Parasnath And Associates (P) Ltd. vs Kala Wati
1996 Latest Caselaw 522 Del

JUDGMENT

N.G. Nandi, J.

(1) In the suit for specific performance of Agreements to Sell dated 12.8.1994 in respect of property No. E-261, Greater Kailash Part-11, New Delhi, alleging the execution of agreement to sell in favour of each of the plaintiffs by defendants 1-3 respectively who are alleged to have obtained the sale deed of the said property from defendant No.4, who in turn allegedly obtained the General Power of Attorney from defendant No.6, who is the original owner of the said immovable property, by this application, the plaintiffs seek to restrain the defendants from changing the identity of the suit property by demolishing the existing structure of boundary walls and one room or by raising any type of new construction thereon and from alienating, encumbering or disturbing the status of possession of defendants 1-3 at the spot in respect of the suit property, particularly, by defendant No.6 or defendant No. 11; further seeking to restrain defendants 1-6 from executing any documents of transfer of ownership rights of the suit property in favour of any other defendant or in favour of any third party without the consent of the plaintiffs.

(2) The case of the plaintiffs, shortly stated is that plaintiff No. 1 is a Private Limited Company; that plaintiff No.2 is a Limited Company; that plaintiff No.3 is the sole proprietory concern; that defendants 1 to 5 are related amongst each other that defendant No. 1 is the mother of defendant No.5, grand mother of defendants 2 & 3 and mother-in-law of defendant No.4; that defendant No.6 is the person who was the original owner in respect of property No.E-261, Greater Kailash Part-11, New Delhi which he had purchased in terms of Sale Deed dated 3.12.1963; that defendant No.6 had executed General Power of Attorney dated 3.7.1993 in favour of defendant No.4 in respect of the suit properly Which was duly registered with the Sub- Registrar, Nardol, District Rohtak (Haryana) whereby defendant No.4 was duly authorised to sell, transfer and convey or otherwise to deal with the said property in any manner she liked; that it was also represented by defendant No.l-5 that an Agreement to Sell dated 3.7.1993 was also executed between defendant No.6 and defendant No.4 and that defendant No.4 also reported to have paid a valuable consideration to defendant No.6 in respect of the said property; that on the strength of the General Power of Attorney dated 3.7.1993 executed by defendant No.6 in favour of defendant No.4, defendant No.6 acting through and by the hands of defendant No.4 executed and got registered three numbers of sale deeds dated 12.7.93 respectively in favour of defendants 1-3 whereby l/3rd undivided share in respect of the said property was sold, transfered and conveyed by defendant No.6 through defendant No.4 to defendants 1-3 respectively by means of separate sale deeds of the same date and duly registered with the Office of the Sub-Registrar, Sub-District Iii, New Delhi-8; that the plaintiffs thereafter entered into separate agreements to purchase all dated 12.8.1994; that the consideration in all the agreements for the sale of property was Rs.l7.00 lakhs, earnest money paid Rs.2.00 lakhs; that in addition to the agreement to sell, defendant No.l had also executed an indemnity bond-cum-declaration dated 12/27.8.1994 in favour of plaintiff No.l, defendant No.2 had executed similar Bond-cum- declaration dated 25/27.8.1994 in favour of plaintiff No.2 whereas defendant No.3 executed similar bond-cum- declaration dated 12/27.8.1994 in favour of plaintiff No.3; that defendants 4 & 5 have witnessed these agreements to sell in favour of the plaintiffs; that in all consideration of Rs.6.00 lakhs was paid by the plaintiffs, i.e. Rs.2.00 lakhs each to each of defendants 1- 3; that the balance consideration under the respective agreement to sell was to be paid by the respective plaintiff to respective defendants 1-3 at the time of execution and presentation for registration of the respective sale deeds to the extent of l/3rd undivided share in favour of the respective plaintiffs together with the delivery of actual vacant and peaceful possession of the suit property to the plaintiff.

(3) The say of defendant No.6 is that the suit is barred by principles of resjudicata or constructive resjudicata inasmuch as the earlier suit No-92/92 (new No. 1068/93) filed by defendant No.5 on the similar cause of action stood dismissed by the court on 26.7.1994; that the suit is filed in collusion and connivance with the defendants, especially with defendant No.5 and his family members; that the suit is malafide to grab the property of this defendant taking undue advantage of his being Nri living in USA; that the plaintiffs have come to the court with unclean hands and made suppression of material facts and false fabrication of facts in order to create an illusion of cause of action, when there is no cause of action; that the suit has been filed on the basis of the forged documents; that this defendant is not aware of any of the alleged defendants 1- 5 or of their relationship with each other. It is asserted that this defendant is the owner of the suit land. It is denied that he has ceased to be the owner of the suit land; that this defendant had executed any document, such as General Power of Attorney and much less in favour of defendant No.4 and much less on 3.7.1993, further denying that General Power of Attorney was got registered by him at Narnod, District Rohtak, Haryana. It is stated that as a matter of fact, the answering defendant had not been present in India on the said date and there was hardly any question of executing any power of attorney by him; that the alleged power of attorney is complete forgery; that the execution of alleged power of attorney is ruled out from the fact that there had been chain of litigations between him and defendant No.5 from 20.11.92 to 21.12.94 vide Suit No-92/92. It is denied that this defendant executed power of attorney in favour of defendant No.4 or conferred any authority upon the alleged defendant to make any deal.

(4) The say of defendants 1-5 is that the suit is bad for misjoinder of parties inasmuch as three plaintiffs have joined in one suit having different and independent cause of action against different persons; that the relationship inter-se defendants 1-5 is not denied; that defendant No.6 was the owner of the suit property; that defendant No.6 had executed a General Power of Attorney appointing defendant No.4 as such; that defendant No.4 was authorised to deal with the suit property and to dispose of the suit property in whole or in parts with further authority to sign and execute the proper sale deed or deeds in respect of the suit property in whole or in parts; that the attorney so appointed was conferred with all powers; that the said General Power of Attorney was duly registered with the Sub-Registrar, Narnod, District Rohtak; that after its due execution and registration, the same was sent to defendant No.4 for implementation; that defendant No.6 had taken considerable money from defendant No.4 when all the required documents were so executed; that prior to that defendant No.6 had executed agreement to sell, receipt and Will in favour of defendant No.5; that the deal with defendant No.5 could not materialise so was dropped after the suit was filed in the court of law; that defendant No.4 as the General Power of Attorney holder of defendant No.6 executed three sale deeds dated 12.7.1993, in favour of defendants 1-3; that defendants 1-3 respectively had executed three separate agreements to sell in respect of their l/3rd undivided share in favour of each of the plaintiffs respectively.

(5) Defendant No.11 also filed his written statement to the suit, contending that the suit is misconceived and not maintainable.

(6) It is not in dispute that defendant No.6 is the original owner of the suit property bearing No. E- 261, Greater Kailash Part-11, New Delhi and that defendant No.4 executed sale deeds in favour of defendants 1-3 in respect of the said property and that defendants 1-3 respectively vide different agreements to sell in favour of each of the plaintiffs agreed to sell their l/3rd undivided share in the suit property; that defendants No.4 & 5 are wife and husband, No. 1 is the mother and No.2 & 3 the children of No 5; that the suit has been on the basis of the alleged agreement to sell executed in favour of each of the plaintiffs by defendants 1-3 respectively in respect of their l/3rd undivided share in the suit property. Defendant No.4, in her written statement, has alleged that defendant No.6 executed General Power of Attorney in her favour on 3.7.1993 and on the strength of the same she executed the sale deed in respect of the suit property in favour of defendants 1-3. Defendants 1-3 in their written statement admit to have agreed to sell their l/3rd undivided share respectively in favour of plaintiffs 1-3 respectively by executing different agreements to sell by each of these defendants. As far as this suit is concerned, defendants 1-5 have been supporting the plaintiffs. What is disputed, is, the execution of General Power of Attorney dated 3.7.1993 by defendant No.6, the original owner of the suit property in favour of defendant No.4.

(7) It may be noted at the out set that the plaintiffs are admittedly not in physical possession of any portion of the suit property. The plaintiffs in this Ia also pray for an injunction seeking to restrain the defendants especially defendants No. 6 or 11 from disturbing the status of possession of defendants 1-3 at the spot in respect of the suit property besides other injunctions, as aforestated.

(8) It is submitted by Mr. Sukhija, counsel for the plaintiffs, that defendant No.6 does not have any title over the suit property; that the General Power of Attorney in favour of defendant No.4 is duly registered in the Office of the Sub Registrar Narnod, District Rohtak, Haryana; that each of the plaintiffs gave public notice in the news paper after the agreement to sell in their favour by defendants 1-3 respectively; that the plaintiffs are entitled to specific performance of agreement to sell executed in favour of the respective plaintiffs by defendants 1-3 respectively and that questions involved in the suit require further scrutiny in as much as whether defendant No.6 on 3.7.1993 was in Usa or in India could be decided only on evidence; that defendant No.6 does not have any right, title or interest in the suit property since his General Power of Attorney, defendant No.4, had sold the suit property to defendants 1-3 who in turn agreed to sell their l/3rd undivided share to the respective plaintiffs.

(9) As against this, it is submitted by Mr. Gandhi, counsel for defendant No.6 that defendant No.6 had not executed any General Power of Attorney in favour of defendant No.4; that on 3.7.93 the defendant was not in India but was in USA; that the original documents of the property are still with him; that why should this defendant execute General Power of Attorney on 3.7.93 in favour of defendant No.4, the wife of defendant No.5, with whom this defendant was contesting litigation till 1995; that plaintiffs and defendants 1 to 5 are colluding with each other; that plaintiffs are admittedly not in possession of the suit land; that the alleged General Power of Attorney dated 3.7.93 in favour of defendant No.4 is fabricated; that when the property is situated at Delhi and parties are residing at Delhi, why the General Power of Attorney should be registered in Rohtak District; that no payment has been made to this defendant; that the sale deed by defendant No.4 in favour of defendants 1-3 is a fabrication and concoction.

(10) It is submitted by Mr. Sapra, counsel for defendant No.11 that this defendant supports defendant No.6.

(11) It is submitted by Mr. Kapur, counsel for defendants 1-5 that the General Power of Attorney in favour of defendant No.4 is registered document and not cancelled by defendant no.6; that there is collusion between defendant No. 6 and II; that defendants 1-5 have acted bonafide.

(12) Defendant No.6, as pointed out above, has disputed execution of General Power of Attorney in favour of defendant No.4, the wife of defendant No.5 on two grounds, (1) that in the month of July 1993, to be more precise on 3.7.1993, he was out of India in Usa And (2) the alleged General Power of Attorney in favour of defendant No.4 is a forgery. Pages 5 to 23 arc the copy of pass port including the Visa in the name of Krishan L. Adhlakha (defendant No.6). It is suggested that this passport with the photograph of the passport holder was issued in the year 1988 and renewed from time to time. Page 8 thereof suggests that the passport holder was granted leave to enter for six months'. There is a stamp of Immigration Officer (857) dated 7.11.1992 Heathrow (3). There is another endorsement which suggests the date of 5.12.92 of the Immigration Officer (513) dated 5.12.1992 Heathrow (3). Page 9 contains the endorsement of the Immigration Officer dated 23.12.1994 Heathrow (3). Page 18 contains the immigration endorsement of 22.12.94. Page 19 contains the endorsement of Us Immigration 210 New 270 dated 5.12.92. Page 21 contains stamp of Immigration Ixia Delhi W-IO (A) dated 10.12.94 whereas page 22 contains endorsement of Immigration Ixia Delhi dated 5.12.94 with similar endorsement of the same authority containing date 9.11.92.

(13) Defendant No.6 has also relied on certificate dated 18.10.1995, issued by Roche Vitamins & Fine Chemicals produced at page 24, which reads "Mr. Krishan L. Adlakha has been full-time employee of Hoffmann-La Roche Inc. Nutley, Nj (USA) since October 29, 1990. Our records indicate that Mr. Adiakha was working on July 2, 1993 until 4:00 p.m. Edt at Hoffmann-La Roche. If you need any further information, please let me know." It may be noted that there is a difference of 10 hours (approx) between the Indian Standard Time and the Time in Usa i.e. India is ahead by about 10 hours, meaning 4.00 p.m. in Nj (USA) would be 2 a.m. 1ST of the next day suggesting thereby 4.00 p.m. of 2.7.1993 in Nj (USA) would be 2 a.m. of 3.7.93 in India. The endorsement on the passport, especially of Immigration Ixia, Delhi of 9.11.92 would prima-facie suggest that holder of passport No. E 534014 landed at Ixia, Delhi on 9.11.92 the endorsement of Us Immigration 210 new 270 at page 19 suggests the return of holder of the said passport to Usa on 5.12.92 and thereafter he again landed at Ixia Delhi on 5.11.94. So it prima-facie appears that from 5.12.92 till November 1994, the holder of passport was in USA. As against this, the plaintiff and defendants 1-5 contend that power of attorney in favour of defendant No.4 by defendant No.6 is a registered power of attorney in the office of Sub Registrar at Narnod, District Rohtak. It is true that registration of a document, raises a presumption about the genuineness of the document and the same would be a rebut able presumption.

(14) It is suggested from the record that defendant No.5 had filed Suit No. 92/92 (New No. 1068/93) for specific performance of agreement to sell on the basis of the agreement to sell, receipt, affidavit and Will dated 21.3.83 against defendant No.6 and the said suit came to be dismissed on 26.7.94 and the restoration proceedings terminated on 21.12.94 and lastly on 6.3.1995. Defendant No.4 is the wife of defendant No.5, defendant No.l is the mother of defendant No.5, grand-mother of defendants 2 & 3 and mother-in-law of defendant No.4.

(15) It has been submitted by Mr. Sukhija that passport relied on by defendant No.6 can be a bogus passport and if a person is in Usa at 4 p.m. on 2.7.94, he can well be at Narnod on 3.7.1993. As pointed out above, 4 p.m. on 2.7.93, according to Us Standard Time, would be about 2 a.m. of 3.7.931ST. How a person can be at Narnod, District Rohtak (Haryana) by 5.00 p.m. of 3.7.1993.

(16) The plaintiffs in this Ia have been praying for injunction to protect the dispossession of defendants 1-3 by defendant No. 6 or 11. It is very strange that in a suit for specific performance of agreement to sell, executed by defendants No. 1-3, the plaintiffs would pray for such an injunction under Order 39 Rules I and 2 CPC. Plaintiffs are admittedly not in possession of the suit property. Defendant No.5 has lost the Civil Suit No. 92/92 (New No. 1068/93), finally in 1995 against No.6, as pointed out above. The Gpoa in favour of defendant No.4, in view of the entries in the passport of defendant No.6 as pointed out above and the copy of the certificate dated 18.10.94 (page 24), suggesting defendant No.6 to be in NJ-USA at 4 p.m. on 2.7.93 (2 a.m. 1ST of 3.7.1993) and the execution of Gpoa dated 3.7.1993 at Narnod, District Rohtak (Haryana) even when the parties are of Delhi and property situate at Delhi prima-facie does not appear to be a Gpoa executed by defendant No.6. Defendant No.4 being wife of defendant No.5, defendant No.l being the mother and defendant No.2 & 3 being the children of defendant No.4 & 5, the basis of the authority in favour of defendant No.4, as a Gpoa of defendant No.6, though registered before the Sub Registrar Narnod, District Rohtak, prima-facie does not found sound genuine. The relief of injunction being an equitable relief, one who seeks equity must come with clean hands and relief of injunction as regards status of possession of defendants No. 1-3 smacks of malafides on the part of the plaintiffs though the Gpoa in question being a registered document the presumption would be of its genuineness, I am not inclined to exercise the equitable jurisdiction in favour of the plaintiffs looking to the facts, which emerge from record as pointed out above, also considering the fact that the disputed Gpoa dated 3.7.1993 does not bear any photograph of defendant No.6 and probably that is why the registration is before Sub-Registrar, Narnod, District Rohtak (Haryana). For all these reasons the plaintiffs would not be entitled to the equitable relief of injunction since defendant No.4 prima-facie does not appear to have authority in law to bind defendant No.6 qua suit property, and that relief sought is to protect the possession of defendants 1-3.

(17) In the result, the Ia fails. Order dated 25.8.1995 is vacated.

(18) None of the above observations shall be construed to mean an expression or opinion on the merits of the contentions in the suit.