Delhi District Court
Shri Suresh Kumar Bhargava vs Smt. Bhanwar Kumari & Anr on 10 April, 2007
-:1:- MCA No. 85/2003
IN THE COURT OF DR. T. R. NAVAL: ADDL. DISTRICT JUDGE
DELHI
MCA No. 85/03
Shri Suresh Kumar Bhargava .....Appellant
Vs.
Smt. Bhanwar Kumari & Anr. .....Respondent
ORDER
This order will dispose of a miscellaneous civil appeal filed by plaintiff/appellant against order dated 6.10.2003 passed by Shri Ajay Pandey, Ld. Civil Judge, Delhi.
2. I heard arguments of Ld. counsels for parties and perused file including written arguments.
3. The facts in brief which are necessary for disposal of present appeal are that plaintiff had filed a suit for declaration, perpetual and mandatory injunction against Smt. Bhanwar Kumari and DDA on the averments that DDA had allotted SFS flat, category-III, ground floor, Jasola, here in after referred to as the flat in dispute, to the defendant No. 1 in the year 1993. As she did not have required money, so she approached the plaintiff for selling allotment of flat in dispute to him. An oral agreement was arrived at between them. Plaintiff agreed to pay Rs.1,50,000/- to her in addition of making payment of installments to the DDA. Accordingly, he deposited a sum of Rs.3,16,615/- to the DDA on 8.6.1995 and also paid the said amount of Rs.1,50,000/- in cash to her without any receipt and a pay order of Rs.30,000/- was also delivered to her which she did not en-cash. He asked her to execute the sale deed but she failed to discharge her duty. He also requested DDA not to deliver the possession of flat to her but despite of filing the suit for permanent and Page No. 1 of 6 -:2:- MCA No. 85/2003 mandatory injunction, DDA handed over the possession of flat in dispute to her and also executed the conveyance deed. Plaintiff in his application for grant of ad-interim injunction prayed for restraining the defendant No.1 from transferring, alienating or parting with the possession of flat in dispute to any other person and also prayed for restraining the defendant for executing any conveyance deed in favour of defendant No.1 till disposal of suit on merits.
4. Defendant No.1 contested his suit mainly on the ground inter-alia that she never received an amount of Rs.1,50,000/- from the plaintiff. In fact a person named Ashwini Kumar, who distantly related to defendant No.1 was handed over letter of allotment and FDR received from DDA. He colluded with the property dealer and the defendant and handed over those documents to them and they might have deposited a sum of Rs.3,16,615/- with the DDA. She never entered into any agreement with the plaintiff. She filed several complaints against the property dealer and particularly against Shri Vir Singh as he wanted to grab the flat in dispute in collusion with the plaintiff. The plaintiff has made out a concocted story of pay order of Rs.30,000/-. The defendant No.1 prayed for dismissal of application.
5. DDA contested his case on the grounds that alleged transfer was without the permission of DDA. Therefore, it was illegal. It was never acted upon by DDA. DDA has already executed conveyance deed in favour of Smt. Bhanwar Kumari in respect of flat in dispute and possession of that flat had already been handed over to her.
7. Ld. Civil Judge after hearing the arguments of Ld. counsels for parties dismissed the ad-interim injunction application of the plaintiff holding that no prima facie case was made out in his favour.
8. Having aggrieved from that decision plaintiff/appellant preferred present appeal.
9. The impugned order has been assailed on the grounds inter-alia that Ld. Civil Judge has not applied his judicial mind; did not consider the urgency of relief; failed to consider the documents filed by appellant on record including two bankers cheque, original FDRs and allotment letter. It Page No. 2 of 6 -:3:- MCA No. 85/2003 has also been submitted that if the interim relief is not granted to the plaintiff nothing will survive in the suit and appeal.
10. On the other hand, counsel for respondent/defendant has argued that Ld. Civil Judge had rightly decided that plaintiff did not have prima facie case. The settled principles of law do not permit for setting aside of that order. While relying on number of authorities which are being discussed here in after, in this order, Ld. counsel for defendant prayed for dismissal of appeal.
11. It is well established law that in order to get relief of ad interim injunction the appellant/plaintiff has to show, firstly that he has a prima- facie case in his favour, secondly, that the balance of convenience lies in his favour; and thirdly, that he would suffer irreparable loss, if relief of ad interim injunction is not granted to him.
12. Let us examine whether decision of Ld. Civil Judge in respect of prima facie case is correct or not? Ld. Civil Judge quoted in his order relevant Rules and Regulations of DDA which prohibit sale, transfer or alienation of DDA flat without the permission of DDA.
13. Rules/Regulations of DDA in respect of transfer of flat as mentioned in the DDA Brochure for the allotment of flats to be constructed under the 5th, 6th and 6th Self Financing Scheme in Different Residential Areas are as under :-
"The allottee shall not be entitled to transfer, mortgage or otherwise part with the possession of the whole or any part of the flat without previous consent of the Authority in writing, and the Authority shall be entitled to refuse the permission in it absolute discretion. Provided that in the event of a transfer being made without obtaining previous consent of the Authority in writing such transfer shall not be recognised by the Authority and it shall be open to the Authority to cancel the allotment and resume the possession.
Provided further that in the event of the consent being given, the Authority may impose such terms and conditions as it may think fit and the Authority shall be entitled to claim and recover a portion of the unearned increase in the value (i.e. difference between the premium paid and the market value of the land at the time of sale, transfer, assignment or parting with the possession) the amount to be recovered being 50% of the unearned increase. The decision of the Authority in respect of the market value of the Page No. 3 of 6 -:4:- MCA No. 85/2003 land shall be final and binding. ***"
14. Section 23 of Indian Contract Act provides as under:
"23.What considerations and objects are lawful, and what not. - The consideration or object or an agreement is lawful, unless - It is forbidden by law, or is of such a nature, that if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
15. It is admitted fact that no permission of DDA was obtained for transfer of flat in dispute in favour of the plaintiff. The defendant/respondent No.1 even denied any agreement of transfer. As per provisions of Section 23 of Indian Contract Act any agreement in violation of law are illegal. This is also well established law that immovable property can not be transferred by oral agreement.
In view of the law discussed here in above, I am of the view that Ld. Civil Judge has rightly concluded that there was no prima facie case in favour of plaintiff as he did not have any legal right in respect of flat in dispute which could be enforced through the law. If it is held that plaintiff has a prima facie case in his favour, then that would be against the provisions of well established law and it may also defeat the provisions of rules and regulations of DDA.
16. As regards balance of convenience is concerned, it does not lie in favour of plaintiff as defendant No. 2 has already executed the conveyance deed and defendant No.1 has already obtained the possession of the flat in dispute as revealed from various proceedings of the Trial Court.
17. The plaintiff/appellant will not suffer any irreparable loss in case of relief of ad-interim injunction is not granted to him because suffering of irreparable loss without violation of legal right is not actionable. If he had deposited certain amount with the defendant he has remedy to recover the same as per law.
Page No. 4 of 6 -:5:- MCA No. 85/200318. Findings laid down in cases of Smt. Vimla Devi Vs. Jang Bahadur, AIR 1977 Rajasthan 196; Shri Hridas Mondal Vs. Sahadeb Mondal, AIR 1980 Calcutta 140; Smt. Lalithakshi Annadaagouda Vs Sadashivapa Basappa Patil and another, AIR 1984 Karnataka 24 and Guru Nanak Education Trust (Regd.), Model Town, Ludhiana and others Vs Shri Balbir Singh and others, AIR 1995 P & H 290 also support the case of the defendant No.1 on the point that findings of lower court on prima facie case, balance of convenience and irreparable loss can only be altered if these are based against the settled principles of law.
As held above, Ld. Civil Judge has given cogent reasons for holding that plaintiff/appellant does not have prima facie case in his favour and therefore these findings have to be upheld.
19. Ld. counsel for respondent/defendant No.1 also relied on a case Anand Swarup Vs MCD, 36 (1988) DLT 304 and argued that the plaintiff neither filed any receipt of alleged sum of Rs.1,50,000/- nor any document to show that plaintiff ever en-cashed a sum of Rs.30,000/-, so the case of the plaintiff is based on malafide and he is not entitled for the relief of ad- interim injunction. The arguments of Ld. counsel for defendant/respondent No.1 seems to be convincing as no such document by Ld. counsel for appellant has been filed on record. It was also held in said case that a person must come to the court with clean hands if he seeks an injunction order under Order 39 Rule 1 & 2 CPC.
20. Ld. counsel for respondent No.1 also relied on a cases (i) S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others, AIR 1994 SC 853; (ii) Lourdu Mari Dravid and others Vs. Louis Chinnaya Arogiaswamy and others, AIR 1996 SC 2814; (iii) Moti Lal Manshi Shah Vs. Suryakant K. Sheth, AIR 2006 Bombay 246; and (iv) M.V.Shankar Bhat Vs Claude Pinto, AIR 2004 SC 636 and argued that plaintiff has played fraud on defendant No.1/ respondent No.1, therefore he has no case for grant of ad-interim injunction. It was held in case of S.P.Chengalvaraya Naidu (dead) by LRs Vs Jagannath (dead) by LRs and others, Supra; that:
"A person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation.***"
Other cases also lay down the similar findings.
Page No. 5 of 6 -:6:- MCA No. 85/200320. In view of the reasons and discussions made here in above, it is held that there is no merit in the appeal and there is no illegality or infirmity in the impugned order. Therefore, appeal is dismissed and impugned order is upheld. Cost is also awarded in favour of the respondents and against the appellant.
21. Nothing contained herein above shall be deemed to be an expression of opinion on the merits of the case.
22. All the parties and counsels are directed to appear before Shri Ajay Pandey, Ld. Civil Judge/Successor Court on 24.4.2007 for further orders.
23. TCR be returned with copy of this order and appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON (DR. T.R. NAVAL) THIS 10th DAY OF APRIL, 2007. ADDL. DISTRICT JUDGE.
DELHI.
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