Delhi District Court
Smt. Chand Sehgal vs Sh. Vinod Kumar Paul & Ors on 15 July, 2010
IN THE COURT OF SH SUNIL RANA
ADDL. DISTRICT & SESSIONS JUDGE 03 (WEST )
TIS HAZARI COURTS
DELHI
Suit No. 346/09
Unique ID No. 02401C0437582009
Smt. Chand Sehgal ...............Plaintiff
Versus
Sh. Vinod Kumar Paul & Ors. ..........Defendants
Date of Filing : 22.09.2009
Date of Reserving Order : 15.07.2010
Date of Decision : 15.07.2010
O R D E R
By this order I shall decide an application filed by the plaintiff under order 39 Rule 1 and 2 read with 151 CPC for grant of ad interim injunction.
1. Brief facts of the case are that the plaintiff is a real sister of the defendant no. 1 and defendant no. 2 is real sister in law of the plaintiff. It has been contended that the plaintiff was residing Suit No.346/09 ...............1/15 at Bombay prior to and till the year 1989 and the defendant no. 1 was residing at H.No. 77B , Model Town, Phagwara, Punjab. It has been further contended that the defendant no. 1 has persuaded the plaintiff to purchase the adjoining plots No. 7374 measuring 250 square yards each i.e. 500 sq. yards located in khasra no. 51/43 at village Baprola, Delhi State Colony, Janak Vihar, PS Nihal Vihar, New Delhi, saying that soon the prices of the said plots shall shoot up and the plaintiff shall reap high returns from the said plot and believing the advice of the defendant no. 1 had agreed to purchase the said plots as the younger son of the plaintiff is mentally handicap/disturbed and she was worried about future of her younger son. It has been further contended that real intention of the plaintiff was to sell those plots for the welfare of her handicap son Samrath Sehgal as and when the price of the said two plots reach their maximum.
2. It has been further stated that on 24.7.1989 as directed by the defendant no. 1, the plaintiff has handed over the bank draft No. 006011 dated 12.7.89 issued by PNB Shivaji Park Bombay for an amount of Rs. 1,00,000/ and a cash amount of Rs. 75,000/ to the seller Sh Kishan S/o Sh. Meer Singh in the office of Sub Suit No.346/09 ...............2/15 RegistrarI, Delhi and on the very said dated i.e. 24.7.1989 receipt and the agreement to sell were executed and registered in the office of sub registrar on 24.7.89. It has been further contended that after a few days from 24.7.1989 the delivery of the registered receipt and agreement to sell was physically taken by defendant no. 1 and 2 from the office of the Sub RegistrarI. It has been further submitted that thereafter the defendant no. 1 and 2 had kept all the registered documents i.e. receipt, GPA and agreement to sell pertaining to the said plots on the pretext that they will keep the same in the safe custody. It has been further contended that on the basis of those documents the plaintiff had became the owner of the said plots and the physical possession of the said plots were also handed over to the plaintiff. It has been further contended that plaintiff had raised boundary wall on the said area of 500 sq. yards and also put a temporary gate thereon. It has been further contended that thereafter the plaintiff had started residing at Bombay upto the year 1994 and was also sometimes residing with her son Sh. Vineet Sehgal in Atlanta, Georgia State, USA.
3. It has been further contended that plaintiff had been asking the defendant no. 1 and 2 to hand over title deed of the said Suit No.346/09 ...............3/15 plots to her but the defendant had been telling the plaintiff that the prices of the said plots were rising continuously and original title deed must remain in their custody in order to show them to the property dealer and prospective buyers. It has been further contended that when the plaintiff had returned from USA to Delhi on 4.6.2009 and had asked the defendant No. 1 & 2 to return the said title deeds pertaining to the plots No. 73 & 74, the defendant no. 1 had sought some time to locate the misplaced title deeds and plaintiff was fed up by hearing similar lame excuses and ultimately gave warning to the defendant No. 1 to return the title deed otherwise plaintiff will approach the police. It has been contended that both the defendants became scared and on 18.6.2009 came to the House No. B3, Guru Ram Dass Nagar, Laxmi Nagar, Delhi92, where the plaintiff was residing with her cousin Sh. K.K. paul and during the discussion between plaintiff and defendant no. 1 and 2, it was revealed by the plaintiff that they have already sold the said two plots without the consent or even knowledge of the plaintiff. It has been further submitted that the said conversation was recorded on the said cell phone and same was got copied on a CD by the plaintiff. It has been further Suit No.346/09 ...............4/15 contended that ultimately on 28.06.2009, the plaintiff had lost her patience and had gone to the the house of the defendants at Plot No. 115, Mahagun Villa, Plot No. 30, Sec. 4 Vaishali, Ghaziabad, and asked the defendant no. 1 to return the said title deeds, but the defendant no. 1 had told the plaintiff that they have already sold the said plots and started grappling with the plaintiff in filthy language and was confined in one room of their house for about 2 hours and a report was also lodged in PS Indirapuram, Ghaziabad. It has been further contended that the defendant no. 1 and 2 had subsequently told the plaintiff that said two plots have been sold through one property dealer namely Sh. Shishdeshpal @ Masterji through whom said two plots were purchased by the plaintiff. It has been further contended that since the beginning, the defendant no. 1 and 2 wanted to grab the said two plots of the plaintiff and intentionally kept the original title deed of the said two plots with them and deceived the plaintiff. It has further been contended that plaintiff had also lodged a criminal complaint on 20.8.2009 under section 420/467/468/471/120 B IPC against the defendant no. 1 and 2 at PS Nihal Vihar, Delhi which is pending investigation. It has been further contended that sale of said two Suit No.346/09 ...............5/15 plots by defendant no. 1 and 2 through the defendant no. 3 is on the basis of the false, forged and fabricated power of attorney or some other documents pretending to be executed by the plaintiff authorising the defendant no. 1. It has been further contended that the plaintiff had never authorised the defendant no. 1 either orally or in writing to sell the said two plots. It has been prayed that an interim injunction be passed restraining the defendants to create any third party interest in the suit property.
4. On the other hand, the defendant no. 1 and 2 had filed reply to the suit as well as to the present application. It has been urged on behalf of the defendants no. 1 and 2 that the suit of the plaintiff is not maintainable as plaintiff has not come with clean hand before this court and has intentionally withheld the relevant necessary facts in order to commit fraud against the defendants. It has been urged on behalf of the defendants no. 1 and 2 that no cause of action has arisen and as such present suit is liable to be dismissed for lack of cause of action. It has been urged that the plaintiff has filed the present suit with sole aim to cause harassment and mental agony to the answering defendants and as such the present suit is not maintainable and is liable to be Suit No.346/09 ...............6/15 dismissed. It has been further urged that the plaintiff has executed the registered GPA dated 13.5.1983 in favour of the defendant no. 1 and said registered GPA is registered as document No. 58 Sub Registrar, Phagwara, Punjab. It has been further urged that in the said registered GPA, plaintiff had given power to sale, exchange or dispose off the property to defendant no. 1 and his father Sh. Ajeshwar Singh Paul, jointly and severally. It has been further urged that Sh. Ajeshwar Singh Paul had died on 10.4.1984 and the said registered GPA was never canceled by the plaintiff till date. It has been urged on behalf of the defendants no. 1 and 2 that plaintiff had purchased the said plots as defendant no. 1 had already owned the plot bearing no. 33 at Janak Vihar, Delhi measuring 200 sq. yards situated near to the said plots bearing No. 73 & 74 at Janak Vihar, Delhi. It has been further urged that when the defendant no. 1 had sold his plot through one Sh. Shishpaul ( defendant no. 3 ) and subsequently, the plaintiff had also requested the defendant no. 1 to sell her plots as no other person was there in Janak Vihar to look after those plots. It has been further urged that on the request of the plaintiff and on the basis of the registered Power of Attorney dated 13.5.1983, the Suit No.346/09 ...............7/15 defendant No.1 had sold out the said plots through the defendant no. 3 on 10.11.2005 by way of registered GPA, agreement to sell and receipt etc. for a total sale consideration of Rs. 2 lacs. It has been further urged that information of sale and execution of aforesaid documents and consideration amount of Rs. 2 lacs was duly given to the plaintiff and cash was also handed over to the plaintiff on 17.12.2006, when the plaintiff had visited the house of the defendant no. 1. It has been further urged that the plaintiff has now become greedy and has filed a criminal complaint against defendant no. 1 and 2 by lodging FIR No. 1393/09 under section 420/406/504/34 IPC, PS Indira Puram Ghaziabad.
5. On merits, it has been denied that the plaintiff was residing in Bombay till 1989 and the defendant no. 1 had persuaded the plaintiff to purchase adjoining plot no. 73 and 74 at Janak Vihar, Delhi. It has been urged on behalf of the defendant no. 1 and 2 that plaintiff had executed registered Power of Attorney dt. 13.5.83 in favour of the defendant no. 1. It has been denied that the title deeds were kept in possession of defendant no.
1. It has been submitted that all relevant documents were with the plaintiff and same were handed over to the defendants when the Suit No.346/09 ...............8/15 plaintiff had come to India in the last week of June 2005 with a request to sell her plots. It has been further urged that all the documents of the said plots were in custody of the plaintiff upto 2005 since its purchase.
6. It has been further urged that there is no voice recording of answering defendants and if there is any recording of the defendants then same has been falsely manufactured by the plaintiff for substantiating her case. It has been further urged that out of the greed now the plaintiff has started demanding the money illegally from the answering defendants saying that if she had not sold out the property in the year 2005 then it would have fetched the higher amount. It has been further submitted that complaint lodged by the plaintiff on 20.5.09 under section 420 r/w 120B IPC is false and baseless. It has been submitted that plaintiff had duly executed a registered GPA in favour of the defendant no. 1 and plots were sold accordingly. It has been denied that the said plots bearing No. 73 & 74 were sold on the basis of false and fabricated documents. It has been further urged that the plaintiff is not entitled for any interim relief and present application is liable to be dismissed.
Suit No.346/09 ...............9/15
7. On the other hand, defendant no. 3 has also filed the WS as well as reply to the present interim application and urged that there is no privity of contract between the plaintiff and answering defendant, as defendant no. 3 is a property dealer/consultant and had helped the defendant no. 1 and plaintiff to purchase the plots in dispute. It has been further submitted that the suit of the plaintiff is hopelessly time barred and is not maintainable. It has been further urged that as far as sale of the plots are concerned, the plaintiff had given GPA to the defendant no. 1, who had requested the answering defendant to sell the property and the amount of consideration was paid then and there. It has been further urged that answering defendant has no knowledge about the dispute between the defendant no. 1 and 2 and the plaintiff as they are real brother and sister.
8. On merits, it has been urged by the defendant no. 3 that said plots were sold by the defendant no. 1 on behalf of the plaintiff being an attorney of the plaintiff after receiving the consideration amount. It has been further urged that there is no fault on the part of the answering defendant as he is merely a property dealer/consultant and deals in sale/purchase of the plots.
Suit No.346/09 ...............10/15 It has been further urged that defendant no. 3 has been unnecessarily dragged in the present case and suit of the plaintiff is liable to be dismissed as she is not entitled to any relief against the answering defendant no. 3.
9. I have heard the counsel for the parties and perused the record.
10. It is a well settled principle of law that at the time of the disposal of application U/o 39 Rule 1 & 2 CPC, the court is required to see as to :
(i) whether there is prima facie case in favour of the applicant or not.
(ii) In whose favor the balance of convenience is lying.
(iii) Who is going to suffer irreparable loss, in case the injunction is not granted.
11. In the instant case, the plaintiff has prayed for ad interim injunction restraining the defendant no. 1 to 3 from parting with the possession of the plots no. 73 & 74 measuring 250 sq.yds i.e. total 500 sq.yds located in khasra no. 51/43 at village Baprola, Delhi State Colony, Janak Vihar, P.S. Nihal Vihar, New Delhi or create any third party interest in any manner whatsoever till the Suit No.346/09 ...............11/15 final disposal of the suit.
12. It is also well settled principle of law that at the time of granting interim injunction, court has to see that it is not used as an instrument of oppression to have any unfair advantage to the plaintiff and the court should constantly " be guided by justice, equity, good conscience and fairness to both the parties. In the instant case, considering from this perspective and in view of the fact that the plaintiff had admitted the fact that the defendant No. 1& 2 had already sold the plots bearing No. 73 & 74, Janak Vihar, Delhi through defendant No.3( property dealer/consultant) in 2005. It is pertinent to mention here that now plaintiff is seeking an interim injunction restraining the defendants to create any third party interest or sell those plots bearing no. 73 & 74 at Janak Vihar, Delhi. On the other hand, the defendants No. 1 & 2 has submitted that those plots were sold out in 2005 on the instructions of the plaintiff by virtue of the registered GPA dated 13.05.1983 duly executed in favour of defendant No.1. Considering the facts and circumstances of the case any interim order passed in the instant case would be unrealistic and unfair.
13. When a court is called upon to grant an ad interim Suit No.346/09 ...............12/15 injunction, ex parte or otherwise, it is trite that it must be satisfied of the existence of a prima facie case in favour of the plaintiff. The balance of convenience must also lie in favour of the plaintiff and it should be manifestly clear that unless the protection of the Court is granted the plaintiff will suffer irreparable loss and injury.
14. It is also a well settled principle of law that where both sides are exposed to irreparable injury, ending trial, the courts have to strike a just balance as held in Mahadeo Savlaram Shelke Vs. Pune Municipaul Corporation (1995) 3 SCC 33, it is urged that the court considering an application for an interlocutory injunction has four factors to consider: first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation.
15. A prima facie should be made out. The mere institution of a suit does not entitle the plaintiff to any relief. Plaintiff must Suit No.346/09 ...............13/15 satisfy the court that there is fair and substantial question to be tried. In the instant case, a registered GPA dt. 13.5.83 was duly executed by plaintiff in favor of defendant no.1. It is also pertinent to mention here that on the basis of said registered GPA, the defendant no.1 had already sold those plots bearing no. 73 & 74 through defendant no.3 in the year 2005. It is also pertinent to mention that said registered GPA dt. 13.5.83 has never been cancelled by the plaintiff till today.
16. Admittedly as per the plaint, defendants are not in the possession of the suit property as the defendants have already sold the suit property on the instructions of plaintiff on the basis of registered GPA dt. 13.5.83 as submitted by defendant no. 1 to 3.
17. I am of the view that prima facie is not to be confused with prima facie title. In the instant case, substantial question raised by the parties which at first sight needs investigation and can be established only after leading the evidence when the case comes to the trial. The balance of convenience also does not lie in favor of the plaintiff as the defendants are not in possession of the suit property as the same has already been sold in the year 2005.
18. Considering facts and circumstances of the case and Suit No.346/09 ...............14/15 relying upon the judgment Mahadeo Savlaram Shelke Vs. Pune Municipaul Corporation (1995) 3 SCC 33 (Supra), I am of the view that the plaintiff at this stage has failed to make out a prima facie case in her favour as prayed. The plaintiff has not been able to satisfy any of the ingredients of Order 39 Rule 1 and 2 CPC in the present case and is not entitled to the interim relief. Hence, the interim application under order 39 Rule 1 & 2 CPC is hereby dismissed.
Nothing stated herein above shall tantamount to the expression of any opinion on the merit of the case.
Announced in the open court ( Sunil Rana ) today i.e.15th July, 2010. ADJ - 03 (West)/ Delhi Suit No.346/09 ...............15/15