Delhi District Court
Suit No. 11769/2016 Rajinder Mohan & Ors vs M/S Anz Grindlays Bank & Ors Page No. 1 Of ... on 5 September, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
New CS No. 11769/2016
In re :
1.Shri Rajinder Mohan
Karta, Rajinder Mohan HUF,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
2. Smt. Saroj Bala,
W/o Shri Rajinder Mohan,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
3. Miss Ritu,
D/o Shri Rajinder Mohan,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
4. Shri Vikram Pratap
S/o Shri Rajinder Mohan,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
5. Shri AnilKumar,
Karta, Anil Kumar HUF,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
6. Smt. Kamna,
W/o Sh. Anil Kumar,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001
7. Master Aditya,
S/o Shri Anil Kumar
620, Antrikash Bhawan, 22
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 1 of 37
Kastura Gandhi Marg,
New Delhi-110001
8. Smt. Sudershan Kumari,
W/o Shri B. R. Kamal,
620, Antrikash Bhawan, 22
Kastura Gandhi Marg,
New Delhi-110001 ...... Plaintiffs
Versus
1.M/s ANZ Grindlays Bank
(Now known as Standard Chartered Grindlays Bank Ltd)
Mercantile House,
15, Kasturba Gandhi Marg,
New Delhi-110001
2. M/s New Delhi Hotels Ltd.
Regd., Office Hotel Ambassador,
Sujan Singh Park,
New Delhi-110003
3. Shri O. P. Goel (Since deceased)
through Lrs.
(i) Ms. Seema Goel (Widow & Deft. no. 9.
in her individual capacity)
(ii) Sh. Ashwin Goel (Son)
(iii) Sh. Akash Goel (Son)
(iv) Sh. Sunil Goel (Son)
All are major and resident of 61/11, Ramjas Road, Karod Bagh,
New Delhi-110005.
4. Shri Hira Lal Aggarwal,
R/o E-111, Kamla Nagar,
Delhi.
5. Shri Shanti Lal Jethanbhai Ray,
R/o A-1/5, Safdarjung Enclave,
New Delhi
6. Shri Bijan Bhatacharya,
R/o J-109A, Laxmi Nagar
Delhi-110092
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7. M/s Rational Enterprises
(Prop. O. P. Goel Trust)
(Earlier defendant N.8)
Managing Trustee Shri O. P. Goel
61/11, Ramjas Road,
Karol Bagh, New Delhi-110005.
8. Smt. Seema Goel,
W/o of Late O. P. Goel,
(Earlier defendant No.9)
R/o 61/11, Ramjets Road,
Karol Bach, New Delhi-110005. ...... Defendants
Suit for Possession by Ejectment of Defendant no. 1
Date of institution of present suit : 24.08.1995
Date of receiving in this court : 23.02.2016
Date of reserving order : 19.08.2016
Date of Judgment : 05.09.2016
JUDGMENT
This judgment shall dispose of the suit filed by Plaintiff against defendants seeking decree of possession by ejectment of Defendant no. 1 and recovery of arrears of rent.
Plaintiffs' Version
1. In very brief, case of the plaintiffs is that Defendant No. 2 M/s New Delhi Hotels Ltd. is the builder/promoter of multi-storey building known as Mercantile House, 15, Kasturba Gandhi Marg, New Delhi. Defendant No.3 as proprietor of M/s A C Goel Distributing Company on 15.11.1978 booked space on the first floor within the proposed multstorey building against deposit of certain amount. Subsequently, defendant no. 3requested defendant No. 2 for treating the part of the said deposit as deposit on the part of his wife Smt Seema Goel Defendant No.8 (originally Defendant No.9) as booking amount for reserving a space in the name of his wife also on the first floor within the said proposed building. Defendant No.2 issued letters of formal allotments of flat No.9 and 11 in favour of M/s A C Goel Distributing Company and Smt. Seema Goel respectively. Defendant No.8 Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 3 of 37 Smt. Seema Goel and defendant No.3 Sh. O.P Goel (as proprietor of M/s A C Goel Distributing Company) by their respective letters dt 10.06.1982 nominated defendant No.7 (originally defendant No.8) M/s Rational Enterprises as their nominee in respect of Flats No. 9 and 11, 1 st Floor in the said multstorey building Mercantile House. Said request was accepted by defendant No.2 and flats were recorded in the records of builder as Flat No. 109 and 111 in the name of M/s Rational Enterprises (proprietor O.P.Goel Trust) through manging trustee Sh O.P.Goel.
2. It is pleaded that M/s O. P. Goel Trust defendant No.11 (now deleted as its period expired in the year 1997) was founded on 22.03.1979 by Sh. Brijinder Kumar Gupta of Alwar, Rajasthan as settler with Sh. O. P. Goel (defendant No.3), Sh Heera Lal Agarwal (defendant No.4) and Sh. Shanti Lal Jethabhai (defendant No.5) as trustees with trust fund of Rs 15,000/- for the benefits of three sons of Sh O. P. Goel namely Sunil Goel, Ashwini Goel and Akash Goel with 33, 33, and 34 percent interest respectively. As per plaintiff this trust is only a cloak, mask and veil for Sh. O. P. Goel who was its whole and sole and the real owner of the properties.
3. On 13.03.1991 defendant No.7 M/s Rational Enterprises as lessor leased out Flats No. 109 and 111 to defendant No.1 M/s ANZ Grindlays Bank Ltd ( now Standard Chartered Grindlays Bank Ltd.) @ Rs 40/- per sq. meter for a period of three years w.e.f. 31.08.1990 with option of renewal w.e.f 01.08.1993 with hike of 20% in the last paid rent and was further renewal from 01.08.1996 with 20% hike in the last paid rent.
4. Sh. Rajinder Mohan (individual), Karta of M/s Rajinder Mohan HUF, Mrs. Saroj Bala, Miss Ritu, Sh. Vikram Pratap, wife and children of Rajinder Mohan, Amil Kumar (Individual) and Karta of Amil Kumar HUF, Ms. Kamna Kumar, Master Aditya, wife and children of Sh. Amil Kumar and his mother Sm. Sudershan Kumari vide agreement dated 14.02.1992 constituted an association of Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 4 of 37 persons namely, Vikram Aditya & Associates to jointly buy and own property and hold the same as co-owner and also to share the rental incomes therefrom as co- owner. Later vide co-ownership agreement dated 01.04.1992 Sh. Rajinder Mohan (Individual) and Sh. Amil Kumar (Individual) withdrew from the said association leaving the rest of them as members of association with equal shares. All the members of the association have executed registered general power of attorneys dated 20.05.1991, 06.03.1995 and 10.05.1995 in the favor of Sh. Rajinder Mohan authorizing him inter-alia to act and represent them in all transaction and institute, sign and verify the pleadings.
5. On 1.11.1993 Sh O.P.Goel for and on behalf of defendant No.7 M/s Rational Enterprise, proprietor and managing trustee O. P. Goel Trust received a sum of Rs 7,54,096/- from M/s Vikram Aditya & Associates through its co-owner Sh. Rajinder Mohan vide pay order No. 859536 dated 01.11.1993 drawn at State Bank of India, Connaught Circus, New Delhi in favour of M/s Rational Enterprises towards full and final consideration against the sell of all their right, title and interest in the office Flat No. 109, measuring super area 712 sq. mtr on the first floor in commercial multistorey building Mercantile House, 15 Kasturba Gandhi Marg, New Delhi (hereinafter referred to as suit property) and executed Receipt-Cum- Declaration to the said effect duly witnessed by Sh. Sunil Goel one of the beneficiary of the trust and thereby made plaintiffs (M/s Vikram Aditya & Associates) entitled to the rent from defendant No. 1 w.e.f 1.11.1993 in respect of the suit property.
6. After sell of the suit property, defendant No.3 (since deceased) accompanied Sh Rajinder Mohan to the office of the defendant No.2, intimated it about the factum of sell and got plaintiffs nominated as nominee of defendant No.7. Defendant No.2 accepted the nomination and endorsed the original Flat Buyer Agreement in favour of plaintiffs and formally intimated the defendant No.7 about endorsement having been made at the request of Sh. O. P. Goel and also made Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 5 of 37 necessary entry in its record. Defendant No. 2 as well as defendant No.7 both intimated the NDMC for change/grant of electricity connection in favour of plaintiffs thereby intimating the transfer of all right, title and interest in the suit property in favour of plaintiffs' M/s Vikram Aditya & Associates.
7. Plaintiff when demanded rent from defendant No.1, then defendant No.1 sought confirmation from defendant No.7 M/s Rational Enterprise. Defendant No.7 through Sh. O.P. Goel replied that sell/dealing with plaintiff was not yet complete and therefore defendant No.1 should continue to pay rent to defendant No.7. Defendant replied the plaintiff along with copy of reply received from defendant No.7 and denied the payment of rent. Plaintiffs kept on asking for payment, defendant No.7 kept on denying sell and consequently defendant No.1 kept on denying the rent to plaintiffs despite confirmation from defendant No.2 about the status of the property. Defendant No.1 did hold payment of rent to either and advised plaintiffs and defendant No.7 to get their sell completed or issue resolved otherwise it would file interpleader suit. Both plaintiffs and defendant No.7 served the defendant No.1 with legal notices. Constrained plaintiff filed suit for permanent and mandatory injunction which was withdrawn on 28.02.1995 with permission to bring fresh suit on the same cause of action.
8. In the meantime on 3.03.1994, a lease deed was executed by defendant No.7 in favour of defendant No.1 w.e.f from 1.08.1993 for a period of three years with option of two renewals for the same period. Plaintiff again demanded rent from defendant No.1 to meet the same fate. It has been pleaded that the possession of the suit property by defendant no. 1 after the termination of the first lease by efflux of time amounted to trespass and therefore, defendant no. 1 was liable to pay mesne profit to the plaintiff on account of its continued occupation with effect from 01.11.1993. On 28.03.1995, defendant no. 1 while admitting its liability to pay rent filed an interpleader suit in the District Court.
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9. As per plaintiffs, after the sell of suit property defendants No. 1 and 7 were not within their right to enter into lease deed in respect of the suit property and therefore possession of the defendant No.1 was illegal and unauthorised. Plaintiffs issued legal notice dated 12.06.1995 thereby terminating the tenancy from midnight of 30.06.1995 and 1.07.1995 and plaintiffs filed the present suit for recovery of rent w.e.f. 1.11.1993. ejectment of defendant No.1, for permanent injunction and mesne profit of Rs. 35,60,450/- for the period 01.11.1993 to 30.06.1995 i.e. Rs. 1,78,022.50/- per month.
10. Defendant no. 2 to 11 (original defendants) have been impleaded as parties because they were proper parties and their presences before the Court was necessary for completely and effectively deciding all the controversies between the parties. Hence the plaintiff has filed the present suit for recovery of Rs. 7,17,786.72 as arrears of rent with effect from 01.11.1993 to 15.05.1993 (wrongly mentioned, it may be 15.03.1995) @ 34,180.32/- with interest and decree of ejectment against the defendant no. 1 from the suit property and mesne profit with effect from 16.03.1995 at such rate as the Court may determine after inquiry together with interest.
Miscellaneous Facts of Proceeding:-
11. The present suit was filed against 11 defendants, however, defendant no. 1, 2 and 5 filed separate written statement. Defendant no. 3 and 11 on the one hand and defendant no. 6 (Sh. Bijan Bhattacharya) and defendant No. 9 (Smt. Seema Goel) on the other filed joint written statement. Defendant no. 10 adopted the written statement filed on behalf of the defendant no. 3 and 11 on 30.03.1998. Defendant no. 4 was proceeded ex-parte vide order dated 17.07.1997. Original Defendant no. 7 Sh L.K. Babbar was deleted vide order dated 10.05.1996. Name of the defendant no. 10 was corrected from S. P. Verma to H. C. Verma and was subsequently dropped as a party on 20.03.1998. Subsequently defendant No. 11 was also deleted as period of O.P.Goel Trust expired on 22.03.1997. Name of Defendant Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 7 of 37 No.1 got changed from ANZ Grindlays Bank to Standard Chartered Grindlays Bank Ltd.
Defendant's No.1 version
12. Defendant no. 1 has defended the suit on the ground that plaintiffs had no cause of action against the defendant no. 1 and the suit is liable to be stayed as defendant no. 1 had already filed interpleader suit which is pending in the District Court. Plaintiffs have not approached the Court with clean hands and there did not exists any relationship of the landlord and tenants between the plaintiffs and the defendant no. 1 and, therefore, termination by plaintiff was of no legal validity and plaintiff had got no right to prosecute for suit for possession. By way of preliminary submission defendant No.1 submitted the series and sequence of correspondence between the plaintiff and defendant No.1 on the one hand and between defendant No.1 and defendant No.8 which were more or less on the lines of what plaintiffs had mentioned in the plaint that how and why defendant no. 1 refused to pay rent to plaintiff on the same being asked by plaintiffs subsequent to execution of Receipt- Cum-Declaration and endorsement on the Flat Buyers Agreement. It has been further pleaded that plaintiffs filed one suit earlier which was withdrawn unconditionally, therefore, present suit was barred under the principle of resjudicata and not maintainable.
13. The alleged transfers was devoid of any legal sanctity as the same was not registered and that defendants were legal tenant and were not trespassers and that same had been occupied by them under the registered lease deed duly executed by defendant no. 7 M/s Rational Enterprises and had been regularly paying rent to defendant no. 7.
14. On 14.11.1994, defendant No.1 received letter dated 14.09.1994 from plaintiffs thereupon defendant no. 1 addressed a letter dated 16.09.1994 to defendant No.2 M/s New Delhi Hotels Limited for confirmation of the documents sent to them Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 8 of 37 and also wrote letter to defendant no. 7 and informed him about the communication dated 14.09.1994. It was further submitted that since October 1994 defendant no. 1 had not made payment of rent in respect of suit property to any parties and rent was being kept in suspense account since the said date. Defendant no. 1 received an interim reply dated 07.10.1994 from defendant no. 7 and subsequently received legal notice dated 09.10.1994 from the advocate of defendant no. 7 (earlier defendant No.
8) whereby defendant no. 1 was called upon not to withhold the payment of rent and to release the same to defendant no. 7(earlier defendant No. 8). The defendant no. 1 sent a reply to the said notice dated 13.10.1994 pointing out that in case dispute between the plaintiffs and defendant no. 7 (earlier defendant No. 8) are not settled, defendant no. 1 would be forced to file interpleader suit in the Court of Law. Defendant no. 2 informed defendant no. 1 vide letter dated 25.11.1994 that the right, interest, title stood transferred to the plaintiffs. Defendant no. 1 informed about the said letter dated 25.11.1994 to defendant no. 7 (earlier defendant No. 8) and requested the defendant no. 7(earlier defendant No. 8) either to resolve the matter with the plaintiffs and New Delhi Hotels Ltd. or to obtain appropriate orders from the competent Court of Law. It was reasserted that if issues were not resolved, defendant no. 1 would be forced to file interpleader suit in the Court of Law. Subsequently, defendant no. 7(earlier defendant No. 8) again preferred to send legal notice dated 11.01.1994 and called upon defendant no. 1 to make the payment of rent within seven days failing which defendant no. 7(earlier defendant No. 8) would refer the matter to Arbitration. Defendants replied vide reply dated 02.02.1995 informing that it would not be possible for it to comply with their notice. On 06.02.1995, defendant no. 1 received another notice dated 06.02.1995 from plaintiffs requesting for release of rent. In view of the facts and circumstances above referred, defendant no. 1 predicament was to whom the defendant no. 1 had to make the payment of rent and defendant no. 1 was forced to file interpleader suit.
15. On merits all the paras related to other defendants were denied for want of knowledge and matter pertaining to defendant no. 1 had been replied in Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 9 of 37 accordance with the submission noted above and have denied any liability to pay any damages or to be unauthorised occupant of the suit property.
Version of Defendant No. 216. Defendant no. 2 filed written statement and have supported the averment made by the plaintiffs in the plaint so far as the transfer of right, title, interest and endorsement by the builder is concerned in respect of suit property.
Version of defendant No.3 &11 and also of defendant No. 8
17. Defendant no. 3 Sh. O. P. Goel and 11 (O. P. Goel Trust) and for that matter defendant no. 7 (earlier defendant no. 8 which adopted the written statement filed on behalf of the defendant no. 3 and 11) in their written statement raised preliminary objections that plaintiffs were neither owner nor landlord of the suit property and the suit property was owned by defendant no. 11 O.P. Goel Trust (since deleted) which was created for the ultimate benefit of the Sunil Goel, Ashwin Goel and Akash Goel and the said beneficiaries had already filed a suit for declaration and mandatory injunction under the provision of Specific Relief Act. Objection was further raised that the suit was bad for mis-joinder of the parties as defendant no. 4 and 5 had already resigned from Trust and therefore they were not necessary party. Defendant no. 7 (original) had died and defendant no. 8 (now 7) was not a legal entity but a trade name of O. P. Goel Trust by which name defendant no. 11 was carrying on its business activities. Suit was also opposed stating that plaintiff had no locus standi to file the present suit and the present suit was barred by principle of res-judicata. It has been further objected that the suit for possession was not maintainable as there was no sell on transfer of interest in the suit property and the receipt did not transfer any interest in the property. It has been further submitted that suit for specific performance would have been appropriate remedy for the plaintiffs and the suit was bad for non-joinder of necessary parties as beneficiaries of the trust.
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18. On merits so far as how the defendant no. 11 (O.P. Goel Trust) and 7 M/s Rational Enterprises became the owner of the suit property has not been disputed. It has been further submitted that after registering the flats in the name of the defendant no. 7 for defendant no. 1, defendant no. 2 was left with no right, interest, lien on the said flats and the defendant no. 11 became absolute owner thereof. Existence of trust was not disputed. It has been further pleaded that in the initial years the affairs of defendant no. 11 were being managed by trustees Sh. O. P. Goel, Sh. S. J. Ray (defendant No. 5) and Sh. Hira Lal (defendant No. 4). Sh. Heera Lal and Sh. S. J. Ray resigned from the trusteeship on 25.02.1992 and 05.03.1993 respectively and in place Sh. Bijan Bhattacharaya (defendant No. 6), Sh. L.K. Babbar (the then defendant No. 7) and Sh. H. C. Verma (defendant No. 10) were nominated as trustee on 04.04.1994, 22.05.1992 and 17.12.1994 respectively. Sh. L. K. Babbar died on 16.12.1994 and Smt. Seema Goel was taken as trustee on 05.03.1993 who retired on 04.04.1994 and again became trustee on 17.12.1994. It has been denied that defendant no. 11 was a cloak, mask and veil of defendant no. 3. It has been further submitted that defendant no. 3 was managing the affairs of defendant no. 11 since its creation but defendant no. 3 had no power or right to sell or transfer the immovable property of the trust.
19. As far as leasing of property to defendant no. 1 is concerned, same was not denied. With respect to transaction held on 01.11.1993 between defendant No. 3 & 7 and plaintiffs, it was not disputed that defendant no. 3 had indulged in the negotiations for the sell of suit property and had received an advance of Rs. 7,54,096/- towards the consideration but it was denied that defendant had sold the rights as alleged in respect of the suit property. It has been submitted that negotiations were entered into by the plaintiffs with the defendant No.3 for the purchase of the said flat and plaintiffs paid an advance of Rs. 7,54,096/- and a formal agreement to sell and sale deed was to be executed by the defendant no. 3 after the defendant no. 3 had obtained consent and approval of other trustees of the O. P. Goel Trust and its beneficiary as well as the permission from the Mercantile Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 11 of 37 House Promoters (defendant no. 2). It has been further submitted that trustees of the defendant no. 11 did not approve the proposal of the deal negotiated by Sh. O. P. Goel as it was considered that the alleged proposal would not be advantageous either to the Trust or to the interest of beneficiary and it was considered that it would adversely affect the interest of the beneficiaries. The property in the area could easily fetch much more than Rs.8 lakh in the near future and it was considered that there was no necessity to sell the same. In these circumstances the trustee resolved and advised Sh. O. P. Goel to refund the advance received from the plaintiffs. Until and unless, all the trustees had approved the said proposal and a formal agreement to sell and conveyance deed was executed, no right to said flat can be said to have been transferred in favour of plaintiffs. Vide letter dated 28.03.1994 defendant no. 3 had returned the advance received from the plaintiff no. 1 by way of cheque no. 513889 dated 28.03.1994 and in such circumstances there was no valid and binding proposal or agreement subsisting in favour of plaintiffs and against the defendants.
20. With respect to endorsement on the Flat Buyers Agreement, it was submitted that defendant no. 3 and 11 never made any such requests for transfer which was carried out in collusion with the plaintiffs by defendant no. 2 and due notices were given to the defendant no. 2. Defendant no. 2, however, in deceitful manner and in collusion with the plaintiffs wrongfully and illegally transferred in the records the flat owned by defendant no. 11 in the name of plaintiffs. The action of defendant no. 2 was absolutely illegal and any such transfer was not binding against the defendant no. 11 and the matter was sub-judiced. It was submitted that at no stage, defendant no. 1 had attorned in favour of plaintiffs. It was further submitted that Mr. O. P. Goel never represented that he had absolute right to transfer except that he was authorised to negotiate for the deal. Execution of lease in favour of defendant no. 1 subsequent to 01.11.1993 was not disputed. It has been further submitted that defendant no. 2 could not substitute the name of plaintiff unless proper sale deed was executed. On the afore said ground defendant No.3, 11 and 7 sought dismissal of suit.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 12 of 37 Version of other defendants
21. Defendant no. 5 filed written statement and has supported the case of the plaintiff to the extent that deal had taken place and transactions was entered into and he also supported the case of the defendant no. 3 and 11 to the extent he had requested O. P. Goel to honour the commitment but he was forced to resign from the trusteeship and the back dated resignation was obtained. He has further submitted that O. P. Goel was fully authorised to enter into the deal with the plaintiff and had accepted the full consideration for the sell and transfer of the flat.
22. Defendant no. 6 and 9 filed written statement and supported the case of defendant no. 3 and 11 on the same grounds and thereby supported the stand taken by the defendant no. 3 and 11.
Replication by plaintiffs
23. Plaintiff filed replication to the written statement of defendant No.1, 2 and 5 and thereby denying the contents of the written statement and reiterating the averment made in the plaint. Plaintiff also filed replication to the written statement of (original) defendant no. 3, 11, 6, 9 and 10 and thereby denying the contents of the written statement and reiterating the averment made in the plaint.
Relevant Proceeding
24. Vide order dated 11.02.1997 defendant no. 1 was directed to deposit the rent and keep the same in the form of FDR with one of its branch. Subsequently, the said order was modified vide order dated 23.04.1997 thereby directing defendant no. 1 to deposit the arrears of rent and continue to deposit the rent in the form of FDR in the name of Ld. Registrar General, Delhi High Court.
25. During the pendency, defendant no. 1 moved an application whereby showing its desire to vacate the property and hand over the vacant and physical Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 13 of 37 possession of the suit property. Defendant no. 1 was allowed to vacate the property and deposit the key of the lock on the vacant suit property in the Court which defendant no. 1 did on 01.03.2000. During the pendency, defendant no. 3 expired and all his LRs were brought on record vide order dated 09.04.2007.
26. During the admission denial of documents, six documents Ex. P 1 to P6 were admitted on behalf of the defendant no. 3 and 11.
ISSUES
27. From the pleadings of the parties following issues were framed vide order dated 13.12.2004:
1. Whether the plaintiff has locus standi to file the present suit? OPP
2. Whether the plaintiff is entitled to a decree of Rs.7,17,786.72 along with interest as prayed in the plaint? OPP
3. Whether the plaintiff is entitled to ejectment of defendant no. 1 from the suit premises as prayed in the plaint ? OPP
4. Whether the plaintiff is entitled to mesne profit, if so, at what rate and whether the plaintiff is also entitled to interest thereon? OPP
5. Relief.
Witnesses
28. In order to prove plaintiffs' case, plaintiffs examined Sh. Rajinder Mohan as PW-1 who filed his examination in chief by way of affidavit Ex PA wherein he relied upon co-ownership agreement dated 06.08.1991 Ex. PW 1/1, another co-ownership agreement dated 01.04.1992 Ex. PW 1/2, General Power Attorneys dated 20.05.1991, 08.05.1995 and 10.05.1995 Ex. PW 1/2A, PW 1/2B and PW 1/2C respectively, Receipt-Cum-Declaration Ex. PW -1/3 (Ex. P1), Flat Buyers Agreement Ex. PW 1/4 (Ex. P2), Letter dated 02.11.1993 Mark as P1, site plan Ex. PW -1/7. He was cross examined by the Ld. Counsel for LRs of defendant no. 3 and defendant no. 7 (earlier defendant No.8) and also by Ld. Counsel for Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 14 of 37 defendant no. 1.
29. Plaintiff also examined PW-2 Sh. Yatender Prasad, Senior Assistant House Tax Department, NDMC and relied upon the letter dated 01.11.1993 Ex. PW 1/5, letter dated 24.06.1994 written by NDMC to defendant no. 1 Ex. PW 2/1, Letter dated 27.07.1994 written by Vikram Aditya & Associates to the Secretary House Tax Department Ex. PW 2/2, letter dated 02.04.1994 written by Vikram Aditya & Associates to Secretary, House Tax Department Ex. PW -2/3. Letter issued by NDMC to Rajinder Mohan dated 03.05.1994 Ex. PW 2/4.
30. PW-3 Miss Poonam, LDC, Office OF Sub-Registrar, Vikas Sadan, New Delhi. She brought the summoned record i.e. lease deed dated 14.07.2005 pertaining to flat no. 1010, 10th Floor, Mercantile House, certified copy of which was exhibited as Ex. PW-3/1. Another lease deed dated 27.07.2001 in respect of Flat no. 607 in the same building was Ex. PW-3/2 and another lease deed dated 07.01.2008 in respect of flat no. 411 of the same building as Ex. PW-3/3. Thereafter, plaintiff closed plaintiff's evidence in affirmative.
31. Defendant no. 1 examined one witness. Defendant no. 1 Sh. Keshav Kumar, AR, who filed his examination in chief by way of affidavit Ex. D1W1/A and relied upon copies of letter dated 04.11.1993, 27.11.1993, 27.11.1993, 13.12.1993, 21.11.1993 exhibited as Ex. D1W1/1, Ex. D1W1/2, Ex. D1W1/3, Ex. D1W1/4 and Ex. D1W1/5 respectively, copy of notice dated 11.01.1994 Ex. D1W1/6, copy of reply of notice dated 18.11.1994 Ex. D1W1/7, copy of registered lease deed dated 03.03.1994 Ex.D1W1/8, another legal notice dated 01.09.1994 sent on behalf of the plaintiff demanding payment of rent with effect from 01.11.1993 Ex. D1W1/9, reply dated 10.09.1993 of legal notice dated Ex. D1W1/10, another letter dated 14.09.1994 sent to defendant no. 1 Ex. D1W1/11, copy of letter dated 16.09.1994 sent to defendant No. 8 Ex. D1W1/12, reminder letter dated 29.09.1994 Ex. D1W1/13, legal notice dated 09.10.1994 received by defendant no. 1 wherein Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 15 of 37 request for release of rent was made Ex. D1W1/14, another letter dated 13.12.1994 Ex. D1W1/15, notice dated 11.01.1995 Ex.D1W1/16, another notice dated 06.02.1995 is Ex. D1W1/17. He was cross examined by Ld. Counsel for plaintiff.
32. Defendant no. 2 examined Mukesh Kumar Aggarwal, who filed his affidavit Ex. D2W1/A and was cross examined only by Ld. Counsel for plaintiff and during cross examination following documents were exhibited i.e. letter Ex. D2W1/PX. 1, letter dated 25.11.1994 Ex. D2W1/PX 2, letter dated 16.09.1994 Ex. D2W1/ PX 3, notice dated 12.06.1995 Ex. D2W1/ PX 4 and receipt dated 16.04.1994 D2W1/PX 5.
33. Defendant no. 3 & 7 (original defendant no. 3 and 8) examined Akash Goel, son of defendant no. 3 who filed his affidavit in examination in chief Ex. D3W1/A and relied upon some of the already exhibited documents by PW 1 and D1W1. During cross examination of Akash Goel, following documents were exhibited i.e. lease deed as D3W1/PX1, certified copy of plaint D3W1/PX 2, certified copy of order dated 23.01.99 Ex. D3W1/PX3, certified copy of grounds of appeal Ex. D3W1/PX 4, certified copy of order dated 18.10.2003 Ex. D3W1/PX 5, written statement filed by defendant no. 5 Ex. D3W1/PX6, written statement of defendant No. 1 Ex. D3W1/PX7, application along with affidavit Ex. D3W1/PX8, copy of amended plaint Ex. D3W1/PX9, WS of defendant no. 2 to 4 Ex. D3W1/PX10, The report of the Ld. Local Commissioner Ex. D3W1/PX11(colly), the possession letter dated Ex. D3W1/PX 12 and written statement Ex. D3W1/PX13. Thereafter, defendant closed defendant's evidence.
34. Testimony of respective witnesses have been appreciated while recording issue wise findings in order to avoid repetition. Ld. counsel for plaintiffs and counsel for contesting defendants no.1, 3 & 7 (originally defendant no. 3 and 8) had addressed argument in support of their respective case.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 16 of 37 Issues wise Findings
35. After going through the pleadings and evidence and other materials on record and appreciating the argument, issue wise findings as under:-
ISSUE No. 1:- Whether the plaintiff has locus standi to file the present suit? OPP
36. Onus to prove this issue lies upon the plaintiffs. In order to discharge the onus, plaintiffs examined plaintiff no. 1 as PW 1. In his examination in chief he has repeated the contents of the plaint as noted above. In his cross examination he deposed that Sh. O.P. Goel did not represent to him that he was the trustee. He later came to know that there was a trust of Sh. O. P. Goel. His dealing was with Sh. O. P. Goel but M/s Rational Enterprises was a trade name. He volunteered that Sh. O. P. Goel represented himself as the sole proprietor of M/s Rational Enterprises. He saw the Flat Buyers Agreement in respect of suit property which had shown O. P. Goel as a sole proprietor of M/s Rational Enterprises. He saw the papers of allotment in respect of suit property before entering into the Agreement to sell. He saw the allotment letter in the name of M/s Rational Enterprises and he again said that he did not see the allotment letter in the name of M/s Rational Enterprises and he saw the Flat Buyer Agreement in which the name of M/s Rational Enterprises appeared. Ex. PW-1/4 is the flat buyer agreement in respect of suit property wherein M/s Rational Enterprises was shown as the purchaser represented through Sh. O. P. Goel. He was unaware about the letter of allotment being in the name of M/s A. C. Goel Distributing Company issued by New Delhi Hotel Ltd (defendant No.2/builders) and he was not aware whether the formal letter of allotment issued in the name of M/s A. C. Goel Distributing Company.
37. He further deposed in cross examination that he saw nomination with request to New Delhi Hotel Ltd. that property be nominated in the name of M/s Rational Enterprises. He had not seen the letter of acceptance of New Delhi Hotel Ltd. about the nomination but had seen Flat Buyers Agreement in the name of M/s Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 17 of 37 Rational Enterprises. He denied the suggestion that the letter in respect of electricity, house tax and mutation in favour of plaintiff were written on 01.11.1993. He volunteered that the same were written on 02.11.2013 by Sh. O. P. Goel. He denied the suggestion that the pay order was not for the full and final payment of the agreement to sell. He admitted that possession of the suit property was with the bank and possession thereof was not handed over to him till date. He admitted that after 01.11.1993 Sh. O. P. Goel for and on behalf of M/s Rational Enterprises entered into a fresh agreement with defendant bank in the year 1994 for three years. He further deposed that he had not seen O. P. Goel Trust Deed and therefore, he did not know what is written in that. He admitted that in para 8 of his affidavit he had deposed that plaintiff did not accept the truth of allegation of the Trust. He denied the suggestion that were put to him about O. P. Goel visiting office of New Delhi Hotel Ltd. for requesting for entering the name of Vikram Aditya & Associates. He volunteered that Sh. O. P. Goel and his son Sh. Sunil Goel both accompanied him to the office of defendant no. 2 along with original document dated 01.11.1993 and Flat Buyer Agreement for getting the name of Vikram Aditya & Associates nominated in place of M/s Rational Enterprises in the builders record. He denied the suggestion that flat in question was not transferred in the name of Vikram Aditya & Associates in place of M/s Rational Enterprises in the records of defendant no. 2. He had not seen any authority with Sh. O. P Goel on behalf of trust to enter into the agreement to sell of flat in question.
38. He was unaware about the return of consideration amount by cheque by Sh. O. P. Goel. He was not aware if Sh. O. P. Goel write the letter to the plaintiff stating that the other trustee had not agreed for the sell and send the cheuqe back. He did not confirm or deny that there was a refusal by defendant on 03.12.1993, however, he admitted that he later came to know that defendant had written letter to the bank that the sell in favour of plaintiff in respect of the suit property was yet to be completed. He admitted that he had not filed the suit for specific performance against M/s Rational Enterprises for completion of the sale. He admitted that he had Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 18 of 37 not claimed any relief against M/s Rational Enterprises in the present matter. He denied that all the reliefs claimed in the suit had become infructuos or that the M/s Rational Enterprises were still the recorded owner in New Delhi Hotels Ltd or that M/s Rational Enterprises were the owners of the suit property or that plaintiffs had got no concern of any type in respect of suit property. He admitted that defendant no. 1 never attorned the plaintiffs. In cross examination by Ld. Counsel for defendant no. 1, he denied the suggestion that defendant no. 1 was not tenant under plaintiff. He admitted that registered lease deed dated 21.11.90 and 03.03.1994 was not entered between the plaintiff and defendant no. 1. He admitted lease deed dated 03.03.1994 was entered between defendant no. 7 and defendant no. 1 and he denied the suggestion that defendant no. 1 was not liable to pay any damage, mesne profit, arrears of rent to the plaintiff.
39. PW-2 was the witness from the House Tax Department of NDMC and was summoned to prove the letters written by NDMC to the Bank and from Vikram Aditya & Associates to NDMC and from NDMC to Rajinder Mohan. In cross examination PW-2 deposed that property for the purpose of house tax was being assessed in the name of M/s Rational Enterprises, no mutation had been done in the name of plaintiffs and he did not know in whose name electric connection stood in the name of suit property witness.
40. Defendant No.1 examined one witness Sh Keshav Kumar and in examination in chief he deposed on the lines of written statement of defendant No.1. In cross examination by plaintiffs he deposed that bank always verifies title of the property of the party concern before signing and executing any document with regard to the property. He did not remember as to what title document of M/s Rational Enterprises was seen before signing lease deed Ex D1W1/8. He further deposed that before execution of Ex D1W1/8 bank had sought clarification from Rational Enterprises which did not confirm the transaction between it and plaintiff. He admitted that bank enquired from defendant No.2 with regard to status of tile of Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 19 of 37 the suit property and defendant No.2 had confirmed in favour of plaintiffs. He volunteered that said confirmation was somewhere in 1994 much after the execution of lease deed Ex D1W1/8. Defendant No.1 did not enquire about the same from defendant No 2 before execution of Ex D1W1/8. Bank was making enquiry by correspondence from Rational Enterprises and plaintiff. He admitted that address mentioned on Ex D1W/PX4 was that of defendant No.1. He denied the suggestion that bank voluntarily and in collusion with M/s Rational Enterprises executed the lease deed Ex D1W1/8. He denied the suggestion that bank was in collusion with Rational Enterprises and had filed interpleader suit or that it was liable to pay rent to the Plaintiffs or that bank was in unauthorised occupation
41. Defendant no. 2 has examined D2W1 Sh. Mukesh Kumar Aggarwal and the said witness was not cross examined by other defendants. D2W1 had deposed inter-alia that M/s Rational Enterprises proprietor M/s O. P. Goel Trust through its managing trustee Sh. O. P. Goel requested defendant no. 2 to enter the name of M/s Vikram Aditya & Associates in their record as the nominee of M/s Rational Enterprises and accordingly with effect from 01.11.1993 the name of Vikram Aditya & Associates was entered as the nominee of M/s Rational Enterprises in the records of defendant no. 2 as well as an endorsement to this effect was made on the said mercantile Flat Buyer Agreement dated 01.11.1991 under the signatures of Director/Authorised Signatory and seal of defendant no. 2. Defendant no. 2 vide its letter dated 01.11.1993 addressed to M/s Rational Enterprises confirmed the fact of entering the name of Vikram Aditya & Associates as the nominee and vide letter dated 01.11.1993 addressed to NDMC intimated the fact of nomination of M/s Vikram Aditya & Associates in respect of said flat and gave no objection for giving as well as transferring electricity connection in the said flat in the name of M/s Vikram Aditya & Associates. After receiving letter dated 16.09.1994 from defendant no. 1 and defendant No. 2 responded and confirmed vide letter dated 25.11.1994 that as per the records all the rights, interest and titles in the suit property vest in M/s Vikram Aditya & Associates with effect from 01.11.1993.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 20 of 37
42. In cross examination by Ld. Counsel for plaintiffs he identified Ex. PW1/4 as Flat Buyer Agreement and admitted the endorsement having been made at the request of M/s Rational Enterprises as well as plaintiffs and he identified the signature of O. P. Goel at point A and Rajinder Mohan at point X and nomination at point Z on Ex PW1/4. He admitted that Ex. PW 1/5 was issued by his office and identified the signature of Director at point A on it. He admitted that letter Ex.D2W1/PX1 was issued by defendant no. 2 and identified the signature of Director at point A. Similarly he admitted letter dated 25.11.1994 Ex.D2W1/PX2, letter dated 16.09.1994 Ex.D2W1/PX3, notice dated 12.06.1995 Ex. Ex.D2W1/PX4. He admitted that endorsement made in favour of plaintiffs in Ex. PW 1/4 was still valid and subsist and plaintiffs were still the recorded owner as per the record. He admitted that receipt dated 06.04.1994 Ex.D2W1/PX 5 was issued by defendant no.
2.
43. LRs of Defendant no. 3 had examined Sh. Akash Goel who deposed on the lines of written statement filed by defendant no.3 and 11. In the cross examination, he was not aware in whose name booking of the suit property was made by his father. He was not aware whether any sale deed was executed by the builder in the name of trust in respect of suit property. He did not know how many trustees of the trust signed documents of title when the suit property was purchased from builder. He admitted that Ex. PW 1/4 (Ex.P2) is the title document of the suit property executed by the builder which contains signature of his father at point A on each page. He deposed that Trust was in existence till 1997 and the Trust must have maintained minutes and accounts book like day book, ledger cash book etc. He was not aware whether any resolution was passed by the Trust for taking the suit property from the builder or from late father. He also deposed that no such resolution was filed on record and he did not remember whether he had any document of title to show that builder executed any registered document regarding transfer/sell of suit property in the name of trust. He deposed that when the property Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 21 of 37 was given by the builder in the name of Trust there were three trustees namely Sh. S. J. Ray, O. P. Goel, H. L. Aggarwal. He admitted that agreement Ex. PW 1/4 (Ex. P2) did not contain the signature of S. J. Ray, H. L. Aggarwal.
44. D3W1 further admitted the site plan Ex. PW 1/7 as correct. He deposed that in March, 1991 when lease deed Ex. D3W1/PX1 was executed, aforesaid trustees were there. No specific resolution or any specific authority was passed by Board of Trustees authorising his father Sh. O. P. Gel to execute and register the lease deed Ex. D3W1/PX1. He was not aware if any order was obtained from any Court of Law by the trust to execute lease deed Ex. D3W1/PX1. Lease deed dated 03.03.1994 was executed thereafter between M/s Rational Enterprises and defendant no. 1 where signatures of his father was at point A but the names and signatures of other trustees were not there. He deposed that there was a resolution of the trust thereby authorising Mr. O. P. Goel to execute the lease deed. He was not aware if the beneficiary of the trust ever objected to the execution of the lease deed and receipt of rent by trust under the said lease. He further deposed that at the time of execution of lease deed Ex. D1W1/A Sunil Goel was 27 years old, Ashwin Goel was 23 years old and he was 18 years old.
45. D3W1 further admitted that Receipt-Cum-Declaration Ex. PW 1/3 (Ex. P1) had the signature of his late father at 3 places at point A and one of the beneficiaries Sunil Goel had signed the same at point B. He deposed that all the three beneficiaries took legal action by filing suit but he was not aware if his father or any other trustee also took any legal action against the said Receipt-Cum- Declaration. He admitted that said suit filed by beneficiaries was dismissed in default, restoration application was also dismissed on merits and appeal thereof was also dismissed. He admitted certified copy of the plaint was Ex. D3W1/PX 2, order dated 23.01.1999 D3W1/PX 3 and grounds of appeal D3W1/PX4 and order dated 18.10.2003 D3W1/PX 5. He was not aware if other beneficiaries and trustees or trust took any other legal action against the judgment D3W1/PX5. Written Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 22 of 37 statement filed by defendant no. 5 was D3W1/PX6.
46. He further deposed that M/s Rational Enterprises had been converted into partnership firm. He admitted that his brother Sunil Goel had filed suit for dissolution of partnership firm of M/s Rational Enterprises wherein present suit property was not subject matter of partition. He denied the suggestion that suit property was not subject therein because suit property stood already sold to plaintiffs. The amended plaint of the said suit was Ex. PX9. Written statement filed in the suit was Ex. D3W1/ PX 10. He admitted that till date neither he nor his brothers ever deposited the property tax with NDMC in respect of suit property in their personal individual names. He did not remember exact date, month and year when for the first time plaintiffs were informed that the sale consideration was not acceptable. The cheque/pay order for the said consideration given on 01.11.1993 must have been encashed by the beneficiary and he did not remember on what basis he has deposed that sale consideration was returned to plaintiff. He did not know in his whose name electricity and water connection was provided in the suit property. He admitted that suit property was never mutated in the name of O. P. Goel Trust or in the name of individual beneficiary at any point of time. He had brought photocopy of agreement to sell in respect of flat no. 111 and deposed that it was the only document regarding the sale of the said flat to Sandeep Kataria and Vikaram Kataria and that no registered sale deed was executed with regard to the said flat no.
111. The said agreement was marked as Mark Z1. He did not remember on what basis he in his affidavit deposed that payment of Rs. 7,54,096/- made by plaintiff on 01.11.1993 was not full and final payment.
47. He admitted that possession was received by M/s Rational Enterprises through his father as O. P. Goel from defendant no. 2 vide Ex. D3W1/PX 12. He did not admit or deny that the bank accounts of M/s Rational Enterprises or O. P. Goel Trust were being operated by Sh. O. P. Goel only. He admitted that sale consideration was paid to M/s Rational Enterprises vide Ex. PW 1/3 and not to O. P. Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 23 of 37 Goel Trust. He was unable to tell after seeing receipt Ex. PW1/3 (Ex. P1) as to which portion of it was forged, fabricated or written in collusion between the plaintiffs and defendant no. 2. He did not know on what basis he deposed in his examination in chief that contents of receipt Ex. PW 1/3 are forged, fabricate or written in collusion with plaintiffs and defendants. He admitted that flat no. 111 was similarly allotted by defendant no. 2 on the basis of similar agreement i.e. Flat Buyer Agreement Ex. PW 1/4 (Ex. P2) and admitted that they had already transferred and sold flat no. 111 without taking any permission or no objection or consent from the builder defendant no. 2 or any Government authority for selling and transferring of the said flat no. 111 and he did not remember if defendant no. 2 or any Government office or agency ever raised any objection till date for transfer or sale of said flat no. 111 for want of no objection, permission and sanction. He admitted that there was no document on the basis of which he deposed in his examination in chief that the sale prices of the suit property was much more than paid by the plaintiff vide receipt Ex. PW 1/3. He admitted that plaintiff had not encashed the cheque and the amount paid under Ex. PW 1/3 (Ex. P1) was still lying with them and he did not know what he had done with the sale consideration paid by the plaintiff vide receipt Ex. PW 1/3 (Ex. P1). He was not aware if Sh. O. P. Goel or M/s Rational Enterprises ever gave in writing to the plaintiff that the sale consideration paid under the receipt Ex. PW 1/3 was advance and not as mentioned in the receipt itself.
48. He did not remember whether Sh. O. P. Goel during his life time or M/s Rational Enterprises ever challenged the endorsement made on the Flat Buyer Agreement Ex. PW 1/4 (Ex. P2) by the builder/ developer/ defendant no. 2 in favour of plaintiffs. He was not aware if M/s Rational Enterprises or O. P. Goel Trust or O. P. Goel filed on the judicial record any income tax returns or assessment order or any other similar official/ Government document wherein it was stated and declared that the sale consideration paid vide receipt Ex. PW 1/3 (Ex. P1) was only an advance payment of sale consideration as deposed by him in Ex. D3W1/A. He deposed that he could not comment whether Mr. O. P. Goel alone was dealing with Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 24 of 37 the suit flat and the adjoining flat and was corresponding for and dealing with different persons/authorities etc. He did not remember if he and his brother filed any litigation against M/s Rational Enterprises saying that the sale consideration in respect of the suit flat as per receipt Ex. PW 1/3 (Ex. P1) was wrongly taken by M/s Rational Enterprises. He admitted that written statement Ex. D3D1/PX 13 signed by his father O. P. Goel did not bear any seal and rubber stamp of O. P. Goel Trust and M/s Rational Enterprises or that his father had signed the same on the behalf of O. P. Goel Trust.
Admitted Fact
49. So far admitted position is that defendant No.2 is builder/owner of multistorey building known as Mercantile House, 15, Kasturba Gandhi Marg, New Delhi and allotted Flat No.9 (subsequently numbered as 109) to M/s A C Goel Distributing Company, proprietor Sh O.P.Goel.
50. Sh. O. P. Goel being proprietor of M/s A C Goel Distributing Company nominated M/s Rational Enterprises (Prop O. P. Goel Trust) managing trustee Sh. O. P. Goel as nominee to the said flat. Flat Buyer Agreement Ex PW1/4 was executed between M/s Rational Enterprises (Prop O. P. Goel Trust) through managing trustee Sh O. P. Goel and defendant No. 2 on 1.06.1991.
51. Sh. O. P. Goel executed Receipt-Cum-Declaration dt 1.11.1993 Ex PW1/3 in favour of M/s Vikaram Aditya & Associates through their co-owners Sh Rajinder Mohan. Said declaration was duly witnessed by Sh. Sunil Goel one of the beneficiaries of the alleged O. P. Goel Trust. Contents of Ex PW1/3 is also not in dispute.
52. Suit property was under the tenancy of defendant No.1 w.e.f. 31.08.1990 for period of three years under lease expiring on 31.07.1993. and that further lease deed Ex D1W1/8 was executed on 3.3.1994 by M/s Rational Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 25 of 37 Enterprises in favour of defendant No.1 for a period of three years with option of two renewals to defendant No. 1. Subsequent correspondence between plaintiff and defendant No.1 on the one hand and between defendant No.1 and defendant No. 3, 8 & 11 through O. P. Goel are also not in dispute. Consideration amount of Rs 7,54,096/- till date was with defendant No.7.
Disputed Fact
53. Disputed fact is that no endorsement on Ex PW1/4 was got done by Shri O.P. Goel which as per O.P. Goel was done in connivance and in collusion with defendant No.2. Next disputed fact is that the transaction between the plaintiff and Shri O. P. Goel Team was not complete, amount received under Ex PW1/3was only an advance not full and final sale consideration and was subject to approval by the trustees of the O. P. Goel Trust and that the amount received was returned and therefore no right, title or interest in the subject property stood transferred to plaintiff and that O.P. Goel Trust is only cloak, mask and veil of Sh. O. P. Goel, who is the whole and soul of it.
Locus standi of Plaintiff
54. In the present case although it has been averred by plaintiffs that there was O. P. Goel Trust constituted by Sh. Brijinder Kumar Gupta of Alwar for the benefit of three sons of O. P. Goel, with three trustees namely Sh. O. P. Goel, Hira Lal Aggarwal and Shanti Lal Jethabhai but Plaintiff have claimed it to be cloak, mask and veil. In fact the real man behind all this was Sh O. P. Goel alone. Defendant no. 3 and 11 have supported that O. P. Goel Trust was in existence but nothing has been brought on record to suggest that such trust was in fact created and it remained in existence actually. Ld. Counsel for defendant no. 3, 7 and 8 have argued at length that plaintiff himself had quoted in the plaint some of the provisions of the trust deed and therefore, it was no longer in dispute that such trust was in existence. The argument addressed by Ld. Counsel for defendant no.3 is attractive but not sustainable in view of the fact that plaintiffs at the same time have claimed it Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 26 of 37 to be a cloak, mask and veil only and real man behind was Sh. O P Goel. In the light of the specific stand of the plaintiffs, it was necessary for the defendant no. 3, 7 and 8 to bring on record the existence of the trust as well as actual manner of functioning of the trust. Nothing has been brought on record that any other trustees were also acting for the trust. All document, as brought on record, executed in the name of Trust were signed by Sh O. P. Goel only without any reference of any resolution having been passed in his favour. Defendant No. 3, 7 & 8 have not bothered even to brought on record the trust deed. Defendant No. 3, 7 & 8 were in possession of best evidence but did not bring it on record for reason best known to them and therefore an adverse inference be drawn against them in view of ruling of Hon'ble Supreme Court in Gopal Krishnaji Ketkar v. Mohammad Haji Latif & Ors.,AIR 1968 SC 1413. Since the existence of O. P. Goel Trust has not been proved, therefore, it does not appear to be real and genuine Trust and appears to have existed in vacuum only. Even if it is believed that such trust was in existence same appears to be only a cloak, mask and veil and which was only a one man show of O. P. Goel and the other alleged trustees etc. were only toeing line or were only in paper.
55. It is not in dispute that suit property i.e. Flat no. 109 was standing in the name of M/s Rational Enterprises which is claimed to be proprietary concern of O. P. Goel Trust. It is also not in dispute that Receipt-Cum-Declaration Ex. PW 1/3 was executed by Sh. O. P. Goel which was duly witnessed by one of the alleged beneficiaries Sh. Sunil Goel. Ex. PW 1/3 was also admitted and accepted by Sh. O. P. Goel during the admission/denial of documents. It is not the case of the defendant no. 3, 7, 8 and 11 that the contents thereof are manipulated, forged and fabricated. Thus, the receipt Ex PW1/3 is an admitted document with its entire contents. Even in the examination in chief D3W1/A has not deposed that the content of Ex. PW 1/3 were manipulated forged and fabricated. Perusal of the receipt cum declaration Ex. PW 1/3 does not leave an iota of doubt that documents was executed by Sh. O. P. Goel for transferring all the rights, title and interest in the suit property and payment of Rs. 7,54,096/- was received towards the sale consideration as full and final.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 27 of 37 Plaintiffs were further authorised to receive rent from defendant no. 1 with effect from 01.11.1993 onwards. In the said Ex. PW 1/3 Sh. O.P. Goel described himself as proprietor of M/s Rational Enterprises and managing trustee of O. P. Goel Trust. He in his own handwriting also represented that he was the authorised trustee to transact deal.
56. Section 91 and 92 of Indian Evidence Act prohibits admission of oral evidence as to the contents of document in variation of what is mentioned in the document. Once it is not the case that the Ex. PW 1/3 is forged and fabricated or signed blank, no oral evidence can be looked into varying the terms mentioned in it except under the exception mentioned in Section 92 of Evidence Act. Defendant No. 3 & 11 have not set out any ground for the application of exception provided to Section 92 of the Evidence Act.
57. Ex PW1/3 thus clearly reflects that parties intended to instantly transfer all rights, tile and interest in the suit property on payment of Rs 7,54,096/- as full and final consideration. To contend that it was only the negotiation subject to approval by trust or that sum of Rs. 7,54,096/- was not the full and final is not acceptable and appears to be after thought originated from the desire to wriggle out of the transaction. Not only this the Flat Buyer Agreement Ex PW1/4 was also endorsed at the request of Sh. O. P. Goel and plaintiffs whereby plaintiffs were made nominee of M/s Rational Enterprises in respect of the suit property. Signature of Sh. O. P. Goel on the Flat Buyer Agreement Ex PW11/4 was admitted by Sh. O.P. Goel at the stage of admission/denial of documents. Same has also not been disputed in evidence by D3W1 particularly with respect to endorsement, however, contents thereof was denied. But when D2W1 (witness of defendant No.2 ) appeared on behalf of the defendant no. 2 and deposed specifically that at the request of M/s Rational Enterprises through O. P. Goel the endorsement was carried out in Ex. PW 1/4 and thereby he proved the nomination and approval by the builder but defendant no. 3, 7 and 8 did not cross examine the witness of defendant no. 2 and thereby Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 28 of 37 accepted the testimony of witness of defendant no. 2. Hence, even endorsement in favour of plaintiffs in Ex. PW1/4 having been made at the request of M/s Rational Enterprises through Sh. O. P. Goel stood proved.
58. It is the case of defendant no. 3 and 11 in the written statement that endorsement on Ex. PW 1/4 was done by the defendant no. 2 in collusion with plaintiffs. If it was so, then defendant no. 3 and 11 should have cross examined the witness of defendant no. 2. By not cross examining D2W1 the witness of defendant no. 2, the stand of defendant no. 3 and 11 appears to be false and after thought taken to avoid the transaction already done and completed. It is an admitted fact on record that neither Sh. O. P. Goel Trust nor any of the trustees or O. P. Goel himself had taken any action against defendant no. 2 for the cancellation of endorsement made by defendant No.2 at the request of Sh. O. P. Goel or for making reverse entry in the records of defendant No.2. No doubt beneficiaries did file suit for declaration and mandatory injunction Ex. D3W1/PX2 but the same was dismissed in default. The application to restore the said suit was also dismissed vide order Ex. D3W1/PX 3 and appeal was dismissed vide order Ex. D3W1/PX5. Once the said suit did not reach the logical conclusion, the effect of the same is that endorsement remained unchallenged and also stood established that endorsement was got done by Sh. O. P. Goel accepting having transferred all right, title and interest in the suit property in favour of plaintiffs.
59. The other contention on behalf of the defendant no. 3, 7 and 8 is that since the Receipt-Cum-Declaration Ex. PW 1/3 is not a registered document and sale/transfer can take place only by way of registered sale deed, therefore there is no transfer of title in favour of plaintiffs. Ld. Counsel for the defendant no. 3, 7 and 8 also relied upon the Judgment of Hon'ble Supreme Court titled as Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Haryana, 2011(4) KLJ 682(SC). But said judgment is not applicable to the present case as it has already been clarified that said judgment will be having prospective effect and not retrospective.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 29 of 37 Moreover, if we go strictly by the concept of Regd. sale deed in that eventuality even M/s Rational Enterprises or for that matter O. P. Goel Trust would not be the owner for the reason that the defendant no. 2 had not executed sale deed in favour of M/s Rational Enterprise or O. P. Goel Trust. Admittedly the builder is owner of the entire property who raised multistory building and had offered them to various purchaser/occupier etc by executing Flat Buyers Agreement and by executing Flat Buyers Agreement he is created certain right, title and interest in the property in favour of defendant no. 7 or 11. The right, title or interest created under the Flat Buyers Agreement is considered as an species of property which has been considered inheritable/transferable. In the case of multistory building till the time builder has not executed sale deed or conveyance deed in favour of the allottee, this form of transfer by endorsement by the builder was recognised and accepted. No doubt this form of transfer causes loss to exchequer in the form of loss of stamp duty and accordingly an amendment in the Registration Act and Stamp Act was brought into force w.e.f. 24.09.2001 whereby agreement to sell coupled with possession has been made mandatorily registrable with almost full stamp duty. But at the same time in the present case non registration or non execution of sale deed cannot be permitted to be exploited by the seller who has sold the same with clear intent as the transaction is of the year 1993. Even principle of estoppal applies here whereby Sh. O. P. Goel/M/s Rational Enterprises/ O. P. Goel Trust are estopped from questioning the intent and purpose of Ex PW1/3 and Ex PW1/4.
60. Hon'ble High Court in Cement Corporation of India Ltd. v. Raj Kishan & Ors bearing Ex. P 265/2002decided on 01.09.2009 noted that "judicial notice can be taken of the fact that ordinarily there are no registered sale deeds of the flat such as these. They are normally transacted through flat buyers agreement."
61. In O. S. Vajpayee v. Administrator(Lt. Governor of Delhi) & Others, 172(2010) DLT 442 (DB) also took note of transfer by endorsement and recognised it for giving effect to. Hon'ble Supreme Court in Hill Properties Limited v. Union Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 30 of 37 Bank Of India and others, (2014) 1 SCC 635 observed "we are of the view that the right, title, interest over a flat conveyed is a species of property, whether that right has been accrued under the provisions of the articles of association of a company or through the bye-laws of a cooperative society. The people in this country, especially in urban cities and towns are now accustomed to flat culture, especially due to paucity of land. Multi-storeyed flats are being constructed and sold by companies registered under the Companies Act as well as the cooperative societies registered under the Registration of Cooperative Societies Acts etc. Flats are being purchased by people by either becoming members of the cooperative society or shareholders of the company and the flat owners have an independent right as well as the collective right over the flat complex. A flat-owner's right to dispose of its flat is also well recognised, and one can sell, donate, leave by will or let out or hypothecate his right. These rights are even statutorily recognised by many State Legislatures by enacting Apartment Ownership Act. Such a legislation exists in the State of Maharastra as well." As is clear in multi-storeyed flat the ownership to allottee is generally given by way flat buyers agreement and despite the enactment of Delhi Apartment Ownership Act 1986, the same did not came into operation the way it was contemplated due to various factor. In O.S.Vajpayee (supra) a direction was issued for the compliance of the provision of the said Act but that does not mean that transaction prior thereto by way of endorsement etc. has not been given effect to on the ground of non registration and non stamping. Judicial notice of this fact has already been taken note of in Cement Corporation of India (supra)
62. The requirement of registration and proper stamp duty with respect to agreement to sell coupled with possession was brought into force by the amendment made to the Registration Act and the Stamp Act with effect from 24.09.2001. Admittedly the present dispute involves the Flat Buyers Agreement of date prior to the amendment was brought into the said Acts. Thus, the contention of the defendant No. 3, 7 and 8 that since the sale deed was not executed plaintiff cannot be said to have any right, title or interest in the property, is not acceptable and is hereby Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 31 of 37 rejected.
63. Next contention of the Ld. Counsel for defendant no. 3, 7 and 8 is that under the Trust Act the trustees cannot authorise any one of the trustee or outsider by delegating power and since the other trustees have not signed the documents in favour of plaintiff or approved the transaction, therefore there was no valid transfer in favour of plaintiff. The above said contention is not sustainable for the reason that defendant failed to prove the existence of Trust. Contesting defendant No. 3, 7 & 8 were in better position and were in possession of best evidence to prove the existence of Trust but did not lead any evidence to this effect and therefore, in view of the ruling of the Hon'ble Supreme Court in Gopal Krishnaji Ketkar (supra) an adverse inference be drawn against the defendant for withholding the best evidence from the court. In the absence of valid proof of existence of trust by the name of O. P. Goel Trust, question whether other trustees can delegate power or not, is not being considered here by this Court. Therefore reliance by counsel for defendant No. 3, 7 & 8 on Abdul Rehaman v. Smt Angur Bala Manna and Anr AIR 1974 Calcutta 16 and Nila Pradhan and Ors v. Gokulnanda Padhi and Ors AIR(39) 1952 Orissa 118 are of no use as existence of Trust was not proved. Secondly, said contention has to be rejected on the ground that not a single document was placed on record to show that any of the other trustees ever acted in respect of trust matters or acted jointly. Whatever documents has come on record purportedly executed by and for Trust have been executed by Sh. O. P. Goel only. Even documents by which property was purchased for the trust has also been signed only by Sh. O. P. Goel. For this reason alone the contention of the Ld. Counsel for defendant is liable to be rejected. Therefore, the contention of the defendant no. 3, 7 & 8.
64. It has also been contented by Counsel for defendant that as per Flat Buyer Agreement prior permission of the builder was required before selling the property and admittedly no permission has been obtained, therefore, there was no sell in favour of plaintiff. Such contention of the Counsel for defendant pale into Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 32 of 37 insignificance once endorsement on Ex PW1/4 has been proved as same itself amounts to confirmation/approval by the builder and waiving of requirement of prior permission.
65. In the present case admittedly when the transaction took place the physical possession was with the tenant defendant no. 1 so there was no possibility of physical delivery of the possession of the property, only constructive possession could have been given. Sh. O. P. Goel vide receipt-cum-declaration Ex. PW 1/3 authorised plaintiffs to recover the rent with effect from 01.11.1993 onwards from defendant no. 1 and therefore, defendants No. 3, 7 & 8 and defendant No.11 can be said to have delivered the constructive possession of the suit property to the plaintiffs.
66. To sum up since the defendants particularly contesting defendant no. 3, 7 and 8 did not prove the existence of trust nor did place on record the trust deed (despite being in possession of best evidence withheld the same thereby rendering themselves liable for adverse inference to be drawn against them), nor have they taken any action against the defendant no. 2 for correcting the records of endorsement made at the request of defendant no. 3 nor have they cross examined witnesses of defendant No. 2 to prove the collusion and connivance with plaintiffs nor did they place on record any document to the effect that any other trustee ever acted for the trust, therefore in these circumstances it is more than clear that it was only the O. P. Goel who was the whole sole of the entire affairs and everything was being managed by him and therefore, even if is believed that such Trust was in existence, the principle of lifting of corporate veil as applicable in respect of incorporated companies under the Company Act can also be applied here to the facts and circumstances of the present case and after lifting the veil the only person who comes to fore is Sh O. P. Goel who had admittedly executed the Receipt-Cum- Declaration Ex PW1/3 and also got it endorsed in the Flat Buyers Agreement Ex PW1/4 by nominating aforesaid M/s Vikram Aditya & Associates and therefore, in Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 33 of 37 these circumstance plaintiffs did have transferred in their favour all rights, title and interest in the suit property and consequently have locus standi to file the present suit.
In view of the above discussion and reasoning, issue no. 1 is decided in favour of plaintiff and against the defendants.
ISSUE No. 2: -Whether the plaintiff is entitled to a decree of Rs. 7,17,786.72 along with interest as prayed in the plaint? OPP.
67. Onus to prove this issue lies upon the plaintiff and it has already been held herein before that all right, title and interest in the suit property stood transferred to plaintiffs on execution of Receipt-Cum-Declaration Ex PW1/3 and endorsement on Flat Buyers Agreement Ex PW1/4. By Receipt-Cum-Declaration Ex Pw1/3 plaintiff was authorised to receive rent from defendant no. 1 with effect from 01.11.1993 at the agreed rate of rent that was being paid by defendant no. 1 to defendant no. 7 M/s Rational Enterprises. Therefore, plaintiffs are entitled to recover the rent from Defendant No.1 with effect from 01.11.1993 at the rate at which it was agreed by defendant no .1 in respect of the suit property.
Accordingly, issue no. 2 decided in favour of plaintiffs and against the defendant.
ISSUE No. 3:- Whether the plaintiff is entitled to ejectment of defendant no. 1 from the suit premises as prayed in the plaint? OPP.
68. Onus to prove this issue lies upon the plaintiff. As far as the question of ejectment of defendant No. 1 is concerned, same does not survive any longer for the reason that during the pendency of the case, defendant no. 1 vacated the suit property and key of the lock on the vacant suit property has been deposited with the Court. In these circumstances, the next question arises as to who is entitled to take the key of the suit property. Since, issue no.1 and 2 has been decided in favour of plaintiff, for the same reasoning and reason plaintiffs are hereby held entitled to receive the key and thereby to the possession of the suit property.
Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 34 of 37 Accordingly, this issue is decided in modified way in favour of plaintiffs and against the defendant.
ISSUE No. 4. Whether the plaintiff is entitled to mesne profit, if so, at what rate and whether the plaintiff is also entitled to interest there on ? OPP.
69. Onus to prove this issue lies upon the plaintiff. As far as question of mesne profit is concerned, admittedly defendant no. 1 was the tenant of defendant no. 7 M/s Rational Enterprises. Admittedly defendant no. 3, 7 or 11 never confirmed to the defendant no. 1 that all rights, title and interest in the suit property had been transferred to plaintiffs. In these circumstances, defendant no. 1 was not obliged to pay the rent to the plaintiffs in view of Section 108(l) of Transfer Of Property Act which cast duty on the tenant to pay rent to landlord or its agent authorised by the landlord. Section 116 of Indian Evidence Act estops the tenants from questioning the title of its landlords, howsoever defective his title may be. Similarly, Section 108
(q) of Transfer of Property Act enjoins the tenant to hand over the possession upon expiry of lease to the landlord from whom he received the possession. In these circumstances, till the time landlord confirms the transfer of right in favour of plaintiffs or till the time landlord himself request the tenant to attorn in favour of subsequent purchaser or till the time Court of Law passes any order in this regard, the tenant is under duty to continue pay rent to its landlord and upon termination handover the possession to its landlord and not to subsequent transferee.
70. The contention of Ld. Counsel for plaintiff is that since defendant no. 1 was aware of the claim made by the plaintiff and that defendant No.2 had confirmed the transfer, therefore, defendant no. 1 should not have entered into further lease with defendant no. 7 M/s Rational Enterprise and therefore, defendant no. 1 deliberately avoided to attorn the plaintiff.
71. In these regard it is to be noted that defendant no. 1 did its level best to clarify its position. Defendant no. 1 repeatedly written letter to the plaintiffs to Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 35 of 37 finalize its deal or resolve their disputes and for some time they did suspend the release of rent and in its wisdom filed the interpleader suit to end its predicament and therefore, no fault could be found with defendant no. 1. Admittedly defendant No.1 had occupied the suit property as tenant w.e.f. 31.8.1991 from defendant No. 7 M/s Rational Enterprises and although at the time of transaction lease had expired but M/s Rational Enterprises had not taken any action against defendant No.1 and therefore lease of defendant No.1 was month to month and subsequently admittedly lease deed dt 3.3.1994 was executed between M/s Rational Enterprises and defendant No.1. Therefore, the relationship of landlord and tenant between defendant No.1 and Defendant No.7 M/s Rational Enterprises did not come to end at any point of time. For all practical purpose defendant No.8 M/s Rational Enterprises continued to be landlord of defendant No.1. Therefore, possession of defendant No.1 cannot be said to be unauthorised in respect of the suit property and no privity of contract with plaintiff came into existence, therefore, defendant no. 1 is not liable to pay any mesne profit/damages to the plaintiff. Plaintiffs reliance on the decision of the Hon'ble Supreme Court in Ambica Prasad v. Mohd. Alam & others,(2015) 13 SCC 13 is misplaced as the same is distinguishable on facts. In that case transferor has not disputed the sell, he was only collecting rent but in the present case transferor has disputed the sell to plaintiff by openly writing letter to defendant No.1, hence the ratio of relied upon aforesaid case is of no help to the plaintiffs in the facts and circumstances of the present case.
72. If any loss has occurred to the plaintiff, it has occurred on account of conduct of the defendant no. 3, 7 and 11. But in the present case, plaintiffs have not sought any relief against them. Therefore, plaintiffs are not entitled to mesne profit against defendant No. 1 and further no decree or direction can be issued against defendant no. 3, 7 and 11 in this regard as no relief was sought against them. In para 28 of the plaint it has been specifically mentioned by the plaintiffs that defendant no. 2 to 11 are proper and necessary party for completely and effectively deciding all the controversies between the parties but no relief was claimed against the defendants Suit No. 11769/2016 Rajinder Mohan & Ors Vs M/s ANZ Grindlays Bank & Ors Page No. 36 of 37 No. 2 to 11. Although in prayer clause word "defendants" has been used but meaningful reading of plaint makes it clear that relief was claimed only against defendant No.1.
Accordingly, this issue decided against the plaintiff.
RELIEF
73. In view of the discussion made herein before and findings recorded on all issues, suit of the plaintiffs is allowed partly and decree for recovery of rent with effect from 01.11.1993 till the time suit property was vacated by defendant no. 1 inclusive of the amount of Rs. 7,17,786/- is hereby passed in favour of plaintiff against the defendant no. 1 subject to already deducted property tax and accordingly rent deposited in the bank of defendant No.1 in the form of FDR in the name of Ld. Registrar General, Delhi High Court be released in favour of plaintiffs.
Plaintiffs are also held entitled to the possession of the suit property and therefore, keys of the suit property be handed over to the plaintiffs against written acknowledgment.
Plaintiffs are also entitled for the cost of the suit to be recovered from original defendant no. 3, 7 and 8.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Harish Kumar)
Announced in the open court ADJ-13 (Central)/THC
(Judgment contains 40 pages) Delhi/ 05.09.2016
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