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Delhi District Court

Kuldeep Singh vs Indian Band And Ors on 4 September, 2024

                                      -:: 1 ::-                         Date: 04.09.2024


                 IN THE COURT OF MS. SHIVALI BANSAL
                          DISTRICT JUDGE-03
                NORTH DISTRICT, ROHINI COURTS DELHI




                         CNR No. DLNT010097682017
                           CS (COMM.) No. 158/20
                                                                Kuldeep Singh & Ors.
                                                                         Vs.
                                                                  Indian Bank & Ors.
                                      ORDER

1. Vide this order, I shall decide the maintainability of the present suit.

2. The brief facts of the case stated by the plaintiffs in their plaint are as under:

2.1. Present suit is filed for declaration and permanent injunction on behalf of the plaintiffs. It is stated that one Sh. H.L. Arora was the Bhumidar in respect of land area measuring 4 Bigha 5 Biswas, situated in Khasra No. 38/10, Village Prahaladpur Bangar, Delhi and out of the said land, Sh. H.L. Arora sold land area measuring 1 Bigha and 1-1/2 Biswas to Smt. Rama Arora, W/o Sh. H.L. Arora for a valuable consideration. Thereafter, Smt. Rama Arora on 17.06.1987 sold and transferred the said land to one Sh. Hari Om for a valuable consideration amount and executed General Power of Attorney, Agreement to Sell, Affidavit, Will and receipt dated 17.06.1987 in favour of Sh. Hari Om. Thereafter, Sh. Hari Om, out of the said land sold a plot measuring 100 Sq. Yards falling in the part of Khasra No. 38/10, Village Prahaldpur Bangar, Delhi on 03.03.1988 for a valuable sale consideration to Sh. Rajinder Singh and executed General Power of Attorney, Agreement to Sell, Affidavit, Will and CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 1 of 31

-:: 2 ::- Date: 04.09.2024 Receipt dated 03.03.1988 in favour of Sh. Rajinder Singh and said Sh. Rajinder Singh also constructed a boundary wall on the said plot and after the death of Rajinder Singh on 22.10.2013, the suit property of 100 Sq. Yards came in the possession of plaintiff no. 1 to 5 being his LRs. Plaintiff no. 1 to 5 are successors in interest of late Sh. Rajinder Singh.

2.2. It is stated that Sh. Budh Singh also purchased a plot area measuring 400 Sq. Yards falling in the part of Khasra No. 38/10 Village Prahaladpur Bangar, Delhi from said Sh. Hari Om on 03.03.1988 for a valuable sale consideration and the said Sh. Hari Om executed General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt dated 03.03.1988 in favour of Sh. Budh Singh. After the death of Sh. Budh Singh on 13.06.2007 and after the family partition, the said property came in the share of Sh. Surinder Singh, S/o Sh.

Budh Singh. Thereafter, Sh. Surinder Singh died on 18.01.2016 leaving behind plaintiff no. 6 to 8 as his LRs. The plaintiff no. 6 to 8 are successors in interest of late Sh. Surinder Singh.

2.3. The area ad measuring 100 Sq. Yards and area ad measuring 400 Sq.

Yards out of Khasra No. 38/10 situated in the Revenue Estate of Village Prahaldpur Bangar, Delhi - 110042, (both properties referred to as "suit properties").

2.4. It is stated that a notification under Section 4 of Land Acquisition Act bearing no. F10(29)(1)(96) was issued on 27.10.1999 by Land Acquisition Collector and thereafter an Award was made under Section 6 of Land Acquisition Act on 03.04.2000 by the Govt. NCT of Delhi in respect of certain Khasras of Village Prahaladpur Bangar which included the abovesaid plots of the plaintiffs. Thereafter, the plaintiffs/their predecessors in interest and other villagers made a CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 2 of 31

-:: 3 ::- Date: 04.09.2024 representation to Hon'ble Lt. Governor of Delhi to de-notify the land acquired vide aforesaid notification. Thereafter, Sh. Rajinder Singh during his lifetime had challenged the said notification under Section 4 & 6 of the Land Acquisition Act by way of a Writ Petition bearing W.P. (C) No. 17273/2005 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi vide order dated 06.09.2005 was pleased to direct the parties to maintain status quo and the said writ petition was finally decided by Hon'ble High Court of Delhi. It is stated that Sh. Rajinder Singh assailed the order passed by the Hon'ble High Court of Delhi before the Hon'ble Supreme Court of India vide SLP (C) No. 12562/2007 titled "Rajinder Singh Vs. Union of India & Ors". In the said SLP, the Hon'ble Supreme Court of India was pleased to pass a status quo order in respect of possession on 03.08.2007.

2.5. It is stated that during the pendency of the said SLP, in February 2008, the plaintiffs / their predecessors in interest came to know that in an execution proceedings in respect of judgment and Recovery Certificate issued by DRT-I, Delhi in O.A. no. 768/1995 titled as "Indian Bank Vs. Niranjan Polymers", the Recovery Officer of DRT- I had sold the property land area measuring 1 Bigha 1-1/2 Biswas out of Khasra No. 38/10, Village Prahaladpur Bangar, Delhi in public auction on 14.03.2005 to the defendant no. 4 and Receiver appointed by the Recovery Officer of the DRT-I, visited the property of the plaintiffs to take the possession of the same but could not take the possession of the same as the plaintiffs / their predecessors in interest had showed their title documents to the Receiver. Thereafter, the plaintiffs / their predecessors in interest had filed their objections on 03.03.2008 before the Ld. Recovery Officer, DRT-I, Delhi that the CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 3 of 31

-:: 4 ::- Date: 04.09.2024 plaintiffs / their predecessors in interest are the rightful owners and in possession of the suit properties described above.

2.6. It is stated that plaintiffs / their predecessors in interest through their counsels had inspected the records of the Ld. Recovery Officer of DRT-I, Delhi and on inspection of the same, it came to the knowledge that defendant no. 3 had mortgaged the land measuring 1 Bigha 1-1/2 Biswas out of Khasra No. 38/10 Village Prahaladpur Bangar, Delhi in favour of defendant no. 1 on 27.07.1991. It is stated that as per the records of the Tribunal, an equitable mortgage was created by defendant no. 3 in favour of defendant no. 1 for grant of certain credit facilities to M/s Niranjan Polymers by depositing the title deeds of the aforesaid property i.e. sale deed executed by Sh. H.L. Arora in favour of defendant no. 3 registered as document no. 1527, in additional Book No. I, Volume No. 5095, on pages 13 to 15, on 13.02.1987 with the office of Sub Registrar, Delhi. It is pertinent to mention that Sh. H.L. Arora was the owner of 4 Bigha 5 Biswas in the Khasra No. 38/10, Village Prahaladpur Bangar, Delhi and out of the said land, a portion of the land was sold by Sh. H.L. Arora to defendant no. 3 and a portion of the land was sold by Sh. H.L. Arora to the defendant no. 2. The plaintiffs are successors in interest of the defendant no. 2 in respect of the suit property.

2.7. It is stated that the plaintiffs / their predecessors in interest have purchased the suit property from Smt. Rama Arora much prior to the grant of credit facilities to the aforesaid firm and the property sold by the Recovery Officer is the mortgaged property of Sh. Anil Arora which is different from the property of the plaintiffs and the possession of the same cannot be taken. It is stated that after the auction sale, Recovery Officer, DRT-I, Delhi had issued a sale CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 4 of 31

-:: 5 ::- Date: 04.09.2024 certificate on 31.10.2007 in favour of the defendant no. 4 mentioning the details of the property and stating the same to be of Sh. Anil Arora.

2.8. It is stated that Receiver appointed by the Ld. Recovery Officer without identifying the suit properties and without preparing any site plan alleged that the possession of property sold under the sale certificate has been handed over to defendant no. 4. It is stated that plaintiffs / their predecessors in interest always remained in the possession of the suit property and are still in the possession of the suit property. The report of Receiver is sham and has been prepared in connivance with defendant no. 4.

2.9. It is stated that the main contention of the plaintiffs / their predecessors in interest before the Recovery Officer, DRT-I, Delhi is summarized as under:-

"a. The plaintiffs/ their predecessors in interest are owners and in possession of the properties since from 03.03.1988. b. The properties of the plaintiffs/ their predecessors in interest are different from the property of Sh. Anil Arora which is allegedly mortgaged with the defendant bank.

c. Before taking the possession, a demarcation is to be carried out to identify the property of Sh. Anil Arora.

d. The Recovery Officer in the execution proceedings of the said recovery certificate cannot sell the property of which belongs to the plaintiffs / their predecessors in interest. e. The property in question is a subject matter of acquisition by LAC and the plaintiffs / their predecessors in interest have already challenged the said notification under Section 4 & 6 of Land Acquisition Act and the above said SLP is pending before the Hon'ble Supreme Court of India therefore, the property could have neither been sold by the Recovery Officer, DRT-I, Delhi nor CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 5 of 31

-:: 6 ::- Date: 04.09.2024 the possession can be taken."

2.10. It is stated in the objections filed by plaintiffs / their predecessor in interest that the defendant bank / defendant no. 1 took a stand that the property which has been sold by Recovery Officer, DRT-I, Delhi is the property of Smt. Rama Arora and not of Sh. Anil Arora and therefore, there is no dispute of identification. It is stated by defendant bank/defendant no. 1 that since the present plaintiffs / their predecessors in interest have only unregistered General Power of Attorney, Agreement to Sell, Receipt, Will etc. therefore, they are not owners of the property in question and the property vests in Smt. Rama Arora and has been rightly sold by the Recovery Officer. It is stated that vide order dated 07.01.2010, the Recovery Officer dismissed the objections filed by the plaintiffs / their predecessors in interest. Thereafter, the Recovery Officer though initially issued a sale certificate in favour of defendant no. 4 describing the property to be of Sh. Anil Arora however, after the abovesaid stand of the defendant bank/defendant no. 1, the Recovery Officer in complete contradiction of his own records changed the sale certificate and issued a fresh sale certificate on 11.03.2010 wherein it was stated that the property sold is the property which was owned by Smt. Rama Arora meaning thereby it included the suit properties also. 2.11. It is stated that plaintiffs / their predecessors in interest have aggrieved by the order dated 07.01.2010 passed by Recovery Officer, DRT-I, Delhi filed an appeal before the Presiding Officer, DRT-I, Delhi. No interim order was granted in favour of plaintiffs/their predecessors in interest. Plaintiffs / their predecessors in interest was also aggrieved by the order dated 15.01.2010 passed in the said appeal, the plaintiffs / their predecessors in interest approached the CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 6 of 31

-:: 7 ::- Date: 04.09.2024 Ld. DRAT by way of an appeal bearing Misc. Appeal No. 22/2010. The Ld. DRAT on 19.01.2010 was pleased to pass an interim order in favour of plaintiffs / their predecessors in interest. The said appeal was finally allowed by the Ld. DRAT vide order dated 26.11.2010 and the Ld. DRT-I, Delhi was directed to dispose of the appeal of the plaintiffs / their predecessors in interest within 30 days. It is stated that vide order dated 15.12.2010, the Ld. DRT-I, Delhi allowed the appeal of the plaintiffs / their predecessors in interest and remanded back the matter to the Recovery Officer to make an enquiry and to decide the objections afresh. In the said order dated 15.12.2010, it was observed by the Ld. DRT-I, Delhi that the issue of the title can be adjudicated only by the Civil Court and the Ld. DRT also observed that the Recovery Officer could not have sold the property of Smt. Rama Arora before selling the mortgaged property. It is stated that defendant bank/ defendant no. 1 assailed the said order dated 15.12.2010 passed by Ld. DRT before the Ld. DRAT vide Appeal No. 103/2011. The Ld. DRAT was pleaded to allow the appeal of the defendant bank/ defendant no. 1 vide order dated 24.02.2015. It is stated that in the year 2015, the plaintiffs in respect of their separate properties, filed writ petitions before the Hon'ble High Court for de-notifying the suit properties from acquisition under Section 24(2) of New Land Acquisition Act and the same are still pending before the Hon'ble High Court of Delhi. It is stated that being aggrieved by the order dated 24.02.2015 passed by Ld. DRAT Delhi in Appeal No. 103/2011, the plaintiffs / their predecessors in interest filed a Writ Petition bearing W.P. (C) No. 10378/2015 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi after hearing the arguments of the plaintiffs in the said Writ Petition observed that since the dispute pertains to the title over of the CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 7 of 31

-:: 8 ::- Date: 04.09.2024 property in question, the same could have only been adjudicated by a civil court in the civil proceedings and the same cannot be adjudicated before DRT in summary proceedings. It is stated that on 22.05.2017, Hon'ble High Court of Delhi was pleased to allow the plaintiffs to withdraw the said Writ Petition reserving the rights of the plaintiffs to institute civil proceedings against the respondents and other in respect of the subject premises. It is stated that the proceedings by the plaintiffs / their predecessors in interest were initially initiated before the DRT on 29.02.2008 which ultimately culminated into the writ petition which was withdrawn by the plaintiffs on 22.05.2017 with liberty to file proceedings before the Civil Court therefore, the aforesaid period from 29.02.2008 to 22.05.2017 shall be exempted from the total period of limitation for the purpose of institution of the present suit. Hence, the present suit is filed on behalf of the plaintiff against the defendants.

3. In WS filed on behalf of defendant no. 1, the contents of which are as under:

3.1. That the present suit is highly time barred and same is liable to be dismissed. It is stated that present suit of the plaintiff is not maintainable and barred by res-judicata. It is further stated that the present suit is liable to be rejected being undervalued / not properly valued as per the Provisions of Order 7 Rule 11(b) CPC. 3.2. The Ld. DRT-I in an appeal no. 4/2010 vide order dated 15.12.2010 filed by the predecessors of the plaintiffs, Ld. DRT-I had already held that the plaintiffs / their predecessors have no valid right, title or interest in the suit property as the documents i.e. GPA, Agreement to Sell, Will, Receipt, etc. were not registered or notarized and originals of the same were not even produced before Ld. Tribunal. Plaintiffs did not challenge the findings of Ld. DRT - I, passed vide order CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 8 of 31

-:: 9 ::- Date: 04.09.2024 dated 15.12.2010 in appeal no. 4/2010 whereby sale documents were rejected / discarded by the Ld. DRT-I. It is submitted that vide order dated 24.02.2015, the appeal of defendant no. 4 was passed upholding the auction / sale in favour of defendant no. 4 and the said finding of Ld. DRT-I, New Delhi in appeal No. 4/2010 has become final and binding on the plaintiffs and no appeal was filed by the predecessors / plaintiffs before the Hon'ble DRAT, New Delhi to challenge the said finding which now, would operate as res-judicata between the parties.

3.3. It is stated that suit property belonged to Smt. Rama Arora (defendant no. 2), the JD of defendant no. 1 who had got a decree against her in OA No. 786/1995 and the recovery proceedings have been pending before the Ld. Recovery Officer DRT-I, Delhi in RC No. 19/2000. It is stated that in order to realize its decretal dues/certificate amount, the suit property in question was put to auction by defendant no. 1 which was sold to defendant no. 4 and the physical possession of the suit property was handed over to defendant no. 4 at the instance of Ld. Recovery Officer, DRT-I, New Delhi.

3.4. It is stated that defendant no. 3 had mortgaged land measuring 1 Bigha 1-1/2 Biswas out of Khasra No. 38/10 Village Prahaladpur Bangar, Delhi in favour of defendant no. 1 by way of equitable mortgage in the loan account of M/s Niranjan Polymers. However, defendant no. 2 Smt. Rama Arora was a guarantor in the said loan account. The said loan account became bad and sticky and OA no.

786/1995 was filed by the defendant no. 1 against its borrowers / guarantors/mortgagors including defendant no. 2 and 3 before the Ld. DRT-I, New Delhi which was allowed in favour of defendant no. 1 and recovery certificate was issued on 11.02.2000. Therefore, the CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 9 of 31

-:: 10 ::- Date: 04.09.2024 suit property found to be in the name of defendant no. 2 and was put in auction by defendant no. 1 and same was sold to defendant no. 4. It is stated that sale certificate dated 31.10.2007 was cancelled and fresh sale certificate dated 11.03.2010 was issued by the Recovery Officer, DRT-I as mistake was rectified by the Ld. Recovery Officer since the property in question belonged to Smt. Rama Arora and not Sh. Anil Arora. It is stated that both of them JDs of defendant no. 1. It is stated that the suit property was inspected by the Patwari concerned on 09.12.2003 who had made physical survey of the land and khasra no. 38/10, was identified in presence of the officials of the defendant no. 1 and the predecessors of the plaintiffs and Receiver was well aware of the identification of the land and correct identified land was handed over to the defendant no. 4 by the Receiver.

3.5. It is denied that Smt. Rama Arora on 17.06.1987 had sold or transferred the land area measuring 1 Bigha 1-1/2 Biswas to Sh. Hari Om or executed General Power of Attorney or Agreement to Sell etc. It is further denied that Sh. Hari Om out of the said land sold a plot measuring 100 Sq. Yards on 03.03.1988 to Sh. Rajinder Singh or executed GPA, Agreement to Sell, Affidavit, Will, Receipt dated 03.03.1988. It is also denied that Sh. Budh Singh purchased a plot area measuring 400 Sq. Yards from Sh. Hari Om on 03.03.1988 or executed GPA, Agreement to Sell etc. It is also denied that the plot of the plaintiffs was under notification as alleged. It is denied that in the order dated 15.12.2010, it was mentioned that the matter was remanded back to Recovery Officer to decide objections of the plaintiffs afresh. It is further denied that the plaintiffs are entitled for exemption of the period from 29.02.2008 to 22.05.2017 in view of the order dated 22.05.2017 passed by Hon'ble High Court of Delhi.

CS (COMM.) No. 158/20     Kuldeep Singh & Ors. Vs. Indian Bank & Ors.   Page No. 10 of 31
                                         -:: 11 ::-                         Date: 04.09.2024

Remaining averments made in the plaint are false and denied.

4. No WS filed on behalf of the defendant no. 2 and 3 and vide order dated 05.11.2022, defendant no. 2 and 3 were proceeded ex-parte.

5. WS filed on behalf of the defendant no. 4, the contents of which are as under:

5.1. It is stated that the present suit is not maintainable and jurisdiction of this Hon'ble Court by the provision of the Securitisation and Reconstruction of Financial Assets and Enforcements of Security Interest Act, 2002 which reads as under:

" 34. Civil court not to have jurisdiction - No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)"

5.2. It is stated that defendant no. 4 is the bonafide purchaser of the plot measuring area 1 Bigha 1-1/2 Biswas out of Khasra No. 38/10(4-5) situated in the Revenue Estate of Village Prahladpur Bangar, Delhi and the said property was attached by the bank/defendant no. 1 in the proceedings under the SARFAESI Act, 2002 and the defendant no. 4 was the highest auction purchaser of the aforesaid property against the lawful sale consideration of Rs. 9,12,000/-. Defendant no. 4 had purchased the aforesaid property for a sum of Rs. 9,12,000/- which belonged to Smt. Rama Arora at a sale held by public auction on 14.03.2005 in execution of recovery certificate dated 11.02.2000 in OA No. 768/95 drawn up by the Presiding Officer, DRT-I, Delhi for recovery of arrears from Niranjan Polymers Pvt. Ltd. and full CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 11 of 31

-:: 12 ::- Date: 04.09.2024 amount of purchase money has been paid on 28.03.2005 and the entire amount of sale proceedings had been paid within the stipulated period of 15 days from the date of auction with poundage fees. It is stated that ITCP-18 issued on 31.10.2007 is hereby cancelled due to typographical error and certificate dated 11.03.2010 was issued in respect of the land measuring 1 Bigha and 1-1/2 Biswas out of Khasra No. 38/10 (4-5) situated in the Revenue Estate of Village Prahladpur Bangar, Delhi. That defendant no. 4 is the true and lawful owner of the aforesaid property. It is stated that no report of Receiver has been challenged by the plaintiffs. Plaintiffs are not having any ownership and possessory rights in respect of the suit property. It is stated that Smt. Rama Arora has never executed any documents in favour of Sh. Hari Om. It is stated that defendant no. 4 is in physical and lawful possession of entire measuring area 1 Bigha and 1-1/2 Biswas out of Khasra No. 38/10 (4-5) situated in the Revenue Estate of Village Prahladpur Bangar, Delhi. It is stated that findings of the proceedings of DRAT, Delhi has become conclusive and binding upon the plaintiffs. It is stated that documents such as GPA, Agreement to Sale, Affidavit, Will and Receipt dated 17.06.1987 in favour of Sh. Hari Om to be executed by Smt. Rama Arora are absolutely forged, fabricated, manipulated, concocted, sham and bogus and same does not create any right of ownership and possession in respect of the property in question in favour of the plaintiff as Smt. Rama Arora had already informed the Indian Bank/ defendant no. 1 that original sale deed dated 16.04.1982 is not traceable and has been lost. It is further stated that suit of the plaintiffs are barred by law of limitation. It is further stated that the present suit of the plaintiff is not maintainable and barred by res- judicata. Remaining averments of the plaint are false and denied.

CS (COMM.) No. 158/20    Kuldeep Singh & Ors. Vs. Indian Bank & Ors.   Page No. 12 of 31
                                       -:: 13 ::-                         Date: 04.09.2024

6. Replication was filed on behalf of the plaintiff to the WS of defendant no. 4. The contents of which are as under:

6.1. It is stated that the plaintiffs are the owners of the suit property. It is also stated that no proceedings under SARFESI Act have been initiated and the sale certificate has not been issued under SARFESI Act. It is stated that defendant no. 4 is trying to grab the property of the plaintiffs in connivance with defendant no. 1. It is stated that the findings of DRAT, Delhi were assailed before Hon'ble High Court of Delhi by way of Writ Petition No. 10378/2015 but thereafter, plaintiff was directed to approach civil court and therefore, the said writ petition was withdrawn with liberty to approach civil court.

Thus, the findings of Ld. DRAT are not final. All the averments made in the plaint are reiterated and reaffirmed as correct and the contents of remaining paras of written statement are wrong and denied.

7. Heard. Record Perused.

8. The present suit is filed by the plaintiff for seeking declaration of sale certificate dated 11.03.2010 issued by recovering officer of DRT as null an void and for a decree of permanent injunction, thereby restraining the defendants from interfering in the peaceful possession of the plaintiff in the suit property.

9. The present suit is filed by the plaintiffs on the ground that plaintiffs are the owners of the suit property that is being sold by the defendant no. 1 upon order of the Ld. Recovery Officer. The plaintiffs / predecessor-in-interest have filed their objections before the Ld. DRT and Ld. DRAT, however, the objections filed on behalf of he plaintiffs / predecessor in interest ultimately resulted in dismissal and the sale being affirmed. The plaintiff being aggrieved CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 13 of 31

-:: 14 ::- Date: 04.09.2024 by the said order had invoked the jurisdiction of the Hon'ble High court of Delhi in WP(C) No. 10378/2015, however, the petition was withdrawn with liberty to file it afresh before a court of competent jurisdiction. The plaintiff in his plaint has pleaded that he has withdrawn the WP(C) No. 10378/2015 before the Hon'ble High court of Delhi as in the said writ petition, it was observed that the dispute pertains to the title over the property in question, which could only be adjudicated by a civil court in the civil proceedings and not by Ld. DRT in summary proceedings. Now, the present suit is preferred by the plaintiffs. However, to the astonishment of this court, the plaintiffs have not even raised a title dispute as no relief pertaining to the title like declaration / specific performance of the agreement to sell etc. have been asked from this court.

10. The pleadings of the present suit are unclear as to on what ground the plaintiffs have filed the present suit. The plaintiffs have not asked for any relief that would declare the plaintiffs to be the owner of the suit property. The plaintiffs probably would not ask for such relief as the Hon'ble Supreme Court of India and Hon'ble High court of Delhi in a plethora of judgments have already held that the person cannot claim to be an owner / no title is transferred on the basis of customary documents i.e. GPA, Agreement to Sell, Receipt, Affidavit, Will etc., which are as under:-

(a) Shakeel Ahmed Vs. Syed Akhlaq Husain, (2023) 15 SCR 590, wherein it was held as under:-

".....10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 14 of 31

-:: 15 ::- Date: 04.09.2024 registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.

11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:

(i). Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others

(ii). Balram Singh Vs. Kelo Devi

(iii). M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.

12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.

13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.

14. In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.

15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed......"

CS (COMM.) No. 158/20       Kuldeep Singh & Ors. Vs. Indian Bank & Ors.     Page No. 15 of 31
                                         -:: 16 ::-                          Date: 04.09.2024



       (b)    WG. CDR (Retd). Sh. Yeshvir Singh Tomar Vs. Dr. O.P. Kohli

& Ors., 2015 DHC 6138, wherein it was held as under:-

"....5. In view of the above, since the Agreement to Sell in question is an unregistered and unstamped Agreement to Sell, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of ownership in the property. I may note that in fact a power of attorney which effectively gives ownership rights of the suit property by allowing the attorney to sell the immovable property by virtue of Article 48(f) of the Indian Stamp Act as applicable to Delhi will have to have the same duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of consideration.

6. In view of the aforesaid position, I put it to the counsel for the plaintiff that why this Court should unnecessarily dismiss the present suit and it would be preferable if a correct suit for specific performance be filed, however, counsel for the plaintiff states that the case be decided on merits.

7. In view of the aforesaid settled position of law, this suit is not maintainable by virtue of Section 53A of the Transfer of Property Act read with the amended Article 23A of the Indian Stamp Act as applicable to Delhi as the Agreement to Sell is unregistered and unstamped and the Power of Attorney besides not entitling the plaintiff to indirectly achieve what cannot be directly achieved is also not stamped on the value of the conveyance deed as required by Article 48 (f) of the Indian Stamp Act as applicable to Delhi...."

(c) MAC Associates Vs. SP Singh Chandel, 2013 DHC 654, wherein it was held as under:-

".....10. In the backdrop of above settled legal position, if the averments made in the plaint coupled with the documents filed in support thereof are considered, I do not find any locus standi in favour of the appellant to institute a suit for possession, inasmuch as, no cause of action has arisen in its favour for seeking possession of the suit property. During the course of hearing, learned Senior Counsel for the appellant has vehemently contended that respondent no. 1 was an agent of appellant and had entered into the Collaboration Agreement with the respondent no. 2, in the capacity of agent of the appellant, thus, the suit premises fell in share of appellant after the construction was complete and respondent no. 2 was under legal obligation to execute the Sale Deed and handover the possession CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 16 of 31

-:: 17 ::- Date: 04.09.2024 thereof to appellant. However, a perusal of the Collaboration Agreement and other documents placed on record of the trial court by the appellant do not indicate that the respondent no. 1 was agent of appellant and that he had entered into the Collaboration Agreement with respondent no. 2 as an agent of appellant. Alleged financial dealings between the appellant and respondent no. 1 dehors the agreement are not sufficient to indicate that respondent no. 1 was agent of appellant in respect of the Collaboration Agreement. Collaboration Agreement has been executed between the respondent no. 1 and respondent no. 2 on 23rd May, 2006. There is no whisper in the said Agreement that same was being entered into by respondent no. 1 as agent of appellant nor is there any mention of appellant in the Agreement.........

.........13. If the matter is viewed from another angle then also suit for possession on the basis of Collaboration Agreement, which at best can be taken at par with the Agreement to Sell, is not maintainable even if, for the sake of arguments, it is accepted that the respondent was agent of appellant. Agreement to Sell does not vest any right in favour of a person to the possession of property. Even if a person is put in possession of property through an Agreement to Sell, he cannot protect his possession on the pretext of part performance under Section 53-A of the Transfer of Property Act, 1882 unless such an agreement is a registered document. Section 17 (1A) of the Registration Act, 1908, which has come into force with effect from 24th September, 2001, reads as under:-

Documents containing contracts to transfer for consideration, any immoveable property for purpose of Section 53-A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, they shall have no effect for the purpose of the said Section 53-A. Once a person cannot even protect the possession, which he is holding, in absence of an unregistered Agreement to Sell, then how such a person can seek possession on the basis of such a document. In Sunil Kapoor v/s Himmat Singh & Ors. 167 (2010) Delhi Law Times 806, a Single Judge of this Court has held thus "a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v/s Narain Das, AIR 1981 Delhi 291 has held that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed."

CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 17 of 31

-:: 18 ::- Date: 04.09.2024

14. A suit which is without any cause of action, inasmuch as, is frivolous, vexatious and meritless has to be thrown out at the nascent stage since its continuance will not only burden the already overburdened judicial infrastructure but will also result in harassment of the opposite party which has to face rigmarole of full trial. Accordingly, I am of the view that appellant had no legal right to seek possession of the suit property on the basis of Collaboration Agreement. Suit is, thus, without any cause of action. In T. Arivanandam vs. T. Satyapal, AIR 1977 SC 2421, Supreme Court held thus, "if on a meaningful - not formal reading of the plaint it is manifestly found to be vexatious and meritless, in the sense of not disclosing a right to sue, the judge should exercise his power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. Supreme Court has reiterated the same principle in I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal, AIR 1998 SC 634, in the following terms:-

"Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with the view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions are not permitted in law and a clear right to sue should be shown in the plaint."

(d) R. Hemlatha Vs. Kashthuri, 2023 LiveLaw (SC) 304, wherein it was held as under:-

3. Learned counsel appearing on behalf of the appellant herein -

original defendant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in directing to receive the unregistered agreement in evidence.

3.1 It is submitted that it is an admitted position that the Agreement to Sell dated 10.09.2013 which is the foundation or basis of the suit is an unregistered Agreement to Sell and therefore cannot be exhibited in evidence for the main purpose in the suit, in view of the Tamil Nadu Amendment to Section 17 of the Registration Act making an Agreement to Sell to be compulsorily registered with effect from 01.12.2012. 3.2 It is submitted that the "explanation" attached to sub-clause (2) of Section 17 which also relates to Agreement to Sell has been omitted. It is submitted that said explanation was inserted by Amendment Act, 1927, to overcome the judgment of the Privy Council in the case of Dayal Singh vs. Indar Singh, (1926) 24 LW 396. It is submitted that in that case, an advance paid under an Agreement to Sell being a charge on the property as per Section 55(6)(v) of the Transfer of Property Act was held to create an interest and hence, unregistered Agreement to Sell cannot be admitted in evidence. The explanation remedied the situation and save the Agreement to Sell from the requirement of compulsory registration. 3.3 It is submitted that Section 54 of the Transfer of Property Act states that an Agreement to Sell by itself does not create any interest in or charge on the property. As per Section 17(2)(v) of the Registration Act CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 18 of 31

-:: 19 ::- Date: 04.09.2024 with reference to Section 1(b) and (c), that an agreement/document simplicitor merely creating a right to obtain another document, was saved from compulsory registration. It is submitted that thus prior to the amendment of 2012 and after the amendment, an Agreement to Sell simplicitor or reciting payment of earnest money was not required to be registered. For these savings, an Agreement to Sell would also have required registration, as it is a document affecting immovable property. It is submitted that now after the 2012 amendment, an Agreement to Sell for Rs.100/- or upwards is to be compulsorily registered. An agreement recital for payment of advance is also to be compulsorily registered as the "explanation" in Section 17(2) introduced by 1927 amendment after Dayal Singh's case, has been omitted by the present amendment. The advance amount and sale consideration are part and parcel of the transactions between the parties.

3.4 It is submitted that as per Section 49(a) and (c) of the Registration Act, a document requires to be registered, if not registered shall not affect the immovable property comprised therein and shall not be received as evidence of any transaction affecting such property. It is submitted that prior to 2012 amendment, when an Agreement to Sell was not required to be registered, Section 49(a) and (c) had no operation in relation to an Agreement to Sell. So an unregistered Agreement to Sell had no restriction in being received as evidence of any transaction affecting such immovable property or affecting immovable property as such. Thus, the terms of the document and the transaction embodied in it could be relied on in its entirety in any proceeding in the preamendment era. It is submitted that however now after the amendment, Section 49(a) and (c) of the Registration Act which are both substantive law and rule of evidence, apply to an unregistered Agreement to Sell and it shall not affect immovable property and shall not be received as evidence of transaction affecting immovable property.

3.5 It is further submitted by the learned counsel for the defendant that if the interpretation of the Hon'ble High Court given in the impugned order is followed, then the same would render the Amendment Act, 2012 otiose and meaningless, simply because the situation before the said amendment was exactly as has been laid down in the impugned order. The legislative intent behind making an Agreement to Sell, a compulsorily registrable document has been completely ignored by the Hon'ble High Court. 3.6 It is submitted that after introduction of a specific provision relating to Agreement to Sell in Section 17(1)(g) of the Act, and in the absence of any amendment in Section 17(2) to include clause (g) also within its fold, Section 17(2)(v) will only operate in relation to documents covered under the general provision of Clauses (b) and (c) of sub-section (1). it is submitted that in that sense Section 17(2)(v) will apply to all other agreements to mortgage, to lease, to release, to exchange etc. but will not apply to an Agreement to Sell.

3.7 Making above submissions, it is prayed to allow the present appeal and quash and set aside the impugned order passed by the Hon'ble High Court and to restore the order passed by the learned Trial Court.

4. While opposing the present appeal, learned counsel appearing on behalf of original plaintiff has heavily relied upon the proviso to Section 49 of the Registration Act which specifically provides that an unregistered document affecting the immovable property and required by the Registration Act to be registered may be CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 19 of 31

-:: 20 ::- Date: 04.09.2024 received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act or as evidence of any collateral transaction not required to be affected by registered instrument.

4.1 It is submitted that as rightly observed and held by the Hon'ble High Court though Section 17(1) of the Registration Act has been amended by the Tamil Nadu Act, 2012 by inserting Section 17(1)(g), making the Agreement to Sell/ Agreement affecting any immovable property compulsorily required to be registered, there is no corresponding amendment to Section 49 more particularly proviso to Section 49 of the Registration Act.

4.2 It is further submitted that even the object and purpose of Tamil Nadu Amendment Act, 2012 more particularly inserting Section 17(1) (g) is required to be considered which has been elaborately dealt with and considered by the Hon'ble High Court in the impugned judgment and order. It is submitted that a perusal of statement of objects and reasons to the Act No.29 of 2012 would suggest that primarily the amendment has been introduced by the State of Tamil Nadu by reason of the fact that instruments of agreement relating to sale of immovable property, instruments of power of attorney relating to immovable property and instruments evidencing agreement of deposit of title deeds, which were not registrable were resulting in loss to the exchequer as the public were executing these documents on white paper or on stamp paper of nominal value.

4.3 With the above submissions and heavily relying upon the proviso to Section 49 of the Registration Act, it is prayed to dismiss the present appeal. ...........

..........9. Thus, on and after the Tamil Nadu Amendment Act, 2012, as per Section 17(1) (g), instrument of agreement relating to sale of immovable property of the value of Rs.100/and upwards is required to be registered compulsorily. However, despite the same and despite the "explanation" to sub-section (2) of Section 17 has been omitted, there is no corresponding amendment made to Section 49 of the Registration Act. Section 49 of the Registration Act is as under :

"49. Effect of non-registration of documents required to be registered.-- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or6

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) , *** or as evidence of any collateral transaction not required to be effected by registered instrument.]"

10. Thus, as per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 20 of 31

-:: 21 ::- Date: 04.09.2024 Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document........ ........13. Under the circumstances, as per proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act. It is not the case on behalf of either of the parties that the document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered document in question namely unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49...."

(e) Dheeraj Jain Vs. Savitri Devi, 2024 DHC 744, wherein it was held as under:-

74. That so far as the issue of inherent inadmissibility is concerned, this Court has come to a conclusion that the Compromise Deed/ Relinquishment Deed was never proved in accordance with law in the Suit for Declaration, and as such, for the purpose of the Eviction Petition, it remained adocument which was otherwise inherently inadmissible. That apart, Mr. Dewan, learned Senior Counsel laid great stress on the fact that the said Compromise Deed/ Relinquishment Deed suffered from the vice of not being registered under Section 17 of the Registration Act, 1908 and therefore an inherently inadmissible document could not have been taken into consideration either by the Court dealing with the Suit for Declaration or even in the present impugned proceedings.

75. Learned Senior Counsel, had vehemently argued that the Compromise Deed/ Relinquishment Deed is a document which is inherently inadmissible in law and as such could not have been relied upon by either the Court delivering the judgement in the Suit seeking Declaration or by the learned Rent Controller in the subsequent eviction proceedings right uptill the learned RCT. For appreciating the said argument, it would be apposite to extract Section 17 of the Registration Act, 1908 which is as under:-

CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 21 of 31

-:: 22 ::- Date: 04.09.2024 "17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

[(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--

(i) any composition-deed; or

(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures;

                    or


CS (COMM.) No. 158/20        Kuldeep Singh & Ors. Vs. Indian Bank & Ors.            Page No. 22 of 31
                                           -:: 23 ::-                              Date: 04.09.2024

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) any document 3[other than the documents specified in sub- section (1-A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court 4[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by the Government; or

(viii) any instrument of partition made by a Revenue Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871), or the Land Improvement Loans Act, 1883 (19 of 1883); or

(x) any order granting a loan under the Agriculturists Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or [(x-a) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer. [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. It is manifest from the above, that any document of sale in respect of a property which is worth more than Rs. 100 is, mandatorily registerable. This issue has been reiterated and confirmed by the Supreme Court in the recent judgement in R. Hemalatha vs. Kashthuri, reported as (2023) 10 SCC 725. The Supreme Court has also considered Suraj Lamps & Industries (P) Ltd. vs. State of Haryana, Dheeraj Jain & Ors vs Savitri Devi & Ors on 2 February, 2024 reported as (2009) 7 SCC 363 in Shakeel Ahmed vs. Syed Akhlaq Hussain reported as 2023 SCC OnLine SC 1526, and clearly held that no right, title or interest in immovable property can be conferred without the registered documents in respect thereto. It also clearly held that traditional documents like agreement to Sell, Will, Power of CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 23 of 31

-:: 24 ::- Date: 04.09.2024 attorney etc., used by the parties for conveying interest in a property, in the absence of proper registered Sale Deed would be non- est in law and would not convey any title whatsoever, except to be used for specific performance. The Supreme Court held that the law in regard to section 17 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision. It is undisputed in the present case that the Compromise Deed/ Relinquishment Deed is not registered under Section 17 of the Registration Act, 1908.

76. A perusal of Compromise Deed/ Relinquishment Deed brings to fore that purportedly Chela Budh Ram had accepted the terms of the Will of Mahant Narsingh Dass and had relinquished all his rights and interests bequeathed upon him under the said Will in respect of the entire property. Simultaneously he purportedly agreed to withdraw the FAO No. 4/1969. It is not the case of the respondents that Chela Budh Ram and Chela Har Narain were related by blood or by family members. A relinquishment of a share in a property, that too worth more than Rs.100 could be possible, subject to the said document of relinquishment being mandatorily registered under section 17 of the Registration Act, 1908. It is pertinent to note that the learned ADJ adjudicating the Suit for Declaration while passing the judgement 13.02.2002 (Ex. AW 4/12), had in para 4 noted that Chela Budh Ram had entered into an agreement dated 29.07.1974 relinquishing all rights and agreed to withdraw his FAO No. 4/1969 in lieu of having received Rs. 17,000/- as consideration against receipt and supported by an affidavit. It is also equally pertinent to note that the learned RCT in the appeal against the Eviction Decree in the present case also noted the aforesaid fact in para 8 of the present impugned judgement. If that is so, it is axiomatic that the said Compromise Deed/ Relinquishment Deed tantamount to a Deed of Relinquishment and as such compulsorily registerable. Since, undoubtedly the Compromise Deed/ Relinquishment Deed was never registered in accordance with law, it becomes a document inherently inadmissible.

77. As noted above, the Compromise Deed/ Relinquishment Deed was never tested for its authenticity or evidentiary value in any of the courts of law coupled with the fact that the respondents even in the Declaratory Suit, depended entirely on the said document, to predicate his substantive claim on the entire property and not just bequeathed 50% of property in his favour. As such, it was an insurmountable burden upon the respondent to discharge the same, firstly by registering the said document and secondly, by proving the same in accordance with law before the Court adjudicating the Suit for Declaration. Neither having been done, this Court is of the firm opinion that the Compromise Deed/ Relinquishment Deed is an inherently CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 24 of 31

-:: 25 ::- Date: 04.09.2024 inadmissible document and as such could not have been treated as evidence for the purpose of relying upon, either in the Suit for Declaration (obiter) or in the Eviction Proceedings.

78. It is clear from the reading of the judgement of the learned ARC as also the impugned judgement of the learned RCT, that the entire edifice of their reasoning and rationale was predicated on the Compromise Deed/ Relinquishment Deed. In view of the above findings, it is held that the said Compromise Deed/ Relinquishment Deed and the findings rendered thereon have to be eschewed from consideration. In that view of the matter, it follows that the impugned order as also the order of the learned ARC have been rendered on inadmissible evidence and as such cannot withstand the scrutiny of law.

79. The judgement relied upon by learned Senior Counsel, in regard to the above is as under:-

Krishna Prosad Roy Chaudhuri (supra) "13. That cannot be taken away by the insertion of the forfeiture clause which would really mean surrender at the end of the term of the lease of valuable rights which had been acquired by reason of the plaintiffs being the land-holders within the meaning of S. 8. The Subordinate Judge has also taken that view, and we think, rightly. In this view the question next arises which is the more difficult point in the case with which we have to disagree with the Subordinate Judge as to what is the effect of the acceptance of the lease. Some argument has been advanced on behalf of the appellants that there has not been acceptance of the potta Ex. I as is contemplated by the Regulation. We do not think that we need be troubled by these technicalities as to whether there has been acceptance in conformity with these regulations. The fact remains that as the lease patta Ex. I was in the possession of the plaintiffs it must be presumed that they had full knowledge of the contents of the potta including Cl. (7). It is true that they did not execute a corresponding kabuliat and that becomes a question of no materiality, seeing what we have to determine is whether the plaintiffs have surrendered the rights which they have already acquired as land-holder by the execution by Government of the potta Ex. X which they accepted and which they treated as the foundation of their title. It has been argued on behalf of the plaintiffs that in order to effect such a surrender of their rights a registered document is necessary. This point was not taken in the Court below but it is said that this is a pure question of law which should be allowed to be raised for the first time in appeal to this Court. It is true that this argument suffers from infirmity which attaches to the belated plea taken for the first time in appeal, but at the same time as it is a pure question of law which is not dependent on any disputed facts we might allow this point to be taken. We think that in order to show that a party has contracted himself out of his rights and surrendered what he had already acquired with reference to the property the value of which exceeds Rs. 100 the transaction must be evidenced by a registered document having regard to the provisions of Section 17 of the Registration Act of 1877, which was the Registration Act prevailing at the time. But apart from the question of registration before one can hold that the party has contracted himself out of his rights some express CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 25 of 31

-:: 26 ::- Date: 04.09.2024 declaration on the part of the party abandoning his rights must be forthcoming. In order to establish the fact that there was abandonment of their rights by the pottah there must be something to show in the most explicit terms that the parties understood when accepting the potta that they were giving up a very valuable right by reason of their being land-holders within the meaning of Ss. 8 and 9 of the Regulation. Besides it seems to us that this agreement, in so far as it incorporates Cl. 7, the forfeiture clause or the one-fifth rule being ultra vires of the statute to that extent is irregular, and as there can be no estoppel against the statute it is permissible for a party to say that they are not bound by a term which is in contravention of the statute. This term of the pottah is separable from the rest. It is well established that if a deed is void in part only and the rest be severable estoppels may arise from the part which is good. This is an exception to the general rule that where a deed had been executed in contravention of a statute the law of estoppel does not apply. We think therefore that the Subordinate Judge is not right in the view which he has taken that the acceptance of the potta which includes Cl. 7 is tantamount to surrendering their rights as "land- holders."

(emphasis supplied) It is manifest from the aforesaid judgement, in respect of the Compromise Deed/ Relinquishment Deed clearly held by this Court as being inherently inadmissible, the doctrine of per incuriam and sub-silentio in respect of the judgment dated 13.02.2002 has to be necessarily upheld and applied. The effect thereof being, that the decree of declaration conferring 100% share in the bequeathed property in favour of Chela Har Narain has to be eschewed from consideration and the reliance of learned RCT on the said judgement would be absolutely misplaced.

80. That apart, the Supreme Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr, reported as (2003) 8 SCC 752 held that the document which is inherently inadmissible cannot be considered by a court of law for any purpose whatsoever. The relevant extract under:-

"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 26 of 31

-:: 27 ::- Date: 04.09.2024 objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."

(emphasis supplied) The above view has been reiterated by the Supreme Court in the latest judgement by referring to R.V.E. Venkatachala Gounder(Supra) in Sonu @ Amar vs. State of Haryana, reported as (2017) 8 SCC 570 and the same is extracted hereunder:-

"32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 27 of 31

-:: 28 ::- Date: 04.09.2024 documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65- B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."

(emphasis supplied)

81. From the above conclusions on the point of law, fortified by the judgements of the Supreme Court as referred to above, this Court holds that the document Compromise Deed/ Relinquishment Deed as also the judgment and Decree passed in the Suit for Declaration have to be eschewed from consideration and reliance placed on it by learned ARC and the learned RCT is misplaced......"

11. Once it is clear that the plaintiff cannot claim to be the owner of the suit property on the basis of unregistered documents as no title was transferred from Smt. Rama Arora i.e. defendant no. 2 to the plaintiffs. This court cannot sit in appeal / revision to revisit the finding of Ld. DRT and Ld.DRAT. However, this court is well within its power to decide the maintainability of the present suit on the basis of the settled proposition of law.

12. Then this court has to see on what other grounds, the plaintiffs have sought declaration of the sale certificate dated 11.03.2010 as null and void. The plaintiffs have not assailed the sale certificate dated 11.03.2010 on the ground of any fraud being played upon him by the defendants herein. The plaint is entirely silent upon the fact that who has played the fraud upon the plaintiffs. During the course of the arguments, Ld. Counsel for plaintiffs had submitted that the Ld. Recovery Officer had played fraud upon the plaintiffs. It was also submitted by him that he had not specifically stated so as that would be derogatory. This court is unconcerned with the reason / intention of the plaintiffs behind not incorporating the detailed facts that would constitute fraud but the fact of the matter remains that the fraud is not specifically pleaded by the plaintiffs in his plaint. The Hon'ble CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 28 of 31

-:: 29 ::- Date: 04.09.2024 Supreme Court of India in "Mardia Chemicals & Others Vs. Union of India (2004) 4 SCC 311" has held that the jurisdiction of the civil court is limited and can be invoked, where for example, the action of the secured creditor is alleged to be fraudulent. In the instant case, the plaintiffs have not specifically pleaded fraud as per the mandate of Order 6 Rule 4 r/w Order 4 Rule 1 CPC. Order 6 Rule 4 CPC states that the party pleading fraud must state particulars that are necessary and in case of non-compliance of Order 6 Rule 4 CPC, the plaint shall not be deemed to be duly instituted as per Order 4 Rule 1 (3) CPC. In absence of any grounds of fraud being specifically alleged, the plaint of the plaintiffs cannot be deemed to be duly instituted. Also, Section 33 of the RDDBFI Act clearly states that no suit can lie against the recovery officer for anything which is done in good faith or intended to be done in pursuance of this act or any rule or order made thereunder. Therefore, the plaintiffs could not have filed the suit against the action of the recovery officer without specifically pleading fraud / bad faith of recovery officer. The jurisdiction of the civil court is barred under Section 34 of the SARFAESI Act and Section 18 of RDDBFI Act and it is only when fraud is alleged that the same can be entertained. In the instant case, the plaintiff has not pleaded / alleged fraud in his pleadings, the plea of fraud has to be specific in nature. In fact, in the instant case, the plaintiff has exhausted his remedy by invoking the appellate remedy provided under RDDBFI Act and after loosing from Ld. DRAT, he has invoked the jurisdiction of this court without any basis. Upon reading of the plaint, it is unclear that once no title vests in the plaintiffs on the basis of documents placed on record, how can he claim declaration of sale certificate being null and void. Reliance is placed upon the judgment of the Hon'ble Supreme Court of India in CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 29 of 31

-:: 30 ::- Date: 04.09.2024 "Jagdish Singh Vs. Heeralal AIR 2014" and "Oriental Bank of Commerce Vs. Harminder Singh, FAO No. 303/2017".

CS (COMM.) No. 158/20    Kuldeep Singh & Ors. Vs. Indian Bank & Ors.   Page No. 30 of 31
                                     -:: 31 ::-                          Date: 04.09.2024

14. For the abovesaid reasons, the plaint of the plaintiff is rejected for non-disclosure of cause of action.

15. File be consigned to record room. Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:

2024.09.04 14:46:24 +0530 Announced in open Shivali Bansal Court on 04.09.2024 District Judge-03 North District, Rohini Courts, Delhi.

CS (COMM.) No. 158/20 Kuldeep Singh & Ors. Vs. Indian Bank & Ors. Page No. 31 of 31