Beetashok Chatterjee vs Lovely Chanda & Anr.
2014 Latest Caselaw 3660 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: August 12, 2014

+             I.A. No.3125/2013 in CS(OS) No.914/2012

       BEETASHOK CHATTERJEE                       .....Plaintiff
                   Through Mr.Anil Kumar, Adv. along with
                           plaintiff in person.

                         versus

       LOVELY CHANDA & ANR                            .....Defendants
                   Through           Mr.Vikas Dhawan, Adv. with
                                     Mr.S.P.Das & Mr.S.Panda, Advs.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By way of this order, I propose to decide the application being I.A. No.3125/2013 under Order VII Rule 11 read with Section 151 CPC filed by defendant No.1 seeking for rejection of the plaint.

2. The plaintiff has filed the above said suit for recovery of damages for a sum of Rs.20,10,000/- against the defendants. The case of the plaintiff is that the plaintiff and defendant No.1 entered into an agreement to sell dated 31st August, 2007 in respect of the entire first floor with one servant quarter having common toilet/bath (temporary structure) for use only on the top terrace, with full structure standing therein, fittings and fixtures installed therein, of the property bearing No.A-63, Defence Colony, New Delhi, for a total sale consideration of Rs.90 lacs. It is stated in the plaint that defendant No.1 had assured the plaintiff that the suit property is free from all kinds of encumbrances. The sale deed was executed on 5th

September, 2007 and after obtaining the possession of the property, the plaintiff surprised to find that the servant quarter along with common toilet/bathroom was not there. The plaintiff's family engaged a full time servant and such provision of a servant quarter was every much essential. Therefore, the said property was purchased. The family of the plaintiff consists of his wife, son and daughter. The non- existence of the servant quarter and the sparing of one room exclusively for the servant have affected the personal life of the children and their studies. The children are forced to carry on their studies amongst the family members and the noisy surroundings due to lack of an exclusive study room. As the plaintiff has suffered loss and damages, the same are restricted and assessed at a sum of Rs.20,10,000/- and the value of the servant quarter with temporary toilet and bathroom is assessed at a sum of Rs.25 lacs. But the plaintiff in total restricts his claim of damages to the tune of Rs.20,10,000/-.

3. It is the admitted position that defendant No.1 had sold the suit property by way of General Power of Attorney executed by the owner of the property, namely, Mr.Joginder Singh Bhasin. It is also the admitted position that prior to the above said suit, the plaintiff earlier filed the suit for mandatory and permanent injunction as well as for damages on 22nd April, 2010 on the same cause of action being CS(OS) No.772/2010 against defendant No.1 and also against Mr.Joginder Singh Bhasin who was the original owner of the suit property. During the pendency of the said suit, Mr.Joginder Singh Bhasin expired on 25th November, 2009 and his legal heirs were brought on record as defendants No.1(a), (b) & (c). The said

defendants revealed in their written statement that defendant No.1 was merely a General Power of Attorney holder on behalf of their father in furtherance of Collaboration Agreement dated 9th January, 2006 along with one Mr.S.S.Saluja who agreed to develop the property as per the Collaboration Agreement.

4. It is stated in the application that defendant No.1 had sold the suit property to the plaintiff by way of General Power of Attorney executed in his favour by Mr.Joginder Singh Bhasin, the original owner of the suit property. It is stated that the damages which have been claimed are stated to have arisen out of the transaction pertaining to the sale deed dated 5th September 2007. It is further stated that the defendant No.1 as an agent was appointed to act for the Principal namely, Mr.Joginder Singh Bhasin who had executed the sale deed. The plaintiff along with the plaint has filed copies of the General Power of Attorney as well as Agreement to Sell and Sale Deed.

5. It is alleged that the plaint is liable to be rejected as it is barred under the provisions of Section 230 of the Indian Contract Act as defendant No.1 cannot be personally bound by the document i.e. the sale deed dated 5th September 2007 as well as other documents executed by defendant No.1 acting as an agent of Mr.Joginder Singh Bhasin. It is also stated that the suit is barred by time as the cause of action arose when the sale deed was executed on 5th September 2007 and the suit was instituted in the year 2012. The prior suit filed by the plaintiff is stated to have been withdrawn. The defendant No.1 and defendant No.2 who were not impleaded in the said suit and

even otherwise the present suit for damages is a fresh claim made against the defendant No.1 for the first time which is barred by limitation.

6. Reply to the application has been filed on behalf of the plaintiff denying the contents of the application.

7. In case the documents filed by the plaintiff along with the suit are examined carefully, it appears to the Court very clearly that the General Power of Attorney dated 10th April, 2006 was executed in favour of defendant No.1 by the original owner to sell or lease out the entire floor. In rectification clause also, it is mentioned that the owner agreed to confirm and rectify that all the acts, deeds and things done by his attorney in respect of the said property would be construed as acts, deeds and things done by the owner personally as if he is present. Similarly, in the agreement to sell dated 31st August, 2007 which was entered into between the plaintiff and Mr.Joginder Singh Bhasin, the original owner, the same was signed by defendant No.1 as a constituted General Attorney on behalf of Mr.Joginder Singh Bhasin. In the said agreement, it is mentioned that Mr.Joginder Singh Bhasin through attorney has agreed to sell the entire first floor with one servant quarter having common toilet/bath (temporary structure) for use only on the top terrace, with structure standing therein, fittings and fixtures installed therein, of the suit property. The sale deed is also executed between Mr.Joginder Singh Bhasin through his constituted attorney defendant No.1 and the plaintiff. In the sale deed also, it is mentioned that the original owner through his attorney has agreed to sell the entire first floor with one servant

quarter having common toilet/bath (temporary structure) for use only on the top terrace, with structure standing therein, fittings and fixtures installed therein, of the suit property. The possession letter at the time of execution of the sale deed was also issued which reads as under:-

"POSSESSION LETTER BE IT KNOWN TO ALL that I, Joginder Singh Bhasin, son of Shri Amrik Singh Bhasin, resident of A-63, Defence Colony, New Delhi, represented through my constituted General Attorney Shri Lovely Chanda, son of Shri P.C. Chanda, resident of A-62, Defence Colony, New Delhi, do hereby handover the vacant and physical possession of the entire First Floor with one Servant Quarter having common toilet/bath (temporary structure) on the top terrace, of the property bearing No.A-63, Defence Colony, New Delhi, measuring 217 sq.yards, to Shri Beetashok Chatterjee, son of Late Shri S.R. Chatterjee, resident of K- 26, South City-I, Gurgaon-122001, Haryana."

8. The sale deed and possession letter are of 5th September, 2007. The first suit was filed by the plaintiff on 22nd April, 2010, i.e. after more than 2 years and 8 months and the present suit is filed on 6th March, 2012, i.e. after more than 4½ years. The legal representatives of the deceased, who is the owner of the suit property, are not the parties in the present suit. In case, all the documents are read together along with possession letter which clearly states that the plaintiff has got the physical possession of the entire first floor with one servant quarter having common toilet/bath (temporary structure) for use only on the terrace of the property.

9. The only contention of the learned counsel for the plaintiff is that no doubt, the servant quarter was received but it was a

temporary structure and that is not a proper servant quarter. Therefore, the plaintiff is entitled for a decree of damages. From all the documents, it is clear that in fact, the plaintiff has received the physical possession of entire portion of the first floor as per the agreement between the parties and the same is also appeared from the possession letter. The plaintiff is claiming the damages after more than 4 years and 8 months, mainly, on the reason that the servant quarter is a temporary structure and not the proper servant quarter.

10. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

11. In State of Rajasthan vs. Basant Nehata, 2005 (12) SCC 77, the Supreme Court held that:

"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said

deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of- Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor.

12. It appears to the Court that the contention of the plaintiff is totally after-thought. Even in the present case, the legal representatives of the owner are not parties to the suit. From the documents, it appears that defendant No.1 was merely an agent/ power of attorney holder of the same property. He is not liable and personally bound by the documents, i.e. sale deed dated 5th September, 2007 which was executed on behalf of the owner. The suit of the plaintiff is barred under Section 230 of the Indian Contract Act, 1872.

13. Therefore, the prayer made in the present application is allowed. The plaint of the suit filed by the plaintiff is accordingly

rejected under Order VII Rule 11 read with Section 151 CPC, as the same being not maintainable and barred by Section 230 of the Indian Contract Act, 1872.

(MANMOHAN SINGH) JUDGE AUGUST 12, 2014