Delhi High Court
Vinod Saluja vs Sita Rani on 1 February, 1996
Equivalent citations: 1996IAD(DELHI)1021, 61(1996)DLT790, 1996(36)DRJ529
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
(1) This order will dispose of the application of the plaintiff under Order 39 Rules 1 and 2 for the grant of an ad-interim order of injunction restraining the defendant from selling, transferring, alienating or creating third party rights in property being House No.N-1, Green Park Extension, New Delhi. Facts, in short, giving rise to the present suit are that : -
(2) By an agreement alleged to have been entered into between the plaintiffs and the defendants on 15th September, 1994, the defendant had agreed to sell the terrace rights of the property bearing No.N-1, Green Park Extension, New Delhi to the plaintiffs for a total consideration of Rs.48 lakhs. The agreement is in the form of a receipt-cum-agreement on a paper of an exercise book. The defendant has signed on the back side of the said paper on the revenue receipt and the same has been witnessed by the son of the defendant. Certain other documents, namely, affidavit/undertaking, affidavit for submission of building plans, indemnity bond, letter of authority for architect and certain forms for submission to the Municipal Corporation of Delhi and the Ministry of Urban Development, were also signed by the defendant. All these documents are typed. While the agreement is on a paper of an exercise book, affidavits, undertaking and the indemnity bond are on the stamp papers and have been duly attested by a notary. All these documents bear date of 20th September, 1994. A sum of Rs.21,000.00 was paid by the plaintiffs to the defendant at the time of signing of the agreement. The son of the defendant expired on October 5, 1994. On the defendant not taking steps for execution of the sale deed in respect of the terrace rights of the property, the plaintiff Filed this suit for specific performance of the agreement to sell dated 15th September, 1994. Alongwith the suit, an application for injunction restraining the defendants from selling, transferring, alienating or creating any third party rights in the property in suit was also filed.
(3) Defendant has filed the written statement and reply to the application. The case of the defendant is that she is an illiterate widow and has no male member to look after her. It is stated that after the death of her husband and elder son, her younger son Vinod Babuta fell into bad company and taking advantage of the bad habits of her son and by offering him liquor and other luxuries of life, the plaintiffs allured him to get the signatures of her mother on some documents and provided them photocopies of the documents of the property. Vinod Babuta had been pestering the defendant for money all the time. He, therefore, allegedly pressurised the defendant to enter into a collaboration agreement with a firm of the plaintiffs known as Posh Wears Private Limited, E- 29, Greater Kailash-II, New Delhi. It was under threat of her son that the defendant agreed to enter into a collaboration agreement and a sum of Rs.21,000.00 was paid to her by Shri Vinod Babuta on behalf of the said M/s.Posh Wears Private Limited of which plaintiff No. 1 is one of the Directors. It is stated that she was made to sign certain papers on the clear understanding that the said papers were required for collaboration agreement which the parties had agreed to enter. She was also made to sign a blank paper on which the plaintiffs had now prepared the agreement to sell. After about 15 days of the said agreement, her son died and, therefore, the deal of collaboration could not be Finalised. It is stated that the plaintiffs are trying to take advantage of the pathetic condition of the defendant.
(4) With a view to appreciate the contentions of the parties, it will be useful to note the terms and conditions of the agreement to sell, as under : -
"TODAY15/9/94, (Smt.Sita Rani W/o.Late Shri Krishan Chand, aged 60 years, resident of N-1, Green Park Ext" New Delhi -110 016, hereby who is the absolute owner of the above house, has agreed to sell the terrace rights of First, Second floor and above of N-1, Green Park Ext" New Delhi to Shri Vinod Saluja and Smt.Archana Saluja resident of H-33, Green Park Ext., New Delhi for a considerable amount of Rs.Forty Eight Lacs only. Smt.Sila Rani will also agreed to provide parking space, for two cars at the back portion of the above house and also agreed to provide space for booster, electric and water meters to Mr.Vinod Saluja and Mrs.Archana Saluja.
A sum of Rs.Twenty One thousand today has been paid as a token money by Shri Vinod Saluja & Smt.Archana Saluja to Smt.Sita Rani in cash. The balance of Ks.Forty Seven Lacs and Seventy Nine thousand will be paid within ninety days from the date of agreement to sell. All the expenses in this regard whatsoever will be borne by Sh.Vinod Saluja and Mrs.Archana Saluja. No other expenses will be incurred by Mrs.Sita Rani in this regard."
(5) The contention of the plaintiffs is that in view of the defendant having entered into an agreement to sell and having received a sum of Rs.21,000.00 as advance, there was no reason as to why the plaintiff should not be granted the specific performance of the said agreement to sell and till such time the final decision is taken in the suit, the defendant should be restrained by an order not to sell, transfer, alienate or create any third party interest in the property as in that case not only that the plaintiffs will suffer an irreparable injury but it will also lead to multiplicity of proceedings.
(6) The thrust of the argument of Mr.Gupta, learned counsel for the defendant, is that there is no case for specific performance of the agreement to sell as no agreement was ever entered into between the parties. It is slated that admittedly no form has been signed by the parties for permission under Section 269Uc of Income Tax Act and the papers which the defendant had signed were in respect of a collaboration agreement of building on the plot of land. The plaintiffs have used the blank paper signed by her for preparing an agreement to sell to which she had never agreed. Further contention is that while the affidavits and the indemnity bond are on the stamp paper, there was no reason as to why the alleged agreement should not have been written on a stamp paper and according to him no reliance can be placed on this agreement prepared on a paper of an exercise book. It is also the contention of the defendant that the fact that the parties had agreed to enter into a collaboration agreement is clear from the affidavits and the indemnity bond which had been signed by her on September 20, 1994. In the first affidavit, the defendant has given an undertaking that the structure of the building shown for demolition shall be demolished first before starting the construction at site. In the undertaking as well as in second affidavit, defendant has stated that the aforesaid plot of land was the only plot of land held by her and that extent of plot is within the ceiling limit on vacant land imposed by the Act. In view of these paragraphs appearing in the affidavits and undertaking, the contention of the defendant is that had this been an agreement to sell, there was no need of either demolition of the property nor was it required to state in the affidavits and the undertaking that it was a vacant plot of land. These averments have been made, according to the defendant, on account of the fact that a building was to be constructed in collaboration with the plaintiffs after demolition of the structure existing on the plot.
(7) A contract of sale does not create any right in the property and cannot bind the estate as is the position in the case of a mortgage or lease. Of course, personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement to sell. It is no doubt true that-in case the proposed vendor is nut restrained from transferring or alienating the property till the decision of the suit for specific performance of the agreement to sell, the plaintiff in case of success may have to resort to proceedings against the person who with notice of the suit has purchased the property. However, can this be a ground for the grant of an injunction in all cases, is a question to which I have given my thoughtful consideration.
(8) Admittedly, the value of the property is not less than Rs.48 lakhs. Can the defendant be restrained from dealing with the property in any manner she likes merely because a sum of Rs.21,000.00 has been received by her even assuming that the agreement was an agreement to sell? Even this amount of Rs.21,000.00 has not been mentioned as advance or earnest money but has been described as "Token Money". ' Position might have been different, if it was an admitted case of the parties that they had entered into an agreement to sell, however, in the present case, execution of the agreement to sell is denied by the defendant. Without any evidence on record it is very difficult, at this stage, to say as to whether the defendant had signed the blank paper which has now been used for preparing the agreement to sell and whether the defendant had agreed to enter into a collaboration agreement and not the agreement to sell. I feel that in the facts and circumstances of this case, the plaintiff is not entitled to get an order of injunction. In my opinion, defendant is entitled to the enjoyment of the property till such time the rights of the parties .arc decided in suit. In certain circumstances, where substantial amount of consideration has been paid to the vendor or the vendee has been put in possession of the properly or some act has been done by the parties in furtherance of the agreement, it may be that the interest of the proposed vendee has to be protected. However, in this case where a paltry sum of Rs.21,000.00 has been paid for a property of the value of more than Rs.48 lakhs, in my opinion, it will not be in the interest of justice to restrain the defendant from enjoying the property in any manner she likes. Moreover, admittedly no application has been filed before the appropriate authority under the Income-Tax Act for permission under Section 269Uc of the Act. It is not the case of the plaintiff that they had signed requisite forms/application under the Act for obtaining such permission. All that has been stated in the plaint is that defendant did not take steps for the grant of approval in writing and/or for permission and/or for taking Income-Tax clearance certificate. For permission under Section 269Uc of the Income-Tax Act both the parties are required to sign the requisite papers/forms. In their notice dated 12.12.1994, the plaintiffs have written that they were prepared to sign. form 37 (i) required to be submitted to the Department. It clearly shows that prior to that they had neither signed such form nor had approached the defendant for the same.
(9) For all these reasons, I am not inclined to pass any order of injunction against the defendant. However, in case the defendant intends to transfer, sell, alienate or create third party interest in the property, she shall inform the intending purchaser/ transferee in writing about the pendency of this suit. The interest of the plaintiff in any case will be protected by the doctrine of lis pendens as contained in Section 52 of the Transfer of Property Act.
(10) With the above observations, the application is disposed of leaving the parties to bear their own costs. Any observation made in this order will not affect the merits of the case.