Delhi High Court
Rekha Rani vs Vinod Juyal & Ors. on 12 March, 2013
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:12.03.2013
+ FAO(OS) 140/2013
REKHA RANI ..... Appellant
Through Mr. Sudhir Nandrajog, Sr. Adv.
with Mr.Ravi D. Sharma, Advs.
Versus
VINOD JUYAL & ORS. ..... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
CM No. 4276/2013 (exemption)
1 Exemption allowed, subject to all just exceptions.
CM No. 4277/2013 (condonation of delay of one day in filing)
2 In view of the averments contained in the instant application,
delay of one day in filing the appeal is condoned.
3 Application stands disposed of.
FAO(OS) No.140/2013
4 The appellant is aggrieved by the order dated 23.01.2012 whereby
his application under Order 7 Rule 11 of the Code of Civil Procedure,
1908 (hereinafter referred to as the 'said Code') seeking a rejection of
the plaint had been dismissed and rightly so.
5 Record shows that the present suit has been filed for cancellation
of a sale deed dated 21.01.2008; a prayer for permanent injunction has
also been sought restraining the defendants from carrying on any
construction/alternation in the suit property. The averments made in the
plaint disclose that the plaintiff claims himself to be the owner of B-
4/82, Yamuna Vihar, Delhi-110053 which property he had purchased
from Prem Shanker Verma. Construction was carried out in 2007 and
presently the property comprises of a ground floor, first floor, second
floor and third floor. The ground floor and the third floor were sold to
separate persons. The plaintiff and defendant No. 2 entered into a
negotiation vide which defendant No. 2 had agreed to purchase the first
and second floors of the aforenoted property in his wife's name and
consideration of both the flats was fixed at Rs.20 lacs and Rs. four lacs
for the interiors. On 20.01.2008, the parties met in order that the papers
could be arranged for the registration of the sale deed in favour of
defendants No. 1 & 2 which had been agreed for 21.01.2008. On
21.01.2008, the plaintiff had to go to Pathankot for some urgent work;
he was however pressurized by defendant No. 2 to meet him at the
office of the Sub-Registrar; the plaintiff started reading the recitals in
the sale deed when he was told by defendant No. 2 that he need not read
them as they were the same as those contained in the draft sale deed. At
that meeting, defendant No. 2 showed him a bankers' cheque for Rs.20
lacs which was to be issued in the name of the plaintiff. Defendant No. 2
agreed to handover the bankers' cheque to the plaintiff at the time
registration of the sale deed. The sale deed was executed on 21.01.2008;
submission being that at that time, defendant No. 2 offered tea to the
plaintiff and asked him to handback the cheque in order that he could
get it photocopied for his record. Thereafter, the plaintiff was informed
that due to an accident, the cheque had got blotched because of some ink
which has spread over the cheque. Defendant No. 2 promised to get a
renewed cheque in favour of the plaintiff which has never been got done
till today.
6 The case of the plaintiff as is deciphered from the plaint and
particularly paras 17, 24 & 25 is that a fraud has been committed upon
the plaintiff by defendant No. 2 in getting the sale deed (dated
21.01.2008) registered; since the same had been got obtained by fraud,
the sale deed deserves to be cancelled. The plaintiff has also not
received the consideration amount which had been promised to him; the
money had in fact been deposited by defendant No. 2 in the account of a
third party who is totally unknown to the plaintiff; for all the aforenoted
reasons, the present suit had been filed.
7 Defendant No. 1 received summons in the suit pursuant thereto to
which the present application had been filed. The averments contained
in the application have been perused. It is a short application and in fact
does not disclose the real reason seeking rejection of the plaint; by and
large the submission being that no cause of action has been made out as
the sale deed has already been registered in favour of defendant No. 1;
the plaint accordingly be rejected.
8 The impugned order had dismissed this application.
9 On behalf of the appellant, it is argued that under the provisions
of Section 55 (4)(b) of the Transfer of Property Act, 1882, once the
ownership of the property has been passed on to the buyer, only a charge
is created upon the property and a suit of the present nature seeking a
cancellation of the sale deed would not lie. Reliance has been placed
upon AIR 2009 Supreme Court 2122 Kaliaperumal Vs. Rajagopal &
Anr. to support a proposition that once the sale of the property has been
effected and the sale deed already stands registered, only a suit for
possession would be maintainable; attention has been drawn to para 8
where 'sale' has been defined.
10 We are not in agreement with these arguments advanced by
learned senior counsel for the appellant. The law is well settled. For
dealing with an application under Order 7 Rule 11 of the Code it is only
the averments which are contained in the plaint are germane to answer
whether the cause of action has been deciphered or not; defences sought
to be advanced or set up by the defendant are of no avail at that stage.
The arguments of learned counsel for the appellant are by and large
defences which he seeks to raise and which are not permissible in view
of the clear averments made in the plaint and as disclosed in the plaint.
The judgment relied upon by learned senior counsel for the appellant
has no bearing to the facts of the instant case; there is no doubt that once
a sale deed has been effected, the title passes from one to other but that
will not affect the right of the party to challenge the sale deed; specific
averments made in the plaint being that the sale deed has been obtained
by a fraud having been played upon him.
11 In this background, the impugned order does not call for any
interference. Appeal is without any merit. Dismissed.
INDERMEET KAUR, J.
SANJAY KISHAN KAUL, J.
MARCH 12, 2013
A
