Mukesh Kapil And Anr. vs M/S Kanakdhara Credits Pvt. Ltd.
2013 Latest Caselaw 2260 Del

$~20
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                DECIDED ON: 15.05.2013

+                         FAO (OS) 246/2013
                          CAV 462/2013
                          CM APPL.7819-7821/2013

       MUKESH KAPIL AND ANR.                         ..... Appellants
                    Through: Mr. S.N. Kumar, Sr. Advocate
                    with Mr. K.B. Soni, Advocate.

                          versus

       M/S KANAKDHARA CREDITS PVT. LTD.            ..... Respondent

Through: Mr. Viraj Gupta with Mr. Dipesh Sharma, Advocate for Resp-1.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

CAV 462/2013 Caveat discharged.

CM APPL.7820 & 7821/2013 (exemption) Allowed subject to all just exceptions.

FAO (OS) 246/2013, CM APPL.7819/2013 (stay)

1. Issue notice. Mr. Virag Gupta, Advocate accepts notice.

2. With consent of counsel for the parties, the appeal was heard today.

3. The appellant is aggrieved by an order dated 9.5.2013 made in the two

FAO (OS) 246/2013 Page 1 applications - I.A.17167/2011 and I.A.7184/2012. In the first application, an injunction to restrain the defendants/present appellants from interfering with the plaintiff's possession and from creating obstacles in plaintiff's ingress and egress to the second floor of 14, Bazar Lane, Babar Road, Bengali Market, New Delhi - 110 001 (hereinafter called the suit property) was sought. In the second application, the plaintiff sought for a direction that the keys of the property be handed over to it.

4. The facts necessary for the present purpose are that the appellants had entered into an agreement with M/s Ranjeet Towers (India) Pvt. Ltd. (hereafter referred to as 'developer') whereby the latter agreed to reconstruct the suit property at its own cost. The appellants were to own all ground floor rights and further received Rs.15 lakhs. Apparently, disputes arose which was sought to be resolved through a settlement deed dated 1.10.2001. In terms of this deed, the developer agreed to pay Rs.18.5 lakhs to the appellants towards compensation, damages and expenses. The settlement was embodied in terms of a compromise decree dated 3.10.2001 in a pending suit. The developer, in the meanwhile, on the basis of a registered irrevocable Power of Attorney and the settlement deed dated 1.10.2001 transferred the second floor of the suit property to the plaintiff on 1.3.2011, through a registered sale deed. It is the appellants' case that the irrevocable General Power of Attorney dated 31.1.2002 executed in favour of the developer was cancelled on 10.3.2011. The plaintiff had filed a suit and sought the interim relief described earlier in these proceedings, contending that it needed to build a staircase. The appellants were impleaded as defendants in the suit - CS (OS) 2670/2001

5. In the meanwhile, the appellants appears to have initiated execution

FAO (OS) 246/2013 Page 2 proceedings being Execution Petition No. 55/2011, claiming enforcement of the decree arising out of the settlement deed dated 3.10.2001. Before learned Single Judge, the appellants had contended that respondent/plaintiff was not the lawful owner of the property and consequently even a prima facie case for the grant of the interim relief was not made out. It was also submitted that the defendants/appellants were entitled to construct a mumty and staircase for which NDMC approval has been sought and that in these circumstances, it would be inexpedient and inequitable to grant the interim relief including direction to hand over the keys and permit the plaintiff to carry out the constructions.

6. The plaintiff, on the other hand, had contended that title had been lawfully vested in it by virtue of the sale deed executed in its favour by the developer on 1.3.2011. It was also submitted that having agreed to execute the Power of Attorney - a term which was embodied in the compromise decree dated 3.10.2001 and acted upon it in fact executing irrevocable Special Power of Attorney dated 31.1.2002, the appellants/defendants could not contend that the plaintiff's title was defective.

7. During the hearing of the applications, the plaintiff's counsel had drawn to the notice of the Court that the NDMC had been approached through an application for permission to construct staircase and mumty as required by the appellant and that the authority, however, had replied that a spiral staircase without riser could be constructed.

8. The learned Single Judge in the impugned judgment rejected the appellants' contention that there was no lawful transfer in favour of the plaintiff. Relying upon the irrevocable Special Power of Attorney concededly executed and registered on 31.1.2002, the Court further held

FAO (OS) 246/2013 Page 3 that: -

"21. Consequently, this Court is of the view that the Special Power of Attorney executed in the present case gives the power to the developer to execute not just an Agreement to Sell, but a Sale Deed also.

22. Further, the submission of Ms. Sapna S. Kapil, Advocate, that the Power of Attorney is revocable as it is without consideration, is contrary to facts. In fact, upon a composite reading of the Settlement Deed dated 01st October, 2001, it is apparent that the Power of Attorney has been executed by the defendant No.1 in view of the consideration mentioned in the Settlement Deed dated 01st October, 2001."

9. So far as the contention of the defendants with regard to irretrievable hardship or alteration of situation once the spiral staircase is constructed was concerned, the learned Single Judge observed as follows: -

"25. Further, defendants submission that till a Mumty and staircase is constructed, plaintiff cannot be granted any relief, is not correct. Firstly, the alleged non-construction of the staircase and Mumty cannot be attributed to the plaintiff. Secondly, from the documents on record, it is apparent that NDMC has declined permission for construction of Mumty and staircase with step riser as desired by defendants. However, permission was granted by NDMC only for spiral staircase, to which defendants are not agreeable. This Court is prima facie of the view that as the said obligation cannot be performed due to operation of law, plaintiff cannot be denied relief on this ground. Moreover, both the plaintiff and developer have given an undertaking in their pleadings to construct the staircase and Mumty as and when defendant No.1 gets the requisite permission from NDMC.

26. As far as the defendants' contention that plaintiff is not in possession of the second floor of the suit property, this Court finds that the registered Sale Deed executed by the builder admits that possession has been handed over to the plaintiff. Further, the Local

FAO (OS) 246/2013 Page 4 Commissioner in his report has stated that though locks opened using keys provided by defendants, but the entrance door contained marks which suggested that another latch/lock had existed, but which had been removed. It is pertinent to mention that the defendant No.1 in his own execution petition No.55/2011 has sought relief of possession of the second floor. The defendant No.1 in his own letter dated 02nd March, 2011 has admitted, "On 01st March, 2011 a woman with her two children who did not disclose her name with the key of second floor entrance door and entered into second floor and informed that she has purchased the second floor from you. She stayed in the second floor flat for couple of hours and then left in her Santro car bearing no. DL-2C AP 9817 which was parked in front of 19, Central Lane, New Delhi - 110 001. The house number 19, Central Lane, belongs to Mrs. and Mr. Parag P. Tripathi......" Consequently, it will have to be presumed at this stage that plaintiff was in settled possession prior to the defendants‟ forcibly taking over possession.

27. This Court is also of the opinion that defendants under the Compromise Decree have no right, title or interest whatsoever in the second floor of the suit property and no default of any nature by the developer would entitle the defendants to seek attachment or claim lien on the second floor of the suit property."

On the basis of the above observations and drawing strength from the Supreme Court's ruling in Dorab Cawasji Warden vs. Coomi Sorab Warden and Others, (1990) 2 SCC 117, learned Single Judge issued an interim mandatory injunction. The learned Single Judge directed that a Joint Registrar of the Court to whom the keys of the suit property had been entrusted, is to hand over the keys to the plaintiff's counsel within one week and that the matter is to be listed before the Registrar General today.

10. It is contended by counsel for the appellant that the impugned order has virtually foreclosed all rights of the appellant. The specific reliance is placed on two applications - E.A.Nos.343/2012 and 34/2013 in the pending

FAO (OS) 246/2013 Page 5 execution proceedings initiated in the year 2011 whereby the defendant has sought for suitable directions to secure clearance from the NDMC to enable them to put up the construction. It is submitted that once the plaintiff - who has no rights over the suit property is permitted to enter possession, the situation would be altered beyond recognition and that the rights which would ensue would seriously and gravely prejudice the appellants. Learned counsel also submitted that a suit for the cancellation of the sale deed dated 1.3.2011 was filed and the same is pending. It was lastly submitted that since the appellants have approached the Executing Court and the said proceedings are pending before the learned Single Judge, merits of those proceedings ought to have been considered before making a drastic order of the kind impugned in the present case.

11. This Court has considered the submissions. It is undoubtedly true that a Civil Court ordinarily issues an interim mandatory injunction in rare and exceptional circumstances. The question is whether the learned Single Judge exercised his discretion in that regard by application of the correct principle.

12. The appellants' contention with regard to the plaintiff's rights was that the developer did not pass any valid title in favour of the plaintiff. In this regard, the learned Single Judge relied upon the settlement deed of 1.10.2001 - which is embodied in the compromise decree dated 3.10.2001. The Single Judge also relied upon the irrevocable Special Power of Attorney dated 31.01.2002. This Court is not unmindful of the fact that the Special Power of Attorney was sought to be cancelled almost ten years after its execution, i.e., on 10.03.2011 - a fact strongly relied upon by the respondent /plaintiff. Furthermore, the appellants' contention that the registered Special Power of Attorney could not have vested the developer with the authority to

FAO (OS) 246/2013 Page 6 sell or transfer was, in the opinion of this Court, correctly rejected by the impugned judgment which has specifically extracted the stipulation in that document. This unequivocally points to the right of the developer/attorney to sell or transfer the property in question, i.e., the second floor of the suit property. It is in these circumstances that the Single Judge - in paragraph 24 of the impugned judgment - concluded (of course on a prima facie basis) that the first defendant had no right or authority to revoke the Power of Attorney. As far as the other contentions with regard to the execution proceedings are concerned, this Court again recollects that the decree holder did not evince any grievance all this while and appears to have approached the Court more than ten years after - a fact which speaks for itself.

13. So far as the argument of the counsel that the impugned order would lead to irretrievable situation is concerned, it would be useful to notice that the Single Judge in paragraph 25 expressly recorded as follows: -

".........Moreover, both the plaintiff and developer have given an undertaking in their pleadings to construct the staircase and Mumty as and when defendant No.1 gets the requisite permission from NDMC."

14. In view of the above, this Court is of the opinion that exercise of discretion by the learned Single Judge in granting the interim mandatory injunction to hand over the keys to the plaintiff to enable the latter to put up spiral staircase in accordance with the NDMC directions cannot be faulted with. At the same time, this Court is of the opinion that in the event the first defendant is able to secure the approvals envisioned in paragraph 25, it can seek appropriate remedies including restitution as may be available in law.

FAO (OS) 246/2013 Page 7

15. The appeal is dismissed but in the above terms.

Order dasti.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) MAY 15, 2013 /vks/

FAO (OS) 246/2013 Page 8