Delhi High Court
Shashi Garg vs M/S Shitiz Metals Ltd & Anr on 25 April, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25, April, 2014.
+ CS(OS) 585/2012
SHASHI GARG ..... Plaintiff
Through: Ms. Rachna Agrawal, Adv.
Versus
M/S SHITIZ METALS LTD & ANR ..... Defendants
Through: Mr. Sharad Malhotra, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
I.A. No.4426/2012 (u/O 39 R-1&2 CPC)
1. The ex-parte ad-interim order dated 7th March, 2012 is made absolute
till the decision of the suit.
2. The application is disposed of.
CS(OS) 585/2012
3. The suit is ripe for framing of issues.
4. The counsel for the plaintiff states that in this suit, (i) for recovery of
possession of second floor with terrace of property No.D-819, New Friends
Colony, New Delhi; and, (ii) for recovery of arrears of and future mesne
profits and for ancillary injunction, insofar as the relief of possession is
concerned, the written statement of the two defendants does not raise any
material plea and the suit insofar as for the relief of recovery of possession,
is entitled to be decreed forthwith.
5. If that be the position, Order XV of the Civil Procedure Code (CPC),
1908 permits such a course of action.
CS(OS) 585/2012 Page 1 of 10
6. The counsels have been heard on the aforesaid aspect. However,
when after hearing and after perusal of the written statement, it has been
enquired from the counsel for the defendants, as to how the defences raised
are material in law and entitle the defendants to lead evidence on the same,
inasmuch as the same, even if proved, do not constitute a defence to the
relief of possession, the counsel for the defendants states that the matter be
adjourned. The same is not permissible. The counsels should come
prepared and after this Court has heard the matter, no adjournments can be
granted owing to the counsel's own unpreparedness. It is this which leads to
the suits remaining pending by years together.
7. The plaintiff has instituted the suit, pleading:
(i) that the plaintiff is the owner, of the aforesaid second floor with
terrace along with 40% undivided and indivisible rights in the 492 sq.
yds. of land underneath the property, vide Sale Deed dated 4th
September, 2003 executed by the defendant No.1 (through its Director
Mr. Ajay Gupta husband of the defendant No.2 Smt. Sushma Gupta)
in favour of the plaintiff;
(ii) that though as recorded in the said Sale Deed also, at the time
of the execution thereof vacant, peaceful and physical possession of
the property sold was delivered to the plaintiff but since the
defendants were then in occupation thereof, they requested for some
time to vacate the same and to which the plaintiff agreed being on
friendly terms with the defendant No.2 and her husband Mr. Ajay
Gupta;
CS(OS) 585/2012 Page 2 of 10
(iii) that the defendants thereafter dilly - dallied in delivery of
possession;
Ultimately, on 6th March, 2012 the suit was filed.
8. The defendants have contested the suit, by filing a written statement,
on the grounds:
(a) that the suit is without cause of action;
(b) that the suit is barred by time; though the plaintiff become the
owner in the year 2003, the suit has been filed in the year 2012;
(c) that the parties are in various litigations since the year 2006 and
in which regard various letters and legal notices were exchanged
between the parties; though the plaintiff in one of such notices dated
9th June, 2008 agitated the issue of possession but still filed this suit
after nearly four years therefrom also;
(d) that the suit is not properly valued for the purposes of court fees
and jurisdiction as the value of the suit property is not less than Rs.10
crores;
(e) that though the plaintiff claims the occupation of the defendants
to be that of a licensee but no notice of termination of licence has been
issued;
(f) that the suit is a counter-blast to an FIR No.56/2010 of P.S.
New Friends Colony, New Delhi and in which the issue relating to the
validity and sanctity of the Sale Deed dated 4 th September, 2003 is
sub-judice;
(g) that the husband of the plaintiff, who is a Chartered Accountant
by profession, was looking after the entire accounts, taxation and
CS(OS) 585/2012 Page 3 of 10
financial accounts of the defendant No.1 and its sister concerns and
enjoyed the blind faith and confidence of Mr. Ajay Gupta;
(h) that the execution of the Sale Deed dated 4 th September, 2003
aforesaid was the game plan of the husband of the plaintiff and all the
documents, including of purchase by the defendant No.1 of the said
property and sale thereof to the plaintiff, were also got prepared by the
husband of the plaintiff;
(i) that the said property i.e. second floor with terrace was agreed
to be sold/transferred by the defendant No.1 to the plaintiff for a total
sale consideration of Rs.1 crore but the husband of the plaintiff taking
undue advantage of the faith and confidence reposed by the
defendants, got the alleged Sale Deed dated 4 th September, 2003
executed showing sale consideration of Rs.50 lakhs only and which
too was shown to have been paid by adjustment of various entries;
(j) that since the full agreed sale consideration had not been paid,
possession of the property was not delivered despite execution of the
Sale Deed;
(k) that the adjustment of entries came under dispute leading to
various civil and criminal litigations between the parties;
(l) that the plaintiff never acquired any lawful right, title or interest
in the suit property and the defendant No.1 continues to be the owner
thereof.
9. The first of the aforesaid pleas, of the suit being without cause of
action is vague and without any particulars.
CS(OS) 585/2012 Page 4 of 10
10. As far as the defence of the defendants, of the suit being barred by
time is concerned, the limitation for recovery of possession of immovable
property is governed by Articles 64&65 of the Schedule to the Limitation
Act, 1963 and which provides a limitation of 12 years, either from the date
of dispossession or from the date when the possession of the defendants
become adverse to the plaintiff. The defendants as aforesaid admit to the
execution of the Sale Deed. The Sale Deed which is executed on behalf of
the defendant No.1 by the husband of the defendant No.2, undisputedly in
Clause (3) thereof records that the actual, physical and quite vacant
possession of the property sold had been delivered by the defendant No.1 as
vendor to the plaintiff as vendee. The said suit has been instituted by the
plaintiff prior to the expiry of 12 years therefrom. Though, it is not even the
plea of the defendants that they were at any time claiming adversely to the
plaintiff but even if it were to be presumed that the possession of the
defendants, notwithstanding the Sale Deed, was adverse to the plaintiff, the
suit has still been filed within the prescribed period of limitation. The said
plea in the written statement is thus not material, so as to invite framing of
an issue.
11. The objection as to the valuation is again vague and neither any
specific plea has been taken nor any documents in support thereof has been
filed. Even otherwise, the said defence is not material, as the only
consequence thereof would be of the plaintiff being required to pay more
court fees. Even otherwise, if the plea of the defendants is of the valuation
being much more than assessed by the plaintiff, the mesne profits payable by
CS(OS) 585/2012 Page 5 of 10
the defendants would be proportionally higher. The suit, for the relief of
possession, is valued at Rs.50 lacs, at which price as per the sale deed the
property was sold by defendant no.1 to the plaintiff and in the facts of the
case, valuation is found to be appropriate.
12. The counsel for the defendants is unable to show, as to which law
requires termination of licence or a notice of such termination. In fact as per
Section 64 of The Indian Easements Act, 1882, the consequence of
termination before time is only compensation. Even otherwise, now that
when the Supreme Court in Nopany Investments (P) Ltd. Vs. Santokh
Singh (HUF) AIR 2008 SC 673 has held that filing of a suit for ejectment
itself is termination of lease as provided under Section 106 of the Transfer of
Property Act, 1882, the plea of, this suit for possession being not
maintainable in the absence of a notice of termination of licence, is baseless.
13. The plea of various other disputes between the parties since the year
2006 is again without any particulars of any dispute in which the validity of
the said Sale Deed may be for adjudication. The only plea is of the Sale
Deed being sub-judice in FIR No.56/2010. The validity of the Sale Deed
cannot be said to be sub-judice in the said proceedings. No counterclaim
qua the invalidity of the Sale Deed has been made in the present proceeding
either. Moreover, as per the averments of the defendants, the defendants are
at least since the year 2006 are aware of the mischief played by the husband
of the plaintiff in the matter of having the Sale Deed executed from the
defendant no.1. The pleas are not of the Sale Deed being void ab-intio. If at
all the Sale Deed, for any reason, was voidable at the instance of the
defendant no.1, the defendant no.1 was to sue therefor and it appears that the
CS(OS) 585/2012 Page 6 of 10
claim even if any of the defendant no.1 of voidability of the Sale Deed is
barred by time. It is thus felt that the plea of challenge to the validity of the
Sale Deed is not material so as to invite framing of an issue.
14. That brings me to the crux of the defence of the defendants, of the
entire sale consideration having not been received by the defendants.
Section 55(4)(b) of the Transfer of Property Act provides that in the absence
of a contract to the contrary, where the ownership of the property has passed
to the buyer before payment of whole of the purchase-money, the seller is
only entitled to a charge upon the property in the hands of the buyer for the
amount of the purchase-money or any part thereof remaining unpaid, and for
interest thereon.
15. A reading of the Sale Deed dated 4th September, 2003 admittedly
executed by the defendant No.1 in favour of the plaintiff shows the
defendant No.1 to have under the operative part thereof, at the time of
execution thereof, sold, conveyed, transferred and assigned the property to
the plaintiff and to have delivered the actual, physical and quite vacant
possession of the property to the plaintiff and to have also handed over
photocopies of all previous title documents relating to the property to the
plaintiff. The plaintiff, under Clause (8) of the Sale Deed, was also
authorized to get the said property mutated in the records of all the local
authorities in her favour. Clause (10) of the Sale Deed also records "that
now the vendee has become the absolute owner of the above said portion
and has acquired the rights of ownership in the above said portion and is
fully entitled to use, mortgage and sell the above said portion as desired by
her". All this shows that the ownership of the property passed from the
CS(OS) 585/2012 Page 7 of 10
defendant No.1 to the plaintiff at the time of execution of the Sale Deed.
Neither is there any clause in the Sale Deed to indicate so nor is it the plea of
the defendants that notwithstanding the execution and registration of the
Sale Deed, the ownership of the property sold was not intended to pass to the
plaintiff.
16. Once that is found to be the position under the provision aforesaid, the
claim, even if any of the defendants for unpaid sale consideration, does not
disentitle the plaintiff from claiming possession of the property as owner
(under the Sale Deed) from the defendants and the only right of the
defendants is to recover the unpaid sale consideration from the plaintiff and
to exercise a charge for securing the same. Nothing of the sought has been
done till now. It prima facie appears that as of today the said claim would
also be barred by time.
17. I have in Kawal Sachdeva Vs. Madhu Bala Rana
MANU/DE/1050/2013 dealt in detail on the aspect of framing of issues in
such a situation and thus do not feel the need to reiterate the same here.
18. Mention may also be made of T. Arivandandam Vs. T.V. Satyapal
AIR 1977 SC 2421, Liverpool & London S.P. & I Association Vs. M.V.
Sea Success I (2004) 9 SCC 512 and ITC Ltd. Vs. Debts Recovery
Appellate Tribunal (1998) 2 SCC 70 holding that pleadings have to be read
meaningfully and if on such a reading, it is found that there is no lis to be
tried and the claim or defence is ultimately one destined to doom, the Courts
should not waste their time on trial of such cases, to the prejudice of
deserving cases.
CS(OS) 585/2012 Page 8 of 10
19. The procedure prescribed in the Code of Civil Procedure, 1908 for
disposal of suits provides for issues to be framed only on material
propositions of law or fact which a plaintiff must allege in order to show a
right to sue or a defendant must be allege in order to constitute his defence.
Else, Order XV provides that where the parties are not found at issue or any
question of law or fact, the Court should at once pronounce judgment.
20. Thus, the suit, insofar for the relief of recovery of possession, has to
be decreed forthwith under Order XV of the CPC.
21. A decree for recovery of possession of the second floor with terrace of
property No. D-819, New Friends Colony, New Delhi is accordingly passed
in favour of the plaintiff and against the defendants jointly and severally.
22. Costs to be assessed at the final stage.
23. Decree sheet be drawn up.
24. As far as the claim of the plaintiff for mesne profits is concerned, the
following issues are framed:
(i) Whether the plaintiff is entitled to arrears of mesne
profits/damages for use and occupation of the property in the sum of
Rs.36 lakhs or in any other sum and if so, from which of the
defendants? OPP
(ii) To future mesne profits/damages for use and occupation from
the date of the institution of the suit and till delivery of possession, at
what rate is the plaintiff entitled to and from which of the defendants?
OPP
CS(OS) 585/2012 Page 9 of 10
(iii) If the plaintiff is found entitled to any mesne profits/damages
for use and occupation, whether the plaintiff is entitled to any interest
thereon, if so for what period and at what rate? OPP
(iv) Relief.
25. No other issue arises or is pressed.
26. The parties to file their list of witnesses within two weeks.
27. The plaintiff to file affidavits by way of examination-in-chief of all
her witnesses within six weeks.
28. Option of having the evidence recorded before a Court Commissioner
is given but declined.
29. List before the Joint Registrar for fixing the dates of trial on 9th July,
2014.
RAJIV SAHAI ENDLAW, J.
APRIL 25, 2014. Bs..
CS(OS) 585/2012 Page 10 of 10