M/S Supra Enterprises v. Tilak Raj Sethi

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. December 08, 2008 rk

* IN THE HIGH COURT OF DELHI % Date of Order: December 08, 2008 + RFA 69/2001 M/S. SUPRA ENTERPRISES ..... Appellant Through: Mr.Jayant Nath, Sr.Advocate with Mr.Upender Thakur and Mr.K.M.Singh, Advocates VERSUS TILAK RAJ SETHI ..... Respondent Through: Mr.V.K. Makhija, Sr. Advocate with Ms.Vandana Khurana, Advocate CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. (Oral) 1. At the outset, learned counsel for the respondent states that the consent of the respondent may be recorded; if the appeal were to be dismissed the respondent would pay as compensation a further sum of Rs.1,00,000/- (Rupees One Lac only) to the appellant. 2. We bind the respondent to the consent aforenoted. 3. An agreement to sell, Ex.P-1 was executed on 7.4.1981, between the respondent and the appellant. It pertained to an industrial plot bearing No.D-105/106, Okhla Industrial Area, Phase-I, New Delhi admeasuring 504.4 sq. mtr. Agreed sale price was Rs.1,81,000/- (Rupees One Lac Eighty One Thousand only) out of which Rs.18,000/- (Rupees Eighteen Thousand only) was paid as part payment, as recorded in the agreement to sell. Balance sum of Rs.1,63,000/- (One Lac Sixty Three Thousand only) was to be paid when sale deed was to be executed; which event had to be after the seller i.e. respondent obtained perpetual lease deed in its favour and necessary approvals from the lessor. 4. Sale transaction fell through. Suit was filed by the appellant seeking specific performance of the agreement to sell. Alternatively it was prayed that if the Court were to decline specific performance, damages may be awarded in sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only). 5. Learned Trial Judge, vide impugned judgment and decree dated 11.12.2000, has declined specific performance but has awarded Rs.50,000/- (Rupees Fifty Thousand only) as damages. Rs.18,000/-, the sum received by the respondent has additionally been directed to be refunded together with interest @ 12% per annum from 7.4.1981 till payment was made. 6. It may be clarified that interest has not been awarded on the damages. 7. Shorn of the verbose reasons given by the learned Trial Judge, in a nut-shell, the basis of the decision is that the respondent, an ex-serviceman obtained the plot under a scheme of the Government for rehabilitation of ex-servicemen and Ex.DW-1/1 recorded a term of the policy under which the plot was allotted to the respondent as under:- "(iv) The lessee will not be entitled to transfer the plot before or after the erection of the building without the prior permission of the Director General of Resettlement, Ministry of Defence, Government of India, and the Lt. Governor of Delhi. Such permission will not be given for a period of ten years from the commencement of lease unless in the opinion of the lesser, exceptional circumstances warrant the grant of such permission. If such permission is given it will be only in favour of an ex- serviceman. However, the lessee may, with the previous consent in writing of the Lt. Governor of Delhi, mortgage or charge the industrial plot to such persons as may be approved by the Lt. Governor in his absolute discretion. In case the transfer is permitted, the lesser shall be entitled to an amount equivalent to 50% of the unearned increase in the value (i.e., the difference between the premium paid and the market value) of the plot at the time of transfer." 8. Learned Trial Judge has held that there was a complete embargo for the plot not to be sold for a period of 10 years commencing from the execution of the lease except under exceptional circumstances warranting the grant of such permission. Further, if such permission was to be granted it had to be only in favour of an ex-serviceman. Needless to state the appellant is not an ex-serviceman. 9