Delhi High Court
Ajit Singh Gill & Ors. vs Arvind Khosla & Ors. on 25 July, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11.07.2011
Judgment Pronounced on: 25.07.2011
+ CS(OS) Nos. 234/1997 and 2226/2001
AJIT SINGH GILL & ORS. .....Plaintiff
- versus -
ARVIND KHOSLA & ORS. .....Defendant
and
AJIT SINGH GILL & ORS. .....Plaintiff
- versus -
ARVIND KHOSLA & ORS. .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr Kirti Uppal with Mr. Mohd.
Amanullah and Mr Pradeep
Chandel, Advs.
For the Defendant: Mr M.S. Vinaik & Mr Pawan
Kumar Aggarwal, Adv. for D-1
Mr. Kanchan Singh &
Mr Gurvinder Singh, Adv. for D-
2
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
CS(OS) Nos. 234/1997 and 2226/2001 Page 1 of 51
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J
1. Initially, Suit No. 234/1997 was filed by Shri Ajit
Singh Gill, his wife and two sons on 3.2.1997 seeking
permanent injunction restraining defendants No. 1, 3 & 4
from interfering with their possession of property No. 324,
Sant Nagar, East of Kailash, New Delhi and taking its illegal
possession from them. The plaint was thereafter amended
so as to seek possession of the first, second and third floors
of the aforesaid property from defendants No. 1, 3 and 4.
They have also sought injunction, restraining defendants
No. 1, 3 & 4 from interfering with their possession of the
aforesaid property and taking its illegal possession from
them. Suit No. 2226/2001 has been filed by them seeking
an amount of Rs 32 lac as damages.
2. The case of the plaintiffs is that plaintiff No. 1, who
is carrying the business under the name and style of
"Simran Creations" took on rent the whole of property
bearing No. 324, Sant Nagar, East of Kailash, comprising
basement, ground floor, first floor, second floor and third
floor, which was jointly owned by defendant Nos. 1 and 2,
CS(OS) Nos. 234/1997 and 2226/2001 Page 2 of 51
from defendant No. 2 in January, 1996 at the rent of Rs
12,000/- per month. It is alleged that since arrears of
Corporation Tax amounting to Rs 19.62 lac had
accumulated in respect of the suit property and MCD had
issued notice for its auction in order to recover its dues, the
matter was discussed between defendant Nos. 1 and 2 and
defendant No. 1 asked defendant No. 2 to explore the
possibility of sale of the aforesaid property. Plaintiff No.1,
who was a family friend of the defendants, was apprised of
in this regard and he offered to purchase the property at the
market price. Defendant No. 1 agreed to sell his share of
the property to the plaintiffs and asked defendant No. 2 who
held a Power of Attorney from him, to execute the sale deed
on his behalf. Defendant No. 2, after informing defendant
No. 1 in this regard, sold the suit property to the plaintiffs
and executed sale deeds in their favour. The share of
defendant No. 1 in the sale consideration, amounting to Rs
8,62,500/- was sent to him by post and was accepted by
him.
3. It is further alleged that on 24th January, 1997,
plaintiff No. 1 was informed that defendant No. 1 along with
defendants 3 and 4 had forcibly removed the staff of
CS(OS) Nos. 234/1997 and 2226/2001 Page 3 of 51
"Simran Creations" and locked the premises. On reaching
Delhi on 29th January, 1997, plaintiff No. 1 visited the suit
property and found anti-social elements sitting inside the
gate. The police was called by him and on seeing the police
personnel, those anti-social elements ran away, leaving one
security man on the spot, who was taken to the police
station. Defendants 1, 3 and 4 placed locks over the lock of
plaintiff No.1 in order to obstruct his ingress and egress and
also deployed anti-social elements outside the suit property.
4. In Suit No. 2226/2001, the plaintiffs have claimed
a sum of Rs 25 lac being the interest @ 12.5% per annum
from 26.01.1997 to 25.09.2001 on Rs 35 lac spent by them
on purchase of the suit property and carrying out its
renovation, etc., Rs 2 lac towards legal and professional fee
to protect their legal claim in respect of this property and Rs
2.5 lac towards travelling expenses for coming to Delhi from
Mumbai on various dates. They also claimed Rs 2.5 lac
towards damages for mental agony undergone by them,
thereby making a total sum of Rs 32 lac.
5. In her written statement, defendant No.2 Smt.
Kusum Anjali has alleged that in or around June, 1980, the
suit property was taken by her on rent from its then owner
CS(OS) Nos. 234/1997 and 2226/2001 Page 4 of 51
Shri Amrik Singh Pasricha and it was being used by her for
her business being carried under various names. It is,
however, admitted that she along with defendant No.1, who
is her brother, purchased the aforesaid property from Shri
Amrik Singh Pasricha on 13.8.1987 vide documents viz.
agreement to sell, receipt, registered Will and power of
attorney. She has further stated that between August, 1987
and September, 1993 several firms, in which she as well as
defendant No.1 were involved, were operating from the suit
property. Differences arose between the partners of those
firms and the business operations being carried in the suit
property were stopped in September, 1993. A temporary
agreement was arrived at in October, 1993 wherein it was
agreed that she alone would utilize the premises and if she
decided to sell out, the share of defendant No. 1, in the sale
proceeds would be given to him. Pursuant to the aforesaid
arrangement defendant No.1 shifted his business from the
suit property and whole of it came in her exclusive
possession. The premises was let out by her to M/s P&P
Overseas between July and December, 1995 and came to be
vacated by the aforesaid tenant on or around 23.12.1995.
She then leased out the entire premises to plaintiff No. 1
CS(OS) Nos. 234/1997 and 2226/2001 Page 5 of 51
between January and June, 1996. She has further alleged
that since municipal taxes were not paid, more than Rs.19
lac were being claimed by MCD towards arrears of taxes. In
June, 1995, an auction notice was issued by MCD for
auction of the suit property in order to recover the arrears of
property tax. Defendant No.1 expressed his inability to
contribute towards payment of property tax and asked her
to explore all possible avenues including sale of the
property. On 15.6.1996, she sold this property to the
plaintiffs, to the knowledge of defendant No.1.
The share of defendant No.1 in the sale consideration was
also sent to him by pay orders along with a letter dated
17.6.1996.
6. Defendant No.1, who is the main contesting
defendant, has alleged that the plaintiff No. 1 and defendant
No.2 were acting in collusion with each other so as to
deprive him of his rights in the suit property. It is alleged
that on purchase of the suit property from Shri Amrik Singh
Pasricha, defendants No. 1 & 2 were using it for business
activities of their business concerns viz. Humming Bird Pvt.
Ltd., Ladybird Clothing and International Merchandising. It
is also alleged that first, second and third floors of the suit
CS(OS) Nos. 234/1997 and 2226/2001 Page 6 of 51
property were always in occupation of defendant No.1, who
had put his lock on the entrance of the aforesaid floors and
after closure of the business, it was mutually agreed that
defendant No.2 would utilize the basement and ground
floors for running the business of her firms whereas
defendant No.1 would utilize the first, second and third
floors. Defendant No.1 has denied the alleged tenancy
agreement in favour of plaintiff No. 1 Shri Ajit Singh Gill
and has claimed that the documents were manufactured
solely with a view to show possession of the plaintiffs in
respect of the entire property. It is further alleged that on
24.1.1997 defendant No.1 while visiting the suit property
noticed change in the locks and put his own lock at the
entrance door in addition to the replaced lock. He also
lodged a report with the police expressing apprehension of
his dispossession. It is also claimed that the alleged
transaction of sale between the plaintiffs and defendant
No.2 was only a paper transaction and there has been
transfer of funds between the plaintiffs and defendant No.2.
As regards the power of attorney alleged to have been
executed by him in favour of defendant No.2, the case of
defendant No.1 is that it is a forged and fabricated
CS(OS) Nos. 234/1997 and 2226/2001 Page 7 of 51
document. As regards the deposit of Rs.8,62,500/- in his
account, defendant No.1 has claimed that he came to know
of the deposit only on 19.12.1996 and on the very same
date he reported the matter to the police informing it about
the aforesaid deposit. It is further alleged that defendant
No. 1 wrote to his bank seeking a clarification with respect
to these deposits. His bank was informed by Union Bank of
India that the drafts deposited in the account were issued
by their Napean Sea Branch, Bombay. When bank of
defendant No.1 enquired from Union Bank of India, Napean
Sea Branch vide letter dated 26.12.1996, it was informed
that the drafts were purchased by one Mr. Ajit Singh Gill.
7. Defendant No.1 has also filed a counter claim
seeking a decree for declaration that the sale deed dated
15.6.1996 executed by defendant No.2 on his behalf is
collusive, fraudulent, illegal and void.
8. The following issues were framed in CS(OS)
No.234/1997:
1. Whether four sale deeds dated 15 th June, 1996
relating to the suit property were validly
executed by defendant No.2 in favour of the
plaintiffs and defendant No.2 was duly
authorized and competent to execute the same
for and on behalf of defendant No.1? If not, its
effect? - OPP
CS(OS) Nos. 234/1997 and 2226/2001 Page 8 of 51
2. Whether the amount of Rs.8,62,500/-
representing his share of sale consideration was
deposited in the bank account of defendant No.
1 without his knowledge? If not, its effect? -
OPD-1
3. Whether the suit property is properly valued for
the purpose of court fee and jurisdiction? - OPP
4. Whether the plaintiffs are entitled to recover
possession of first, second and third floors of the
suit property in view of averments made in the
plaint? OPP
5. Relief.
Counter Claim
1. Whether the defendant No. 1 is entitled to the
relief of declaration as prayed for? If not, its
effect? - OPD-1
The following issues were framed in CS(OS) No.
2226/2001:
1. Whether the plaintiff has no cause of action to
maintain the present suit against the
defendants?
2. Whether the present suit is liable to be stayed
under Section 10 CPC in view of the pendency of
the earlier suit bearing No. 234/1997?
3. Whether the plaintiff is entitled to any damages
from the defendants and, if so, to what extent?
4. Whether the plaintiff is entitled to any interest
and, if so, at what rate, for what amount and for
which period?
CS(OS) Nos. 234/1997 and 2226/2001 Page 9 of 51
5. Relief.
ISSUE NOS. 1, 2 & 4 in Suit No. 234/1997 and Issue No.
1 in the Counter Claim
9. The plaintiffs have filed the affidavit of plaintiff No.
1 Mr. Ajit Singh Gill by way of evidence and have also
produced three more witnesses. In his affidavit by way of
evidence, plaintiff No. 1 Mr. Ajit Singh has supported on
oath, the case set up in the plaint and has stated that the
entire suit property was taken by him on rent from
defendant No.2 in January, 1996 vide agreement dated
3.1.1996 Exh. P-95. He has stated that defendant No. 1
agreed to sell his share to him and informed defendant No.
2 that since he might not be readily available, she
(defendant No.2) should execute the sale deed on his behalf
as she also held power of attorney executed by him in her
favour and the suit property was accordingly sold to them.
He has further stated that on 24.1.1997 he was informed by
his local manager Mr. Harvinder Singh that defendant No.1
along with defendants No. 3 & 4 had forcibly removed their
staff and locked all the rooms of the building by putting his
new locks. The main entrance was also locked by him. Mr.
Harvinder put his lock over their lock. When he came to
CS(OS) Nos. 234/1997 and 2226/2001 Page 10 of 51
Delhi on 29.1.1997 and visited the suit property, he found
bad elements sitting inside the gate and informed the police.
In the meantime defendants No. 1, 3 & 4 also reached there.
They also placed locks over the locks of the plaintiffs. The
matter was reported by him to the police on 1.2.1997.
10. PW-2 Mr. Sanjay Rawat is an official in the office of
Sub-Registrar who produced the sale deeds Exh. PW-2/1 to
PW-2/4. PW-3 is an official from State Bank of India, Lajpat
Nagar, who has produced the copy of Account Opening
Form in respect of account of the plaintiff No. 1 with SBI,
Lajpat Nagar and has also produced the copy of the
statement of his bank account. PW-4, an official from MCD,
has produced the copies of demand and collection registers
for the years 1994-97, 2000-03 and 2003-04.
11. In her affidavit by way of evidence, defendant No.2
- Ms.Kusum Anjali has stated that the suit property was
taken on rent by her from Shri Amrik Singh Pasricha in
June, 1980 and was being used by her for her business
purposes, till the time it was purchased on 13.08.1989.
She has further stated that after purchase of the suit
property, she as well as defendant No.1 were operating from
these premises and were carrying business under the
CS(OS) Nos. 234/1997 and 2226/2001 Page 11 of 51
names of M/s. Jordan Fashions, M/s. Creative M/s.
Fashions and M/s. Humming Bird Private Limited, M/s.
International Merchandising and Ladybird Clothing. She
has also stated that the business operations were stopped
in September, 1993 as disputes arose between the partners
of the aforesaid firms. According to her, a temporary
arrangement was arrived at between the two groups wherein
it was agreed that she alone would utilize the suit premises
and if she decided to sell it, the share of defendant No.1 in
the sale proceeds would be given to him. Pursuant to the
aforesaid arrangement, defendant No.1 shifted his business
to another premises and possession of the entire suit
premises thereafter remained with her.
She has claimed that the suit premises was let out
by her to M/s P&P Overseas vide agreement dated 1 st July,
1995. In or around 23rd December, 1995, M/s P&P Overseas
vacated the premises and it was thereafter let out by her to
plaintiff No. 1 between January, 1996 and June, 1996. She
has further stated that since arrears of tax were not paid to
MCD, auction notice was issued by it. When she discussed
the matter with defendant No. 1, it was decided to sell the
suit property and accordingly this property was sold by
CS(OS) Nos. 234/1997 and 2226/2001 Page 12 of 51
defendant No.2 on 15th June, 1996 with the knowledge and
consent of defendant No.1. She has alleged that the share
of defendant No. 1 in the sale proceeds was sent to him by
way of pay orders along with her letter dated 17th June,
1996 Ex.D-2/62. She has further stated that the sale deed
in respect of the suit property was executed in Mumbai as
plaintiff No. 2, who is the wife of plaintiff No. 1, was a
serious heart patient and was advised not to travel.
12. D2W2m Shri Hominder Bhardwaj is an attesting
witness to the power of attorney dated 16.11.1987
purporting to be executed by Shri Arvind Khosla in favour of
defendant No. 2 Ms. Kusum Anjali. He has stated that the
aforesaid power of attorney was executed and signed by
defendant No. 1 in his presence, and in the presence of
another person Ms. Suman Sehgal. D2W3 Mr. Ujjwal
Kumar Mishra is Deputy Manager of State Bank of India,
Lajpat Nagar who has produced a copy of the letter written
by SBI, Lajpat Nagar, New Delhi to M/s. Ladybird Clothing
and copies of statement of account in respect of M/s.
Ladybird Clothing, M/s. International Merchandising, M/s.
Humming Birds Pvt. Ltd. and defendant No. 2 Ms. Kusum
Anjali.
CS(OS) Nos. 234/1997 and 2226/2001 Page 13 of 51
13. In his affidavit by way of evidence defendant No. 1,
Shri Arvind Khosla has stated that suit property was being
used by him and defendant No. 2 for the activities of their
family business. He has further stated that in September,
1993 disputes arose between him and defendant No. 2 and
it was agreed that the basement and ground floor would be
used and occupied by defendant No. 2 whereas he would
use and occupy first, second and third floor portions. They
accordingly locked their respective portions of the suit
property whereas the main entrance was locked with a
common lock. He has also stated that plaintiff No. 1 had
opened two accounts in January, 1996 giving the residential
address of defendant No. 2 Smt. Kusum Anjali as his
business address and agreement dated 3.1.1996 was
created by him in connivance with defendant No.2.
According to him, plaintiff No. 1 was never inducted as a
tenant in any portion of the suit property. He has claimed
that the power of attorney dated 16.11.1987 purporting to
be executed by him is a forged and fabricated document.
He has further stated that on 18.12.1996 his manager Mr.
R.B.Unni Krishnan informed him about deposit of Rs.
8,62,500/- in his account on 30.8.1996. He thereupon
CS(OS) Nos. 234/1997 and 2226/2001 Page 14 of 51
visited the bank on the next day and made enquiry in this
regard. He was informed that 04 cheques/Demand Drafts
of Union Bank of India, Napean Sea Branch were deposited
in his account on 29.8.1996. Assuming that this could be
some mistake/error, he submitted an application requesting
the bank to rectify the error and also lodged a complaint
with the police, seeking necessary legal action. He has
further stated that when he visited the suit property on
24.1.1997 he found that the common lock on the main
entrance had been replaced by another lock. He therefore
put another lock on the main entrance and also informed
the police in this regard. As regards the sale deeds dated
15.6.1996, he has claimed that they are sham and
fraudulent transactions. He has also stated that as against
one cheque of Rs.2,17,500/- credited to her account on
23.7.1996, defendant No. 2 transferred a sum of Rs.2 lac to
the account of the plaintiff No. 1 on 25.7.1996. As against
the remaining three cheques credited in her account on
25.9.1996, she transferred Rs.4 lac on 4.10.1996 and Rs.3
lac on 5.10.1996 to the account of the plaintiff No.1. He
has also claimed that the prevalent market price of suit
property was more than Rs.1,20,00,000/- at the time of
CS(OS) Nos. 234/1997 and 2226/2001 Page 15 of 51
alleged sale.
14. Vide order dated 07.02.1997, Shri B.L.Wali,
Advocate, was appointed as Local Commissioner to find out
as to who was in possession of the suit property and whose
articles were lying therein. When he reached the suit
property, the main gate was not found locked, though it was
latched from inside. The Local Commissioner prepared
inventory of the articles found in room No.1 which was
stated to be the reception and room No.2 which was next to
the reception. He could not open rooms No.3 & 4 since keys
of one lock each put on those rooms was not available with
the parties. Out of the four locks found on room No.3, three
locks were opened by the plaintiffs, whereas the fourth lock
could not be opened. The locks opened from the keys
provided by the plaintiffs included the lock permanently
fixed on the main door of the room (night latch). Three
locks were found on room No.4 out of which two including
night latch permanently fixed on the main door, was opened
by the plaintiffs. The third lock, however, could not be
opened. A new lock was thereafter put by the Local
Commissioner on the main gate of the premises. He also
took photographs of the site and submitted them along with
CS(OS) Nos. 234/1997 and 2226/2001 Page 16 of 51
his report.
The Local Commissioner again visited the suit
property in compliance of the order passed by this Court on
05.05.1997. The locks which had been put on rooms No.3
& 4 and which could not be opened on 08.02.1997, were
broken in the presence of the parties. One lock was
thereafter opened by defendant No.1 with the help of a key.
The Local Commissioner prepared an inventory of the
articles lying in room No.3 & 4. The Local Commissioner
found that the basement of the suit property comprised of
six rooms besides one generator room and a toilet. Locks of
room A & B of the basement were opened by an employee of
„Simran Creations‟. No locks were found on rooms C & D.
The lock of the first floor leading to room A was opened by
defendant No.1. The lock of the second floor was also
opened by defendant No.1. The lock of the room on the
terrace floor, however, was opened by an employee of the
plaintiff.
15. The case of the plaintiffs and defendant No. 2 is
that the whole of property No. 324, Sant Nagar, East of
Kailash, New Delhi was let out to defendant No. 1 in
January, 1996 and this is also the case of defendant No. 2
CS(OS) Nos. 234/1997 and 2226/2001 Page 17 of 51
that M/s P&P Overseas was the tenant in respect of the
whole of this property before it was vacated by them on 23rd
December, 1995 and it was let out to plaintiff No. 1.
Admittedly, the suit property was jointly owned by
defendants No. 1 and 2, who purchased it from Shri Amrik
Singh Pasricha in November, 1987. This is not the case
either of the plaintiffs or of defendant No. 2 that the joint
ownership of the suit property was not in the knowledge of
plaintiff No.1, who even otherwise, claims to be a family
friend of both the defendants and, therefore, must be
knowing that the suit property is jointly owned by them.
Since the suit property was jointly owned by the defendants,
it could have been let out only by both of them or by one of
them with the consent/permission of the other. A jointly
owned property cannot be let out by one of the co-owners,
without permission/consent of the other co-owner and if
this is done, the tenancy created by one of the co-owners
would not bind the other co-owner. This is not the case of
defendant No. 2 that the suit property was jointly let out by
her and defendant No. 1 to plaintiff No. 1. This is also not
her case that she had let out the property to plaintiff No. 1
with the permission/consent of defendant No. 1. In her
CS(OS) Nos. 234/1997 and 2226/2001 Page 18 of 51
cross-examination, defendant No.2 has admitted that
defendant No.1 never authorized her to induct plaintiff No.1
as a tenant to the suit property. Defendant No. 2 Kusum
Anjali when asked as to on whose behalf she had inducted
plaintiff No. 1 as tenant in the suit property, stated that she
had inducted him as a tenant since she held Power of
Attorney on behalf of Shri Amrik Singh Pasricha. When
asked as to whether the plaintiff No. 1 was inducted as a
tenant on behalf of defendant No. 1 as well, she stated that
there was no question of plaintiff No. 1, being inducted as
tenant on behalf of defendant No. 1 as she was holding
Power of Attorney on behalf of Shri Amrik Singh Pasricha to
rent out the property. Though in the later part of her
statement, she stated that she has apprised defendant No. 1
about it sometime in the first week of January, 1996, she
did not claim that the tenancy was created with the prior
approval/consent of defendant No. 1. In any case, there is
no evidence of defendant No. 1 having consented to plaintiff
No. 1 being inducted as a tenant in the suit property. No
rent is alleged to have been paid by plaintiff No. 1 to
defendant No. 1. The rent receipts filed by the plaintiffs
purport to have been executed only by defendant No. 2, Ms.
CS(OS) Nos. 234/1997 and 2226/2001 Page 19 of 51
Kusum Anjali.
This is also not the case of defendant No. 2 that
she had inducted plaintiff No. 1 as a tenant in exercise of
the authority given to her by defendant No. 1 vide Power of
Attorney dated 18th November, 1987 (Ex. PW-1/X1). She
claims to have acted pursuant to the Power of Attorney
executed by the previous owner Shri Amrik Singh Pasricha
in her favour. Since the suit property had already been sold
by Shri Amrik Singh Pasricha to defendants way back on
13th August 1987, defendant No. 2 had no right in law to let
it out to plaintiff No. 1, on the strength of the Power of
Attorney executed by the previous owner Shri Amrik Singh
Pasricha in her favour. A perusal of the rent deed,
purporting to be executed by defendant No. 2 in favour of
plaintiff No. 1 also indicates that the alleged letting out was
only by defendant No. 2 and not on behalf of both the
defendants. Had plaintiff No. 1 taken the suit property on
rent from both the defendants, he would have paid rent to
both of them and not only to defendant No. 2 Kusum Anjali.
This is yet another indicator that defendant No. 1 was not a
party to the tenancy, alleged to have been created in favour
of plaintiff No. 1
CS(OS) Nos. 234/1997 and 2226/2001 Page 20 of 51
16. There is no evidence of defendant No. 2, being in
exclusive possession of the suit property under an
arrangement with defendant No. 1, at the time tenancy is
alleged to have been created in favour of plaintiff No. 1. It is
an admitted case that defendants No. 1 and 2 were carrying
business in partnership under various business names
such as M/s. Jordan Fashions, M/s. Creative Fashions and
M/s. Humming Bird Private Limited, M/s. International
Merchandising and M/s. Ladybird Clothing. This is also an
admitted case that disputes and differences arose between
defendants No. 1 and 2 in the year 1993, consequent to
which business operations in the suit premises were
stopped. The case of defendant No. 2 is that in or around
1993, a temporary arrangement was arrived at between two
groups and it was agreed that she alone would utilize the
premises. The case of defendant No. 1, on the other hand, is
that as per a mutual agreement between him and defendant
No. 2, it was agreed that he would occupy the basement and
ground floor, whereas, she would occupy the first, second
and third floor of the suit property. There is no documentary
or independent evidence either of the arrangement, claimed
by defendant No. 2 or of the arrangement claimed by
CS(OS) Nos. 234/1997 and 2226/2001 Page 21 of 51
defendant No. 1. Even otherwise, as far as the arrangement
pleaded by defendant No. 2 is concerned, that appears to be
quite improbable and unnatural. Since the suit property
was jointly owned by defendants No. 1 and 2 in equal
shares and the relations between them had become strained
to such an extent that joint business which they were
carrying had to be stopped, there could have been no reason
for defendant No. 1 to agree to defendant No. 2, coming into
exclusive possession of the whole of the suit property. No
co-owner is likely to enter into such one sided arrangement
and this is more so when the relations between the co-
owners were far from cordial. Therefore, it is difficult to
accept that defendant No. 2 was in exclusive possession of
the whole of the suit property in January, 1996, under an
arrangement with defendant No. 2 and, therefore, she could
not have validly transferred the possession of the whole of
the suit property to plaintiff No. 1. I, therefore, have no
hesitation in holding that the alleged tenancy in favour of
plaintiff No. 1 was not created with the consent of defendant
No. 1 and, thus, is not binding on him.
17. There are umpteen circumstances which indicate
that there was no bona fide agreement of tenancy created
CS(OS) Nos. 234/1997 and 2226/2001 Page 22 of 51
between defendant No. 1 and plaintiff No. 1. As per clause
10 of the Tenancy Agreement dated 3rd January, 1996,
defendant No. 1 paid an advance of Rs 36,000/- and a
security deposit equivalent to six months‟ rental. The
security deposit was to be returned on determination of the
tenancy after adjustment of arrears, if any. In his cross-
examination, plaintiff No. 1 stated that he paid Rs 72,000/-
as security by way of a cheque in January, 1996. However,
there is no documentary proof of any such payment having
been made by cheque. According to plaintiff No. 1, the
security deposit was subsequently refunded to him by way
of a business adjustment as he had purchased some goods
from defendant No. 2 and Rs 72,000/ was adjusted.
However, in their replication, the plaintiffs have
emphatically claimed that they had no business dealings
with defendant No. 2. In fact, in his cross-examination
dated March 28, 2008, plaintiff No. 1 was unable to recollect
any monetary transaction with defendant No. 2 other than
the sale of the suit property. It has also been admitted by
plaintiff No. 1 that he never tendered any rent to defendant
No. 1 at any point of time. No reason has been given by
plaintiff No. 1 for not paying or even tendering half of either
CS(OS) Nos. 234/1997 and 2226/2001 Page 23 of 51
the security deposit or the rent to defendant No. 1, despite
his being a co-owner of the suit property. In his cross-
examination, plaintiff No. 1 has admitted that he had
opened two bank accounts at the residential address of
defendant No.2. These bank accounts, according to plaintiff
No. 1, were opened in January, 1996. These accounts were
introduced by defendant No. 2, as admitted in her cross-
examination. Plaintiff No. 1 has not given the date of
opening the bank accounts at the residential address of
defendant No. 2. If the suit property had been taken on rent
on 03rd January, 1996, as is claimed by the plaintiffs, there
could be no occasion for him to give the residential address
of defendant No. 2 while opening the bank accounts, unless
the accounts were opened on 1st or 2nd January, 1996 and
the opening of the accounts was so urgent that the plaintiff
No. 1 could not have waited till 03rd January, 1996 so as to
give correct address of the account holder to the bank.
Ordinarily, the account of a business firm is not opened at
the residential address of an outsider when the firm has
never carried business at that address. If the tenancy was
created with effect from 03rd January, 1996, the
negotiations must have been taken place a few days before
CS(OS) Nos. 234/1997 and 2226/2001 Page 24 of 51
that date and, therefore, plaintiff No. 1 would be knowing
that he was going to take the whole of the suit property on
rent and in that case, he would have liked to defer the
opening of the bank account till 03rd January instead of
opening it on 1st or 2nd January so that he could give correct
address of the firm to the bank. This is yet another
circumstance which shows that no bona fide tenancy was
created by defendant No.2 in favour of plaintiff No. 1. Ex. P-
36 and P-42 are the affidavits sworn by defendant No. 2 on
29th October, 1996. In para 1 of affidavit, she specifically
stated that she was lawful occupant of Property No. 324,
Sant Nagar and was having a domestic connection in her
name. She requested DESU to sanction domestic load on 1
KW and domestic power load of 5 KW for the purpose of
cooling and heating and undertook that electricity supply
will be used for the purpose for which it had been
sanctioned and not for manufacturing purpose. If defendant
No.2 had let out the whole of the suit property to plaintiff
No. 1 on 3rd January, 1996, for commercial purpose, there
could be no question of her stating, on oath, in October,
1996 that she was a lawful occupant of the suit property
and seeking enhancement of the load for residential
CS(OS) Nos. 234/1997 and 2226/2001 Page 25 of 51
purpose. This circumstance also points out that no bona
fide tenancy was created by defendant No. 2 in favour of
plaintiff No. 1.
18. The case of the plaintiffs and defendant No. 2 is
that the whole of the suit property was let out to plaintiff
No. 1 on 03rd January, 1996 and, thereafter sold to the
plaintiffs in January, 1996. This is not the case either of the
plaintiffs or of defendant No. 2 that only a part of the suit
property was let out to plaintiff No. 1 and a part was
retained by defendant No. 2 with her. When the Local
Commissioner carried out the inspection on 18 th May, 1997,
in the presence of the parties, he found voluminous record
of the joint firms of defendants No. 1 and 2 in the premises.
These were:
i. records of Humming Bird, International
Merchandising Provident Fund File (11 in number)
from 1985 to 1993.
ii. Records of Jordan Fashion (Sundry files) of Ladybird
Clothing etc.
iii. Export samples, handicraft wooden (which were
lying in a drawer and whose lock was opened/closed
by the employee of the plaintiffs Mr.Tulsi.
iv. Nine registers of Creative Fashions from 1984 to
1993 regarding salary/attendance register.
v. Five registers form the year 1989 to 1993 pertaining
CS(OS) Nos. 234/1997 and 2226/2001 Page 26 of 51
to International Merchandising.
vi. Twelve registers of Hamingbird Pvt. Ltd. from the
year 1982 to 1993.
vii. Seven registers of Jordan Fashions from the year
1985 to 1993.
viii. Records of Hamingbird International Merchandising
Provident Fund File (11 in number) from 1985 to
1993.
ix. Records of Jordan Fashion (Sundry files) of Ladybird
Clothing Etc.
x. Nine registers of Creative Fashions from 1984 to
1993 regarding salary/attendance register.
xi. Five registers from the year 1989 to 1993 pertaining
to International Merchandising.
xii. Twelve registers of Hamingbird Pvt. Ltd. from the
year 1982 to 1993.
xiii. Seven registers of Jordan Fashions from the year
1985 to 1993.
It would be appropriate to note here that according
to defendant No.2, the whole of the suit property had been
let out to M/s P&P Overseas before it was then let out to
plaintiff No. 1. Defendant No.2 has not examined anyone
from P&P Overseas to prove that the suit premises had
been let out by her to them and was vacated by them in
December, 1995. Had the whole of the suit property been let
out either to M/s P&P Overseas or to plaintiff No. 1, the
CS(OS) Nos. 234/1997 and 2226/2001 Page 27 of 51
voluminous record of the joint firms of defendants No. 1 and
2, would not have been found lying there at the time of the
inspection by the Local Commissioner. This is one more
circumstance which shows that the plea taken by the
plaintiffs and defendant No. 2 in this is regard is not true.
19. Since plaintiff No.1 knew it very well that the suit
property was jointly owned by defendants No. 1 and 2, he
would have negotiated with both of them and not only with
defendant No. 2, if he was to take the suit property on rent.
Since plaintiff No. 1 claims to be a family friend of
defendants, there could have been no difficulty in his
speaking to defendant No. 1 in this regard before taking the
property on rent. In fact, the stand taken by plaintiff No. 1
in his cross-examination that defendant No. l did not have
the authority to give the suit premises on rent as only
defendant No. 2 had the General Power of Attorney. This
stand taken by plaintiff No. 1 is wholly untenable since the
property had been purchased by the defendants way back in
August, 1987 and, in fact, plaintiff No. 1 expressly admitted
in his cross-examination dated 10th October, 2007 that after
13th August, 1987, Shri Amrik Singh Pasricha did not have
any right to give the premises on rent or to sell the same. If
CS(OS) Nos. 234/1997 and 2226/2001 Page 28 of 51
as per the understanding of plaintiff No. 1, Shri Amrik
Singh Pasricha did not have any right to let out the suit
property after 13th August, 1987, he could not have acted on
the assumption that his attorney defendant No.2 Kusum
Anjali had the authority to let it out without permission of
defendant No. 1, who was the other co-owner of the
property.
20. The next question which comes up for
consideration is as to whether the transaction between the
plaintiffs and defendant No. 2, to the extent it pertains to
the sale of the share of defendant No. 1, was a genuine and
bona fide transaction or the sale deed to that extent was a
sham and fraudulent document having been executed by
defendant No. 2 in connivance with the plaintiffs with a view
to deprive defendant No. 1 of his share in the suit property.
21. The sale deeds in favour of the plaintiffs have been
executed by defendant No.2 alone and defendant No.1 is not
a party to them. Defendant No.2 has executed the sale
deeds on her behalf as also in her capacity as the attorney
of defendant No.1. The case of the plaintiffs and defendant
No.2 is that while executing the sale deeds on behalf of
defendant No.1, defendant No.2 was acting in exercise of the
CS(OS) Nos. 234/1997 and 2226/2001 Page 29 of 51
authority given to her by defendant No.1 vide Power of
Attorney dated 18.11.1987 (Ex. PW-1/X-1). The Power of
Attorney, which has been denied by defendant No.1, is
rather short and cryptic and reads as under:-
"I, Arvind Khosla herby through this Power of
Attorney authorize my sister Kusum Anjali to
conduct all real estate transaction on my behalf.
Hence, she is authorized to buy and sell and
sign papers on my behalf, should I not be
present."
It is evident from a bare perusal of this document
that defendant No.2 could have bought and sold real estate
and signed papers on behalf defendant No.1, only in his
absence. If defendant No.1 was available for selling his
property and/or executing the documents pertaining to the
transaction entered into by him, defendant No.2 could not
have acted on his behalf. This is not the case either of the
plaintiffs or of defendant No.2 nor have they led any
evidence to prove that defendant No.1 was not available
when the plaintiffs entered into the transaction of sale of
the suit property. If defendant No.1 was available and,
therefore, could himself have entered into a transaction to
sell the suit property, defendant No.2 was not competent to
sell his share in the suit property to the plaintiffs. In her
CS(OS) Nos. 234/1997 and 2226/2001 Page 30 of 51
cross-examination, defendant No.2 has admitted that it was
never agreed between her and defendant No.2 that she
would be entitled to sell the suit property on her own.
22. In Azam Khao vs. S.Sattar, AIR 1978 Andhra
Pradesh, 442, the Power of Attorney empowered the agent to
do acts and carry on his money lending business and to do
all other acts in that behalf in absence of plaintiff from
India. It was held that the power given to the agent stood
impliedly revoked because of the fact that it was executed
only when the plaintiff returned to India. The same
principle applies to the present case and, therefore,
defendant No.2 had no authority either to agree to sell the
share of defendant No.1 or to execute sale deed on his
behalf, since he was very much available at the time she
claims to have negotiated the deal with the plaintiffs as well
as at the time the sale deeds were executed at Mumbai.
Similarly, defendant No.2 was not competent to execute the
sale deeds on behalf of defendant No.1 in case he was
available to execute the document.
23. The sale deeds have been executed and got
registered at Mumbai though the suit property is situated in
Delhi. The is not the case of any party that defendant No.1
CS(OS) Nos. 234/1997 and 2226/2001 Page 31 of 51
was out of the country or even out of the town when the
sale deeds were executed at Mumbai. There is no credible
evidence to prove that defendant No.1 was not available for
going to Bombay to execute the sale deeds. This is not the
case of defendant No.2 that she had requested defendant
No.1 to accompany her to Bombay to execute the sale deeds
in favour of the plaintiffs.
24. In his cross-examination, plaintiff No.1 stated that
he had asked defendants No.1 & 2 to come to Bombay for
registration of sale deed but defendant No.1 told him that
since he has executed a Power of Attorney in favour of
defendant No.2 and since Shri Amrik Singh Pasricha also
had executed a Power of Attorney in her favour, he need not
come to Bombay for this purpose. However, when
defendant No.1 was cross-examined, no such suggestion
was given to him either by the plaintiffs or by defendant
No.2. In fact, when plaintiff No.1 was asked as to whether
he was suggesting that availability of defendant No.1 to visit
Bombay in June 1996 was not an issue, the witness
answered in the affirmative.
Since the plaintiffs and defendant No.2 have failed
to prove that defendant No.1 was not available for
CS(OS) Nos. 234/1997 and 2226/2001 Page 32 of 51
negotiating with the plaintiffs for the sale of his share in the
suit property nor have they been able to prove that he was
not available for execution of the sale deeds, defendant No.2
was not competent in law to execute the sale deed on his
behalf and consequently the sale deeds executed by her are
not binding on defendant No.1 and do not affect his right,
title and interest in the suit property.
25. As noted earlier, it was very well known to plaintiff
No. 1 that the suit property was jointly owned by the
defendants. It is also an admitted case that disputes and
differences had arisen between the defendants way back in
the year 1993 to such an extent that they had stopped the
business which they were jointly carrying in different
names. Even the notice with respect to demand and house
tax by defendant No. 2 to defendant No. 1, was sent by post
despite his being the real brother of defendant No. 2 and
being a resident of Sector 15A, Noida, which is a sector,
adjoining Delhi-U.P. border. Despite the suit property being
jointly owned by the defendants and the relations between
them being far from cordial, there is no evidence of any
negotiations between the plaintiffs and defendant No. 1 with
respect to the sale of the suit property. This is not the case
CS(OS) Nos. 234/1997 and 2226/2001 Page 33 of 51
of the plaintiffs that they had negotiated with defendant No.
1 for purchase of the suit property. This is also not their
case that there was a joint meeting between them and the
defendants, wherein negotiations took place for the sale of
the suit property to them. This is also not the case of
defendant No. 2 that she had informed defendant No. 1 that
she was selling the suit property to the plaintiffs total sale
for consideration of Rs 17,25,000/-. In the normal course
of human conduct, if a property is jointly owned by two
persons, the purchaser would negotiate with both of them
and not only with one of them. This is more so, when the
relations between the sellers are not cordial. If defendant
No. 1 was to sell his share in the suit property, he would
have negotiated directly with the plaintiffs, particularly for
the purpose of fixing the sale consideration and the
schedule of payment. It is difficult to believe that defendant
No. 1 authorized defendant No. 2 to sell his share in the
suit property, without even ascertaining the price at which
the property was to be sold. If he were to sell his share in
the suit property, defendant No. 1 would have ascertained
the prevailing market value of the property from property
dealers or some other relevant source before entering into
CS(OS) Nos. 234/1997 and 2226/2001 Page 34 of 51
any sale transaction, instead of just asking defendant No. 2
to sell his share as well, without taking trouble even to
ascertain the price at which the property was to be sold and
verifying whether that price reflected true market value of
the property or not. The sale of an immovable property
being a very important transaction and the stakes in such
transactions being quit high, it is difficult to accept that
defendant No. 1 had given a blanket authority to defendant
No. 2 to sell his share in the suit property, without
ascertaining, who the buyer was, at what price the property
was to be sold and what market value of the property at
that time was.
26. The case of the plaintiffs and defendant No. 2 is
that the share of defendant No. 1 in the sale consideration
was paid to him by way of four pay orders/bank drafts,
which were delivered to defendant No. 2, who sent them to
defendant No. 1 by registered post, whereas the share of
defendant No. 2 in the sale proceeds were given to her by
way of cheques. No reason has been given by the plaintiffs
for not delivering the pay orders directly to defendant No. 1,
instead of handing them over to defendant No. 2. This
becomes important as the relations between the defendants
CS(OS) Nos. 234/1997 and 2226/2001 Page 35 of 51
were not at all cordial and this is the case of the plaintiffs as
well as defendant No. 2 that defendant No. 1 was not even
ready to contribute his share in the arrears of property tax
which were payable to MCD. This is a circumstance which
indicates that the sale transaction took place at the back of
defendant No. 1 and without his consent or knowledge.
27. The case of defendant No. 1 is that the pay orders
in the name of defendant No. 1 were sent to him by
registered post. No reason has been given by defendant No.
2 for not delivering the pay orders directly to defendant No.
1, instead of sending them by post. In the ordinary course
of human conduct, she would have personally delivered the
pay orders to defendant No. 1 if she had sold the property
with his consent and would not have taken the risk of the
pay orders getting lost in transit when sent by post. This is
one more circumstance which indicates that the sale
consideration was not with the consent or knowledge of
defendant No. 1.
28. Defendant No. 2 has filed the copy of a letter,
alleged to have been written by her to defendant No. 1 on
17th June, 1996 Pay Orders are alleged to have been
enclosed to this letter. Defendant No. 2 has also filed the
CS(OS) Nos. 234/1997 and 2226/2001 Page 36 of 51
postal receipt, whereby this letter is alleged to have been
sent to defendant No. 1. However, she has not produced
the person who delivered the letter to the post office for
onward transmission to defendant No. 1 and admittedly she
herself did not deliver the letter to the post office. The postal
receipt does not bear the complete address of defendant No.
1, only the name Arvind Khosla and Noida having been
written on the receipt. Defendant No. 1 has stated, on oath,
that he never received either this letter or the pay orders.
Considering the fact that the postal receipt does not bear
either the house number or the sector number of Noida,
where defendant No. 1 was residing and defendant No. 2
has not produced the person who delivered the letter to the
post office, I am not inclined to draw the statutory
presumption of service of this letter on defendant No. 1.
The statutory presumption would have been possible only if
full address of defendant No. 1 was written on the postal
receipt.
29. A perusal of the statement of account in which
these pay orders were deposited would show that the pay
orders were deposited in the account of defendant No. 1 on
30th August, 1996. Had the suit property been sold with
CS(OS) Nos. 234/1997 and 2226/2001 Page 37 of 51
the consent or knowledge of defendant No. 1, there could
have been no reason for him to keep the pay orders with
him for more than two months, before depositing them in
the bank. Defendant No. 1 had nothing to gain by keeping
the pay orders of Rs 8,62,500/- with him for more than two
months. He only would have incurred loss of interest for
more than two months by delaying the deposit of these pay
orders in his account. The alleged delay between despatch
of these pay orders and their deposit in the bank account of
defendant No. 1 indicates that defendant No. 1 was, in fact,
not aware of the deposit and someone surreptitiously
deposited these pay orders in his account. Another
circumstance, which indicates that defendant No. 1 was not
aware of deposit of these pay orders, is the cash deposit of
Rs 3,000/-made by him in that account on 10 th October,
1996. Had defendant No. 1 himself deposited the pay
orders of Rs 8,62,500/- on 30th August, 1996, there would
have been no occasion for him to deposit Rs 3,000/- in case
in the same account on 10th October, 1996. This is another
circumstance which indicates that the sale transaction was
not in the knowledge of defendant No. 1 and the pay orders
were not deposited by him.
CS(OS) Nos. 234/1997 and 2226/2001 Page 38 of 51
30. Ex.D-1W1/2, is the letter, written by defendant
No. 1 to State Bank of India, Ring Road, Lajpat Nagar,
informing him that on 18th December, 1996, that he had
sent his accountant to the bank to confirm the credit of
draft of Rs 1,36,350/-and his accountant informed him that
besides the amount of Rs 1,36,350/-, there was another
heavy credit in his account. He further informed the Bank
Manager that on enquiry from the bank, he was surprised
to learn that on 30th August, 1996, four cheques of Union
Bank of India, drawn on Napean Sea RoadBranch, Mumbai
for a sum of Rs 8,62,500/-, had been credited to his
account. He further stated that these drafts/cheques were
not deposited by him or under his instructions and there
was some apparent mistake/error which the bank should
rectify. He also lodged a complaint with SHO, Police Station
Lajpat Nagar on the same day, informing him about the
aforesaid deposit in his account and requesting him to
register a case, investigate the matter and take appropriate
legal action. The conduct of defendant No. 1 in writing to
the bank as well as to the police on 19th December, 1996 is
yet another proof that neither the sale transaction nor the
deposit of the pay orders was in his knowledge.
CS(OS) Nos. 234/1997 and 2226/2001 Page 39 of 51
31. As noted earlier, the share of defendant No.2 in the
sale consideration is stated to have been paid to her by four
cheques at the time of registration of the sale deed on 15 th
June, 1996. In her cross-examination, defendant No. 2 has
admitted that she deposited the first cheque in her account
on 23rd July, 1996 and the remaining three cheques were
negotiated by her on 25th September, 1996. There is no
plausible explanation for defendant No. 2, retaining the
cheques with her and thereby, incurring loss of interest
which she would have earned by depositing the cheques
immediately on receiving them from the plaintiffs. In her
cross-examination, defendant No. 2 stated that the cheques
were withheld by her at the instance of the plaintiff No.1.
She claimed that the cheques were withheld as she had
committed to plaintiff No.1 that she would not encash them
till all the problems of MCD were sorted. Plaintiff No. 1, on
the other hand, has denied that the presentation of these
cheques was deferred by defendant No. 2 on his request.
The case of the plaintiffs is that the dues of MCD were to be
paid by them in addition to the sale consideration of Rs
17,25,000/- which they paid to the defendants. If that be
so, there could have been no reason for defendant No. 2 to
CS(OS) Nos. 234/1997 and 2226/2001 Page 40 of 51
defer the deposit of cheques till the issue of property tax
with MCD was finally settled. The case of defendant No. 1
is that the plaintiffs did not have enough credit balance in
their account when these cheques were issued. No evidence
has been led by the plaintiffs to prove that they had
sufficient balance in their account when they issued these
cheques to defendant No. 2. No bank statement had been
filed by them. Hence, the plea taken by defendant No. 1 in
this regard cannot be said to be altogether unfounded.
32. There is one withdrawal entry of Rs 4,00,000/-
dated 04th October, 1996 and one withdrawal entry of Rs 2
lakh dated 05th October, 1996 in the account of defendant
No. 2. In her cross-examination, defendant No. 2 first
expressed ignorance when asked as to whether these
payments pertained to plaintiff No. 1, but later admitted
that these payments were made by her to plaintiff No. 1.
The case of defendant No. 2 was that she had been receiving
money from the plaintiffs for payment of property tax and it
was that amount which was repaid by her. She claimed that
she received 12 lakh on 01st April, 1996, Rs 3 lakh on 13th
April, 1996 and Rs 5,50,000/- on 20th November, 1996 and
Rs 8,40,000/- on 03rd May, 1997 from the plaintiff in MCD
CS(OS) Nos. 234/1997 and 2226/2001 Page 41 of 51
account. On the other hand, the plea taken by the plaintiffs
with respect to these transactions is that those were
business transactions between Simran Creations
proprietorship concern of plaintiff No. 1 and Jordan
Fashions proprietorship concern of defendant No. 2. Thus,
defendant No. 2 claims that these transactions represent
receipt of amount from the plaintiffs against MCD dues and
their repayment, whereas according to the plaintiffs, these
entries reflect the business transactions between plaintiff
No. 1 and defendant No. 2. It would also be pertinent to
note here that when he came in the witness box, plaintiff
No. 1 stated that he did not remember whether he had any
monetary transaction other than the sale transaction with
defendant No. 2. I fail to appreciate why the plaintiffs would
make payment of Rs 15 lakh to defendant No. 2 in April,
1996 when they purchased the suit property only on 15 th
June, 1996. This is nowhere the case of the plaintiffs that
they had made advance payment to defendant No. 2 in
property tax account. Neither any such plea has been
taken either by the plaintiffs or by defendant No. 2 nor has
plaintiff No. 1 stated so during his examination in the
Court. I also fail to appreciate why the plaintiffs would
CS(OS) Nos. 234/1997 and 2226/2001 Page 42 of 51
make payment of Rs 5,50,000/- to defendant No. 2 on 20 th
November, 1996 and 8,40,000/- on 03rd May, 1997 if they
were to pay the dues of property to MCD. More importantly
in her cross-examination, defendant No. 2 stated that the
aforesaid amount of Rs 20 lakh which she received from the
plaintiffs was repaid by her by paying Rs 2 lakh on 19 th
July, 1996, 3 lakh on 03rd October, 1996, 4 lakh on 04 th
October, 1996, 50,000/- on 08th October, 1996, 50,000/-
on 1st November, 1996, 5 lakh on 05th May, 1997 and
3,40,000/- on 06th May, 1997. Again, I fail to appreciate
why these amounts were repaid by defendant No. 2 to the
plaintiff if they were made for payment to MCD. If the
payment to MCD was to be paid directly by the plaintiffs,
there could be no occasion for them to transfer Rs 20 lakh
to defendant No. 2 in the first instance. If the payment to
MCD was to be made by defendant No. 2, there would be no
occasion for her to refund the amount which she received
from the plaintiffs. Another important aspect in this regard
is that the dues of MCD were settled for Rs 7,67,188/-, an
amount far below the amount of Rs 20 lakh, alleged to have
been received by defendant No. 2 from the plaintiffs and
returned to them at a later date.
CS(OS) Nos. 234/1997 and 2226/2001 Page 43 of 51
33. It is an admitted case that the original documents,
pertaining to the suit property, except one Power of
Attorney, were throughout in possession of defendant No. 1
and were never given by him to the plaintiffs. Ordinarily, no
prudent buyer would purchase the immovable property,
without taking the previous document of title from the
seller. There is absolutely no explanation for the plaintiffs
not obtaining the original documents of the suit property
from defendant No. 1 on or before registration of the sale
deeds in their favour. In fact, even after registration of the
sale deed in their favour, the plaintiffs never wrote to
defendant No. 1, asking him to deliver the original title
documents to them. Admittedly, no sale deed in favour of
the defendants has been executed by the previous owner
Shri Amrik Singh Pasricha. Therefore, the previous
documents of title were very important to the plaintiffs and
in the normal course human conduct they would not have
entered into a transaction for purchase of the property,
without first taking the documents of title from defendant
No. 1. The documents of title, which were in possession of
defendant No. 1, were very crucial evidence of the sale
transaction by the previous owner Shri Amrik Singh
CS(OS) Nos. 234/1997 and 2226/2001 Page 44 of 51
Pasricha in favour of the defendants and, therefore, had the
plaintiffs purchased the suit property with the consent and
knowledge of defendant No. 1, they would definitely have
insisted on taking them from him on or before completion of
the transaction. This, to my mind, is a very important
circumstance which clearly shows that the share of
defendant No. 1 in the suit property was not sold with his
consent or knowledge.
34. The suit property is situated in Delhi and
normally, the sale deed should have been registered in
Delhi. The case of the plaintiff is that since plaintiff No. 2,
who is the wife of plaintiff No. 1 was not well, the sale deed
was got registered at Mumbai. However, no evidence has
been led by the plaintiffs to prove that plaintiff No. 2 was
sick on or around the date when the sale deed was
registered at Mumbai. A perusal of the sale deed in her
favour would show that plaintiff No. 2 was present before
the Sub-Registrar at the time of registration of the sale
deed. Had she not been well, she would not attended the
office of Sub-Registrar and would have authorized either
plaintiff No. 1 or some other person to get the sale deed
registered on her behalf. Moreover, if plaintiff No. 2 was not
CS(OS) Nos. 234/1997 and 2226/2001 Page 45 of 51
well, she could easily have authorized either her husband
plaintiff No. 1 Shri Ajit Singh Gill or her sons, who are
plaintiffs No. 3 and 4 in the suit to get the sale deed
registered on her behalf before the Sub-Registrar at Delhi.
In these circumstances, the registration of the sale deeds at
Mumbai is clearly a suspicious circumstance and gives an
impression that the transaction between defendant No. 2
and the plaintiffs being fraudulent, as far as the sale of the
share of defendant No. 2 in the suit property is concerned,
they wanted to conceal it from him and that is why they got
the sale deed registered at Mumbai, instead of getting it
registered in Delhi in the normal course.
35. It was contended by the learned counsel for the
plaintiffs that the amount of Rs 8,62,500/- has been
utilized by defendant No.1 by keeping it in FDR, which
shows that the sale of his share in the suit property was
effected with his consent. I, however, find no merit in this
contention. The amount was kept in FDR only on 26 th
March, 1997 much after filing of the suit and appearance of
the parties before the Court and, therefore, no such
inference can be drawn on account of the aforesaid amount
having been kept in FDR.
CS(OS) Nos. 234/1997 and 2226/2001 Page 46 of 51
36. For the reasons given in the preceding, I hold as
under:
i. Defendant No. 2 was not in exclusive
possession of the suit property with the
consent of defendant No.2 or under an
arrangement with him and the same was in
joint possession of the defendants No. 1&2 in
January, 1996;
ii. No bona fide tenancy in respect of the suit
property was created in favour of plaintiff No.
1 and though it cannot be disputed that he
came to occupy part of the suit property
sometime prior to 24th January, 1997;
iii. The tenancy, even if, created in favour of
plaintiff No. 1, is not binding on defendant
No. 1;
iv. There was no bona fide transaction for sale of
the share of defendant No. 1 in the suit
property and the sale deeds dated 15th June,
1996, executed by defendant No. 2 in favour
of the plaintiffs are collusive and fraudulent
documents which are not binding on
CS(OS) Nos. 234/1997 and 2226/2001 Page 47 of 51
defendant No. 2 and do not affect his right,
title and interest in the suit property.
v. Defendant No. 2 was not competent to
execute the sale deed and get it registered on
behalf of defendant No. 1;
vi. The amount of Rs 8,62,500/- was deposited
in the bank account of defendant No. 1
without his knowledge;
37. Since the sale deed, executed by defendant No. 2
on 15th June, 1996 is not binding on defendant No. 1, he
continues to be co-owner of the suit property along with the
plaintiffs who have become owner only to the extent of
share of defendant No. 2 in it. During the pendency of the
suit, a Division Bench of this Court had allowed use of first,
second and third floor of the suit property to defendant No.
1 and use of the basement and the ground floor to the
plaintiffs, pursuant to the statements recorded on
September 02, 2002 in FAO(OS) No. 344 of 2001. Since the
plaintiffs and defendant No. 2 are co-owners of the suit
property, 50% being owned by the plaintiffs and the
remaining 50% by defendant No. 1, there is no necessity for
this Court to disturb the arrangement agreed between the
CS(OS) Nos. 234/1997 and 2226/2001 Page 48 of 51
plaintiffs and defendant No. 1 before the Division Bench of
this Court on 02nd September, 2002. It would be open to
defendant No. 1 as well as to the plaintiffs to seek partition
of the suit property and in that event, it will be for the Court
which deals with such a suit to pass appropriate order with
respect to possession of the suit property. The issues are
decided accordingly.
38. However, the amount of Rs 8,62,500/- which was
deposited in the account of defendant No. 1, needs to be
refunded to the plaintiffs with appropriate interest since the
sale deed has been held not binding on defendant No. 1.
This amount was withdrawn by defendant No. 1 from his
bank on 26th March, 1997 and kept in a fixed deposit. This
amount was deposited in the Court on 11.5.2005.
Defendant No.1, therefore, has to pay, to the plaintiffs the
amount of interest which he received from the bank on the
aforesaid amount of Rs 8,62,500/- whether in the savings
bank account or at the time this amount was kept in fixed
deposit. He is also to pay to the plaintiffs interest at the
rate of 6% per annum on the amount earned by him by way
of interest. The Registry needs to release the amount of Rs
8,62,500/-, deposited by defendant No. 1 in this regard to
CS(OS) Nos. 234/1997 and 2226/2001 Page 49 of 51
the plaintiffs along with interest which has accrued on that
amount.
Issue No. 3
39. No independent evidence has been led either by
the plaintiffs or by the defendants to prove the value of the
suit property on the date of institution of the suit. In fact,
no such evidence has been led by them to prove the value of
the suit property on the date on which the sale deeds were
executed by defendant No. 2 in favour of the plaintiffs. No
property dealer has been examined by any party to prove
the market value of the suit property either in June, 1996
or at the time of filing of this suit in February, 1997. No
sale deed of any property in the locality has been produced
to prove the market value of the suit property on a
comparative basis. No serious arguments were advanced by
the parties on this issue. I, therefore, need not record any
finding on this issue.
Issue No. 2 in CS(OS) 2226/2001
40. Since both these suits are now being finally
disposed of, this issue has become infructuous and is
deleted.
CS(OS) Nos. 234/1997 and 2226/2001 Page 50 of 51
Issue No. 1,3,4 and 5 in CS(OS) 2226/2001
41. In view of my findings on the issues framed in Suit
No. 234/1997, the plaintiffs in this suit are not entitled to
any relief.
ORDER
Both the suits are hereby dismissed, except to the extent that defendant No. 1 is hereby directed to pay to the plaintiffs the amount earned by him as interest on the sum of Rs 8,62,500/- which was deposited in his account, along with interest on that amount at the rate of 6% per annum, from the date of receipt of interest by him, till payment to the plaintiffs in terms of this order. The amount of Rs.8,62,500/-, which defendant No.1 had deposited in the Court be released to the plaintiffs, along with interest which has accrued on that amount. In view of my findings on the issues, no order needs to be passed on the counter-claim of defendant No.1.
Decree sheets be drawn accordingly.
(V.K. JAIN) JUDGE 25th JULY, 2011 bg/vn/'sn' CS(OS) Nos. 234/1997 and 2226/2001 Page 51 of 51