Delhi High Court - Orders
Sunil @ Sunil Kumar vs Lok Sewak Auto Mobiles Pvt Ltd & Anr on 16 January, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
$~25.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1376/2016
SUNIL @ SUNIL KUMAR ..... Plaintiff
Through: Mr. Rajeev Saxena, Mr. Raman
Sahney, Mr. Rachit Sahney and Mr.
Manish Khurana, Advs.
versus
LOK SEWAK AUTO MOBILES PVT LTD & ANR ..... Defendants
Through: Mr. Rajesh Harnal, Mr. Ajay Kr.
Tandon, Mr. Lalit Kr. Gupta, Ms.
Purnima Singh and Mr. Avinash
Mohapatra, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 16.01.2019 IA No.12204/2017 (of the defendants under Order VII Rule 11, Order XII Rule 6 and Order XXI Rule 101 of the CPC).
1. After some arguments, the counsel for the defendants/applicants withdraws the application.
2. Dismissed as withdrawn.
IA No.12353/2016 (of the plaintiff under Order XXXIX Rules 1&2 CPC and IA No.12203/2017 (of the defendants under Order XXXIX Rule 4 CPC).
3. The plaintiff has sued for specific performance of an Agreement to Sell dated 10th October, 2014 as modified vide Agreement to Sell and Purchase dated 3rd July, 2015 as well as of an Agreement to Sell dated 18 th January, 2016, all in respect of property known as „Hotel Darpan Palace‟ situated at XV/7923, Ara Kashan Road, Paharganj, New Delhi - 110 055 and for permanent injunction restraining the defendants from dispossessing CS(COMM) 1376/2016 page 1 of 6 the plaintiff from the said property.
4. It is the claim of the plaintiff (purchaser) that the plaintiff, as against the total sale consideration of Rs.2,40,00,000/- has paid a sum of Rs.2,20,50,000/- to the defendant no.1.
5. During the hearing of the earlier applications aforesaid, it was the contention of the counsel for the defendants that it is the defendant no.2 namely Bharat Bhushan Batra who was the owner of the property. However now the counsel for the defendants states that defendant no.1 is the owner of the property and defendant no.2 is merely acting as the Director of the defendant no.1.
6. The undisputed facts are (i) that the defendant no.1 had vide registered Lease Deed dated 19th September, 2014 let out the property to one Sunny, who is the brother of the plaintiff; (ii) the defendant no.1 instituted a suit for ejectment of the said Sunny from the property, averring forfeiture of lease on account of non-payment of rent; (iii) during the pendency of the said suit for ejectment, the plaintiff filed an application for impleadment, pleading agreement by the defendant no.1 to sell the property to the plaintiff;
(iv) the said application was disposed of, without making the plaintiff a party to the suit and observing that the plaintiff could file his objections in execution; (v) the plaintiff, on 25th April, 2016 instituted a suit for specific performance and permanent injunction in the Court of the Additional District Judge, seeking specific performance of the Agreement to Sell, for specific performance of which this suit also has been filed; (vi) in the suit for ejectment, a decree for ejectment of Sunny aforesaid was passed on CS(COMM) 1376/2016 page 2 of 6 4th June, 2016; and, (vii) the plaintiff, on 30th September, 2016 instituted this suit for specific performance and on 6th October, 2016 withdrew the suit for specific performance pending in the Court of Additional District Judge with liberty to sue in the Court of appropriate pecuniary jurisdiction.
7. This suit came up first before this Court on 3 rd October, 2016, when on the contention of the counsel for the plaintiff that the plaintiff, at the time of execution of the Agreement to Sell dated 10 th October, 2014 was put into actual peaceful physical possession of the property agreed to be sold, vide ex parte ad interim order which continues to be in force, the defendants were restrained from disturbing the possession of the plaintiff of the property and from creating third party rights in the property in question.
8. As a consequence of the aforesaid ex parte order, the defendant no.1 has been unable to execute the decree for ejectment also till date.
9. I have enquired from the counsel for the plaintiff, whether the Agreement to Sell, of which specific performance is claimed, is registered.
10. The counsel for the plaintiff replies in the negative.
11. If the Agreement to Sell is not registered, as per amendment of Stamp Act, 1899, Registration Act, 1908 and Transfer of Property Act, 1882 w.e.f. 24th September, 2001 the plea of being in possession in part performance of the Agreement to Sell is not available to the plaintiff.
12. Once the plea of being in possession and part performance is not available to the plaintiff, the question of the plaintiff being entitled to protect his alleged possession of the property in pursuance to Agreement to Sell CS(COMM) 1376/2016 page 3 of 6 does not arise.
13. The question is no longer res integra and has been the subject matter of numerous judgments. Reference in this regard may be made to Som Dev Vs. Rati Ram (2006) 10 SCC 788, Arun Kumar Tandon Vs. Akash Telecom Pvt. Ltd. ILR (2010) 2 Del 727, Anuj Chopra Vs. Vaneeta Khanna 2016 SCC OnLine Del 3356, Jagdambey Builders Pvt. Ltd. Vs. J.S. Vohra (2016) 228 DLT 49 (DB), Abbot India Ltd. Vs. Rajinder Mohindra (2014) 208 DLT 201, ASV Industry Vs. Sunder Mohan 2013 SCC OnLine Del 3176, Jiwan Das Vs. Narain Das AIR 1981 Delhi 291, Sanjiv Pathak Vs. Som Nath (2013) 204 DLT 667 and Sunil Kapoor Vs. Himmat Singh (2010) 167 DLT 806. It has been held, that a mere Agreement to Sell does not create any rights in the property subject thereof, not till a decree for specific performance and conveyance in pursuance thereto is executed. In view of the said judgments, the need to elaborate further is not felt.
14. Ex parte order restraining dispossession of the plaintiff from the property is thus vacated and it is specifically made clear that the pendency of this suit would not come in the way of the defendant no.1 executing the decree for ejectment aforesaid.
15. That leaves the question, whether the defendant no.1 is liable to be restrained from creating third party rights in the property.
16. The counsel for the plaintiff does not appear to be prepared in this respect. Needless to state that most of the payment of Rs.2,20,50,000/- is stated to be in cash. In these circumstances, it is deemed appropriate to CS(COMM) 1376/2016 page 4 of 6 continue the ex parte order to the extent restraining the defendant from creating third party rights in the property in question, with liberty to the defendant to, if intends to sell or mortgage the property, apply and with further liberty to the defendants to let out the said property and/or parts thereof for periods not exceeding nine years at a time.
17. The applications are disposed of.
CS(COMM) 1376/2016.
18. The suit is stated to be also ripe for framing of issues.
19. On the pleadings of the parties, the following issues are framed:-
(i) Whether there exists any Agreement to Sell by the defendants in favour of the plaintiff? OPP
(ii) Whether the plaintiff has paid consideration of Rs.2,20,50,000/-
to the defendants in pursuance to the Agreements to Sell? OPP
(iii) Whether the plaintiff has been ready and willing to perform his part of the Agreement to Sell? OPP
(iv) Whether the discretion implicit in the grant of relief of specific performance is to be exercised in favour of the plaintiff? OPPr
(v) Relief.
20. No other issue arises or is pressed.
21. The parties to file their list of witnesses within 15 days.
22. The plaintiff to file his affidavits by way of examination-in-chief of all his witnesses within six weeks.
CS(COMM) 1376/2016 page 5 of 6
23. Option given of having evidence recorded on commission has been declined.
24. List before the Joint Registrar on 11th March, 2019 for fixing the dates of trial.
Dasti under signatures of Court Master.
RAJIV SAHAI ENDLAW, J JANUARY 16, 2019 „pp‟..
CS(COMM) 1376/2016 page 6 of 6