Indian Kanoon - Search engine for Indian Law

4. The plaintiffs and the defendant no. 1, along with other intending purchasers of undivided 1/5th share in the suit property, paid their share of conversion charges for conversing the property from lease hold to free hold land underneath the property in question. The amount stood deposited with DDA vide pay order dated 23/03/1995, in pursuance of the terms and conditions of the agreement to sell dated 16/01/1995. It is further stated that walls of ground floor and first floor of the portion in question of the suit property, were demolished by all the intending purchasers including the defendant no. 1 and the portion under sale stood amalgamated with the adjoining property no. 5/7, W.E.A. Karol Bagh, New Delhi which property is separate, independent and owned by different owners. It amounted to violation not only of the terms and conditions of perpetual lease deed issued by the DDA but also amounted to breach of the agreement to sell dated 16/01/1995 between the parties to the said agreement. It is further stated that the defendant no. 1 through its Director Ms. Manju Gupta, filed suit dated 06/01/1998 against the plaintiffs in the Hon'ble High Court of Delhi, thereby seeking specific performance of the above said agreement to sell dated 16/01/1995 and also for perpetual injunction. The Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 3/32 violations of the lease deed issued by the DDA and of the breaches of the terms and conditions of the agreement to sell dated 16/01/1995 committed by the defendant no. 1,( the intending purchaser), were clearly and specifically stated in the written statement filed by the present plaintiffs with specific plea that the agreement dated 16/01/1995 between the parties stands rescinded and the agreement was not enforceable legally or otherwise against the parties i.e. the present plaintiffs. It is further stated that for consideration amount received by the plaintiffs, the cheque for a sum of Rs. 1,75,000/- drawn by the present plaintiffs, was also tendered to defendant no. 1 along with the written statement filed in the court on 03/09/1998. Thus, the agreement to sell dated 16/01/1995 between the parties stood vitiated from the said date of filing of written statement by the present plaintiffs. Due to pecuniary jurisdiction value of the suit, it was transferred to the court of Addl. Distt. Judge Sh. Naipal Singh and registered with the said court at No. 253/2000(143/1998). On 03/3/2002, instead of leading evidence in that case, Sh. Rakesh Jain, Director of the company withdraw the said suit and it was dismissed accordingly. It is further stated that on dismissal of the said suit, the defendant no. 1 ceased to have any right or interest in the portion of the property in pursuance of the agreement dated 16/01/1995 and the right to claim rent from the previous tenant stood reverted back to the plaintiffs on the date of filing of the written statement by the plaintiffs with specific plea of rescission of the agreement in question. Accordingly, the plaintiffs as owner-landlords got served a notice of demand of rent dated 01/09/2003 upon the erstwhile tenant M/S Jainsons(Westend). The suit bearing no. 455/03 filed by the plaintiffs against the said tenant for recovery of arrears of rent stands decreed on 16/09/2004 in favour of the plaintiffs and in the said suit, the defendant no. 1 was also impleaded as a party (i.e. as Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 4/32 defendant no. 6). It is further stated that in the said suit, defendant no. 1 being represented by Sh. Rakesh Jain, who also happens to be the partner of the tenant firm-M/S Jainsons Westend, claimed that a sale-deed has already been executed in favour of the defendant no. 1 through attorney of the plaintiffs but did not file any such sale-deed on record nor any copy thereof. Even no details like the date of the alleged execution, the date of registration with the sub- registrar, the name of the executents were stated before the Ld. Court. It is further stated that in eviction petition filed by the plaintiff U/S 14(1)(a) of the Delhi Rent Control Act, 1958, the tenant M/S Jainsons Westend put up the same plea that sale deed has already been executed in favour of the defendant no. 1 for his share but did not file any such sale deed on record nor any copy thereof. The plaintiff claimed that he had obtained certified copy of the sale from the office of the MCD and then he came to know about the execution of the sale deed of the suit property in favour of defendant no. 1 executed by defendant no. 2 on behalf of the plaintiffs as their attorney. It is further stated that all the defendants have played fraud upon the plaintiffs and also upon the courts. The defendants have also misrepresented the courts as well as the statutory authorities by making false statement and suppression of material facts for their wrongful gains. Defendant no. 2 fraudulently executed a vexatious, fictitious and void sale deed in favour of the defendant no. 1 in collusion with his son Atulya Kumar Jain which is liable to be cancelled. The execution of the said sale deed in motivated with a desire to deprive the plaintiffs of their right, title and interest in this suit property. It is further stated that since the sale deed dated 10/06/2002 is a void and vexatious document, the plaintiffs left with no other alternative remedy except to seek its cancellation and to get the same declared as such. The plaintiff has stated in Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 5/32 his plaints the specific acts of fraud on the basis of which the plaintiff now wants the cancellation of sale deed.

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

15. Therefore, for seeking the relief of cancellation of impugned sale Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 17/32 deed Ex.PW1/15 on the ground that it is null and void, the plaintiff has to show that the impugned sale deed is either is void or voidable document against him and if the impugned sale deed is left outstanding, it may cause him serious injury.

24. Now, coming to the reasons due to which the plaintiffs are seeking the declaration of the sale deed as null and void and its cancellation. The plaint in para 21 has mentioned the specific facts leading to fraud by virtue of which the plaintiffs want the reliefs of the present case.

25. Firstly, the plaintiffs claim the right to get the sale-deed declared as null and void and its cancellation on the ground that in the execution of the sale deed, the terms and conditions of the agreement to sell has been violated and therefore, the sale deed is not only void but has been fraudulently Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 22/32 executed. The terms and conditions of agreement to sell which the plaintiffs say have been violated are that the sale deed was to be executed only after the conversion of the property from lease hold to free hold and the vendees were deemed to be the owners of the property for all practical purposes only if the vendors failed to execute the sale-deed in respect of the said premises in favour of the vendees after the conversion. So the plaintiffs says that since the conversion of property from lease-hold to free hold was not done, therefore, the plaintiffs were not liable to execute the sale deed in favour of defendants and execution of sale-deed in violation of this term is fraudulent.

38. None of these reasons claimed for the cancellation of sale deed Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 28/32 Ex.PW1/15 or its adjudication as null and void are sufficient to cancel the validly executed sale deed. For cancellation of the document, it is necessary to prove it as void or voidable. Sale deed or agreement to sell or even the power of attorney is an agreement and in order to prove that it is a void agreement, it has to come within the ambit of section 24 to section 30 of the Indian Contract Act. The plaintiffs are unable to show the existence of any misrepresentation, forgery, force or any other factor to show that an agreement in which they have entered with the defendants are result of any fraud, force or misrepresentation. There are certain other things which are argued on behalf of the plaintiffs like the defendants have altered the nature of the property by demolishing the walls of ground and first floor portion of the property. The case of the defendant is that the opening in the walls existed even in the year 1974 as is clear from the letter dated 10/07/1974 Ex.PW1/DX1 and its undated reply by the plaintiffs Ex.PW1/DX3. In fact, the plaintiffs filed a suit in this regard subsequently and prior to the said agreement to sell the parties had agreed that the tenants can carry out the alteration/addition in the suit property subject to the deposit of 5 lacs as security by Jainsons Westend and the letter dated 23/08/1994 issued by the plaintiffs is Ex.PW1/DX4. Letter dated 25/08/1994 of Jainsons Westend agreeing to send the cheque of Rs. 5 lacs in favour of Shanti Devi is exhibited as Ex.DW1/13. Letter dated 28/08/1994 issued by Jainsons Westend to the plaintiffs paying a sum of Rs. 5 lacs as security is Ex.PW1/DX5. The said cheque was duly encashed and the certificate issued by the bank is Ex.DW1/14. Moreover, there could have been no breach of the agreement to sell on these grounds because the personal meetings for the alteration in the building and subsequent advancing of security took place much earlier to the time when the agreement to sell was executed i.e. 15/01/1995 Smt. Shanti Devi Suit No. 161/2005   S.Tarjit Singh Vs. M/S Jainsons Westend P.Ltd. 29/32 in fact returned the sum of Rs. 5 lacs given as security as mentioned above on 17/01/1995.