Delhi High Court
Ashwani Kumar vs Santosh Solanki on 10 April, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th April, 2018.
+ CS(OS) 326/2016
ASHWANI KUMAR ..... Plaintiff
Through: Mr. Mohit Singh, Adv.
Versus
SANTOSH SOLANKI ..... Defendant
Through: Mr. Prag Chawla, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff instituted this suit for recovery of Rs.3.20 crores with
interest, pleading
i) that the defendant is the sister of the plaintiff;
ii) that the father of the parties was the owner of property No.C-
163, Surajmal Vihar, Delhi and died on 14 th July, 1993 leaving
besides the plaintiff and the defendant as his son and daughter, Smt.
Premwati as his widow and Anil Kumar as another son;
iii) CS(OS) No.761/2006 was filed by Anil Kumar, brother of the
parties, for partition of the aforesaid property;
iv) that during settlement talks in the course of CS(OS)
No.761/2006, the plaintiff expressed intention to purchase 1/4 th
undivided share of the defendant in the aforesaid property and
defendant agreed to receive the sum of Rs.3.20 crores in lieu of her
1/4th share in the property; accordingly an amount of Rs.3.20 crores
CS(OS) 326/2016 Page 1 of 7
was paid by the plaintiff to the defendant and CS(OS) No.761/2006
was disposed of and the plaintiff was declared to be the absolute
owner of the property since Smt. Premwati and Sh. Anil Kumar had
already executed a Relinquishment Deed dated 16 th October, 2012 in
favour of the plaintiff;
v) that the plaintiff, in the year 2014, applied to the Delhi
Development Authority to get the property mutated in his name and
learnt that the defendant did not have any share in the property as she
had already relinquished her share in the property in favour of the
mother Premwati by executing a registered Relinquishment Deed
dated 28th February, 1997 and after execution whereof the defendant
was not left with any share in the property and for which share the
defendant had received Rs.3.20 crores from the plaintiff;
vi) that the defendant concealed the factum of execution of the
Relinquishment Deed dated 28th February, 1997 from the plaintiff
and by representing herself to be having 1/4 th share in the property
received a sum of Rs.3.20 crores from the plaintiff.
2. The suit was entertained and summons thereof ordered to be issued.
3. The suit was listed last on 20th March, 2018 but it transpired that
though the replication of the plaintiff to the written statement purported to
have been filed by the defendant was on record but the written statement
was not on record. Though the counsel for the defendant did not appear on
20th March, 2018 but it was enquired from the counsel for the plaintiff on
that date that since the defendant had received Rs.3.20 crores from the
plaintiff in CS(OS) No.761/2006, how the present suit is maintainable and
CS(OS) 326/2016 Page 2 of 7
whether not the suit is barred by Order XXIII Rule 3 of the CPC and the
remedy if any of the plaintiff is thereunder only. On request of the counsel
for the plaintiff for adjournment to enable him to study, the suit was
adjourned to today and since the plaintiff had not filed complete documents
of CS(OS) No.761/2006 and the orders of that suit filed were found to be
disjointed, the file of CS(OS) No.761/2006 was also called for today.
4. The file of CS(OS) No.761/2006 has been received and the counsel
for the defendant appears. However, Mr. Mohit Singh, Advocate appears
for the plaintiff and states that Mr. Sudhir Nagar, Advocate for the plaintiff
is an Advocate on Record and is in the Supreme Court and seeks passover.
5. The matter, if passed over, is unlikely to reach again and would
amount to an adjournment derailing the hearing commenced on 20 th March,
2018 and detailed order passed on that date. Mr. Sudhir Nagar, Advocate
having sought adjournment on 20th March, 2018 to answer what he should
have considered prior to the institution of the suit, should have either
ensured his presence today or briefed Mr. Mohit Singh, Advocate who is
appearing on his behalf.
6. The file of CS(OS) No.761/2006 has been perused and the same
discloses i) the plaintiff herein to be the defendant no.1 in the said suit; ii)
the plaintiff herein to have in his written statement in that suit pleaded that
his brother Anil Kumar who had instituted that suit was suffering from
mental weakness; iii) the plaintiff herein in his written statement to have not
denied the share of the defendant herein, who was the defendant no.3 in that
suit, in the property; iv) the plaintiff herein as defendant no.1 in that suit to
have on 2nd May, 2013 contended that the suit be decreed declaring each of
CS(OS) 326/2016 Page 3 of 7
the parties to be having 1/4th share in the property and his advocate to be
representing Smt. Premwati also; the plaintiff in that suit viz. Anil Kumar to
have supported the said request; only the defendant herein who was the
defendant no.3 in that suit having not conceded thereto; v) this Court to
have on 2nd May, 2013 recorded the statement of the plaintiff herein,
consenting to a preliminary decree for partition of the property being passed
declaring all the four parties to the suit including the defendant herein to be
having 1/4th share each in the property; vi) a preliminary decree for partition
having been passed on 2nd May, 2013 inter alia declaring the defendant
herein to be having 1/4th share in the property; vii) it having been further
contended by the plaintiff herein on 2nd May, 2013 in that suit that the
property is incapable of being divided by metes and bounds and the parties
should be permitted to make inter se bids; viii) the plaintiff herein to have
on 23rd May, 2013 in that suit having offered to purchase the share of the
defendant herein for Rs.3.20 crores and which offer was accepted by the
defendant herein on 29th May, 2013; ix) that plaintiff herein to have also
disclosed in that suit on 29th May, 2013 that the plaintiff and the defendant
no.2 in that suit viz. Anil Kumar and Premwati had already executed and
registered a Relinquishment Deed dated 16th October, 2012 of their
respective share in the property in favour of the plaintiff herein; x) this
Court to have on 29th May, 2013 having enquired from the counsel for the
plaintiff herein that how can the said Relinquishment Deed be taken note of
in the light of a preliminary decree for partition declaring the said Sh. Anil
Kumar and Smt. Premwati also to be having 1/4th share in the property; xi)
the plaintiff herein having paid Rs.32 lacs to the defendant herein towards
earnest money for purchase of 1/4th undivided share of the defendant herein
CS(OS) 326/2016 Page 4 of 7
in the property for a consideration of Rs.3.20 crores; xii) the preliminary
decree for partition passed in that suit having been modified on 12 th
September, 2013 on application being IA No.14939/2013 of the plaintiff
herein declaring the plaintiff herein to be having 3/4th share and the
defendant herein to be having 1/4th share in the property; xiii) the plaintiff
herein having paid the balance consideration to the defendant herein before
the Court on 12th September, 2013 and the defendant herein having
undertaken to execute and register documents of transfer of her share in
favour of the plaintiff herein and a final decree for partition having been
passed in that suit on 12th September, 2013 declaring the plaintiff herein as
the sole owner of the property; xiv) the defendant no.2 in that suit viz.
Premwati having thereafter filed IA No.2638/2015 for recall of the final
decree for partition averring that she had been defrauded and had not
executed the Relinquishment Deed dated 16th October, 2012; and, xv) the
said application having been dismissed on 11th February, 2016.
7. A reading of the order dated 11th February, 2016 in CS(OS)
No.761/2006 shows that while the plaintiff herein on 12 th September, 2013
obtained modification of the preliminary decree for partition on the basis of
a Relinquishment Deed dated 16th October, 2012 but in reply to the
application of the defendant No.2 Premwati placed on record another
Release Deed executed by Premwati in his favour on 7 th February, 2014.
The plaintiff herein on 11th February, 2016 was represented by the same
advocate who is representing the plaintiff in this suit. This Court vide order
dated 11th February, 2016 in CS(OS) No.761/2006 dismissed the
application of Premwati for recall of the final decree for partition reasoning
that Premwati did not deny the execution of the Release Deed dated 16 th
CS(OS) 326/2016 Page 5 of 7
October, 2012 and had also not instituted any proceedings for cancellation
thereof. It was further reasoned that Premwati did not deny the execution
of the second Release Deed dated 7th February, 2014 also.
8. In the present suit, none of the aforesaid facts have been disclosed
and the copy of the Release Deeds of the years 2012 and 2014 both stated
to have been executed by Premwati have also not been disclosed. It is
inexplicable as to why, after the execution of the first Release Deed, need
for a second Release Deed of Premwati was felt as Premwati after
execution of the first Release Deed would be left with no rights in the
property to be released under the second Release Deed. In the absence of
the plaintiff having placed either of the two Release Deeds before this
Court, it cannot also be understood whether what was released by Premwati
in favour of the plaintiff was her 1/4th share only or also the 1/4th share
which the defendant herein is claimed to have released in favour of the
Premwati.
9. Be that as it may, the aforesaid confirms what was put to the counsel
for the plaintiff on 20th March, 2018, that the present suit is barred by Order
XXIII Rule 3 of the CPC. As long as the preliminary decree for partition
and the final decree for partition in CS(OS) No.761/2006 exist, declaring
the defendant to be having 1/4th share in the property and declaring the
plaintiff herein to have purchased the said share from the defendant herein,
the plaintiff cannot be permitted to recover back the consideration paid by
him to the defendant in CS(OS) No.761/2006 for purchase of defendant's
share in the property. The remedy, as aforesaid, of the plaintiff if any is by
CS(OS) 326/2016 Page 6 of 7
seeking modification of the decree in CS(OS) No.761/2006 only and not
otherwise.
10. Resultantly, the suit fails and is dismissed as not maintainable and
barred by law.
11. The counsel for the plaintiff has been asked to handover the advance
copy of the written statement received from the defendant and in response
to which the replication was filed and the said copy is taken on record.
12. I refrain from imposing any costs on the plaintiff for abusing the
process of the Court and for wasting the time of the Court.
13. A copy of this judgment be also placed in the file of CS(OS)
No.761/2006.
RAJIV SAHAI ENDLAW, J.
APRIL 10, 2018 'gsr' CS(OS) 326/2016 Page 7 of 7