Sh. Shamsher Singh vs Smt. Anshu Mangla
2011 Latest Caselaw 1939 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.197/2011
%                                                 4th April, 2011

SH. SHAMSHER SINGH                                      ...... Appellant

                          Through:    Mr. S.P. Mehta, Advocate.


                          VERSUS

SMT. ANSHU MANGLA                                       ...... Respondent

                          Through:    None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and decree dated 3.1.2011 which has rejected the plaint of the

appellant/plaintiff as it does not disclose cause of action.      In fact, in my

opinion, the impugned judgment and decree is really one under Order 12

Rule 6 CPC inasmuch as it decides the suit on merits on the admitted factual

position. As per Order 12 Rule 6 CPC a decree is passed and decree includes

dismissal of a suit vide Section 2(2) CPC.


RFA 197/2011.                                                              Page 1 of 5
 2.             The facts of the case are that the appellant was allotted the

property bearing No.34 (measuring 100 Sq. mtrs.), Sector-3, Pocket-M at

Bawana, Delhi by the Delhi State Industrial Development Corporation Ltd.

(DSIDC).      Rights in this property were transferred on 23.7.2004 by the

appellant by means of the usual documents of Agreement to sell, Will and a

General Power of Attorney-the General Power of Attorney & Will being

registered with the sub-Registrar. The appellant received the entire

consideration with respect to transfer of the rights in the property and it is

not the case of the appellant in the plaint that these documents were

illegally    got   executed   from   him   either   by   force   or   coercion    or

misrepresentation etc. The only case of the appellant/plaintiff in the plaint

was that subsequently when the perpetual lease deed of the property was

executed in favour of the appellant/plaintiff by the DSIDC, it transpired that

the appellant was not entitled to transfer the property and therefore the suit

was filed seeking cancellation of documents.         By the impugned judgment

and decree, the suit has been dismissed holding that there is no cause of

action.


3.             Learned counsel for the appellant relied upon the following

Clause 5(a) found in the perpetual lease deed to canvass that the suit could

be filed and that the documentation dated 23.7.2004 were illegal:


            "5(a)    The Lessee shall not sell, transfer, assign or otherwise
            part with the possession of the whole or any part of the
            industrial plot except with the previous consent in writing of

RFA 197/2011.                                                             Page 2 of 5
             the Lessor which he shall be entitled to refuse in his absolute
            discretion.

            PROVIDED that such consent shall not be given for a period of
            ten years from the commencement of this lease unless, in the
            opinion of the Lessor exceptional circumstances exist for the
            grant of such consent.

            PROVIDED FURTHER, that in the event of the consent being
            given, the Lessor may impose such terms and conditions as he
            thinks fit and the Lessor shall be entitled to claim and recover
            a portion of the unearned increase in the value (i.e. the
            difference between the PREMIUM Paid and the market value)
            of the industrial plot at the time of sale, transfer, assignment,
            or parting with the possession, the amount to be recovered
            being fifty per cent of the unearned increase and the decision
            of the Lessor in respect of the market value shall be final and
            binding.

            PROVIDED FURTHER that the Lessor shall have the pre-
            emptive right to purchase the property after deducting fifty
            percent of the unearned increase as aforesaid."

               It is argued that the appellant therefore could not have entered

into the documentation dated 23.4.2004 by which the rights in the property

were transferred to the respondent.


4.             There are two reasons to reject the argument as raised by the

learned counsel for the appellant and which are:


      (i)      Quite clearly, the suit was mala fide and an abuse of process of

law because the appellant after receiving the complete monies for transfer of

the property from the respondent has turned dishonest and seeks

cancellation of documents although complete consideration was received

and the possession of the property was transferred. As already stated, it is

not the case of the petitioner that the documents are to be faulted on any

RFA 197/2011.                                                            Page 3 of 5
 count pertaining to fraud, coercion, misrepresentation or so on.    Thus the

appellant had turned greedy, because of increase in the value of the

property, and which led him to file the suit.


      (ii)   Clause 5(a) of the perpetual lease does not make the transaction

in question by which the property was transferred as void.       All that the

clause provides is that before transfer of the property permission is required

for transfer and the permission which may given may be a conditional

permission subject to certain payment. In agreements to Sell where the

seller has to take prior permission from an appropriate authority, then, the

agreement does not become invalid for that reason, but the seller must take

the appropriate permission and failing which, in a suit for specific

performance being decreed, the seller is directed to obtain the necessary

permission or failing which the Local Commissioner is appointed by the Court

under Order 21 Rule 32 CPC to take the appropriate permission.        Such a

contract cannot be declared as bad or void merely because the prior

permission ought to have been taken and which is not taken by the lessor.

This issue is no longer res integra and so held by the Supreme Court in the

case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and

Others AIR 1964 SC 978 in which it is held that such contracts are only

contingent contracts and the said contracts have to be performed by

obtaining the necessary permission. I may note that the Supreme Court in

the case of B.O.I. Finance Ltd. Vs. Custodian and others, 1997 (10)

RFA 197/2011.                                                        Page 4 of 5
 SCC 488, a decision by a Bench of three Judges, has gone to the extent of

saying that if a contract which is illegal is performed then rights would be

created thereunder as long as it is not sought to be enforced through a Court

of law.   Same is the view of the Supreme Court in         Canbank Financial

Services Ltd. Vs. Custodian and others 2004 (8) SCC 355.                In the

present case, it is not that the respondent/defendant/buyer is seeking

enforcement of the contract and the documents dated 23.4.2004 and it is in

fact the appellant/plaintiff who is seeking cancellation of the documents.


5.          In view of the above, there are no disputed questions of facts

which require summoning of the trial Court record. Impugned judgment and

decree is therefore liable to be sustained by dismissing the suit of the

appellant/plaintiff, though of course, not on the ground that it does not

disclose cause of action for the purpose of Order 7 Rule 11 CPC, but because

the admitted facts show that no cause of action is made out. I, therefore,

hold that the suit of the appellant/plaintiff will stand dismissed. Appeal is

accordingly disposed of. Parties are left to bear their own costs.


C.M. No.6898/2011 (stay) in RFA No.197/2011


            Since the main appeal is dismissed, no orders are required to be

passed in this application which is disposed of as such.


APRIL 04, 2011                                      VALMIKI J. MEHTA, J.

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