Smt. Priti Agarwal And 2 Others vs State Of U.P. And Another
2021 Latest Caselaw 9216 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 4865 of 2021
 
Applicant :- Smt. Priti Agarwal And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deepak Kumar Pandey,Vipul Pandey
 
Counsel for Opposite Party :- G.A.,Prashant Kumar Singh,Sudhir Mehrotra
 
 with
 
Case :- APPLICATION U/S 482 No. - 5108 of 2021
 
Applicant :- Jyoti Prakash Newatiya And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deepak Kumar Pandey,Vipul Pandey
 
Counsel for Opposite Party :- G.A.,Prashant Kumar Singh,Sudhir Mehrotra
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Deepak Kumar Pandey, learned counsel for applicants and Sri Sudhir Mehrotra, learned counsel for opposite party.

2. These petitions under Section 482 Cr.P.C. have been filed seeking quashing of entire proceedings of Case No. 1389 of 2021 (State vs. Smt. Priti Agarwal And Others), arising out of Case Crime No. 04 of 2020 dated 05.01.2020 under Sections 406/420 IPC, Police Station-Kotwali, District-Kanpur Nagar, pending before the learned Chief Metropolitan Magistrate, Kanpur Nagar and also for quashing of the impugned chargesheet dated 24.07.2020 submitted against the applicants.

3. Learned counsel for applicants, submits that on 06.02.2007, a sale deed was executed in favour of applicant nos. 1 and 2 namely, Smt. Priti Agarwal w/o Sri Sameer Agarwal and Smt. Monika Agarwal w/o Late Praneet Agarwal respectively. This sale deed was executed by Smt. Pratibha Sehgal mother of opposite party no. 2 namely, Laxman Sehgal.

4. Opposite party no. 2 on 15.02.2007, filed Testamentary Suit bearing no. 03 of 2007, on which, relief of status quo was granted, but according to the present applicants, they were not made parties to the said testamentary suit. Later on, in 2009, a suit for cancellation of suit was filed by mother of opposite party no. 2-Smt. Pratibha Sehgal and that suit was decreed as ex-parte in 2011. It is submitted that on 31.03.2012, applicant nos. 1 and 2 had moved an application for recall of the ex-parte order of 2011, but that application was dismissed in March, 2021. It is submitted that on the strength of sale deed dated 06.02.2007, executed in favour of applicant nos. 1 and 2, they are competent to execute an agreement to sale in favour of co-accused-Jyoti Prakash Newatiya, who is applicant in Application u/s 482 No. 5108 of 2021.

5. Reading from agreement to sale, which has been enclosed by the applicants along with this petition as Annexure-4, it is submitted that in clause-3, applicant nos. 1 and 2 have disclosed about the pendency of the civil suit between the owner of the property and the applicant nos. 1 and 2 to the purchasers namely, Jyoti Prakash Newatiya, therefore, there is no suppression of any material fact. Thus, no illegality can be attributed in the impugned agreement to sale attracting provisions of Sections 406/420 IPC.

6. Learned counsel for applicants has also placed reliance on the judgment of Supreme Court in case of Kaliaperumal vs. Rajagopal and Another; (2009) 4 SCC 193, where in Supreme Court has held as under:-

"...............17. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of the Transfer of Property Act, 1882 ("the Act", for short) defines "sale" as "a transfer of ownership in exchange for a price paid or promised or part paid and part promised". If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non- payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act."

7. Placing reliance on this judgment, it is submitted that principle of 'lis pendens', will be still applicable to the case of the present applicant and case being purely of civil nature, no criminal case could have been initiated especially, when ingredients of Sections 406/420 IPC, are missing. It is further submitted that in case there was any deficiency in the payment of sale consideration consequent of sale deed dated 06.02.2009, then the remedy to the seller was for filing a suit for recovery and not for cancelling the sale deed.

8. It is submitted that recall application, moved by applicant nos. 1 and 2, has been dismissed by the court below mainly on the ground of limitation and a Writ Petition under Article 227 is pending before the High Court.

9. Sri Sudhir Mehrotra, in his turn, submits that once the sale deed was cancelled, then admittedly applicant nos. 1 and 2 lost their legal title and therefore, they are not entitled to mention in the agreement to sale that they are sole owner, possessor and title holder of the property and there are no other persons, who are partner or shareholder in the said property and the said property is clean from any kind of agreement, gift, sale or/surety. This recital itself reflects that there is an intention to cheat. It is further submitted that after cancellation of the sale deed, which admittedly came to the knowledge of applicant nos. 1 and 2, they were not entitled to enter into any sale transaction.

10. Similarly, it is submitted that another applicant-Jyoti Prakash Newatiya is a tenant in the said property. He was instituted as a tenant by owner of the property namely, Smt. Pratibha Sehgal. A suit for arrears of rent is pending against Jyoti Prakash Newatiya and he is not a stranger to the transaction, inasmuch as, he has entered into an agreement to sale with a view to avoid his liability to pay the arrears of rent. It is submitted all through Jyoti Prakash Newatiya, has knowledge of the fact that suit for cancellation of sale deed dated 06.02.2007, has been decreed in favour of Smt. Pratibha Sehgal and against that decree, recall application was filed in the year 2012, which continued to remain pending till 2021, but there was no stay on the judgment and decree of 2011 in the recall application and therefore, parties were not entitled to enter into an agreement to sale.

11. After hearing learned counsel for parties and going through the record, it is evident that definition of 'Criminal Breach of Trust', as provided under Section 405 IPC clearly reveals that prima facie, offence of criminal breach of trust, is made out. Similarly, definition of cheating provided under Section 415 IPC also reveals that prima facie, ingredients of Section 415 IPC are available, so to attract punishment under Section 420 IPC.

12. The fact of the matter is that once applicants have knowledge that the property in question in regard to which, they are entering into a transaction of sale and purchase, is not of their ownership, then merely on the basis of possession and pendency of some litigation, challenging ex-parte decree permitting cancellation of sale deed, will not be a sufficient ground to permit such person to enter into an agreement to sale to create third party rights during the pendency of such litigation especially, when such act is carried out without the leave of the court. If applicants would have been acting bonafidely, then they would have sought leave of the court where litigation is pending rather than entering into an agreement, suppressing vital facts and camouflage the agreement, merely by writing that the agreement will be given effect subject to the outcome of the litigation. Once a person is not having title of the property and is not the owner of the property, then in opinion of this Court, no agreement should have been executed and execution of such agreement especially, when all the facts regarding cancellation of the sale deed are within the knowledge of the applicant and there exist a decree of cancellation of sale deed, it cannot be said that applicant was acting bonafidely. As far as law laid down in case of Kaliaperumal(supra) is concerned, it is the case where it has been held that in case, there is any deficiency of sale consideration, then that is not a good ground to seek cancellation of a sale deed or getting it declared as null and void, but the remedy available to a seller is to sue the purchaser for payment of balance sale consideration. This judgment will not be of any help to the present applicant, inasmuch as, admittedly they had knowledge of passing of a decree cancelling the sale deed dated 06.02.2007 and therefore, had no locus for entering into a transaction of sale or purchase of a disputed property. Therefore, petition fails and is dismissed.

Order Date :- 2.8.2021

Vikram/-