Delhi District Court
Mrs. Sushil Muttreja vs Sh. Gokul Kumar on 27 March, 2018
In the court of Sh. Munish Markan, Additional District Judge01,
(South) District Courts, Saket, New Delhi
CS no.8868/16
CNR no.DLST010001622011
Mrs. Sushil Muttreja
W/o Mr. Amar Kumar
R/o D/9, Neb Valley,
Neb Sarai,
New Delhi - 110068 ...... Plaintiff
Versus
1.Sh. Gokul Kumar S/o Late Sh.Mahesh Kumar R/o D21, Indira Enclave, Neb Valley, Neb Sarai, New Delhi - 110068
2. Mrs. Meenakshi Jain W/o Col. S. M. Jain R/o 504B, Berverly ParkI, DLF - II, Gurgaon 112002 ........... Defendants Date of institution : 03.05.2006 Date reserved for judgment : 20.03.2018 Date of pronouncement of judgment : 27.03.2018 Decision : Decreed Suit for Declaration, Possession, Injunction and Mesne Profits/Counterclaim CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 1/34 J U D G M E N T
1. In this suit, plaintiff has sought declaration to the effect that she is the lawful owner of the built up property no.D21, forming part of Khasra No.484, Village: Neb Sarai, Indira Enclave, Neb Sarai, New Delhi measuring 1200 Sqr. Yards (hereinafter called the "suit property") on the ground of having purchased the same from defendant no.2 on 27.12.2002 by virtue of agreement to sell, receipt, will etc. and handed over the same to defendant no.1 for the purpose of renovation. Plaintiff has also sought decree of possession, mesne profits @ Rs.30,000/ per month with yearly increase of 10% and decree of perpetual injunction to restrain the defendant (1) or anybody on his behalf from creating any third party interest in the suit property with further prayer to direct the defendant no.1 to render the accounts with regard to the renovation of the suit property.
CASE OF THE PLAINTIFF
2. The case of the plaintiff is that she purchased the suit property from defendant no.2 Mrs. Meenakshi Jain for a total sale consideration of Rs.15 lakhs vide (unregistered) Agreement to Sell, Receipt and Registered Will all dated 27.12.2002. Defendant no.2 handed over the possession of the built up suit property to the plaintiff in part performance of the agreement to sell and also acknowledged the receipt of the payment of Rs.15 lakhs vide PO No.008518 dated 26.12.2002 drawn on HDFC CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 2/34 Bank, Saket Branch, New Delhi. Plaintiff received the possession from the seller. Defendant no.2 also executed the affidavit and letter of possession in favour of the plaintiff in this regard. Defendant no.2 does not dispute the right, title and interest of the plaintiff in the suit property and is only a proforma party and plaintiff has become the absolute owner of the suit property. The registration of the Sale Deed of the property situated at Neb Sarai had been stopped by the state government including the suit property. In addition thereto, Defendant no.2 had also executed a registered power of attorney in favour of defendant no.1 on 27.12.2002 at the instance of the plaintiff as defendant no.1 was a family friend and plaintiff had full faith in defendant no. 1.
3. Plaintiff further stated that after taking possession of the suit property from defendant no.2 by the plaintiff, defendant no.1 who is in the business of construction offered to carry out necessary renovations in the suit property so that it can be made habitable, the plaintiff handed over and entrusted the suit property to defendant no.1 and also handed over the original documents of the property to him which defendant no. 1 has not returned till date. Since 2000, defendant no.1 had taken loan of different amounts at different point of times from the husband of the plaintiff and it was agreed between the parties that the cost of renovation incurred by defendant no.1 shall be adjusted against the loan amount payable by defendant no.1 to the husband of the plaintiff and it was agreed that after the completion of the renovation work, defendant no.1 would hand over the CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 3/34 possession of the suit property to the plaintiff. The renovation work was completed by September/ October 2003 but defendant no.1 occupied the suit premises on leave and license basis for a period of 9 months after the completion of the construction on the ground that he was making alternative arrangements and had sold his house in Safdarjung Enclave, New Delhi. Plaintiff trusted the defendant no.1 but defendant no.1 refused to vacate the premises as promised by him and is unauthorizedly occupying the same till date.
4. Plaintiff further stated that adjoining to the suit property, the husband of the plaintiff also purchased a plot of land with some structure built on it measuring 2200 sqr. yards bearing plot no.D22, D23 and D 23A and these properties were given for renovation/ reconstruction by the plaintiff and her husband to defendant no.1 and the cost of renovation, addition, alternative and improvement if any, were to be borne by defendant no.1 out of the total loan amount of Rs.31,07,500/ and if there was any extra cost, the plaintiff and her husband had agreed to pay the same. However, defendant no.1 never rendered any account and cost of construction/ renovation incurred by defendant no.1 on both the properties is not more than Rs.3107500/. Defendant no.1 handed over the possession of the property no.D23, constructed on 1024 sqr. yards of land and another plot of 200 sqr. yards which is D23A was also constructed and was to be sold to one Mrs. Poonam Malhotra but had been sold to one Mrs. Sunita Bhagat on 01.03.2005 for Rs.8 lakhs which was however having value of CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 4/34 more than Rs.8 lakhs. It is stated that the other two plots are lying vacant and defendant no.1 has wrongly agreed to sell these plots to third party without the consent of the husband of the plaintiff. Action has also been taken by the husband of the plaintiff against defendant no.1.
5. Plaintiff further stated that since the defendant no.1 refused to hand over the possession of the suit property to the plaintiff and refused to settle the accounts, at the instance of the plaintiff, defendant no.2 cancelled the GPA dated 10.01.2006 executed by her in favour of defendant no.1 and further executed another registered power of attorney in favour of the plaintiff dated 10.01.2006 with regard to the suit property. Defendant no.1 is a trespasser and husband of the plaintiff had also given a telegraphic notice dated 07.04.2006 to defendant no.1 to vacate the suit premises but to no avail. Defendant no.1 is also liable to pay mesne profits @ Rs.30,000/ per month claimed by the plaintiff from the date of the suit on the basis of the market rent. Defendant no.1 had held the suit property in fiduciary capacity and as licensee for a limited period and for a specific purpose and his license has been terminated, hence the present suit. Plaintiff valued the suit at Rs.21 lakhs and paid appropriated court fees for the different reliefs of declaration, possession, injunction and mesne profits.
6. Defendant no. 1 filed the written statement and took the stand that plaintiff and her husband Sh. Amar Kumar had purchased two pieces of land appurtenant to each other, one is the suit property and other is the piece of land measuring 2200 sqr. yards. They were desirous of CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 5/34 getting built a house for themselves on the 1200 sqr. Yards portion out of the larger plot and requested defendant no.1 to built for them a double storey house from Scratch, into an ultra modern beautiful house with all amenities. In order to set off a part of the sums payable by the plaintiff and her husband to defendant no.1 for building the said house, they agreed to sell to the defendant no.1, the smaller plot of land measuring 1200 sqr. yards( the suit land) at a price of Rs.15 lakhs. The plaintiff's husband and defendant no.1 were on amicable terms and had other dealings between them and therefore, no agreement in writing was made with respect to the aforesaid two transactions. After considering the two transactions, plaintiff and her husband were liable to pay to defendant no.1 a large sum of money exceeding Rs.50 lakhs and to secure the said sum, plaintiff and her husband delivered and handed over the original documents of title of both the pieces of land to the defendant no.1. It was agreed that till the accounts between the parties are settled and the requisite documents executed, the title documents would continue to remain with the defendant no.1.
7. Defendant no.1 further stated that pursuant to said agreement, defendant no.1 built a two storey house of area of 7000 sqr. feet comprising drawing/ dining room, lobby, kitchen and two bedrooms and two bathrooms on the ground floor, and 4 bedrooms with attached bathrooms and a lobby on the first floor and a separate block of 4 servant quarters with separate toilets, a boundary wall, landscaping, septic tank, marble flooring, plaster of paris, floorings of all walls, bath rooms and kitchen fittings with CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 6/34 modern fixtures and fittings, electrical fittings and other gadgets were constructed.
8. Defendant no. 1 further stated that after completing the building, defendant no.1 handed over the same to the plaintiff and her husband in June 2004 and they resided there for some time and thereafter let out the said house to a tenant. As far as the suit property was concerned, defendant no.1 built upon it for himself a double storey modern house comprising area of approximately 5000 sqr.feet in 4 months wherein defendant no.1 moved in September /October 2003 and had been residing there since then continuously. The plaintiff and her husband are liable to pay a sum of Rs.44,12,000/ towards completing of the said house by defendant no.1 for the plaintiff and her husband and for purchase of the adjoining land. Despite various requests, the plaintiff and her husband failed to pay and also failed to execute the documents of title for the purchase of the suit land and therefore to preempt the defendant no. 1, plaintiff filed the present false suit. It is stated that the suit has not been properly verified as per law and not valued properly for the purpose of court fees and jurisdiction as market value of the suit property exceeds Rs. 1 crore. Whereas the plaintiff has valued it for Rs.200/ and paid the court fee of Rs.20/.
9. Defendant further submitted that in part performance of the agreement, plaintiff delivered the possession of the suit property to defendant no.1 and no right subsists in favour of the plaintiff who has no CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 7/34 locus standi in respect of the suit property. It is stated that subsequent to the purchase from defendant no.2, the plaintiff had agreed to sell the suit property to defendant no.1. Defendant denied the stand taken by the plaintiff and stated that power of attorney was executed in his favour in consideration of the agreement to sell entered between the plaintiff and defendant no.1 and contemporaneously, vacant possession of the suit property was delivered to him. He denied that property was delivered to him for the purpose of carrying out the renovation or to make it habitable, therefore, denied that any loan was taken by him from plaintiff or her husband more specifically the sum of Rs. Rs.31,07,500/. Defendant admitted that the suit no. 681/05 has been filed by the husband of the plaintiff against him. He also claimed that cancellation of the power of attorney is null and void as defendant no.2 has no such right to do so as the power of attorney executed in his favour was for consideration and therefore not terminable. He denied any power of attorney was executed by defendant no.2 in favour of the plaintiff. Defendant no.2 prayed for dismissal of the suit.
10. Plaintiff filed the replication to written statement of defendant no. 1 wherein she reiterated the facts as mentioned in the plaint and controverted the stand taken by the defendant no.1 in his written statement. She further stated that suit property and the other property measuring 2200 sq. yards belonging to her husband was purchased by them with certain structures built upon it. Defendant no.1 was only to get cost of CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 8/34 construction as a contractor and plaintiff has no objection if valuer is appointed to evaluate the cost of construction. The defendant has also not accounted for the amounts received by the husband of the plaintiff as loan which was to be adjusted against the cost of construction. Plaintiff denied that there was any agreement to sell the suit property. Defendant no.1 used cheap building material and poor quality fixtures and fittings and has not given any plan or details of the constructions carried out by him. Plaintiff admitted having letting out the adjoining house during the period April 2004 to April 2005. The defendant no.1 got the suit premises on license basis on the pretext of staying there till he finds an alternative arrangement as he had sold his house at Safdarjung development Area. Defendant no. 2 who was the owner of suit property has not disputed the ownership of the plaintiff and has even revoked the power of attorney executed by defendant no. 2 in favor of defendant no. 1.
WRITTEN STATEMENT OF DEFNEDANT NO.2
11. Defendant no.2 stated that she was the owner and in possession of the suit property and had handed over the possession of the suit property in part performance of agreement to sell and received the entire consideration from the plaintiff and executed proper documents in this regard. She further stated that she is left with no right, title or interest in the suit property and all the rights in the suit property have devolved upon the plaintiff by way of agreement to sell and other documents as CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 9/34 executed by defendant no.2 in favour of the plaintiff. She also admitted the execution of the registered Power of Attorney on 10.01.2006 and cancelled the earlier Power of Attorney dated 27.12.2002 executed by her in favour of defendant no.1. It is stated that she is no connection whatsoever with the suit property and prayed for her deletion and dismissal of suit qua her.
COUNTER CLAIM of Defendant no. 1
12. Defendant no.1 also filed a counter claim for specific performance and in the alternative, for damages wherein, in addition to the stand taken in the written statement, it is stated that towards building of the house of the plaintiff and her husband and for the purchase of the adjoining land by the defendant no.1, the plaintiff and her husband are liable to pay to defendant no.1 a sum of Rs.44,12,000/. Defendant no.1 called upon the plaintiff and her husband to pay the said sum and execute the documents of title but they made excuses. Defendant no.1 further stated that the terms of the oral agreement to sell between him and plaintiff whose specific performance is sought, are as under:
13. a). It was agreed that plaintiff shall sell the suit property to defendant no.1 for a total price of Rs.15 lakhs.
b). The possession of the said plot has been delivered to defendant no.1 and the price was to be adjusted against the construction cost of the house agreed to be built by defendant no.1 for the plaintiff and her husband on the adjoining plot and for that purpose, the plaintiff and her CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 10/34 husband are liable to pay the amounts in excess of the said price of Rs.15 lakhs and accordingly the entire price of the plot stood paid by defendant no.1 to the plaintiff.
c). Further, the title documents of the suit property were also delivered by the plaintiff to the defendant no.1 as a security for discharge of the obligation by the plaintiff to the defendant no.1 and the possession of the said documents continued with the defendant no.1.
d). It was further agreed that defendant no.1 was entitled to construct on the said plot a house for himself which he had constructed and is residing there on.
e). It was further agreed that the plaintiff would execute and got registered the title documents in favour of the defendant no.1 in respect of the suit property contemporaneously with the completion of the construction by defendant no.1 of the house of the plaintiff and her husband in adjoining plot and the said construction was completed in June 2004 and the plaintiff and her husband are in possession of the said house.
14. The plaintiff had filed the present suit to preempt the claim of the defendant no.1 and fraudulently cast a cloud on the title of the defendant in respect of the suit property by purporting to get the Power of Attorney dated 27.12.2002 cancelled and by getting the defendant no.2 to execute a Power of Attorney on 10.01.2006 in favour of the plaintiff. He stated that the Power of Attorney dated 27.12.2002 executed by defendant no.2 in favour of defendant no.1 was for a consideration and right, title and CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 11/34 interest was conferred by defendant no.1 in respect of the suit property and therefore, under Section 202 of the Contract Act, the Power of Attorney is irrevocable. The defendant no.1 disputed the right of defendant no.2 to execute a fresh Power of Attorney in favour of the plaintiff and stated that same is liable to be cancelled. Defendant stated that he had spent amount in excess of Rs.15 lakhs on the construction of the house built for the plaintiff and her husband and he has performed his obligations under the agreement of the plaintiff with respect to the suit property but the plaintiff has failed to perform her obligation of executing the title documents in favour of defendant no.1 in respect of the suit property and defendant no.1 has always been ready and willing to perform his part of the contract and has already performed all his obligations under the contract with the plaintiff. Counterclaimant/defendant valued the suit for the purposes of relief of specific performance at Rs.15 Lakhs, for the relief of cancellation of power of attorney at Rs.130/ and for the relief of declaration of ownership at Rs.5,05,000/ and did not value the alternative relief of damages.
15. Therefore, defendant no. 1 prayed for a decree of specific performance of the agreement between the plaintiff and the defendant no.1. Defendant no.1 also prayed for decree of cancellation of Power of Attorney dated 10.01.2006 executed by defendant no.2 in favour of the plaintiff and also prayed for a decree of permanent injunction to restrain the defendant no.2 from executing any Power of Attorney in respect of the suit property in favour of anyone. He also prayed for decree of declaration that he is CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 12/34 rightful owner in possession of the suit property. As an alternative relief, defendant no.1 has prayed for decree of damages for a sum equivalent to the market value of the suit property less Rs.15 lakhs with direction to plaintiff to pay the same along with interest @ 18% pa.
16. Plaintiff filed the written statement to the counter claim of defendant no. 1 and reiterated her stand as taken in the plaint stating that counter claim is not maintainable as no written agreement was signed between the parties and the defendant has failed to prove any of the terms of the oral agreement. Plaintiff denied any such oral agreement arrived at between the parties and stated that pleadings in this regard are vague and without any particulars and are false.
17. Defendant no.1 filed the replication to the reply of the plaintiff to the counter claim wherein he reiterated his defence/case as made out in the written statement/ counter claim and controverted the stand taken by the plaintiff in the main suit as well as in the reply.
18. During admission denial, defendants admitted two documents filed by the plaintiff. Ex.P1 is the registered cancellation of GPA dated 10.01.2006 executed by defendant no.2 cancelling the GPA dated 27.12.02 executed in favor of defendant no. 1. Ex.P2 is the registered GPA dated 10.01.2006 executed by defendant no.2 in favour of the plaintiff.
19. Plaintiff on her part admitted five documents filed by the defendant no. 1 which are as follows:
CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 13/34(i) Ex.D1 is the registered GPA dated 27.12.2002 executed by defendant no.2 in favour of the defendant no.1.
(ii) Ex.D2 is the notarized agreement to sell dated 27.12.2002 executed by defendant no.2 in favour of plaintiff.
(iii)Ex.D3 is the registered Will dated 27.12.2002 executed by defendant no.2 in favour of plaintiff in respect of the suit property.
(iv) Ex.D4 is the Possession Letter dated 27.12.2002 executed by defendant no.2 in favour of plaintiff.
(v) Ex.D5 is the Receipt dated 27.12.2002 executed by defendant no.2 in favour of plaintiff regarding receipt of Rs. 15 Lakhs.
20. From the pleadings of the parties, following issues were framed:
ISSUES
1. Whether defendant no.1 was a licensee of the plaintiff and the license was determined, if so, to what effect? OPP
2. Whether the plaintiff is entitled for a decree of possession in respect of the property no.D21, Indira Enclave, Neb Valley, Neb Sarai, New Delhi ? OPP
3. Whether the defendant no.1 is liable to render accounts to the plaintiff for alleged renovation and construction of the property in dispute, if so, for what period and to what effect? OPP
4. Whether the plaintiff is entitled for decree of perpetual injunction as prayed? OPP CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 14/34
5. Whether there had been a legal and valid agreement to sell between the defendant no.1 and the plaintiff, if so, to what effect? OPD1
6. Whether the defendant no.1 is entitled for a decree of specific performance, if so, on what terms and conditions? OPD1
7. Whether the defendant no.1 has already performed his part of agreement as alleged by him, if so, to what effect? OPD1
8. Relief.
21. During plaintiff's evidence, plaintiff examined herself as PW1 and tendered her affidavit Ex.PW1/A.
22. During defendant evidence, defendant examined five witnesses. DW1 Sh. Gokul Kumar i.e. defendant himself tendered his affidavits Ex.DW1/A and supplementary affidavit Ex.DW1/B and also relied upon the documents i.e. telephone and electricity bill Ex.DW1/1. Statement of account Ex.DW1/2 and cheque of Rs.50 Lakhs issued by the husband of plaintiff in favour of defendant no.1 as Ex.DW1/3. DW2 Sh. Sultan Singh Deshwal tendered his affidavit Ex.DW2/A wherein he deposed being known to defendant no.1 and husband of plaintiff and claimed that in negotiations were held in his presence and the agreement was arrived at in his presence. DW3 Sh. Deepak tendered his short affidavit Ex.DW3/A and claimed to have done the plumbing work at the house of the husband of the plaintiff for which Rs.35,000/ was paid to him CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 15/34 by the defendant no.1. Similarly, DW4 Sh. Rameshwar Kumar, the carpenter tendered his affidavit Ex.DW4/A and claimed to have carried out wood work in the house of the husband of the plaintiff for which Rs.80,000/ was paid to him by defendant no. 1. Similarly, DW5 Sh. Shiv Kumar, the painter tendered his affidavit Ex.DW5/A and claimed to have done the painting work in the house of the husband of the plaintiff for which Rs.40,000/ was paid to him by defendant no. 1.
23. I have heard Ld. Counsel for both the parties and have gone through the record carefully. The issue wise findings of the court are as under:
FINDINGS OF THE COURT:
ISSUE No.5 is taken up first:
Whether there had been a legal and valid agreement to sell between the defendant no.1 and the plaintiff, if so, to what effect? OPD1
24. The onus to prove this issue was upon the defendant no.1. Before coming to the question of the agreement to sell between the plaintiff and defendant no.1, it is pertinent to deal with the issue of the right, title or interest of the plaintiff over the suit property. It becomes important for two reasons, one is that the plaintiff had sought a declaration to this effect that she is the lawful owner of the suit property (though no specific issue has been framed in this regard) and secondly, the crux of the arguments of Ld. Counsel for defendant no.1 revolves around the challenge to the claim of CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 16/34 the plaintiff being the owner of the suit property.
25. Defendant no.1 had admitted that the suit property was purchased by the plaintiff from defendant no.2 on 27.12.2002. Defendant has also admitted that apart from the suit property measuring around 1200 sqr. Yards, the plaintiff and her husband had purchased another piece of land measuring 2200 sqr. Yards comprised in Khasra No.484, Village: Neb Sarai, Tehsil: Mehrauli, New Delhi. However, Ld. Counsel for defendant no.1 had argued challenging the very ownership of plaintiff to the suit property on the ground that agreement to sell dated 27.12.2002 Ex.D2 is unregistered one and post 24.09.2001(after the amendment to section 17(1A) of The Registration Act), an unregistered agreement to sell cannot be used for the purposes of Section 53A of The Transfer of Property Act. It is argued that a document which is required to be compulsorily registered, if not registered, shall be inadmissible in evidence by virtue of Section of 49 of The Registration Act and therefore cannot be looked into for the purpose of determination of the question whether the plaintiff is the owner of the suit property or not.
26. On the other hand, Ld. Counsel for plaintiff has argued that once the defendant no.1 has himself admitted the ownership of the plaintiff to the suit property in his written statement as well as in his affidavit of evidence, there is no requirement for the plaintiff to prove a fact which is already admitted. He further argued that once the defendant has admitted the ownership of the plaintiff, defendant no.1 cannot be allowed to CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 17/34 challenge it.
27. Perusal of the pleadings as well as the evidence led by defendant no.1 reflects that the whole of the defence as well as the counter claim of the defendant no.1 is based on the premise that defendant no.1 had purchased the suit property from the plaintiff and the consideration thereof (Rs.15 Lakhs) was to be adjusted by constructing another property of the plaintiff and her husband measuring about 1200 sqr. Yards. The defendant no.1 in his written statement and the counterclaim has not challenged the purchase of the suit property by the plaintiff from defendant no.2. It is also not in dispute that defendant no.1 and defendant no.2 are not espousing any common cause/right against the plaintiff. The prior ownership of the defendant no.2 to the suit property is also not a disputed fact.
28. The defendant no.1 cannot blow hot and cold in the same breath. On the one hand, he claims to have purchased the suit property from plaintiff and on the other hand, he has disputed the very title of the plaintiff to the suit property. Besides, defendant no.2 is the admitted owner of the suit property. In her written statement, defendant no.2 had admitted that she had sold the suit property to the plaintiff by executing numerous documents Ex.D2 to Ex.D5 which are Agreement to Sell, Will, Possession Letter and Receipt all dated 27.12.2002 in favour of plaintiff. Defendant no.2 also admitted to have executed registered GPA Ex.D1 dated 27.12.2002 in favour of defendant no.1. The ownership of defendant no.2 to the suit property remaining undisputed, the selling of the suit property by defendant CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 18/34 no.2 to the plaintiff, also remaining undisputed, coupled with the fact that the defence of the defendant in the written statement as well as in the counter claim being that he had purchased the suit property from the plaintiff by way of an oral agreement to sell, all this act as an estoppal against defendant no.1 to dispute the title of the plaintiff to the suit property. It is not open to the defendant no.1 to dispute the ownership of the plaintiff to the suit property notwithstanding the fact that the Agreement to Sell dated 27.12.2002 between plaintiff and defendant no.2 is unregistered one. The bar of Section 53A of The Transfer of Property Act read with section 17(1A) of The Registration Act would come into picture had there been any dispute between the plaintiff and defendant no.2 which is not the case here.
29. In view of the same, on account of the admission of defendant no.2 and on the basis of the documents Ex.D2 which is Agreement to Sell and Purchase, Ex.D3 which is Will, Ex.D4, which is Possession Letter and Ex.D5 which is the Receipt all dated 27.12.2002 and Ex.P1 dated 10.01.2006 which is the cancellation of the GPA dated 27.12.2002 executed in favour of the defendant no.1 and finally in view of the registered GPA dated 10.01.2006 executed by defendant no.2 in favour of plaintiff, the plaintiff has stepped into the shoes of the defendant no.1 and for all practical purposes, it can be safely held that qua the defendants, the plaintiff has acquired the right akin to a owner to the suit property notwithstanding the fact that there is no registered Sale Deed in favour of CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 19/34 the plaintiff executed by defendant no.2. Since the stand of the plaintiff that Sale Deed could not be registered in respect of the suit property as there was a ban by the Government for the registration of the Sale Deed in respect of the properties in that area, including the suit property, it is made clear that observations given herein cannot be construed in any manner so as to enable the plaintiff to overcome the ban, if any, put in place by the Govt. to register the sale deed in respect of the suit property and for that purpose, the plaintiff shall be governed by the applicable laws/rules in force.
30. Now the issue is whether there has been a legal and valid agreement to sell between the defendant no.1 and the plaintiff. The stand of the defendant no.1 is that at the time of purchase of the suit property by the plaintiff, the suit property was handed over to defendant no.1 for a consideration of Rs.15 lakhs and defendant no.1 had agreed to construct a double storey house at his own cost in the 1200 sqr. yards area out of the larger plot of 2200 sqr. yards in the name of the husband of the plaintiff. Further, the defendant no.1 has taken the stand that after considering the two transactions, the plaintiff and her husband were liable to pay a larger sum of money exceeding Rs.15 lakhs to the defendant no.1 and for securing the said money, plaintiff and her husband handed over the original title documents of both pieces of land to the defendant no.1. Defendant no.1 also claimed that he constructed a posh two storey house measuring 7000 sqr. Feet for the plaintiff and her husband at the said plot comprising CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 20/34 drawing cum dining room, lobby, kitchen and two bed rooms with two bath rooms at the ground floor and 4 bed rooms with attached bath rooms also on the first floor and a separate block of 4 servant quarters with separate toilets and also did landscaping and made septic tank and provided marble flooring, plaster of paris, furnishing on all walls, bath rooms, kitchen were fitted with modern fixtures and fittings, electrical fittings and other gadgets and did complete wood work and made an ultra modern house and delivered the same to the plaintiff and her husband in June 2004 and for completing of the said house, the stand of defendant no.1 is that plaintiff and her husband are liable to pay a sum of Rs.44,12,000/ after adjusting the price of the suit property which was agreed to be Rs.15 Lakhs. Plaintiff on its part had disputed that there was any oral agreement to sell between the plaintiff and defendant no.1.
31. In my considered opinion, the question whether there was an oral agreement to sell and purchase between the plaintiff and defendant no.1 is a disputed question of fact and to adjudicate this aspect, the evidence led by the parties need to be looked into. It is worthwhile to note that the onus to prove this issue was upon defendant no.1 . On its part, DW 1 apart from examining himself as DW1 defendant has examined DW2 Sh. Sultan Singh Deshwal who claimed to be present at the time of negotiations and at the time of the agreement. Defendant no.1 has also examined three more witnesses DW3 to DW5 who claim to have carried construction related work for the defendant no.1. However, as far as the CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 21/34 issue in hand is concerned, the defendant no.1 examined only himself and DW2 Sh. Sultan Singh Deshwal.
32. DW1 further during his cross examination done on 27.09.2013 at page 2 has stated that on 27.12.2002, he has not paid any money to the plaintiff for purchase of the property (voluntarily stated) as per the understanding. Therefore, it is clear that defendant no.1 had not paid any amount either in cash or by way of cheque or by any other mode to the plaintiff for the alleged purchase of the suit property. The whole of the case of the defendant is based upon the understanding and adjusting the price of the suit property towards the construction of another plot of 1200 sqr. Yards on property no.D23 belonging to the husband of the plaintiff. Therefore, it is important to understand the nature of the relationship between the parties.
33. During his cross examination, DW1 had admitted that plaintiff's husband used to send/export goods from India and they used to market them together and business went on one and half years till the year 2002. DW1 further admitted that he knows the plaintiff since 1995 and he started business with the plaintiff and her husband after 1996, in the year 2000 for imported artifacts under the names and style of M/s Amar India which was a partnership firm though there was no partnership deed executed between them. DW1 further admitted that he had received some money from the plaintiff and/or her husband in the year 2000 but vaguely stated for some other purpose and qualified it by saying that none for the CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 22/34 purpose of construction. Further, DW1 admitted that all payments made by plaintiff and/or husband to him were made through cheques. He further stated that he did not demand any money for the purpose of construction over the suit property. Once the defendant admits that he had received some money from the plaintiff or her husband, the onus was upon defendant no.1 to explain that amount, its date and other details and the purpose for which it was taken since the whole of the defence/counter claim of the defendant is based upon the mutual transactions but the defendant has failed on this account miserably. During his cross examination done on 17.07.2013, DW1 stated that he had received amounts from the plaintiff/her husband through cheques but on the next date i.e. 27.09.2013 in reference to said earlier cross examination, DW1 stated that he does not have any details. DW1 vaguely stated that he must have spent Rs.4060 lakhs towards construction. This is a self serving statement which does not serve any purpose and cannot be treated so as to sanctify the stand of the defendant in the absence of any documentary evidence in this regard.
34. Further, the stand of the defendant no.1 that husband of the plaintiff has given a cheque of Rs.50 lakhs Ex.DW1/3 to him has been diluted by the stand of the plaintiff that since the husband of the plaintiff was posted in Singapore and therefore, to enable the defendant no.1 to carry out the joint business, blank cheque was kept with the defendant no.1 which he has misused. The stand of the plaintiff is that the cheque Ex.DW CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 23/34 1/3 was blank and was kept with the defendant so that same can be used in case any payment is to be made to person connected to DW1 as plaintiff was residing at Singapore. DW1 in his cross examination done on 13.07.15 stated that he never demanded the cost of construction incurred from the plaintiff but he demanded orally. He further stated that the plaintiff has given the cheque of Rs. 50 Lakhs towards the expenditure for the construction. Though he kept it as a security. DW1 further stated that he never encashed the cheque since the plaintiff ensured to pay the money as such he held the cheque. DW1 further admitted that plaintiff and her husband paid to him certain amounts prior to the purchase of the said property which were adjusted for some other object, prior to the purchase of the suit property. The testimony of DW1 reflects that defendant no.1 had business dealings with husband of plaintiff but the defendant has nowhere explained the nature of transactions and he also failed to give the details of the various amounts taken by him from the plaintiff and her husband. DW1 also failed to give plausible explanation as to why the cheque of Rs. 50 Lakhs Ex DW1/3 issued by the husband of plaintiff was never encashed by him. From the testimony of DW1, it appears that the whole details of the various transactions between defendant no.1 and plaintiff/her husband have been kept under wrap by the defendant though these transactions have been made the very basis of the claim of the defendant to the suit property.
35. Adding to it, the admission of the defendant no.1 to the CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 24/34 statement of account Ex.DW1/PX2 totally nullify the defence of defendant no.1. During his cross examination, DW1 Sh.Gokul Kumar had admitted the statement of account Ex.DW1/PX2 by stating that the statement of account Ex.DW1/PX2 is correct, which is annexure P6 filed by the plaintiff, as per which the defendant no.1 was given the total sum of Rs.31,07,500/ and the amount received from the defendant no.1 was Rs.5,62,500/ leaving a balance of Rs.25,45,000/. It is argued by Ld. Counsel for plaintiff that this is the amount which the defendant no.1 admittedly owed to the plaintiff and her husband as husband of the plaintiff and defendant no.1 were not only had cordial terms and were having friendly relation but also having business relations. This admission of Ex DW1/PX2 whereby the defendant no.1 admitted a balance of Rs. 25,45,000/ to be paid by defendant no.1 further demolishes the stand of the defendant no. 1 that he had to take amount of Rs. 44,25000/ from the plaintiff and her husband after adjusting the price of suit property.
36. To explain that defendant no.1 spent about Rs.4060 lakhs in construction of the property of husband of plaintiff, defendant no. 1 had examined DW3 Sh.Deepak a plumber who deposed that he carried out the plumbing work in the said plot of 1200 sqr. Yards out of the larger plot measuring 2200 sqr.yards and he was paid Rs.35,000/ by defendant no.1. Similarly, DW4 Sh. Rameshwar Sharma a carpenter deposed that he carried out the wood work and was paid Rs.80,000/ by defendant no.1 and DW5 Sh.Shiv Kumar a painter deposed that he did painting work for said CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 25/34 plot for which he was paid Rs.40,000/by Sh.Gokul Kumar i.e. defendant no.1. In my considered opinion, these witnesses DW2 to DW5 hardly explain the costs incurred by the defendant no. 1 in the construction of the double storey building for the plaintiff/ her husband. In the first instance, defendant no. 1 has given rough estimate of the cost of construction of house of plaintiff/her husband. Merely by stating that he spent around Rs. 4060 lakhs in the construction of a property and examining a painter, carpenter and plumber to justify this huge expenditure is an explanation which is a moonshine and self serving statement bereft of any legal weight.
37. Apart from these three witnesses, the defendant no.1 has not examined any other witness who could account for the expenses allegedly incurred by defendant no.1 for the construction of the said larger plot of 1200 sqr. Yards belonging to the husband of the plaintiff.
38. So far as bank records are concerned, defendant no.1 on his part has placed on record the copy of statement of account of his Bank Syndicate Bank and copy of his ITR but defendant has failed to prove these photocopies of documents and even failed to explain as to which were the entries which refer to the expenses incurred during the construction of the said building and to whom what amounts were paid. The entries of the copies of statement of account are illegible and do not throw any light. The bare minimum the defendant could do to account for the construction of the said building was to produce the relevant records regarding the material purchased, various works done for the construction but the defendant has CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 26/34 miserably failed to even point out the various heads of expenditure and failed to prove and justify the spending of the amount to the tune of Rs.40 60 lakhs as alleged by the defendant no.1. When it comes to statement of account, the defendant was required to give the specific amounts spent by him on account of construction of said building, to say the least. It becomes important as the defendant no.1 claimed that he purchased the suit property for a consideration of Rs.15 lakhs which was to be adjusted from all the construction work done on the other property of the plaintiff and her husband. But defendant no.1 has failed miserably in this regard.
39. When it comes to entering into an oral agreement to sell and purchase, in his affidavit Ex DW1/A and Ex DW1/B, the defendant no. 1 has failed to specifically state the date on which this oral agreement was executed. He also failed to specify the place and the persons in whose presence it was agreed. Since the plaintiff has denied any such agreement, the onus was heavy upon the plaintiff to prove this fact.
40. DW2 Sh.Sultan Singh Deshwal who claimed to be present at the time when the alleged oral agreement to sell was executed in favour of defendant no.1 stated that plaintiff, her husband, defendant no.1 and he himself were present whereas in contradiction to the same, DW1 during his cross examination has stated that at that time, plaintiff and her husband, and defendant no.1's wife were present at the relevant time. DW1 did not make any mention of DW2. This clearly demolishes the whole testimony of DW2 who claims to be a witness to the said oral agreement and dilutes CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 27/34 it beyond repair. The whole of the claim of the defendant no. 1 is shrouded in vagueness.
41. The oral agreement to sell relied upon by the defendant no.1 lacks material terms. Except for the self serving statement of Defendant no.1 that sale consideration was Rs. 15 lakhs, there is nothing on record to substantiate this stand. There is nothing on record or evidence which could explain other vital terms of the agreement to sell like when the sale deed was to be executed, what were the options available to both the parties if case a party makes a breach of contract. Once the plaintff denied such oral agreement, simply by stating that there was oral agreement to sell the suit property is of help to the defendant no. 1. Defendant no. 1 has miserably failed to account for the cost of construction of the said larger plot of 1200 sqr.yards and has also failed to account for the other terms and condition of oral agreement to sell. DW2 Sh.Sultan Singh Deshwal is not a reliable witness. The whole case of the defendant is based upon vague estimates and conjectures. Law is well settled that a person alleging oral agreement to sell has a very hard onus to prove all the material terms and conditions of the agreement to sell. In view of the above, and considering the totality of facts and circumstance, in my considered opinion, the defendant no. 1 has miserably failed to prove that there was a valid and legally binding agreement to sell executed between him and the plaintiff. Accordingly, this issues is decided against the defendant no.1 and in favor of the plaintiff.
CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 28/34Issue no. 6. Whether the defendant no.1 is entitled for a decree of specific performance, if so, on what terms and conditions? OPD1
42. In view of the findings given in issue no. 5 as above, since there was no legally binding and valid agreement to sell between the plaintiff and the defendant no. 1, no question arises of any specific performance as prayed by defendant no. 1. Accordingly, this issue is decided against the defendant no. 1 and in favor of the plaintiff'. Issue no. 7. Whether the defendant no.1 has already performed his part of agreement as alleged by him, if so, to what effect? OPD1
43. Since it has been held that there was no valid and legally binding agreement between the plaintiff and the defendant no. 1, no question arises of defendant no. 1 performing his part of the non existent agreement. Accordingly, this issue is decided against the defendant no. 1 and in favor of the plaintiff.
Issue no. 1. Whether defendant no.1 was a licensee of the plaintiff and the license was determined, if so, to what effect? OPP
2. Whether the plaintiff is entitled for a decree of possession in respect of the property no.D21, Indira Enclave, Neb Valley, Neb Sarai, New Delhi ? OPP
4. Whether the plaintiff is entitled for decree of perpetual injunction as prayed? OPP CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 29/34
44. It is an admitted fact that the plaintiff has purchased the suit property from defendant no. 2 and possession of the same was handed over to defendant no.1. Though as per defendant no. 1, the suit property was a plot of land on which he built a double storied house, whereas as per the plaintiff, it was a built up property which was given to defendant no. 1 for the purpose of renovation. The documents pertaining to the suit property executed by defendant no. 2 in favor of the plaintiff Ex D2 to Ex D5 give the description of the suit property as a built up property. Not only that, the GPA Ex D1 which was executed by defendant no. 2 in favor of defendant no. 1 also refers to the property as a built up property. Therefore, the stand of the defendant no. 1 that it was a plot of land with one room does not find merit. The extent of construction in the suit property at the time of handing over of the suit property to the defendant no.1 has not been specified/ proved by any of the parties. Be that as it may, for the purpose of present issue, it is important to ascertain the status of the defendant no. 1 in the suit property after the same has been handed over to him. As held in issue no.5, the defendant no. 1 have failed to prime facie prove that an oral agreement to sell the property was executed between him and the plaintiff. It being the case, the defendant no. 1 became a permissive user in the suit property as there has been no claim of the defendant no.1 being a tenant in the suit property. Once the suit property is handed over to the defendant no. 1 for the purpose of renovation/construction, the possession of the defendant no.1 to the suit property is a permissive one, as that of licensee. This being CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 30/34 the case, the license can always be terminated by the licensor by giving notice to vacate. Though the plaintiff has claimed to give notice to the defendant no. 1 in March 2006, but no such notice has been placed on record by the plaintiff. Even then the filing of the suit is a sufficient notice to a licensee to vacate the suit premises. It being the case, the plaintiff who is having a better title than the defendant no.1 having stepped into the shoes of defendant no.2, is entitled to the possession of the suit property. In consequence thereof, the plaintiff also becomes entitled to decree of permanent injunction to restrain the defendant (no.1) from creating, in any manner, third party interest in the suit property. All the three issues no.1, 2 and 3 are accordingly decided in favor of the plaintiff and against the defendants.
Issue no. 3. Whether the defendant no.1 is liable to render accounts to the plaintiff for alleged renovation and construction of the property in dispute, if so, for what period and to what effect? OPP
45. Plaintiff has claimed to give the suit property to the defendant no. 1 for the purpose of renovation/repair. Defendant no.1 on his part claimed to have constructed the suit property upto double storey in an area of 5000 sq. yards and also claimed to construct another lavish double storey house of the husband of the plaintiff. Both the parties i.e. husband of plaintiff and the defendant no.1 admittedly carried joint business earlier. From the evidence, it appears that there were no clear cut and express agreement between the husband of the plaintiff/or the plaintiff and the CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 31/34 defendant no.1 regarding the quantum of work to be done in the suit property. The husband of the plaintiff has not been made a party or even a witness in this case. No details have been given by the plaintiff as to what were the terms of the renovation/repair and the extent thereof to be carried out by defendant no. 1. No evidence has been led as to the extent of work actually done by the defendant no.1. No plan of the building/photographs filed by either party. There is no evidence regarding the material to be used by the defendant no.1 in construction/repair. Even the actual construction and its measurements before and after the renovation has not been either stated or sought to be proved by the plaintiff during trial. Though plaintiff has relied upon statement of account Ex DW1/PX2 which shows an outstanding of Rs. 25,45,000/ to be paid by the defendant no. 1 but in the absence of clear cut terms of renovation/ repairs agreed between the parties, the defendant no.1 can not be asked to give his part of the accounts. An agreement which is shrouded in mystery and open ended vague terms can be made the basis for asking one party to give the details of account. A claim for rendition of accounts can only be granted if a party derives such a right by virtue of a statute or there is a fiduciary relationship between the parties or any such right exists in equity none of which is the case here. Reliance in this regard can be placed on K.C. Skaria Vs. State of Kerela (2006) 2 SCC 285 wherein it has been held that rendition of account cannot be claimed as a matter of convenience or on the ground that the person suing did not know the exact amount due to him, as that will open CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 32/34 the flood gates for converting several types of money claims into suits for account, to avoid payment of court fees at the time of the institution.
Therefore, in my considered opinion, plaintiff is not entitled to the decree of rendition of account as prayed for. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
46. Further, no issue was framed regarding the relief of mesne profits claimed by the plaintiff in the prayer clause of the plaint. It appears to be an intentional omission not to frame the issue on the mesne profits apparently for the reason that plaintiff had valued the suit for the relief of mesne profits @ Rs.200/ and paid the court of Rs.20 thereon. At the time of framing of issues on 25.09.2007, the Hon'ble High Court (at that time exercising the jurisdiction on the original side) had declined to frame the issue regarding the alternative relief of recovery of Rs.41 Lakhs sought by the defendant in the counterclaim on the ground that no such prayer was made nor any court fees on such alternative relief was paid. Further, no arguments were led by either party on this aspect of mesne profit. Further, the nature of business transactions between both the parties being opaque and vague and plaintiff having been held disentitled to any relief of rendition of account, in my considered opinion the plaintiff is not entitled to any mesne profits either.
Relief
47. In view of the above, plaintiff is held entitled to decree for possession of the suit property bearing no.D21, Indira Enclave, Neb CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 33/34 Valley, Neb Sarai, New Delhi and plaintiff is also entitled to decree of permanent injunction and defendant no.1 is restrained from any creating third party interest in the suit property. The counterclaim of the defendant no.1 is dismissed. Cost of the suit are also awarded in favour of the plaintiff and against the defendant no.1. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court on 27.03.2018 (Munish Markan) Additional District Judge01 (South) District Courts, Saket, New Delhi CS No.8868/16 Mrs. Sushil Muttreja Vs. Sh. Gokul Kumar & Anr. Page 34/34