Delhi High Court
Praleen Chopra vs Smt. Honey Bhagat & Ors on 23 March, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd March, 2020___
27th September, 2019
+ CS(OS) 190/2018, IA No.5709/2018(u/O.XXXIX R-1&2 CPC), IA
No.13603/2019 (u/O.VI R-17 CPC) & IA No.13604/2019 (for
condonation of delay of 88 days in refilling IA No.13603/2019)
PRALEEN CHOPRA ..... Plaintiff
Through: Mr. N.K. Vohra, Adv.
Versus
HONEY BHAGAT & ORS ..... Defendants
Through: Mr. Kuldeep Balhara, Adv. for D-1&2.
Mr. Sanjay Relan, Adv. for D-3.
Mr. Lalit Gupta & Mr. Siddharth Arora,
Advs. for D-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff Praleen Chopra has instituted the suit against the five
defendants namely (i) Honey Bhagat; (ii) Rohit Bhagat; (iii) RV Akash
Ganga Infrastructure Ltd.; (iv) Dewan Housing Finance Corporation Ltd.;
and, (v) Tanisha INFO Pvt. Ltd., for the reliefs of (i) declaration as null,
void and nonest of Sale Deed dated 25th May, 2016 executed by defendants
no. 1 to 3 in favour of defendant no.5 with respect to third floor of the North
side portion of property No.47 North Avenue Road, Punjabi Bagh, New
Delhi; (ii) for cancellation of the said Sale Deed; (iii) recovery of vacant,
peaceful and physical possession of the said property; (iv) permanent
injunction restraining defendants no. 1 to 5 from dealing with the property;
(v) mandatory injunction directing defendant no.5 to deliver vacant,
CS(OS) No.190/2018 Page 1 of 31
peaceful and physical possession of the property to the plaintiff; and, (vi)
recovery of mesne profits.
2. It is the case of the plaintiff in the plaint, (i) that the plaintiff is the
Director of M/s Earthz Urban Spaces Pvt. Ltd. (EARTHZ) and has been
authorized by the Board of Directors of EARTHZ to institute the present
suit; (ii) that on the basis of the Collaboration Agreement dated 18th
February, 2008 and registered General Power of Attorney dated 2nd
November, 2010, the plaintiff became absolute owner and acquired title and
exclusive possession of third floor Northern side portion, ad measuring area
of 142.66 sq.mts., of property No.47, Northern Avenue Road, West Punjabi
Bagh, New Delhi; (iii) that the defendants no. 1 and 2 as Directors of
defendant no.3 agreed to purchase the said property along with terrace
thereon from the plaintiff for Rs.7,31,00,000/- but represented that they had
applied for home loan to the defendant no.4 which had sanctioned the
housing loan for Rs.4,54,99,809/- only; (iv) that the plaintiff in good faith
executed and registered a Sale Deed dated 1st November, 2013 in favour of
defendants no. 1 to 3 with respect to the third floor aforesaid without terrace
thereon; (v) simultaneously, with the execution of the Sale Deed, on 1 st
November, 2013 itself, a Memorandum of Understanding was executed
between the plaintiff on the one hand and defendants no. 1 to 3 on the other
hand whereunder the defendants no. 1 to 3 undertook to pay the balance sale
consideration of Rs.2,81,00,000/- on or before 31st December, 2013 to the
plaintiff and did not take possession of the third floor of the property with
respect whereto Sale Deed was executed, as security to pay the balance sale
consideration of Rs.2,81,00,000/-; (vi) owing to typographical errors in the
CS(OS) No.190/2018 Page 2 of 31
Sale Deed dated 1st November, 2013, a Rectification Deed dated 12 th
December, 2013 was also executed between the plaintiff on the one hand
and defendants no. 1 to 3 on the other hand; (vii) that under the MoU dated
1st November, 2013, the defendants no.1 to 3 had no right to sell the third
floor with respect to which Sale Deed was executed in their favour, without
paying the balance consideration of Rs.2,81,00,000/-; (viii) that the
defendants no. 1 to 3, in violation of the MoU dated 1 st November, 2013,
have executed the impugned Sale Deed dated 25 th May, 2016 with respect to
the third floor of the property in favour of defendant no.5, without even
paying the balance consideration of Rs.2,81,00,000/- to the plaintiff; (ix)
that the defendants no.1 to 3 had handed over post-dated cheques to the
plaintiff for the said sum of Rs.2,81,00,000/- but the said cheques were also
dishonoured; (x) that the defendants no.4 initiated proceedings before the
Debt Recovery Tribunal and managed the affairs in the said proceedings at
the back of the plaintiff, to deliver the possession of the property to the
defendant no.5; (xi) that since the Sale Deed dated 25th May, 2016 executed
by the defendants 1 to 3 with respect to the third floor of the property in
favour of defendant no.5 is in violation of the prohibition contained in the
MoU dated 1st November, 2013, the Sale Deed dated 25th May, 2016 is void;
(xii) that the defendant no.3 itself filed a civil suit for declaration of the Sale
Deed dated 1st November, 2013 executed by the plaintiff in favour of
defendants no. 1 to 3 of the third floor of the property to be void; (xiii) that
the Sale Deed dated 25th May, 2016 was executed during the pendency of
the aforesaid suit; (xiv) that as per the MoU dated 1 st November, 2013, the
physical possession of the third floor with respect whereto Sale Deed was
executed, was to remain with the plaintiff and to be delivered only on
CS(OS) No.190/2018 Page 3 of 31
payment of the balance sale consideration of Rs.2,81,00,000/-; (xv) that the
possession of the defendant no. 1 to 3 of the third floor was in terms of MoU
dated 1st November, 2013; and, (xvi) that the defendant no.4 took
possession of the third floor aforesaid in illegal exercise of powers under
Section 13(4) of the Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (SARFAESI Act).
3. The suit came up first before this Court on 27 th April, 2018, when
summons/notice thereof were ordered to be issued but no ex parte interim
order sought granted, observing that the doctrine of lis pendens will apply.
4. Written Statements have been filed by defendants no. 1 and 2,
defendant no.3 and defendant no.5 and to which replications have been filed.
The defendant no.4 has not filed any written statement nor has been
appearing in spite of service and vide order dated 5 th February, 2019, the
right of defendant no.4 to file written statement has already been closed.
Today also none appears for the defendant no.4. The defendant no.4 is thus
proceeded against ex parte.
5. The suit is ripe for framing of issues. However, IA No.13603/2019 of
the plaintiff under Order VI Rule 17 read with Order I Rule 10 CPC and IA
No.13604/2019 of the plaintiff for condonation of delay of 88 days in re-
filing IA No.13603/2019 are also listed for the first time before this Court.
6. For the reasons stated in IA No.13604/2019, the delay of 88 days in
re-filing IA No.13603/2019 is condoned.
7. IA No.13604/2019 is disposed of.
CS(OS) No.190/2018 Page 4 of 31
8. The plaintiff vide IA No.13603/2019 seeks amendment only to
change the name of defendant no.3 M/s RV Akash Ganga Infrastructure Ltd.
to the new name of M/s AkashGanga Infraventures India Ltd.
9. Considering the formal nature of the application for amendment, need
to call for reply has not been felt and the counsel for the defendant no.5 and
the counsel for the defendant no.3 and the counsel for the defendants no. 1
and 2 have fairly stated that they have no objection to the amendment being
allowed. IA No.13603/2019 is allowed and the amended memo of parties
filed therewith is taken on record and be transposed to Part I File.
10. As aforesaid, the suit is ripe for framing of issues. However, the
counsel for the defendant no.5 has contended that the suit, on the averments
in the plaint is not maintainable and the plaintiff, on the averments in the
plaint and documents filed therewith is not entitled to the reliefs claimed and
the suit is liable to be dismissed.
11. The counsel for the defendant no.5 has been heard. The counsel for
the defendant no.3 and the counsel for the defendants no. 1 and 2 have not
opposed the submissions of the counsel for the defendant no.5.
12. The counsel for the defendant no.5 has argued, (i) that the plaintiff,
vide Sale Deed dated 1st November, 2013 sold the third floor aforesaid to the
defendants no. 1 to 3; (ii) that on the same day i.e. 1 st November, 2013 after
execution of the Sale Deed, the MoU dated 1st November, 2013 was
executed between the plaintiff on the one hand and defendants no. 1 to 3 on
the other hand; (iii) that the corrections/rectifications to the Sale Deed dated
1st November, 2013 vide Rectification Deed dated 12 th December, 2013 are
CS(OS) No.190/2018 Page 5 of 31
inconsequential for the present purpose; (iv) that the defendants no. 1 to 3
had purchased the property aforesaid after availing of loan from defendant
no.4; (v) that the defendants no. 1 to 3 were unable to repay the said loan
and which led to defendant no.4 initiating proceedings under the SARFAESI
Act with respect to the property aforesaid, i.e., the Northern side portion of
the third floor only of the property (without terrace thereon); (vi) that a
settlement was arrived at before the Debt Recovery Tribunal and as part of
which settlement, the defendant no.5 paid of the dues of the defendant no.4
in consideration of the defendants no. 1 to 3 selling the said third floor to the
defendant no.5 and in pursuance to which settlement the Sale Deed dated
25th May, 2016 impugned in this suit was executed; (vi) that the plaintiff has
throughout been aware of all the aforesaid and in fact had also preferred an
appeal under Section 14 of the SARFAESI Act to the Debt Recovery
Tribunal with respect to the action initiated by defendant no.4 under the
SARFAESI Act with respect to the property aforesaid; and, (vii) that the
plaintiff also instituted the WP(C) No.8963/2014 in this Court impugning
the order of the Metropolitan Magistrate under Section 14 of the SARFAESI
Act with respect to the said portion of the third floor of the property.
13. The counsel for the defendant no.5 has further argued that, (i) the
present suit is barred by the principles of constructive res judicata; (ii) that
the present suit is barred by Order II Rule 2 of the CPC, reference is made to
Virgo Industries (Eng.) Pvt. Ltd. Vs. Venturetech Solutions Pvt. Ltd.
(2013) 1 SCC 625; (iii) that the plaintiff, without impugning the Sale Deed
dated 1st November, 2013 admittedly executed by plaintiff in favour of
defendants no. 1 to 3, is not entitled to challenge/impugn the Sale Deed
CS(OS) No.190/2018 Page 6 of 31
dated 25th May, 2016 executed by defendants no. 1 to 3 in favour of
defendant no.5 with respect to the said portion of the third floor; (iv) that the
defendant no.5 is concerned with the third floor, as aforesaid, of the property
and is not claiming any right with respect to terrace thereon with respect to
which plaintiff claims right; and, (v) that the remedy, if any, of the plaintiff
was to sue for specific performance of the MoU dated 1st November, 2013.
14. The counsel for the plaintiff has per contra contended that since the
Sale Deed dated 25th May, 2016 executed by the defendants no.1 to 3 in
favour of defendant no.5 with respect to the said portion of the third floor of
the property is in contravention of what the defendants no. 1 to 3 had
undertaken in the MoU dated 1st November, 2013 i.e. to the effect that the
defendants no. 1 to 3 will not sell the property till payment of balance sale
consideration of Rs.2,81,00,000/- to the plaintiff, the Sale Deed dated 25th
May, 2016 is liable to be cancelled.
15. I have considered the rival contentions.
16. A perusal of the documents shows the Sale Deed as well as MoU,
both dated 1st November, 2013, though executed by the plaintiff in favour of
defendants no. 1 to 3, having been executed by the plaintiff in his capacity
as the attorney of Ms. Savita Bhatia, Mr. Rajeev Narula, Mr. Rakesh Narula
and Mr. Hitesh Narula. The counsel for the defendant no. 5 explains that the
said Ms. Savita Bhatia, Mr. Rajeev Narula, Mr. Rakesh Narula and Mr.
Hitesh Narula were/are the owners/recorded owners of property no. 47,
North Avenue Road, Punjabi Bagh, New Delhi; that EARTHZ, of which the
plaintiff claims to be a Director, had entered into an agreement with the said
owners of the property and which agreement, in common parlance, is known
CS(OS) No.190/2018 Page 7 of 31
as a 'Collaboration Agreement', whereunder EARTHZ was to, at its own
cost and expense demolish the existing construction of property no.47,
North Avenue Road, Punjabi Bagh, New Delhi and to raise new
construction thereon and in lieu thereof entitled to certain built-up portion of
the property; and, that EARTHZ was thus entitled to the third floor aforesaid
and terrace thereabove.
17. Finding the suit to have been instituted neither by EARTHZ nor by
Ms. Savita Bhatia, Mr. Rajeev Narula, Mr. Rakesh Narula and Mr. Hitesh
Narula, but having been filed by the plaintiff in his own individual name, I
have enquired for the counsel for the plaintiff, the title of the plaintiff to the
property no.47, North Avenue Road, Punjabi Bagh, New Delhi or any part
thereof, to be entitled to maintain this suit for cancellation of the Sale Deed
dated 25th May, 2016 executed with respect to third floor aforesaid of the
said property by the defendants no. 1 to 3 in favour of defendant no.5 and
for recovery of possession thereof.
18. The counsel for the plaintiff states that the plaintiff, in the memo of
parties has described himself as Director of EARTHZ and the suit has thus
been instituted by EARTHZ and not by the plaintiff.
19. The memo of parties describes the plaintiff as:
i) PRALEEN CHOPRA
S/O SH. ARUN CHOPRA
Director of M/s. Earthz Urban Spaces Pvt. Ltd.
R/o A8/22C, Vasant Vihar New Delhi.
CS(OS) No.190/2018 Page 8 of 31
20. The counsel for the plaintiff states that since the plaintiff has
described himself as Director of EARTHZ, the suit is by EARTHZ. Though
that may be the position in respect of societies registered under the Societies
Registration Act, 1860, Section 6 whereof requires the suit by the society to
be filed in the name of President Chairman or Principal Secretary of the
Society, it is not the position with respect to companies under the Company
Law by which EARTHZ is governed. Section 34 of the Companies Act,
1956 required an incorporated company to sue in its own name and not in
the name of its Director or Managing Director.
21. The suit thus cannot be treated as filed by EARTHZ as contended by
the counsel for the plaintiff.
22. I may in this regard also notice that the plaintiff elsewhere also in the
affidavits etc. accompanying the plaint, has not described EARTHZ as the
plaintiff and merely described himself, besides by his lineage and residence,
also as a Director of EARTHZ. Merely because in the plaint it is pleaded
that the Board of Directors of EARTHZ has passed a Resolution authorizing
the plaintiff to institute this suit would not constitute it a suit as on behalf of
EARTHZ. Resolution of the meeting of the Board of Directors of EARTHZ
held on 17th April, 2018 also merely authorizes the plaintiff to institute a suit
for cancellation of Sale Deed dated 25th May, 2016 and for recovery of
possession of third floor aforesaid of the property without specifying the
same to be on behalf of the company. Rather, I have enquired from the
counsel for the plaintiff that if the counsel for the plaintiff suing in his
personal capacity after his name and other details also describes himself as
CS(OS) No.190/2018 Page 9 of 31
an Advocate of Delhi High Court, whether the suit so filed would be deemed
to have been filed on behalf of the High Court of Delhi.
23. The description by the plaintiff in the memo of parties of himself,
besides on the basis of his lineage and address also as a Director of
EARTHZ, is merely a description and no more.
24. However, even if the plea of the counsel for the plaintiff of the suit
having been instituted by EARTHZ was to be accepted, in my view, the
same would not place the suit in any better position. EARTHZ itself was
merely a Collaborator as per the Collaboration Agreement and by virtue of
the said Collaboration Agreement did not get any right, title or interest in the
property. Ordinarily, in pursuance to such Collaboration Agreement, a
Power of Attorney from the owner of the property as is claimed to have been
obtained in favour of the plaintiff herein is obtained, to enable the
Collaborator to deal with the portion of the property which under the
Collaboration Agreement is to fall to the Collaborator's share. The fact that
the Collaborator or his nominee, who is appointed as an attorney of the
owners, does not have any independent right to the property, is also evident
from the Sale Deed dated 1st November, 2013 by the plaintiff merely in
favour of purchasers i.e. defendants no.1 to 3 of the Collaborator's portion,
being executed by the plaintiff merely as attorney of the owners and not in
his own capacity.
25. The suit, if at all maintainable, could have been maintained by Ms.
Savita Bhatia, Mr. Rajeev Narula, Mr. Rakesh Narula and Mr. Hitesh Narula
and in which case the suit would have been filed in their names, even if with
the plaintiff as an attorney and the suit filed by the plaintiff in his own name
CS(OS) No.190/2018 Page 10 of 31
and even if considered on behalf of the EARTHZ, is not maintainable and is
liable to be dismissed on this ground only.
26. The counsel for the defendant no.5 states that this is one of the pleas
of the defendant no.5 also in its written statement.
27. A perusal of the judgment dated 23rd December, 2014 of this Court in
WP(C) No.8963/2014 shows, (i) that the challenge therein by the plaintiff
was to the order dated 26th September, 2014 of the Chief Metropolitan
Magistrate under Section 14 of the SARFAESI Act, appointing a Receiver
to take possession of third floor as aforesaid of the property and to the order
dated 5th November, 2014 of the Metropolitan Magistrate whereby the
plaintiff's application for review of the earlier order was rejected; (ii) the
contention of the plaintiff therein was, that since as per the MoU dated 1 st
November, 2013, the plaintiff was entitled to continue in possession of the
third floor till the balance sale consideration of Rs.2,81,00,000/- was not
paid, and it was the plaintiff who was in possession and he could not be
divested of such possession of the property, was rejected by this Court,
holding that the Chief Metropolitan Magistrate is not to adjudicate any
dispute between the person in possession and the secured creditors and is
only to satisfy that the ingredients of Section 14 have been complied with;
(iii) powers under Section 14 are not confined to only those cases where the
borrower is in possession of secured asset; the procedure under Section 14
of SARFAESI Act is concerned with taking over possession of a secured
asset and recourse to Section 14 is available in all such circumstances where
possession is to be recovered; (iv) admittedly the plaintiff had executed a
sale deed selling/conveying/transferring/assigning his right, title and interest
CS(OS) No.190/2018 Page 11 of 31
in the property to defendants no.1 to 3 and affirming that the plaintiff was
left with no right/title/interest/claim/lien of any nature in the property sold;
(v) the defendant no.4 Dewan Housing Finance Corporation Ltd. granted
loan to the defendants no.1 to 3 on the basis of the transfer of title executed
by the plaintiff; and, (vi) in view of this, the plaintiff could not be permitted
to claim any interest contrary to the sale deed concededly executed by him.
28. The contention of the counsel for the defendant no.5, on the basis of
aforesaid is, that the suit is barred by the principles of res judicata.
29. I have enquired from the counsel for the defendant no.5 as to how the
decision in a writ petition and more so in the facts aforesaid can be res
judicata for a suit. The writ petition aforesaid was concerned only with the
legality of the challenge to the decision of the Chief Metropolitan Magistrate
under Section 14 of the SARFAESI Act and was not concerned with the
disputes as have been raised in the present suit.
30. Elaborating on the contentions of the suit being barred by Order II
Rule 2 of the CPC, the counsel for the defendant no. 5 has contended that
the plaintiff, prior to the institution of this suit, has instituted CS(OS)
86/2017 in this Court under Order XXXVII of the CPC for recovery of
Rs.2,81,00,000/- from the defendant no. 1 namely, Honey Bhagat, on the
basis of the post-dated cheques of Rs.1,50,00,000/- and Rs.1,31,00,000/-
handed over in pursuance to the MoU dated 1 st November, 2013. It is
argued that the cause of action if any on which the present suit has been
filed accrued to the plaintiff prior to institution of CS(OS) 86/2017 and the
plaintiff ought to have made the claim as made in the present suit, in the said
earlier suit and is not entitled to file a second suit therefor.
CS(OS) No.190/2018 Page 12 of 31
31. On enquiry, counsel for the plaintiff states that the leave to defend
application filed in CS(OS) 86/2017 has been dismissed. The counsel for
the defendants no. 1 and 2 confirms. Though, the copy of the plaint in
CS(OS) 86/2017 has not been filed but on asking, the counsels for the
appearing defendants have handed over a copy of the same and the same is
taken on record and be tagged to Part IIIB File.
32. At this stage, it is appropriate to reproduce the portions of the Sale
Deed dated 1st November, 2013 executed by plaintiff in favour of defendants
no. 1 to 3 with respect to the third floor only of the subject property. The
portions of the said Sale Deed relevant for the present purposes are as under:
"This Sale Deed is executed at New Delhi, on this 1st day of
November 2013 by:- (1) Mrs. Savita Bhatia W/o Shri Rajeev
Bhatia, R/o 81,Poorvi Marg, Vasant Vihar, New Delhi-110057, (2)
Shri Rajeev Narula, S/o Late Shri R.K.Narula, R/o 47, North
Avenue Road, Punjabi Bagh (West), New Delhi, (3) Shri Rakesh
Narula, S/o Late Shri R.K.Narula, r/o 47, North Avenue Road,
Punjabi Bagh (West), New Delhi, and (4) Shri Hitesh Narula, S/o
Late Shri R.K. Narula, R/o 47, North Avenue Road, Punjabi Bagh
(West) New Delhi, hereinafter jointly called the "VENDORS" of
the one part, represented through their General Attorney Mr.
Praleen Chopra S/o Shri Arun Chopra, R/o S-268, Greater Kailash
Part-I, New Delhi, Director of M/s Earthz Urban Spaces Private
Limited, appointed vide (1) General Power of Attorney dated
02.11.2010, duly registered as Registration No.2243 in Book No.4,
Volume No.611, on pages 78 to 86, on date 02.11.2010, in the office
of the Sub-Registrar, Sub-District No.IIA, Punjabi Bagh, New
Delhi, and (2) General Power of Attorney dated 28.02.2012, duly
registered as Registration No.377, in Book No.4, Volume No.674,
CS(OS) No.190/2018 Page 13 of 31
on page 159 to 167, on date 01.03.2012, in the office of the Sub-
Registrar, SR II-A-PUNJABI BAGH, New Delhi/Delhi.
...IN FAVOUR OF...
(1) Mr. Rohit Bhagat, son of Mr. Ramesh Bhagat, resident of I-
88, Ashok Vihar, Phase-I, Delhi-110052 (having 45% undivided
share), (2) Mrs. Honey Bhagat, wife of Mr. Rohit Bhagat, resident
of I-88, Ashok Vihar, Phase-I, Delhi-110052 (having 45%
undivided share) & (3) M/s. R.V. Ganga Enterprises, having its
office at 206, 1st Floor, A-6, DDA LSC, Paschim Vihar, New Delhi-
110063 through its Director Mrs. Honey Bhagat, wife of Mr. Rohit
Bhagat, resident of I-88, Ashok Vihar, Phase-I, Delhi-110052, duly
authorized vide Resolution passed in the meeting of Board of
Directors, held on dated 07.10.2013 (having 10% undivided share),
hereinafter called the "VENDEES" of the other part.
AND WHEREAS in the manner aforesaid, Mrs. Savita Bhatia, Shri
Rajeev Narula, Shri Rakesh Narula and Shri Hitesh Narula
became the absolute and joint owners of the freehold property
bearing No.47 (Class „B‟), measuring 1365 square yards, situated
on North Avenue Road, West Punjabi Bagh, New Delhi.
AND WHEREAS the Vendors through Attorney have reconstructed
the said property, after getting the building plan sanctioned from
concerned authority.
NOW THIS SALE DEED WITNESSETH AS UNDER:
CS(OS) No.190/2018 Page 14 of 31
1. That in pursuance of this Sale Deed and in consideration of
a total sum of Rs.4,50,00,000/-(Rupees Four Crores Fifty Lacs
only) which amount has been received by the Vendors through
Attorney from the Vendees, in the following manner:
(i) Rs.4,00,00,000/- (Rupees Four Crore only) vide Cheque
No.631761, dated 29.10.2013 drawn on Axis Bank Ltd,
Mumbai Branch,
(ii) Rs.50,00,000/- (Rupees Fifty Lacs only) vide Cheque
No.268291, dated 01.11.2013 drawn on ICICI Bank, Punjabi
Bagh Branch, New Delhi-110026, as full and final sale
consideration, in full and final settlement, the receipt of
which the Vendors through Attorney admit and acknowledge
hereby.
2. That now the Vendors through Attorney doth hereby sell,
convey, grant, transfer and assign all their rights, titles and
interests in the said portion of the said property, with super-
structure standing therein, alongwith proportionate undivided,
indivisible and impartible share of ownership rights in the land
underneath, including easements and appurtenances whatsoever,
pertaining to the said property TO HAVE AND TO HOLD THE
SAME unto the Vendees ABSOLUTELY AND FOREVER.
3. That the Vendors admit that they have been left with no
right, title, interest, claim or lien of any nature whatsoever in the
said portion of the said property, hereby sold, and the same has
become the absolute property of the Vendees, with the right to use,
enjoy, sell and transfer the same by whatsoever mean the Vendees
CS(OS) No.190/2018 Page 15 of 31
like, without any demand, objection, claim or interruption by the
Vendors or any person(s) claiming under or in trust for vendors
through attorney.
4. That the Vendors through Attorney have assured the
Vendees that the said portion of the said property, hereby sold, is
freehold in nature and is free from all kinds of encumbrances, such
as prior sale, mortgage, gift, Will, lease, loan, surety, security, lien
of any court or person, litigations, stay order, notices, charges,
family or religious disputes, acquisition, decree, injunction,
hypothecation, Income Tax or Wealth Tax attachments, or any
other registered or unregistered encumbrances whatsoever, and if it
is proved otherwise, as a result of which if the Vendees is deprived
off from the said portion of the said property or any part thereof,
then the Vendors through Attorney shall be liable and responsible
to indemnify all the losses/damages, thus suffered by the Vendees.
5. That the Vendors through Attorney shall pay and clear the
House tax, Water and Electricity charges and other dues &
demands of the concerned authorities in respect of the said portion
of the said property, upto the date of handing over the vacant and
physical possession of the said portion of the said property to the
Vendees, and thereafter the same shall be paid by the Vendees.
13. That the said portion of the said property has been sold to
the Vendees without terrace thereupon of the said property and the
owners of the terrace have got complete right to construct further
floor(s) on the said terrace, without any objection or obstruction
from the Vendees. In such a case the overhead tanks will be shifted
to the newly built terrace of the said property."
CS(OS) No.190/2018 Page 16 of 31
33. It is also apposite at this stage, to reproduce hereinbelow the relevant
parts of the MoU dated 1st November, 2013 and which are as under:-
"This Memorandum of Understanding is executed at New
Delhi, on this 1 day of November, 2013, between:
(1) Mrs. Savita Bhatia, W/o Shri Rajeev Bhatia, R/o 81, Poorvi
Marg, Vasant Vihar, New Delhi-110057,
(2) Shri Rajeev Narula, S/o Late Shri R.K. Narula, R/o 47,
North Avenue Road, Punjabi Bagh (West), New Delhi,
(3) Shri Rakesh Narula, S/o Late Shri R.K. Narula, R/o 47,
North Avenue Road, Punjabi Bagh (West), New Delhi, and
(4) Shri Hitesh Narula, S/o Late Shri R.K. Narula, R/o 47,
North Avenue Road, Punjabi Bagh (West), New Delhi,
represented through their General Attorney Shri Praleen Chopra,
S/o Shri Arun Chopra, R/o S-268, Greater Kailash Part-I, New
Delhi, Director of M/s Earthz Urban Spaces Private Limited,
appointed vide (1) General Power of Attorney dated 02.11.2010,
duly registered as Registration No.2243 in Book No.4, Volume
No.611, on page 78 to 86, on date 02.11.2010, in the office of the
Sub-Registrar, SR IIA-PUNJABI BAGH, New Delhi/Delhi, and (2)
General Power of Attorney dated 28.02.2012, duly registered as
Registration No.377, in Book No.4, Volume No.674, on page 159
to 167, on date 01.03.2012, in the office of the Sub-Registrar, SR
II-A-PUNJABI BAGH, New Delhi / Delhi, hereinafter called the
FIRST PARTY;
AND
(1) Mr. Rohit Bhagat, son of Sh. R.K. Bhagat, resident of I-88,
Ashok Vihar, Phase-I, Delhi-52 (having 45% undivided share), (2)
Mrs. Honey Bhagat, wife of Mr. Rohit Bhagat, resident of I-88,
Ashok Vihar, Phase-I, Delhi-52, (having 45% undivided share),
CS(OS) No.190/2018 Page 17 of 31
and (3) M/s R.V. Ganga Enterprises, having its office at 206 (FF),
DDA Local Shopping Complex, Block-A6, P. Vihar through its
Director, Mrs. Honey Bhagat, through Board Resolution dated
7/10/2013, (having 10% undivided share hereinafter called the
SECOND PARTY.
WHEREAS the first party is the owner of the Right hand
side Portion of Third Floor (adjoining to Property No.45, North
Avenue Road, West Punjabi Bagh, New Delhi / Right hand side
flat facing the building), consisting of 4 Bedrooms with attached
Bathrooms, 1 Drawing Dining room, 1 Kitchen, Lobby, with Right
hand side Portion of Terrace over and above the Third Floor,
(adjoining to Property No.45, North Avenue Road, West Punjabi
Bagh, New Delhi) with 2 Car Parking as per plan attached, with
common Lift, of the Property bearing No.47, (Class „B‟),
measuring 1365 sq. yards, situated on North Avenue Road, West
Punjabi Bagh, New Delhi, in the Revenue Estate of Village
Madipur, alongwith proportionate, undivided, indivisible and
impartible share of ownership rights in the land underneath.
AND WHEREAS the first party has agreed to sell the said
Right hand side Portion of Third Floor (adjoining to Property
No.45, North Avenue Road, West Punjabi Bagh, New Delhi / Right
hand side flat facing the building), consisting of 4 Bedrooms with
attached Bathrooms, 1 Drawing Dining room, 1 Kitchen, Lobby,
with right hand side Portion of Terrace over and above the Third
Floor, (adjoining to property No.45, North Avenue Road, West
Punjabi Bagh, New Delhi), with 2 Car Parking as per plan
attached, with common Lift, of the Property bearing No.47, (Class
„B‟), measuring 1365 sq. yards, situated on North Avenue Road,
West Punjabi Bagh, New Delhi, in the Revenue Estate of Village
CS(OS) No.190/2018 Page 18 of 31
Madipur, along with proportionate, undivided, indivisible and
impartible share of ownership rights in the land underneath, to the
second party for a total sale consideration of Rs.7,31,00,000/-
(Rupees seven crores thirty one lacs only) and the second party
has agreed to purchase the same from the same amount.
NOW THIS MEMORANDUM OF UNDERSTANDING
WITNESSETH AS UNDER:
1. That out of the total sale consideration of Rs.7,31,00,000/-
(Rupees seven crores thirtyone lacs only) to the first party and on
the request of the second party the first party has executed the
Sale Deed in respect of the Right hand side Portion of Third Floor
(adjoining to Property No.45, North Avenue Road, West Punjabi
Bagh, New Delhi/Right hand side flat facing the building),
consisting of 4 Bedrooms with attached Bathrooms, 1 Drawing
Dining room, 1 Kitchen, Lobby, with 2 Car Parking as per plan
attached, with common Lift, of the Property bearing No.47, (Class
„B‟), measuring 1365 sq. yards, situated on North Avenue Road,
West Punjabi Bagh, New Delhi, in the Revenue Estate of Village
Madipur, alongwith proportionate, undivided, indivisible and
impartible share of ownership rights in the land underneath, only
in favour of the second party on date ___________. However, the
vacant and physical possession of the said Right hand side portion
of Third Floor (adjoining to property No.45, North Avenue Road,
West Punjabi Bagh, New Delhi / Right hand side flat facing the
building) of the said property, along with Right hand side portion
of Terrace over & above the third floor of the said property is vest
with the first party only.
CS(OS) No.190/2018 Page 19 of 31
That the payment of Rs.2,81,00,000/- (Rupees two crores eighty
one lacs only) shall be paid by the second party to the first party
within two months from the date of this Memorandum of
Understanding. As security the second party has issued post-
dated cheques for the balance amount to Rs.2,81,00,000/- (Rupees
two crores eighty one lacs only) to the first party, which shall be
encashed by the first party on due dates. And has also issued
promissory note of the sum of Rs.2,81,00,000/- (Rupees two crores
eighty one lacs only). The details of post-dated cheques are as
follows:
(i)Rs.1,50,00,000/-(Rupees One crore Fifty lacs only) vide cheque
No.053365, dated 15.12.2013 drawn on Union Bank of India
Punjabi Bagh Branch, New Delhi-110026.
(ii) Rs.1,31,00,000/- (Rupees One Crore Thirty One Lacs only)
vide Cheque No.053369, dated 15.12.2013, drawn on Union Bank
of India, Punjabi Bagh Branch, New Delhi-110026.
That on clearance of balance payment of Rs.2,81,00,000/- (Rupees
two crores eighty one lacs only) the first party shall hand over the
vacant and physical possession of the said Right hand side portion
of Third Floor alongwith Right hand side portion of Terrace over
& above the third floor of the said property to the second party.
And also Sale Deed shall be signed and executed in favour of the
second party in respect of the Right hand side portion of Terrace
over & above the third floor of the said property, alongwith 1 Car
parking.
CS(OS) No.190/2018 Page 20 of 31
2. That the second party shall be liable to pay an interest
@2.5% per month after expiry of two months.
3. That after expiry of six months the first party shall have full
right and an authority to sell the apartment in the market to
prospective buyer and out of the sale proceeds repay diwan
housing finance limited a home loan of Rs.4,50,00,000/- (Rupees
four crores fifty lacs only) and recover the balance payment of
first party with Interest after paying that home loan from the rest
amount and from the second party. If the first party is not able to
recover his full amount and interest payments then it shall be
indemnified fully for any losses by the second party.
4. That although a Sale Deed of Right hand side portion of
Third Floor with 2 Car parkings of the said property has been
executed by the first party in favour of the second party but the
second party will have no right and authority to enter into any
third party agreement for the said property till the time complete
payment of Rs.2,81,00,000/- (Rupees two crores eighty one lacs
only) alongwith interest if any is cleared to the first party.
5. That this Memorandum of Understanding shall remain
binding upon both the parties."
34. On reading the aforesaid document, I have enquired form the counsel
for the plaintiff whether not it is settled law that the contents of a registered
document can be altered only by another registered document (See
Chandrakant Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6
CS(OS) No.190/2018 Page 21 of 31
SCC 745 and S. Saktivel Vs. M. Venugopal Pillai (2000) 7 SCC 104) and
how can the contents of the unregistered MoU supersede the contents of the
registered Sale Deed. It may be mentioned that there is no doubt from the
language of the two documents, that the MoU was executed after the Sale
Deed, though both on the same day.
35. The counsel for the defendants no. 1 and 2, the counsel for the
defendant no.3 and the counsel for the defendant no.5, on enquiry whether
any of the said defendants claim any right, title, interest or share in the
terrace above the aforesaid property, have replied in the negative.
36. A reading of the Sale Deed leaves no manner of doubt that the
plaintiff, on execution and registration of the Sale Deed divested himself of
all rights with respect to the third floor of the property and vested title
therein in favour of defendants no. 1 to 3. Though there is no clause in the
registered Sale Deed, as is usually found, of delivery of possession of the
property sold, but that to my mind is not relevant at this stage. Once the title
in the property stood conveyed from the plaintiff or whosoever on whose
behalf the plaintiff was acting in the matter of execution of Sale Deed, in
favour of defendants no.1 to 3, the defendants no. 1 to 3 under the law
became entitled to deal with the said third floor of the property and such
dealing with the third floor of the property by the defendants no. 1 to 3,
including by execution of Sale Deed dated 25 th May, 2016 in favour of
defendant no.5, cannot be avoided on the ground of the unregistered MoU,
as also held by this Court in judgment dated 23 rd December, 2014 in
W.P.(C) no.8963/2014 which has attained finality. In the registered Sale
Deed, there was no bar to the defendants no. 1 to 3 dealing with the property
CS(OS) No.190/2018 Page 22 of 31
and the said bar could have been altered only by a subsequent registered
document and not otherwise.
37. Section 91 provides that when the terms of a contract or of a grant or
of any other disposition of property, have been reduced in the form of a
document, and in all such 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 or other disposition of property, or of such
matter, except the document itself. The present case does not fall in either of
the two exceptions thereof. Section 92 provides that when the terms of any
such contract grant or other disposition of property, or any matter required
by law to be reduced to the form of a document, have been proved according
to Section 91, 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. Though proviso 2 thereto permits proof of
existence of any separate oral agreement as to any matter on which a
document is silent and which is not inconsistent with its terms, but in the
present case the clause in the MoU to the effect that the defendants no.1 to 3
will have no right or authority to enter into any third party agreement with
respect to the portion aforesaid of the third floor, till the time complete
payment of Rs.2,81,00,000/- along with interest if any is cleared to the
plaintiff, is inconsistent to the clause in the sale deed whereunder the
plaintiff sold, conveyed, granted, transferred and assigned all his rights, title
and interest in the said portion to the defendants no.1 to 3, to have and to
hold the same absolutely and forever, as well as to the clause in the sale
CS(OS) No.190/2018 Page 23 of 31
deed that the plaintiff was left with no right, title, interest, claim or lien of
any nature whatsoever in the property sold and the same had become the
absolute property of the defendants no.1 to 3 with the right to use, enjoy, sell
and transfer the same by whatsoever mean, without any demand, objection
or interrupton by the plaintiff or any person claiming under the plaintiff. In
Roop Kumar Vs. Mohan Thedani (2003) 6 SCC 595 it was held that it is
general and most inflexible rule that wherever written instruments 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 origin, entitled to a
much higher degree of credit than parol evidence; it is of policy because it
would be attended with great mischief if those instruments, upon which
men's rights depended, were liable to be impeached by loose collateral
evidence. The said law applies on all fours in the present case. The plaintiff,
by executing the sale deed in favour of defendants no.1 to 3, with the
language as reproduced above, entitled any person dealing with the
defendants no.1 to 3 on the basis of the said sale deed to believe that the
defendants no.1 to 3 were absolute owners of the property and entitled to
deal with the same without any claim or interference from the plaintiff. In
fact the defendant no.4, on the basis of the said sale deed dealt with the
defendants no.1 to 3 as absolute owners of the property, entitled to mortgage
the same, and subsequently the defendant no.5, on the basis of the said sale
deed dealt with the defendants no.1 to 3 as absolute owner of the property
and purchased and acquired title in the property from the defendants no.1 to
CS(OS) No.190/2018 Page 24 of 31
3. The plaintiff, after having so led the defendants no.4&5 into dealing with
the defendants no.1 to 3, is estopped from challenging the title of defendants
no.1 to 3 to the property, thereby pulling the rug from under the feet of
defendant no.4 and particularly defendant no.5. Reference in this context
may also be made to A. Entertainment Pvt. Ltd. Vs. Applause
Entertainment Pvt. Ltd. (2013) 197 DLT 174 (DB) and Gaurav Monga Vs.
Premier Inn India Private Limited 2017 SCC OnLine Del 6405. Thus, the
plaintiff is barred from leading any evidence including in the form of MoU
aforesaid or otherwise, contradicting the terms of the sale deed executed by
the plaintiff in favour of the defendants no.1 to 3. Reference may further be
made to Nageshwar Pandey Vs. Karan Madaan 2016 SCC OnLine Del 816
(DB).
38. That brings me to another aspect. Per Section 55(4)(b) of the Transfer
of Property Act, 1882, in the absence of a contract to the contrary, where the
ownership of the property has passed to the buyer before payment of the
whole of the purchase-money, the seller is entitled only to a charge upon the
property in the hands of the buyer, or in the hands of any transferee without
consideration or in the hands of any transferee with notice of payment, for
the amount of the purchase money remaining unpaid together with interest
thereon. It is evident from the clauses of the sale deed executed by the
plaintiff in favour of the defendants no.1 to 3 that the ownership of the
property sold thereunder passed to the defendants no.1 to 3 and there was no
contract to the contrary in the sale deed. Had the plaintiff desired ownership
of the property not to pass to the defendants no.1 to 3 notwithstanding the
execution of the sale deed, the plaintiff ought to have provided so in the sale
CS(OS) No.190/2018 Page 25 of 31
deed and which the plaintiff did not. Once it is so, according to law the
plaintiff is not entitled to void the sale deed for the reason of entire agreed
consideration having not been paid but is only entitled to recover the balance
consideration from the defendants no.1 to 3, as also from any transferee
without consideration from defendants no.1 to 3, as well as from any
transferee from the defendants no.1 to 3 with notice of non-payment. It is
not the case of the plaintiff, that either the mortgage of the property by the
defendants no.1 to 3 in favour of the defendant no.4 or the transfer/sale of
the property by defendants no.1 to 3 in favour of defendant no.5 is without
consideration. It is also not the case that the transfers by defendants no.1 to
3, of mortgage rights in favour of defendant no.4 or of title in favour of
defendant no.5 is with notice of non-payment. Thus the claim of the plaintiff
for recovery of balance price if any, is against defendants no.1 to 3 only and
not against defendant no.4 or defendant no.5. In any case the plaintiff in the
present suit has not sought the relief of recovery of balance sale
consideration but has sought the reliefs of annulling the sale deed by
defendants no.1 to 3 in favour of defendant no.5, of recovery of possession
and of recovery of mesne profits and to which reliefs the plaintiff is not
entitled under Section 55(4)(b) of the Transfer of Property Act. Reference in
this regard can again be made to Nageshwar Pandey supra and to my
judgment dated 28th November, 2019 in CS(OS) No.619/2019 titled
Manjeet Kaur Vs. Devender Dagar, and other judgments referred therein.
Further the relief of recovery of balance sale consideration, to which alone
the plaintiff is entitled under Section 55(4)(b), has already been claimed
against defendant no.1 Honey Bhagat in CS(OS) No.86/2017. The counsel
for the defendant, in the context of Section 55(4) (b) has drawn attention to
CS(OS) No.190/2018 Page 26 of 31
Kaliaperumal Vs. Rajagopal (2009) 4 SCC 193 holding (i) in a sale, there is
an absolute transfer of all rights in the properties sold;no rights are left in the
transferor; (ii) the price is fixed by the contract antecedent to the
conveyance; price is the essence of a contract of sale; (iii) there is only one
mode of transfer by sale in regard to immovable property of the value of
Rs.100/- or more and that is by a registered instrument; (iv)it is now well
settled that payment of entire price is not a condition precedent for
completion of the sale by passing of title, as Section 54 of Transfer of
Property Act defines `sale' as a transfer of ownership in exchange for a price
paid or promised or part paid and part promised;(v) if the intention of parties
was that title should pass on execution and registration, title would pass to
the purchaser even if the sale price or part thereof is not paid; (vi) in the
event of non- payment of price or balance price thereafter, the remedy of the
vendor is only to sue for the balance prices; he cannot avoid the sale.
39. The counsel for the plaintiff draws attention to Section 11 of the
Transfer of Property Act as under:-
"11. Restriction repugnant to interest created.
- Where, on a transfer of property, an interest
therein is created absolutely in favour of any
person, but the terms of the transfer direct that
such interest shall be applied or enjoyed by him in
a particular manner, he shall be entitled to receive
and dispose of such interest as if there were no
such direction.
[Where any such direction has been made in
respect of one piece of immovable property for the
purpose of securing the beneficial enjoyment of
another piece of such property, nothing in this
section shall be deemed to affect any right which
CS(OS) No.190/2018 Page 27 of 31
the transferor may have to enforce such direction
or any remedy which he may have in respect of a
breach thereof.]"
40. I am unable to see how the same comes to the rescue of the plaintiff.
It provides that once interest in property is transferred absolutely, even if the
terms of transfer direct such interest to be applied or enjoyed in a particular
manner, the transferee shall be entitled to dispose of such interest ignoring
the said direction. The same is rather against, than in favour of the plaintiff.
The High Court of Punjab & Haryana in Lilawati Vs. Firm Ram Dhari
Suraj Bhan AIR 1971 P&H 87 was concerned with the question, whether
after vendor has made an absolute sale, he can enforce the payment of the
sum of the rent from the vendee under the terms in that respect in the sale
deed. Relying on Rameshwar Bakhsh Vs. Balraj KuarAIR 1935 PC 187 it
was held that the clauses in the sale deed regarding payment of rent by
purchaser to the seller being repugnant to the absolute estate created in
favour of the purchaser, cannot cut down that estate and must be held to be
invalid. It was held that the sale deed cannot be converted into a perpetual
lease. The counsel for the defendant no.5, in this context has drawn attention
to SarlaMehra Vs. Praleen Chopra (2009) SCC OnLine Del 1025 where it
was held that the object and principle behind Section 11 is that the transferor
should not be allowed to put a clog or restriction on the right of a vendee so
as to be repugnant to the property sold and that the main provision in a
transfer is to be given effect to and the repugnant one discarded.
41. The counsel for the plaintiff has referred to P.V. Guru Raj Reddy Vs.
P. Neeradha Reddy (2015) 8 SCC 331 holding that rejection of plaint under
order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) is a drastic
CS(OS) No.190/2018 Page 28 of 31
power and at the stage of exercise of said power, the stand of the defendants
in the written statement or in the application for rejection is wholly
immaterial and has argued that thus the suit cannot be summarily dismissed.
42. Undoubtedly so. However where under the law, the plaintiff on his
own averments and on his own documents and in view of other admitted
facts including earlier legal proceedings, is not entitled to the relief claimed,
the suit is not to be kept pending pedantically and allowed to take up the
resources of this Court, at the cost of other deserving cases and has to be
nipped in the bud.
43. Not only is the suit not so maintainable but in my view this Court as
the Civil Court does not even have the jurisdiction to entertain this suit.
44. The plaintiff, in the plaint itself admits having been informed by the
defendants no.1 to 3 that the defendant no.3 had applied for and availed of a
housing loan from defendant no.4, a Financial Institution, and that the
defendant no.4 had sanctioned a housing loan for Rs.4,54,99,809/-. The
plaintiff, knowing the said fact, executed and registered the Sale Deed for
Rs.4,50,00,000/- in favour of defendants no.1 to 3. The plaintiff thus knew
that the property so sold by him would be mortgaged with a Financial
Institution i.e. the defendant no.4, on the basis of Sale Deed executed by
plaintiff in favour of defendants no.1 to 3 and that the defendant no.4 would
extend loan to the defendant no.3 on the basis of the said Sale Deed. The
plaintiff is thus presumed to know that in the event of the defendants no.1 to
3 not repaying the dues of defendant no.4, the defendant no.4, in exercise of
powers vested in it under the SARFAESI Act, would be entitled to take
possession of the property. The plaintiff thus is privy to the representations
CS(OS) No.190/2018 Page 29 of 31
made to the defendant no.4 for extending loan to the defendant no.3 on the
security of the Sale Deed of the property executed by the plaintiff in favour
of defendants no.1 to 3. The plaintiff stood estopped from obstructing the
defendant no.4 from enforcing its security interest under the SARFAESI
Act.
45. Moreover, even if the plaintiff was aggrieved from the measures taken
by the defendant no.4 with respect to the property, including under Section
13(4) of the SARFAESI Act, the remedy of the plaintiff thereagainst was / is
before Debts Recovery Tribunal (DRT), under Section 17 of the SARFAESI
Act and the powers of the Tribunal under Section 17(3) are wide enough to
grant the reliefs as claimed by the plaintiff herein. Vide Section 34 of the
SARFAESI Act, the jurisdiction of this Court to entertain any suit in respect
of any matter which the Tribunal is empowered to determine, is barred. The
defendant no.5 has produced before this Court the orders dated 8 th
December, 2016 and 28th December, 2016 in SA No.255/2014 of Debts
Recovery Tribunal - III, Delhi filed by the plaintiff, recording the statement
of defendant no.4 Dewan Housing Finance Corporation Ltd. that the matter
had been settled and the defendant no.4 had already released the documents
and disposing of SA No.255/2014 filed by the plaintiff as infructuous. It is
evident therefrom that the plaintiff did invoke the remedy under Section 17
of the SARFAESI Act though the same became infructuous in view of the
statement of defendant no.4 Dewan Housing Finance Corporation Ltd.
Owing thereto, it cannot stricto sensu be said that jurisdiction of this Court
is barred. The plaint, however otherwise is not entitled to reliefs claimed, as
described above.
CS(OS) No.190/2018 Page 30 of 31
46. Merit is also found in the contention of the counsel for defendant
no.5, that the plaintiff, without impugning the Sale Deed executed in favour
of defendants no.1 to 3, and which is not done in the suit, is not entitled to
any of the reliefs claimed.
47. Thus, whichever way one looks at, this suit for the reliefs claimed, on
the averments in the plaint and documents filed therewith was / is not
maintainable and ought not to have been entertained.
48. Resultantly, the suit is dismissed.
49. Needless to state all interim orders stand vacated.
I refrain from imposing any costs on the plaintiff.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
MARCH 23, 2020 SEPTEMBER 27, 2019 'ak/pp/gsr'..
CS(OS) No.190/2018 Page 31 of 31