Delhi High Court
Saroj Aggarwal And Anr. vs Shakuntala Aggarwal on 7 January, 2013
Author: Kailash Gambhir
Bench: Kailash Gambhir
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No. 13807/2011 (O.39 R.1 & 2 CPC) & IA No.7876/2011 (O.39 R. 4 CPC) In
CS(OS) 617/2011
Judgment delivered on: 07th January, 2013
SAROJ AGGARWAL AND ANR ..... Plaintiffs
Through Mr.Rajeev Nayyar&Mr.Nidhesh Gupta, Sr. Advs.
with Mr.TejasKaria, Mr.DeepeshAneja,
Mr.AradhanaLakhtakia, Mr.Karan Mehra, Mr.Manavendra
Mishra, Advs.
Versus
SHAKUNTALA AGGARWAL ..... Defendant
Through Mr.SandeepSethi, Sr. Adv. with Rajesh Gupta
and Mr.HarpreetSingh, Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1.By this order I propose to dispose of application filed by the plaintiffs under Order 39 Rule 1 & 2, CPC and the application filed by the defendant under Order 39 Rule 4 read with Section 151, CPC to seek vacation of restraint order dated 7.4.2011 and for modification of order dated 14.3.2011.
2. Vide an ex-parte order dated 14.3.2011, the defendant was restrained from parting Page 1 of 18 with possession of any part of the property or creating any third party interest in the property bearing number 12, Road No.42, West Punjabi Bagh, New Delhi. This court also directed that the defendant will not occupy any portion of the suit property without prior permission of the court. Vide order dated 7.4.2011, the defendant was also restrained from carrying out further construction in the property till further orders.
3. Addressing arguments on behalf of the defendant, Sr.Advocate Mr. SandeepSethi submitted that defendant has been seriously prejudiced by the order dated 14.3.2011 whereby he has been restrained to occupy any portion of the suit property and order dated 7.4.2011 whereby defendant has been restrained from carrying out further construction in the suit property. Counsel submitted that plaintiffs, with dishonest intentions, have suppressed material facts from this court so as to obtain the said stay orders and had the plaintiffs placed true facts before this court then this court would not have granted the said stay orders in their favour. As per the counsel for the defendant, the plaintiffs have concealed from this court that the parties to the suit are related to each other being wives of three brothers and these three brothers alongwith their brother Mr. Sanjay Aggarwal are the members of joint family of Late Shri Ram SharanAggarwal. Counsel further submitted that the said joint family had various joint family businesses and out of the earnings of such joint family businesses only various properties were purchased from time to time in individual names for the use and benefit of the joint family. Counsel further submitted that another important concealment on the part of the plaintiffs is that in or about October 2000, an oral family settlement had taken place between the parties and under the said oral Page 2 of 18 settlement, the parties had divided some of the joint properties in a manner so as to enable each of the four sons of late Shri Ram SharanAggarwal to have one separate residential property and one separate commercial office each. Counsel further submitted that the said family settlement was duly acted upon by all the parties and in furtherance thereof, Mr.Kailash Chand Aggarwal, husband of plaintiff No.2, got residential property bearing number S-399, Greater Kailash-II, New Delhi; Mr.VinodAggarwal, husband of plaintiff No.1, got the property bearing number 7/42, West Punjabi Bagh, New Delhi; Mr.SanjayAggarwal got property bearing number 54/43, West Punjabi Bagh, New Delhi and Shri Ashok Kumar Aggarwal, husband of defendant, got the suit property i.e. property bearing number 12/42, West Punjabi Bagh, New Delhi. Counsel thus submitted that the suit property had fallen to the exclusive share of Mr.Ashok Kumar Aggarwal and none of the other brothers or the plaintiffs have got any right, title or interest in the said Punjabi Bagh property as they have already got their respective properties out of the properties purchased from the joint family funds.
4. Counsel further submitted that in 2008-09, Mr. Ashok Kumar Aggarwal decided to start construction in the suit property so as to reside in the said property alongwith his family members and to enable Mr.Ashok Kumar Aggarwal to raise construction in the said property, the members of the joint family whole heartedly came in support of his said decision. Mr. Ashok Aggarwal then approached Mr.RasikBehl, Architect for preparing the site plan for construction of the residence and in September 2009 the plans were approved by the MCD and since then the construction in the said plot had commenced. Counsel Page 3 of 18 further submitted that in July 2009, the other co-owners of the property had also signed drawings and completed other formalities for getting the necessary approval from MCD. Counsel further submitted that a mere glance at the sanctioned plan of the said property would amply show that the agreed construction and building plan is meant for use of one single family only and there is no concept of floor wise division or partition of the said building as per the case set up by the plaintiffs in the present suit. Counsel further submitted that the construction of the suit property is being carried out by the defendant with the knowledge, consent and approval of the joint family and the entire expenses of the construction of the property including the payment made to the Architect etc. are being borne by the defendant alone.
5. Learned counsel for the defendant further submitted that the daughters of Late Shri Ram SharanAggarwal, in their affidavits dated 20.4.2011, have also clearly deposed that the suit property exclusively fell to the share of ShriAshokKumarAggarwal and the filing of the said affidavits clearly prove the fact of family settlement having taken place between the members of the family.
6. Counsel further submitted that an amount of Rs.8,24,000was paid by the defendant to the plaintiff No.2, Ms.RajniAggarwal by way of two separate cheques and the relevant record slip of the cheque book of the bank account of the defendant and the pass-book of the said account of the defendant carry an insertion against the said two cheques dated 15.3.2001 as "relinquishment of right in property due to family settlement". Counsel further submitted that the said amount of Rs.8,24,000 is equivalent to the share value of Page 4 of 18 plaintiff no.2 in the suit property and therefore plaintiff no.2 cannot dispute the receipt of the said payment towards her share in the suit property.
7. Counsel further submitted that even the Architect, Mr. RasikBehl, had issued a certificate dated 28.3.2011 thereby certifying the fact that all his fee in terms of the contract dated 12.3.2009 had been paid by the defendant alone. The Architect has further certified that in the drawing/maps no floor wise planning was done so as to accommodate any other family in the suit property. The Architect has also certified that he had not met any of the co-owners of the property or had discussed any plans for the construction of the said house with them. The contention raised by counsel for the defendant is that the certificate issued by the said Architect, who is not an interested person in present litigation, further proves the fact that plaintiffs have no right in the suit property.
8. Counsel also submitted that it is the defendant alone in whose name the temporary electricity connection stands and who alone has been paying the electricity charges as per the consumption shown in various electricity bills received by her.
9. Counsel also submitted that through the letter dated 22.9.2010 addressed by the defendant to the office of the Sub Registrar, Punjabi Bagh, District West, the defendant made a request to the office of the Sub-Registrar not to register any document with regard to the sale purchase of the said house/plot without written permission from the defendant. Counsel further submitted that a complaint dated 28.1.2011 was also lodged by the defendant with the area SHO against the husbands of the plaintiffs and one Mr.Pawan Kumar who had abused and manhandled the labourers present at the construction site. Page 5 of 18
10. Counsel further placed reliance on the two balance sheets of the defendant, placed on record by the defendant, for the year ending 31.3.2000 and 31.3.2001 in support of his argument that the amount indicated against the house property under the heading „assets‟ was Rs.8,22,000 in the balance sheet of 31.3.2000 and the said figure increased to Rs.16,46,000 in the balance sheet of the next year and by this fact it is clearly established that a family settlement between the parties had taken place and the suit property came to the exclusive share of the defendant.
11. Counsel further submitted that defendant has already purchased various items including fittings, fixtures, kitchen items, glass items etc. to be fitted and installed in the suit property and has also placed orders for many of the items and in case the defendant is not permitted to complete the contract then there is every chance of the material being spoiled and rendered useless. Counsel also submitted that the defendant has entered time bound contract with the Architect, Mr. RasikBehl and various other contractors and the continuation of the restraint order would seriously affect the said time bound contracts and would lead to cause insurmountable difficulties and financial implications. Counsel also submitted that the labour contractors and technicians etc. are also sitting ideal on account of the continuation of the said stay orders and the defendant is already facing threat of litigation from various contractors on account of the delay in the completion of the construction due to the operation of the said stay orders. Counsel also submitted that the structure which exists at the site sans boundary wall is totally unprotected and there is serious apprehension that the material stored at the site may be stolen. Page 6 of 18
12. Learned counsel for the defendant submitted that the defendant may be permitted to carry out the complete construction in the suit property and so far the apprehension of the plaintiffs that the defendant may sell out or create any third party interest in the suit property is concerned, the defendant is ready to give an undertaking that she will not alienate, sell or create any third party interest in the suit property so that no prejudice is caused to the alleged rights of the plaintiffs in the suit property.
13. On the other hand, the case set up by the plaintiffs is that in July 2009, the plaintiffs, defendant and Mr. Sanjay Aggarwal had taken a decision to demolish the old structure as existed in the suit property so as to raise a residential building so that all the family members could live together in the same house. As per the plaintiffs, it was also agreed between the parties that the basement would be used for joint and common purposes by all the brothers, while the ground and second floor would be used by the plaintiffs and the first floor would be used by the defendant. As per the plaintiffs, it was also agreed that right to construct and use the third floor would lie with Mr. Sanjay Aggarwal, the fourth brother, as he was not interested in constructing the third floor at that time.
14. It is further the case of the plaintiffs that they had jointly engaged the services of an Architect, Mr.RasikBehlfor preparing the building plan and for supervising the construction of the residential building. According to the plaintiffs, they jointly submitted an application to the MCD for obtaining necessary approvals for the construction of the residential building and necessary affidavits, undertaking, indemnity bonds etc. were jointly signed by all the parties. It is also the case of the plaintiffs that defendant was Page 7 of 18 permitted to supervise the construction of the proposed building till the structure level. It is also the case of the plaintiffs that the cost of the entire construction was to be shared by the plaintiffs and defendant, but despite repeated requests made by them, the defendant did not come forward to give details of the expenses incurred by her towards construction of the said property.
15. It is also the case of the plaintiffs that Mr.Sanjayout of natural love and affection, had gifted away portion owned by him in the suit property in favour of plaintiff No.1 vide registered Gift Deed dated 21.6.2010 and with the said gifting of share by Mr.SanjayAggarwal, the plaintiffs became absolute owners of approximately 74% of the total area in the suit property.
16. It is also the case of the plaintiffs that on account of the failure of the defendant to come forward to give the details of the expenses incurred by him, the defendant was requested by the plaintiffs not to raise further construction till the settlement of accounts, but instead of acceding to the request of the plaintiffs, the defendant continued with the construction on the suit property in full swing. It is also the case of the plaintiffs that apprehending that defendant may sell, alienate or transfer the said property in favour of some third party, the plaintiffs were left with no option but to approach this court to seek partition of the said property and to seek relief of permanent injunction to restrain the defendant from continuing with the construction of the building and also to restrain him from selling, transferring or creating any third party right in the suit property.
17. Refuting the arguments advanced by the counsel for the defendant, Sr. Advocate Mr. Page 8 of 18 Nidhesh Gupta appearing for the plaintiffs submitted that the defendant has set up a new defence during the course of her arguments, which she has not pleaded in her written statement. He contended that it is not averred in the written statement filed by the defendant that she had paid an amount of Rs. 8,24,000 to the plaintiff No. 2 towards full and final satisfaction of her share in the Punjabi Bagh property. Inviting attention of this Court to Para 15 of the written statement, Counsel submitted that the only defence raised by the defendant in the written statement is that Mr. Ashok opted for the suit property in terms of the family settlement arrived at between the parties in the year 2000 and in furtherance of such a decision, Mr. Kailash principally agreed and gave up his wife‟s share (plaintiff No. 2‟s paper share) in suit property in the favour of wife of Mr. Ashok (defendantherein) and in turn opted to shift out of the joint residence and stay separately at S-399, Greater Kailash - II, New Delhi. Counsel thus stated that nowhere in the written statement the defendant has raised the said defence of having paid the share of the plaintiff no. 2.
18. Counsel for the plaintiffs has also invited attention of this Court to the copy of the letter dated 22nd September, 2010 sent by the defendant to the office of the Sub-Registrar, Punjabi Bagh, District West, New Delhi wherein she has claimed that the Punjabi Bagh property was given to her in the year 2008 as per the verbal mutual agreement amongst all the co-owners, which is a statement contrary to what she avers in the written statement that the oral settlement took place in the year 2000. In the said letter, the defendant further took a stand that it was verbally agreed by other co-owners to give their shares in the said Page 9 of 18 property in favour of the defendant on completion of the house. The defendant in the said letter has further taken a stand that co-owners had divided and transferred their entitled share in the said house without her consent. Contention raised by the counsel for the plaintiffs is that even in this letter the defendant has not set up the defence of having paid an amount of Rs. 8,24,000 towards the share of the plaintiff No. 2 in the said Punjabi Bagh property. Counsel thus stated that there are inherent contradictions in the stand taken by the defendant in the written statement and the stand taken by the defendant through her counsel during the course of his arguments.
19. Counsel also submitted that even as per defendant‟s own case, there was an oral family settlement and such an oral settlement was never reduced into writing and in the absence of any oral settlement being reduced into writing, this theory of oral settlement to divide the share in the immovable properties does not satisfy the legal requirements and the same cannot be believed even theoretically.
20. Counsel also submitted that even the said amount of Rs. 8,24,000 is not equivalent to the amount of the share of plaintiff No. 2 in the suit property and in fact the said payment of Rs. 8,24,000 with break ups of Rs. 4,00,000 and 4,24,000 was paid by the defendant towards the share of plaintiff No. 2 for giving up her share in SatyaNiketan property.
21. Counsel also argued that 19 separate sale deeds were executed in respect of the Punjabi Bagh property and this by itself amply demonstrates that all the co-owners had taken a decision to have independent title of their respective shares in the said Punjabi Page 10 of 18 Baghproperty.
22. Counsel also submitted that all the co-owners have separate ration cards, separate gas connectionsin respect of the property in which they presently stay in and all the other documents including affidavit etc. which have been placed on record by the plaintiffs clearly goon to show that all throughout these parties have been corresponding with the concerned authorities in their capacity of co-owners and at no stage they have acknowledged the defendant to be the sole owner of the said property.
23. Counsel also submitted that even in the registered gift deed dated 26.9.2010, executed by Mr. Sanjay in favour of plaintiff No. 1, there is no reference to any family settlement.
24. Counsel further submitted that even the legal notice sent by Mr. Sanjay establishes the fact that there was no family settlement arrived at between the parties at any stage.
25. Counsel also reiterated his argument that insertion in the records slips of the cheque books of the defendant is not counter signed by plaintiff No. 2 or even by the defendant himself and on bare perusal of the same it is quite evident that the same has been inserted by the defendant to give strength to hisowndefence.
26. I have heard learned counsel for the parties at considerable length and given my thoughtful and anxious consideration to the arguments advanced by them.
27. The plaintiffs have filed the present suit for permanent injunction, partition and rendition of accounts. It is not in dispute between the parties that the suit property was purchased by the plaintiffs and defendant alongwith Mr. Sanjay Aggarwal through 19 sale Page 11 of 18 deeds which were registered in the respective names of the parties. The total area of the plot is measuring 1088.79 sq. yds. The plaintiffs and the defendant are wives of respective three brothers i.e. Mr. VinodAggarwal, Mr. KailashAggarwal and Mr.AshokAggarwal. All these three brothers and Sanjay Aggarwal are the sons of late Shri Ram SharanAggarwal. Late Shri Ram SharanAggarwalalso left behind him three daughters besides the said four sons.
28. It is a settled legal position that at the interim stage the court has not to weigh the merits of the case set up by both the partiesin a fine scale. The court has to see whether the plaintiff has made out a strong prima-facie case for the grant of ad-interim injunction and the court‟s interference is necessary to protect him from that species of injury which the court calls irreparable, before his legal right can be established on trial. The other important principle required to be considered at the interim stage is as to whether comparative mischief or inconvenience which is likely to be caused to the plaintiff by withholding the injunction will be greater than that which is likely to arise from granting it.
29. The plaintiffs in the present case have claimed 74% share in the suit property and as per them no oral family settlement had taken place in the year 2000 and the parties are individual owners based on sale deeds executed in their favour. The defendant, who otherwise is the owner of 26% share in the suit property as per the Sale Deed executed in her favour, claims that by virtue of the oral partition which had taken place in the year 2000, she became exclusive owner of the suit property.
30. Documentary material has also been placed on record by both the sides to Page 12 of 18 substantiate their oral pleas.
31. To support their plea that plaintiffs are co-owners of the subject property and there was no oral family settlement amongst the co-owners and the subject property was being constructed for the benefit of all the co-owners with their consent and approval, the plaintiffs have placed reliance mainly on the following:-
a) Copy of various sale deeds executed in favour of co-owners individually for transfer ofspecificshares in the suit property;
b) Copy of the affidavits dated 27.7.2009 submitted with the MCD by plaintiffs, defendant and Mr. Sanjay Aggarwal regarding engagement of architect, non-
claim of equity, co-ownership, entitlement to construct, construction as per sanction plan, deposit of FAR chargesetc.with respect tothe suit property;
c) Copy of indemnity bond submitted with theMCD by plaintiffs, defendant and Mr. Sanjay Aggarwal;
d) Copy of sanction letter addressed to all co-owners dated 17.9.2009;
e) Copy of the Registered Gift Deed dated 21.6.2010 executed by Mr. Sanjay Aggarwal in favour of Plaintiff no. 1 containing no such statement regarding oral family settlement having taken place between the brothers;
f) Copy of letter dated 22.9.2010 from Defendant to Sub-registrar, Punjabi Bagh, New Delhi stating co-ownership as well as claiming that the suit property was given to her as per the oral family settlement having taken place in the year 2008, as opposed to what she avers in the written statement that the family settlement Page 13 of 18 took place in 2001;
g) Copy of letter dated 5.8.2010,confirming mutation of property, from MCD addressed to plaintiff no. 1 and also signed byplaintiffs and the defendant;
h) Receipts of the property tax paid by plaintiff no. 1 in respect of the suit property for the years 2004-2011;
i) Copy of Balance sheets of plaintiff no. 2 for the years 2001 to 2006, showing that there was no variation in the amount of assets held by the plaintiff no. 2 under the heading „House Property‟ and supporting their argument that plaintiff no. 2 had never relinquished her share in the suit property in lieu of consideration from the defendant;
j) In addition to above,
1) Copy of bill for an independent gas connection of Mr. KailashAggarwal, husband of plaintiff no. 2, dated 1.08.1991;
2) Copy of ration card dated 29.9.92 of Mr. KailashAggarwal for his nuclear family for House No. 277 SatyaNiketan, Delhi;
3) Copy of ration card dated 22.6.1994 of Mr. VinodAggarwal, husband of plaintiff no. 1, for his nuclear family for House No. 277, SatyaNiketan, Delhi;
4) Copies of separate electricity bills in the name of Mr. KailashAggarwal, husband of plaintiff no. 2 and Mr. Ashok Aggarwal, husband of the defendant, from 1993-2001 with respect of their independent electricity Page 14 of 18 connections in House No. 277 SatyaNiketan, Delhi to support their claim that the brothers were livingtogether but there never existed any HUF ever.
32. On the other hand, defendant with a view to prove the oral family settlement having taken place in the year 2000 and her exclusive ownership of the subject property, has placed reliance mainly on the following-
a) Affidavits dated20.4.2011, of defendant‟s sisters in law namely Ms. Meera Jain and Ms. ManjuAggarwal, and a family friend,ShriNityanadBansaland affidavit dated 3.8.2011 of Mrs. GomtiDevi, mother of the brothers, whothereby concur with the fact of mutual family settlement having taken place between the brothers as a result whereof the suit property came under the share and exclusive possession of the defendant;
b) Copy of relevant record slips of the cheque book of the bank account of the defendant having the entry „relinquishment of right in property due to family settlement‟;
c) Copy of the two cheques dated 15.3.2001 drawn by the defendant in favour of plaintiff no. 2;
d) Copy of the balance sheet of the defendant‟s account for the years 2000 and 2001 thereby showing a two-fold increase in the amount of ger assets under the heading „House Property‟ because of such entitlement of the share in the suit property due to family settlement having taken place in 2000;
Page 15 of 18
e) Contract dated 12.3.2009 of defendant with the Architect for the construction of the suit property;
f) Certificate dated 28.3.2011 issued by the Architect himself, thereby acknowledging the fact that the residential house at the subject land was being built for the exclusive use of the defendant‟s family only and that he had never even met the other brothers of the husband of the defendant;
g) Electricity bills in respect of the suit property which are in the name of the defendant;
h) The fact that the approved building plan consists of only one kitchen in the suit property suitable for the residential use by the defendant‟s family only; etc.
33. In the light of the above material placed on record, it is difficult to give any final view, at this stage of the case,on the vexed issue i.e. whether an oral family settlement had taken place in the year 2000 or the parties continueto remain individual owners in respect of their shares in the suit property. Such a contentious issue can be decided by the court only after trial.
34. Having said this, it is an admitted case between the parties that defendant alone has been carrying on construction of the suit property and she alone has incurred all the expenses towards the construction. Also, there has not been any sort of interference from the side of the plaintiffs to the sanction plan or the design of the structure and before the filing of the present suit also,there was no interference from the side of the plaintiffs in the raising of the said structure by the defendant.
Page 16 of 18
35. In my considered view, therefore,if defendant is allowed to complete the entire construction of the said property, no prejudice will be caused to the rights of the plaintiffs as restraining the defendant from completing the said construction will certainly lead to more complications be it on financial front or be it because of various contracts having being entered into by the defendant with the contractors/architects etc. Raising of the construction by the defendant also in any case will not defeat the rights of the plaintiffs either in the said building or in their title, if they ultimately succeed in the present case.
36. To balance the equities between the parties, the ex-parte stay order granted by this court vide order dated 14.3.2011, is therefore made absolute till the final disposal of the present case. The defendant is restrained from creating any third party right or interest in any manner whatsoever till the final disposal of the suit. The defendant shall also not occupy any portion of the suit property without seeking prior permission of this court. So far the order dated 7.4.2011 restraining the defendant from carrying out further construction over the suit property is concerned, it is hereby vacated. Let the defendant continue with the remaining construction of the residential house as per the sanction plan of the building.
37. It is however made clear that raising of the said residential building by the defendant will not create any kind of special equity in favour of the defendant.
38. The defendant is also directed to place on record all the expenses so far incurred by her in raising the construction of the said house by filing an affidavit along with supporting documents within a period of one month from the date of this order. The defendant shall Page 17 of 18 also continue to place on record similar affidavits alongwith supporting documents for showing further expenses that she incurs in raising construction and renovation of the said house in every three months.
39. With the above directions both the present IA‟s are disposed of.
KAILASH GAMBHIR, J
January 07, 2013
Page 18 of 18