Shri Beg Raj Khatana vs Smt. Raj Rani
2010 Latest Caselaw 748 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No. 922/2008 & IA No. 5916/2008

                                                     Reserved on : 21.01.2010

                                                  Date of Decision : 09.02.2010

Shri Beg Raj Khatana                                  ...... Plaintiff
                                   Through:   Mr. V.P. Katiyar, Advocate.

                                    Versus

Smt. Raj Rani                                     ...... Defendant
                                   Through:   Ms. Amrit Kaur Oberoi,
                                              Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

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

V.K. SHALI, J.

1. This order shall dispose of an application filed by the plaintiff

under Order 39 Rules 1 and 2 read with section 151 CPC.

2. Briefly stated the case of the plaintiff is that he had entered into

an agreement to purchase the property bearing no. 1751/129,

Shanti Nagar, Tri Nagar, Delhi-110035 on 12.12.2007 from its

owner the defendant. It is claimed by the plaintiff that in terms

of the said agreement the total amount of consideration payable

by the plaintiff to the defendant was Rs.36,40,000/- out of

which an amount of Rs.4,00,000/- was paid to the defendant by

way of cash at the time of signing of the agreement. According

to the terms and conditions of the agreement the balance

amount of Rs.32,40,000/- was to be paid on 10th April, 2008.

That is the date, which was allegedly fixed between the parties

for the purpose of execution of the sale deed. It is further

alleged by the plaintiff that in pursuance to the said agreement

he had got the drafts of the requisite balance amount of

Rs.32,40,000/- prepared from the bank on 8.4.2008 and also

purchased the stamp paper worth Rs.2,18,400/- on which the

agreement was to be drawn. The plaintiff states that he had also

sent a notice dated 24.03.2008 well in advance, to the defendant

expressing his readiness and willingness to perform his part of

the contract as he had got inkling that the defendant was trying

to back out from the agreement. The defendant did not come

forward and consequently the plaintiff was constrained to file

the present suit for specific performance in which the

application for interim injunction has been filed.

3. The defendant has filed written statement and the reply to the

application. She has taken the plea that the facts which have

been presented by the plaintiff are not correct. It has been

stated by the defendant that as a matter of fact the plaintiff, who

is resident of the same locality, had approached the defendant

for purchase of the aforesaid house which is measuring

approximately 98 sq. mts., comprising of ground floor, first floor

and the second floor. It is alleged that on 9.12.2007 the plaintiff

gave a sum of Rs.10,000/- as an earnest money and the plaintiff

further stated that he would reduce the terms and conditions

agreed into an agreement although a receipt was signed by the

defendant. It is stated that in the receipt indicating the payment

of earnest money it was specifically mentioned that the

defendant's son Deepak would be retaining the first floor of the

suit property and the property which was agreed to be sold to

the plaintiff (except first floor) for a total consideration of

Rs.36,40,000/-. It is alleged by the defendant that on

12.12.2007 the plaintiff further paid a sum of Rs.2,35,000/- to

the defendant and thus a total payment of Rs.4,00,000/- was

received by the defendant. The plaintiff got an agreement typed

in English, which was got signed from the defendant even

without permitting her to be read. It is stated that she is an old

lady and with a fading eye sight which is bordering blindness,

and moreover, she does not know English, therefore, she did not

and could not know the contents of the agreement although the

signature on the agreement are admitted by her. It is alleged by

her that the plaintiff has played fraud by obtaining the

signatures of the defendant on the said agreement purported to

represent as if the entire property was agreed to be sold by the

defendant to the plaintiff while as what was sold by her was only

the entire property minus the first floor which she intended to

retain for herself. Thus she has resisting the passing of any

interim order in favour of the plaintiff as the entire case of the

plaintiff is based on concealment of fact and on fraud.

4. The plaintiff in replication has not denied the fact of the

payment was made on 09.12.2007 or 10.12.2007 but he has

denied that what was agreed to be sold to him was only the

property minus the first floor. He has denied the allegations

against him that he is property dealer or a speculator and given

names of number of organizations in order to justify that he is

holder of different posts in these organizations and thus a

respectable person. It has also been stated by him that no

doubt the documents were signed by way of bayana-cum-receipt

agreement on 10.12.2007 but since the defendant wanted to

retain the first floor, therefore, the said agreement was cancelled

and the original bayana-cum-receipt agreement was torn while

as it seems that the defendant had retained the carbon copy of

the same which she is trying to use now to her own advantage.

It was also contended by him that it was at the instance of the

defendant only that two days later, on the morning of

12.12.2007 he went to the house of the defendant where she

agreed that she was willing to sell the entire property to the

plaintiff for a total consideration of Rs.36,40,000/- and for this

purpose she had persuaded her son Deepak who was in

occupation of the first floor.

5. I have heard the learned counsel for the petitioner as well as the

defendant.

6. The main contention of the learned counsel for the plaintiff is

that the defendant admittedly is not denying the signatures on

the agreement dated 12.12.2007 and the only defence which she

has put up is that what was agreed to be sold to the plaintiff was

the entire suit property minus the first floor which is at best

raising a triable issue. It could not be said that the plaintiff has

no prima facie case. It is contended by him that the balance of

convenience is also in favour of the plaintiff and that the plaintiff

will suffer irreparable loss in case the defendant is not

restrained from creating third party interest in respect of the

suit property during the pendency of the suit.

7. As against this, the learned counsel for the defendant has urged

that no doubt has admitted the signatures on the agreement

dated 12.12.2007 but has contended that since the entire case

of the plaintiff is based on concealment of fact and fraud,

therefore, not only the plaintiff is not entitled to any injunction

but the entire suit deserves to be thrown out. The learned

counsel for the defendant in this regard has relied upon the case

titled Sanjeev Narang Vs. Prism Bildcon Pvt. Ltd. 154(2008)

DLT 503(DB), M/s Seemax Construction (P) Ltd. Vs. State

Bank of Nida & Anr. AIR 1992 DELHI 197 and S.P.

Chengalvaraya Naidu Vs. Jagannath Air 1994 SC 853 to urge

that the petition itself and not only the stay does not deserve to

be granted because of the concealment of fact and withholding

of material document by way of bayana-cum-receipt agreement

by the plaintiff.

8. I have considered the submissions of the respective sides. I

have gone through the authorities submitted by the learned

counsels.

9. No doubt, the Courts have consistently taken the view that the

grant of interim injunction is a discretionary relief and a person

coming to the Court and praying for such a relief must come

with clean hands. He should not withhold material information

or a document so as to gain advantage over the other and if it

does so then not only he is not entitled to the interim relief but

even the suit itself can be thrown out.

10. Coming back to the facts of the present case it is not disputed

that the defendant had signed an agreement dated 12.12.2007

in which the total sale consideration and the description of the

property is given. It is also not in dispute that in this agreement

this fact is not mentioned that any of the floors much less the

first floor would be retained by the defendant. The amount of

Rs.4,00,000/- by way of earnest money having been received by

the defendant is also not disputed. The only contention which

has been put by the defendant is that prior to the agreement to

sell dated 12.12.2007 there was a bayana-cum-receipt

agreement drawn and in which, it was mentioned that what was

agreed to be sold by the defendant was the entire property

minus the first floor and this agreement has not been referred to

in the petition at all and hence there is concealment of material

facts by the plaintiff disentitling to any injunction. The factum

of the document having not been mentioned in the plaint

deliberately has been refuted by the plaintiff by contending that

since this agreement was not acted upon and was torn at the

time of signing of agreement dated 12.12.2007, therefore, this

agreement has not been referred to in the petition.

11. A perusal of this bayana-cum-receipt agreement does not show

that the defendant did not intend to sell the first floor. The only

impression prima facie which one gets is that the only

possession of the first floor was not to be handed over to the

plaintiff by the defendant at the time of the agreement. Non-

handing over of the possession by the defendant to the plaintiff

could not be construed as the intention of the defendant to not

to sell the said property to the plaintiff in any case. This is the

defence of the defendant which he has to establish by adducing

evidence during the course of trial. At this stage, because of this

reason it could not be assumed that plaintiff does not have any

prima facie case especially when he has paid a sum of

Rs.4,00,000/- as part payment or earnest money and shown his

financial capacity also by producing certificate of the bank that

he had got the draft for the balance of Rs.32,40,000/- also

prepared at the relevant time. This is further coupled with the

fact that he had purchased the requisite amount stamp papers

also.

12. Even the plea which is taken by the defendant that the entire

transaction is vitiated by fraud is yet to be established by

producing evidence and merely by taking the plea it cannot be

said that the case of the plaintiff or his application under Order

39 Rules 1 and 2 read with section 151 CPC deserves to be

dismissed. The judgments which have been relied upon by the

defendant in this regard can be distinguished on this ground

alone that in those cases the fraud has been established while

as in the present case it is only an allegation and is yet to be

established.

13. For the reasons mentioned above, I am of the considered opinion

that the plaintiff has got prima facie has a good case, the

balance of convenience is in his favour and that the plaintiff will

suffer an irreparable loss and I, therefore, confirm the stay

granted ex-parte by this Court on 22nd May, 2008 against the

defendant restraining them or their agents, or attorneys etc.

shall not part with the possession or the title of the property or a

part thereof or create any third party interest in respect of suit

property no. 1751/129, Shanti Nagar, Tri Nagar, Delhi-110035

during the pendency of the suit. Accordingly, the application is

allowed.

V.K. SHALI, J.

February 09, 2010 KP