RAMESH BODHRAJ NAGPAL Vs. PRAKASHKAUR SARDAR DEELIPSINGH

JUDGEMENT

(1.) Heard learned counsel for the respective parties at length, having considered the nature of the appeal from order and controversy brought to the Court.

(2.) Admit. By consent, taken up for final disposal.

(3.) In the case on hand, there is no dispute about two development agreements (registered documents), two irrevocable power of attorneys (registered documents), deed of clarification (registered documents) and exchange of notice in between the parties. There is also no dispute regarding description of the properties. Shri. Shah, learned Sr. Advocate with these undisputed facts, invited my attention to the first written communication amongst the plaintiffs and defendant No. 1. It is the notice to plaintiffs through Advocate on 22. 3. 2005. Advocate for appellants submits that defendant no. 1 had accepted liability and responsibility for eviction of the tenants in the property. In support of his submission, he invited my attention to paragraph No. 3 of the notice dated 22. 3. 2005, page 49 of the compilation. In substance, it has been stated in paragraph No. 3 that there are tenants in the property, subject matter of development and those tenants were to be evicted from the property. The responsibility of evicting the tenants is no doubt on defendant. No. 1. It is further mentioned that there is a specific clause in the development agreement that a reasonable amount that may be required for vacating the tenanted premises will be paid by the developer (plaintiff) and those amounts would be deducted from the constructed sellable area to be allotted to defendant No. 1. Shri. Shah, Senior Advocate has also invited my attention to notice, reply and various clauses of the development agreements, power of attorneys etc. . He submitted that there is an utter failure on the part of defendant No. 1 to evict the tenants. According to him, even the details are not furnished by defendant No. 1 as to how many tenants are there and was there any negotiations amongst defendant No. l and tenants for eviction of the property etc. No efforts have been put into by defendant No. 1 seeking eviction of tenants. It is a matter of common knowledge that unless tenants are evicted from the suit property, consisting of old construction, it cannot be handed over or made available to the plaintiffs to carry out development activities and development agreements could not have been materialised. According to him, parties are warring on a point as to who has committed breach of the agreement. The plaintiffs are accusing defendant No. 1 and defendant No. 1 in contrast, putting the blame on the plaintiffs. It being a question of fact requires leading of the evidence and determination of same by the court regarding finding on question of facts. At the interim stage, according to learned Senior advocate, material which is on record, needs to be considered. In substance, development agreement executed by defendant No. 1 permits the plaintiffs to develop the property and enjoy 60% of the developed property in accordance with the development agreement, irrevocable power of attorney and deed of clarification in lieu of the consideration. Right is created in favour of the plaintiffs, which could be determined by the Court at the end of delivering the judgment in the suit itself. Till then the status quo needs to be maintained regarding the nature of the property and status pertaining to ownership of the property. In support of his submission, he relied upon a judgment of the supreme Court in the matter of Maharwal khewaji Trust Vs. Baladev Dass,2005 5 AllMR 3].