Delhi High Court
M/S. Sunshine India Pvt. Ltd. vs Bhai Manjit Singh (Huf) & Ors on 20 May, 2015
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.2501/2011
Decided on : May 20, 2015
M/S. SUNSHINE INDIA PVT. LTD. ...... Plaintiff
Through: Mr. P.V. Kapur, Senior Advocate with
Mr. Sudhir Makkar, Advocate.
Versus
BHAI MANJIT SINGH (HUF) & ORS. ...... Defendants
Through: Mr. A.K. Mata, Senior Advocate with
Mr.Suresh Dutt Dobhal and Mr. Arun
Arora, Advocate for D-1 & 3.
Mr. Amit Sibal, Senior Advocate with
Mr. Apoorv Kapur, Mr.Alok K.Aggarwal
& Mr. Arun Arora,
Advocates for D-2 & 4.
Mr. Anil Airi, Advocate for D-5.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
I.A. No.17960/2011 (under Section 151 CPC by the plaintiff)
1. The question to be decided by this order (in I.A. No.17960/2011) is as to whether the plaintiff company is to be given permission for the C.S. (OS) No.2501/2011 Page 1 of 69 purpose of raising construction on the property bearing No.61, Golf Links, New Delhi (hereinafter referred to as the suit property), which was agreed to be sold by D-1 to D-4 to the plaintiff vide agreement to sell dated 29.07.2005. This permission is sought by the plaintiff after having filed an undertaking that in case such a permission is granted, he shall not claim special equities in respect of the construction so raised on the plot in the event of suit being decided against them. A direction to L&DO is also sought to give a 'No Objection Certificate' to the plaintiff to carry out the construction.
2. Briefly stated the facts of the case leading to the filing of the present application (as averred in the plaint) are that Bhai Manjit Singh (HUF), D-1, is a Hindu Undivided Family, Mrs. Maheep Manjit Singh, D-2, wife of Bhai Manjit Singh, Vikramjit Singh, D-3, Mohanjit Singh, D-4 and Bhai Manjit Singh, D-5, father of D-3 & D-4. The D-2 to D-4 are the members of HUF, D-1. The D-1, acting through its karta and manager D-2 entered into an agreement to sell dated 29.07.2005 whereby the HUF, D-1, agreed to sell the suit property to the plaintiff for a total sale consideration of Rs.9.25 crores subject to such terms and conditions as stipulated in the agreement. The D-3 and D-4 acted as the confirming C.S. (OS) No.2501/2011 Page 2 of 69 parties to the said agreement. At the time of execution of the aforesaid agreement, it was represented by the defendants that in pursuance to the family settlement arrived at amongst the members of HUF, D-1, D-5 had resigned as a member and the karta of HUF and it thereafter consisted only of three persons, that is, D-2 to D-4.
3. Pursuant to the agreement the plaintiff paid a sum of Rs.8,99,14,974/- out of total sale consideration of Rs.9.25 crores which was inclusive of all charges that were required to be paid to the Central Government for conversion of the said property from leasehold to freehold. It also included payment of all stamp duty, municipal taxes, registration charges, exclusive of transfer charges that may be payable to the Central Government under the perpetual lease. The consideration was paid to the various parties at the instance of the HUF, D-1, itself, details of which are given in the agreement to sell itself. An amount of Rs.29,19,447/- was also deposited with the L&DO towards the conversion charges.
4. Simultaneously with the execution of the agreement to sell, D-2 acting as karta of the HUF, D-1, executed a power of attorney on 12.8.2005 in favour of one Abhay Aggarwal, who was the Director of the C.S. (OS) No.2501/2011 Page 3 of 69 plaintiff company. He was authorized to take all steps regarding development of the said property . Both the documents, that is, agreement to sell dated 29.7.2005 and the power of attorney dated 12.8.2005 were duly registered with the Sub-Registrar and further the plaintiff was also put into physical possession of the suit property with right to construct the property. It continues to be in his possession uninterruptedly till date.
5. It is averred that simultaneously with the execution of these two documents, HUF, D-1, applied for conversion of the leasehold property to freehold and members of the HUF kept on extending assurances to the plaintiff that all the requisite steps are being taken to secure the conversion of the property from leasehold to freehold but despite persistent follow-up action of the plaintiff with the members of the HUF, D-1, the said conversion of the property from leasehold to freehold did not materialize. The HUF, D-1 and its members, D-2 to D-4 are alleged to have kept on giving one excuse or the other for the delay in disposal of the application for conversion not being allowed by the competent authority.
C.S. (OS) No.2501/2011 Page 4 of 69
6. The plaintiff was informed that the application for conversion could not be processed by the L&DO, Government of India as one party by the name of FMI Investment Private Ltd. had instituted a suit bearing No.2373/2001 against M/s. Montari Industries Ltd. and Another which was pending adjudication in the Hon'ble High Court.
7. In the said suit, there was an ex parte ad interim injunction passed restraining Bhai Manjit Singh, D-5, from selling, transferring, disposing of the suit property. The plaintiff was not a party to the said suit nor was there any injunction against the conversion of the property from leasehold to freehold but the said company FMI Investment Private Limited is alleged to have addressed some communication to L&DO intimating them about the injunction order having been passed in respect of the suit property as a consequence of which the application for conversion of the property from leasehold to freehold was not being processed.
8. It is stated that the plaintiff filed an application seeking permission of the Hon'ble Court in the said suit for modification and setting aside the order dated 10.1.2002 and since no orders were passed on the said application, another application was filed wherein it was prayed that the order of 10.1.2002 may be directed not to come in the way of L&DO C.S. (OS) No.2501/2011 Page 5 of 69 from carrying out conversion of the property from leasehold to freehold subject to the plaintiff furnishing an adequate security or depositing such amount as may be considered appropriate by the Hon'ble Court to secure the principal amount in the suit filed by the FMI Investment Private Limited.
9. Vide order dated 1.4.2011, the Hon'ble Court was pleased to dispose of the application filed by the plaintiff directing it to deposit an FDR for a sum of Rs.1.46 crores with the Hon'ble Court and subject to the said amount being deposited, it was ordered that the interim injunction shall stand vacated from the date of deposit of the FDR and that there would be no impediment on the applicant/the plaintiff, in dealing with the suit property in any manner.
10. It is stated that after vacation of the injunction order passed by the Hon'ble High Court on 1.4.2011, there was no impediment in getting the property converted from leasehold to freehold; however, D-2, acted in totally dishonest manner and with a view to extract more money from the plaintiff, addressed a communication dated 26.4.2011 to Abhay Aggarwal, the Director of the plaintiff company intimating that his power C.S. (OS) No.2501/2011 Page 6 of 69 of attorney has been revoked on the ground that she had signed the power of attorney on the wrong advise as karta of HUF, D-1.
11. It was averred that dishonest intention of D-5, and his family members became clear when D-5 approached the office of L&DO vide communication dated 25.7.2011 wherein it was contended that D-2, had cancelled the power of attorney purported to have been executed by her in favour of Abhay Aggarwal and the HUF, D-1, was the lawful owner of the property and no other person had a right to deal with the said property in any manner whatsoever.
12. The plaintiff, on account of cancellation, approached Delhi High Court by way of a writ petition assailing the legality, validity and correctness of the notice dated 10.8.2011 issued by the NDMC purportedly issued under Section 248 of the NDMC Act calling upon the plaintiff to discontinue the building operation in respect of the suit property. The aforesaid writ bearing W.P. (C) No.6156/2011 was disposed of by the High Court vide order dated 24.8.2011 with the direction to the L&DO/respondent No.1, to dispose of the application of the plaintiff for grant of 'No Objection Certificate' in a time bound manner. In the meantime, the plaintiff filed the present suit for C.S. (OS) No.2501/2011 Page 7 of 69 declaration, mandatory injunction, specific performance and permanent injunction against HUF, D-1 and its members, D-2 to D-4 making D-5 also a party.
13. The L&DO is stated to have informed the plaintiff on 28.9.2011 that 'No Objection Certificate' for sanctioned building plan is given only to the recorded lessee and hence, the same could not be given to the plaintiff. It was further stated in the communication that karta of HUF, D-1, had informed the office of L&DO that the power of attorney given to P.C. Joshi and M. Narayan Kutty had been cancelled. It may be pertinent here to mention that P.C. Joshi was an employee of D-5 while as M. Narayan Kutty was an employee of the plaintiff company.
14. Aggrieved by the stand taken by the L&DO, the plaintiff filed another writ petition [W.P. (C) No.7777/2011] before the High Court praying therein for quashing of the aforesaid impugned decision of the L&DO dated 28.9.2011. Vide order dated 1.11.2011, the aforesaid writ petition was dismissed as withdrawn with liberty to approach the Civil Court along with the observation that the relief sought by the petitioner in the writ petition require appreciation of disputed questions of fact and as C.S. (OS) No.2501/2011 Page 8 of 69 such it would be appropriate for the petitioner/plaintiff to move to the Civil Court seeking direction as were prayed for in the said writ petition.
15. In view of the observation made by the Hon'ble Court in W.P. (C) bearing No.7777/2011, the plaintiff filed an application under Section 151 CPC bearing I.A. No.17960/2011 inter alia praying for the requisite 'No Objection Certificate' to be given in order to enable the plaintiff to carry out the construction activity on the property in accordance with the plans sanctioned by the NDMC. The plaintiff also moved an application for amendment of the relief along with an application for impleading L&DO as a party in the suit.
16. The application seeking amendment and impleadment was allowed vide order dated 04.09.2013 by my learned predecessor. The said order was reversed on 10.01.2014 by the Division Bench in FAO (OS) No.433/2014. The learned Division Bench had taken note of the fact that L&DO was sought to be impleaded as a party to the said suit, as it had sent a communication dated 28.09.2011 by virtue of which 'No Objection Certificate' for construction as per sanctioned building plan on the ground of power of attorney having been given to M. Narayan Kutty and P.C. Joshi having been cancelled by HUF, D-1 was withdrawn. It was stated C.S. (OS) No.2501/2011 Page 9 of 69 in the said communication that 'No Objection Certificate' could be given only to the recorded lessee. The Division Bench made it abundantly clear that though it was deleting L&DO as a party to the suit; however, the L&DO shall abide by any interim or final order with regard to the subject-matter of issuance of 'No Objection Certificate' or any other direction including the right to construct by the plaintiff on the suit property as may be granted by the single judge.
17. In the light of the aforesaid facts, the plaintiff is contending that as the plan of the suit property has been sanctioned by the NDMC, it be permitted to raise construction without prejudice. It is further stated that the plaintiff has already filed an undertaking to the effect that it would not claim any special equity for the construction so raised.
18. The D-1 and D-3 have filed written statement along with the counter-claim by the HUF, D-1, for declaration and possession by HUF, D-1. The D-2 and D-5 have filed their separate written statement. Apart from raising preliminary objections in each of the written statement, the matter has been contested on merits. The sum and substance of each of the written statement is almost on the same lines.
C.S. (OS) No.2501/2011 Page 10 of 69
19. It is alleged that the agreement to sell dated 29.7.2005 relied by the plaintiff was devoid of any consideration. It is also alleged that the plaintiff has made a false averment that at the time of entering into the agreement, a substantial sum of approximately Rs.9 crores was paid. It is stated that no such payment has been made to D-1, HUF, or to the members of the HUF. It is stated that D-1 continues to be the undisputed owner of the suit property on 29.7.2005 and even thereafter. It is stated that all the amounts reflected in the agreement, even as alleged by the plaintiff were payments made to defray the dues of the answering defendants and his various companies on the basis of loan given by Ashok Burman through the plaintiff company. It is alleged that these loans were given to the answering defendants when in the year 1999 onwards, the defendants were in need of financial aid, they had approached Ashok Burman patriarch of Burman family for temporary assistance. It is alleged that the HUF, D-1, never approached Burmans for advancing of loans. It is further stated that it was at the instance of Ashok Burman power of attorneys were jointly executed in favour of their men as the property was mortgaged. The power of attorneys were executed by the answering defendants in the year 2000 in favour of one of the C.S. (OS) No.2501/2011 Page 11 of 69 functionaries of Burmans despite the fact that agreement to sell is purported to have been executed much later. It is stated that the amount of Rs.9.25 crores apparently which was advanced by way of a personal loan was to carry an interest @ 12 per cent per annum and these advances were made by Ashok Burman to the answering defendants in trenches and the entire amount was to be given to the answering defendants till 31.3.2005. It is also alleged that as the amount which was being advanced as a loan was substantial, therefore, at the request of Mr. Burman, the agreement to sell was executed by D-1 in favour of the plaintiff to give some colour of sanctity to the transaction; however, it is alleged that the said document of agreement to sell was never intended to be acted upon and was only a sham transaction to be shown without any legal sanctity. The agreement was also got registered so that it evokes some kind of sanctity but the document was never acted upon till the time Ashok Burman was alive in the year 2011. It is also stated that the suit property was much more valued being a plot of land measuring 1641.70 square yards and even at the time of dealing with M/s. Mitsui company, the memorandum of understanding which was recorded on 3.2.1996, the value of the property was shown as Rs.16 crores and, therefore, it could C.S. (OS) No.2501/2011 Page 12 of 69 not have been Rs.9.25 crores in the year 2005 which clearly showed that the transaction was only a sham transaction.
20. The D-1, HUF, has also set up a counter-claim for declaration of the agreement to sell dated 29.7.2005 as null and void and further sought possession of the suit amount from the answering plaintiff apart from claiming damages.
21. The D-2, 3 and 4 have admitted the existence of the agreement to sell dated 29.7.2005 as well as the power of attorney dated 12.8.2005. D- 2 has signed the agreement as a karta as well as in her individual capacity. However, D-5, has also supported the stand taken by the other defendants contending that the agreement of sale is a sham document and what was taken from the plaintiff was in fact a loan because of financial difficulty.
22. So far as the application for ad interim relief of carrying out construction on the suit property is concerned, it is the case of the D-1 to D-4 that HUF continues to be the owner of the suit property and till the actual deed is not executed, the plaintiff cannot be permitted to raise the construction. It is stated that the sale agreement was a sham document and not to be acted upon. Further, interim directions are issued for the C.S. (OS) No.2501/2011 Page 13 of 69 preservation of the property and not changing the nature of the property, hence the rejection of the application was sought.
23. I was also alleged that one power of attorney which was executed by D-5 in favour of PC Joshi and one Mr.Kutty employees of the D-5 and the plaintiff/company by D-5 was revoked because it was allegedly executed prior to the alleged date of the agreement in question. It was on the strength of this document that plans were sanctioned and conversion was applied for. It is further stated that so far as the power of attorney in favour of one Mr.Abhay Aggarwal is concerned that was also revoked by D-2 in the capacity of the karta because her stand was that she being a woman was misled to act as a karta of the D-1 (HUF).
24. It is in this background that the learned senior counsel Mr. P.V. Kapur has contended that the application seeking permission to raise the construction over the plot of land in question has been filed. It is his contention that the agreement to sell being a registered document on which a sizeable amount of stamp duty has been paid apart from a sum of Rs.9.25 crores to the D-1 to D-4 and the factum of the said agreement having been executed by D-2, Mrs. Maheep Manjit Singh having not being denied, shows that the plaintiff has got prima facie good case in its C.S. (OS) No.2501/2011 Page 14 of 69 favour. It is also stated that the possession of the property has been handed over to the plaintiff at the time of execution of the agreement and in the agreement itself it has been envisaged that the plaintiff will be permitted to raise construction after obtaining necessary permission from the competent authorities and since the said permission has already been granted by the L&DO, therefore, the plaintiff be permitted to raise construction on the suit property so that the same could be gainfully utilized.
25. It has been contended by Mr. Kapur, the learned senior counsel that he has filed an undertaking to the effect that on account of the construction being permitted to be raised on the suit property, he will not claim special equities in his favour in the event the court comes to a finding which is adverse to the plaintiffs.
26. It has also been urged by Mr. Kapur, the learned senior counsel that the stand of the defendants is that though the agreement dated 29.7.2005 was executed but there was an oral agreement between the plaintiff and the defendant by virtue of which the agreement was not to be given effect to and it was only a sham transaction, is a false defence and inadmissible in law. Mr. Kapur, the learned senior counsel has also relied upon the C.S. (OS) No.2501/2011 Page 15 of 69 judgment passed in Karan Madaan vs. Nageshwar Pandey; 209 (2014) DLT 241 to contend that the defendants cannot be permitted to vary/contradict from and modify the terms and conditions of an agreement to sell which has been admitted. This is completely prohibited by Sections 91 and 92 of the Indian Evidence Act, 1872. It is the contention of the plaintiff that this court in Karan Madaan's case has held that once the document has been admitted, Section 91 of the Evidence Act would come into play and the court cannot be oblivious of the fact that oral evidence cannot be taken cognizance of for the purpose of contradiction, modification and change of terms and conditions of the agreement to sell which is a document in writing.
27. It has also been contended that the very fact that the suit itself has been filed by the plaintiff in the year 2005 and is still at the threshold despite almost a decade having passed, the final decision of the suit is likely to take considerable time and on account of this, the plaintiff will suffer an irreparable loss which cannot be compensated in terms of money. So far as the two other conditions with regard to the availability of a prima facie case in favour of the plaintiff and the balance of convenience are concerned, they are satisfied by the present plaintiff C.S. (OS) No.2501/2011 Page 16 of 69 inasmuch as the agreement prima facie establishes a jural relationship between the parties and with regard to the binding value of the agreement.
28. The next submission of Mr. Kapur, the learned senior counsel is that the power of attorney dated 12.8.2005 which is revoked by the D-2 could not have been revoked for the simple reasons that this power of attorney was executed along with the agreement to sell by the defendants and for consideration and was therefore an irrevocable power of attorney. Any document which is contrary to the terms and conditions of the agreement, cannot be taken cognizance of. Reliance in this regard is placed on Shikha Properties Private Limited vs. S. Bhagwant Singh & Others; 74 (1998) DLT 113.
29. It was contended that the plaintiff has satisfied all the three conditions, namely, it has prima facie good case, balance of convenience is in its favour and that it will suffer irreparable loss in case an ad interim injunction for raising construction is not granted.
30. The aforesaid contentions of Mr. Kapur, the learned senior counsel were contested by Mr. Ashwani Mata and Mr. Amit Sibal, the learned C.S. (OS) No.2501/2011 Page 17 of 69 senior counsel for the defendants. The contentions of the learned senior counsel for the defendants have been essentially three-fold.
31. The first contention of the learned senior counsel for the defendants is that the suit for specific performance of an agreement dated 29.7.2005 is being contested by the defendants on the ground that the said agreement was a sham document and was never to be acted upon. Thereby in essence meaning that when the document itself is under a cloud and its validity is to be adjudicated then no right can be given to the plaintiff to raise the construction on the suit property as it is the proprietary right of the defendants. In other words, the contention has been that the very fact that the suit for specific performance has been filed by the plaintiffs acknowledges that the title or the ownership rights in the suit property are vested in D-1, an HUF and, therefore, the plaintiff does not have any right, title or interest in the property and consequently, he ought not be permitted to raise any construction so as to change the nature of the property. In order to supplement this submission, the learned senior counsel has also contended that a writ petition was filed by the plaintiffs bearing W.P. (C) No.7777/2011 which was withdrawn vide order dated 1.11.2011 wherein it was clearly observed by the court while C.S. (OS) No.2501/2011 Page 18 of 69 permitting the withdrawal of the writ petition that it involved disputed questions of fact which cannot be gone into in the writ petition and it must be adjudicated in the civil suit. It is further stated that curiously the relief which was claimed in the writ petition namely quashing of the letter dated 28.09.2011 which stated that NOC could be granted to the registered lessee only has not been prayed or challenged in the suit.
32. It is also contended by the learned senior counsel that the defense of the defendants is that the plaintiff company, who was represented by Mr. Ashok Burman, one of the Directors of the company had essentially advanced a loan to D-5, in order to discharge his financial obligations and in order to secure his interest. Despite the fact that there were family relations between the defendants and the Burmans, the latter wanted his interest to be sufficiently protected by giving it the colour of advancing a loan and making it a genuine transaction by creating an agreement to sell as is sought to be set up now. The learned senior counsel in this regard referred to some earlier transaction having been entered into between the D-1 and the company known as regent square in which Burmans only had holding where similar set of documents with permission to raise C.S. (OS) No.2501/2011 Page 19 of 69 construction had been executed. This was essentially done to secure their interest just as it was done in the case of the plaintiff.
33. The third contention by Mr. Mata is that keeping in view the above broad parameters of the defense, the defendant has already setup a counter-claim along with the written statement wherein a prayer for declaring the agreement dated 29.7.2005 as null and void has been made and, therefore, unless and until the claim in the suit along with the counter-claim is adjudicated, the nature of the property has to be preserved. It has also been contended that temporary injunctions or interim reliefs are granted in exceptional circumstances so as to preserve or restore the status quo with regard to the suit property and not in order to change the nature of property. For this purpose, the learned senior counsel Mr. Mata has relied upon number of judgments which are Jiwan Dass Rawal vs. Narain Dass & Others; AIR 1981 Delhi 291, Dorab Cowasji Warden & Others vs. Coomi Sorabg Warden & Others; AIR 1990 SC 867, Metro Marines & Another vs. Bonus Watch Company Private Limited & Others; 2004 (7) SCC 478, Bachhaj Nahar vs. Nilima Mandal & Others; AIR 2009 SC 1103, Rambhau Namdeo Gajrev, Narayan Baapuji Dhotra (dead) through LRs; 2004 (8) SCC 614, C.S. (OS) No.2501/2011 Page 20 of 69 Maharwal Khewaji Trust Registered vs. Baldev Dass; 2004 (8) SCC 488 and M/s. National Film Development Cooperation Ltd. vs. Sri Shantilal Bakhliwal; CDJ (2008) Cal. HC 310.
34. I may refer hereinafter to the various judgment referred to by the learned senior counsel for the defendants. At the outset I must express dismay that the number of authorities could have been conveniently kept less as what is to be seen is what are the broad principles of law laid down by the Apex Court and whether they are applicable to the facts of the present case.
35. The first authority which has been relied upon is Jiwan Dass Rawal (supra) to contend that temporary injunction cannot be issued at the instance of a person in whose favour the agreement to sell was executed till the decree for specific performance is obtained by him and a sale deed is executed.
36. There is no dispute about the proposition of law laid down in the said judgment, but before the said proposition is made applicable to the facts of the present case in order to see whether it has any application, it has to be borne in mind that the Supreme Court has repeatedly pointed out that judgments should not be applied blindly like mathematical C.S. (OS) No.2501/2011 Page 21 of 69 propositions. The court must examine the facts of the case in the light of which the proposition of law has been laid down and correlate the said facts with the facts of the case where the said proposition is sought to be made applicable. Reliance in this regard is placed on Haryana Financial Corporation Vs. Jagdamba Oil Mills; AIR 2002 SC 834.
37. In Jiwan Dass's case (supra), the facts were that possession of the suit property had not been given to the purchaser who had filed a suit for specific performance who further, in turn had sold it to a third person. Therefore, it was in this context that the court had observed that under Section 54 of the Transfer of Property Act, a contract for sale does not create any interest or any authority in such property. Such a contract is merely a document creating right to obtain another documents in the form of a sale deed to be registered in accordance with law and till the time the said document is duly executed and registered the party ought not to be permitted to raise the construction.
38. The facts of this case are distinguishable from the facts of the present case. In the present case, the possession of the suit property is admittedly with the plaintiff for the last more than nine years in an uninterrupted manner and there is no third party involvement meaning C.S. (OS) No.2501/2011 Page 22 of 69 thereby the suit property has not been transacted twice to two different parties on the basis of the agreement to sell. Further, the vendor has given to the vendee specifically the right to construct the suit property. Therefore, this judgment is not applicable to the facts of the present case.
39. The learned senior counsel for the defendants has also relied upon the judgment of the Supreme Court in Dorab Cowasji's case (supra) wherein it has been observed as under in para 14 :-
"14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guideline. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.C.S. (OS) No.2501/2011 Page 23 of 69
(3) The balance of convenience is in favour of the one seeking such relief."
40. This was a case where the issue was with regard to the partition of the suit property between co-sharers whose shares were not specified and defined being the inheritors of the property from their common ancestor. It was in such a contingency that the observation that interlocutory mandatory injunctions are granted for preserving or restoring the status quo ante is passed by the Apex Court.
41. The present case is not a case where the defendants and the plaintiffs are co-sharers. On the contrary, the defendants have agreed to sell the suit property to the plaintiffs for a hefty consideration of Rs.9.25 crores and taken almost the entire sale consideration, handed over possession under an agreement to sell with detailed conditions including the right to raise construction and thereafter taken a U-turn to contest the said agreement to sell as a matter of document of sham. The signing of the document by all the parties in court, who are educated, doing business and understanding the implications of having executed the document cannot be permitted to wriggle out of the said agreement despite the possession having been handed over and yet not perfecting the title of the C.S. (OS) No.2501/2011 Page 24 of 69 plaintiff. The only inference which one can draw under such a contingency is that all the defendants after having sold the property to the plaintiffs have turned dishonest for ulterior considerations and these ulterior considerations are that the value of the property each day is jumping by leaps and bounds and so in the instant case also the value of the property which was agreed to be sold by the defendants to the plaintiffs for a total consideration of Rs.9.25 cores must have gone beyond ten times which has prompted them to become dishonest to extract more money from the plaintiff. Moreover, this judgment, instead of helping the defendant Nos.1 to 4, in my view, is helping the plaintiff. The plaintiff has not only been able to show prima facie case but, in my view, it has been able to show more than a prima facie case by agreement dated 29.7.2005, possession delivered to the plaintiff, substantial consideration paid and right of construction being raised, satisfies the requirement of Dorab Cowasji's case (supra). Therefore, this judgment is also not helpful to the defendants.
42. In Metro Marins's case (supra) also the facts are distinguishable. In the said case, a suit for possession came to be filed by the respondent against the appellants alleging them to be licensee in respect of the suit C.S. (OS) No.2501/2011 Page 25 of 69 premises. During the pendency of the suit premises an application for obtaining judgment on the basis of admission or alternatively an application seeking mandatory injunction against the appellants was filed by the respondent. The learned single Judge on the Original Side of Calcutta High Court dismissed the application holding that granting of the mandatory injunction of handing over the possession of the suit premises to the respondent/plaintiff would tantamount to decreeing the suit and accordingly rejected the application for passing a decree on the basis of admission or even alternatively granting mandatory injunction.
43. On appeal being preferred by the respondent/plaintiff the appellate Bench of the Calcutta High Court upturned the judgment of the learned single Judge and passed an order of mandatory injunction in favour of the respondent/plaintiff directing the appellant to hand over the possession to the respondent.
44. The appellant/defendant feeling aggrieved by such a mandatory injunction assailed the same before the apex court relying upon the judgment Dorab Cowasji's case (supra) and rightly so held that the appellate court of Calcutta High Court was wrong in passing a order of mandatory injunction against the appellant directing him to hand over the C.S. (OS) No.2501/2011 Page 26 of 69 possession. This was on account of the fact that by directing a mandatory ad interim order to hand over the possession tantamounted to decreeing the suit itself in favour of the respondent/plaintiff when the suit was being contested by the appellant/defendant on various grounds. For this purpose, the apex court relied upon on its earlier judgment in Dorab Cowasji's case (supra). The facts of this case are apparently no way near the facts of the case in hand. In the instant case, as has been pointed out earlier, the possession of the suit premises is with the plaintiffs for the last more than nine years in uninterrupted peaceful manner. The agreement to sell is purported to have been executed on behalf of D-1/HUF by D- 2. The other two members of the D-1, that is, D-3 and D-4 have not disputed the agreement. The only contention raised is that the document is sham which on the face of it is untenable in the eyes of law as oral evidence, as is sought to be produced, and is prohibited in terms of Sections 91 and 92 of the Indian Evidence Act, 1872.
45. The plaintiff has already paid a substantial portion of the consideration to the defendants and yet despite being in possession, he is not able to enjoy the property and the fact that the case has been filed more than nine years ago is likely to take equal quantum of time before it C.S. (OS) No.2501/2011 Page 27 of 69 comes to stage of finality at the first stage thereby causing irreparable loss to the plaintiffs.
46. The next submission of Mr. Ashwini Mata and Mr.Sibal, the learned senior counsel is that there is no pleading in the suit with regard to the construction and consequently, the same cannot be read into existing pleading and the relief given to the plaintiff by way of permitting him to raise the construction. In this regard Mr. Mata, the learned senior counsel has placed reliance on Bachhraj Nahar vs. Nilima Mandal & Others; AIR 2009 SC 1103 wherein it has been observed as under :-
"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, C.S. (OS) No.2501/2011 Page 28 of 69 evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto."
47. Mr. Mata and Mr.Sibal, the learned senior counsels have also contended that the judgment which has been relied upon by Mr. P.V. Kapur, the learned senior counsel for the plaintiff in support of his contention seeking permission to raise construction by reference to two judgments of the Supreme Court reported in Ram Sarup Gupta (dead) by LRs vs. Bishun Narain Inter College & Others; AIR 1987 SC 1242 and Bhagwati Prasad vs. Chandramaul; AIR 1966 SC 735 are not applicable to the facts of the present case.
48. There is no dispute about the proposition of law laid down in the aforesaid judgments relied upon by the respective sides. It is also not in dispute that the Supreme Court in Bachhaj Nahar's case (supra) has put stress on the pleadings in the light of evidence to be produced by the parties. It has been held by the Supreme Court in the said case that there C.S. (OS) No.2501/2011 Page 29 of 69 must be an averment in the pleading, be that the plaint or the written statement, and only then evidence with regard to the same can be produced by a party or seen. The purpose of confining to such averments in the pleading is to ensure that the opposite party is aware of the case which it is supposed to meet so that it is not taken by surprise. It is in this background that the Apex Court has held that no amount of evidence which a party may produce can be relied upon unless and until there is a pleading to that effect. There is absolutely no dispute about this proposition of law.
49. So far as the judgments which have been relied upon by Mr. P.V. Kapur, the learned senior counsel are concerned, though they are also on the merits of the case where full fledged trial had taken place but the object of the pleadings has aptly been summarized in Ram Sarup Gupta's case (supra) that pleading must receive liberal construction and not pedantic and parochial approach; more so in my view where question of interim relief is involved or prayed. The purpose of pleadings is to ensure fair trial and also that opposite side is not taken by surprise certainly when the prayer of the plaintiff in the instant application is to raise construction on the suit property it is inbuilt that he could not get such a C.S. (OS) No.2501/2011 Page 30 of 69 permission unless and until he satisfies three basic requirements merely because there is no reproduction of the words like prima facie case, balance of convenience or irreparable loss in the application would be a hyper technical approach. Therefore, this argument of the defendant opposing the application is rejected. Further the endeavour of the court is to do substantive justice rather than get entangled in technicalities of law because laws or procedural requirements are not meant to create hurdles in dispensation of justice but to advance the same. Unless and until the procedural lapse is not resulting in illegality or impropriety of causing a serious prejudice to the opposite side, it ought not to deter the court in passing an order which would advance the purpose of justice. In the present case, I do not feel that the application suffers from any such vice. On the contrary, the birds' eye view of the entire defence of the defendant Nos.1 to 4 is to wriggle out of their agreed commitment and for that purpose, to take all possible flimsy pleas whether they are legally sustainable or not. It would be pertinent here to refer to the relevant para of judgment of Ram Sarup Gupta (since deceased)'s case (supra) which records as under.
C.S. (OS) No.2501/2011 Page 31 of 69
"6. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to make. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with the strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleading to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleading should be considered. Whenever the question about the lack of the pleading is raised the enquiry should not be so much about the form of pleading, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleading the parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise a question of absence of pleadings in appeal."
50. The judgment cited by Mr. Mata, the learned senior counsel is not applicable to the facts of the case. So far as the judgment in Bachhaj Nahar's case (supra) is concerned, Mr. Mata has overlooked the fact that this was the law laid down by the Supreme Court while examining the C.S. (OS) No.2501/2011 Page 32 of 69 case which had been decided on merits where the case had passed through different stages of appeal and reached Supreme Court. Therefore, the said proposition of law has to be made applicable to a case when it is being decided finally and not at the interim stage. At the interim stage, when the court is considering an application for grant of an interim relief sought by a party, the only thing to be seen by the court is as to whether the interim relief which is sought by a party is subsidiary relief to the main relief or not. If the interim relief happens to be the subsidiary/ancillary relief to the main relief obviously it has to be granted provided the party concerned is able to satisfy the other three conditions.
51. Seen in the aforesaid light, the case of the plaintiff is for specific performance and the sum and substance of its case is that D-1 through D-2 its karta had sold the suit property to the plaintiff for a total consideration of Rs.9.25 crores and the said document is a registered document. Out of the aforesaid total sum, a sum of approximately Rs.9.25 crores stands already paid, details of which are given in the agreement itself. The possession has been handed over to the purchaser and it continues to be with the purchaser uninterruptedly for a period of last nine years. The D-1 ceases to have any right, title or interest in the C.S. (OS) No.2501/2011 Page 33 of 69 suit property after execution the agreement as envisaged therein. Further, in the agreement itself, one of the important clauses which have been incorporated is that the plaintiff, who has been termed to be a purchaser has the right to not only carry out additions, alterations and even demolition but also raise construction. The old construction has since been demolished though the defendants are now alleging that it has been done illegally, but they could have come to the court when the building was being demolished and obtained a restraint order which was not done and now to cry hoarse that the same building be erected or that they are entitled to damages of Rs. 40 crores for the same is an argument of desperation to throw a spanner.
52. A plain reading of the document itself makes it clear that it is not an agreement to sell but in essence it is a document of sale itself and since only a formality of getting a sale deed was to be executed between the parties on payment of balance amount of approximately Rs.25,85,026/- in terms of the agreement, the plaintiff's right to raise the construction cannot be scuttled. As a matter of fact, this balance amount of approximately Rs.25 lacs may also not required to be paid because the plaintiff had been asked to deposit a sum of Rs.1.46 crores by the C.S. (OS) No.2501/2011 Page 34 of 69 Hon'ble High Court in order to get the stay vacated which prevented the vendor of the property to deal with the same and as the vendor had already washed off his hands from the said property by entering into an agreement to sell with the plaintiff, the plaintiff was compelled to file an application seeking modification of the said order for which it had to deposit an amount of Rs.1.46 crores in terms of the court order.
53. I have been informed by Mr. Sibal learned senior counsel that the defendants have already arrived at a compromise with the FMI in Supreme Court by virtue of which it has to pay amount of Rs.1.46 crores in three instalments which will leave the money deposited by the plaintiff with the Registrar General to be refunded to the plaintiff.
54. Mr.Makker, the learned counsel for the plaintiff, has contested this and stated that the suit itself has since been decreed and the appeal has also been dismissed, therefore, there is no question of the amount being refunded.
55. None of the learned counsel has placed any order before this court. The fact of the matter remains that as on date it is not in dispute that only 25 lakhs or so is payable to the defendants in terms of the agreement dated 29.07.2005. Assuming it to be correct in comparison, an amount of C.S. (OS) No.2501/2011 Page 35 of 69 Rs.1.46 crores has been deposited by the plaintiff with the Registrar General of this court. Whether the defendant pays this amount of Rs.1.46 crore of their own and seek refund of the plaintiff with the High Court or permit FMI to take this amount, fact of the matter prima facie remains that the so called entire sale consideration in terms of the agreement from the plaintiff's standpoint remains paid.
56. Therefore, keeping in view the aforesaid facts in the main petition, the plaintiff being the owner, can deal with the property in any manner whatsoever and since he only wanted to perfect his title in law as D-1 to D-4 had turned dishonest and were casting a cloud on his title that he was compelled to file a suit for specific performance. Since this suit for specific performance has been pending for almost 4 years naturally, any party placed in the situation in which the plaintiff is placed where a party to an agreement has spent considerable amount of sale consideration taken the possession of the suit property with specific clause of being permitted to raise construction, yet is not able to gainfully utilize the suit land that it will file an application seeking permission to raise construction. This ad interim relief, in my view, is a subsidiary relief to the main relief of perfecting its title. Therefore, keeping in view the fact C.S. (OS) No.2501/2011 Page 36 of 69 that the relief of construction which is sought by the present plaintiff by way of an interim application & is essentially a subsidiary relief to the main relief, there could not be any specific pleading in the main suit and the judgments which has been relied upon by the learned counsel Mr. Mata and Mr.Sibal are not applicable to the facts of the present case.
57. The next judgment which has been referred to by Mr. Mata, the learned senior counsel in Maharwal Khewaji's case (supra) is to contend that the settled legal proposition is that under Order 39 Rule 1 & 2 CPC, orders are passed to protect the suit property and it cannot be used to change the nature of the suit property by carrying out construction thereon. I do not agree that the said judgment has any application to the facts of the present case. This judgment along with judgment of Dorab Cowasji's case (supra) which has been cited by the learned senior counsel for the defendants, clearly supports the case of the plaintiff. That is on account of the fact that no doubt, the orders under Order 39 Rule 1 & 2 CPC are essentially passed for the preservation of the property but that is not an absolute rule, there are exceptions where mandatory ad interim directions are also issued.
C.S. (OS) No.2501/2011 Page 37 of 69
58. In the instant case, I have already observed under the agreement to sell, the plaintiff has already paid almost the entire consideration, possession has been taken, the plaintiff has been given the right to raise construction and plans have been sanctioned, therefore, it has been able to establish a prima facie case but it has been able to establish something more than prima facie case in terms of Dorab Cowasji's case (supra) which entitles it to raise the construction on the suit property. Further, the plaintiff has given an undertaking to the court to the effect that it will not claim any special equities in the event of it losing the suit.
59. Mr. Mata, the senior counsel has also referred to Section 54 of the Transfer of Property Act, 1882, that no right, title or interest in the immoveable property is transferred to the purchaser till the execution of the sale deed and for this purpose, catena of authorities have been relied upon by him. These are Suraj Lamps & Industries Pvt. Ltd. vs. State of Haryana; 183 (2011) DLT 1, Jivan Dass Rawal (supra) and Sunil Kapoor vs. Himmat Singh ; 2010 II AD 463.
60. Out of these judgments, I would like to make a reference to, is Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr.; AIR 2012 SC 206. In the said case, the Hon'ble Supreme Court has held that the C.S. (OS) No.2501/2011 Page 38 of 69 transactions which have taken place on the basis of sale agreements, GPA, Will, etc. do not confer any title to the property but only entitle the holder of such documents to file a suit for specific performance meaning thereby a person claiming to be owner of a property on the basis of special power of attorney/general power of attorney, agreement to sell and all other subsidiary documents coupled with the transfer of possession has not been considered to be the owner of property in terms of Section 54 of the Transfer of Property Act and the only remedy with is obtaining a specific performance decree from the court against the vendor but while passing this judgment, the Supreme Court has also observed in para 19 as under:
"19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in C.S. (OS) No.2501/2011 Page 39 of 69 that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favor of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions."
61. As is reflected form the aforesaid, the Supreme Court was cognizant of the fact that there are genuine transactions which are based on documents like agreement to sell, special/general power of attorneys etc. If examined on this touchstone of Suraj Lamp's case (supra), the question which would arise for consideration is as to whether the agreement to sell dated 29.07.2005 was a genuine agreement or not. I have already observed hereinabove that as a matter of fact the agreement to sell was so elaborate that it has actually contained all the terms and conditions of a sale deed though it has been termed as an agreement to sell. Further, in terms of this very agreement not only more than the substantial portion of consideration has been received from the C.S. (OS) No.2501/2011 Page 40 of 69 plaintiff/vendee by the vendor i.e.defendant No.1 for himself or its nominee details of which are given in the agreement itself but the consideration received also included the amount of Rs.29,19,447/-lakhs which was paid to the L&DO for the purpose of processing the conversion application of the vendor from leasehold to freehold and it was after further envisaged in the agreement to sell that within 15 days of the execution of the conveyance deed the vendor would execute the sale deed in favour of the vendee i.e. the plaintiff. During the pendency of the conversion application, rights of the vendee as a purchaser were fully protected inasmuch as he was given the right to full enjoyment in respect of the suit property. This is evinced in clause 7 & 9 whereby he could not only make additions, alterations, demolition or raise fresh construction, but he could deal with the property in any way pending execution of the sale deed and D-1 to D-4 were left no right whatsoever. This clearly shows that the plaintiff had full rights of a purchaser under the agreement and, therefore, Suraj Lamp's case (supra) instead of helping the defendants goes in favour of the plaintiff.
62. There is no dispute about the fact that Section 54 of the Act deals with the question of sale of a property and lays down that no right, title or C.S. (OS) No.2501/2011 Page 41 of 69 interest in any immoveable property is transferred till the execution of the sale deed but in the instant case, I have already observed that the agreement to sell which is purported to have been executed by defendant Nos.1 to 4 in favour of the plaintiff is not an agreement to sell but in fact a sale document even though, it has been termed as an agreement to sell because under the agreement all those rights have been given to the vendee which accrue to him only on sale of the property. Possession had been transferred to the vendee. Almost entire sale consideration had been received except 3% of the total sale consideration which can also be taken by the vendor to have been deposited by the vendee. To top it all, the vendor on execution has ceased to have any right, title or interest in property. For this purpose, I reproduce the entire agreement to sell which reads as under :-
"AGREEMENT TO SELL CONSIDERATION AMOUNT : Rs.9,25,00,000/-
STAMP DUTY : Rs.41,62,500/-
CORPORATION TAX : Rs.27,75,000/-
TOTAL STAMP DUTY : Rs.69,37,500/-
THIS AGREEMENT for sale is made on this the 29th day of July, 2005, C.S. (OS) No.2501/2011 Page 42 of 69 BETWEEN Bhai Manjit Singh-HUF, a Hindu Undivided Family acting through its Karta and Manager Mrs. Maheep Manjit Singh w/o Bhai Manjit Singh, 2 South nd Lane, New Delhi 110011 and hereinafter referred to as the 'VENDOR' of the First part, AND M/s. Sunshine Pvt. Ltd., a company duly incorporated under the Companies Act, 1956 having its registered office at 4th Floor, Punjabi Bhawan, Rouse Avenue, New Delhi-110002 acting through its duly authorized representative/director Sh. Abhay Aggarwal s/o Sh. M.C. Aggarwal r/o A-506, Gitanjali Apartments, Delhi-110092, authorized by way of resolution dt. 10.8.2004, hereinafter called the 'PURCHASER' of the Second part.
AND
1. Mrs. Maheep Manjit Singh w/o Bhai Manjit Singh
2. Mr. Vikramjit Singh s/o Bhai Manjit Singh
3. Mr. Mohanjit Singh s/o Bhai Manjit Singh All residents of 2, Southend Lane, New Delhi and hereinafter referred to as the 'CONFIRMING PARTIES'.
[The expression VENDOR, PURCHASER and CONFIRMING PARTIES shall mean and include, unless repugnant to the context thereof, all their legal heirs, assigns, constituents, members, successors, executors and administrators, representatives, nominees, etc.] WHEREAS A. The VENDOR is a Hindu Undivided Family comprising of CONFIRMING PARTIES as its members and are the sole and absolute owner of the property bearing No.61, Golf Links, New Delhi admeasuring 1641.70 sq. yds. and hereinafter referred to as the 'said property'.C.S. (OS) No.2501/2011 Page 43 of 69
B. The said property was initially allotted to Bhai Mohan Singh by Land and Development Office, vide perpetual lease deed dt. 30.4.1960 and duly registered at Srl. No.4405 in Addl. Book No.1, Volume No.125 at pages 18 to 22 and on 7.6.1962 with Sub-Registrar of Assurances, New Delhi. Copy of the Perpetual Lease Deed has been given to the PURCHASER.
C. The said Bhai Mohan Singh put the said property in family hotch potch and created an HUF known as Bhai Mohan Singh-HUF and mutation in the records of said Bhai Mohan Singh HUF was duly recorded in the records of L & DO.
D. That the members of the said Bhai Mohan Singh-HUF entered into a Family Partition Deed dt. 19.1.1991, whereby the said property fell to the share of the VENDOR. Copy of the Partition Deed has been given to the PURCHASER.
E. The VENDOR applied to L & DO for mutation and the said property was duly mutated in the name of VENDOR on 23.12.1999 vide letter No.L & DO/L-IV/9/10 (61)/99/544.
F. The VENDOR as per the policy of Land and Development Office applied for conversion of leasehold rights to freehold rights for the said property on 24.12.1999 and deposited the conversion charges with L & DO and deed of conveyance is awaited.
G. The said property was equitably mortgaged by Bhai Mohan Singh-HUF, the erstwhile recorded owners on 24.5.1995 with State Bank of Travancore, 162, Mount Road, Chennai (Madras) - 600002 having its branch at Karol Bagh, New Delhi, as a collateral security for the limits obtained by M/s. Montari Leather Ltd., the controlling interest of which are with Bhai Manjit Singh and family, i.e., members of the VENDOR.C.S. (OS) No.2501/2011 Page 44 of 69
H. The State Bank of Travancore has filed an application of recovery being Original Application No.76 of 2003 before the Debt Recovery Tribunal, New Delhi, against the borrower and other defendants and had claimed rights of mortgagee on the said property and the Debt Recovery Tribunal vide order dt. 14.1.2004 had restrained the disposal of the said property.
I. The proposal for settlement of dues of State Bank of Travancore was made by the borrower and said proposal has been accepted by the Bank and Bank has accepted a sum of Rs.5 crores and has released the title documents.
J. That a Memorandum of Understanding [MOU] with regard to said property had been entered with M/s. Mitsui & Co. Ltd., The Metropolitan, Bangla Sahib Road, New Delhi vide MOU dt.3.2.1996 and received a sum of Rs.1.60 crores [Rupees one crore sixty lakhs only]. The disputes arose between M/s. Mitsui and VENDOR and others and M/s. Mitsui claimed refund of the amounts paid by them alongwith interest and have filed a suit for recovery of Rs.2,46,40,000/- against the VENDOR and others in the Hon'ble High Court of Delhi being Suit No.593 of 1999 and the Hon'ble High Court vide order dt.18.3.1999 restrained Bhai Manjit Singh and Bhai Mohan Singh from transferring, alienating or disposing off the said property, however, there is no stay order as against the VENDOR.
K. The physical possession of the said property is with M/s.
VIC Enterprises Pvt. Ltd. who had paid the debt of VENDOR towards a company M/s. Regent Square Promoters Pvt. Ltd. amounting to Rs.43,65,000/- and had taken over the possession of the said property from the said Company.
L. The VENDOR has approached the PURCHASER and has offered to sell all its rights, title and interest whatsoever in the said property to the PURCHASER by representing to the PURCHASER that:C.S. (OS) No.2501/2011 Page 45 of 69
a) The VENDOR has all rights, powers, entitlements to enter into this agreement to sell, to remove hindrance, receive the sale consideration, and generally to deal with the said property in any manner whatsoever and can effectively transfer and confer the title on PURCHASER.
b) Except whatever has been stated hereinabove there are no other encumbrances on the property in question.
c) Save as aforesaid, the said property is free from all manner of encumbrances, mortgages, liens, charges, litigation, attachments or acquisitions, requisitions or notices thereof.
d) the VENDOR has not entered into an agreement to transfer the said demised premises with any other person till date.
e) the CONFIRMING PARTIES i.e. all the members of the HUF have consented to the said sale being for the benefit of HUF and its members.
f) that no person or member of HUF i.e. CONFIRMING PARTY is claiming any interest in the said property adverse to the interest of HUF.
M. On the basis of the aforesaid representations of the VENDOR, the PURCHASER has agreed to purchase from the VENDOR all its rights, interests, entitlements etc. in the said demised premises, on terms and conditions and for consideration hereinafter stipulated:
1. In this Agreement, the expression "Said Property" shall mean and include the following :
(i) property bearing No.61, Golf Links, New Delhi, admeasuring 1641.70 sq. yds., and all rights and entitlements, residuary, reversionary etc. in the said C.S. (OS) No.2501/2011 Page 46 of 69 property or any part thereof including the right of redemption or any other right, whether specifically stated or not.
(ii) Right to deal with any member/assignee/nominee of the VENDOR and to modify and/or cancel any agreement or arrangement entered by the VENDOR.
(iii) Right to take over the vacant physical possession of the said property from the present occupant i.e. M/s.
VIO Enterprises Pvt. Ltd. in its own right and retain the same.
(iv) The right to carry out all modifications, additions, alterations and further constructions, demolitions and/or constructions in the said property and without prejudice to the generality of the foregoing :
(a) The right to apply for and obtain in its name or in the name of and on behalf of the VENDOR insofar as necessary, any and all consents, sanctions, approvals, permissions and no objections whatsoever as shall or may be required for the purpose of constructions, modification, alterations etc. and extension and revalidations of all sanctions, permissions, consents, approvals and no objections;
(b) The right to apply for and obtain in its name or in the name and on behalf of the VENDOR insofar as necessary any re-validation, revision, amendment or modification of any Sanctioned Plan, and completion/occupancy certificate(s);
(c) The right to apply for and obtain in its name or in the name of and on behalf of VENDOR insofar as necessary, any and all sanctions, consents and quotas as may be required for construction in respect of any controlled or concessional material item, commodity, equipment, thing or facility;
C.S. (OS) No.2501/2011 Page 47 of 69
(d) The right to apply for and obtain in its name or in the name of and on behalf of the VENDOR insofar as necessary, any and all temporary and permanent connections for water, electricity, power, gas or other utilities intended for consumption during and/or after the construction/modification/alteration etc. as aforesaid;
(v) The right of free access to and from the said
property;
2. The VENDOR hereby agree to sell to the PURCHASER and the PURCHASER hereby agrees to purchase from the VENDOR the said Demised Premises for a total price of Rs.9.25 crores (Rupees nine crores twenty five lakhs only) free from any and all defects, encumbrances, charges, liens, claims demands, acquisitions, requisitions and notices thereof and attachments and litigation whatsoever except whatever has been stated hereinabove. The said price is inclusive of all conversion charges that may be payable to the Central Government for conversion of the said property to freehold status and related stamp duty, Municipal Tax, registration charges on the resultant conveyance and exclusive of any transfer charges/unearned increase that may be payable to the Central Government under the said Perpetual Lease as a pre-condition to allowing the transfer the Perpetual Leasehold rights in favour of the PURCHSER.
3. That the PURCHASER has paid to the VENDOR a sum of Rs.8,99,14,974/- (Rupees Eight crores ninety nine lakhs fourteen thousand nine hundred seventy four only) in the following manner:-
(a) Rs.1,54,00,000/- (Rupees one crore fifty four lakhs only) by way of cheques bearing nos.949630 for Rs.1,52,00,000/- and cheque no.949631 for Rs.2,00,000/- both dated 6.12.2004 and drawn on Punjab National Bank, N-86, Janpath, New Delhi in C.S. (OS) No.2501/2011 Page 48 of 69 the name of Motor & General Finance Ltd., 4/17, Asaf Ali Road, New Delhi-110002 for and on behalf of VENDOR.
(b) Rs.43,65,000/- (Rupees fourty three lakhs sixty five thousand only) has been paid to M/s. VIC Enterprises Pvt. Ltd. by way of cheque bearing No.176170 drawn on Standard Chartered Bank, New Delhi dt. 6.12.2004 for and on behalf of VENDOR. M/s. VIC Enterprises Pvt. Ltd. had paid the said sum of Rs.43,65,000/- to M/s. Regent Square Promoters Pvt. Ltd. for clearing the liabilities of VENDOR.
(c) Rs.10,00,000/- (Rupees ten lakhs only) has been paid to State Bank of Travancore, Karol Bagh Branch, New Delhi by way of cheque bearing No.949632 drawn on Punjab National Bank, N-86, Janpath, New Delhi dt. 6.12.2004 on behalf of VENDOR.
(d) Rs.4,90,00,000/- (Rupees Four crores ninety lakhs only) by way of draft bearing No.949633 drawn on Punjab National Bank dt. 25.1.2005 to the State Bank of Travancore, Karol Bagh Branch, New Delhi in full and final settlement of all dues of the said Bank and against release of title documents.
(e) Rs.29,19,447/- (Rupees twenty nine lakhs nineteen thousand four hundred and forty seven only) towards conversion charges by way of cheque/DD no.949640 dt. 29.4.2005 favouring State Bank of India A/c Land & Development Officer on behalf of VENDOR.
(f) Rs.1,60,00,000/- (Rupees one crore sixty lakhs only) has been paid to the VENDOR vide cheque/DD No.949644 dt. 19.5.2005 drawn on Punjab National Bank in the name of Registrar Delhi High Court, C.S. (OS) No.2501/2011 Page 49 of 69 New Delhi for the purposes of payment to M/s.
Mitsui and Company.
(g) Rs.50,000/- (Rupees fifty thousand only) has been paid on behalf of VENDOR to M/s Gee Gee Holdings Pvt. Ltd. vide cheque/DD No.176167 dt.
6.12.2004 drawn on Standard Chartered Bank.
(h) Rs.49,900/- (Rupees forty nine thousand nine hundred only) has been on behalf of VENDOR to Mr. Vijay Dixit vide cheque/DD No.176167 dt.
6.12.2004 drawn on Standard Chartered Bank.
(i) Rs.7,56,274/- (Rupees seven lakhs fifty six thousand two hundred seventy four only) towards property tax by way of cheque no.949634 dt. 21.2.2005 favouring NDMC on behalf of VENDOR.
(j) Rs.3,74,353/- (Rupees three lakhs seventy four thousand three hundred fifty three only) towards Electricity charges by way of cheque No.949634 dt. 25.2.2005 favouring NDMC on behalf of VENDOR.
The VENDOR hereby acknowledges the receipt of the said sum of Rs.8,99,14,974/- (Rupees eight crores ninety nine lakhs fourteen thousand nine hundred seventy four only) paid by the PURCHASER and from payment whereof discharges the PURCHASER. The balance sale consideration of Rs.25,85,026/- (Rupees twenty five lakhs eight five thousand and twenty six only) shall be paid by the PURCHASER to the VENDOR at the time of execution and registration of sale deed.
4. It is agreed by both the parties that all encumbrances shall be removed by the VENDOR and sale deed as stated herein shall be executed and registered in favour of PURCHASER within a period of 15 days of receipt of conveyance deed from L & DO.
C.S. (OS) No.2501/2011 Page 50 of 69
5. That the VENDOR shall settle the matter with M/s. Mitsui and Company and shall deposit the said sum of Rs.1.60 crores in Delhi High Court. The VENDOR shall inform the PURCHASER as to when the cheque issued in the name of Registrar, Delhi High Court is being presented so that same can be cleared on presentation. If the said cheque is required to be prepared in any other name, the VENDOR shall inform the PURCHASER about the same and PURCHASER shall handover a new cheque in lieu of and on delivery of the old cheque to the VENDOR.
6. The VENDOR hereby confirms and assures the PURCHASER that:
(i) save as mentioned in the Recitals hereinabove, the said Property 61, Golf Links New Delhi is free from all manner of encumbrances, charges, liens, lis-pendens, attachments and trusts whatsoever;
(ii) there is no order of attachment of the Income Tax Authorities with respect to the said Property and the Demised Premises or any part thereof and no notice in this behalf has been received by the VENDOR;
(iii) there is no subsisting Agreement for sale or MOU in respect of the said property nor has it been disposed off or transferred to any other person or persons under any gift, Will, exchange or any other arrangement etc. except with the PURCHASER;
(iv) there is no legal impediment or bar whereby the VENDOR can be prevented from entering into this Agreement;
(v) no one other than the VENDOR have any right, title or interest in the said property and the VENDOR is entitled to give marketable title thereto;C.S. (OS) No.2501/2011 Page 51 of 69
(vi) that the members of the VENDOR HUF have consented to the said sale and no member or any person has claimed any interest adverse to that of the VENDOR;
(vii) pending consummation of this agreement and till execution of sale deed, the VENDOR shall not deal with the said Property in any manner detrimental to the interest of the PURCHASER.
That the PURCHASER based on the representation, assurances and undertakings as made by the VENDOR and believing the same to be true, has agreed to purchase the said Property for the aforesaid consideration and to enter into this Agreement to sell.
7. Upon making the payment as aforesaid to the VENDOR and pending execution and registration of sale deed in favour of PURCHASER and notwithstanding Power of Attorney and other authorities granted by the VENDOR to the PURCHASER and/or its nominee as contemplated herein, the VENDOR hereby acknowledge that the PURCHASER shall be irrevocably entitle and authorized on its behalf to deal with the "said property" in all respects whatsoever, including without being limited to:
(a) to take all steps as may be necessary to be taken to pursue together with VENDOR proceedings for conversion of the said Property to Freehold status and thereafter to have the said property transferred, conveyed and mutated in the name of PURCHASER by valid registered Sale deed/Conveyance.
(b) To take all steps as may be necessary to be taken to deal with any party which has filed any proceedings against the said property in any Court or Tribunal.
(c) Without prejudice or derogation or generality of the foregoing, to enforce all rights agreed to be transferred to the PURCHASER as part of the said Property under this Agreement mentioned herein.C.S. (OS) No.2501/2011 Page 52 of 69
8. Without prejudice to the foregoing, the VENDOR shall remain bound to the execute and register a valid Sale Deed/Conveyance for the said Property in favour of the PURCHASER immediately on PURCHASER calling upon the VENDOR for the said purpose. Stamp duty and registration charges payable on any such Sale Deed/Conveyance for the Demised Premises in favour of the PURCHASER as well as transfer changes, if any, payable shall be borne by the PURCHASER.
9. That on execution of this Agreement the VENDOR shall not be left with any right, title or interest in the said Property, except the right to receive the payment from PURCHASER as per payment schedule.
10. That the VENDOR shall apply for all clearances, as may be required, to the requisite authorities having jurisdiction over the Property, for effectively transferring and conferring the title of the PURCHASER.
11. That for the purpose of execution of sale deed and/or obtaining necessary sanction and approvals the VENDOR shall execute a General Power of Attorney in favour of the nominee of the PURCHASER as and when called upon by the PURCHASER.
12. That the PURCHASER is authorized to assign and nominate all its rights under this agreement in favour of any person and the VENDOR shall be bound to perform all their obligations under this agreement to sell in favour of such nominee or assignee of the PURCHASER.
13. The VENDOR and CONFIRMING PARTY hereby agrees and convenants that they shall not do any act, deed or thing which in any manner shall cause any injury or reduce or diminish the rights of the PURCHASER on the property in question or in any manner dilatory reduce or diminish their right till the time of execution of the sale deed in favour of the PURCHASER or at any time thereafter. The VENDOR C.S. (OS) No.2501/2011 Page 53 of 69 hereby agrees to indemnify the PURCHASER against all or any such injury, loss or damages suffered by the PURCHASER due to any act, deed or thing of commission or omission done by the VENDOR or on its behalf.
14. That this agreement and terms thereof shall be final and binding on both the parties and shall take precedence over all other agreements, arrangements, understandings etc. signed and executed or otherwise arrived at between the parties.
15. That all the expenses with regard to the stamp duty etc. and other cause of expenses for registration of this Agreement and for sale/conveyance deed shall be borne by the PURCHASER.
16. That the execution of the General Power of Attorney in favour of the PURCHASER or its nominee will not absolve the VENDOR from performing her obligations and to sign and execute any document which may be required by the PURCHASER for perfecting its title on the property in question.
17. The VENDOR shall at the time of execution of the agreement hand over the original of all documents and photocopies of all other documents which are not in their possession duly signed and certified, of the said property and demised premises in its power and possession to the PURCHASER.
18. The CONFIRMING PARTIES hereby confirm that:
(a) the VENDOR is fully and exclusively competent and entitled to enter into this transaction of sale and transfer the said property in terms of this Agreement;
(b) they have absolutely no objection to the sale of the said property in terms of this Agreement for sale and are bound thereby;C.S. (OS) No.2501/2011 Page 54 of 69
(c) the sale to the PURCHASER in terms of this Agreement is in the best interest of the HUF and its members:
(d) The CONFIRMING PARTIES shall undertake and confirm at the request and cost of PURCHASER any and all deed(s) or document(s) as may be needed by the PURCHASER to more effectively conform title to the said property in its favour in future.
IN WITNESS WHEREOF the parties have signed and executed this agreement for sale at New Delhi, on the day, month and year first above mentioned.
WITNESSES :
Sd/-
1. VENDOR (BHAI MANJIT SINGH HUF) THROUGH ITS KARTA AND MANAGER
2. MRS. MAHEEP MANJIT SINGH Sd/-
PURCHASER M/S. SUNSHINE PVT.
LTD., THROUGH AUTHORISED REPRESENTATIVE/ DIRECTOR SH. ABHAY AGGARWAL CONFIRMING PARTIES C.S. (OS) No.2501/2011 Page 55 of 69 Sd/-
1. Mrs. Maheep Manjit Singh Sd/-
2. Mr. Vikramjit Singh Sd/-
3. Mr. Mohanjit Singh"
63. If one reads the entire agreement especially the emphasized portion court is left with no doubt that the vendor that is D-1 to D-4 are left with no right, title in the property in question on the execution of the agreement. The defendants have already received almost the entire sale consideration. Secondly, the irrevocable power of attorneys have been executed in favour of the nominees of the plaintiff and certain possession of the suit property has been transferred to the plaintiff and he has been given right not only to make additions, alterations and demolitions but most importantly, the "right to raise fresh constructions" which is sought to be done by way of the present application.
64. It is only when the defendants have tried to wriggle out of the aforesaid transaction on account of ulterior considerations and have taken dishonest stand that the amount of money which was paid on different dates preceding to the date of sale of the property was by way of loan that C.S. (OS) No.2501/2011 Page 56 of 69 the plaintiff approached the court. The stand of the defendants on the face of it is dishonest because Sections 91 and 92 of the Indian Evidence Act, 1872, lays down that when the document itself is reduced into writing, the contents of the document are to be read in evidence. Further, no evidence can be recorded to contradict the terms of the document except as envisaged in any of the provisos to Section 92. It is not the case of the defendants that its case falls in any specific proviso. Therefore, this is only a false and dishonest plea of the defendant that the document was not to be acted upon.
65. The defendant No.2, who is the executant of the document for and on behalf of defendant No.1, HUF, as karta of its HUF has admitted her signatures on the said document. Similarly, the signatures of the other two members of the HUF are also not in dispute and the statements of two of the members of the HUF have been recorded under Order X CPC where this fact has been admitted. When their statements under Order X were recorded none of the parties stated what has been stated in the WS or now during the course of arguments that the transaction was sham or not to be acted upon although this stand is not legally tenable. It was sought to be explained by the learned senior counsel that no question in C.S. (OS) No.2501/2011 Page 57 of 69 this regard was put to the witness or that they were not expected to disclose their defence at that stage.
66. I am not impressed by this argument at all because D-2 and D-3 are educated persons. D-2 is a business woman, therefore, they know what are the consequences of their signatures on document or what they are stating in court. Therefore, the only inference which can be drawn from the facts of the case and the defence taken by the defendants is that they are actuated to take this dishonest stand only on account of the fact that the value of the properties has gone up by leaps and bounds more so in respect of prime properties in area like Golf Link. The D-2 has herself admitted that the value of the property in her WS as Rs. 200 crores.
67. All the members of the HUF are educated people and especially defendant No.2, Mrs. Maheep Manjit Singh, is a business women understanding the language of English yet acting dishonestly, which propensity, in my view, deserves to be curbed with the heaviest possible hand at an appropriate stage, therefore, none of these judgments, in my view, are applicable to the facts of the present case.
68. I am tempted here to refer to the observations made by the apex court in some of the judgments with regard to the unscrupulous litigants C.S. (OS) No.2501/2011 Page 58 of 69 taking false and frivolous stand in property matters. These cases are Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through LRs.; 2012 (3) SCALE 550 where it has been observed as under:
"84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
69. Similarly, in Dilip v.State of UP & Ors.; (2010) 2 SCC 114, the Supreme Court observed as under:
"1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral Dart of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The C.S. (OS) No.2501/2011 Page 59 of 69 materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
70. Now, coming back to the facts of the present case. The defendant Nos.2 to 4 belong to exactly this breed of unscrupulous dishonest litigants who have shamelessly taken false and frivolous stand that despite the agreement to sell having been entered into by them with the plaintiff which is elaborate one and more in the nature of sale agreement itself and after having received 97% of the sale consideration and making the plaintiff deposit another 1.46 crores in the court, handing over possession, getting the plans sanctioned and applying for conversion of the leasehold rights into freehold rights, have turned turtle raising all and sundry defences to wriggle out of the agreement because value of the property C.S. (OS) No.2501/2011 Page 60 of 69 each day is ascending and according to the defendant No.2 herself has pegged the same at Rs.200 crores. This is a classic case of taking a defence which is not only dishonest, but trying to take advantage of the dilatory processes because of which the plaintiff's patience would get worn out and they are able to extract money. The court cannot permit such unscrupulous litigants to take advantage of this unfortunate situation which is existing in courts.
71. Relying on the judgment rendered in Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (dead) through LRs.; 2004 8 SCC 614, Mr.Mata has contended that the right to construct property on the basis of possession of the suit property cannot be granted till the time the specific performance of agreement to sell is allowed in favour of the plaintiff. He has stated that Section 53A of the Transfer of Property Act is only a shield and not a sword. Since in the instant case, agreement to sell coupled with transfer of possession is set up by the plaintiff in the suit for specific performance, therefore, at best it can be used as a shield, while as C.S. (OS) No.2501/2011 Page 61 of 69 by seeking a right to construct, the plaintiff is essentially using the said document as a sword and the same cannot be allowed.
72. I do not agree with this contention of the learned counsel for the defendants as this judgment is not applicable to the facts of the present case. Although there is no dispute about the proposition that agreement to sell coupled with transfer of possession agreed to Section 53A can be used as a shield and not as a sword, but then a distinction has to be made from case to case basis.
73. This judgment has no applicability in the present case. The vendor has no right, title or interest in the property left after signing of the agreement. The plaintiff has been given the right to demolition, make additions/alterations and even right to construct. The old property has been demolished, plans had been sanctioned which can be got revalidated. The contention of Mr. Sibal that these plans were sanctioned on the basis of POA of Joshi and Kutty which stands revoked is of no consequence. Same is the case with regard to the POA of Abhay Aggarwal, Director of the plaintiff/company whose POA has been revoked by D-2 in August, 2011 or so. That POA was also irrevocable C.S. (OS) No.2501/2011 Page 62 of 69 because it was for consideration having been paid by the plaintiff and there are judgments galore that such attorneys cannot be revoked. The plaintiff has already been given right to represent the defendants under the agreement for enjoyment of the property, therefore, in my view, revocation is of no consequence and the plaintiff can authorize any person to represent it or the defendants for the purpose of raising construction. So far as L&DO and NDMC is concerned the reason for this is that under the agreement the plaintiff has been given the right to get the plan sanctioned and to take all other ancillary steps which may be necessary for the enjoyment of the property.
74. Mr. Sibal, the learned counsel for the defendant has also drawn the attention of the court to certain averments made in the replication to contend that the case of the plaintiff in replication was that the power of attorney in favour of Joshi and Kutty was pre-dated and thus this establishes that the said document itself was forged and fabricated and once this is the stand of the defendant themselves, it could not be made basis of seeking right to construction.
C.S. (OS) No.2501/2011 Page 63 of 69
75. So far as this submission is concerned, firstly replication is not a part of the pleading and, therefore, it cannot be taken into consideration for the purpose of canvassing the point as has been sought to be urged. In any case, the court is not granting or examining right to construction of the plaintiff in the light of this power of attorney. The court is examining the factum of permission to raise construction in the light of the rights and obligations of the parties in terms of the agreement to sell dated 29.07.2005. Therefore, this submission of Mr. Sibal, in my view, does not merit any consideration.
76. The next submission which was made by Mr. Sibal was that the defendant had executed agreement to sell transferring the possession of the suit property in favour of the company known as Regent Square where also Burmans had some interest. The said agreement was also executed in the nature of a security as was done in the instant case. Therefore, this agreement dated 29.07.2005 is not an agreement of sale but is only a sham document. This submission also does not merit any consideration. As a matter of fact, this argument of Mr. Sibal clearly shows that the defendants are not trustworthy. If one reads agreement to C.S. (OS) No.2501/2011 Page 64 of 69 sell, they assure the vendee that the property is not mortgaged to anybody or no agreement to sell etc. has been executed in respect of the property in favour of any person other than the plaintiff while on the date when the agreement to sell was entered into with the plaintiff, there was also an agreement on the similar lines with the Regent Square. This argument is also contradictory to Sections 91 and 92 of the Evidence Act, 1872 which clearly lays down that once the document is reduced into writing with regard to disposition of the property, then it is only the document which can be looked into. Therefore, the transaction which the defendant entered into with Regent Square has no meaning for consideration. CONCLUSION:
77. In the light of the aforesaid discussion, the following conclusion is arrived at:
i) That the defendants are unscrupulous and dishonest litigants and taking advantage of the dilatory processes of law and, therefore, they have taken every possible objection to the agreement to sell to thwart the prayer of the plaintiff.C.S. (OS) No.2501/2011 Page 65 of 69
ii) The plaintiff has been able to establish not only a prima facie case, but more than a prima facie case for grant of right to construction on the touchstone of Dorab Ji's case (supra). This is on account of the fact that the agreement to sell takes note of the previous transactions which had taken place between the plaintiff and the defendants either directly or for and on behalf of defendants and the details thereof are reflected in the agreement to sell itself. This also takes note of the fact that a transaction had taken place with Regent Square.
iii) On the execution of the agreement to sell which is done at the instance of the defendants themselves as vendors and which is accepted by the plaintiff as a vendee, the right title or interest of the defendant Nos.1 to 4 in the suit property has ceased to exist and the right of the plaintiff in the said property has been created for the full enjoyment of the same as if he is the owner and for this purpose he has been permitted to demolish, make alterations, additions in the structure or raise new structure and apply to the competent authorities for obtaining no objection or sanctioned plan etc. The defendants themselves have C.S. (OS) No.2501/2011 Page 66 of 69 admitted that the plaintiff was permitted to carry additions and alterations in the agreement which also mentions of raising new construction.
iv) A reading of the agreement to sell which is running into details clearly shows that the agreement to sell is in the nature of a sale document except that the title of the plaintiff was to be perfected by the defendants by firstly getting the property converted into freehold and then transferring the same to the plaintiff within fifteen days of such conversion.
v) The balance of convenience is in favour of the plaintiff inasmuch as they are in possession of the suit property for the last nearly nine years in an uninterrupted manner, the plan of the building has already been sanctioned which is valid till 15.06.2015 and can be got revalidated.
vi) The plaintiff will suffer an irreparable loss inasmuch as they will not be able to enjoy the property despite the fact that they have furnished undertaking to the court that they will not claim any special equities on account of construction having been raised by them. Accordingly, plaintiff is permitted to raise construction at the suit property in accordance with the sanctioned plan.C.S. (OS) No.2501/2011 Page 67 of 69
vii) So far as the L&DO and NDMC are concerned, in terms of the orders passed by the Division Bench, they shall entertain the application on behalf of any authorized representative of the plaintiff as if it is given by the owner of the suit property and grant them necessary permissions, extensions, revalidation of the plans etc. for the purpose of raising construction.
viii) The L&DO and NDMC are restrained from acting in any manner whatsoever on the basis of any representation, letter, document purported to have been given by the defendants or their attorneys or agents which may cause any obstruction in the process of taking a decision on sanctioning of plan or no objection certificate.
ix) The plaintiff shall raise construction on the suit property in accordance with the sanctioned plan and to the extent permissible by the L&DO and they shall further furnish a fresh undertaking to the court that the construction will be raised by the plaintiff in accordance with the sanction plan and they shall not claim any special equity or damages on account of C.S. (OS) No.2501/2011 Page 68 of 69 the construction having been raised by them on the suit property in the event of the suit being ultimately decided against them.
x) The undertaking shall also contain a condition that in the event of suit being decided against them, if the court directs them to remove or demolish the superstructure, the same shall be done.
78. With these observations, the application is allowed.
79. Normally, while passing an ad interim order, the court would have observed that expression of any opinion made therein shall not be treated as an expression on merits of the case. However and deliberately, I am refraining from making such an observation on account of the fact that the court has after examining the documents formed an opinion that the defendants are unscrupulous and dishonest litigants and it is for the successor court to form its own view on the basis of this order with regard to the conduct of the defendants.
V.K. SHALI, J.
MAY 20, 2015 dm C.S. (OS) No.2501/2011 Page 69 of 69