Delhi District Court
Rohit Rajpal And Anr vs Ankita Suri And Ors. on 9 January, 2017
Rohit Rajpal and Anr vs Ankita Suri and Ors.
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
In the matter of
Suit No.9439/16
Rohit Rajpal & Anr .............Plaintiffs
Versus
Ankita Suri & Ors ..............Defendants
Present: Plaintiff no. 1 with Sh.Rajeshwar Kumar Gupta, Advocate.
Sh. Rajeev Kumar, Advocate for defendnat no. 1 and 2.
None for defendant no.3.
ORDER
1. By this order application under order VII rule 11 read with section 11 CPC filed by defendant no. 1 and 2 is being decided.
2. Arguments on application heard.
3. It is stated in the application that the plaint is barred under the law of limitation as well as in view of section 91 and 92 of the Indian Evidence Act.
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4. Learned Counsel for defendant no. 1 and 2 also submits that the suit is not maintainable under section 26 of Specific Relief Act.
5. Learned Counsel for the plaintiffs submits that neither of the grounds raised by the defendant in his application under order VII rule 11 CPC is applicable in the facts and circumstances of the present case nor the ratio of the judgment relied upon by him is applicable in the present suit.
6. This is a case for rectification of document being registered sale deed dated 24.08.2011 under section 26 of the Specific Relief Act to rectify the same to be read as a mortgage deed.
7. It is submitted by counsel for the plaintiff that the sale deed was got executed by the defendant no. 1 and 2 under undue influence from the plaintiffs and defendant no. 3 against the loan advanced to the plaintiffs as well as defendant no. 3.
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8. Both the plaintiffs and defendant no. 3 are brothers.
9. It is stated in the plaint that in July August 2011, plaintiffs and defendant no. 3 for their urgent needs approached their relative Sh. Varun Sethi, who is the husband of defendant no. 2 for lending some money. Sh. Varun Sethi agreed to lend the money subject to the condition that plaintiffs and defendant no. 3 would mortgage their property being entire First and Second Floor of the House bearing no. NIL - 36 C, Malviya Nagar, New Delhi measuring 100 sq yards as the security but in place of a mortgage deed they would execute a sale deed which would be revoked/cancelled lateron, or a transfer deed would be executed to convey back the title of the said property in the name of the plaintiffs and defendant no. 3 on repayment of alleged loan of 27 lacs..
10. It is further stated that plaintiffs and defendant no.
3, who were in dire need of money agreed to the condition of defendant no. 1 and 2 and accordingly executed the impugned Suit No.9439/16 Page 3 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
sale deed dated 24.08.2011 registered with the concerned Sub Registrar on 30.08.2011.
11. It is further stated that because the transaction was not of sale therefore the possession of the property was not delivered to defendant no. 1 and 2 though it was mentioned in the impugned sale deed that actual physical, peaceful and vacant possession had been handed over to the vendees by vendors.
12. It is further stated that on 03.12.2015, plaintiffs were informed by the security guard of the building that some court personnel had visited the premises.
13. In the end of Fabruary, 2016, plaintiffs also received an anonymous Whatsapp message containing the copy of the order dated 26.02.2016 in execution no. 52/2015. Thereafter, the plaintiffs got to know that defendant no. 1 and 2 filed civil suit being CS no. 695/2013 (New No. CS 26/14) titled as Kritika Suri & Anr vs Rajesh Rajpal for recovery of possession of Suit No.9439/16 Page 4 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
the property from defendant no. 3 and a consent decree was passed against him on 24.04.2014. In execution of the said decree, the court had issued warrants of possession against defendant no. 3.
14. It is stated that the property in question was jointly held and owned by plaintiffs alongwith their elder brother, defendant no. 3 and the same was never sold to defendant no. 1 and 2 and defendant no. 1 and 2 got executed the sale deed dated 24.08.2011 under undue influence, coercion and compulsion to secure the loan for which they were in a position to dominate the plaintiffs and defendant no. 3. Under the undue influence, coercion and compulsion, these defendants also received the chain of title documents from the plaintiffs and defendant no. 3.
15. It is further stated that the Learned Court of Sh.
Rakesh Kumar, ADJ South while dismissing the objections and the review application of the plaintiffs, filed in the execution petition, was of the view that in case the plaintiffs and the Suit No.9439/16 Page 5 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
defendant no. 3 had borrowed the said loan of Rs 27 Lakhs, a mortgage deed, ought to have been executed and not a sale deed. The said Learned Court further observed that the consent decree of possession has also been passed against defendant no.
3.
16. It is further stated that plaintiffs and defendant no. 3 were the joint owners of undivided property but the plaintiffs were not made party to the said suit deliberately and it appears that the suit was filed collusively and to debar the plaintiffs from their valuable rights, title and interest in the suit property.
17. It is further stated that under these circumstances, plaintiffs sought legal advice. It was advised to them that a suit for rectification under section 26 Specific Relief Act, 1963 needs to be filed. Plaintiffs got certified copies of the plaint, written statement and other documents in suit no. 695/14, from which it was revealed that defendant no. 1, 2 executed a registered lease deed dated 24.05.2013 in favour of defendant no.3. It is stated that execution of this lease deed was concealed from the Suit No.9439/16 Page 6 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
plaintiffs by defendant no. 1 and 2 as well as by defendant no.
3. It is further stated that defendant no. 3 alone had no right or authority to execute and register the lease deed from defendant no. 1 and 2. It is further stated that plaintiffs also came to know that the cheques issued by defendant no. 3 to defendant no. 1 and 2 were dishonoured and a case was filed against defendant no. 3 in the court of Learned MM, Karkardoma Courts. The plaintiffs appeared in the said court before the Learned MM, NI Act (East) Karkardoma Courts on 20.08.2015 but defendant no. 3 did not disclose to plaintiff no. 1 that the said cheque was issued pursuant to some lease deed. It is stated that defendant no. 3 informed the plaintiff no. 1 that the said case is for a dishonoured cheque of interest of the loan.
18. It is further stated that the plaintiffs are left with no option but to file the present suit for rectification of the sale deed dated 24.08.2011.
19. In para 18 of the plaint, plaintiffs have taken various grounds. In the first 7 grounds of para 18, plaintiffs have given Suit No.9439/16 Page 7 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
details of the other registered sale deeds of the property in the same area which are purportedly registered for a higher consideration amount than this impugned sale deed. In 8 th ground, plaintiff has stated that the defendant no. 1 and 2 committed fraud upon the plaintiffs and the consent of the plaintiffs was not free but influenced by defendant no. 1 and 2 as plaintiffs were in dire need of money and the defendant dictated/dominated their terms. In ground 9 it is stated that the suit filed by defendant no. 1 and 2 was in collusion with defendant no. 3. In ground 10 it is stated that the consideration of the sale deed is at very lower side and is forbidden by law and it would defeat the provisions of circle rates fixed by Government of NCT of Delhi and Stamp Duty applicable and payable in Delhi. In ground 11 it is stated that the case of the defendant no. 1 and 2 is within the definition of fraud and defendant no. 3 also got in collusion with them to deceive the plaintiffs and to receive unlawful gain against the plaintiffs.
20. Pleadings in the plaint and arguments of counsels for the parties considered.
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21. Counsel for the plaintiffs submits that a clear cause of action is disclosed in the plaint. He further submits that the suit is within limitation as the plaintiffs got to know about the fraud committed by the defendants in February 2016 after receiving a Whatsapp message containing the copy of the order dated 26.02.2016 in execution no. 52/2015. He further submits that there was no occasion with the plaintiffs to know about the proceedings of civil suit no. 695/14 because the plaintiffs were not made a party to the said suit.
22. Counsel for the plaintiffs submitted that in view of the nature of transaction as well as the consideration money in the sale deed, the plaint primafacie reflects that there was an undue influence exercised by defendant no. 1 and 2 against the plaintiffs while executing the impugned sale deed dated 24.08.2011.
23. Counsel for the plaintiffs further submits that now the burden to prove that there was no undue influence lies upon Suit No.9439/16 Page 9 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
the defendants. He submits that the same can be discharged only by way of a trial. He submits that plaintiffs have every chance to succeed in their case in view of the facts disclosed in the plaint.
24. In support of his submission learned counsel for the plaintiffs has drawn the attention of the court to section 16 of the Indian Contract Act, 1872, which provides as follows:
16. "Undue Influence"
defined: 1 A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he is in a fiduciary relation to the other; or
(b) where he makes a contract with Suit No.9439/16 Page 10 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract within him and the transaction appears on the face of it or on the evidence adduced, to be unconscionable, then burden of proving that such a contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
25. Learned Sh. Gupta has specifically emphasized upon the illustration (c) of the section which reads as: "A, being in debt to B the moneylender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence"
He submits that the defendant no. 1 and 2 were in a position to dominate the will of the plaintiffs as plaintiffs were receiving and they were lending money to the plaintiffs. He further Suit No.9439/16 Page 11 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
submits that the terms of the alleged sale deed are un concianable as the consideration amount mentioned therein is less than the half, which the property of same description, in same locality could have fetched.
26. It is rightly submitted by learned counsel for defendant no. 1 and 2 that no presumption of exercise of undue influence can be drawn in the facts and circumstances of the present case. Nor there is any apparent influence brought out in the pleadings.
27. Illustration (c) relied upon by the learned counsel for plaintiffs is not applicable. In illustration (c) of Section 16 of Indian Contract Act, debtor was already indebted from the money lander and therefore the money lander was already in position of dominance above the debtor.
28. In the present case there is nothing in the pleadings to suggest that the plaintiffs were under some compulsions or influence to approach the defendant no. 1 and 2 for lending Suit No.9439/16 Page 12 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
some money. In the plaint, plaintiffs have stated that they themselves approached the uncle of defendant no. 2 for lending of money in the month of JulyAugust 2011. Even the alleged dire need of money to the plaintiffs could not be inferred from the pleadings as it do not appear from the pleadings that the money was immediately disbursed to the plaintiffs. Rather the money was given to the plaintiffs on 24.08.2011 as against they approaching for the same in JulyAugust 2011. There was no urgency to receive money from defendants only. Plaintiffs could have mortgaged their freehold property with any bank and financial institution and could have easily received the loan, if any.
29. There is nothing in the plaint to suggest that there is some previous contract between the parties or some previous transactions, which could have influenced the will of the plaintiffs to execute the impugned document.
30. Hence, the transaction in favour of defendant no. 1 and 2 can not be termed as unconcionable merely because the Suit No.9439/16 Page 13 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
consideration amount secured in the sale deed is allegedly less than the other independent transactions between the third parties. During the course of arguments learned Counsel for plaintiffs failed to point out that the consideration amount is below circle rates.
31. The facts stated in the plaint, do not in itself suggest that the transaction of execution of sale deed was actuated by undue influence exercised by defendant no. 1 and 2 over the plaintiffs and defendant no.3.
32. Even otherwise if for the sake of arguments it is presumed that this ground is available to plaintiffs, it is rightly submitted by counsel for defendant no. 1 and 2 that on this ground also the plaintiff could have sought the rectification or declaration of the alleged sale deed within the period of limitation.
33. There is nothing in the plaint as to when the plaintiffs come out of the alleged undue influence exercised by Suit No.9439/16 Page 14 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
defendant no. 1 and 2, which could suggest when the period of limitation of filing the present suit could have begun.
34. Section 3 of the Limitation Act provides as under: Section 3: Bar of limitation. (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
35. Hon'ble Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee AIR 1964 S.C. 1336 has held that Section 3 is peremptory and it is the duty of the Court to not to proceed with a suit, appeal or application if it is made beyond the prescribed period of limitation, irrespective of the fact whether the plea of limitation has been set up in defence or not. The section is mandatory and has to be obeyed in full. The Court has no choice in the matter. If any of the provisions contained in Sections 4 to 24 inclusive, are inapplicable, the mandatory provision of Section 3 is attracted with the result that the Court is bound to dismiss a suit which, on the face of it, appears to be barred by time.
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36. In the case in hand, as per the facts stated in the plaint. The alleged sale deed was executed on 24.08.2011. As per Article 56 of the Limitation Act, 1963 a suit to declare the forgery of an instrument issued or registered is, three years, from the date of issue or registration.
37. As per Article 58 of Limitation Act, 1963 any other relief of declaration can be sought within three years when the right to sue occurs. As per para 20 of the plaint, the cause of action for filing the suit in favour of the plaintiffs firstly arose when the sale deed dated 24.08.2011 was executed and registered with a clear understanding between the plaintiffs and defendant no. 3 that it was a security document.
38. If the limitation period is counted from the said date the same expired after three years w.e.f 24.08.2014.
39. The present suit has been filed on 02.12.2016 i.e. after about two years of the expiry of period of limitation.
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40. It therefore appears to be rightly submitted by learned counsel for defendant no. 1 and 2 that the suit is barred by the law of limitation.
41. Next contention of the counsel for defendant for rejection of suit is that the same is barred by Section 91 and 92 of the Indian Evidence Act.
42. In reply to these submissions of the counsel for the defendant no. 1 and 2 that suit is also hit by section 91 and 92 of the Indian Evidence Act, Learned Counsel for the plaintiffs submitted that there are a number of documents in the form of sale deed of different parties in the same area which the plaintiffs are relying in order to prove their suit. Learned Sh. Gupta therefore submits that plaintiff is not intending to lead only oral evidence against the registered sale deed dated 24.08.2011.
43. He submits that plaintiff is intending to prove the documents of the similarly situated properties to reflect that the Suit No.9439/16 Page 17 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
sale deed dated 24.08.2011 could not have been executed on the consideration as mentioned in the same.
44. Court is in agreement with the submission of Sh.
Rajeev that the documents referred to by learned Sh. Gupta are independent documents. Section 91 and 92 of the Indian Evidence Act provide as follows: "Section 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant of other disposition of property, or of such matter, except the document itself , or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Section 92. Exclusion of evidence of oral agreement: When the terms of any such contract, grant or other disposition of property, or any matter Suit No.9439/16 Page 18 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms."
45. Section 91 excludes all evidence except the document itself if the terms of a contract or the grant of a property are reduced in the form of document.
46. Section 92 further bars any oral agreement or statement in variance to the terms and conditions of the document refereed in Section 91. As per the section 91 of the Indian Evidence Act, the contents and terms and conditions of the contract between the parties can be proved by document itself. As per section 92, plaintiff can not lead any oral evidence contrary to, varying, adding or subtracting from the said terms and conditions. Both the sections of Evidence Act are in reality doctrine of substantive law as held by Honble High Court of Suit No.9439/16 Page 19 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
Delhi in "RFA no (OS) 8889 of 2006 titled as Shilendra Nath Endlay and Anr vs Kuldip Gandotra".
47. Honble High court of Delhi in the above cited judgment held : ".... As regards the contention raised on behalf of the Appellants, that it was orally agreed between the parties that the Respondent would be responsible for getting the said flat converted into freehold, is concerned the said assertion is devoid of merit. It is a well settled principle of interpretation that Evidence Act forbids proving the contents of a writing other than by the writing itself. This doctrine described by the Supreme Court as " best evidence rule" is in reality a doctrine of substantive law, namely, that in case of a written contract all proceedings and contemporaneous oral expressions of the things are merged in writing and displaced by it. In other words, when persons express their agreement in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no Suit No.9439/16 Page 20 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with the disinclination to disturb the conditions of matters as embodied in them by the act of the parties. The Supreme Court in Roop Kumar (supra) has observed:
It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and would be attended with great mischief if those instruments, upon which men's right depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence p.
648) Thus, it is seen that the provisions of the Evidence Act come into Suit No.9439/16 Page 21 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradiction, varying, adding or subtracting from its terms, after the document has been produced to prove its terms."
48. The plaintiff in the present case emphasized upon some oral understanding between the parties that the sale deed was not to be acted upon. The said terms and condition can not be read into the document nor the oral evidence of the same is permitted under section 91 and 92 of Indian Evidence Act, because even a mortgage deed for the property is required to be compulsorily registrable. Hence, it is rightly submitted by counsel for the defendant no. 1 and 2 that the suit is also hit by section 91 and 92 of the Indian Evidence Act and the plaintiffs are barred by law to lead any evidence qua their pleadings in variance of the registered document executed by them.
49. Further in view of section 58 (c) of Transfer of Property Act no transaction of sale of a property can be deemed to be a mortgage unless the condition of mortgage is embedded Suit No.9439/16 Page 22 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
in the document which effects or purports to effect the same.
50. In "Raj Kishore (D) By LRs vs Prem Singh & Ors (2011) 2 CTC 229", plaintiff filed a suit for declaration to the effect that the sale deed executed by him in favour of defendant no. 1 was void and ineffective and he continued to be the owner in possession of the land. It was stated that the plaintiff purportedly executed and registered a sale deed of land in favour of defendant no. 1 for a sum of Rs 6000/ only. The plaintiff's case was that transfer was only by way of security for the payment of Rs 6000/, which was taken as a loan. Further case of the plaintiff was that on return of the loan amount the land in question was supposed to be transferred back to plaintiff. An agreement to that effect was also executed between the parties to the transaction on the date of execution of the sale deed itself. Plaintiff's further case was that the possession of the land in question continued with him and defendant no. 2 as agreed between the parties.
51. Hon'ble High Court of Madhya Pradesh in second Suit No.9439/16 Page 23 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
appeal took a view that because the sale deed was accompanied by an agreement for reconveyance of the property sold , transaction between the parties would amount to a mortgage, subject to the condition that mortgagee must get the property reconveyed within the period stipulated for that purpose.
52. Hon'ble Supreme Court disagreeing with the view taken by the Hon'ble High Court of Madhya Pradesh quoted section 58 (c) of Transfer of Property Act and held : We have heard learned counsel for the parties at length. As seen above, the High Court has, while dealing with the substantial question of law framed by it for determination, held that whenever conveyance of any property is accompanied by a document for re conveyance of the same to the seller the transaction would amount to a mortgage. The proposition of law is not in our opinion correctly stated. Although the High Court has not elaborated as to what kind of mortgage an agreement for reconveyance would bring about, it is obvious that the High Court meant to say that the transaction would constitute a mortgage by conditional sale. Mortgage Suit No.9439/16 Page 24 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
by conditional sale is described by section 58 as under : 58(c) Mortgage by conditional sale: Where, the mortgagor ostensibly sells the mortgaged property on condition that on default of payment of the mortgagemoney on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. A bare reading of the above would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is stipulated by the Proviso which admits of no exceptions.
The High Court, it is manifest Suit No.9439/16 Page 25 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
from the judgment under Appeal, overlooked the Proviso according to which the condition regarding payment of the mortgage money as a condition for transfer of the property to the seller must be embodied in the Sale Deed itself. That is not so in the instant case. The Sale Deed executed by the Plaintiff in the instant case does not embody any condition like the one referred to in Clause (c) of Section 58, extracted above. The broad statement of law made by the High Court to the effect that every sale accompanied by an agreement for re conveyance of the property will constitute a mortgage by conditional sale is not, therefore, correct. That is also the view taken by this court in K. Simrathmull v Nanjalingiah, Gowder AIR 1963 SC 1182, where the plaintiff had borrowed a certain amount from the defendant and in lieu thereof executed a deed of conveyance of certain land together with the house standing thereon in favour of the defendant. Another deed of re conveyance was executed by the defendant on the same date by which the defendantpurchaser of the property agreed to reconvey the house provided the exercise of the right of demanding re Suit No.9439/16 Page 26 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
conveyance took place wihtin two years and rent payable by the plaintiff is not in arrears for more than six months at any time. On the breach of the second condition stipulated by the agreement for reconveyance the defendantpurchaser refused to reconvey. In a suit for specific performance the plaintiff sought to invoke the equitable jurisdiction of the court to give him relief against the forfeiture clause. This court held that the sale deed and the deed of conveyance and rent were no doubt part of the same transaction yet the transaction did not constitute a mortgage by conditional sale. This court observed:
The sale deed, the deed of re conveyanceExt. A1 and the rent note Ext. B1 were undoubtedly parts of the same transaction. The plea of the plaintiffs that the sale deed Ext. A1 constituted a transaction of mortgage by conditional sale is inadmissible, because the Sale Deed and the covenant for re conveyance are contained in separate documents.
The findings of the High Court as to the legal effect of the transaction of sale followed by an agreement to retransfer of the property Suit No.9439/16 Page 27 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
is not , therefore, legally sound.
53. In the case in hand, no condition of mortgage is embedded in the alleged sale deed dated 24.08.2011. The document rather mentions the handing over of possession in favour of defendant no. 1 and 2. Subsequently, registered lease deeds were executed by defendant no. 1 and 2 in favour defendant no.3. Hence, the suit of the plaintiff appears to be hit by Section 58 (c) of Transfer of Property Act also.
54. It appears to be rightly submitted by counsel for defendant no. 1 and 2 that in order to avoid enjoyment of the fruit of litigation in favour of defendant no. 1 and 2 in CS No. 695/14, plaintiff has filed the present suit. The execution petition for recovery of possession of the property no. NIL 36C Malivya Nagar, Delhi is already pending in the court of Learned ADJ03. The objection of the plaintiffs in the said execution petition are also dismissed. The review application against the dismissal of the objections is also dismissed. The said dismissal has become final. During the course of arguments learned counsel for defendant no. 1 and 2 has placed on record Suit No.9439/16 Page 28 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
certified copies of summons served upon the defendant no. 3 in the said case "Kritika Suri and Anr vs Rajesh Rajpa" dated 16.11.2013.
55. This service report prima facie reflects that the summons were served upon the plaintiff no. 2. Therefore, prima facie it appears that the plaintiff no. 2 was aware of the filing of the said suit no. 695/14. Even if the fact of service upon plaintiff no. 2 is ignored, the court is of the opinion that the defendant no. 1 and 2 cannot be restrained from reaping the fruit of the litigation in CS 695/14 when there is no prayer for setting aside the decree in the said suit and when objections of plaintiffs have been already dismissed.
56. In "T.Arivandandam vs T. V. Satyapal 1977 AIR 2421, 1978 SCR (1) 742", Hon'ble Supreme Court Of India has given following observations: "We have not the slightest hesitation in condemning the petitioner for gross abuse of the process of the court Suit No.9439/16 Page 29 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningfulnotformalreading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under order VII rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under order X CPC. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Suit No.9439/16 Page 30 of 32 Rohit Rajpal and Anr vs Ankita Suri and Ors.
Mahatma Gandhi "It is dangerous to be too good"
57. The facts and circumstances of the case in total suggest that continuance of the present suit would only harass the defendant no. 1 and 2 in a fruitless litigation. In view of the mandate of the Hon'ble Supreme Court in "T.Arivandandam vs T. V. Satyapal 1977 AIR 2421, 1978 SCR (1) 742", this court is of the opinion that such attempts of plaintiffs need to be nipped in the bud.
58. The present suit appears to be barred by law of limitation as well as by section 91 and 92 of the Indian Evidence Act and Section 58 (c) of the Transfer of Property Act. The same is also hit by order VII rule 11 (d) CPC.
59. The suit is accordingly rejected under order VII rule 11(d) CPC.
60. Decree sheet be prepared accordingly.
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61. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 09.01.2017 ADJ05 (SOUTH DISTRICT)
(Order contains 32 pages) SAKET COURTS, NEW DELHI
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