Shri Romi Garg v. Bdr Builders & Developers Pvt. Ltd. & Ors

RAJIV SAHAI ENDLAW, J. MARCH 14, 2018 SRwt..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 14th March, 2018 + CS(OS) 14/2018 SHRI ROMI GARG .... Plaintiff Through: Mr. Brij Bhushan Gupta, Sr. Advocate, Ms. Nandni Sethi, Adv. Versus BDR BUILDERS & DEVELOPERS PVT. LTD. & ORS ...Defendants Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No. 3532/2018 (of the plaintiff under Section 151 of the CPC for modification of the order dated 16th January, 2018). 1. The plaintiff has instituted CS(OS) No. 109/2017 against the defendant No.2 Lalit Modi for specific performance of an Agreement to Sell dated 9th July, 2012 as modified on 14th July, 2016 by the said defendant No. 2 Lalit Modi of property No. 32, Vasant Vihar, New Delhi to the plaintiff. Vide ex parte order dated 6th March, 2017 in the said suit, the defendant No. 2 Lalit Modi has been directed to maintain status quo with regard to title, status of construction and possession of the said property. 2. The plaintiff instituted this suit, pleading to have learnt (i) that the defendant No. 2 Lalit Modi had executed an Agreement to Sell and Receipt, both dated 24th June, 2014, in favour of defendant No. 1 BDR Builders and Developers Private Limited; (ii) that the defendant No. 2 Lalit Modi had also executed a registered GPA and Will both dated 10th February, 2016 registered on 12th February, 2017 in favour of defendant No.1; (iii) that in accordance with the arbitration clause in the said Agreement to Sell, the defendant No. 3 Naresh Gupta has rendered an Arbitral Award dated 12th January, 2017; (iv) that a petition being OMP (I) No. 3/2017 has been filed by the defendant No.1 BDR Builders and Developers Private Limited against the defendant No. 2 Lalit Modi under Section 9 of the Arbitration and Conciliation Act, 1996, in this Court. Pleading, that the Agreement to Sell, GPA and Will with respect to the property, executed by the defendant No. 2 Lalit Modi in favour of defendant No.1 BDR Builders & Developers Pvt. Ltd. are of a date subsequent to the Agreement to Sell dated 9th July, 2012 modified on 14th July, 2016 by the defendant No. 2 Lalit Modi with respect to the said property in favour of the plaintiff and are fabricated and bogus and intended to prejudice the rights of the plaintiff, reliefs of (a) declaration as null and void of the said Agreement to Sell, GPA and Will executed by defendant No. 2 Lalit Modi in favour of defendant No.1 BDR Builders and Developers Private Limited as well as the Arbitral Award dated 12th January, 2017; (b) declaration that the plaintiff continues to have rights in the said property by virtue of Agreement to Sell dated 9th July, 2012 as modified on 14th July, 2016 and the said rights of the plaintiff remain unaffected by the documents subsequently executed by defendant No. 2 Lalit Modi in favour of defendant No.1 BDR Builders and Developers Private Limited; (c) cancellation of the Agreement to Sell, GPA, Will and Arbitral Award; and, (d) permanent injunction restraining the defendants from acting in pursuance to their design and from further dealing with the property, were claimed in this suit. 3. The suit came up first before this Court on 16th January, 2018 when, finding (a) that the gravamen of the case of the plaintiff was that the defendant No. 2 Lalit Modi having entered into a prior Agreement to Sell with the plaintiff, subsequent documents in favour of defendant No.1 BDR Builders and Developers Private Limited are null and void; and, (b) that the plaintiff had already instituted CS (OS) No.109/2017 for specific performance of the Agreement to Sell in its favour, attention of the senior counsel for the plaintiff was drawn to Lala Durga Prasad Vs. Lala Deep Chand AIR 1954 SC 75 resolving the conflict of opinion existing between the High Courts prior thereto by holding that the remedy of person claiming prior agreement to sell is under Section 19(b) of the Specific Relief Act, 1963 and not by seeking declaration as null and void of the subsequent documen