A suit for specific performance cannot be maintained against a developer who lacks title to the property and has not yet acquired the right to sell under a collaboration agreement, as it fails to disclose a valid cause of action against the developer or the owner.

JUDGMENT

I.A. 11294/2022

1. The instant application has been filed on behalf of the Defendant No. 1 under Order VII Rule 11 of the CPC for rejection of plaint.

2. The instant suit filed by the Plaintiff for directing Defendant No.1 to specifically perform his part of the agreement to sell dated 15.06.2018 by transferring the suit property bearing Entire First Floor of House No.76, Sharda Niketan, Pitampura, New Delhi in the name of the Plaintiff through registered sale deed and to hand over the actual vacant physical possession of the suit property to Plaintiff and other consequential reliefs.

3. The facts of the case, as discernible from the Plaint, are as follows:-

a. Defendant No. 2 is a registered owner of the entire first floor of the House No. 76, Sharda Niketan, Pitampura, New Delhi without roof rights, built up on the land area admeasuring 185 sq. yds. (hereinafter referred to as the “Subject Property”).

b. A Collaboration Agreement dated 20.08.2015 has been entered into between the Defendant No. 1 (developer/builder) and Defendant No. 2 for the development of the Subject property and via which Defendant No. 1 has also derived his rights and titles in the Subject property.

c. As per Clause 9 of the Collaboration Agreement, the Defendant No. 2 was given the share of upper Ground Floor, Second Floor, Third Floor with roof rights with undivided 3/4th share of stilt parking, whereas Defendant No. 1 was given the share of First Floor without roof rights with undivided 1/4th share of Stilt Parking i.e., the Subject Property

d. Accordingly, the Defendant No. 1 offered to sell the Subject Property to the father of the Plaintiff herein for a sale consideration of Rs. 2,10,00,000/-. The Plaintiff who agreed to purchase the Subject Property had paid the amount of Rs. 29,00,000/- as earnest money and part consideration on 30.05.2016. Thereafter, in many instalments, the father of the Plaintiff, during his lifetime, had paid a sum of Rs. 1,45,00,000/-. The father of the Plaintiff passed away on 10.01.2018.

e. As per the agreement, the time of completion and peaceful possession of the Subject Property was to be handed over by the Defendant No. 1 on or before 30.08.2017. However, due to non-completion of the same, the Defendant No. 1 repeatedly sought for extensions from the father of the Plaintiff when he was alive.

f. In lieu of the demise of the father of the Plaintiff, for the sake of completion of the project, a new Agreement to Sell dated 15.06.2018 entered into between the Defendant No. 1 and the Plaintiff. As per the said agreement, the date of completion of the project was extended from 30.08.2017 to 30.08.2018.

g. It was acknowledged by the Defendant No. 1 in the said agreement that a payment of Rs. 1,45,00,000/- was already made towards the Defendant No. 1 and that a remaining amount of Rs. 65,00,000/- was to be made. In the meanwhile, the Plaintiff has paid a sum of Rs. 15,00,000/- by way of cheques.

h. Thereafter, the time period for completion of the transaction was extended from 30.08.2018 to 31.10.2018. However, despite several reminders from the Plaintiff to oblige with its part of the performance, the Defendant No. 1 has repeatedly denied.

i. Hence, the instant plaint is filed seeking specific performance.

4. Learned Counsel for the Applicants/Defendant No. 2 and 3 submitted that the ins