Delhi District Court
Sh. Arun Sibbal vs Sh. Devinder Pal Singh on 29 September, 2008
1
IN THE COURT OF SH. SUNIL BENIWAL, CIVIL JUDGE,
DELHI
SUIT NO.480/2008
1 Sh. Arun Sibbal,
S/o Sh. M.L Sibbal,
2 Smt. Veena Sibbal,
W/o Sh. M.L Sibbal,
Both R/o 1/170, Back Side,
3rd Floor, Janakpuri,
New Delhi. Through their
Special Attorney Sh. M.L Sibbal. .. Plaintiffs.
VERSUS
1 Sh. Devinder Pal Singh,
S/o Sh. Kuldeep Singh,
R/o BG6/160C, Paschim Vihar, New Delhi.
2 Sh. Anil Kumar Jaggi,
S/o Sh. Maqsudan Lal Jaggi,
Last known Address :
BG6/160C, Paschim Vihar,
New Delhi.
3 Sh. B.S Ahluwalia,
S/o Sh. Ranbir Singh,
R/o A2/18, Janakpuri, New Delhi58
4 Sh. Virender Pal Singh,
S/o Sh. Ranbir Singh
R/o B3/129, Janakpuri, New Delhi58.
5 Sub Registrar, District Centre, Janakpuri, New Delhi.
6 Punjab National Bank, Gurudwara Road, Karol Bagh,
New Delhi.
2
.... Defendants.
Date of Institution : 31.01.05
Date on which judgment was reserved : 17.09.08.
Date of pronouncing judgment : 29.09.08.
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
JUDGMENT:
1 By this judgment I shall decide the suit of the plaintiff filed for declaration and permanent injunction. Before proceeding further it will not be out of context, if the respective case of the contesting parties, as is revealed from their pleadings, is briefly discussed to understand the present controversy. 2 The plaintiff has filed the present suit for the relief of declaration that the sale deed dt. 29.01.04 executed in the office of defendant no. 5 by the defendant no. 2 in favour of defendant no. 1 and registered as document no. 1655 in the additional book no. 1, Volume no. 11350 at pages 75 to 87 dt. 29.01.04 in respect of suit property bearing no. 170, Block A1, IIIrd Floor, Back portion, Janak Puri, New Delhi58 with roof / terrace rights up to the sky of back portion, specifically shown in red colour in the site plan Ex.PW1/1 on the basis of forged and fraudulent unregistered GPA dt. 22.01.01 be declared as 3 null, void & illegal, thereby, cancelling the sale deed dt. 29.01.04 alongwith incidental relief of permanent injunction for restraining the defendants from dispossessing the plaintiff from the suit property. 3 Plaintiffs have stated that the plaintiffs are the coowners of the suit property bearing no. 170, BlockA1, Janak Puri, New Delhi58 of roof / terrace of the second floor with its terrace rights up to the sky of the back portion, which is specifically shown in Red Colour in the site plan (hereinafter to be referred to as 'Suit Property' in short), attached with the plaint. Plaintiffs had filed this suit on 31.01.2005 against defendants no. 1 to 5 and summons were issued to the defendants. Defendants no. 1 & 2 were proceeded ex parte vide order dated 12th September 2005 as they never appeared even once despite due service and defendants number three and four appeared and filed their written statement. In their written statement, defendants number three and four admitted the claim of the plaintiff and reiterated the contents of the plaint. Issues were framed by the Ld. Predecessor, the then CJ Sh. Jitender Mishra on 03.10.05. Vide order dt. 03.10.05 following issues were framed by the Ld. Predecessor the then CJ Sh. Jitender Mishra: 1 Whether the plaintiff is entitled to the decree of declaration and permanent injunction as prayed for?(OPP) 2 Relief.
4 Subsequently, when the matter came up before the Ld. 4 Successor Court of the then CJ Sh. Jitender Mishra i.e. Court of Sh. Tarun Yogesh, Civil Judge, Delhi, the Ld. Successor Court was pleased to implead defendant no. 6 i.e. Punjab National Bank, as a necessary party in the present suit for just and effectual disposal of the case. The Predecessor of this court, i.e. Sh. Tarun Yogesh, Civil Judge, Delhi had observed that in the absence of Punjab National Bank, as a party in the suit, the suit cannot be finally and completely disposed of. Therefore, Punjab National Bank was impleaded as a party in the present suit on 27.10.07, and amended memo of parties alongwith amended plaint was filed by the plaintiff on 08.04.08.
5 Subsequent to the impleadment of Punjab National Bank, as defendant no. 6 in the present suit, WS was filed by defendant no. 6. Defendant no. 1 and 2 had already been proceeded exparte vide order dt. 12.09.05, in view of their non appearance since the very inception of the suit.
6 Plaintiffs have stated that the plaintiffs are the absolute coowners of the suit property bearing no. 170, BlockA1, Janak Puri, New Delhi58. Plaintiffs have further stated that Sh. M.L Sibbal, father of plaintiff no. 1 constructed the suit property alongwith plaintiff no. 1 out of the funds raised by the plaintiff no. 1. Plaintiffs have further stated that plaintiff no. 1 and Sh. M.L Sibbal entered into oral collaboration agreement with the defendant no. 3 and 4 and consequent 5 to the said collaboration agreement the construction of the suit property was raised. Plaintiffs have further stated that defendant no. 3 and 4 were the original owners of the suit property and the said property has been purchased from defendant no. 3 and 4 for valuable sale consideration of Rs. 3 lacs 50 thousand, as stated above. Since the entire property i.e. ground floor, first floor & second floor were constructed by the plaintiff no. 1 alongwith Sh. M.L Sibbal, therefore, in order to get back the spent money, services, labour and time by plaintiff no.1 and his father, the defendants no. 3 and 4 agreed to sell the roof / terrace rights of the second floor up to the sky of the back portion of the said free hold property at the sale consideration of Rs. 3 lacs 50 thousand mentioned above. Plaintiffs have further averred that although the sale deed in question was executed and registered in the year 2004, but the oral collaboration agreement with respect to construction and ownership rights of plaintiffs with regard to roof/terrace rights of the 2nd floor upto the sky in the suit property was entered in the year 1997. Plaintiffs have further stated that in pursuance of oral collaboration agreement, father of the plaintiff no. 1 raised the construction from the roof of the second floor up to the third floor during the year 1997 itself. Plaintiffs have further stated that in pursuance of the said construction the electricity and water connections were also got sanctioned from the concerned authorities in the name of the plaintiff no. 1. The house tax assessment was also duly got sanctioned in the name of the plaintiff no. 1.
67 Plaintiffs have further stated that after the construction of the suit property in the year 1999, the plaintiffs had started residing in the suit property and one day were surprised when some persons who alleged themselves to have come from the defendant no. 6 bank, Gurudwara Road, Karol Bagh, New Delhi, came to the suit property and demanded some money, which was alleged to have been given by the defendant no. 6 bank to the defendant no. 1 against the security of the suit property. Plaintiffs have further stated that subsequent to the visit of the people from PNB, plaintiffs came to know that the suit property had been mortgaged by defendant no. 1 (who is unknown to the plaintiffs), with the defendant no. 6 bank on the basis of some forged, fabricated and fictitious documents. Plaintiffs have further stated that on subsequent enquiries, plaintiffs came to know that the defendant no. 2 i.e. Sh. Anil Kumar Jaggi allegedly claimed to have purchased the suit property from defendant no. 3 and 4 vide unregistered GPA, Will, receipt etc., and had further sold the suit property vide registered sale deed to some Sh. Devender Pal Singh, (defendant no.1) on the basis and force of the unregistered GPA, Will, Receipt etc,.
8 Plaintiffs have further stated that when plaintiffs enquired regarding unregistered GPA, Will, Receipt etc., from defendant no. 3 and 4, alleged to have been executed by defendants no 3 and 4 in favour of defendant no. 2 and had categorically asked the defendant no. 7 3 and 4 whether the defendant no. 3 and 4 have sold or transferred or created any third party interest with respect to the suit property in favour of any other person except the plaintiffs, the defendant no. 3 & 4 categorically denied having done so. Counsel for plaintiffs have stated that to this query, defendant no. 3 and 4 had assured the plaintiffs that they have not created any third party interest, nor have sold or transferred the suit property to anyone else except the plaintiffs. It is also submitted that the plaintiffs sent a legal notice dt. 03.01.05, calling upon the defendant no. 3 and 4 to explain the subsequent events regarding the visit of representatives of defendant no. 6 at the suit property. In reply to the said notice the defendant no. 3 and 4 reaffirmed their stand and stated that they have not sold or transferred the suit property to anybody else except the plaintiffs and have also not taken or accepted any sale consideration from anybody else. It is stated that the defendant no. 3 and 4 vide their reply dt. Nil, addressed to Sh. R.N Vats, Advocate, confirmed in writing that they never appointed Sh. Anil Kumar Jaggi / defendant no. 2 as their GPA qua the suit property and further confirmed that if there is any sale deed executed by defendant no. 2 in favour of defendant no.1 the same is fabricated, forged and illegal document. It is further submitted that the plaintiffs also came to know through newspaper readings that defendant no. 1 is also involved in a criminal case u/s 411/420/468/471, IPC vide FIR no. 950, registered at PS Rajouri Garden. It is further submitted that the plaintiffs as a precautionary measure wrote a letter dt. 17.01.05 to the 8 defendant no. 5 for disclosing any fact and circumstances regarding the alleged sale deed dt. 29.01.04, alleged to have been executed by Sh. Anil Kumar Jaggi in favour of Sh. Devender Pal Singh / defendant no.
1. Plaintiffs have further submitted that the plaintiffs never got a reply to the said letter. It is further submitted that the plaintiffs came to know that there is a fraudulent account no. 1051312 in ABN Amro Bank, NK, Hansalaya Branch, 15 Bara Khamba Road, New Delhi in the name of plaintiff no. 1 opened by defendant no. 1. The said account has been blocked / seized and the investigation in the matter by the said bank is in progress. It is further submitted that in the said fraud account the signature of plaintiff no.1 have been forged by the defendant no. 1 for which a separate criminal complaint had been lodged by plaintiff no. 1 against defendant no. 1 at PS Janak Puri on 02.01.05.
9 Pursuant to the filing of the suit, summons were issued on defendant no. 1 to 5 and defendant no. 1 and 2 were proceeded exparte vide order dt. 12.09.05. Defendant no. 3 and 4 filed their WS and Sh. Jagdish Yadav, LDC in the Office of SubRegistrar District Centre, Janak Puri, appeared on behalf of defendant no. 5. Defendant no. 3 and 4 reiterated the contents of the plaint in their WS and admitted the contents and averments of the plaint to be correct. 10 My Ld. Predecessor was pleased to observe after going 9 through the pleadings that PNB / defendant no. 6 was a necessary party in the present suit without which the suit cannot be finally and effectually disposed of, therefore, the Ld. Predecessor was pleased to implead defendant no. 6 as a party vide order dt. 27.10.07 and summons were issued to the defendant bank, amended memo of parties was filed by the plaintiffs impleading defendant no. 6 in the array of parties and memo of appearance was filed on behalf of defendant no. 6 on 25.02.08. Subsequently WS was filed by defendant no. 6 in which the defendant no. 6 has denied the ownership of the plaintiffs with respect to the suit property and had also raised an objection contending that since the suit property is now subject matter of proceedings pending before Debt Recovery Tribunal - III, therefore, Civil Suit for injunction is barred under the Securitization Act 2002 against the defendant no. 6 bank in respect of its secured assets i.e. the suit property. The defendant number six has stated that the defendant number one is the real owner of the suit property who has created an equitable mortgage of the suit property with the defendant number six bank on 15 Oct 2004 by deposit of original registered sale deed dated 29 January 2004. Defendant number six has averred that the defendant number one purchased the suit property from defendant number two vide registered sale deed dated 29 Jan 2004. Defendant number six has further averred that the defendant number 2 purchased the suit property from defendants number three and four vide GPA, SPA, agreement to sell, Will, receipt for consideration of sale, position letter all dated 10 22nd January 2001.
11 Subsequent to the filing of WS by defendant no. 6 additional issues were framed by this court vide order dt. 28.05.08 i.e. : 1 Whether the suit is barred by law of limitation?(OPD6) 2 Whether the suit is barred by provisions of Securitization Act?(OPD6) 3 Whether the original sale deed as filed by the plaintiffs is forged and fabricated?(OPD6) 4 Whether the plaintiffs are entitled to the reliefs as prayed for?(OPP) 5 Relief.
12 Evidence was led by the plaintiffs. The plaintiffs examined their Attorney Sh. M.L Sibbal (father of the plaintiff no. 1) as PW1, his affidavit was tendered on 14.12.05 as Ex. P1. He deposed on the lines of the plaint and reiterated its contents. He relied upon following documents exhibited as : 1 Site Plan Ex. PW1/1.
2 Registered Sale Deed Ex. PW1/2.
3 The alleged sale deed between defendant no. 1 and 2 Ex.
PW1/3.
4 The alleged forged and fabricated GPA between defendant 11 no. 2 on one hand and defendant no. 3 and 4 on the other hand Ex. PW1/4.(PW1 has also stated that there is no mention of the alleged GPA dt.22.01.01 in the records of defendant no. 5). 5 Notice dt. 03.01.05 Ex. PW1/5.
6 Reply to the said notice dt. Nil, Ex. PW1/6.
7 Copy of FIR registered against defendant no. 1 Ex. PW1/7. 8 Letter dt. 17.01.05 Ex. PW1/8.
9 Electricity Bill Ex. PW1/9.
10 Water bill Ex. PW1/10.
11 House tax receipt Ex. PW1/11.
12 GPA and SPA dt. 22.01.01 alleged to be unregistered and fictitious Ex. PW1/12 and PW1/13.
PW1 was cross examined at length and discharged. 13 The defendant examined one witness DW1 namely Sh. Vijay Kumar (Manager of Defendant no. 6 Bank), he has deposed on the lines of WS, he was cross examined by the counsel for the plaintiffs and discharged. DW1 has relied upon the following documents : 1 Loan application dt. 01.10.04 signed by defendant no. 1 Ex.
DW1/1.
2 Demand promissory note. Dt. 14.10.04 executed by defendant no. 1 EX. DW1/2.
3 Letters of mortgage dt. 15.10.04 executed by defendant no. 1 EX. 12
DW1/3.
4 Acknowledgment of loan and mortgage vide letter dt. 15.10.04 as EX. DW1/4.
5 Acknowledgment of the mortgage letter dt. 15.10.04 by
defendant no. 6 EX. DW1/5.
6 The unregistered GPA dt. 22.01.01 alleged to be executed
by defendant no. 3 and 4 in favour of defendant no. 2 EX. DW1/6.
7 Special Power Attorney Dt. 22.01.01 EX. DW1/7. 8 Unregistered agreement to Sell dt. 22.01.01 EX. DW1/8. 9 Unregistered will dt. 22.01.01 EX. DW1/9.
10 Receipt for consideration of sale dt. 22.01.01 EX. DW1/11. 11 Possession letter dt. 22.01.01 EX. DW1/12.
12 Copy of affidavit alleged to be signed and executed by Sh. B.S Ahluwalia/D3 and Sh. Virender Pal Singh/D4 dt. 22.01.01 EX. DW1/13.
13 Certified copy of conveyance deed dt. 28.07.00 Ex. DW1/14. 14 Registered Sale Deed executed by defendant no. 2 in favour of defendant no. 1 EX. DW1/15.
15 Affidavits executed by defendant no. 1 dt. 06.10.04 regarding ownership of the property as EX. DW1/16 and Ex. DW1/17. 16 None encumbrance certificate dt. 21.09.04, EX. DW1/18 and EX. DW1/19.
17 Inspection / Search receipt dt. 21.09.04 carried out by Sh. 13
Sanjeev Bajaj on behalf of defendant no. 6 in the office of Sub Registrar (defendant no. 5) EX. DW1/20.
18 Copy of OA / plaint dt. 15.09.05 EX. DW1/21.
19 Summons dt. 22.11.05 coupled with intimation of interim stay EX. DW1/22.
14 At the stage of tendering of evidence of Sh. Vijay Kumar DW1, documents exhibited as D1/1 , D1/2, D1/3, D1/4, D1/5 and D1/21 were objected to by the counsel for the plaintiffs which were to be decided at the stage of final arguments. But at the stage of final arguments these objections were not pursued by either of the parties. 15 At this stage, I deem it pertinent to mention that PE was led by the plaintiff in the Predecessor Court of Sh. Jitender Mishra before the defendant no.6 was impleaded as a necessary party by the successor court of Sh. Jitender Mishra, in which plaintiff had relied upon the same documents and since defendant no. 3 and 4 were not contesting the claim of the plaintiff but were rather admitting the claim of the plaintiff, therefore, no affidavits were filed on behalf of defendant no. 3 and 4 and they were not examined in chief also. Vide his statement dt. 31.10.06 counsel for defendant no. 3 and 4 had stated that no evidence is to be led on behalf of defendant no. 3 and 4. 16 I have heard submissions of the parties and have gone 14 through the record. My issue wise findings are as follows : Issue no. 1 framed by the Ld. Predecessor and additional issue no. 4 framed by this court are essentially one and the same and issue no. 2 framed by the Ld. Predecessor and additional issue no. 5 framed by this court are exactly the same. Therefore, these issues shall be disposed of by the same findings.
17 Now, for the sake of convenience and uniformity, I shall deal with issue number 3 of additional issues first. ISSUE NO. 3 of ADDITIONAL ISSUES : 3 Whether the original sale deed dated 23/09/04 as filed by the plaintiffs is forged and fabricated?(OPD6) EVIDENCE OF DEFENDANT NO. 6 The onus to prove this issue is on the defendant no. 6. Defendant no. 6 examined Shri Vijay Kumar Senior Manager of the defendant no. 6 and evidence by way of affidavit of Shri Vijay Kumar was tendered on 17th July 2008. In his examination in chief, Shri Vijay Kumar DW no. 1 has deposed that he was a Manager in the defendant no. 6 Bank with effect from June 2002 till December 2005 and is conversant with the facts of the case and is therefore competent 15 to depose on behalf of defendant no. 6. Shri Vijay Kumar has deposed that the defendant no. 1 approached the defendant no. 6 for overdraft facility of Rs. 20 lacs and moved the loan application dated 1st October 2004 signed by defendant no. 1 marked as exhibit DW1/1. Shri Vijay Kumar has further deposed that the said loan was sanctioned in the favor of defendant no. 1 and in order to secure the aforesaid loan facility the defendant no. 1 signed various documents including demand promissory note dated 14th October 2004 marked as exhibit DW 1/2. It has also been deposed that the defendant no. 1 created equitable mortgage on 14th October 2004 by deposit of original registered sale deed dated 29th January 2004 as a security in respect of property bearing number 170 in BlockA1, 3rd Floor, Bank portion, Janank Pui, New Delhi58 with roof / terrace rights up to sky of back portion. In the same line, Shri Vijay Kumar has also deposed that the suit property is ad measuring 225 yd. (Which claim/fact has been disputed by the plaintiffs stating that the property is not ad measuring 225 yd. but is ad measuring 440 Sq. meter. 18 Shri Vijay Kumar has further stated that the said equitable mortgage was confirmed vide letter of mortgage dated 15th October 2004 Ex. DW1/3. It is further deposed that the loan of Rs. 20 lacs was acknowledged and the said mortgage was confirmed vide letter dated 15th October 2004 Ex. DW1/4 stated to be signed by the defendant no. 1 in the presence of the defendant's witness Shri Vijay Kumar. The 16 mortgage letter was acknowledged by the defendant no. 6 Bank vide letter dated 15 Oct 2004 itself marked as Ex. DW1/5. Shri Vijay Kumar has further deposed that the suit property was duly verified by Advocate of defendant no. 6 Shri Sanjeev Bajaj who is stated to have inspected the suit property in the office of the Sub Registrar, defendant no. 5. It is further deposed that the defendant no. 1 had deposited the chain of title deeds of the previous owner Shri B. S Ahluwalia(D3), Sh. Virender Pal Singh (D4), and Sh Anil Kumar Jaggi(D2). Shri Vijay Kumar has further deposed that his own records reveal that the suit property was first sold by defendant no. 3 and 4 to defendant no. 2 on 22nd January 2001 through GPA Ex. DW1/6, SPA Ex. DW1/11, Agreement to Sell Ex. DW1/8, will Ex. DW1/9 & DW1/10, receipt for consideration of sale Ex. DW1/11, & possession letter DW1/12, all dated 22nd January 2001 stated to be executed by the defendant no. 3 and 4 in favour of defendant no.2.
19 It is further deposed that the defendant no. 3 & 4 also signed and executed affidavit dated 22nd January 2001 Ex. DW 1/13. It is further deposed that the defendant no. 3 & 4 have also deposited certified copy of conveyance deed dated 28 July 2000 marked as Ex. DW1/14 issued by DDA in favor of Plot attorney i.e. defendant no. 3 and 4. It is further deposed that after the purchase of the suit property by the defendant no.2 from defendant no. 3 and 4 the suit property was further sold to defendant no. 1 by defendant no. 2 vide registered sale 17 deed Ex. DW1/15. It is further deposed that the defendant no. 1 has also signed and executed two affidavits dated 6 Oct 2004 Ex. DW1/16 & 17. It is further deposed by DW1 that the suit property cannot be the subject of further sale by the same vendors defendant no. 3 & 4 who had already transferred the said property to the said Shri Anil Kumar Jaggi, defendant no. 2 on 22nd January 2001. It is further deposed, that since the suit property was already sold and a valid mortgage was created by the defendant no. 6 by deposit of the aforementioned original sale deed and the non encumbrance certificate dated 21st September 2004 Ex. DW1/18 and Ex. DW1/19 were also issue by the Advocate of the defendant no. 6, therefore the plaintiffs cannot claim any right over the suit property. The inspection/search receipts stated to be conducted by the advocate of the defendant no. 6 has been placed on the court record and marked as Ex. DW1/20. It is further deposed, that the said nonencumbrance certificate was issued after proper verification subsequent to which the overdraft facility of rupees 20 lacs was sanctioned to the defendant no. 1.
20 It is further deposed by the witness of the defendant, that the present suit is filed in order to delay and embarrass the trial of the suit/O.A. number 93/2005 for recovery off rupees 20,44,341/in the debt recovery tribunalIII. Copy of O.A./plaint dated 15th September 2005 is marked as Ex. DW1/21. It is further deposed that the plaintiffs in the present case have also filed an application for 18 impleading them as a necessary party in the said suit. It is further deposed that a restraint order has already been passed by the debt recovery tribunalIII in the aforementioned case dated 15th September 2005 whereby defendant no. 1, his Attorneys, agents, servants, employees, successor in interest, etc. have been restrained from alienating, transferring, dealing with, parting with or disposing of in any manner whatsoever the suit property. The summons dated 30th November 2005 coupled with intimation of interim stay has been filed on the court record as Ex. DW1/22.
21. It is further deposed by the witness of the defendant that the present suit has been filed by the plaintiff in connivance with defendant no. 1 to 4 on the basis of forged and fabricated documents by manipulating the same in order to defeat the legitimate claim of the Bank.
22. It is further deposed that the plaintiffs have no right, title or interest in the suit property and that the suit property belonged to defendant no. 1, Sh. Devinder Pal Singh. Shri Vijay Kumar, DW1 has denied that the plaintiff purchased the suit property from the defendant no. 3 and 4 vide sale deed dated 23rd September 2004 registered in the office of defendant no. 5 on 24th September 2004 vide document no. 1655 in the additional book no. 1, Volume no. 11350 at pages 75 to 87 dt. 29.01.04 in respect of suit property bearing no. 170, Block A1, IIIrd Floor, Back portion, Janak Puri, New Delhi58 with roof / terrace 19 rights up to the sky of back portion.
23. In his crossexamination, DW1 has deposed that he personally verified the contents of the loan application executed by the defendant no. 1. He has further deposed that he visited the suit property but does not remember the exact date as to when he visited the suit property. It was volunteered by the defendant's witness that he went alone to verify the suit property. He has further stated, that as per his knowledge, only one case have been filed against defendant no. 1 to recover the loan amount. He has stated, that the said case is pending in the debt recovery tribunalIII. He has further stated that he does not know whether the verification report given by him with respect to the suit property has been filed by the defendant no. 6 in the court record in the suit pending in the debt recovery tribunal, but has also stated that the said report is available in the records of the defendant no. 6. He has further stated, that the measurement of the suit property was not carried by him at the time of all his visits to the suit property. He has further stated that he had taken photographs of the suit property but has also stated that he does not know whether those photographs have been filed in the debt recovery tribunal case or in this case. It is further stated, that he had brought photograph of the suit property which is marked as D2. He has further deposed that he does not have the negative of the said photograph. He is volunteered that in the photograph the nameplate of the defendant no. 1 on the suit property is clearly 20 reflected, which according to him is a clear proof of the possession of the suit property by the defendant no. 1. He has further deposed that the name of the defendant no. 1 is written at the bottom of the name plate of the suit property. He has also admitted in his cross examination, that the photograph taken and filed by him Marked as D2 does not to show the entire picture of the building but has volunteered that it shows the third floor. He has stated that the photograph of the inside of the building were also taken but in his very next statement he takes a contradictory stand and states that the inside pictures were not taken but the photograph of the exterior of the building with different angles were taken. He has further submitted that he does not know whether the reference to the said photographs of the suit property taken from different angles have been placed on the court record or not. He has also admitted that the photograph placed by him marked as D2 has not been relied upon by him in his affidavit and examination in chief. He has also admitted that he has not shown the said photograph to his advocate at the time of preparation of his affidavit Ex. D1. He has also stated that in his opinion the said photograph is sufficient to establish the possession of the defendant no. 1 in the suit property. He has also admitted that it is correct that the defendant no. 6 bank has lodged a FIR at police Station, Karol Bagh, against the defendant no. 1. He has volunteered that in the said FIR he has also lodged a complaint against the plaintiff and the brother of the defendant no. 1 also. He has further admitted that he does not know 21 whether the plaintiff no. 1, or the defendant no. 1 or the brother of the defendant no. 1 were arrested on the basis of the above mentioned FIR or not.
24. In his crossexamination, Shri Vijay Kumar has further stated that at the time of verification of the suit property, he had met one Sardarji, at the sport who had told him that the defendant no. 1 had purchased one portion in the suit property. He has further admitted, that he does not remember whether the incident of meeting the above mentioned Sardarji has been mentioned in his verification report or not. He has further admitted that no verification of the suit property was made from the defendant no. 2. He has further stated that he does not know whether the mutation record in favor of the defendant no.1 has been filed on the court record or not. He has further stated, neither does he know nor does he remember whether any copy of the mutation record in favor of the defendant no. 1 is in the possession of the Bank or not. He has further admitted in his crossexamination that neither him or anybody else on behalf of the defendant no. 6 bank has got verified whether the suit property is assessed to the defendant no. 1 in the MCD records or not. He has further admitted, that in the legal opinion given by the advocate of the defendant no. 6 bank Ex. DW 1/19, no effort was made to get the mutation records of the suit property.
25. A suggestion was put to him during the course of cross examination by the counsel for the plaintiff that, whether after lodging 22 of the above mentioned FIR, any of the bank officials was dismissed or suspended in any internal inquiry which suggestion was replied to, in the negative by the witness.
26. It is further stated, that when Shri Vijay Kumar went for the verification of the suit property, he met the defendant no. 1 in the suit property. Further stated that the verification report has not been placed on the court record but if need be, the same can be produced by Shri Vijay Kumar. He has further stated, that although it is correct, that the bank account of the defendant no. 1 was opened within the defendant no. 6 bank on the basis of party introduction of some other branch, but he does not remember the branch as well as the name of the person who introduced the defendant no. 1 for the purposes of opening of his bank account with the defendant no. 6 bank. He has further admitted, that on the loan application, the address mentioned by the defendant no. 1 is not that of the suit property, but is that of the suit property (B136, First Floor, Tagore Garden, New Delhi) where the parents of the defendant no. 1 have been stated to be residing at the time when the loan was sanctioned. It is further admitted by the defendants witness, that neither he nor anybody else from the defendant no. 6 bank visited the abovementioned property (B136, First Floor, Tagore Garden, New Delhi) to verify the address given by the defendant no. 1, And he has volunteered that since he had already visited the suit property for the purposes of verification, and since it 23 was in the discretion of the defendant no. 6 whether to visit one property or several properties, therefore in the present case, it was not desired to visit all the addresses given by the loan borrower. He has further admitted, that even after the lodging of the FIR and filing of the suit against defendant no. 1, to recover the loan amount, no inquiry has been made from defendants no. 3 and 4 to verify whether the have created any legal right or transferred of the title of the suit property in favor of defendant no. 1 or defendant no. 2.
27. He has denied the suggestion that the General power of attorney, special power of attorney, Will, possession letter, receipt, in agreement to sell all dated 22nd January 2001 does not bear the signatures and the thumb impression of defendant no. 3 & 4. He has further denied that the alleged sale deed Ex. DW1/15 is forged and fabricated. He has further denied that the mutation of the suit property still exists in the name of the plaintiff. He has further denied the suggestion that the defendant no. 1 and 2 were never in possession of the suit property. He has further denied that the property as mentioned in Para no. 8 of his affidavit Ex. D1 is 290 yd. and not 220 square yards. He has further denied the suggestion, that the sale deed dated 23rd September 2004 Ex. PW1/2 is a legal and valid document by virtue of which the plaintiffs are the real owners of the suit property. He has further denied the suggestion that the bank has falsely sanctioned the loan to the defendant no.1, Shri. Devinder Pal Singh on 24 the basis of forged and fabricated documents with the connivance of the bank officials. He has further admitted that he has not seen the defendants no 2 on one hand and 3 & 4 on the other hand sign the alleged documents dated 22/01/01. He further stated that he does not know, whether any case has been registered against the plaintiff naming the plaintiff as an accused but has only read the FIR which named the plaintiff as one of the accused.
EVIDENCE OF THE PLAINTIFFS:
28. It is the case of the plaintiffs that they had purchased the suit property from defendant no. 3 and 4 vide registered sale deed dt. 23.09.04 for valuable sale consideration of Rs. 3 lacs 50 thousand and are therefore, coowners of the suit property. In support of their claim, the plaintiffs have examined PW1, who is stated to be the Special Power Attorney of the plaintiffs vide SPA dt. 27.01.05 (Original of SPA has been filed on record and has been identified by Sh. M.L Sibbal, constituted Attorney of the plaintiffs ). Defendant no. 3 and 4 have admitted the entire claim of the plaintiffs in their WS and therefore, no evidence by way of affidavit was filed on behalf of defendant no. 3 and 4. PW1 has proved the registered sale deed dt. 23.09.04 executed by defendant no. 3 and 4 in favour of the plaintiffs exhibited as Ex. PW1/2. Although the sale deed Ex. PW1/2 has been disputed and challenged by the defendant no. 6 25 (the sole contesting defendant) on the ground that the same is forged and fabricated, no evidence has been led by defendant no. 6 with respect to the said issue. Even in his cross examination, PW1 Sh. M.L Sibbal has reiterated that the said sale deed Ex. PW1/2 is a genuine document duly executed by defendant no. 3 & 4 in favour of plaintiffs. The original of the sale deed Ex. PW1/2 is on record. Even the defendants no 3 & 4 (admitted to be the original owners of the suit property by suit parties) have reiterated the stand of the plaintiffs and have further stated that they never executed any documents in favour of defendant no 2 with respect to the suit property.Therefore, the said sale deed Ex. PW1/2 stands proved in the absence of any cogent evidence being produced or brought on record by defendant no.6 to the effect that the same is forged and fabricated. In his cross examination PW1 has not stated anything which might be construed as being contradictory to his affidavit or to the averments made in the plaint. PW1 has denied the averments made in the WS and has also denied the suggestion that the present suit is a collusive suit filed in connivance with defendant no. 1 to 4 just to cheat and to commit the fraud upon defendant no. 6.
Therefore, this issue is decided in the favour of the plaintiff and against the defendant.
26
29. ISSUE NO. 1 OF ADDTIONAL ISSUES : 1 Whether the suit is barred by law of limitation?(OPD6) Onus to prove this issue was on defendant no. 6. In his WS defendant no. 6 had averred that the suit of the plaintiffs is barred by law of limitation.
No evidence has been led by the defendant no.6 with respect to this issue.
Since No evidence has been led by the defendant no.6 with respect to this issue, therefore, no evidence has been led by the plaintiffs to rebut the bald assertion of the defendant no.6 with respect to this issue. FINDINGS ON THE ISSUE Now the present suit is a suit for declaration alongwith permanent injunction and was filed on 31.01.05. Now in a suit for declaration and permanent injunction based on fraud committed by the defendants on the plaintiff, the period of limitation is of 3 years from the date of cause of action i.e. from the date the factum of fraud came into the knowledge of the plaintiff.
Section 17 of the Limitation Act,
17. Effect of fraud or mistake--
(1) where, in the case of any suit and application for which period 27 of limitation is prescribed by this act
(a) the suit and application is based on the fraud of the defendant or respondent or his agent, or
(b) the knowledge of the right or title on which a suit and application is founded is concealed by the fraud of any such person as aforesaid, or
(c) the suit or application is for relief from the consequences of a mistake or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
The period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production.
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which :
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase now, or have reason to believe, that any fraud had been committed, or 28
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgement debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgement creditor made after the expiry of the said period extend the period for execution of the decree or order.
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
30. Now, the present suit has been filed by the plaintiff seeking declaration that the alleged sale deed dated 29/01/04 be declared as null, void and illegal and may consequently be declared cancelled. Admittedly, the sale deed is dated 29/01/04 and the suit was filed on 31/01/05. Therefore, even if it is presumed that the knowledge regarding the alleged illegal sale deed dated 24/01/04 came in the knowledge of the plaintiffs on the same day, i.e. 24/01/04, even 29 then the suit of the plaintiffs is within limitation period. As far as the knowledge of the alleged forged and fabricated documents dated 22/01/2001 alleged to be executed by the defendants no 3 & 4 in favour of defendat no.2 is concerned, after going through the entire record, it is clear that the said facts came into the knowledge of the plaintiffs only after the representatives of the defendant no.6 visited the plaintiffs before the institution of the suit. Now, the representatives of the defendant no.6 could have visited the suit property only after 14/10/04, i.e. the date on which the property was mortgaged with the defendant no.6. Therefore, as per this date also, the suit of the plaintiffs is well within limitation.
Therefore, this issue is also decided in favour of the plaintiffs and against the defendant.
31. ISSUE NO. 1 AND ADDITIONAL ISSUE NO. 4 : 4 Whether the plaintiffs are entitled to the reliefs as prayed for?(OPP) The onus to prove this issue was on the plaintiffs. The plaintiffs in their plaint have contended that all the documents by virtue of which defendant no. 2 claims to have purchased the suit property from the defendant no. 3 and 4 (who are admittedly the original owners of the suit property by all the litigating parties) are unregistered documents.
30Section 17 of the Registration Act, lays down : (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act no. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:
(b) Other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
Section 49 of the Registration Act, lays down: No document required by Section 17 ( or by any provision of the Transfer of property Act, 1882 (4 of 1882) to be registered shall
(a) affect any immovable property 31 comprised therein, or
(b) confer any power of adopt, or
(c) be received as evidence of any transaction affecting such property or unless it has been registered :
(Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument).
32. Therefore, in view of combined reading of Sections 17 (1)
(b) & 49 of Registration Act, the documents i.e., unregistered GPA, Will, receipt etc., cannot be read into evidence. The entire claim of the defendant no. 6 on the suit property is based on the registered Sale Deed executed by defendant no. 2 in favour of defendant no. 1. Since, in the light of above mentioned provisions of law, defendant no. 2 claims to have purchased the suit property from defendant no. 3 and 4 vide unregistered documents, which claim is also disputed and denied 32 by the defendant no. 3 and 4 in their Written Statement, it is clear that no valid title has passed over to the defendant no. 2, therefore, the claim of the defendant no. 6 with respect to the suit property also fails as it is a settled principle of law, that nobody can pass over a better title then he himself has. Even after the execution of the abovementioned unregistered documents was denied by the defendant no. 3 and 4 in favour of defendant no. 2, defendant no. 6 did not choose to examine defendant no. 3 and 4 or to call them as witnesses in the witness box. The onus to prove that the registered sale deed dt. 24.01.04 executed by defendant no. 2 in favour of the defendant no. 1 was a valid sale deed was on defendant no.6. At this stage plaintiffs have also relied upon the following Division Bench Judgment delivered by Hon'ble Delhi High Court in M.L. AGGARWAL Versus ORIENTAL BANK OF COM MERCE & ORS.Comparative Citations: 2006(128) DLT 407:
2006(4) AD(Delhi) 760: 2006 RLR 394: 2006(88) DRJ 214. Relevant para is cited below :
"7. In our opinion, there is no merit in this petition. The petitioner had only produced an Agreement to Sell, Will and a Power of At torney and a receipt for payment of money but these, in our opin ion, do not constitute a sale. Under Section 17(1)(b) of the Regis tration Act, sale of an immovable property can only be by a regis tered deed There is no registered Sale Deed which the petitioner has produced."33
33. But in the light of abovementioned facts and depositions defendant no. 6 has failed to discharge its burden and has not been able to prove that valid title of the suit property effectively passed over to defendant no. 2 qua defendant no. 3 and 4. Therefore, in the absence of a valid title existing in favour of defendant no. 2, the sale deed dt. 24.01.04 even though registered, cannot be said to effectively pass over a valid title from defendant no. 2 in favour of defendant no. 1.
34. At this stage, it is also prudent to place reliance on the judgment of Hon,ble Delhi High Court delivered by Hon'ble Mr. Justice J.M.Malik titled as :
• Ram Kumar v. Ravinder Kumar Gulati, 2007 AIR(Del) 213:
2007(137) DLT 53: 2007(2) AD(Delhi) 245: 2007(94) DRJ 475 "HELD: The facts of this case speak for themselves. Respondent No.1 entered into agreement with the Bank prior to his agreement with the appellants. Respondent No.1 had already deposited his documents with the Bank. The startling factor in this case is as to how did the appellants enter into agreement with the respondent No.1 without verifying their ownership deed. It is clear that the appellants did not make inquiries to find out that respondent No.1 owns the disputed property free and clear. However, the appellants can redress their grievance by filing a suit for recovery of their amount against respondent No.1 and by initiating criminal proceedings. Succinctly stated, the Civil Court cannot poach into the jurisdiction of the D.R.T. as it is not armed with 34 that power. "
35. Now, plaintiffs in their prayer clause have asked for the following reliefs : (A) Decree for declaration in favour of the plaintiff and against the defendant no. 1 and 2 whereby it is declared that the Sale Deed dt. 29.01.04 executed in the office of the defendant no. 5 by the defendant no. 2 in favour of the defendant no. 1 and registered as document no. 1655, in the additional book no. 1, Volume no. 11350 at pages 75 to 87 vide dt. 29.0104 in respect of the suit property bearing no. 170 in BlockA1, 3rd Floor, Bank Potion, Janak Pui, New Delhi58 with roof / terrace rights up to sky of back portion and which is specifically shown in red colour in the sit plan attached with the plaint on the basis of forged and fraudulent GPA dt. 22.01.01, as null and void, illegal and also be declared as canceled.
36. Although the facts of the abovementioned case [Ram Kumar v. Ravinder Kumar Gulati, 2007 AIR(Del) 213] are not exactly similar to the present controversy at hand, but on a careful perusal, the following analogy can be culled out :
As far as, relief no. (A) is concerned plaintiffs have succeeded in showing that no valid / legal title passed over in favour of defendant no. 2 and consequently in favour of defendant no. 1 also, therefore, this relief is granted in favour of the plaintiffs and against the defendant no. 1 & 2.35
37. (B) Decree for permanent injunction in favour of the plaintiffs and against the defendant no. 1 to 4 and defendant no. 6 whereby the defendant no. 1 to 4 ad 6 be kindly permanently restrained from creating any third party interest of any manner in respect of the suit property bearing no. 170 in BlockA1, 3rd Floor, Bank Protion, Janak Puri, New Delhi58 with roof / terrace rights up to sky of back portion and which is specifically shown in red colour in the sit plan attached with the plaint on the basis of forged and fraudulent GPA dt. 22.01.01, as null and void, illegal and also be declared as cancelled.
38. Now, as far as the relief of permanent injunction in favour of the plaintiffs and against defendant no. 1 to 4 and 6 is concerned, defendant no. 6 has pleaded that in view of Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the relief of permanent injunction cannot be granted against defendant no. 6 as DRTIII is already seized of the matter. Copy of OA / plaint dt. 15.09.05 EX. DW1/21 filed by the defendant no.6 with respect to the suit property is already on record.
39. Now, Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 lays down : 36 "No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery Debts Due to Banks and Financial Institutions Act, 1993. (51 to 1993)"
40. Therefore, even though relief no. (A) has been granted by this court in favour of the plaintiffs and against the defendant no. 1 & 2, in view of Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, this court does not have the jurisdiction to grant this relief. Therefore, relief of permanent injunction as prayed for in prayer no. (B) is granted in favour of the plaintiffs and against defendant no. 1 to 4 only.
41. ISSUE NO. 2 AND ADDITIONAL ISSUE NO. 5 : Relief : In view of my findings on the aforementioned issues, I 37 hereby pass a decree for declaration in favour of the plaintiff and against the defendants no. 1 & 2, thereby declaring the sale deed dated 29.01.2004 Ex DW1/15 as null & void since its valid & legal execution has not been proved by the defendant no. 6 on the requisite scales.
In view of the abovementioned findings with respect to prayer (B), I hereby pass a decree of permanent injunction in favour of the plaintiffs and against defendants no.1 to 4 only whereby the defendants no. 1 to 4 are restrained from creating any third party interest of any manner in respect of the suit property bearing no. 170, A1 Block, Janak Puri, New Delhi with terrace and roof rights upto the sky of the back portion of the said property specifically shown in red colour in the site plan as Ex. PW1/1 in any manner whatsoever without adopting due process of law.
Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open (SUNIL BENIWAL) Court on 29th September 08 Civil Judge/DELHI