J.C Madan & Anr vs Supreme Court Bar Association
2013 Latest Caselaw 5758 Del

$~A20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 19.11.2013

+     CS(OS) 1872/2013

      M/S GOYAL ESTATE & PROMOTERS PVT LTD..... Plaintiff
                   Through  Mr. S.K. Bhaduri and Ms.Kiran
                            Dharam, Advocates
                   versus
      NIRUPA BERRY                            ..... Defendant
                   Through  Mr. Sandeep Sethi, Senior Advocate
                            with Mr. Dhruv Bhagat, Mr.Gaurav
                            Sharma and Mr.Saurabh Mishra,
                            Advocates
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No. 15589/2013 (u/O 39 Rules 1 and 2 CPC)

1. The present suit is filed by the plaintiff seeking a decree of possession in favour of the plaintiff and against the defendant regarding property No.15, Shakuntala Farm situated in Khasra No. 93 (4-16) and 94 (4-16), total measuring 9 bighas 12 biswas, Village Sultanpur, Tehsil Mehrauli, New Delhi and also seeking other reliefs.

2. It is the claim of the plaintiff that it had purchased the suit property from the erstwhile owner M/s. Britika Export Pvt. Ltd. vide sale deed dated 15.10.1986. Thereafter, construction was carried out. It is averred that on 5.09.2003, the plaintiff entered into an agreement to sell with the defendant

for a total sale consideration of Rs.3.6 crores. Admittedly, a total sum of Rs.1.21 crores has been received by the plaintiff on this count. It is further stated that as there was delay in making payment of the balance amount, the agreement to sell was modified on 18.10.2004 and the sale consideration amount was increased to Rs.4.75 crores. It was also informed to the defendant that property is mortgaged with the State Bank of India. It is agreed that the defendant would also repay the amount to the State Bank of India.

3. The admitted position is that the defendant repaid the loan amount of Rs.2.5 crores to the State Bank of India. It is further stated in the plaint that in January 2005, the defendant requested the plaintiff for the keys of the property so that the defendant might show the suit property to her relatives. It is averred that believing the said representation and in good faith, the plaintiff handed over the keys with the hope that the defendant would return the same, however, this was not done. It is stated that with the malafide intention the defendant also, with clever tactics, has also taken the original title deeds in respect of the suit property by stating similar grounds. Hence it is stated that the defendant is in illegal and unauthorised occupation of the suit property and has no legal right to continue.

4. It is further stated that the plaintiff was shocked to receive summons issued by this Court in CS (OS) 67/2011 titled as "Smt. Nirupa Berry v. Goyal Estate & Promoters Pvt. Ltd." where mandatory injunction was claimed for execution of the sale deed by defendant herein. It was pointed out that statements of the parties were recorded in that suit under Order 10

of the Code of Civil Procedure and that subsequently the learned Single Judge of this Court vacated the interim order passed in favour of the defendant in that suit. Hence the present suit is filed for recovery of possession.

5. The defendant has filed her written statement. In the written statement, it is averred that the parties had entered into an oral agreement to sell whereby the plaintiff agreed to sell the suit property for a total consideration of Rs.1.21 crores and the entire payment has been made. It is averred that having no other option but with a view to save her investment, the defendant also repaid the loan amount of Rs. 2.5 crores to State Bank of India on behalf of the plaintiff as loan which had to be repaid by the plaintiff. It is further averred that defendant purchased the stamp papers for execution of the sale deed and got the same typed out and that the plaintiff also signed the sale deed but did not get it registered. It is further stated that after receipt of full payment, the plaintiff gave possession of the property to the defendant vide possession letter dated 04.11.2004 of a part of the property and the full property vide letter dated 12.01.2005. It is further stated that Mr. Ravi Goyal on behalf of the plaintiff, issued a letter in favour of Mr. Sunil Kapoor (Advocate for defendant) to collect on behalf of plaintiff the original title deeds from the bank. As the entire mortgage amount was paid by the defendant, the original title deeds were also handed over to the defendant. The Bank issued property letter to the Tehsildar, Hauz Khas, Mehrauli, New Delhi affirming that there is no outstanding dues in respect of the suit property. Hence, it is stated that as the plaintiff has been avoiding the execution and registration of the sale deed, despite various

reminders and hence, the defendant was forced to file the suit being CS(OS) 67/2011 for seeking specific performance of the suit property. It is averred that the defendant is in lawful and valid possession of the suit property and the original sale deed.

6. Learned counsel for the plaintiff has strenuously urged that the defendant has illegally usurped physical possession of the suit property and has paid only Rs.1.21 crores whereas the total sale consideration was Rs.4.75 crores. It is further stated that another Bench of this Court while hearing a stay application in CS(OS) 67/2011 filed by Niruppa Berry(plaintiff therein)/defendant declined stay/interim relief. Nevertheless the defendant in that suit (plaintiff herein) was restrained from forcibly dispossessing the plaintiff in that suit (defendant herein) from the said property save by due process of law. The plaintiff therein (defendant herein) was also restrained from parting with possession of the property to any other person or from otherwise assigning her rights in the property. It is pointed out that in the appeals being FAO(OS) 379/2013 and FAO(OS)404/2013 filed by both the parties vide order dated 30.10.2013 the Managing Director of the plaintiff/Goyal Estate and Promoters had made a statement that they would not create any third party right in the suit property and that the suit property would not be sold without permission from the Court. The appeals were disposed of in terms of the said statement of the Managing Director of the Goyal Estate and Promoters/plaintiff herein. It is hence strenuously urged that as the plaintiff has been restrained from selling, alienating the suit property similar order be passed against the defendant herein. It is further stated that the defendant is trying to demolish portions of the suit property

and hence the defendant should be restrained from demolishing any portion of the suit property.

7. Learned senior counsel appearing for the defendant has submitted that the plaintiff has not come to Court with clean hands. Reliance is placed on a Sale Deed which is full proper stamp paper which was signed and executed by the plaintiff but was not got registered. He relied upon various clauses of the Sale Deed to argue that even as per this Sale Deed the total consideration payable by the defendant for the suit property was Rs.1.21 crores and the vacant physical possession of the suit property has been handed over on the spot to the defendant. Reliance is also placed upon two possession letters which are purported to have been executed by the plaintiff No.1 dated 4.11.2004 and 12.01.2005 whereby vacant physical possession of the suit property was handed over to the defendant. Reliance is also placed upon a communication dated 7.1.2005 issued by Mr.Ravi Goel, Director of Dolphin Compack (P) Ltd. to authorise Mr.Sunil Kapoor, Advocate, to accept the original title deeds from the bank after encashment of the pay orders worth Rs.2.5 crores which have been paid by the defendants. It is averred that the original title deeds came to the possession of the defendants pursuant to the said communication on behalf of the plaintiff. It is urged that as per the oral agreement the total sale consideration was only Rs.1.21 crores. It is urged that it is only to save this investment that the defendant also agreed to repay the loan amount of Rs.2.5 crores to State Bank of India as the property was found to be mortgaged with the said bank. It is further urged that even if one was to take a look into the agreement of sale relied upon by the plaintiff dated 05.09.2003, the total

agreed sale consideration is Rs.3.6 crores. If one was to add up the sum of Rs.1.21 crores admittedly received by the plaintiff and Rs. 2.5 crores paid by the defendant to the bank to redeem the mortgage, the payment made by the defendant is in excess of Rs.3.6 crores. Hence, it is submitted that the defendants are in legal and valid possession of the suit property. The present suit has been filed by the plaintiff only as a counter-blast to the suit for specific performance filed by the defendant. It is urged that the present injunction application ought to be dismissed.

8. It is but obvious that the present Suit and the earlier suit filed by the defendant being CS(OS)67/2011 pertains to the same property. Another Bench of this Court has while dealing with the injunction application of the defendant herein in the Suit filed by the defendant being CS(OS)67/2011 dismissed the said injunction application.

9. In CS(OS) 67/2011, the suit filed by the defendant, the statement under order 10 of CPC of the parties was recorded. Defendant has in the said statement stated that there was no written agreement and that the sale consideration agreed upon was Rs.1.21 crores. The Agreement to Sell relied upon by the plaintiff has been denied. Defendant has accepted her signatures on page 2 of letter dated 13.5.2004 but has denied page 1 of the said letter. The letter dated 13.5.2004 would show that an agreement to sell dated 5.9.2003 was executed between the parties whereby the agreed sale consideration was Rs.3.60 crores.

10. The statement of the plaintiff herein i.e. Mr. Ravi Goyal was also

recorded under Order 10 CPC in the said Suit. He has submitted that the original Agreement to Sell is not in his possession and the same is with the defendant. He has also said that he had never given possession of the property in question to the plaintiff/defendant herein and that she has obtained possession illegally. He has confirmed that he has not filed any complaint with the police or any other authority in respect of the possession being taken over forcibly by the plaintiff (therein)/defendant (herein). He has also said that he had given the original title deeds pertaining to the property to the defendant herein. He has also confirmed that he has never filed a complaint to the police or any other authority informing that the documents are being wrongly retained by the defendant. He has also confirmed that he has not filed any counter claim. He has admitted that a sale deed was prepared on stamp papers worth around Rs.7.26 lacs and that he had signed the same though he has said that he signed it being under the impression that the total sale consideration mentioned therein was Rs.4.75 crores. He has confirmed signatures on all the pages of the Sale Deed.

11. This Court while dealing with the injunction application of the defendant in Suit No.67/2011 had come to a conclusion that no prima facie case for specific performance of Agreement to Sell for a total consideration of Rs.1.21 crores is made out. It also stated that the defendant herein has approached the Court with a false case and question of grant of interim relief does not arise. Also on the ground of limitation it was held that the suit filed nearly seven years after the alleged Agreement to sell is prima facie barred by limitation.

12. The above facts show that there is some confusion about the exact sequence of facts. However, in my view the plaintiff has failed to make a prima facie case for the following reasons:-

(i) Firstly, it is contended by the plaintiff that he had handed over the keys of the suit property to the defendant only for the purposes to enable her to show the suit property to some relatives sometimes in 2005 and thereafter she has remained in physical possession of the suit property. Similar claim is made regarding the original title deeds of the suit property which are said to have been surreptitiously obtained by the defendant. Plaintiff, however, admits that he has at no stage filed any complaint with the police or to any other authority despite the said illegal acts done by the defendant. The contention of the plaintiff prima facie seems unacceptable. The suit property is a valuable Farm house stated to be measuring nearly 9 bighas 12 biswas (nearly 2.5 acres) in the prime area of South Delhi, namely, Mehrauli. It is difficult to believe that a seasoned entity like the plaintiff dealing with valuable real estate would not immediately react in case any person would illegally trespasses or grab physical possession of a valuable real estate belonging to it. Despite the stated position i.e. as per the case of the plaintiff the defendant having grabbed physical possession of the property and original title deeds the plaintiff has sat quiet for a period exceeding 8 years. It is only after the defendant has filed a suit for specific performance that the plaintiff appears to have woken up and filed the present suit in

2013 for possession.

(ii) Secondly, one cannot help noting that there are signed documents available on record which show that the defendant has come into possession of the suit property with the consent of the plaintiff. Reference may be had to the Sale Deed which as per the statement of the plaintiff under Order 10 CPC in CS(OS) 67/2011 has been admittedly signed on each page by the plaintiff. In internal page 12 of the Sale Deed the plaintiff admits that actual vacant possession of the suit property had been delivered to the defendant on the spot. Similarly, there are two letters on record, namely, letter dated 4.11.2004 and 12.1.2005 which also state that vacant physical possession of the suit property has been handed over to the defendant. Execution of the Sale Deed is admitted though it is averred that it is no document in the eyes of law as it is compulsorily registrable and it has not been registered.

13. In the light of these documents and the averments made therein prima facie it appears that the possession of the suit property has been handed over to the defendant by the plaintiff. If the act of handing over possession was a voluntary act there obviously would have been payment of full or at least substantial consideration by the defendant to the plaintiff pursuant to the agreement to sell.

14. It is no doubt true that it also appears that the defendant has not come with completely clean hands. Various aspects of the transaction appears to

have been suppressed and twisted by the defendant as is apparent from the order of this Court passed on 3.7.2013 in CS(OS) 67/2011. However, in the present case we are concerned that the contentions and submissions of the plaintiff who has approached this Court for seeking ad interim injunction. In my view plaintiff has not made a prima facie case. Balance of convenience is also not in favour of the plaintiff.

15. Further, there is much delay in approaching this Court for seeking the present interim injunction. A person who seeks equity must approach the court at the earliest opportunity. Reference may be had to the Judgment of this High Court in the case of Karan Industries and Others versus DCM Limited, 53(1994) DLT 284 where this Court held as under:-

"12. Coming to the question of delay no Explanation has been offered as to why the plaintiff did not seek injunction immediately in 1990. In a case where there is a delay of 2 and a half years in coming to the court. the court should not normally exercise its discretion in favour of the plaintiff in granting interim injunction, particularly, when the action for injunction appears to be clearly lacking in bona fides apart from suffering from latches. Such inordinate delay in the circumstances of the present case in coming to court for injunction would also disentitle the plaintiffs to claim the relief of injunction.

16. In the present case also there is no explanation as to why the plaintiff has filed the present suit/injunction application after a delay of nearly 8 years inasmuch as the defendant is stated to have illegally grabbed possession of the suit property in January 2005. Hence, in view of the delay and latches itself the plaintiff would not be entitled to any interim order.

17. In view of the above, there is no merit in the present application. The same is dismissed.

CS(OS) 1872/2013

18. List before the Joint Registrar on 13.12.2013 on the date already fixed.

JAYANT NATH, J NOVEMBER 19, 2013 'raj'/n