TaxTMI 
TaxTMI 
1998 (9) TMI 699
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....plaintiff No. 3 and Mrs. Prakash Bhandari for 2 Bighas and 18 bids was each. Mrs. Prakash Bhandari gifted her share in the land to her daughter, plaintiff No. 1 under a registered gift deed dated January 28, 1970. There had been dispute between the plaintiff No. 1, her son Vidur Bahree, defendant No. 3 and her brother Deepak Bhandari, defendant No. 4 about the land and that was referred to arbitration under the agreement dated March 27, 1989. By the award dated March 31, 1990, plaintiff No. 1, defendants 3 & 4 were held to be entitled to one-third share each in the land purchased by said Mrs. Prakash Bhandari. It is further alleged that plaintiff No. 3 gifted one-fifth share each of the land purchased, to her sons Anand Kumar Chopra, Satish Kumar Chopra, plaintiff No. 4 and Ajit Kumar Chopra, plaintiff No. 5 under three separate registered gift deeds, all dated April 27, 1968. Remaining 2/5th share was later on gifted under a registered gift deed dated March 6, 1985 by plaintiff No. 3 in favor of her two daughters Dr. (Ms.) Kusum Chopra, plaintiff No. 6 and Mrs. Malti Anand, defendant No. 5. It is stated that the aforesaid land was sought to be acquired by Delhi Administration and ....
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....e joint venture agreements dated 1st/11th March, 1985 have become null and void and defendants 1 & 2 be permanently restrained from interfering with the possession, use and enjoyment of the suit land by the plaintiffs and defendants 3 to 5. Defendants 1 & 2 are further sought to be restrained from using or having access to the land in suit. 4. Along with the suit, aforesaid is No. 967/93 under Order XXXIX Rules 1 & 2 with Section 151 CPC was filed by the plaintiffs and by the order dated January 27, 1993 defendants 1 & 2 were restrained from interfering with the possession, use and enjoyment of the land in suit by the plaintiffs besides being restrained from holding out threat or removing the chowkidar of the plaintiffs there from. 5. Defendants 1 & 2 contested that suit by filing written statement. Aforesaid is No. 2127/93 under Order XXXIX Rule 4 read with Section 151 CPC was further filed by them for vacation of the ex-parte order dated January 27, 1993. In the written statement and the IA, execution of the five joint venture agreements dated 1st/11th March 1985 is admitted by defendants 1 & 2. However, it is stated that under these agreements following impediments were to....
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.... 5 in favor of defendant No. 2 pursuant to the aforesaid joint venture agreements were irrevocable. Had the plaintiffs and defendants 3 to 5 not entrusted the job of seeking exemption under Section 20 of the Act to defendants 1 & 2, the building would have been completed long back. It is emphatically denied that the aforesaid joint venture agreements have lapsed by efflux of time, as alleged. It is stated that the order dated January 27, 1993 deserves to be vacated. 7. In this appeal main contest is between defendants 1 & 2, on the one hand, and the plaintiffs, on the other hand. We have heard Sh. Arun Jaitley, Senior Advocate, appearing for defendants 1 & 2 and Sh. Ravinder Sethi, Sr. Advocate, for the plaintiffs and have also been taken through the record. 8. One of the submissions made by Sh. Jaitley was that all the three impediments referred to in para 20 of the joint venture agreements dated 1st/11th March, 1985 were removed within 2-1/2 years of the execution of these agreements by the appellant/defendants 1 & 2. It was on the insistence of the plaintiffs and defendants 3 to 5 respondents who did not want to surrender the excess vacant land, that the defendants 1 & 2 t....
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.... 2 have no applicability to the facts of the instant case. 10. Relying on the decisions in Shambhulal Panalal Vaish Vs. Secretary of State, AIR 1940 Sing 1, M/s. Hind Construction Contractors Vs State of Maharashtra, [1979] 2 SCR 1147 & K. Abdulkhadar Vs The Plantation Corporation of Kerala Ltd., AIR 1983 Ker 1, it was further submitted by Sh. Jaitley that the point whether time is essence of the contract, is a question of intention of the parties to be gathered from the terms of the contract and the provision for imposition of penalty and extension of time militate against such an inference. According to him, since clause 5 of the agreements dated 1st/11th March, 1985 provide for imposition of damages @ 10,000/- per month on defendants 1 & 2 in the event of their stopping or delaying the construction work, the period of five years could not have been the essence of contract in this case. As a part of this submission relying on the decisions in Govind Lal Chawla Vs . C.K. Sharma & Ors. AIR 1978 All 446, it was also contended by him that in cases involving immovable properties, time can never be the essence of the contract. There cannot be any quarrel in regard to the proposition....
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.... building is to be constructed or other work is to be executed." 12. On a bare perusal of the above provision it is manifest that for applicability thereof there should be a suit for specific performance of the contract for construction of building or the execution of any other work on land. At the cost of repetition it may be stated that the present suit is for declaring the joint venture agreement dated 1st/11th March, 1985 as null and void and for permanent injunction. Defendants 1 & 2 have not filed any suit for specific performance of the said agreements so far. They can be compensated in terms of money. Therefore, apparently no help can be sought from the said provision by defendants 1 & 2. 13. This brings us to yet another important submission advanced by Sh. Jaitley that defendants 1 & 2 were put in possession over the suit land under the agreements dated 1st/11th March, 1985 in part performance thereof and, Therefore, they are entitled to protect their possession by virtue of the provision contained in Section 53A of the Transfer of Property Act. Additionally, it was urged that defendants 1 & 2 had an implied irrevocable license to occupy the suit land until completi....
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....ongly, and until the validity of the determination, which was disputed, had been satisfactorily established in arbitration or litigation no injunction should issue. The case is analysed and heavily criticised as being inconsistent with both consensual and practical considerations in a construction context. It has been expressly not followed in a number of powerful judgments independently arrived at in Victoria, New South Wales and New Zealand. It has been more recently doubted in England....." 16. From the aforesaid statements made in both the Articles it is manifest that the legal position enunciated in Hounslow London Borough's case (supra), is no more a good law. Possession of the suit land delivered to defendants 1 & 2 at the time of the execution of the agreements dated 1st/11th March, 1985 was only by way of temporary measure for undertaking the construction work by them and the exclusive possession thereof in legal sense remained with the executants of the said agreements. Thus, defendants 1 & 2 prima facie are not entitled to protect their possession over the suit land under said Section 52-A of the Transfer of Property Act. 17. Lastly, it was canvassed on behalf ....