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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Pronounced on: 15^th December, 2021

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CS(OS) 576/2021, I.As.14345/2021 (of plaintiff u/O XXXIX

R-1&2 CPC for interim relief) & 14346/2021 (of plaintiff u/S

149 r/w Section 151 CPC for extension of time of ten days for

filing the balance court fees)

SAMEER MADAN

..... Plaintiff

Through:

Mr. Kishore M. Gajaria and

Mr. Aayush Paranjpe, Advocates

Versus

ASHOK KUMAR KAPOOR

..... Defendant

Through:

None

CORAM:

HON'BLE MS. JUSTICE ASHA MENON

1.

The suit has been filed seeking specific performance of a

Collaboration Agreement dated 18^th July, 2021 along with prayers for

grant of permanent and mandatory injunction against the defendant. In

the alternative, damages to the tune of Rs.2,10,00,000/- have been

claimed against the defendant for attempting to cancel the said

Collaboration Agreement dated 18^th July, 2021.

J U D G M E N T

2.

The suit is in respect of property bearing No.D-89, situated at

Ashok Vihar, Phase-I, Delhi-110052. The defendant is stated to be having

75% share in the said property and in actual, physical possession of his

share, while his brother had 25% share in the said property, which the

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wife of the plaintiff claims to have purchased through an Agreement to

Sell from him for a sum of Rs.3,23,00,000/-, Rs.30,00,000/- having been

paid towards earnest money.

3.

Mr. Kishore M. Gajaria, learned counsel for the plaintiff, submitted

that a Collaboration Agreement was entered into between the plaintiff and

the defendant for re-development of the property and the same had been

duly signed by the defendant. However, subsequently, he issued a Notice

dated 31^st July, 2021 to the plaintiff stating that the Collaboration

Agreement was an invalid document as it lacked in ‘consideration’ and

had been forced upon the defendant, taking advantage of his age. The

plaintiff responded to the said notice. There were WhatsApp

communications and talks on the phone between the parties, but the

defendant claimed he was being prevented from acting on the

Collaboration Agreement by his son and daughter-in-law. Learned

counsel submitted that it was in these circumstances that the suit has been

filed and it was fully maintainable.

4.

Learned counsel submitted that the cause of action to file the suit

was clearly disclosed as the defendant in the telephonic conversations, as

recorded and transcribed by the plaintiff and placed on the record as

document No.6 of the E-file, clearly affirms having entered into the

Collaboration Agreement. Therefore, there was an agreement in

existence, which the defendant could be directed to perform. It was

submitted that the adamance of the defendant has made it impossible for

the Collaboration Agreement to be executed. The plaintiff had suffered a

loss due to the defendant’s non-performance as he had raised huge loans

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from the market and had purchased building materials worth

Rs.10,00,000/- too. He had also lost an amount that he would have

otherwise earned on the deal. These losses he was seeking to recover

through the suit.

5.

The learned counsel submitted that the Collaboration Agreement

contained reciprocal promises. The plaintiff had undertaken to construct

the property and the defendant did not have to spend any money. In

return, the defendant had to transfer two floors and 25% of the stilt

parking to the plaintiff. Thus, the consideration was the amount to be

spent on construction. Each party’s promise was the consideration for the

reciprocal promise. Since this promise of constructing two floors and

handing over the same to the defendant was “valuable”, this satisfied the

definition of ‘consideration’ under Section 2(d) of the Indian Contract

Act, 1872. Relying on the decisions of the Supreme Court in Union of

India v. Chaman Lal Loona & Co., 1957 SCR 1039 and Chidambara