Shri Deepan Kumar vs Shri Jai Prakash Aggarwal
2009 Latest Caselaw 1208 Del

*          HIGH COURT OF DELHI : NEW DELHI

+    I.A. No. 9622/2008 in CS (OS) No. 1610/2008

                      Judgment reserved on: 30th March, 2009
%                     Judgment decided on :   6th April, 2009

SHRI DEEPAN KUMAR                           ......Plaintiff
               Through : Mr. Arjun Singh Bawa, Adv.

                      Versus

SHRI JAI PRAKASH AGGARWAL                    ....Defendant
                Through : Ms. Manisha Agarwal, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                              Yes

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

MANMOHAN SINGH, J.

1. By this order, I shall be disposing of the application filed by

the plaintiff under Order 39 Rule 1 and 2 CPC.

2. The brief facts are that the plaintiff had entered into an

agreement dated 17th March, 2008 with the defendant for the sale of

property at ground floor (except common passage and stairs) without its

roof rights and above with all fittings and fixtures of water, electric,

sanitary with its connection in working conditions and wooden etc. with

the freehold rights of the land underneath proportionately measuring 300

sq. yards at I-74, Ground Floor, Phase I, Ashok Vihar, Delhi-110052 for

a sale consideration of Rs. 1,94,00,000/- which was in ownership and

CS(OS)1610/2008 possession of the defendant.

3. As per the terms and conditions of the agreement to sell, the

defendant had assured the plaintiff that the said property was free from

all sorts of encumbrances such as prior sale, gift mortgage, charges, lien,

attachment surety etc. The condition was prerequisite and a material

fact of the agreement.

4. The plaintiff as per the agreement has paid part payment for

the sum of Rs. 48,50,000/- towards the total sale consideration of the

said property. It was the obligation of the defendant to produce the

original title deeds/documents and papers on the payment of said

amount. The defendant was approached by the plaintiff many times to

show the original title deeds. However, according to the plaintiff, the

defendant avoided the same by telephonic message dated 12 th June,

2008. Urging the defendant to produce the original papers, the

defendant replied to the said message and asked the plaintiff to inspect

the title deeds at his Advocate‟s office.

5. There was a correspondence between the parties but the

plaintiff was not able to see the original papers. Later on, it was

revealed by the plaintiff at the time of executing the agreement to sell

that the said property was already mortgaged with the ICICI Bank. The

defendant has admitted this fact in the notice dated 26th June, 2008.

6. It is alleged in para 20 of the plaint that the defendant on the

other hand has forfeited the advanced amount paid by the plaintiff in

spite of the fact that the plaintiff has been deceived and defrauded by the

CS(OS)1610/2008 defendant. The plaintiff has also alleged in the plaint that in order to

show his bona fide, the plaintiff had applied the home loan with Citi

Financial Consumer Finance India Limited which had approved an

amount of Rs. 99 lakhs. The advance payment made by the plaintiff was

used by the defendant to redeem the mortgage. Therefore, the plaintiff

has an equitable right in the said property.

7. Thereafter, it came to the notice of the plaintiff that the

defendant is trying to sell the said property to a third party. As per these

facts, the suit has been filed by the plaintiff for injunction and damages.

8. The defendant has filed the written statement and has raised

various objections. One of the objection raised by the defendant that the

plaintiff has not paid the remaining amount as balance consideration.

Therefore, the delivery of vacant and peaceful possession has not been

given to the plaintiff. It is also stated in the written statement that when

the time was fixed to show the original papers in the office of the

defendant‟s counsel, the plaintiff did not turn up at the office of the

counsel to inspect the original papers.

9. It is stated that the defendant had equitably mortgaged the

suit property as a security for the overdraft facility in the account with

ICICI Bank. The defendant sent a legal notice dated 26 th June, 2008 that

if the plaintiff "avoids to perform his part of the contract beyond 30 th

June, 2008", the defendant will have no option but to take appropriate

steps to protect his interests. The defendant appointed M/s Central

Cargo, Packers & Movers, who are in the business of shifting household

CS(OS)1610/2008 materials and vacated the suit property on 29 th June, 2008 for delivery to

the plaintiff.

10. The agreement envisaged that the plaintiff shall pay a sum of

Rs. 50 lakhs as part consideration to the defendant „on or before 7 th May,

2008‟. Since the said payment has not been made by the plaintiff,

therefore, the defendant was not able to purchase the property at

Vaishali, Ghaziabad as he required the money to pay for the purchase of

this property.

11. It is stated that the defendant had in appropriate good time

redeemed the mortgage of the suit property; obtained the title documents

of it; made it free from all encumbrances. The plaintiff did not visit the

suit property on 30th June, 2008. It is denied that the suit property had

not been vacated on the said date. The suit property had been vacated on

29th June, 2008 and was in a deliverable condition on 30th June, 2008.

The defendant has the original title deeds of the suit property ready with

him for giving an inspection to the plaintiff.

12. The defendant prayed that he has no objection in selling the

suit property to the plaintiff upon the plaintiff paying the agreed balance

consideration together with interest @ 18% p.a. compounded quarterly

from 30th June, 2008 till the date of payment of balance consideration to

the defendant together with the costs of the suit.

13. I have heard learned counsel for the parties. It is not in

dispute that the parties have entered into an agreement to sell dated 17th

March, 2008. The defendant has not disputed the fact of execution of

CS(OS)1610/2008 agreement to sell dated 17th March, 2008 as well as the clause mentioned

in the agreement that the said property was free from all sort of

encumbrances such as prior sale, gift mortgage, charges, lien, attachment

surety etc. He has also admitted in the notice dated 26th June, 2008 that

the property agreed to be sold was equitably mortgaged with the ICICI

Bank.

14. There was also an obligation on the part of the defendant as

per the agreement to produce the original title deeds, documents and

papers on payment of the amount. The part payment for the sum of Rs.

48,50,000/- is also not disputed by the defendant. The defendant has not

handed over the peaceful possession of the suit property. The plaintiff

has also alleged that the loan of Rs. 99 lakhs was approved by the Citi

Financial Consumer Finance India Limited. Further, it is not in dispute

that the suit property was already mortgaged with the ICICI Bank on the

date of Agreement dated 17th March, 2008. Prima facie, it appears that

this fact has not been disclosed by the defendant to the plaintiff,

otherwise he might not have entered into an agreement with the

defendant.

15. Considering the overall facts and circumstances of the matter,

I am of the view that this is a prima facie fit case for grant of an ad

interim injunction in favour of the plaintiff and against the defendant.

Balance of convenience and equity lies in favour of the plaintiff and

against the defendant. Grave and irreparable loss and injury shall be

caused to the plaintiff if the injunction is not granted at this stage.

CS(OS)1610/2008

16. Accordingly, during the pendency of the suit, the defendants

are restrained from transferring, disposing of, selling or creating any

third party interest in the suit property bearing no. I-74, Ground Floor,

Phase I, Ashok Vihar, Delhi-110052.

This application is allowed in the above terms.

MANMOHAN SINGH, J.

APRIL 06, 2009 SD

CS(OS)1610/2008