Delhi District Court
Acj/Ccj/Arc(South East District) vs Anup Batra & Ors on 23 January, 2016
IN THE COURT OF HEM RAJ:
ACJ/CCJ/ARC(SOUTH EAST DISTRICT),
SAKET COURTS, NEW DELHI
CS No. -45/2014
23.01.2016
Pravin Sethi ...................Plaintiff
Versus
Anup Batra & Ors. ...............Defendants
ORDER ON THE APPLICATION UNDER ORDER XXXIX RULES 1
& 2 CPC MOVED ON BEHALF OF PLAINTIFF
Present: None.
1.Vide this order, I shall dispose of an application under Order XXXIX Rules 1 & 2 CPC moved on behalf of plaintiff thereby seeking interim injunction to the effect that the defendants be restrained from dispossessing from the suit property, creating obstruction and hindrance in any manner whatsoever in the free movement and enjoyment of the suit property by the plaintiff, defendant no. 3 and 4 be restrained from entering into the suit property 1 and from creating nuisance and further adinterm order directing the defendants to remove the wooden board forcefully installed by them blocking the passage/staircase going from the first floor to the second floor..
2. Reply to the said application has been filed by the defendants whereby they have vehemently opposed the application of the plaintiff on the ground that the plaintiff has suppressed the material facts from the Court and has not approached the Court with the clean hands.
3. Brief facts essential for disposal of application are that the plaintiff is owner and in possession of entire first and second floor (flat) of property bearing no. G4A, Kalkaji, New Delhi. The first and second floor flat consist of 3 bedroom which 2 bathrooms on the second floor and drawing cum dining hall, kitchen, pantry, bathroom and store on the first floor and on the first floor and being a duplex house, the stairs from second floor also goes from inside the first floor. Plaintiff approached the defendants for obtaining a loan amount of Rs. 30,00,000/ as the plaintiff has to organize the marriage of his son and other customary ceremonies. The marriage of the son of plaintiff was scheduled on 19.10.2013. After much negotiations, defendants agreed to lend the loan amount with interest. Defendants at the time of advancing loan amount demanded some security against the loan 2 amount and asked the plaintiff to sign Agreement to Sell, Rent Agreement, Will etc with respect to property, upon which the plaintiff informed the defendants that the property is mortgaged with the Cholamandalam Finance Company and loan of Rs. 1.76 crore has been taken by him against the property as such he can not enter into the Agreement to Sell. Defendants told the plaintiff that these are simple formalities which are necessary for security the loan and they will get the documents torn and cancelled once plaintiff repay the loan amount with interest and in case plaintiff will not be able to pay the loan amount, they will clear the dues of the bank and will pay an amount of Rs. 54,00,000/ after deducting the loan amount, as the value of the property assessed by them to be Rs. 2,30,00,000/. Plaintiff was in dire need of money and under pressure and coercion agreed to sign the documents as asked by the defendants as hardly one week was left in the marriage of his son.
On 11/12.10.2013, the defendants called the plaintiff and asked the plaintiff to sign the documents. Plaintiff signed all the documents without reading the same. Defendants told that the they will deliver the same after getting the same photocopy but till today no document and paper has been given by the defendants to him despite repeated requests. After obtaining the signatures of plaintiff on the documents 3 and blank papers, the defendants handed over the amounts to the plaintiff and plaintiff was shocked as the amount was only Rs. 8,00,000/. The plaintiff protested with the defendants upon which the defendants assured the plaintiff that remaining amount will be transferred by them in his account by R.T.G.S. Transfer. The defendants particularly defendant no. 1 and 3 asked the plaintiff to execute a G.P.A with regard to his property in their and only then they will pay the balance amount of Rs. 22,00,000/. On asking of the defendants, the plaintiff accompanied them to the office of Sub Registrar on 14.10.2015 and executed a GPA. After execution of GPA, plaintiff demanded the balance amount upon which the defendants told that they are not carrying huge amount and the same will be transfered to the plaintiff through R.T.G.S transfer on the next date i.e 15.10.2013. On 15.10.2013, only two R.T.G.S of Rs. 3,5 lacs each was made by defendants into his account. On this, plaintiff protested with them to which defendants said that they are not arranging the balance amount and they will transfer the same in 23 days. Plaintiff told the defendant that his money for the marriage of his son does not get before 19.10.2013, the whole purpose of seeking loan will be frustrated. Despite repeated requests, the defendants did not transfer/pay the balance amount and instead sent the amount of Rs. 3,000/ and Rs. 4
2500/ through R.T.G.S. The plaintiff has no other alternative but to keep quit and to make arrangements for marriage from whatsoever funds which were available. On 23.12.2013 at about 4.30 PM defendants came to the house of plaintif and demanded the repayment of Rs. 15,00,000/. On 23.12.2013, the two rooms on the second floor are presently under illegal trespass and preforce occupation of defendants, particular defendant no. 1 and 2 and the defendants have been threatening the plaintiff and his wife to throw out from the premises. On 08.01.2014, the defendant tried to make structural changes in the suit property and attempted to shift the MandirPooja from its place in order to make a kitchen at a place to which the plaintiff strongly objected and was somehow able to persuade the defendants not to do so. It has been further stated that the defendants have tampered with the locks of the two rooms. It has been further submitted that on the night of 31.01.2014 at about 10.30 PM, the defendants have threated the plaintiff and his wife to throw them out of the house with their belongings, if the amount is not rapid by them within one week.
4. On the other hand, it has been categorically denied by the defendants that the plaintiff is lawful owner and possession of the suit property. It is submitted that the entire property has been soled by the 5 plaintiff to the defendants in two portions i.e the entire second floor consisting of three bedrooms with attached two bathroom vide Agreement to Sell dated 12.10.2013 in favour of defendant no. 2 and registered GPA dated 17.10.2013 in favour of defendant no. 1, and the entire first floor vide Agreement to Sell dated 12.10.2013 in favour of defendant no. 4 and registered GPA dated 17.10.2013 in favour of defendant no. 3 for the total consideration of Rs. 1,00,00,000/ each. It is further submitted that Rs. 15,00,000/ each was paid as earnest money by the defendants no. 2 and 4 qua the two portions of the aforesaid property and the same has been duly acknowledged by the plaintiff in the aforesaid Agreement to Sell. It has further been denied that the defendant had forcibly occupied the two bedrooms on the second floor, rather the plaintiff himself had handed over the possession of the same to the defendants no. 1 and 2 at the time of execution of Agreement to Sell dated12.10.2013. It has been further denied that the defendants used abusive language with he plaintiff and his wife or threatened them. It has been denied that the defendants called 810 persons in the suit property as alleged. It has been denied that defendants ever tried to make any structural changes in the suit property as alleged by the plaintiff as the same is under the possession of defendants no. 1 and 2 and they have no concern with the suit 6 property.
5. I have heard the arguments advanced at bar by counsels for both parties, perused the application and records of the case.
6. It is the trite that first and foremost in order to obtain an ad interim injunction under Order XXXIX Rules 1 & 2 CPC, the plaintiff has to satisfy the Court on the trinity principle of strong prima facie case, balance of convenience and irreparable loss and injury which can not be monetarily compensated. It is settled position of the law that ground of adinterim injunction is a discretionary relief and has to be exercised on record judicial principles as the plaintiff has to approach the Court with clean hands and without concealing the material facts. The Hon'ble High Court in case reported as "AIR 2011 Delhi 425"
titled as, "International Hotel Limited Vs. NDMC" has called out three principles as under:
(i) The plaintiff has a prima facie case to go for trial;
(ii) Protection is necessary from the species of injury known as irreparable loss before his legal right can be established;
(iii) That the mischief of inconvenience is likely to arrive from withholding injunction will be greater than that what is likely to arise from granting it.
7. Vide order dated 13.01.2016, Ld. Counsel for plaintiff made statement and withdrew the prayer of removal of wooden board 7 installed by the defendants blocking the passage/staircase going from the first floor to the second floor in the application under Order XXXIX Rules 1 & 2 CPC and as such it is not being considered in the application. As regard the first prayer of the plaintiff regarding restraining or creating the hindrance by the defendants is concerned, it is noticed that the defendants have pleaded ownership over the property through various registered documents. Plaintiff has not brought any cogent material on record to substantiate his averments made in the application. The balance of convenience does not appear to be in favour of plaintiff at this stage and in my considered view irreparable loss and injury would be caused to the defendants in case the interim injunction as prayed for by the plaintiff in the instant application is granted to him visavis the same would also be amount to partial decree as the prayer in the application in question and the main suit appears to be quite same. As such, application under Order XXXIX Rule 1 & 2 CPC of the plaintiff is dismissed. Nothing herein shall tantamount to my expressions on the merits of the case.
8. Now to come up for admission and denial of documents and framing of issues on 14.03.2016.
(Hem Raj) ACJ/CCJ/ARC(SE) Saket Court, New Delhi23.01.2016 8