Satish Verma vs Jeetindra Churamani & Anr.
2009 Latest Caselaw 5408 Del

 *                       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       I.A. Nos.9471 of 2009 & 141 of 2009 in C.S. (OS) No.631 of 2005

%                                                                                  23.12.2009

         SATISH VERMA                                                      ......Plaintiff
                                          Through: Mr. Shekhar & Ms. Anchal Dhingra,
                                                   Advocates.

                                              Versus

         JEETINDRA CHURAMANI & ANR.                           ......Defendants
                            Through: Mr. Rohit Kumar, Adv. for defendants.
                                     Mr. Harsh Raghuvanshi, Advocate for the
                                     applicant.

                                                          Date of Reserve:17th November, 2009
                                                           Date of Order: 23rd December, 2009

         JUSTICE SHIV NARAYAN DHINGRA

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

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                         JUDGMENT

1. In this suit, I.A. No.9471 of 2009 under Order 39 Rule 2A CPC has been made by

the plaintiff against the defendants after an application being I.A. No.141 of 2009 was

made by one Mr. Gurmeet Singh Wadalia under Order 39 Rule 2A CPC.

2. The plaintiff herein, Mr. Satish Verma, had filed a suit for specific performance

against defendants in respect of property No.17, Central Drive, DLF, Chattarpur Farms,

New Delhi. The property is a farm house and the plaintiff has alleged that the defendants

had entered into an Agreement to Sell in respect of this property with the plaintiff and

later on refused to honour the Agreement. He, therefore, filed a suit for specific

performance.

3. This court on 10th May, 2005 passed an interim injunction against the defendants

restraining defendants from transferring, selling, encumbering, creating third party rights

or parting with possession of the suit property. Notice of this was sent to the defendants,

who initially refused to receive the service. However, the defendants put appearance on

29th July, 2005. The order passed by this court on 10th May, 2005 was confirmed and

made absolute on 23rd July, 2008 and issues were framed. During the period when

evidence was going on, the defendants made an application to the court being I.A.

No.10810 of 2008 under Order 39 Rule 4 CPC with a prayer that the court should modify

the order and allow defendants to lease out the property to one Mr. Gurmeet Singh

Wadalia. This application was made on 25th August, 2008. This court issued a notice of

the application and after considering the reply of the plaintiff, vide order dated

24th November, 2008, permitted the defendants to allow the use and occupation of the

property to Mr. Gurmeet Singh Wadalia, subject to the condition that Mr. Gurmeet Singh

Wadalia would not claim to be a tenant or in possession of the said property and further

subject to Mr. Gurmeet Singh Wadalia filing an undertaking in the form of an affidavit

before this court setting out the terms and conditions of the settlement between him and

the defendants and further with an undertaking that on the expiry of one year from the

date of commencement of use and occupation, he shall remove himself from the property,

not claiming any right therein and would not correspond with any authorities whatsoever

adversely to the interest of the defendants. It was also directed that an advance copy of

the affidavit of Mr. Gurmeet Singh Wadalia be supplied to counsel for the plaintiff.

4. An affidavit of Mr. Gurmeet Singh Wadalia dated 8th December, 2008 was filed in

the court wherein Mr. Gurmeet Singh Wadalia deposed that he was apprised by the

defendants of the civil suit filed by Mr. Satish Verma with regard to property in question

and if he was permitted by the court to use the said property for his residence and

residence of his family members for a period of one year, he would be paying a sum of

Rs.40,000/- to both the defendants (Rs.20,000/- each) for use and occupation of the

property. He shall bear all other expenses for up keeping and maintenance of the suit

property including major repair works. He shall be engaging servants, gardeners of his

own for up keep of the property. He shall pay electricity charges, etc. He shall deposit a

sum of Rs.2 lac as interest free security with defendants to be refunded to him on vacation

of the premises. He shall not carry out any additions or alterations and he shall not part

with possession to any other person. He shall give 90 days' notice in writing to owners

before vacation of the premises and he shall handover peaceful vacant possession to the

defendants on expiry of period of one year and give intimation to the court. However,

Mr. Gurmeet Singh Wadalia did not counter sign the order of the court as required and

did not file a separate undertaking rather he filed an application being I.A. No.141 of

2009 before the court under Order 39 Rule 2A CPC wherein he alleged that he was duped

by the defendants, who claimed themselves to be the absolute owners in possession of the

said farm house and they negotiated with him to sell the farm house for a total

consideration of Rs.5.40 crores. The deal was struck in presence of Mr. Raj Bahadur

Gupta, a property dealer, Mr. Neeraj Singh Rathi, another property dealer and Mr. Rajeev

Khanna, a friend of the applicant. On the deal being struck, he paid a sum of Rs.81 lac to

the defendants on 25th August, 2008. Out of this Rs.67.40 lac was paid in cash. Two pay

orders for Rs.1.80 lac each dated 25th August, 2008 drawn on ICICI Bank, New Friends

Colony, New Delhi were handed over to defendants and two post-dated cheques of Rs.5

lac each dated 1st December, 2008 on HSBC Bank, Sector 9, Chandigarh, were also

handed over to the defendants. The balance amount was to be paid subsequently.

5. The possession of the premises was handed over to the applicant on 31st August,

2008. The applicant was assured that a formal sale agreement would be executed with the

applicant on an auspicious day. After taking possession, the applicant spent about Rs.27

lac on the property by way of installation of a deep tube well, laying of pipelines and

sprinkler system, repair and plastering of complete boundary wall, repair of roof of

servant quarters and making a bathroom therein, landscaping, grass laying, upbringing of

front area, plants, walk way and construction of a swimming pool and reservoir and

installation of 12 ACs, paint and polish of the entire house, changing of old electric

wiring, obtaining gas connection and TATA Sky connections with Televisions. The

applicant also purchased a non-judicial stamp paper of Rs.100/- for executing Agreement

to Sell, however, defendants insisted that they believed in astrology and they would be

executing Agreement to Sell some time in October, 2008. However, the applicant was

approached on 27th November, 2008 at his residence, that is, farm house by the

defendants and the applicant was informed about pendency of the present case. At that

time the defendants impressed upon the applicant that the suit against them had no merits

and was liable to be dismissed. The defendants assured him that they would take

permission from the court to hand over the possession of farm house to the applicant so as

to legalize the possession as there was a stay order issued by the court. The applicant was

informed that they had already sought permission from the court and made an application.

6. On 8th December, 2008 defendants again came to applicant and requested him to

execute an affidavit showing him as a tenant in the farm house assuring that this would be

required and filed in the court only if the plaintiff raises any objection in the court. The

applicant executed an affidavit under influence of the defendants as the applicant had

already spent huge amount on the property. The defendants also took four post-dated

cheques from the applicant of Rs.2,40,000/- each telling him that these cheques would be

shown as rent to the court and would not be presented for encashment. The defendants

agreed to extend the time for performing and completion of sale transaction. To gain the

confidence of the applicant, the defendants also took two post-dated cheques of Rs.30 lac

each dated 1st September, 2009 drawn on HSBC Bank, Sector 9, Chandigarh in favour of

the defendants. On the morning of 18th December, 2008, the defendants came to the

applicant and wanted him to accompany with them to the High Court. The applicant

reached High Court and met Mr. Rohit Kumar, counsel for the defendants and there he

was shocked to know that the affidavit of the applicant had already been filed before the

court and the defendants wanted applicant to depose in their favour before the court as per

the assertions made in affidavit. On hearing this, the applicant left the chamber of the

counsel and went back. On the evening of 18th December, 2008 defendants again visited

the residence of the applicant and asked him to visit the court the next day and sign some

court proceedings. The applicant raised objection and refused to sign the court

proceedings or any document for court proceedings. The applicant stated that the

defendants played fraud upon him. The defendants were involved in various court cases

and were habitual litigants and he has been deputed by the defendants and despite there

being stay order granted by the court, the defendants negotiated with him for sale of the

house and received considerable money from him and handed over possession to him.

He, therefore, wanted that defendants be punished under Order 39 Rule 2A CPC.

7. The defendants in reply denied the allegations made by Mr. Gurmeet Singh

Wadalia and stated that he was inducted only as a tenant for one year. No amount was

received from him in cash. Whatever amount was received that was received only against

rent and repair charges, etc. It was further submitted that the affidavit was executed by

Mr. Gurmeet Singh Wadalia voluntarily. No misrepresentation was made to him. He

after taking possession became dishonest and colluded with the plaintiff and made false

allegations against the defendants. The defendants were law abiding citizens and were

harassed by the applicant.

8. The defendants also moved a contempt petition being C.C.P. (O) No.60 of 2009

making similar allegations against the applicant, Mr. Gurmeet Singh Wadalia, with

application that the affidavit of applicant Mr. Gurmeet Singh Wadalia was taken on

record by the court on 18th December, 2008. This affidavit was executed by the applicant

Mr. Gurmeet Singh Wadalia of his own and the defendants also prayed that Mr. Gurmeet

Singh Wadalia be directed by the court to give an undertaking and sign the order sheet. It

is also submitted that possession of the premises was with the defendants till end of

December, 2008. The defendants started shifting from the premises only after

Mr. Gurmeet Singh Wadalia had executed affidavit in accordance with the court order.

The possession of the premises was not handed over to Mr. Gurmeet Singh Wadalia at

any time prior to the order of the court and the allegations made by the applicant

Mr. Gurmeet Singh Wadalia about being in possession of premises prior to the order of

the court was malafide. A prayer is made that the court should proceed against Mr.

Gurmeet Singh Wadalia for contempt of court and punish him.

9. The applicant, Mr. Gurmeet Singh Wadalia, has not placed on record any receipt

showing cash payment of Rs.67.40 lac. It does not sound to reason that a person who had

not even executed the Agreement to Sell would part with such a huge cash without a

receipt. However, I consider that in order to adjudicate upon the issue whether the

defendants violated the orders of the court, it would be necessary to record evidence on

this issue. Mr. Gurmeet Singh Wadalia had filed an affidavit in the court about

occupying the premises in accordance with the court orders. His plea that he executed the

affidavit on some assurance of the defendants cannot be taken on the face value unless he

is subject to cross-examination by the plaintiff and the defendants. His plea that he had

entered into premises in part performance of the sale agreement in August itself is also to

be decided by way of evidence. I, therefore, consider that the applications and the

contempt petition filed in the suit can be decided only after evidence on this issue is

recorded. Thus, following issues are framed :-

1. If the defendants were guilty of violating the interim injunction order granted by

the court on 10th May, 2005 and confirmed on 23rd July, 2008?

2. Whether the applicant, Mr. Gurmeet Singh Wadalia was guilty of contempt?

10. The evidence on these issues be recorded along with the evidence in the main

case. However, in view of the peculiar circumstances, it is directed that the applicant,

Mr. Gurmeet Singh Wadalia, who had filed affidavit before the court shall be bound by

the order passed by the court in the suit of the plaintiff and also in view of Section 52 of

the Transfer of Properties Act. He would be at liberty to sue the defendants for his rights

viz-a-viz defendants. The applicant, Mr. Gurmeet Singh Wadalia, shall file his affidavit

by way of evidence within four weeks from today.

11. List before Joint Registrar for fixing dates of cross-examination and for evidence

in the main case on 25th February, 2010.

SHIV NARAYAN DHINGRA J.

DECEMBER 23, 2009 'AA'