Judgment:
$~10 * % IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:13.02.2019 + FAO (OS) 108/2014 & CM APPL. 3543/2014, 33060/2017, 34708/2017 & 18578/2018 SHRI MUKESH KAPIL ..... Appellant Through: Mr. J.C. Mahindroo & Ms. Sapna S. Kapil, Advocates RANJEET TOWERS (INDIA) PVT. LTD. & ANR. versus Through: Mr. Virag Gupta, Mr. Gaurav Pathak & Ms. Vanya Gupta, Advocates for R- 2 ........ RESPONDENTS
CORAM: HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE JYOTI SINGH G.S. SISTANI, J.
(ORAL) 1. The present appeal is directed against the order dated 22.10.2013 and order dated 06.02.2014 whereby the learned Single Judge had dismissed an application under Order XXXIX Rules 1 and 2 CPC filed by the appellant herein (plaintiff in the suit) against respondent No.2 in a Civil Suit bearing CS (OS) 2296/2012. The relevant facts are that property bearing No.14 Bazar Lane, Babar Road, Bengali Market, New Delhi (Suit Property), was owned by the father of the appellant herein, namely, late Shri Darshan Lal Kapil.
2. A collaboration agreement was entered into between the father of the appellant and respondent No.1 (defendant No.1 in the suit) on 17.02.1992 for development of the said property. Under the said collaboration agreement, respondent No.1, who was the developer, in FAO(OS)108/2014 Page 1 of 5 consideration of developing the property, became entitled to deal with the second floor thereof. Disputes arose between the appellant, the developer, and the then agreement purchasers of the basement and the first floor of the property, which had been developed by respondent No.1. The disputes were settled between the parties by a settlement deed dated 01.10.2001 to which the appellant/respondent No.1 and the agreement purchasers of the first floor and the basement, were parties. The settlement provided that respondent No.1 was obliged to pay an amount of Rs. 18.5 Lacs to the appellant in a timebound manner. Rs. 6 Lacs were to be paid at the time when the settlement was arrived at and the remaining Rs. 12.5 Lacs were to be paid within a period of six months or earlier in case the second floor was disposed of by respondent No.1. Payment of the amount of Rs. 12.5 Lacs was secured against the basement floor. Insofar as the second floor was concerned, no charge or lien was sought to be created by the said settlement agreement. By virtue of the said settlement, the appellant was obliged to execute a special power of attorney in favour of respondent No.1 to enable him to sell the second floor. Respondent No.1 had undertaken to construct a stair case from the second floor to the terrace along with the mumty. The construction was to be completed within six months. The appellant had the right to raise further construction on the terrace, if permitted by law.
3. Upon the respondent No.1 paying an amount of Rs. 12.5 Lacs to the appellant, he executed an irrevocable power of attorney in favour of respondent No.1 on 31.01.2002. On the basis of this SPA, respondent No.1 sold the second floor in favour of respondent No.2 on FAO(OS)108/2014 Page 2 of 5 01.03.2011. On 02.03.2011, the appellant sought to cancel the SPA by issuing a notice. Finally, the SPA was cancelled before the Sub- Registrar on 10.03.2011.
4. Respondent No.2 filed CS(OS) 2670/2011 before this Court, seeking relief of injunction against the appellant and his wife restraining them from preventing his ingress and egress in the common area of the suit property leading to the access of second floor as well as enjoying the second floor.
5. By an order dated 09.05.2013, the Court directed the keys of the second floor to be handed over to respondent No.2 herein (plaintiff therein) and prima facie held that appellant herein had with the malafide intent dispossessed the plaintiff therein.
6. Against the said order the appellant who was defendant in that suit preferred an appeal bearing FAO (OS) No.246/2013. This was dismissed by the Division Bench of this court on 15.05.2013. No further appeal was filed by the appellant challenging the order dated 15.05.2013.
7. In the meantime, the appellant herein filed a civil suit bearing CS (OS) No.2296/2012 wherein the appellant prayed for cancellation of the Sale Deed dated 01.03.2011 executed in favour of Respondent No.2 by Respondent No.1. After filing of the suit, an interim application bearing I.A. No.11470/2013 was filed by the appellant seeking interim stay against the Defendant No.2 therein, from creating any third-party interest rights in the property or parting away with the possession of the second floor. FAO(OS)108/2014 Page 3 of 5 8. By the impugned order dated 22.10.2013, the learned Single Judge after tracing the entire history of the case and transactions between the parties held that the appellant had not initiated any legal proceedings in respect of the settlement agreement dated 01.10.2001 within a period of three years and the said relief was, therefore, prima facie barred by the law of limitation. Learned Single Judge further observed that the appellant had himself filed an Execution Petition bearing No.55/2011, wherein he had sought to execute the decree passed by the court in another suit on the basis of the settlement dated 01.10.2001 and therefore, it did not lie in the mouth of the appellant to seek enforcement of the settlement of one hand and to assail the same on the other hand. The application for interim relief was, thus, dismissed with cost of Rs.10,000/- against the appellant.
9. Against the said order, the appellant filed the present appeal wherein he has prayed for setting aside the order dated 22.10.2013 as corrected vide order dated 06.02.2014. When the matter came up for hearing today, after some hearing Mr. Mahindroo, learned counsel for the appellant fairly submitted that much water has flown since the passing of the impugned order. He further submitted that this court may clarify that the observations made in the impugned order would not have a bearing in deciding the main matter and the observations are limited to the application alone. We clarify that the observations made by the learned Single Judge in the impugned order will be limited only to the decision of the application bearing I.A. No.11470/2013 and the suit shall be decided on merits in accordance with law. FAO(OS)108/2014 Page 4 of 5 10. With the above clarification, the appeal along with pending applications is dismissed. G.S.SISTANI, J.
JYOTI SINGH, J.
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