M/S Shriji Tradex (P) Limited vs Smt. Alia @ Renu Kedia
2013 Latest Caselaw 516 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO NO.512 OF 2012 & C.M. NO.21371 OF 2012

                                       Decided on : 4th Februay,2013

M/S SHRIJI TRADEX (P) LIMITED                          ......       Appellant
               Through:   Mr. Singhal, Adv.

                       Versus

SMT. ALIA @ RENU KEDIA                      ...... Respondent
              Through: Ms. Shalini and Mr. Lalit Gandharva,
                       Advs.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the Appellant against the order dated

15.10.2012 passed by the learned Additional District Judge 06, South,

Saket, New Delhi in CS No.95/2012 titled M/s Shriji Tradex Pvt. Ltd. vs.

Smt. Alia @ Renu Kedia by virtue of which the application of the

Appellant under Order XXXIX Rule 1 & 2 CPC for ad-interim injunction

was dismissed.

2. Briefly stated the facts of the case are that M/s Shriji Tradex Pvt.

Ltd. a registered company through one Mr. Vinod Kedia, director of the

said company and the respondent, Smt. Alia @ Renu Kedia is alleged to

have entered into an agreement to sell in respect of the property bearing

No. D-84, Freedom Fighters Colony, Neb Sarai, New Delhi (hereinafter

referred to as 'the suit property'). Plaintiff /appellant is alleged to have

paid a sum of `10 lacs to the respondent. This agreement was entered

into on 07.01.2009 and the respondent /defendant executed various

documents like general power of attorney, Will, affidavit and receipt in

token of having received a sum of `10 lacs by way of cheque. It was

alleged in the plaint by the Appellant that subsequent thereto, the

respondent became dishonest and filed a suit for permanent injunction

against Vinod Kedia and also got an FIR No. 129/2010 registered under

Section 418/420/468/471/506/34 IPC for cheating, forgery, using forged

documents as genuine with police station Mehrauli. The respondent also

threatened to cancel the transaction and accordingly withdrew the power

of attorney dated 07.01.2009 executed in favour of the Appellant. She

also stated that she is planning to sell the property to a third party.

3. On the basis of these averments, a suit for specific relief and

permanent injunction was filed. The Appellant also alleged that after

cancellation of the sale transaction the respondent had issued a cheque of

`11,80,000/- dated 02.07.2010 drawn on Bank of Baroda in token of

having refunded the entire sale consideration alongwith interest which

she is purported to have received so as to close the chapter.

4. The respondent filed her written statement and contested the claim.

She took the plea that Vinod Kedia, the director of the Appellant

company was married to her on 09.02.1992 and from the wedlock they

were blessed with a female child on 19.08.1993. It was also stated by her

that this was her second marriage and from her earlier marriage she had

two sons. She claimed herself to be the owner of the said property and

being an illiterate woman, the director of the Appellant company namely

Vinod Kedia alongwith his agents Leela, Anil and Harish fraudulently got

documents executed in the form of three general power of attorneys in

favour of the aforesaid three persons which included the suit property

also. She stated that as a consequence of this fraud having been played

on her she had filed a suit for permanent injunction against Vinod Kedia

and also got an FIR No. 129/2010 for offences of cheating and forgery

etc. registered against him and other persons at police station, Mehrauli.

She denied that she had ever given a cheque for a sum of `11,80,000/- to

the appellant as a token of having refunded the sale consideration. On the

contrary, she took the plea that the cheque in question was stolen by the

appellant in as much as he had taken away the signed cheque book,

income tax returns, PPF account passbook etc. from the respondent. The

Appellant filed a rejoinder to this, contesting the claim of the respondent.

5. The learned trial court after hearing the arguments dismissed the

application under Order XXXIX Rule 1 & 2 CPC seeking restraint order

against the respondent from dealing with the suit property. The reasons

for dismissal of the application for ad-interim injunction was that the

Appellant had placed reliance on the agreement to sell dated 07.01.2009

for canvassing his suit for specific relief wherein it was shown that the

respondent had received a sum of `10 lacs and handed over the

possession of the suit property to the Appellant. The trial court observed

since the Appellant was claiming the possession of the suit property

under Section 53-A of the Transfer of Property Act and on the basis of

the agreement to sell creating right, title or interest in respect of the

immovable property, therefore, the said document ought to have been

compulsorily registered as required under Section 17(1-A) of the

Registration Act, 1860. Therefore, the document was stated to be

inadmissible in evidence. No prima facie case of having agreed to

purchase the property, in favour of the appellant was made out.

6. So far as the question of irreparable loss being caused to the

Appellant was concerned, on this also the learned Judge observed that

merely because on cancellation of the entire transaction a cheque for a

sum of `11,80,000/- is purported to have been issued by the respondent to

the Appellant has bounced does not mean that the cancellation agreement

cannot be relied upon. It was observed by the trial court that so far as the

dishonour of the cheque on presentation is concerned, this could have

been taken care of by the Appellant by filing a case under Negotiable

Instruments Act. The Court had also taken note of the fact that despite

the dishonour of cheque on 16.12.2010 till the time when the application

was decided more than one and a half year had elapsed but no action was

initiated by the appellant on the basis of dishonoured cheque. Therefore,

on this reasoning also the Court did not find that the Appellant is likely to

suffer an irreparable loss which may warrant grant of injunction.

7. The third point regarding balance of convenience for the purpose of

obtaining an ad-interim order was also not found in favour of the

appellant.

8. I have heard the learned counsel for the parties and gone through

the impugned order. I find myself in complete agreement with the

learned trial Judge that this was not a case which warranted grant of any

ad-interim injunction in favour of the Appellant. The reasons which are

given by the learned trial court are not only legal but very much material

for holding so.

9. After the amendment of the Registration Act, an agreement to sell

creating right, title or interest in respect of any immovable property in

respect of which possession is purported to have been given, requires

compulsory registration under Section 17(1-A) of the Registration Act,

1860. The non-compliance of the said provision invites sanction under

Section 49 of the Registration Act, 1860 which lays down that the

document which requires compulsory registration, if not registered, it will

be inadmissible in evidence. If the document dated 07.01.2009 which is

the basis of filing the suit for specific performance and injunction itself

becomes inadmissible it cannot be said that the Appellant/plaintiff in the

suit had been able to establish a prima facie case which is first sine qua

non for grant of injunction.

10. Similarly, the learned trial court was absolutely right that if the

version of the parties is admitted that the transaction entered into on

07.01.2009 was sought to be cancelled by a subsequent agreement dated

02.07.2010 by a document in writing and a cheque for a sum of

`11,80,000/- which included interest at the rate of 12% on the principal

amount was allegedly drawn by the respondent gets dishonoured that will

not mean that the document of cancellation of transaction would be

inadmissible or that irreparable loss would be suffered by the Appellant

in case the respondent is not prevented from dealing with the property.

The reason for this is that the Appellant having accepted the amount of

`11,80,000/- being the sale consideration had chosen to seek refund of his

money without going in for specific performance and if that cheque had

bounced he ought to have instituted a case under Section 138 of the

Negotiable Instruments Act which has not been done. This

contemporaneous act of the Appellant also shows that the factum of the

Appellant suffering irreparable loss itself becomes doubtful. Similarly,

the balance of convenience is also not in favour of the appellant,

therefore, the respondent could not be saddled with the restraint order.

For the reasons mentioned above, I feel that the order passed by the

learned Additional District Judge rejecting the application of the

Appellant under Order XXXIX Rule 1 & 2 CPC is reasoned order and

does not suffer from any infirmity, illegality, incorrectness either on facts

or on the application of law thereto. Accordingly, the present appeal of

the Appellant is dismissed.

V.K. SHALI, J.

FEBRUARY 04, 2013 'MB'