Delhi District Court
) Mrs. Rajinder Sethi vs ) M/S Jainsons Westend Pvt. Ltd on 30 November, 2016
THE COURT CIVIL JUDGE-10 (CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 161/2005
PRESIDED BY- SAMAR VISHAL(CIVIL JUDGE)
Unique ID No. 02401C0451842005
MEMO OF PARTIES
1) Tarjit Singh
S/o Late S.Sharam Singh,
2) Dr. Jagjit Singh Gambhir
S/o Late S.Sharam Singh,
Through his LRs
a) Smt. Amrit Gambhir,
b) Ms. Sheetal Gambhir,
c) Ms. Simran Gambhir
Through her natural mother and as next friend-Smt. Amrit Gambhir,
3) Smt. Shanti Devi (since deceased),
Through her LRs
1) Mrs. Rajinder Sethi,
2) Mrs. Devinder Pal Kaur,
3) S.Tarjit Singh(plaintiff no. 1)
4) Dr. Jagjit Singh Gambhir(Plaintiff no. 2)
5) Mrs Tajinder Kaur(predeceased),
a) S. Mohinder Singh
b) S.Harmeet Singh
All C/o S.Tarjeet Singh
5/8, WEA, Karol Bagh, New Delhi. .........Plaintiffs
VERSUS
1) M/S Jainsons Westend Pvt. Ltd.
5/7, W.E.A.Karol Bagh,
New Delhi.
Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 1/32
2) Sh. Rakesh Jain S/o Sh. T.C.Jain
D-422, Defence Colony,
New Delhi.
3) Sh. Atulya Kumar Jain S/o Sh. Rakesh Jain,
D-422, Defence colony,
New Delhi. ..........Defendants
Date of institution of the Suit: 28.05.2005
Date on which Judgment was reserved: 28.07.2016
Date of pronouncement of Judgment: 30.11.2016
SUIT FOR DECLARATION AND CANCELLATION OF SALE-DEED.
JUDGMENT
1. This is a suit for Declaration and Cancellation of Sale-deed filed by the plaintiffs against the defendants.
2. It is the case of the Plaintiffs that in a previous litigation, on the basis of compromise recorded on 21/04/1995 in suit no. 831/89, titled as Sharam Singh and another Vs. M/S Jaisons(Westened), decided on 21/04/1995, the plaintiffs had agreed to sell 1/5th undivided share of the premises forming part of property no. 5/8,(Mpl. No. 10507) W.E.A.,Karol Bagh, New Delhi to the defendant no. 1 subject to the terms and conditions contained in the 'Agreement to Sell'' dated 16/01/1995 against consideration of Rs. 1,75,000/-.
3. Plaintiffs on the same date of agreement i.e. 16/01/1995, executed the power of attorney whereby Shri Rakesh Jain and Mrs. Neena Jain were appointed and nominated as attorneys of the plaintiffs. The object and purpose of appointing them as attorneys commenced with the specific condition and the procedure to be adopted for exercising the powers incorporated in the said Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 2/32 power of attorney reads as under:
''(1) In the event of the said vendors failing to execute the sale deed in respect of one-fifth undivided share of the said premises together with agreement to sell, in company's name and on their behalf independently to execute the sale deed of their respective share, right/ title and interest in the said premises in favour of the vendee or the vendees or nominees and to get the sale deed duly registered with the concerned sub-registrar of Assurances and complete all formalities in connection therewith under the Indian Registration Act, at the costs and expenses of the vendees.''
4. The plaintiffs and the defendant no. 1, along with other intending purchasers of undivided 1/5th share in the suit property, paid their share of conversion charges for conversing the property from lease hold to free hold land underneath the property in question. The amount stood deposited with DDA vide pay order dated 23/03/1995, in pursuance of the terms and conditions of the agreement to sell dated 16/01/1995. It is further stated that walls of ground floor and first floor of the portion in question of the suit property, were demolished by all the intending purchasers including the defendant no. 1 and the portion under sale stood amalgamated with the adjoining property no. 5/7, W.E.A. Karol Bagh, New Delhi which property is separate, independent and owned by different owners. It amounted to violation not only of the terms and conditions of perpetual lease deed issued by the DDA but also amounted to breach of the agreement to sell dated 16/01/1995 between the parties to the said agreement. It is further stated that the defendant no. 1 through its Director Ms. Manju Gupta, filed suit dated 06/01/1998 against the plaintiffs in the Hon'ble High Court of Delhi, thereby seeking specific performance of the above said agreement to sell dated 16/01/1995 and also for perpetual injunction. The Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 3/32 violations of the lease deed issued by the DDA and of the breaches of the terms and conditions of the agreement to sell dated 16/01/1995 committed by the defendant no. 1,( the intending purchaser), were clearly and specifically stated in the written statement filed by the present plaintiffs with specific plea that the agreement dated 16/01/1995 between the parties stands rescinded and the agreement was not enforceable legally or otherwise against the parties i.e. the present plaintiffs. It is further stated that for consideration amount received by the plaintiffs, the cheque for a sum of Rs. 1,75,000/- drawn by the present plaintiffs, was also tendered to defendant no. 1 along with the written statement filed in the court on 03/09/1998. Thus, the agreement to sell dated 16/01/1995 between the parties stood vitiated from the said date of filing of written statement by the present plaintiffs. Due to pecuniary jurisdiction value of the suit, it was transferred to the court of Addl. Distt. Judge Sh. Naipal Singh and registered with the said court at No. 253/2000(143/1998). On 03/3/2002, instead of leading evidence in that case, Sh. Rakesh Jain, Director of the company withdraw the said suit and it was dismissed accordingly. It is further stated that on dismissal of the said suit, the defendant no. 1 ceased to have any right or interest in the portion of the property in pursuance of the agreement dated 16/01/1995 and the right to claim rent from the previous tenant stood reverted back to the plaintiffs on the date of filing of the written statement by the plaintiffs with specific plea of rescission of the agreement in question. Accordingly, the plaintiffs as owner-landlords got served a notice of demand of rent dated 01/09/2003 upon the erstwhile tenant M/S Jainsons(Westend). The suit bearing no. 455/03 filed by the plaintiffs against the said tenant for recovery of arrears of rent stands decreed on 16/09/2004 in favour of the plaintiffs and in the said suit, the defendant no. 1 was also impleaded as a party (i.e. as Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 4/32 defendant no. 6). It is further stated that in the said suit, defendant no. 1 being represented by Sh. Rakesh Jain, who also happens to be the partner of the tenant firm-M/S Jainsons Westend, claimed that a sale-deed has already been executed in favour of the defendant no. 1 through attorney of the plaintiffs but did not file any such sale-deed on record nor any copy thereof. Even no details like the date of the alleged execution, the date of registration with the sub- registrar, the name of the executents were stated before the Ld. Court. It is further stated that in eviction petition filed by the plaintiff U/S 14(1)(a) of the Delhi Rent Control Act, 1958, the tenant M/S Jainsons Westend put up the same plea that sale deed has already been executed in favour of the defendant no. 1 for his share but did not file any such sale deed on record nor any copy thereof. The plaintiff claimed that he had obtained certified copy of the sale from the office of the MCD and then he came to know about the execution of the sale deed of the suit property in favour of defendant no. 1 executed by defendant no. 2 on behalf of the plaintiffs as their attorney. It is further stated that all the defendants have played fraud upon the plaintiffs and also upon the courts. The defendants have also misrepresented the courts as well as the statutory authorities by making false statement and suppression of material facts for their wrongful gains. Defendant no. 2 fraudulently executed a vexatious, fictitious and void sale deed in favour of the defendant no. 1 in collusion with his son Atulya Kumar Jain which is liable to be cancelled. The execution of the said sale deed in motivated with a desire to deprive the plaintiffs of their right, title and interest in this suit property. It is further stated that since the sale deed dated 10/06/2002 is a void and vexatious document, the plaintiffs left with no other alternative remedy except to seek its cancellation and to get the same declared as such. The plaintiff has stated in Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 5/32 his plaints the specific acts of fraud on the basis of which the plaintiff now wants the cancellation of sale deed.
(a) The execution of sale deed is not only void but is also in violation of the terms and condition of the agreement itself in pursuance of which the same has been fraudulently executed.
(b) The agreement to sell dated 16/01/1995 between the parties stood rescinded on the date of filing of written statement by the plaintiffs in the suit for specific performance of the same agreement relating to the same property filed by the defendant no. 1 through defendant no. 2. The said agreement even otherwise had become void and non-existent for the facts and reasons as under:-
(i) the defendant no. 2 filed an affidavit dated 04/12/2002 by way of evidence as an examination in chief on behalf of defendant no. 1, in the court on 14/01/2003. Rakesh Jain did not make any statement to tender the said affidavit nor put himself to the test of cross-examination but sought adjournment for 06/02/2003 and 03/03/2003 on which date the said suit was dismissed as withdrawn on his statement.
(ii) Rakesh Jain did not make any reference to the sale deed in question nor furnished any particulars of the same in the said suit nor in the affidavit filed in the said suit which stands dismissed as withdrawn on 03/03/2003.
(iii) The said agreement had already ceased to exist as stated in the foregoing paras and was not in existence on the day the sale-deed is purported to have been executed by the defendant no. 2 as the matter was subjudice before the Court of Sh. Naipal Singh Ld. Addl. District Judge, Delhi., in the suit filed by the defendant no. 1 itself against the plaintiffs.
(d) The said sale deed is purported to have been executed by Rakesh Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 6/32 Jain as attorney of the plaintiffs fraudulently whereas he was never empowered to execute any such sale deed by the plaintiffs in favour of the defendant no.1 since no notice whatsoever was ever sent by the defendants to the plaintiffs for the said purpose.
(e) The power of attorney on the basis of which the sale deed has been executed, is not registered with the sub-registrar. This act itself is in violation of the terms and conditions of the agreement dated 16/01/1995.
(f) The said suit was filed by Rakesh Jain(defendant no. 2) himself on behalf of defendant no. 1 and had complete knowledge of the pendency of the said suit.
(g) Without prejudice to the foregoing facts, it is stated that the power of attorney itself is a void, in-effective document and any document executed in pursuance of the same, is also void and non-est.
(h) The defendants have not only suppressed the material and true facts but have also made false statement of facts in the sale deed itself and to the statutory authorities for the wrongful gain thereby causing serious injury to the rights, title and interest of the plaintiffs.
5. Hence, the present suit for declaration of the sale deed Ex.PW1/15 as null and void and its cancellation.
6. Defendants no. 1 to 3 filed their joint written statement stating that plaintiff has no locus to file the present suit as he was left with no right, title or interest in the property by virtue of the Agreement to Sell dated 15/01/1995, General Power of Attorney, Receipt and Court decree in favour of the defendants. It is further stated that plaintiffs are not entitled to challenge the sale-deed and ownership of defendant no. 1 that was acquired at the time of execution of the Agreement to Sell and subsequently when compromise decree Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 7/32 dated 21/04/1995 was passed. Pursuant to the Agreement to Sell dated 15/01/1995, the plaintiff had handed over the possession of the property to the defendant no. 1 through its tenant M/S Jainsons Westend who were in actual physical possession of the property. It is further stated that defendant no. 1 had performed its part under the Contract and thus provisions of Section 53-A of the Transfer of Property Act come into operation. The defendants were and have always been ready and willing to perform their part of the Agreement. In fact, the defendant no. 1 had duly performed its part of agreement by paying full consideration and its share of conversion charges and had received possession of the premises in question. It was for the plaintiffs to carry out their part of contract which they failed to perform on false and fictitious grounds. The plaintiffs are therefore debarred from challenging the ownership and sale deed dated 10/06/2002 in favour of defendant no. 1. In any case, if there is any defect in the title, it will be a matter between the subsequent purchaser and the tenant i.e. M/S Jainsons Westend. The plaintiffs have no locus to challenge the sale deeds as their right, title or interest in the property had already extinguished. It is further stated that the plea taken by the plaintiffs with regard to alleged cancellation/revocation of the Agreement to Sell dated 15/01/1995 in the written statement filed in court on 03/09/1998, is not maintainable in as much as the alleged cancellation, if at all, is barred by limitation, the Agreement to Sell having been executed on 15/01/1995. The notice of alleged Cancellation, if at all, should have been served within three years of that date. The agreement to sell dated 15/01/1995 validly subsisted during the execution of the sale deed and the sale deed dated 10/06/2002 conferred lawful ownership on defendant no. 1. It is further stated that Agreement to Sell was coupled with full consideration and possession and Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 8/32 hence the ownership in any case stood transferred to the Answering Defendants. It is further stated that even assuming, though not admitted, that the defendant no. 1 had committed a breach of the Agreement to sell dated 15/01/1995 on account of the alleged demolition and amalgamation of the property in question with the adjoining property no. 5/7, W.E.A. Karol Bagh, New Delhi the said plea as expressed by the plaintiffs in the written statement filed in the suit for specific performance, could not be a ground for cancellation of the Agreement to Sell dated 15/01/1995 in as much as the openings in the walls existed even in the year 1974 and in fact the plaintiffs filed a suit in this regard subsequently and prior to the said Agreement to sell the parties had agreed that the tenants can carry out the alteration/addition in the suit property and pursuant to this a sum of Rs. 5 lacs was also given to the plaintiffs by the tenant as a security. A letter dated 25/08/1994 is very clear in this regard. Moreover, there could have been no breach of the Agreement to sell on these grounds because the personal meetings for the alternation in the building and subsequent advancing of security took place much earlier to the time when the Agreement to Sell was executed i.e. 15/01/1995. Smt. Shanti Devi in fact returned the sum of Rs. 5 lacs given as security as mentioned above on 17/01/1995. It is further stated that the suit filed by the plaintiffs is also liable to be dismissed on the account of concealment of material facts and/ or misrepresentation of material facts. The plaintiffs have filed the present suit for the cancellation of the sale deed dated 10/06/2002 and are claiming their right, title and interest in the suit property. However, the plaintiffs have not disclosed the factum of a compromise decree dated 21/04/1995 passed on the basis of filing of a joint application under order 23 Rule 3 CPC and their statements given on oath wherein the plaintiffs had stated that they have sold their entire Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 9/32 right, title and interest to the five different companies( including defendant no. 1 herein) of premises under the occupation of M/S Jainsons Westend as tenants. The plaintiffs had also executed Indemnity Bonds in favour of the Answering Defendant, reiterating therein that they had sold the property in question to the defendant no. 1 and four other companies and had executed irrevocable Power of Attorney in favour of Shri Rakesh Jain and Smt. Neena Jain. Therefore, the plaintiffs have no right, title and interest in the suit property as alleged or at all and have abused the process of law by filing a frivolous suit against the defendants. It is further stated that the suit filed by the plaintiffs is liable to be dismissed on account of principle of estoppel. In the suit for specific performance filed by the defendant no. 1, since the sale had been executed, the suit was withdrawn on 03/03/2003 and a statement to that effect was made by Shri Rakesh Jain, to which the plaintiffs herein raised no objection, meaning thereby that they had acknowledged the validity of the sale deed. The plaintiffs now, by filing the present suit are retracting from their own stance and are thus blowing hot and cold in the same breath. Even otherwise, in equity, the plaintiffs having enjoyed the full consideration amounting to Rs. 1.75 lacs towards each of the five sale deeds for the last ten years and the rent of more than half the premises handed over to them by the then tenants M/S Jainsons Westend as per the compromise decree, cannot now claim there was no sale. It is falsely claimed that cheques for Rs. 1.75 lacs each were tendered to the defendants. It is further stated that in fact it now appears that the plaintiffs deliberately cheated the defendant by making them part with not only money but also portions of premises which was then in the occupation of M/S Jainsons Westend and was surrendered to them as per the compromise decree and as additional consideration for the Agreement to Sell. It appears Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 10/32 that the plaintiffs were fully aware that there was a problem with DDA for getting the 'premises converted to freehold, and also since the premises were protected under the Delhi Rent Control Act and in order to get possession of certain portions of property under the occupation of M/S Jainsons Westend, the then tenants of plaintiff, they entered into Agreement to sell and also received Rs. 1.75 lacs x 5 as consideration plus Rs. 6,870/- towards defendants share of conversion charges and Rs 1,000/- each as fee for each company for handling the matter of conversion. M/S Jainsons Westend, tenant in fact duly surrendered certain portions of Ground Floor and First floor of the premises in their occupation as a part of settlement and as additional consideration for the agreement to sell and other documents which eventually made defendant no. 1 and four other companies the owners of the property in question. It now transpires that plaintiffs were involved in a dispute with DDA on the question of payment of ground rent as a result of which the property could not be made freehold. Moreover, the plaintiffs had also made some unauthorized construction on the second floor as a result of which also the conversion was hampered. It is further stated that plaintiff took the excuse of alleged demolition of walls in the premises sold to the defendant for claiming that the property could not be made freehold and also that there was alleged breach of lease. Hence, the Agreement to Sell was allegedly declared void. The defendant has learnt that the plaintiffs have in fact sold the basement and three side shops of the property 5/8, W.E.A. Karol Bagh and have got the sale deeds registered in respect of the same in the year 2002. Thus, it is obvious that the entire plea of the plaintiffs that the property cold not be converted from leasehold to freehold on account of alleged breach of Agreement by the defendant or that sale deed could not be executed by them is a farce and Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 11/32 vitiated with fraud. It is further stated that Smt. Shanti Devi and S.Sharam Singh earlier rented the property bearing no. 5/8, W.E.A. Karold Bagh, Ajmal Khan road, New Delhi to the defendant under six different separate tenancies. The rent of each separate tenancy was less than Rs. 3,500/- and was protected under the provisions of the Delhi Rent Control Act. Therefore, disputes arose between the parties under which the owners filed suit for recovery and possession of the immovable property. It is further stated that during the pendency of the suit, S. Sharam Singh, one of the owner passed away, after which the share passed on it his legal heirs, i.e. the present plaintiffs. Therefore, the owners approached the defendant for a compromise. A joint application under order 23 Rule 3 CPC was moved by the plaintiffs and defendants and a compromise decree dated 21/04/1995 was passed and it was stated by the present plaintiff that they have sold their entire right, title and interest in the suit property to five different companies(including defendant no. 1 herein) and had received full consideration and that the property was under
the occupation of M/S Jainsons Westend as tenant. It was also stated that the said companies are in actual possession of their respective portions through their tenant M/S Jainsons Westend and it shall continue to be tenant on the same terms and conditions. It is further stated that during the pendency of the aforesaid suit, the plaintiffs also executed Agreement to Sell and Indemnity Bond in favour of five different companies( including defendant no.1 herein) and also issued receipt for the consideration amount. The plaintiffs agreed in the Agreement to Sell to execute respective sale deeds in favour of five different companies shortly. However, the plaintiffs failed to do so. The plaintiffs also executed irrevocable Power of Attorney in favour of Shri Rakesh Jain( defendant no. 2 herein), partner of the Companies, to deal with the Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 12/32 respective portions in any manner. It is further stated that the statement of plaintiffs was recorded before the court on oath. Hence, the plaintiffs on affidavit stated that the plaintiffs have no right, title or interest whatsoever in respect of those portions, which include the portion which is subject matter in the present suit. It was stated that the entire rent of said five tenancies shall be paid by M/S Jainsons Westend to five different companies. The plaintiffs also stated in that application that they have received a sum of Rs. 1,75,000/- each from five respective companies( which payments were duly encahsed). It was also stated that the plaintiffs have received the entire pending arrears of rent from M/S Jainsons Westend and have duly executed receipt for that. The said application was duly supported by affidavit of each of the plaintiffs. Accordingly, the said suit was decreed and the application along with other documents become part of the decree and the same has never been challenged so far and it had achieved the finality on 21/04/1995 by making a statement before this court in this regard. It is further stated that the five companies filed a suit for specific performance of Agreement to sell and for injunction against the plaintiffs in Hon'ble High Court of Delhi asking the plaintiffs herein to execute sale deeds in favour of five respective companies, in furtherance of Agreement to Sell though it was not legally bound to do so. However, in the meantime, M/S Jainsons Westend kept on paying the rent of the tenanted premises to the five companies. It is further stated that the five companies(including defendant no. 1 in the present suit) had already become owners of the different portions by virtue of the Agreement to Sell, Indemnity Bond, receipt of consideration coupled with the possession and also after the statement of plaintiffs on oath in the suit before the District Judge thereafter compromise decree was passed. During the pendency of the aforesaid suit, the plaintiffs Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 13/32 through their Power of Attorney Holder, Shri Rakesh Jain, executed five sale deeds in favour of all the companies including defendant no. 1 in the present suit. Therefore, as the sale deeds had already been executed, the companies withdrew their respective suits on 03/03/2003 after making a statement before this court to the effect that as the documents have been executed, hence the plaintiffs have no claim left against defendants(Plaintiff herein). The plaintiffs hereinabove after perusing the sale deed and other documents specifically stated through their counsel Sh. H.L.Narula that they have no objection in case the said suit is withdrawn. It is further stated that plaintiff no. 1 Shri Tarjit Singh, was also present, as would be apparent from the copy of the court orders. Plaintiffs after being satisfied that sale deed/document had already been executed did not make any objection when the suit was withdrawn. It is further stated that foregoing facts clearly establish that defendant no. 1 is the actual owner of the property in question and the present plaintiffs have no locus to file the present suit. It was M/S Jainsons Westend who remained tenant with respect to the suit property. After the execution of the Agreement to Sell, plaintiff no. 1 wrote a letter to defendant no. 1 asking them to take rent from the aforesaid tenant from 16/01/1995 onwards as agreed to in the agreement to sell dated 15/01/1995. The said tenant continued to pay rent to defendant no. 1 as also four other companies as they are the actual owners of the 1/5th portion of the property, under five different tenancies and the rent being paid under each tenancy is Rs. 300/- per month, Rs. 1100/- per month, Rs. 500/- per month, Rs. 100/- per month and Rs. 600/- per month respectively for each company who are the owners of the premises in question. The rent is now being deposited in court since the plaintiffs have also filed a frivolous petition under section 15(1) of the DRC Act. The property also stands mutated in the Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 14/32 name of the defendant no. 1 along with other four companies and house tax is being paid by them regularly. It is further stated that as the plaintiffs are no more the owners of the property in question and the defendant no. 1 had already become lawful owner of 1/5th portion of the entire premises by means of validly executed sale deed which were duly acknowledged with satisfaction by the plaintiffs hence, the present suit is without any cause of action besides being hopelessly barred by limitation.
7. In replication, there is general denial of the defenses set-up by the defendant with further affirmations of plaint allegations.
8. These are the overall pleadings of all the parties in brief.
9. On the basis of pleadings of both the parties following issues were framed on 08/12/2005:-
1) Whether the plaintiff has no locus-standi as he was not left any right, title or interest as alleged in preliminary objection no. 1 of written statement? OPD.
2) Whether the suit is barred by limitation in view of preliminary objection no. 2 of the written statement? OPD.
3) Whether the plaintiff is entitled for the decree of declaration as
prayed in prayer para of the plaint? OPP
4) Relief.
10. In order to prove his case, plaintiff S.Tarjeet Singh examined himself as PW-1. On the other hand defendants examined Sh. Rakesh Jain as DW-1 in support of their defence.
11. During the course of arguments, Ld. Counsel for the defendants has argued on the line of their defence but on the other hand, Ld. Counsel for the plaintiffs has filed written arguments with following facts:-
i) Can sale deed be registered for Leasehold property without conversion?
ii) Can anyone transfer a title better than his own?
Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 15/32
iii) Termination of the Agreement to Sell for breach of conditions- potential
for injury/mischief.
iv) Principle of preventive justice/protective justice.
v) The sale deed throws a cloud of doubt or suspicion on the title or interest
of the plaintiff.
vi) Whether the Sale-Deed are a void document in view of the Agreement to
Sell already being terminated.
vii) Principle of fraud and justice do not dwell together.
viii) Material suppression and misleading of Court in not disclosing the execution of Sale Deed at first available instance.
ix) Two irrevocable power of attorneys were made on two different stamp papers worth Rs. 10/- and Rs. 20/-
x) Sale Deed admittedly executed on 10/06/2002. Suit filed on 28/05/2002.
xi) Effect of part/sub-division of property which is still on leasehold basis.
xii) Whether sale-deed ought to be cancelled?
xiii) Test of public policy.
xiv) Sale-deed-whether it was valid.
12. My issue wise findings are as follows:-
ISSUE NO.1 & 3
Whether the plaintiff has no locus-standi as he was not left any right, title or interest as alleged in preliminary objection no. 1 of written statement?
OPD.
Whether the plaintiff is entitled for the decree of declaration as prayed in prayer para of the plaint? OPP Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 16/32
13. Issue no. 1 and 3 are decided together as these issues involve similar appreciation of facts and evidence and application of law.
14. The plaintiff has sought the relief of declaration and cancellation relating to sale-deed Ex.PW1/15. The reliefs of declaration and cancellation are sough under The Specific Relief Act, 1963. Section 31 of this Act provides for the provisions of cancellation and section 34 for declaratory decrees. These sections read as under:-
31.When cancellation may be ordered.-(1) Any person against whom a Written Instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
34. Discretion of court as to declaration of status of right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
15. Therefore, for seeking the relief of cancellation of impugned sale Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 17/32 deed Ex.PW1/15 on the ground that it is null and void, the plaintiff has to show that the impugned sale deed is either is void or voidable document against him and if the impugned sale deed is left outstanding, it may cause him serious injury.
16. Further, the plaintiff may also seek the declaration that the impugned sale deed is null and void on the ground that he is entitled to the rights in the property which is subject matter of the sale deed and the defendant is denying his such legal right.
17. But what has to be seen is whether the plaintiff is legally entitled to seek such a declaration and cancellation.
18. During a litigation between the plaintiffs and M/S Jainsons Westend, its tenant, an agreement to sell Ex.PW1/1 dated 16/01/1995 was entered into between the plaintiffs and M/S Jainsons Westend Pvt. Ltd. which is a private limited company for the purchase of the suit property which was transferred by the impugned sale deed Ex.PW1/15 for a sum of Rs. 1,75,000/-.
The sale-deed further mentions that the entire consideration of Rs. 1,75,000/- was paid by the vendor to the vendee by pay-order no. 818834 dated 15/01/1995 drawn on Andhra Bank, Karol Bagh, New Delhi. The sale deed further mentions that the vendee has received the entire consideration and hence after the execution of this agreement to sell, the vendor shall have not right, title or interest in the portion sold to the vendee and the vendees shall be the exclusive owners of the property. The tenant at that time i.e. M/S Jainsons Westend after the execution of this agreement to sell shall be a direct tenant under the vendees. It shows that the possession of the property was also transferred to the vendees. Further, the agreement to sell states that if the venders fails to execute the proper sale-deed in respect of the said premises in Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 18/32 favour of the plaintiffs immediately after the conversion then notwithstanding to the contrary hereinabove, the vendee shall deem to have been the owners for all practical purposes. The vendor also undertook to execute an irrevocable power of attorney in favour of the vendees through their authorized representatives simultaneously with the execution of the present agreement to sell and further undertake to get the said irrevocable power of attorney registered with the office of sub-registrar within 7 days of the execution of the present agreement to sell. These are the material terms of the agreement to sell between the parties. The plaintiffs have acknowledged the defendant no. 1 as the owner of the suit property after the execution of this agreement to sell. The plaintiffs received the entire sale consideration and agreed to forgo all their rights in the property which has been transferred through the impugned sale- deed.
19. Defendant stated that plaintiffs deliberately cheated the defendant by making them part with not only money but also portions of premises which was then in the occupation of M/S Jainson Westend and was surrendered to them as per the compromise decree and as additional consideration for the agreement to sell. It appears that the plaintiffs were fully aware that there was a problem with DDA for getting the premises converted to freehold, and also since the premises were protected under the Delhi Rent Control Act and in order to get possession of certain portions of property under the occupation M/S Jainsons Westend the then tenants of plaintiffs they entered into agreement to sell and also received Rs. 1.75 lacs x 5 as consideration plus Rs. 6,870/- towards defendants share of conversion charges and Rs. 1,000/- each as free for each company for handling the matter of conversion M/S Jainsons Westend, tenant in fact duly surrendered certain portion of ground floor and first Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 19/32 floor of the premises in their occupation as a part of settlement and as additional consideration for the agreement to sell and other documents which eventually made defendant no. 1 and four other companies the owners of the property in question.
20. The plaintiffs have not sought any declaration or cancellation of the agreement to sell Ex.PW1/1 which they say have been rescinded. This aspect of rescind of agreement to sell will be dealt later on but since the defendant no. 1 came into the possession of the property by virtue of the agreement to sell in lieu of the entire consideration, the defendant no. 1 has a right to protect the property in question under the provision of section 53A of The Transfer of Property Act which reads as under:-
Section 53A in The Transfer of Property Act, 1882 53A. Part performance.--Where any person contracts to transfer for consider- ation any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the con- tract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be de- barred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or contin- ued in possession, other than a right expressly provided by the terms of the Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 20/32 contract: Provided that nothing in this section shall affect the rights of a trans- feree for consideration who has no notice of the contract or of the part perfor- mance thereof.
21. Therefore, in view of the protection which the defendant no. 1 has by virtue of this provision a simple declaration without seeking possession which is an ancillary relief does not seems to be maintainable.
22. Along with the agreement to sell Ex.PW1/1 dated 16/01/1995, the parties entered into an irrevocable power of attorney whereby the plaintiffs appointed Sh. Rakesh Jain, Ms. Neena Jain and Sh. Deepak Rathi as their attorney authorizing them to do certain acts, one of which was that in the event of the said vendors( i.e. plaintiffs) failing to execute the sale-deed in respect of 1/5th undivided share of the said property together with the rights mentioned and has provided in the said agreement to sell in the company's name and on their behalf independently to execute the sale-deed of their respective share, right, title and interest in the suit premises in favour of the vendees or the vendees or nominees and to get the sale-deed duly registered with the concerned Registrar of assurances and complete all formalities in connection thereon under the Indian Registration Act at the cost and expenses of the vendees. The plaintiffs executed this power of attorney on 16/01/1995 i.e. simultaneously with the agreement to sell. It means that together with an agreement to sell giving complete rights in the property to the defendant no. 1, the plaintiffs also appointed their agents to execute the sale deed in case they failed to do so. After the execution of power of attorney, the parties also entered into a compromise in the pending case wherein the compromise decree was passed on 21/04/1995 which is Ex.DW1/4. This compromise decree was passed in lieu of the statement given by the parties in the Ld. Court. That Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 21/32 compromise statement also shows that the plaintiffs have sold the property in question and are not left with any right, title or interest whatsoever in this property and they have received the full and final consideration of sale. By virtue of that compromise, the defendant in that suit has also surrendered certain portions of property to the plaintiffs.
23. It appears that after the agreement to sell, the execution of power of attorney and compromise decree, the plaintiffs had not executed the sale-
deed. One of the agents appointed by the plaintiffs Sh. Rakesh Jain has executed the sale-deed Ex.PW1/15 in favour of the defendant no. 1 on 10/06/2002. This sale-deed has matured the transfer of property, which was the subject matter of the agreement to sell Ex.PW1/15, power of attorney Ex.DW1/A and the compromise decree between the parties Ex.DW1/4. There is no dispute as to the authority of Rakesh Jain who has executed the sale- deed to so execute it. He was appointed as an agent by the plaintiffs and he has exercised this authority which has been duly given to him. Therefore, as far as the authority of Sh. Rakesh Jain relating to the execution of sale deed Ex.PW1/15 is concerned, there is no dispute as to the scope of this authority to execute the sale deed.
24. Now, coming to the reasons due to which the plaintiffs are seeking the declaration of the sale deed as null and void and its cancellation. The plaint in para 21 has mentioned the specific facts leading to fraud by virtue of which the plaintiffs want the reliefs of the present case.
25. Firstly, the plaintiffs claim the right to get the sale-deed declared as null and void and its cancellation on the ground that in the execution of the sale deed, the terms and conditions of the agreement to sell has been violated and therefore, the sale deed is not only void but has been fraudulently Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 22/32 executed. The terms and conditions of agreement to sell which the plaintiffs say have been violated are that the sale deed was to be executed only after the conversion of the property from lease hold to free hold and the vendees were deemed to be the owners of the property for all practical purposes only if the vendors failed to execute the sale-deed in respect of the said premises in favour of the vendees after the conversion. So the plaintiffs says that since the conversion of property from lease-hold to free hold was not done, therefore, the plaintiffs were not liable to execute the sale deed in favour of defendants and execution of sale-deed in violation of this term is fraudulent.
26. It is the case of the defendants that the defendant had duly performed its part of agreement not only by paying full consideration but also its share of conversion charges. Letter dated 06/04/1995 issued by the plaintiffs to the defendant no. 1 company showing demand of conversion charges and payment to be made to S.R. Khurana and Company's Chartered Accountant along with copy of cheques issued to S.R.Khurana and Company which are Ex.DW1/10 and Ex.DW1/11. A letter by S.R.Khurana and Company to defendants showing the receipt of conversion charges from defendant no. 1 for conversion of the property is Ex.DW1/12. The defendant no. 1 has also paid its share of conversion charges, the fact which has been admitted by the plaintiff after receipt of the conversion charges. It was for the plaintiffs to carry out their part of contract which they failed to perform on falls and fraudulent grounds. Therefore, the defendants have proved that whatever was to be done on their part to get the property converted from lease hold to free hold was done by them. Conversion of a property from lease-hold to free-hold and transfer of ownership without conversion is something between the lessor L & DO/DDA and the vendees and the plaintiffs who have divested themselves of the right, Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 23/32 title and interest in the property not only by virtue of the agreement to sell after rescinding the complete sale consideration and subsequently by the execution of sale-deed have no locus to challenge the same as the law estopps them from doing so.
27. The second ground on which it is said that the terms of agreement to sell are violated is that in view of the clause 14 of the agreement to sell the vendors under took to execute the irrevocable power of attorney in favour of the vendees simultaneously with the execution of the present agreement to sell and further undertake to get the said irrevocable power of attorney registered with the office of sub-registrar within 7 days of the execution of the agreement to sell. Although, the power of attorney was executed simultaneously with the agreement to sell but was not registered. It is one of the contention of plaintiffs that since the power of attorney was not registered, it violates the agreement to sell and therefore is no value in the eyes of law and since the power of attorney is no value in the eyes of law, Sh. Rakesh Jain, defendant no. 2 has no authority to execute the impugned sale-deed.
28. The registration of power of attorney although w was to done as mentioned in the agreement to sell but does not seem to be such a material requirement that in the absence of which the whole agreement to sell will become a nullity. The creation of agency is a contract and is governed by the provisions of Indian Contract Act. The law does not require the appointment of an agent by virtue of a registered document. Therefore, simply for the reasons that the power of attorney was unregistered, it cannot be said that the power of attorney has no value in the eyes of law. The power of attorney Ex.DW1/A is also an independent document which can be considered and interpreted to the exclusion of the agreement to sell.
Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 24/32
29. As already said that this sale between the parties is a result of three documents i.e. agreement to sell, power of attorney and compromise decree and the compromise decree and the power of attorney was never been revoked which could have been revoked by the plaintiffs under section 201 of Indian Contract Act, it cannot be said that the agents appointed under the power of attorney Ex.DW1/A loses their authority to act within the scope of their agency.
30. Secondly, the plaintiffs states that the agreement to sell dated 16/01/1995 between the parties stood rescinded on the date of filing of written statement by the plaintiffs in the suit for specific performance of the same agreement relating to the same property filed by the defendant no. 1 through defendant no. 2. The said agreement even otherwise had become void and non-existent for the facts and reasons as under:-
(I) the defendant no. 2 filed an affidavit dated 04/12/2002 by way of evidence as an examination in chief on behalf of defendant no. 1, in the court on 14/01/2003. Rakesh Jain did not make any statement to tender the said affidavit nor put himself to the test of cross-examination but sought adjournment for 06/02/2003 and 03/03/2003 on which date the said suit was dismissed as withdrawn on his statement.
(ii) Rakesh Jain did not make any reference to the sale deed in question nor furnished any particulars of the same in the said suit nor in the affidavit filed in the said suit which stands dismissed as withdrawn on 03/03/2003.
(iii) The said agreement had already ceased to exist as stated in the foregoing paras and was not in existence on the day the sale-deed is purported to have been executed by the defendant no. 2 as the matter was subjudice before the Court of Sh. Naipal Singh Ld. Addl. District Judge, Delhi., in the suit Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 25/32 filed by the defendant no. 1 itself against the plaintiffs.
31. It has been argued by the Ld. Counsel for the defendants that agreement to sell Ex.PW1/15 cannot be rescinded by the plaintiff through written statement that was filed on 03/08/1998. The said revocation was not valid and was barred by limitation. The agreement to sell cannot be rescinded simply by taking a plea in this regard in the written statement. The plaintiffs say that they have rescinded the contract on 03/09/1998 after stating this fact in their written statement. As far as the defence argument that the agreement cannot be rescinded is concerned, it has no force of law as an agreement can be rescinded at any time before the performance of the contract is complete and there is no limitation period or prescribed procedure for rescinding a contract. A party to an agreement may rescind the same either expressly or by implication and thereafter it shall be no longer binding on them. The determine factor is the intention of the parties and a party is discharged of his contractual obligations. Under Section 62 of the Indian Agreement Act, one of the mode of discharge from the contract is its rescission. A party to a contract can also unilaterally rescind the contract subject to the law relating to the damages for wrongful rescission but even if it is assumed that the tendering of the consideration amount along with the written statement rescinding agreement Ex.PW1/1 by the plaintiffs was a valid rescission of agreement to sell, it is clear that the plaintiffs had never revoked the power of attorney Ex.DW1/A nor has done anything to get the compromise decree Ex.DW1/4 set-aside. An agency can be terminated by the principal revoking his authority which plaintiffs could have revoked under the law U/S 201 of the Indian Contract Act which is permissible. The sale deed Ex.PW1/15 was executed by defendant no. 2 in favour of defendant no. 1 as a duly constituted attorney of the plaintiffs and Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 26/32 therefore, even if the agreement to sell is considered as rescinded, defendant no. 2 has full authority to execute the sale-deed in favour of the defendant no. 1 by virtue of that sale deed. A written agreement to sell is no pre-condition to enter into a transaction of sale of any immovable property and immovable property can be transacted even in the absence of agreement to sell and directly. Therefore, the rescission if any of the agreement to sell will have no effect on the execution of the sale-deed Ex.PW1/15. Moreover, the manner in which the agreement was stated to have been rescinded creates a doubt whether the act of the plaintiffs was sufficient to constitute the rescission of the agreement Ex.PW1/1. The plaintiffs only tendered the cheques as stated by them but they have received something more as a consideration from the defendants in lieu of this transaction of sale. The defendants had surrendered the certain portions of the tenancy under M/S Jainsons Westend which the plaintiff did not offer to restore to the defendants. The plaintiffs cannot be allowed to enrich themselves unjustly at the cost of the defendants. Therefore, I have not hesitation to assume that what the plaintiffs tendered was only a part consideration which may not be sufficient to infer a bona fide intention on their part to rescind the agreement to sell. Therefore, this argument of plaintiffs for cancellation of sale deed for this reason is not tenable in law.
32. As far as the other reasons relating to the conduct of the defendant no. 2 during the suit for specific performance of contract wherein he has not rendered has evidence and has withdrawn the same or has not disclosed about the execution of sale deed Ex.PW1/15, in my opinion, does not constitute the specific act of fraud making the agreement between the parties as void or voidable.
33. Thirdly, it is mentioned in the plaint that the said sale deed is Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 27/32 purported to have been executed by Rakesh Jain as attorney of the plaintiffs fraudulently whereas he was never empowered to execute any such sale deed by the plaintiffs in favour of the defendant no.1 since no notice whatsoever was ever sent by the defendants to the plaintiffs for the said purpose.
34. This is not sufficient reason to cancel the sale deed Ex.PW1/15 because there is no requirement of law to give a notice in writing to the plaintiffs/vendors regarding the execution of sale deed nor agreement to sell or even the power of attorney had so stipulated any such pre-condition before the execution of the sale-deed.
35. Fourthly, the reason proposed for cancellation of sale deed is that the power of attorney on the basis of which the sale deed has been executed, is not registered with the sub-registrar. This act itself is in violation of the terms and conditions of the agreement dated 16/01/1995.
36. I have already dealt with this contention and opined that this is not a material condition of sale and has no effect on the validity of power of attorney itself.
37. Fifthly, it is stated in the plaint that the said suit was filed by Rakesh Jain(defendant no. 2) himself on behalf of defendant no. 1 and had complete knowledge of the pendency of the said suit; Without prejudice to the foregoing facts, it is stated that the power of attorney itself is a void, in-effective document and any document executed in pursuance of the same, is also void and non-est; The defendants have not only suppressed the material and true facts but have also made false statement of facts in the sale deed itself and to the statutory authorities for the wrongful gain thereby causing serious injury to the rights, title and interest of the plaintiffs.
38. None of these reasons claimed for the cancellation of sale deed Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 28/32 Ex.PW1/15 or its adjudication as null and void are sufficient to cancel the validly executed sale deed. For cancellation of the document, it is necessary to prove it as void or voidable. Sale deed or agreement to sell or even the power of attorney is an agreement and in order to prove that it is a void agreement, it has to come within the ambit of section 24 to section 30 of the Indian Contract Act. The plaintiffs are unable to show the existence of any misrepresentation, forgery, force or any other factor to show that an agreement in which they have entered with the defendants are result of any fraud, force or misrepresentation. There are certain other things which are argued on behalf of the plaintiffs like the defendants have altered the nature of the property by demolishing the walls of ground and first floor portion of the property. The case of the defendant is that the opening in the walls existed even in the year 1974 as is clear from the letter dated 10/07/1974 Ex.PW1/DX1 and its undated reply by the plaintiffs Ex.PW1/DX3. In fact, the plaintiffs filed a suit in this regard subsequently and prior to the said agreement to sell the parties had agreed that the tenants can carry out the alteration/addition in the suit property subject to the deposit of 5 lacs as security by Jainsons Westend and the letter dated 23/08/1994 issued by the plaintiffs is Ex.PW1/DX4. Letter dated 25/08/1994 of Jainsons Westend agreeing to send the cheque of Rs. 5 lacs in favour of Shanti Devi is exhibited as Ex.DW1/13. Letter dated 28/08/1994 issued by Jainsons Westend to the plaintiffs paying a sum of Rs. 5 lacs as security is Ex.PW1/DX5. The said cheque was duly encashed and the certificate issued by the bank is Ex.DW1/14. Moreover, there could have been no breach of the agreement to sell on these grounds because the personal meetings for the alteration in the building and subsequent advancing of security took place much earlier to the time when the agreement to sell was executed i.e. 15/01/1995 Smt. Shanti Devi Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 29/32 in fact returned the sum of Rs. 5 lacs given as security as mentioned above on 17/01/1995.
39. Moreover, once a person becomes the owner of a property, he has right to act in any manner whatsoever in respect to that property. Any alteration in the property, if had violated the conditions of the lease, will have the bearing on the relations between lessor and vendees and not on the plaintiffs. It is for the lessor to say or to act or to take action in case of breach of the conditions of lease. The plaintiffs for sure have no locus in that regard. Although, property is lease-hold property and the question was raised regarding the power of the plaintiffs to sell the property to the defendants being a lessor but in this regard, it is suffice to say that once the plaintiffs have transferred the property by an act in a manner in which he may not be so empowered to act, he is further estopped from questioning any transfer made by him voluntarily and for full consideration and grievance, if any, can be raised by the lessor i.e. L & DO/DDA and not the plaintiffs. Plaintiffs have already feathered their nests by receiving the complete consideration and being divested of any rights/personal interest in the property cannot question any act done by the defendant no. 1 in relation to the property in question as owner of that property.
ISSUE NO. 2.
Whether the suit is barred by limitation in view of preliminary objection no. 2 of the written statement? OPD.
40. The issue of limitation has been raised by the defendants in their written statement alleging that the plea taken by the plaintiffs with regard to alleged cancellation/revocation of the Agreement to Sell dated 15/01/1995 in the written statement filed in court on 03/09/1998, is not maintainable in as much as the alleged cancellation, if at all, is barred by limitation, the Agreement Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 30/32 to Sell having been executed on 16/01/1995. The notice of alleged Cancellation, if at all, should have been served within three years of that date. The agreement to sell dated 16/01/1995 validly subsisted during the execution of the sale deed and the sale deed dated 10/06/2002 conferred lawful ownership on defendant no. 1. Without prejudice, and in the alternative, it is submitted that Agreement to Sell was coupled with full consideration and possession and hence the ownership in any case stood transferred to the Answering Defendants.
41. It is the case of the plaintiffs that plaintiffs have filed the suit only for cancellation of sale-deed and therefore the period of limitation has to be reckoned from the date of execution of the sale-deed and has nothing to do with the agreement to sell dated 16/01/1995.
42. I have given my thoughtful consideration to this issue. The only relief which has been sought by the plaintiffs in this suit is the declaration of the sale-deed as null and void and its cancellation. The plaintiffs have not sought any declaration regarding the agreement to sell and therefore, the date of Agreement to Sell between the parties is irrelevant to compute the period of limitation.
43. Under Article 58 of the Limitation Act, 1963, the period of limitation for getting the declaration is three years. The issue of limitation starts when the right to sue accrues. The right to sue in case of declaration of sale-deed as null and void will accrue from the date from which the plaintiff would have come to know about the execution of the sale-deed. It is the case of the plaintiff that he was not told about the execution of the sale-deed by the defendants and he himself has discovered the execution of sale-deed by inquiring the matter through MCD subsequently.
Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 31/32
44. The date of execution of sale deed Ex.PW1/15 is 10/06/2002. The present suit was filed on 30/05/2005. Therefore, even if we reckon the period of limitation from the date of execution of the sale-deed i.e. 10/06/2002, it is clear that the suit which has been filed on 30/05/2005 has been filed within the period of limitation of three years and therefore is well within in the period of limitation. Therefore, in any circumstances, it cannot be said that the suit of the plaintiff has not been filed within the period of limitation. Although, the burden to prove this issue was upon the defendants but since the suit is filed within the period of limitation computing from the date of execution of the sale-deed, no other additional fact is required to be proved in this case. The agreement to sell dated 16/01/1995 has nothing to do for the purpose of calculation of limitation period and therefore it is decided that the suit of the plaintiffs is within the period of limitation. This issue is accordingly decided in favour of the plaintiffs.
ISSUE NO. 4.
Relief.
45. Having all said and done, I am of the opinion that plaintiff case is nothing but a forlorn hope to succeed. The discussion on the aforesaid issues leads to the conclusion that the plaintiffs have no valid grounds to get the declaration and cancellation they have sought in this case. In the result, the suit of the plaintiffs is liable to be dismissed.
46. Hence, dismissed with costs.
Announced in the open court SAMAR VISHAL
On 30.11.2016 Civil Judge-10 (Central)
30.11.2016/Delhi
Suit No. 161/2005 S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 32/32