Delhi District Court
Shri Ashok Garg vs ) Shri Nanak Chand (Deceased) on 17 September, 2014
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Unique Case ID :- 02401C0774292007
Suit No.-439/2007
Shri Ashok Garg
S/o Late Shri Jagan Nath
R/o B-2B/7, Janak Puri,
Delhi. ....Plaintiff
Versus
1) Shri Nanak Chand (Deceased)
Through Legal Representatives)
i) Smt. Geeta Kalra
W/o Late Shri Nanak Chand
R/o B-4/17, Paschim Vihar,
Delhi-110063.
ii) Shri Kamal Kalra
S/o Late Shri Nanak Chand
R/o B-4/17, Paschim Vihar,
Delhi-110063.
iii) Smt. Harsha Katahra
D/o Late Shri Nanak Chand
R/o BN-58, East Shalimar Bagh,
Delhi-110088.
iv) Poonam
D/o Late Shri Nanak Chand
R/o B-4/17, Paschim Vihar,
Delhi-110063.
2.) Smt. Geeta Garg
W/o Shri Ashok Garg
R/o B-2B/7, Janak Puri,
New Delhi-110058.
3.) Shri Rajat Bahl
S/o Shri Subhash Bahl
R/o B-52, Bali Nagar,
Suit No. 439/2007 Page..... 1/17
New Delhi.
4.) Shri Naresh Kumar
S/o Shri Wazir Chand
R/o G-8, Mohan Garden,
Uttam Nagar, New Delhi. ....Defendants
Date of institution of the suit : 09.08.2007
Date of reserving Judgment : 30.08.2014
Date of pronouncement : 17.09.2014
JUDGMENT
1. Vide this judgment I shall dispose off the suit for Declaration and Permanent Injunction filed by the plaintiff against the defendants.
Brief Facts As Per Plaint
2. Brief facts necessary for disposal of the present suit as per the plaint are herein as under:-
The plaintiff is running a factory at Village Nawada, Delhi and is engaged in the business of manufacturing of electrical stamping. The defendant no.1 is the sole proprietor of M/s Kalra Steel Industries of Hindustan and is running his business in Village Nawada itself and engaged in the business of steel fabrication.
3. In the year 1998, the defendant no.1 offered to sell a piece of land area measuring 826 Sq. Yards, which is part of mustatil No.79, Killa No.13(1-10) and 14(2-11) to the plaintiff for a sale consideration of Rs.1,20,000/-. The plaintiff agreed to purchase the same and he made the payment vide cheque dated 10.07.1998 in lieu of consideration amount and the defendant no.1 Suit No. 439/2007 Page..... 2/17 executed and got registered the irrevocable GPA, Will, Agreement to sell, possession letter, receipt, affidavit, all dated 10.07.1998 in favour of the plaintiff and handed over the actual physical possession of the vacant land to the plaintiff.
4. The defendant no.1 again approached the plaintiff in January, 2000 and expressed his desire to sell another piece of land area measuring 670 Sq. Yards adjacent to the aforesaid property. The said property was also a part of Mustatil No.79, Killa No.13 (1-10) and 14 (2-11). The plaintiff agreed to purchase the same and an amount of Rs.1,00,000/- was settled as the sale consideration. The plaintiff vide cheque dated 08.02.2000 made payment to the deceased defendant no.1 and the deceased defendant no.1 executed and got registered the irrevocable GPA, Will, Agreement to sell, possession letter, receipt, affidavit, all dated 08.02.2000 in favour of the plaintiff. The defendant no.1 also handed over his original sale deed dated 07.02.1988 including above said both pieces of lands.
5. The said property was subsequently sold and transferred by the plaintiff to the defendant no.2 on 14.08.2000 after receiving valuable sale consideration and executed GPA, Will, agreement to sell, receipt, possession letter, affidavit in favour of the defendant no.2 and handed over the vacant physical possession to the defendant no.2. The defendant no.2 further sold and transferred the above said property to the defendant no.3 and the defendant no.4 and executed GPA, Will, agreement to sell, possession letter, receipt, affidavit in March, 2004.
Suit No. 439/2007 Page..... 3/17
6. It is further submitted that after selling the property to the plaintiff, the intention of the defendant no.1 became dishonest and he filed a forged and fabricated suit for permanent injunction and mandatory injunction praying a decree for cancellation of GPAs and Wills dated 10.07.1998 and 08.02.2000 executed by the defendant no.1 in favour of the plaintiff and the said suit was dismissed by Ld. CJ on 18.05.2002 being non-maintainable. The defendant no.1 preferred the appeal and the suit was remanded back by the Ld. Appellate Court and the defendant no.1 was allowed to amend the plaint. The said suit is still pending, however no interim relief has been granted to the defendant no.1 in that suit. The said suit was filed upon the false and frivolous facts. When the defendant no.1 could not get relief in the above said civil suit, he revoked the irrevocable GPAs and Wills dated 10.07.1998 and 08.02.2000 by registered revocation deed both dated 27.08.2004. No notice was issued by the defendant no.1 to the plaintiff before the outcome of the said civil suit. Further, a copy of deed of revocation of GPAs and Wills dated 27.08.2004 along with letter addressed to sub-registrar in respect of GPAs and Wills dated 10.07.1998 and 08.02.2000 was sent by the defendant no.1 to the plaintiff. It is the claim of the plaintiff that GPAs and Wills dated 10.07.1998 and 08.02.2000 were irrevocable and were executed on receiving of valuable of sale consideration. The defendant no.1 had no right to revoke the GPAs and Wills as he had already sold properties to the plaintiff.
7. A prayer has been made to pass the decree of declaration be passed thereby declaring the registered deed of revocation of GPA and Will dated Suit No. 439/2007 Page..... 4/17 27.08.2004 as null and void. A prayer has also been made for decree of permanent injunction restraining the defendant no.1 or his LRs from canceling the registered GPAs and Wills dated 10.07.1998 and 08.02.2000.
Defence of the Defendants
8. Defendant no.1 expired during the pendency of the case. His LRs were brought on record. Written Statement was filed by the deceased defendant no.
1. It was inter alia contended that the deceased defendant no.1 had taken a loan of Rs.2,20,000/- from the plaintiff to meet out his financial needs and had executed the alleged GPAs and Wills dated 10.07.1998 and 08.02.2000 respectively as security of the said loan amount only. Later on deceased defendant no.1 returned the said loan amount to the plaintiff and demanded the said documents back from the plaintiff but the plaintiff avoided on one pretext or the other and sold the said property to the defendants no.2, 3 & 4 and hence the deceased defendant no.1 was constrained to revoke and cancel the GPAs and Wills dated 10.07.1998 and 08.02.2000 in the year 2004.
9. It was further contended that the suit was also pending in the court of Ld. ADJ. The plaintiff had no right to sell the property to anyone. It was denied that the intention of the deceased defendant no.1 became dishonest. It was further submitted that the plaintiff was duly informed about the revocation of the said documents by the deceased defendant no.1. Hence, dismissal of the suit was prayed by the deceased defendant no.1.
10. The defendants no.2 to 4 were proforma parties. They chose not to Suit No. 439/2007 Page..... 5/17 contest the case and accordingly, they were proceeded ex-parte.
ISSUES
11. On 12.03.2008, the following issues were framed in the present case by the Ld. Predecessor.
1) Whether the plaintiff is entitled for the relief of declaration/cancellation of documents as prayed for? OPP
2) Whether the plaintiff is entitled for equitable relief of permanent injunction as prayed for? OPP
3) Relief Evidence of the Parties
12. In evidence, the plaintiff examined himself as PW-1 who tendered his evidence by way of affidavit as Ex.P1. He has further relied upon the following documents.
Ex.PW-1/1, certified copy of GPA dated 10.07.1998 in favour of the plaintiff by the deceased defendant no.1.
Ex.PW-1/2, certified copy of Will dated 10.07.1998 in favour of the plaintiff by the deceased defendant no.1.
Ex.PW-1/7, certified copy of GPA dated 08.02.2000 in favour of the plaintiff by the deceased defendant no.1.
Ex.PW-1/8, certified copy of Will dated 08.02.2000 in favour of the plaintiff by the deceased defendant no.1.
Suit No. 439/2007 Page..... 6/17 Ex.PW-1/14, certified copy of Will dated 14.08.2000 in favour of the defendant no.2 by the plaintiff.
Ex.PW-1/15, certified copy of Will dated 14.08.2000 in favour of the defendant no.2 by the plaintiff.
Ex.PW-1/20, certified copy of GPA dated 14.08.2000 in favour of the defendant no.2 by the plaintiff.
Ex.PW-1/21, certified copy of GPA dated 14.08.2000 in favour of the defendant no.2 by the plaintiff.
Mark A-1, copy of agreement to sell dated 10.07.1998. Mark A-2, copy of receipt of acknowledging money by the deceased defendant no.1 dated 10.07.1998.
Mark A-3, copy of affidavit of deceased defendant no.1 dated 10.07.1998.
Mark A-4, copy of possession letter dated 10.07.1998. Mark A-5, copy of agreement to sell dated 08.02.2000. Mark A-6, copy of receipt of acknowledging of Rs.1 lac by the deceased defendant no.1 dated 08.02.2000.
Mark A-7, copy of the affidavit of the deceased defendant no.1 dated 08.02.2000.
Mark A-8, copy of possession letter dated 08.02.2000. Mark A-9, copy of agreement to sell by the plaintiff in favour of the defendant no.2 dated 14.08.2000.
Mark A-10, copy of receipt of acknowledging of payment of Rs.
Suit No. 439/2007 Page..... 7/17 1,50,000/- in favour of the defendant no.2 by the plaintiff dated 14.08.2000.
Mark A-11, copy of affidavit of the plaintiff transferring the rights in favour of the defendant no.2 dated 14.08.2000.
Mark A-12, copy of possession letter by the plaintiff showing the handing over the possession to the defendant no.2 dated 14.08.2000.
Mark A-13, copy of agreement to sell by the plaintiff in favour of the defendant no.2 dated 14.08.2000.
Mark A-14, copy of receipt of acknowledging the payment of Rs. 1,20,000/- by the plaintiff to the defendant no.2 dated 14.08.2000.
Mark A-15, copy of affidavit of the plaintiff in favour of the defendant no.2 dated 14.08.2000.
Mark A-16, copy of possession letter showing the handing over the possession to the defendant no.2 by the plaintiff dated 14.08.2000.
Mark A-17, copy of revocation deed of GPA dated 27.08.2004. Mark A-18, copy of revocation deed of Will dated 27.08.2004. Mark A-19, copy of letter to sub-registrar.
Mark A-20, copy of revocation deed of GPA dated 27.08.2004. Mark A-21, copy of revocation deed of Will dated 27.08.2004. Mark A-22, copy of letter to sub-registrar by deceased defendant no.1.
13. The plaintiff also examined Shri R. K. Thakur, LDC, from the office of Sub-Registrar-II, Basai Dara Pur, New Delhi as PW-2 who proved the documents Ex.PW-2/1 (Colly) which were copies of GPAs and Wills dated Suit No. 439/2007 Page..... 8/17 10.07.1998 and 08.02.2000 executed in favour of the plaintiff by the deceased defendant no.1 and copies of GPAs and Wills dated 14.08.2000 executed in favour of the defendant no.2 by the plaintiff.
14. On the other hand, the defendant no.1 (since deceased) through LRs examined Shri Kawal Kalra S/o Late Shri Nanak Chand Kalra as DW-1 who tendered his evidence by way of affidavit as Ex.DW-1/A. This witness relied upon the following document.
Ex.DW-1/1 (OSR), copy of GPA executed in favour of Kawal Kalra i.e. LR of the deceased defendant no.1 by the other LRs of the deceased defendant no.1.
15. I have heard ld. counsels for the parties and perused the record. My issue wise findings are herein as under:-
Findings on Issues
16. ISSUE NO.1 & 2 :- 1) Whether the plaintiff is entitled for the relief of declaration/cancellation of documents as prayed for? OPP
2) Whether the plaintiff is entitled for equitable relief of permanent injunction as prayed for? OPP Both these issues are inter-connected and hence taken up together. The burden to discharge both these issues was upon the plaintiff. The plaintiff has relied upon the documents Ex.PW-1/1, Ex.PW-1/2, Ex.PW-1/7 and Ex.PW-1/8 which are GPAs and Wills dated 10.07.1998 and 08.02.2000 executed by the deceased defendant no.1 in favour of the plaintiff. PW-2 Shri Suit No. 439/2007 Page..... 9/17 R. K. Thakur, LDC proved the registration of all the above said documents i.e. GPAs and Wills dated 10.07.1998 and 08.02.2000. In fact, the registration of the above said documents i.e. GPAs and Wills with regard to the properties ad-measuring 826 Sq. Yards and 670 Sq. Yards part of mustatil No.79, Killa No.13(1-10) and 14(2-11) were not disputed by the deceased defendant no.1 also. The only defence of the deceased defendant no.1 was that the deceased defendant no.1 had taken a loan for Rs.2,20,000/- to meet out his financial needs and had executed alleged GPAs and Wills as security of the said loan amount and later on the deceased defendant no.1 returned the said loan amount to the plaintiff and demanded the documents from the plaintiff. The plaintiff avoided the return of the same. The LRs of the deceased defendant no.1 have failed to lead any evidence to show that any loan was taken by him. If at all loan was taken then no date or time or period of loan has been mentioned. Presuming not admitting any loan was taken, then no date or time or period has been mentioned about return of the said loan. No proof of return of the said loan has been adduced. Further, in the cross examination of DW-1 dated 28.04.2014, it was specifically admitted by DW-1 that it was correct that Nanak Chand i.e. deceased defendant no.1 received a sum of Rs. 1,20,000/- from the plaintiff on 10.07.1998 and the deceased defendant no.1 executed GPA, Agreement to Sell, Receipt, Will, Affidavit in favour of the plaintiff on 10.07.1998. After receiving the above said sale consideration of Rs.1,20,000/-, he also admitted that possession of the property was given to the plaintiff on the same day. This witness tried to improve his case by again Suit No. 439/2007 Page..... 10/17 saying that only possession letter was given and possession was not given. Upon further cross examination by ld. Counsel for the plaintiff his improvement fell on the ground when he deposed that he did not have possession of the said property and possession of the property was taken by the plaintiff. Same was his reply with regard to the receiving of sum of Rs. 1,00,000/- from the plaintiff on 08.02.2000 and further execution of GPA, Agreement to Sell, Receipt, Will and Affidavit in favour of the plaintiff. He further deposed that he had no knowledge whether the deceased defendant no. 1 had issued any notice to the plaintiff while cancelling the GPAs and Wills dated 10.07.1998 and 08.02.2000. Thereafter came the most demolishing deposition of DW-1 where he deposed that it was correct that they had not repaid any amount of Rs.2,20,000/-. He further volunteered that they tendered the said amount to the plaintiff but the plaintiff refused to accept the same. His deposition goes on to prove that presuming not admitting even if any loan was taken by the deceased defendant no.1 but that was not repaid at all by the deceased defendant no.1. Hence, LRs of the deceased defendant no.1 have miserably failed to prove that any loan was repaid by the deceased defendant no.1 to the plaintiff or for that matter, any loan was taken by the deceased defendant no.1.
17. Moreso, a perusal of the alleged GPAs and Wills clearly shows that intention of the deceased defendant no.1 was with regard to execution of irrevocable GPA after receiving the consideration of the above mentioned properties. It is settled that as per section 92 of Indian Evidence Act, 1872, Suit No. 439/2007 Page..... 11/17 when the terms are written, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting the terms of document. Hence, LRs of the deceased defendant have miserably failed to prove their defence of loan. Accordingly, upon the basis of GPAs and other documents i.e. receipts etc. (not disputed), it is proved that GPAs & Wills dated 10.07.1998 & 08.02.2000 were executed after receiving the consideration by the deceased defendant. The claim of the plaintiff is that revocation of the GPAs and Wills dated 10.07.1998 and 08.02.2000 be declared as null and void in view of the irrevocable GPA, Will, receipt, possession letter, affidavit in favour of the plaintiff. Defence of the deceased defendant no.1 is that he executed the revocation of the above said GPAs and Wills dated 10.07.1998 and 08.02.2000 by revocation deed dated 27.08.2004 & hence the plaintiff has left with no rights over the properties after revocation of GPAs and Wills dated 10.07.1998 and 08.02.2000.
18. Now, question remains to be decided whether revocation deed dated 27.08.2004 has any effect on cancellation of GPAs and Wills dated 10.07.1998 and 08.02.2000 in the light of circumstances that the GPAs and Wills dated 10.07.1998 and 08.02.2000 were executed by the deceased defendant no.1 after receiving the consideration of the properties. In this regard, in the case titled as Karamvir Vs. Man Singh & Ors., in RSA No. 27/2014 dated 13.05.2014, passed by Hon'ble High Court of Delhi is quite relevant, wherein the Hon'ble Mr. Justice Valmiki Mehta while discussing effect of GPA, Will in consideration of money has held that once the power of Suit No. 439/2007 Page..... 12/17 attorney is a registered power of attorney, this document can surely be looked into in terms of Section 202 of the Contract Act, and which provides for irrevocability of a power of attorney given for consideration and such a GPA cannot be cancelled. The relevant observations of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr., (183) 2011 DLT 1 (SC) was also discussed and it was held that such kind of attornies, where they were coupled with interest are irrevocable. It was also held by the hon'ble court that an attorney holder may also execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
19. Further, in the case titled as Hardip Kaur Vs. Kailash & Anr., 193 (2012) DLT 168, Hon'ble Mr. Justice J. R. Midha, while dealing with the similar issue, has held herein as under:-
"Power of Attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon death of principal and purchaser may not be classical owner as would be an owner under registered sale deed but surely he would have better rights / entitlement of possession than the person who is in actual physical possession."
20. In the case titled as Shri Bidhan Chand Biswas (since deceased) through LRs Vs. Prakash Chand Bansal in RSA No.131/2014 dated 20.05.2014, Justice Mr. Valmiki Mehta has held herein as under:-
"The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement Suit No. 439/2007 Page..... 13/17 under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney. Section 202 of the Contract Act would make a power of attorney executed for consideration irrevocable. It cannot be cancelled."
21. In the case of Ramesh Chand Vs. Suresh Chand, 188 (2012) DLT 538, the Hon'ble High Court was pleased to reiterate that by virtue of the provisions of Section 202 of the Contract Act, a power of attorney executed for consideration would remain valid even after the death of the executants because the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants. Section 202 of the Contract Act provides that such an agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. After the execution of the set of documents dated 22.10.1997, there was no further contract entered into between the plaintiff no.2 and Smt. Dharamwati Shukla within the meaning of Section 202 of the Contract Act so as to enable her to have cancelled the power of attorney executed by her in favour of plaintiff no.
2. The cancellation deeds dated 09.05.2001 executed by Smt. Dharamwati Shukla cannot be considered to be a contract within the meaning of Section 202 of the Contract Act as the plaintiff no.2 was not a party to the same. Thus in the opinion of this court, the cancellation deeds Ex.PW-4/1 dated 04.05.2001 and Ex.PW-4/3 dated 09.05.2001 would have no effect on the set Suit No. 439/2007 Page..... 14/17 of documents executed by Smt. Dharamwati Shukla in favour of the plaintiff no.2. The rights created in favour of the plaintiff no.2 in respect of the suit property would remain unaffected. I completely agree with the aforesaid conclusions of the first appellate court including for the reason that documents by which rights in the suit property are transferred are contractual documents and contractual documents can only be nullified by means of contractual documents i.e. it is not open to one party unilaterally to cancel the contractual documents by which rights are created in an immovable property in favour of the other party."
22. Applying the above discussed principles on the facts and circumstances of the present case, I am also of the view that the deceased defendant no.1 had executed the duly registered GPAs and Wills dated 10.07.1998 and 08.02.2000 in favour of the plaintiff for consideration and hence in view of the section 202 of Contract Act, such an agency in the absence of express, contract cannot be terminated to the prejudice of such interest. Revocation of the GPAs and Wills by the deceased defendant no.1 could not have been done validly without the express contract. The rights created in favour of the plaintiff by virtue of GPAs and Wills dated 10.07.1998 and 08.02.2000 would remain intact and ineffective and revocation deed shall have no effect on the registration of GPAs and Wills dated 10.07.1998 and 08.02.2000. Hence, the plaintiff is entitled for decree of declaration against the defendant no.1 (since deceased) through LRs and it is directed that both the registered deeds of revocation both dated 27.08.2004, vide which the GPAs and Wills dated Suit No. 439/2007 Page..... 15/17 10.07.1998 and 08.02.2000 in respect of a piece of land area measuring 826 Sq. Yards, which is part of mustatil No.79, Killa No.13(1-10) and 14(2-11) and in respect of a piece of land area measuring 670 Sq. Yards which is also a part of Mustatil No.79, Killa No.13 (1-10) and 14 (2-11) respectively were revoked, be declared as null and void. The plaintiff is further entitled for decree of permanent injunction restraining the LRs of the deceased defendant no.1 from cancelling the registered GPAs and Wills dated 10.07.1998 and 08.02.2000 executed by the deceased defendant no.1 in favour of the plaintiff in respect of a piece of land area measuring 826 Sq. Yards, which is part of mustatil No.79, Killa No.13(1-10) and 14(2-11) and in respect of a piece of land area measuring 670 Sq. Yards which is also a part of Mustatil No.79, Killa No.13 (1-10) and 14 (2-11) respectively. Thus, the issues no.1 & 2 are decided in favour of the plaintiff and against the defendant no.1 (since deceased) through LRs.
23. RELIEF:-
In view of the above discussion and findings given on aforesaid issues, the suit of the plaintiff is decreed with costs. The plaintiff is entitled for decree of declaration against the defendant no.1 (since deceased) through LRs and accordingly the registered deeds of revocation both dated 27.08.2004, vide which the GPAs and Wills dated 10.07.1998 and 08.02.2000 in respect of a piece of land area ad-measuring 826 Sq. Yards & 670 Sq. Yards (respectively), which is part of mustatil No.79, Killa No.13(1-10) and 14(2-11) were revoked, are declared as null and void. The plaintiff is further Suit No. 439/2007 Page..... 16/17 entitled for decree of permanent injunction thereby restraining the LRs of the defendant no.1 from cancelling the registered GPAs and Wills dated 10.07.1998 and 08.02.2000 executed by the deceased defendant no.1 in favour of the plaintiff in respect of a piece of land area measuring 826 Sq. Yards & 670 Sq. Yards (respectively), which is part of mustatil No.79, Killa No. 13(1-10) and 14(2-11). Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Announced in the open court (RACHNA TIWARI LAKHANPAL) on 17.09.2014 SCJ/RC(WEST)/ DELHI Suit No. 439/2007 Page..... 17/17