* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 9622/2008 in CS (OS) No. 1610/2008
Judgment reserved on: 30th March, 2009
% Judgment decided on : 6th April, 2009
SHRI DEEPAN KUMAR ......Plaintiff
Through : Mr. Arjun Singh Bawa, Adv.
Versus
SHRI JAI PRAKASH AGGARWAL ....Defendant
Through : Ms. Manisha Agarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall be disposing of the application filed by the plaintiff under Order 39 Rule 1 and 2 CPC.
2. The brief facts are that the plaintiff had entered into an agreement dated 17th March, 2008 with the defendant for the sale of property at ground floor (except common passage and stairs) without its roof rights and above with all fittings and fixtures of water, electric, sanitary with its connection in working conditions and wooden etc. with the freehold rights of the land underneath proportionately measuring 300 sq. yards at I-74, Ground Floor, Phase I, Ashok Vihar, Delhi-110052 for a sale consideration of Rs. 1,94,00,000/- which was in ownership and Page 1 of 6 CS(OS)1610/2008 possession of the defendant.
3. As per the terms and conditions of the agreement to sell, the defendant had assured the plaintiff that the said property was free from all sorts of encumbrances such as prior sale, gift mortgage, charges, lien, attachment surety etc. The condition was prerequisite and a material fact of the agreement.
4. The plaintiff as per the agreement has paid part payment for the sum of Rs. 48,50,000/- towards the total sale consideration of the said property. It was the obligation of the defendant to produce the original title deeds/documents and papers on the payment of said amount. The defendant was approached by the plaintiff many times to show the original title deeds. However, according to the plaintiff, the defendant avoided the same by telephonic message dated 12 th June, 2008. Urging the defendant to produce the original papers, the defendant replied to the said message and asked the plaintiff to inspect the title deeds at his Advocate‟s office.
5. There was a correspondence between the parties but the plaintiff was not able to see the original papers. Later on, it was revealed by the plaintiff at the time of executing the agreement to sell that the said property was already mortgaged with the ICICI Bank. The defendant has admitted this fact in the notice dated 26th June, 2008.
6. It is alleged in para 20 of the plaint that the defendant on the other hand has forfeited the advanced amount paid by the plaintiff in spite of the fact that the plaintiff has been deceived and defrauded by the Page 2 of 6 CS(OS)1610/2008 defendant. The plaintiff has also alleged in the plaint that in order to show his bona fide, the plaintiff had applied the home loan with Citi Financial Consumer Finance India Limited which had approved an amount of Rs. 99 lakhs. The advance payment made by the plaintiff was used by the defendant to redeem the mortgage. Therefore, the plaintiff has an equitable right in the said property.
7. Thereafter, it came to the notice of the plaintiff that the defendant is trying to sell the said property to a third party. As per these facts, the suit has been filed by the plaintiff for injunction and damages.
8. The defendant has filed the written statement and has raised various objections. One of the objection raised by the defendant that the plaintiff has not paid the remaining amount as balance consideration. Therefore, the delivery of vacant and peaceful possession has not been given to the plaintiff. It is also stated in the written statement that when the time was fixed to show the original papers in the office of the defendant‟s counsel, the plaintiff did not turn up at the office of the counsel to inspect the original papers.
9. It is stated that the defendant had equitably mortgaged the suit property as a security for the overdraft facility in the account with ICICI Bank. The defendant sent a legal notice dated 26 th June, 2008 that if the plaintiff "avoids to perform his part of the contract beyond 30 th June, 2008", the defendant will have no option but to take appropriate steps to protect his interests. The defendant appointed M/s Central Cargo, Packers & Movers, who are in the business of shifting household Page 3 of 6 CS(OS)1610/2008 materials and vacated the suit property on 29 th June, 2008 for delivery to the plaintiff.
10. The agreement envisaged that the plaintiff shall pay a sum of Rs. 50 lakhs as part consideration to the defendant „on or before 7 th May, 2008‟. Since the said payment has not been made by the plaintiff, therefore, the defendant was not able to purchase the property at Vaishali, Ghaziabad as he required the money to pay for the purchase of this property.
11. It is stated that the defendant had in appropriate good time redeemed the mortgage of the suit property; obtained the title documents of it; made it free from all encumbrances. The plaintiff did not visit the suit property on 30th June, 2008. It is denied that the suit property had not been vacated on the said date. The suit property had been vacated on 29th June, 2008 and was in a deliverable condition on 30th June, 2008. The defendant has the original title deeds of the suit property ready with him for giving an inspection to the plaintiff.
12. The defendant prayed that he has no objection in selling the suit property to the plaintiff upon the plaintiff paying the agreed balance consideration together with interest @ 18% p.a. compounded quarterly from 30th June, 2008 till the date of payment of balance consideration to the defendant together with the costs of the suit.
13. I have heard learned counsel for the parties. It is not in dispute that the parties have entered into an agreement to sell dated 17th March, 2008. The defendant has not disputed the fact of execution of Page 4 of 6 CS(OS)1610/2008 agreement to sell dated 17th March, 2008 as well as the clause mentioned in the agreement that the said property was free from all sort of encumbrances such as prior sale, gift mortgage, charges, lien, attachment surety etc. He has also admitted in the notice dated 26th June, 2008 that the property agreed to be sold was equitably mortgaged with the ICICI Bank.
14. There was also an obligation on the part of the defendant as per the agreement to produce the original title deeds, documents and papers on payment of the amount. The part payment for the sum of Rs. 48,50,000/- is also not disputed by the defendant. The defendant has not handed over the peaceful possession of the suit property. The plaintiff has also alleged that the loan of Rs. 99 lakhs was approved by the Citi Financial Consumer Finance India Limited. Further, it is not in dispute that the suit property was already mortgaged with the ICICI Bank on the date of Agreement dated 17th March, 2008. Prima facie, it appears that this fact has not been disclosed by the defendant to the plaintiff, otherwise he might not have entered into an agreement with the defendant.
15. Considering the overall facts and circumstances of the matter, I am of the view that this is a prima facie fit case for grant of an ad interim injunction in favour of the plaintiff and against the defendant. Balance of convenience and equity lies in favour of the plaintiff and against the defendant. Grave and irreparable loss and injury shall be caused to the plaintiff if the injunction is not granted at this stage. Page 5 of 6 CS(OS)1610/2008
16. Accordingly, during the pendency of the suit, the defendants are restrained from transferring, disposing of, selling or creating any third party interest in the suit property bearing no. I-74, Ground Floor, Phase I, Ashok Vihar, Delhi-110052.
This application is allowed in the above terms.
MANMOHAN SINGH, J.
APRIL 06, 2009 SD Page 6 of 6 CS(OS)1610/2008