$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 25.10.2010
+ CS(OS) 1088/2009
ASHOK KUMAR AGGARWAL ..... Plaintiff
versus
SMT. CHANDRA KANTA YADAV ..... Defendant
Advocates who appeared in this case:
For the Plaintiff : Mr. S.P. Singh
For the defendant : Mr. Kuldeep Singh
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1.
Whether Reporters of local papers may be allowed to see the judgment? :NO
2. To be referred to the Reporter or not? :NO
3. Whether the judgment should be reported :NO in Digest?
V.K. JAIN, J(Oral) I.A. No. 7726/2009(u/O 39 R 1 & 2 CPC) This is an application for grant of interim injunction restraining the defendant from alienating, encumbering or creating any third party interest CS(OS) 1088/2009 Page 1 of 9 in property No.508/2 measuring 200 sq. yds. out of khasra No.999/526/2 in the abadi of Ashok Nagar, Delhi-93 during pendency of the suit.
2. It is an admitted case that the defendant had agreed to sell property No.508/2 measuring 200 sq. yds. comprised in khasra No.999/526/2 in the abadi of Ashok Nagar, Delhi-93 to the plaintiff for a total sale consideration of Rs.46,50,000/- vide agreement to sell dated 03.04.2008 and had received a part payment of Rs.5 lakhs from him on the same date. The balance amount was to be paid to the defendant on or before 30.06.2008. It is also an admitted case that the plaintiff made a further payment of Rs.5 lakhs to the defendant on 20.05.2008 and that payment was also acknowledged on the back of the agreement dated 03.04.2008. The case of the plaintiff is that on 25.06.2008 Shri Vijay Yadav, husband of the defendant came to his house and took the original agreement to sell from him on the pretext of obtaining sanction/NOC, in order to execute the sale deed in favour of the plaintiff. It is further alleged that the original document was not returned thereafter despite request of the plaintiff. According to the plaintiff, the defendant later on agreed to executve the sale deed and asked him to reach the office of the Sub-Registrar on 30.06.2008. The plaintiff claims to have reached the office of the Sub- CS(OS) 1088/2009 Page 2 of 9 Registrar on that date and waited there till 5:00 P.M. According to him, the defendant did not turn up in the office of the Sub-Registrar. A legal notice dated 11.08.2008 was also sent to the defendant asking him to take the balance amount and execute the sale deed in favour of the plaintiff. Vide reply dated 28.08.2008 the defendant claimed that she had returned the entire amount of Rs. 10 lakhs which she had taken from the plaintiff and the original agreement was destroyed.
3. In her written statement the defendant has alleged that it was the plaintiff who committed default in payment of the balance amount and did not reach the office of the Sub-Registrar on 30.06.2008. The defendant claims that she had reached the office of the Sub-Registrar on that date and had also purchased a judicial stamp paper from a stamp vendor in token of her having attending the office of the Sub-Registrar on that date. She also claims to have got herself registered by way of Form No.3 at serial No.130 on that date. On merits it has been alleged that when the plaintiff did not turn up in the office of Sub-Registrar on 30.06.2008, she contacted him in this regard. On being contacted by the defendant, the plaintiff told her that he was not in a position to arrange the balance amount and requested her CS(OS) 1088/2009 Page 3 of 9 to return back the amount of Rs.10 lakhs which he had paid to her. The defendant has alleged that she had agreed to the request of the plaintiff and made payment of Rs.10 lakhs to him which he acknowledged on the back side of the agreement to sell, in the presence of witnesses on 20.07.2008.
4. At this stage, it is not possible for the Court to decide as to whether it was the plaintiff or the defendant or both the parties who had attended the office of the Sub-Registrar on 30.06.2008. This is a matter which requires recording of evidence, before any finding can be given either way. However, the fact remains that there is no dispute between the parties as regards the execution of the agreement to sell dated 03.04.2008 and receipt of Rs. 10 lakhs by the defendant from the plaintiff in two installments of Rs.5 lakhs each first on 03.04.2008 and the second on 20.05.2008. Whereas the alleged payment of Rs.10 lakhs by the defendant to the plaintiff is disputed by the plaintiff.
5. As regards the alleged return of Rs. 10 lakhs to the plaintiff by the defendant on 20.07.2008, when questioned in this regard, the learned counsel for the defendant states that the original document, at the back of CS(OS) 1088/2009 Page 4 of 9 which the plaintiff had acknowledged the receipt of Rs.10 lakhs from the defendant, was destroyed by the plaintiff in the presence of the defendant and two witnesses.
6. I fail to appreciate how the defendant could have allowed such an important document which was the only documentary evidence of the alleged payment of Rs.10 lakhs by her to the plaintiff, to be destroyed like this. One has to keep in mind the fact that the alleged payment of Rs.10 lakhs was made in cash and not by way of a cheque or a draft/pay order. If a person who has agreed to sell her property to a person refunds the entire amount received by her and the agreement is cancelled with the mutual consent of the parties as the defendant before this Court claims, he/she would rather preserve instead of allowing the only documentary proof of the transaction to be destroyed. The defendant has placed on record, a copy of the acknowledgement alleged to have been made by the plaintiff, while receiving Rs.10 lakhs from her on 20.07.2008; but, that document has been denied by the plaintiff, today in the Court. Since the plaintiff has denied the alleged receipt of Rs. 10 lakhs from the defendant, it is difficult for this Court, at this stage, to accept, even prima facie, that the plaintiff CS(OS) 1088/2009 Page 5 of 9 had received a sum of Rs.10 lakhs from her on 20.07.2008. Another important aspect in this regard is that when asked as to from where the defendant arranged Rs.10 lakhs alleged to have been paid by her to the plaintiff. The learned counsel for the defendant states that it was the same money which the defendant had received from the plaintiff in two installments on 03.04.2008 and 20.05.2008. Ordinarily, one would not like to keep such a huge amount idle in his house, without its earning any interest for the person who has received the amount. One would rather like to earn some interest by depositing that amount in a bank either in FDR or in a savings account. This becomes important when the other party denies having received the alleged cash payment.
7. Another important circumstance is that though in their pleadings both the parties claim that they had agreed to reach to office of Sub- Registrar on 30.06.2008 neither of them claims even to have got the sale deed typed on or before 30.06.2008. Neither of them claim even to have purchased the requisite stamp paper(s). They do not say that the stamp papers were to be purchased and the sale deed was to be typed in the office of Sub-Registrar on 30.06.2008. I, therefore, fail to appreciate for CS(OS) 1088/2009 Page 6 of 9 what purpose the parties would go to the office of Sub-Registrar on 30.06.2008, when even the sale deed was not ready for registration. There is no reference to the visit to the office of Sub-Registrar either in the notice sent by the plaintiff or in the reply sent by the defendant. It appears to me that probably neither party reached the office of Sub-Registrar on 30.06.2008.
8. For the reasons given in the preceding paragraphs, I am of considered view that the plaintiff has a good prima facie case in his favour. The suit filed by the plaintiff itself may get frustrated if the defendant is not restrained from selling, alienating, transferring or parting with possession of the suit property during the pendency of the suit. On the other hand, the defendant is not likely to suffer any hardship if the injunction as sought by the plaintiff is granted, particularly, when she does not say that she wants to dispose of the property in near future. Of course, the plaintiff also needs to establish his bonafide before he can claim any injunction against the defendant and considering that the learned counsel for the plaintiff states that the plaintiff will deposit the balance amount of Rs.36 CS(OS) 1088/2009 Page 7 of 9 lakhs by way of FDR in the name of the Registrar General of this Court within four weeks from today.
9. The defendant is hereby restrained from selling, alienating, transferring or parting with possession of the suit property No.508/2 measuring 200 sq. yds. out of khasra No.999/526/2 in the abadi of Ashok Nagar, Delhi-93 during pendency of the suit, without prior permission of the Court. She is also restrained from creating any kind of third party interest in the suit property during pendency of this suit. This order is subject to the plaintiff depositing a sum of Rs.36 lakhs within four weeks by way of FDR in the name of the Registrar General of this Court. This is subject to a further condition that the plaintiff will file an affidavit by way of evidence within four weeks from today and will also produce his witnesses on the very first date which may be fixed for the purpose of their cross- examination as also on the subsequent dates, to which the case may be adjourned, for their cross-examination. The application stands disposed of. CS(OS) 1088/2009 The pleadings and admission denial of documents are complete. CS(OS) 1088/2009 Page 8 of 9 The following issues are framed on the pleadings of the parties:
1. Whether the plaintiff had received Rs.10 lakhs from the defendant on 20.07.2008 and had destroyed the original agreement to sell as alleged in the written statement? OPD.
2. Whether the plaintiff has always been ready and willing to perform his part of the agreement? OPP.
3. Whether the plaintiff is entitled to the relief claimed? OPP.
4. Relief.
No other issue arises or is claimed.
The evidence by way of affidavits be filed within four weeks. The plaintiff to produce his witnesses for cross-examination before the Joint Registrar, on 06.12.2010.
V.K. JAIN, J OCTOBER 25, 2010 RS CS(OS) 1088/2009 Page 9 of 9