JUDGMENT

Prathiba M. Singh, J.

IA Nos. 9496/2015 (Stay) and 1196/2019 (for clarification of order dated

18.12.2018)

1. The present suit is in respect of VIJAYA Building, 17, Barakhamba Road, New Delhi-110001 (hereinafter „building‟). The Plaintiff – VIJAYA Building Apartment Owners‟ Association (hereinafter „Association‟), is an association formed by various apartment/flat owners of the building. The Association was registered on 9th November, 2012. It has filed the present suit against M/s. Ardee Housing Pvt. Ltd. (hereinafter „Ardee‟) and M/s. Gujaral Estates Pvt. Ltd. (hereinafter „Builder‟) seeking declaration, permanent and mandatory injunction.

Brief Facts

2. The case of the Plaintiff Association is that the Builder had entered into a collaboration agreement dated 6th January, 1978 (hereinafter „Collaboration Agreement‟) with Dr. Ms. Vimla V. Gujral and her daughters (`Owners‟) for raising construction of multi-storied commercial building.

The broad terms of the said collaboration agreement are:-

 The Builder had to demolish the existing super-structure and after obtaining requisite permissions and approvals construct a multi- storied commercial building by the name VIJAYA Building at its own cost and expenses.

 All the charges and expenses for the construction were to be borne by the Builder.

 That upon completion of the building, the owners were to retain their share of the building as per the plan annexed to the agreement;

 That the Builder could transfer the balance space to any third party and the owners were to cooperate;

 That for the space falling in the share of the owners, the owners were only to pay conversion charges and maintenance charges to the Builder;

 That a society or a company was to be formed with the owners and the Builder as members thereof;

 That any person, who purchases or derives any rights from either the owners or from the Builder, would also be bound to become a member of such society/company;

 That any assignee of the Builder would also be bound by the terms of the collaboration agreement;

 That until a society/company was formed, the responsibility of running the common facilities, services and maintenance of the building was to be discharged by the Builder on usual terms and conditions.

3. The building was completed and there were various disputes including as to whether it was constructed as per the sanctioned plans, etc. The authorities had alleged that there were various irregularities and they had taken steps to seal some part of the building, which was challenged by the Plaintiff-Association and the matter is stated to be pending before the MCD Appellate Tribunal.

4. The fact that a society/company was also to be formed, for the welfare of the flat owners, is clear from the flat buyer agreement, which the Builder executed with various flat buyers. The clauses of this flat buyer agreement provide:

 That the L&DO charges, house tax and other municipal taxes were to be borne by the flat buyers;

 That the flat buyers were to abide by all the rules and regulations, laws and bye-laws of the various governmental authorities;

 That the flat buyer was to permit access to the Builder/society for the purposes of repairs (clause 22);

 That the maintenance charges, as fixed by the Builder/society, would have to be paid regularly;

 That the payment of the maintenance charges was to be made to the Builder/society - failure of which would result in the Builder/society to taking possession of the flat;

 That the flat buyer was also to contribute to the replacements fund, which is meant for replacement for capital/maintenance equipment or for carrying out repairs of a capital nature;

 That the payment was to be made to the Builder/society;

 That the Builder/society would have the right to restrict the entry of any undesirable persons into the building;

 As per Clause 32, the flat buyer had to become a member of the cooperative society or a company or any other appropriate body, which would be formed for safegu