Smt. Sarita Arora & Anr. vs Smt. Kiran Kad & Anr.
2014 Latest Caselaw 1106 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No. 273/2013
%                                  3rd March, 2014
SMT. SARITA ARORA & ANR.                       ......Appellants.
                  Through: Mr. Gaurav Kumar, Adv.


                          VERSUS

SMT. KIRAN KAD & ANR.                                      ...... Respondents.

                  Through:               Mr. Ajay Talesara and Mr. S.V.Vats,
                                         Advocates for R-1 and 2.

                                         Mr. Sandeep Vishnu, Mr. Kunal
                                         Thakur and Mr. Anurag Lal, Advs. for
                                         R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Adjournment is prayed for on the ground of illness of the counsel.

The appeal paper-book shows that there is not one counsel but there are

three counsel for the appellant. Therefore, if one counsel is not available,

other counsel must necessarily appear and argue because there is no reason

why there should be unnecessary pendency in courts, more so in a case like

the present.

2. This first appeal is filed under Order 43(1)(r) CPC impugning the

order of the trial court dated 27.4.2013 by which the trial court has allowed

the application under Order 39 Rules 1 and 2 CPC filed by the respondents

no. 1 and 2/plaintiffs.

3. The subject suit was filed by respondent nos. 1 and2 /plaintiffs

seeking declaration, cancellation and injunction. The suit property is

H.No.118, forming part of K.No. 356, Village Bindapur, Vishwas Park, B-

Block, Uttam Nagar, New Delhi-59, admeasuring 60 sq. yds. The case of

the plaintiffs was that the title documentation with respect to suit property

was illegally got executed only in favour of defendant no.1 by the defendant

no.2 although, the plaintiffs as well as the defendant no.1 were to be joint

purchasers of the property for the total agreed consideration of Rs.19 lacs.

The plaintiffs had duly paid a sum of Rs.10 lacs to the seller- defendant no.2

by means of a cheque of the plaintiff no.2 in favour of defendant no.2 and

which was cleared from her account.

4. The case of the defendant no.1 was that the cheque was given by

plaintiff no.2 for returning of alleged loan taken by the son of plaintiff no.1

from the defendant no.1, however, nothing was filed to show that any such

loan was given by the son of the defendant no.1. The trial court also notes

that the plaintiffs had placed on record the copies of the entire chain of the

title documents. The trial court has given the following salient observations

for allowing the application, in paras 6 to 11 of the impugned order, and

which read as under:-

"6. It is trite that first and foremost in order to obtain an ad-interim

Injunction U/o 39 Rule 1 & 2 CPC, the plaintiff has to satisfy the court on the trinity principle of strong prima facie case, balance of convenience and irreparable loss and injury which cannot be monetarily compensated. It is settled position of law that ground of ad-interim injunction is a discretionary relief and has to be exercised on sound judicial principle as the plaintiff has to approach the court with clean hands and without concealing the material facts. The Hon'ble High Court in case reported as, "AIR 2011 Delhi 425", titled as "International Hotel Limited V/s NDMC" has culled out three principles as under:

(i) The plaintiff has a prima facie case to go for trial;

(ii) Protection is necessary from that species of injury known as irreparable loss before his legal right can be established;

(iii) That the mischief of inconvenience is likely to arrive from withholding injunction will be greater than that what is likely to arise from granting it.

7. As far as prima facie case in the matter is concerned, the plaintiffs have placed on record the original documents (page Nos.28 to 34 of the documents) as well as copies of the entire chain of documents. It has been emphasized by the learned counsel for the plaintiffs that defendant No.1 had handed over the said documents to the plaintiffs to show that there was no encumbrance upon the suit property and defendant no.2 had a valid title and possession

thereupon. Whereas, explanation of defendant No.1 for the said documents being in possession of plaintiffs, is that on account of close relationship between the parties, copies of said documents were handed over to the plaintiffs. The learned counsel for the defendant No.1 has emphasized at bar that defendant No.1 is a housewife and she had no acumen to enter into such a complicated kind of agreement. It has been further argued that the cause of action pleaded by the plaintiffs is not tenable in the eyes of law and is false, as there was no Agreement to Sell entered into between the parties and even after coming to know of a fraud having been committed against the plaintiffs, they did not contact defendant No.2. It has been further argued that even prior to filing of the present suit, defendant No.1 in March' 2012 had entered into an Agreement to Sell in respect of the suit property with a third person.

8. It is a matter of record that Rs.10,00,000/- (Rupees Ten Lakhs Only), out of the total agreed sale consideration of Rs.19,00,000/- passed on to defendant No.2 from the plaintiffs. The very fact that some of the original documents with regard to electricity bill, water bill and house tax receipts have been placed on record by the plaintiffs, prima facie the case set up by the plaintiffs appear to be more probable then the defences taken by defendant No.1. The defence taken by defendant No.1 further does not prima facie appear to be probable , as the alleged loan of Rs.10,00,000/- (Rupees Ten Lakhs Only) given by defendant No.1 to the son of plaintiff No.1 on 11.09.2010 was without execution of any kind of documents. The justification in this regard, which has come at bar is that because of closeness of relationship between the parties, no document was executed. If this stand of defendant No.1 is applied to the cause of action pleaded in the case by the plaintiffs, then it is equally probable that the plaintiffs did not contact defendant No.2 in relation to sale transaction and depended upon defendant No.1 with the understanding that she would act bonafidely with them, being close relative.

Defendant No.1, as a measure of astute drafting has just given a fleeting reference about she having entered into an Agreement to Sell in March 2012 in respect of the suit property, but has neither disclosed the date of said Agreement to Sell, nor the name of the buyer nor the consideration amount which has been received by her. Even no document in this regard has been placed on record. In any case, the Agreement to Sell does not create any right in respect of any proposed buyer and execution of sale deed by defendant No.1 in favour of the said buyer would have been in violation of Section 52 of the Transfer of Property Act. Therefore, I find good prima facie case in favour of plaintiffs in the matter.

9. Even the balance of convenience is in favour of plaintiffs and against the defendants, as there is documentary evidence that the consideration amount of Rs.10,00,000/- passed on from the plaintiffs to defendant No.2 through the aforesaid two cheques. It is stated at bar by the learned counsel for the plaintiffs on instruction that plaintiff No.1 has duly intimated her department about the said amount having been paid by way of cheque to defendant No.1. Although, no documentary evidence is there in on record, however, it is again a matter of trial and the plaintiffs can always produce the witness from her department in this regard.

10. It is the plaintiffs who are going to suffer irreparable loss and injury which has no recompense in law, in case the defendant No.1 is permitted to play with the possession of the suit property.

11. In view of the above discussion, the application U/o 39 Rule 1 & 2 CPC is hereby allowed and defendant No.1, her agents, servants, family members etc, are hereby restrained from selling, dispossessing, alienating or renting out or creating third party interest in respect of the suit property in any manner till the disposal of this suit."

5. I may note that respondent nos.1 and 2/plaintiffs have already

completed their evidence in the trial court and evidence of the defendants is

also partly completed. Trial court is therefore requested to expedite the

disposal of the case.

6. In view of the above, I do not find that there is any illegality in the

order of the trial court. The trial court has rightly concluded that the

plaintiffs have a prima facie case and who will be caused grave and

irreparable injuries if the interim orders are not granted.

7. In view of the above, there is no merit in the appeal, and the same is

therefore dismissed, leaving the parties to bear their own costs.

MARCH 03, 2014                                 VALMIKI J. MEHTA, J.
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