Delhi High Court
Vera Ruth Rego Gonsalves vs Manider Pal Singh Nee Maninder Pal And ... on 19 December, 2014
Author: G.P. Mittal
Bench: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 19th December, 2014
+ CS (OS) NO. 900/ 2010
VERA RUTH REGO GONSALVES ..... Plaintiff
Through: Mr. Surendra Desai, Senior Advocate
with Mr. Rakesh Kumar Garg,
Advocate
versus
MANIDER PAL SINGH NEE MANINDER PAL AND ORS
..... Defendants
Through: Mr. Vikas Mahajan, Advocate with
Mr. Rohan Gupta, Advocate and
Mr. S.S. Rai, Advocate for D-1 and D-
2
Mr. R.P. Sharma, Advocate for D-3
and D-5.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
I.A. NO. 15449/ 2010 (Order XXXIX Rule 2A CPC) in CS (OS) NO. 900/
2010
1. This application under Order XXXIX Rule 2A read with Section 151
of the Code of Civil Procedure, 1908 has been filed by the Plaintiff/
Applicant for punishing Respondents Ms. Joyce Makhani, Mr. Vinay
Chhabra and Mr. Jerry Makhani for violating the status quo order dated 11.05.2010 and for attachment of their property. I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 1 of 10
2. The suit (CS (OS) 900/ 2010) for declaration, pre-emption, permanent injunction, partition and possession was filed by the Plaintiff against the Defendants with the averments that Late Mohinder Kaur, mother of Dr. Maninder Pal Singh (Defendant no. 1), Ms. Inderjeet Kaur (Defendant no. 2) and Late Dr. J.S. Makhani was the owner of Property No. 9/ 21, East Patel Nagar, New Delhi by virtue of a Will dated 08.12.1986. Defendants no. 1, 2 and Late Dr. J.S. Makhani thus, became the co-owners of undivided 1/3rd each share in the said property upon the death of their mother.
3. It is the case of the Plaintiff that the Plaintiff was a Roman Catholic by birth and religion and Defendant no. 1 before his marriage to the Plaintiff was a Sikh by religion. It is averred that Defendant no. 1 at the time of marriage gave a solemn declaration before the Archbishop of Goa declaring his unconditional consent and permission to baptise the children if born to the couple, thus, making himself bound by the Concordata and provisions of Portuguese Civil Code.
4. The Plaintiff got married to Defendant no. 1 on 30.10.1982. She was of Goan origin and the marriage between the Plaintiff and Defendant no.1 was solemnised in the Basilica (Church) of St. Francis Xavier in old Goa according to Christian rites and ceremonies. The marriage I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 2 of 10 was also registered under the Portuguese Law applicable in Goa by following the law established by Portuguese Civil Code. Two children were born out of the wedlock of the parties on 16.07.1983 and 10.12.1986.
5. The marriage between the Plaintiff and Defendant no.1 was dissolved by a decree of divorce and annulment of marriage dated 21.09.2004 under Article 4 (4) of the Portuguese Family Law of Divorce. It is averred that as per Article 1098 of the Portuguese Civil Code, the Plaintiff was entitled to half share in the assets of her husband and therefore, she became entitled to half undivided share from 1/3rd undivided share belonging to Defendant no. 1 in the earlier said property.
6. According to the Plaintiff, the Defendants were contemplating to sell the suit property and Defendants no. 1 and 2 had also entered into an Agreement to Sell with Defendants no. 8 and 9 for the same wherein they agreed to sell their 2/3rd share in the suit property to Defendants no. 8 and 9. Plaintiff also came to know that Defendants no. 3 to 7 who are the legal heirs being the widow and children of Late Dr. J.S. Makhani also wanted to sell their undivided share in the suit property to a stranger. Thus, the Plaintiff sought a decree of declaration that she I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 3 of 10 was entitled to 1/6th share in the suit property and a decree of pre- emption directing that Defendants no. 1 to 7 sell their undivided shares to the Plaintiff as per their own valuation in the Agreement to Sell after adjusting the Plaintiff's share therein. It is averred that by an order dated 11.05.2010 (in I.A. No. 6137/ 2010), this Court had directed all the Defendants to maintain status quo with respect to the title and possession of the suit property till the next date of hearing i.e. 30.07.2010. It is stated that the said order is still in force.
7. In the instant application, the Plaintiff has alleged that although the order dated 11.05.2010 was communicated to the Respondents by a letter of even date; Respondents no. 1, 2 and 3 (i.e. Defendants no. 3, 9 and 6) respectively received the letter dated 11.05.2010 along with the paper book in the month of May itself. The copies of the IAs. 6137- 6139/ 2010 along with supporting Affidavits, plaint and documents were also sent to the Defendants by registered post on 16.06.2010. The grievance of the Plaintiff/ Applicant is that despite having received the status quo order dated 11.05.2010, Defendants no. 3 and 9 entered into an Agreement to Sell and Purchase dated 16.09.2010 whereby Defendant no. 3 (Respondent no. 1) agreed to sell her 1/3rd undivided share in the suit property to Defendant no. 9 (Respondent I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 4 of 10 no. 2) for a sum of Rs.22 lakhs. It is urged that Defendant no. 3 also handed over the possession of certain portions of the suit property i.e. the basement floor, ground floor, terrace and roof rights to Defendant no. 9. Defendant no. 3 also accepted Rs. 17 lakhs on 01.09.2010 towards part of sale consideration and adjusted the sum of Rs. 5 lakhs which had already been received on 01.05.2007. It is the case of the Plaintiff that Defendant no. 9 had entered into the earlier said Agreement to Sell with full knowledge of the order dated 11.05.2010 in collusion with Defendant no. 3. It is stated that the General Power of Attorney (GPA) was witnessed by Defendant no. 6 (Respondent no. 3 in the application) who was also well aware of the order dated 11.05.2010 and of the Agreement to Sell dated 16.09.2010. It is stated that in the Agreement to Sell dated 16.09.2010, it has also been falsely averred that 1/3rd undivided share in the suit property is free from any liability and there is no legal defect in Defendant no. 3's (Respondent no. 1's) title which is also in violation of the order dated 11.05.2010.
8. Defendants no. 3 and 9 have filed a joint reply to the present application wherein the Agreement to Sell dated 16.09.2010, the GPA and certain averments have not been denied or disputed by them rather it is stated that Defendant no. 3 had in fact agreed to sell her 1/3rd I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 5 of 10 undivided share in the suit property to Defendant no. 9. It is stated that the Agreement to Sell and the GPA do not amount to creating any title in the property and that Defendant no. 3 is still in possession of the suit property.
9. During the hearing of the application, the learned counsel for the Plaintiff/Applicant has taken me through the various Clauses of the Agreement to Sell dated 16.09.2010. Some of the paragraphs of the Agreement to Sell, which are relevant to decide the controversy between the parties, are extracted hereunder:
"THIS AGREEMENT TO SELL AND PURCHASE is executed at Delhi on this 16-09-2010 by Smt. Joycee Satinder Makhani W/o Late Shri Joginder Singh Makhani R/o No.9/21, East Patel Nagar, New Delhi-110008, hereinafter called the First Party.
IN FAVOUR OF Shri Vinay Chhabra S/o Late Shri D.R. Chhabra R/o No.6/16, East Patel Nagar, New Delhi-110008, hereinafter called the Second party.
.......
........
And whereas the Ist party has agreed to sell the lease-hold rights with structure thereon in respect of built up 1/3 rd undivided share of property bearing No.9/21 constructed on 1/3rd undivided share of piece of land measuring 200 sq.yds., with terrace roof rights, with superstructure, situated in the abadi of East Patel Nagar, New Delhi-110008, for her bonafide I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 6 of 10 needs and requirements with fittings and fixtures, with water and electric connection in working order and the second party has agreed to purchase the same for a sum of Rs.22,00,000/- (Rupees Twenty Two Lakh Only) on the following agreed terms and conditions:
That in consideration of the above amount which has been received previously by the first party from the second party as a full and final settlement by means of separate receipt, as per details given below:
1. Received through Pay Order as Rs.5,00,000/-
No.110558 dated 1-5-2007 Issued by Punjab National Bank, Branch Shanker Road, New Delhi.
2. Received through cheque as Rs.17,00,000/-
No.198758 dated 1-9-2010 Drawn on Punjab National Bank Branch Fire Station, Rajinder Nagar, New Delhi.
==========
Total Rs.22,00,000/-
==========
And nothing remains due out of the sale price.
When the Sale Deeds are permissible then the Ist party or her general attorney shall sell and get the sale deed registered in favour of the second party or in the name of his nominee/nominees.
1. The vacant and peaceful possession of the portion of basement floor and ground floor and terrace roof rights of first floor out of the said property has been given by the first party to the second party vide this Agreement to Sell and proprietary/symbolic/ownership possession of first floor out of I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 7 of 10 the above mentioned property under sale has been transferred to the second party by the first party which is occupied by the tenant/s and on the basis of the Agreement to Sell the second party has fully empowered to collect the rent from the tenant/s or to sign and execute fresh Lease Deed/Supplementary Lease Deed and is also fully empowered to get vacated the aforesaid premises from the tenant/s or deal in all respect with the tenant/s as owner."
10. Thus, it is evident that an Agreement to Sell was executed on 16.09.2010 by Defendant no. 3 in favour of Defendant no. 9. Similarly, the GPA dated 16.09.2010 has been executed by Defendant no. 3 in favour of Respondent no. 4 (Respondent no. 4 is not a party to the suit and the application against him is not pressed by the Plaintiff). Very wide powers were given by Defendant no. 3 in favour of Puneet Chhabra to manage, sell, mortgage and gift her 1/3rd share in Property No. 9/ 21, East Patel Nagar, New Delhi. Relying on the judgment in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 SCC 656, the learned counsel for Respondents no. 1 to 3 (Defendants no. 3, 9 and 6 respectively) have urged that Agreement to Sell and General Power of Attorney do not convey any title nor do they amount to transferring or creating any interest in the suit property. Thus, it is urged that the Respondents cannot be said to have violated the status quo order dated 11.05.2010. On the other hand, the learned counsel for the Plaintiff/ Applicant has urged that I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 8 of 10 there may be some defects in passing title by virtue of Agreement to Sell or GPA, yet the Respondents have done whatever was in their power to violate the order dated 11.05.2010 and hence, the Respondents cannot be permitted to contend that since legal transfer did not take place by Agreement to Sell/ GPA, it will not amount to violation of the status quo order.
11. I am unable to agree with the submissions raised on behalf of the Respondents. I have already extracted above various Clauses of the Agreement to Sell and GPA and there is no manner of doubt that Defendant no. 3 did transfer her 1/3rd share and also handed over possession of the various portions of the suit property in favour of Defendant no. 9 (Respondent no. 2). Hence, I accordingly hold Respondents no. 1 and 2 (who agreed to sell and purchase) as well as Respondent no. 3 who in spite of being aware of the order dated 11.05.2010 agreed to be a witness to the violating GPA guilty of disobeying/ committing breach of status quo order dated 11.05.2010.
12. Application is hereby allowed.
13. Property, subject matter of the Agreement to Sell is attached. I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 9 of 10
14. For hearing the respondents on quantum of sentence to be awarded to them, list on 08.01.2015.
(G.P. MITTAL) JUDGE DECEMBER 19, 2014 pst I.A. No. 15449/ 2010 in CS (OS) No. 900/ 2010 Page 10 of 10