* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA 1977/2008 IN CS(OS) 296/2008
M/S GLOBAL ASSOCIATES & ORS. ..... Plaintiff
Through : Mr.Lalit Gupta with Mr.Navin Kumar,
Advocate.
versus
SH. OM PRAKASH POPLI & ANR. ..... Defendant
Through : Mr.K.R.Gupta with Ms.Kiran Dhawan,
Advocate with Mr.Om Prakash, defendant No.1 in
person.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
S.RAVINDRA BHAT, J.
*
1. This order shall dispose of IA No. 1977/2008, preferred by the plaintiffs under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908, seeking an interim injunction, restraining the defendants from alienating, transferring possession, encumbering or creating any third party interests in property bearing no. 100, Bhera Enclave, Paschim Vihar, New Delhi- 87 (hereafter called „the suit property‟).
CS-296/08 Page 1
2. The plaintiffs state that by an agreement to sell dated 03.05.2007, the defendants, who are the absolute joint owners of the suit property, had agreed to sell it to them for a total sale consideration of Rs, 1, 74, 00, 000. It was agreed that Rs 15 lakhs would be paid at the time of execution of the agreement to sell; Rs 85 lakhs was payable on or after 2.8.2007 and the balance consideration of Rs. 74 lakhs was to be paid on or before 3.9.2007. It was also agreed that at the time of receipt of the entire payment the defendants would execute the relevant sale documents in favour of the plaintiffs.
3. The plaintiffs claiming paying a sum of Rs. 15, 00, 000/- by way of cash at the time of the execution of the agreement to sell, receipt of which, was acknowledged in the agreement. A sum of Rs. 3 lakhs was paid in cash on 2.6.2007 and a further sum of Rs 15 lakhs paid on 11.6.2007, which were duly acknowledged by the defendants by executing proper receipts in the presence of witnesses. Thereafter, a sum of Rs 85 lakhs was paid in cash on 2.8.2007. It is stated that since the transaction involved a substantial amount of money, the defendants also fixed their thumb impressions, apart from fixing their signatures on the receipt dated 11.6.2007 and 2.8.2007. The plaintiffs submit that the witness in these transactions was defendants‟ son - Sh. Kamal Kant. Therefore, it is claimed that the plaintiffs have already paid Rs. 1, 18, 00, 000/- and only Rs. 56 lakhs was payable.
4. It is submitted that the plaintiffs were willing to pay the remaining sum, subject to the defendants complying with their part of the obligations CS-296/08 Page 2 contained in the agreement, by execution of the requisite sale documents/sale deed. They claim that a bank loan for Rs 50 lakhs was also finalized. It is alleged that the defendants are now avoiding meeting the plaintiffs on one pretext or another and are refusing to perform their part of the obligations. The plaintiffs caused a legal notice dated 7.9.2007, to be issued though their counsel, calling upon the defendants to fix a date for execution and registration of the necessary documents. A reply was sent and the plaintiffs claim that they were present in the office of the Sub Registrar on 25.9.2007, the agreed date; but the defendants did not turn up then. Subsequently, a second notice was sent on 11.10.2007, in which the plaintiffs made it clear that they were willing to perform their part of the obligations. They received no reply to this notice.
5. The plaintiffs allege that defendants are trying to sell the property to a third party and have been in touch with local property dealers. Fearing that they would create third party interests in the suit property, the plaintiffs seek an interim order, restraining them from creating any sort of third party interest in the suit property.
6. The defendants, in their written statement at the very outset claim that plaint itself is a fraudulent one. They claim that a property dealer- Mr. Rajiv Mishra of Delhi Properties, Jwalaheri Market, Paschim Vihar approached them with a proposal to purchase the suit property from them. Negotiations took place and it was agreed that the sale consideration would be Rs 1 crore 74 lakhs in three installments; an earnest money of Rs. 15 lakhs at the time of CS-296/08 Page 3 the execution of the agreement to sell, Rs 85 lakhs on or before 2.8.2007 and Rs. 74 lakhs on or before 3.9.2007. Upon receipt of the entire payment it was agreed that conveyance deed would be executed.
7. The defendants aver that agreement was duly executed on 3/5/2007; however, the property dealer persuaded the first defendant to leave the name and particulars of the purchaser blank. He assured the defendants that the particulars of the nominee purchaser would be filled in later along with the respective signatures; the date of the agreement was also left blank. Accordingly, in the instrument showing the receipt of the earnest money, the particulars of the purchaser/payer was left blank.
8. It is also averred by the defendants that they subsequently found that the clause relating to the forfeiture of the earnest money in case of default in balance payments within the stipulated time was missing in the agreement. After approaching the property dealer for the incorporation of that condition in the agreement, the last page was substituted and the condition inserted. It is stated that the said last page was signed and thumb marked by the defendants in the same manner as the last page of the agreement to sell; the dealer too signed the carbon copy of the substituted last page of the agreement under the column "Witnesses". It is claimed that the third page of the agreement was also changed in as much as instead of "on or before 3.9.2007" the words "on or after 3/9/2007" was inserted. The dealer retained the original page of the agreement and the defendants were given a photocopy.
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9. The defendants contend that a further sum of Rs 3 lakhs was paid by the dealer to them on 2.6.2007 and a receipt was signed in this regard; the name particulars of the purchaser though was left blank. The dealer signed the receipt and photocopy of the same was handed over to them. It is submitted that no other payment was made thereafter and conditions stipulated in the agreement to sell were not complied with. Accordingly, the defendants sent a legal notice dated 30.8.2007, intimating them that they would be available at the Sub Registrars office on 3.9.2007; and a failure to get the sale registered after the payment of the balance consideration would result in forfeiture of the earnest money. It is submitted that no one turned up on the aforementioned date nor did the defendants receive any reply for the legal notice dated 30.8.2007.
10. It is averred that on 7.9.2007, the defendants received a legal notice from RK Mehta, Advocate on behalf of Global Associates. It is submitted that the said notice did not disclose the name of the proprietor of that concern, although the address is the same as that of Delhi Properties. On both the AD cards of the aforesaid notice the note "R. Mishra" is inscribed, which is in the same handwriting as that of the writer of the names and addresses of the defendants on the AD cards and envelope. Thereafter, the defendants replied to the said advocate, stating the above facts and pointed out that only a sum of Rs. 18 lakhs was received by them. It was denied that the defendants entered into agreement to sell with Global Associates or that the later paid any money to them. The alleged payment of Rs 15 lakhs and Rs 85 CS-296/08 Page 5 lakhs on 11.6.2007 and 2.8.2007, in cash, were also specifically denied. It is claimed that Mr. RK Mehta in rejoinder notice merely reiterated the earlier allegation and no attempt was made to address any of the concerns raised by the defendants.
11. The defendants allege that the partnership deed dated 6.4.2007 of the plaintiff firm appears to have been antedated and fabricated for purposes of the present suit. It is engrossed on two stamp papers of Rs. 100/- each which like the agreement to sell dated 3.5.2007, neither bear the stamp of the vendor nor the name and other particulars and registration number of the stamp vendor nor the purpose for purchase of the stamp papers. The defendants also point out that the stamp papers were purchased by M/s Global Associates; though the firm itself came into existence after that. Further, the firm does not appear to be in existence during the execution of the agreement to sell, that is, on 3.5.2007. Further, though the partnership deed states that the bank accounts of the firm will be jointly operated by the second and third plaintiff, all alleged payments were made in cash. It is also alleged that though the partnership deed shows as many as 12 partners, only the first and second plaintiff are shown as active partners, while the others have been added apparently with a view to show cash contribution towards the alleged payments. The defendants further submit that only such a scenario could explain the blank spaces in the various instruments.
12. In relation to the alleged payments, the defendants submit that at time of execution of the agreement to sell, a blank receipt was got executed by CS-296/08 Page 6 the dealer, a photocopy of which was handed over them. It is alleged that the plaintiffs later misused the receipt by showing another payment of Rs.15 lakhs on a later date. They submit that this fraud becomes apparent because, in the said receipt, the amount is described as earnest money, when actually the earnest money was paid on 3.5.2007 (when the agreement to sell was executed). The same description was not given for Rs.3 lakhs paid on 2.6.2007, which too was received after execution of the agreement to sell. Therefore, the payment of any sort of earnest money on 11.6.2007 did not arise. Similarly, the alleged payment of Rs 85 lakhs on 2.8.2007, it is claimed, is also fraudulent. It is submitted that there cannot be any reason why such a huge amount would be paid in cash by partnership firm, contrary to provisions of the Income Tax Act, especially when two partners were authorized to operate bank accounts and cheques. Moreover, the plaintiffs appear to have paid Rs. 18 lakhs more than what was expected out of them, according to the agreement to sell; no reasons were given in this regard too.
13. The defendants submit that the agreement to sell had stipulated 3.9.2007 as the date for receiving the final payment, but the plaintiffs sought to circumvent this by indicating 25.9.2007 as the last date for the final payment in the receipt dated 2.6.2007, which space was left blank at behest of the dealer. Further, the bank loan and related papers produced by the plaintiffs are dated 18.1.2008, whereas according to the plaintiffs‟ admission the last date for payment was 25.9.2007. They also allege that their CS-296/08 Page 7 signatures as well as the signature of their son has been forged and misused, and that have been deliberately mislead and defrauded.
14. At the time of hearing of the application, the first defendant was present in court, and was examined on the question of execution of documents filed with the suit. He admitted to signing the document Ex. P-1, a Part Payment Receipt, on 2-6-2007, evidencing payment of Rs. 18,00,000/-; he however, stated that the reference to 25-9-2007 was missing (when he signed it), and the relevant space was blank. He also admitted signing the second document, i.e Ex. P-2, but deposed that the document was blank at the relevant spaces. The name of the plaintiff, date etc have been filed in ink in the receipt. He however, denies having signed the document of 2-9-2007 which relates to payment of Rs. 85 lakhs; he also deposed that his son and wife did not sign on it or fix their thumb impression. He further deposed that five blank documents were got signed at the behest of Rajeev Mishra, which appear to have been used in the suit.
15. The factual narration shows that there is no dispute about execution of the agreement to sell, and payment of initial Rs. 15 lakhs. However, the defendants deny altogether having received Rs. 85 lakhs, in August, as alleged by the plaintiffs. The agreement states that the transaction had to be completed by 3-9-2007. The plaintiffs‟ case is that the reference to 25-9- 2007, in the second receipt shows that parties extended the time for performance. The defendants roundly deny this document, as well as having received the amount mentioned in it; their version is that blank spaces in CS-296/08 Page 8 were filled in to be misutilized later. They also rely on a legal notice issued to Shri Rajive Mishra, dated 30th August, 2007; according to them, despite their going to the office of the sub registrar, on 3-9-2007, the plaintiff did not turn up there. They also replied to the legal notice issued by the plaintiffs, and alleged not having denied the amounts averred in the suit.
16. Besides the controversy about genuineness of the documents, raised by the defendant, and their clear statement of not having received the large sums of money in cash, as alleged by the plaintiff, one curious fact which cannot be ignored by the court is that the second receipt styles the amount given as "earnest money" which is a clear mis-description. The earnest money, as understood in such transactions, would be payable at the time of execution of the agreement to sell. Another aspect is that the plaintiff, despite knowledge that the defendant‟s unwillingness to take steps to sell the property, apparently kept quiet, inexplicably, for more than six months. Also, the plaintiffs are relying on bank documents, evidencing sanction of loan, in January, 2008, to say that they were able, ready and willing to complete the transaction. No such evidence as of end September, 2007, which was the time agreed for performance, is disclosed.
17. All these factors, taken together, do not prima facie support the plaintiff‟s version, pleaded in the suit. The court is therefore of the opinion that the plaintiffs have not made out a strong prima facie case for grant of CS-296/08 Page 9 ad interim injunction. For these reasons, the application has to fail; IA No. 1977/2008 is dismissed.
S. RAVINDRA BHAT, J.
OCTOBER 24, 2008 CS-296/08 Page 10