Delhi High Court
Naresh Kher vs S Jagjit Singh & Ors on 3 February, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Signature Not Verified
Digitally Signed By:Devanshu
Signing Date:06.02.2022
12:23:07
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 3rd February, 2022
+ EX.F.A. 5/2019 & CM APPL.10276/2019
NARESH KHER ..... Appellant
Through: Mr. Anunaya Mehta & Mr. Vinayak
Thakur, Advocates.
versus
S JAGJIT SINGH & ORS. ..... Respondents
Through: Mr. Rajat Aneja and Ms. Sagrika
Wadhwa, Advocates for R-1.
Mr. Ujjwal Jha & Mr. Rohan Gupta,
Advocates for Mr. Mahesh Verma.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing.
2. The present execution first appeal challenges the impugned order dated 18th December, 2018 passed by the Executing Court in Ex. No.2298/2016 titled S. Jagjit Singh v. Narbada Devi, by which objections filed by the Appellant herein/Mr. Naresh Kher (hereinafter "Mr. Naresh Kher") have been rejected.
3. This appeal relates to property bearing Flat No.169, (Duplex) Category-III, Munirka Vihar, JNU, New Delhi (hereinafter "suit property"). Today, part submissions have been made by ld. counsels for the parties. These submissions and the record in this case, has brought out the following facts before this Court:
EX.F.A. 5/2019 Page 1 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07i) The suit property is claimed to have been allotted by the DDA in favour of one Mrs. Narmada Devi/Respondent No.2 (hereinafter "Mrs. Narmada Devi") who along with her son, Mr. Deepak Varshney, have entered into multiple agreements to sell/ sale deeds in respect of the same suit property. The said owner has collected huge sums of money from the following persons with whom agreements were entered into:
a) Agreement to sell dated 26th June, 2009 and sale deed dated 10th May, 2016, is claimed to have been executed in favour of Mr. Jagjit Singh/Respondent No.1 (hereinafter "Mr. Jagjit Singh"). The sale consideration as per this agreement was Rs.20 lakhs, out of which, Rs.19.5 lakhs is stated to have be paid;
b) Agreement to sell dated 16th April, 2009 and Sale Deed dated 3rd March, 2010, is stated to have been executed in favour of one Mr. Kanahiya Lal Kewal Parmani/Respondent No.3 (hereinafter "Mr. Kanahiya Lal Kewal Parmani"), wherein the sale consideration is mentioned as Rs.18.80 lakhs;
c) Sale deed dated 27th November, 2009 executed in favour of Mr. Mahesh Verma and his wife, who paid a consideration of Rs. 60 lakhs;
d) Agreement to sell with Mr. Naresh Kher, executed on 1st / 2nd July, 2012. The consideration as per the said agreement was Rs.1.55 crores, out of which, Rs.1,05,50,000/- is stated to have been paid to Mrs. Narmada Devi. This payment is also stated to include a loan in Allahabad Bank to the tune of EX.F.A. 5/2019 Page 2 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 Rs.65.50 lakhs cleared by Mr. Naresh Kher on behalf of Mrs. Narmada Devi, by way of RTGS. The remaining amount is stated to have been paid in the form of a cheque for Rs.4 lakhs with Rs.36 lakhs being paid in cash. Mr. Naresh Kher was handed over the documents to the suit property by Mrs. Narmada Devi and given possession of the suit property on 4 th July, 2012, by Mrs. Narmada Devi and her son.
ii) There are various proceedings pending in respect of this suit property:
a) CS(OS) 1608/2014 titled Naresh Kher v. Narmada Devi & Ors. filed by Mr. Naresh Kher;
b) CS(OS) 3329/2014 titled Mahesh Verma & Anr. v.
Naresh Kher & Ors. filed by Mr. Mahesh Verma.
Both these suits are pending before the Original Side of this Court. In CS(OS) 1608/2014, vide order dated 26th May, 2014, status quo was granted qua title and possession of the suit property.
c) Apart from these two suits, there are criminal complaints filed against Mrs. Narmada Devi and her son. Mrs. Narmada Devi was also arrested and is stated to have remained in custody for more than four years and was given bail thereafter.
4. Notably, in the said criminal proceedings, a charge-sheet was initially filed on 27th August, 2012 and a supplementary charge-sheet was filed on 28th May, 2014. In the supplementary charge-sheet, it is clearly recorded that the Police had also conducted enquiries with Respondent No.1- Mr. Jagjit EX.F.A. 5/2019 Page 3 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 Singh, who claimed that he had an agreement to sell and purchase dated 26th June, 2009 in respect of the suit property. However, no documents in respect thereof were disclosed to the Police. Mr. Jagjit Singh, also did not disclose that a suit had been filed by him being CS No.264/15 titled Sh. Jagjit Singh v. Smt. Narmada Devi & Anr., in which he had sought specific performance of the said agreement to sell. Thus, Mr. Jagjit Singh prima facie appears to have kept the Police as also the other parties in the dark about the proceedings which he had filed.
5. A perusal of the order dated 29th July, 2015 shows that in the suit filed by Mr. Jagjit Singh being CS No.264/15, Mrs. Narmada Devi initially filed her written statement claiming that the agreement to sell was forged and fabricated. However, she stopped appearing thereafter. Mr. Kanahiya Lal Kewal Parmani was also a party in the said suit. However, both Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani were proceeded ex parte and an ex parte decree was passed on 29th July, 2015. The execution proceedings which are being presently considered, arise out of the said decree.
6. In the execution proceedings seeking to execute the decree dated 29th July, 2015 in favour of Mr. Jagjit Singh, a bailiff was appointed and on 6th June, 2016, the bailiff visited the suit property for breaking open the locks. Mr. Naresh Kher's son is stated to have reached the premises immediately informing the bailiff that the suit property could not be locked as Mr. Naresh Kher had a status quo order in his favour, in effect protecting his possession to the suit property. Parallelly, Mr. Naresh Kher also moved an application before the Executing Court to inform the Court of the suit filed by him and the fact that he had a status quo order dated 26th May, 2014 passed by the EX.F.A. 5/2019 Page 4 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 High Court in his favour. The said application was taken up by the Executing Court at 2:50 p.m., on 6th June, 2016, and the order dated 18th May, 2016 issuing warrants of possession and appointing the bailiff was recalled. However, by then, the lock had been already put on the suit property by the bailiff and the keys are admittedly now in the possession of Mr. Jagjit Singh. The said order dated 6th June, 2016 reads as under:
""File taken up today on an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure, 1908 moved on behalf of the objector Present Sh. Anynaya Mehta, counsel for the objector.
Learned counsel for the objector has filed an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure, 1908 objecting to the issuance of warrant of possession in favour of the decree holder and directions given to the bailiff vide order dated 18.05.2016 to break open the locks of property bearing No.169, Munirka Vihar, 2nd and 3rd Duplex.
The present objections have been filed by the counsel for the applicant without any power of attorney (vakalatnama) since the applicant is stated to be in US as on today. Learned counsel submits that since there was an emergency as a result of the warrants of possession being executed today by the bailiff, he was constrained to file the present objection without the vakalatnama. However, he has appended his own affidavit in support of the averments made in the objection petition and also filed a memo of appearance.
Learned counsel contends that he is in possession of the suit property in his independent right as purchaser from the original owner Ms. Narmada Devi. He further submits that he has already filed a suit for specific EX.F.A. 5/2019 Page 5 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 performance, which was earlier filed before the Hon'ble Delhi High Court but now stands transferred to Patiala House Courts, against Ms. Narmada Devi, who is also the judgment debtor in the present execution petition. Learned counsel has brought the attention of the court to the order dated 26.05.2014 passed by Hon'ble High Court vide which the Hon'ble High Court had directed the defendant No.1 to 5 to maintain status quo with respect to the title and possession of the property bearing Flat No.169, Second and Third Duplex, Munirka Vihar, New Delhi. Learned counsel has also drawn the attention of this court to the letter dated 23.01.2013 addressed by Sh. Praveen Tomar, Patwari, Tehsil Vasant Vihar to the SHO P.S. Vasant Vihar wherein it has been mentioned that the possession of the flat No.169, Munirka Vihar, has been handed over to Naresh Kher, who is the objector in the present execution petition. Consequently, Learned counsel prays that the directions issued to the bailiff be stayed immediately as the bailiff has already initiated the process of handing over the possession to the decree holder. In view of the above, warrants of possession which were directed to be issued vide order dated 18.05.2016 are recalled.
Notice of this application be issued to the decree holder on filing of PF, returnable on the date already fixed i.e. 02.07.2016.
Naib Nazir is directed to issue Robkar in this regard. Copy of this order be given dasti to Learned counsel for the Objector."
7. Subsequently, on 18th December, 2018, the Executing Court dismissed the objections of Mr. Naresh Kher since the agreement to sell with Mr. Naresh Kher had been executed during the pendency of the suit proceedings filed by Mr. Jagjit Singh. The operative portion of the said EX.F.A. 5/2019 Page 6 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 order reads as under:
"7. It can be culled up from above preposition of law that decree holder has to satisfy the Court that the property was purchased during the pendency of suit. In the present case, the suit under execution was instituted on 27.07.2010 and it was categorically observed in para no. 4 of the judgment that defendant no. 1 Smt. Narbada Devi stopped appearing and was proceeded ex-parte vide order dated 01.06.2011 and defendant no. 2 therein did not appear despite service through publication in newspaper "The Statesman" in newspaper dated 18.11.2014 and was proceeded ex- parte vide order dated 24.11.2014. It appears from the above that Smt. Narbada Devi was aware of the pendency of the suit and litigation against her. The subsequent property transaction with the objector/applicant took place in July, 2012 i.e., during the pendency of the suit. In these facts and circumstances the doctrine of lis pendens will apply to the transactions which were executed during the pendency of the suit as the objector/applicant could not be said to be stranger as he is claiming right, title and interest through the defendant/JD herein against whom the suit titled as S. Jagjit Singh vs. Smt. Narbada Devi & ors was pending. So, in these premises, application moved by the objector/applicant is rejected. However, in case the objector/applicant succeed in the suit which has already been preferred and pending in the court of law with regard to subject property, he can take appropriate proceedings and apply for restitution in accordance with law.
For the aforesaid reasons, the application is dismissed."
8. This order is under challenge in the present appeal.
9. The counsels for the parties have made some submissions today. Mr. Mehta, ld. counsel appearing on behalf of Mr. Naresh Kher, submits that the EX.F.A. 5/2019 Page 7 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 entire decree dated 29th July, 2015 was obtained by fraud inasmuch as at no point in time, was the Court informed about any of the other agreements subsequently executed with the other parties and neither was the information about the suit filed by Mr. Jagjit Singh disclosed to the other parties.
10. Mr. Jha, ld. Counsel appearing for Mr. Mahesh Verma, submits that in the supplementary charge-sheet, Mr. Jagjit Singh has made a deliberate effort to conceal the proceedings filed by him seeking specific performance, being CS No.264/15.
11. Mr. Rajat Aneja, ld. Counsel for Mr. Jagjit Singh, however, submits that a third-party purchaser who may have purchased the suit property during the pendency of existing litigation would not have any locus to file objections. He relies upon the judgment of the Supreme Court in Usha Sinha v. Dina Ram & Ors., (2007) 7 SCC 144.
12. Having heard the ld. counsels for the parties and having perused the records, this Court is of the prima facie opinion that permitting the execution of the decree dated 29th July, 2015 in this manner when there are other proceedings pending in respect of the same suit property and that too in violation of the status quo order dated 25th May, 2014, in favour of Mr. Naresh Kher, would not be permissible.
13. It is evident from a perusal of the record, especially the supplementary chargesheet dated 28th May, 2014, that Mr. Jagjit Singh has cleverly concealed the suit filed by him. In the supplementary charge-sheet, the following is recorded by the Police:
"3) श्री जगजीत स िंह S/o श्री बलवीर स िंह R/o 524, DDA Flats, Tagore Garden, New Delhi के ाथ श्रीमती नममदा दे वी W/o Late Sh. कमल कुमार द्वारा EX.F.A. 5/2019 Page 8 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 26.06.2009 को Flat No. 169, Munirka Vihar का Agreement to Sell & Purchase 20 लाख रूपए में सकया सज े करीब 7.5 लाख रूपए Cheque े और करीब 9.5 लाख रूपए Cash प्राप्त करना बतलाया गया है | श्री जगजीत स िंह के द्वारा कोई कागज़ात प्रस्तुत नहीिं सकए गए|"
14. In view of these facts, this Court notes that the question as to who would be the legally entitled owner in respect of this suit property, would have to be adjudicated in the two suits which are pending before the Delhi High Court being CS(OS) 1608/2014 and CS(OS) 3329/2014. The fact that Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani, chose not to contest the suit filed by Mr. Jagjit Singh and Mr. Jagjit Singh also failed to disclose in the said suit that subsequent agreements have been entered into with regard to the same suit property, makes the entire proceedings in the suit of Mr. Jagjit Singh quite suspect. It also points to the fact that while the decree was passed, the Court was not aware of the various facts which had already transpired by the date of the decree i.e., 29th July, 2015, such as, the other agreements executed by the owner, the amount of consideration received by her, the other orders passed by the Original Side of this Court in the two suits, etc. Even if Mr. Jagjit Singh himself had disclosed at any point in time either during the criminal proceedings in 2012/2014, which was clearly subsequent to the institution of the said suit, i.e., subsequent to 27th July, 2010, or disclosed the execution of subsequent agreements in any other manner, the decree dated 29th July, 2015 may not have been passed by the Trial Court. It clearly appears to the Court that the original owner has made multiple sales of the same suit property and has collected a huge amount of money of approximately Rs.2 crores, in a fraudulent manner, defrauding EX.F.A. 5/2019 Page 9 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 multiple parties. The Executing Court cannot obviously turn a blind eye to such a maze of facts which has resulted in multiple persons being granted rights in respect of the same suit property. It is also well-established that a decree obtained by fraud is a nullity and can be challenged even before the Executing Court. In A.V. Papayya Sastry & Ors. v. Government of A.P. & Ors., 2007 V AD (S.C.) 21, the Supreme Court held as below:
"21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."
EX.F.A. 5/2019 Page 10 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:0715. This position was reiterated by the Supreme Court most recently in Smriti Madan Kansagra v. Perry Kansagra, [Misc. Appl.1167 of 2021 in Civil Appeal No.3559 of 2020, decision dated 7th October, 2021].
16. Moreover, it is submitted by Mr. Mehta, ld. Counsel, that the supplementary charge-sheet was placed before the Executing Court. However, the same does not appear to have been considered by the Executing Court in the impugned order dated 18th December, 2018.
17. In view of these facts and the settled position of law, the present appeal, requires to be further heard and thereafter adjudicated. Accordingly, while the adjudication of the appeal is pending before this Court, the following directions are issued in order to secure the suit property:
i) The original records of CS No.264/15 titled Sh. Jagjit Singh v.
Smt. Narmada Devi & Anr., resulting in the decree dated 29th July, 2015, be requisitioned from the Court of Ld. ADJ-06, South District, Saket Courts, New Delhi;
ii) The original records of the Executing Court in Execution No.26/2016 (Ex. No.2298/16) or Execution Case 36271 of 2015 titled Jagjit Singh v. Narbada Devi & Ors., be also requisitioned from the Court of Ld. ADJ-03, South District, Saket Courts, New Delhi, if not already on record;
iii) The electronic records of CS(OS) 1608/2014 titled Naresh Kher v. Narmada Devi & Ors. and CS(OS) 3329/2014 titled Mahesh Verma & Anr. v. Naresh Kher & Ors. be requisitioned from the Original Side of this Court, if not already on record;
iv) Mr. Jagjit Singh having come in possession of the suit property by virtue of the order dated 18th May, 2016 which was recalled by the EX.F.A. 5/2019 Page 11 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:07 Executing Court on 6th June, 2016, is directed to deposit the keys of the suit property with the worthy Registrar General of this Court within a period of one week;
v) All parties shall maintain the status quo in respect of title and possession of the suit property and shall not create any third-party interest in the suit property;
vi) The Court of Mr. Umesh Kumar, Ld. Chief Metropolitan Magistrate, Patiala House Courts, Delhi, shall send a status report to this Court as to the status of the criminal case being Cr Case 8832 of 2012 concerning FIR No.203/2012 titled State v. Deepak Varshney filed at PS, Vasant Vihar; and
vii) The Court of Mr. Chanderjit Singh, Ld. Chief Metropolitan Magistrate, Patiala House Courts, Delhi, shall send a status report to this Court as to the status of the criminal case being Cr Case 28021 of 2017 concerning FIR No.11 of 2015, filed at PS, Vasant Vihar. Both the said status reports shall be filed at least one week before the next date of hearing.
18. The legal issues which have been raised in this execution first appeal shall be considered once all the Court records mentioned above are available before this Court. On the next date of hearing, Respondent No.2-Mrs. Narmada Devi and Respondent No.3- Mr. Kanahiya Lal Kewal Parmani, as also all the other parties, shall appear before this Court in person.
19. A copy of this order be communicated to Mrs. Narmada Devi and Mr. Kanahiya Lal Kewal Parmani, through the respective Metropolitan Magistrates, Patiala House Courts, Delhi as also through SHO, PS, Vasant Vihar who can serve the same upon the said two persons.
EX.F.A. 5/2019 Page 12 of 13 Signature Not Verified Digitally Signed By:Devanshu Signing Date:06.02.2022 12:23:0720. List on 7th April, 2022.
21. This shall be treated as a part-heard matter.
PRATHIBA M. SINGH JUDGE FEBRUARY 3, 2022 Rahul/MS EX.F.A. 5/2019 Page 13 of 13