Ashok Kumar Aggarwal vs Smt. Chandra Kanta Yadav
2010 Latest Caselaw 4902 Del

$~40
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Order: 25.10.2010
+      CS(OS) 1088/2009

       ASHOK KUMAR AGGARWAL                         ..... Plaintiff

                     versus

       SMT. CHANDRA KANTA YADAV                    ..... Defendant

Advocates who appeared in this case:
For the Plaintiff                     : Mr. S.P. Singh
For the defendant                      : Mr. Kuldeep Singh
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1.

Whether Reporters of local papers may be allowed to see the judgment? :NO

2. To be referred to the Reporter or not? :NO

3. Whether the judgment should be reported :NO in Digest?

V.K. JAIN, J(Oral)

I.A. No. 7726/2009(u/O 39 R 1 & 2 CPC)

This is an application for grant of interim injunction restraining the

defendant from alienating, encumbering or creating any third party interest

in property No.508/2 measuring 200 sq. yds. out of khasra No.999/526/2 in

the abadi of Ashok Nagar, Delhi-93 during pendency of the suit.

2. It is an admitted case that the defendant had agreed to sell property

No.508/2 measuring 200 sq. yds. comprised in khasra No.999/526/2 in the

abadi of Ashok Nagar, Delhi-93 to the plaintiff for a total sale consideration

of Rs.46,50,000/- vide agreement to sell dated 03.04.2008 and had

received a part payment of Rs.5 lakhs from him on the same date. The

balance amount was to be paid to the defendant on or before 30.06.2008.

It is also an admitted case that the plaintiff made a further payment of Rs.5

lakhs to the defendant on 20.05.2008 and that payment was also

acknowledged on the back of the agreement dated 03.04.2008. The case of

the plaintiff is that on 25.06.2008 Shri Vijay Yadav, husband of the

defendant came to his house and took the original agreement to sell from

him on the pretext of obtaining sanction/NOC, in order to execute the sale

deed in favour of the plaintiff. It is further alleged that the original

document was not returned thereafter despite request of the plaintiff.

According to the plaintiff, the defendant later on agreed to executve the

sale deed and asked him to reach the office of the Sub-Registrar on

30.06.2008. The plaintiff claims to have reached the office of the Sub-

Registrar on that date and waited there till 5:00 P.M. According to him, the

defendant did not turn up in the office of the Sub-Registrar. A legal notice

dated 11.08.2008 was also sent to the defendant asking him to take the

balance amount and execute the sale deed in favour of the plaintiff. Vide

reply dated 28.08.2008 the defendant claimed that she had returned the

entire amount of Rs. 10 lakhs which she had taken from the plaintiff and

the original agreement was destroyed.

3. In her written statement the defendant has alleged that it was the

plaintiff who committed default in payment of the balance amount and did

not reach the office of the Sub-Registrar on 30.06.2008. The defendant

claims that she had reached the office of the Sub-Registrar on that date and

had also purchased a judicial stamp paper from a stamp vendor in token of

her having attending the office of the Sub-Registrar on that date. She also

claims to have got herself registered by way of Form No.3 at serial No.130

on that date. On merits it has been alleged that when the plaintiff did not

turn up in the office of Sub-Registrar on 30.06.2008, she contacted him in

this regard. On being contacted by the defendant, the plaintiff told her that

he was not in a position to arrange the balance amount and requested her

to return back the amount of Rs.10 lakhs which he had paid to her. The

defendant has alleged that she had agreed to the request of the plaintiff

and made payment of Rs.10 lakhs to him which he acknowledged on the

back side of the agreement to sell, in the presence of witnesses on

20.07.2008.

4. At this stage, it is not possible for the Court to decide as to whether it

was the plaintiff or the defendant or both the parties who had attended the

office of the Sub-Registrar on 30.06.2008. This is a matter which requires

recording of evidence, before any finding can be given either way.

However, the fact remains that there is no dispute between the parties as

regards the execution of the agreement to sell dated 03.04.2008 and

receipt of Rs. 10 lakhs by the defendant from the plaintiff in two

installments of Rs.5 lakhs each first on 03.04.2008 and the second on

20.05.2008. Whereas the alleged payment of Rs.10 lakhs by the defendant

to the plaintiff is disputed by the plaintiff.

5. As regards the alleged return of Rs. 10 lakhs to the plaintiff by the

defendant on 20.07.2008, when questioned in this regard, the learned

counsel for the defendant states that the original document, at the back of

which the plaintiff had acknowledged the receipt of Rs.10 lakhs from the

defendant, was destroyed by the plaintiff in the presence of the defendant

and two witnesses.

6. I fail to appreciate how the defendant could have allowed such an

important document which was the only documentary evidence of the

alleged payment of Rs.10 lakhs by her to the plaintiff, to be destroyed like

this. One has to keep in mind the fact that the alleged payment of Rs.10

lakhs was made in cash and not by way of a cheque or a draft/pay order. If

a person who has agreed to sell her property to a person refunds the entire

amount received by her and the agreement is cancelled with the mutual

consent of the parties as the defendant before this Court claims, he/she

would rather preserve instead of allowing the only documentary proof of

the transaction to be destroyed. The defendant has placed on record, a

copy of the acknowledgement alleged to have been made by the plaintiff,

while receiving Rs.10 lakhs from her on 20.07.2008; but, that document has

been denied by the plaintiff, today in the Court. Since the plaintiff has

denied the alleged receipt of Rs. 10 lakhs from the defendant, it is difficult

for this Court, at this stage, to accept, even prima facie, that the plaintiff

had received a sum of Rs.10 lakhs from her on 20.07.2008. Another

important aspect in this regard is that when asked as to from where the

defendant arranged Rs.10 lakhs alleged to have been paid by her to the

plaintiff. The learned counsel for the defendant states that it was the same

money which the defendant had received from the plaintiff in two

installments on 03.04.2008 and 20.05.2008. Ordinarily, one would not

like to keep such a huge amount idle in his house, without its earning any

interest for the person who has received the amount. One would rather

like to earn some interest by depositing that amount in a bank either in FDR

or in a savings account. This becomes important when the other party

denies having received the alleged cash payment.

7. Another important circumstance is that though in their pleadings

both the parties claim that they had agreed to reach to office of Sub-

Registrar on 30.06.2008 neither of them claims even to have got the sale

deed typed on or before 30.06.2008. Neither of them claim even to have

purchased the requisite stamp paper(s). They do not say that the stamp

papers were to be purchased and the sale deed was to be typed in the

office of Sub-Registrar on 30.06.2008. I, therefore, fail to appreciate for

what purpose the parties would go to the office of Sub-Registrar on

30.06.2008, when even the sale deed was not ready for registration. There

is no reference to the visit to the office of Sub-Registrar either in the notice

sent by the plaintiff or in the reply sent by the defendant. It appears to me

that probably neither party reached the office of Sub-Registrar on

30.06.2008.

8. For the reasons given in the preceding paragraphs, I am of

considered view that the plaintiff has a good prima facie case in his favour.

The suit filed by the plaintiff itself may get frustrated if the defendant is not

restrained from selling, alienating, transferring or parting with possession

of the suit property during the pendency of the suit. On the other hand,

the defendant is not likely to suffer any hardship if the injunction as sought

by the plaintiff is granted, particularly, when she does not say that she

wants to dispose of the property in near future. Of course, the plaintiff

also needs to establish his bonafide before he can claim any injunction

against the defendant and considering that the learned counsel for the

plaintiff states that the plaintiff will deposit the balance amount of Rs.36

lakhs by way of FDR in the name of the Registrar General of this Court

within four weeks from today.

9. The defendant is hereby restrained from selling, alienating,

transferring or parting with possession of the suit property No.508/2

measuring 200 sq. yds. out of khasra No.999/526/2 in the abadi of Ashok

Nagar, Delhi-93 during pendency of the suit, without prior permission of

the Court. She is also restrained from creating any kind of third party

interest in the suit property during pendency of this suit. This order is

subject to the plaintiff depositing a sum of Rs.36 lakhs within four weeks by

way of FDR in the name of the Registrar General of this Court. This is

subject to a further condition that the plaintiff will file an affidavit by way of

evidence within four weeks from today and will also produce his witnesses

on the very first date which may be fixed for the purpose of their cross-

examination as also on the subsequent dates, to which the case may be

adjourned, for their cross-examination. The application stands disposed of.

CS(OS) 1088/2009 The pleadings and admission denial of documents are complete.

The following issues are framed on the pleadings of the parties:

1. Whether the plaintiff had received Rs.10 lakhs from the defendant

on 20.07.2008 and had destroyed the original agreement to sell as alleged

in the written statement? OPD.

2. Whether the plaintiff has always been ready and willing to perform

his part of the agreement? OPP.

3. Whether the plaintiff is entitled to the relief claimed? OPP.

4. Relief.

No other issue arises or is claimed.

The evidence by way of affidavits be filed within four weeks. The

plaintiff to produce his witnesses for cross-examination before the Joint

Registrar, on 06.12.2010.

V.K. JAIN, J

OCTOBER 25, 2010 RS