Shri Rajiv Suri vs Shri Rajesh Goesl And Anr.
2008 Latest Caselaw 1470 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+             CS (OS) No.150/2007

                                       Reserved on : August 14, 2008
                                       Decided on : August 28th, 2008

SHRI RAJIV SURI                                      PLAINTIFF
                        Through : Mr. Raman Gandhi, Advocate
                                VS.
SHRI RAJESH GOESL AND ANR.                           DEFENDANTS
                        Through : None
CORAM:

Mr. Justice S. Ravindra Bhat

1.

Whether reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

Mr. Justice S. Ravindra Bhat:

1. The plaintiff, in this suit, seeks a declaration of invalidity of, and

cancellation of a Deed of Power of attorney and Will, both dated 30-5-2001.

2. The suit averments are that the plaintiff and his wife, Indu Puri, were

owners of property in the ring shop number 1, Stall block, Community

Centre, Yusuf Sarai, New Delhi, (hereafter called "suit property"), measuring

36 square meters along with kitchen and courtyard which were sold and

handed over to them. The plaintiff alleges that he was acquainted with CS-150/2007 Page 1 defendants from whom he had secured a loan of Rs. 2,00,000 in cash which

had been repaid. It is alleged that when the loan was obtained, the

defendants had required the plaintiff to furnish security. This allegedly was

on the representation that such documents constituted "lien" for the loan.

As the plaintiff knew the defendants well, he did not have any hesitation in

executing the documents, for the purpose of security. Therefore a General

Power of Attorney dated 30-5-2001 and a Will of the same date was

executed along with some blank papers.

3. It is further alleged that the property was purchased by the plaintiff

and his wife from one Baljit Singh, the original owner of the property on

26.03.2001. The plaintiff alleges that he and his wife sold the suit property to

one Smt. Rashmi Jain on 30-9-2003, by executing valid title documents such

as Agreement to Sell, General Power Of Attorney, Special Power of Attorney;

Affidavits; receipt; Will and letter of possession. It is also alleged that the

plaintiff and his wife handed over the position of the suit property to the said

purchasers, along with all original documents of title.

4. In view of these developments, the plaintiff alleges that the documents

such as General Power of Attorney; Will etc, which were given earlier but not

returned by the defendants, despite the amount of Rs. 200,000/- having

been returned by the plaintiff to them, cannot be retained by them. It is

contended in the suit by the plaintiff that the two documents along with

other blank papers, in the possession of the defendants, cannot be retained

CS-150/2007 Page 2 by them any longer because the purpose for which they were executed, i.e.

securing a loan on 30-52001, no longer subsists. The plaintiff alleges that the

defendants have been constantly threatening him in the recent past i.e. in

January 2007, that they would create third-party interest in the property and

also interfere with possession. The plaintiff in these circumstances

apprehends that the defendants actions would interfere with the sale

transaction lawfully entered into with his vendee. According to the plaintiff,

the cause of action to file the suit arose on various dates in the recent past

as and when the defendants threatened him about their intention to misuse

the documents in their possession.

5. On the basis of the averments described above, the plaintiff seeks

declaration against the defendants and their agents etc that the documents

i.e. General Power of Attorney dated 30-5-2001 and the Will, of the same

date, are null and void. He also seeks a decree for cancellation of those

documents and a permanent injunction against the defendants from using

those documents or creating third-party interest, as regards the suit

property.

6. Summons in the suit were issued, and served upon the defendants.

They were unrepresented, and consequently, were set down ex-parte, on

14th August, 2007. The plaintiff was permitted to lead ex-parte evidence,

which he did, through affidavit, dated 24th January, 2007. The said affidavit

is almost a verbatim reproduction of averments in the suit.

CS-150/2007 Page 3

7. In support of his case, the plaintiff has produced the copy of General

Power of Attorney and Will, both dated 30-5-2001, executed in favour of the

defendant, as well as copies of the Perpetual Lease deed executed in favour

of the original owner, Baljit Singh, dated 20th March, 2001, as well as five

other documents executed by Baljit Singh in favour of the plaintiff, on 26 th

March, 2001, such as Agreement to Sell, Power of Attorney, Will, Indemnity

Bond and Possession Letter, in respect of the suit property. Copies of eight

other documents, executed by the plaintiff, in respect of the suit property in

favour of his vendee, Ms. Rashmi Jain, being Agreement to Sell, Power of

Attorney, Will, Indemnity Bond, Affidavit, Possession letter and Special Power

of Attorney, all dated 30th September, 2001, have also been produced. The

copy of a receipt dated 30-9-2001 for Rs. 8,00,000/- executed by the plaintiff

has been produced. The plaintiff's affidavit speaks of these documents, but

they have not been formally exhibited in evidence, as none of the original

documents have been produced.

8. Mr. Satyarthi, learned counsel for the plaintiff, contended that the suit

is maintainable, and within the period of limitation. He urged that the

relevant provision is Article 59 of the First Schedule to the Limitation Act,

1963 (hereafter "the Act") which corresponds to the old Article 91 of the

1877 Act. Counsel relies on the decision of the Madras High Court in

Singarappa -vs- Talari Sanjivappa, ILR 1904 (28) Mad 349. It was contended

that the Division Bench of the High Court ruled in similar circumstances, that

causes of action in such cases, where the party seeks cancellation of CS-150/2007 Page 4 documents, would arise when the plaintiff has an apprehension of injury vis-

à-vis the instrument concerned, in respect of which relief is sought. The

relevant stage is when the defendants begin to set up title under the

document. Counsel points out that in this case too, the cause of action arose

sometime in January, 2007, when the defendants held out a threat against

the plaintiff, about using the documents in question in relation to the suit

property.

9. Learned counsel submitted that the plaintiff has, on the merits made

out a sufficient cause for grant of all reliefs, i.e declaratory, injunctive, as

well as cancellation of the document. Being in possession of only copies of

the documents, the plaintiff has taken precaution to mark them in the course

of evidence.

10. The documents, of which cancellation is sought, and in respect of

which injunction too is claimed, were undeniably executed on 30th May,

2001. Section 31 of the Specific Relief Act, 1963, which deals with the

remedy of cancellation of documents, reads as follows:

―31. When cancellation may be ordered.--(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.‖

CS-150/2007 Page 5 The plaintiff has not produced any original document; he also did not seek

liberty in accordance with provisions of law, to produce either certified

copies, or secondary evidence, in support of his case. All the documents filed

are photocopies. The court cannot therefore look into them.

11. As far as the plaintiff's contentions on merits are concerned, it is

discernable that he did not possess any right, title or interest in the property;

he claims to be the General Power of Attorney holder of the original

allottee/lessor, Shri Baljit Singh. In fact, the said vendor appears to have

executed the documents in favour of the plaintiff, within a few days of his

securing his interests. The plaintiff, in turn claims to have executed the

documents in favour of the defendant barely two months later, in May, 2001.

The plaintiff has not produced any document in support of his claim that the

transaction with the defendant was only for the purpose of loan, and that the

amount borrowed had been repaid. Further, the plaintiff avers to having

parted with the property in favour of Ms. Rashmi Jain. She has, however, not

been impleaded as a party. The plaintiff also does not explain how, after

having passed on his interest in favour of his vendee, he can still maintain

the proceeding. Most crucially, the suit is completely vague about the

alleged threat to the property, or the circumstances which entitle the plaintiff

to the reliefs sought. There is absolutely no objective, documentary evidence

in support of the plea that the defendant is threatening the plaintiff. The

latter also does not explain how this suit is maintainable, (in relation to the

locus standi of the plaintiff) against the defendant, since he has parted with

CS-150/2007 Page 6 the property. If indeed, the property were threatened, as is alleged, the

plaintiff could also have impleaded his vendee; besides he could have led

independent evidence about the alleged threat, to substantiate it. His

evidence is not only sketchy; it is woefully inadequate, to entitle him to the

relief of cancellation of document, declaration and injunction. In view of this

lacunae, it is held that the plaintiff does not show how he has a cause of

action to file the suit.

12. So far as the question of limitation is concerned, the plaintiff is right

when he contends that the period in this regard prescribed, is under Article

59 of the Schedule to the Limitation Act. The courts have taken the view that

suits for cancellation are subject to a three years' limitation which begins to

run when the facts entitling the plaintiff to have the instrument cancelled or

set aside are known to him. In Prem Singh -vs-. Birbal, (2006) 5 SCC 353, it

was held that:

―Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma2 and Sheo Shankar Gir v. Ram Shewak Chowdhri3.)‖

13. The Supreme Court affirmed and applied the earlier decision in

Ningawwa v. Byrappa AIR 1968 SC 956, stating that:

―Ningawwa v. Byrappa4 this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating:

(SCR p.    801 C-D)

CS-150/2007                                                              Page 7

―The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.‖

The point was later driven home, in the following passage, when the court

made it clear that nullity or voidability of the instrument had a reference to

the conditions which invalidate a contract, i.e fraud, misrepresentation,

coercion, mistake or undue influence, in the following terms:

―If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.‖

14. In this case, the plaintiff asserts that the documents were executed in

2001, to secure a loan transaction. The loan, according to him, was returned

in 2001 itself. The plaintiff was thus aware at that time itself that the

defendants- assuming the allegations to be correct - ought to have been

returned. This does not by itself suggest that the documents were void, or

even voidable; the plaintiff was aware about its true nature.

The plaintiff's awareness did not remain suspended as it were, till 2007 when

the alleged threat about its misuse arose; the true construction

of Article 59 would be that the threat arose for the

first time, in 2001, when the loan amount was allegedly returned

to the defendant, despite which he held on to the documents. All CS-150/2007 Page 8 other reliefs really flow out of the cause of action for the relief of declaration

and cancellation. For these reasons, it has to be concluded that the suit is

also time barred.

15. In view of the above findings, the plaintiff is not entitled to any relief.

The suit is therefore dismissed. No costs.

IA No.999/2007

Dismissed as infructuous.

DATED: 28th August, 2008                          S. RAVINDRA BHAT, J.




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