Raman Kumar Sood vs Dr. K.K. Rattan And Ors.
1998 Latest Caselaw 664 Del

JUDGMENT

S.N. Kapoor, J.

1. This order shall dispose of IA Nos. 8449/88, and 2024/93 for granting injunction restraining defendants No.1 to 4 and their agents from in any manner raising any construction, structure or any development or digging any tubewell in the suit land and from in any manner selling, alienating any vegetable, fruits or plants to any one till the disposal of the suit. IA No. 7095/95 under Order 39, Rule 4 for vacating the order of granting ad interim injunction by defendant No. 1 as of necessity is required to be disposed of along with the above said application.

2. First the relevant facts in brief. The plaintiff filed a suit for specific performance on the basis of an agreement dated 17th July. 1987 to sell 9 bighas 12 biswas 2 acres of land in Village Samalka, Tehsil Mehrauli within the Union Territory of Delhi at the agreed rate of Rs.3.57 lacs per acre of 4,840 sq. yds. and in the alternative, recovery of Rs.25,36,000/- as well as for injunction against transfer etc. It is claimed that defendant No.1 through defendant No.2 represented himself to be the full-fledged owner of the above said land. Defendant No.2 in addition to the representation made had sworn and compensated affidavit dated 17th April, 1987 swearing, inter alia, to the effect that such a general power of attorney has been executed by defendant No.1 in his favour on May 8, 1987 and had been duly registered with the Sub-Registrar of Assurance at Chandigarh on May 11, 1987. He has also produced a copy thereof indicating the authority to manage and control, to enter and to sign and execute the sale deed before the Sub-Registrar on behalf of defendant No.1. Defendant No.3 is a property broker working in the name and style of Deepak Properties and in the name of M/s. Delhi Apartments Private Limited-defendant No.4. Defendants No.5 and 6 are pro forma

defendants being real brothers of the plaintiff who formed part of the group along with the plaintiff.

3. The agreement was entered into for the sale of the land in suit at the rate of Rs. 3,57,000/- per acre of 4,840 sq.yds. The plaintiff claims to have paid to the seller a sum of Rs. 15,000/- vide cheque No. 128777 dated 17th July, 1987 by way of earnest money. The seller had acknowledged the receipt of the amount and agreed to hand over the possession at the time of registration of the sale deed. The defendants No. 1 and 2 were supposed to obtain all necessary permission/clearances from the Income Tax, Wealth Tax, Estate Duty Authorities for the transfer of the said land before the execution of the sale deed and to get the property mutated in favour of the plaintiff. The purchaser would have the right to get the sale deeds executed and registered in his own name or in the name of some nominees. On the pretext that substantial delay was likely to be caused in getting mutation entries made and for completing other formalities, at the behest of defendant No.2, advance payment against all the 9 agreements of the gross sale value of about Rs. 60 lacs, additional sum of Rs. 5 lacs was agreed to be paid. The second defendant agreed to the same and gave the break up of the amount to be paid in the name of three different sellers. Rs.2.50 lacs was to be paid by the plaintiff to defendant No. 1. Acting on the understanding and in deference to the wishes of defendant Nos. 1 and 2, the plaintiff paid to them a sum of Rs.2.50 lacs on 14th August, 1987 as part payment of the price of the land in suit payable. Another sum of Rs. 50,000/- was paid for defendant No.5 to defendant No.2 in connection with the agreement between sixth defendant and Kanwaljit Singh Bindra's group against duly stamped receipt of the second defendant and a sum of Rs. one lac was paid by the plaintiff, Rs. 50,000/- on behalf of plaintiff and Rs. 50,000/- on behalf of S.K. Sood defendant No.5 were paid to the second defendant who happened to be attorney of Inderjit Singh Bindra. The defendant No.2 continued to delay and postpone the performance of their part of the contract. After the proposed new national highway No.8 link was started in August7September, 1987, the continuous rise in the land prices in and around Delhi, specially relating to the land abutting on the new national highway 8 link and the lands immediately adjacent thereto, the defendant Nos. 1 and 2 turned dishonest and went on postponing performance of the contract. They did not furnish necessary clearance from Income Tax or other Authorities. Thereafter, the plaintiff sent letter dated February 16, 1988 to defendants No.1 and 2. The registration cover came back with the report "no one available". Thereafter, several legal notices were sent to defendant Nos. 1,2 and 3. Neither defendant No.1 nor defendant No.2 sent any reply. It appears that the defendants No.1 and 2 entered into conspiracy to cheat the plaintiff. As a consequence, the suit has been filed for specific performance of the contract and for permanent injunction as mentioned above and in that connection, injunction application IA No. 8461/88 has been filed.

4. The case of defendant No.1 is that the suit is based on forged documents. Defendant No.1 is a medical practitioner and residing in USA for the last 20 years. He never executed any power of attorney in favour of defendant No.2 and the power of attorney propounded by plaintiff is agreed and is forging the signatures of defendant

No.1. He never visited Chandigarh on the date May 8,1987 when the alleged power of attorney was purported to be executed by him. Defendant No.1 had not even come in the country at the relevant time. In respect of his contention, he relies upon photo copy of his passport. The address of the defendant No.1 is of Delhi and there was no occasion for him to go to Chandigarh to execute the power of attorney. The age is also incorrectly mentioned. He had not received any payment of Rs. 15,000/- through cheque. The plaintiff being aware of these facts, surreptitiously proceeded to deal with defendant No.2 without informing or taking the answering defendant No.1 into confidence in respect of the suit property and without making enquiry as to why the power of attorney was executed at Chandigarh. The plaintiff claims that the sale consideration was to be approximately Rs.7,14,000/- so far as the land of defendant No.1 is concerned. The plaintiff s claim in the plaint is that he had paid Rs. 15,000/- by cheque to defendant No,2 at the time of entering into the agreement to sale. The said cheque was in fact never issued or delivered to defendant No.1. Admittedly, no fur ther amount is said to have been paid through cheques. Defendant No.1 did not deal with or receive any consideration whatsoever from the plaintiff. It is admitted by the plaintiff that this cheque of Rs. 15,000/- was never encashed. The alleged payment of Rs. 2.50 lacs was not paid through cheque nor it was paid to the defendant No.1. The plaintiff never met defendant No.1 at any point of time nor did he make any efforts to verify about the genuineness of power of attorney. On this basis, it is claimed that the plaintiff is not entitled to any injunction and injunction granted is liable to be vacated.

On these very grounds, the plaintiff seeks rejected of the plaint also.

5. I have heard the parties Counsel and in order to have a clear picture, statement of Raman Kumar the plaintiff, was recorded on 11th February 1998. His statement reads as under:

I never met Dr. K.K. Rattan. I have not made any payment to Dr.K.K. Rattan directly. I made payment only to Mr. Jaswant Singh Bhullar, defendant No.2. I think that I found out a few months later that cheque of Rs. 15,000/-paid to Shri Jaswant Singh Bhullar for Dr. K.K. Rattan was not encashed. The amount was withdrawn in cash from the bank and thereafter it was paid. At that time there was no restriction to pay the amount in cash. I can show the withdrawals of the amount of Rs. 2,50,000/- from the banks. I have no personal contact with Dr. K.K. Rattan. I was only told by Shri Jaswant Singh Bhullar that Dr. K.K. Rattan has executed the power of attorney. I cannot say whether he was present in India or not at the time when the alleged power of attorney relied upon by Shri Jaswant Singh Bhullar was executed.

6. It is evident from the statement that there was no direct talk between Raman Kumar Sood and Dr. K.K. Rattan. It also appears that the plaintiff is not inclined to take any risk and responsibility to state that Dr.K.K.Rattan was in India or not when the alleged power of attorney was executed in May, 1987 for he never met him. From the photocopy of the passport, it is apparent that defendant No.1 had not come to India on May 8, 1987 to be present at Chandigarh to execute the power of attorney in favour of de-

fendant No.2. Obviously, the signatures on the photocopy of the power of attorney and the passport would not tally. In view of the fact that no enquiry whatsoever was made from the defendant No.1 while entering into the alleged agreement, the submission of learned Counsel for the defendant appears to be justified that the plaintiff has not entered into the transaction in good faith in absence of due care and caution and that the execution of the alleged power of attorney by defendant No.1 in favour of defendant No.2 is a matter of great doubt.

7. Besides, the payment through cheque of Rs.15,000/- was not accepted for it was not encashed. The plaintiff does not claim that any letter was sent enquiring as to why the cheque was not encashed. On this basis, the learned Counsel for defendant No.1 rightly submits that the plaintiff has got no case and some persons including defendant No.2 conspired to grab the land of defendant No. 1. No doubt, it was alleged that a sum of Rs 2.50 lacs was allegedly paid to defendant No.2. The learned Counsel for defendant was justified in submitting that if any amount has been paid to defendant No.2 and there is no power of attorney, as is evident, then no agreement ever existed at all between plaintiff and defendant No.1. For the action of defendant No.2 based on forged power of attorney, the defendant No.1 could not be bound down.

8. Taking into consideration overall facts and circumstances, it appears that the plaintiff has got no prima facie case so far as defendant No.1 is concerned, there appears neither any balance of convenience nor he is liable to suffer any irreparable loss. Consequently, I allow the application for vacating injunction and vacate the injunction order against defendant No.1 in respect of suit land. Consequently, for the aforesaid reasons, IA Nos. 8449/88, 2024/93 are rejected. IA No. 7095/95 is allowed. Stay in respect of land belonging to Dr.K.K. Rattan is hereby vacated.

9. IA No.7096/95 Heard.

In so far as the question of rejection of plaint is concerned, I find it difficult to accept the contention of learned Counsel for defendant to reject the plaint for the question of rejection of plaint depends upon the pleadings in the plaint and not on the basis of any prima facie and tentative view against the plaintiff. Since the allegation in the plaint make out a case, against defendant No.1, I find it difficult to reject the plaint.

The application IA No. 7096/95 is dismissed accordingly.

10. The matter be listed before concerned Bench as per roster (Hon'ble Mr. Justice A.K. Srivastava) for further directions on 16th September 1998, subject to orders of Hon'ble the Acting Chief Justice.