Atul Talwar vs Vinod Kumar Khurana And Ors.
1995 Latest Caselaw 1018 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The main suit is for specific pertormance. Ia No. 8049/ 95 was filed for injunction by the plaintiff. Ia No. 81S6/95 was filed by the defendants for vacating the ad interim injunction granted On 29.08.1995 Ia No. 8049/95 was dismissed for default. It will appear that there was an appeal against that order. On 19.10.1995 the Division Bench passed an order in effect setting aside the order of the dismissal in view of the submission made by learned Counsel for the defendants that he would not oppose the application filed by the plaintiff for restoration of Ia No. 8049/95. Ia No. 8584/95 (Under Order 9 Rule 4 CPC) is for restoration of the dismissal of Ia No. 8049 /95 on 28.9.1995. Therefore Ia No. 8584/ 95 is allowed. Ia No. 8049/95 for injunction stands restored.

(2) Ia No. 8049/95 for injunction is dealt with Ia No. Si 86/95 which is filed by the defendants for setting aside the ad interim order. Then- is also another Ia filed by the plaintiff subsequently i.e. Ia 9545 /95 purporting to be under Order 39 Rules 1 and 2 read with Section 52 of the T.P Act. there are four defendants in the suit. Defendants 3 and 4 are the owners of the plot No. H-13/8, Malaviya Nagar, New Delhi. Defendants I and 2 are the builders.

(3) The case of the plaintiff is that defendants 1 and 2 under some collaboration agreement took over the said plot No. H-13/8, Malaviya Nagar, New Delhi for the purpose of putting up a complex. Defendants I and 2 represented the plaintiff in February 1993 that they had the right to construct on the property. Defendants I and 2 have the full disposing power to sell the second, third, fourth floors and the basement of the said property. Defendants 1, 2 and the plaintiff had a discussion and the defendants I and 2 agreed to sell to the plaintiff the second, third and fourth floors and the basement of the property. On 8.2.1993, defendants I and 2 after receiving a sum of Rs. 1,00,000.00 as advance and part sale consideration issued a receipt. The receipt contained the essential terms and conditions of the transaction of the sale. On 7.4.1995, a further sum of Rs. 1,50,000.00 was paid over by the plaintiff to defendant No. 1. On 8.6.1995 another sum of Rs. 2,50,000.00 was paid over to the first defendant by the plaintiff. The total consideration for.sale of the above property is Rs. 8,75,000.00. In para 4 of the plaint the main terms and conditions of the sale duly agreed to between the parties are detailed as under : "(A)that the property to be conveyed is basement, second floor, third floor and fourth floor of H-13/8, Malaviya Nagar, New Delhi. (b) that the total sale consideration is Rs. 8,75,000.00. (c) that the sellers shall receive the whole of the .sale consideration except a sum of Rs. 3,75,000.00 by or on the completion of superstructure. (d) that the balance sale consideration of Rs. 3,75,000.00 shall be payable by the purchaser on completion and delivery of possession. (e) that the sale deed shall be registered at the cost of the purchaser. (f) that the painting, polishing and sanitary etc. shall be the responsibility of the purchaser. (g) that the delayed payment shall attract 2% p.m. interest. (h) that the construction shall be completed within two years (i) that the contract shall be irrevocable."

(4) According to the plaintiff a week before filing of the suit he learnt that defendants I and 2 are trying to negotiate for the sale of the property and therefore, the plaintiff had to file the present suit.

(5) The plaintiff has filed the alleged receipt dated 8.2 1993 and also the receipt showing the payment of Rs. 2,50,000.00 and Rs. 1,50,000.00.

 (6) Defendants I and 2 have filed the written statement and the case of the defendants is this. Defendants I and 2 has filed a suit bearing No. 1582/95 against Shri Madanlal Talwar father of the plaintiff claiming certain reliefs on the ground that they had taken loan from him to the tune of Rs. 5,65,000.00. The details of the loan taken is as follows :      Detail sot Mode of Payment Amount of Receipt 10.9.1992 By cheque Rs. 35,000.00 8.2.1993 By cheque Rs. 1,00,000.00 17.2.1993 By cheque   Rs. 2,00,000.00 8.2.1993 By cheque Rs. 1,35,000.00 8.5,1993 By cheque Rs. 95,000.00 Total = Rs. 5,65,000.00    

 (6) The defendants have paid so far Rs. 13,25,000.00,is stated by them in the written statement in the following terms : The defendant No.1 and 2 jointly repaid the amount till July, 1995of a sum of Rs. 13,25,000.00 in cash to the father of the plaintiff towards the loan amount with interest, the details of which are given below :      Date of Payment Mode of Payment Amount of Payment 11.11.1993 By Cash Rs. 2,00,000.00 1.12.1993 By Cash Rs. 2,00,000.00 10.5.1994   By Cash Rs. 1,00,000.00 25.9.1994   By Cash Rs. 4,50,000.00 25.2.1995   By Cash Rs. 50,000.00 15.3.1995   By Cash Rs. 50,000.00 1.4.1995   By Cash Rs. 25,000.00 12.4.1995 By Cash Rs. 25,000.00 21.4.1995 By Cash Rs. 25,000.00 27.4.1995   By Cash Rs. 25,000.00 2.5.1995   By Cash Rs. 25,000.00 14.5.1995   By Cash    Rs. 25,000.00 25.5.1995   By Cash    Rs. 25,000.00 2.6. 1995   By Cash    Rs. 25,000.00 11.6.1995   By Cash Rs. 25,000.00 5.7.1995   By Cash    Rs. 25,000.00 Total = Rs. 13,25,000.00    

(7) The father of the plaintiff had taken signatures of defendants 1 and 2 on the blank papers as well as blank cheques to recover the amount from the defendants and that was only by way of caution. The father of the plaintiff had taken blank signed files containing the documents of transfer of the properties mentioned below to guarantee the refund of the loan : Details of the properties/flats/shop 1. Property bearing No. 19/36, Old ka)inderNagar, New Delhi. 2. Shops No 11.wd 12 L-81-B, Mal.iviya Nagar, New Delhi. 3. Property bearing No C-504, Majli.-, Park, New Delhi. 4. Duplux flat bearing No 19/36, Old Rajinder Nagar, Lower ground floor. New Delhi. 5. Flat bearing No. 13/9,01d Ra under Nagar, (upper ground flat New Delhi. third & fourth floor) 6. Flat bearing No. H-13/8, Mailviya Nagar, (Lower ground hall New Delhi. and second floor flat third floor flat (front and rare) and fourth floor flat. 7. Property bearing No 4A/42, Old Kajinder (second floor, third Nagar, New Delhi. floor and fourth floor). 8. The defendants I and 2 have sold the following properties with the consent of the father of the plaintiff by paying amount demanded by him and have handed over the blank signed files of some other properties/flat owned by the first and second defendants. The details of the properties sold by the defendant I and 2 are as follows: Particulars of properties Date To wh.

m sold 1. Duplux flat bearing 21.7.94 Sh. Prem Prakash No. 19/36, Old Gupta S/o Sh. D. Rajinder Nagar, L. Gupta R/0315, New Delhi (upper Prakash Building, ground floor) Teliw(r) Delhi. Maig, Mandir Square, i Alb. C-347, o R Mishra, M.D. Sh. s Mishra P.N. Nagar, Rajinder Old 21, 3 r Dhawan l\u Himat Dhawan R.N. Panarganj, Dhanda, Multani No.5, (all) 8310, Bhatia S.S. S Singh Rajinder 10.3.95 floor Fourth Floor Third Second 42, 4A No bearing Property 4. Malviya Village, Khirti Moongia Dass Notan K.K. (Front) 94 April flat New Nagar Malaviya 8, H-13 Flat Paharganj, Mutani 1375, Singh, Mininder Bhupindcr Delhi-6. Cinema, Navelty Tarabari, 1216, Sansi, Prakash Sh.On, W Sansi Sudhesil Smt. Haryana Jagadhari Yamuna Lane, Choti 1300, Narang. Harjit Narang Rohit Narang S.N. Rakesh D. I. ob Gupta ground Upper 9 13 No. 2. Teliwitra, Building, Prakash 315, P.P. Meena 21.7.94 Lower

(9) The father of the plaintiff inspite of defendants having paid the entire amount with interest refused to hand over the papers lying with him. A sum of Rs. 1,50,000.00 referred to the alleged receipt dated 8.2.1993 was by way of a cheque drawn on Bank of Rajasthan Ltd., Karol Bagh, New Delhi, from the account of the plaintiff through his father towards the loan amount. The defendants in that suit had also tasked for temporary injunction restraining the either from disposing of the property with reference to which first and second defendants had given the blank files and signed the blank papers and blank signed cheques. The father of the plaintiff gave an undertaking, the undertaking is still inforce. The father had set up the plaintiff to file the suit and there was no contract to sell the property and the blank papers had been used to create the documents. The case of the plaintiff is false because the Collaboration agreement was dated 15.2.1993 and on 8.2.1993 it is improbable that defendants 1 and 2 would have agreed to sell some portion of the properties to be constructed to the plaintiff. As per the collaboration agreement the owners were to be given flats in ground floor and the first floor and the first defendant to retain the second, third and fourth floors and the basement. The plaint in question i.e. H-13/8, Malaviya Nagar, New Delhi was in dispute and defendants 1 and 2 had to pay to Shri Sanathan Dharam Shiv Sewa Mandal (Retd.) Shiv Mandir, Malaviya Nagar, New Delhi, a sum of Rs. 7,50,000.00 by way of pay order dated 14.5.1993 and Rs. 10,000.00 in cash. A compromise was recorded by this Court in Rsa No. 274/84. Defendants I and 2 had to provide first floor and ground floor on Rs. 1,00,000.00 to defendants 3 and 4. Already a sum of Rs. 7,50,000.00 was paid to Sanathan Dharam Shiv Sewa Mandal (Retd.) Shiv Mandir, Malaviya Nagar, New Delhi, and, therefore, it was against the normal course of human conduct that defendants 1 and 2 would have agreed to sell at Rs. 8,75,000.00 a substantial portion of the building. On 10.2.1994 one front side of the flat of the second floor was sold to one Shri K.K. Mongia for Rs. 6,75,000.00 and the receipt to that showing the sale has been filed in Ia No. 8186/95. One flat on the third floor was sold to Smt. Veena Malik. The entire building was completed in April 1994. The present value of the property claimed by the plaintiff would be not less than 40,000,00.00 and it is clear that the plaintiff with the connivance of the father had created documents and had filed the suit. The defendants have denied execution of the receipts referred to by the plaintiff.

(10) The receipt dated 8.2.1993 is in white paper normally the agreement was engrossed in stamp paper. The thumb impression is not known who has put the thumb impression. It is not stated in the plaint that the second defendant who is the wife of the first defendant has put her thumb impression. In the written statement she has put the signatures in English. The plaintiff has signed in the alleged receipt stating "I confirm and shall keep bound' There is only one witness whose name is Darshan Lal, 29/3, East Patel Nagar, New Delhi, who is the witness not mentioned. The terms appear to me to be very out of the ordinary. Why should the contract be made irrevocable is not stated. The receipt process on the basis that as on 8.2.1993 the defendants 1 and 2 bear the onus of the properties and it is stated that the construction should be completed within two years. There is no mention that defendants 1 and 2 had entered into a Collaboration Agreement. In Clause D, it is stated that on the construction of superstructure a further sum of Rs. 4,00,000.00 shall be payable by the purchaser on payment and the remaining Rs. 3,75,000.00 as per the clause plaintiff shall be payable by purchaser on completion and delivery possession.

(11) The next receipt is dated 8.2.1994. This is also in an ordinary paper. The signatures of the second defendant are found first in English. The second signature is apparently by the first defendant. On the left hand side of the signatures of defendants 2 and 1 a revenue stamp of the value of Rupee one has been affixed and it is cancelled. There is no signatures on the revenue stamp. The contents again make a very interesting writing. On 7.4.1995 a sum of Rs. 1,50,000.00 was paid in cash. It is stated "Received with thanks from Shri Atul Talwar son of Shri M.L. Talwar a sum of Rs. 2,50,000.00 (Rupees two lakh fifty thousand only)". It is not stated whether the amount was paid in cash or by cheque. While the payment of Rs. 1,50,000.00 was paid on 7.4.1995 in cash and Rs. 1,00,000.00 was paid on 8.2.1993 by a cheque. It is stated therein that the period of completion is extended up to 30.10.1995 and by that time the possession shall be delivered. There are two witnesses on this receipt. One Shri Darshan Lal, East Patel Nagar, New Delhi and second Ravinder Kumar 9/2481, Bidanpura, Karol Bagh, New Delhi. The whole thing prima facie appears to be made up.

(12) The plaintiff was presented on 4.8.1995. It is not explained whether the building was completed and how the plaintiff has filed the suit when time for completion is extended up to 30.10.1995. It is not even stated as to why the signatures of Defendant Nos. 2 and 1 should be taken without affixing revenue stamp in the paper.

(13) The first defendant has filed the Collaboration Agreement with the owner of the flat and receipt for Rs. 25,000.00 from the owner and another receipt for Rs. 50,000.00 and a receipt issued to Mr. K.K. Mongia for the sale of the flat on second floor and possession letter giving the possession to Mr. Mongia is filed. The compromise dated 14.5.1993 between Shri Sanathan Dharam Shiv Sewa Mandal (Regd.) Shiv Mandir, Malaviya Nagar, New Delhi and Smt. Ishwari Devi w/o Shri R.K. Mongia is filed. A Banker's Check No. 0112705 dated 14.05.1993 for Rs. 7,50,000.00 showing the payment has been made to the Sanathan Dharam Shiv Mandal is filed. Receipt showing the payment of Rs. 10,000.00 received by Shri Sanathan Dharam Shiv Sewa Mandal (Regd.) in cash. A copy of the plaint in Suit No. 1582/95 is also filed. The relief paragraph of this suit is as follows : "IT is therefore prayed that this Hon'ble Court may be pleased to grant an exparte ad-interim injunction in favor of the plaintiffs and against the defendant thereby restraining the defendant from selling, alienating or otherwise disposing of the properties mentioned in para 7 f the plaint to any one with the help of blankly signed papers given to the defendant to guarantee the repayment of the loan, which has already been repaid in full by the plaintiffs till the disposal of the suit".

The undertaking given by be tethers of the plaintiff Shri Madan Lal Talwar is also filed.

(14) The learned Counsel for the plaintiff Mr. Sunil Magon submitted that on the basis of a mere receipt a suit for specific performance can be filed and defendants 1 and 2 cannot challenge the receipts filed by the plaintiff, in support of the contention he relied upon in the case of M/s. Nanak Builders and Investors Pvt. Ltd. v. Vinod Kumar Alag, Air 1991 Delhi Page 315. The proposition laid down in that case cannot at all be questioned by anybody. On the facts of that case the learned judge had decreed the suit for specific performance. I do not find anything that can be called in aid by the plaintiff in this case in proof of the agreement for sale by him on the facts and circumstances of this case. I am aware that defendants 1 and 2 are puting forth the plea of non-est factum and that has to be considered with very care and caution and the facts should be scare fully considered. In the absence of any acceptable explanation by the plaintiff with regard to the documents filed by him, I am not able to say that the receipt filed by the plaintiff regarding the contract between the parties having been arrived at on consensus ad idem prima facie the receipt filed by the plaintiff appear to be not contracts into the plaintiff and defendants 1 and 2 and in my view they are also not true. I am of the view that the case of first and second defendants appears to be a prima facie true. Therefore, I find that the plaintiff has not made out a prima facie strong case for grant of injunction. Therefore, Ia No. 8049/95 for grant of injunction is dismissed.

(15) About the balance of convenience there is no difficulty in holding that the balance of convenience is in favor of defendants 1 and 2 and. In the event of injunction being granted in favor of the plaintiff, the first and second defendants cannot deal with the property and ultimately if the suit is dismissed defendants 1 and 2 cannot be compensated in terms of money for the loss suffered by them. Whatever the transactions that defendants 1 and 2 may enter into with reference to the property that would naturally be subject to the outcome of the case and if injunction is refused and eventually the plaintiff succeeds the plaintiff can always have the property and the plaintiff can be put in the same position as on the date of the suit. Therefore, the plaintiff has not yet established that the balance of convenience in his favor.

(16) The plaintiff filed Ia No. 9545/95 under order 39 Rules 1 and 2 read with Section 52 of the T.P Act. As I have noticed above, claims of that application are as follows : (A)direct the parties to maintain status quo in respect of the subject matter of the suit i.e. the property in respect which the suit for specific performance is filed and/or restrain the defendants from causing/ creating any third party interest in the suit property or causing any transfer of possession or transfer of property till further orders of this Hon'ble Court. (b) Pass any other order or direction as may be deemed fit and proper in the facts and circumstances of the case

(17) Learned Counsel for the plaintiff cited number of decisions on the scope of Section 52 of the Transfer of Properties Act. He relied upon Ir 1948 Pc 147, Smt. Muktakeshi Dhawan and Ors. v. Haripada Mazumdar and Anr., , P. Lakshim Ammal v. S. Lakshmi Aammal & Ors., , Devraj Dogra and Ors., v. Gyan Chand Jain and Others, Air 1981 2 Scc 675, and Lov Raj Kumar v. Dr. Major Daya Shanker and Ors., Air 1986 Delhi page 364 at page 371. The principles are well settled and I am not able to appreciate the attempt of the plaintiff for a direction to maintain the status quo when the case of the plaintiff itself cannot be a prima facie accepted. I do not find any merit in this petition. Therefore, this Ia No. 9545/95 filed by the plaintiff for maintaining status quo is dismissed. Ia No. 8186/95 filed by Defendant No. 1 is allowed There shall be no order as to costs. Post the matter for for admission/denial of documents on 18.4.1996 before the Joint Registrar. Parties are at liberty to file their original documents within six weeks. Copies thereof be exchanged by the next date. Thereafter the suit be posted for framing of issues on 23.5.1996