Delhi District Court
Smt. Gopali Devi vs Sh. Anil Veer Anand on 15 April, 2011
Gopali Devi v. Anil Veer Anand
IN THE COURT OF SH. SANJAY SHARMA, JSCC-
CUM-ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No.165/09
Unique Case I.D. No.02401C0032721998
In the matter of:
Smt. Gopali Devi
W/o Sh. N. L. Thakur,
Through Attorney:
Sh. N. L. Thakur
S/o Sh. Rama Lal,
R/o 61, Sansad Vihar,
Delhi - 110034. _____ Plaintiff
Versus
1.Sh. Anil Veer Anand S/o Sh. D. N. Anand R/o F-23, First Floor, Kirti Nagar, New Delhi - 110015.
2. Municipal Corporation of Delhi Through its Commissioner Town Hall, Chandni Chowk, Delhi. _____ Defendants Date of filing of the suit : 12.05.1998 Date of reserving order : 25.03.2011 Date of pronouncement : 15.04.2011 Judgment
1. This is a suit for permanent and mandatory injunction and recovery of Rs.1,24,000/- together with pendente lite and future interest @ 18% per annum Suit no.165/09 1 of 28 Gopali Devi v. Anil Veer Anand
2. Originally, the plaintiff had filed a suit for permanent and mandatory injunction against the defendants for a decree of permanent injunction restraining the defendant no.1 from selling, alienating or parting with the possession of the third floor of the property no.A-10/120, Moti Nagar, New Delhi - 110015 (Hereinafter referred as 'the suit property') and further, a decree of mandatory injunction inter-alia, seeking direction to the defendant no.1 to handover the sanctioned plan and mutation letter of the suit property to the plaintiff and direction to the defendant no. 2/MCD to take legal action either by way of sealing or demolition of the suit property.
3. The suit was registered on 13.05.1998 and summons of the suit and notice of the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 (Hereinafter referred as 'the Code') was issued to the defendants vide P.F. for 29.05.1998.
4. On 15.05.1998, an application under Order 6 Rule 17 of the Code was filed by the plaintiff for correcting the name of the defendant no.1 in the Memo of Parties.
5. On 22.07.1999, first application under Order 6 Rule 17 of the Code was filed by the plaintiff for amendment of the title of the plaint and for inserting additional facts in para no.3 of the plaint and para no.11 relating to cause of action, and to incorporate prayer for a decree of recovery of Rs.
Suit no.165/092 of 28 Gopali Devi v. Anil Veer Anand 1,24,000/- together with pendente-lite and future interest @ 18% per annum.
6. Vide order dated 14.02.2002, the said application under Order 6 Rule 17 of the Code was allowed subject to costs of Rs. 500/- with the direction to the plaintiff to file amended plaint within 15 days.
7. At this stage, it will be pertinent to mention that the plaintiff had already filed amended plaint along with the application under Order 6 Rule 17 of the Code on 22.07.1999.
8. On 31.05.2002, the plaintiff paid the costs of Rs.500/- and filed Second application under Order 6 Rule 17 of the Code for amendment of the plaint without specifying the proposed amendment.
9. On 25.10.2002, third application under Order 6 Rule 17 of the Code was filed by the plaintiff in order to make a specific prayer for a decree of recovery of Rs.1,24,000/- along with pendente lite interest @ 18% per annum and for amendment of the valuation clause of the plaint.
10. On 22.03.2004, Ld. Counsel for the plaintiff had stated that he wanted to continue with the amended plaint which was allowed vide order 14.02.2002 and filed on 31.05.2002 Ld. Counsel for the defendant no.1 denied the same. The court on perusal of file observed that no amended plaint was filed on 31.05.2002 (Infact, the amended plaint was filed on 22.07.1999 as well as on 31.05.2002 with the application under Suit no.165/09 3 of 28 Gopali Devi v. Anil Veer Anand Order 6 Rule 17 of the Code). The court had also imposed costs of Rs.800/- upon the plaintiff for misusing the process of law.
11. On 07.05.2004, the plaintiff had filed fourth application under Order 6 Rule 17 of the Code for amendment of the plaint to add prayer for a decree of recovery of Rs. 1,24,000/- along with pendente lite and future interest @ 18% per annum and consequently, valuation clause of the plaint.
12. Vide order dated 04.04.2005, the court had allowed the fourth application for amendment of the plaint under Order 6 Rule 17 of the Code subject to costs of Rs.3,000/- with the observation that the plaintiff had failed to amend the plaint despite order dated 14.02.2002 (Amended plaint was filed on 22.07.1999 along with the amendment application).
13. The case set out in the plaint is that the plaintiff had entered into an agreement with the defendant no.1 in respect of third floor with roof rights of the property no.A-10/120, Moti Nagar, New Delhi ('the suit property') for Rs.6,05,000/- vide receipt dated 17.03.1998. The plaintiff had paid a sum of Rs.1,00,000/- to the defendant no.1. The defendant no.1 had represented that the suit property was constructed with the permission of the authorities. The defendant no.1 represented that he had legal documents in respect of the suit property. The defendant no.1 had agreed to handover clear papers of the title to the plaintiff. The Suit no.165/09 4 of 28 Gopali Devi v. Anil Veer Anand plaintiff paid a sum of Rs.60,000/- in cash and Rs.40,000/- vide cheque to the defendant no.1 under the said misrepresentation and thereafter, the plaintiff learnt that the suit property was unauthorized-ly constructed without any sanctioned plan.
14. The case of the plaintiff is that the defendant no.1 had assured that the suit property was an authorized construction and he would produce clean papers on receipt of Rs.1,00,000 but the defendant no.1 failed to provide clean papers and sanctioned plan. Therefore, the plaintiff served legal notice upon the defendant and demanded sanctioned plan of the suit property, sale permission of the third floor and mutation letter. The defendant no.1 vide reply dated 04.05.1998 stated that he had not given such assurance to the plaintiff. The defendant no.1 instead of resolving the matter, threatened to forfeit the amount of Rs. 1,00,000/-. It is stated that the defendant no.1 had threatened to sell the suit property. It is stated that the defendant no.1 was carrying unauthorized construction in the suit property and the defendant no.2 had not taken action against the said construction. Therefore, the plaintiff filed the suit for permanent and mandatory injunction and recovery of Rs.1,24,000/- together with pendente lite and future interest @ 18% per annum.
15. In the written statement, the defendant no.1 raised preliminary objections that the suit is barred by time and the suit is not maintainable in the present form. The Suit no.165/09 5 of 28 Gopali Devi v. Anil Veer Anand defendant no.1 has not disputed that he had entered into an agreement to sell with the plaintiff in respect of third floor of the suit property for sale consideration of Rs.6,05,000/- vide receipt dated 17.03.1998. The defendant no.1 has not denied that the plaintiff had paid an amount of Rs.1,00,000/- as an earnest money.
16. The defendant no.1 has denied that he had given any assurance to the plaintiff with regard to the nature of the construction, sale permission or the documents. It is stated that the plaintiff was informed about the nature of the construction and she had agreed to purchase the third floor of the suit property on 'as is where is basis'. It is stated that the plaintiff has raised a false plea as she had failed to pay the balance price of the suit property. The defendant no.1 has denied that he had kept the plaintiff under wrong impression. It is stated that the suit property was to be sold on 'as is where is basis' and the possession thereof was to be delivered on payment of the balance sale consideration on or before 12th May, 1998. It is stated that it was agreed that the defendant no.1 shall execute documents namely General Power of Attorney, Special Power of Attorney, Agreement to Sell, Receipt, Will and Affidavit in favour of the plaintiff. It is stated that the plaintiff was aware of the nature of the construction before the deal. It is stated that the plaintiff has failed to pay the balance consideration in time and therefore, the defendant no.1 forfeited earnest money of Rs.1,00,000/-. It is stated Suit no.165/09 6 of 28 Gopali Devi v. Anil Veer Anand that the plaintiff is not entitled to recover any amount from the defendant no.1. It is stated that the suit property is an old construction and not liable to any action. It is stated that no unauthorized construction was being carried out in the suit property. It is stated that the suit property has already been sold. It is stated that the claim of the plaintiff for return of earnest money is barred by time.
17. The defendant no.2/MCD in its written statement raised a preliminary objection that the suit is barred under Section 477/478 of the Delhi Municipal Corporation Act, 1957 (Hereinafter referred as 'the DMC Act') for want of service of statutory notice upon the MCD. It is stated that the suit property bearing no.A-10/20, Moti Nagar, New Delhi was inspected on 14.01.1999 and unauthorized construction in the shape of excess coverage in front and rear side of the original flat at first floor, three rooms, lobby, one store, one kitchen, a toilet, stair-case with projections over municipal land at second floor and two rooms and one toilet at third floor was booked under section 343/344 of the DMC Act on 15.01.1999 and demolition order was passed on 03.02.1999 after following due process of law. It is stated that the MCD has not given any permission/sanction to the defendant no. 1 to raise construction at third floor of the suit property.
18. On the pleading of the parties, following issues were framed on 19.09.2005:
Suit no.165/097 of 28 Gopali Devi v. Anil Veer Anand
1. Whether the suit of the plaintiff is hopelessly time barred? If so, its effect? OPD
2. Whether the suit is not maintainable in the present form? If so, how and its effect? OPD
3. Whether the suit of the plaintiff is not maintainable in view of section 477/478 of the DMC Act? OPD
4. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP
5. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
6. Whether the plaintiff is entitled for the recovery of Rs.
1,24,000/-? OPP
7. Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP
8. Relief.
19. In the evidence, the plaintiff examined her husband and General Power of Attorney Sh. N. L. Thakur as PW-1 and the defendant no.1 stepped into the witness box as DW-1 in support of their respective case.
20. The defendant no.1 had filed his examination-in-chief by way of affidavit on 28.08.2008. The plaintiff failed to cross-examine the defendant no.1 despite availing several adjournments and finally, the right of the plaintiff to cross- examine the defendant no.1 was closed on 16.07.2010.
21. The defendant no.2/MCD has not led any evidence.
Suit no.165/098 of 28 Gopali Devi v. Anil Veer Anand
22. I have heard arguments of Sh. K. L. Hans, Adv. for the plaintiff and Sh. B. S. Sharma, Adv. for the defendant no.1 and Sh. Shashi Kant Sharma, Adv. for the defendant no.2. I have also perused the written arguments filed by the plaintiff on 25.03.2011 and the defendant no.1 on 03.03.2011.
23. On careful consideration of the evidence on record in the light of the pleading of the parties and arguments addressed by Ld. Counsel for the parties, Issue wise finding is as under:
ISSUE NO.1:
24. The onus to prove the issue no.1 was upon the defendant no.1.
25. Ld. Counsel for the defendant no.1 argued that originally, the plaintiff had filed a suit for permanent and mandatory injunction against the defendants on 12.05.1998 seeking sanction letter and demolition of the suit property, and for restraining the defendant no.1 from alienating, selling or parting with the possession of the suit property. He argued that the plaintiff filed several applications for amendment of the plaint to incorporate relief of recovery of Rs.1,24,000/-. He argued that the plaintiff had not filed amended plaint within 15 days from the date of order dated 14.02.2002 and kept on filing amendment applications. He argued that the agreement between the parties in respect of the suit property was executed on 17.03.1998. He argued Suit no.165/09 9 of 28 Gopali Devi v. Anil Veer Anand that the last application for amendment of the plaint was allowed vide order dated 04.04.2005 and by that time, the relief of recovery of Rs.1,24,000/- had become barred by time.
26. Ld. Counsel for the plaintiff argued that the plaintiff had filed an application for amendment of the plaint on 22.07.1999 for seeking recovery of Rs.1,00,000/- which was allowed on 14.02.2002. He argued that subsequent applications for amendment were not filed for recovery of the amount but for correction of certain paras and therefore, the suit is within limitation.
27. Contention of Ld. Counsel for the defendant no.1 appeared attractive but could not withstand close scrutiny. It is evident that the plaintiff had entered into an agreement with the defendant no.1 in respect of the suit property for sale consideration of Rs.6,05,000/- on 17.03.1998 vide Receipt Ex.PW-1/2. It is an admitted fact that the plaintiff had paid an advance amount of Rs.1,00,000/- on 17.03.1998 and the balance price was payable on or before 12.05.1998. It is seen that the plaintiff had filed first amendment application on 22.07.1999 for the amendment of the plaint to incorporate relief of recovery of Rs. 1,24,000/-. The said application was allowed vide order dated 14.02.2002.
28. It is evident from record that the plaintiff had filed amended plaint along with first amendment application on Suit no.165/09 10 of 28 Gopali Devi v. Anil Veer Anand 22.07.1999. Subsequent amendment applications were filed on 31.05.2002, 25.10.2002 and 07.07.2004 to change the word "till" to "in the alternative" in the prayer clause. Moreover, the Court was not properly assisted which eventually lead to incorrect observation on 22.03.2004 that 'no amended plaint was filed on 31.05.2002' whereas the plaintiff had filed amended alongwith his application for amendment on 22.07.1999 and 31.05.2002 respectively. Therefore, it is evident that the plaintiff had filed amended plaint on 22.07.1999 and paid costs of Rs.500/- on 31.05.2002. Amendments subsequent to the amendment allowed vide order 14.02.2002 meant for correction of 'expression' rather 'incorporation of relief'.
29. Therefore, it is hereby held that the plaint was amended vide order 14.02.2002. On the date of filing of the first amendment application on 22.07.1999, the relief of recovery of the advance amount was not bared by time. Where amendment of plaint is allowed, it relates back to the date of institution of the suit and therefore, it is hereby held that the suit of the plaintiff is within limitation.
30. Accordingly, the issue no. 1 is decided in favour of the plaintiff and against the defendant no.1.
ISSUE NO.2:
31. Onus to prove the issue no.2 was upon the defendant no.1. The defendant no.1 in its written statement contended Suit no.165/09 11 of 28 Gopali Devi v. Anil Veer Anand that the suit is not maintainable in the present form. The defendant no.1 has neither stated not demonstrated the defect in the form of the suit. Accordingly, the issue no.2 is decided in favour of the plaintiff and against the defendant no.1.
ISSUE NO.3:
32. Onus to prove the issue no.3 was upon the defendant no.2. The defendant no.2 in its written statement contended that the suit was barred for service of statutory notice under Section 477/478 of the DMC Act. Ld. Counsel for the defendant no.3 argued that the plaintiff had not served two months notice upon the MCD before filing of the suit.
33. Ld. Counsel for the plaintiff argued that the defendant no.1 was carrying unauthorized construction in the suit property and intended to create third party rights therein and therefore, the plaintiff had filed the suit for injunction against the defendants.
34. This is a suit for permanent and mandatory injunction seeking inter-alia, direction to the MCD to take appropriate action in respect of the unauthorized construction in the suit property. Service of two months notice is not mandatory in such suit. It is evident from the record that the MCD had booked the unauthorized construction in the suit property after filing of the suit on 15.01.1999 and passed demolition order on 03.02.1999. The MCD in its status report dated Suit no.165/09
12 of 28 Gopali Devi v. Anil Veer Anand 01.02.1999 had informed the Court about that about the booking of unauthorized construction in the suit property in the form of excess coverage in front and rear side of the original flat at First Floor, three rooms, lobby, store, kitchen, toilet, stair-case alongwith projections over municipal land at Second Floor and two rooms and one toilet at Third Floor of the suit property on 15.01.1999. The Court vide its order dated 01.02.1999, 28.04.1999, 01.06.1999, 07.08.1999, 28.08.1999, 02.12.1999, 02.12.1999, 10.02.2000, 19.04.2000, 19.05.2000 and further orders had directed the MCD to file the Action Taken Report in respect of the unauthorized construction in the suit property reported vide report dated 01.02.1999 but the MCD had neither taken action nor filed report.
35. Such callous attitude of a statutory authority entrusted with the responsibility of enforcing the provisions of the DMC Act cannot be appreciated in any manner. The MCD failed to act or respond to the repeated orders of the Court, as noted above. This Court is of the considered opinion that the MCD has failed to perform its statutory duties. The plaintiff is not seeking any relief against the MCD. The plaintiff is merely seeking mandate of the Court to the MCD to perform its statutory functions. The suit is maintainable in the absence of two month's notice.
36. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendant no.2.
Suit no.165/0913 of 28 Gopali Devi v. Anil Veer Anand ISSUE NO.4:
37. The onus to prove the issue no.4 was upon the plaintiff. The plaintiff is seeking a decree of mandatory injunction directing the defendant no.1 to handover sanctioned plan/letter and mutation letter in respect of the suit property to the plaintiff and further, direction to the defendant no.2/MCD to take legal action against the unauthorized construction in the suit property.
38. Ld. Counsel for the plaintiff argued that the defendant no.1 had failed to provide the sanctioned plan and mutation letter of the suit property despite service of notice Ex.PW-1/3. He argued that the MCD had booked the suit property on 15.01.1999 and passed demolition order on 03.02.1999.
39. He argued that the defendant no.1 had misrepresented that the suit property was constructed with the permission of the authorities. He argued that the MCD is the authority responsible for checking unauthorized construction. He argued that the MCD had connived with the defendant no.1 and allowed him to raise unauthorized construction in the suit property and failed to take action despite demolition order dated 03.02.1999 and orders of the Court. He argued that the plaintiff is entitled to seek directions to the defendants, as prayed.Suit no.165/09
14 of 28 Gopali Devi v. Anil Veer Anand
40. Ld. Counsel for the defendant no.1 argued that the defendant no.1 had not given any assurance to the plaintiff to handover any sanction letter. He argued that the suit property is an old construction and no unauthorized construction was carried out in the suit property. He argued that defendant no.1 has already sold the suit property and no purpose will be served by ordering demolition or sealing. He argued that the plaintiff was aware of the nature of construction of the suit property and she had agreed to purchase the suit property on 'as is where is' basis. He argued that the plaintiff failed to perform her part of the agreement and instead she is seeking demolition of the suit property to settle scores.
41. It is the admitted case of the defendant no.1 that the suit property was constructed without sanctioned plan. The defendant no.1 in reply dated 04.05.1998 Ex.PW-1/4 stated that the property was constructed without approved plan.
42. In the reply notice dated 04.04.1998 Ex.PW-1/4, the defendant no.1 stated that 'no plan was ever approved by the MCD and third floor was added to the suit property without any approved plan'. In its written statement and status report dated 01.02.1999, the MCD stated that unauthorized construction in the suit property in the form of excess coverage in front and rear side of the original flat at First Floor, three rooms, lobby, store, kitchen, toilet, stair- case alongwith projections over municipal land at Second Floor and two rooms and one toilet at Third Floor of Suit no.165/09 15 of 28 Gopali Devi v. Anil Veer Anand the suit property was booked on 15.01.1999 and demolition order was passed on 03.02.1999. The Court vide its order dated 01.02.1999, 28.04.1999, 01.06.1999, 07.08.1999, 28.08.1999, 02.12.1999, 02.12.1999, 10.02.2000, 19.04.2000, 19.05.2000 had directed the MCD to file the Action Taken Report in respect of the unauthorized construction in the suit property reported vide report dated 01.02.1999 but the MCD had neither taken action nor filed report. In its written statement, the MCD stated that it has not given any permission to the defendant no.1 to raise construction at third floor of the suit property. The MCD failed to perform its statutory obligation, the MCD can be directed to carry its statutory duties under the DMC Act. Accordingly, MCD is hereby directed to act against the unauthorized construction in the suit property in accordance with the procedure provided under the DMC Act.
43. The issue no.4 is answered accordingly. ISSUE NO.5:
44. The onus to prove the issue no.5 was upon the plaintiff. Ld. Counsel for the defendant no.1 argued that the defendant has already sold and parted with the possession of the suit property. Ld. Counsel for the plaintiff has not pressed this issue. Moreover, the plaintiff is seeking refund of the advance amount and not specific performance of the agreement. The relief of permanent injunction has already become infructous.
Suit no.165/0916 of 28 Gopali Devi v. Anil Veer Anand
45. Accordingly, the issue no.5 is decided in favour of the defendant no.1 and against the plaintiff.
ISSUE NO.6 and 7:
46. Issue no.6 and 7 are inter-linked. Issue no.7 is consequential to the issue no.6. The onus to prove the said issues was upon the plaintiff.
47. Ld. Counsel for the plaintiff argued that the plaintiff has examined her husband/Attorney as PW-1 in support of her case. He argued that the PW-1 has personal knowledge of the case as he was involved in the execution of the agreement Ex.PW-1/2. He argued that the defendant no.1 had agreed to provide clean paper of title and sanctioned building plan of the suit property. He argued that the defendant no.1 failed to abide by terms of the receipt-cum- agreement Ex.PW-1/2 that 'House tax will be paid by the seller till 31.03.1998. Clean papers will be handed over to the purchaser'.
48. He argued that the suit property is an unauthorized construction and the defendant no.1 is not having title papers of the suit property. He argued that the defendant no.1 has not returned the advance amount of Rs.1,00,000/- despite service of notice Ex.PW-1/3. He argued that the defendant no.1 had induced the plaintiff to part with an amount of Rs.1,00,000/- on the pretext that the suit property was legally constructed and he had legal Suit no.165/09 17 of 28 Gopali Devi v. Anil Veer Anand documents of ownership with him. He argued that depositions of the PW-1 remained un-rebutted. He argued that the defendant no.1 had not provided legal documents in respect of the third floor of the suit property. He argued that the defendant no.1 is not entitled to forfeit the amount and the plaintiff is entitled to recover the amount of Rs. 1,24,000/- together with interest.
49. Ld. Counsel for the defendant no.1 argued that the plaintiff has not appeared in the evidence. He argued that the deal had taken place between the plaintiff and the defendant no.1. He argued that it was incumbent on the plaintiff to appear in evidence. He argued that an attorney is not entitled to depose on behalf of the principle. He relied on Janki Vashdeo Bhojwani & Anr. v. Indusind Bank & Ors. (2005) SCCR 42. He argued that the plaintiff has not cross-examined the defendant and therefore, his evidence should be deemed correct. He argued that the defendant no.1 has proved the receipt to prove his presence in the Sub-Registrar office on 12.05.1998 vide Ex.PX and Ex.PY.
50. He argued that as per agreement Ex.PW-1/2, no sale deed was to be executed. He argued that it was agreed between the parties that only the possession of the suit property will be given and title documents namely, General Power of Attorney etc. were to be executed on receipt of the balance sale consideration. He argued that the defendant no.1 had never assured that he will execute sale deed or the property was constructed with approved plan. He argued Suit no.165/09 18 of 28 Gopali Devi v. Anil Veer Anand that the crux of the agreement was delivery of possession and not the execution of the sale deed. He argued that the plaintiff had agreed to purchase the suit property on 'as is where is basis'. He argued that the plaintiff was aware of the nature of construction and execution of power of attorney in the said locality. He argued that the defendant no.1 had replied the notice Ex.PW-1/3 vide reply Ex.PW-1/4. He argued that the defendant no.1 was present in the office of Sub-Registrar for performance of his part of agreement on 12.05.1998 vide Ex.PX and Ex.PY. He argued that the plaintiff had failed to make the payment of the balance sale price on 12.05.1998 and forged the story of sanctioned plan and sale deed. He argued that the plaintiff had failed to perform her part of the agreement and therefore, the defendant no.1 has rightly forfeited the advance amount.
51. In so far as contention that an attorney cannot depose on behalf of the plaintiff is concerned, it can be stated that the PW-1 is the husband of the plaintiff. He has deposed that he is well conversant with the facts of the case.
52. PW-1 deposed that the agreement Ex.PW-1/2 was signed in his presence. In his cross-examination, he stated that he was present at the time of execution of Ex.PW-1/2. Therefore, it is hereby held that the PW-1 was present at the time of execution of Ex.PW-1/2 and he has personal knowledge of the case, and he is conversant with the facts of the case. PW-1 is a competent witness. In Janki Vashdeo Bhojwani & Anr. v. Indusind Bank & Ors.
Suit no.165/0919 of 28 Gopali Devi v. Anil Veer Anand (supra), Hon'ble Supreme Court held that ' an attorney can appear only as witness in his personal capacity'. He has not deposed any fact which was in the personal knowledge of the plaintiff. Therefore, no adverse inference can be drawn for non-appearance of the plaintiff in the witness box who is an aged lady and suffering from various ailments.
53. In so far as contention of the defendant no.1 that the depositions of the defendant no.1 were not subjected to cross-examination and remained un-challenged is concerned, it can be stated that the court is not absolved from its duty to analyze the intrinsic worth of the testimony for the sole reason that the witness was not cross- examined. The court is under duty to carefully consider and analyze his evidence. The trial is an ascertainment of the truth. DW-1 deposed that the plaintiff had been informed about the nature of construction and she had agreed to purchase the property on 'as is where is basis. It is evident from a bare reading of the Ex.PW-1/2 that the fact that the plaintiff had been told about the nature of the construction, is not mentioned therein.
54. It is not mentioned in the Ex.PW-1/2 that the plaintiff had agreed to purchase the property on 'as is where is basis'. It is not mentioned therein that the suit property was unauthorized-ly constructed and the plaintiff had been informed about it, and no sale deed was to be executed. Once the parties have chosen to reduce the terms and condition of the agreement in writing, it can be allowed to Suit no.165/09 20 of 28 Gopali Devi v. Anil Veer Anand depose to the contrary. Relations between the parties are governed by an agreement and they must abide by its terms and conditions. The defendant no.1 cannot be permitted to re-write agreement in the evidence. The testimony of the defendant no.1 is contrary to the agreement Ex.PW-1/2 and cannot be believed.
55. In so far as contention of Ld. counsel for the defendant no.1 that the plaintiff had agreed to purchase the property on 'as is where is basis' is concerned, it can be stated that the said expression does not find mention in the agreement and further, it is not mentioned herein that the plaintiff had been informed about the nature of construction of the suit property. In the absence of the requisite information with regard to the nature of construction of the suit property and mode of transfer of the suit property vide GPA, SPA, Will, Receipt, Agreement to Sell and Affidavit, the defendant no.1 cannot contend that the plaintiff had agreed to purchase the suit property on 'as is where is basis' and by way of GPA, SPA, Will, Receipt, Agreement to Sell and Affidavit. More over the said mode is not a statutory mode of transfer of property. House Tax papers cannot be termed as 'clean papers'.
56. Contention of Ld. Counsel for the defendant no.1 that the said mode of transfer was in vogue cannot be accepted. Rights, title and interest in a movable property can only be transferred by executing a registered sale deed. Such documents do not confer a perfect title in the property.
Suit no.165/0921 of 28 Gopali Devi v. Anil Veer Anand
57. Contention that the agreement Ex.PW-1/2 did not provide for execution of the sale deed cannot be accepted. The said agreement did not provide the contrary either. More over, recognized mode of transfer of an immovable property is execution of a sale deed. Therefore, it was incumbent on the defendant no.1 to incorporate a specific term about the mode of transfer of the suit property by way of GPA, SPA, Will, Receipt, Agreement to sell and Affidavit.
58. Contention that the plaintiff was aware of the nature of the construction of the suit property and prevalent mode of transfer in the said locality as no plan used to be sanctioned for construction of any building in the said area and the usual mode of transfer of the property was GPA, SPA, Will, Receipt, Agreement to Sell and Affidavit is concerned, it can be stated that the plaintiff cannot be forced to purchase a property by way of a mode which is not permissible in law. A person who is purchasing a property for valuable consideration is entitled to insist for execution of sale documents in accordance with the provisions of the Transfer of Property Act. The plaintiff cannot be compelled to purchase a property which is constructed unauthorized-ly and could suffer demolition.
59. In so far as contention of the defendant no.1 that the possession was to be delivered to the plaintiff on payment of the balance sale consideration and execution of GPA, SPA, Will, Receipt, Agreement to Sell and Affidavit and Suit no.165/09 22 of 28 Gopali Devi v. Anil Veer Anand therefore, the crux of the agreement was possession and not the sale deed is concerned, it can be stated that the agreement specifically provides for transfer by registration and not by possession. Further, the agreement Ex.PW-1/2 nowhere provides that the defendant no.1 shall hand over the possession of the suit property and execute GPA, SPA, Will, Receipt, Agreement to Sell and Affidavit instead of the sale deed in favour of the plaintiff. What is the point in having possession of a property constructed without approved plan and without valid title documents?
60. Contention that the defendant no.1 has forfeited the earnest money on the failure of the plaintiff in making the payment of the balance amount is concerned, it can be stated that the agreement was executed on 17.03.1998 and the plaintiff had served the notice upon the defendant no.1 somewhere in April, 1998 and therefore, the defendant no.1 had replied the said notice vide reply dated 04.05.1998 Ex.PW-1/4. The defendant no.1 instead of returning the earnest money fastened the blame on the plaintiff despite admitting that the suit property was constructed without sanctioned plan and no sale deed in respect of the suit property was permissible. The defendant no.1 was not entitled to forfeit the earnest money of Rs.1,00,00/-.
61. Contention that the defendant no.1 had visited the Sub-Registrar Office on 12.05.1998 and Ex.PX and Ex.PY prove his presence in the Office of Sub-Registrar on 12.05.1998 is concerned, it can be noted that the plaintiff Suit no.165/09 23 of 28 Gopali Devi v. Anil Veer Anand had issued notice to the defendant no.1 in the April, 1998 vide Ex.PW-1/3 and called upon him to furnish the approved plan and sale permission and the defendant no.1 had replied the said notice vide reply notice dated 04.05.1998 Ex.PW-1/4 stating therein that the 3rd floor of the suit property was constructed without approved plan and he did not have any sale permission in respect of the third floor of the suit property. It is not understandable as to why the defendant no.1 had gone to the office of the Sub-Registrar when he had informed the plaintiff that he did not have the sanctioned plan and sale permission.
62. It is the admitted case of the defendant no.1 that there was no sanctioned plan in respect of the third floor of the suit property. Vide reply Ex.PW-1/4, the defendant no.1 stated that third floor was added without any approved plan, and no plan was ever approved. Receipt Ex.PW-1/2 provides that 'clean papers will be handed over to the purchaser'. Clean papers mean the legal document transferring legal title to the plaintiff. General Power of Attorney, SPA, Agreement to sell, Will, Affidavit and Receipt in respect of property constructed without approved plan, cannot be termed as clean papers. The plaintiff was entitled to seek perfect title, free from any controversy and demolition/sealing action so that he could enjoy the property without any hindrance from any corner.
63. Contention that 95% of Delhi has been constructed without sanctioned plan and prevalent mode of transfer of Suit no.165/09 24 of 28 Gopali Devi v. Anil Veer Anand properties vide Agreement to sell, GPA, SPA, Will, Receipt and Affidavit is concerned, it can be stated that there cannot be equality in violation of law. In Anil Kumar Khurana v. MCD 36 (1996) DRJ 558; Hon'ble High Court of Delhi held that 'There cannot be a right to be illegally favoured on the ground that others have been so favoured' In ANZ Grindlays Bank v. Commissioner, MCD 34 (1995) DRJ 492; Hon'ble High Court of Delhi held that 'what is guaranteed by the Constitution is equality before the law. It means equality in the observance of law and no equality in violation of law'
64. It is the duty of the seller to disclose defects in his title and the suit property to the purchaser. Section 55 of the Transfer of Property Act, 1882 ('the TPA Act') provides that in the absence of a contract to the contrary, the seller is bound to the buyer any material defect in the property, to produce to the buyer all documents of title for examination, and to execute a proper conveyance of the property. The plaintiff at the earliest had served a notice Ex.PW-1/3 upon the defendant no.1 and thereby, she had required him to provide clear paper of title, sanctioned plan and mutation of the suit property. The defendant no.1 instead of providing the said documents contended in his reply Ex.P-1/4 that there was no sanctioned plan in respect of the suit property and, title documents i.e. GPA, Affidavit, Will etc. will be executed and possession will be handed over on receipt of balance price.
Suit no.165/0925 of 28 Gopali Devi v. Anil Veer Anand
65. A buyer is entitled to have a perfect title. The defendant no.1 cannot force the plaintiff to purchase an unauthorized-ly constructed property. The defendant no.1 had concealed the material defect in the suit property with regard to nature of construction and want of legal documents. The defendant no.1 is not entitled to forfeit the advance money. The plaintiff is entitled to recover Rs. 1,24,000/- towards the earnest money and interest thereupon.
66. The plaintiff is entitled to interest on the said amount as the defendant no.1 had wrongly withheld that the earnest money of Rs.1,00,000/- without any justification and deprived the plaintiff from the amount legitimately due to her. The defendant no.1 instead of repaying the earnest money after service of notice Ex.PW-1/3 which was issued within one month from the date of agreement dated 17.03.1998 replied the said notice vide reply Ex.PW-1/4 on flimsy grounds with the intention to usurp the amount and thereby, rendered himself liable to recompense the plaintiff.
67. In the opinion of the Court, claim of the plaintiff for grant of interest @ 18% is just and reasonable.
68. Therefore, the plaintiff is entitled to recover the suit amount of Rs.1,24,000/- from the defendant no.1 together with pendente-lite and future interest @ 18% per annum.
Suit no.165/0926 of 28 Gopali Devi v. Anil Veer Anand
69. Accordingly, the issue no.6 and 7 are decided in favour of the plaintiff and against the defendant no.1. RELIEF:
70. In view of the finding on the issue no.4, 6 and 7, the suit for permanent injunction, mandatory injunction and recovery of Rs.1,24,000/- together with pendente-lite and future interest @ 18% per annum filed by the plaintiff against the defendants is decreed with costs in the following terms:
A. A decree for recovery of Rs.1,24,000/- together with pendente-lite and future interest @ 18% per annum is passed in favour of the plaintiff and against the defendant no.1.
B. The defendant no.2/MCD is hereby directed to act against the unauthorized construction in the suit property in accordance with the procedure provided under the DMC Act and submit the report within six weeks from today.
C. Copy of order be sent to the defendant no.2/MCD for necessary action and action taken report.
71. The plaintiff shall be entitled to the costs of the suit from the defendant no.1.
72. Decree sheet be prepared accordingly.
Suit no.165/09 27 of 28 Gopali Devi v. Anil Veer Anand Announced in the open court SANJAY SHARMA) Today on 15.04.2011 SCC-cum-ASCJ-cum Guardian Judge (West), Delhi Suit no.165/09 28 of 28