Delhi District Court
Dr D.P. Arya vs Uday Veer Ors on 31 October, 2023
1
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
Suit No:9691/2016 ( New) & Old Case No:57/2011
CNR No: DLWTO1-000263-2011
Dr. D.P. Arya
S/o Shri Manphool Singh,
R/o House No:B-3, Kaml Vihar,
Karawal Nagar,
Delhi-110094 .....Plaintiff
Versus
1. Shri Uday Veer
S/o Shri Ranpal Singh Nehra
2. Shri Prakash Veer
S/o Shri Ranpal Singh Nehra
3. S/o Shri Ranpal Singh Nehra
(Deceased) through his legal heirs:-
3-(a) Smt. Naipal Kaur
W/o Shri Ranpal Singh Nehra
3-(b) Smt. Shashi Bala
D/o Shri Ranpal Singh Nehra
All R/o WZ-106/103-104,
Rajouri Garden Extn.
4. Shri Subhash Chandra (Deceased)
through his legal heirs:-
4-(a) Smt. Sweety
W/o Late Shri Subhash Chandra
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
2
4(b) Shri Sandeep Kumar
S/o Late Shri Subhash Chandra
4(c) Ms. Shalini Jain
D/o Late Shri Subhash Chandra
All R/o Flat No:83, WIC,
Wollington Estate,
DLF, Phase-V,
Gurgaon, Haryana
Through his legal heirs
5. Shri Rajesh Kumar
S/o Shri Jai Prakash,
R/o C-78, chander Nagar,
New Delhi
6. Bank of Baroda
J-2/15, Rajouri Garden,
Najafgarh Road,
New Delhi-110027
Through its concerned
Manager/Officials .....Defendants
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
Date of Institution of suit :19-01-2007
Date reserved for Judgment :03-07-2023
Date of Judgment :31-10-2023
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
3
JUDGMENT
1. Plaintiff has filed the present suit for declaration and permanent injunction against the defendants. The plaintiff has sought the following reliefs:-
(I) That a decree for declaration declaring the Sale Deed dated 27-02-2006 executed by the defendant No:4 illegally and fraudulently in favour of defendant No:2 and Sale Deed dated 09-05-2007 executed by the defendant No:5 in favour of the defendant No:4 in collusion with the defendant No:1 to 3 as null and void.
(ii) That decree for declaration declaring the alleged notarized general power of attorneys dated 23-02-
2003 executed by the defendants No:1 and 2 in favour of Sh. Ran Pal Singh (defendant No:3) and another GPA and another GPA dated 16-02-2004 executed by Sh. Ran Pal Singh/Defendant no:3 in favour of Sh. Subhash Chandra/defendant No:4 and mortgaged and other loan documents executed by the defendant No:4 & 5 in favour of defendant No:6 as null and void being forged and fabricated & illegal.
(iii) That a decree for permanent injunction be passed in favour of the plaintiff and against the defendants, thereby restraining the defendants No:1 to 5, their attorneys, successors, legal heirs etc, from selling, transferring, mortgaging and further creating third party interest in the suit property bearing No:WZ-
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
4106/103-104,(Entire first floor without roof rights), out of Khasra No:18/14/1, Village Tatarpur, now known as Rajouri Garden Extension, New Delhi as shownn in red colour in the site plan.
2. The case of the plaintiff as enumerated in the plaint is that he has purchased property bearing No:WZ-106/103- 104,(Entire first floor without roof rights), out of Khasra No:18/14/1, Village Tatarpur, now known as Rajouri Garden Extension, New Delhi ( herein after to be mentioned as suit property) vide registered sale deed dated 22-04-2004 from defendant No:1 &2 or a sale consideration of Rs.10 Lakhs. It is stated that plaintiff has also applied for a loan of Rs.15 lakhs for the purchase of the suit property and on his request State Bank of India disbursed the term loan of Rs.10 lakhs for purchasing the first floor of the property and Rs.5 lakhs for renovation of the same. The above said amount of Rs.15 lakhs was paid by the State Bank of India to defendant No:1 & 2 on behalf of the plaintiff through cheques of Rs.9 laks and Rs.6 lakhs bearing cheque No:321644 & 321645.
3. It is averred that plaintiff was having quit family relations with the defendant No:3 and his family members, therefore, he had handed over the keys of the suit property to defendant No:1 to 3 for the purpose of carrying out renovation of the said flat within a period of two months. It is stated that plaintiff was given assurance by the defendant No:1 to 3 that after renovation the flat will be handed over to the plaintiff to live in the said property.
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
5That after the expiry of 203 months, the plaintiff enquired from defendants No:1 to 3 about the completion of the renovation work but defendants pretended that renovation work is in progress and plaintiff was assured to wait for some time. It is stated that even after a period of two years the defendants no:1 to 3 did not hand over the possession of the suit property to the plaintiff despite repeated requests of the plaintiff. Ultimately on 09-11-2016 the plaintiff lodged a police complaint against the defendants No:1 to 3 and got registered a FIR on 14-02-2007 in Police Station Rajouri Garden.
4. It is averred by the Plaintiff that he has filed a suit for possession, mesene profits and permanent injunction against the defendant which is still pending. It is stated that defendants No:1 & 2 have also filed a suit for declaration against the plaintiff which is still pending .
5. It is alleged by the plaintiff that during the pendency of the aforesaid suits, the plaintiff came to know that the possession of the suit flat was supposed to be taken by the defendant No:6/bank on 08-11-2010 through its authorized officer Mr. Sanjee Gupta. It is stated that when the plaintiff enquired from defendant No:6/bank, he came to know that the defendant No:4 has availed an overdraft facility of Rs.30 lakhs from bank/defendant No:6 under the name and style of M/s Apra International and defendant No:6 mortgaged the suit property against the said overdraft facility and defendant No:4 deposited the original sale deed dated 09-05-2007 with the defendant No:6/bank.
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
66. It is stated by the plaintiff that action of the defendant No:6/Bank u/s 13(4) of SARFESI Act, 2002 against the property of the plaintiff is not sustainable in the eyes of law as the plaintiff has the first charge over the suit property b virtue of registered sale deed dated 22-04-2004, neither the defendant No:5 has any right to sell or transfer the suit property to the defendant No:4 nor the defendants No:4 &5 have any right or authority to mortgage the suit property with he defendant No:6/bank without the consent of the plaintiff in this regard. It is submitted that the action of the defendant No:6 under SARFESI Act against the suit property is liable to be declare as null and void as the neither the plaintiff is borrower nor a guarantor of mortgagor to the defendant No:6 and defendant No:6/bank has no right or authority to take the physical possession of the suit property. Plaintiff has stated to have filed an application under Section 17(1) of SARFESI Act and challenged the possession notice dated 08-11-2010 issued by defendant No:6 qua the suit property before the Debt Recovery Tribunal-III, Delhi. It is stated that an application of the defendant No:1 under Section 17(1) of SARFESI Act filed by him before the above stated tribunal has been dismissed vide order dated 04-02-2010 and Debt Recovery Tribunal-III held that the defendants No:1 & 2 have enjoyed the credit facilities directly and indirectly along with the defendants No:4 & 5 and the lodging of complaint against defendant No:4 was a calculated design adopted by the defendants No:1 &2. It is Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
7stated that actions of the defendant No:1 to 5 are hand in gloves and they are/were doing illegal and unlawful acts to grab the property of the plaintiff.
7. It is alleged by the plaintiff that defendants No:1 to 5 got intentionally and fraudulently prepare false and fabricated notarized general power of attorneys datd 23- 02-203 executed by Sh. Uday Veer Singh and Shri Parkash/defendant No:1 & 2 in favour of Sh. Ran Pal Singh/defendant No:3 and another GPA dated 16-02-2004 executed by Sh. Ran Pal Singh/defendant No:3 in favour of Sh. Subhash Chandra/Dependant No:4. It is further alleged that defendant No:4 Sh. Subhash Chandra executed a sale deed dated 27-02-2006 in favour of Sh. Rajesh Kumar/defendant No:5 who again executed a sale deed dated 09-05-2007 in favour of Sh. Subhash Chandra/defendant No:4. It is stated that on the basis of said forged and illegal documents, the defendants No:4 &5 got the loan facility from the defendant No:6/Bank at the instance of the defendants No:1 to 3 after executing an Equitable Mortgage deed as well as other concerned loan documents to defeat the rights, title and interest of the plaintiff over the suit property. Therefore, the aforesaid documents are liable to declared as null and void as the defendant No:1 to 5 have done a criminal acts and they are liable to be punished as per law and FIR has already been lodged against them in police station Rajouri Garden. Hence, the present suit.
8. The defendant no:1 to 3 have filed the written Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
8statement stating therein that they are the lawful owners of the suit property and plaintiff has no right, title or interest over the suit property. It is stated that as a matter regarding Sale deed dated 22-04-2004 a suit filed by them is pending for declaring the Said Sale deed as null and void as there was no intention of the answering defendant to sell th suit property to the plaintiff. It is stated that the Sale deed dated 22-04-2004 was executed only for the purpose of obtaining a bank loan which was required by the plaintiff to meet the financial crises of the plaintiff as well as of answering defendants, however, there was no exchange of possession or any sale consideration of the suit property. It is state that the value of the property at the time of relevant time was also much more than the alleged sale consideration as shown in the Sale Deed. Defendant has raised objections that the present suit is not valued properly for the purpose of court fees as the value of the property is above Rs.50 lacs. It is denied that after the expiry of a period of 2-3 months the physical possession of suit property was to be handed over to plaintiff after renovation work as alleged by the plaintiff. It is denied that plaintiff has ever approached them for the above purpose.
It is further stated by the defendant No:1 to 3 that the intention of the plaintiff became bad and he started thinking of grabbing the suit property and plaintiff also lodged a false complaint. It is stated that answering defendants have been paying Rs.10,000/- as a portion of their liability towards EMI as answering defendants have Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
9kept Rs.10 lacs from disbursed loan of Rs.15 lacs and Rs.5 lacs were kept by the plaintiff and the remaining EMI was paid by him. It is stated that when answering defendants came to know about the filing of a case by defendant no:6 under SARFESI Act they moved an application before the DRT and also lodged a complaint against the forged documents manufactured/manipulated by the defendant No:4 & 5. It is stated that answering defendants are not in any manner, concerned with the Sale Dee dated 09-05-2007. Answering defendants have also denied that Sale Deed dated 22-04-2004 created any right, title or interest in favour of the plaintiff. It is stated that manner regrading declaration of Sale Deed dt. 22-04-2004 as null and void is subjudice before the Court. The answering defendant have denied all other allegations of the plaintiff and prayed for dismissal of the suit of the plaintiff with costs.
9. In his replication the plaintiff has reiterated his earlier stand and controverted the averments made by the defendant No:1 to 3 in their written statement.
10. The defendant No:6/Bank has also filed written statement and raised objection that the suit of the plaintiff is false, frivolous and vexatious as the plaintiff has not come to the court with clean hands and suppressed the material facts. It is stated that the suit property is duly mortgaged by deposit of title with the answering defendant. It is submitted that answering defendant no:6 has already initiated action under the SARFAESI Act for Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
10the speed recovery of bank dues from defaulters by disposing of the mortgaged property. It is stated that the plaintiff is in collusion with the respondent No:1 Sh. Uday Veer Singh and filed false case SA No:354/2009 before the Debt Recovery Tribunal-III which was disposed of by Hon'ble DRT vide order dated 04-02-2010 and Sh. Uday Veer Singh was directed to pay the outstanding dues of the defendant Bank. It is further stated that Sh. Uday Veer Singh was paying dues as per the orders of Ld. DRT till the present plaintiff obtained the stay in collusion with Sh.Uday Veer Singh. It is submitted that it is really astonishing that the alleged purchaser/plaintiff kept quite for more than two years and did not take the possession of the property even after making the entire payment. It is stated that the plaintiff was in the knowledge of things right from the very beginning and is trying to delay the recovery proceedings initiated by the answering defendant. It is stated that the plaintiff is in collusion with the defendant No:1 to 5. The defendant No:6/bank has prayed for dismissal of the suit of the plaintiff with cost being false and frivolous case.
11. Plaintiff also filed replication to the written statement of the defendant No:6/bank and controverted the averments of the defendant No:6 and reiterated his stand made by him in the plaint.
12. The defendant No:4 (a) & (b) and defendant No:5 were proceeded ex-parte vide order dated 12-07-2013 as neither they have not put their appearance nor filed their Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
11written statement in stipulated time, despite service by way of publication in newspaper "Veer Arjun" dated 05-03- 2013.
13. From the pleadings of the parties, the following issues were framed on 10-09-2013:-
(1) Whether the Sale Deed executed in favour of plaintiff was a sham document only for the purpose of obtaining loan from the bank and it did not create any right, title or interest in the suit property in favour of the plaintiff ? OPD (2) Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction ? OPD (3) Whether the suit is barred by limitation ? OPD (4) Whether the plaintiff is entitled for the relief of declaration, as prayed for ? OPP (5) Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for ? OPP (6) Relief.
14. Plaintiff Sh. D.P. Arya has examined himself as PW1 and filed his evidence by way of affidavit which is Ex. PW1/A bearing his signature at point and B. The PW1 has relied upon the documents Ex. PW1/1 to Ex. Pw1/5. However, the documents Ex.PW1/1 to Ex.PW1/9 were de- exhibited and marked as P1X1 to P1X9. Also the document Ex.PW1/12 was de-exhibited and was marked as PWX12.
15. PW1 has been cross examined by the ld. Counsel for the defendant No:1 to 3 at length at various dates.
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
1216. Opportunity was given to the defendant No:6 to cross examine PW1, however, same was NIL as none was present on behalf of the defendant No:6 to cross examine PW1. Also the defendant No:4 & 5 were ex-parte, therefore, the cross on their behalf also remained NIL.
17. Plaintiff has examined Sh. Lal Singh S/o Dr. Madho Singh as PW2, who filed his evidence by way of affidavit Ex.PW2/A, bearing his signature at point A and B.
18. PW2 has also been cross examined on behalf of the defendant No;1 to 3 at length in question answer form also. Cross of PW2 was also NIL on behalf of the defendant No:6.
19. Further plaintiff has summoned Executive of ARCIL and examined the said witness as PW3, who has brought the original sale deed dated 22-04-2004. Said witness exhibited the sale deed as Ex.PW3/1, which was earlier marked as P1X1,
20. PW3 has also been cross examined on behalf of the defendant No:1 to 3. Cross of PW3 was also NIL on behalf of the defendant No:6.
21. Plaintiff has summoned Record Keep from the office of Sub Registrar-II, Janak Puri, New Delhi and examined the said witness as PW4, who has brought the original sale deed dated 22-04-2004 which is already exhibited as Ex.PW3/1. He has also brought the copy of Sale deed dated 27-02-2006 which have been exhibited by him as Ex.PW4/1(colly 5 pages). PW4 has also brought the copy of Sale deed dated 09-05-2007 which have been Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
13exhibited by him as Ex.PW4/2(colly 7 pages).
22. PW4 has also been cross examined on behalf of the defendant No:1 to 3. Cross of PW3 was also NIL on behalf of the defendant No:6.
23. Plaintiff further examined Ahlmad of the court of Sh. Deepak Kumar, MM-2 (West), THC, Delhi as PW5 who has brought the file of case titled as State Vs. Udaiveer Singh & Anrs, bearing FIR No:108/2007, PS Rajouri Garden, District West, Delhi and exhibited the mark D , photocopy of FIR, as Ex.PW5/1.
24. The cross on behalf of all the defendant qua this witness was NIL despite opportunity.
25. PW6 is Sh. Vikrant Khurana, from Bank of Baroda, Rajouri Garden, Branch, Delhi, who has brought the copy of GPA dt. 23-12-2003 executed by Sh. Udaiveer Singh and Shri Parkash in favour of Sh. Ranpal Singh Nehra which is Ex. PW6/1 and another GPA dated 16-02-2004 which was executed by Sh. Ranpal Singh Nehra in favour of Sh. Subhash Chandra which is Ex. PW6/2. It is also mentioned in the chief examination of PW6 that original sale deed dated 27-02-2006 is already Ex.PW4/1 and original sale deed dt. 09-05-2007 executed by Sh. Rajesh Kumar in favour of Sh. Subhash Chandra is already Ex. PW4/2. It is deposed by PW6 that original said GPAs are not in possession of the bank as per record.
26. PW7 Sh. Devi Lal Meghwal , record keeper from DRT-III, Parliament Street, New Delhi has brought the court file of SA No:354/2009 containing original order Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
14dated 30-12-2009 and 04-02-2010 which are Ex.PW7/1 and E.PW7/2 respectively.
27. The cross examination of PW6 and PW7 are nil despite opportunity to the defendants.
28. PW8 Sh. Mukesh , LDC from Property Tax Department, West Zone has brought the mutation order dated 24-04-2006 qua the suit property in the name of plaintiff Dr. D.P. Arya, same is Ex.PW8/A.
29. Cross examination of PW8 is also nil despite opportunity to the defendants.
30. Ld. Counsel for the plaintiff has closed the evidence of the plaintiff on 23-03-2019.
31. On the other hand defendant Sh. Uday Veer has examined himself as DW1 and filed his evidence by way of affidavit Ex.DW1/1 bearing his signature at point A and B.
32. DW1 has been cross examined by the ld. Counsel for the plaintiff on 19-08-2019.
33. Ld. Counsel for the defendant No:1 to 3 has closed the evidence of the defendant No:1 to 3 on 19-08-2019.
34. It is pertinent to mention here during the proceedings of this case, the defendant No:6 was also proceeded ex-parte on 19-08-2019. However, on the next date i.e. on 19-10-2019, the ex-parte order qua defendant No:6 was set aside and defendant No:6 was permitted to join the proceedings of present suit.
35. I have heard the argument of ld. Counsel for the parties and perused the material and written submissions of Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
15parties on record. My findings on the issues are as under:-
36. ISSUE No. (2): Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction? OPD The plaintiff-herein has paid advolerem court fees and jurisdiction for the relief regarding Sale Deed Dated 27.02.2006 (sale transaction value Rs.5 Lakh) and the plaintiff-herein has paid advolerem court fees and jurisdiction for the relief regarding Sale Deed Dated 09.05.2007 (Sale transaction value of Rs.6 Lakh). The plaintiff has further paid the fixed court fees of Rs.200/- for the relief regarding the GPA dated 23.02.2003 another GPA dated 16.02.2004. Suit is further valued for the purpose of Permanent Injunction for Rs.130/- etc. The plaintiff has properly valued the suit and has appropriately paid the court fees. Thus ISSUE No.2 is decided in favour of the plaintiff and against the defendants.
37. ISSUE No.(3) Whether the suit is barred by limitation ? OPD The plaintiff-herein is seeking declaration that the following instruments be declared as null & void:
- Sale Deed dated 27-02-2006 executed by the defendant No:4 in favor of defendant No:2;
- Sale Deed dated 09-05-2007 executed by the defendant No:5 in favor of the defendant No:4
- Notarized general power of attorneys dated 23-02- 2003 executed by the defendants No:1 and 2 in Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.16
favor of Sh. Ran Pal Singh (defendant No:3);
- GPA dated 16-02-2004 executed by Sh. Ran Pal Singh / Defendant no:3 in favour of Sh. Subhash Chandra/ defendant No:4;
- Other loan documents executed by the defendant No:4 & 5 in favour of defendant No:6.
38. The Hon'ble Apex Court in Civil Appeal Nos.2811- 2813 of 2010 arising out of SLP (C) Nos. 6745- 47/2009 in Suhrid Singh @ Sardool Singh Vs Randhir Singh & Ors decided on March 29, 2010 before their Lordships R.V.Raveendran and R.M.Lodha JJ., the observations of the Hon'ble Apex Court are:
"7.Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him...."
(emphasis added)
39. Declaratory relief is a form of equitable relief. This has been incorporated in the statue under chapter 6 of the Specific Relief of the 1963. Specifically, Sec.34 provides for the declaratory relief in form of status or right. The relief of declaration is a discretionary relief. The plaintiff cannot claim the relief as of right. In C.Nariyan Mittar Vs. Kishan Soondry Dasee, the judicial Committee observed that it is not a matter of absolute right to obtain a declaratory decree.
40. Article 113, Limitation Act 1963 provided Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
17limitations for declaratory suits is three years from the date when the right to sue accrues. Generally, the right to sue accrues only when the cause of action arises, that is the right to prosecute to obtain relief by legal means. The cause of action for a declaratory suit, based on denial of title, does not arise until the plaintiff has knowledge of the denial (Muruga Chetty vs. Rajaswami 29 M.L.J. 574.)
41. The Limitation Act, 1963, has expressly provided for the declaratory reliefs relating to Forged instruments (Article 56) and for other declaratory reliefs under Article
58. A declaratory suit without a prayer for possession is governed by Article 113 (old Article 120) (Pieree Leslie & Co. Ltd. vs. Wapshare, AIR 1969 SC 843).
42. Burden of proof: It is upon the plaintiff to prove his case the burden is on the seeker of title the same was held it S.Mada Swamy Thewar Vs. A.M.Arjuna Raja, AIR 2000 Madras 465.
43. The Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (2008) 4 SCC 594 held as follows :
"13.3.Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.?"
44. For challenging the sale deed executed by any person, the period of limitation is three years, as per the limitation Act, which is not disputed. However, it was Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
18argued for the respondent/plaintiff that the suit was filed from the date of knowledge. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract.
45. In Khatri Hotels Pvt.Ltd. & Anr. Vs Union of India & Anr, it was held that the use of the word 'first' between the words 'sue' and 'accrued', would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
46. In State of Punjab Vs Gurdev Singh it was held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.
47. The present suit for declaration was instituted on 21- 04-2011. The plaintiff himself has averred in his plaint that he acquired the knowledge of the taking of possession of Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
19suit property on 18.12.2010. Subsequently, the plaintiff came to know that the loan facility was availed by the defendant no.4 (Sh. Subhash Chandra) had availed loan from defendant No.6 (Bank of Baroda) by mortgaging the suit property i.e. suit property bearing No:WZ-106/103- 104,(Entire first floor without roof rights), out of Khasra No:18/14/1, Village Tatarpur, now known as Rajouri Garden Extension, New Delhi as shown in red colour in the site plan. The plaintiff came to know that D-4 had deposited Original Sale Deed dated 09.05.2007 purportedly executed by D-5 (Sh. Rajesh Kumar) for the purpose of obtaiing the said loan.
Based on the date of knowledge, the present suit of the plaintiff is within limitation period. Thus ISSUE No.3 is decided in favour of the plaintiff and against the defendants.
48. ISSUE No.1: Whether the Sale Deed executed in favour of plaintiff was a sham document only for the purpose of obtaining loan from the bank and it did not create any right, title or interest in the suit property in favour of the plaintiff? OPD The plaintiff-herein is seeking declaration that the following instruments be declared as null & void:
- Sale Deed dated 27-02-2006 executed by the defendant No:4 in favor of defendant No:2;
- Sale Deed dated 09-05-2007 executed by the defendant No:5 in favor of the defendant No:4 Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.20
- Notarized general power of attorneys dated 23-02- 2003 executed by the defendants No:1 and 2 in favor of Sh. Ran Pal Singh (defendant No:3);
- GPA dated 16-02-2004 executed by Sh. Ran Pal Singh / Defendant no:3 in favour of Sh. Subhash Chandra/ defendant No:4;
- Other loan documents executed by the defendant No:4 & 5 in favour of defendant No:6.
49. The version of the defendant is that there was no intention to pass over the title of the suit property i.e. WZ- 106/103-104, First Floor, Rajouri Garden Extension, Delhi in favour of plaintiff, but was only intended to be used for obtaining soft loan from the State Bank of India as per a mutual agreement between plaintiff and defendant nos.1 & 2 However, the wordings of the Sale Deed dated 22.04.2004 are clear and unambiguous.
50. In Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595, the Hon'ble Supreme Court commented on section 91 of the Evidence Act by observing that:
"13. ... ... ... This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the ―best-evidence rule‖. It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.21
Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.)... ... ....
51. Proviso 2 to Section 92 permits the proof of execution of a separate oral agreement "as to any matter on which the document is silent", and which is not inconsistent with its terms. Proviso 3 to Section 92 permits the proof of existence of a separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property. Under Section 92(4) of the Evidence Act no parol evidence is admissible to substantiate such oral contract or disposition.
52. The Bombay High Court in Dinkarrai Lalit Kumar & Ors. v. Sukhdayal Rambilas & Ors. AIR 1947 Bombay 293 held that the terms of a contract reduced to writing cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did subsequent to the contract. Once the contract between the parties is reduced to writing, the court can only look at the writing alone in order to construe what the terms of the contract were. (relied upon in Sanjay Gupta v. Cottage Industries Exposition Ltd., 2008 (102) DRJ 304)
53. The Hon'ble Supreme Court in para 22 of Roop Kumar (supra) observed:
"22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.22
upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties".
54. The judgment in Roop Kumar (supra) has been applied by the Hon'ble Delhi High Court in Sparsh Builders v. Maharshi Ayurveda Products Ltd., 163 (2009) DLT.
55. In Bishundeo Narain Rai (Dead) By LRs & Others Vs. Anmol Devi & Others, (1998) 7 SCC 498, the Supreme Court analysed the provisions of the Transfer of Property Act in respect of a "sale" of an immovable property. The Supreme Court, inter alia, observed in para 11 as follows:
"11. ..... It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872."
56. In the present case the defendant has asserted that the Sale Deed dated 22.04.2004 was not intended to be acted upon. However, the defendant No.1 has admitted Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
23during his cross-examination:
"It is correct that sale deed , Ex.DW3/1 dated 22.04.2004 was executed by me and my brother Sh. Prakash Veer in favour of plaintiff. It is correct that I have received total payment of Rs.15 lakhs by way of two bank drafts. It is correct that Rs.10 lakhs was as sale consideration amount. ... It is correct that the suit property i.e. WZ 106/103-104, First floor, Rajouri Garden Extention, New Delhi was later on mutated in the name of the plaintiff. ... I have no documents / proof with regard to payment of Rs.10,000/- p.m. EMI to the plaintiff. It is correct that there is no terms and conditions in the abovesaid sale deed with regard to the payment of the sale consideration to the plaintiff..... It is correct that two GPA dated 23.12.2003 (Ex.PW6/1) and 16.02.2004 (Ex.PW6/2) are forged and fabricated. Vol. I have never executed GPA dated 23.12.2003 in favour of my father and my father had never executed any GPA dated 16.02.2004 in favour of Subhash. It is correct that the sale deed, Ex. PW4/1 and Ex.PW4/2 are forged and fabricated. I have not filed any complaint against defendant no 4 and 5 who have executed the sale deeds with respect to the property. I have no knowledge whether defendant no 4 and 5 availed any loan from bank on the basis of said sale deeds.
57. I do not remember whether I have received any legal notice in respect of attachment of suit property. It is correct that I have filed petition before for setting aside the order passed by Ld. ACMM for attachment against the suit property. It is correct that my petition Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
24challenging the attachment order as passed Ld. ACMM was dismissed by DRT. I have not filed any petition against order passed by DRT."
58. The defendant has admitted the version of the plaintiff on facts. Eventually, the written registered Sale Deed clearly prevails by virtue of S.91 of the Evidence Act and no exception is made out. The plaintiff has been able to prove its version.
59. In a case before the Hon'ble Calcutta High Court Ranjana Mondal & Ors vs Kishori Mohan Samanta [S.A. 132 of 2018 decided on 19 July, 2023] the facts were that it was orally agreed by and between the parties that upon repayment of loan, the property would be retransferred back to the plaintiff-therein. Furthermore the averments of the case-therein was that the property was sold under distress as the petitioner-therein was in need of money to repay the debt and there was oral agreement for re- conveyance. While dismissing the said appeal it was observed that there has to have either some averment in the recital or there has to have an agreement for re-conveyance executed by and between the parties simultaneously with the execution of deed of sale. In absence of any document to that effect or any averment in the recital of the deed, there is no reason to hold that the transaction was not a sale transaction, it was mortgaged by conditional sale. The Hon'ble Calcutta High Court further observed that when the document appears to be a deed of sale, prima facie the provision of Section 92 of the Evidence Act shall operate as a bar and oral evidence cannot be entertained to contradict the content of the said instrument.
Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
2560. The Hon'ble Supreme Court in the case of VIDHYADHAR VS. MANIKRAO & ANR. reported in AIR 1999 SC 1441 has held :-
"38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in presenti or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record.
39. Applying these principles to the instant case, it will be seen that defendant No. 2 executed a sale deed in favour of the plaintiff, presented it for registration, admitted its execution before the Sub-Registrar before whom remaining part of the sale consideration was paid and, thereafter, the document was registered. The additional circumstances are that when the plaintiff instituted a suit on the basis of his title based on the aforesaid sale deed, defendant No. 2, who was the vendor, admitted in his written statement, the whole case set out by the plaintiff and further admitted in the witness box that he had executed a sale deed in favour of the plaintiff and had also received full amount of consideration. These facts clearly establish that a complete and formidable sale deed was executed by defendant No. 2 in favour of the plaintiff and the title in the property passed to plaintiff. The findings recorded by the High Court on this question Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.26
cannot, therefore, be upheld."
61. In the present case there is nothing to show that the sale was a distress sale or was marred by any circumstance which would disentitle the plaintiff-herein.
62. In the present case the plaintiff has placed his suit on facts relating to the transaction / dealings and has adduced evidence in that regard. The plaintiff has lived up to the standard of proof required in a civil case and it was for the defendant to disprove the case of the plaintiff.
63. All the documents proved by the plaintiff form the "bundle of facts" required to prove the case of the plaintiff. The defendant has not proved to 'negate' the version of the plaintiff. A fact is considered to be a proved fact when after considering all the matter and the evidence, the court believes the statement to exist so much so that a prudent man under normal circumstances will believe that the statement exists. In the case of M. Narsingha Rao VS State of Andhra Pradesh, the Supreme Court held that a fact is said to be proved when after considering the matter before it the court believes it to be true.
Thus ISSUE No.1 is decided in favour of the plaintiff and against all the defendants-herein.
64. ISSUE No.(4) Whether the plaintiff is entitled for the relief of declaration, as prayed for ? OPP When the ISSUE No1. has been already decided in favour of the plaintiff and against all the defendants- herein, consequently the relief of declaration follows - particularly in view of the admission of defendant No.1 Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
27wherein he stated that the two GPA dated 23.12.2003 (Ex.PW6/1) and 16.02.2004 (Ex.PW6/2) are forged and fabricated. Further stated that he had never executed GPA dated 23.12.2003 in favour of his father and that his father had never executed any GPA dated 16.02.2004 in favour of Subhash. Further stated that the sale deed, Ex. PW4/1 and Ex.PW4/2 are forged and fabricated. Following is the relevant portion of cross-examination of defendant:
"...It is correct that two GPA dated 23.12.2003 (Ex.PW6/1) and 16.02.2004 (Ex.PW6/2) are forged and fabricated. Vol. I have never executed GPA dated 23.12.2003 in favour of my father and my father had never executed any GPA dated 16.02.2004 in favour of Subhash. It is correct that the sale deed, Ex. PW4/1 and Ex.PW4/2 are forged and fabricated. I have not filed any complaint against defendant no 4 and 5 who have executed the sale deeds with respect to the property. I have no knowledge whether defendant no 4 and 5 availed any loan from bank on the basis of said sale deeds."
65. The law of Declaration is contained in S.34 and S.35 of the Specific Relief Act. It is manifestly for the interest of community that conflicting claims to the property should be settled. In such cases the Section 34 of the Specific Relief Act, 1963. The object of this Section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy.
66. Thus a person claiming declaratory relief must show that he is entitled Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
281. to a legal character, or
2. to a right as to property, and that
3. the defendant has denied or is interested to deny his title to such character or right
4. he has sought all reliefs in the suit.
67. The plaintiff has to prove that the defendant has denied or is interested in denying to the character or title of the plaintiff. A man's status or legal status or 'Legal Character' is constituted by attributes, which the law attaches to him in his individual or personal capacity, the distinctive mark or dress as it were, with which the law clothes him. Legal character means a position recognized by law. A right in Holland's proposition is a man's capacity of influencing the acts of another, by means, not of his own strength, but of the opinion or the force of society.
68. In the present case the plaintiff has been able to show that the Sale Deed dated 22.04.2004 is valid and the other sale deeds etc. thereafter are not valid and ought to be set side. The plaintiff-herein is thus entitled to have the Sale Deeds dated 27.02.2006, 09.05.2007 set aside. The plaintiff is further entitled to have the GPA dated 23.02.2003 and 16.02.2004 set aside.
Thus the ISSUE No.4 is also decided in favour of the plaintiff and against the defendants-herein.
69. ISSUE No.(5) Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for ? OPP In a suit for declaration of rights or character and injunction the Plaintiff will have to substantiate/prove his Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.
29rights as claimed thereof. Accordingly, the Court may in its discretion award the rights so prayed along with permanent injunction, if deemed fit and necessary in the facts of the case.
70. In view of my above observations & findings and the fact that the issues no.1 to 4 have been decided in favour of the plaintiff, the issue no.5 is also decided in favour of the plaintiff and against the defendants, therefore, the defendants no.1 to 5, their attorneys, successors, legal heirs etc, are restrained from selling, transferring, mortgaging and further creating third party interest in the suit property bearing No:WZ-106/103-104, (Entire first floor without roof rights), out of Khasra No:18/14/1, Village Tatarpur, now known as Rajouri Garden Extension, New Delhi as shownn in red colour in the site plan.
71. ISSUE No. (6) Relief.
In view of my findings on the above issues the, the suit of the plaintiff is decreed with cost and plaintiff is granted the relief of declaration and permanent injunction, that the following instruments are hereby declared as null & void and are accordingly set aside:
- Sale Deed dated 27-02-2006 executed by the defendant No:4 in favor of defendant No:5; (declared as null & void and is set aside)
- Sale Deed dated 09-05-2007 executed by the defendant No:5 in favor of the defendant No:4(declared as null & void and is set aside) Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.30
- Notarized general power of attorneys dated 23-02- 2003 executed by the defendants No:1 and 2 in favor of Sh. Ran Pal Singh (defendant No:3); (declared as null & void and is set aside )
- GPA dated 16-02-2004 executed by Sh. Ran Pal Singh / Defendant no:3 in favour of Sh. Subhash Chandra/ defendant No:4; (declared as null & void and is set aside)
- Other loan documents executed by the defendant No:4 & 5 in favour of defendant No:6. (declared as null & void and is set aside)
- the defendants no.1 to 5, their attorneys, successors, legal heirs etc, are restrained from selling, transferring, mortgaging and further creating third party interest in the suit property bearing No:WZ-106/103-104,(Entire first floor without roof rights), out of Khasra No:18/14/1, Village Tatarpur, now known as Rajouri Garden Extension, New Delhi as shownn in red colour in the site plan.
72. Decree sheet be prepared accordingly. File be Digitally consigned to record room. signed by VEENA VEENA RANI RANI Date:
2023.11.18 13:06:14 Announced in the open court. +0530 ( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:31-10-2023 Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.31
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST DISTRICT, TIS HAZARI COURTS, DELHI Suit No:9691/2016 ( New) & Old Case No:57/2011 CNR No: DLWTO1-000263-2011 Dr. D.P. Arya .....Plaintiff Versus Shri Uday Veer & Anrs. .....Defendants 31-10-2023 Present: Sh. Jatin Rana, ld. counsel for the plaintiff Dr. D.P. Arya Sh. Mohit Bhardwaj, Ld. counsel for the defendant Sh. Uday Veer.
Apoorva Aggarwal, Ld. Counsel for D-8. Vide my separate judgment, the suit of the plaintiff is decreed. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally
Announced in the open court. signed by
VEENA
VEENA RANI
RANI Date:
2023.11.18
13:06:28
+0530
.
( VEENA RANI )
Additional District Judge-06,
West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:31-10-2023 Suit No:9691/2016, Dr. D.P. Arya Vs. Shri Uday Veer & Anrs.