Sudhir Kumar Nayyar v. M/S Ansal Housing & Construction Ltd

RAJIV SAHAI ENDLAW, J. OCTOBER 11, 2018 'bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th October, 2018. + RSA 93/2018 & CMs No.24651/2018 (for condonation of 21 days delay in filing the appeal) & 24652/2018 (for condonation of 330 days delay in re-filing the appeal) SUDHIR KUMAR NAYYAR ..... Appellant Through: Mr. Shashi Shanker and Ms. Pooja Mohanani, Advs. Versus ANSAL HOUSING & CONSTRUCTION LTD. ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 21st January, 2017 in RCA No.326/2016 of the Court of the Additional Senior Civil Judge (West)] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 12th February, 2014 in Suit No.346/2004 of the Court of Civil Judge-03 (West)] of dismissal of suit filed by the appellant/plaintiff for permanent and mandatory injunction. 2. This appeal along with applications for condonation of 21 days delay in filing the appeal and 330 days delay in re-filing came up first before this Court on 1st June, 2018, when on request of the counsel for the appellant/plaintiff hearing was adjourned to 10th October, 2018. 3. On 10th October, 2018, none appeared for the appellant/plaintiff on first call and the appeal was taken up on second call beyond the court hours and was adjourned to today. 4. The counsel for the appellant/plaintiff has been heard and the copies of the Trial Court record annexed to the memorandum of appeal perused. 5. The question of considering the condonation of long delay after which this appeal has come up before this Court will be considered only if any merit were to be found in this Regular Second Appeal which can be entertained only on finding the same to be entailing any substantial question of law. 6. The appellant/plaintiff instituted the suit, from which this appeal arises, pleading (i) that the appellant/plaintiff booked a plot bearing No.CC- 313, admeasuring 359 sq. yds. offered by the respondent/defendant in East End, Loni, Ghaziabad, Uttar Pradesh, forming part of Tronica City @ Rs.2300/- per sq. yds., having basic cost of Rs.8,35,752/- and the respondent/defendant agreed to give a discount of 3% to the appellant/plaintiff; (ii) that the appellant/plaintiff was lured into making the aforesaid booking by the brochure published by the respondent/defendant; (iii) that the appellant/plaintiff, as on 11th March, 2008, had paid a sum of Rs.5,12,570/- towards consideration of the plot, out of total sale consideration of Rs.7,93,964.40 paise; (iv) that when the appellant/plaintiff visited the site for the first time in June, 2000, he found that the plot was surrounded by a fully functional Shamshan Ghat and Kabristan; (v) that the protests made by the appellant/plaintiff to the respondent/defendant did not yield any result and the appellant/plaintiff was asked to continue making payments of instalments; (vi) that in the circumstances, the appellant/plaintiff stopped making payment of balance instalments towards sale consideration to the respondent/defendant and asked the respondent/defendant to remove the Shamshan Ghat and Kabristan; (vii) that the appellant/plaintiff, on making further enquiries also learnt that the respondent/defendant had also deviated from the terms and conditions imposed by Uttar Pradesh State Industrial Development Corporation (UPSIDC) and found that there was a high tension electricity wire passing above the said plot and the green area in front of the main gate towards Delhi Saharanpur Road had also been reduced; (viii) that the respondent/defendant had also not carried out the development of the colony as had promised in the brochure; (ix) that the appellant/plaintiff wrote letters dated 13th March, 2002 and 17th April, 2002 calling upon the respondent/defendant to remove the Shamshan Ghat and Kabristan and to fulfil all the promises made at the time the appel