Maj Yash Pal Malik vs Rama Arora & Ors
2012 Latest Caselaw 3064 Del

*            HIGH COURT OF DELHI: NEW DELHI

%                                            Order decided on: 09.05.2012

+                       CS(OS) No.1248/2012


MAJ YASH PAL MALIK                                      ..... Plaintiff
               Through              Mr. S.K. Sharma, Adv. with
                                    Mr. Milan Deep Singh, Mr. Ashish
                                    Gumbher & Mr. Rahul Sharma, Advs.

                        Versus


RAMA ARORA & ORS                            ..... Defendants
              Through Mr. Vineet Malhotra &
                      Mr. Mohit Chaudhary, Advs. for
                      defendants No.1 to 3.
                      Mr. Ankit Jain, Adv. for D-4.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.(Oral)

I.A. No.8277/2012 (u/o XXXIX, R.1 & 2 CPC, by plaintiff) &
I.A. No.8705/2012 (u/o XXXIX, R.4 CPC, by D-1 to 3)

1.

The plaintiff has filed the above-mentioned suit for declaration/ cancellation of documents, with consequential relief of mandatory and perpetual injunction. The suit along with the interim application was listed before Court on 02.05.2012. The following interim order was passed:-

"......Till the next date of hearing, the defendants are restrained from transferring, alienating or creating any third party interest or parting with possession of the suit property, i.e. bearing No.A-1/74, Panchsheel Enclave, New Delhi.

The defendants are also restrained from raising construction or changing the nature of the suit property till then..."

2. The case set-up by the plaintiff in the suit is that he along with his wife entered into an agreement to sell dated 04.06.2010 with defendant No.4, for the sale of the property in question for the total sale consideration of Rs.8,50,00,000/-. At the time of execution of the agreement dated 04.06.2010, defendant No.4, admittedly, paid a sum of Rs.1,20,00,000/- to the plaintiff, i.e. Rs.60,00,000/- in cash and another sum of Rs.60,00,000/- by way of two cheques bearing No.054512 dated 04.05.2010 and No.054511 dated 04.06.2010, both amounting to Rs.30,00,000/- each drawn on HDFC Bank, Malviya Nagar, New Delhi. It was also agreed that another sum of Rs.1,20,00,000/- would be paid by defendant No.4 to the plaintiff within 90 days from the signing of the agreement to sell, and the balance sale consideration of Rs.6,10,00,000/- was payable by defendant No.4 on or before 31.12.2010. Thereafter, as per the case of the plaintiff, defendant No.4 could not adhere to the time schedule in terms of the agreement to sell, although the plaintiff was always ready and willing to perform his part of the agreement.

3. Thereafter, defendant No.4 approached the plaintiff to extend the time again and again and on 04.10.2011, he agreed to pay Rs.1,10,00,000/- through one Shri Rajesh Batra, who was the property broker, for defendant No.4 in the following manner:-

(i) Rs.10,00,000/- on or before 07.10.2011

(ii) Rs.50,00,000/- on or before 15.10.2011

(iii) Rs.50,00,000/- on or before 20.10.2011

4. However, inspite of repeated promises, defendant No.4 failed to make the payment of the balance consideration. Later on, according to the plaintiff, as per Clause-8 of the agreement to sell, defendant No.4

assigned the agreement to sell in favour of defendant No.3, who was the employee of defendants No.1 & 2, who agreed to pay the sum of Rs.6,10,00,000/- towards the balance sale consideration of the property in question. It is specifically mentioned in para-20 of the plaint that the plaintiff agreed and consented to execute the sale deed in respect of the property in question in favour of defendant No.1, only on receipt of entire balance sale consideration of Rs.6,10,00,000/- from defendant No.1 through banker cheque/drafts only. Defendant No.2 thereafter requested the plaintiff to bifurcate the transfer documents into two documents, i.e. Sale Deed and Agreement of Malwa in the manner that Rs.4,00,00,000/- to be shown in the Sale Deed and Rs.2,10,00,000/- to be shown in the Agreement of Malwa.

5. As admitted by the plaintiff in para-23 of the plaint that on 19.04.2012, the plaintiff executed both the documents, i.e. the Sale Deed and the Agreement of Malwa in favour of defendant No.1 in respect of the property in question against the sale consideration of Rs.6,10,00,000/-. In para-24 of the plaint, the details of the bankers' cheque issued are given. The same read as under:-

(i) Rs.2,00,00,000/- vide Pay Order No.392430 dated 12.04.2012

(ii) Rs.2,00,00,000/- vide Pay Order No.392431 dated 12.04.2012

(iii) Rs.1,10,00,000/- vide DD No.392437 dated 16.04.2012

(iv) Rs.25,00,000/- vide DD No.392440 dated 17.04.2012

(v) Rs.25,00,000/- vide DD No.466726 dated 12.04.2012

(vi) Rs.25,00,000/- vide DD No.466729 dated 13.04.2012

(vii) Rs.25,00,000/- vide DD No.466737 dated 16.04.2012

6. The main contention of the plaintiff at the time of passing the interim order was that the amount mentioned in serial Nos.(v) to (vii)

above, i.e. total Rs.75,00,000/- has not been received by him, as the three DDs when presented for encashment were dishonoured with the remark "Payment Stopped by the Drawer". For this reason, the plaintiff has filed the present suit against the defendants for cancellation of the documents, as the payment mentioned was not received by the plaintiff. While accepting the statement made in the plaint, interim order was passed.

7. Upon service, defendants No.1 to 3 filed the application being I.A. No.8705/2012, under Order XXXIX, Rule 4 read with Section 151 CPC for vacation of the interim order dated 02.05.2012. It is stated in the application that the statement made by the plaintiff in the plaint is not correct to the effect that the sum of Rs.75,00,000/- has not been received by him. According to defendants No.1 to 3, the plaintiff has played a fraud upon the Court, as the said amount of Rs.75,00,000/- stood already transferred by virtue of the RTGS in his account, and no amount was due and payable by the said defendants to the plaintiff towards total sale consideration as agreed by him in the agreement. It is stated in the application that after having paid the entire amount, defendant No.1 is under no obligation to pay the said amount to the plaintiff again. In view of these reasons, defendants No.1 to 3 are pressing for immediate vacation of interim stay as they are suffering loss and injury.

8. Notice of this application was issued to the learned counsel for the plaintiff who appeared today before the Court. He has raised various contentions, and referred various documents and crossed pages of Photostat copy of the agreement trying to show that the allegations made in the application are not correct. According to the learned counsel for the plaintiff, in case, the defendants are honest, then why the three DDs for the sum of Rs.75,00,000/- when presented were dishonoured,

however, counsel has not denied the fact of transfer of amount under RTG's Scheme, and the said fact has not been disclosed in the plaint, nor it was mentioned when the interim order was sought.

9. In view of these reasons, I am of the view that let the pleadings be completed and rival submissions raised by the parties will have to be considered by the Court in due course. Reply to the application under Order XXXIX, Rule 4 CPC be filed by the plaintiff as well as by defendant No.4 within three weeks. Written statement and reply to the interim application be filed by defendants No.1 to 3 within four weeks, with advance copies thereof to the learned counsel for the plaintiff who may file the replication and rejoinder within four weeks thereafter.

10. As pressed by the defendants and after small hearing of the parties, I am of the view that the order dated 02.05.2012 is liable to be suspended till further orders, on the following reasons:

(a) The plaintiff did not disclose at the time of filing of the suit that he has already received Rs.75,00,000/- by virtue of transfer of the said amount in RTG Scheme. Admittedly, at the time of obtaining the ex parte ad-interim order, the learned counsel for the plaintiff specifically made the statement before Court that the said amount has not been received by the plaintiff and on the basis of the said statement, the interim order was passed.

(b) Before the execution of the sale deed, the plaintiff himself has issued the receipt of the remaining consideration of Rs.6,10,00,000/-. The original money receipt was produced by defendants No.1 to 3 before Court which is duly signed by him as well by two witnesses. The extracts of the said money receipt towards the full and final payment read as under:-

"MONEY RECEIPT TOWARDS THE FULL AND FINAL PAYMENT

Received with thanks from Mr. Vipin Kumar Gupra S/o Shri Kishan Gupta resident of S-455, GK-I, New Delhi and /or Mr Subhash Arora S/o Late Shri J.R. Arora resident of B-10, Ground Floor, G.K. Enclave- II, New Delhi power of attorney of his wife Mrs. Rama Arora, following payments as full and final towards the sale of my property bearing No.74, Block A-1 (known as 1/74) situated at Panchsheel Enclave, New Delhi admeasuring 189 Sq. Mts.

That the total consideration received by me is Rs.6,10,00,000/- (Rupees Six Crores Ten lac(s) only) in the following manner:-

(a) On 5.10.2011 a Sum of Rs.25 Lacs Through RTGS Vide UTR No. KKBKH11278881957 from Kotak Mahindra Bank, Malviya Nagar, New Delhi

(b) On 13.10.2011 a Sum of Rs.50 Lacs through RTGS Vide UTR No. KKBKH11286044443 from Kotak Mahindra Bank, Malviya Nagar, New Delhi

(c) On 12.04.2012 a Sum of Rs.2 Crore Vide Pay Order No.3921430 drawn on Kotak Mahindra Bank, Malviya Nagar, New Delhi

(d) On 12.04.2012 a Sum of Rs.2 Crore vide Pay Order No.392431 drawn on Kotak Mahindra Bank, Malviya Nagar, New Delhi

(e) On 16.04.2012 a Sum of Rs.1 Crore 10 Lacs vide DD No.392437, drawn on Kotak Mahindra Bank, Malviya Nagar, New Delhi

(f) On 17.04.2012 a Sum of Rs.25 Lacs vide DD No.392440, drawn on Kotak Mahindra Bank, Malviya Nagar, New Delhi.

With the receipt of the above sum, I have sold my property with all the fixtures and fittings etc. standing over the property. Now on I have no concerns with the same. Nothing is due and payable to me from anyone on the said account. I will execute the Sale deed as and when I will be asked to do, without any demur or demand.

In witness whereof I have signed this money receipt towards the full and final payment at New Delhi in this 17th day of April 2012.

WITNESSES:-

1. Sd/-

                       Rajinder Handa                      Sd/-
                       S/o Shri Late R.L.Handa    (Major Yash Pal Malik)

806, Dr. Mukherjee Nagar, S/o Late Shri Ganesh Delhi-9. Dutt Malik, Resident of

2. Sd/- A 1/74, Panchsheel Ankur Arora Enclave, New Delhi S/o Shri Subhash Arora R/o B-10, G.K.-II Enclave"

11. The learned counsel for defendant No.1 to 3 is also insisting that this Court should take strict action against the plaintiff who has concealed the material facts from this Court by not disclosing that he has received Rs.75,00,000/- by way of transfer in his account.

It is true that the details of the said transferred amount ought to have been mentioned in the plaint. Admittedly, the said fact was not disclosed by the plaintiff. At this stage, I am not inclined to take any action, as the pleadings are yet to be completed. The said aspect would be considered at the time of framing of issues.

12. However, at this stage, this Court is not inclined to continue with the interim order passed dated 02.05.2012. Therefore, the same is

suspended, till the next date of hearing.

13. List the matter before Court on 07.08.2012.

MANMOHAN SINGH, J.

MAY 09, 2012/ka