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* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 1642/2010 % Judgment dated 04.03.2014 K.C SETHI ..... Plaintiff Through: Mr.Raman Duggal, Mr.Sudhir Kumar and Mr.Anish Shrestha, Advs.

versus BISHAMBAR NATH BATRA ..... Defendant Through: Mr.Kamal Mehta, Adv. for Ds=1 & 2 Mr.A.S. Chadha, Sr. Adv. with Mr.Arun Batta, Advocate for D=3 CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL

1. Plaintiff has filed the present suit for declaration, cancellation of Sale Deed dated 20.8.2009 executed on the basis of a registered General Power of Attorney dated 16.11.2007; for declaration and cancellation of Sale Deed dated 12.7.2010; for permanent injunction and mandatory injunction to declare the judgment and decree dated 9.7.2010, as rendered in Suit No.2074/2009, as null and void ab initio.

2. It is submitted by counsel for the defendants that during the pendency of the suit, the plaintiff entered into a settlement with defendant no.1. The effect of the settlement according to all the defendants is that there is no further cause of action in favour of the plaintiff to continue with the suit. Mr.Raman Duggal, learned counsel for the plaintiff, has submitted to the contrary.

3. In order to appreciate the rival submissions of counsel for the parties, it would be necessary to notice the relevant facts of this case, which have led to the filing of the present suit. The undisputed facts, which emerge from the pleadings are that the plaintiff is the sole lawful owner of the property bearing no.D-16/A, Hauz Khas, New Delhi, measuring 312.5 sq. yards (hereinafter referred to as „the suit property‟). Desirous of having this property constructed, the plaintiff entered into an Agreement of Building Construction dated 23.10.2007 with defendant no.1. As per the said Agreement, defendant no.1 was to construct the basement, ground floor, first floor and the second floor. Further, as per the said Agreement, builder‟s allocation was of the first floor. The plaintiff also executed an unregistered General Power of Attorney in favour of defendant no.1 on 23.10.2007. As per Clause 2 of the said Agreement, defendant no.1 paid Rs.35.00 lakhs, as a non-refundable deposit to the plaintiff vide cheque bearing no.665572 dated 23.10.2007, drawn on Punjab National Bank, Rajinder Nagar, New Delhi, which has since been encashed by the plaintiff. Clauses 5 and 6 of the Agreement define the owner‟s and the builder‟s share in the property.

4. It is also an admitted position that upon handing over of the property, complete in all respects, the builder was authorised to sell his allocation in the prospective building. Reliance is placed by counsel for the parties on the Collaboration Agreement /Agreement of Building Construction, which is an admitted document, between them.

5. It is the case of the plaintiff that defendant no.1 was in breach of Clauses

10, 19, 25, 29 and 30 of the Collaboration Agreement; defendant no.1 refused and neglected to complete the building in all respects; nor has he handed over vacant and peaceful possession, as contemplated in Clause

39 and therefore, in terms of Clause 30 of the said agreement, defendant no.1 ceases to have any right, title or interest in the building including the first floor.

6. As per Clause 23 of the Agreement, disputes between the parties were to be referred to Arbitration. The plaintiff invoked the arbitration clause and filed his Statement of Claim, a copy of which has been placed on record. On 4.8.2009 plaintiff‟s application under Section 17 of Arbitration and Conciliation Act was taken up for hearing. Parties were directed to maintain status quo in respect of the entire first floor of the suit property.

Defendant no.1 also filed a Counter Claim before the Arbitrator.

7. It is further the case of the plaintiff that he came to know that defendant no.1 had sold the first floor of the suit property on 6.8.2009 by means of a Registered Sale Deed dated 20.8.2009 to defendant no.2. Meanwhile, the Arbitrator disposed of