* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 922/2008 & IA No. 5916/2008
Reserved on : 21.01.2010
Date of Decision : 09.02.2010
Shri Beg Raj Khatana ...... Plaintiff
Through: Mr. V.P. Katiyar, Advocate.
Versus
Smt. Raj Rani ...... Defendant
Through: Ms. Amrit Kaur Oberoi,
Advocate.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
V.K. SHALI, J.
1. This order shall dispose of an application filed by the plaintiff under Order 39 Rules 1 and 2 read with section 151 CPC.
2. Briefly stated the case of the plaintiff is that he had entered into an agreement to purchase the property bearing no. 1751/129, Shanti Nagar, Tri Nagar, Delhi-110035 on 12.12.2007 from its owner the defendant. It is claimed by the plaintiff that in terms of the said agreement the total amount of consideration payable by the plaintiff to the defendant was Rs.36,40,000/- out of which an amount of Rs.4,00,000/- was paid to the defendant by way of cash at the time of signing of the agreement. According to the terms and conditions of the agreement the balance amount of Rs.32,40,000/- was to be paid on 10th April, 2008. That is the date, which was allegedly fixed between the parties CS(OS) No. 922/2008 Page 1 of 7 for the purpose of execution of the sale deed. It is further alleged by the plaintiff that in pursuance to the said agreement he had got the drafts of the requisite balance amount of Rs.32,40,000/- prepared from the bank on 8.4.2008 and also purchased the stamp paper worth Rs.2,18,400/- on which the agreement was to be drawn. The plaintiff states that he had also sent a notice dated 24.03.2008 well in advance, to the defendant expressing his readiness and willingness to perform his part of the contract as he had got inkling that the defendant was trying to back out from the agreement. The defendant did not come forward and consequently the plaintiff was constrained to file the present suit for specific performance in which the application for interim injunction has been filed.
3. The defendant has filed written statement and the reply to the application. She has taken the plea that the facts which have been presented by the plaintiff are not correct. It has been stated by the defendant that as a matter of fact the plaintiff, who is resident of the same locality, had approached the defendant for purchase of the aforesaid house which is measuring approximately 98 sq. mts., comprising of ground floor, first floor and the second floor. It is alleged that on 9.12.2007 the plaintiff gave a sum of Rs.10,000/- as an earnest money and the plaintiff further stated that he would reduce the terms and conditions agreed into an agreement although a receipt was signed by the defendant. It is stated that in the receipt indicating the payment of earnest money it was specifically mentioned that the defendant's son Deepak would be retaining the first floor of the suit property and the property which was agreed to be sold to CS(OS) No. 922/2008 Page 2 of 7 the plaintiff (except first floor) for a total consideration of Rs.36,40,000/-. It is alleged by the defendant that on 12.12.2007 the plaintiff further paid a sum of Rs.2,35,000/- to the defendant and thus a total payment of Rs.4,00,000/- was received by the defendant. The plaintiff got an agreement typed in English, which was got signed from the defendant even without permitting her to be read. It is stated that she is an old lady and with a fading eye sight which is bordering blindness, and moreover, she does not know English, therefore, she did not and could not know the contents of the agreement although the signature on the agreement are admitted by her. It is alleged by her that the plaintiff has played fraud by obtaining the signatures of the defendant on the said agreement purported to represent as if the entire property was agreed to be sold by the defendant to the plaintiff while as what was sold by her was only the entire property minus the first floor which she intended to retain for herself. Thus she has resisting the passing of any interim order in favour of the plaintiff as the entire case of the plaintiff is based on concealment of fact and on fraud.
4. The plaintiff in replication has not denied the fact of the payment was made on 09.12.2007 or 10.12.2007 but he has denied that what was agreed to be sold to him was only the property minus the first floor. He has denied the allegations against him that he is property dealer or a speculator and given names of number of organizations in order to justify that he is holder of different posts in these organizations and thus a respectable person. It has also been stated by him that no doubt the documents were signed by way of bayana-cum-receipt CS(OS) No. 922/2008 Page 3 of 7 agreement on 10.12.2007 but since the defendant wanted to retain the first floor, therefore, the said agreement was cancelled and the original bayana-cum-receipt agreement was torn while as it seems that the defendant had retained the carbon copy of the same which she is trying to use now to her own advantage. It was also contended by him that it was at the instance of the defendant only that two days later, on the morning of 12.12.2007 he went to the house of the defendant where she agreed that she was willing to sell the entire property to the plaintiff for a total consideration of Rs.36,40,000/- and for this purpose she had persuaded her son Deepak who was in occupation of the first floor.
5. I have heard the learned counsel for the petitioner as well as the defendant.
6. The main contention of the learned counsel for the plaintiff is that the defendant admittedly is not denying the signatures on the agreement dated 12.12.2007 and the only defence which she has put up is that what was agreed to be sold to the plaintiff was the entire suit property minus the first floor which is at best raising a triable issue. It could not be said that the plaintiff has no prima facie case. It is contended by him that the balance of convenience is also in favour of the plaintiff and that the plaintiff will suffer irreparable loss in case the defendant is not restrained from creating third party interest in respect of the suit property during the pendency of the suit.
7. As against this, the learned counsel for the defendant has urged that no doubt has admitted the signatures on the agreement dated 12.12.2007 but has contended that since the entire case CS(OS) No. 922/2008 Page 4 of 7 of the plaintiff is based on concealment of fact and fraud, therefore, not only the plaintiff is not entitled to any injunction but the entire suit deserves to be thrown out. The learned counsel for the defendant in this regard has relied upon the case titled Sanjeev Narang Vs. Prism Bildcon Pvt. Ltd. 154(2008) DLT 503(DB), M/s Seemax Construction (P) Ltd. Vs. State Bank of Nida & Anr. AIR 1992 DELHI 197 and S.P.
Chengalvaraya Naidu Vs. Jagannath Air 1994 SC 853 to urge that the petition itself and not only the stay does not deserve to be granted because of the concealment of fact and withholding of material document by way of bayana-cum-receipt agreement by the plaintiff.
8. I have considered the submissions of the respective sides. I have gone through the authorities submitted by the learned counsels.
9. No doubt, the Courts have consistently taken the view that the grant of interim injunction is a discretionary relief and a person coming to the Court and praying for such a relief must come with clean hands. He should not withhold material information or a document so as to gain advantage over the other and if it does so then not only he is not entitled to the interim relief but even the suit itself can be thrown out.
10. Coming back to the facts of the present case it is not disputed that the defendant had signed an agreement dated 12.12.2007 in which the total sale consideration and the description of the property is given. It is also not in dispute that in this agreement this fact is not mentioned that any of the floors much less the first floor would be retained by the defendant. The amount of CS(OS) No. 922/2008 Page 5 of 7 Rs.4,00,000/- by way of earnest money having been received by the defendant is also not disputed. The only contention which has been put by the defendant is that prior to the agreement to sell dated 12.12.2007 there was a bayana-cum-receipt agreement drawn and in which, it was mentioned that what was agreed to be sold by the defendant was the entire property minus the first floor and this agreement has not been referred to in the petition at all and hence there is concealment of material facts by the plaintiff disentitling to any injunction. The factum of the document having not been mentioned in the plaint deliberately has been refuted by the plaintiff by contending that since this agreement was not acted upon and was torn at the time of signing of agreement dated 12.12.2007, therefore, this agreement has not been referred to in the petition.
11. A perusal of this bayana-cum-receipt agreement does not show that the defendant did not intend to sell the first floor. The only impression prima facie which one gets is that the only possession of the first floor was not to be handed over to the plaintiff by the defendant at the time of the agreement. Non- handing over of the possession by the defendant to the plaintiff could not be construed as the intention of the defendant to not to sell the said property to the plaintiff in any case. This is the defence of the defendant which he has to establish by adducing evidence during the course of trial. At this stage, because of this reason it could not be assumed that plaintiff does not have any prima facie case especially when he has paid a sum of Rs.4,00,000/- as part payment or earnest money and shown his financial capacity also by producing certificate of the bank that CS(OS) No. 922/2008 Page 6 of 7 he had got the draft for the balance of Rs.32,40,000/- also prepared at the relevant time. This is further coupled with the fact that he had purchased the requisite amount stamp papers also.
12. Even the plea which is taken by the defendant that the entire transaction is vitiated by fraud is yet to be established by producing evidence and merely by taking the plea it cannot be said that the case of the plaintiff or his application under Order 39 Rules 1 and 2 read with section 151 CPC deserves to be dismissed. The judgments which have been relied upon by the defendant in this regard can be distinguished on this ground alone that in those cases the fraud has been established while as in the present case it is only an allegation and is yet to be established.
13. For the reasons mentioned above, I am of the considered opinion that the plaintiff has got prima facie has a good case, the balance of convenience is in his favour and that the plaintiff will suffer an irreparable loss and I, therefore, confirm the stay granted ex-parte by this Court on 22nd May, 2008 against the defendant restraining them or their agents, or attorneys etc. shall not part with the possession or the title of the property or a part thereof or create any third party interest in respect of suit property no. 1751/129, Shanti Nagar, Tri Nagar, Delhi-110035 during the pendency of the suit. Accordingly, the application is allowed.
V.K. SHALI, J.
February 09, 2010 KP CS(OS) No. 922/2008 Page 7 of 7