Arshad Zamal Siddiqui & Anr vs Ravinder Singh & Ors
2012 Latest Caselaw 6770 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 27.11.2012

+      CS(OS) 1873/2012

       ARSHAD ZAMAL SIDDIQUI & ANR                         ..... Plaintiffs
                  Through: Mr R.K. Saini and Mr Sitab Ali Chaudhary,
                  Advs.

                    versus

    RAVINDER SINGH & ORS                               ..... Defendants
                  Through: Mr Rahul Gupta, Adv for Defendants 1 to 3
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

IAs No. 11645/2012 (u/O 39 R 1 & 2 r/w Sec. 151 CPC) and 15210/2012 (O. 39 R. 4 CPC)

1. Vide agreement to sell dated 25.04.2011, defendants 1 to 3 agreed to sell

land measuring 1000 square yards forming part of Khasra No. 372 Min, situated in

the area of Village Jasola, Tehsil Mehrauli, New Delhi to the plaintiffs for a total

sale consideration of Rs 4,10,00,000/- and received a sum of Rs 50 lakh from them

as earnest money. As per the agreement between the parties, the balance payment

was to be made and possession of the land subject matter of the agreement was to

be delivered to the plaintiffs on or before 30.09.2011.

2. At the time of execution of the agreement between the plaintiff and

defendants 1 to 3, two suits were pending with respect to the land subject matter of

the agreement and this was recorded in para 8 of the agreement. One suit was

pending in this Court and the other suit was pending in Tis Hazari Courts. In Suit

No. 645/2004 pending in this Court, an order was passed by this Court on

16.09.2011 directing the parties to the suit to maintain status quo with respect to

the title, possession and construction on the land measuring 5 bighas and 8 biswas

out of Khasra No. 372 Min, Shaheen Bagh, Village Jasola, Tehsil Mehrauli, New

Delhi. Admittedly, the land subject matter of the agreement between the plaintiffs

and defendants 1 to 3 forms part of the land which was subject matter of suit No.

645/2004. Defendants 1 to 3 were not parties to the said suit, but Mzt. Razia

Shaheen who had entered into an agreement to sell this land to defendants 1 to 3

was a party to that suit. The case of the plaintiffs is that on account of the order

dated 16.09.2011, passed by this Court in Suit No. 645/2004, defendants 1 to 3

were not in a position to hand over possession of the land subject matter of the

agreement to them. He further states that at no point of time the defendants

informed them of vacation of stay order and therefore they did not write to them

offering the balance sale consideration and seeking possession of the land and

execution of sale deed. The learned counsel for the defendants 1 to 3, on the other

hand, states that possession of the said land was with defendants 1 to 3 even at the

time they agreed to sell the same to the plaintiffs and, therefore, they were in a

position to deliver possession to the plaintiffs on or before 30.09.2011. The

learned counsel for the defendants 1 to 3 further states that even on 16.09.2011, it

is defendants 1 to 3 who were in possession of the said land.

3. The question as to whether the possession of land in question was with

defendants 1 to 3 or with their predecessor-in-interest Mzt. Razia Shaheen, between

16.09.2011 to 30.09.2011, is a matter which requires investigation during trial and

no firm view in this regard can be taken at this stage since the defendants 1 to 3 not

having placed on record any document to show that Razia Shaheen had delievered

vacant possession of the said land to them prior to 16.09.2011. More importantly,

no notice/letter was sent by defendants 1 to 3 to the plaintiff, offering possession

and asking them to pay the balance sale consideration.

4. This is also the case of the plaintiffs that they made a further payment of Rs

75 lakh to defendants 1 to 3 on 10.09.2011 and the payment was acknowledged by

defendants 2 and 3 by way of a receipt which they executed while receiving the

money. The said payment has been denied by defendants 1 to 3 and their case is

that the receipt is filed by the plaintiffs in this regard is forged document. The case

of the plaintiff is that they had withdrawn about Rs 50 lakh from their bank account

and taken loan of Rs 25 lakh from one Mr Anishur Rehman for making the said

payment to defendants 1 to 3. The question as to whether the receipt filed by the

plaintiffs to prove the payment of Rs 75 lakh to defendants 1 to 3 is a forged

document or not, is a matter which can be decided only after recording evidence.

As regards the balance payment of Rs 2.85 crore, the plaintiffs have already

deposited the said amount in the Court to show their bona fides and to show their

readiness and willingness to complete the transaction.

5. Prima facie, the plaintiffs have been able to satisfy me that they are entitled

to specific performance of the agreement dated 25.04.2011 executed by defendants

1 to 3 in their favour. The execution of agreement and receipt of earnest money is

admitted. Injunction order dated 16.09.2011, passed in CS (OS) No. 645/2004 is

not in dispute. The suit have been filed in June 2012, it cannot be said that the

plaintiff, by their conduct, had induced the defendant to believe that they were not

interest in completing the transaction. It transpired during arguments that the sale

deed of the land in question having not been executed so far in favour of the

defendants 1 to 3, they are not in a position to transfer the title in respect of the said

land to the plaintiffs. If that be so, the defendant can be directed, in case of the suit

being decreed, before title being transferred in their favour to hand over possession

of the land in question to the plaintiffs and the plaintiffs can seek execution of the

sale deeds in their favour if and when, the title of this land is transferred in favour

of defendants 1 to 3 by the person who presently holds the same.

6. I am of the view that the suit property needs to be preserved during pendency

of the suit so that the defendants do not give a fait accompli to plaintiff by

disposing of the suit property by creating third party interest therein, during

pendency of the suit.

The question of balance of convenience in such matters was considered by

me in my order dated 24.8.2012 in Sarathi Estates Pvt. Ltd. v. S.L. Dosaj & Ors.

[CS(OS) No.2040/2006 decided on 24.8.2012] and the following view was taken

in that case:

"If an interim protection is not granted to the plaintiff, the defendants may dispose of the suit property or may create third party interest therein, thereby defeating the very object behind filing of the suit. On the other hand, the defendants are not likely to suffer any irreparable loss in case they are restrained from selling, assigning or transferring the suit property and from creating any third

party interest therein during pendency of the suit. They will continue to enjoy the suit property as they are doing at present. The balance of convenience thus lies in favour of maintaining status quo during pendency of the suit.

In view of the decision of Division Bench of this Court in Mohan Overseas P. Ltd vs. Goyal Tin & General Industries 169 (2010) DLT 487 (DB), it would be appropriate if the plaintiff is directed to deposit the balance sale consideration in this Court by way of an FDR in the name of Registrar General of this Courtinitially for a period of one year. Such a condition will also ensure that having obtained an interim order, the plaintiff does not protract the trial of the case and the

final decision can be rendered at an early date.

7. The learned counsel for the defendants 1 to 3 submits that defendants 1 to 3

had vide agreement to sell dated 05.06.2012, agreed to sell 600 square yards of the

land to Taskeen Husain Siddiqui and had also handed over possession of that much

of land to him. The learned counsel for the defendants 1 to 3 states that since they

have also given possession of land measuring 250 square yards to another person,

they are now left with possession of 400 square yards of land in Khasra No. 372

Min, Village Jasola, Tehsil Mehrauli, Delhi. Defendants 1 to 3 are directed to file

an affidavit disclosing therein the particulars of the persons to whom land

measuring 250 square yards is alleged to have been handed over by them. They

will also file copies of the documents executed by them in favour of that person

with the affidavit.

8. In view of the facts and circumstances discussed above, the parties are

directed to maintain status quo with respect to land measuring 400 square yards

which defendants No. 1 to 3 admit to be in their possession and which forms part of

property No. 372 Min, Village Jasola, Tehsil Mehrauli, New Delhi, during

pendency of the suit.

The observations made in this order being tentative and prima facie would

not affect the decision of the suit on merits.

The earlier order dated 16.09.2011 stands merged in this order.

The applications stand disposed of in terms of this order.

CS(OS) 1873/2012

The original agreement and original receipt dated 10.09.2011 are not on

record. The learned counsel for the plaintiff states that the aforesaid documents

have already been filed in the Registry. He shall check up with the Registry and get

the documents place on record.

The parties to appear before the Joint Registrar on 21.01.2013 for

admission/denial of documents.

The matter be listed before Court on 27.02.2013 for framing of issues.

V.K. JAIN, J

NOVEMBER 27, 2012 bg