9.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: 25.11.2009
+ CS (OS) 255/2007
HUKAM CHAND KHATTAR ..... Plaintiff
Through: Mr. H.M. Singh with
Mr. Kaushik Yadav, Advocate.
versus
RABIR SINGH & ORS. .... Defendants
Through: Mr. Ranbir Yadav, Advocate for D-1-3.
Mr. Atul Nigam, Advocate for D-4.
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?
HON'BLE MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
% I.A. Nos.1579/2007 & 11758/2009
This order will dispose of the application for interim injunction under Order-39, Rules 1&2. Consequently, it would also dispose of the defendant's application - I.A.11758/2009.
2. The plaintiff seeks declaration against the defendants that the sale deed dated 8.5.2006 registered on 19.5.2006 in respect of 30 Bighas and 2 Biswas of land (hereafter referred to as the I.A. Nos.1579/07 & 11758/09 IN CS (OS) 225/07 Page 1 suit property) at Village and P.O. Tikri Kalan in effect is void and inoperative and also for consequent mandatory injunction to direct the defendant Nos.1-3 to execute the sale deed in the plaintiff's favour to the extent of 50% of the said suit land.
3. According to the suit, the plaintiff and defendant No.4 jointly agreed to purchase the 36.07 Bigas, which consisted of the suit land as well, from their owners - defendant Nos.1-3 for a total consideration of Rs.1,10,23,334/-. The plaintiff relies upon an oral understanding or agreement dated 5.10.2005. He refers in paragraph 4 of the Suit to 8 cheques having been issued on various dates between 5.10.2005 and 15.1.2006 to the said defendant Nos.1-3, the vendors towards his share of the agreed consideration. The plaintiff has placed on record copies of the statement of accounts issued by the Bank for the relevant period (refer to page 89&91, 92&93 of the documents submitted by the plaintiff). It is alleged that since the permission of the revenue authorities was required for the execution of the sale deed, application for that purpose, was moved. The plaintiff alleges that since the property prices in and around Delhi had started spiraling, the defendant No.4 (who had agreed jointly with the plaintiff to purchase 50% of the land), behind his back, conspired with the defendant No.1-3 and got the impugned sale deed executed and registered.
4. It is contended that the defendant No.4 adopted the stratagem of having the sale split into two transactions whereby 30 Bighas was conveyed to him and 6 Bighas was conveyed to the wives of defendant Nos.1-3. The plaintiff claims that he became aware of this development in June, 2006 and took remedial action as a result of which the mutation proceedings initiated by the defendant No.4 have been stayed. It is also alleged that Defendant Nos.1-3 applied and obtained NOC for the transfer of the land pursuant to the sale deed executed. The plaintiff alleges that unless the ex parte order, granted earlier, is confirmed, he would be put to substantial I.A. Nos.1579/07 & 11758/09 IN CS (OS) 225/07 Page 2 prejudice as the defendant would be free to deal with the property in the manner he chooses.
5. The 4th defendant in his written statement denies the transactions and contends that the plaintiff, a real estate agent (property dealer) has no privity of contract with him. The said defendant relies upon the sale deed and submits that he had entered into an independent agreement with the vendors i.e. defendant Nos.1-3 much prior to the date alleged by the plaintiff. In support, the fourth defendant relies upon the recitals in the sale deed to say that by October, 2005 (the time when the agreement is alleged to have been entered into in the Suit), a sum of more than Rs.45 Lakhs had already been paid to the defendant Nos.1-3. It is submitted that the sale deed mentions that payments of the total consideration of Rs.1,10,23,334/- was made through seventeen cheques - 12 of which were paid on or before 5.10.2005. It is submitted that in these circumstances, the entire case pleaded by the plaintiff is without substance.
6. The 4th defendant contends that there is no question of the plaintiff arguing that his (the said defendant's) appropriating any amount allegedly paid by him (the plaintiff), since the payment schedule is entirely different as also the dates of payment made to the defendant Nos.1- 3, which are different. It is submitted that the case sought to be made out displays collusion between the plaintiff and defendant Nos.1-3.
7. The defendant Nos.1-3 submit that the defendant No.4 had misled them into executing the sale deed and that they were under the impression that the entire consideration were to be shared by the plaintiff and the said defendant No.4.
8. The Court has considered the submissions. The plaintiff's case is that an Agreement was entered into between defendant No.4 & him with defendant Nos.1-3 Vendors on 5.10.2005. In support of this, there is no material other than the averments in the Suit and the bank statements annexed (along with the list of documents evidencing the payments to the defendant Nos.1-3).
I.A. Nos.1579/07 & 11758/09 IN CS (OS) 225/07 Page 3 On the other hand, the Sale Deed executed in favour of the fourth defendant shows that the payments were made even prior to 5.10.2005, commencing sometime in May, 2005. By 5.10.2005, no less than 12 cheques aggregating well over Rs.40,000,00/- had been issued. The plaintiff alleges awareness that the defendant Nos.1-3 executed and registered sale deed in favour of the fourth defendant sometime in June 2006. Curiously, they do not appear to have protested or taken any steps in this regard. There is no mention or whisper of legal notice or any other proceedings against Defendant Nos.1-3 by the plaintiff - in any event, there is no document substantiating this aspect. Considering that the plaintiff alleges having been paid value consideration exceeding Rs.50,000,00/- (Rs. Fifty lakhs) by that time, the inaction is curious and the least that the plaintiff could have done was to explain, why he kept silent on this score. No legal notice appears to have been issued to defendant No.1-3 before the present suit was filed.
9. The Defendant Nos.1-3, no doubt, facially appear to support the plaintiff in stating that the fourth defendant misled them into executing the sale deed favouring the fourth defendant. However, there is no specific denial of their having received the total consideration of Rs.1,10,23,334/- from the fourth defendant. They have not moved for cancellation of the document or disclosed that they ever approached any authority with the complaint for having been compelled to or misled into executing the sale deed. By all accounts, they appear to have willingly executed it after having received the consideration from the fourth defendant. It is not their case that the fourth defendant did not pay the said amount of Rs.1,10,23,334/-. It is quite possible that they also received some payments from the plaintiff - to what effect and with what motive, is a matter to be explored later during the course of the trial.
10. From the above discussion, it is apparent that the plaintiff has been able to show the existence of an oral agreement on 5.10.2005. He has only disclosed through the bank statements I.A. Nos.1579/07 & 11758/09 IN CS (OS) 225/07 Page 4 that some payments were made to the defendant Nos.1-3. The fact remains that the latter executed a sale deed in favour of the fourth defendant; that document is a registered one and testifies that payments were made by the fourth defendant in the period much prior to the alleged date of agreement to sell. Prima facie, this indicates that fourth defendant independently entered into arrangements much before the date alleged by the plaintiff. In these circumstances, the Court is of the opinion that the plaintiff has been unable to establish a prima facie case in support of his claim for grant of injunction.
11. In the above circumstances, the ex parte ad interim order dated 13.02.2007, cannot be continued; it is hereby vacated.
12. I.A.1579/2007 is, in view of the previous discussion, dismissed. For the same reasons, I.A.11758/2009 is allowed.
CS (OS) 15245/2007 List before the Joint Registrar for orders, on 1st February, 2010.
S. RAVINDRA BHAT
(JUDGE)
NOVEMBER 25, 2009
/vd/
I.A. Nos.1579/07 & 11758/09 IN CS (OS) 225/07 Page 5