Delhi High Court
Shashi Malhotra vs Lakshman Kumar Aggarwal on 1 July, 1996
Equivalent citations: 1996(38)DRJ363
Author: Lokeshwar Prasad
Bench: Lokeshwar Prasad
JUDGMENT Lokeshwar Prasad, J.
(1) This Order will dispose of the two applications (IA No. 5394/88 & 3297/88), both filed by the plaintiff under Order Xxxix Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). Vide application, diarised as Ia 5394/88 the plaintiff has prayed for grant of an ex parte order of injunction restraining the defendants, their servants, agents from registering any agreement to sell and/or sale deed in favour of any person, other than the plaintiff in respect of properly bearing No. E-28, Saket. New Delhi. In the second application, numbered as Ia 3297/88, the plaintiff has prayed for grant of an ex parte order of injunction restraining the defendants from transferring, alienating and parting with the possession of the suit properly bearing No. E-28, Saket, New Delhi. It has also been prayed that the defendants, their servants, agents be also restrained from entering into any agreement to sell or selling or entering into any agreement with any person in respect of the above mentioned property situated at E-28, Saket, New Delhi in breach of the agreement to sell executed with the plaintiff.
(2) The facts relevant for the disposal of the above mentioned two applications, briefly slated are that the plaintiff has filed a suit for specific performance averring that the plaintiff is residing at E-28, Saket, New Delhi, owned by the defendants who are the co-owners of the above said property, consisting of ground floor, first floor and a Barsati floor. The defendants, it is alleged, had been negotiating with various tenants in the suit property to vacate the premises as they were interested to sell the same. 2.2 It is alleged that defendant No.1 represented to the plaintiff that he was the attorney of defendant No.2, duly empowered and authorised to negotiate, enter into an agreement of sale and sell the suit properly for and on behalf of the defendant No.2. 2.3 It is further alleged that after prolonged negotiations on 20.1.88 the plaintiff agreed to purchase the above said properly and defendant No.1, for himself and his wife defendant No.2, agreed to sell the suit properly for a total consideration of Rs 15.25,000.00 and in pursuance of the above said agreement, the plaintiff paid a sum of Rs 30,000.00 to defendant No.1 on account of part payment towards the sale price of the suit properly which was acknowledged by them and defendant No.1 executed and delivered a receipt dated the 20th January, 1988 in respect of the said payment of Rs 30,000.00 made by the plaintiff. 2.4 It is averred that in pursuance of the above said understanding a draft agreement dated the 25th January, 1988 was drawn up between the parties which was duly corrected, initialed and approved by defendant No.1. Necessary stamp papers were also purchased by the plaintiff for the aforesaid purpose. 2,5 It is alleged that in terms of the said agreement/understanding the plaintiff got two pay orders number 232102 and 232103, both dated 25.1.1988, issued by her Bankers, namely, the Indian Bank, New Delhi in favour of defendants and the above said two pay orders were duly handed over to the defendants by the plaintiff after finalization of the terms of the formal agreement to sell. 2.6 The defendants, it is alleged, did not encash the above said pay orders and returned the same to the plaintiff during the last week of February, 1988 and in this regard the plaintiff on 2.3.88 wrote to defendant No.1, calling upon him to explain the reasons for the return of the above said pay orders but the said defendant chose to remain silent. 2.7 It is averred that the plaintiff impressed upon the defendants that there was a valid and subsisting agreement to sell between the parlies and that they cannot resile from the same. The defendants were also informed that the plaintiff was ready and willing to perform her part of the agreement and in fact she had the remaining consideration ready with her to make the payment of the amount, in terms of the agreement. 2.8 It is alleged that the defendants deliberately failed and neglected to reply to the above letter of the plaintiff and on 23.5.88 the plaintiff was shocked to learn from one Shri Manoranjan Sarkar, a tenant, residing on the Barsati floor of the suit premises that three persons had come to his premises on 5.4.88 at 9.15 a.m. and informed him that thcy were purchasing the suit properly from defendant No.1 and threatened said Shri Manoranjan Sarkar to vacate the flat failing which the same would be got vacated by force. It is alleged that in respect of the above said incident said Shri Manoranjan Sarkar lodged a complaint with the Sho, Police Post Saket, New Delhi on the same dale. It is alleged that the defendants, it seems have now got a better buyer and that they are not arbitrarily and illegally honouring their commitment to perform their part of agreement to sell the property to the plaintiff. It has been prayed by the plaintiff that a decree of specific performance in favour of the plaintiff and against the dcfcndanls, calling upon the de fendants to sell the properly bearing No. E-28, Saket, New Delhi to the plaintiff in terms of agreement dated the 20the January, 1988 be passed with costs.
(3) The defendants have resisted the claim of the plaintiff and have filed a written statement staling that there is no agreement to sell executed between the parlies and the documents relied upon by the plaintiff arc false and deliberately fabricated. The alleged receipt, it is contended, is a forged document. The defendants inter-alia have also taken a preliminary objection to the effect that the suit filed by the plaintiff is liable to be dismissed under Order Vii Rule 11 Civil Procedure Code as there is no cause of action in favour of the plaintiff. Thus in the written statement the main thrust of the defendants is that no agreement to sell the property in question was entered into between the plaintiff and the defendants and that the receipt in question, relied upon by the plaintiff is a forged and fabricated document. It has been prayed in the written statement that the suit filed by the plaintiff be dismissed with costs.
(4) The plaintiff has filed a replication controverting the pleas taken in the written statement and reiterating the averments made in the plaint.
(5) In both the applications, referred to above, it has been stated that the plaintiff prima facie has a strong case, balance of convenience also lies in favour of the plaintiff and if interim orders are not passed the plaintiff shall suffer grave and irreparable loss and injury.
(6) The defendants have filed reply to both the applications. In the reply to the applications, filed on behalf of the defendants, the defendants have taken the same stand as has been taken by them in the written statement that there is no agreement between the parties, much less an agreement dated 20.1.88 to sell the suit property for a consideration of Rs 15.25,000.00 and that the receipt dated the 20th January, 1988 is forged and fabricated document. It has been prayed that the above mentioned applications, filed by the plaintiff, be dismissed.
(7) I have heard the learned counsel for the parties and have also carefully gone through the documents/material on record. The learned counsel for the plaintiff, while arguing the case on behalf of the plaintiff, submitted that the defendants had entered into an agreement to sell the suit property to the plaintiff for a sum of Rs 15.25 lacs pursuant to which the plaintiff paid a sum of Rs 30.000.00 to defendant No.1 on account of part payment and thereafter further steps were taken by the parties i.e. draft agreement dated the 25th January, 1988 was finalised which was duly corrected and initialed by defendant No.l and that the plaintiff also purchased the necessary stamp papers. In terms of the agreement the plaintiff also got two pay orders issued from her Bankers, namely, the Indian Bank, Main Branch, New Delhi in favour of defendants and handed over the same to the defendants. It was submitted by him that in case the interim relief, as prayed for, is not granted in favour of the plaintiff, the very purpose shall stand frustrated by delay. The learned counsel for the plaintiff placed reliance on cases Raja Lakshmi Naraynan V. Mrs. Margret Kathleen Gandhi & Ors. (AIR 1993 Sc 723) and Mithlesh Gupta V. Mahipal & Anr. [1989(3)Delhi Lawyer 27]. On the other hand it was submitted by the learned counsel for the defendants that the plaintiff has no case; there was no agreement to sell the suit property between the plaintiff & the defendants and even the document i.e. the receipt dated the 20th January, 1988 is a fabricated and forged document and in so far as the above applications are concerned no relief can be granted to the plaintiff in the facts and circumstances of the present case. He placed reliance on decisions in cases Mayawanti V. Kaushalya Devi ; S.P. Chengalvarya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs & others ; Ramana Dayaram Shetty V. The International Airport Authority of India and others ; Sundaram Finance Limited V. The State of Kerala and another ; Ashoka Construction Company and others V. Union of India (AIR 1969 Tripura 19) and. 7.2 The Supreme Court in a recent decision in case Dalpat Kumar and another V. Prahlad Singh and others reported as [JT 1991(6)SC 402] have held that the Court, in exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue, before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. 7.3 The burden is on the plaintiff by evidence aluandi by affidavit or otherwise, that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his properly or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief of injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. 7.4 In the light of the above settled legal position I will now consider the above mentioned two applications. In the present case, on the basis of the pleadings of the parties, it is not disputed that the defendants are the owners of the suit property and that the plaintiff is residing on the ground floor of the suit property under the tenancy of her husband Shri Vipin Malhotra. Defendant No.1 has also not specifically denied that he is not the attorney of defendant No.2, duly empowered and authorised to negotiate, to enter into an agreement to sell the suit property for and on behalf of defendant No.2. Defendant No.1 has also not denied his signatures on receipt dated the 20th January, 1988. The defense of the defendants is that the above said document is a forged and fabricated document. The question as to whether the above said document is genuine document or a forged document, as alleged by the defendants, is a question which can properly be decided only the after the trial of the suit and in my opinion it is neither possible not desirable to decide or form a reasonable view about its genuineness or otherwise at this stage of the proceedings without there being any conclusive material on record which may conclusively suggest or indicate that the document (receipt dated 20.1.88) is a forged or a fabricated document. The case of the plaintiff, as put forth by her in the averments made in the plaint, is that after prolonged negotiations on 20.1.1988 the plaintiff agreed to purchase the suit property and defendant No.1 for himself and his wife defendant No.2 agreed to sell the suit property for a total consideration of Rs 15.25 lacs and in pursuance of the said agreement the plaintiff paid a sum of Rs 30,000.00 to defendant No.1 on 20.1.1988 on account of part payment towards the sale price of the suit property which was duly acknowledged and defendant No.1 executed and delivered a receipt dated the 20th January, 1988. The age old saying 'man may lie hut not the circumstances' is aptly applicable to the facts and circumstances of the present case because in pursuance of the alleged agreement a formal draft was drawn up on 25.1.1988 which was duly corrected, initialed and approved by defendant No.1. Not only this the plaintiff got two pay orders issued from her Bankers Indian Bank, Main Brnach, New Delhi in favour of the defendants and handed over the same to the defendants and also purchased the stamp papers. The plaintiff has filed the photo copies of all the documents which are on record. 7.5 The above mentioned two applications came up for hearing before the learned predecessor of this Court (Mr. Justice(Retd.) P.K. Bahri) on 5.11.90 and after hearing the counsel for the parties the learned Judge passed the following orders/direclions:- "IA 3297 & 5394/88 Counsel for the plaintiff has pointed out that an admission has been made by counsel for the defendant in the rent control proceedings to the effect that the agreement for sale had been arrived at between the parties. It appears that copy of the order has been placed on record which mentions about this admission of the counsel for the defendant but no reference was made to this admission in the plaint. In order to enable the defendant to meet this admission, I direct that affidavits be filed in respect of the aforesaid matter. This will enable this court to decide these applications. Let plaintiff file the affidavit in this connection within three weeks and the defendant shall file the counter-affidavit within two weeks thereafter. The applications shall be listed for arguments in short matters on 8th January, 1991." 7.6 In compliance with the above orders of my learned Brother Bahri, J. the plaintiff filed an affidavit dated the 4th February, 1991 enclosing therewith a copy of order dated the 20th September, 1988, passed by Shri M.L. Mehta, the then Additional Rent Controller, Delhi in Suit No. E-230/86 titled as Shri Lakshman Kumar Aggarwal V. Shri Vipin Malhotra. Shri Lakshman Kumar Aggarwal(defendant No.1) also filed an affidavit dated the 4th January, 1991 (filed on 18th March, 1991). The order dated the 20th September, 1988, passed by the learned Additional Rent Controller in the above mentioned suit is of utmost significance for deciding the present controversy and the same runs as under:- "PRESENT:None for the petitioners. In the morning the petitioner's counsel's clerk was present when he went to call his counsel. Now at 2.3p P.M. the respondent's counsel present states that the petition has become infructuous as the petitioner have agreed to sell the suit premises to the wife of respondent by a written agreement to sell. Heard. On the statement of respondent's counsel, the petition has become infructuous. It is dismissed as such. The file be consigned to record room. sd/- Arc, Delhi 20.9.88" Now the petitioner's counsel Shri Bhagirath Verma appears and says that on the statement of respondent's counsel the petition is rightly dismissed as infructuous."
sd/- Arc Delhi." 7.8 The present suit for specific performance has been filed by the plaintiff on 26.5.88 whereas the above order has been passed by the Additional Rent Controller on 20.9.88 i.e much after the filing of the present suit by the plaintiff. From a bare perusal of the above order it is apparent that the petition filed by defendant No.1 before the learned Additional Rent Controller was dismissed as having been rendered infructuous because the petitioner(defendant No.1) had agreed to sell the suit property to the wife of the respondent(plaintiff in the present proceedings). The petitioner's counsel Shri Bhagirath Verma also appeared before the learned Additional Rent Controller on that very day and affirmed the correctness of the facts stated by the counsel for the respondent. He did not dispute the correctness of the facts as stated before the learned Additional Rent Controller by learned counsel for the respondent, more particularly the fact that the defendant had agreed to sell the suit premises to the plaintiff. Defendant No.l Shri Lakshman Kumar Aggarwal in his affidavit dated 4.1.91, which was filed after about two months i.e. on 18.3.91, has made a vain attempt to wriggle out of the above admission, made by his Advocate before the learned Additional Rent Controller, by saying that said Shri Bhagirath Verma, Advocate "had no knowledge of the fact as to with whom the deponent had agreed to sell the demised property" and that he only "had a notion that the deponent was in the process of disposing of the suit property" and that said Shri Bhagirath Verma, his Advocate in that case simply relied upon the statement of counsel for Shri Vipin Malhotra (respondent in the proceedings before the learned Additional Rent Controller). The above explanation, so offerred is hardly convincing and in my opinion holds no water because in the first place the order in question was passed by the learned Additional Rent Controller on 20.9.88 and it cannot reasonably be believed that the same was not within the knowledge of defendant No.1 and the normal conduct expected from a person in the above said situation was that he should have agitated the correctness of the facts as stated in the above said order at the earliest possible opportunity and not after a lapse of more than 2 years and that too when specifically directed by the Court. Moreover, if the factual position was, as stated in the above affidavit of Shri Lakshman Kumar Aggarwal, in that event at least the affidavit of the concerned Advocate, namely, Shri Bhagirath Verma also could have been filed because he was the best person to say as to in which context such a statement, as reflected in the above order of the Additional Rent Controller was made by him, which unfortunately has not been done. The above order passed by the learned Additional Rent Controller, based on the statement made by the learned counsel for the parties including the learned counsel for defendant No.1, virtually takes the bottom out of the case of the defendants in so far as the above pleas of the defendants are concerned. 7.9 As regards the cases relied upon by the learned counsel for the defendants, the same in my opinion, in no way help the cause of the defendants. 7.10 In my opinion the plaintiff has made out a prima facie case and keeping in view the facts and circumstances of the case, the balance of convenience also lies in her favour and substantial mischief of injury or loss is likely to be caused if the relief is refused as compared with that which is likely to be caused to the defendants if the relief is granted more particularly in view of the fact that the defendant Shri Lakshman Kumar Aggarwal(defendant No.1) in his affidavit dated the 4th January, 1991, filed by him in pursuance of order dated 5.11.90 has categorically stated that the defendant had agreed to sell the property to M/s Purshottam Investments Company Ltd. In the presence of the above facts if no steps are taken to preserve the subject matter of the suit the very purpose would stand frustrated and the plaintiff thereby would suffer irreparable loss/injury.
(8) In view of the above discussion the defendants are restrained from transferring, alienating and parting with the possession of property bearing No. E-28, Saket, New Delhi and/or entering into an agreement to sell the above said property and/or registering any agreement to sell and/or any sale deed in respect of the above said property in favour of any person other than the plaintiff till the disposal of the present suit or till further orders from this Court.
(9) Nothing slated here-in-above shall amount to expression of any opinion on the merits of the case by this Court.
(10) In the facts and circumstances of the case no order as to costs.
(11) The applications stand disposed of in above terms.