Valmiki J. Mehta, J. (Oral)

1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 27.11.1997 whereby the suit of the respondent/plaintiff for specific performance with respect to showroom/space No. 20, on upper Ground Floor, Block E, in the building known as International Trade Tower, Nehru Place, New Delhi was decreed on payment of escalation and related charges by the respondent/plaintiff to the appellant/defendant.

2. The facts of the case are that the respondent/plaintiff as a buyer and the appellant/defendant as the seller/builder entered into an Agreement on 6.10.1976 for sale of leasehold rights of covered area of 403 square ft., being portion No. 24, on ground floor in block A of the building which was to be constructed by the appellant/defendant at a hotel plot, in Nehru Place, Kalkaji, New Delhi. On the hotel plot, the appellant/defendant was to construct a multi-storey building, which was to include a hotel, shopping arcade, showrooms, commercial spaces, etc. in accordance with the lease executed in favour of the appellant/defendant by the superior lessor, the Delhi Development Authority.

3. The respondent/plaintiff after making the initial payment of Rs. 24,000/- on 6.9.1976, paid further additional amounts as per the schedule of payment, and out of the total sale consideration of Rs. 1,70,500/-, a total sum of Rs. 1,62,000/- was paid to the appellant/seller. Thus a balance of only Rs. 8,500/-, remained payable, subject, of course, to the rights of the appellant/defendant to claim, inter alia, amounts towards escalation charges in terms of Clause 18 of the Agreement dated 6.10.1976, Ex.PW1/1.

4. The original agreed space being portion No. 24 in the property situated on the ground floor, was substituted by an Agreement between the parties dated 14.9.1985, and the parties mutually agreed to change the original space/portion No. 24 to space No. 20 on upper ground floor of Block E, the area remaining the same at 403 square ft. It may be noted that by the time, the subsequent Agreement dated 14.9.1985 was entered into for change of the space, the final plans had already been sanctioned for construction on the plot in the year 1983 by the local municipal authority. At this stage, I may note that as per Clause 3 of the Agreement dated 6.10.1976, the rate per square feet agreed was the rate per sq. feet of covered area which meant and included area under the peripheral walls and half the area under common walls between two shops/showrooms/spaces.

5. The appellant/defendant sent a notice dated 10.4.1991, Ex.PW1/4 to the respondent/plaintiff seeking a total amount of Rs. 1,21,933.96 on account of escalation and also certain recurring charges towards general maintenance, ground rent, sinking fund, building insurance and so on. By this letter, Ex.PW1/4 dated 10.4.1991, the appellant/defendant while asking for escalation amount and other recurring charges, to the prejudice of the respondent/plaintiff, suo moto changed not only the allocated space/portion from its prime location on the upper ground floor to the lower ground floor, but also, reduced the area from 403 square ft. to 372 square ft. The new portion/space which was sought to be allotted by the appellant/defendant, instead of the old portion situated on the upper ground floor, was the showroom No. 2 on the lower ground floor. The lower ground floor is euphemistically so-called because in the construction industry what is a lower ground floor is actually the area below the normal ground floor, an area definitely less valuable than the similar area on the upper ground floor which would in fact fall within the main hotel complex. Though, no reply was sent by the respondent/plaintiff in writing to Ex.PW1/4 dated 10.4.1991 but, the respondent/plaintiff claimed that she met the concerned persons of the appellant/defendant and raised a grievance with respect to the higher cost