Asha Wazir vs Apex Apartments Pvt. Ltd. & Ors.

Cheque

No.",Date,Amount,Drawn On

495954,28.09.1987,"85,500/-",State Bank of India

495958,28.10.1987,"85,500/-",State Bank of India

758487,27.12.1987,"85,500/-",State Bank of India

495959,23.01.1988,"35,500/-",State Bank of India

758491,23.01.1988,"50,000/-",State Bank of India

758492,22.01.1988,"85,500/-",State Bank of India

495965,15.03.1988,"1,28,250/-",State Bank of India

You have not paid the installment no.9 for Rs.85,500/- and have committed default of the agreed terms of the Allotment Letter dated 28",,,

September 1987. You have further not given any response to the communications made with you.,,,

In spite of all our best efforts and utmost cooperation, you have failed to make the agreed payments as per the Allotment Letter, and have",,,

breached the terms and conditions of the above said Allotment Letter agreed to by you. In pursuance to Clause 2 of the Allotment Letter,,,

dated 28 September, 1987, we therefore cancel/terminate the allotment of the flat no.G2 made to you under the said Allotment Letter. As",,,

provided in clause 2 of the said Allotment Letter we have forfeited your 20% of the agreed cost of the flat.,,,

Please call upon us after making a prior appointment to collect the amount lying in your account after necessary deductions of 20% as,,,

provided in the above said Allotment Letter.,,,

Very truely yours,",,,

Sd/-,,,

ADITYA VIKRAM VAID,,,

Director""",,,

Mr. Vohra emphasises that there is an admission on behalf of the plaintiff that her father i.e. the original applicant had moved to Bombay and,,,

occasionally came to Delhi due to which he could not keep a track of the construction and completion of the flat.,,,

Learned counsel for defendant states that the cause of action for filing the present suit arose on 30th September, 1989, as the said date was",,,

stipulated in the Agreement as the date for performance. In support of his contention, he relies on Clause 4 of the Allotment Agreement, which is",,,

reproduced hereinbelow:-,,,

“4. The Building is proposed to be completed barring unforeseen circumstances by 30th September, 1989 (Subject to usual force",,,

majeure clause).â€​,,,

In the alternative, learned counsel for defendant contends that as on 24th August, 2007, the plaintiff had sent a legal notice to the defendants",,,

alleging that they had been delaying the transfer of the flat on false grounds and had no intention of transferring the flat in favour of the plaintiff, the",,,

cause of action for filing the suit arose at least on said date. He states that as the present suit has not been filed within three years of the said date, it",,,

is barred by limitation.,,,

Per contra, Mr.Rajan Tyagi, learned counsel for plaintiff states that though the required payments in accordance with the schedule of payment",,,

were made by the plaintiff, yet the defendants did not complete the construction by 30th September, 1989.",,,

Learned counsel for plaintiff points out that on coming to know that the construction of the third floor had not yet been completed, the plaintiff vide",,,

communication dated 20th April, 2004 enquired as regards the status of the construction from the defendants and was informed that the same was",,,

held up due to a Court case pending at Delhi. Mr. Tyagi states that the defendants in response to the said communication vide their lawyer's letter,,,

dated 27th April, 2004 requested the plaintiff to provide a certified copy of the Death Certificate as well as the Probate Certificate to proceed in the",,,

matter.,,,

Subsequently, the plaintiff enquired through her attorney and came to know that there was no sanction for construction of the third floor.",,,

Learned counsel for plaintiff states that the averment made by the defendants in their written statement to the effect that the construction of the,,,

building was complete by 30th September, 1989 is incorrect as the building remained sealed from 1991 till 2001. He states that delay in construction of",,,

flat has deprived the plaintiff of the benefits of her property. He relies upon the statement of defendant No.2-Mr. Aditya Vikram Vaid recorded by the,,,

Joint Assessor and Collector, MCD in 2005 to show that the building was not complete even on 3rd February, 2005 much-less in 1989. Learned",,,

counsel for plaintiff emphasises out that the said statement was made by defendant so that no tax was levied on the incomplete building. The,,,

statement of Sh. Aditya Vikram Vaid is reproduced hereinbelow:,,,

Property No.E-480, G.K.II",,,

Shri Aditya Vikram Vaid appeared in connection with the rectification and finalization of the pending proposal and informed that the,,,

property consisting of basement on Front side (West), GF, FF, having CA of 3405 sft. (each floor) and 2520 sft. On the SF and rear",,,

basement floor (East Side) having CA of 3618 sft., total 16353 sft. And out of this, they sold out 2991 sft. at rear basement (East Side). CA",,,

of 627 sft. rear basement (east side), 3405 sft. (GF), 3405 sft. FF and 2520 sft. SF-total 9957 sft. was incomplete and is still incomplete and",,,

has never been in habitable condition since there is no flooring, no doors, windows etc. Since the construction is un-finished hence is not fit",,,

for living purpose. Only 3405 sft. basement (LGF) on Front Side (West) is under self residential use and tax should be levied only on this,,,

portion only....""",,,

Consequently, according to Mr.Rajan Taygi, the stage for making the last two instalments has not arrived till date and the present suit is within",,,

limitation.,,,

In support of his contention, learned counsel for plaintiff relies on the judgment of this Court in L.M. Nagpal & Ors. Vs Fatehji & Co. & Ors.,",,,

2013 (138) DRJ 464 wherein it has been held as under:-,,,

In this regard, it may also be noticed that though the written Agreement to Sell between the parties did fix a date for performance but",,,

the parties subsequently by their writings gave a go-by to the date so fixed for performance and extended it from time to time. The,,,

appellants/plaintiffs plead that it was still further extended orally. The senior counsel for respondents/defendants has been unable to,,,

contend that there was any bar to such oral extension of the time fixed for performance. Once it is held that it was permissible for the,,,

parties to after some written extensions of the time fixed for performance, orally/verbally extend the time for performance, it becomes a",,,

matter of evidence whether they did orally/verbally extend the time for performance till after the receipt of the permissions from the L&DO,,,

and Income Tax Department. If the appellants/plaintiffs prove such a oral/verbal agreement or representations, then the first part of Article",,,

54 of the Schedule to the Limitation Act would cease to apply and the time from which the limitation of three years prescribed for filing a,,,

suit for specific performance would commence would be from the date when the appellants/plaintiffs had notice that performance is refused,,,

and which date as per the averments in the plaint is within three years prior to the institution of the suit.,,,

“54,"For specific performance of a

contract.",Three years,"The date fixed for the performance, or, if no

such date is fixed, when the plaintiff has

notice that performance is refused.â€​