Prima facie case and likelihood of irreparable loss and injury justified granting an ad interim injunction to restrain the defendants from selling or transferring the second floor of the property.

Jayant Nath, J.

IA No.19922/2013

1. This is an application under Order 39 Rule 1 and 2 CPC. The plaintiff has filed the accompanying suit seeking a Decree of possession under section 6 of the Specific Relief Act in respect of second floor portion of property No.465/1, Jheel Khuranja, Delhi-110031 of a land measuring 75 sq.yds. Other reliefs are also sought.

2. By the present application an ad interim injunction is sought to restrain the defendants from transferring, selling, parting with possession or creating third party interest in respect of the said second floor of the said property.

3. The above application came up for hearing on 9.12.2013 when notice was issued to the defendant. The defendant has filed his reply.

4. As per the averment in the plaint, it is averred that the parties entered into a collaboration agreement on 20.4.2012 relating to the said property. As per the plaint, the property was to be constructed upto the third floor after demolishing its old structure. The defendant is the owner of the property and the plaintiff is the builder. After construction, the defendant was to execute a sale deed in respect of the second and third floor with roof rights in favour of the plaintiff or the nominee of the plaintiff. Rest of the portions, namely, ground, upper ground and first floor were to be handed over back to the defendant. It is averred that on the same date the plaintiff received vacant possession of the whole property measuring 75 sq.yds and paid to the plaintiff a sum of Rs.2 lacs. A balance of Rs.6.5 lacs was to be paid by the plaintiff to the defendant at the time of execution of the sale-deed.

5. It is urged that the plaintiff started raising construction over the suit property thereafter and spent about Rs.35 lacs.

6. On 5.10.2012 it is stated that the defendant on instructions of the plaintiff, executed a GPA and other related documents regarding the third floor which fell to the share of the plaintiff in favour of one Shri Rinku Aggarwal and the defendant received a sum of Rs.11,70,000/-.

7. However, possession of the said flat was not given by the defendant to the said Rinku Aggarwal on the said date. On 30.4.2013 the plaintiff is said to have completed the entire construction of the third floor and possession was handed over to the said Mr.Rinku Aggarwal.

8. On 16.5.2013, it is averred that it was decided that the plaintiff will hand over possession of the defendant’s portion i.e. ground, upper ground and first floor and on the same date the defendant will execute the sale deed/GPA for the balance share of the plaintiff i.e., second floor flat in the name of the plaintiff and the defendant would pay a sum of Rs.5,20,000/- to the plaintiff i.e. the balance left of Rs.11,70,000/- received by the defendant directly from Mr.Rinku Aggarwal less Rs.6,50,000/- which the plaintiff had to pay to the defendant at the time of getting title papers of the second and third floor.

9. On 14.5.2013 the defendant is said to have entered the property to perform Havan. Having completed the Havan, the plaintiff allegedly locked the building and blocked the entry of the defendant.

10. On 16.5.2013 when the plaintiff approached the suit property, a quarrel took place. The mother of the defendant expired and an FIR was registered against the plaintiff. Plaintiff was taken in judicial custody and could get bail only on 22.7.2013. He states that he has filed complaints against the defendant with the police on 18.8.2013 and 23.8.2013.

11. Hence, present suit.

12. The defendant has filed written statement. In the written statement he admits the collaboration agreement. He, however, states that despite a term in the Agreement, the plaintiff never got the plans sanctioned or the agreement registered. The MCD accordingly issued a show cause on 18.9.2012. A demolition order was passed on 5.10.2012 and a partial demolition took place on 14.3.2013. It is urged that the defendant cancelled the agreement orally on 15.2.2013 and returned th