Delhi High Court
Yashwant Singh vs Ashutosh Verma on 21 December, 2012
Author: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
% Judgment pronounced on: 21.12.2012
+ CS(OS) No.5/2012
YASHWANT SINGH ..... Plaintiff
Through Mr. Sandeep Sethi, Sr. Adv. with
Mr. Mohit Chaudhary, Adv.
versus
ASHUTOSH VERMA ..... Defendant
Through Mr. A.K.Srivastava, Advocate with
Mr. Rahul Sharma and Ms. Uzma
Ashraf, Advs.
AND
+ CS(OS) No.508/2012
ASHUTOSH VERMA ..... Plaintiff
Through Mr. A.K.Srivastava, Advocate with
Mr. Rahul Sharma and Ms. Uzma
Ashraf, Advs.
versus
YASHWANT SINGH AND OTHERS ..... Defendants
Through Mr. Sandeep Sethi, Sr. Adv. with
Mr. Mohit Chaudhary, Adv.
AND
+ CS(OS) No.641/2012
ASHUTOSH VERMA ..... Plaintiff
Through Mr. A.K.Srivastava, Advocate with
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.1 of 53
Mr. Rahul Sharma and Ms. Uzma
Ashraf, Advs.
versus
SATEESH KUMAR SINGH AND ORS ..... Defendants
Through Mr. Sandeep Sethi, Sr. Adv. with
Mr. Prabhat Kumar and Mr. Vivek
Agarwal, for D-1 & D-2.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
I.A. No.42/2012 (u/o XXXIX, R.1 & 2 CPC), I.A. No.3918/2012 (u/o VII,
R.11 CPC) & I.A. No.15990/2012 (u/s 151 CPC for brining subsequent
developments and facts on record) in CS(OS) No.5/2012 and
I.A. No.4798/2012 (u/o XXXIX, R.1 & 2 CPC) and I.A. No.15989/2012
(u/s 151 CPC for brining subsequent developments and facts on record)
in CS(OS) No.641/2012
1. By this common order, I propose to decide the abovementioned
applications along with other pending applications which were filed during
the hearing of interim applications.
CS(OS) No.5/2012
2. One Mr.Sateesh Kumar through registered Power of Attorney Holder
Dr.Yashwant Singh filed the suit for eviction, declaration, cancellation,
mandatory injunction and for damages, against Mr.Ashutosh Verma,
defendant in the matter. The following prayers are made in the suit:-
"(a) Pass a decree of eviction in favour of the plaintiff
and against the defendant, so as to evict the defendant
and all his agent, servants, friends, friends, relatives,
associates and anyone else acting on his behalf, form the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.2 of 53
property being the first floor of the property being A-24,
Kailash Colony, New Delhi;
(b) Pass a decree of permanent and mandatory
injunction in favour of the plaintiff and against the
defendant, his assigns, heirs, successors, legal
representatives, his servants, agents, or anyone acting or
claiming through him from interfering in any part and
portion of the property being A-24, Kailash Colony, New
Delhi;
(c) Pass a decree of declaration, declaring that the
"Lease Agreement" dated 19.09.2011 between the
plaintiff and defendant No.1 as null and void non-est in
the eyes of law and was never acted upon, and/or
(d) Pass a decree of declaration, declaring that the
"Memorandum of Understanding dated 11.3.2010
between the plaintiff and defendant No.1 as null and void
non-est in the eyes of law, and/or
(e) Pass a decree of declaration, declaring that the
"Supplementary Memorandum of Understanding" dated
20.1.2011 between the plaintiff and defendant No.1 as
null and void non-est in the eyes of law, and/or
(f) Pass a decree of declaration, declaring that the
"Deed of Lease" dated 20.1.2011 between the plaintiff
and defendant No.1 as null and void non-est in the eyes of
law, and/or
(g) Pass a decree of declaration, declaring that the
arrangement of issuance of „money receipt of cash‟ (or by
whatever named called), in lieu of interest on the sum
borrowed as indicated in paragraph No.3 G, as null and
void non-est in the eyes of law, and/or
(h) Pass a decree of cancellation, cancelling the
"Memorandum of Understanding" dated 11.3.2010
between the plaintiff and defendant No.1, and/or
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.3 of 53
(i) Pass a decree of cancellation, cancelling the
"Supplementary Memorandum of Understanding" dated
20.1.2011 between the plaintiff and defendant No.1, and/or
(j) Pass a decree of cancellation, cancelling the "Deed
of Lease" dated 20.1.2011 between the plaintiff and
defendant, and/or
(k) Pass a decree for cancellation, cancelling the
arrangement of issuance of „money receipt of cash‟ (or by
whatever named called), in lieu of interest on the sum
borrowed as indicated in paragraph No.3G, as non
enforceable, null and void non-est in the eyes of law,
and/or
(l) Pass a decree of damages in favour of the plaintiff
and against the defendant to the extent of Rs.50 lac, in
view of the facts of the present case; and/or
(m) Pass a decree of awarding cost of the litigation;
and/or
(n) Pass any other appropriate orders, directions that
this court may deem fit in the facts and circumstances of
the present case."
3. Various applications have been filed in these three matters by both
parties. But, there are two main applications under Order XXXIX, Rules 1 &
2 CPC, being I.A. No.42/2012 filed by the plaintiff in CS(OS) No.5/2012
and I.A. No.4798/2012 filed by the defendant wherein the arguments were
addressed by the parties. In the first application, the plaintiff is seeking
interim order restraining the defendant from interfering or causing hindrance
in usage of the portions being basement, ground and second floors and
terrace, and in the second application, the interim order is sought by the
defendant in his suit under Section 6 of the Specific Relief Act being
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.4 of 53
CS(OS) No.641/2012 to restore the possession of the said floors and to
restrain the plaintiff to provide access to the defendant and further, the
plaintiff be directed not to sell, alienate, transfer and part with the possession
of the said floors of the suit property.
4. The entire dispute of the parties revolves around mainly five
documents of property No.A-24, Kailash Colony, New Delhi (hereinafter
referred to as the "Suit Property"), i.e. (a) Memorandum of Agreement dated
11th March, 2010, (b) Lease Deed dated 20th January, 2011, (c) Possession
Letter dated 1st February, 2011 with respect to first floor of the suit property,
(d) Supplementary Memorandum of Agreement dated 20th January, 2011
and (e) Lease Agreement dated 19th September, 2011 in respect of the
remaining portion of the suit property, i.e. basement, ground floor and
second floor.
All the above-mentioned documents are executed between the
plaintiff and the defendant. Signatures thereon are not denied except the
plaintiff has raised certain allegations against the defendant for fabrication at
page-2, para-B of the Lease Deed dated 20th January, 2011 as well as by
inserting new clauses which were absent in the lease agreement dated
19th September, 2011. None of the documents are registered under the
Registration Act, 1872 nor the same are stamped under the Stamp Act, 1899.
5. Plaintiff's Case:
(a) The case of the plaintiff is that in the year 2004, a loan for
approximately `5 crores was applied for the purposes of construction over
property bearing No.A-24, Kailash Colony, New Delhi. In the proposal for
sanction, it was mentioned that the loan would be repaid from the rental
income received after construction over the suit property. The suit property
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.5 of 53
was constructed from 2005 till 2010. The property has 16000 sq.ft. of
constructed area in 4 floors viz.,
(i) Basement admeasuring 4000 sq.ft.
(ii) Ground Floor admeasuring 4000 sq.ft.
(iii) First Floor admeasuring 4000 sq.ft.
(iv) Second Floor admeasuring 4000 sq.ft.
(v) Terrace
(b) There was a delay in disbursement of the loan; it was caused by the
defendant through his brother‟s contact. The Bank declared the account of
the plaintiff as Non-Performing Assets (NPA) with a threat of taking
securitization action against the mortgaged property. Taking advantage of
the said situation, the defendant proposed to the plaintiff to extend the loan
for which the plaintiff agreed upon. The terms and conditions between the
parties were recorded in an MOU dated 11th March, 2010.
(c) That the defendant, in breach, instead of promised `2.78 crores,
released only a sum of `50 lac in various tranches into the bank of the
plaintiff till 12th January, 2010. The remaining further sum of `2.28 crores
never came into the account of the plaintiff which was to come till 12th
March, 2010. On the contrary, a sum of `98 lac came into the account of
the plaintiff from the period 22nd March, 2010 till 8th November, 2010.
Thus, the total amount from personal account of the defendant and from the
account of „Ashutosh Verma & Associates Capitals‟ came to the plaintiff
was `1.48 crores till 8th November, 2010. In fact, the defendant never had
the financial strength to pay in terms of the MOU above said. At this stage,
the defendant asked the plaintiff to sign a receipt in nature of a „money
receipt of cash‟, which actually was not a money passing from the hands of
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.6 of 53
the defendant to the plaintiff but a notional figure indicated in the nature of
arbitrary interest accrued upon the sum of `1.48 crores.
(d) As the account of the plaintiff became NPA, an action was taken by
the Bank under Section 13 of the SARFESI Act, 2002. The plaintiff filed an
appeal under Section 17 of the SARFESI Act, 2002 which is pending before
the Debt Recovery Tribunal, Delhi (DRT). After hearing the parties in the
appeal, the DRT stayed the action under Section 13 of the SARFESI Act,
upon the condition that the plaintiff should pay a sum of `10 lac per month
to the Bank, without fail. The said order was passed on 17th March, 2010.
(e) On 22nd January, 2011, a lease deed dated 20th January, 2011 was
executed between the plaintiff and the defendant pertaining to the first floor
of the suit property. It is alleged by the plaintiff that Clause B at page 2 of
the said deed was replaced by the defendant by playing a fraud upon the
excerpts which was never intended to and agreed upon between the parties.
The said forgery came to the knowledge of the plaintiff only on 28 th
December, 2011 about containing of different clause.
(f) That the agreed rent was not paid to the plaintiffs in terms of the said
deed despite of various reminders and notice under Section 106 of the
Transfer of Property Act, 1882. The said premises was also misused by the
defendant inasmuch as the property was sought to be given on rent for
lawyers‟ office-cum-residence, but the same place is being used to run a
„Credit Facilitation Centre‟, „Property Booking Agency‟ and for „Real Estate
Business‟. It was done by the defendant without the permission of the
plaintiff. Thus, the lease deed dated 20th January, 2011 is non-est in the
eyes of law, inter-alia, on the ground that the same is without consideration;
there is no payment of rent under the said deed.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.7 of 53
(g) The defendant with malafide intention by creating encumbrance over
the said property got the signatures of the plaintiff upon a supplementary
agreement dated 22nd January, 2011 which is non-est in the eyes of law as
till the date of execution of this agreement, the amount of `2.78 crores did
not pass to the plaintiff, nor the amount of `3.18 crores paid as mentioned in
the said deed. The figure of `2.78 crores/`3.18 crores is nothing but an
addition to the figure mentioned in the so called „money receipts‟ plus a sum
of `1.48 crores, which the plaintiff has received as mentioned earlier. The
draft of supplementary agreement in itself is contrary to the contents of paras
3 & 4 of the main MOA dated 11th March, 2010. It was wrongly mentioned
in the said agreement dated 22nd January, 2011 that the plaintiff is in receipt
of sum of `3.18 crores, whereas, the fact is that from 22nd March, 2010 up to
8th November, 2010 the plaintiff received only `1.48 crores and nothing else.
Therefore, the supplementary agreement is not enforceable in law.
(h) On 19th September, 2011, the defendant approached the plaintiff to
take on lease the entire suit property except first floor being Basement,
Ground Floor and the Second Floor on rent. After various rounds of
discussions with the defendant, a mutual understanding/covenants of the
parties was recorded in the form of a „Lease Agreement‟ dated
19th September, 2011. In terms of the said lease agreement, paragraph 5,
page 3, the advance of six months‟ rent was to be paid as security. Para 5 of
the said lease agreement reads as under:-
"5. ........That the second party shall pay an advance
six month rent of Rs.42,00,000/- (Forty Two lacs Only)
to the first party as security out of which he has already
paid an amount of Rs.7,00,000/- (Seven Lacs Only) vide
cheque No.428160 dated 14th September, 2011, drawn of
Vijya Bank, Defence Colony, New Delhi and the balance
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.8 of 53
of Rs.36,00,000/- (Thirty Six Lacs Only) is being paid
vide cheque No.428161 dated 19.09.2011, drawn of
Vijya Bank, Defence Colony......."
(i) Out of the said sum of `42 lac, only a sum of `7 lac was paid and
thereafter nothing has been paid so far. As regards the mentioning of cheque
of `36 lac in paragraph 5 of the lease agreement dated 19 th September, 2011,
the said cheque was never handed over to the plaintiff. The amount of `7 lac
was only paid in the form of rent and no security as per paragraph 5 was
paid, therefore, no possession was handed over to the defendant. In order to
prove the said statement, the plaintiff has placed on record the electricity and
telephone bills of the suit property for the months of August, 2011 and
November, 2011. The lease agreement dated 19th September, 2011 was also
fabricated and forged by the defendant, as the defendant has only provided
photocopies of the same to the plaintiff, by replacing some pages thereof, by
inserting various new clauses which were absent in the original lease
agreement including clauses dealing with the defendant‟s right to make
structural changes, refund of security deposit, acknowledgement of receipt
of consideration money i.e. `42 lac and possession of the defendant from
15th September, 2011. The said fabrication, according to the plaintiff, is
apparent as unlike every other page(s) of the „Lease Agreement‟, the page
under reference does not in any point bear the signatures of the plaintiff.
(j) The letter dated 26th September, 2011 issued by the defendant was
referred with regard to the deduction of the rent which also contains the
details of some discussions over phone and suggestions. As per plaintiff, the
said letter of the defendant dated 26th September, 2011 acknowledges the
fact that it was in the nature of a counter offer as implicit as no formal
contract was concluded between the parties with respect to their rights and
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.9 of 53
obligations i.e. „Lease Agreement‟ dated 19th September, 2011, coupled with
the fact that the cheque dated 19th September, 2011 for an amount of `36 lac
issued by the defendant as a condition precedent for the execution of a valid
contract was never honoured. From the said letter, it is proved that the
possession of said floors of the suit property was never handed over to the
defendant.
(k) It was admitted by the plaintiff that after several telephonic
conversations between the parties from 30th September, 2011 to 18th
December, 2011 when the defendant handed over an amount of `27,10,000/-
in cash to the plaintiff‟s guard/peon and somehow entered into possession.
The plaintiff after legal advice served a notice dated 20 th December, 2011 to
the defendant, stating that the lease agreement dated 19 th September, 2011 is
non-est in the eyes of law, as no formal contract was concluded between the
parties, though the plaintiff has received a sum of `7 lac from the defendant
as part payment by way of cheque and also received `27,10,000/- which the
defendant forcefully handed over to the plaintiff‟s guard/peon.
(l) The possession of the basement, ground floor, second floor and the
terrace was still with the plaintiff and the lease agreement dated 19 th
September, 2011 was void ab-initio. It was never acted upon, therefore,
with respect to the said floors, the plaintiff became desirous of leasing out
the entire property to a single entity on a long term basis and was negotiating
with Embassy of the Republic of Korea (hereinafter referred to as the
"Korean Embassy") which came to be settled vide lease agreement dated
20th December, 2011 by which the plaintiff leased out the entire property to
the Korean Embassy for a period of 20 years with a lock-in period of 5
years, at a monthly rent of `15 lac.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.10 of 53
Specific statement was made in the plaint that the Korean Embassy
was put to possession of the basement, ground and second floor of the suit
property vide possession letter executed on 20th December, 2011 in pursuant
to the covenants in the lease deed the Korean Embassy has started structural
modifications like installation of telephone connections, air conditioners and
other related works. It was on 24th December, 2011 when in order to desist
the tenant to take the premises on rent, the defendant had put up a board in
the staircase mentioning that „Ashutosh Verma and Associates are the
owners of Basement/Ground Floor/First Floor/Second Floor of A-24,
Kailash Colony‟ i.e. the suit property. The plaintiff called upon the police
where the police came and made the defendant to remove the board. On 28th
December, 2011 at about 2.00 p.m. when the team members of the Korean
Embassy along with the MTNL Staff were fixing the EPBX in the premises,
in presence of other staff members including one Mr.Rohit Kumar and one
other lady colleague of Korean Embassy, the defendant called upon the
police headed by the SHO, GK-I along with his colleague. They started
shouting at the staff of Korean Embassy and the defendant tried to forcefully
enter into the second floor. At this stage, the Korean Embassy called the
plaintiff who came at the site and after realizing that the police was not
ready to listen to the plaintiff and as an associate of the defendant was
making an attempt to somehow get an entry of the defendant into the
premises, the plaintiff made a call to 100 No. where a PCR Van came and a
written complaint was made to the PCR Van and thereupon by the
intervention of the PCR Van Officer, the defendant was disbursed at about
3.00 p.m. and the possession was handed over to the Korean Embassy.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.11 of 53
6. Along with the suit, the plaintiff also filed an application under Order
XXXIX, Rules 1 & 2 being I.A. No.42/2012 seeking interim order against
the defendant from interfering, disturbing or causing hindrance in usage of
the portions being basement, ground floor, second floor and terrace of the
suit property.
7. The suit along with the interim application was listed before the Court
first time on 3rd January, 2012 when the matter was taken up by the Court
for the purpose of settlement. However, it appeared that the settlement did
not arrive at between the parties as the plaintiff filed further two applications
being I.A. No.1079/2012 under Section 151 CPC seeking direction to the
defendant to deposit rent and I.A. No.1078/2012 under Order XXVI, Rule 9
read with Section 151 CPC for appointment of a Local Commissioner, on
17th January, 2012. Mr. Saurabh Seth, Advocate was appointed as Local
Commissioner to inquire with respect to the status of possession and use of
basement, ground floor, second floor and the terrace of the suit property. As
per the order, the Local Commissioner visited the premises on the same day
and submitted his report. In the concluding para, it was stated by him that
the defendant was not in possession of any of the floors of the suit property
except the first floor and he was informed by the plaintiff that the entire
premises was/is being used for commercial purposes. However, he found
that the basement, ground floor and the second floor of the suit property
were locked as no commercial activity was undertaken therein at that time.
Objections to the said report were filed by the defendant.
8. Another application was filed by the plaintiff being I.A.
No.2679/2012 under Order XXXIX, Rules 1 & 2 CPC which was listed
before the Court on 10th February, 2012. In the application, it was stated by
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.12 of 53
the plaintiff that after the visit of the Local Commissioner, the defendant put
a lock on the second floor of the suit property. However, the learned
counsel for the defendant made a statement before the Court that the said
lock did not belong to the defendant. In the presence of the counsel, an
order was passed directing both the parties to maintain status-quo as regards
the possession as on the date of visit of the Local Commissioner. Mr.
Saurabh Seth, Advocate was again appointed as Local Commissioner to visit
the second floor of the suit property with the directions that he would
remove the lock on the second floor and put his own lock and submit the
keys before this Court. The Local Commissioner who visited the site on 11th
February, 2012 and as per the directions of the Court put his own lock on the
door of the second floor of the suit property in the presence of the parties
and three keys thereof were deposited in this Court.
9. The defendant filed a written statement on 18th February, 2012. In the
meanwhile, the plaintiff filed another application under Order XXXIX, Rule
2A read with Section 12 of the Contempt of Courts Act, 1971 being I.A.
No.3001/2012 for willful disobedience of the order dated 10th February,
2012 by the defendant, on the ground that the defendant is interfering into
the possession of the plaintiff‟s tenant i.e. Korean Embassy and are guilty of
breaking the lock of the premises.
The defendant also filed an application being I.A. No.3287/2012
under Order XXXIX, Rule 2 A read with Section 151 CPC stating therein
that it is the plaintiff who has willfully committed the disobedience of the
Court order dated 10th February, 2012.
10. The defendant also filed another application under Order VII, Rule 11
read with Section 151 CPC being I.A. No.3918/2012 on the ground that the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.13 of 53
plaintiff has not paid the proper Court fee. One more application was filed
by the defendant being I.A. No.3917/2012 under Order XXVI, Rule 9 read
with Section 151 CPC for appointment of Local Commissioner to inquire as
to who is in actual possession of the basement, first floor and the second
floor of the suit property.
11. Defendant's Case in the Written Statement:
(i) The plaintiff has not approached the Court with clean hands. The
plaintiff has no authority or local standi to file the suit. The suit has not been
properly valued for the purposes of Court fee as no proper Court fee has
been paid. It is stated that since the plaintiff was unable to pay his debts to
the Bank towards the end of the year 2009, the plaintiff requested the
defendant to help him. So, between November, 2009 and December, 2009
the defendant advanced to the plaintiff various sums totaling `50 lac. In
March, 2010, the plaintiff again approached the defendant requesting him to
advance a further sum of `2,28,70,000/- to which the defendant
conditionally agreed. A Memorandum of Agreement dated 11 th March,
2010 was executed between the parties whereby the defendant had agreed to
extend the financial assistance of `2,78,70,000/- with the execution of the
said MOA dated 11th March, 2010. The defendant relied upon the following
clauses of the MOA dated 11th March, 2010 in the written statement:-
"(a) The said amount of Rs.2,28,70,000/- (Rupees two
crores twenty eight lakhs and seventy thousand only)
would be utilized by the plaintiff for making payment to
the Indian Bank and for finishing work of the property at
No.A-24, Kailash Colony, New Delhi. It may be relevant
to mention here that construction on the property at
No.A-24, Kailash Colony, New Delhi was commenced
some time in or about 2005 and was over by 2011,
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.14 of 53
although finishing in certain respects, lifts etc. are yet to
be provided by the plaintiff.
(b) The plaintiff shall repay the entire loan to the
defendant by 30.6.2011.
(c) In the event of default in making payment of
three consecutive monthly instalments by the plaintiff to
the defendant, the plaintiff would hand over vacant,
peaceful possession of the entire first floor of the premises
at A-24, Kailash Colony, New Delhi to the defendant.
(d) In the event of the inability of the plaintiff to repay
the loan of Rs.2,78,70,000/- (Rupees two crores seventy
eight lakhs and seventy thousand only) to the defendant by
30.06.2011, the plaintiff shall hand over vacant, peaceful
possession of the entire first floor of the property at No.A-
24, Kailash Colony, New Delhi to the defendant along
with proportionate, undivided share in land underneath and
the defendant shall be entitled to get a sale deed executed
in its favour for transfer of ownership of the said first floor
for a total sale consideration of Rs.5,50,00,000/- (Rupees
Five Crores and fifty lakhs only).
(e) That the plaintiff shall obtain a No Objection
Certificate from Indian Bank releasing its charge over the
entire first floor of property No.A-24, Kailash Colony,
New Delhi, along with proportionate, undivided share in
the land underneath.
(f) That the plaintiff shall make Dr. Sateesh Kumar
Singh, owner of the said property, available for receipt of
balance sale consideration and execution of sale deed."
(ii) The plaintiff has not repaid any amount advance by the defendant and
was not able to obtain no objection certificate from the bank for release of its
charge or lien towards the entire first floor of the suit property. The plaintiff
also failed to comply the terms of the agreement, although the defendant was
always ready and willing to pay the balance sale consideration for the
purpose of execution of the sale deed qua the first floor of the suit property.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.15 of 53
According to the defendant, up to January, 2011 the total amount lent and
advanced by the defendant to the plaintiff stood at `3.18 crores towards the
first floor of the suit property despite of even issuing of „money receipt of
cash‟.
(iii) On 20th January, 2011, the plaintiff and the defendant executed a
lease deed in respect of the entire first floor of the suit property. It was the
plaintiff who interpolated, forged and fabricated the version of the said deed
of lease where in para B appearing on the second page of the said lease deed
has been changed. The parties also entered into a supplementary agreement
dated 20th January, 2011 which recorded, inter-alia, the receipt by the
plaintiff of the entire amount of `3,18,00,000/- and his agreement to repay
the same by 30th June, 2011. The plaintiff gave the defendant a post-dated
cheque for `3,18,00,000/-, copies of the same are filed. It was recorded in
the said deed about handing over the physical possession of the entire first
floor of the suit property to the defendant on 1 st February, 2011. The said
supplementary agreement further recorded, inter-alia, that the defendant
would be liable to pay monthly rent of `3,50,000/- to the plaintiff with effect
from 1st July, 2011 in respect of the said first floor of the suit property only
after the defendant has received the entire amount of `3,18,00,000/- from the
plaintiff. It was also recorded in the supplementary agreement that if the
plaintiff was unable to repay the loan of `3,18,00,000/-, the defendant would
continue to be in possession of the entire first floor even after 30 th June,
2011 but the plaintiff would not be entitled to any rent or maintenance
charges thereafter. It was further agreed that the plaintiff would sell the said
first floor for a total consideration of `5,50,00,000/- after adjusting the
advance of `3,18,00,000/- and that all other terms and conditions of the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.16 of 53
memorandum of agreement as were specifically made applicable would
continue to bind the parties. The plaintiff put the defendant in possession of
the entire first floor of the suit property and possession certificate was also
issued. The plaintiff did not pay the said amount of `3,18,00,000/- by
30th June, 2011. Having committed breach of his obligation to repay the
loan to the defendant, the plaintiff is obliged to sell the first floor portion to
the defendant as agreed in the MOA followed by supplementary MOA.
(iv) The plaintiff was not able to secure the no objection certificate from
the Indian Bank to release the first floor portion of the suit property from its
charge and lien to give effect its sale in favour of the defendant as was
promised by the MOA followed by the supplementary MOA. Since the
plaintiff failed to comply with the terms and conditions of the two
agreements, the plaintiff approached the defendant with a request to take
basement, ground floor and second floor of the suit property. Both the
parties signed a lease agreement dated 19th September, 2011 recording the
factum and the plaintiff handed over the actual and physical possession of
the premises of the said floors with an assurance that the defendant would
enjoy peaceful and uninterrupted possession of the demised premises.
(v) By virtue of the lease agreement dated 19th September, 2011 the
plaintiff acknowledged the receipt of `7 lac as security and cheques for `36
lac towards advance rent as set out in the said lease agreement itself. While
the cheque for `7 lac recorded in the said lease agreement was duly
acknowledged by the plaintiff, further sum of `36 lac was received by the
plaintiff from the defendant on several dates between September and
October, 2011 in cash by returning the cheques given to him for the said
amount. With the execution of the said lease agreement, the defendant
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.17 of 53
having been put into possession of the entire basement, ground floor and
second floor of the suit property which was noted, acknowledged and
admitted by the plaintiff himself in the said lease agreement. After obtaining
the possession of the said floors, the defendant started renovating the same
who has also installed two air conditioners, eight fresh and exhaust air fans
in the basement, besides putting all the wooden work, computers, tables,
revolving chairs, files, books, electrical wiring, switch boards, etc. in the
basement, besides high value painting of the basement, ground floor and
second floor through the agency of Asian Paints. The defendant has spent a
sum of over `41 lac on such renovation with a view to expand his office.
The bills available with the defendant for the said purpose have been filed.
(vi) As the rent of the suit property was increased in the market, the
plaintiff started putting pressure on the defendant for cancelling the lease
deed dated 19th September, 2011 and refused to carry out installation of lift,
railings and other civil works. On 16th December, 2011 the plaintiff with 20
goons came to the site and started damaging furniture and abusing and
pushing the defendant‟s staff working there. The plaintiff threw away the
defendant‟s furniture from the basement and put in two beds of his own. On
the ground floor and the second floor, the plaintiff put his own locks. The
defendant called the police on police help line No.100. When the police
came in, it was realized that it was difficult to control the plaintiff‟s men.
The GK-1 police was also called. The defendant made an initial complaint
of apprehending assault on 16th December, 2011 followed by a detailed
complaint on 17th December, 2011 to the SHO, Police Station GK-1, New
Delhi.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.18 of 53
(vii) After preliminary inquiry, the police has registered FIR No.173 dated
30th December, 2011 in the matter by accepting the complaint. The plaintiff
in order to show his occupation of the basement brought in a servant on or
about 16/17th December, 2011. He also brought bath tubs during the night
which was captured on CCTV. The plaintiff also assaulted the security
guards of the defendant for which the plaintiff was detained at the police
station. The defendant first time noticed on 16th December, 2011 when
some foreign company entered into the building before. The defendant filed
a complaint petition under Section 145 Cr.P.C. on 27th December, 2011
before the Sub Divisional Magistrate. Although, said complaint petition was
dismissed by an order dated 13th January, 2012 on the ground that there is no
threat of breach of peace. The defendant filed the appeal against the said
order as the said order was a non-speaking order.
(viii) As regards `36 lac which is stated to be paid by the defendant to the
plaintiff in cash against the return of the cheques of `36 lac, the said amount
was paid to the caretaker of the plaintiff. It is contended by the defendant
that the plaintiff‟s version cannot be accepted if the said amount is not
received by the plaintiff, as the plaintiff after the execution of the lease deed
dated 19th September, 2011 till filing of the complaint on 17 th December,
2011 never alleged nor communicated to the defendant that he did not
receive the amount against the cheques of `36 lac issued by the defendant in
terms of the lease deed dated 19th September, 2011.
(ix) The defendant states that after having received the entire amount of
`36 lac from the defendant, it was incorrect on the part of the plaintiff to
allege that the defendant deceitfully handed over the sum of `27,10,000/- in
cash to the plaintiff‟s peon, as it was impossible for anyone to pay such a
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.19 of 53
huge amount in cash without the receipt. The clauses 3 and 12 of the said
agreement dated 19th September, 2011 were also relied upon by the
defendant stating that the possession of the basement, ground floor and
second floor of the suit property was handed over by the plaintiff to the
defendant.
(x) That despite of admission made in the lease agreement, the plaintiff in
an illegal and wrongful manner put his locks on the ground floor, basement
and second floor of the suit property. It was also stated that the plaintiff
acted in collusion with Korean Embassy to oust and dispossess the defendant
from the said floors i.e. basement, ground floor and second floor of the suit
property by purporting a lease agreement with the Korean Embassy to show
that the same have been given to the Korean Embassy whereas the fact is
that no possession was given by the plaintiff to the said Korean Embassy.
Various other allegations were made by the defendant against the plaintiff by
capturing the picture of the plaintiff for removing the locks of CCTV.
(xi) Lastly, it is alleged by the defendant that the defendant is in
possession of the first floor of the suit property and in case both the
agreements i.e. MOA dated 11th March, 2010 and supplementary MOA
dated 20th January, 2011 are read together, there can be no question of his
eviction from the said first floor of the suit property. The plaintiff has
admittedly received a sum of `3.18 crores as part sale consideration for sale
and transfer of the said first floor portion in favour of the defendant.
CS(OS) No.508/2012
12. In the meanwhile, the defendant on 28th February, 2012 filed a suit
being CS(OS) No.508/2012 for specific performance and permanent
injunction against the plaintiff and Indian Bank, seeking a decree against the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.20 of 53
plaintiff (defendant in said suit) to perform his part of the contact in terms of
the MOU dated 11th March, 2010 and supplementary agreement dated 20th
January, 2011 by executing and registering the sale deed of the entire first
floor of the suit property, free from all liens, charges and encumbrances
including lien of defendant No.3 Indian Bank, upon receipt of the balance
sale consideration amount from the plaintiff. The interim injunction was
also sought from selling, transferring or dealing with the suit property in any
manner whatsoever.
13. It appears from the record that the suit was actually filed in the month
of December, 2011 but it was lying in the filing counter under objections.
The suit was first time listed before the Court on 29 th February, 2012 when
time was sought to file the Court fee and thereafter, it was listed on 7 th
March, 2012 when the plaint was registered as a suit and notice was issued
in the interim application. Since, no one appeared on behalf of defendant
No.3 i.e. Indian Bank it was proceeded ex parte as per order dated 9th April,
2012. The written statement was filed by the plaintiff. A statement was also
made by the plaintiff on 1st April, 2012 that he has no intention to sell,
alienate, transfer or create third party interest in the first floor of the suit
property, which was confirmed by disposing of the interim application with
consent by order dated 24th August, 2012.
CS(OS) No.641/2012
14. The defendant also filed second suit being CS(OS) No.641/2012
under Section 6 of the Specific Relief Act, 1963 for restoration of
possession, declaration, permanent injunction and damages, along with the
interim application, in the month of March, 2012 which was first time listed
before the Court on 16th March, 2012. The plaint was registered as a suit on
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.21 of 53
the same date. The said suit was filed against four defendants, namely,
Dr.Sateesh Kumar Singh, Dr.Yashwant Singh, Embassy of Republic of
Korea and Station House Officer, P.S. Greater Kailash-1, New Delhi.
15. During the course of hearing of the interim application, it was agreed
by the parties that all the three suits be clubbed and tried together. It has
also been noticed that various fresh applications i.e. I.A. No.11433/2012 in
CS(OS) No.5/2012, under Section 151 CPC for bringing the subsequent
facts/information on record, I.A. Nos.14445/2012 and 14446/2012 were
filed by the plaintiff for willful disobedience of order dated 10th February,
2012 on the ground that the defendant started illegal construction in the suit
property in the month of July, 2012 and one other application being I.A.
No.15990/2012 was filed by the defendant under Section 151 CPC for
bringing subsequent development of facts on record.
Entire First floor (Both rare and front portion) ad-measuring 4000 sq.
Fts. Along with car parking in building bearing Property No.24, Block-
A, Kailash Colony-I, New Delhi
16. Let me now deal with the rival submissions of the parties in relation to
the first floor of the suit property. The documents executed by the parties
with regard to the first floor are Memorandum of Agreement dated 11th
March, 2010, Lease Deed dated 20th January, 2011, Possession Certificate
issued by the plaintiff to the defendant dated 1 st February, 2011 and
Supplementary Memorandum of Agreement dated 20th January, 2011.
17. It is the admitted position in the MOA dated 11 th March, 2010 that the
plaintiff approached the defendant for financial assistance to make the
payment to the Bank to regularize the accounts and the defendant had agreed
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.22 of 53
to extend the financial assistance of `2,78,70,000/-. The relevant clauses 2
to 9 of the said agreement reads as under:-
"2. That the FIRST PARTY towards the repayment of
the said loan shall pay a monthly installment of
Rs.7,50,000/- (Seven Lacs and Fifty Thousand Only) per
month to the SECOND PARTY by any day of every
month commencing from September, 2010 to June, 2011.
The FIRST PARTY shall pay the balance amount of
Rs.2,03,70,000/- (Two Crores Three Lacs and Seventy
Thousand Only) to the SECOND PARTY on or before
30.06.2011.
3. That Rs.50,00,00/- (Fifty Lacs Only) has already
been paid by the SECOND PARTY to the FIRST PARTY
in November and December 2009 which FIRST PARTY
duly acknowledges and the balance amount of
Rs.2,28,70,000/- (Two Crore Twenty Eight Lacs and
Seventy Thousand Only) has to be paid to the FIRST
PARTY by 12th March, 2010 for which he will issue
separate money receipt...."
4. That the FIRST PARTY immediately on receiving
the balance loan amount of Rs.2,28,70,000/- (Two Crore
Twenty Eight Lacs and Seventy Thousand Only) from the
SECOND PARTY on 12th March, 2010 will make part
payment to Indian Bank, A-7 Ring Road, South Extension
Branch-I, New Delhi and Will utilize the rest amount for
finishing works of the said property.
5. That the FIRST PARTY specifically agrees to
repay the entire loan to the SECOND PARTY by 30th June
2011 and has thus handed over a post dated Cheque
No.068276 and 068277 both dated 15.07.2011 drawn on
Vijaya Bank, Nehru Place, New Delhi-110048 for
Rs.2,78,70,000/- (Two Crores Seventy Eight Lacs and
Seventy Thousand Only) to be presented to their Bankers
on 15.07.2011.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.23 of 53
6. That it is specifically agreed between the parties
that if the FIRST PARTY defaults in making payment of 3
(three) consecutive monthly installments to the SECOND
PARTY, then the FIRST PARTY will immediately hand
over the vacant physical possession of the ENTIRE FIRST
FLOOR admeasuring about 4000 SQ. FTS. Built on the
said property to the SECOND PARTY and SECOND
PARTY shall have the right to enjoy uninterrupted
physical possession of the said property till the liquidation
of the loan by 30.06.2011.
7. That it is further agreed between the parties that if
the FIRST PARTY is not able to repay the loan of
Rs.2,78,70,000/- (Two Crores Seventy Eight Lacs and
Seventy Thousand Only) by 30th June 2011 then again he
will handover the vacant physical possession of the
ENTIRE FIRST FLOOR admeasuring about 4000 SQ.
FTS. alongwith proportionate undivided share in land
underneath built on the said property to the SECOND
PARTY and FIRST PARTY will get the sale deed
executed within a period of 4 months i.e. by 31.10.2011 for
transfer of ownership at a total consideration of
Rs.5,50,00,000/- (Five Crores Fifty Lacs only) without any
further delay and the SECOND PARTY will have to pay
the balance consideration amount after subtracting the
defaulted amount payable by the FIRST PARTY to the
SECOND PARTY at the time of execution and registration
of sale deed in his favour.
8. That the FIRST PARTY will obtain a NOC from
Indian Bank, A-7, Ring Road, South Extension Branch,
Part-I, New Delhi releasing its charge over the said
ENTIRE FIRST FLOOR admeasuring 4000 Sq. Fts. along
with proportionate undivided share in land underneath
built on the said property before the execution of sale deed
in favour of the SECOND PARTY in respect of the
ENTIRE FIRST FLOOR admeasuring 4000 Sq. Fts. along
with proportionate undivided share in land underneath.
9. That if the FIRST PARTY is not able to repay the
above said loan with Indian Bank, then the SECOND
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.24 of 53
PARTY shall have the option to repay the outstanding loan
with the Bank on behalf of the FIRST PARTY and get the
ENTIRE FIRST FLOOR admeasuring about 4000 SQ.
FTS. along with proportionate undivided share in land
underneath of the said property transferred vide Registered
Sale Deed by the FIRST PARTY in his favour."
18. Thereafter, on 20th January, 2011 the deed of lease was executed
between the parties with regard to the first floor for a term of 3 years with
effect from 1st February, 2011 at a monthly rent of `1 lac up to 30th June,
2011 and `3.50 lacs w.e.f. 1st July, 2011 subject to certain conditions. The
possession of the first floor was also given against the Possession Certificate
dated 1st February, 2011 which is duly signed by the parties. The plaintiff
has filed another copy of the lease deed dated 20 th January, 2011 as it is
alleged by the plaintiff that the defendant has fabricated para B at page 2
with the possession certificate dated 1st February, 2011. On the same day,
one more document i.e. Supplementary Memorandum of Agreement dated
20th January, 2011 was executed between the parties, the relevant paras 7 to
9 of which read as under:-
"7. That the FIRST PARTY specifically agrees that the
SECOND PARTY shall pay him a monthly rent of
Rs.3,50,000/- (Three Lacs and Fifty Thousand only) per
month with effect from 01.07.2011 i.e. after the receipt of
the entire amount of Rs.3,18,00,000/- (Three Crores and
Eighteen Lacs only) on 30.06.2011 as stated above. The
parties have also entered into a Rent Agreement dated
20.01.2011 to this effect.
8. That on expiry of the period of 3 (Three) years, the
lease period shall be further renewed in respect of the
said ENTIRE FIRST FLOOR (Both Front and Rear
Portion) admeasuring 4000 Sq. Fts. approximately for a
further period of 3 (Three) years but with an increase in
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.25 of 53
rent of a maximum of 15% with absolute and only
consent of the FIRST PARTY.
9. That the FIRST PARTY also agrees that if he is
unable to repay the loan amount of Rs.3,18,00,000/-
(Three Crores and Eighteen Lacs Only) to the SECOND
PARTY, the SECOND PARTY shall continue to be in
possession of the entire first floor (Both Front and Rear
Portion) even after 30.06.2011 but the first party shall not
be entitled to any rent/maintenance charges thereafter.
The FIRST PARTY shall make all efforts to get the aid
entire FIRST FLOOR (Both Front and Rear Portion)
alongwith the proportionate undivided share in land
underneath transferred to the SECOND PARTY at the
agreed total consideration of Rs.5,50,00,000/- (Five
Crores and Fifty Lacs Only). The SECOND PARTY
shall pay the balance consideration after deducting
Rs.3,18,00,000/- (Three Crores and Eighteen Lacs Only)
from the total consideration which shall be payable only
at the time of execution of sale deed in favour of the
SECOND PARTY."
19. The argument of the plaintiff is that the defendant has got his
signatures on the supplementary agreement with malafide intention which is
non-est in the eyes of law as on the date of execution of this supplementary
agreement, the amount of `2.78 crores did not pass to the plaintiff nor the
amount of `3.18 crores as mentioned in the said deed. It is stated by the
plaintiff that the draft of the supplementary agreement is contrary to the
contents of paras 3 & 4 of the main MOA dated 11th March, 2010. It is
wrongly mentioned in the supplementary agreement that the plaintiff has
received a sum of `3.18 crores whereas the plaintiff received only `1.48
crores and nothing else. Thus, the supplementary agreement is not
enforceable in law. It is a matter of fact that as far as the execution of the
said agreement is concerned, it is signed by both the parties and the
witnesses and also attested by the Notary Public. All the pages are duly
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.26 of 53
signed by both the parties. Plaintiff‟s main contention qua this document is
that the defendant has got his signature on this document with malafide
intention. The plaintiff himself has filed this document and in the prayer of
the suit, he seeks cancellation of the same along with deed of lease as well as
MOA dated 11th March, 2010. Unless these documents are tested in trial,
final conclusion about their validity cannot be determined by declaring that
these are non-est in the eyes of law as it is evident from these documents that
these are duly executed between the parties.
20. The consequences of non-payment of loan of `3.18 crores to the
defendant are mentioned in clause 9 of the supplementary agreement. The
said clause has already been reproduced in earlier para of this order. Both
the parties have their different versions with regard to the payment. The
plaintiff states that he has received `1.48 crores. On the other hand, the
defendant‟s case is that he has paid `3.18 crores up to 30th June, 2011 in
view of admission made by the plaintiff as mentioned in clause-9 of the
agreement. As per clause-9 of the agreement, the plaintiff is to execute the
sale deed of the front and rear portion of the first floor in favour of the
defendant as agreed in case of failure on his part to clear the loan otherwise
the sale deed has to be executed by him in favour of the defendant. The
defendant is agreeable to pay the balance consideration of total consideration
fixed in the agreement i.e. `5.50 crores after deducting `3.18 crores at any
time fixed by the Court.
21. The prayers in the suit are for eviction of the defendant from the first
floor of the suit property in view of the termination notice dated 20th
December, 2011 as well as cancellation of all the documents executed
between the parties. However, in the interim application, no such prayer for
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.27 of 53
eviction is made. Both the parties have relied upon number of documents
pertaining to the payments as regard to their versions. It has also been
informed by the defendant that cash amount was received by the plaintiff
against receipts. The plaintiff, on the other hand, has his own explanation
with regard to cash receipt. However, the plaintiff has not denied the fact
that he has received `1.48 crores from the defendant. I am of the considered
view that two versions of the parties require trial, at this stage no final
conclusion can be arrived as to how much amount has been received by the
plaintiff from the defendant except in the various clauses of the
supplementary agreement, the plaintiff has acknowledged to have received a
sum of `3.18 crores from the defendant who has filed certain documents
which are disputed by the plaintiff. There is no prayer in the application for
order of eviction of the defendant from the first floor. Even otherwise, the
defendant has filed the suit for specific performance seeking directions from
this Court against the plaintiff to execute the sale deed in favour of the
defendant on failure of compliance of various clauses of supplementary
agreement. In the said suit, with consent of the parties, the interim
application filed by the defendant being I.A. No.3902/2012 was disposed of
on 24th August, 2012 with the consent of the plaintiff that the plaintiff has no
intention to sell, alienate, transfer or create third party interest in the first
floor of the suit property.
22. In the interim application filed by the plaintiff, the prayer is made to
restrain the defendant from interfering with the possession of the plaintiff on
basement, ground floor and second floor of the suit property, therefore, this
Court has to consider the said prayer made in the application.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.28 of 53
Basement, Ground and Second Floors of the Suit Property
23. The plaintiff himself has placed the lease deed dated 19 th September,
2011 arrived between the plaintiff as well as the defendant with regard to the
tenancy for nine years Lock-in period which shall be renewed after three
years subject to abiding the terms and conditions of the agreement with
mutual consent of the parties. The said lease deed dated 19th September,
2011 is duly signed by the plaintiff as well as by the defendant. It is also
attested by the two witnesses as well as by the notary public dated 19th
September, 2011. Each and every paper has been signed by the plaintiff as
well as by the defendant. In para 3 of the lease agreement, it is specifically
stated that the plaintiff has handed over the actual and physical possession of
the demised premises i.e. basement, ground floor and second floor with roof
rights. Para 4 provides that the tenancy shall commence from 1 st October,
2011 at a monthly rent of `7,00,000/-. Para 5 stipulates that defendant shall
pay an advance six months‟ rent of `42,00,000/- to the plaintiff as security
out of which he has already paid an amount of `7,00,000/- vide Cheque
No.428160 dated 14th September, 2011 and balance `36,00,000/- is paid by
another Cheque No.428161 dated 19th September, 2011 and as per para 6, it
was agreed that there will be an increase in rent @10% every three years and
so on. As per para 7, the defendant was allowed to temporarily construct the
guard room and security room and entrance structures shall be constructed at
the front for lower ground floor and ground floor with the permission of the
plaintiff.
24. Clause 9 allows the defendant to use the roof with the permission
of the plaintiff. Paras 12, 13 and 14 of the said lease also read as
under:
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.29 of 53
"12. That the SECOND PARTY has received peaceful
possession of the said rented premises from the first party
on 15th September, 2011 and the FIRST PARTY also
acknowledges the receipt of Rs.42,00,000/- (Forty Two
Lacs Only) as advance rent for the rented premises from
the SECOND PARTY vide cheque Nos. as mentioned
above which will be returned to the SECOND PARTY
at the time of vacation of the premises without any
interest over money.
13. That the staircase railings, lifts, power backup
generator etc. will be installed by the FIRST PARTY
within November 2011 and not later.
14. That the Lessee shall be responsible and liable for
the water/electricity/other charges its operations and
connection and other dues in respect of the said flat
during the tenancy period. However, the property tax of
the said premises shall be paid on time by the FIRST
PARTY."
25. The first submission of Mr. Sandeep Sethi, learned Senior counsel
appearing on behalf of the plaintiff is that the said lease agreement is not
admissible in evidence as the same is not registered under the Registration
Act, 1872 nor it was duly stamped under Section 35 of the Indian Stamp
Act, 1899. In support of his submissions, Mr. Sethi has relied upon the
following judgments in support of his submissions:
(i) (2008) 8 SCC 564, K.B. Saha and Sons Pvt. Ltd. v.
Development Consultant Ltd, relevant paras of which read as
under:-
"20. In the case of Rana Vidya Bhushan Singh v.
Ratiram [1969 (1) UJ 86 (SC)], the following has
been laid down:
"A document required by law to be registered, if
unregistered, is inadmissible as evidence of a
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.30 of 53
transaction affecting immovable property, but it
may be admitted as evidence of collateral facts, or
for any collateral purpose, that is for any purpose
other than that of creating, declaring, assigning,
limiting or extinguishing a right to immovable
property. As stated by Mulla in his Indian
Registration Act, 7th En., at p. 189:
"The High Courts of Calcutta, Bombay,
Allahabad, Madras, Patna, Lahore, Assam,
Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and
Jammu & Kashmir; the former Chief Court of
Oudh; the Judicial Commissioner's Court of
Peshawar, Ajmer and Himachal Pradesh and
the Supreme Court have held that a document
which requires registration under Section 17
and which is not admissible for want of
registration to prove a gift or mortgage or sale
or lease is nevertheless admissible to prove the
character of the possession of the person who
holds under it."
21. From the principles laid down in the various
decisions of this Court and the High Courts, as
referred to hereinabove, it is evident that :-
1. A document required to be registered, if
unregistered is not admissible into evidence under
Section 49 of the Registration Act.
2. Such unregistered document can however be
used as an evidence of collateral purpose as
provided in the Proviso to Section 49 of the
Registration Act.
3. A collateral transaction must be independent of,
or divisible from, the transaction to effect which
the law required registration.
4. A collateral transaction must be a transaction
not itself required to be effected by a registered
document, that is, a transaction creating, etc. any
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.31 of 53
right, title or interest in immoveable property of
the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for
want of registration, none of its terms can be
admitted in evidence and that to use a document
for the purpose of proving an important clause
would not be using it as a collateral purpose."
(ii) (2009) 2 SCC 532, Avinash Kumar Chauhan v. Vijay
Krishna Mishra.
"24. In the present case, by reason of the
statutory interdict, no transfer at all is permissible.
Even transfer of possession is also not permissible.
(See Pandey Oraon v. Ram Chander Sahu, 1992 Supp
(2) SCC 77 and Amrendra Pratap Singh v. Tej
Bahadur Prajapati, (2004) 10 SCC 65) The
Registration Act, 1908 provides for such a
contingency in terms of the proviso appended to
Section 49 thereof, which reads as under:-
"49. Effect of non-registration of documents
required to be registered.- No document required
by section 17 or by any provision of the Transfer
of Property Act, 1882 (4 of 1882), to be registered
shall -
(a) affect any immovable property comprised
therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power,
unless it has been registered:
Provided that an unregistered document affecting
immovable property and required by this Act or
the Transfer of Property Act, 1882 (4 of 1882), to
be registered may be received as evidence of a
contract in a suit for specific performance under
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.32 of 53
Chapter II of the Specific Relief Act, 1877 (3 of
1877) or as evidence of any collateral transaction
not required to be effected by registered
instrument."
25. Section 35 of the Act, however, rules out
applicability of such provision as it is categorically
provided therein that a document of this nature shall
not be admitted for any purpose whatsoever. If all
purposes for which the document is sought to be
brought in evidence are excluded, we fail to see any
reason as to how the document would be admissible
for collateral purposes.
26. The view we have taken finds support from
the decision of the Privy Council in Ram Rattan v.
Parmananad, AIR 1946 PC 51 wherein it was held:-
"[That] the words „for any purpose' in Section 35
of the Stamp Act should be given their natural
meaning and effect and would include a collateral
purpose [and that] an unstamped partition deed
cannot be used to corroborate the oral evidence for
the purpose of determining even the factum of
partition as distinct from its terms."
The said decision has been followed in a large number
of decisions by the said Court."
26. The second submission of Mr. Sethi is that the lease agreement dated
19th September, 2011 is not a concluded agreement between the parties as
after the execution of the said agreement, the defendant himself has written a
letter dated 26th September, 2011, inter-alia, requesting the plaintiff to revise
the rent as well as change the nature of the user. The contents of the said
letter read as under:-
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.33 of 53
"Ref Ava/09/116 Date 26.9.2011
To,
Dr. Yashwant Singh,
A-24, Kailash Colony,
New Delhi.
Dear Sir,
This refers to the talks we have regarding taking Basement,
Ground Floor and Second Floor with roof rights built on your
Property No.A-24, Kailash Colony, New Delhi 1100 48 at a
monthly rent for purposes as discussed. Please furnish us all
the original documents of this property for obtaining
permission from MCD/concerned authority for running a
nursing home/hospital in Basement and Ground Floor under
mixed land use. In all probabilities we have a problem in
doing so. However, if the authorities concerned grant us
permission for mixed land use, we will abide by our earlier
terms and conditions. But during the pendency of the same,
we have decided not to use the premises for any commercial
activity other than lawyer‟s residence and office.
Under the circumstances, we request you to please revise the
rent as below:
A. Basement Rs. 75,000/-
B. Ground Floor Rs.3,00,000/-
C. Second Floor Rs.2,00,000/-
----------------------------------------------------------------------------
Total Rs.5,75,000/-
(Five Lacs and Seventy Five Thousand Only)
Please accord your formal acceptance to enable us to enter into
an Agreement with effect from 01.11.2011 because railings,
electrical wiring, water connection, lift are not proper and the
office staff are not wiling to move in.
Thanking you
Yours truly
Sd/-
(ASHUTOSH VERMA)"
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.34 of 53
Mr. Sethi argues that since there were no consensus between the
parties with regard to rent of the said floors, therefore, the question of valid
Lease Agreement does not arise.
27. The third submission of Mr. Sethi is that the possession of the said
floors as mentioned in the agreement was never handed over to the
defendant as the cheques of `36 lac mentioned in the lease agreement were
not honoured by the defendant. The defendant also failed to pay the rent of
`7 lac fixed for the subsequent period, therefore, as per defendant‟s own
conduct, no benefit can be derived out of the said Lease Agreement dated
19th September, 2011.
28. In reply to the arguments of the plaintiff, Mr. Srivastava, learned
counsel for the defendant has admitted that Lease Agreement is not
registered and also not stamped under the Indian Stamp Act. His argument
is that the said Agreement can be looked into for collateral purposes by the
Court as the plaintiff in view of the said Lease Agreement has handed over
the physical possession of the said floors and has also received the amount
of `42 lac. His client has no hesitation to pay the rent as agreed for entire
period as stipulated in the Agreement if it was not paid by his client, as the
plaintiff has within the next three months had forcefully dispossessed the
defendant and had wrongly claimed his possession which was allegedly
given to the Embassy in the month of December, 2011 though six months‟
advance rent as security amount was already received by the plaintiff. With
regard to the second submission of Mr. Sethi, the defendant‟s counsel states
that the letter dated 26th September, 2011 was never written and signed by
the defendant. It is a forged document. With regard to the third submission
of Mr. Sethi, he submits that the payment of `36 lac was duly made to the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.35 of 53
plaintiff in cash against the cheques mentioned in the lease agreement. He
relied upon the argument of the plaintiff whereby the plaintiff admitted that
the sum of `27,10,000/- was received by the peon/guard of the plaintiff after
deduction of amount already paid. According to him, the said payment was
given to the caretaker who was earlier also used to receive the amount in
cash on behalf of the plaintiff.
29. It is denied that the possession was not handed over by the plaintiff to
the defendant. In this regard, the counsel has referred various clauses of the
Lease Agreement. The counsel has also denied that the possession was
handed over to the Korean Embassy. He also challenged the correctness of
the Lease Agreement dated 20th December, 2011 executed between the
plaintiff and Korean Embassy. The argument of the defendant is that the
plaintiff became dishonest after giving possession of the said floors to the
defendant as the said Korean Embassy had offered `15 lac per month against
the agreed rent of `7 lac between the plaintiff and the defendant. With
regard to possession, it is agreed by the defendant that the plaintiff has
already put him into possession of the entire basement, ground and second
floors of the suit property which is duly, acknowledged and admitted by the
plaintiff in the Lease Agreement. It is further argued by the defendant that
on 16th December, 2011 the plaintiff with 20 goons came to the site and
started damaging furniture and abusing and pushing the defendant‟s staff
working there. The plaintiff threw away the defendant‟s furniture from the
basement and put in two beds of his own. On the ground floor and the
second floor, the plaintiff put his own locks. Then the police was called and
complaint was filed against the plaintiff on the same day followed by a
detailed complaint on 17th December, 2011 to the SHO, Police Station
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.36 of 53
GK-1, New Delhi. After preliminary inquiry, the police registered an FIR
No.173 dated 30th December, 2011. The plaintiff in order to show his
occupation of the basement brought in a servant on or about 16/17 th
December, 2011. He also brought bath tubs during the night which was
captured on CCTV. The said fact was also brought to the notice of the
police by the defendant. The defendant also noticed some foreigner
accompanied by the plaintiff in the building. The defendant filed a
complaint petition under Section 145 Cr.P.C. on 17th December, 2011 before
the Sub Divisional Magistrate. Although, said complaint petition was
dismissed by an order dated 13th January, 2012 on the ground that there is no
threat of breach of peace. The defendant intended to file an appeal against
the said order.
30. In order to show their possession, both parties have filed various
documents. The plaintiff has filed a copy of the police complaint dated 9th
December, 2011, copy of the complaint dated 12 th December, 2011 made to
BSES, copy of the lease deed dated 20th December, 2011 between the
plaintiff and the Embassy, copy of the possession letter dated 20th December,
2011 between the plaintiff and the Embassy, copy of the complaint dated
28th December, 2011 made to Joint Commissioner of Police, copies of the
electricity bill dated 26th August, 2011 for the period August 2011 and
electricity bill dated 28th December, 2011 for the period November 2011,
phone bill dated 7th November, 2011, copy of the notice dated 20th
December, 2011, copy of the letter dated 20th September, 2011 written by
the defendant to the plaintiff with regard to mode of payment of
`36,00,000/-, copy of fresh power of attorney dated 27 th March, 2012 in
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.37 of 53
favour of the plaintiff and various documents and complaints filed by the
defendant in the police station.
The defendant has filed proof of despatch of notice dated
20th December, 2011 on 21st December, 2011 when at that time according to
the plaintiff he had already executed the Lease Agreement with the Korean
Embassy and had handed over the possession by that time on 20 th December,
2011, copies of the FIRs and record of the complaints filed by the defendant
in the police station and letter dated 28th December, 2011 issued by the
defendant to the Korean Embassy informing that the defendant is in
possession of basement, ground floor and second floor.
31. The defendant in order to show his possession filed the copies of the
Lease Agreement dated 19th September, 2011 wherein it was mentioned that
the possession was handed over to the defendant. The details of the work
done in the basement, ground floor and second floor and relied upon the
status report which confirms his possession. The report of the Local
Commissioner dated 3rd February, 2012 was also relied upon by the
defendant in order to show that Mr.Rohit Kumar Advocate claiming to be
the counsel of Korean Embassy alleged to have been in custody of the key
but did not supply the same to ascertain the physical actual possession of the
defendant whose belonging articles, furniture, files, computers etc. were
lying in the premises. Several photographs and CDs have been filed on
record as well as the reply filed by the Embassy in the proceeding initiated
by the plaintiff under Section 482 Cr.P.C. for quashing the FIR lodged by
the Embassy against plaintiff in which the Embassy has admitted that no
possession was ever given by the plaintiff.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.38 of 53
32. Lease Agreement dated 19th September, 2011 stipulates that the lease
shall be for a period of 9 years and shall be renewed after 3 years subject to
abiding the terms and conditions with the mutual consent of the parties. In
clause 3 of the Lease Agreement, it is specifically mentioned that the
plaintiff has handed over the actual and physical possession of the demised
premises to the defendant and the defendant shall always enjoy the peaceful
and uninterrupted possession of the demised premises. Clause 7 of the lease
agreement mentions that the defendant shall temporarily construct the guard
room/security room and the defendant shall have the liberty to use the roof
with the permission of the plaintiff and the defendant shall be entitled to
make alterations and additions to the structure in the building, both internal
as well as external for his business/personal requirements which shall be
done with the consent of the plaintiff. Clause 12 provides that the defendant
has received the peaceful possession of the rented premises from the plaintiff
on 15th September, 2011 and the plaintiff also acknowledges the receipts of
`42 lac as advance rent for the rented premises from the defendant by
cheques.
33. The plaintiff in the plaint has admitted that somehow the defendant
entered into possession. Large numbers of documents have been filed by the
defendant, such as, photographs, CDs and receipts of purchasing the material
as well as complaints made to the police. Counsel has also referred the
report of the Local Commissioner dated 3rd February, 2012 where the
representative of the Korean Embassy was not able to supply the keys of the
said floors to ascertain the physical possession. In the report, it was also
stated that there were no commercial activities at the site.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.39 of 53
34. The report of Local Commissioner dated 3rd February, 2012 discloses
that the defendant is not in possession of any of the floors except first floor.
The plaintiff in support of his version filed the electricity bills and
documents of telephone connection, photographs, etc. in order to show that
the possession was with the plaintiff after execution of the lease agreement
dated 19th September, 2011 till 20th December, 2011 (when the same was
handed over to the Korean Embassy in view of the lease agreement executed
between the plaintiff and Korean Embassy dated 19th December, 2011).
35. Both the parties have also filed cross-applications under Order
XXXIX, Rule 2A read with Section 151 CPC for violating the status-quo
order under willful disobedience of the Court order dated 10 th February,
2012 whereby the parties were directed to maintain status-quo with regard to
the possession of the second floor of the suit property. The plaintiff filed
one more application under Order XXXIX, Rule 2A CPC being I.A.
No.22754/2012 on 17th December, 2012 which was listed on 18th December,
2012 and the same was adjourned at the request of the plaintiff for
21st December, 2012.
36. After having gone through the material placed on record by the parties
as well as their pleadings prima-facie, it appears to the Court that after the
execution of the Lease Agreement, the defendant was put into the possession
of the said floors and he was dispossessed during the third/fourth week of
December, 2011 as by then the plaintiff received better offer from the
Korean Embassy to pay the rent for all floors including first floor of `15 lac.
Some of the clauses of the Lease Deed executed between the plaintiff and
the Korean Embassy dated 20th December, 2011 are reproduced herein
below:-
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.40 of 53
"1.2 Built Up Area shall mean and include the built up
areas of the Said entire basement, ground floor, first floor
and either second floor or third floor to be decided by the
Lessee after construction of third floor which will
constructed by the Lessor within three months of the
signing of the present lease, including the area under the
periphery walls, area under columns and walls within the
Said Premises and shall include the areas of the building,
lobbies, staircases, balconies, circulation areas, walls
shafts (all types), passages, corridors, refuge areas, stilts
etc. The total area is as per the site plan attached as
Annexure A.
2. The Said Premises shall be handed over to the
Lessee for renovation of the building (as defined below)
for the Lessee to undertake the renovation with the Said
Premises without disturbing the external façade with a
rent which will start from 1st of April 2012. The Lessee
will not pay the rent if the third floor is not completed
and handed over to the Lessee within 3 months of the
signing of the present lease. The LESSOR undertake to
remove the tenant from the first floor of the building
within 3 months from the signing of the lease or if the
Lessor fails to remove the tenant within the said time the
Lessee will not pay the rent for the entire property till
removal of the tenant from the first floor of the property.
The Lessee can start its renovation immediately after
signing of the present Lease Agreement.
3.1 That the Lease shall commence with effect from a
date 20th December 2011 (hereinafter termed as the
"Lease Commencement Date").
x x x x x
3.4 That it is agreed between the Parties that the
initial/first Lease Term of 5 years (five years) shall be the
lock-in period ("Lock-in Period"). If the Lessee
surrenders the Said Premises and terminates the
Agreement before the expiry of the Lock-in period, the
Lessee shall be liable to pay the Lease Rent and other
applicable charges as agreed by the Lessee under this
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.41 of 53
Agreement for the remaining duration of the Lock-in
Period. If the Lessor is unable to remove the tenant from
the first floor of the property then there will be no Lock-
in period and the Lessee can terminate the lease without
any notice and ask for the refund of the advance payment
of 57 lacs.
x x x x x
4.1 That in consideration of the Lessor agreeing to
grant to the Lessee the Lease of the Said Premises in
accordance with the terms hereof, the Lessee shall pay to
the Lessor the rent at the rate of Rs.15 lacs per month, to
be paid 6 months advance in the year 2012 and thereafter
the rent will be paid in quarterly in advance on or before
the 7th day of each quarter to the Lessor. The Lessee will
not pay the rent if the third floor is not constructed and
handed over to the Lessee within 3 months of the signing
of the present lease. The LESSOR shall remove the
tenant from the first floor of the building within 3 months
from the signing of the lease or if the Lessor fails to
remove the tenant within the said time the Lessee will not
pay the rent for the entire property till removal of the
tenant from the first floor. The rent of 15 lacs will start
when both the conditions are fulfilled by the Lessor.
4.2 15% escalation after the end of every 5 years on
the last rent paid."
37. As per Clause 2, the plaintiff undertook the Embassy to remove the
tenant from the first floor of the building within 3 months from the signing
of the lease deed. Admittedly, the plaintiff issued a notice of termination
dated 20th December, 2011. However, it has come on record that the same
was dispatched on 21st December, 2011. In the said Lease Deed, there is no
reference about the earlier Lease Agreement executed between the plaintiff
and the defendant for the same floors. The question before the Court is not
as to whether the Lease Agreement dated 19th September, 2011 was valid
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.42 of 53
Lease Deed or not, but it was the duty of the plaintiff to disclose the
Embassy about the earlier Lease Agreement which has so far not been
declared invalid under the operation of law. Even after the execution of the
Lease Deed dated 20th December, 2011, the plaintiff issued a notice of
termination dated 20th December, 2011 of tenancy of the defendant of the
first floor, against which admittedly, he had received a sum of
`1,48,00,000/-, although in the supplementary agreement he acknowledged
to receive `3.18 crores (the amount which is disputed by the plaintiff) for
which evidence has to be led by the parties. But one has to see the conduct
of a party. In the present case, it appears that the conduct of the plaintiff was
not proper otherwise within the period of ten days after executing the Lease
Deed, in normal case, such incidents would not have happened, it happened
as there was motive behind it and benefit of the same was to go in favour of
the plaintiff.
38. An inference can also be drawn from the fact of the matter that
according to the plaintiff, he has issued a notice of termination of lease
agreement on 20th December, 2011 and the defendant has filed the dispatch
receipt of issuance of notice which is dated 21st December, 2011. It was
rightly argued by the defendant that before even issuing a legal notice for
termination of the lease agreement, the plaintiff very cleverly executed the
lease deed with the Embassy in order to establish that on 19th December,
2011 the plaintiff and the Korean Embassy already executed, and the
possession was handed over to the said Embassy on 20th December, 2011.
39. As referred earlier, the plaintiff has specifically made the statement
that the Korean Embassy was put to possession of the basement, ground and
second floor of the suit property vide possession letter executed on
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.43 of 53
20th December, 2011 and in view thereof the Korean Embassy had started
structural modification like installation of telephone connection, air
conditioners and other related works. Although from the report of Mr.
Saurabh Seth, Local Commissioner dated 3rd February, 2012, it appears that
there were no commercial activities being undertaken therein. It is also
pertinent to mention that during the course of arguments, on various dates
similar statement was repeated by the counsel for the plaintiff that physical
possession has already been handed over to Korean Embassy before filing
the suit and they are in possession. Not only that, the plaintiff has also filed
an affidavit dated 20th March, 2012 along with large number of documents
by way of photographs with dates, evidencing vacant and peaceful
possession of the Korean Embassy since 20th December, 2011 up till date.
However, the case of the plaintiff is that the musclemen of the
defendant were obstructing the Korean Embassy people, putting the articles
and material inside the premises and finally they came out on interfering of
police and it is now under the Korean Embassy‟s peaceful possession.
The photographs in this regard are filed along with the affidavit of the
plaintiff.
40. Possession Letter filed by the plaintiff along with the Lease Deed
reads as under:-
"Possession Letter
I, Dr. Yashwant Singh Attorney of Mr. Sateesh Kumar
Singh handing over the possession of the property as
mentioned in the lease deed dated 20th December 2011 to
Mr. Kim Kum -Pyoung, First Secretary, of the Embassy
of Republic of Korea the terms and condition of the lease
will be complied and the Lessee will give permission for
the installation of the elevator, air conditioner and for
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.44 of 53
other related works which are mentioned in the lease
deed.
Sd/-
Signed by Dr. Yashwant Witness 1
Singh Attorney of Mr. Sateesh Sd/-
Kumar Singh Archasman Singh
A-24, Kailash
Sd/- Colony, New
Mr. Kim Kum -Pyoung, Delhi-110048
First Secretary, Director
Korean cultural centre, Witness 2
For & on behalf of the Sd/-
Embassy of Republic of Rohit Kumar
Korea M-2/28, Model
Town-III, Delhi-9"
41. After the order was reserved, the defendant filed an application being
I.A. No.11443/2012 for bringing the subsequent facts and information on
record informing the Court that on the complaint of Korean Embassy, an
FIR has been registered at Greater Kailash Police Station vide FIR No.77 of
2012 dated 8th June, 2012 under Section 420 IPC against the plaintiff who
had filed a petition under Section 482 Cr.P.C. vide Crl.M.C. No.2164/2012
for quashing of the said FIR. In the said petition, the Korean Embassy is
respondent No.2 and in its reply to this petition, the Korean Embassy has
reiterated that the defendant was and is in the possession of the ground floor,
basement, first floor and the second floor of the suit property. The relevant
paragraph of the reply filed by the Korean Embassy was reproduced in the
application which read as under:-
"...PRELIMINARY OBJECTIONS... Needless to say that the
petitioner was well aware of the fact that he has signed
several agreements with Mr. Ashutosh Verma, the
tenant, and despite that he executed the lease
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.45 of 53
agreement with the respondent No.2 also. It is pertinent
to mention that the petitioner has also cheated the
tenant Mr. Ashutosh Verma by taking a loan of 2 crores
from Mr. Ashutosh Verma and in this regard a FIR has
also been registered against the petitioner and the
petitioner has approached this Hon'ble Court for
quashing of the said FIR also and the same is pending
before this Hon'ble Court".
"PARAWISE REPLY 22. That the contents of para 22 of the
petition is wrong and denied. It is submitted that when
the property was inspected by the respondent No.2 the
petitioner never informed the respondent No.2 that he
was signed any lease agreement dated 19.9.11 and had
taken 27 lacs from the tenant towards the said tenancy.
The petitioner always represented the respondent No.2
that the tenant of the first floor is brother of his friend
and he would vacate the premises within 3 months. The
question arises that why the petitioner did not inform all
this to the respondent No.2 that the petitioner has
already executed two lease deeds with Mr. Ashutosh
Verma in respect of the same property and he has also
taken a loan of around 2 crores from Ashutosh Verma. It
is submitted that though the respondent No.2 was given
keys but he was not able to take the possession of the
premises in the capacity of being a tenant in view of the
abovesaid facts as the petitioner never handed over the
physical possession of the building. Furthermore, the
tenant has lodged an FIR No.173/11 U/s 448 of IPC dated
30.12.2011 against the petitioner. The petitioner has never
informed the respondent No.2 that he has taken a loan
from the tenant and has signed Memorandum of
Agreement dated 11th March, 2010, deed of lease dated
20th of January, 2011 and lease deed dated 19.9.2011. The
act and conduct of the petitioner which shows that the
petitioner which shows that the petitioner which shows
that the petitioner has an intention of the cheating the
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.46 of 53
respondent No.2 as well as his earlier tenant Mr. Ashutosh
Verma.
"That the contents of para 23 is wrong and denied. It is
submitted that the respondent No.2 never got the
possession of the property and on 28th December, 2011
when the respondent No.2 went to the said premises for
installation of phone then the real facts of the issues
involving the premises arose as the earlier tenant did
not let him get the phone connection installed. The
petitioner still wants to mislead this Hon‟ble Court by
misrepresenting the fact that the respondent No.2 is in
possession of the premises. It is pertinent to mention that
the local commissioner has also submitted a report stating
except first floor, all other floors of the said property i.e.
basement, ground floor and second floor are locked and
the substantiate the submission of the respondent No.2
that it does not have the actual possession of the said
premises in question. It is further pertinent to mention
that the petitioner is still misleading this Hon‟ble Court
and has deliberately changed the first page of the lease
deed by forgoing the relevant page and the respondent
No.2 reserves his right to initiate appropriate criminal
proceedings against him in this regard. It is submitted
that the said lease deed annexed by the petitioner is a
forged one as in actual the first page of the lease deed was
signed on a simple paper and not on a stamp paper as
averred by the petitioner."
42. It was also mentioned in the application that the plaintiff from the
very beginning was falsely stating the facts and misleading the Court on the
factum of defendant being in actual physical possession of basement, ground
floor and second floor of the suit property and incorrectly denying the
version of the defendant about his possession on the said floors and
approached the Court with unclean hands in order to obtain an order in his
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.47 of 53
favour. In support of the application, the defendant also filed the reply filed
by the Korean Embassy in Crl. M.C. No.2164/2012.
43. Reply to the said application was filed by the plaintiff stating that the
Korean Embassy is no one to decide about the cheating if any, committed by
the plaintiff or the defendant. It was admitted in the reply that the physical
possession of the suit property was not handed over to the Korean Embassy
and only the keys i.e. the symbolic possession was given. In case, all the
pleadings filed by the plaintiff are read together, it is clear that the plaintiff
has made incorrect statements before Court which have been changed from
time to time as per his convenience.
44. For the reasons mentioned in paras 31 to 41, it is evident to me that it
is a case of res-ipsa loquitur where the things speak for themselves as in the
plaint itself, the plaintiff made the specific statement that the physical
possession was handed over to the Korean Embassy who started
constructions and structural medication and now, in the reply filed by the
plaintiff, it is stated that it was not handed over to the Embassy. Therefore,
it appears to the Court that the possession after dispossessing the defendant
was in fact in the control of the plaintiff and under compulsion, the
representatives of the Embassy were helping the plaintiff due to the reasons
that ultimately, the Embassy was put into the possession after removal of
defendant even from the first floor, that was the main intention of the
plaintiff as well as of the Embassy who agreed to take the possession in case
the tenant is removed within 3 months but, it did not happen and now the
Embassy has lodged FIR against the plaintiff for an offence of cheating.
45. As regards the defendant‟s application under order XXXIX, Rules 1
& 2 CPC being I.A. No.4798/2012, inter-alia, seeking direction to restore
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.48 of 53
the possession of the floors, the learned counsel for the defendant has relied
upon the few decisions in support of his submission. This Court is conscious
of the law that settled possession gives right to possession, such that even
the rightful owner may only recover it by taking recourse of law and not to
take forcible possession. The meaning of "settled possession" is that it must
be effective; it must be undisturbed and to the knowledge of the owner. An
occupation of the property by a person as an agent or a servant acting on
behalf of someone will not amount to actual physical possession. In the
present case, at this stage, this Court did not find clinching, cogent and clear
evidence available on record to show that the defendant was in settled
possession except some documents filed by the defendant indicating that he
was in possession for a short period in the basement and he was dispossessed
by the plaintiff, although the said fact is denied by the plaintiff. The prayer
in the interim application is the same as mentioned in the suit filed under
Section 6 of the Specific Relief Act, 1963.
46. Therefore, I am not inclined to pass the order for restoration of
possession to the defendant in view of the conflicting evidence available on
record, therefore, the versions of the parties are to be tested at the time of
trial. There are other reasons also for not granting this relief as prayed in
the application. The same are that the Lease Agreement is an unregistered
document. It is also unstamped. There is a controversy between the parties
with regard to writing of an alleged letter dated 26th September, 2011 by the
defendant. The receipt of the advance rent of 6 months totaling `42 lac is
denied by the plaintiff. His case is that he has received `7 lac at the time of
execution of the Lease Agreement by way of a cheque which was encashed
and `27,10,000/- was given to his peon by the defendant in a deceitful
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.49 of 53
manner. Though, the case of the defendant is that the entire amount of `42
lac was paid to the plaintiff which was acknowledged by the plaintiff in the
Lease Agreement, there are two different versions; the same have to be
considered at the time of trial. The aspect of fabrication and inserting of
new clauses raised by the plaintiff shall also to be considered at the final
stage after recording the evidence of parties. The plaintiff at the same time
has not denied the fact that he has signed all the documents as mentioned
earlier. After considering the entire gamut of the matter, I am of the view
that some interim orders are necessary to be passed in order to strike balance
between the parties. Both applications i.e. I.A. No.42/2012 under Order
XXXIX, R.1 & 2 CPC filed by the plaintiff and I.A. No.4798/2012 under
Order XXXIX, R.1 & 2 CPC filed by the defendant are disposed of with the
following directions:-
(a) The plaintiff is directed not to sell, alienate, transfer or part with
possession of the aforesaid floors i.e. basement, ground and second
floors of the suit property without the permission of the Court.
(b) The defendant is restrained from interfering or causing hindrances
in usage of the portions being basement, ground and second floors
of the suit property.
(c) The plaintiff in the Supplementary Memorandum of Agreement
dated 20th January, 2011 in Clause 1 has admitted that the
defendant has extended financial assistance of `2,78,70,000/- to
the plaintiff for the payment of bank dues and receipt of which was
also acknowledged by the plaintiff and in clause 2. The plaintiff
has also admitted that the defendant has subsequently extended
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.50 of 53
some more financial assistance to him and now the total comes to
`3.18 crores, the receipt of the same was also acknowledged and
agreed to repay the consolidated amount of `3.18 crores as per
clause 3 of the agreement, on or before 30th June, 2011.
Admittedly, the said amount was not paid by the plaintiff, though
the plaintiff has specifically admitted to recieve Rs.1.48 crores
from the defendant. The said Supplementary Memorandum of
Agreement is signed by the plaintiff. Without prejudice to the
rights of the plaintiff to contest his plea as mentioned in his
pleadings, he is directed to deposit a sum of `3.18 crores with the
Registrar General of this Court within a period of 6 weeks from
today.
(d) The plaintiff is also directed to deposit a sum of `34,10,000/-
admittedly received by him in cash through his peon, with the
Registrar General of this Court within the same period. The
Registrar General shall keep the aforesaid amounts in FDRs
initially for a period of one year.
47. Section 35A of the Code of Civil Procedure, 1908 empowers the
Court to pass an order of compensatory costs in respect of false claims or
defences. The plaintiff in the present case intentionally and deliberately not
only made the false averments in the plaint but also in the written statement
filed by him in the suits filed by the defendant about handing over physical
possession of portions i.e. basement, ground and second floors of the
suit property. Therefore, a cost of `1 lac is imposed upon
the plaintiff to deposit the same within four weeks from today with the Delhi
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.51 of 53
High Court Mediation and Conciliation Centre. The receipt shall be
produced by the plaintiff on the next date.
I.A.No.1079/2012 (u/s 151 CPC for directing defendant to deposit the
rent, by the plaintiff)
In view of the order passed above, it is directed that the defendant
shall pay the rent due in respect of the first floor of the suit property with the
plaintiff within a period of 4 weeks from today and shall continue paying the
rent as agreed every month.
The application is accordingly disposed of.
I.A.No.3001/2012 (u/o XXXIX, R.2A CPC, by plaintiff),
I.A.No.3002/2012 (exemption), I.A.No.3287/2012 (u/o XXXIX, R.2A
CPC, by defendant), I.A.No.3288/2012 (exemption), I.A.No.3286/2012
(exemption), I.A.No.6829/2012 (u/o XXXIX, R.1 & 2 CPC, by plaintiff),
I.A.No.6830/2012 (exemption), I.A.No.14445/2012 (u/o XXXIX, R.2A
CPC, by plaintiff) and I.A. No.14447/2012 (exemption)
In view of the order passed above, nothing survives in these
applications. The same are accordingly disposed of.
I.A.No.3918/2012 (u/o VII, R.11 CPC, by defendant)
In view of the order passed above, this application is also disposed of.
However, liberty is granted to the defendant to raise such pleas made in the
application which would be considered at the stage of trial. The plaint
cannot be rejected under the provisions of Order VII, Rule 11 CPC in view
of the material available on record.
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.52 of 53
CS(OS) No.5/2012, CS(OS) No.508/2012 & CS(OS) No.641/2012
List on February 11, 2013 along with I.A. No.14446/2012 before the
roster bench.
MANMOHAN SINGH, J.
DECEMBER 21, 2012
CS(OS) Nos.5/2012, 508/2012 & 641/2012 Page No.53 of 53
