Delhi District Court
Mrs. Satwant Pritam Singh vs Shri Sandeep Sharma on 27 January, 2018
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 58155/16
Mrs. Satwant Pritam Singh,
W/o. Late Sh. Pritam Singh,
R/o. 147, Golf Links,
New Delhi110003.
........Plaintiff
Vs.
Shri Sandeep Sharma,
R/o 2nd Floor, 147, Golf Links,
New Delhi110003.
Also at:
House No. 445, Sector 13,
Hissar, Haryana.
.....Defendants
Date of institution : 01.06.2016
Date on which reserved for judgment : 31.01.2018
Date of decision : 31.01.2018
JUDGMENT
Vide this order, I shall dispose off application U/O 12 rule 6 CPC moved by the plaintiff.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 1/22 Plaint
2. It is the case of the plaintiff that she is the owner and landlady of the property no. 147, 2nd Floor, Golf Links, New Delhi110003 comprising of two fully furnished bedrooms, bathrooms, one suite and a large fully furnished dining area alongwith furnitures and electrical fittings etc (hereinafter referred to as the suit property).
2.1 It is her case that defendant approached her in the year 2013 and expressed his desire to take the suit property on lease for residential purposes.
2.2 It is her case that Lease Deed dated 20.10.2013 was executed between her and the defendant wherein she agreed to let out the suit property to him for a period of three years w.e.f. 20.10.2013 at a monthly rent of Rs. 2 lac. It is further her case that rent was to increase yearly at the end of every year at the rate of 10% of the last paid rent.
2.3 It is her case that the said Lease Deed is an unregistered document and accordingly the lease, between her and defendant, tantamounts to a month to month tenancy terminable in accordance with the provisions of the Transfer of Property Act, 1882.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 2/22 2.4 It is her case that defendant was liable to pay the monthly rent in advance on or before 20th of each month, however, since the beginning of the tenancy, the defendant made irregular and delayed payments of rent and till date he has paid an amount of Rs.10,00,000/ only as rent which covers rent for a period of only 5 months i.e. from October, 2013 till February, 2014.
2.5 It is her case that she on various occasions requested the defendant to make timely payment of rent and to clear the arrears of rent, however, he pleaded financial difficulties and assured her that he would pay the rent and clear the arrears.
2.6 It is her case that on the assurance that the arrears of rent would be cleared, she in good faith did not take any action against the defendant. However, despite her repeated requests, defendant has failed and neglected to pay the rent for the last about 2 years.
2.7 It is her case that defendant had also paid interest free security deposit of Rs.12,00,000/ which is to be refunded on the handing over of the vacant and peaceful possession of the suit property after settlement/deduction of any claim/charge/taxes or any due or claim owing to the period in which the suit property was in occupation and possession of CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 3/22 the defendant.
2.8 It is her case that the defendant has been residing in the suit property for the last about 27 months without paying any rent. It is her case that she is willing to refund/adjust the amounts lying with her as interest free security deposit after the deduction/settlement mentioned in Clause 6 of the Lease Deed including damages to the suit property and unpaid electricity and water charges.
2.9 It is her case that finding no other alternative, she vide notice dated 08.03.2016 terminated the tenancy of the defendant in accordance with the provisions of Section 106 of Transfer of Property Act, 1882 and called upon him to vacate and handover the vacant physical possession of the suit property to her within 15 days of the receipt of the said notice and also to clear the dues, arrears of rent.
2.10 It is her case that in spite of receipt of the legal notice, the defendant neither vacated the suit property nor made any payment to her.
2.11 It is her case that defendant has been in illegal and unauthorized possession of the suit property after the termination of the said Lease Deed because of which the plaintiff has been suffering severe financial loss and damages. It is her case that defendant is liable to handover the vacant and CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 4/22 peaceful possession of the suit property to her as well as is liable to pay as arrears of rent, a sum of Rs. 52,50,000/ alongwith interest @ 18% till the termination of the said lease deed. It is her case that for the period subsequent to the termination of the lease deed, the defendant is liable to pay an amount of Rs. 3,00,000/ per month exclusive of water and electricity charges, which is current market rent of the suit property, till the date the defendant hands over the vacant and peaceful possession of the suit property to her.
Written statement
3. In the written statement it was pleaded that the present case filed by plaintiff is not maintainable and is liable to be dismissed as she has not approached the court with clean hands and has rather misrepresented the court by mentioning wrong facts so as to seek relief from the court.
3.1 It was pleaded that she is guilty of forging and fabricating the documents and based upon the said forged documents, she has filed the present suit. It was pleaded that she has forged the signatures of the defendant on various papers and have termed the same as "lease deed" and has laid the very foundation of the present suit.
3.2 It was pleaded that no relationship of landlord and tenant exist CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 5/22 between the plaintiff and defendant. It was further pleaded that the suit of the plaintiff is barred by provisions of Section 107 of Transfer of Property Act read with Section 17(1) (d) of the Registration Act and therefore, the suit is liable to be rejected U/O 7 rule 11 CPC, as the Lease Deed dated 20.10.2013 is an unregistered document.
3.3 It was pleaded that he had purchased the suit property vide an oral agreement to sell with the plaintiff in the month of September, 2013 and is in the lawful possession of the suit property since then in the capacity of its purchaser/owner.
3.4 It was further pleaded that he paid a sum of Rs. 20 lacs to the plaintiff as earnest money at the time of oral agreement and handing over of the possession and in terms of the request of the plaintiff, he had paid a sum of Rs.2.20 Crores to her soninlaw namely Mr. Surinder Singh in Dubai on 25.11.2013 qua which the acknowledgment cum receipt was issued by her son namely Mr. Jaskaran Singh in Delhi. It was further pleaded that payment was made in Dubai, at the request of the plaintiff and her son, who wanted to avoid their tax implications as the said money was ultimately to be transferred by them in the account of their soninlaw.
3.5 It was further pleaded that receipt issued by the plaintiff qua the above said money was lying in the safe custody in his almirah however, in CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 6/22 the meantime some matrimonial dispute arose between him and his wife namely Neetu, as a result of which, he remained out of the suit property for some time and the entire goods and belongings remained in the custody of his wife.
3.6 It was further pleaded that the dispute was settled and ended with a divorce by mutual consent and in view of the said tough period, he forgot to take care/check the said receipt and is in the process of tracing it out, which might be in his custody or of his exwife and he will produce and file the same before the court in due course.
3.7 It was further pleaded that he has been repeatedly requesting the plaintiff to execute the necessary title deeds of the suit property in his favour after receiving the balance sale consideration but the plaintiff is intentionally and deliberately avoiding the same on one pretext or another.
3.8 It was further pleaded that he never received any legal notice from the plaintiff and that she has filed the present suit solely to restrain him from claiming his rights, title and interest in the suit property and to defeat his lawful claims and rights over the suit property and he reserves his right to initiate appropriate legal action against the plaintiff in due course of time.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 7/22 Application under Order 12 Rule 6 CPC
4. In the application at hand it is the case of the plaintiff the defendant has falsely pleaded that he is in possession of the suit property as the owner and not as a tenant and that he had given amount of Rs. 20 lac to the plaintiff and Rs. 2.20 cr. to her son in law in Dubai on 25.11.2013 in this regard.
4.1 It is further the plaintiff's case that there is no agreement between her and the defendant either oral or in writing for sale of suit property to the defendant and no money has been paid by the defendant to her or on her behalf to her son in law. It is the plaintiff's case that apart from bald averments no document has been filed by the defendant showing transfer of money to her or to her son in law. It is her case that defendant has not even pleaded the essentials of the alleged oral agreement to sell i.e. date, consideration amount, time period of transaction etc. It is pleaded that he has not stated what steps he has taken since September 2013 to conclude the alleged oral agreement and his entire defence is moonshine and hence the plaintiff is entitled to a judgment on admission. It is pleaded that even if the stand taken by the defendant in his written statement is correct, though not admitted, still defendant is not entitled to continue to be in possession of the suit property as in the absence of any registered written document he cannot hold onto the possession merely on the basis of an alleged oral CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 8/22 agreement to sell. It is thus prayed that a decree of possession of the suit property be passed in favour of the plaintiff.
Reply of defendant to application under Order 12 Rule 6 CPC
5. In reply it is claimed that there is misrepresentation of facts and the application is liable to be dismissed. It is claimed that the plaintiff is guilty of forging and fabricating the documents as she has forged the signatures of the defendant on various papers and termed the same as lease deed. It is claimed that in the entire written statement the defendant has nowhere admitted the relationship of landlord and tenant between the parties and no judgment on admission can thus be passed more so when defendant is alleging to be the owner of the suit property. It is claimed that he is in possession of the suit property in pursuant to oral agreement to sell.
6. Heard the parties and perused the records carefully.
6.1 Order XII Rule 6 of the Code of Civil Procedure reads as under : "6. Judgment on admission. (1) Where admissions of fact have been made either in the plead ing or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any part or of its own motion and without waiting for the determination of any other question between the parties, make such order or given such judgment as it may think fit, having regard to such admissions.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 9/22 (2) Whenever a judgment is pronounced under subrule(1) a decree shall be drawn up in accor dance with the judgment and the decree shall bear the date on which the judgment was pro nounced."
6.2 In Charanjit Lal Mehra v. Kamal Saroj Mahajan AIR 2005 SUPREME COURT 2765 the Hon'ble Supreme Court held:
".......In fact, Order XII, Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. .............In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal and Co. Ltd. v. United Bank of India and others, reported in 2000 (7) SCC 120. Their Lordships have held as follows:
"In the Objects and Reasons set out while amending Rule 6 of Order 12, CPC it is stated that 'where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable to the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled."......"
6.3 Order XII Rule 6 CPC confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on wellestablished principles. Admission must be clear and unequivocal, it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part. Even a constructive admission firmly made can be made the basis of passing CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 10/22 appropriate orders. {Rama Devi Vs. Punam Chand Aggarwal 2008 (4) Civil Court Cases 701 (Delhi)} 6.4 In Gajender Kumar Loond Vs. Samant Barara in IA no.
13740/2011 in CS (OS) 1132/2011 it was held as under:
"it is now wellestablished that admissions are not restricted to pleading. More often than not, contents of the plaint are denied in order to delay proceedings and procrastinate the incidence of liability. Admissions can, therefore, be justly and soundly drawn even from attending circumstances, such as pleadings in other suits or proceedings, or documents exchanged between the parties. In fact, in my opinion, documents constitute the best source of admissions of facts. In the present case, admittedly a license deed was executed by the parties, and the Court need not travel any further. It is bound to treat the contents of such a document as admissions between the parties, and give effect to its contents at the very earliest. Failure to do so would tantamount to encouraging dishonest pleadings. All the averments put forward by the plaintiff are predicated and are sustainable merely from a reading of this deed itself."
6.5 In the case at hand it is not disputed that the plaintiff is the owner of the suit property. It is however claimed that defendant has purchased the suit property on the basis of an oral agreement to sell and is in possession of the suit property in the capacity of an owner. However the claim of the defendant is false, frivolous, vexatious and moonshine.
6.6 To begin with no date of the oral agreement to sell has been given by the defendant. It is simpliciter claimed that he entered into an oral agreement to sell in September 2013. It is not believable that a person would enter into an agreement to sell, pay huge consideration amount of Rs. 2.40 crores and does not even remember the date when he enters into CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 11/22 the alleged agreement to sell. It is also highly unbelievable that an oral agreement to sell would be entered into for purchase of such a costly property. Normally when such a huge amount is involved parties invariably enter into a written agreement to sell or atleast execute some documents, writing to safeguard their interest. Though defendant has claimed that one acknowledgement cum receipt was issued by the son of the plaintiff namely Sh. Jaskaran Singh in respect of an amount of Rs. 2.20 crores which was paid to the plaintiff's son in law namely Sh. Surender Singh in Dubai on 25.11.2013 however no such receipt or a copy thereof has been brought on record till date. It has been more than 16 months since the defendant has been allegedly tracing the said receipt. In fact he is not even sure as to whether the receipt is in his custody or that of his wife Neetu. This is nothing but a concocted story merely to delay the outcome of the present proceedings. Fact remains that there is no such receipt. If indeed any such receipt was ever executed, which otherwise I have serious doubts about its execution, the defendant or his wife would not have kept it casually or lost track of the same. Nonetheless 16 months time is a huge time to trace the receipt.
6.7 Even otherwise the entire story of having paid Rs. 2.20 crores to plaintiff's son in law in Dubai on 25.11.2013 does not inspire any confidence whatsoever. It is not explained how the said amount was given to the plaintiff's son in law Sh. Surender Singh i.e. in cash or by way of CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 12/22 cheque or any other mode. Defendant till date has not bothered to file his statement of account to show withdrawal of Rs. 2.20 crores from his account for payment to the plaintiff's son in law or has not explained how he arranged the said amount as was paid to Sh. Surender Singh. If the amount was paid to Sh. Surender Singh he should have taken an acknowledgment from him and not from Sh. Jaskaran Singh i.e. plaintiff's son. Rather acknowledgement should have been taken from the plaintiff I.e. seller of the property which is not the case. All this proves that this is cock and bull story.
6.8 Defendant also claimed that he had paid a sum of Rs. 20 lac to the plaintiff as earnest money at the time of oral agreement to sell and handing over of the possession. Defendant has not placed on record any document to even remotely corroborate/ substantiate payment of Rs. 20 lac as earnest money to the plaintiff. The date when the said amount was paid, the mode of payment, cash, cheque or otherwise has also not been explained. All this is nothing but bundle of lies upon which the defendant malafidely wants to lay foundation of his frivolous claim. Furthermore though he has claimed that he had been repeatedly requesting the plaintiff to execute the sale documents in his favour however not only no such requests, the dates when the requests were so made have been provided but even the entire sale consideration amount for which he had allegedly purchased the suit property has not been mentioned in the pleadings. This CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 13/22 itself shows the vagueness of his defence.
6.9 It will be pertinent to highlight that though in his written statement filed on 05.06.2017 the defendant is claiming to be "in the lawful possession of the suit property in the capacity of its purchaser/owner" and "having purchased the suit property vide an oral agreement to sell"
however in his application under Order IX Rule 13 CPC as moved on 20.12.2016, which was ultimately allowed by Ld. Predecessor of this court and whereupon the written statement was filed by the defendant, he had claimed that he is residing in the suit property which he "had taken from the plaintiff on some understanding and exchange". If indeed the averments of the written statement are correct and there is any iota of truth in his claims then same should have been the stand in application under Order IX Rule 13 CPC i.e. words "owner/purchaser" and "oral agreement to sell" should have been used instead of the words "residing" and "some understanding and exchange". Fact remains that he is malafidely on account of dishonest intention setting up a frivolous defence.
6.10 Plaintiff has relied upon lease deed dated 20.10.2013 to show the relationship of landlady and tenant between her and the defendant. The said lease deed is running into 11 pages and it bears the signatures of the plaintiff, defendant and two witnesses. Defendant has claimed that this lease deed is a forged document and it does not bear his signatures. At the CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 14/22 outset it does not appeal to a prudent mind that the plaintiff, who is around 80 years old would forge signatures that too on 11 pages. If indeed defendant's signatures were forged by the plaintiff and she prepared a forged lease deed then it was a very serious offence for which defendant ought to have taken appropriate legal action against her. Defendant, if indeed there is genuineness in his claim, came to know about the forged lease deed upon filing of the present suit however till date he has not initiated any legal action whatsoever against the plaintiff for the alleged forgery committed by her. This itself proves that the falsity and hollowness of his claim.
6.11 Plaintiff has placed on record copy of her Income Tax Return and statement of account reflecting the leasing out of the suit property on rent as well as the rent received by her from the defendant. Rent to the tune of Rs. 10 lac is credited in the account of the plaintiff. Rs. 8 lacs have been paid by the wife of the defendant and Rs. 2 lac by the defendant himself (Rs. 2 lacs on 21.01.2014, Rs. 4 lacs on 21.02.2014, Rs. 2 lac on 30.05.2014 and Rs. 2 lac on 16.07.2014).
6.12 Till date the electricity meter and water connection are in the name of the plaintiff. It is she who is paying the house tax and it is not the defendant's case that it is he who is paying house tax or any other statutory charges.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 15/22 6.13 Hence the plea of oral agreement to sell is nothing but falsehood. There is no iota of truth in the same and it is absolutely devoid of merits. Nonetheless even if for the argument sake it is believed that there was some oral agreement to sell between the plaintiff and the defendant still merely on the strength of oral agreement to sell defendant cannot retain, continue with the possession of the suit property. The law is well settled in this regard.
6.14 Before discussing the law I would also like to highlight that at the outset it does not appeal to a prudent mind that a seller, vendor, owner would put a buyer in possession of the property without having received the entire consideration amount as agreed for the sale of the property and without execution of necessary sale documents. Furthermore as discussed above defendant has not even explained in his written statement as to the period within which the sale transaction was to be completed and the necessary sale documents were to be executed by the plaintiff. This vagueness in the defence set up itself prove its falsehood. Moreover and mostly importantly though it was claimed that oral agreement to sell was entered into in 2013 however till date, even after filing of the present suit defendant has not filed any suit for specific performance of oral agreement to sell. This itself proves the falsity of defendant's claim.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 16/22 6.15 As discussed above it is a settled law that a party cannot retain or continue with the possession of a property merely on the strength of oral agreement to sell or for that matter written agreement to sell. Reliance in this regard may placed upon the law laid down in Earthtech Enterprises Vs. Kuljit Singh Butalia 199 (2013) DLT 194 it was held as under:
11. In P.P.A. Impex (supra), the decree of possession passed by the Single Judge, on an application under Order 12 Rule 6 of the Code, has been upheld by the Division Bench of this Court. In the said case, defendant had claimed an independent right in the suit property pursuant to an agreement to sell. As per the defendant his defence could have been substantiated only during the trial and no decree on admission could have been passed.
Division Bench found the defence of defendant to be moonshine. Division Bench observed thus "the courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial". In Om Wati (supra) also, a decree of possession was passed in favour of the landlord on admission of tenant in the written statementcumcounter claim that she came in possession of the suit premise as a tenant, however, she set up a defence of agreement to sell. In this context, Division Bench of this Court held as under: The defence of possession being protected under Section 53A of the Transfer of Property Act, 1882 in the context of the alleged oral agreement was negated by the learned Single Judge holding that Section 53A of the Transfer of Property Act would come into play only when there was a written agreement to sell under which possession was handed over and sale consideration paid. With respect of the defence taken, we must hold the same to be a sham and of a kind which no Court of justice or equity would countenance. If these kinds of defences are to be permitted to be set up, it would create havoc in the society. Every tenant would start claiming that some relative of his or hers of he himself rendered some services of effected delivery of certain goods which was to be recompensated by way of sale consideration for the sale of the tenanted property.......
13. A bare perusal of aforesaid provision makes it clear that a person can protect his possession under Section 53A of the Transfer of Property Act on the plea of part performance only if it is armed with a registered document. Even on the basis of a written agreement he cannot protect his possession. In this case, plea of existing oral agreement has been set. In any event, in this case, appellant cannot protect his possession under the shield of Section 53A of the Transfer of Property Act. Even otherwise, mere agreement to sell of an immovable property, even if the plea of oral agreement is accepted for the sake of argument, would not create any right in favour of the tenantappellant to hold over the possession of the suit property.
14. In Sunil Kapoor (supra), 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 CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 17/22 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. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merelybecause of the agreement to sell in his favour..........
15. In the light of above discussions, it can safely be concluded that appellant had come into possession of the suit property as a tenant and he continues to be a tenant in view of the admissions made in TDS certificates. Plea of oral agreement to sell is a moonshine defence and has to be ignored. Appellant cannot resist his ejectment as protection under Section 53A of the Transfer of Property Court is not available to him, in the facts of this case. Admission is categorical, unequivocal and unambiguous and can be inferred from the pleadings coupled with the documents and makes the appellant entitled to a judgment on admission, thus, trial court has rightly passed a decree of possession in favour of the respondent. In Uttam Singh Duggal (supra), in the context of Order 12 Rule 6 of the Code, Supreme Court has held thus "the object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. In Charanjit Lal Mehra (supra), similar view has been expressed, inasmuch as, it has been held that any admission can be inferred from the facts and circumstances of the case without any dispute, then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. In Surjit Sachdev v/s Kazakhstan Investment Services Pvt. Ltd. & Others 66 (1997) DLT 54 (DB), this Court has held that admission need not be made expressly in the pleadings. Even on constructive admission Court can proceed to pass a decree in plaintiff's favour.
16. For the foregoing reasons, I am of the view that trial court has rightly held that landlord tenant relationship admittedly existed between the parties. Rate of rent being above `3,500/ was also admitted. As regards termination of tenancy by issuance of notice is concerned, trial court has held that tenancy was month to month basis since lease agreements were unregistered. Tenancy was terminated by issuing a notice under Section 106 of the Transfer of Property Act."
6.16 In Sunil Kapoor Vs. Himmat Singh 2010 II AD (Delhi) 463 wherein it was held as under:
14...........A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his possession in part performance of the agreement to sell.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 18/22
15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.
16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment.
6.17 In PPA Impex Vs. Mangal Sain Mittal 166 (2010) DLT 84 (DB) it was held as under: "7. So far as the case relating to Order XII Rule 6 is concerned, the Supreme Court has recommended resort to this provision to bring a quick end wherever a vexatious and false defence has been presented. The following paragraph from Charanjit Lal Mehra vs Kamal Saroj Mahajan, AIR 2005 SC 2765 is reproduced for facility of reference: ....In fact, Order XII Rule 8, C.P.C. is enacted for the purpose of and in order to expedite the trials it there is any admission on behalf of the defendants or an admission can be interred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon................
.........9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers vs Basic Equipment Corporation, (1976) 4 SCC 687 in the context of Order XXXVII of the CPC with regard to granting Leave to Defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting Leave to Defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to Trial...........
.........11. We are of the view that the learned Single Judge has correctly approached the matter and arrived at conclusion in accordance with law. When a Suit for Possession is presented, the Court must look into the status of the Defendant. The Defendant may be in possession by virtue of part performance of an agreement. In such a case, he may be immune from eviction by virtue of Section 53A of the Transfer of Property Act, 1882 (TP Act for short) as has been opined by our learned Brother, Madan B. Lokur, J. in D.R. Puri vs Kamlesh Sawhney, 2001(60) DRJ 738, a decision which has been relied upon by learned counsel for the Appellant, but without CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 19/22 contextual justification. In this regard, no document whatsoever has been filed evidencing an Agreement to Sell the demised premises between the Appellant and the Respondent or even the predecessorin title, namely, Smt. Raj Rani Sethi. If the Trial Court had been confronted with a Receipt for the alleged sum of Rupees six lacs, it may have thought it appropriate to send the matter for Trial. If pleadings of this nature, which we see as total moonshine, are taken note of, the provision of Order XII Rule 6 would be virtually annihilated"
6.18 In Om Wati Vs. Panchi Devi 190 (2012) DLT 720 (DB) it was held as under: "12. The defence of possession being protected under Section 53A of the Transfer of Property Act,1882 in the context of the alleged oral agreement was negated by the learned Single Judge holding that Section 53A of the Transfer of Property Act would come into play only when there was a written agreement to sell under which possession was handed over and sale consideration paid.
13. With respect to the defence taken, we must hold the same to be a sham and of a kind which no court of justice or equity would countenance. If these kinds of defences are to be permitted to be set up, it would create havoc in the society. Every tenant would start claiming that some relative of his or hers or he himself rendered some services or effected delivery of certain goods which was to be recompensed by way of sale consideration for the sale of the tenanted property.
14. Thus apart from the reasoning of the learned Single Judge we hold additionally that the defence to retain possession is a moonshine defence and has to be ignored."
6.19 In Shiv Kumar Vs. Sumit Gulati 2015 SCC Online Delhi 13857 it was held as under:
12. Section 49 of the Registration Act was also amended in tune with Section 17. Other amendments were also carried out in the said Act. Similarly, Section 53A of the Transfer of Property Act was amended in tandem with the amendment of the Registration Act and the Indian Stamp Act was also, accordingly, amended. The effect of these amendments was that post amendment of the law, the agreement to sell whereunder possession was sought to be delivered, could be entered only by a duly stamped and registered instrument. If not so executed, the agreement purchaser could not claim the protection afforded by Section 53A of the Transfer of Property Act.
13. In the present case, it is not even the case of the appellant that the alleged agreement to sell entered into between the parties in November 2007, was registered. The effect of non registration of the agreement to sell, even if the same is presumed to have been so executed as CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 20/22 claimed by the appellant/defendant (which is disputed by the respondent/plaintiff), is that the appellant/defendant cannot claim to have come into possession of the suit property under the alleged agreement, and cannot claim to be in possession in part performance of the alleged agreement to sell. He, thus, cannot claim protection under Section 53A of the Transfer of Property Act.
6.20 In Mac Associates Vs. S.P. Singh Chandel (2013) 198 DLT (CN) 9 it was held as under:
13...........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 53A of the Transfer of Property Act, 1882 unless such an agreement is a registered document..........
6.21 In V.R. Sudhakar Rao and ors Vs. T.V. Kameswari (2007) 6 SCC 650 it was held as under:
"First it would be necessary to deal with the effect of Section 53(A) of the T.P. Act. It is fairly accepted that in the case of an oral agreement of sale the defence under Section 53(A) of the TP Act is not available to a party who alleges to be in possession of the property."
6.22 Defence as taken by the defendant is thus sham, moonshine and of a kind which no court of justice or equity would countenance.
6.23 Therefore the application stands allowed and is disposed off accordingly.
6.24 Plaintiff is entitled to recovery of possession of the suit property. The defendant is directed to hand over the possession of the suit CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 21/22 property i.e. property no. 147, 2nd Floor, Golf Links, New Delhi110003 comprising of two fully furnished bedrooms, bathrooms, one suite and a large fully furnished dining area alongwith furnitures and electrical fittings etc. to the plaintiff within one month.
7. Decree sheet be prepared accordingly.
(Gaurav Rao)
Announced in the open Court ADJ02 & Waqf Tribunal /
on 31st January 2018 New Delhi District,
Patiala House Courts, Delhi.
CS No. 58155/16 Satwant Pritam Singh Vs. Sandeep Sharma 22/22