City Complex was belatedly completed by the plaintiff and the possession was not given in due time. The defendant further pleaded that the plaintiff has not made transfer of even a single flat by execution of registered sale deed in respect of any purchaser irrespective of the fact that the purchasers have violated the covenant of the agreement. Though it has been agreed to between the plaintiff and the defendant as per the said agreement dated 21.01.1999 that the plaintiff will hand over the flat to the defendant by the end of June, 1999 but the possession of the flat was given to the defendant on 12.04.2002. The defendant denied that the said agreement vested any power upon the plaintiff to terminate the agreement unilaterally. The defendant further denied occupation of any common place by her by fixing any iron gate. The defendant further pleaded that a collapsible grill gate has been fixed at the entrance of her flat for safety purposes and the plaintiff never requested the defendant to stop running coaching classes or to remove unauthorized construction and the grill gate because there was no occasion for such request at all. The defendant further pleaded that there is no consent of the landlord and the plaintiff has also got no power or authority to terminate an agreement unilaterally. It is the further case of the defendant that after payment of full and final consideration of Rs.12,35,000/-, the defendant repeatedly requested the plaintiff to execute sale deed but the plaintiff did not act upon the said request of the defendant and kept avoiding the request of the defendant on one pretext or the other which led the defendant to file Consumer Complaint No. 247 of 2004 before the District Consumer Forum, Ranchi, which was ready for final argument on the date of filing of the written statement and the plaintiff has deliberately suppressed the pendency of the said case in the plaint. 5. On the basis of the rival pleadings, the learned court below framed the following issues:- (i) Is the suit maintainable in its present form? (ii) Is there any cause of action for the suit? (iii) Is the suit barred by Law of Limitation? (iv) Is the suit barred by Res judicata? (v) Is the suit barred by estoppel? 5. On the basis of the rival pleadings, the learned court below framed the following issues:- (i) Is the suit maintainable in its present form? (ii) Is there any cause of action for the suit? (iii) Is the suit barred by Law of Limitation? (iv) Is the suit barred by Res judicata? (v) Is the suit barred by estoppel? (vi) Is the suit barred by Sec -27 of Specific Relief Act? (vii) Is the suit Res-sub judice? (viii) Is the suit undervalued as the market price of the suit properties are more than Rs.15,00,000/-? (ix) As to whether defendants did not act in violation of the agreed Covenants as contained in agreement dated 21.01.1999 entered in between the parties? (x) As to whether the termination of agreement dated 21.01.1999 entered in between the plaintiff and the defendant in terms of Notice dated 04.06.2004 is legal, valid and binding upon the defendant and defendant is only entitled to get back of the consideration amount with interest as per Notice dated 04.06.2002? (xi) As to what relief or reliefs the plaintiffs are entitled to? 6. In support of his case, the plaintiff altogether examined seven witnesses and also proved the following documents which have been marked as Exhibits: - (i) Ext.1 – Sanction plan from R.R.D.A. (ii) Ext.2 – Notice dated 04.06.2004. (iii) Ext.2/1 – Reply of Notice dated 16.06.2004. (iv) Ext.3 – Agreement dated 21.01.1999. 7. From the side of the defendant altogether three witnesses were examined and the following documents were proved and marked as Exhibits:- (i) Ext. A – Letter of Possession dated 12.04.2002. (ii) Ext. B to B/7 – Xerox copy of Money Receipts. (iii) Ext. C to C/1 – Letter dated 25.07.1999 and 16.11.1999. (iv) Ext. D – Letter dated 28.08.2000. (v) Ext. E – Approved plan by Architect Rajeev Chadda. (vi) Ext. F – Letter dated 05.06.2004. (vii) Ext. G to G/1 – Govt. Notification No. 140 & 141 dated 31.05.2004. 8. The learned trial court after considering the evidence both oral and documentary available in the record found that the defendant has not acted in violation of her agreed Covenants as contained in the agreement dated 21.01.1999 and termination of agreement dated 21.01.1999 by the advocate of the plaintiff is illegal, invalid and not binding upon the defendant and answered the issue no. IX and X accordingly. IX and X accordingly. The learned court below also came to a finding that the suit has been filed with an ulterior motive for a decree of the court on illegal termination of the agreement, hence the plaintiff is not entitled to rescission of the agreement dated 21.01.1999 and answered the issue no. VI accordingly. The learned court below, considering the fact that the alterations were made in the said flats before handing over the possession of the flats to the defendant, held that the suit is hit by promissory estoppel and answered the issue no. V accordingly. The learned court below further held that the suit is properly valued and that the suit is not barred by res-judicata nor the same is res-subjudice and thus answered issue nos. III, IV, VII & VIII. Basing upon the findings of the other issues, the learned court below answered issue no. I, II and XI against the plaintiff and dismissed the suit as already indicated above. 9. Ms. Shreshtha Mehta, the learned counsel for the appellant submitted that the learned court below failed to appreciate the evidence in record in its proper perspective and delivered the judgment basing upon conjuncture and surmises. It is, further, submitted that the learned court below did not consider the terms of the agreement dated 21.01.1999 and misdirected itself by giving undue importance to the Ext. F, though the scribe of the said document was not examined as a witness in this case. Hence, it is submitted that the impugned judgment and decree being not sustainable in law be set aside and the suit of the plaintiff be decreed. 10. In view of the submissions made by the learned counsel for the appellant, the point for determination which crop up in this appeal is:- Whether the learned court below has properly appreciated the evidence in the record and rightly dismissed the suit? 11. Out of the seven witnesses examined by the plaintiff, P.W.1-Rajesh Kumar is one of the watchmen in the City Complex where the flats in question is situated, the other watchman being Nirala Rai- the P.W.5 of this case. P.W.1 has stated that the defendant is running an educational institution and many girls assembled in her flat. The environment of the complex was getting polluted because of running of educational institution by the defendant. P.W.1 has stated that the defendant is running an educational institution and many girls assembled in her flat. The environment of the complex was getting polluted because of running of educational institution by the defendant. The residents of other flats used to complain and chide the P.W.1. One of the grill gate of the defendant is opening to the common place causing inconvenience to the persons residing in the concerned block and also to the visitors while using the lift. All of them used to complain and chide the P.W.1. P.W.1 has further stated that the defendant has made alteration inside the house which was not originally there. In his cross-examination the P.W.1 has stated that he does not know whether the girls give any money or not to the defendant. He cannot say who has installed the grill gate in the flat of the defendant and such grill is only in the flat of the defendant. The defendant is occupying the said house before the P.W.1 was engaged as a guard. 12. P.W.2-Dr. Rajat Roy is the owner-allottee of one of the flat bearing flat no.202. He stated that he let out the said flat on rent. As per the condition of the agreement, the flat is to be used only for residential purposes. The flat nos. 203 and 204 is just in front of his flat. The defendant is running a business establishment in her flat from morning to night by which the environment of the flat complex is getting polluted. On being annoyed by such business activity of the defendant, two of the tenants of the P.W.2 have vacated his flat. One grill gate of the defendant is opening to the common place which causes inconvenience to the persons using the lift. P.W.2 was the president of Hari Heritage flat association of City Complex for one year and he came to know that the defendant has altered the interior of her flat in contravention of the sanctioned plan. In his cross-examination, he has stated that he has seen the boys coming and going there. Whenever the P.W.2 or his wife remained at their flat, the boys ring their door bell which causes inconvenience to him. In his cross examination the P.W.2 stated that he cannot say what the sanctioned plan of the City Complex is. The guards have intimated him about the alteration made by the defendant. Whenever the P.W.2 or his wife remained at their flat, the boys ring their door bell which causes inconvenience to him. In his cross examination the P.W.2 stated that he cannot say what the sanctioned plan of the City Complex is. The guards have intimated him about the alteration made by the defendant. P.W.2 has not seen any alteration himself. The defendant carried out the alteration after purchase of the flat but the P.W. 2 has never entered inside the flat of the defendant. When the husband of the defendant was the secretary of the society, one room which was constructed in contravention of the sanctioned plan was demolished. The grill of the defendant is a collapsible grill. During the tenure of his presidency, he never complained against the defendant in respect of running any coaching institute as the same was not within his jurisdiction. He cannot say whether the builder ever restrained the defendant from running the coaching institute. 13. P.W.3- Vinay Airat is a tenant of one of the flats of Hari Heritage in the said City Complex. P.W.3 stated that the defendant is running one coaching institute namely ‘Alakata’ in her flat by which the environment of the premises is getting polluted. The defendant has changed the structure of her residential house and has made arrangement for opening the grill gate towards common space outside which causes inconvenience to the residents of other flats as well as user of the lift. In his presence, the defendant was told to stop his commercial activity but she did not stop. In his cross-examination, he has stated that he was a tenant in the City Complex from the year 2001 to 2006 and the defendant was residing there before the P.W.3 was inducted as a tenant. Both, boys and girls were coming in batches for coaching but the P.W.3 has never entered inside the classroom. The guard of the flat told him that one institute namely ‘Alakata’ is running there. The day before his adducing evidence in the court, the P.W.3 went to the complex in the night hence, he cannot say whether the coaching institute is running there or not. The boys and girls were going to the terrace hence, they have to close the doors, as they were making noises. In September 2003, one day in the morning, the plaintiff told the defendant to close the coaching institute. The boys and girls were going to the terrace hence, they have to close the doors, as they were making noises. In September 2003, one day in the morning, the plaintiff told the defendant to close the coaching institute. In paragraph no.15 of his deposition, he has stated that he has no knowledge about the coaching which is similar to the contents of paragraph no.5 of his deposition wherein, it has been mentioned about the running coaching institute in the said premises. A grill has been fixed which opens outside where the defendant was making an interior construction. The P.W.3 went there. The interior construction was going on in the year 2000 in the month of January but at that time, the defendant was not occupying the said flat. The P.W.3 does not know since when the defendant occupied the said flats. The P.W.3 cannot say whether the builders themselves handed over the possession after changing the interiors or not. He cannot say whether the grill gate was installed by the builders or not. 14. P.W.4- Nageshwar Roy has stated that the defendant is running one coaching institute namely ‘Alakata’ by which the environment of the premises is getting polluted. Ignoring the objections, arbitrarily, the defendant has changed the structure of her residential house and made arrangement for opening the grill gate towards outside causing inconvenience to the residents of the flats and users of the lift. In his cross-examination, he has stated that he works as an overseer of the flat. Hari Heritage was ready after construction in the year 2002 and the defendant has started residing there since April 2002. No board has been affixed there. The boys and girls in 4 to 6 batches came there for learning. The defendant has made changes in the flat after the same was handed over for the purpose of her residence, by breaking the divider wall. The defendant has made one hall like room. He further stated that in between flat nos. 301 and 302, the owner has fixed mirrors after the same was handed over to him with the consent of the builder. The defendant made internal changes in October-November 2002. P.W.4 protested the same, and the builder also protested the same. Sri Rajeev Chadda is the architect of the building. A grill gate has been affixed by the defendant herself. 15. The defendant made internal changes in October-November 2002. P.W.4 protested the same, and the builder also protested the same. Sri Rajeev Chadda is the architect of the building. A grill gate has been affixed by the defendant herself. 15. P.W.5- Nirala Rai has stated that the defendant has arbitrarily changed the structure in one of the two flats and made arrangement for opening the grill gate in the common place which causes inconvenience to the users of the lift. In his cross-examination, he has stated that he has been employed as a guard in the said Hari Heritage since the time of the construction. He cannot say since which year he was employed as a guard. He cannot say whether after taking possession of the flat, the defendant made any construction over the same. He has never seen any work being done inside the flat. He cannot say who has installed the grill gate in front of the flat of the defendant. The defendant has not affixed any board there. He has gone inside the flat of the defendant and one week prior to his deposing in court, he went inside the flat but he did not see any change in the said flat after the possession of the same was handed over to the defendant. The grill gates have also been fixed in other flats. Boys never go inside the class but they stand outside. The grill fixed in other flats also causes inconvenience to people. 16. P.W.6- Saurav Aikat has stated that the defendant is running a commercial business from her flat because of which the environment is getting polluted and the defendant is also using the common place, for her own house, causing inconvenience to the occupants of the flats. In his cross-examination, he has stated that he is the occupant of flat nos. 301 and 302. After the permission of the builder, the dividing wall of the said two flats was removed to inter connect both the flats. The builder has removed the wall. The R.R.D.A. has seen the wall which was removed but they did not have any objection. P.W.6 could not say that in how many days in a week, the coaching classes are being run. He does not know whether the defendant received any money from the students for the coaching classes. The builder has removed the wall. The R.R.D.A. has seen the wall which was removed but they did not have any objection. P.W.6 could not say that in how many days in a week, the coaching classes are being run. He does not know whether the defendant received any money from the students for the coaching classes. The defendant also imparts coaching of painting but he does not know whether for painting classes, any money was collected or not. P.W.6 has not seen the plan and map of the flat of the defendant but the defendant has changed the entire structure. The defendant has two flats and she has made her own design and made her own construction. The construction was made by the defendant before taking possession of the flats. He cannot say whether the builders ever objected to such construction. The builder is a partner of the wife of the P.W.6. 17. P.W.7-Amarjeet Bedi is the Managing Director of the plaintiff. He has corroborated the averments made in the plaint. In his cross-examination, he has stated that in January 2004, he become the Managing Director of the plaintiff. At the time of agreement with the defendant, his father was the Managing Director. The defendant made addition and alteration about four months after taking possession over the possession of the same. 18. Out of the three witnesses examined by the defendant, D.W.1-Ratna Dev is the defendant herself. She has corroborated the averments made in her written statement. She has stated that she opened one coaching class in the year 1986 but she stopped that in the year 1994 because of her Kidney ailments. In 2004 she opened hobby classes for which the Hari Heritage flat owners accorded their “No Objection Letter” and supported it and that also she has closed since 2005. She has been continuously requesting the builder to execute the registered sale deed and ultimately in June 2004, she sent legal notice. Nothing has been elicited in her cross-examination to discredit her testimony. 19. D.W.2-Niranjan Deb Chaudhary is the husband of the defendant. He has also corroborated the averments made in the written statement and proved the documents which have been marked as Exhibits. Nothing important was elicited in his cross-examination. 20. D.W.3- Tarak Singh Ray was one of the invitee at the time of Grihaprabesh of the defendant in the said flat. 19. D.W.2-Niranjan Deb Chaudhary is the husband of the defendant. He has also corroborated the averments made in the written statement and proved the documents which have been marked as Exhibits. Nothing important was elicited in his cross-examination. 20. D.W.3- Tarak Singh Ray was one of the invitee at the time of Grihaprabesh of the defendant in the said flat. He stated that he has never observed any physical changes in or outside the flats of the defendant. In his cross-examination, he stated that he has gone to City Complex 3 to 5 times but he cannot say the dates nor he can produce any invitation card of the function of Grihaprabesh. 21. Having heard the submissions made at the bar and after going through the records, I find that the plaintiff claims right has accrued to it for terminating the agreement dated 21.01.1999 in terms of the notice dated 04.06.2004 basically for three reasons, first is that the defendant is using the flat for commercial purpose and thereby polluting the environment of the premises. Second is that defendant has carried out addition and alteration after taking possession of the flats and third is that the defendant fixed an iron gate at the entrance of the flat which opens to the common space causing inconvenience to the residents of the flats of the complex and the users of the lift. After going through the evidence as discussed above, P.W.1 has categorically stated that he cannot say who has fixed the grill gate nor he could say about any collection of any money by the defendant from the students. There is contradiction in the testimonies of the witnesses of the plaintiff regarding the opening of the grill gate as some of them have categorically admitted that the grill gate is a collapsible one, so it remains incongruous that how a collapsible gate can open outside the common place. So far as the testimony regarding the witnesses of the plaintiff regarding use of the flat for commercial purpose is concerned, there is contradiction in the testimony of the witnesses of the plaintiff as already indicated above as to whether only girls or both the girls and boys were attending classes or only the girls were attending the classes and boys are staying outside as the different witnesses as indicated above; has stated different versions in this respect. So far as the addition or alteration in the flat after taking possession of the flats is concerned, the witnesses of the plaintiff has categorically admitted that the said construction was made before the defendant coming into possession of the said flats. So I have no hesitation in holding that the evidence in the record is insufficient to establish any of the grounds for terminating the said agreement dated 21.01.1999 entered into between the plaintiff and the defendant and so far as the competency of the plaintiff to terminate the agreement is concerned, admittedly the plaintiff is a private limited company so there is no evidence in record regarding any resolution made by the company or any authority conferred upon the Advocate concerned who issued the notice of termination to do so on behalf of the plaintiff. In the absence of such essential evidence in record, it can very well be said that the Advocate who is not part of the plaintiff certainly cannot terminate the agreement on behalf of the plaintiff in the absence of any specific resolution authorizing him to do so and moreover the plaintiff has certainly suppressed the pendency of the earlier consumer case filed by the defendant and thus has not come to Court with clean hands. 22. In view of the discussion made above, I have no hesitation in holding that the plaintiff has failed to prove its case and this is a fit case where the suit of the plaintiff be dismissed. 23. Accordingly, the impugned Judgment and decree dated 19.12.2007 passed by the learned Sub Judge –II, Ranchi, in Title Suit No. 179 of 2004 is affirmed and this appeal being without any merit is dismissed but in the circumstances without any costs. 24. Let the Lower Court Record be sent back to the learned court below along with a copy of this judgment forthwith.