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Nirupa Berry vs M/S Goel Estate & Promoters Pvt. Ltd. & ... on 3 July, 2013

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 3rd July, 2013

+                            CS(OS) 67/2011
       NIRUPA BERRY                                       ..... Plaintiff
                          Through:      Mr. Ashok Bhasin, Sr. Adv. with
                                        Mr. Arav Kapoor, Mr. Sunklan
                                        Porwal & Mr. Anubhav Bhasin,
                                        Advs.

                                     Versus
    M/S GOEL ESTATE & PROMOTERS
    PVT. LTD. & ANR.                         ..... Defendants
                  Through: Mr. S.K. Bhaduri & Ms. Kiran
                           Dharam, Advs. for D-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

IA No.340/2011 (of the plaintiff u/O 39 R-1&2 CPC) & IA No.3538/2013
(of the defendants u/O 39 R-4 CPC)

1.

Applications, of the plaintiff for interim relief restraining the defendants in this suit for specific performance of Agreement of Sale of immovable property from dispossessing the plaintiff from the property agreed to be sold and from alienating, encumbering or parting with possession of the property, and of the defendants for vacation of the ex parte ad-interim order dated 03.02.2011, are for consideration.

2. The suit, as originally filed on 11.01.2011, was not for specific performance but for mandatory injunction directing the defendants to CS(OS) No.67/2011 Page 1 of 14 register the Sale Deed and for permanent injunction restraining the defendants from disturbing the possession of the plaintiff and from dealing with the property. However when the suit came up for admission on 12.01.2011, the counsel for the plaintiff, perhaps on objection by this Court, offered to pay Court Fees on the amount of the sale consideration and so paid the Court Fees and on 03.02.2011 summons of the suit and notice of the application were issued to the defendants and the parties directed to maintain status quo with respect to title and possession of the suit property i.e. Farm House measuring 9 Bighas 12 Biswas, Khasra No.93 (4-16) and 94 (4-16), situated in village Sultanpur, Tehsil Hauz Khas, New Delhi till further orders.

3. The defendants filed written statement and to which replication was filed by the plaintiff; admission / denial of documents done and statement of the parties under Order 10 CPC recorded on 14.11.2011. The parties were referred to mediation, which remained unsuccessful. The plaintiff thereafter sought amendment of the plaint to convert the suit from that for mandatory injunction to that for specific performance of the Agreement to Sell. The said amendment was opposed by the defendants inter alia on the ground that the relief for specific performance on the date of seeking the amendment was barred by time. This Bench however without adjudicating the said controversy, vide order dated 19.09.2012 allowed the amendment, leaving open the plea of the defendants of limitation. Written statement to the amended plaint was filed; though the order dated 30.01.2013 records replication thereto having been filed but the same is not on record. The counsels have been heard. During the hearing also attempt at settlement was CS(OS) No.67/2011 Page 2 of 14 made but was not possible. The counsel for the defendants has filed written submissions also.

4. It is the case of the plaintiff:

(i) that the defendant no.2 Mr. Ravi Goel as Director of the defendant no.1 had on 04.08.2003 orally agreed to sell the aforesaid property to the plaintiff for a total consideration of Rs.1.21 crores and represented that the property was free from all encumbrances;

(ii) that the total agreed sale consideration of Rs.1.21 crores was paid by the plaintiff to the defendants with the last payment being on 05.10.2004 and the plaintiff purchased the stamp paper for execution of the Sale Deed and the defendants got the same typed on 24.11.2004 and the Sale Deed was executed by the defendant no.2 on behalf of the defendant no.1 with the dates having been left blank to be filled up on the date of registration; however when the plaintiff asked for the original title documents, it was for the first time disclosed that the same were under mortgage to the State Bank of India, Mayapuri for a sum of Rs.2.5 crores due to the bank from M/s Dolphin Canpack Ltd., a group company of the defendants;

(iii) that the plaintiff to save the investment already made, agreed to pay the outstanding of the bank also and made the said payment on 11.01.2005 and the bank issued a letter to the Tehsildar, Hauz Khas Tehsil, Mehrauli, New Delhi affirming that it had no outstanding with respect to the said property;

(iv) that the possession of the property was handed over to the plaintiff on 12.01.2005 under a letter of possession and the title documents released by the bank directly to the plaintiff but the Sale Deed still not executed on the ground of the same being prohibited by the Government;

(v) that the defendants avoided execution of the Sale Deed on one pretext or the other and turned dishonest inspite of the plaintiff having approached the defendants on 29.01.2005, 06.09.2007, 21.08.2008, 09.05.2009 and 03.05.2010; and,

(vi) that in November, 2010, the plaintiff learnt of the attempts of the defendants to sell the property to others and hence this suit.

5. It is the plea of the defendants:

       (i)     that the claim in suit is barred by time;
       (ii)    that the plaintiff has suppressed material facts and the plaint is

replete with falsehood and is thus not entitled to the exercise of discretion in hearing in her favour;

(iii) that on 05.09.2003, Agreement to Sell was executed between the parties vide which the plaintiff had agreed to purchase the property for a total sale consideration of Rs.3.60 crores;

(iv) that the plaintiff could not arrange the remaining sale consideration within the stipulated period and the Agreement was modified and revised on 18.10.2004 and the plaintiff agreed to pay a total sum of Rs.4.75 crores with the balance sale consideration being payable within 90 days thereof;

(v) that the plaintiff however defaulted in paying the balance sale consideration;

(vi) that the plaintiff concealed the letter dated 13.05.2004 written by her to the defendants wherein she had admitted the Agreement to Sell;

(vii) that the plaintiff has forged the letters dated 07.01.2005 and 12.01.2005 of the defendants;

(viii) that the plaintiff had not got the Sale Deed prepared on the stamp paper of correct valuation and was required to pay stamp duty on the consideration of Rs.4.75 crores but had paid the stamp duty on the valuation of Rs.1.21 crores only;

(ix) that though the defendant no.2 signed the Sale Deed but the same was not registered owing to not reflecting the correct sale consideration and the balance sale consideration having not been paid; and,

(x) that the plaintiff has mala fidely taken possession of the suit property and no possession letter also was signed by the defendants.

7. The defendants have filed the photocopy of the Agreement to Sell dated 05.09.2003 as modified on 18.10.2004 and which makes a reference to the property being mortgaged with the State Bank of India but the plaintiff has denied her signatures thereon. The defendants have also filed in original the letter dated 13.05.2004 written by the plaintiff to the defendant no.1 and which is as under:

"To M/s Goyal Estates & Promoters Pvt. Ltd.

12, Ocean Building Nehru Place, New Delhi Mr. Ravi Goyal, Sub:- Transfer of property bearing Khasra No.93 and 94, Village Sultan Pur, New Delhi.

In pursuance to an agreement to sell executed on the 5th day of September 2003 by your company with the undersigned with respect to the sale of the captioned property, it is hereby stated as follows:-

01 That the premises bearing Khasra No.93(4-16) and 94(4-16) with built up farm house, tube well, boundary wall, electric connection and other fittings and fixtures, situated at village Sultan Pur, New Delhi is in your ownership in terms of sale deed dated 15.10.1986 executed in your favour by M/s Britika Exports.

02 That the said premises built on land admeasuring 9 bighas and 12 biswas was agreed to be sold to the undersigned for a consideration of Rs.3,60,00,000/- (Rupees three crores sixty lacs only) vide an agreement to sell dated 05.09.2003. The undersigned had duly paid Rs.36,00,000/-

(Rupees thirty six lacs only) towards advance payment at the time of execution of the said agreement to sell, as detailed hereinafter:-

       a)     Paid in cash                               1,00,000
       b)     Pay order No.065439 dt. 05.09.2003 drawn

on Standard Chartered Bank, New Delhi. 25,00,000

c) Pay order No.011432 dt. 07.08.2003 drawn on Standard Chartered Bank, New Delhi. 10,00,000 36,00,000 CS(OS) No.67/2011 Page 6 of 14 You acting on behalf of your company had acknowledge the receipt of the above payments and had executed the agreement to sell.

03. That the terms of the said agreement to sell inter-alia envisaged that you would repay the loan amounts due to SBI and obtain discharge certificate from the ROC alongwith an NOC from the Tehsildar, New Delhi. It was also stipulated therein that after obtaining the above certificates you would inform the undersigned and execute the sale deed within 90 days thereof.

04. That you have neither informed the undersigned, vendee regarding the compliance of the formalities nor have expressed any inclination to execute the sale deed in favour of the undersigned. 05 That the undersigned has been repeatedly asking you to register the sale deed against the balance sale consideration of Rs.2,60,00,000/- (Rupees two crores sixty lacs only). However, on one pretext or the other, you have been prolonging the issue and have avoided the execution of the sale deed.

06 That I hereby call upon you to intimate the undersigned regarding the compliance of the formalities and the date on which you shall execute the sale deed. In case you do not respond within 15 days hereof I shall be compelled to take legal recourse in this matter.

Please Note Sd/-

(MRS. NIRUPA BERRY) B-4, HAUS KHAS NEW DELHI DATED: 13TH MAY 2004 PLACE: NEW DELHI"

The plaintiff has denied page 1 of the above letter but admitted page 2 of the same. Needless to state that there are no signatures of the plaintiff on page 1 of the letter.

8. The plaintiff in her statement under Order 10 of the CPC, has reiterated; i) that there was no Agreement to Sell in writing; ii) that the sum of Rs.2.5 crores paid to the bank was not part of the sale consideration and was paid with the understanding that the same would be a loan to the defendants; that there was no writing with respect thereto; iii) that both pages of the letter dated 13.05.2004 "seem to be generated from a printer / computer"; iv) that she had not placed on record any document which should have been the page 1 of this letter; v) that she did not remember the contents of page 1 of the said letter; vi) that she could not recollect from page 2 of the letter as to whom it was sent; vii) that in May, 2004 she did not have any deal relating to immovable property except the said property; and, viii) that page 2 of the letter dated 13.05.2004 relates to the property in question.

9. The defendant no.2 in his statement under Order 10 of the CPC stated;

i) that that original Agreement to Sell is in possession of the plaintiff; ii) that a period of three months was agreed by and between the parties for completion of the deal as per the original agreement dated 05.09.2003; iii) that the plaintiff could not make the payment to the bank within three months; iv) that the possession was to be handed over to the plaintiff only after full and final payment; that the defendants had not given the possession of the property to the plaintiff and the plaintiff had obtained possession illegally; v) that no complaint of the plaintiff having taken possession forcibly or illegally was made to any authority; vi) that the plaintiff was CS(OS) No.67/2011 Page 8 of 14 handed over the keys of the property in good faith to show the same to her relatives as the plaintiff had cleared the payment of the bank by that time and the dues payable at that time were of Rs.4.75 crores less Rs.1.21 crores which had been paid by the plaintiff as the bank‟s payment was agreed to be over and above Rs.4.75 crores; vii) that he had given the original title deeds pertaining to the property to the plaintiff when the same were released by the bank; viii) that no complaint of the plaintiff illegally retaining the same was lodged; and, ix) that the last page of the Sale Deed was signed in the first or second week of November, 2004.

10. The senior counsel for the plaintiff during the hearing sought to contend, of the plaintiff being in possession of the property in part performance of the Agreement to Sell. His attention was however invited to Section 17(1A) of the Registration Act, 1908 as amended with effect from 24.09.2001 i.e. prior to the Agreement to Sell in question which makes documents containing contracts to transfer for consideration any immovable property for the purpose of Section53A of the Transfer of Property Act, 1882 compulsorily registrable and which further provides that if such documents are not registered, they shall have no effect for the purpose of the said Section 53A of the Act. As per the said provisions, it is clear that the plaintiff as purchaser cannot protect her possession under Section 53A supra.

The senior counsel for the plaintiff could not controvert the said position.

11. The defendants having admitted the possession of the plaintiff, it was enquired from the counsel for the defendants whether the defendants had taken any steps for recovering possession from the plaintiff. The counsel for the defendants stated that the defendants would now be filing a suit for CS(OS) No.67/2011 Page 9 of 14 recovering possession of the premises from the plaintiff. It was however enquired from the counsels whether the property which is stated to be a farm house is governed by the provisions of the Delhi Land Reforms Act, 1954 (Reforms Act). Both counsels replied in the affirmative. It was in the circumstances further enquired from the counsel for the defendants as to how a suit for recovering possession would be maintainable inasmuch as it prima facie appears that the jurisdiction of the Civil Court would be barred by Section 185 of the Reforms Act as the jurisdiction for recovery of possession of a property governed by the Reforms Act is of the Revenue Courts only. Again no plausible answer was forthcoming. Need is not felt to deal further on the said aspect, the same being not part of the pleadings of either party and this order being on applications for interim relief only.

12. It was next enquired from the counsel for the plaintiff whether the plaintiff had taken any steps for recovery of Rs.2.5 corres stated to have been paid in excess over and above the sale consideration on behalf of the defendants to the bank. Again it was informed that no such suit has been filed. On enquiry whether such claim would not now be time barred, again no plausible answer was forthcoming. It indeed does sound a little strange that a purchaser of immovable property who has had to pay more than double the purchase price to have the encumbrance on the property agreed to be sold not disclosed by the seller removed, would not take any action, neither for the offence of cheating if any committed nor for recovery of the said amount against a seller.

13. Be that as it may, to me it appears that the admission by the plaintiff of the second page supra of the letter dated 13.05.2004 itself is sufficient to CS(OS) No.67/2011 Page 10 of 14 decide at this stage whether the plaintiff has a prima facie case in her favour or not and / or whether the discretion implicit in the grant of interim relief is to be exercised in favour of the plaintiff.

14. The plaintiff in her statement under Order 10 has admitted the said second page of the letter dated 13.05.2004 to be pertaining to the transaction of the property in question and the following contradictions between the case set up by the plaintiff before this court and the said admitted document are evident:

(i) while the plaintiff in the said document admitted that the terms of the Agreement to Sell envisaged re-payment of the loan by the addressee of the said letter due to the SBI, the plaintiff in the plaint has pleaded ignorance thereof. The same perhaps explains inaction on behalf of the plaintiff to initiate any proceedings for recovery of the amount or to lodge a complaint of cheating against the defendants; and,

(ii) that while as per the said admitted document as on 13.05.2004 the balance sale consideration was Rs.2.60 crores, the plaintiff has approached this Court with a case of total agreed sale consideration being Rs.1.21 crores only. As per the plaint, the plaintiff by 29.11.2003 i.e. before 13.05.2004 had already paid a sum of Rs.1 crore (Rs.52 lacs + Rs.12 lacs + Rs.25 lacs + Rs.10 lacs + Rs.1 lac).

15. The aforesaid grounds alone are sufficient to hold the plaintiff to be having no prima facie case for specific performance of an Agreement for Sale for a total sale consideration of Rs.1.21 crores.

16. The counsel for the defendants has referred to:

(i) Sanjeev Narang Vs. Prism Buildcon Pvt. Ltd. 154 (2008) DLT 508 (DB);

(ii) IAs No.8499/95 & 2357/90 decided on 27.08.2001 in S.No.903/1990 titled Smt. Champa Arora Vs. Sh. Shiv Lal Arora;

(iii) Jyotsnamoyee Debi Vs. Narayan Chandra Pal 1988 (1) CCS 5; and,

(iv) Prakash Khattar Vs. Shanta Jindal DLT 181 (2011) 138 in support of the contention that discretion implicit in exercise of powers under Order 39 Rule 1&2 CPC is not to be exercised in favour of a party which does not approach the Court with clean hands. Reference in this regard can also be made to Seema Arshad Zaheer Vs. Municipal Corporation of Greater Mumbai (2006) 5 SCC 282.

17. Once the plaintiff is not found to have a prima facie case and is rather found to have approached the Court with a false case, the question of grant of interim relief does not arise. Moreover as aforesaid, the plaintiff (having paid at least some part of sale consideration if not whole and which question is to be decided at the final stage) having not got registered the agreement to sell in her favour, does not have any claim on the doctrine of part performance enshrined in Section 53A of the Transfer of Property Act also. However at the same time, the defendants cannot be permitted to take the law in their own hands having allowed the plaintiff to retain possession for the last about seven years prior to the institution of the suit and nine years CS(OS) No.67/2011 Page 12 of 14 now. The effect of the plaintiff so being in possession vis-à-vis the Reforms Act i.e. whether the plaintiff under the Reforms Act has acquired any rights to the land will also have relevance. It is therefore deemed expedient to as far as possession is concerned, restrain the defendants from forcibly evicting the plaintiff, giving liberty to the defendants to take remedies available in law.

18. I also find it intriguing that the plaintiff has not chosen to produce the first page of the document dated 13.05.2004, second page of which is admitted. The plaintiff has admitted the document to have been generated from a computer and in which situation the plaintiff would in her computer definitely have the contents of the first page and which the plaintiff has failed to produce. Adverse inference even at this stage can be drawn that the first page of the letter is the same as produced by the defendants and which again falsifies the stand of the plaintiff of there being no written Agreement to Sell.

19. As far as the plea of the defendant of the claim in the suit being barred by time is concerned, Article 54 of the Schedule to the Limitation Act, 1963 prescribes the limitation of three years for suing for specific performance commencing from the date fixed for performance and if no date is fixed for performance, from the date when the plaintiff first has notice that performance is refused. In the present case as per the plaintiff, the plaintiff has had notice of refusal of performance since the time the defendant inspite of the Sale Deed having been got prepared on the stamp paper refused to sign the same in November, 2005. The suit has been filed nearly seven CS(OS) No.67/2011 Page 13 of 14 years thereafter in January, 2011. On this ground also the plaintiff is not found to have a prima facie case.

20. The applications are thus disposed of by declining to the plaintiff the interim relief sought of restraining the defendants from alienating, encumbering or otherwise dealing with the property but nevertheless restraining the defendants from forcibly dispossessing the plaintiff from the said property save by due process of law. However as a condition for granting such protection to the plaintiff and which condition as per the judgments of this court in Delhi Automobile Ltd. Vs. Economy Sales 55 (1994) DLT 39 and Liberty Sales Services Vs. Jakki Mull & Sons 66 (1997) DLT 506 (DB) can be imposed, the plaintiff is also restrained from parting with possession of the property to any other person or from otherwise assigning her rights in the property. The applications are disposed of.

RAJIV SAHAI ENDLAW, J JULY 03, 2013 „gsr‟ CS(OS) No.67/2011 Page 14 of 14