Ajit Singh Gill & Ors. vs Arvind Khosla And Ors.
2001 Latest Caselaw 757 Del

ORDER

K.S. Gupta, J.

1. This order will govern the disposal of IA No.1043/97 filed under Order XXXIX Rules 1 & 2 read with Section 151 CPC by the plaintiffs and IA No.9977/98 under Section 151 CPC also filed by the plaintiffs.

2. Suit was filed alleging that plaintiff No.1 who has been carrying business of export of garments in the name of 'SIMRAN CREATIONS' as proprietor thereof, took the entire property bearing No.324, Sant Nagar, East of Kailash, New Delhi on monthly rental of Rs.12,000/- from defendant No.2 in January 1996. Said property comprises of basement; ground, first, second and third floors and was jointly owned by defendants 1 & 2 who are brother and sister. It is further alleged that approximately Rs.19,62,000/- had accumulated towards property tax against the said property and MCD, therefore, issued notice dated 16th June, 1995 for auction of property for recovery of the dues. Defendants No.1 expressed inability to pay his share of property tax dues and he asked defendant No.2 to explore possibility, for sale of the property to clear the dues. Defendant No.2 apprised plaintiff No.1 he being a family friend regarding auction notice as also the decision of defendants 1 & 2 to sell the property. It is stated that plaintiff No.1 offered to purchase the said property at the prevalent market price and to clear property tax dues. After informing No.1, the defendant No.2 sold the property to plaintiffs 1 to 4 under registered sale deeds, all dated 15th June, 1996. Amount of Rs.8,62,500/- being the share of sale consideration of defendant No.1, was sent to defendant No.1 by bank drafts through a registered cover dated 17th June, 1996 and the bank drafts were also got encashed by defendant No.1. Legal possession as owner of the property was also handed over to the plaintiffs on execution of sale deeds. It is also alleged that plaintiffs being permanent residents of Bombay, the business run under the said name in Delhi, was managed by Harvinder Singh under the guidance of defendant No.2. On 24th January, 1997, Harvinder Singh told plaintiff No.1 on telephone at Bombay that defendant No.1 Along with his brothers - defendants 3 & 4 and some other persons visited the said property and forcibly removed the staff of "SIMRAN CREATIONS' under threat of physical attack. Harvinder Singh had locked the said property before leaving. It is stated that plaintiff No.1 could reach Delhi only on the night of 28th January 1997 and on his visiting the said property on 29th January, 1997, he saw some bad elements sitting inside the gate. Accordingly, plaintiff No.1 telephoned the police at No.100 for assistance. On seeking police, goondas ran away except for one security man who was taken by the police to chowki. In the meantime, defendants 1, 3 & 4 reached there and told the police that efforts will be made to resolve the dispute amicably. Thereafter, defendants 1, 3 & 4 placed lock over the lock of plaintiff No.1 in order to obstruct ingress and egress to the property and also posted some goondas outside the property. Plaintiff No.1 was thus compelled to approach Garhi police chowki and file a complaint against defendants 1, 3 & 4 supported by the title deeds of property etc. However, the in charge of chowki informed plaintiff No.1 that there being dispute between the parties, he would seal the property and file report under Section 145 Cr.P.C. Immediately thereafter, plaintiff No.1 filed appropriate complaint with ACP, Lajpat Nagar within whose jurisdiction said police post fell. On 1st February, 1997 around 8.00 PM, plaintiff No.1 was told the police officials that none of the locks put on the said property be removed. It was prayed that by decree of permanent injunction, defendants 1, 3 & 4 be restrained from interfering with the peaceful possession and enjoyment of the plaintiffs of the said property. They are further sought to be restrained from taking illegal possession of the property from the plaintiffs.

3. Along with suit, aforesaid IA No.1043/97 was filed by the plaintiffs claiming reliefs identical to that prayed for in the suit by way of temporary injunction.

4. In her written statement, defendant No.2 has supported the case of plaintiffs.

5. Defendant No.1 contested the suit by filing written statement. It is alleged that suit property was purchased by answering defendant and defendant No.2 jointly from Amrik Singh Pasricha on 13th August, 1987 and sale consideration of Rs.3,25,000/- was paid by the partnership-firm - 'CREATIVE FASHIONS' wherein answering defendant and defendant No.2 were partners in equal shares. Thereafter, additions and alterations were carried out in the property and amount spent thereon was debited to the building account vide joint A/c Code GA001. Suit property was being utilised for running the business of Humming Bird Pvt.Ltd., Ladybird Clothing and International Merchandising and rent realised from these firms was being credited to the individual accounts of answering defendant the defendant No.2. On account of serious disputes between answering defendant and defendant No.2, the business of said firms came to a halt. All records, furniture, equipments, gadgets and stocks of said firms were kept in suit property. It is further alleged that first, second and third floors of suit property had always been in occupation of answering defendant since 1994 and he had put his locks on these floors. After the business of said firms was closed. it was mutually agreed that defendant No.2 will occupy and utilise the basement and ground floor of suit property for running her business, namely, Jordan Fashions and Masone India. It is alleged that defendant No.2 in connivance with plaintiffs executed lease deed on 3rd January, 1996 under which entire suit property was shown to have been let out at a monthly rental of Rs.12,000/- to plaintiff No.1. It is claimed that possession of various portions of property was not delivered to the plaintiffs. It is further alleged that on 19th December, 1996, answering defendant came to know that a sum or Rs.8,62,500/- had been deposited in his saving bank account No.24918 in the State Bank of India, Ring Road branch, lajpat Nagar-IV vide pay-in-slip No.nil dated 29th August, 1996. Answering defendant wrote a letter on 19th December, 1996 to the Branch manager of said bank seeking clarification regarding deposit of said amount. By the letter dated 21st December, 1996, Union Bank of India, Service Branch, New Delhi intimated the Branch manager of said bank that drafts for the said amount were issued from its Napean Sea branch, Bombay. By another letter dated 7th January, 1997 it was intimated by Union Bank of India, Bombay branch that drafts for the said amount were purchased by plaintiff No.1. It is pleaded that on 24th January 1997,a answering defendant on visiting the suit property noticed change of locks and, therefore, he also put his lock at the entrance door. On 27th January, 1997, answering defendant sent a complaint to SHO, PS Lajpat Nagar stating that some activities are bring carried to cheat him by plaintiff No.1. Answering defendant learnt that MCD dues had been settled for Rs.7,67,188/- in July 1995 which fact was kept suppressed by defendant No.2. Issuance of notice of attachment of suit property dated 16th June, 1995 by the MCD is not denied. It is further alleged that answering defendant had not agreed to sell his share in suit property to the plaintiffs nor did he inform defendant No.2 that as he may not be readily available, she may execute the sale(s) on his behalf also. Purported power of attorney dated 18th November, 1987 on the basis whereof suit property of his share was sold by defendant No.2. is alleged to be fabricated. It is alleged that said power of attorney does not meet the requirements of Sections 32 & 33 of the Indian Registration Act. It is stated that value of the suit property is about Rs.1,20,00,000/- and it is shown to have been sold for an amount of Rs.17,25,000/-. It is pointed out that although suit property is situated in Delhi but sale deeds are purported to have been executed at Bombay. It is emphatically denied that physical possession of suit property upon execution of sale deeds was handed over to the plaintiffs, as alleged. It is further alleged that on the application filed by plaintiffs under Order XXVI read with Section 151 CPC, Sh.Kuljeet Rawal, Advocate was appointed as Local Commissioner with the direction to visit the suit property and prepare inventory of the goods and records lying there. On 5th February, 1997, Sh. Rawal orally mentioned that he was not inclined to execute the commission for personal reasons. On the date itself, the plaintiff No.1 moved application that pending appointment of another Local Commissioner, suit property be sealed and the Court appointed Restorer to go to the suit property and seal it. It is stated that counsel of answering defendant requested the Restorer to inform him before he goes to property to seal it and he also left his telephone number with him. However, no message was received by the counsel of answering defendant on that date. It is claimed that plaintiff No.1 Along with defendant No.2 and Ms.Neerja Mehra, Advocate and one another person whose identity could not be known and who represented himself to be the Court official, went to the suit property around 6.15 PM and told the guards posted by answering defendant and defendant No.2 that he had come to seal the property and the guards should leave the property. Answering defendant was informed about the same on telephone and he instructed his guard to leave the property as he was aware about the Court's order. Purported ritual of sealing the lock was carried out by the unidentified person who represented himself to be a court official. It is further alleged that on the following day, Sh.Dinesh Agnani, Advocate around 4.15 PM made enquiry from the Court Master and then he was informed that no sealing could take place on 5th February, 1997 as the order could not be signed. Immediately thereafter, answering defendant rushed to the suit property and he found that there was no seal on the lock which was stated to have been put by the official of Court on 5th January, 1997 and the lock put by answering defendant had been removed and replaced by new lock. Answering defendant thereafter visited police post Garhi and FIR bearing No.108/97 under Section 420 IPC was lodged with PS Lajpat Nagar at 9.10 PM. These facts clearly indicate that plaintiffs and defendant No.2 indulged in acts of cheating and impersonation with a view to create evidence in support of claim of possession of plaintiffs over the suit property. By way of counter-claimed, decree of declaration is sought to be passed against the plaintiffs and defendant No.2 to the effect that sale deed(s) dated 15th June, 1996 to the extent of share of answering defendant in suit property, is collusive, fraudulent and void.

6. Reply to said IA No.1043/97 which was stated to have been filed by defendant No.1, is not on record. It was stated that written statement of defendant No.1 be also treated as reply to the application.

7. In aforementioned IA No.9977/98 relief claimed is that a Local Commissioner be appointed to visit the suit property, open it after collecting the keys from the Court and permit the plaintiffs to remove relevant record after preparing inventory thereof in addition to making arrangement for removal of water accumulated therein.

8. In reply, it is alleged by defendant No.1 that the plaintiffs in connivance with defendant No.2 have manipulated to store their goods and articles in suit property with a view to create evidence of possession. It is further alleged that entry to basement is at the road level and even during heavy rains, no water could accumulate therein. Record belonging to defendant No.1 was removed by the plaintiffs at the time of visit of Local Commissioner to the suit premises except those which were disputed to be not belonging to him. All the records which were removed are duly detailed in the report of Local Commissioner dated 21st June, 1997.

9. Submission advanced by Sh.Kirti Uppal for plaintiffs was that entire property No.324, Sant Nagar in suit was let out by defendant No.2 to plaintiff No.1 under a lease agreement dated 3rd January, 1996 and possession thereof delivered to him. After the execution of sale deeds dated 15th June, 1996 by defendant No.2 for self and as attorney of defendant No.1 in favor of plaintiffs, defendant No.1 was left with no interest therein and the plaintiffs, therefore, deserve to be granted the reliefs sought by way of ad interim injunction. On the point of letting, case as pleaded in the written statement-cum-counter-claim by defendant No.1, in short, is that after the closure of business of Humming Bird Pvt. Ltd., Ladybird clothing and International Merchandising being carried in suit property. As per mutual agreement, first, second and third floors of suit property came to be occupied by defendant No.1 and he also put his locks at the entrance of these floors; that basement and ground floor of property came to be occupied and utilised by defendant No.2 for running business of her firms - Jordan Fashions and masone India. It is also the case of defendant No.1 that in order to show the possession of plaintiff No.1 over the suit property, defendant No.2 and plaintiff No.1 connived to execute agreement of lease dated 3rd january, 1996 wherein entire property was shown to have been let out at a monthly rental of Rs.12,000/- to plaintiff No.1 and possession thereof delivered but in reality possession of various portions of property was not delivered to plaintiff No.1. Needless to repeat that as per the allegations made in para No.1 of plaint, entire suit property was taken on rent by plaintiff No.1 in January 1996 @ Rs. 12,000/- per month and rent for six months was paid in advance. In para No.7 of the plaint, it is stated that plaintiff No.1 continued his business from the suit property till the same was sold to plaintiffs 1 to 4. In para No.9 of plaint, it is further alleged that on 24th January, 1997, the plaintiff No. 1 was informed at Bombay on telephone by Harvinder Singh that defendant No. 1 Along with defendants 3 & 4 and Joginder Singh and others had forcibly removed the staff of 'SIMRAN CREATIONS' under threat of physical attack and Harvinder Singh locked the suit property before leaving it. In para No. 10 it is pleaded that plaintiff No. 1 came to Delhi on the night of 28th January, 1997 and on his visiting suit property on 29th January, 1997, he saw bad elements sitting inside the gate. Accordingly, he telephoned the police at No. 100 for assistance and on seeing the police, bad elements ran away except for one security guard who had taken to the police post by the police. It was decided that dispute between the defendants be resolved amicably. In para No. 11, it is alleged that instead of making any effort to resolve the disputes, the defendant No. 1 Along with defendants 3 & 4 placed the lock over the lock of plaintiff No. 1 in order to obstruct ingress to and egress from the suit property in addition to posting goondas outside property. In para No. 12, it is asserted that plaintiff No. 1 continues to be in uninterrupted possession of suit property since January 1996. Sh. B.L. Wali was appointed as Local Commissioner in place of Sh. Kuljeet Rawal by the order dated 7th February, 1997 for the purposes indicated in the order dated 3rd February, 1997. Order dated 3rd February, 1997 notices that Local Commissioner was to visit the suit property after notice to defendants 1, 3 & 4, open the locks in the presence of defendants 1, 3 & 4 if they provided the keys and give report stating as to the articles lying inside the property irrespective of the fact whether they belonged to the plaintiffs or defendant No. 1. In the report of Local Commissioner dated 21st June, 1997, it is noticed that the locks put on first and second floors were opened with the keys supplied by defendant No. 1. Had plaintiff No.1/plaintiffs being in continuous and uninterrupted possession of suit property since January 1996, after alleged letting under the agreement of lease dated 3rd January, 1996 by defendant No. 2 who alleges to be in exclusive possession thereof after October 1994 till the date of handling over possession thereof to plaintiff No. 1 on 3rd January, 1996, there was hardly any occasion of the locks of defendant No. 1 having been found placed on first and second floors of the property. It will not be out of place to mention that neither the plaintiffs nor defendant No. 2 have filed any objection against the said report dated 21st June, 1997. Further, photostat copy of lease agreement dated 3rd January, 1996 is placed at pages 76 & 77 of part-III file. Defendant No. 1 who is joint owner of suit property Along with defendant No. 2, is not a party to this agreement. Last clause of this agreement notice that defendant No. 1 had undertaken to get the suit property in proper shape and painted and for that purpose plaintiff No. 1 had agreed to pay an advance of Rs. 36,000/- in cash to her which advance was to be adjusted towards the rent of three months - January to March 1996. This clause further notices that rent w.e.f. 3rd April, 1996 was to be paid regularly by plaintiff No. 1. It has not been pointed out either by plaintiff No. 1 or defendant No. 2 as to how payment of the rent from 3rd April, 1996 uptil 15th June, 1996 on which date suit property was sold to plaintiffs, was made by plaintiff No. 1 to defendant No. 2 nor any receipt evidencing payment of Rs. 36,000/- by way of advance rent to defendant No. 2 has been filed by plaintiffs. Taking note of said circumstances, case of plaintiff No. 1 about having been delivered possession of entire suit,property on 3rd January, 1996 and thereafter continuing in uninterrupted possession thereof, seems to be highly doubtful.

10. Coming to latter limb of argument referred to above advanced on behalf of plaintiffs regarding defendant No. 1 having left with no interest in suit property, photostat copies of four registered sale deeds dated 15th June, 1996 are placed on part-III file. A bare perusal of these sale deeds would reveal that these were executed by defendant No. 2 for self and as attorney of defendant No. 1 selling 1/4th undivided share each in suit property in favor of plaintiffs for a total sum of Rs. 17,25,000/-. These sale deeds on behalf of defendant No. 2 were executed by defendant No. 2 on the strength of power of attorney allegedly executed in her favor by defendant No. 1 which was notarised by a Notary on 16th November, 1987 (copy of page 4). Contents of this power of attorney which are material, are reproduced below:-

"I, Arvind Khosla, hereby through this Power of Attorney authorise my sister, Kusum Anjali to conduct all real estate transactions on my behalf.

Hence, she is authorised to buy and sell and sign papers on my behalf should I not be present."

11. This power of attorney is witnessed by Ms. Suman Sahegal and Heminder Bharadwaj. Needless to repeat that in his written statement-cum-counter-claim, defendant No. 1 has emphatically denied of having executed the said power of attorney. It is further alleged that he neither agreed to sell his share in suit property to the plaintiffs nor did he inform defendant No. 2 that as he may not be readily available, she may execute the sale deeds on his behalf also. He was always available and entire sale transaction is fraudulent. Case of defendant No. 1 further is that he had serious disputes with defendant No. 2 and for that reason the business jointly carried by him with defendant No. 2 had to be closed. In the replication filed to written statement-cum-counter claim of the said defendant, defendant No. 2 has admitted that on account of dispute with defendant No. 1 and V.K. Dhir, business was stopped in September 1993. Since both these defendants were having serious disputes, the defendant No. 2 was atleast expected to have consent of defendant No. 1 in writing for sale of suit property of his share to the plaintiffs. Defendant No. 2 has not placed on record any writing to show that defendant No. 1 was agreeable to sell his 1/2 share in suit property to the plaintiffs. It may be noticed that sale deeds were executed and registered not in Delhi but at Bombay. Under aforesaid power of attorney defendant No. 2 was authorised to buy and sell and sign papers of properties on behalf of defendant No. 1, should he not be present. It is not the case even pleaded by defendant No. 2 that she had asked defendant No. 1 to come to Bombay to execute the sale deeds and he expressed his inability to be at Bombay. Assuming for the sake of argument that said power of attorney was executed by defendant No. 1, in the absence of plea to the said effect the defendant No. 2 was prima facie legally incompetent to execute the sale deeds in regard to 1/2 share of defendant No. 1 in suit property on the strength of said power of attorney. In regard to the circumstance to which my attention was drawn on behalf of plaintiffs that four bank drafts of the total amount of Rs. 8,62,500/- being amount of 1/2 sale consideration, were deposited in defendant No. 1's saving bank account No. 24918 with State Bank of India, Ring Road branch and part of that amount was used by him, defendant No. 1 has offered explanation in his written statement-cum-counter claim that he had learnt about the deposit of said amount from his accountant only on 19th December, 1996 and these drafts were not deposited by him in the account. Entire suit property is lying locked and key of the main entrance is with the Registry. From aforesaid discussion, it must follow that plaintiffs have not made out prima facie case for issue of the ad interim injunction prayed in IA No. 1043/97 and key of suit property cannot be delivered to them to occupy it to the detriment of defendant No. 1 who by way of counter-claim has sought the passing of decree of declaration that the said sale deeds dated 15th June, 1996 are void as regards his 1/2 share in suit property. IA No. 9977/98 has bene rendered infructuous as inventory of the articles lying inside the property stands prepared by the Local Commissioner in the past and presently there is no accumulation of water inside the property.

12. Consequently, both the applications are dismissed.