Shri Dharampal And Anr. vs Shri Ramesh Minocha And Anr.
2004 Latest Caselaw 1291 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, filed by the plaintiff in the suit seeking restraint on the defendants from alienating selling or disposing of suit property i.e. property bearing No. 23, Road No. 20, East Punjabi Bagh, New Delhi. The plaint avers as follows:-

(i)The plaintiffs Dharam Pal and Harbhajan Singh, both are sons of Shri Kartar Chand and the suit property was let out by Shri Kartar Chand to defendants No. 1 and defendant No. 2. The defendant No. 2 is the wife of defendant No. 1. It is stated that the property has been illegally transferred in the name of the defendants No. 1 who was the original tenant of the father of the plaintiffs on Rs. 1,000/- per month.

(ii) That the father of the plaintiffs Shri Kartar Chand was a resident in Malaysia like the plaintiffs and had consequently let out the single storey structure to the defendants. Both the plaintiffs are 50% owner of the property, having derived their title from their father Shri Kartar Chand.

(iii) Since 1993-94, defendant No. 1 stopped paying the rent of the premises. The plaintiffs approached the defendants to vacate the premises and the plaintiffs had also informed them that the plaintiffs wanted to sell the suit property. The sum having been offered for the property by the defendants being much below the market price, the plaintiffs did not agree. Thereafter, defendant No. 1 forced the plaintiff No. 1 to enter into an agreement to sell for a sum of Rs. 24,24,500/- only which again much lower than the market price. Due to being the resident in Malaysia, the plaintiffs were left with no option but to sign the agreement to sell. The defendants did not sign the said agreement to sell and retained the original agreement to sell and only a photo copy of the said agreement to sell was handed over to the plaintiff. The earnest money was paid by the defendants by two self cheques of Rs. 1,00,000/- each which were encashed by the plaintiffs. Thereafter two agreements to sell were executed for a sum of Rs. 12,12,000/- with defendant No. 1 and for a sum of Rs.12,12,500/- with defendant No. 2, the wife of defendant No. 1 for the sale of the suit property.

(iv) The draft agreements to sell were signed by the plaintiffs and the plaintiffs did not know whether it was signed by the defendants or not. In the guise of seeking permission to sell, the plaintiffs were persuaded to sign the power of attorneys for seeking sanction and permission from the Government authorities for the purposes of sale of the suit property and the said power of attorney do not have independent witnesses having been witnessed by defendant Nos. 1 and 2 interse. The plaintiffs never read the said documents and was not aware that he was being defrauded.

(v) The rest of the sale consideration apart from the sum of Rs.2,00,000/- was not paid by the defendants and on 5 visits from Malaysia to India, the plaintiff No. 1 wanted the defendant No. 1 to complete the transactions but they were waived on one pretext or the other.

(vi) On 23rd June, 2004, on visit to India, the plaintiff No. 1 shocked to see that the suit property was demolished and new construction was started on the property in collusion with some builder without the knowledge and permission of the plaintiffs. Thereafter on 10th July, 2004, defendant No. 1 told the attorney of the plaintiffs that defendants have already got the sale deed executed in their favor and therefore the property was demolished. Thereafter the search of the Municipal Corporation of Delhi , showed that the said property also stood mutated in the name of the defendants and that the upper ground floor's rights were attorneyed/transferred in favor of the Namrata Sharma on 1st September, 2001 and on the same day the first floor of the property was attorneyed/transferred in favor of Satish Marwaha.

(vii) On the above allegations, restraint orders are sought by the interim application against the defendants.

2. The case of the defendants is that on 31st August, 2001, the property was purchased at what then was the market value was of Rs.15 lakhs and not only the agreement to sell but the supporting affidavits, undertaking, possession letter and special power of attorney were also issued by the plaintiffs to the defendant who also executed a registered will. None of these documents are mentioned in the plaint and have been concealed from the Court in an effort to secure an interim order.

3. It is submitted that the plaintiffs with dishonest intentions now are seeking to back out of the transactions more than three years later merely on account of the fact that according to the defendants, the plaintiffs now know that the prices of the property have arisen substantially in the meanwhile.

4. In my view, the plaintiff's case is full of loopholes and is highly improbable. A bare perusal of the documents relied upon by the defendants such as the registered Will which was executed by the plaintiffs before the Sub Registrar along with the GPA dated 1st September, 2001 show that the consideration has been duly acknowledged by the plaintiffs. Even otherwise, the plaintiffs' story that for three years it did nothing to secure what are its rights itself does not stand any credible scrutiny and no worthwhile explanation has been given for the delay from 2001 when the plaintiffs were said to have been coerced to sign agreement to sell and other documents up to date. Furthermore, the plaintiffs have not brought on record several documents in the plaint such as registered GPA and in particular the Will dated 1st September, 2004. The plaintiffs are also making an attempt to wriggle out the legal effect of registered documents. In this view of the matter on considerations of prima facie case, balance of convenience and equity no case is made out for interference. Accordingly, the application for interim relief is dismissed.

CS(OS) No. 716/2004

List the matter on 12th January, 2004 before the Joint Registrar.