Delhi High Court
Sonny Sarna & Anr. vs Urmil Wadhwa & Ors. on 21 November, 2013
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS) 1642 of 2012
Reserved on: October 31, 2013
Decision on: November 21, 2013
SONNY SARNA & ANR. ..... Plaintiffs
Through: Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Sanjay Dua,
Advocate
versus
URMIL WADHAWAN & ORS. ..... Defendants
Through: Mr. Abhay Singh & Ms. Yasmin
Zafar, Advocates for Defendants 1
and 2
Mr. Siddharth Khattar, Advocate for
Defendant No.6
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
21.11.2013
IA No. 16375 of 2013 (Order XII Rule 6 CPC)
1. This is an application by the Plaintiff under Order XII Rule 6 of the Code
of Civil Procedure, 1908 ('CPC') for a decree on admissions.
2. Plaintiff No.1, Mr. Sonny Sarna and his father, Lt. Col. (Retd.) H.S.
Sarna, Plaintiff No.2 have filed the above suit against Mrs. Urmil
Wadhawan, Defendant No.1, her son Mr. Anuj Wadhawan, Defendant No.2
and Defendants 3 to 19 (impleaded as proforma Defendants) for recovery of
possession of the specified portions of the first and second floor (besides
one garage on the ground floor) of the property at 212, Jor Bagh, New
Delhi-110 003 (hereinafter the 'suit property') shown bounded by red
colour in the site plan filed along with the plaint. The other reliefs are for
recovery of mesne profits/damages for unauthorized use and occupation of
the aforementioned portions by Defendants 1 and 2.
3. The Plaintiffs state that the land measuring 634.3 sq. yds, on which the
suit property stands, belongs to and vests in the President of India. It was
demised on perpetual leasehold basis to Dr. Nand Singh Rekhi, who, out of
his own resources, built a two-and-a-half storied residential house therein.
Dr. Nand Singh Rekhi died intestate on 27th July 1965. In 1977, one of the
married daughters of Dr. Nand Singh Rekhi, Smt. Amrit Kaur, wife of Lt.
Col. (Retd) H.S.Sarna [Plaintiff No.2], who possessed 1/12th share
undivided share in the suit property, died leaving behind four natural heirs
and legal representatives (LRs), i.e., Plaintiffs No.1 and 2 and Defendant
No.7, Shri Kushwinder Sarna and Ms. Ramneek Sarna, Defendant No.6.
Consequently, these four LRs of Smt. Amrit Kaur came to possess 1/48th
undivided share in the suit property. In 1986, the Land and Development
Officer ('L&DO') mutated the suit property jointly in favour of two
Plaintiffs, Defendants 6 and 7 and ten others, including the three sons of Dr.
Nand Singh Rekhi, who have since expired. Their LRs have been impleaded
as Defendants 8 to 19.
4. It is stated that in 1988, Mr. T.S. Rekhi (1/12th undivided share), Mr.
Manjit Sebal (1/12th undivided share), Mr. Satinder Singh Rekhi (1/12th
undivided share) and Mrs. Prahlad Kanwar (2/12th undivided share)
transferred, for valuable consideration paid to them, their undivided
specified share in the suit property in favour of Plaintiff No.1 by way of
four duly registered relinquishment deeds ('RDs'), as a result of which
Plaintiff No.1 became a co-owner to the extent of 21/48th share in the suit
property. Plaintiff No.2 had 1/48th undivided share and Defendants 3 to 19
jointly held 26/48th undivided share in the suit property. It is stated that from
1982 onwards, Plaintiff No.2 and his family members comprising of
Plaintiff No.1, Defendants 6 and 7 started living in the suit property. During
early 1980, one Mr.Kailash Berry, a bachelor, who was well-known to
Plaintiff No.2 and was advising him on financial matters, became a regular
visitor. At the insistence, in 1986, Defendant No.6 was married to the
nephew of Mr. Kailash Berry. It is stated that Mr. Kailash Berry was
residing in the rental premises at 8/27 (Barsati Floor), East Patel Nagar,
New Delhi along with his mother, his sister, Defendant No.1 and his
nephew, Defendant No.2. Mr. Berry helped Plaintiff No.2 in getting the
built up portion on the first floor of the suit property vacated from the
tenant. It is stated in 1981, Mr. Berry, out of love and affection, was
permitted the use and occupation of the first floor of the suit property on the
express understanding that he would vacate the same as and when called
upon to do so by the Plaintiffs. Sometime later, Mr. Berry was also
permitted to use the garage on the ground floor and accommodate his
servant in one of the servants' quarters situated above the garage in the
annexe to the said house. In 1990 or thereabouts, on the request of Mr.
Berry, Plaintiff No.2 permitted Defendant No.1 to reside on the first floor of
the suit property along with Mr. Berry. Defendant No.1 had separated from
her husband and was dependent on Mr. Berry. It is stated that some time in
2000-2001, the four RDs were entrusted by Plaintiff No.1 to Mr. Berry in
connection with the loan which Mr. Berry was helping Plaintiff No.1 raise
from the bank. It is stated that Mr. Berry assisted Plaintiff No.1 in opening
an overdraft facility account with HDFC Bank by pledging with the said
Bank stocks and shares in the name of Mr. Berry and in the joint names of
himself and Defendant No.1 for the purchase of a property in Greater
Kailash.
5. Mr. Berry passed away on 13th January 2006 and with his death, his
permissive user/licence in regard to the suit property stood terminated.
However, when the Plaintiffs requested Defendant No.1 to vacate the first
floor and return the four RDs, she declined to do so and instituted criminal
proceedings against the Plaintiffs. It is stated that Defendants 1 and 2 filed
Suit No. 391 of 2006, presently pending in the Court of learned Additional
District Judge ('ADJ'), Tis Hazari Courts, New Delhi under Section 6 of the
Specific Relief Act, 1963 ('SR Act') for recovery of possession of the pooja
room on the second floor of the suit property, asserting that she was the de
facto owner of the first and second floors. Defendant No.1 also filed a suit
for permanent injunction restraining the L&DO from carrying out any
further mutation in respect of the suit property in the Court of learned
Senior Civil Judge ('SCJ'), Saket Courts, New Delhi, being CS(OS) No.
1209 of 2009. Despite letters dated 29th June 2006 and 11th July 2006 by the
Plaintiffs to Defendants 1 and 2 asking them to vacate the suit property,
they refused to do so. In the circumstances, the above suit was filed on 26th
May 2012.
6. Summons were directed to be issued in the suit on 29th May 2012. On 10th
July 2013, the following order was passed by the Court:
"1. There are 19 Defendants in this suit. Written statements have
been filed by Defendant Nos.1 and 2, who according to the
Plaintiff, are the main contesting Defendants. Mr. Sanjeev
Sindhwani, learned Senior counsel for the Plaintiffs, states that
replications to the written statements filed by Defendant Nos.1
and 2 will be filed by the Plaintiffs within four weeks.
2. Mr. Navin Chawla, learned counsel for Defendant No.6, states
that the written statement will be filed by Defendant No.6 within
four weeks of the service of the complete papers upon his client,
which learned counsel for the Plaintiffs will do during the course
of the day. Replication thereto will be filed within four weeks.
3. Although learned counsel for Defendant Nos. 7 and 9 appeared
before the Joint Registrar on 8th May 2013, none appears on their
behalf today. All the other Defendants have either been served or
have refused service, as noted by the Joint Registrar in the order
dated 8th May 2013. Accordingly, the remaining Defendants are
set ex parte.
4. List the matter before the Joint Registrar on 17th September
2013 for admission/denial of documents. The parties will file
their affidavits by way of admission/denial and produce the
originals of the documents relied upon by them respectively.
5. List before Court for framing of issues on 31st October 2013."
7. Thereafter, admission and denial of documents took place on 17th
September 2013 before the Joint Registrar. IA No. 16375 of 2013 was filed
under Order XIX Rule 6 CPC, in which notice was directed to be issued on
9th October 2013, returnable for 31st October 2013 and replies were directed
to be filed at least one week prior to the next date. However, no replies were
filed and, with the consent of the parties, the application itself was finally
heard on 31st October 2013.
8. In the application, the Plaintiffs point out that Defendants 1 and 2 have in
their written statement admitted, inter alia, to the effect that : (i) the property
having been mutated in the records of the L&DO in the names of the
Plaintiffs and the other co-owners, i.e., Defendants 3 to 19; (ii) the four
registered RDs were executed by some of the other co-owners in favour of
Plaintiff No.1 transferring their 20/48 shares in the suit property in his
favour; (iii) Plaintiff No.2 was the co-owner to the extent of 1/48th share in
the suit property.
9. The contention of the Plaintiffs is that the defence of Defendants 1 and 2
that the four RDs were executed in favour of Plaintiff No.1 upon the
consideration being advanced by Mr. Berry for and on behalf of Defendant
No.1, thereby making them co-owners of the suit property, is barred by the
provisions of Benami Transaction (Prohibition) Act, 1988 ('BTA'). It is
submitted that Defendants 1 and 2 have not been able to produce any
documents to assert their alleged co-ownership of the suit property. It is
submitted that this plea also contradicts the plea taken by Defendant No.1 in
the suit for permanent injunction wherein it was alleged that in September
1989 Plaintiff No.1 agreed to sell his 20/48th share in the suit property to her
and that after the death of Mr. Berry, Plaintiff No.1 agreed to sell his
remaining 1/48th share in the suit property.
10. It is further stated in the plaint that since June 2006, Mr. Sonny Sarna
began to deny his legal obligations towards Defendant No.1 herein. It is
pointed out by the Plaintiffs that Suit No. 1209 of 2009 was dismissed by
the learned SCJ by a judgment dated 6th March 2013. It is also pointed out
that against the order dated 4th April 2012 passed by learned SCJ declining
interim injunction, an appeal was filed, being MCA No. 8 of 2012, which
was also dismissed by the learned ADJ by the order dated 21st November
2012.
11. It is further pointed out that the Defendants did not initiate proceedings
against Plaintiff No.1 in respect of the purported agreements to sell and no
such agreement has ever been produced by Defendant No.1 either in the
earlier suit or in the present suit. Since Defendants 1 and 2 have even prima
facie failed to show transfer in their favour, a judgment on admissions ought
to be passed by the Court.
12. It is further pointed out that in the affidavit dated 13th September 2013
of admission and denial of documents, Defendants 1 and 2 have admitted to
the mutation in favour of the Plaintiffs in the records of the L&DO on the
basis of the RDs in favour of Plaintiff No.1. They have also admitted their
statements as witnesses in the other proceedings, and the letters dated 11th
July 2006 and 29th September 2006 from the Plaintiffs, asking them to
vacate the property. As far as Defendant No.6 is concerned, it is stated that
she has made a bald statement in her written statement that Plaintiff No.1
sold his 20/48th share in the suit property in favour of Mr. Berry for a
valuable consideration, but has failed to produce a single document to
substantiate such plea.
13. Mr. Sanjeev Sindhwani, learned Senior counsel for the Plaintiffs, relied
upon the decision in Bharat Kumar v. Ashok Sahdev 2013 VIII AD (Delhi)
604, where in similar circumstances it was held that if the claim of the
Defendants was in the teeth of the BTA then there was no purpose in
proceeding to trial. He also relied upon the decision in P.P.A. Impex Pvt.
Ltd. v. Mangal Sain Mittal 166(2010) DLT 84 (DB), where it was held that
where the defence was moonshine, there was no need to go to trial.
Reference has also been made to the decision in Grammy Communications
Pvt. Ltd. v. EMAAR MGF Land Ltd. 202 (2013) DLT 756.
14. On behalf of the Defendants, it was submitted that in the affidavit of Mr.
Sonny Sarna of 1993, it was admitted by him that he had sold the portions
of the suit property under the occupation of Defendants 1 and 2 to Mr. Berry
for a consideration of Rs. 15,50,000. Learned counsel for Defendant No.6
submitted that this was a triable issue and the matter should be set down for
trial.
15. Among the documents relied upon by the Plaintiffs, are the records of
the L&DO in respect of the suit property and the records of suit No. 1209 of
2009.In the affidavit of admission and denial of documents filed by
Defendants 1 and 2, it is stated as under:
Sl.No. Particulars Admitted/Denied
1. Site Plan of the suit property Denied
2. Copy of the L&DO mutation letter dated Admitted
14.01.1986 in respect of property No.211,
Jor Bagh, New Delhi-110 003 with typed
copy.
3. Copy of the corrigendum dated Admitted
01.09.1988 to the mutation issued by the
L&DO with typed copy.
4. Certified copy of Release Deed executed Not denied but
by Dr. Tej Singh Rekhi with respect to same were
property No.211, Jor Bagh, New Delhi- executed at the
110 003 with typed copy. instance of
Defendant No.1
5. Certified copy of Release Deed executed Not denied but
by Mrs. Manjeet Sebal with respect to same were
property No.211, Jor Bagh, New Delhi- executed at the
110 003 with typed copy. instance of
Defendant No.1
6. Certified copy of Release Deed executed Not denied but
by Satinder Singh Rekhi with respect to same were
property No.211, Jor Bagh, New Delhi- executed at the
110 003 with typed copy. instance of
Defendant No.1
7. Certified copy of Release Deed executed Not denied but
by Prahlad Kaur Kanwar with respect to same were
property No.211, Jor Bagh, New Delhi- executed at the
110 003 with typed copy. instance of
Defendant No.1
8. Certified copy of the order/judgment Not denied by
dated 05.08.1999 passed by Smt. contents contain
Ravinder Kaur, Rent Controller, in typographical and
eviction petition titled as Dr. Dev Raj other errors which
Talwar v. Kailash Berry, E-381/90, with distorts the
evidence and written statement, with background of the
typed copy. statement of
Defendant Nos.1
and 2 as witnesses
9. Copy of letters dated 29.9.2006 and Receipt not denied
11.07.2006 written by Plaintiff No.1 and but the contents of
2 with typed copy letters are denied.
16. What is denied is the site plan, statement of accounts of Plaintiff No.1
with the HDFC Bank, the Sale Deed of property at Greater Kailash, New
Delhi and a statement given by Defendant No.1 on 24th June 2006 to the
Police. It is significant that Defendants 1 and 2 have not denied the mutation
of the suit property in favour of Plaintiffs 1 and 2, Defendants 6 to 19 as co-
owners. Defendant No.6, in his affidavit of admission and denial of
documents also admits to the mutation in the records of the L&DO in favour
of the Plaintiffs. Defendants 1, 2 and 6 do not deny the four RDs by which
the 20/48th share in the suit property was transferred in favour of Plaintiff
No.1. They admit to the 1/28th share of Plaintiff No.2. They also do not
deny that Defendants 3 to 19 are the co-sharers.
17. The plea in para 2 of the written statement of Defendants 1 and 2 is that
the RDs were executed in favour of Plaintiff No.1 with the consideration
being advanced by Mr. Berry for and on behalf of Defendant No.1 for
acquiring 5/12th share in the suit property.
18. The affidavit dated 9th October 1993, purportedly of Mr. Sonny Sarna,
relied upon by Defendants 1 and 2, is not addressed to anyone in particular.
The said affidavit has been denied by the Plaintiffs. Paras 17 to 19 of the
affidavit of Mr. Sonny Sarna read as under:
"17. And whereas Shri Kailash Berry, s/o Shri Gopal Das Berry
advanced a sum of Rs. 15,50,600 to Shri Sonny for payment of
consideration to the releasers.
18. And whereas in consideration of having received a sum of Rs.
15,50,000 from Shri Kailash Berry, the deponent had allowed Shri
Kailash Berry to occupy the first floor and barsati floor of the
aforesaid property, i.e., 211, Jor Bagh, New Delhi since May
Seventeen, 1988.
19. And whereas the deponent having already received from Shri
Kailash Berry the sum of Rs. 15,50,000, vide agreement dated
September 1, 1989 agreed to sell/transfer 20/48 out of his 21/48 share
in the house to Shri Kailash Berry and thus Shri Kailash Berry in law
occupies the first floor and barsati floor, garage and servant quarters,
under the aforesaid agreement as a co-owner of the house having
20/48 share in the same."
19. The said affidavit ends with a declaration that Mr. Sonny Sarna has
"transferred/assigned" his 20/48 interest out of 21/48 interest in favour of
Mr.Kailash Berry for total consideration of Rs. 15,50,000 and that Mr.
Kailash Berry is in occupation of the first floor and the barsati floor, with
one garage and servant quarter "as co-owner having 20/48 interest in house
No. 211, Jor Bagh, New Delhi." Nowhere in the affidavit is it stated that
Mr. Kailash Berry has paid the sum to Plaintiff No.1 on behalf of Defendant
No.1. The aforementioned affidavit, therefore does not help to show that
Defendant No.1 is, in fact, the co-owner of the suit property.
20. There is no document by which Mr. Kailash Berry has transferred his
right, title and interest, if any, in the suit property to Defendant No.1. It is
also inconceivable that for a transaction involving purchase of undivided
share of an immovable property, there would be no written document
whatsoever. There is, therefore, no basis for the assertion of transfer of the
right in the suit property to Mr. Kailash Berry. A similar plea has been
rejected by the learned SCJ, who by his order dated 6th March 2013
dismissed Suit No. 1209 of 2009 filed by Defendant No.1, inter alia against
the L&DO and the Plaintiffs herein, stating that without seeking the specific
performance of the so-called agreements to sell in favour of Defendant
No.1, she could not simply seek a bare injunction and that such relief is
barred under Section 41(h) of the SR Act.
21. The plaint does not disclose a cause of action for instituting a suit for
injunction. Interestingly, in Suit No. 63 of 2012, when Defendant No.1 was
cross-examined, she stated that she had brought the "documents of
ownership of the property." She, however, only produced the photocopy of
the affidavit dated 9th October 1993. She admitted that she had not brought
the original of the documents in her possession. She admitted that there was
no registered document qua the suit property or any part thereof showing
the transfer of the property in her favour or in favour of Mr. Anuj
Wadhawan.
22. In the considered view of the Court, the defence put by Defendant No.1
appears to be a sham one. The plea that Mr. Berry made payment of the
consideration for the relinquishment in favour of Plaintiff No.1 is clearly hit
by the provisions of BTA. Therefore, such a plea is legally untenable. In
any event, there is absolutely no document to substantiate the contention
that Mr. Berry advanced the consideration or that he advanced such
consideration on behalf of Defendant No.1.
23. In view of the clear admission by Defendants 1 and 2 of the mutation of
the property in favour of Plaintiffs 1 and 2 and Defendants 3 to 19 as co-
owners and the admission that the RDs were executed and duly registered,
there should be no difficulty in passing a decree on admissions to the effect
that the Plaintiffs are entitled to recovery of actual physical and vacant
possession of the suit property, which is currently under the physical use
and occupation of Defendants 1 and 2.
24. In Grammy Communications Pvt. Ltd. (supra), a similar approach was
adopted while allowing the application under Order XII Rule 6 CPC by
holding that the Plaintiff is entitled for a partial decree. In Bharat Kumar
(supra), the Court negatived a similar plea which was barred under the
provisions of BTA. It was held that the claim of the Defendants in that case,
was in the teeth of the BTA and "no purpose would be served by putting the
same to trial." In the present case too, the Court finds that the defence raised
by Defendants 1, 2 and 6 is a sham one and it is a sheer waste of precious
judicial time to put the said issue to trial, particularly, in view of the
admission by Defendants 1, 2 and 6 in their written statements that the four
RDs were executed in favour of Plaintiff No.1 and to the mutation in favour
of Plaintiffs 1 and 2 and Defendants 3 to 19 as co-owners in the suit
property.
25. Accordingly, prayers (a) and (b) of the suit are granted and the suit is, to
that extent, decreed in terms of Paras (a) and (b) of the prayer clause.
Decree sheet be drawn up accordingly.
26. The application is allowed in the above terms, with no order as to costs.
CS(OS) No.1642 of 2012
27. List the suit on 1st July 2014 for framing of issues as far as the
remaining pleas in the suit are concerned.
S. MURALIDHAR, J.
NOVEMBER 21, 2013
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