Delhi District Court
M/S. Arenja Enterprises Pvt. Ltd vs Sh. Arvind Kumar on 17 February, 2014
CS No. 143/09
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-CENTRAL-9, TIS HAZARI COURTS, DELHI.
Civil Suit No.: 143/09
Unique Case ID No. 02401C0261182006.
M/s. Arenja Enterprises Pvt. Ltd.
Having Its Regd. Office at
E-564, Greater Kailash-II
New Delhi
.....Plaintiff
Versus
1. Sh. Arvind Kumar
Son of Sh. Surjeet Singh
Resident of 41, Village Chandanhula
Tehsil Hauz Khas, New Delhi-110 074.
2. Sh. Sunder Kumar
Son of Late Sh. Tej Ram
Resident of Village Mandi
Tehsil Hauz Khas, New Delhi-110 047.
...Defendant
Date of institution of the suit : 30.03.2006.
Reserved for judgment on : 31.01.2014.
Date of pronouncement of judgment : 17.02.2014.
SUIT FOR CANCELLATION, DECLARATION AND PERMANENT
INJUNCTION.
JUDGMENT
1. This is a suit for cancellation, declaration and permanent injunction.
2. Brief facts of the case are :-
(a) Plaintiff is a private limited company incorporated under the Company Act, 1956. In the meeting of the board of directors of the plaintiff, a resolution has been passed on 10/12/2005 whereby Sh. Braham Arenja Enterprises Vs. Arvind Kumar 1 CS No. 143/09 Arenja is authorized to institute the present suit on behalf of the plaintiff.
(b) Plaintiff through registered sale deeds purchased agriculture land in village Aya Nagar and same are also mutated in the name of the plaintiff with the Revenue Authority. The said agriculture land was purchased by the plaintiff falls in the Deh-shamlat land of the village Aya Nagar, New Delhi. The total ad-measuring of the said land is 826.2 bighas and having 63783 shares. In the said land, the plaintiff has 4959 shares out of said 63783 shares. Till date the plaintiff is shown as bhumidar of the said land.
(c) One of the director of the plaintiff namely Sh. Braham Arenja executed a general power of attorney dated 20/02/2004 in favour of defendant no. 2 by which he was authorised to look after the land of 1026 shares out of the total 63783 shares of khatta no. 141/146 min, situated in village Aya Nagar, New Delhi which is owned and possessed by the plaintiff. The said land was purchased by the plaintiff through registered sale deeds dated 12/06/1989 and 12/10/1989 and got mutated in the name of plaintiff on 07/07/1989 and 28/11/1989 respectfully in the revenue records (hereinafter called the suit property). The said GPA dated 20/02/2004 was cancelled by the executant vide deed of cancellation dated of general power of attorney dated 27/02/2004 and the information of cancellation of the said GPA dated 20/02/2004 was also given to defendant no. 2 through letter dated 27/02/2004 whereby it was informed to defendant no. 2 about the cancellation of GPA.
(d) On receiving the above said letter, defendant no. 2 also handed over the original GPA dated 20/02/2004 to Sh. Braham Arenja on 07/03/2004.
(e) In the month of October, 2005, the plaintiff received notices from the office of Tehsildar, Hauz Khas, New Delhi. After receiving the said Arenja Enterprises Vs. Arvind Kumar 2 CS No. 143/09 notices, it was came in the knowledge of the plaintiff that defendant no. 2 on the basis of photocopy dated 20/02/2004 had executed the sale deed dated 26/10/2004 in respect of the land ad-measuring 1 bigha and 4 biswas (approx. 1200 sq. yards) out of the plaintiff's 1026/63783 share in favour of defendant no. 1 and on the basis of said sale deed, defendant no. 1 applied for mutation of the holding of the plaintiff in his name. It was also came in the notice of the plaintiff that defendant no. 2 had also executed ten other sale deeds in respect of the agriculture land of the plaintiff's company in favour of different persons.
(f) On 29/10/2005 Sh. Braham Arenja, director of the plaintiff appeared in the office of Tehsildar, Hauz Khas and made his statement regarding cancellation of GPA dated 27/02/2004. Thus the sale deeds itself are bogus, fake and of now consequence, hence no mutation could be made. The plaintiff was never agreed to sell any part of the suit land to defendant no. 1 or defendant no. 2 nor authorized any person to sell their land to defendant no. 1. The plaintiff not applied for NOC from the Tehsildar, Hauz Khas, Delhi for the execution of the above said sale deed. The actual physical possession of the suit land is still with the plaintiff. No consideration was ever paid by the defendants to the plaintiff. It is further stated that defendant no. 2 had kept a coloured photocopy of general power of attorney dated 20/02/2004 with him prior to return the original general power of attorney dated 20/02/2004 and misused the same by way of executing fake, fabricted and forged sale deeds in the name of different persons. The said GPA was also an unregistered document and the sale deed which was executed on the basis of the photocopy of the said GPA is hit by the provisions of Section 32 and 33 of the Registration Act.
3. Defendant no. 1 was proceeded ex parte vide order dated Arenja Enterprises Vs. Arvind Kumar 3 CS No. 143/09 20/07/2006. Written statement filed by defendant no. 2 wherein it is stated that the plaintiff executed the GPA in favour of defendant no. 2 for the management, supervision, sale etc of the properties belonging to the plaintiff. The plaintiff never cancelled the said power of attorney nor any intimation was ever received by defendant no. 2. The alleged revocation is totally false and fabricated. It is further stated that on the land of the plaintiff many persons had constructed their respective jhuggies or kachha houses and they were demanding money for vacating the land. The plaintiff authorized defendant no. 2 to sell the land and to pay money to the jhuggi dwellers for getting the eviction of the whole land and defendant no. 2 done so and on sale of the land, paid the amount to various jhuggi dwellers and others and got the land free, on getting the complete land vacated. The plaintiff has now started filing the false civil suits to grab the properties which defendant no. 2 sold under valid authority. However, it is denied that defendant no. 2 sold the suit property by way of sale deed on the basis of photocopy of the GPA. Rest of the contents of the plaint are also denied.
4. Replication filed by the plaintiff to the written statement of defendant no. 2 wherein averments of the plaint are re-iterated and affirmed. It is specifically denied that the plaintiff authorised to defendant no. 2 to sell the land and to pay the money to the jhuggi dwellers to get vacated the land and defendant no. 2 done so. It is further stated that in suit no. 1090/05, the Hon'ble Delhi High Court appointed local commissioner who inspected the land with the assistance of the revenue authorities and patwari and in the said report it was clearly stated that the land which was in possession of the plaintiff, there was no construction of any kind over the said land and it was only filled with grass and bushes and the wire fencing surrounding the said land which is in possession of the plaintiff.
Arenja Enterprises Vs. Arvind Kumar 4 CS No. 143/095. My ld predecessor by order dated 26/05/2009 framed following issues:
1. "Whether the plaintiff is entitled to cancellation, declaration and permanent injunction ?
2. Whether the suit of the plaintiff is not maintainable ?
3. Whether the GPR and Sale Deed is hit by Sections 32 and 33 of the Registration Act, if so to what effect ?
4. Relief."
6. To prove its case, the plaintiff has examined Director of the plaintiff as PW1 who tendered his evidence by way of affidavit Ex. PW1/A. He further relied upon documents Ex. PW1/1 to Ex. PW1/15. Documents Ex. PW1/2, Ex. PW1/4 and Ex. PW1/5 were originally seen and returned. He further examined Sh. Chander Nanda, who tendered his evidence by way of affidavit Ex. PW2/A. Halka Patwari is examined as PW3. Kanoongo, Record Room, Tehsil Hauz Khas, Delhi is examined as PW4. SDM, Mehrauli is examined as PW5. All these witnesses were cross-examined by ld counsel for defendant no.
2. Defendant did not lead any evidence and by order dated 10/10/2013, this court closed DE.
7. I have gone through the entire records of the case including pleadings of the parties, evidence led by parties and documents proved by the parties during evidence. My issue-wise findings are :-
8. Issues no. 1 and 2.
Issue No. 1 : Whether the plaintiff is entitled to cancellation, declaration and permanent injunction ?
Issue No. 2 : Whether the suit of the plaintiff is not maintainable ?
Since fact pertaining to these issues are inter-related with each other, therefore, I am going to decide both these issues by common findings. In the present suit, the plaintiff is seeking the relief of declaration for declaring the sale deed 26/10/2004 in favour of Arenja Enterprises Vs. Arvind Kumar 5 CS No. 143/09 defendant no. 1 as illegal, void and sham transaction. However, in the suit there is no separate relief for cancellation has been prayed and thus, the plaintiff has sought both the reliefs of declaration and cancellation in respect of the sale deed as per the prayer of the plaint. The plaintiff further sought relief of permanent injunction in respect of the suit property to restrain defendant o. 1. Affidavit of PW1 is similar to the averments made in the plaint. During cross- examination, it is stated by PW1 that he knew defendant no. 2 for the last 14 years. Ex. PW1/7 is the general power of attorney. The document is perused. As per clause 6 of this document, specific powers were given to defendant no. 2 to sell or to dispose of or transfer by way of exchange, lease entire property or any part thereof. By clause 7, specific powers were given to execute, sign and for presentation before registering authority proper sale/conveyance deed for conveying his rights, interests, liens and titles in the said property or any part thereof. Thus, specific powers were given by the plaintiff to defendant no. 2. This document was executed on 20/02/2004. Moreover, there is no denial by the plaintiff regarding the execution of these documents as the plaintiff itself admitted about the execution of these documents in the plaint. During cross- examination, it is stated by PW1 that he had given the Ex. PW1/7 to defendant no. 2 to look after the land in question. A suggestion was given that Ex. PW1/7 was given by the plaintiff to defendant no. 2 for selling the land and defendant no. 2 and his brother gave the sale transaction money to him and the suggestion was denied. It is further stated that on 27/02/2004 by executing Ex. PW1/8, Ex. PW1/7 was revoked. This document is also perused. Stamp paper for execution of this document was purchased on 26/02/2004. This document is also notarized document and is not disputed by the plaintiff. A suggestion was given that no deed of cancellation of Ex. PW1/7 was Arenja Enterprises Vs. Arvind Kumar 6 CS No. 143/09 ever executed and the suggestion was denied. It is further stated that Ex. PW1/9 was issued to defendant no. 2. Ex. PW1/9 is also perused. This document is a photocopy on the record and is bearing date 27/02/2004 and sent through registered post Ex. PW1/10 and UPC Ex. PW1/11. It is further stated that the said letter was posed by his employee namely Mr. Tiwari from Civil Lines Post Office near Tis Hazari. PW2 stated in Ex. PW2/A about giving of power of attorney dated 20/02/2004 in favour of defendant no. 2 to look after the suit land. It is further stated that PW2 has seen the agriculture land i.e. the suit property and there was no jhuggi or khacha house over the said land at that time. During cross-examination, it is stated by PW2 that he did not knew regarding the previous power of attorney. However, the witness has not stated about anything regarding issue of GPA or cancellation of GPA. This court consider the entire circumstances. It appears that the plaintiff is concealing the material facts from this court. Ex. PW1/7 was executed on 20/02/2004 and this document was cancelled on 27/02/2004 through Ex. PW1/8. Stamp paper for Ex. PW1/8 was purchased on 26/02/2004. The plaintiff has not disclosed what was the necessity that within six days, he made up a mind for cancellation of Ex. PW1/7. What prompted the plaintiff for cancellation of this document not disclosed. This is not the case of the plaintiff that any unusual fact or any malafide intention of defendant no. 2 was observed by the plaintiff. It is the case of the plaintiff that on receiving the plaintiff's letter, defendant no. 2 also handed over Ex. PW1/7 to Sh. Braham Arenja on 07/03/2004. This court observed that it appears that the plaintiff and defendant no. 2 hatched a conspiracy to cheat the people at large by executing such document inasmuch as defendant no. 2 did not appear before this court for deposition. It is not the case of the plaintiff that defendant no. 2 was either non obedient person or Arenja Enterprises Vs. Arvind Kumar 7 CS No. 143/09 was caused to be under the control of the plaintiff. As discussed herein above, Ex. PW1/7 specifically authorized defendant no. 2 to sell the suit property or to enter into any transaction qua the suit property. But it is the case of the plaintiff that he only authorized the defendant to look after the suit property. But what happened whether defendant no. 2 was careless or not looking after the property, has not been stated anywhere by the plaintiff. Therefore, due to concealment of all such facts, this court also found that the plaintiff is guilty of malafide intention and this court is not going to grant any relief regarding declaration as the decree for declaration is a discretionary relief and therefore, this issue is answered against the plaintiff.
9. Issue No. 3.
Whether the GPR and Sale Deed is hit by Sections 32 and 33 of the Registration Act, if so to what effect ? During disposal of issues no. 1 and 2, this court already observed that the plaintiff cannot be allowed to take advantage of his own wrongs and as the plaintiff is guilty of concealment of material facts. It is the case of the plaintiff himself that he executed Ex. PW1/7 i.e. general power of attorney in favour defendant no. 2. Sale deed dated 26/10/2004 is Ex. PW1/14. It is the case of PW1 himself that after receiving letter dated 27/02/2004 i.e. Ex. PW1/9, defendant no. 2 handed over the original GPA, Ex. PW1/7 to PW1 i.e. the plaintiff on 07/03/2004. However, it is not the case of the plaintiff that he informed to the general public at large about the execution of Ex. PW1/8 and the said document got cancelled through publication and in such circumstances this court is of the considered opinion that the plaintiff cannot be allowed to take advance of the concealment of facts as this court observes during disposal of issue no. 1. Moreover, Ex. PW1/14 clearly specifically states that actual physical possession was given to defendant no. 1 and the plaintiff has not brought any Arenja Enterprises Vs. Arvind Kumar 8 CS No. 143/09 document on record to establish that the plaintiff is in possession of the suit property on the date of filing of the suit. Moreover, if the originals of Ex. PW1/7 was given by defendant no. 2 to the plaintiff then it was not possible by defendant no. 2 to get register sale deed Ex. PW1/14 as defendant no. 2 appeared before the Sub-Registrar for registration of Ex. PW1/14 and the court has to draw presumption that the Sub-Registrar at the time of registration of Ex. PW1/14 must have ensured about the documents in support of the registration furnished by defendant no. 2 as the court has to draw presumption that all things must have been done by a public officer in ordinary course of discharge of duties after ensuring due compliance. Moreover, Ex. PW1/7, specifically empowers by plaintiff to defendant no. 2 to enter into the transaction regarding sale and to execute documents in this regard. Therefore, the plaintiff is not able to discharge the onus to prove this issue and accordingly this issue is answered against the plaintiff.
10. Issue no. 4.
Relief.
In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 17.02.2014.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 17.02.2014 Arenja Enterprises Vs. Arvind Kumar 9 CS No. 143/09 CS No. 143/09 17.02.2014 Present: None Vide my separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of costs. Decree Sheet be prepared accordingly. File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 17.02.2014 Arenja Enterprises Vs. Arvind Kumar 10