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Showing contexts for: documents notarized in Dinesh Kumar vs Rajinder Prasad on 22 March, 2024Matching Fragments
CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 2/30
3. In the written statement, defendant took preliminary objections to maintainability of the suit viz, the suit is barred under Section 10 of Code of Civil Procedure, 1908 (hereinafter, the 'CPC') in view of the fact that the suit filed by him seeking permanent injunction against the plaintiff is still pending involving the same questions of law and facts, it is barred by virtue of Section 41 (h) of the Specific Relief Act ,1963 in view of the fact that plaintiff has sought declaration of title and possession on basis of notarized documents, when he ought to have filed a suit for specific performance.
4. On merits as well, the suit has been resisted. Defendant's version is that a loan transaction indeed took place between the parties, but directly and not through any Manoj Kumar and only for an amount of Rs. 65,000/-. Defendant has denied execution of any conveyance documents in favour of plaintiff, and has stated that plaintiff had obtained his signatures on certain blank sheets of paper when he advanced him the loan, and later misused the same by creating the alleged conveyance documents. Written Statement also records the averments of the defendant to the effect that no title to the suit property could have been conveyed by any notarized documents anyway. He has also denied ever handing over possession of any portion of suit property to the plaintiff. He specifically stated that in fact, he inducted one Ravinder as tenant in the ground floor thereof. It has been prayed that suit of plaintiff be dismissed.
The two issues are taken up together as they are interconnected.
It is seen that the entire substratum of the case of the plaintiff is that he had entered into a loan agreement with the defendant, and that defendant executed conveyance documents in his favour to secure the loan. It is his case that since the defendant failed to repay the loan upon the expiry of the loan agreement on 06.08.1995, he became the absolute owner of the suit property by virtue of the notarized documents being the GPA, Agreement to Sell, etc. Now, even the defendant has admitted that a loan transaction had taken place between the parties, although he is at variance as regards the amount of loan that was actually advanced to him by the plaintiff. Irrespective of the fact if Rs.1,00,00/- or Rs.65,000/- exchanged hands, it remains a fact that actual transaction between the parties was that of loan. This is evident from the testimony of Plaintiff/PW5 itself, who deposed that defendant had similarly obtained loans from Prem Singh, amongst others. It shows that parties were ad- idem regarding entering a loan transaction.
The execution of the documents having been established, it is to be examined if any title was conveyed under the same.
Section 17 of the Indian Registration Act, 1908 requires that a conveyance Deed pertaining to an immovable property which is more than Rs.100/- in value has to be necessarily registered, before any title to the property can pass. No registered document of this nature was ever executed between the parties. Plaintiff only has notarized GPA, Agreement to Sell and affidavit in his favor. Prior to the 2001 amendment to the Registration Act, such documents could have been used by the plaintiff to seek specific performance of the contract and perfect his title over the same. Alternatively, in terms of Section 53 A of the Transfer of Property Act, 1882, the plaintiff could have used the documents as a shield to protect his possession over the property. However, it is not even the best case of the plaintiff that CS/93820/16 Dinesh Kumar Vs. Rajinder Prasad 23/30 he was put in possession of the entire suit property and therefore, Section 53 A becomes irrelevant. Admittedly, the plaintiff did not seek any specific performance of the contract, and has only in his favor the aforesaid notarized documents. One of such documents is a power of attorney/GPA executed between the parties. However, it cannot be said that plaintiff can claim any rights in the property by virtue of the said GPA, in terms of Section 202 of the Indian Contract Act, 1872, since it is not the case of parties that any consideration flowed under the document. Rather, even the best case of plaintiff is that he had advanced a loan to the defendant. Even if the loan amount is considered to be the consideration, the said GPA could have been used by the plaintiff to claim possession over the suit property against any third party, except the true owner of the property. Defendant being the true owner of the suit property, plaintiff cannot claim better title than him on the strength of the GPA. Reliance at this juncture can be placed on the judgment titled Ramesh Chand vs Suresh Chand 2012 (188) DLT 538 wherein it has been held: