M/S Global Associates & Ors. vs Sh. Om Prakash Popli & Anr.
2008 Latest Caselaw 1903 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  IA 1977/2008 IN CS(OS) 296/2008


      M/S GLOBAL ASSOCIATES & ORS.                  ..... Plaintiff
                     Through : Mr.Lalit Gupta with Mr.Navin Kumar,
                     Advocate.

                   versus


      SH. OM PRAKASH POPLI & ANR.                 ..... Defendant
                     Through : Mr.K.R.Gupta with Ms.Kiran Dhawan,
                     Advocate with Mr.Om Prakash, defendant No.1 in
                     person.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT


1.    Whether the Reporters of local papers    Yes
      may be allowed to see the judgment?

2.    To be referred to Reporter or not?       Yes

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

S.RAVINDRA BHAT, J.

*

1. This order shall dispose of IA No. 1977/2008, preferred by the plaintiffs

under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908, seeking an

interim injunction, restraining the defendants from alienating, transferring

possession, encumbering or creating any third party interests in property

bearing no. 100, Bhera Enclave, Paschim Vihar, New Delhi- 87 (hereafter

called „the suit property‟).

CS-296/08 Page 1

2. The plaintiffs state that by an agreement to sell dated 03.05.2007, the

defendants, who are the absolute joint owners of the suit property, had

agreed to sell it to them for a total sale consideration of Rs, 1, 74, 00, 000. It

was agreed that Rs 15 lakhs would be paid at the time of execution of the

agreement to sell; Rs 85 lakhs was payable on or after 2.8.2007 and the

balance consideration of Rs. 74 lakhs was to be paid on or before 3.9.2007. It

was also agreed that at the time of receipt of the entire payment the

defendants would execute the relevant sale documents in favour of the

plaintiffs.

3. The plaintiffs claiming paying a sum of Rs. 15, 00, 000/- by way of cash

at the time of the execution of the agreement to sell, receipt of which, was

acknowledged in the agreement. A sum of Rs. 3 lakhs was paid in cash on

2.6.2007 and a further sum of Rs 15 lakhs paid on 11.6.2007, which were

duly acknowledged by the defendants by executing proper receipts in the

presence of witnesses. Thereafter, a sum of Rs 85 lakhs was paid in cash on

2.8.2007. It is stated that since the transaction involved a substantial

amount of money, the defendants also fixed their thumb impressions, apart

from fixing their signatures on the receipt dated 11.6.2007 and 2.8.2007.

The plaintiffs submit that the witness in these transactions was defendants‟

son - Sh. Kamal Kant. Therefore, it is claimed that the plaintiffs have already

paid Rs. 1, 18, 00, 000/- and only Rs. 56 lakhs was payable.

4. It is submitted that the plaintiffs were willing to pay the remaining

sum, subject to the defendants complying with their part of the obligations

CS-296/08 Page 2 contained in the agreement, by execution of the requisite sale

documents/sale deed. They claim that a bank loan for Rs 50 lakhs was also

finalized. It is alleged that the defendants are now avoiding meeting the

plaintiffs on one pretext or another and are refusing to perform their part of

the obligations. The plaintiffs caused a legal notice dated 7.9.2007, to be

issued though their counsel, calling upon the defendants to fix a date for

execution and registration of the necessary documents. A reply was sent and

the plaintiffs claim that they were present in the office of the Sub Registrar

on 25.9.2007, the agreed date; but the defendants did not turn up then.

Subsequently, a second notice was sent on 11.10.2007, in which the

plaintiffs made it clear that they were willing to perform their part of the

obligations. They received no reply to this notice.

5. The plaintiffs allege that defendants are trying to sell the property to a

third party and have been in touch with local property dealers. Fearing that

they would create third party interests in the suit property, the plaintiffs seek

an interim order, restraining them from creating any sort of third party

interest in the suit property.

6. The defendants, in their written statement at the very outset claim that

plaint itself is a fraudulent one. They claim that a property dealer- Mr. Rajiv

Mishra of Delhi Properties, Jwalaheri Market, Paschim Vihar approached them

with a proposal to purchase the suit property from them. Negotiations took

place and it was agreed that the sale consideration would be Rs 1 crore 74

lakhs in three installments; an earnest money of Rs. 15 lakhs at the time of

CS-296/08 Page 3 the execution of the agreement to sell, Rs 85 lakhs on or before 2.8.2007

and Rs. 74 lakhs on or before 3.9.2007. Upon receipt of the entire payment it

was agreed that conveyance deed would be executed.

7. The defendants aver that agreement was duly executed on 3/5/2007;

however, the property dealer persuaded the first defendant to leave the

name and particulars of the purchaser blank. He assured the defendants that

the particulars of the nominee purchaser would be filled in later along with

the respective signatures; the date of the agreement was also left blank.

Accordingly, in the instrument showing the receipt of the earnest money, the

particulars of the purchaser/payer was left blank.

8. It is also averred by the defendants that they subsequently found that

the clause relating to the forfeiture of the earnest money in case of default in

balance payments within the stipulated time was missing in the agreement.

After approaching the property dealer for the incorporation of that condition

in the agreement, the last page was substituted and the condition inserted. It

is stated that the said last page was signed and thumb marked by the

defendants in the same manner as the last page of the agreement to sell;

the dealer too signed the carbon copy of the substituted last page of the

agreement under the column "Witnesses". It is claimed that the third page of

the agreement was also changed in as much as instead of "on or before

3.9.2007" the words "on or after 3/9/2007" was inserted. The dealer retained

the original page of the agreement and the defendants were given a

photocopy.

CS-296/08 Page 4

9. The defendants contend that a further sum of Rs 3 lakhs was paid by

the dealer to them on 2.6.2007 and a receipt was signed in this regard; the

name particulars of the purchaser though was left blank. The dealer signed

the receipt and photocopy of the same was handed over to them. It is

submitted that no other payment was made thereafter and conditions

stipulated in the agreement to sell were not complied with. Accordingly, the

defendants sent a legal notice dated 30.8.2007, intimating them that they

would be available at the Sub Registrars office on 3.9.2007; and a failure to

get the sale registered after the payment of the balance consideration would

result in forfeiture of the earnest money. It is submitted that no one turned

up on the aforementioned date nor did the defendants receive any reply for

the legal notice dated 30.8.2007.

10. It is averred that on 7.9.2007, the defendants received a legal notice

from RK Mehta, Advocate on behalf of Global Associates. It is submitted that

the said notice did not disclose the name of the proprietor of that concern,

although the address is the same as that of Delhi Properties. On both the AD

cards of the aforesaid notice the note "R. Mishra" is inscribed, which is in the

same handwriting as that of the writer of the names and addresses of the

defendants on the AD cards and envelope. Thereafter, the defendants

replied to the said advocate, stating the above facts and pointed out that

only a sum of Rs. 18 lakhs was received by them. It was denied that the

defendants entered into agreement to sell with Global Associates or that the

later paid any money to them. The alleged payment of Rs 15 lakhs and Rs 85

CS-296/08 Page 5 lakhs on 11.6.2007 and 2.8.2007, in cash, were also specifically denied. It is

claimed that Mr. RK Mehta in rejoinder notice merely reiterated the earlier

allegation and no attempt was made to address any of the concerns raised

by the defendants.

11. The defendants allege that the partnership deed dated 6.4.2007 of the

plaintiff firm appears to have been antedated and fabricated for purposes of

the present suit. It is engrossed on two stamp papers of Rs. 100/- each which

like the agreement to sell dated 3.5.2007, neither bear the stamp of the

vendor nor the name and other particulars and registration number of the

stamp vendor nor the purpose for purchase of the stamp papers. The

defendants also point out that the stamp papers were purchased by M/s

Global Associates; though the firm itself came into existence after that.

Further, the firm does not appear to be in existence during the execution of

the agreement to sell, that is, on 3.5.2007. Further, though the partnership

deed states that the bank accounts of the firm will be jointly operated by the

second and third plaintiff, all alleged payments were made in cash. It is also

alleged that though the partnership deed shows as many as 12 partners,

only the first and second plaintiff are shown as active partners, while the

others have been added apparently with a view to show cash contribution

towards the alleged payments. The defendants further submit that only such

a scenario could explain the blank spaces in the various instruments.

12. In relation to the alleged payments, the defendants submit that at time

of execution of the agreement to sell, a blank receipt was got executed by

CS-296/08 Page 6 the dealer, a photocopy of which was handed over them. It is alleged that

the plaintiffs later misused the receipt by showing another payment of Rs.15

lakhs on a later date. They submit that this fraud becomes apparent

because, in the said receipt, the amount is described as earnest money,

when actually the earnest money was paid on 3.5.2007 (when the

agreement to sell was executed). The same description was not given for

Rs.3 lakhs paid on 2.6.2007, which too was received after execution of the

agreement to sell. Therefore, the payment of any sort of earnest money on

11.6.2007 did not arise. Similarly, the alleged payment of Rs 85 lakhs on

2.8.2007, it is claimed, is also fraudulent. It is submitted that there cannot be

any reason why such a huge amount would be paid in cash by partnership

firm, contrary to provisions of the Income Tax Act, especially when two

partners were authorized to operate bank accounts and cheques. Moreover,

the plaintiffs appear to have paid Rs. 18 lakhs more than what was expected

out of them, according to the agreement to sell; no reasons were given in

this regard too.

13. The defendants submit that the agreement to sell had stipulated

3.9.2007 as the date for receiving the final payment, but the plaintiffs sought

to circumvent this by indicating 25.9.2007 as the last date for the final

payment in the receipt dated 2.6.2007, which space was left blank at behest

of the dealer. Further, the bank loan and related papers produced by the

plaintiffs are dated 18.1.2008, whereas according to the plaintiffs‟ admission

the last date for payment was 25.9.2007. They also allege that their

CS-296/08 Page 7 signatures as well as the signature of their son has been forged and misused,

and that have been deliberately mislead and defrauded.

14. At the time of hearing of the application, the first defendant was

present in court, and was examined on the question of execution of

documents filed with the suit. He admitted to signing the document Ex. P-1,

a Part Payment Receipt, on 2-6-2007, evidencing payment of Rs. 18,00,000/-;

he however, stated that the reference to 25-9-2007 was missing (when he

signed it), and the relevant space was blank. He also admitted signing the

second document, i.e Ex. P-2, but deposed that the document was blank at

the relevant spaces. The name of the plaintiff, date etc have been filed in ink

in the receipt. He however, denies having signed the document of 2-9-2007

which relates to payment of Rs. 85 lakhs; he also deposed that his son and

wife did not sign on it or fix their thumb impression. He further deposed that

five blank documents were got signed at the behest of Rajeev Mishra, which

appear to have been used in the suit.

15. The factual narration shows that there is no dispute about execution of

the agreement to sell, and payment of initial Rs. 15 lakhs. However, the

defendants deny altogether having received Rs. 85 lakhs, in August, as

alleged by the plaintiffs. The agreement states that the transaction had to be

completed by 3-9-2007. The plaintiffs‟ case is that the reference to 25-9-

2007, in the second receipt shows that parties extended the time for

performance. The defendants roundly deny this document, as well as having

received the amount mentioned in it; their version is that blank spaces in

CS-296/08 Page 8 were filled in to be misutilized later. They also rely on a legal notice issued to

Shri Rajive Mishra, dated 30th August, 2007; according to them, despite their

going to the office of the sub registrar, on 3-9-2007, the plaintiff did not turn

up there. They also replied to the legal notice issued by the plaintiffs, and

alleged not having denied the amounts averred in the suit.

16. Besides the controversy about genuineness of the documents, raised

by the defendant, and their clear statement of not having received the large

sums of money in cash, as alleged by the plaintiff, one curious fact which

cannot be ignored by the court is that the second receipt styles the amount

given as "earnest money" which is a clear mis-description. The earnest

money, as understood in such transactions, would be payable at the time of

execution of the agreement to sell. Another aspect is that the plaintiff,

despite knowledge that the defendant‟s unwillingness to take steps to sell

the property, apparently kept quiet, inexplicably, for more than six months.

Also, the plaintiffs are relying on bank documents, evidencing sanction of

loan, in January, 2008, to say that they were able, ready and willing to

complete the transaction. No such evidence as of end September, 2007,

which was the time agreed for performance, is disclosed.

17. All these factors, taken together, do not prima facie support the

plaintiff‟s version, pleaded in the suit. The court is therefore of the opinion

that the plaintiffs have not made out a strong prima facie case for grant of

CS-296/08 Page 9 ad interim injunction. For these reasons, the application has to fail;

IA No. 1977/2008 is dismissed.

S. RAVINDRA BHAT, J.

OCTOBER 24, 2008

CS-296/08 Page 10