Delhi District Court
Smt. Shakuntala Devi vs Mca No.47/2022 on 14 March, 2023
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010144162019
MCA No.47 of 2022
In the matter of:
1. Smt. Shakuntala Devi
W/o late Sh. Ram Gopal Sharma,
R/o H. No.1/10946, Gali No.7,
Subhash Park, Shahdara, Delhi.
2. Smt. Vandana Bhardwaj
W/o Sh. Chandra Shekhar Bhardwaj,
R/o H. No.105, Yamuna Vihar, Delhi.
3. Smt. Vijay Sharma,
W/o Sh. Sunil Kumar Sharma,
R/o H. No.1/10946, Gali No.7,
Subhash Park, Shahdara, Delhi.
4. Smt. Ratna Sharma,
W/o Sh. Sudhir Sharma,
R/o H. No.1/10946, Gali No.7,
Subhash Park, Shahdara, Delhi.
5. Sh. Sushil Kumar,
S/o late Sh. Ram Gopal Sharma,
R/o H. No.1/10946, Gali No.7,
Subhash Park, Shahdara, Delhi. .......Appellants/defendants.
VERSUS
MCA No.47/2022
Page no.1 of 17
1. Sh. Gajraj Singh
S/o late Sh. Dal Singh,
R/o Village Jhatikra,
New Delhi43.
2. Sh. Anil Kumar,
S/o late Sh. Jagannath,
R/o Tyagi Mohalla,
VPO Jahtikra, New Delhi43. ......Respondents/plaintiffs.
Date of Filing : 01.12.2022
Date of Arguments : 04.03.2023
Date of Decision : 14.03.2023
JUDGMENT
1. Appellants are aggrieved of the order dated 15.09.2022 passed by the Court of Ms. Vaishali Singh, Ld. Civil Judge03, South West, Dwarka Courts, New Delhi in the case bearing Civil Suit No.1024/22 titled as Gajraj Singh & Anr v. Shakuntala Devi & Ors. whereby and whereunder Ld. Trial Court had allowed the application U/o 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 (in short CPC) which was preferred by the plaintiffs in the said suit.
2. For the sake of convenience the parties shall be denoted as per their nomenclature before Ld. Trial Court i.e. appellants as defendants and respondents as plaintiffs.
3. Notice of the appeal was directed upon the respondents who had appeared and contested the appeal. Reply was filed by the plaintiffs.
MCA No.47/2022Page no.2 of 17
4. I note herein that there is an application U/o 41 Rule 3A r/w Section 151 of the CPC and Section 5 of the Limitation Act for condonation of delay of 42 days in filing the appeal.
4.1 TCR was called for and I have perused the same.
5. Heard on the said application as well. Needless to say that first of all application for condonation of delay shall be disposed of.
6. Before dealing with the application seeking condonation of delay, it would be trite to just have a look at the facts setforth in the plaint.
6.1 Now the plaintiffs have preferred a suit for permanent injunction contending that the plaintiffs and one Hariom Bhardwaj were working together in the filed of real estate with Sh. Ram Gopal Sharma who was husband of defendant no.1 and father of defendant no.2 and 5 and father in law of defendant no.3 and 4. It is further stated that defendant nos.1 to 4 were Bhumidars of the land bearing Khasra No.352/2 min (50), 563 (09), 564 (0
11), total measuring 6 Bigha situated in the extended Lal Dora Abadi of village Bijwasan, New Delhi.
6.2 It is further stated that Sh. Ram Gopal Sharma was in dire need of money, hence, he negotiated with Hariom Bhardwaj who in turn asked the plaintiff no.2 to arrange the money. Plaintiff no.2 after withdrawing the amount from his mother's account, paid Rs.40 lakh to Ram Gopal Sharma and MCA No.47/2022 Page no.3 of 17 to the defendant Nos.1 to 4 through Hariom Bhardwaj and again paid Rs.5 lakh on 23.09.2013 and 26.09.2013 to Ram Gopal Sharma. Deceased Sh. Ram Gopal Sharma had assured the plaintiff no.2 that he will return the money as and when any of his property will be sold. Subsequently, Hariom Bhardwaj and plaintiffs asked the plaintiff no.1 to purchase the agricultural land of Ram Gopal situated at village Badheri Rajutan, TehRurkee, Distt. Haridwar, Uttrakhand and plaintiff no.1 got ready to purchase the same and entered into an Agreement to Sell dated 10.07.2014 and paid Rs.1 Crore but thereafter without the knowledge of the plaintiffs, sold the aforesaid land to other person.
6.3 It was further informed by deceased Hariom Bhardwaj and Ram Gopal Sharma to plaintiff no.1 that said amount of Rs.1 Crore would be returned after disposing of the suit property and Sh. Ram Gopal Sharma and the defendant Nos.1 to 4 had executed registered GPA in favour of deceased Hariom Bhardwaj dated 10.11.2017.
6.4 It is further stated that some portion of the suit property on front side was encroached upon by some villagers and for removal of which help of the plaintiffs was sought. It is also stated that Ram Gopal Sharma was under
obligation to return the amount of Rs.1,50,00,000/ to the plaintiffs and as such Ram Gopal Sharma in lieu of repayment of Rs.1,50,00,000/ had hypothecated the suit property to the plaintiffs on 03.06.2017 and the defendants also handed over the vacant peaceful physical possession of the suit property to the plaintiffs.
6.5 After taking physical possession of the suit property, the MCA No.47/2022 Page no.4 of 17 plaintiffs had deputed their guard/watchmen in the suit property. Plaintiffs paid salary of the guard and infact Rs.37 lakh was paid by the plaintiffs to the watchman. It was also stated in the Hypothecation Agreement that the suit property will be sold with the permission of the plaintiffs and after repayment of the entire agreed amount the plaintiffs shall vacate the suit property. Sh.
Ram Gopal Sharma had expired in the year 2020 and Hariom Bhardwaj also expired on 13.03.2021.
6.6 It is further stated that subsequently some persons came to the suit property on 30.07.2022 and started putting some heavy machines and forcibly entered the suit property and the matter was reported to the police and the suit was filed seeking following reliefs:
(a)Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants their agents, associates, servants, assignees, representatives etc from forcibly dispossess the plaintiffs from the suit property measuring 6000 sq yards out of Khasra No.352/2 (50), 563 (09), 564 (011) situated in the area of village Bijwasan, New Delhi more specifically shown in red colour in the attached site plan.
6.7 Certain documents have been filed along with suit. Most important document to my mind is hypothecation agreement which I am quoting as hereunder:
HYPOTHECATION AGREEMENT This Hypothecation Agreement is executed on 3 rd June, 2017 between Smt. Shakuntala Devi w/o Sh. Ram Gopal Sharma, Smt. Vijay Sharma w/o Sunil Kumar Sharma, Smt. Ratna Sharma w/o Sudhir Sharma, Sushil Kumar s/o late Ram Gopal Sharma all R/o H. No.1/10946, Gali No.7, Subhash Park, MCA No.47/2022 Page no.5 of 17 Shahadara, Delhi and Smt. Vandana Bhardwaj w/o Sh. Chandra Shekhar Bhardwaj, R/o H. No.105, Yamuna Vihar, Delhi are the recorded bhumidars of property/land bearing Khasra no.352/2 min measuring 5 Bigha 0 biswas and khasra no.563 (09), 564 (011) situated in the extended abadi of village Bijwasan, New Delhi comprising super structure multistoried building known as Dalmia Vihar, Bijwasan, total measuring 6 bigha AND Sh. Anil Kumar s/o late Jagannath, R/o Tyagi Mohalla, VPO Jhatikara, New Delhi, Shri Gajraj Tyagi, s/o Late Dal Chand, R/o Village Jhatika, New Delhi in lieu of the following circumstances, In the month of May 2013, Sh. Ram Gopal Sharma came in dire need of money, hence he negotiated with Sh. Hariom Bhardwaj, who asked Sh. Anil Kumar to arrange the money. Anil Kumar on 27.05.2013, after withdrawing the amount from his mothers account, paid Rs.40,00,000/ to Sh. Ram Gopal Sharma and the executants through Hariom Bhardwaj and again paid Rs.500000/ on 23.09.2013 and 26.09.2013 to Ram Gopal Sharma. Ram Gopal Sharma assured Anil Kumar that he will return the money as and when any of his property will be sold.
Sh. Hariom Bhardwaj being the family friend of Sh. Ram Gopal Sharma asked Gajraj Singh to purchase the agricultural land of Ram Gopal situated at village Badheri Rajputan, Teh Rurkee, DisttHaridwar, Uttrakhand, Gajraj Singh became ready to purchase the same and entered into agreement to sell dated 10.07.2014 and paid to Rs.1,00,00,000/ (Rupees One Crore Only), but thereafter without the knowledge of Sh. Gajraj Singh tried to sell the aforesaid land to other person. When Gajraj Singh came to know about the fraud immediately contacted Hariom Bhardwaj and Ram Gopal Sharma on which both assured Sh. Ram Gopal Sharma and executants in lieu of payment of Rs.1,50,00,000/ hypothecating property/land bearing Khasra no.352/2 min measuring 5 bigha 0 biswas and khasra no.563 (09), 564 (011) situated in the extended abadi of village Bijwasan, New Delhi comprising super structure multistories building known as Dalmia Vihar, Bijwasan, total measuring 6 bigha, as a collateral property and the executants are also handing over the vacant, peaceful physical possession of the MCA No.47/2022 Page no.6 of 17 aforesaid property to Sh. Anil Kumar and Sh. Gajraj Singh. The original Hypothecation Agreement shall be kept with Hariom Bhardwaj.
It is relevant to mention here that some portion of the property on front side is encroached upon by some villagers and are not ready to vacate the same. Sh. Anil Kumar & Sh. Gajraj Singh shall get remove the encroachments from the property under Hypothecation and make it in habitable condition. The expenses of removing encroachment and other work in the property shall be born and payable by the executants at the time of redemption of the mortgae/hypothecation. It is agreed between both the parties to the agreement that above mentioned amount of Anil Kumar and Gajraj Singh i.e. Rs.1,50,00,000/ and amount of expenses shall be paid at the time of sale of the phothecated property and the sale of the same shall be with the permission of Sh. Gajraj Singh and Anil Kumar and both shall vacate the hypothecated property after receiving the above mentioned amount and handedover the vacant peaceful possession of the hypothecated property to th executants.
6.8 Again relevant to note herein that the said hypothecation agreement is an unregistered document andt only a notarized document.
6.9 Now further perusal of the record reveals that Written Statement was filed by the defendants. Stand taken by the defendants was that the suit is not maintainable and is liable to be dismissed, plaintiffs have no cause of action to file the present suit, plaintiffs have no right, title, interest or possession of the suit property. Further, plaintiffs have no locus standi to file the present suit. It is stated that Ram Gopal Sharma had not received any money, no hypothecation agreement was executed as alleged. It is also stated that the defendants no.1 to 4 have already entered into registered Agreement dated 18.01.2019 with third party M/s T3 Home Developers Pvt Ltd for development of the suit land into residential group housing project and said MCA No.47/2022 Page no.7 of 17 process is already over. Plaintiffs are stated to be completely stranger to the suit property. It is stated that alternative remedy was to file the suit for recovery of money. It is also alleged that the plaintiffs have created false Agreement to Sell dated 10.07.2014 and Hypothecation Agreement dated 03.06.2017. Case which has been setforth by the plaintiffs regarding Ram Gopal Sharma taking any loan and execution of any agreement to sell or otherwise any amount was stated to be completely false.
7. Ld. Trial Court after hearing arguments in terms of order dated 15.09.2022 had disposed of the application U/o39 Rule 1 & 2 CPC. Aggrieved against the said order, the instant appeal has been filed.
8. I have heard the arguments advanced by Sh. Sandeep Chaudhary, Ld counsel for the appellants/defendants and Sh. Naveen Tyagi, Ld counsel for the respondents/plaintiffs.
9. First of all coming to the application for condonation of delay. In the application it is stated that delay was on account of the fact that the defendants had contacted the sons of Hariom Bhardwaj who had assured the defendants that the matter would be settled and subsequently husband of defendant no.2 namely Chandra Shekhar Sharma had undergone bypass surgery on 25.10.2022 and was discharged on 30.10.2022 and thereafter hoping that the matter would be settled by indulgence of sons of Hari Om Bhardwaj, hence, delay of 42 days had occurred. Reply of the application has not been filed.
MCA No.47/2022Page no.8 of 17 9.1 I note herein that the delay is not significant or which speaks of the recalcitrant/malafide attitude of the defendants/appellants. It is not that the defendants/appellants had slept over their rights. The medical record is also attached herewith.
10. Having regard to the submissions made by Ld counsel for the parties and keeping in view the fact that the matter should always be decided on merits rather than on technicalities lest it keeps the litigation sword hanging, application seeking condonation of delay is allowed, subject to cost of Rs.10,000/ upon the appellants.
11. It is trite that at the time of disposal of application under Order XXXIX Rule 1 & 2 CPC, the trinity of principles which have to be considered are : Prima facie case, balance of convenience and irreparable loss and injury are required to be satisfied. In simpler words upon the said touchstone or anvil the case of the parties have to be evaluated.
12. For the sake of convenience observations made by Ld. Trial Court are being quoted as hereunder:
5.Before adverting to the merits of the present application, it would be aptto briefly recapitulate the guiding principles pertaining to grant of temporaryinjunction. The guiding principles with respect to grant of temporaryprohibitory injunction were laid down by the Hon'ble Supreme Courtof India in Seema Arshad Zaheer and Ors. v. MunicipalCorporation of Greater Mumbai and Ors. [(2006) 5 SCC 282]. TheHon'ble Court has observed as under:
"The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: i) existence of a prima facie case as pleaded, MCA No.47/2022 Page no.9 of 17 necessitating protection of the plaintiff's rights by issue of a temporary injunction; ii) when the need for protection of the plaintiff's right is compared with or weighed against the need for protection of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."
6.In the present case, plaintiffs have placed on record salary slip of security guard Tula Ram from June 2017 to August 2022. Further, apart from photo copies of GPAs by defendant no. 1 to 4 in favour of Hariom Bharadwajand Hypothecation agreement dated 03.06.2017 by the defendants in favour ofthe plaintiffs, plaintiffs have also placed the original on record. On the contrary, defendants have not placed any document to show that they are in possession of the suit property. Defendants have placed on record copies of agreements entered into between them and M/S T3 Home Developers Private Limited, who is not a party in the present suit. Therefore, plaintiffs have been successful in showing a prima facie case in their favour.
7.In the case of Gujrat Bottling Co. Ltd. v. Coca Cola Co. reported in[(1995) 5 SCC 545], the Hon'ble Supreme Court, while discussing the factors to be considered by the Courts in exercise of the discretion under Order 39 Rules 1 & 2 CPC, has observed as follows:
"The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests:
(i) Whether the plaintiff has a prima facie case;
(ii) Whether the balance of convenience is in favour of the plaintiff;
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain ill they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that MCA No.47/2022 Page no.10 of 17 uncertainly could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainly were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising exercising his own legal right for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the un certainly were resolved in his favour at the trial."
8.In the instant case, balance of convenience is also heavily titled in favour of the plaintiff as he has shown himself to be in possession and has also spent considerable money on the suit property as well as to protect his possession and in case he was not protected from forcible dispossession, grave,irremediable harm was likely to ensue, as dispossession would prejudicially affect the plaintiff. Hence, I deem it fit to allow the application for interim injunction.
9.Defendants, their agents, servants and associates are hereby injuncted from illegally and forcibly dispossessing the plaintiff from the suit property i.e. admeasuring 6000 sq. yards out of Khasra Number 352/2(50), 563 (09) and 564 (011) situated in the area of Village Bijwasan, NewDelhi as shown in the site plan filed by the plaintiffs till final disposal of the suit.
10.Before parting, I would however like to clarify that all observations made in this Order are in the context of a prima facie view and nothing stated herein should be construed as a final expression of opinion on the merits of the dispute or veracity of the documents in the present suit. Nothing stated herein should be read to prejudice the claims and contentions of the parties in the trial of the suit.
12.1 I am of the considered view that Ld Trial Court had perversely disposed of the application U/o 39 Rule 1 & 2 CPC without taking note of the facts of the case in the correct and legal perspective. Owing to the said facts MCA No.47/2022 Page no.11 of 17 the impugned order has been passed which just takes into account one fact that the plaintiffs have relied upon the salary slip of Tula Ram guard/Chowkidar from June 2017 till August 2022 and there is also one Hypothecation Agreement dated 03.06.2017 by the defendants in favour of the plaintiffs. The Ld. Trial Court ought to have first of all evaluated the legal validity of the said agreement dated 03.06.2017 as well as also by objectively seen the so called salary slips relied upon by the plaintiffs. The stand of the defendants vizaviz said agreement ought to have been dealt with. Ld. Trial Court had completely given amiss to all such factors or completely glossed over the same.
12.2 Now coming to the aspect of the prima facie case, plaintiff's case is that a sum of Rs.1,50,00,000/ was due against deceased Ram Gopal Sharma and said Ram Gopal Sharma had executed a hypothecation agreement dated 03.06.2017 - the defendants had executed the said agreement.
First of all the said Hypothecation Agreement is an unregistered document. I have already extracted the contents thereof. Relevant to note herein that the said agreement is not witnessed by anyone. So much so Ram Gopal Sharma had also not signed said agreement neither Hariom Bhardwaj had signed the said agreement. It is important to note herein that both of them have expired. Ideally if the dues of Ram Gopal Sharma or his liabilities during his life time were being secured by way of hypothecation agreement and Hariom Bhardwaj who is also conspicuously involved in all the deals they would have signed on the said agreement. The defendants have denied execution of the same. It is also not on any stamp paper or any estamp paper attached with the same. The factum of handing over of possession therein is noted. Curiously the total amount which was sought to be secured is Rs.1.5 MCA No.47/2022 Page no.12 of 17 Crores and for the said purpose the plaintiffs assert that they have spent Rs.37 lakh towards salary of the guards. Delving further on this aspect the said hypothecation agreement being unregistered and unstamped no right or interest in the property arises by virtue of said agreement. Neither any charge, lien or the factum of having the possession can be recognized owing to the facts. The plaintiffs cannot urge that they have any right over the suit property by virtue of said hypothecation agreement or claim that the possession of the property was with them or handed over by virtue of said agreement. If any such proposition is accepted it would negate the provisions of Registration Act completely nugatory. In absence thereof the plaintiff cannot claim any right or seek remedy of breach thereof by filing a suit for injunction. Thus, plaintiff has no prima facie case at all on the basis of said agreement.
12.3 Secondly so called guard receipts are only vouchers which have been placed on record. Authenticity of said vouchers is itself in doubt. No payment was given by any cheque. To my mind such self serving vouchers are of no use. Needless to state first of all the legal right of the plaintiffs originate or emanate from the hypothecation agreement - whereby the possession is sought to have been delivered, the said agreement cannot be read for want of registration. As a corollary the contention that the plaintiffs were securing their position by way of keeping their guards is completely misplaced and a fallacious argument.
12.4 If I just have a look at the documents which have been relied upon by the plaintiffs particularly so called Ikrarnama and the Hypothecation Agreement, there are so many suspicious circumstances which come to the MCA No.47/2022 Page no.13 of 17 fora. Said Ikrarnama reveals that the property of Roorkee was to be disposed of for Rs.3 Crores and Rs.1 Crore has been taken from Gajraj the plaintiff no.1 and the last date for performance of the said agreement was 30.04.2015. Curiously again no payment has been given by way of any cheque or any banking transaction. Original of said document has not been placed on record. It is also not stated as to what happened qua the said agreement whether the said was cancelled or the money was sought to be adjusted. Again it is important to note herein that the said agreement was subsumed in the alleged hypothecation agreement. Obviously there would have been some sort of cancellation of agreement or any document prepared qua the said aspect. There is non such document.
Plaintiffs' version is that Rs.50 lakh was paid earlier in May 2013 by Anil Kumar to Ram Gopal Sharma and Rs.1 Crore was given later on by Gajraj Singh. There is no document with regard to Rs.50 lakh having been given to Ram Gopal Sharma as stated/claimed by Anil Kumar the plaintiff no.2. Furthermore, there is no adjustment of the said Rs.50 lakh in the Ikrarnama which was executed on 20.10.2014.
12.5 Now again in the hypothecation agreement both the said sums of money have been adjusted and the hypothecation is of Rs.1.50 Crores. I note herein that in the said Ikrarnama the property was of Ram Gopal Sharma directors of Sanbros Ceramics and one Chander Shekhar Bhardwaj. There is no specific mention of the said agreement/the name of Chander Shekhar Bhardwaj in the so called hypothecation agreement which was relied upon by the plaintiffs.
MCA No.47/2022Page no.14 of 17 12.6 Defendants are the original owners of the suit property and have denied the execution of the documents. Curiously Hariom Bhardwaj and Ram Gopal Sharma have expired. At no point of time during their life time this issue was raked up. Considering the nature of documents i.e. hypothecation agreement and the fact that it suffers from the vice of non registration and being unstamped the plaintiffs cannot claim any right over the suit property or seek the protection of Court by way of any injunction over the same. To put it pithily the plaintiffs have no prima facie case at all.
12.7 Reliance placed upon the judgment of Hon'ble Supreme Court in the case of Rame Gowda (deceased) by LRs v. M. Varadappa Naidu (deceased) by LRs and Anr by Ld counsel for the plaintiffs is completely misconceived. The possession of the plaintiff over the suit property is also not established owing to the fact as mentioned above that the hypothecation agreement is unregistered and as a corollary there is no settled possession over the suit property.
12.8 Defendants on the other hand have placed on record photographs showing the status of the building which has been demolished as the reconstruction was going on. They have also placed on record the documents whereby the property is being redeveloped through one T3Home Developers Pvt Ltd which reveals that the property was being reconstructed and the rights would be appropriated between them and the developer. The said general agreement is dated 18.01.2019. I also fail to understand in the teeth of such registered documents, how the plaintiffs were claiming to have their possession over the suit property.
MCA No.47/2022Page no.15 of 17 12.9 The other two ingredients - balance of convenience and irreparable loss and injury are against the plaintiffs. Infact to my opinion the injunction order passed by Ld. Trial Court was completely illegal/was sought to just put up a spoke in the construction agreement of the defendants with the third party.
13. I also note herein a very important aspect that the plaintiffs were dealing in properties or sale purchase thereof. They understand the import of the agreement being on stamp paper or estamp being obtained. Still, the hypothecation agreement dated 03.06.2017 was only on a piece of paper without a corresponding estamp. To my mind this is a very suspicious circumstance moreso when Ram Gopal Sharma and Hariom Bhardwaj both have expired.
13.1 Further as mentioned above there is no witness to the said hypothecation agreement coupled with the fact that signatures of Shakuntala, Ratna, Vijay and Vandana Bhardwaj on the agreement, upon the bare look itself appears to be photocopied and later on Gajraj Singh and Anil Kumar had put their signatures. There is no thumb imprint - no signatures on the photographs. The hypothecation agreement appears to be only a xeroz document whereupon photographs have been affixed and the plaintiffs have signed the same. I fail to understand on what basis the Ld. Trial Court even had taken this agreement into consideration at the first place. It is not even infact signed by the defendants. The Ld. Trial Court had miserably failed to take into account all such factors which points out that even the hypothecation MCA No.47/2022 Page no.16 of 17 agreement is a fabricated document.
14. The possession of the suit property is with the defendants and they are redeveloping the same by way of agreements with third parties. Plaintiffs have no right, title or interest in the suit property. The redevelopment is also going as evident by photographs.
15. Considering the totality of facts and circumstances, the impugned order is perverse, illegal and liable to be set aside. The appeal is allowed. Ordered accordingly. The application U/o 39 Rule 1 & 2 CPC preferred by the plaintiffs in the Court below stands dismissed.
16. Considering the conduct of the plaintiffs in relying upon such sort of hypothecation agreement which is fabricated, the appeal is allowed subject to cost of Rs.25,000/ which is imposed upon the plaintiffs and out of which Rs.10,000/ would be adjusted for the cost imposed upon the defendants and remaining Rs.15,000/ be deposited with DLSA.
Copy of this order be sent back to Ld. Trial Court along with its record.
Appeal file be consigned to record room.
Announced in open court (Sumit Dass)
on 14.03.2023 Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
MCA No.47/2022
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