Delhi District Court
Dinesh Kumar Sharma vs Balbir Singh on 22 December, 2023
In the Court of Dr. Rakesh Kumar : Additional District Judge -03
Central District, Tis Hazari Courts, Delhi
RCA DJ No.178/2017; CNR No. DLCT01-009563-2017
In the matter of :-
Dinesh Kumar Sharma
S/o Santosh Kumar Sharma
R/o F-48, Lajpat Nagar-II
New Delhi. .......Appellant
Versus
1. Balbir Singh
S/o Late Kartar Singh
R/o G-47, Nizamuddin (West)
New Delhi.
2.Govt. Of NCT of Delhi
Through Secretary
Old Sectt., Alipur Road
Delhi
3.Directorate of Industries
Delhi Administration
G.P.O. Building,
Kashmere Gate,
Delhi-110006.
4. Kamal Kishore Bagga
S/o Hukam Chand Bagga
R/o 9/34, Geeta Colony,
Delhi-110031. .......Respondents
Date of institution : 01.07.2017
Reserved for Judgment : 08.12.2023
Date of decision : 22.12.2023
RCA DJ No.178/2017 & 181/17 Page 1/22
And
RCA DJ No.181/17; CNR No. DLCT01-009836-2017
In the matter of :-
Kamal Kumar Bagga
S/o Late Bagga
R/o F-9-34, Geeta Colony,
Delhi-110051.
Also At:-
B-43, Falatted Factory Complex,
Okhla, New Delhi-110020. .......Appellant
Versus
1. Government of NCT of Delhi
Through Secretary
Delhi Secretary
I.T.O New Delhi
2. Directorate of Industries
Delhi Administration
GPO Building, Kashmere Gate,
Delhi-110006.
3. Balbir Singh
S/o Kartar Singh
R/o G-48, Nizamuddin West,
New Delhi
4. Dinesh Kumar Sharma
S/o Santosh Kumar Sharma
R/o F-48, Lajpat Nagar-II,
New Delhi .......Respondents
Date of institution : 06.07.2017
Reserved for Judgment : 08.12.2023
Date of decision : 22.12.2023
RCA DJ No.178/2017 & 181/17 Page 2/22
Appeals against the order and Decree dated 29.04.2017 passed by Sh. Vijay
Kumar Jha, Civil Judge-08, Central District, Tis Hazari Courts, Delhi
JUDGMENT
1. These appeals under Section 96 of the Code of Civil Procedure, 1908 (in short "CPC") are directed against the Order on application under Order 12 Rule 6 CPC and decree dated 29.04.2017 passed by the court of Sh. Vijay Kumar Jha, Civil Judge-08 of Central District, Tis Hazari Courts, Delhi in Civil Suit no. 1579/2016 whereby the suit for dissolution of partnership, rendition of account, declaration and injunction instituted by the plaintiff against the defendant was partly decreed under Order 12 Rule 6 CPC for the relief of possession. These appeals are taken together for decision by way of a common judgment being arisen out of the same order and can be conveniently decided on the appreciation of common facts and law.
2. Brief facts for the decision in these appeals are that the respondent namely, Balbir Singh (hereinafter referred to as 'the plaintiff') has instituted a suit against the appellants, namely, Dinesh Kumar, Government of N.C.T of Delhi, Directorate of Industries and Kamal Kishor Bagga (hereinafter referred to as 'the defendants') for seeking dissolution of partnership, Rendition of Account, Declaration and Perpetual Injunction for rendering the true and correct account of the partnership firm M/s. Piper Auto Industries, 43-B, Flatted Factory Complex, Okhla, New Delhi-110020 and ascertaining the amount of share of the plaintiff and for dissolution of partnership firm M/s. Piper Auto Industries and for declaration in favor of the plaintiff against the defendant no.1 for declaring the documents viz., Agreement, Affidavit, RCA DJ No.178/2017 & 181/17 Page 3/22 Receipt, Dissolution deed dated 29.07.1994 are forged and fabricated, ineffective and not binding on the plaintiff and also for Perpetual Injunction for restraining the defendants from transferring and getting transferred the business premises no. 43-B, from the name of the plaintiff to the name of the defendant no.1 or to any other person. It is averred in the plaint that on an application made by the plaintiff for allotment of accommodation for running factory, he was allotted a flatted factory shed bearing no. 43, Block D in Flatted Factory Complex, Okhla, New Delhi, (hereinafter referred to as "the suit premises") vide allotment letter dated 17.09.1981 by the defendants no. 2 & 3; that the vacant physical possession of the suit premises was delivered to the plaintiff and he started paying the rent for the same and commenced his business under the name and style of M/s Shikha Garmets; that the plaintiff unfortunately met with an accident and was not able to run his said industry and could not pay rent of the premises and the respondent no.3 cancelled the allotment; that in the meantime, the defendant no.1 had contacted the plaintiff and showed his willingness to run the said industry in partnership with the plaintiff and to make investments and as the plaintiff was not physically fit due to the said accident, the defendant no.1 agreed and a Deed of Partnership was entered into between the defendant no.1 and plaintiff on 29.07.1994 mentioning therein and acknowledging that the plaintiff is the allottee of the suit premises and he is providing the factory and the defendant no.1 agreed to make investment to do the partnership work and they agreed to run the partnership business under the name and style of M/s Piper Auto Industries at the said premises; that the partnership business duly commenced and the investment as required were made by the defendant no.1 and he was to make further investments at the time of need RCA DJ No.178/2017 & 181/17 Page 4/22 and the provision of factory premises and machines already installed at the premises was the capital of the plaintiff and the cash investment was to be made by the defendant no.1; that the plaintiff was physically incapable at the relevant time, so the defendant no.1 got certain papers signed from him for the smooth running of the partnership business and to deal with the respondents no. 2 and 3 in respect of suit premises and also in the market and the plaintiff in good faith gave his signature; that from the investment so made by the defendant no.1, the plaintiff made the payment of arrears of rent due and got the suit premises restored; that the defendant no.1 was the accounting party and he was and has to tender the accounts of the said partnership business; that initially the defendant no.1 was making the payment of profits of partnership without rendering the true and correct accounts, but later on, he started harassing the plaintiff on one way or other; that the conduct of the defendant no.1 became shabby and doubtful and that he was finding excuses to avoid the plaintiff and stopped making payment of profit from 01.04.1997; that earlier the defendant no.1 was paying Rs.7,000/- per each month approximately as the profits of the said partnership firm without rendering the accounts; that the defendant no.1 failed to make payment, the plaintiff got served a notice dated 02.07.1997 calling upon the defendant no.1 to render the accounts and pay the profits and also clear the rent and insurance premium from the profits of partnership firm; that in response to the said notice, the defendant no.1 came forward with altogether false and frivolous allegations falsely stating that the plaintiff has transferred all his rights, title, lien and interest in the suit premises to and in favor of the defendant no.1 for consideration and execution of alleged usual documents; that it was further alleged that the partnership deed was not meant to be and RCA DJ No.178/2017 & 181/17 Page 5/22 was not acted upon and there is no partnership; that the defendant no.1 falsely alleged that a dissolution was also executed; that it appears that the defendant no.1 has wrongfully, mala fide and unjustifiably used the signed papers for converting the same into such documents as was alleged by him in the said reply; that in reply, it was made clear that the plaintiff has never transferred his rights in respect of the suit premises; that the plaintiff has never sold, transferred or assigned his rights in respect of the suit premises in any manner as he has never singed any such papers whereby his rights could have been transferred in favor of the defendant no.1; that the plaintiff is the lawful exclusive allottee of the said premises and the defendant no.1 had entered into partnership with him; that the defendant no.1 has casted clouds on the rights of the plaintiff by falsely claiming that the plaintiff had transferred his allotment rights in his favour and further the defendant no.1 started approaching the defendants no. 2 & 3 for getting the allotment transferred in his name; that on 21.02.2000, the plaintiff wrote letter to the defendant no.3 informing that the defendant no.1 is the partner and the suit premises be not transferred to the said defendant no.1 in any manner; that the documents as were referred by the defendant no.1 are forged and fabricated and that the defendant no.1 has misused signed papers and has refused to render the true and faithful accounts of the partnership firm, gave a cause of action to the plaintiff to file the present suit.
3. The defendant no.1 contested the present suit by filing written statement of his defence taking wherein preliminary objections to the effect that there is no cause of action in favour of the plaintiff and against the defendant no.1 for filing the present suit and the plaint discloses no cause of RCA DJ No.178/2017 & 181/17 Page 6/22 action; that the plaintiff has not come to this court with clean hands and has suppressed the material facts; that the suit is barred by the rule of promissory estoppal; that the suit has not been properly valued for the purposes of court fees and jurisdiction; that the suit is barred by limitation. In reply in merits, it is contended that the allotment in respect of the suit premises was cancelled as the plaintiff had failed to adhere with the conditions of allotment by not paying the rent regularly; that the plaintiff was in the need of money was desirous of transferring his allotment for consideration in favour of the defendant; that the plaintiff executed not only the deed of partnership but also other documents like Will, bequeathing his right, title and interest qua the suit premises in favour of the defendant no.1, No Objection, Affidavit of delivering vacant possession of the suit premises with all rights to the defendant no.1 to carry out business of his choice, Special Power of Attorney, General Power of Attorney, Indemnity Bond and an Agreement for Transfer of the suit premises in favour of the defendant no.1; that the partnership deed was not to be and was not acted upon and the question of rendering of account did not arise; that the defendant no.1 has never paid any profit of partnership to the plaintiff and he is not liable to render any account; that the suit factory was transferred in favour of the defendant no.1 for a valid consideration against execution of requisite documents; that the plaintiff executed the documents with full knowledge of what was he doing; that the machines were installed by the defendant no.1 out of his own funds to run the business of M/s Piper Auto Industries; that it was the defendant no.1 who made payments of the arrears of the rent and complied with the other conditions of allotment; that the legal notice sent by the plaintiff was suitably replied by the defendant no.1. It is denied that the RCA DJ No.178/2017 & 181/17 Page 7/22 defendant no.1 was liable to render the accounts or that he had harassed the plaintiff as alleged. It is also denied that the plaintiff did not sell, transfer and assign his rights in the suit premises by execution of the documents. It is also denied that the documents executed by the plaintiff in favour of the defendant no.1 are without consideration, forged and fabricated. It is also denied that the defendant no.1 has misused any signed paper. It is also denied that any cause has arisen in favour of the plaintiff and against the defendant no.1. Other allegations of the plaint are denied and disputed by the defendant no.1 and prayed for the dismissal of the present suit.
4. The defendant no.2 was duly served but none entered appearance on its behalf, therefore, vide order dated 08.08.2001, the defendant no.2 was proceeded ex-parte.
5. Similarly, the defendant no.3 was also duly served but none entered appearance on its behalf, therefore, vide order dated 09.05.2001, the defendant no.3 was also proceeded ex-parte.
6. The plaintiff filed replication to the written statement of the defendants no. 1 wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed.
7. Vide order dated 16.10.2001, the Learned Trial Court framed the issues and vide order dated 13.12.2001 and 15.01.2004 also framed additional issues.
RCA DJ No.178/2017 & 181/17 Page 8/228. It is important to note here that when the case in the stage of plaintiff evidence, an application under Order 1 Rule 10 CPC was made on behalf of the plaintiff for impleading Kamal Kumar Bagga and Jitender Kumar Bagga. Vide order dated 27.11.2013, the Learned Trial Court has allowed the application and Kamal Kumar Bagga was added as the defendant no.4. However, it may be noted that the plaint was not amended as per the provisions of Order 1 Rule 10(4) CPC.
9. The defendant no.4 has also contested the present suit by filing a written statement of his defence taking wherein preliminary objections to the effect that there is no cause of action in favour of the plaintiff and against the defendant no.4; that the plaintiff has not come to this court with clean hands and has suppressed the material facts; that the suit is not maintainable in the present form. In reply on merits, it is contended by the defendant no.4 that the plaintiff has transferred all his rights qua the suit premises to and in favour of the defendant no.1 against valid consideration; that the rights of the plaintiff stand transferred in favor of the defendant no.1 and the defendant no.1 being the right holder has transferred the same in favour of the defendant no.4; that the defendant no.1 executed the transfer documents in favour of the defendant no.4 is in use, occupation and possession of the suit premises after paying a substantial payment/consideration of Rs.30 lakh and has taken the suit premises from the defendant no.1; that the defendant no.1 had also assured that he would clear all the technical hurdles for execution of documents for concerned department, in case any problem arises for the defendant no.4; that the defendant no.4 contacted various time to the concerned authority but failed to get the suit premises transferred in RCA DJ No.178/2017 & 181/17 Page 9/22 his favour. It is denied that the plaintiff had not transferred the suit premises in favour of the defendant no.1. It is also denied that cause of action has arisen in favor of the plaintiff and against the defendant no.4. Other allegations of the plaint are also denied and disputed by the defendant and prayed for dismissal of suit.
10. The plaintiff filed replication to the written statement of the defendant no. 4 also wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed.
11. While the suit was at the stage of plaintiff evidence, on 04.10.2016, counsel for the plaintiff prayed for judgment on admission. After hearing the parties, the Learned Trial Court, vide order dated 29.04.2017, has partly decreed the suit. While partly decreeing the suit, the Learned Trial Court, inter alia, has observed as follows:-
" 1. By this order I shall decide if the suit of the plaintiff can be disposed of on the basis of admission, if yes then to what extent. No formal application in this regard has been moved. Orally the counsel for plaintiff has pressed for decree on admission.
XXX XXX XXX XXX
26. The admitted facts of the case are that it is the plaintiff who is the allottee of the suit property. The defendant No.1 has admitted to having entered into with the partnership with the plaintiff, but it is also the case of the defendant No.1 that the partnership between the plaintiff and the defendant No.1 was dissolved vide dissolution deed dated 14.08.1994.
27. In para 1 and 2 of the plaint the plaintiff has averred with respect to the fact of the allotment of the suit property in favour of the plaintiff and the plaintiff getting the possession of the same from the defendants No.2 and 3. In the written statement of the defendant No.1 there is no specific denial to the fact of the allotment and getting the physical possession by the plaintiff of the suit property. In para 3 of the plaint the plaintiff has averred regarding the cancellation of the RCA DJ No.178/2017 & 181/17 Page 10/22 allotment of the suit property by the defendant No.3 which from the letter dated 12.01.1999 appears to have been restored. From the letter dated 12.01.1999 it is not apparent as to whom the suit property was formally restored to though the said letter of the defendant No.2 is addressed to the defendant No.1.
28. The defendant has filed letter dated 20.01.1998 to the Commissioner of Industries i.e. the defendant No.3 for restoration of the suit property and along with the said letter the defendant has annexed the photocopy of partnership deed dated 29.07.1994 which was executed between the plaintiff and the defendant No.1.
29. It may be noted that in the written statement it has been averred to by the defendant No.1 that by dissolution deed dated 14.08.1994 the partnership between the plaintiff and the defendant was dissolved.
30. It may further be noted that in the original dissolution deed dated 14.08.1994 filed by the defendant No.1, the date and the month appears to have been inserted later on and from the ink in which the date and the month have been written in the dissolution deed it appears that it does not match with the ink of any of the pens with which the said dissolution deed was signed by the plaintiff, defendant No. and the witnesses.
31. If it is the case of the defendant No.1 himself that the admitted partnership between the plaintiff and the defendant No.1 was dissolved by the dissolution deed dated 14.08.1994 then how come in the letter dated 20.01.1998 sent to the Commissioner of Industries reliance has been placed upon partnership deed dated 29.07.1994 between the plaintiff and the defendant No.1?
32. If the partnership between the plaintiff and the defendant No.1 was actually dissolved then there was no occasion for the defendant No.1 to rely upon the partnership deed executed between the plaintiff and the defendant No.1 after the dissolution of partnership between the plaintiff and defendant No.1.
33. If the plaintiff has relied upon the partnership deed subsequent to alleged dissolution of the partnership between the plaintiff and the defendant No.1 it unmistakably shows that the dissolution deed dated 14.08.1994 was either never executed or if really executed it was never to be relied upon.
34. The defendant No.1 cannot blow hot and cold in the same breath and at one place allowed to rely upon the dissolution deed dated 14.08.1994 and on another occasion take the benefit from the partnership deed which was executed between the plaintiff and the defendant No.1.
35. It may further be noted that along with the letter dated 20.01.1998 to the Commissioner of Industries i.e. the defendant No.3, the defendant No.1 furnished to the defendant No.3 an indemnity bond in which the defendant No.1 inter-alia has stated plaintiff to RCA DJ No.178/2017 & 181/17 Page 11/22 be the lessee of the suit property.
36. In the affidavit inter-alia the defendant No.1 has affirmed the plaintiff to be original allottee of the suit property and that documents submitted by the plaintiff along with the affidavit for restoration of the allotment of the suit property were true and correct.
37. In view of the documents filed along with the letter dated 20.01.1998, the fact which becomes crystal clear is that the dissolution deed dated 14.08.1994 is a sham document and even as on 20.01.1998 the relationship of partnership between the plaintiff and the defendant No.1 existed. It is not the case of the defendant No.1 that subsequent to 20.01.1998 the relationship of partnership between the plaintiff and the No.1 was severed.
38. Initially, the plaintiff had filed the present suit against the three defendants, namely, Sh. Dinesh Kumar Sharma, Govt. of NCT of Delhi and Directorate of NCT of Delhi as defendants No.1, 2 and 3,respectively. On behalf of plaintiff an application under Order 1 Rule 10 of Code of Civil Procedure was moved for impleading Sh. Jatinder Kumar Bagga as the defendant No.4 in the present suit on the ground that the defendant No. during the pendency of the suit sold the suit property to the defendant No.4. The said application filed by the plaintiff was allowed vide order dated 27.11.2013. Sh. Jatinder Kumar Bagga was impleaded as the defendant No.4 in present suit who has filed his written statement in which inter-alia it has been stated by the defendant No.4 that it is the defendant No.4 who is in use, possession and occupation of the suit property after having purchased from the defendant No.1.
39. The defendant No.4 has filed documents viz. Partnership deed dated 11.11.2006 executed between the defendant No.1 and defendant No.2. In the partnership deed it has not been stated that as to what right the defendant No.1 has in the suit property. Very important fact which has been mentioned in the partnership deed dated 11.11.2006 is that "that the party of the first part (i.e. the defendant No.1) is in bonafide physical possession of flatted flat No.B-43, Flatted Factory complex, Okhla, New Delhi - 20 as per restoration letter No.AI/1356/B-43/DI/L III/1958 dated 12.01.1999 issued by Smt. Achla Singh, Deputy Secretary, Industries".
40. In the other documents executed between defendant No.1 and defendant No.4 on 11.11.2006 i.e. Special Power of Attorney, indemnity bond, affidavit, General Power of Attorney, the legal status of the defendant No.1 visavisa the suit property has not been mentioned.
41. In the indemnity bond executed between defendant No.1 and 4 inter-alia it has been mentioned that "whereas the executant RCA DJ No.178/2017 & 181/17 Page 12/22 has apprised the attorney of suit filed by Sh. Balbir Singh in respect of partnership business named Piper Auto Industries from the premises."
42. As the defendant No.4 has apparently appears to have purchased the suit property during the pendency of the present the doctrine of lis-pendes as provided under section 52 of Transfer of Property Act is applicable. Any and all rights of the defendant No.4 in the suit property would be subject to outcome of present suit. Not only that in the facts and circumstances of the present suit, it has to be seen what right the defendant No.1 had in the suit property which could have been transferred by the defendant No.1 in favour of defendant No.4 as defendant No.1 could not have transferred a better title to the defendant No.4 than what the defendant No.1 himself had in the suit property; nemo dat quod non habet. 43. It is the admitted case of the defendant No.1 that it was the plaintiff to whom the suit property was alloted as has already been discussed hereinabove, the partnership between the plaintiff and the defendant No.1 has been admitted to between the plaintiff and though the case of defendant No.1 of the defendant No.1 is that the partnership was dissolved by the dissolution deed dated 14.08.1994 which court has opined was a sham document.
44. The case of the plaintiff is that the defendant No.1 came into the possession of the suit property being the partner of the plaintiff whereas the case of the defendant No.1 is that the partnership deed which was entered into between plaintiff and the defendant No.1 was not to be acted on. The defendant No.1 is deriving his right, title and interest in the suit property on the basis of GPA, SPA, affidavit, agreement, indemnity bond, Will, money receipt (which have been exhibited as Ex.PW-1/D1 to Ex.PW1-1/D9, respectively).
45. In view of the judgment of Hon'ble Supreme Court in Suraj Lamps v. State of Haryana 2011 (183) DLT 1 it is very much clear that the documents for example agreement to sell, general power of attorney, registered Will, affidavit, possession letter and receipt etc. executed in a transaction, the sole purpose of which is to confer the ownership in an immovable property cannot pass any right, title or interest in an immovable property by executing such documents the right, title or interest in any property of value of more Rs.100/- in view of the provisions of Transfer of Property Act and Registration Act.
46. As such, in the judgment of the Hon'ble Supreme Court in Suraj Lamp Industries Pvt. Ltd. judgment (Supra), the Hon'ble Supreme Court has referred to execution of GPA, agreement to sell, Will etc. in a transaction i.e. a bunch of documents referred to herein RCA DJ No.178/2017 & 181/17 Page 13/22 above are executed with the sole purpose of transferring the right, tile or interest in an immovable property. The Hon'ble Supreme Court in para 16 of the Suraj Lamp and Industries Pvt. Ltd. judgment (supra) has observed, "Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of an immovable property." And directed that, "courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property".
47. Where in the transaction of such documents are executed, the court is not to dissect all the documents individually and to ascertain the legal efficacy of such documents i.e. if in a GPA sale transaction, agreement to sell, affidavit, Will etc. are executed, the court is not required to separate all the documents which might have been executed and try to find out the effect of each documents separately in order to find out if or not any right, title or interest in an immovable property is created or not. In view of the ratio-decidendi of the Suraj Lamp and Industries Pvt. Ltd. judgment (supra) that court is of the opinion that any and every document executed in transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' will not even individually create any kind of right, title or interest in the immovable property.
48. In view of the judgment of Hon'ble Supreme Court in Suraj Lamp v. State of Haryana 2011 (183) DLT 1 on the basis of the documents like Ex.PW -1/D1 to Ex.PW-1/D-9, the defendant No.1 did not get any right, title, interest in the suit property. Also, for the reason that the plaintiff himself in the suit property and the plaintiff could not have conferred the title of owner of the suit property on the defendant No.1.
49. The owner of the suit property is the defendants No.2 and 3; NOT the plaintiff and it is not the case of the defendant No.1 that any right of owner or in fact any right in the suit property the defendant No.1 is deriving from the defendants No.2 and 3. The documents on the basis of which the defendant No.1 is claiming to have right, title, interest in the suit property are only mere piece of paper, incapable of transferring any right in favour of defendant No.1.
50. In view of the hereinabove discussion the court is of the opinion that; As the defendant No.1 has got the possession of the suit property because of the partnership entered into between the plaintiff and the defendant No.1. The partnership did not as alleged by defendant No.1 dissolved on the basis of dissolution deed dated 14.08.1994; As the present suit by the plaintiff inter alia is filed for dissolution of partnership between the plaintiff and the defendant No.1; As any right, title, interest of the defendant RCA DJ No.178/2017 & 181/17 Page 14/22 No.4 in the suit property cannot be better than that of the defendant No.1 as the defendant No.4 has received the possession of the suit property during the pendency of the present suit; As none of the documents on which the defendant No.1 is relying upon is legally capable of conferring any right, title or interest in the suit property; As it is the plaintiff who is the allottee of the suit property.
51. Therefore, at this stage, the plaintiff is at least entitled to receive the possession of the suit property as it was the plaintiff who brought the suit property into partnership between the plaintiff and the defendant No.1 which was still subsisting at the time when the present suit was filed as on the basis of documents Ex.PW-1/D1 to Ex.PW1/D- 9 the defendant No.1 did not get any independent right in the suit property. Under provisions of Order 12 Rule 6 of Code of Civil Procedure suit of the plaintiff is hereby partly decreed. The defendant No.4 is directed to handover the possession of the suit property i.e. 43-B, Flatted Factory Complex, Okhla, New Delhi - 110 020 within ten weeks from today to the plaintiff or any authorized person by the plaintiff."
12. The matter was partly heard. Thereafter, counsel for the appellants did not address remaining arguments. I have heard Ms. Manju Singal, Advocate for the D.S.I.D.C and Mr. Deepak Aggarwal, Advocate for the respondent no.3 and have gone through the trial court record carefully. These appeals were pending since long, therefore, the appeals were fixed for judgment and the appellants were given liberty to file written submissions. Mr. Kameshwar Pratap Singh, Advocate did not address oral arguments and submitted that written submissions already filed on behalf of the appellant Dinesh Kumar Sharma be considered. Counsel for the appellant Kamal Kumar Bagga also did not address oral arguments. I have also considered the written submissions filed on behalf of both the appellants and the D.S.I.D.C.
13. Having drawn my attention on the impugned order and decree dated RCA DJ No.178/2017 & 181/17 Page 15/22 29.04.2017 passed by the learned trial court, it is submitted by counsel for the appellants that impugned order and decree suffer from material irregularities and are liable to be set-aside.
14. Per contra, counsel for the respondent D.S.I.D.C submitted that in view of admissions made in the pleadings, the Learned Trial Court has rightly passed the order on rendition and part decree and the appeal is liable to be dismissed.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. The only point for consideration is whether the learned Trial Court erred in decreeing the suit and therefore, the order and decree passed by the learned Trial Court are liable to be reversed.
17. For the decision of these appeals, certain facts admitted by the parties in the pleadings need to be noticed.
18. In the light of pleadings of the parties, it is admitted thus established that the suit premises were allotted to the plaintiff Balbir Singh by the defendant no.3. There is a document available in the trial court record, the genuinity of the said document is not in dispute, i.e., an allotment letter dated 17.09.1981 issued by Directorate of Industries: Delhi Administration, C.P.O Building: Kashmiri Gate: Delhi, whereby, the plaintiff was informed that on the basis of draw of lots it had been decided to allot a Flatted Factory RCA DJ No.178/2017 & 181/17 Page 16/22 no.43, Block-P, measuring 46 sq. meter i.e., the suit premises to the plaintiff, subject to certain terms and conditions, which are reproduced as under, namely:-
"i) That you will be required to deposit a Sum of s. 2,000/- as security through Treasury challan payable in the Pay & Accounts Office at No. 10, Old Secretariat, Delhi. Three copies of treasury challans are enclosed for this purpose. One copy of the challan after the deposit of the amount is required to be forwarded to this office along with your acceptance letter within a period of three weeks from the despatch of this letter.
ii) That the provisional monthly rent of each flatted factory would be @ Rs.611/-/ for factories with area of 44.6 sq. metres and Rs. 648/- for those having an area of 46 sq. metres. This amount is subject to enhancement on final calculation of the cost of development, acquisition and other charges, The Department reserves the right to convert the proposed rent agreement into hire purchase if it so decides in its absolute discretion.
iii) You will furnish an affidavit in the enclosed proforma on a non-
judicial stamp paper of Rs. 2/- duly attested by Stipendiary Magistrate/Notary Public.
iv) The allotment will be governed by the terms and conditions of the lease/rent agreement to be executed by you with this Department. The stamp duty and other charges in connection with the execution and registration of the agreement will borne by you.
v) The flatted factory allotted to you will be used for the manufacture of the item as mentioned by you in your project report with the original application. For the change in the items of manufacture, you will be required to obtain prior approval of the Industries Department.
vi) The allottee will be required to obtain electric connections at their cost (both power and light) and instal separate metre for them within the premises. The payments of the charges for the consumption of the electricity will be solely their responsibility.
vii) You will start the production in the premises of the allotted flatted factory within a period of six months from the date of taking over the possession.
viii) If it is discovered that this allotment has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud or if there shall have been, in the opinion of the Department, whose decision will be final, any breach of the conditions of allotment by the applicant or by any person claiming through or under him/her of any of the conditions of allotment it shall be lawful for the Department to withdraw this offer and to cancel the allotment and re-
RCA DJ No.178/2017 & 181/17 Page 17/22enter upon the said flatted factory and to take possession of the same without compensation whatsoever and to forfeit the amount of security without prejudice to the right of the Department to take action against the allottee or his/her heirs or his successors as open to it under the law.
ix) Your acceptance of this offer along with the affidavit and one copy of the treasury challan should be received in this office within a period of 21 days of the dispatch date of this letter failing which it will be presumed that you are not interested in this offer and the department will have the option to withdraw/ cancel the above offer without assigning any reason and further notice."
19. There is another document available in the trial court record, a perusal of which reveals that as a result of draw of lots for allotment of Flatted Factories near Okhla Industrial Estate, physical possession of the Flatted Factory no.43, Block-P, measuring 46 sq. meter i.e., the suit premises was handed over to the plaintiff Balbir Singh, proprietor of M/s Shikha Garments on 1st December, 1981 by the Estate Manager; Balbir Singh S/o Kartar Singh, the plaintiff had also signed the said document at the space for signature of the person taking over the possession.
20. In the light of contents of the above documents and the admissions made in the pleadings, I am of the considered opinion that the suit premises were allotted to the plaintiff by the Directorate of Industries on lease basis on a monthly rent payable by the allottee plaintiff to the department, on certain conditions as noted above.
21. In the written statement filed by the defendant no.1, he has contended that the plaintiff has already transferred all his rights in respect of the suit premises by executing the necessary documents. Further the defendant no.4 RCA DJ No.178/2017 & 181/17 Page 18/22 has in his written statement claimed that the defendant no.1 has executed the transfer documents in his favour.
22. As noted above, the suit premises was allotted by the Directorate of Industries to the plaintiff on the lease basis. Once, the possession of the plaintiff himself was of a lessee, I have failed to understand how could the plaintiff have transferred the rights qua the suit premises in favour of the defendant no.1 or the defendant no.1 further in favour of the defendant no.4. From the terms and conditions of the lease granted to the plaintiff qua the suit premises, the lessee (the plaintiff) was nowhere authorized by the lessor to further transfer his rights qua the suit premises to anybody. The appellants have failed to satisfy how the allotment of the suit premises could have been transferred to the defendant no.1 or by the defendant no.1 further to the defendant no.4. Even otherwise, the documents relied upon by the defendant no.1 and the defendant no.4 are not the sale documents. The documents in favour of the defendant no.1 are the General Power of Attorney, Special Power of Attorney, Affidavit, Partnership Deed, Agreement, Indemnity Bond, Deed of Will, Money Receipt, No Objection Certificate and Dissolution Deed but these are not the documents of transfer of immovable property. The Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 Supreme Court Cases 656 clearly declared the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 RCA DJ No.178/2017 & 181/17 Page 19/22 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf.RCA DJ No.178/2017 & 181/17 Page 20/22
Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."
In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case(supra) a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. One such document is a Will. It is well settled law that Will speaks after the death of the testator. The testator here is the plaintiff Balbir Singh who is alive, therefore, the Will is of no consequence. Other documents are also not the documents of ownership.
23. In view of the above, no right, title or interest qua the suit premises were conferred on the defendant no.1 on execution of documents relied upon by the defendant no.1. Therefore, the defendant no.1 also could not have transferred the suit premises to the defendant no.4.
24. For the reasons above stated, I am of the considered opinion that sufficient admissions have been made by the defendant no.1 and the defendant no.4 in their respective written statement or otherwise that having regard to those admissions an order on admission can be made.
RCA DJ No.178/2017 & 181/17 Page 21/2225. While passing the impugned order and decree, the learned Trial Court has properly appreciated the facts and circumstances indicated herein above and has also appreciated the position of law correctly.
26. In view of my above discussion, I am of the considered view that the impugned order and decree suffers from no infirmity and hence is not liable to be interfered with. These appeals are dismissed.
27. The appeal files after due compliance be consigned to the Record Room. Trial Court Record be sent back along with copy of the judgment.
Digitally signed DR by DR RAKESH
Pronounced in the Open Court
KUMAR
RAKESH Date:
KUMAR 2023.12.22
on 22nd December, 2023 15:18:46 +0530
(Dr. Rakesh Kumar)
Additional District Judge-03
Central District: Tis Hazari Courts: Delhi
(on the date of reserving for the judgment)
and presently Additional Sessions Judge( FTC)-02
South East District, Saket Courts, New Delhi
RCA DJ No.178/2017 & 181/17 Page 22/22