IN THE HON’BLE COURT OF LD. SENIOR CIVIL JUDGE;

NEW DELHI DIST.; XXXXXX COURTS,

NEW DELHI.

CIVIL SUIT NO. _____ OF 20__.

IN THE MATTER OF :-

XXXXXX XXXXXXXXX                                           : PLAINTIFF

VERSUS

XXXXXXXXX& ANR.                                           : DEFENDANTS

WRITTEN STATEMENT AND ON BEHALF OF THE DEFENDANT NO. 2 TO THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION FILED BY THE PLAINITFF.

MOST RESPECTFULLY SHOWETH :-

That the instant written statement is based on the limited information provided by the plaintiff in the aforesaid suit. Before rebutting the contents of the suit, the answering defendant no. 2 crave leave to place on record certain preliminary submissions / objections and material facts, which are without prejudice to their rights and contentions, but which go into the root of the matter, and require to be decided by this Hon’ble Court, before adjudicating upon the matter. The said submissions / objections and facts, as stated hereinafter for the consideration of the Hon’ble Court for proper determination of the issue involved, would show that the said suit is totally irrational and baseless, hence, frivolous and vexatious, both in law and fact.

PRELIMINARY SUBMISSIONS / OBJECTIONS:-

1.                 It is stated that the present suit filed by the Plaintiff is false, frivolous, fabricated and vexatious. It is an abuse process of law that the plaintiff has taken recourse of falsehood and fraud. A bare perusal from the present suit clearly reveals that the plaintiff got the same filed with ulterior motives and malafide and wrong intentions just to drag the answering Defendant no. 2 (hereinafter called as “Defendant”) into unwanted and frivolous litigation and to prejudice the Defendant on one hand or the other.

2.                 That the Plaintiff has no locus standi to file and pursue the present suit in the capacity of the owner of the second floor of the suit property, as except the bare statement in plaint that Plaintiff is the owner to occupation of second floor flat, the Plaintiff despite filing additional documents has failed to furnish any proof of his rights as the owner of the said portion of the property. Thus the present suit is liable to be dismissed on this ground alone especially against the Defendant no.2.

3.                 That it is submitted by the answering defendant is the owner of the a) Basement along with, Ground floor and b) Terrace over second floor of the suit premises (Both a. and b. have separate sale deeds) and there is no illegal construction at the ground floor or basement of the property bearing no.XXXXXX XXXXXXX, New Delhi and the entire plinth area is exactly the same as purchased by the defendant no.2 as per registered sale deed from the erstwhile owner in May, 2011.

4.                 Thai the present suit is a counter blast of the plaintiff, as the defendant no. 2 refused the offer of the plaintiff for extension or front balcony and extension of back portion rooms of the plaintiff on his second floor at the cost of the answering defendant in lieu of compensation to allow the answering the defendant to throw the mud from the basement of the suit premises.

5.                 The answering defendant submits that the plaintiff has asserted and even refused that the answering defendant has no right to use the common passage/driveway, however the answering defendant is the owner of the terrace over second floor of the suit premises which specifically entitles him to all rights as available vide the registered sale deed in favor of the defendant no. 1.

6.                 It is also submitted that the plaintiff does not recognize any land right of the terrace in spite of sale deed in favor of answering defendant stating clearly that as the terrace owner the defendant no. 2 owns 20% of the land share out of the whole plot. Further, the Plaintiff has told this time and again to the answering defendant that such a situation will be created that the defendant no. 2 will be forced to sell terrace to the plaintiff only and no one else. This suit is nothing but frustration of plaintiff since the defendant no. 2 refused to allow him further extension of balcony and rooms at back portion of the building and locked the terrace which was plaintiffs free accessible area where he and his staff roamed about blatantly with a purpose to show their prowess and with a view to dislodge the defendant no. 2 of its exclusive rights as owner of the terrace and grab the property of the defendant no. 2.

7.                 That the answering defendant further submits that there is no digging or illegal construction in the basement of the suit premises tilt date and the MCD officials may visit the suit premises and submit its report qua the same. Even otherwise it is submitted that constructing a basement especially in an existing house is technically a challenging and intricate task that requires lot of time and expertise of experienced professionals and licensed contractors who specialize in such excavations, therefore secretly constructing/ extending basement is only a hallucination that the plaintiff is wanting to believe in.

8.                 That the defendant no. 2 states that there is also no illegal coverage or construction at the back portion of the ground floor of the suit premises. That the entire built up area of the basement and ground floor of the suit premises are as per MCD norms and regulations and there is no illegal construction at the suit premises by the Defendant no. 2 till date. The entire built up area of the ground floor and basement of the suit premises is the same as mentioned in the sale deeds in favor of the defendant no.1 dated 28.05.2011.

9.                 That the answering defendant submits that the defendant no.1 himself is residing in the suit promises along with his aged mother, wife and two children and on the contrary the plaintiff is residing alone at the second floor of the suit premises, and till date there has been no objection nor any issue as regards. The water supply to any of the other occupants of the suit premises including the plaintiff, It is pertinent to mention here and has also been admitted by the plaintiff that water tanks are common to all floors, so there is no way in which one floor gets supply, whereas any other is deprived of the same.

10.             That the answering defendant submits that he has the defendant no.1 had put a lock on the terrace of the second floor of the suit premises, which belongs to the defendant no.2 exclusively. Even otherwise the answering defendants have informed the plaintiff as well occupant/resident on first floor of the suit premises personally, as well as by email and message pasted on door.

11.             That the answering defendants submits that he has put lock on the terrace over second floor of the suit premises due to illegal lettering and unabated trespassing and\other indecent and unlawful activities being noticed by the defendant no. 2 on his terrace floor. Further it is submitted that the keys of the said lock are available with the guard of the defendant no. 2 to the plaintiff as well resident of first floor of the suit premises as and when required, at all reasonable hours.

12.             That the answering defendant further submits that the plaintiff has malicious intention to dislodge physical possession of terrace over second floor of suit premises and to arm twist the defendant no. 2 to eventually to sell his terrace over second floor of the suit premises at a throw away price, has filed the present suit in order to harass the defendant no. 2.

13.             That without prejudice to the right and contentions of the defendant, further without admitting it is submitted that the documents filed by the plaintiff alongwith the suit cannot be taken on the record as same is not pleaded properly in the suit and the documents on which reliance has been placed by the plaintiff cannot be read as a part of the pleading as same has not been found mentioned in the contents of the suit. It further pertinent to mention here that Plaintiff have relied on incomplete document which failed to show any direct nexus in the suit and the grievances between the averments made portrayed by the Plaintiff.

14.             That the plaintiff has deliberately and mischievously withheld material facts and has instead sought to notorious filed a present suit on a baseless and concocted story with an attempt to harass the Defendants, had the Plaintiff known the ground situation prevailing her would herself had understood the whole scenario and Plaintiff must have thereon tried to persuade so the good sense would have prevailed upon her.

15.             That the allegations in the plaint under reply are vague and devoid of any specificity, further the allegations raised in the plaint under reply are conclusively rebutted by the submissions made in the present reply coupled with the fact that the Plaintiff has failed to establish her case in the plaint under reply and the said allegations are vague and baseless resulting which the same is frivolous, vexatious and a gross abuse of the due process of law.

16.             That the present suit has not been properly valued for the purpose of court fees and jurisdiction and is therefore liable to be rejected outrightly. There is absolutely no cause of action in favour of the plaintiff and against the answering defendant.

17.             At the outset, the answering defendants deny and dispute all the contentions, claims, demands, allegations, averments, imputations and insinuations of the plaintiff, save and except what are matters of record and what have been specifically admitted herein. The suit is totally frivolous and contrary to the well established law and binding judicial precedents.

18.             That the plaintiff has not approached this Hon’ble Court with clean hands as such the aforesaid suit is liable to be dismissed on this ground alone.

19.             That there is no cause of action arising against the answering defendants and the present suit is liable to be dismissed in view of the proceedings of Order VII Rule XI C.P.C.

20.             That the present suit is false, malicious, incorrect and malafide and is nothing but abuse of process of law and is wasting the precious time of this Hon’ble Court and has been filed just to avail undue advantage as such the present suit is liable to be dismissed.

21.             That the plaintiff has no cause of action against the answering defendant and the suit filed by the plaintiff is totally misconceived, baseless and frivolous and is not maintainable in law.

REPLY ON MERITS :-

1.                 That in reply to para 1 of the plaint are matter of record. Hence, need no reply. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

2.                 That in reply to para 2 of the plaint is want of knowledge matter, hence need no reply. Hence, need no reply. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

3.                 That in reply to para 3 of the plaint are denied to the extent that the Defendant had abruptly started un-authorized activities and had started to harass and humiliate the Plaintiff on one pretext or the other. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

4.                 That in reply to para 4 of the plaint are wrong and denied. It is denied that in terms of the said agreement the said property was to be constructed up-till the second floor and the owner was entitled to the basement measuring approx 600 Sq. Ft, Ground Floor with front and rear set back, open terrace over and above the second floor, drive way (adjoining property no.31), use of common areas and proportionate undivided, Indivisible and impartible ownership rights in the said property. It is further denied that the plaintiff is the owner of the second floor and he has come to know that Mr.XXXX  , director of XXXXX Pvt. Ltd. has purchased the share of the erstwhile owner. It is further denied that the said purchasers have however, purchased the said share in piece-meals thereby affecting the very nature of the property in question. It is further denied that the said property was to be impartible in nature and could not have been purchased in piece­meals. It is further denied that the subsequent sale deed executed in favour of XXXXXX Pvt. Ltd- mentions/ defines the share of the purchaser as 20% indivisible undivided rights, itself demystifies the malicious act done during the registry of the terrace portion. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

5.                 That in reply to para 5 of the plaint are wrong and denied. It is denied that  such action of the purchasers/defendant no.2 apart from being invalid also puts the undersigned in a detrimental situation as the share of the undersigned in the ground underneath the building of the property is affected by their shares in the properly. It is further denied that having said that, the purchaser was completely aware of the limitations set forth in the collaboration agreement and that he was also aware that he was bound by the same. It is further denied that a well-founded law that no one can claim unjust enrichment. It is further denied that even as per the collaboration agreement the total floor area ratio sanctioned on the said plot of land by the MCD has been equally divided between all the floors i.e., ground, first and second floor and therefore by specifically mentioning and conveying 20% share as stated herein above, the defendant no.2 has tried to purchase rights in the property more than he could. It is further denied that the defendant no.2 has intentionally made an invalid and void deed at the back of the plaintiff and by misleading the defendant no.1 in order to increase his share in the property and thereby decreasing the share of the plaintiff in the said property. It is further denied that the execution of both the sale deeds in favour of the defendant no. 2 have detrimentally affected the plaintiff. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

6.                 That in reply to para 6 of the plaint are wrong and denied. It is denied that the plaintiff came to know about the said aspect much recently as he was not privy to the documents executed in favour of the defendant no. 2, alter coming to know about the same the plaintiff since last few months had been trying to request the defendant no.2 to get the said documents amended as the plaintiff not being a party to the said document could not take steps before the registrar. It is further denied that the defendant no.2 through Mr. XXXXXX rather than paying heed to the just request of the plaintiff, mocked him and in a rude tone stated that the plaintiff is a loner and an old fellow and tried to assert his right over the property and asked the plaintiff if he wanted to sell his portion in the property at throw away prices. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

7.                 That in reply to para 7 of the plaint are not related with the answering Defendant, hence need no reply. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

8.                 That in reply to para 8 of the plaint are wrong, denied and incorrect. It is further denied that recently, the plaintiff has come to know from reliable sources that the defendant no.2 is in a bid to dispose of a portion of the said impartible property and is inclined to transfer /alienate the share in the property as wrongly /in advertently mentioned in the impugned sate deeds. It is further denied that although the plaintiff tried to convince the defendant no.2 not to do so, as it cannot be done in the present situation, however no heed has been paid. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

9.                 That in reply to para 9 of the plaint are wrong and denied. It is denied that the defendant no.2 filed the additional written statement in the earlier pending Suit, i.e. suit no. 1589/2018, and has revealed his intention to construct on the 3rd floor of the Suit property in complete defiance to the existing building bye-laws and with utmost disregard to the safety and rights of the plaintiff herein. It is further denied that the intentions of the defendant are clearly malicious, he openly brags that his father was a senior officer in MCD and no power on earth can stop him from construing another floor on his terrace. It is further denied that the defendant no.2 may carry out his threats of going ahead with illegal construction. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

10.             That in reply to para 10 of the plaint are wrong and denied. It is denied that the position of law is very clear that the construction on the Terrace over and above the second floor cannot be done without consent of all the co-owners of the property and without there being a Stilt parking available as per existing building bye-laws. It is further denied that it is against the right or the petitioner as per the collaboration agreement arid sale deed. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

11.             That in reply to para 11 of the plaint are wrong and denied. It is denied that the cause of action first arose when the collaboration agreement dated 7.10.2002 was executed as per which the share in the property were categorically distributed. It is further denied that the cause of action further arose on 14.05.2004 when the second floor in the suit property was purchased by the mother of the plaintiff and the same was subsequently inherited by him after his mother's death. It is further denied that the cause of action further arose on 9.05.2011 as well as 02.06.2011 when the property was purchased by the defendant no.2. it is further denied that the cause of action also arose in the year 2018 when the defendant started harassing and humiliating the plaintiff. It is further denied that the cause of action further arose in the year 18.02.2019 and also in February, 2023 when the defendant no.2 filed his statement as well as additional written statement, he categorically mentioned about the said sale deed in his favour and proclaimed his share in the property. It is further denied that the cause of action also arose when despite numerous requests on behalf of the plaintiff the defendant no.2 did not take any action to amend his sale deeds. It is further denied that the cause of action also arose when plaintiff got sent notice dated 17.10.2023 upon the defendant no.1 however no heed was paid. It is further denied that the cause of action arose on various dates when the defendant no.2 has categorically threatened the plaintiff that he will transfer the rights in the property, more than he has as per the collaboration agreement, by relying on the unlawful/invalid/illegal sale deeds. It is further denied that the cause of action is still subsisting and continuous as the impugned sale deeds are in detriment to the rights of the plaintiff herein. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

12.             That in reply to para 12 of the plaint are wrong and denied.

13.             That the contents of para 13 of the plaint are wrong and incorrect, hence denied. However it is submitted that the suit has not been valued properly for the purposes of court fee and jurisdiction and the same is liable to be dismissed. The answering defendant craves leave to refer to the submissions made herein above which are not being reproduced herein for the sake of brevity.

It is respectfully submitted that the present suit is absolutely false, frivolous, baseless, misconceived and vexatious even to the knowledge of the plaintiff himself, besides being unsustainable in law, and therefore, the same is liable to be dismissed with compensatory costs.

Prayer clause paras of the plaint along with its sub paras are absolutely wrong and specifically denied. The plaintiff is not entitled for any relief claimed for.

P R A Y E R

          It is, therefore, most respectfully prayed that the plaint of the plaintiff may kindly be dismissed with heavy costs in favour of the defendant no.2 and against the plaintiff for filed the present frivolous litigation, in the interest of justice, equity and circumstances of the case.

Such other order or orders as may be deemed fit in the circumstances may also be passed.

It is prayed accordingly.

DEFENDANT NO.2

NEW DELHI      

DATED:                         THROUGH

XXXXXXX

(Advocate)

Counsel for Defendant No.2

VERIFICATION :-

Verified at Delhi on this ____ day of April, 2024 that the facts stated in paras 1 to ….. of the preliminary objections / submissions and in paras 1 to 13 of the reply on merits and reply of grounds are true and correct to my knowledge and legal submissions made therein are believed to be true upon advise. Last is a prayer to this Hon’ble Court.

                                                DEFENDANTS NO.1 & 2

IN THE HON’BLE COURT OF LD. SENIOR CIVIL JUDGE;

NEW DELHI DIST.; XXXXX COURTS,

NEW DELHI.

CIVIL SUIT NO. _____ OF 20__.

IN THE MATTER OF :-

XXXXXXXXX                                                        : PLAINTIFF

VERSUS

XXXXXXXXXX & ANR.                                 : DEFENDANTS

AFFIDAVIT

Affidavit of Sh.XXXXXXXX, aged about ___ years, Director of M/s. XXXXXX Pvt. Ltd., having office at___________________________, New Delhi-1100__, do hereby solemnly affirm and declare as under :-

1.       That I am the Director of the defendant No.1 Company in the above noted matter and am well conversant with the facts of the case and am also competent to swear the present affidavit.

2.       That the submissions as to facts made in the accompanying written statement to the plaint / suit have been drafted by my counsel under my instructions and the same have been read over and explained to me in my vernacular and the same may be read as part & parcel of this affidavit, which are not reproduced herein for the sake of brevity.

DEPONENT

VERIFICATION :-

          Verified at Delhi on this ____, day of April, 2024, that the contents of above affidavit are true and correct to my knowledge and no part of thereof is false and nothing material has been concealed therefrom.

DEPONENT