J U D G M E N T

% 22.10.2021

1. On 4th August, 2020, while issuing summons in CS (Comm) (Infra) 1/2020, IA 6433/2020, filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), was also taken up for preliminary hearing. Ad interim injunction was granted, in favour of the plaintiff, restraining the defendant from transferring, alienating, encumbering or further creating any third party rights in respect of the suit property located at F-6, Kailash Colony, New Delhi, or carrying out any further alteration in the suit property.

2. The defendant filed IA 7643/2020, for vacating the aforesaid ad interim order.

3. Arguments were heard on IA 6433/2020 and IA 7643/2020, which are being disposed of, by this order.

Facts, as per the plaint

4. The dispute relates to a Property Development Agreement (“PDA”), dated 14th January, 2020, executed between the plaintiff and the defendant. The defendant has admitted this document. Clauses 2, 3, 4, 6, 14 and 19 of the PDA read thus:

“2. That the DEVELOPER shall demolish the existing structure on the said plot of land and develop, construct and/or build a building consisting of Basement, Stilt, Ground Floor, First Floor, Second Floor and Third Floor with terrace, at its own costs and expense.

3. That the DEVELOPER shall develop, construct and complete the Building at its own costs and expenses after procuring the requisite permissions, sanctions and approvals for development construction and completion of the said building on the said plot at DEVELOPER's cost.

4. That it has been clearly agreed between the parties that the malba realised from the demolition of the existing structure of the said property shall belong to the DEVELOPER who shall have full right to sell the same and receive the proceeds thereof, without any claim or right of the OWNER in the same.

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6. That in addition to the DEVELOPER incurring the entire costs and expenses etc. for the construction, will pay a sum of Rs. 49,00,000/- (Rupees Forty Nine Lakhs Only) to the OWNER as the total consideration against the rights in the property to be transferred in favour of the DEVELOPER or its nominee/s. The abovesaid amount has been paid by the DEVELOPER to the OWNER, in the following manner:

Rs.4,00,000/- (Rupees Four Lakhs Only) vide cheque no. 406161 drawn on Axis Bank dated 14/01/2020.

The receipt of which the OWNER hereby admits and acknowledges. The balance sum of Rs. 45,00,000/- (Rupees Forty Five Lakhs) shall be made will be paid by the DEVELOPER to the OWNER. at the time of registration of the sale documents such as Agreement to Sell, General Power of Attorney, Will, Affidavits etc. on or before 5th February, 2020 as the full and final settlement and discharge.

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14. That in view of the above arrangement arrived at between the parties hereto and in lieu of the DEVELOPER (a) re-developing the said property at its own cost using its infrastructure facilities, Man Power, Skill & expertise (b) paying the aforesaid amount/consideration to the OWNER. The parties shall be shall be entitled to the following portions of the newly constructed building as under:

OWNER'S ALLOCATION

DEVELOPER'S ALLOCATION