Fateh Raj Laxmi Devi @ Vidhya ... vs Smt. Jalveen Rosha
2003 Latest Caselaw 110 Del

JUDGMENT

S. Mukerjee, J.

1. This is a suit for permanent injunction filed by plaintiff No.1 through her attorney Shri Anil Sarin.

2. There is a second plaintiff which is incorporated company of which the same attorney is stated to be one of the Directors. The case set up by both the plaintiff is that the plaintiff No.1 was the original owner of property bearing No. C-10, Kailash Colony, New Delhi and that from her the plaintiff No.2 company, is stated to have agreed to purchase the property for an amount of Rs. 66 lakhs.

3. Initially an amount of Rs. 6.5 lakhs was paid to plaintiff No.1 as earnest money. Thereafter approval/permission was obtained from the appropriate authority Income Tax Department, and then the entire consideration is stated to have been paid and possession also delivered to plaintiff No.2.

4. Vide agreement dated 14-9-1996, executed between plaintiffs and defendant, the plaintiff No.2 in turn agreed to sell the first floor, including the servant quarter, to the defendant for a consideration of Rs. 20 lakhs, out of which Rs. 19 lakhs is stated to have been paid at the time of signing of the agreement and balance of Rs.1 lakh was to be paid at the time of plaintiff executing registered power of attorney in favor of one Shri H.S. Anand, son of Shri K.S. Anand.

5. The said floor portion was, and presently is in possession of one Shri B.K. Khanna (tenant).

6. That the plaintiff No.2 submits that it (plaintiff No.2) has been ready and willing to complete the sale, but the transaction has remained pending as it is only on account of defendant not making the balance payment.

7. The plaintiff further claims that vide notice dated 3.9.1997, the plaintiff called upon the defendant to pay the balance amount of Rs. 1 lakh, also stipulating that in the event of non-payment thereupon the agreement deeds, would stand terminated.

8. Another notice to the above effect, is stated to have been also given on 3rd February, 1998. Since the defendant reportedly did not make the payment, accordingly the agreement as per the plaintiff No.2, stood terminated with effect from 28th February, 1998.

9. The suit was filed on 21.5.1998. The defendant was duly served in the matter, but did not appear. Vide order dated 14.11.2000, the defendant was proceeded against ex-parte and plaintiff, were directed to file affidavit by way of evidence.

10. On behalf of the plaintiffs two affidavits have been filed. The first affidavit is of Shri Anil Sarin, as attorney of plaintiff No.1 and the other affidavit is by Shri Amit Sarin, Director of plaintiff No.2.

11. Since the defendant was ex-parte, issues have not been framed in the matter and the matter was listed for final hearing as an ex-parte matter. On behalf of the plaintiffs brief synopsis has also been filed. I have also heard learned counsel for the plaintiffs.

12. The relief of permanent injunction claimed in the present suit, is to restrain the defendant her agents, employees, representatives, etc. from in any manner transferring, alienating, assigning or creating any third party interest in respect of entire first floor and one servant quarter of the property bearing No. C-10, Kailash Colony, New Delhi, in favor of anyone and from in any manner interfering into the rights of the plaintiff No.2, to use the entire first floor and one servant quarter of property bearing No.C-10, Kailash Colony, New Delhi, as an absolute owner thereof, and from in any manner interfering into the rights of plaintiff No.2 from receiving the rent from the tenant (B.K. Khanna) in the first floor of the property bearing No. C-10, Kailash Colony, New Delhi.

13. I find from the unrebutted pleadings and evidence on record, that the plaintiff has duly established that plaintiff No.1 is the original owner of the entire property C-10, Kailash Colony, New Delhi. The suit has been properly and validly instituted through Shri Anil Sarin in terms of registered general power of attorney which is Exhibit P-1.

14. It is also stands established that plaintiff No.2 is a beneficiary of agreement to sell executed between plaintiff No.1 and plaintiff No.2. The said documents is Exhibit P-3. The permission granted by the Income Tax Authorities for the said purpose has been duly exhibited as Exhibit P-4.

15. Nothing has been stated by the plaintiffs regarding the execution of final sale deed in favor of plaintiff No.2. It appears that the same was never executed. A pointer to this is the fact that in the agreement to sell in favor of the defendant for the first floor and servant quarter, the same was executed by plaintiff No.1, with plaintiff No.2 only shows as the confirming party, for a total sale consideration of Rs.20 lakhs. That document is Exhibit P-5.

16. The legal notice dated 3.11.1997, by which balance amount of Rs.1 lakh was demanded by plaintiff No.2, is Exhibit P-6. In the legal notice, it is stated that plaintiff No.2 is ready and willing to perform his part of the contract, and that in the event of non-payment of Rs.1 lakh, the agreement to sell will be got cancelled. The next notice dated 3.2.1998 has also been exhibited as Exhibit P-7. In the subsequent notice, also the same stand has been taken to the effect that unless Rs. 1 lakh is paid within 10 days the agreement to sell shall stand terminated.

17. The question which arises, is as to whether the permanent injunction as prayed for, can be granted on the above pleadings and evidence even if the same is taken as unrebutted. I find myself unable to grant the relief for the following reasons:-

(i) The agreement to sell dated 14.9.1996 (Exhibit P-5) between the plaintiffs on the one hand and defendant on the other, had a clause stipulating that seller will obtain Income Tax clearance certificate in form 34-A U/S 230A(1) of the Income Tax Act, 1961. There is no averment in the legal notice to the effect, that seller has actually obtained income tax clearance as stipulated in the agreement to sell. Neither the postal receipts by which legal notices Exhibit P-6 and P-7, have been allegedly served nor the AD cards have been placed on record.

(ii) Further more I find that it is neither equitable nor justified that plaintiff no.2, should now come with a prayer for permanent injunction, without seeking the relief of either recovery of money of Rs. 1 lakh or the relief of revocation of the documents in the form of agreement to sell in favor of the defendant which is Exhibit P-5.

(iii) On the other hand I find that plaintiff No.2 who claims to have obtained Income Tax permission under Section 37(i), did not care to perfect its title by execution of a sale deed in its favor. Till the title is perfected, the plaintiff No.2 could not in turn be in a position to pass on a proper and valid title, by a sale deed, in favor of the defendant. In fact plaintiff No.2 was only a confirming party to the agreement to sell. The legal notices relied upon, had been sent on behalf of plaintiff No.2, and not plaintiff No.1. In these circumstances, it cannot be claimed by plaintiff No.2, that plaintiff No.2 has a right to cancel the transaction. If at all there was a right, it was with the plaintiff No.1, who may or may not choose to exercise the same, and if exercised the same will have to be considered on its on merits.

(iv) It is otherwise also most inequitable that a purchaser who has paid Rs.19 lakhs, out of Rs.20 lakhs, should be permanently injuncted in the manner prayed for by the plaintiff.

18. In view of the above, and on a totality of the consideration of the matter, I find myself constrained to hold, that the only permanent injunction which could be granted in favor of the plaintiff and against the defendant, is to the effect that the defendant shall stand restrained from transferring, or alienating, or creating any third-party interest in respect of the entire first floor (including the servant quarter) of the property bearing No. C-10, Kailash Colony, New Delhi, in favor of anyone except after making a provision in the transaction between the defendant and the third party, to the effect that out of the proceeds/consideration thereof, an amount equivalent to Rs.1 lakh along with interest at 18% per annum thereon calculated with effect from 15th February, 1998 (i.e. expiry of 10 days after the last notice relied upon by the plaintiffs), will be paid to plaintiff No.2 out of the proceeds received/ receivable by defendant.

19. It may be mentioned that the above decree for permanent injunction, has been granted in the over all interest of justice and equity, and since plaintiff No. 1 has joined the plaintiff No.2 in the filing of the suit, over looking the short-coming of plaintiff No.2 not having perfected its own title, and having taken the action of issuing the legal notice and relying upon the same for cancellation of the agreement to sell, exclusively in its own capacity and without even citing the said action to be on behalf of plaintiff No.1.

20. Save and to the extent of the permanent injunction granted as above, every other relief claimed for by the plaintiffs, stands as declined.

21. The decree sheet be drawn up accordingly. No order as to costs.