Sunanda Bhandare, J.
(1) This order will dispose of the application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure filed by the plaintiff in a suit for mandatory injunction.
(2) The brief facts are as follows. The defendants who claim to be the owners of plot No. J-1/164 Rajouri Garden, New Delhi approached the plaintiff for development of the said plot under a Group Housing Scheme. The terms and conditions were incorporated in a letter dated 8-3-1979 written by the plaintiff to the defendants. This letter was signed by all the defendants in token of their acceptance of the said terms. As per this agreement, defendants I to 3 and defendants 4 to 7 were to be allotted 36% of the total built up area on the said plot of land as consideration of the value of the free-hold land i.e. the disputed property. The remaining 64% was to be retained by the plaintiff and all the losses and gains there from were to be borne by the plaintiff. Certain conditions were also incorporated in the said letter which permitted the defendants to sell or let out their 36% of the built up area. The plaintiff was to construct as per the Municipal bye-laws in conformity with the Master and Zonal plans of the area. Clause I I of the said letter reads thus:
'11.That you will sign all application forms together with the plans as may be prepared by us/our Architects and as may be required by the authorities concerned. The work of construction will be entirely carried out by us and there will not be any interference regarding the same from your side.'
A Co-operative Society was to be formed by the plaintiff of the persons owning the houses and the plaintiff was also given the responsibility of bearing all costs for forming such a Housing Society and framing the rules of the said Society and the defendants were given the right to nominate 36% of the members to the Society i.e. in the respect of 36 of the houses or built up area allocated to the defendants.
(3) Clause 20 of the said letter reads thus :
'20.That the work of construction will start immediately after the plans are sanctioned and we will complete the project as soon as possible, but not exceeding three years in any case, from the date of commencement of the work of construction after the sanction of the plans by the authorities concerned.'
Thus, plaintiff bad to commence construction immediately after the plans were sanctioned and were to complete the project as soon as possible but not exceeding three years in any case from the date of the commencement of the work of construction after the sanction of the plans by the authorities concerned. The plaintiff undertook to pay Rs. 1,50.000 as security deposit. Rs. 75.000.00 were to be paid on the confirmation of the letter of offer and Rs. 75,000.00 on or after the plans were sanctioned by the authorities concerned and on the handing over of the site to the plaintiff. The defendants agreed to return the said amount after the entire Group Housing Scheme was developed and possession of their share was banded over to them. There was no interest to be charged on this security deposit. Under the agreement all the cost of the construction completion of the houses, sewer lines and other connected works were to be borne by the plaintiff and possession of the 36% of the built up area was to be handed over to the defendant after the construction was completed. Under Clause 27 all matters which were not detailed in the letter and turn which no provision was made were to be discussed and resolved between the parties with all goodwill and sincerity on both sides. Under Clause 28 it was agreed that on the approval of the terms of the letter, the plaintiff will enter into a formal agreement with the defendants which would be drafted in consultation with the defendants and it would incorporate all the terms mentioned in the said letter. In March 1979 the plaintiff paid Rs. 75,000/ to the defendants on the confirmation of the letter. After the plaintiff obtained the sanction of plan the defendants handed over the possession of the site to the plaintiff The plaintiff also obtained exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act 1976 for Group Housing, The plans were sanctioned by the Municipal Corporation on 29-5-1984. The Bhumi Poojan' was held on 29-7-1984 by the plaintiff which was also attended by the defendants. Thereafter, the plaintiff paid the balance amount of Rs. 75,000.00 to the defendants which was duly accepted by the defendants. The plaintiff thereafter started the construction work in accordance with the sanctioned plans. The validity of the sanction of Use plans was up to 6-7- 1986. The construction however could not be completed within two years period and, thereforee, even before the expiry of the validity period, the plaintiff wrote to the defendants on 6-6-1986 asking them to sign the necessary application for re-validation of the plans. Defendants 4 to 7 signed the said application for revalidation of building plans but defendants I to 3 refused lo sign the same. The plaintiff thereforee submitted the application on 19-6-1986 for extension of time with the signatures of defendants 4 to 7 only. However, the Municipal Corporation of Delhi did not re-validate the plans and by letter dated 1-7-1986 sought the clarifications regarding change in ownership. The question of change of ownership arose because the plot in question was jointly owned by defendants I to 3 and defendants 4 to 7 but the application was signed only by defendants 4 to 7, The plaintiff thus again approached defendants I to 3 to sign the application for re validation, however these defendants failed to sign the application. The plans thus lapsed and fresh plans were got prepared by the plaintiff for submission to the Corporation.
(4) It is the case of the plaintiff that defendants 4 to 7 were willing to sign the fresh plans but defendants I to 3 did not sign the same. The plaintiff, thereforee, wrote several letters to defendants I to 3 requesting them to sign the plans, however on the failure of defendants I to 3, the plaintiff filed the present suit for mandatory injunction praying that the defendants be ordered to sign thr plans sent to them on 30-10-1986 as may be required to be submitted for completing the construction of the Group Housing Scheme on the plot no. J-1/164 Rajouri Garden, New Delhi and sign all other necessary applications and documents required for getting the sanctions. The plaintiff has further sought a mandatory injunction ordering the defendants to apply and obtain extension of exemption of exemption under Section 20 of Urban Land (Ceiling and Regulation) Act 1976 or for seeking fresh exemption in that regard.
(5) It was contended by the learned counsel for the plaintiff that under Clause 11 of the letter dated 8-3-1979 the defendants were bound to sign all application forms together with the plans as may be required by the plaintiff or their Architect and as may be required by the authorities concerned. The failure or refusal of the defendants to sign the applications was responsible for their not completing the work within the period contemplated under Clause 20 of the said letter. Learned counsel submitted that the plaintiff bad already completed the work at basement level and invested huge amounts for that purpose. The defendants had also accepted the sum of Rs. 1,50,000.00 and by now refusing to sign the application for extension of the sanctioned plans, the plaintiff was put to grave and irreparable hardship inasmuch as the plaintiff though bad invested large amount was not in a position to continue and complete the construction of the Group Housing Scheme. In the process even the permission under Section 20 of the Urban Land (Ceiling and Regulation) Act 1976 had also expired and now fresh permission will have to be obtained. Learned counsel submitted that since the possession is with the plaintiff, the plaintiff is entitled to the relief sought for in the interim application so that the construction could be completed as per the' agreement. Learned counsel relied on Mrs. Vijay Sritastav Rear Adm. Sood v. Miradhul Enterprises, 1988 Air 7 and M/s Garden Silk Mills (P.) Ltd. v. Vasdev Motwani & Another Air 1989 Del 46 and submitted that the plaintiff is entitled to get mandatory injunction as prayed for in the interim application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure in view of the facts and circumstances of the case because compensation in money would not afford adequate relief to the plaintiff. Learned counsel submitted that this is a case which falls in the category of 'rare' and 'exceptional' one in which interlocutory relief in the mandatory from ought to be granted.
(6) Defendants 1 to 3 and defendants 4 to 7 have 50% share each in the plot in question. The 50 of the profits or losses that would accrue out of the 36% of the built up area agreed to by letter dated 8-3-1979 was to the share of defendants I to 3 and 50% to the share of defendants 4 to 7. Out of the Rs. 1,50,000.00 paid to the defendants Rs. 75,000.00 came to the share of defendants 1 to 3 and Rs. 75,000.00 to the share of defendants 4 to 7. All the defendants are, thereforee, co-sharers in the plot No. J-1/164 Rajouri Garden, New Delhi.
(7) Defendants 1 to 3 and defendants 4 to 7 are represented by different counsel in court.
(8) It was contended by the learned counsel for defendants I to 3 that under the letter of agreement dated 8-3-1979 the plaintiff was to complete the construction of the project as soon as possible but not exceeding three years in any case from the date of sanction of the plans. Since the plants were sanctioned on 29-5-1984, the construction had to be completed by the ead of May 1987. However, the plaintiff had delayed the construction and constructed only up to the basement level when the plaintiff applied for re-validation of the plans on 6-6-1986. Learned counsel submitted that the plaintiff was thus not in a position to complete the construction within the period given to them under the said letter and, thereforee, the defendants were entitled to refuse to sign the plans for re-validation. Learned counsel further submitted that certain differences and disputes were likely to arise between defendants I to 3 on the one side and defendants 4 to 7 on the other in respect of the 36% of the built up area of their share and thus they were not in a position to demarcate the 36% of built up area on the plans. Consequently, the plaintiff was also not in a position to form the Co-operative Society and get it registered. Thus, the defendants bad rightly refused to sign the plans and cannot be now asked by way of a mandatory injunction to sign plans. Learned counsel submitted that the defendants were ready and willing to return the security deposit and also re-pay the amount spent by the plaintiff with interest. Learned counsel submitted that under Clause 28 of the letter dated 8-3-1979 a formal agreement was to be drawn up and signed by the parties but the agreement was never signed by the parties. Thus, the whole agreement is not binding on the defendants even though they had confirmed the acceptance by putting their signatures on the said letter. Learned counsel submitted that under Clause 27 of the letter dated 8-3-1979 all other matters which were not detailed in the letter and for which no provision was made were to be discussed and resolved .between the parties and thus under the formal agreement it could have been provided in what manner the disputes between the defendants would be resolved. Learned counsel further submitted that since the contract is incapable of performance, the prayer for mandatory injunction asked for the plaintiff be rejected.
(9) Learned counsel for defendants 4 to 7 submitted the at these defendants had done every thing that was required to be done on their parts and they cannot be asked to do it again. Learned counsel submitted that the plaintiff was unable to persuade defendants I to 3 to get the signatures on the plans for re-validation and defendants 4 to 7 cannot be made to suffer on that ground. Learned counsel submitted that the parties has sky rocketed thereafter and these defendants cannot be made to suffer for no fault of theirs. He further submitted that there was every possibility of their not agreeing with defendants I to 3 on the division of 36% of the built up area thus they would not be in a position to select the built up area as per Clause 3 of the said letter. Learned counsel thereforee submitted that the prayer of the plaintiff be rejected.
(10) I find that the plaintiff has made out a strong prima facie case. Under Clause 11 of the letter dated 8-3-1987 the defendants were required to sign an application forms together with the plans as may be prepared by the plaintiff or their Architect and required by the authorities concerned. Accordingly, the defendants did sign the plans at the initial stage which was duly sanctioned by the Municipal Corporation on 295-1984. Under Clause 20 of the said letter the plaintiff was to complete the construction within three years 'from the date of commencement of the work of construction after the sanction of the plans by the authorities concerned ' Though it is not know when the plaintiff commenced construction after the sanction of the plans on 29-5-1984, however since 'Bhumi Poojan' was performed at the site on 19-7-1984 the construction must not have commenced before the date Thus, in any event as per the said clause the plaintiff had time to complete the construction till the end of July 1987. Now. if the plans had expired before that period, the same had to be re-validated for which the defendants were required to give the signatures as provided under Clause 11 of the agreement. The plaintiff could not have continued the cons'ructionorcompletcd the same without the re-validation of the plans. It appears that for. this reason defendants 4 to 7 signed the plans. For reasons best known to them defendants 1 to 3 refused to sign In my view, at that stage in June 1986 when more than one year was available with the plaintiff the complete to construction defendants 1 to 3 could not any grievance and could not have said that; the construction cannot be completed within the stipulated time particularly because the work into the level of basement had already been completed. I also find no force in the contention of the defendants that since there was no formal agreement signed, the defendants could not be asked to sign the plans The plaintiff had taken possession of the plot pursuant to the agreement dated 8-3-1979 and had commenced construction and the defendants had also accepted the security deposit of Rs.l,50,000.00 without any demur. The objection regarding the formal agreement appears only to be an after-thought because the parties had acted on the agreement as signed on 8-3-1979. I find no force in the contention of the defendants that because there was a possibility of inter ie dispute between the defendants themselves, the contract was incapable of performance. The agreement of 8-3-1979 is not a tripartite agreement. The defendants are co-sharers and were acting as a group. The land is owned by the defendants jointly. Thus, if there is any dispute between the defendants it will have to be resolved as per their agreement inter se and that would not affect the agreement between the plaintiff and the defendants It is not open to defendants 4 to 7 to make any grievance against the plaintiff for the delay. Defendants 4 to 7 have to sail or sink with defendants 1 to 3 since they are together as a group.
(11) This Court in Vijaya Srivastma's case (supra) has after reviewing a large number of cases on the question of grant of interlocutory relief in the mandatory form by courts while the suit is still pending has observed as follows:-
'Are view of these decisions, thereforee, lead to the conclusion that there is no bar to the courts granting interlocutory relief in the mandatory from though in doing so, the court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of 'rare' and 'exceptional' one, is to be judge according to the facts and circumstances surrounding it.'
Iam in agreement with the observations of the learned Judge. If the facts and circumstances of the case demand, the court is not powerless. The court must grant interlocutory relief in mandatory form so that justice does not become a casualty. In the present case, ii appears that defendants I to 3 have resorted to an arm twisting method which cannot be allowed to prepetuate. The plaintiff is already in possession of the plot in question and has partly constructed thereon. Thus compensation/damages cannot be an adequate relief. Furthermore, damages would be recurring and the process also entails considerable time. In the present case I am of the view that the interlocutory relief as prayed for, if granted can arrest the mischief and avoid recurring damages. The facts and circumstances of the case arc such that the plaintiff is entitled to exceptional interlocutory relief in mandatory form.
(12) The application is thus allowed. Defendants 4 to 7 bad already signed the application dated 19-6-1986 but since the re-validation of the plans could not be done then will now be required to sign the fresh plans. A mandatory injunction is, thereforee, issued directing the defendants to sign the plans sent to them by the plaintiff' on 30-10-1986 and all other applications, forms, papers and other documents required to be submitted to the authorities concerned for completing the construction of the Group Housing Scheme on Plot No. J-1/164 Rajouri Garden, New Delhi and, for sanction of the plans. Since the exemption obtained by the plaintiff under Section 20 of Urban Land (Ceiling & Regulation) Act 1976 has also expired in the meanwhile, a mandatory injunction is issued directing the defendants to complete all the formalities for obtaining a fresh exemption under Section 20 of Urban Land (Ceiling & Regulation) Act 1976 for construction of the building on the said plot No. J-1/164 Rajouri Garden, New Delhi. The plaintiff is also entitled to costs.Suit No. 2699188.
(13) List on 17th April 1990 before the Deputy Registrar for further proceodings.