S.K.Sharma vs Chander Prakash Arora And Another on 6 August, 2012

[Cites 3, Cited by 6]

Delhi High Court

S.K.Sharma vs Chander Prakash Arora And Another on 6 August, 2012

1. The plaintiff before this Court claims to be engaged in providing services in the matters relating to filing and pursuing matters of his clients before government departments and corporations. Defendant No.1 before this Court was allotted a plot bearing No. 35, Block-C, Pocket-3, Sector-11, Rohini, by defendant No.2-DDA. The allotment letter was, however, sent at the address from where defendant No.1 had already shifted by the time it was despatched. He, therefore, did not receive the allotment letter which resulted in the allotment being cancelled by DDA. The case of the plaintiff is that in August, 2010, defendant No. 1 approached him and sought his help in getting the CS(OS) 1066/2012 Page 1 of 13 matter settled with DDA. The parties entered into an agreement, whereby they agreed that defendant No. 1 would pay a sum of Rs 17 lakh and 35% of the profit on the plot that shall be allotted to him by DDA. It is alleged that the plaintiff accordingly prepared representations and pursued the case of defendant No. 1, but, the response of the department was not satisfactory. The plaintiff, therefore, was left with no remedy, except to approach this Court by way of a writ petition. It is further alleged in the plaint that under instructions from defendant No. 1, the plaintiff took steps for consulting and engaging lawyers for filing of a writ petition. The said writ petition being WP(c) No. 6126/2010 was allowed by this Court vide order dated 16.12.2010. According to the plaintiff, defendant No. 1 expressed his inability to pay the legal expenses, including professional fee of the lawyers and requested him to bear all such expenses. The parties accordingly executed a further agreement on 05.12.2010, whereby it was agreed that in case the plaintiff succeeds in getting the allotment made at old rates in a developed sector, defendant No. 1 shall pay him a further sum of Rs 14 lakh towards his professional fee. This agreement, according to the plaintiff, was an addendum to the original agreement dated 10.08.2010. Plot bearing No. 35, Block-C, Pocket-3, Sector-11 of Rohini was then allotted to CS(OS) 1066/2012 Page 2 of 13 defendant No. 1 in the mini draw held on 03.02.2011. The allotment was made at the old rates. The case of the plaintiff is that he is entitled to recover Rs 31 lakh from defendant No. 1, comprising Rs 17 lakh under the agreement dated 10.08.2010 and Rs. 14 lakh under the agreement dated 05.12.2010 and is further entitled to 35% of the profits which would be derived on sale of the aforesaid plot. Besides recovery of money, the plaintiff has also sought a mandatory injunction for appointment of an officer of the Court to sell the aforesaid plot and pay 35% share of the profit to the plaintiff to him. He has also sought injunction, restraining defendant No. 1 from transferring, alienating or selling the aforesaid plot as also restraining defendant No. 2-DDA from transferring and handing over the possession of the aforesaid plot to defendant No. 1.

2. In his written statement, defendant No. 1 has alleged that when he approached the concerned Deputy Director of DDA in a public hearing, he was told by him that the work could be done with the help of one Mr. Sharma, who had good connections with officers of DDA. That Deputy Director gave details of the plaintiff to him and even the amount to be paid to him was decided by the Deputy Director of DDA. Since defendant No. 1 had been waiting for about 29 years, he had no option, but, to agree to the proposal of the officer of DDA. The first CS(OS) 1066/2012 Page 3 of 13 meeting between him and defendant No. 1 took place in the chamber of the Deputy Director, who got a hand written paper signed from the plaintiff to be kept as a security. The document, however, was not signed by the plaintiff. It is further alleged that defendant No. 1 was made to sign several papers on the representation that the same would be required for follow up action in DDA. The plaintiff paid a sum of Rs 30,000/- to defendant No. 1, being part of the amount of Rs 75,000/- demanded by him. The plaintiff, however, failed to get the work done through DDA and that, according to defendant No. 1, was the end of the liaisoning agreement. Defendant No. 1 asked the Deputy Director Mr A.K. Gupta to return the papers, but he told him that the paper would be destroyed. The plaintiff then referred him to a lawyer known to him so that a writ petition could be filed in this Court. Defendant No. 1 has also taken a preliminary objection that the alleged agreement is against public policy since there is no system of liasoning in DDA, which is a government organization and also because such practice would promote corruption and bribing. According to defendant No. 1, the plaintiff is a part of a racket operating in DDA to trap nebulous registrants and adopting a particular modus operandi. He obtains addresses and details of successful allottee of DDA and then in collusion with DDA officials, he CS(OS) 1066/2012 Page 4 of 13 tries to settle the matter for a hefty sum. The plaintiff is alleged to be one such tout operating in DDA office. It has also been alleged that defendant No. 1 engaged a lawyer on reference and paid his professional fee and clerkage.

3. Defendant No. 2-DDA, in its written statement, has admitted cancellation of the allotment made to defendant No. 1. It has also been admitted that pursuant to the directions given by this Court on 09.09.2010, one plot was reserved for defendant No. 1 and thereafter the allotment was restored at the prevalent rate plus interest as per policies/rules.

4. IA No. 7171/2012 has been filed by the plaintiff seeking ad interim injunction. He has sought an injunction, restraining defendant No. 1 from transferring, selling or alienating plot bearing No. 35, Pocket C-3, Sector-11, Rohini, and from creating any third party interest therein. He has also sought an injunction, restraining defendant No. 2 from transferring and handling over possession of property being plot No. 35, Pocket C-3, Sector-11, Rohini to defendant No. 1.

5. The case of the plaintiff is that under the agreement dated 10.08.2010 he was to be paid Rs 17 lakh and 35% of the profit on sale of plot in question to him with liasoning with DDA. This is also his CS(OS) 1066/2012 Page 5 of 13 case that under the agreement of 05.12.2010, he was to be paid a sum of Rs 14 lakh in addition to the amount agreed vide agreement dated 10.8.2010 and he was also to get 35% of the profit on sale of plot in question. Thus, according to the plaintiff, he is entitled to recover Rs 31 lakh from defendant No. 1 and is also entitled to 35% of the profit which defendant No. 1 would earn on sale of the aforesaid plot.

6. As far as the alleged agreement dated 10.08.2010 is concerned, this, according to the plaintiff, envisaged liasoning with DDA. Obviously, 35% of the profit in sale of plot was to be paid to the plaintiff only in case the allotment made to defendant No. 1 was restored and a plot was allotted to him by DDA. This is plaintiff's own case that since the response of DDA was not satisfactory, the only remedy left with the plaintiff to approach this Court by way of a writ petition, seeking quashing of the letter of cancellation and accordingly a writ petition was filed in this Court on 08.09.2010. There is no document on record, evidencing any liasoning work by the plaintiff with DDA. It was contended by the learned counsel for the plaintiff that he had drafted representation to DDA, on behalf of defendant no.1 and had also pursued the matter with DDA officers. Defendant no.1 is a well educated person, who was capable of drafting any such representation. The policies and rules of DDA in the matter of CS(OS) 1066/2012 Page 6 of 13 attachment of DDA Flats as well as their cancellation, and restoration are available in DDA's website as well as with office. Defendant no.1 could easily have drafted his representation, which involved no complicated issue, his case being that the demand letter/ allotment letter was sent to him at the address form which he had already shifted. In any case, there is no evidence, to indicate, even prima facie and such writing work having been done by the plaintiff for defendant no.1. However, even if it is presumed that he did some liasoning work of this nature with DDA, he certainly was not entitled to 35% of the profit on sale of the plot for the simple reason that no allotment admittedly was made by DDA to defendant No. 1 as a result of the alleged liasoning done by the plaintiff and that was the reason why a writ petition had to be filed in this Court. Had the plot been allotted to defendant No. 1 solely as a result of the liasoning work alleged to have been done by the plaintiff and without intervention of this Court, only then the plaintiff could have claimed that the plot was allotted due to his efforts.

7. Coming to the second agreement, admittedly pursuant to an interim order passed by this Court on 09.09.2010 in WP(C) No. 6126/2010, an MIG plot was reserved by DDA for defendant No. 1. This order passed by this Court cannot be attributed to any liasoning CS(OS) 1066/2012 Page 7 of 13 work done by the plaintiff. In fact, there can be no liasoning work in the matter of a judicial order since such orders are passed on merits of the case and not because of liasoning or efforts of some person. A perusal of the allotment letter issued by DDA to defendant No. 1 would show that this allotment was made in compliance of the orders passed by this Court on 09.09.2010 and 16.12.2010. It would be pertinent to note here that vide order dated 16.12.2010, this Court had directed DDA to include the name of petitioner in a draw as per its policy at the earliest possible. Thus, the allotment made by DDA to defendant No. 1 was on account of judicial intervention by this Court and not on account of any efforts, if any, made by the plaintiff.

8. The case of the plaintiff is that he consulted and engaged lawyers who appeared in the writ petition and also paid their fee. The case of defendant No. 1 is that the lawyer was engaged by him through a reference and the fee was paid by him. There is no material on record to indicate that the fee of the lawyer who appeared for defendant No. 1 in the aforesaid writ petition was paid by the plaintiff. If it is presumed, despite there being no material on record to this effect that the lawyers were engaged and fee was paid by the plaintiff, that by itself, would, not in my view, entitle the plaintiff to 35% share in the profits that can be derived from sale of plot in question, for the CS(OS) 1066/2012 Page 8 of 13 reason that the allotment made pursuant to a judicial order cannot be attributed to the efforts alleged to have been made by the plaintiff. In fact, even the Advocates are not expected to accept a brief or his fee through a liaison man such as the plaintiff before this Court. They are expected to deal directly with client and in case the Advocate happens to be a Senior Advocate, he is expected to deal with the briefing counsel. Hence, there can be no role of an a liaison in engagement of advocates. In fact, Clause 19 of Chapter II of Standards of Professional Conduct and Etiquette, prescribed by Bar Council of India stipulates that an advocate shall not act on the instructions of any person other than his client or his authorized agent.

In any case, at this stage, I am not called upon to take any view with respect to amount of Rs 31 lakh, claimed by the plaintiff from defendant No. 1. The view being taken by me is prime facie and to the extent it is necessary to decide the application for interim injunction qua the plot allotted by DDA to defendant No. 1.

9. Section 23 of The Contract Act, to the extent it is relevant, provides that the consideration or object of an agreement is lawful, unless it is forbidden by law or is of such a nature, it would defeat any provision of law or the Court regards it as immoral, or opposed to public policy.

CS(OS) 1066/2012 Page 9 of 13

In cases referred above, the consideration or object of an agreement is stated to be unlawful and every agreement, the object or consideration of which is unlawful, is void. Illustration (f) to Section 23 states that if 'A' promises to obtain for 'B' an employment in the public service, and 'B promises to pay 1,000 rupees to 'A, the agreement is void, as the consideration for it is unlawful. Illustration

(j) provides that if A, who is B's mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1, 000 rupees to A, the agreement is void, because it is immoral. Section 24 of the said Act provides that if any part of a single consideration for one or more objects or any one or any part of any one of several considerations for a single object is unlawful, the agreement is void.

10. The principle that the Court will not enforce an illegal agreement, at the instance of a person who himself is party to the illegality is expressed in the maxim in pari deucto portior est condition defendentis. The law recognizes only the following exceptions to this principle and these are:

(a). where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it;

(b) where the plaintiff is not in pari delicto with the defendant; CS(OS) 1066/2012 Page 10 of 13

(c) where the plaintiff does not have to rely on the illegality to make out his claim."

The agreement between the plaintiff and the defendant no.1 has been declared illegal by the statute, in respect of all categories of persons and not only to a particular class. This is not a case where the plaintiff has been induced to enter into an agreement by fraud or coercion and the plaintiff is not under a fiduciary duty to defendant no.1. Therefore, it cannot be said that the parties are not in pari deucto.

11. As noted earlier, there is no documentary evidence of the plaintiff having pursued the matter of defendant No. 1 with DDA. This is plaintiff's own case in the plaint that the efforts with DDA officers did not fructify and that is why it was decided to file a writ petition in this Court. It is extremely difficult to accept that defendant No. 1 would agree to pay as much as Rs 31 lakh and 35% of the profits which he could derive from sale of plot in question to the plaintiff merely for the liasoning work of the nature claimed by him. As regards proceedings before this Court are concerned, as noted earlier, there is no evidence of the plaintiff having incurred any expenditure or having paid the fee of any Advocate. The plaintiff has not even CS(OS) 1066/2012 Page 11 of 13 quantified the expenditure actually incurred by him in pursuing the matter in this regard. He does not say how much fee he paid, to where it was paid when the payment was made and what was the mode of payment. Had he paid to advocates, all the particulars would have been with him. In these circumstances, it may not be unreasonable to infer, as alleged in the written statement of defendant No. 1, that the plaintiff claimed to be having connections with DDA officers and seeking to take action stipulated in the alleged agreements as well as 35% of shares in the profit from sale of the plot, either in lieu of using influence with DDA officers/ paying bribe to public or on a misrepresentation that he would be paying part of at least part of the payment money by way of illegal gratification. If the plaintiff represented to defendant No. 1 that he would use his connections with DDA officers to get the allotment restored in his favour that would be immoral and such an agreement would be void, being some of the agreement referred in illustration (j) of Section 23 of Contract Act. If plaintiff No. 1 misrepresented to defendant No. 1 that he would be paying illegal gratification to get the plot restored in his favour, such a contract would be of the nature described in illustration (f) to Section 23 of Contract Act and would be void. Even if it is assumed that the consideration, stipulated in the agreements, CS(OS) 1066/2012 Page 12 of 13 relied upon by the plaintiff, was partly for the genuine effort which the plaintiff claims to have made to get the plot restored to defendant No. 1 and partly for unlawful purposes, the agreement would still be void.

11. For the reasons stated hereinabove, no case for granting interim injunction sought by the plaintiff is made out. The application is, therefore, dismissed. The observations made in this order being tentative and prima facie, would not affect the decision of the suit on merits.

V.K.JAIN, J AUGUST 06, 2012 bg CS(OS) 1066/2012 Page 13 of 13

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Delhi High Court