Delhi District Court
Vide This Order vs The Facts On The Basis Of Which The ... on 8 March, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ-02 (North), DELHI
Suit. No. 34/10
ORDER
Vide this order, I shall dispose off an application u/O 39 R 1 & 2 CPC filed by the plaintiff.
The facts on the basis of which the present suit is filed by the plaintiff is that the plaintiff wants to purchase a property for his personal use and as such, the plaintiff came in contact with one Naresh Kumar, who introduced the plaintiff with the defendant no.1. Defendant no.1 introduced himself to be the owner of the property bearing No. A-322, Shastri Nagar, Delhi-52 (hereinafter after referred to as the "suit property") and showed the plaintiff the suit property and after inspecting the suit property, a deal was cracked between the plaintiff and defendant no.1 and the plaintiff agreed to purchase the suit property for a total sale consideration of Rs.28,10,000/-. The plaintiff has also paid a sum of Rs.2,00,000/- as earnest money on 16.11.2007 and it has been agreed that the balance amount will be paid by plaintiff on or before 1.12.2007 and defendant no.1 will execute the title documents in favour of the plaintiff. Thereafter, the defendant no.1 again approached the plaintiff on 19.11.2007 and demanded a sum of Rs.3,00,000/- to meet some financial requirement and accordingly, the plaintiff paid another amount of Rs.3,00,000/- to the defendant no.1. On the same day in the evening, the defendant no.1 introduce defendant no.2 to him as the co-owner of the suit property to the plaintiff. Both the defendants demanded a sum of Rs.10,00,000/- from the plaintiff and the plaintiff sought some time for the said payment. On 29.11.2007, the plaintiff made the payment of Rs.10,00,000/- to the defendant no.2 and the receipt to this effect was also issued. The plaintiff demanded the original documents of the suit property from the defendants no.1 & 2 and the defendants no.1 & 2 sought time till 30.11.2007. On the next day, the plaintiff has also taken Rs.13,00,000/- to the defendants and again demanded the original title documents of the suit property from the defendants. Defendants again postponed the matter. Thereafter, the plaintiff got suspicious and he made inquiry about the ownership of the defendants in respect of the suit property. The plaintiff came to know that the defendants no.1 & 2 are not the owners of the suit property. On coming to know, the plaintiff immediately cancelled the deal and demanded back his earnest money from the defendants amounting to Rs.15,00,000/-. After passing of sufficient time, the defendant no.2 on 8.12.2007 repaid Rs.9,75,000/- to the plaintiff and sought time for the repayment of the balance amount of Rs.5,25,000/-. They have also taken the original agreement to sell from the plaintiff. Defendants no.1 & 2 sought sometime for the repayment of said amount to the plaintiff and the plaintiff keeping in view the facts, granted the time to the defendants no.1 & 2 but the defendants no. 1 & 2 failed to make the payment of the said amount to the plaintiff. The matter was reported to the police and consequently, the plaintiff and defendants no.1 & 2 were summoned at the police station where all of a sudden the original owner i.e. the defendant no.3 came and he introduced himself to be the original owner of the suit property. Although, he has made a statement that defendants no.1 & 2 are his close friends but he has not recognized the plaintiff. When the plaintiff made the payment of Rs.10,00,000/- to the defendants no.1 & 2, the defendant no.3 himself accompanied them and he was well aware about the said deal between the plaintiff and the defendants no.1& 2 and hence there is a collusion between all the defendants. It was also agreed between the parties that until the documents are not executed, the plaintiff shall occupy the possession of the suit property. Thereafter, the suit property was sealed by the MCD in connivance with the defendants and in January, 2010 the seal was removed. Thereafter, the plaintiff tried to put his lock over the suit property till the time the payment of balance amount will be made by the defendants. However, the defendants once again made false promise to the plaintiff that they will make the payment of balance amount within a period of one month. The plaintiff come to know from some reliable sources of the area that the defendants are trying to sell/transfer/alienate the suit property to some other person and to restrain them from selling the suit property, the present suit has been filed.
Counsel for defendants no.1 & 3 has opposed the application on the ground that the plaintiff has no right, title or interest in the suit property and therefore, defendant no.3 could not be restrained from selling the suit property. It is also alleged by Counsel for defendant that the value of the property is Rs.28,00,000/- and therefore, this Court has no pecuniary jurisdiction to try this suit and that the defendant no.3 has never agreed with the plaintiff to sell the suit property and therefore, this suit against defendant no.3 is not maintainable.
I have heard counsel for both the parties and perused the records of the case. Even if the facts as alleged by the plaintiff is considered as true that initially the plaintiff made an agreement to purchase the suit property with defendant no.1 and gave him earnest money as alleged by him. Later on some part of the earnest money was given to the defendant no.2 who according to him claims himself to be the joint owners of the suit property. Later on he came to know that defendants no.1 & 2 are not the owners of the suit property. He according to him has cancelled the deal meaning thereby that he has cancelled the agreement to sell with defendants no.1 & 2. It is the case of the plaintiff himself that there was no agreement to sell the suit property or there was no deal with defendant no.3. The only allegations against defendant no.3 is that he was aware of the whole transaction and that he also accompanied defendants no.1 & 2 when the whole transaction was going on between the parties and therefore, now he should be estopped from claiming that he has no liability in respect of the alleged agreement to sell between plaintiff and defendants no.1 & 2. The only thing which the plaintiff is alleging is the knowledge on the part of the defendant no.3 that his property is being agreed to be sold by the defendants no.1 & 2 and in this way he himself was involved in the conspiracy to cheat the plaintiff in this case. After going through all the aspects of this case, I am of the view that the plaintiff do not have any prima facie case in his favour for the reason that firstly, the plaintiff has filed this suit for the relief of injunction simplicitor seeking injunction that the defendants be restrained from transferring the suit property to any other person until and unless the balance amount paid by the plaintiff as an earnest money is repaid to him.
The plaint is misconceived. What plaintiff wants through this suit of injunction is to get his money back which is around Rs.6,00,000/- in this case. Instead of filing a suit for recovery of money of the balance earnest money, he has filed a suit for injunction praying that the defendants be restrained from transferring the suit property until and unless his amount is given back to him. This relief of injunction is clearly barred u/S 41(h) of Specific Relief Act which says that when equally and efficacious remedy is available to the party by other usual modes of proceedings, injunction could not be granted. It appears that the plaint has been drafted to avoid the Court fees and to bring this suit within the jurisdiction of this Court because what the plaintiff is trying to seek from this Court is to held up the property untill recovery of balance earnest money ie. around Rs.6,00,000/-. I am of the opinion that the plaintiff should have filed a suit for recovery of this balance earnest money and not a suit for injunction. Secondly, if plaintiff would have filed a suit for recovery of money and if he would have reasonable apprehension that the property may be transferred to his prejudice, he may have an equally and efficacious remedy u/O 38 R 5 CPC which states that Where defendant may be called upon to furnish security for production of property - 1. Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
2. The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
3. The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
4. If an order of attachment is made without complying with the provisions of sub rule (1) of this rule, such attachment shall be void.
Therefore, if the plaintiff would have filed a suit for recovery of money, he could have requested for furnishing a security from the defendant or consequential order of attachment but a suit for simplicitor injunction is not maintainable in the facts of the present case. There is no fault of the property in this case. Therefore, the property should not be allowed to suffer.
Thirdly, plaintiff could have also filed a suit for Specific Performance of Contract in this case but as per his own case he has himself cancelled the deal. Therefore, the only option available to him is to file a suit for recovery of money.
One strange phenomenon which is seen is that the plaintiff has without verifying about the ownership of the property has given a huge amount of earnest money, which shows his negligent way of dealing with the property in the suit .He has not inquired about the ownership document from defendant no. 1 before giving him Rs 2 lacs in the beginning. He further gave him Rs 3 lacs. When he gave Rs 10 lacs to defendant no 1 and 2 ,it was according to him, told to him by defendant no. 1 that defendant no. 2 was the actual owner of the property. At this time he should have protested to defendant no. 1 that initially defendant no. 1 told him that he is the owner of the property but now he is saying that defendant no.2 was the owner and still gave him Rs 10 lacs without even ascertaining weather defendant no. 2 is the actual owner of the property or not.
In the facts and circumstances of the case I do not think that plaintiff is entitled for any equitable relief of injunction from this Court as the suit is not properly framed and the relief, which he is claiming in this suit cannot be granted as other remedies are availabl with the plaintiff which are equally efficacious through which he can recover his amount.
On the basis of aforesaid discussion, I am of the view that no prima facie case is made out and the application is therefore, dismissed.
Announced in the open court on (SAMAR VISHAL)
08.03.2010 CJ -02 (North)/DELHI
08.03.2010.
08.03.2010 Suit No. 34/10
Vide separate order, an application u/O 39 R 1 & 2 CPC has been dismissed. It is also made clear that the suit in the present form is not maintainable as discussed in the order. The plaintiff will not be entitled for any kind of relief of injunction in this case but instead of dismissing the suit, I am granting one opportunity to the plaintiff to amend the suit accordingly. 60 days time is given to the plaintiff to amend the suit. If the suit is not amended within 60 days and proper relief is not claimed in this case, this suit shall be dismissed as not maintainable in the present form.
To come up on 29.4.2010.
(Samar Vishal) CJ-02/North/Delhi.