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High Court Of Delhi
VIJAY SRIVASTAVA - Appellant
Versus
MIRAHUL ENTERPRISES - Respondent
Interim Application 1367 of 1986
Decided On : 08/21/1987
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - MANDATORY INJUNCTION - INTERLOCUTORY APPLICATION - POWER OF COURT - CIRCUMSTANCES - Held, the court has the power to grant mandatory injunction on an interlocutory application in rare and exceptional cases. The present case falls within that category. The plaintiffs have paid more than 95% of the cost of the flats and have also advanced interest-free loans to the defendants to complete the construction. The defendants have been putting off the plaintiffs on one pretext or the other and have not handed over the possession of the flats. Therefore, a mandatory injunction is issued directing the defendants to hand over the flats to the plaintiffs without any delay.
Fact of the Case:
The plaintiffs had entered into agreements with the defendants to purchase flats in a building. They had paid more than 95% of the cost of the flats and had also advanced interest-free loans to the defendants to complete the construction. The defendants had not handed over the possession of the flats to the plaintiffs and were putting them off on one pretext or the other. The plaintiffs filed suits for specific performance of the agreements and also filed interlocutory applications seeking a mandatory injunction directing the defendants to hand over the possession of the flats to them.
Finding of the Court:
The court held that it had the power to grant mandatory injunction on an interlocutory application in rare and exceptional cases. The present case fell within that category. The plaintiffs had paid more than 95% of the cost of the flats and had also advanced interest-free loans to the defendants to complete the construction. The defendants had been putting off the plaintiffs on one pretext or the other and had not handed over the possession of the flats. Therefore, a mandatory injunction was issued directing the defendants to hand over the flats to the plaintiffs without any delay.
Issues: Whether the court has the power to grant mandatory injunction on an interlocutory application.
Ratio Decidendi: The court has the power to grant mandatory injunction on an interlocutory application in rare and exceptional cases. The present case falls within that category. The plaintiffs have paid more than 95% of the cost of the flats and have also advanced interest-free loans to the defendants to complete the construction. The defendants have been putting off the plaintiffs on one pretext or the other and have not handed over the possession of the flats. Therefore, a mandatory injunction is issued directing the defendants to hand over the flats to the plaintiffs without any delay.
Final Decision: The court allowed the interlocutory applications and issued a mandatory injunction directing the defendants to hand over the flats to the plaintiffs without any delay.
( 1 ) THIS older wiii also dispose of I. A. 1365 of 1986 in Suit No. 450 ofj986 filed by Rear Admiral KLshi Raj Sood (thfi plaintiff in the other suit ).
( 2 ) THE facts giving rise to this application (J. A. 1367186) and 7. A. No. 1365186 (the other I. A.) in Suit No. 450186 (the other suit) are that Suit. Vijay Sriyastava (the plaintiff) had filed this suit on 25th February 1986 in this High Court and on the same day, the plaintiff in the other suit filed the other suit in this court. The cases set up by the plaintiffs in these suits arc as under :
( 3 ) M/s. Miranul Enterprises (the defendant No. 1) is a partnership firm with Shri S. B. Kishore (defendant No. 2) as its managing partner and Smt. Kusum Kishore wife of Shri S. B. Kishore, Shri Rahul Kishore son of Shri S. B. Kishore and M/s. Simira Kishore daughter of Shri S. B. Kishore (hereinafter to be referred as defendants No. 3 to 5 respectively) are its other partners. Defendant No. I was engaged in the business of promotors and builders of multistoreyed residential flats in the name and style of "mirahul Enterprises . In the course of the said business, the defendants promoted the construction of multistoreyed residential flats on a plot of land bearing No. A-13, Green Park Extension, New Delhi The plaintiff was in need of suitable residential accommodution in Delhi as her husband was retiring and defendent No. 2 knowing about such need approached the plaintiffs husband. Brig. K. K. Srivastava. some time in June/july 1982 and represented to the plainliff and her Husband that the defendants proposed to construct multistoreyed building of residential flats at A-13, Green Park Extension, New Delhi and such building would be known as mirahul Apartments and the plaintiff would be benefited by making payment of advance booking of flat/flats and a formal agreement to sell could be executed later on. Relying on the representation and acting on the faith thereof, the plaintiff advanced first payment of Rs. 10,000 on 16th July, 1982 for booking of flat No. S-1 in the proposed project of defendant No. I and thereafter from time to time the plaintiff and/or her husband on behalf of the plaintiff paid a total sum of Rs. 3. 15,000 between the period from 16th July, 1982 till 9th October, 1983 lo the defendants by cheques/case against receipts issued by defendant No. 1 and the defendant issued lerter dated 7th January 1983 to the plaintiff wherein it was confirmed that the residential flat measuring covered area 1869 sq. ft. in fiats No. S-2 and S-4 had been booked as per area mentioned in the drawings attached with the said letter.
( 4 ) THE plaintiff in the other suit is a family Mend of the plaintiff. He baving learnt from the plaintiff s husband about the booking of the residential flats in mirahul Apartments , approached defendant No. 2 along with plaintiff s husband in the first week of May 1983 for allotment of a suitable fiat Certain discussions and negotiations took place between the parties and it was agreed on 24th October, 1983 that the plaintiffin the either suit would pay a sum of Rs. 40,000 to the defendants and out of sum of Rs. 3,15,000 already received by the defendants from the plaintiif, a sum of Rs. 1,40,000 would be transferred and stand adjusted as advance money paid and received in the account of the plaintiff in the other suit against booking of a flat in his name and the agreement to sell would be executed later on. Accordingly. on 24th October 1983, the plaintiff in the other suit paid a sum of Rs. 40,000 by cheque to defendant No. 1 and Rs. 1,40,000 was adjusted from the abovesaid amount of Rs. 3,15,000 deposited by the plamtiff with defendant No. 1.
( 5 ) ON 2nd November 1983 defendant No. 2 brought two prepared agreements-one to be executed with the plaintiff and the ether with the plaintiff in the other suit. While the plaintiff and the plaintiff in the other suit had signed the two agreements brought by defendant No. 2, it was notic
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