{"id":54228,"date":"1998-10-28T00:00:00","date_gmt":"1998-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-s-mani-vs-s-ravi-others-on-28-october-1998"},"modified":"2015-12-05T09:28:24","modified_gmt":"2015-12-05T03:58:24","slug":"r-s-mani-vs-s-ravi-others-on-28-october-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-s-mani-vs-s-ravi-others-on-28-october-1998","title":{"rendered":"R.S. Mani vs S. Ravi & Others on 28 October, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
R.S. Mani vs S. Ravi & Others on 28 October, 1998<\/div>\n
Equivalent citations: 1999 IIAD Delhi 832, 77 (1999) DLT 335, (1999) 121 PLR 63<\/div>\n
Author: S Mahajan<\/div>\n
Bench: S Mahajan<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.K. Mahajan, J. <\/p>\n
1.      This  order  will dispose of the application of  the  plaintiff  under Order  39,  Rules 1 & 2, CPC for an injunction restraining  the  defendants from  in any manner preventing\/obstructing or hindering the plaintiff,  his family  members or his servants and agents to the peaceful use and  occupation  of the suit premises on the top floor above the second floor  of  the property  bearing No. D-296, Sarvodaya Enclave, New Delhi, as shown in  the plan. The facts in brief are:\n<\/p>\n
 2.   That the plaintiff was the owner of the plot bearing No. D-296, Sarvodaya  Enclave,  New Delhi; to re-develop the building on the said  plot  of land,  the  plaintiff entered into an agreement on September 9,  1992  with M\/s. Ranjeet Combine; in terms of the agreement the Developer was to  build the  residential dwelling units on the ground, first and second  floor  and the  basement of the building with servant quarters as per  the  sanctioned plan  of the Municipal Corporation of Delhi. That in consideration  of  redeveloping the said property the plaintiff was to sell, transfer and convey to  the Developers or their nominees rights on the first and second  floors of the property with proportionate land rights. It is further stated in the plaint  that subsequent to the construction of the building  the  Developer sold  the  first and second floors of the property to defendants  2  and  3 respectively and the plaintiff was a confirming party thereto. That dispute arose  between the parties in respect of the user of the terrace above  the second  floor. While the case of the plaintiff is that none of the  defendants  have any right on the terrace above the second floor of the  property as defendants have rights only on the floors which have been sold to  them, the  case  of the defendants is that after the transfer of  the  first  and second  floor of the property by the plaintiff he divested himself  of  all rights above the ground floor and the terrace was exclusively meant for the use and enjoyment of the occupants of the first and second floor.\n<\/p>\n
 3.   To  appreciate  the rival contentions of the parties one may  have  to look to two agreements, namely: (1) the agreement entered into between  the owner  and the Builder; and (2) the Agreement of Sale entered into  between the  Builder and the defendants. Some of the terms of the  Agreement  dated 9.9.1992 entered into between the plaintiff and the Builder were as under:\n<\/p>\n
   “6.  That  owners agree to sell, transfer and convey to  the  Developers or their nominee(s) rights, for First and Second  Floors  with  proportionate land rights in the consideration of  the  Developers  developing  Basement, Ground, First and  Second  Floors      plus the consideration of Rs. 8,50,000\/- (Rupees eight lacs fifty thousand only). The interest in the land will be available to the  prospective purchaser proportionately.\n<\/p>\n
      7.   That  the  owners undertake irrevocably  to  constitute  the Developers  or  their  nominee(s) as their  general  attorney  by  separate document for negotiating and finalising sale\/transfer of First  and  Second  Floor with usage of terrace  rights  and  for  submitting   applications  requisitions,  approvals,   sanctions, documents of building or other material statutory to be done  and   performed  in  connection with the development  construction  and completion of the said residential building. The owner will apply   and  obtain the Income Tax Clearance Certificate on the basis  of the consideration in the name of the nominee(s) intimated by  the  developers  for  the First and Second Floor Units  at  their  own cost.\n<\/p>\n
      9.   That the Developer shall always be fully competent to settle terms  for the transfer of their First and Second Floor  dwelling units with common terrace in the building and proportionate  land underneath  to any person(s) at any time either during  or  after  the building is fully completed and Developers can enter into the Agreement  to sell for the sale of Developers portion and  accept  cash,  cheques,  pay order, drafts etc. from all  such  would  be transferees  in their Developers own name and at their  own  risk  and responsibilities and can issue Receipts for all such  payment made  to him. In this context, the owners herein  agree,  declare  and record that they shall always join in all such Agreements for sale\/conveyance  deeds to be given to prospective unit buyers  of  the  Developers portion on such terms as the Developers may  deem fit at their absolute discretion.\n<\/p>\n
      15.  That after the development and construction of the  building mention   herein   above  for  the  portion  allocable   to   the   Builders\/Developers  i.e. complete First and Second  Floors,  the owners also undertake to give powers of Attorney to the  Developers or their nominee(s), to take necessary permission to  his\/her name  and  on  his or her behalf and execute  the  instrument  of  transfer\/Sale deed(s) agreement)(s), and get these registered  in the  office of the Sub-Registrar, New Delhi for the  portion  allocable  to  the Developers. The Developers can also  obtain  the Income  Tax  Clearance Certificate under Section 230A(I)  of  the
\n     Income  Tax Act,1961 and other permissions, if and when  required on  behalf of the owner for transfer of the portions  falling  to   the share of the Builder\/Developer.”\n<\/p>\n
 4.   The  terms  of  the Agreement to Sell dated 31.5  .1996  entered  into between  the  Builder and defendants 1 and 2 to which the plaintiff  was  a confirming party and on which reliance has been placed by both the  parties are as under:\n<\/p>\n
     “1.  That the first party and confirming party both hereby  agree to grant, convey and transfer all the rights, titles and interest  in  the Second Floor of the building at D-296 Sarovdaya  Enclave, New Delhi (hereinafter referred to as the said premises) with the   proportionate  share of land underneath the said building on  the terms and conditions herein contained.\n<\/p><\/blockquote>\n
      2.   That in consideration of the said sum of Rs.12 lacs  (Rupees twelve  lacs  only) being received by the First  Party  from  the  Second  Party, the receipt of which the First Party  acknowledges and  admits  First Party hereby hand over the said  Second  Floor  premises alongwith the proportionate share of the land thereunder unto  the Second Party absolutely and forever and the  Confirming   Party  agrees\/ratifies the same. The schedule of payment  by  the Second Party to the First Party is appended to this agreement.\n<\/p><\/blockquote>\n
      3.   That the first party and confirming party assured the second party  in  respect of the said premises comprising of  three  bed   rooms and a drawing dinning built on the Second Floor of Plot No. D-296,  Sarvodaya Enclave, New Delhi – 110 017 together with  the   proportionate land underneath on land measuring 300 sq. yds. that the  confirming party are the sole absolute owners of all  rights   and  that the said premises agreed to be sold herein is not  subject to any charges, mortgages, liens, attachment and that  there  is no dispute\/litigation injunction and that the first party  and the confirming party have full and unrestricted right to sell and   transfer  the said premises to the second party as free from  all encumbrances  and liens such as prior sale, mortgage,  attachment  etc. and that the first party is always competent to settle terms for the transfer of the said premises alongwith the proportionate  land underneath and the confirming party agrees to always join in all  such  agreements for sale\/conveyance deeds. That  the  first  party   has  the  sole  and  exclusive  right  to  alienate   and receive\/retain the consideration amount accruing from this agreement by virtue of the first party’s collaboration agreement dated 9.9.1992  with the confirming party and that if the second  party  suffers  any  loss on account of this statement  then  the  first party shall make good the said loss.\n<\/p><\/blockquote>\n
     4.   That the physical vacant possession of the said premises has been  handed over to the second party to its entire  satisfaction  at  the time of signing of this agreement by the first party  and the  confirming party and it has already been agreed  and  understood  by all parties to this agreement, namely the first  party, the  second party and the confirming party, that  the  drive-way,  from  the front gate and with the passage leading to entrance  of the  front  ground floor shall be used by the  confirming  party. However  the second party shall have access to this drive-way  at any point of time for repair and maintenance of i.e. the pump and   water tank, electricity and sewage etc.”\n<\/p><\/blockquote>\n
 5.   It is submitted by the learned Counsel for the plaintiff that as  only the  first  and the second floors have been transferred to  the  defendants they  cannot interfere with the right of the plaintiff to use the  terrace. Before filing the suit the plaintiff had on October 7, 1996 given a  notice to  defendant No. 4 informing him that only the residential dwelling  units on the first floor of the said property had been transferred to him  along-with proportionate share in the land thereunder and that the terrace rights above the second floor in the property had not in any manner been  conveyed
\nto  him  either by the Builder\/Developer or by the plaintiff and  the  said defendant was, therefore, called upon to cease and desist from  interfering with  the  plaintiff’s lawful possession and continuous  enjoyment  of  the terrace  above the second floor of the property. Reply to this  notice  was sent  by the said defendants and while not denying the claim of the  plaintiff  that the terrace rights above the second floor in the  property  were not  conveyed  to him; the said defendant in the reply stated “that  it  is misleading  and denied that the agreement dated 31.3.1996 executed by  your client  (plaintiff) is not in accordance with the text and spirit  of  your client’s (plaintiff’s) agreement with the Developer dated 9.9.1992. In fact your  client (plaintiff) unlawfully forced us (defendant No. 4) to sign  an agreement  dated  31.5.1996  under the threat of refusing  to  execute  the document  throwing all the canons of conventional practice and law  to  the winds,  thus  denying  our lawful use.” From this reply it  is  clear  that defendant No. 4 did not deny the contention of the plaintiff that under the agreement the defendant had no right to use the terrace. Again in paragraph 2 of the preliminary objection in the written statement filed by defendants 1 and 2 it was stated by them as under:\n<\/p>\n
       “2.  In  pursuance  of  the said  Collaboration  Agreement  dated      9.9.1992,  the  Plaintiff has transferred his rights,  title  and   interest  in respect of the First and Second Floors  with  commonterrace  and proportionate land underneath to M\/s.  Ranjeet  Combine,  for a consideration of Rs. 8,50,000\/- (Rupees  eight  lakh fifty thousand only). The said right so conveyed to M\/s.  Ranjeet  Combine, has not been transferred back by them to the  Plaintiff, hence the Plaintiff is not entitled to institute and maintain the  present suit and the same is liable to be dismissed on this short ground.”\n<\/p>\n
 6.   Mr. Nayyar contends that the word common terrace appearing in Clause 9 means  that  the terrace was common to the occupants of  first  and  second floors  only and the occupants of the ground floor or the  mezzanine  floor had no right whatsoever on the terrace. It is also contended by Mr.  Nayyar that  under  Clause 4 of the agreement to sell dated  31.5.1996  confirming party  has  reserved to itself only the right to drive-way from  the  front gate with the passage leading to the entrance of the front ground floor and that in case the intention of the plaintiff was also to reserve a right  to the terrace of the building it should have been so mentioned in Clause 4 of the agreement.\n<\/p>\n
 7.   It is also the contention of Mr. Rajiv Nayyar, Senior Counsel  appearing  for the defendants that a perusal of Clauses 6 and 9 of the  Agreement dated 9.9.1992 shows that it was only the Developer or his nominee who  had a  right  on  the first and second floors of the property as  well  as  the terrace  thereon. In paragraph 7 of the aforesaid agreement dated  9.9.1992 the owner has undertaken irrevocably to constitute the Developers or  their nominees as their General Attorney by separate document for negotiating and finalising  sale\/transfer of first and second floors with user  of  terrace
\nrights  and  for  submitting applications etc. Admittedly,  this  Power  of Attorney  was never given by the owner to the Developer. In any case,  what has been stated in this Clause 7 is that the Developer or his nominee  will have  a  right  to negotiate and finalise sale\/transfer of  the  first  and second  floor with uses of terrace rights. Again in Clause 9 of the  agreement the Developer has been given the right to settle terms for the  transfer of their first and second floors dwelling units with common terrace  in the building and proportionate land underneath to any person.\n<\/p>\n
 8.   A plain reading of paragraph 2 of the preliminary objections taken  in the  written statement by defendants 1 and 2 show that the said  defendants have not set up their exclusive right to use the terrace but what has  been stated is that under the Collaboration Agreement dated 9.9.1992 the  plaintiff had transferred his rights, title and interest in respect of the first and second floors with common terrace and proportionate land underneath  to M\/s. Ranjeet Combine (Developer). The stand, therefore, taken in the  written statement is that the terrace was common.\n<\/p>\n
 9.   I  am unable to agree with Mr. Nayyar that in Clause 4  the  plaintiff has  reserved  to himself only the right on the drive-way. Reading  of  the agreement  prima facie shows that what has been given to the defendants  is so mentioned in Clause 4 of the agreement and not what has been reserved by the  plaintiff to himself. In case the said defendant was given the  exclusive right to use the terrace it should have been so mentioned not only  in the agreement to sell but also in the Collaboration Agreement entered  into with the Developer.\n<\/p>\n
 10.  For  the foregoing reasons, this Court is of the prima  facie  opinion that the terrace in question, namely, the top floor above the second  floor of the property bearing No. D-296, Safdarjung Enclave, New Delhi was  meant for  common user of the occupants of the property including the parties  to the  suit and none of the parties, prima facie, have the right to  use  the same  to the exclusion of the other occupants of the property. None of  the parties  to the suit, therefore, can interfere with the right of the  other to use the terrace till the final decision of the suit.\n<\/p>\n
      With these observations, the application stands disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court R.S. Mani vs S. Ravi & Others on 28 October, 1998 Equivalent citations: 1999 IIAD Delhi 832, 77 (1999) DLT 335, (1999) 121 PLR 63 Author: S Mahajan Bench: S Mahajan JUDGMENT S.K. Mahajan, J. 1. This order will dispose of the application of the plaintiff under Order 39, Rules 1 & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-54228","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nR.S. Mani vs S. Ravi & Others on 28 October, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-s-mani-vs-s-ravi-others-on-28-october-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.S. Mani vs S. 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