Decided on May 16,2007



SANJAY KISHAN KAUL, J. - (1.) The plaintiffs have filed the present suit making the following prayers: "a)Pass a decree of declaration to the effect that the agreement to sell dated 30.4.1993 executed between the defendant No.1 to 3 and defendant No.4 is null and void. b)Pass a decree of declaration in favour of the plaintiff and against the defendants declaring that the decree dated 28.3.2003 passed in Suit No.749 of 1994 is a nullity in the eyes of law and the same is not binding upon the plaintiff in any manner and the said decree be cancelled. A direction may also be issued to the Revenue Authorities to de-mutate the mutation if any effected in favour of the Defendant No.4 in respect of the suit property. c)Pass a decree of permanent injunction permanently restraining the defendants and/or every other persons acting on their behalf including their agents, attorneys, accomplices and servants from interfering with the actual possession and renovation/construction of the plaintiff in respect of the suit property and restraining them from creating any further any charge, encumbering or third party right pursuant to the passing of the decree dated 28.3.2003, in respect of the suit property bearing Nos.S-23, Panchsheel Park, New Delhi. d)Pass a decree of mandatory and permanent injunction restraining the defendants from not to use the suit property same except for residential purpose and in accordance with the sanctioned lay out plans."
(2.) The plaintiffs claimed that in the year 1993 it had developed a Satellite Town, Phase-I, Okhla Enclave, Faridabad for a value of approximately Rs.12.22 crore, awarded by defendant No.1. Thereafter the work was also awarded for Phase-II of the project which was carried out by the plaintiff and by July 1993, the plaintiffs had executed the works of the value of Rs.3.15 crore to the satisfaction of defendant No.1. The payments due under the contract are stated not to have been made by defendant No.1 but instead defendant No.1 is stated to have approached both the plaintiffs that in lieu of the work executed by the plaintiffs for development of the township, the title deeds of the suit property bearing No.S-23, Panchsheel Park (hereinafter referred to as the suit property) would be deposited with the plaintiff company as collateral security.
(3.) In December 1992, defendant No.2, who was the overall in-charge and responsible for the affairs of defendant No.1 company is stated to have located the suit property and a deal is stated to have been finalised between defendant No.2 and late Shri K.D. Somaia in respect of the suit property towards the end of January 1993. The possession with original title deed of the suit property are stated to have been given to defendant No.2 on 27.1.1993, who in turn handed over the possession of the first floor along with terrace rights and other common area of the suit property to the plaintiffs and further created a mortgage in favour of the plaintiff in respect of the suit property by depositing the said original title deeds. In the end of February 1993, late Shri K.D, Somaia, the owner of the property is stated to have executed a Will and a Power of Attorney in favour of defendant No.2 and defendant No.2 in turn handed over the original documents to the plaintiff. The object of taking over of possession of the first floor was to have a small set up in the said property for the purposes of co-ordinating their works for the Okhla Enclave project. The arrangement did not work out and the plaintiff set up another office at the site itself. In March 1993, defendant No.2 is stated to have approached plaintiff No.2 for sale of the suit property and for use of the money for buying alternative office accommodation. The name of defendant No.4 was suggested as a prospective buyer. This was objected to by plaintiff No.2 and thus the proposal was dropped. Plaintiff No.1 is stated to have continued to use the first floor along with terrace for the purposes of keeping the records of the company till late 1995. The business relations between the plaintiff company and defendant No.1 are stated to have grown resulting in financing of projects of defendant No.1 by the plaintiff No.1 company. This is stated to have commenced some time in January 1994. To secure the loan mortgages are stated to have been created in respect of various properties towards the end of 1994-1995 as the suit property was not sufficient to cover the entire liabilities of defendants 1 and 2.;

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