Mr Mukesh Wadhwa vs Govt. Of N.C.T. Of Delhi & Ors.
2010 Latest Caselaw 5363 Del

THE HIGH COURT OF DELHI AT NEW DELHI

%		Judgment Reserved on: 23.11.2010 
		Judgment Pronounced on: 25.11.2010

+	CS(OS) No. 2148/2003

Mr Mukesh Wadhwa        			  .....Plaintiff

- versus -

Govt. of N.C.T. of Delhi & Ors.		.....Defendant
			
Advocates who appeared in this case:
For the Plaintiff:  Mr Ruchir Batra, Adv. 
For the Defendant:  

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

Whether Reporters of local papers may be allowed to see the judgment? No To be referred to the Reporter or not? No

Whether the judgment should be reported No in Digest?

V.K. JAIN, J This is a suit for declaration and injunction. The plaintiff is the son of late Shri Jagdish Mitra Wadhwa, who was the owner of property No. J-144, RBI Enclave, Paschim Vihar, New Delhi. Defendant No. Kamlesh Wadhwa is the mother of the plaintiff, whereas defendant Nos.3 and 4 are his sisters. Defendant No.5 Sudhir Kumar is the person to whom the aforesaid property has been sold by defendant No.2 Kamelsh Wadhwa.

It is alleged in the plaint that the plaintiff was living in the aforesaid house till 11th October, 2002. He filed a civil suit for partition of the aforesaid house and the other properties which were owned by his father late Shri Jagdish Mitra Wadhwa. Defendant No. 2 then filed a criminal writ before this Court, seeking dispossession of the plaintiff from the aforesaid house. During the pendency of the aforesaid writ petition, a Local Commissioner was appointed by the Court to visit the aforesaid property and he submitted his report dated 07th December, 2002 to the Court. Defendant No.2 also placed on record a receipt of payment of Rs 3 lacs by her as earnest money from one Shri Vipin Kumar towards sale consideration of the aforesaid house. She also filed a copy of agreement to sell dated 18th June, 2002, whereby she had agreed to sell the aforesaid house to one Shri Vipin Kumar for a sale consideration of Rs 46,30,000/-. Believing the documents produced by defendant No.2, the plaintiff amicable settled the matter with her and agreed to hand over possession of the property to her subject to her paying a sum of Rs 15 lacs to him towards his share in the aforesaid house. The plaintiff accordingly handed over the keys of the premises to her in terms of the order of the Court dated 18th October, 2002 passed in Criminal Writ No. 1009/2002.

It has been alleged in the plaitn that the aforesaid property has now been sold by defendant No.2 to defendant No.5 for a consideration of Rs 1 crore though the true sale consideration has been concealed while executing the sale deed and the sale consideration, show in the documents, is only Rs 6 lacs. The plaintiff has, therefore, sought a decree, declaring that the sale deed dated 17th October, 2002, executed by defendant No.2 in favour of defendant No.5 in respect of the aforesaid house is null and void. He has also sought another injunction, restraining defendant No.5 from raising any structure on the aforesaid property and has also sought an injunction, restraining the defendants from alienating or disposing off the aforesaid property by way of a sale, mortgage, gift, etc. The suit has been contested by the mother and sisters of the plaintiff, as also by defendant No.5 Shri Sudhir Kumar. They have claimed that late Shri Jagdish Mitra Wadhwa had bequeathed the aforesaid house to defendant No.2 by way of Will dated 16th May, 1997 and the property was accordingly mutated in her name. She being the mother of the plaintiff had, however, permitted his family to stay in the family house as a licencee. It has been further alleged that during pendency of the writ petition filed by defendant No.2, the Court opined that she should make an arrangement of a small house for the plaintiff in the nearby area. She accordingly produced a list of houses before the Court, from which the plaintiff chose a house causing costing about Rs 15 lacs. Defendant No.2 accordingly deposited the amount of Rs 15 lacs in the account of the plaintiff.

It has also been claimed that on account of pendency of the writ petition, defendant No.2 had to sell the house to Shri Sudhir Kumar at a much reduced price.

In his written statement, defendant No.5 has claimed that he had purchased the aforesaid house for a consideration of Rs 6 lac.

The following issues were framed on the pleadings of the parties:-

Whether the sale deed executed by the defendant No.3 in favour of the defendant No.6 on 17.10.2002 is liable to be declared null and void? OPP

Reliefs.

Issue No.1 The plaintiff has come in the witness box as PW-1 and has supported, on oath, the case set up in the plaint. PW-3 is an official from Oriental Bank of Commerce, who produced the record relating to a joint account with that bank in the name of late Shri Jagdish Mitra Wadhwa and defendant No.2 Kamlesh Wadhwa. PW-4 Virender Mehndiratta, Manager with Oriental Bank of Commerce, RBI Enclave, Paschim Vihar, New Delhi, produced the statements of account, pertaining to three accounts with the bank; one in the name of defendant No.2 and one Anshu Sharma and the other two in the joint names of defendant No.2 and late Shri Jagdish Mitra Wadhwa. PW-5 is an official of Punjab National Bank, who produced the record relating to opening of current account with it in the name of Shanti International, through its proprietor Shri K.K. Kohli.

The sale deed executed by defendant No.2 in favour of defendant No.5 has been challenged by the plaintiff on the sole ground that though the actual sale consideration received by her was Rs 1 crore, the sale consideration shown in the sale deed is Rs 6 lacs. This is not the case that defendant No.2 did not have equal competence to sell the aforesaid house and for this reason, the sale deed executed by her is null and void. It is an admitted case that house No. J-144, RBI Enclave, Paschim Vihar, New Delhi was the self acquitted house by Shri Jagdish Mitra Wadhwa. This has been expressly admitted by the plaintiff during his cross-examination. It is an admitted case of the parties that during the pendency of Criminal Writ No.1009/2002 filed by defendant No.2 against the plaintiff, the parties amicably settled the matter. A perusal of the order passed by a Division Bench of this Court on 08th October, 2002 shows that defendant No.2 agreed to give Rs 15 lacs to the plaintiff before this Court, who undertook to vacate the premises by 11th October, 2002. The Local Commissioner was directed to remain present at the time of vacation of the premises by the plaintiff and the matter was adjourned to 11th October, 2002. Vide order date 11th October, 2002, the Division Bench of this Court noted that the parties had settled the matter and defendant No.2 before this Court had paid a sum of Rs 15 lacs to the plaintiff before this Court, who had vacated the premises on receipt of the aforesaid amount and given keys to defendant No.2 before this Court. The writ petition was disposed of in terms of this settlement. This is not the case of the plaintiff that after settlement with him during the pendency of the aforesaid writ petition, defendant No.2 was not competent to sell the aforesaid house. His only grievance is that though the actual sale consideration received by defendant No.2 was 1 crore, it was reflected as Rs 6 lac in the sale deed executed by her. Once the plaintiff settled the matter with defendant No.2, accepted a sum of Rs 15 lacs from her and vacated the premises pursuant to that settlement, he has no right or even locus standi to challenge the sale deed executed by defendant No.2 Thereafter, it would be none of his concern as to what was the consideration for which the aforesaid house was sold by defendant No.2. He willingly and without any kind of coercion, fraud or undue influence on him settled the matter with his mother and vacated the premises, occupied by him. He, therefore, cannot challenge the sale deed executed by his mother, more so on the ground that the actual sale consideration was not reflected in the sale deed executed by her.

Though the plaintiff claims that the actual sale consideration received by defendant No.2 was Rs 1 crore, no evidence has been produced by him to prove this claim. During cross-examination, the plaintiff admitted that he has no document or any other proof to show that defendant No.2 had received a sum of Rs 1 crore from defendant No.5 toward sale consideration of the aforesaid house. Therefore, on facts also, the plaintiff has failed to establish the case set up by him.

During the course of arguments, it was contended by the learned counsel for the plaintiff that it was represented by defendant No.2 before the Local Commissioner at the time of inspection by him as also by filing the agreement to sell executed by her in favour of Shri Vipin Kumar that the sale consideration was Rs 46,30,000/- and that is why the plaintiff agreed to accept Rs 15 lacs from her. The contention was that had the plaintiff known that the actual value of the property was Rs 1 crore, he would not have settled for Rs 15 lacs and would have demanded 1/3rd Share in the aforesaid amount of Rs 1 crore. I find no merit in this contention. The orders passed by the Division Bench of this Court on 08th October, 2002 and 11th October, 2002 do not indicate that the plaintiff before this Court had agreed to receive Rs 15 lacs from defendant No.2 before this Court since he believed the market value of the aforesaid house to be Rs 46,30,000/- and he wanted 1/3rd Share in the sale consideration. The plaintiff settled the matter with defendant No.2 for a flat amount of Rs 15 lacs without linking that amount to the consideration for which defendant No.2 had agreed to sell the aforesaid property to Shri Vipin Kumar. Even otherwise, I fail to appreciate how the plaintiff could have 1/3rd Share in the house since he was one of the four class I legal heirs of late Shri Vipin Kumar, defendant No.2 to defendant No.4 being the other class I legal heirs. In any case, if the grievance of the plaintiff is that he was to receive 1/3rd of the sale consideration from defendant No.2 in terms of his settlement with her and that the actual sale consideration received by her is Rs 1 crore, the appropriate remedy for him is to issue defendant No.2 for recovery of the balance amount due to him. The sale deed executed by defendant No.2 in favour of defendant No.5 cannot be set aside or declared null and void on this ground.

During the course of arguments, it was also contended by the learned counsel for the plaintiff that a partition suit filed by the plaintiffs is pending and the amount of consideration actually received by defendant No.2 for sale of the aforesaid house would have a bearing on that suit since he is claiming a particular share in the properties left by his deceased father. If that be so, the appropriate remedy for the plaintiff would be to establish, during that suit, that, since the actual sale consideration received by defendant No.2 for sale of the aforesaid house was Rs 1 crore and that value was acquired to be taken into account while computing his share in the properties left by his deceased father. Of course, I have a serious doubt even as to tenability of such a plea because the amount of Rs 15 lacs which the plaintiff accepted from defendant No.2 was not linked to the market value of the house at the time of settlement.

For the reasons given in the preceding paragraphs, I am of the view that neither plaintiff has a locus standi to challenge the sale deed executed by defendant No.2 in favour of defendant No. 5 in respect of house No. J-144, RBI Enclave, Paschim Vihar, New Delhi, nor has he been able to make out any ground on merits, for setting aside the aforesaid sale deed or for declaring it null and void. The issue is decided against the plaintiff and in favour of the defendants.

In view of my finding on issue No.1, the plaintiff is not entitled to any relief.

ORDER

In view of my findings on the issues, the suit is hereby dismissed with costs.

Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE

NOVEMBER 25, 2010 BG