A pecuniary liability cannot be enforced through a declaratory suit, and a disguised recovery claim is not maintainable under Section 34 of the Specific Relief Act.

JUDGMENT :

Prathiba M. Singh, J.

1. The present case is a classic example of how litigation can be protracted by parties, only with a view to avoid payment of court fee. A case which ought to have been a simple suit for recovery has been designed as a declaratory suit leading to framing of a preliminary issue which is being decided by the present order. The preliminary issue framed in the suit is:

“Issue no.2 - Whether the present suit for declaration in respect of a recovery claim is maintainable in law?”

2. The reliefs prayed for in the suit are as under:

“(a) That the Decree of Declaration may kindly be passed in favour of the plaintiff and against the defendant declaring that the defendant has no right, title or interest in 4475 sq feet and 5000 sq feet commercial area on 3rd and 4th floor of the K-Mall, Link Road, Near Bus Stand, Ludhiana, Punjab respectively in case the past, present and future maintenance charges are not paid to the plaintiff.

or in the alternative

A Decree of Declaration may kindly be passed declaring that the plaintiff is entitled to adjust the unpaid maintenance charges and take back the commercial area from the defendant in view of the Agreement dated 25.05.2000.

(b) Costs of the present suit may kindly be awarded in favour of the plaintiff.

(c) Such other and further orders as the Hon'ble Court may deem to be fit and proper under the circumstances of the present case may kindly be passed.”

3. The brief background of the litigation is that a family settlement was entered into between three brothers viz., Sh. Sadhu Singh, Sh. Bhajan Singh and Sh. Gurnam Singh, all of whom are sons of Late Sh. Bhagat Singh. The family had various properties in respect of which family settlement dated 25th May, 2000 was entered into. The settlement covered a large number of assets. Two of the assets are the company M/s Kular Construction Ltd. (hereinafter ‘Kular’) which is the Plaintiff in the present case and a hotel project at Ludhiana. The family settlement in respect of these two assets which reads as under:

“1. KULAR CONSTRUCTIONS COMPANY LTD.

All the assets and liabilities of Kular Construction Ltd. in respect of construction works excluding the hotel project at Ludhiana will be transferred to Sadhu Singh & Co. Pvt. Ltd. and this later Company will be owned and managed exclusively by S. Sadhu Singh, party of the Second Part and his nominees. Kular Constructions Ltd. with only the hotel project will be owned and managed exclusively by S. Bhajan Singh party of the First Part. All the payments received from the construction work, ongoing and executed viz. at RSD Shahpurkandi Canal, Bhatinda TPS, Suratgarh TPS, SYL, Sawan Bhadon Dam, Mukerian Power House III, and all other works except Ropar Hydel Power House, Mukerian Restoration Works, Bisalpur Dam, Sewa Nagar and Chamera will be operated from a bank account at Pathankot and will be operated by Sh. Sadhu Singh or his nominee. No other person will be authorised to operate this account.

All the experience acquired regarding various type of constructions done by M/S Sadhu Singh & Co. & M/S Kular Constructions Ltd. will be taken as pre-qualification of M/S Sadhu Singh Co. Pvt. Ltd. and can be utilized wherever it is felt necessary. Kular Constructions Ltd. will provide any assistance that may be required/possible for prequalification of Sadhu Singh & Co (P) Ltd for works tenders.

2. HOTEL PROJECT AT LUDHIANA

(i) S. Sadhu Singh, party of the Second Part shall own 21% share in the assets & liability of the hotel project. S. Bhajan Singh, Party of the First Part shall own the remaining share in the assets and liabilities of the hotel project. S. Bhajan Singh party of the First Part will be solely responsible for the construction of Hotel at Ludhiana including arrangement of funds, material, etc.

(ii) S. Gurnam Singh, Party of the Third Part shall own 4475 Sft. and 5000 Sft of commercial area on 3rd and 4th Floors respectively of the hotel which S. Bhajan Singh Party of the First Part gua