Dr. Nupur Roy Chowdhury vs Rabi Ghosh on 22 March, 2012

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Delhi High Court

Dr. Nupur Roy Chowdhury vs Rabi Ghosh on 22 March, 2012

1. Present application has been filed by plaintiff under Order VI Rule 17 CPC seeking amendment of the plaint and under Order I Rule 10 CPC seeking to implead MCD as defendant no.2 in the present proceedings.

2. Mr.Sanjeev Sindhwani, learned counsel for the defendant/non-applicant very fairly submits that he has no objection if the MCD is impleaded as a party to the present proceedings.

3. Accordingly, in view of the stand taken by counsel for the defendant the prayer made by the plaintiff with respect to impleadment of MCD to the present proceedings is allowed. MCD is arrayed as defendant no.2 in the present proceedings. Let amended memo of parties be taken on record.

4. As far as prayer made with respect to amendment of the plaint is concerned, in view of the fact that MCD has been impleaded as a party CS(OS) 210/2007 Page 1 of 11 learned counsel for the plaintiff does not press the prayer made in the application with respect to amendment of the plaint.

5. Accordingly, application stands disposed of in view of above. I.A.NO.13916/2008.

6. Plaintiff has filed the present suit for declaration, possession, injunction and cancellation of the alleged Sale Deed dated 8.5.2000 regarding the first floor and above of the property bearing no.B-2/96, Safdarjung Enclave, New Delhi.

7. Present application has been filed by plaintiff under Order XXXIX Rules 1 & 2 CPC, inter alia, praying that defendant be restrained from selling or transferring the right, title and interest of the constructed premises on the roof of the ground floor and above, of the property, i.e. House No.B-2/96, Safdarjung Enclave, New Delhi, (hereinafter referred to as the Suit property) to any third party during the pendency of the present suit; and, the defendant be restrained from handing over possession of the aforesaid property to any third party for consideration or otherwise or to enter into any agreement to sell or transfer the rights, title and interests of the aforesaid suit property to any third party during the pendency of the present suit.

8. Necessary facts, as per the plaint, to be noticed for disposal of the present application, are that the plaintiff claims herself to be the owner and in possession of the suit property built on a plot of land measuring 200 sq. yards, which was constructed upto the ground floor at the relevant time. Defendant is stated to be the nephew of the plaintiff. Initially the said piece of land was allotted by the Government to the father of the plaintiff vide Lease Deed dated 22.8.1968 and registered on 12.11.1968, and thereafter a single storey building was constructed by the father of the plaintiff in the year 1973 and a completion certificate was issued on CS(OS) 210/2007 Page 2 of 11 9.8.1979. The father of the plaintiff died on 23.6.1990 and being the only legal heir of the father, the property was transferred in the name of the plaintiff herein by the DDA vide its communication dated 1.4.1997/3.4.1997 and a Conveyance Deed was executed and registered in favour of the plaintiff on 5.8.1997 vide registered no.723 in Additional Book No.1, Volume 22 on pages 96 to 98.

9. Plaintiff is stated to be working as a Reader in the Department of Music and Fine Arts, Delhi University, and she has also been allotted a Government residential Quarter in the University Campus. Further, as per the plaint, defendant had approached the plaintiff sometime in the month of May, 1996, for selling the roof above the ground floor of the suit property to him. Although the plaintiff initially refused but, later, on the insistence of the defendant, plaintiff agreed to sell the roof of the ground floor of the suit property to the defendant keeping in mind that she was growing old and it would not be feasible for her to live alone and it would be better if the defendant, who is her cousin, would stay on the first floor of the suit property. On the insistence of the defendant, in the month of July, 1996, a verbal agreement to sell was executed between the plaintiff and defendant, as per which, the plaintiff agreed to sell only the roof of the ground floor of the suit property to the defendant for a consideration of Rs.30.00 lakhs. It was also agreed that a sum of Rs.10.00 lakhs would be paid as an advance by the defendant to the plaintiff and the balance Rs.20.00 lakhs would be paid by the defendant to the plaintiff at the time of registration of the Sale Deed within one year i.e. by July, 1997. Admittedly, the defendant paid a sum of Rs.5.00 lakhs to the plaintiff as an advance/earnest money, which was accepted by the plaintiff on the assurance that proper documentation would be carried out. Another sum of Rs.1.50 lakhs was paid by defendant to the plaintiff on 1.5.2000 on the CS(OS) 210/2007 Page 3 of 11 assurance that the balance amount would be paid by the defendant at the time of Registration of the Sale Deed.

10. It is the case of the plaintiff that on 8.5.2000, defendant came to the house of the plaintiff and took her to Karkardooma Court and made her sign on 2-3 typed stamped papers and told her that the same have to be attested by the Notary Public. After getting the papers stamped and signed by the plaintiff, defendant told the plaintiff that the Agreement to Sell had been made but she was not given a copy of those documents. As the defendant never showed any interest to get the Sale Deed prepared and registered, in the month of January, 2004, plaintiff telephoned the defendant to express her desire to cancel the deal as she was no longer interested in selling the roof of the ground floor of the suit property to the defendant. It is also stated in the plaint that in the year 2006 when the plaintiff visited the suit property she was shocked to see the construction work going on in the suit property, which has led to the filing of a suit for injunction against the defendant in the trial court and subsequently it is during the pendency of the suit before the trial court the plaintiff came across the alleged Sale Deed, which led to the filing of the present suit for declaration, possession, injunction and cancellation of the alleged Sale Deed dated 8.5.2000, which was filed by the defendant in the suit for injunction filed by him in the trial court.

11. It is further the case of the plaintiff that defendant took advantage of a helpless lady, who was made to sign the documents without being explained the contents of the documents; the parties were never ad idem; the plaintiff at no point of time agreed to execute the Sale Deed in favour of the defendant, much less for a sum of Rs.6.50 lakhs, as Sale consideration was fixed @Rs.30.00 lakhs, and that too with respect to only the roof of the ground floor of the suit property.

CS(OS) 210/2007 Page 4 of 11

12. Learned counsel for the plaintiff has drawn the attention of the Court to the CFSL report, which was submitted pursuant to a direction issued by this Court as it was the stand of the plaintiff that the following documents were forged by the defendant:

(i) communication addressed to the joint/Deputy Assessor and Collector;

           (ii)    affidavit dated 2.2.2005;
           (iii)   indemnity bond dated 2.2.2005;
           (iv)    sanctioned plan of the construction on the first and second

floor did not bear the signatures of the plaintiff;

           (v)     General Power of Attorney; and
           (vi)    Will.

13. Admittedly as per the report of the CFSL, only the signatures on the sanctioned plan did not match with the signatures of the plaintiff. Counsel further submits that plaintiff was not residing in the suit property and she was residing at the official accommodation provided by the Delhi University and thus she was not aware as to when the construction activity in the suit property commenced.

14. Learned counsel for the defendant has vehemently opposed the present application on the ground that the plaintiff has approached this Court with unclean hands that she has suppressed and withheld material documents, which would show that the plaintiff had entered into a Sale transaction with the defendant with open eyes. It is submitted that the plaintiff is an educated lady, working as a Professor in the University of Delhi, and she is well aware about the Court procedures on account of the fact that she had appeared in person and contested her own matrimonial dispute from the trial court upto the Apex Court. Counsel further submits that the plaintiff was all along aware about the details of the sale transaction, CS(OS) 210/2007 Page 5 of 11 which is evident from the fact that the plaintiff signed Form 34A (an application for a certificate under Section 239 A(1) of the Income Tax Act, 1961), a carbon copy of which has been placed on record. Counsel for the defendant has drawn the attention of the Court to Form 37(i), to show the sale consideration to be Rs.6.50 lakhs. Counsel next submits that the signatures on the Sale Deed have not been disputed by the plaintiff.

The Sale Deed is a registered document, which has the photograph of the plaintiff and the plaintiff has presented herself before the Sub-Registrar (Properties) for execution of the said Sale Deed. Counsel has also drawn the attention of the Court to the endorsement made on the Sale Deed with regard to the fact that Form 34A was issued by the Income tax Officer and filed before the Sub-Registrar Properties.

15. In support of his argument that parties were ad idem, Mr.Sindhwani submits that in addition to the Sale Deed the plaintiff has signed various documents, including Registered Will (placed on record), a General Power of Attorney, duly notarized dated 22.8.1996 (original of which has been placed on record), indemnity bond dated 2.2.2005 and affidavit dated 2.5.2005, an application made to the MCD for mutation, which was duly stamped in the office of the MCD on 3.5.2005, which would show that the plaintiff intended to sell the first floor and above of the suit property to the defendant. Counsel further submits that after the signing of the Agreement to Sell the defendant has been paying house tax of the property. Counsel has drawn the attention of the Court to the various original house tax receipts, evidencing payment by the defendant, including receipts dated 2.2.2005, 11.5.2005, 25.7.2005 have been placed on record, assessment order in the name of the defendant dated 13.3.2004, notice dated 13.12.2004 issued by the MCD in the name of defendant, which have been placed on record. Counsel further submits that as per the CS(OS) 210/2007 Page 6 of 11 report of the CFSL various documents bear the signatures of the plaintiff, however, the opinion with regard to the signatures on the site plan is yet to be considered in detail by the Court as there was passage of time between the admitted signatures of the plaintiff and her signatures on the site plan. Except the signature of the plaintiff on the site plan all other signatures have been held to be the signatures of the plaintiff. Counsel for the defendant, in these circumstances, prays for dismissal of the present application.

16. I have heard counsel for the parties and also considered their rival contentions. I have also perused the plaint, application and the various documents which have been filed on record.

17. Arguments of counsel for the plaintiff can be summarized as under:

(i) Plaintiff had agreed to sell only the roof above the ground floor of the suit property to the defendant for Rs.30.00 lakhs;

(ii) Defendant has played fraud on the plaintiff taking advantage of her status of being a single lady;

(iii) Defendant has gained advantage of her absence in the suit property as she was residing in the official accommodation allotted to her by the Government;

(iv) Site Plan does not bear the signatures of the plaintiff as per the CFSL report;

(v) Suit property is to be preserved till the disposal of the suit, failing which the suit would become infructuous.

(vi) Plaintiff has denied executing documents like Sale Deed, General Power of Attorney, Affidavit, Indemnity Bond, letter for mutation, etc.

18. Arguments of counsel for the defendant can be summarized as under:

(i) Plaintiff has suppressed and withheld material facts from this CS(OS) 210/2007 Page 7 of 11 Court;

(ii) Plaintiff has not disputed her signatures on the Sale Deed and thus it was necessary for her to disclose her signing the Sale Deed in the plaint;

(iii) Series of documents filed on record would show that the plaintiff had entered into a sale transaction with the defendant with open eyes;

(iv) Plaintiff has signed and filled up Form 37(i) where the sale consideration has been fixed as Rs.6.50 lakhs and the description of the property has also been given and thus the stand taken by the plaintiff is belied from the documents admittedly signed and executed by the plaintiff;

(v) Besides the Sale Deed plaintiff also signed and executed various documents in favour of the defendant including a Will, General Power of Attorney and indemnity bond - all of which would lead to one conclusion that plaintiff had every intention to sell the roof of the ground floor of the suit property to the defendant.

19. While considering an application under Order XXXIX Rules 1 and 2 CPC, the Court must take into consideration three factors i.e. (i) strong prima facie case; (ii) balance of convenience; and (iii) irreparable loss. It is also to be seen while considering the application for grant of injunction as to whether the case of the plaintiff is frivolous or vexatious. In granting or refusing temporary injunction the Court is to exercise its discretion with reasons and sound judicial principles. Since the power to grant or refuse an injunction would essentially lie in the realm of discretion of the Court the power has to be exercised with greatest care, caution and circumspection.

CS(OS) 210/2007 Page 8 of 11

20. The submission made by counsel for the plaintiff that the plaintiff is a single lady and defendant took unfair advantage of her status cannot be accepted as the plaintiff is admittedly an educated lady working as a Professor in the Delhi University. A carbon copy of the Form 37(i), which has been placed on record prima facie shows that it bears her signature, the form also gives the description of the property to be sold and the sale consideration. Plaint does not disclose that at any point of time the plaintiff had filled up Form 37(i). Plaint is also silent with regard to the plaintiff having signed the Sale Deed, although the order dated 4.5.2007 passed by this Court states that the signatures on the Sale Deed, in question, are those of the plaintiff. In my view the plaintiff has willfully suppressed filing of material documents. It cannot be expected that an educated person, who admittedly, has had some experience in the Court proceedings, would sign series of documents at different points of time without reading the contents thereof. Besides the Form 37(i), the General Power of Attorney, which has been executed, gives an impression that the plaintiff had the intention to sell suit property (the roof of the ground floor and above) to the defendant, defendant has granted wide powers to the plaintiff including the power to sell the suit property, to lease the suit property, to apply for water, electricity connection and also present deeds and documents for registration before the Sub-Registrar (Properties). Plaintiff has also addressed a communication dated 3.2.2005 to the Joint/Dy./Asst. Assessor & Collector, MCD, which reads as under:

"To, The Jt./Dy./ASSTT. ASSESSOR & COLLECTOR, Municipal Corporation of Delhi, R.K.Puram, New Delhi.

Sub: APPLICATION FOR MUTATION of property No.B-2/96, CS(OS) 210/2007 Page 9 of 11 (Ground Floor, Safdarjung Enclave, New Delhi.

Dear Sir, That the applicant respectfully submit as under:

That my father Mr.Suukumar Chowdhary Son of Late Sh. Rai Mohan Chowdhary, was the owner of property No.B-2/96, Safdarjung Enclave, New Delhi. The First Floor of said property sold out to Sh.Rabi Ghosh. My father Sh.Sukumar Chowdhary has expired on 23.6.1990. After the death of my father, I am the only legal heirs of my father. The DDA transferred the Ground Floor of said property in my name vide their letter No.F4(81)/66/LAB/1323, dt. 3.4.1991. Now I am the owner of Ground Floor of said property.

1. That the aforesaid property be transferred in my name.

2. That I indemnify to the M.C.D. against all losses, claims if any claims is made against the aforesaid property by any person.

It is therefore, respectfully prayed that the aforesaid property be transferred in my name in place of the aforesaid owner. I am ready to pay dues taxes, if any.

Dated:

Place : New Delhi.

Enc:

APPLICANT(S)

1. Affidavit -sd-

2. Indemnity Bond.

3. Copy of death Certificate. (NUPUR ROY CHOWDHARY)

4. Copy of DDA Mutation letters."

21. Photographs placed on record also show that by the time the present suit was filed the roof of the first floor had already been constructed and the Walls had also been erected.

CS(OS) 210/2007 Page 10 of 11

22. Having regard to the various documents, which have been placed on record, as detailed above, the stand taken by the plaintiff does not inspire confidence. Plaintiff has failed to establish a strong prima facie case. Plaintiff has also not been able to satisfy this court that the balance of convenience is in favour of the plaintiff. In fact passing of any restraint order would result in irreparable loss to the defendant. Accordingly, present application is without any merit and the same is dismissed. CS(OS) 210/2007

23. Issue summons to the newly added defendant no.2, returnable on 21.5.2012, before the Joint Registrar.

G.S.SISTANI, J MARCH 22, 2012 msr CS(OS) 210/2007 Page 11 of 11

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