Civil Revision No. 6506 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 6506 of 2011 Date of decision. 17.11.2011 M/s Guiding Force Developers(Pvt.)Ltd. & Ors. .... Petitioners Versus M/s RPS Infrastructure Ltd. and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Akshay Bhan, Advocate for the petitioners. **** Vijender Singh Malik, J. This is plaintiffs' revision petition under the provisions of Article 227 of the Constitution of India praying for setting aside the order dated 19.09.2011 (Annexure P-1) passed by learned Additional District Judge, Faridabad, vide which the appeal preferred by them against the order dated 21.04.2011 passed by learned Additional Civil Judge (Senior Division), Faridabad has been dismissed. It may be mentioned here itself Civil Revision No. 6506 of 2011 --2-- that the application of the plaintiffs/petitioners under Order 39 Rules 1 and 2 read with section 151 CPC has been dismissed by learned Additional Civil Judge (Sr. Divn.), Faridabad while similar application filed by defendant no.1 has been accepted restraining the plaintiffs from unlawfully entering at the construction site, which is in possession of defendant no.1 and creating any sort of hindrance in the smooth construction at the spot. Briefly stated the case of the plaintiffs is that plaintiffs no. 1 and 2 are joint owners in possession of land measuring 22.762 acres while plaintiff no.3 is owner in possession of 2 acres of land situated in the revenue estate of village Baselwa. The plaintiffs desired to develop the said land into a residential colony/group housing/plotted colony. Defendant no.1 was in the business of developing such colonies and after negotiations, defendant no.1 entered into a collaboration agreement on 14.5.2008 with plaintiffs no.1 and 2 for developing the aforesaid land into a colony. They were to share the sale proceeds in the ratio agreed by way of the collaboration agreement. Defendant no.1 was also to obtain all sanctions and permissions from the concerned authorities for change of land user etc. A supplementary collaboration agreement was also executed between the parties on 15.5.2008. As there were some incumbrances on a portion of the land, defendant no.2 was given a sum of Rs.38,00,000/- for removal of those incumbrances. Civil Revision No. 6506 of 2011 --3-- Disputes arose between the parties when the plaintiffs thought that defendant no.1 was not paying the amount due to them and defendant no.1 found the plaintiffs to be not cooperating with it in making the requisite applications. Defendant no.1 also found that the plaintiffs could not get their title cleared in respect of land measuring 3.862 acres and for that reason, the matter of obtaining letter of intent/licence by defendant no.1 got late and could obtain licence from DTPC on 19.01.2002 after a delay of 16 months on account of the inaction on the part of the plaintiffs. It is also the case of defendant no.1 that under the terms of collaboration agreement, defendant no.1 was having the right to raise funds by mortgaging the land, but it could not do so for non- cooperation of the plaintiffs in this regard. The plaintiffs consequently brought a suit for permanent injunction restraining defendant no.1, its agents and servants from interfering with the possession of the plaintiffs over the suit property or carrying out construction activities in any manner in the same. They have also sought permanent injunction restraining defendant no.1 from selling the plotted land to third parties and creating any third party interest in the same. They have also sought ad-interim injunction to the aforesaid effect by filing application under Order 39 Rules 1 and 2 read with section 151 CPC. Civil Revision No. 6506 of 2011 --4-- On the other hand, defendant no.1 did not dispute the execution of collaboration agreement and supplementary collaboration agreement dated 14.5.2008 and 15.5.2008 respectively. They have claimed that plaintiffs no.1 and 2 had title to 18.90 acres of land only and contrary to their assurance of getting the title regarding the remaining land cleared, they did not do so. Consequently, licence for a lesser area was granted. It has claimed to have paid huge amount to the plaintiffs from time to time. It was further averred that on account of non-cooperating attitude of the plaintiffs, defendant no.1 could not raise a bank loan because they did not come forward to mortgage the land. It is alleged that the interest of 364 customers has already been created in the project and the project has to be completed in a time bound schedule. Defendant no.1 has sought ad- interim injunction restraining the plaintiffs from entering at the construction site and creating any sort of hindrance in the smooth construction at the spot. Hearing learned counsel for the parties, learned Additional Civil Judge (Sr. Division), Faridabad decided the applications under order 39 Rules 1 and 2 read with section 151 CPC of the plaintiffs and defendant no.1 vide order dated 21.4.2011. While the plaintiffs were not found to have a prima facie case, balance of convenience etc. in their favour, whereas defendant no.1 satisfied all those requirements. The application of the plaintiffs was consequently dismissed and that of Civil Revision No. 6506 of 2011 --5-- defendant no.1 was allowed restraining the plaintiffs from unlawfully entering upon the construction site, which is in possession of defendant no.1 and creating any sort of hindrance in the smooth progress of the project at the spot. Learned Additional Civil Judge (Sr. Division), Faridabad, however, declined the relief to defendant no.1 regarding publication notice dated 3.4.2011 because such relief could not be granted as ad-interim measure. Aggrieved by the said order, the plaintiffs preferred appeal, which was decided by learned Additional District Judge, Faridabad, vide judgment dated 19.09.2011. At the cost of repetition, it may be said that learned appellate court dismissed the appeal of the plaintiffs. Still dis-satisfied with the aforesaid order, the plaintiffs have brought this revision petition. I have heard Shri Akshay Bhan, learned counsel for the petitioners and have gone through the record. Learned counsel for the petitioners has submitted that he presses the revision petition only for grant of the relief against creation of 3rd party rights in respect of the land in question before the dues of the plaintiffs/petitioners are cleared. According to him, whatever has been done so far is not sought to be undone by the petitioners in this revision petition. He has submitted that respondent no.1 has not paid the full amount due to the petitioners. Civil Revision No. 6506 of 2011 --6-- He has further submitted that collaboration agreement and supplementary collaboration agreement are not denied in this case and the amounts, which were admittedly payable to the petitioners were not even paid by respondent no.1. He drew my attention in this regard to a copy of the written statement filed by defendant no.1 in the suit brought by the petitioners where in para no.22, it has though denied its liability to the tune of more than Rs.42 crores but has admitted its liability in a sum of Rs.36,61,95,778/- to the petitioners. According to him, defendant no.1 has admitted having paid only a sum of Rs.25,98,73,720/- to plaintiffs no.1 and 2 and a sum of Rs.2,19,78,080/- to plaintiff no.3. According to him, defendant no.1 is liable to pay the difference of amount due and the amount paid before creating any further interest in favour of 3rd parties in respect of the suit land. To support his submissions, learned counsel for the petitioners has cited before me two decisions of Hon'ble Supreme Court of India and two decisions of this court. They are in cases Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, AIR 2005 (SC) 104, N. Srinivasa v. Kuttukaran Machine Tools Ltd. AIR 2009(SC) 2217, Smt. Rita Toor v. Logical Developers Pvt. Ltd. (2010) 158 PLR 499 and Civil Revision No.2166 of 2011 titled as Kamal Kant Gupta v. Smt. Shashi Sawhney and others decided on 29.03.2011. It has been noticed by the courts below that the collaboration agreement is not only irrevocable but alteration in its terms cannot be Civil Revision No. 6506 of 2011 --7-- made without the consent of defendant no.1. The land in question is in possession of defendant no.1 and the project is being executed by it. If defendant no.2 would not create interest in favour of 3rd party, it cannot raise the requisite funds, the share of which has to be paid to the plaintiffs. Restraining defendant no.1 from creating 3rd party rights would be interfering in its right granted under the collaboration agreement, which is irrevocable. When the petitioners were instrumental in delay in carrying out the project by not getting the title to a part of the land cleared and had rather prevented defendant no.1 from raising funds from the bank as despite request they did not come forward to create mortgage of the land in favour of the bank, the funds would be raised by creating 3rd party interest. If defendant no.1 is restrained from doing so, it will be starved of funds and the petitioners would be successful in achieving its goal of preventing defendant no.1 from completing the project. It would have negative consequences and would lead to large number of cases. In these circumstances, learned courts below have examined the matter threadbare and have committed no illegality or perversity in appreciating the matter and as such passing the impugned orders. The decisions cited before me lay down general principles, which are not in controversy in the revision petition before me. In Maharwal Khewaji Trust (Regd.), Faridkot's case (supra), the principle laid down is that nature of property should not be changed unless case of irreparable injury Civil Revision No. 6506 of 2011 --8-- is made out. There is no question of defendant no.1 changing the nature of the property. It is rather authorized to do what it is doing. The land in question was to be developed into a colony and he is doing the same thing. For these reasons , I find no reason to interfere with the impugned orders. Consequently, the revision petition is dismissed. 17.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE