Delhi High Court

Mr. Mukesh Gupta vs Mr. Sanjay Nagpal & Anr. on 20 March, 2012

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

%                               Order decided on :    20.03.2012

                       C.S. (OS). No.1190/2006

Mr. Mukesh Gupta                                        ..... Plaintiff
                       Through: Mr. Jayant K. Mehta

                       Versus

Mr. Sanjay Nagpal & Anr                              ..... Defendant
                    Through: Ex-parte

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.(Oral)

1.

The plaintiff has filed the present suit seeking a decree against the defendant No. 1 to the tune of Rs. 8,00,000/- along with pendent lite and future interest @ 12% p.a. alongwith a decree of specific performance of the Agreement to Sell dated 01.05.2004 in respect of the property "B" with a direction to defendant No. 1 & 2 to execute sale deed for 50% share in the said property and permanent injunction restraining the defendants from selling, mortgaging, encumbering or creating any third party rights in respect to the said property "B".

PLAINTIFF'S CASE

2. It is stated in the plaint that on 01.05.2004 an Agreement to Sell was executed in respect to properties bearing Khasra No. 378,

Village: Kapashera admeasuring about 500 sq yards (property „A‟) and Khasra No. 378, Village: Kapashera admeasuring about 350 sq yards. (property „B‟). The aforesaid properties are herein referred to as the „suit properties‟. Property „A‟ was to be sold at Rs. 50 lac and Property „B‟ at a consideration of Rs. 35 lac.

3. It is mentioned in the plaint that defendant No. 1 claimed to be the owner of both the properties and it was agreed by plaintiff and defendant No. 2 that they would be buying the property jointly. As a part consideration for property „B‟, the plaintiff on 30.04.2004 gave Rs. 2 lac to defendant No. 1. On 01.05.2004, plaintiff further gave a sum of Rs. 8 lac to defendant No. 1 towards part consideration in respect to property „A‟. Both the receipts were duly acknowledged.

4. Thereafter, the Agreement to Sell dated 01.05.2004 was executed, with plaintiff and defendant No.2 as Joint Owners being the First Party.

5. Plaintiff states that it was clearly mentioned in the said agreement that the suit properties were to be jointly purchased by plaintiff and defendant No. 2. However, to his surprise an ex facie fraudulent sale deed was brought about by defendant No. 2 whereby property „B‟ had allegedly been sold by defendant No. 1 to defendant No. 2 for an amount of Rs. 3,50,000/-

6. The plaintiff also states that a suit bearing Suit No. 416/2004 in the Court of ADJ Delhi, was instituted by defendant No. 1 herein against defendant No. 2 and the plaintiff. The defendant No. 1 (plaintiff therein) in the suit prayed for a decree of declaration,

declaring of the Sale Deed dated 13.08.2004 to be null and void and permanent injunction restraining defendant No. 2 from dispossessing him and cancelling the Sale Deed.

7. In the said suit, defendant No. 2 herein (defendant No. 1 in the suit) in his written statement pleaded that the Property „B‟ did not form part of the Agreement to Sell dated 01.05.2004 and the said property has been purchased by him through a registered Sale Deed dated 13.08.2004

8. The ADJ Delhi passed a detailed order dated 05.11.2005. the relevant part of the order is mentioned below:-

"the plaintiff in the present case has alleged that the defendant No. 1 has played fraud upon him and induced him to sign certain papers to obtain No Objection Certificate but, infact he got sale deed executed in his favour in respect of land measuring about 350 sq yards. The plaintiff has drawn my attention towards para 5 of the agreement to sell dated 1/5/04 which indicates that adjoining land ad-measuring 350 sq also owned by first party had to be sold only to second party (jointly) at similar terms and proportionate price. This endorsement in clause 5 of Agreement to Sell, which has been signed by the parties to the suit, clearly depicts that plaintif has got a prima facie case in his favour. the defendant No. 2 has also supported the cause of plaintiff. I have also gone through the order passed by SDM, Vasant Vihar, DLR Act before when (whom) all the relevant were mentioned and brought on record and Ld. SDM ordered for mutation in the name of defendant No. 1 but with the condition that he would not sell the property during the pendency of the litigation... accordingly the application under Order 39 Rule 1 & 2 filed by the plaintiff is allowed. Parties are directed to maintain status quo with regards to possession also no third party right, title,

interest shall be created in respect of suit land till disposal of the case... "

9. Plaintiff states that during the pendency of the suit, defendant Nos. 1 and 2 entered into a compromise and the same is a sham. The plaintiff herein also states that the alleged agreement dated 13.08.2004 was procured on the basis of various false and fabricated documents. The defendant No. 2 also approached the SDM Vasant Vihar under section 81 of the Delhi Land Reforms Act, 1954 for mutation of the „property B‟ on the basis of the sale deed dated 13.08.2004 thus depriving the plaintiff herein.

10. The plaintiff further submits that he apprehends that defendant No. 2 being, successful in getting Suit No. 416/04 dismissed, is making attempts to create third party rights in „Property B‟. Thus, the plaintiff is seeking for compensation from the defendant No. 1.

11. Written statement has been filed by defendant No. 3, wherein, it is stated that Khasra No. 378 in village Kapashera was owned jointly by four persons namely Sri. D.R. Grover, Sri Kewal Krishan Grove, Sri Sanjay Nagpal and Smt. Anita Mago. A suit for partition was filed by Smt. Anita Mago vide Suit No. 45 of 1992 in the Court of Senior Civil Judge, Delhi.

12. The suit was compromised and decreed vide order dated 10.01.1996. As per the compromise, the said property was divided into 5 parts "A, B, C, D and E". the shares of each of the portion is as follows:

Property A - In share of Sri. D.R. Grover

Property B - In share of Sri Kewal Krishan Grover

Property C - In share of Sri Sanjay Nagpal

Property D - In share of Smt. Anita Mago

Property E - In share of Sri Sanjay Nagpal

13. Defendant No. 3 states that defendant No. 1 and plaintiff in collusion tried to grab the property „A‟ from Late D.R. Grover. They used forged signatures of Late D.R. Grover. The matter was reported by Smt Vandana Grover, daughter of Late D.R. Grover, to the Kaspashera. An FIR was also registered as FIR No. 72/05 under sections 468, 471, 420 Indian Penal Code 1886. The signatures were found to be false and fabricated by the FSL and Smt Vandana Grover also filed objection before the Tehsildar, Vasant Vihar.

14. It is further stated in the written statement that „Property A‟ was purchased by the sons of defendant 3 namely Sri R.M. Gupta and Sh. D.R. Gupta by way of GPA from Smt. Vandana Grover.

15. It is averred in the written statement that defendant No. 2 purchased the Property C from its owner Sanjay Nagpal (defendant No.

1) vide sale deed dated 12.08.2004. Defendant No. 3 also states that plaintiff and defendant No.1 pressurized defendant No. 2 to give half of the share of Property C and also threatened that if the same was not given then they would implicate a false case against defendant No.1. It is also averred that plaintiff and defendant No. 1 inserted few hand written lines in the pre existing agreement dated 01.05.2004. The said

agreement was executed in between defendant No. 1, plaintiff and defendant No. 2 in respect of Property A only. There is no mention about the part payment of Rs. 10 lac any where in the agreement.

16. Vide order dated 06.04.2010 the defendant No.1 was proceeded ex parte and plaintiff has settled the matter with defendant Nos. 2 & 3. Settlement application bearing I.A. No. 15992/2009 (under O XXIII R 3 CPC) was disposed of vide order dated 09.12.2009. Amended memos of parties filed by the plaintiff on 11.07.2006 is on record.

17. Affidavit by way of evidence was filed by plaintiff. The following documents were exhibited:-

a. Ex.PW1/1 - Copy of the Agreement to Sell dated 01.05.2004 executed between Sri Sanjay Nagpal, Sri Mukesh Gupta and Sri Raj Kumar Yadav.

b. Ex.PW1/2 - Copy of Suit No. 416/04 filed by Sri Sanjay Nagpal before the District Judge Delhi.

c. Ex.PW1/3 to PW1/20 - Copy of the orders passed by the Additional District Judge, Delhi.

d. Ex.PW1/21 - Copy of the written statement filed by defendant No. 1, Sri Raj Kumar Yadav, in Suit No. 416/2004.

e. Ex.PW1/22 - Copy of the written statement filed by defendant No. 2, in Suit No. 416/2004.

f. Ex.PW1/23 - Copy of the application filed by the plaintiff under Order 39 Rule 1 & 2 CPC in Suit No. 416/2004.

g. Ex.PW1/24 - Copy of the reply filed by defendant No. 1, to the application under Order 39 Rule 1 & 2 CPC in Suit No. 416/2004.

h. Ex.PW1/25 - Copy of the application filed by the plaintiff under Order 23 Rule 1 r/w Section 151 for withdrawal of the suit.

i. Ex.PW1/26 - Copy of the Deed of Settlement dated 03.05.2006 executed by Sri Sanjay Nagpal and Sri Raj Kumar Yadav.

j. Ex.PW1/27 - Copy documents filed by Plaintiff.

k. Ex.PW1/28 - Certified copy of the site plan of the suit property.

l. Ex.PW1/29 - Certified copy of the Sale Deed executed on 12.08.2004 by defendant in favour of Raj Kumar Yadav.

m. Ex.PW1/30 - Certified copy of the order dated 05.04.2005 in Case No. 84/2005-04/RA/2005.

n. Ex.PW1/31 - Certified copy of the criminal report under Section 173 Cr.P.C. in FIR No. 314/2004, P.S. Kapashera.

o. Ex.PW1/32 - Copy of the receipt dated 30.04.2004 for an amount of Rs.2 lac paid by the present plaintiff to the defendant as part consideration for Property B bearing the signatures of Ms. Savita Nagpal wife of defendant No. 1 and Mr. Neeraj Tyagi.

p. Ex.PW1/33 - Copy of the receipt dated 01.05.2004 for an amount of Rs.8 lac paid by the present plaintiff to the defendant as part consideration for Property B bearing the signatures of

Ms. Savita Nagpal wife of defendant No. 1 and Mr. Neeraj Tyagi.

18. I have heard the learned counsel for the plaintiff and

perused the plaint and the documents filed by the plaintiff. Evidence

produced by the plaintiff has gone unrebutted as no cross-examination

of the plaintiff‟s witness was carried out by defendant No.1. No

evidence has been produced by the defendants. The plaintiff has been

able to prove his case beyond any doubt. Thus, the plaintiff is entitled

for the decree to the tune of Rs.8,00,000/- alongwith interest @ 12%

p.a. from the date of filing of the suit till the date of payment against the

defendant No.1. No other relief is pressed by the plaintiff, hence,

rejected. The plaintiff is entitled for cost. Thus, decree be drawn

accordingly.