Delhi High Court
Amarjeet Kaur vs Delhi Development Authority & Ors on 11 March, 2014
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th March, 2014
+ RFA 184/2013 & CMs No.6157/2013(for stay) & 6158/2013 (for
condonation of 99 days delay in filing the appeal)
AMARJEET KAUR ..... Appellant
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Mohit Gupta, Ms. Megha Gaur and
Mr. Ajay Gulati, Advocates.
Versus
DELHI DEVELOPMENT AUTHORITY & ORS ..... Respondents
Through: Ms. Shobhana Takiar, Adv. for R-1.
Mr. Pallav Saxena and Mr. Abhishek
Kumar, Advs for R-2.
Mr. Sumit Bansal and Ms. Richa
Oberoi, Advs. for SCB.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The appeal impugns the judgment and decree dated 25 th August, 2012
of the Court of the Additional District Judge (ADJ)-04,South District, Saket
Court Complex, New Delhi of dismissal in limine, as barred by time, suit
No. 354/2012 filed by the appellant/plaintiff, consequent to the rejection of
plaint under Order 7 Rule 11(d) of the Civil Procedure Code, 1908 (CPC).
The appeal is accompanied with an application for condonation of 99 days
delay in filing thereof.
2. Notice only of the application for condonation of delay was issued to
the respondents/defendants. Reply to the application has however been filed
by the respondent/defendant No.2 Ms. Neelima Begeria. Though in
response to the notice, the respondent/defendant No.3 Mr. B.S. Gill had
appeared in person on 23rd August, 2013 and accepted notice also on behalf
of respondent/defendant no.4 Mr. Mohanjeet Singh and
respondent/defendant No.5 Ms. Gurjeet Kaur who are his brothers and sister
respectively but subsequently none appeared for the respondents/defendants
No. 3 to 5. On the statement of the counsel for the appellant/plaintiff that
the copies of the entire Trial Court record had been placed on record, the
Trial Court record was not requisitioned. During the hearing on the
application for condonation of delay on 28th October, 2013, the appearing
counsels were asked to, on the next date of hearing, come prepared with the
merits of the appeal also. The senior counsel for the appellant/plaintiff and
the counsel for the respondent/defendant No.1 Delhi Development Authority
(DDA) and the counsel for the respondent/defendant No.2 Ms. Neelima
Bageria have been heard.
3. The appellant/plaintiff, on 18th August, 2012 instituted the suit from
which this appeal arises, pleading :
(i) that Shri Ajit Singh husband of the appellant/plaintiff and the
father of the respondents/defendants No. 3 to 5 was the owner
of property No. C-4, Westend Colony, New Delhi vide
Perpetual Sub-Lease dated 15th October, 1966 of the land
thereunder in his favour;
(ii) that the said Shri Ajit Singh vide Agreement to Sell dated 10th
December, 1986 agreed to sell the said property to
respondent/defendant No.2 Ms. Neelima Bageria for a
consideration of Rs.45,00,000/-, out of which only Rs.
9,00,000/- was paid and the respondent /defendant No.2
defaulted in making payment of balance sale consideration up
to the agreed time of 10th June, 1987;
(iii) that upon the failure of the respondent/defendant No.2 to pay
the balance sale consideration on or before the last date
agreed therefor, she forfeited the amount of Rs.9,00,000/-
already paid to the said Sh. Ajit Singh;
(iv) that on request of the respondent/defendant No.2, Sh. Ajit
Singh had also executed certain documents such as GPA,
SPA, another Agreement to Sell, Affidavit, Will, Receipts
etc, separately from the Agreement to Sell dated 10 th
December, 1986;
(v) that it was specifically mentioned in the Agreement to Sell
dated 10th December, 1986 that the said documents i.e., GPA,
SPA, another Agreement to Sell, Affidavit, Will, Receipts etc
shall not confer any right to the respondent/defendant No.2 in
the property and shall not be used by her for any purpose
other than of obtaining a loan;
(vi) that since the respondent /defendant No.2 failed to pay the
balance sale consideration, the respondent/defendant No.2
was not left with any right in the property in any manner and
the said Sh. Ajit Singh became entitled to deal with the tenant
who was inducted into the property as per the terms and
condition of the Agreement to Sell dated 10th December,
1986;
(vii) that upon the demise of Sh. Ajit Singh, the appellant/plaintiff
and the respondents/defendants No. 3 to 5 being his only
legal heirs, became the joint owners of the said property;
(viii) that the appellant/plaintiff on 17th August, 2009 applied to the
respondent/defendant No.1 DDA to disclose the status of the
said property, as the appellant/plaintiff was inclined to get the
same converted into freehold;
(ix) that the respondent/defendant No.1 DDA vide its reply dated
6th October, 2009 intimated that the said property had on 18th
February, 1994 been got converted into freehold in the name
of the respondent/defendant No.2 Ms. Neelima Bageria
through General Power of Attorney in favour Sh. Saroj
Kumar Bageria;
(x) that the appellant/plaintiff and the respondents/defendants
No. 3 to 5 learnt of the property having been converted into
freehold in the name of the respondent/defendant No.2 for the
first time upon receipt of reply dated 6th October, 2009 supra;
(xi) that on further enquiry, it was revealed that the
respondent/defendant No.2 had played a fraud and also
cheated the appellant/plaintiff in the matter and got the
property converted into freehold in collusion and conspiracy
with the officials of the respondent/defendant No.1 DDA on
the basis of documents which were meant for use of
obtaining loan only and could not be used for any other
purpose;
(xii) that the respondent /defendant No.2 was not competent and
authorized to get the property converted into freehold on the
basis of the documents which were only meant for use of
obtaining loan and could not be used for any other purpose as
was agreed upon between the respondent/defendant No.2 and
Sh. Ajit Singh;
(xiii) moreover, the entire deal between the respondent/defendant
No.2 and Mr. Ajit Singh stood revoked and cancelled on the
failure of the respondent/defendant No.2 to pay the balance
sale consideration within the time and which fact was within
the knowledge of the respondent/defendant No.2;
(xiv) that the collusion and conspiracy between the
respondent/defendant No.2 and the officials of the
respondent/defendant No.1 DDA is also evident from the fact
that the documents on the basis of which the
respondent/defendant No.2 got the property converted into
freehold were for a sum of Rs.9,50,000/- only whereas the
transaction was for a sum of Rs.45,00,000/- which was the
market value of the property at that time and the officials of
the respondent/defendant No.1 DDA should have applied
their mind to the said fact as to how the property could be
sold for a consideration of Rs.9,50,000/- only;
(xv) that as per the documents which were submitted by the
respondent/defendant No.2 for conversion of the property to
freehold, even the full amount had not been paid by the
respondent/defendant No.,2 to Sh. Ajit Singh and the officials
of the respondent/defendant No.1 DDA should have applied
their mind to the said fact and ought not to have converted
the property into freehold as the entire sale consideration
even as per the said documents having not been paid by the
respondent/defendant No.2 to Sh. Ajit Singh;
(xvi) that as per the terms and conditions of the Conveyance Deed
of freehold rights executed by the respondent/defendant No.1
DDA in favour of the respondent/defendant No.2, the same
could be revoked and cancelled at any time any fraud or
cheating or misrepresentation was found;
(xvii) that the appellant/plaintiff served the respondents /defendants
No.1 & 2 with a legal notice dated 6th June, 2012 requiring
the respondent/defendant No.1 DDA to cancel and revoke the
Conveyance Deed of freehold rights in the property executed
in favour of the respondent/defendant No.2, but no action had
been taken;
(xviii) that there was admittedly no sale deed from Sh. Ajit Singh in
favour of the respondent/defendant No.2.
Accordingly, the reliefs of; i) declaration that the
respondent/defendant No.2 never had any right or competence to get the
property converted into freehold from the respondent/defendant No.1 DDA
on the basis of documents submitted by the respondent/defendant No.2 with
the respondent/defendant No.1 DDA and conversion of the said property to
freehold had been obtained playing fraud and misrepresentations and in
collusion with the officials of respondent/defendant No.1 DDA; ii)
cancellation/revocation of the Conveyance Deed dated 18th February, 1994
of freehold rights in the property; and, iii) permanent injunction restraining
the respondent/defendant No.2 from encumbering the said property in any
manner whatsoever, were claimed in the suit.
4. The appellant/plaintiff along with the plaint inter alia filed copies of ;
i) Perpetual Sub-Lease Deed dated 15th October, 1966 of the land
underneath the property; ii) Agreement to Sell dated 10 th December, 1986
between Sh. Ait Singh and the respondent/defendant No.2; iii) another
Agreement to Sell dated 10th December, 1986 between Sh. Ajit Singh and
respondent/defendant No.2; iv) GPA dated 10th December 1986 executed by
Sh. Ajit Singh with respect to the said property in favour of Sh. Saroj Kumar
Bageria, husband of the respondent/defendant No.2.
5. The learned ADJ, vide the impugned judgment, dismissed the suit in
limine, probably without even issuing notice thereof to
respondents/defendants, finding/observing/holding:
(a) that arguments had been heard as regards limitation;
(b) that the Conveyance Deed of freehold rights in land
underneath the property was executed on 18th February, 1994
pursuant to the documents dated 10th December, 1986
executed by Sh. Ajit Singh;
(c) that the case of the appellant/plaintiff was that she was not
aware of the conveyance Deed dated 18th February, 1994 till
she received the letter dated 6th October, 2009 from the
respondent/defendant No.1 DDA;
(d) it is not the case of the appellant/plaintiff that she was not
aware of the execution of the documents dated 10 th December,
1986 by Sh. Ajit Singh in favour of respondent/defendant No.2
and her husband;
(e) that Sh. Ajit Singh had admittedly executed two Agreements
to Sell in favour of the respondent/defendant No.2 on 10 th
December, 1986, one showing the sale consideration as Rs.
45,00,000/- and the other showing the sale consideration as Rs.
9,50,000/-;
(f) that the date of death of Sh. Ajit Singh had not been given but
in case the amount of Rs.9,00,000/- paid by the
respondent/defendant No.2 to Sh. Ajit Singh had been
forfeited by him during his lifetime, the appellant/plaintiff and
the respondents/defendants No. 3 to 5 being the widow and
children of Sh. Ajit Singh ought to have taken some steps for
transfer of the suit property in their name;
(g) that instead, an application dated 17th August, 2009 under the
Right to Information Act was filed to find out the status of the
property to know whether the suit property was still in the
name of Sh. Ajit Singh and to know in whose name the
property had been made freehold and also to obtain copies of
the documents on the basis of which the property had been
made freehold;
(h) that it was thus clear that the appellant/plaintiff was having
information as regards the property having been converted into
freehold;
(i) that the limitation as per Entry 58 in the Schedule to the
Limitation Act, 1963 is three years from the date when the
right to sue accrues;
(j) that the suit field by the appellant/plaintiff was clearly barred
by limitation.
Accordingly, the plaint was rejected under Order 7 Rule 11 (d) of the
CPC.
6. The appellant/plaintiff in her application for condonation of 99 days
delay in preferring the appeal has pleaded that she is a senior citizen and is
suffering from various diseases and confined to bed and there is nobody in
the family to take care of the appellant/plaintiff and it is her grandson Mr.
Harman Singh who is also her attorney who is looking after her besides
taking care of his own studies etc. it is further stated that though the
certified copy of the impugned order of rejection of plaint was obtained in
the second week of September but her grandson / attorney Mr. Harman
Singh was no more interested in filing the appeal on her behalf and the
appellant/plaintiff herself could not engage any lawyer and continued to
request her grandson Sh. Harman Singh to file the appeal and to which he
ultimately agreed and all of which caused delay of 99 days in preferring the
appeal.
7. The respondent / defendant No.2 in her reply to the aforesaid
application has pleaded that the power of attorney purportedly executed by
the appellant/plaintiff in favour of Sh. Harman Singh appears to be forged
and fabricated as it does not bear the signature of the appellant/plaintiff but
only her purported thumb impression and has contended that the application
does not disclose any cause, least sufficient cause for condonation of delay.
8. I may notice that though no steps were taken by the appellant/plaintiff
for issuance of the notice to the respondents / defendants No.3 to 5, but the
respondent / defendant No.3 who is one other than the son of the
appellant/plaintiff, appeared before this Court on his own on 23 rd August,
2013 and also accepted notice as aforesaid on behalf of respondents /
defendants No.4 and 5, though thereafter has stopped appearing. The
address given in the memo of parties of the appellant/plaintiff as well as the
respondents / defendants No.3 to 5 is one and the same. I may further notice
that though the appellant/plaintiff in the plaint had stated that the respondent
/ defendant No.2 as well as the concerned officials of the respondent /
defendant No.1 DDA who colluded with the respondent / defendant No.2 in
conversion of the property into freehold are also liable to be investigated and
prosecuted and steps in that regard were being taken but no such steps are
informed to have been taken.
9. During the hearing on 29th October, 2013, it was the contention of the
counsel for the appellant/plaintiff that Sh. Ajit Singh, notwithstanding
execution of the Agreement to Sell dated 10 th December, 1986 (whereunder
he had in part performance of the Agreement to Sell handed over
constructive possession of the property to respondent/defendant No.2) had
continued to exercise rights as owner of the property as the sale did not
fructify owing to the respondent / defendant No.2 having not paid the
balance sale consideration and after the demise on 11th November, 1992 of
Sh. Ajit Singh, the appellant/plaintiff had continued to exercise rights as
owner of the property. However, the counsel for the appellant/plaintiff was
not able to tell as to what rights as owner were exercised by Sh. Ajit Singh
and after his demise, by the appellant/plaintiff, from the year 1986 till the
institution of the suit from which this appeal arises in August, 2012. The
counsel was also unable to tell as to how the advance money received in the
Agreement to Sell was shown in the income tax records and whether the
Agreement to Sell for a consideration of Rs.45,00,000/- had seen the light of
the day at any earlier point of time and whether the appellant / plaintiff had
paid property tax etc. with respect to the property or otherwise declared
herself as the owner thereof. In this view of the matter, the counsel for the
appellant / plaintiff was asked to produce the appellant / plaintiff in this
Court on the next date. The counsel for the appellant /plaintiff however
stated that the appellant / plaintiff was over 80 years of age and immobile
and on enquiry as to who was instructing the advocate, the counsel for the
appellant / plaintiff had been instructing him and sought time to produce
him. However on the next day i.e. 30th October, 2013, it was stated that
though Mr. Harman Singh grandson of the appellant / plaintiff had not
appeared being out of station but the respondent / defendant No.3 son of the
appellant / plaintiff who is supporting the appellant / plaintiff was present in
the Court.
10. From the aforesaid, it is apparent that the respondents / defendants
No.3 to 5 are supporting the appellant / plaintiff but are reluctant to
themselves sign any pleadings and are using the appellant / plaintiff who is
over 80 years of age as a front, perhaps for the reason of, in the vent of the
case filed being found to be fraudulent and the pleadings therein perjurious,
avoiding any action against themselves.
11. Be that as it may, the aforesaid falsifies the cause pleaded for delay in
filing the appeal. It is not as if the appellant / plaintiff has nobody else to
take care of her or is dependant only upon her grandson for filing the appeal.
The appellant / plaintiff and her children i.e. the respondents / defendants
No.3 to 5 are residing in the same house and the respondents / defendant
No.3 is supporting the appellant / plaintiff in the present litigation. There is
no explanation as to why the respondent / defendant No.3, even if reluctant
to himself sign any pleadings, could not have on behalf of the appellant /
plaintiff taken steps for filing of the appeal particularly when the same is
filed from the same lawyers‟ chamber who had issued the legal notice
preceding the suit on behalf of the appellant / plaintiff and who had filed and
conducted the suit also.
12. Once it is found that a false reason has been given for condonation of
delay, the same cannot be condoned as has been held in Pundlik Jalam Patil
Vs. Executive Engineer, Jalgaon Medium Project (2008) 17 SCC 448.
13. There is thus no cause, lest sufficient cause for condonation of as
many as 99 days delay in filing the appeal and application for condonation
of delay and consequently, the appeal are liable to be dismissed on this
ground alone but having heard the counsels on the merits of the appeal also,
it is deemed appropriate to adjudicate on the said aspect also.
14. The respondent / defendant No.3 who is the son of the appellant /
plaintiff, when appeared as aforesaid before this Court on 30th October,
2013, on enquiry informed that no mutation had been applied for or got
carried out after the demise on 11th November, 1992 of Sh. Ajit Singh on
11th November, 1992 to the name of the appellant / plaintiff and / or the
appellant /plaintiff and the respondents / defendants No.3 to 5; that no house
tax was paid by the appellant / plaintiff and / or the respondents / defendants
No.3 to 5 with respect to the said property and none of them were declaring
themselves as owner of the property in any income tax record; he could not
answer whether Sh. Ajit Singh had continued to declare himself as owner of
the property after 10th December, 1986; in response to a query as to what
rights of ownership were exercised by Sh. Ajit Singh and / or the appellant /
plaintiff after 10th December, 1986, it was stated that the appellant /plaintiff
had got issued a notice dated 6th July, 2009 of termination of tenancy to the
tenant and thereafter filed a suit for ejectment on 31st January, 2012 and in
execution whereof possession of the property had been recovered on 9th
October, 2012. The son of the appellant / plaintiff further stated that
thereafter possession of the property was taken by the Court Receiver
appointed by the Recovery Officer of the Debt Recovery Tribunal (DRT).
On yet further enquiry, son of the appellant / plaintiff further stated that the
tenant in the property, since his induction in December, 1986, had paid rent
earlier to Sh. Ajit Singh and thereafter to the appellant /plaintiff till January,
2008; on yet further enquiry, it was informed that the proceedings in the
DRT were initiated by the State Bank of India (SBI) and were being pursued
by Standard Chartered Bank (SCB) as assignee of the loan; on yet further
enquiry, it was informed that the rent was paid by the tenant in cash and was
not declared by the appellant / plaintiff and / or appellant / plaintiff and the
respondents / defendants No.3 to 5 before any authorities.
15. The counsel for the respondent / defendant No.2 on 30th October,
2013 stated that the respondent / defendant No.2 had evicted the tenant in the
property within one or two months of induction in December, 1986 and the
respondent / defendant No.2 was in possession of the premises and the Court
Receiver appointed by the Recovery Officer of the DRT had taken
possession of the property on 13th December, 2005.
16. Being of the view that owing to the lis between the appellant / plaintiff
and the respondent / defendant No.2, the banks / financial institutions which
had been led to advance monies on security of the property, should not
suffer, it was on 30th October, 2013 enquired from the senior counsel for the
appellant / plaintiff whether the appellant / plaintiff was willing to settle with
the bank. On request, adjournment was granted.
17. On the next date i.e. 20th November, 2013, the senior counsel for the
appellant / plaintiff stated that the appellant /plaintiff was ready and willing
to settle with the SCB.
18. The counsel for the SCB also appeared on 20th November, 2013 and
informed that the amount outstanding as on that date was approximately
Rs.43,00,00,000/-.
19. The appeal was adjourned to enable the appellant / plaintiff to
negotiate with the SCB.
20. However on the next date i.e. 11th December, 2013, it was reported
that the meeting arranged for settlement remained a non-starter. The senior
counsel for the appellant / plaintiff on that date stated that the appellant /
plaintiff is not objecting to the SCB, in realization of its dues, selling the
property but sale proceeds realized were likely to be more than dues of the
SCB and the claim of the appellant / plaintiff to the said excess sale proceeds
would still remain and thus it was necessary for the appellant / plaintiff to
press the appeal.
21. Arguments were accordingly heard on that date and on 16th
December, 2013 including from the counsel for the SCB.
22. The counsel for the respondent / defendant No.2 has filed before this
Court; i) copy of the orders dated 12th November, 2002 and 9th December,
2005 of the Recovery Officer of the DRT; ii) copy of the proceedings dated
13th December, 2005 of the Court Receiver appointed by the Recovery
Officer of the DRT; iii) copy of the application dated 19th October, 2010
filed by the respondent / defendant No.2 herein before the Recovery Officer
of the DRT for restoration of possession of the aforesaid property to the
respondent / defendant No.2; and, iv) copy of the judgment dated 12th
January, 2012 of the Court of the ADJ, Delhi in the suit filed by the
appellant / plaintiff against the tenant M/s Ratan Exports & Industries Ltd.
23. I will first enumerate the factual position as appears from the
documents on record.
24. The appellant / plaintiff as aforesaid admits having executed two
Agreements of Sale of the property in favour of the respondent / defendant
No.2 on 10th December, 1986. The following are the material differences,
for the present purposes, between the two Agreements:
(i) while the sale consideration mentioned in one is Rs.45,00,000/-,
out of which Rs.50,000/- in cash and Rs.8,00,000/- vide
demand draft are shown to have been paid and the balance sale
consideration of Rs.36,50,000/- was agreed to be paid within
six months i.e. on or before 10th June, 1987, whereafter the
documents of sale of property were agreed to be executed, the
sale consideration in the other Agreement is Rs.9,50,000/- (not
Rs.9,00,000/- as pleaded by appellant / plaintiff) out of which
Rs.50,000/- in cash and Rs.8,00,000/- vide demand draft are
shown to have been paid and the balance sale consideration of
Rs.1,00,000/- was agreed to be paid at the time of sale after Sh.
Ajit Singh had obtained all permissions for such sale and
intimated the respondent / defendant No.2 of the same;
(ii) while the Agreement to Sell with the sale consideration of
Rs.45,00,000/- is between Sh. Ajit Singh and the respondent /
defendant No.2 only; in the Agreement to Sell for the sale
consideration of Rs.9,50,000/-, the appellant / plaintiff as well
as the respondents / defendants No.3 to 5 are also confirming
parties and have confirmed that they do not have any right /
claim / title or interest in the property being sold and have no
objection to the sale thereof to the respondent / defendant No.2;
(iii) though both the Agreements to Sell bear the stamp of the
Notary Public but of different Notaries;
(iv) that while the Agreement to Sell for consideration of
Rs.45,00,000/- records that Mr. Ajit Singh on the request of the
respondent / defendant No.2 purchaser had inducted M/s Ratan
Exports & Industries Ltd. as a tenant in the property on a
monthly rent of Rs.4,500/- and that the said tenant shall remain
the tenant of the respondent / defendant No.2 purchaser till the
time the respondent / defendant No.2 purchaser pays the
balance consideration amount and all liabilities, for eviction of
the tenant, recovery of rent etc. till then shall be of the
respondent / defendant No.2 purchaser and if the respondent /
defendant No.2 purchaser failed to pay the balance sale
consideration within the agreed time of six months which was
to be of the essence of the Contract and in default of payment,
the Agreement was to stand cancelled without any notice and
the said tenant to be the tenant under Sh. Ajit Singh and the
tenant would continue to remain tenant at the wish of Sh. Ajit
Singh, the Agreement to Sell for sale consideration of
Rs.9,50,000/- records that the property had already been let out
to M/s Ratan Exports & Industries Ltd. which was in possession
of the property and that the possession of the property was
being handed over to the respondent / defendant No.2 purchase
by asking the tenant to attorn to the respondent / defendant No.2
purchaser as landlord and that it will be the responsibility of the
respondent / defendant No.2 purchaser to get the property
vacated from the tenant;
(v) while the Agreement to Sell for consideration of Rs.9,50,000/-
was on as is where is basis, there was no such clause in the
Agreement to Sell for sale consideration of Rs.45,00,000/-;
(vi) while the Agreement to Sell for sale consideration of
Rs.9,50,000/- provides for the liability of the outgoings with
respect to the property being of Mr. Ajit Singh up to the date of
Agreement to Sell and thereafter of the respondent / defendant
No.2 purchaser, there is no such clause in the Agreement to Sell
for sale consideration of Rs.45,00,000/-;
(vii) while the Agreement to Sell for sale consideration of
Rs.9,50,000/- contains the agreement of Sh. Ajit Singh to make
an application for transfer of the property to the lessor of the
land underneath the property and to the Diplomatic Enclave
Extension Cooperative House Building Society Ltd. and under
the Urban Land (Ceiling and Regulation) Act, 1976, if so
required, there is no such provision in the Agreement to Sell for
sale consideration of Rs.45,00,000/-;
(viii) while under the Agreement to Sell for sale consideration of
Rs.45,00,000/- time for payment of balance sale consideration
of Rs.36,50,000/- within six months was made the essence and
the Agreement was made automatically terminable without any
notice in default thereof, under the Agreement to Sell for sale
consideration of Rs.9,50,000/- though at one place time for
payment of balance sale consideration of Rs.1,00,000/- is
mentioned as six months but else it makes the balance sale
consideration payable at the time of execution of the Sale Deed
after Sh. Ajit Singh had obtained all the permissions and
intimated the respondent / defendant No.2 purchaser thereof;
(ix) while the Agreement to Sell for sale consideration of
Rs.9,50,000/- provides for arbitration by a named advocate,
there is no arbitration clause in the Agreement to Sell for sale
consideration of Rs.45,00,000/-;
(x) the Agreement to Sell for sale consideration of Rs.45,00,000/-
contained the following Caluse:
"3) That on the request of the IInd Party the 1st Party has
also executed certain documents such as another agreement to
sell, G.P.A., S.P.A., Affidavit, Will & receipt etc. as brought by
the IInd Party since the IInd Party want to apply for obtaining
loan on the basis of the said documents. The Second Party has
admitted that the said documents shall not confer any rights on
the Property without payment of balance consideration amount
and the Second Party shall not use the said documents for any
other purposes except obtaining the loan. In the agreement to
Sell, the wife, sons and daughters of the First Party have been
the consenting Party. Further the 1st Party has also handed
over the said Property documents to the Second Party to
facilitate her in obtaining the loan. In case of non-payment of
balance consideration amount by the Second Party, the terms of
the said agreement to Sell shall supersedes the terms of said
other agreement for Sale executed for consideration of
Rs.9,50,000/- (Rs Nine Lacs and Fifty Thousand Only)."
and which naturally does not exist in the Agreement to Sell for sale
consideration of Rs.9,50,000/-.
25. I may notice that the appellant / plaintiff though along with the plaint
hand filed copy of the Agreement to Sell for Rs.9,50,000/- to which she is a
confirming party and which bears her signatures but in the plaint has not
denied executing the said Agreement to Sell or her signatures thereon.
26. In the registered General Power of Attorney admittedly executed by
Sh. Ajit Singh in favour of the husband of the respondent / defendant No.2,
all possible powers to deal with the property including to let out the
property, sell the property, to apply to respondent / defendant No.1 DDA for
sale permission etc. were given. The respondent / defendant No.3, being the
son of Sh. Ajit Singh, was a witness to the said Power of Attorney.
27. Though the stand of the appellant / plaintiff in the plaint as well as in
the notice dated 6th June, 2012 issued preceding the institution of the suit
from which this appeal arises has been that besides the Agreement to Sell for
Rs.9,50,000/- and the GPA, copies of which have been filed, SPA, Affidavit,
Will Receipt etc. were also executed but no copies thereof have been filed by
the appellant / plaintiff before the Court.
28. Neither in the plaint in the suit from which this appeal arises nor in the
notice issued prior to the institution of the suit, is it the case of the appellant /
plaintiff that upon the default of the respondent / defendant No.2 to pay the
balance sale consideration of Rs.36,50,000/-, any notice of cancellation of
the Agreement to Sell or of forfeiture of the amount of Rs.8,50,000/- already
paid was given and the appellant / plaintiff presumably relies upon the
Clause in the Agreement to Sell for Rs.45,00,000/-, that upon non payment,
the Agreement shall stand cancelled without any notice.
29. Though as per both the Agreements to Sell, at the time of execution
thereof only a sum of Rs.8,50,000/- was paid but the appellant / plaintiff in
the plaint pleads payment of a total sum of Rs.9,00,000/- without pleading as
to how the said balance amount of Rs.50,000/- was paid.
30. Vide order dated 12th November, 2002 of the Recovery Officer of the
DRT, copy of which has been filed by the respondent / defendant No.2,
attachment order of the said property referred to as „mortgaged property‟
was issued and ordered to be served including by affixation and beat of
drums and the Certificate Holder Bank directed to get the valuation of the
property done.
31. Vide order dated 9th December, 2005 of the Recovery Officer of the
DRT, copy of which has been filed by the counsel for the respondent /
defendant No.2, the application of the Certificate Holder Bank for
appointment of a Receiver for taking actual physical possession of the
subject property referred to as „mortgaged property‟ which was stated to be
lying vacant was allowed and an advocate appointed as a Receiver to take
physical possession of the property and put the property under his lock and
key.
32. The spot proceedings dated 13th December, 2005 filed by the
aforesaid Court Receiver before the Recovery Officer of the DRT and copy
of which has been filed by the counsel for the respondent / defendant No.2,
shows that the said Court Receiver visited the subject property on 13th
December, 2005 and found the property locked from inside and on enquiries
learnt that the property was lying vacant since last 2/3 years and nobody was
residing therein and further records that the said Court Receiver put his locks
and sealed the property from outside gate without entering into the property
and affixed possession notice on the gate. The said spot proceedings are
accompanied with photographs in proof thereof.
33. The respondent / defendant No.2 in her application dated 19 th
October, 2010 for restoration of possession of the property, before the
Recovery Officer, DRT-1, Delhi, copy of which has been filed by the
counsel for the respondent / defendant No.2, stated that the respondent /
defendant No.2 was unaware of the pendency of the proceedings prior
thereto and admitted that the possession of the property was taken over by
the Court Receiver and sought repossession of the property on various
grounds which are not relevant for the present purpose. The said application
was accompanied with numerous photographs of the property and a perusal
whereof is indicative of the property indeed lying unused and unoccupied for
considerable time.
34. The copy of the judgment in the suit filed by the appellant / plaintiff
against the tenant M/s Ratan Exports & Industries Ltd. shows, a) that the
said suit was instituted on 31st January, 2011; b) that it was the plea therein
that the tenant M/s Ratan Exports & Industries Ltd. had not paid rent from
1st January, 2008 onwards; c) that the summons issued to the said tenant at
the address of the said property as well as at the address of the registered
office of M/s Ratan Exports & Industries Ltd. could not be served by
ordinary process and service by publication in the newspaper „The
Statesman‟ was ordered and the tenant proceeded against ex parte; d) that
the notices issued to the tenant of termination of tenancy prior to the
institution of the said suit had been returned undelivered; and, e) ultimately
an ex parte judgment for recovery of possession and arrears of rent / mesne
profits was passed and in execution of which the appellant / plaintiff claims
to have recovered possession on 9th October, 2012.
35. It is not the case of the appellant / plaintiff that the appellant / plaintiff
has taken any steps for execution of the decree in the aforesaid suit insofar as
for recovery of monies.
36. The position which emerges from the aforesaid documents is that Sh.
Ajit Singh, predecessor of the appellant / plaintiff, at the time of the
Agreement to Sell dated 10th December, 1986, whether for consideration of
Rs.9,50,000/- or for consideration of Rs.45,00,000/- had at the instance of
the respondent / defendant No.2 purchaser also let out the property to M/s
Ratan Exports & Industries Ltd. which admittedly were a nominee of the
respondent / defendant No.2 purchaser and had in part performance of the
Agreement to Sell also delivered possession of the property agreed to be sold
to the respondent / defendant No.2 by handing over constructive possession
of the property to the respondent / defendant No.2 purchaser and by
authorizing the respondent / defendant No.2 purchaser to recover rent from
the said tenant and to otherwise deal with the said tenant and to take
possession of the property from the tenant.
37. Though the appellant / plaintiff claims that on failure of the
respondent / defendant No.2 to pay the balance sale consideration under the
Agreement to Sell for Rs.45,00,000/- on or before six months from 10th
December, 1986 as stipulated therein i.e. by 10th June, 1987, the Agreement
to Sell as per the terms thereof stood automatically cancelled, the appellant /
plaintiff has not pleaded or otherwise in response to the queries of this Court
been able to show any rights which the appellant / plaintiff may have
thereafter exercised as owner of the property. The appellant / plaintiff in the
plaint merely stated:
"4. That since defendant No.2 failed to pay the balance
consideration amount of sale and the earnest money stood forfeited
by Shri Ajit Singh therefore defendant No.2 was not left any right in
the property in any manner. Shri Ajit Singh became entitled to deal
with the tenant who was inducted in the property as per the terms
and conditions of agreement to sell dated 10th December, 1986
(Tenth December One Thousand Nine Hundred Eighty Six)."
and shied away from even stating that Sh. Ajit Singh or appellant /
plaintiff did indeed after 10th June, 1987 dealt with the tenant. The
appellant / plaintiff in the plaint did not even plead having instituted the suit
for recovery of possession from the tenant or having obtained a decree in the
said suit, though the appellant / plaintiff subsequently admitted to have in
pursuance of the ex parte judgment and decree against the tenant recovered
possession of the property on 9th October, 2012 and the possession of the
property having been subsequently taken over by the Court Receiver
appointed by the Recovery Officer of the DRT.
38. The stand of the appellant / plaintiff, of having recovered possession
of the property in execution against the tenant and the possession having
been subsequently taken by Receiver from the appellant /plaintiff, is falsified
from the copies of the proceedings of the Recovery Officer of the DRT
which unequivocally show that the Court Receiver appointed by the
Recovery Officer of the DRT had taken possession of the property on 13th
December, 2005. There was thus no possibility of the appellant / plaintiff, in
execution of the ex parte judgment and decree against the tenant M/s Ratan
Exports & Industries Ltd., having taken possession of the property and there
is nothing to show that the possession of the property was taken from the
appellant / plaintiff after 9th October, 2012 as is claimed.
39. In any case, the appellant / plaintiff, from the plaint also concealed the
factum of the possession of the property being with the Court Receiver
appointed by the Recovery Officer of the DRT.
40. Once it is found that the appellant / plaintiff has approached the Court
with a false stand, it is the settled principle in law that a party guilty of
suppression of material facts (Hanamantha Ranoji Vs. Sri Mahadev
Channabasappa (2000) 6 SCC 120), a party who approaches the Court with
a pair of dirty hands (Mohammedia Coop. Building Society Ltd. Vs.
Lakshmi S. Coop. Building Society Ltd. (2008 ) 7 SCC 310) is not entitled
to a relief which is discretionary and equitable. Reference may also be made
to the celebrated case of S.P. Chengalvaraya Naidu Vs. Jagannath AIR
1994 SC 853 laying down that a person whose case is based on falsehood
has no right to approach the Court and can be thrown out summarily; non-
production and even non-mentioning of material document was held to be
tantamounting to playing a fraud on the Court. The primary relief of
declaration claimed by the appellant / plaintiff and on which the other reliefs
of cancellation / revocation of Conveyance Deed and of permanent
injunction are based, as per Section 34 of the Specific Relief Act, 1963 is in
the discretion of the Court. The appellant / plaintiff is not entitled to the said
discretionary relief of declaration and the suit from which this appeal arises
is liable to be dismissed on this ground also.
41. Though the appellant / plaintiff claims that upon the failure of the
respondent / defendant No.2 to pay the balance sale consideration by 10th
June, 1987, Sh. Ajit Singh and thereafter the appellant / plaintiff started
recovering rent form the tenant M/s Ratan Exports & Industries Ltd. but the
appellant / plaintiff inspite of asking of this Court has been unable to show
any document in this regard. It is also highly unlikely that the said M/s
Ratan Exports & Industries Ltd. which admittedly was inducted into the
property as a tenant at the instance of the respondent / defendant No.2 would
on the mere oral asking of the appellant / plaintiff (it is not the case of the
appellant / plaintiff that after 10th June, 1987 any notice or letter was sent to
the said tenant) would start paying the rent to the appellant / plaintiff.
42. The senior counsel for the appellant / plaintiff has argued that the
respondent / defendant No.1 DDA, on the basis of the Agreement to Sell of
Rs.9,50,000/- and the GPA, SPA, Will, Affidavit, etc. could not have
converted the property into freehold in favour of the respondent / defendant
No.2 as even under the Agreement to Sell for Rs.9,50,000/-, the entire sale
consideration had not been paid and there was a balance of Rs.1,00,000/- of
sale consideration, which had admittedly not been paid.
43. However no freehold policy also had been filed by the appellant /
plaintiff before the Court.
44. The senior counsel for the appellant / plaintiff on the next date of
hearing handed over a copy of the Scheme of Conversion from Leasehold
into Freehold applicable with effect from 1st April, 2000 but could not show
any clause therein also, making freehold conversion conditional upon
payment of entire sale consideration. He however drew attention to Clause
1(9) and 9 thereof providing that in case of any legal dispute relating to title
of property, conversion shall not be allowed and Clause 1(13) providing that
conversion shall be allowed in cases where the lessee/ sub-lessee / allottee
has parted with possession of the property, after verifying the factum of
possession; Clause 7 listing the documents required to be furnished and
Clause 8 laying down the Guidelines for filing the application, to contend
that the purport of all those was that the entire sale consideration should
have been paid.
45. It was enquired from the senior counsel for the appellant / plaintiff as
to what was the policy applicable as on 18th February, 1994 when the
property was converted into freehold. No answer was forthcoming.
46. I have however obtained copy of the Scheme of Conversion from
Leasehold system into freehold issued by the DDA in April, 1992 and which
appears to have been applicable at the relevant time and do not find any
condition therein also of the entire sale consideration having been paid.
47. The argument of the senior counsel for the appellant / plaintiff was
that the condition for payment of the entire sale consideration is implicit in
the conversion into freehold being allowed in the name of the agreement
purchaser inasmuch as without the purchaser paying the entire sale
consideration, the seller cannot be divested of his title to the property.
48. The argument, though attractive is misconceived. Freehold
conversion directly in the name of the agreement purchaser has been made
conditional upon execution of a Power of Attorney empowering the
agreement purchaser or his/her nominee to exercise all rights in the property
and delivery of possession of the property to the agreement purchaser.
Ordinarily, no prudent seller would execute such a Power of Attorney or
deliver possession of the property to the agreement purchaser without
receiving the entire sale consideration, though there is no bar in law thereto.
49. In the absence of there being any provision in the Freehold Policy of
the DDA to the effect that the DDA is entitled to convert the leasehold rights
into freehold in the name directly of an agreement purchaser from the
recorded lessee, only after recording satisfaction of the entire purchase price
having been paid, I am unable to find any flaw in the action of the DDA of
converting the leasehold rights in the land underneath the property into
freehold in the name of the respondent / defendant no.2. The only conditions
for such a conversion, as per the Policy, were of the recorded lessee having
executed a Power of Attorney empowering the agreement purchaser or his /
her nominee to exercise all rights in the property and of the recorded lessee
having delivered possession of the property to the agreement purchaser and
both of which conditions were satisfied in the present case.
50. The counsel for the respondent / defendant No.1 DDA had drawn
attention to Conveyance Deed dated 18th February, 1994 of freehold rights in
favour of the respondent / defendant No.2 to show that the same records that
the possession of the property had been delivered to the respondent /
defendant No.2 purchaser and the respondent / defendant No.2 purchaser
was in possession of the property. She has further invited attention to the
letter dated 4th December, 2009 written by the respondent / defendant No.1
DDA to the appellant / plaintiff calling upon the appellant / plaintiff to inter
alia show proof of „present‟ physical position of the property and contends
that the appellant / plaintiff had failed to show the same and hence the
respondent / defendant No.1 DDA or its officials cannot be blamed or said to
be colluding with the respondent / defendant No.2. She has further
contended that the General Power of Attorney executed by Sh. Ajit Singh in
favour of the husband of the respondent / defendant No.2 also empowered
him to obtain conversion of the property into freehold.
51. I had in this regard also invited attention of the senior counsel for the
appellant / plaintiff to Section 55(4)(b) of the Transfer of Property Act, 1882
which provides that where the ownership of the property has passed to the
buyer before payment of the whole of the purchase money, the seller is
entitled to a charge upon the property in the hands of the buyer for the
amount of the purchase money which has remained unpaid and for interest
on such amount from the date when the possession has been delivered and
had enquired from him whether not, if the seller so delivers possession in
part performance and also executes a Power of Attorney, his right would be
only to recover the balance price and not to revoke the Agreement to Sell.
52. The senior counsel for the appellant / plaintiff on the next date of
hearing, on the aforesaid aspect drew attention to Janak Dulari Devi vs.
Kapildeo Rai (2011) 6 SCC 555 to contend that the same is a matter of
intention of parties and which could be determined only after trial. Reliance
in this regard was also placed on Iswar Das Vs. Muralidhar Rai AIR 1992
Orissa 170 and after close of hearing copy of judgment in Kaliaperumal Vs.
Rajagopal (2009) 4 SCC 193 (paras No.16 and 18) was also handed over.
The senior counsel for the appellant / plaintiff further contended that in the
entirety of the facts and circumstances, no intention of Sh. Ajit Singh to
transfer title of the property on the date of the execution of the Agreement to
Sell can be deciphered and contended that all the said questions cannot be
decided without trial and merely because the appellant / plaintiff may at this
stage appear to have a bad case, is no ground for rejection of the plaint under
Order 7 Rule 11 of the CPC.
53. Though undoubtedly, the rights and liabilities of the buyer and seller
defined in Section 55 supra are in the absence of a contract to the contrary
and the judgments cited by the senior counsel for the appellant / plaintiff lay
down that notwithstanding the execution and registration of transfer
documents, the parties can be held to have not intended to transfer the title in
the property but on a reading of the documents executed by the predecessor-
in-interest of the appellant / plaintiff and to which the appellant / plaintiff
and the respondents / defendants no. 3 to 5 are confirming parties and which
are the sole repository of such a intention, do not show the predecessor of
the appellant / plaintiff and the respondents / defendants no. 3 to 5 to have
intended to the contrary. Not only was no such restriction placed in the
agreement for Rs.9,50,000/- but besides the same, the Power of Attorney in
favour of the husband of the respondent / defendant no.2 empowering him to
exercise all rights as owner of the property was also executed without
placing any restrictions on a such right. There is thus nothing in the said
documents to show the intention of the predecessor-in-interest of the
appellant / plaintiff and the respondents / defendants no.3 to 5 not to transfer
title to the property. Even if cognizance were to be taken of the Agreement
to Sell for Rs.45,00,000/- and the clause therein as set out hereinabove,
under the said agreement also, possession of the property was delivered in
part performance thereof and there is no plea of any steps having been taken
for the same having been reverted. I am therefore of the view that the
appellant / plaintiff has failed to, from the documents show any intention
contrary to what is provided in Section 55(iv)(b) supra.
54. The senior counsel for the appellant / plaintiff has also argued that
limitation is a mixed question of law and fact and which cannot be decided
at the stage of Order 7 Rule 11 CPC. The senior counsel for the appellant /
plaintiff also referred to the judgment of the Division Bench of this Court in
Indian City Properties Ltd. Vs. Vimla Singh 198 (2013) DLT 432 laying
down the parameters for rejection of plaint under Order 7 Rule 11 of the
CPC.
55. The senior counsel for the appellant / plaintiff lastly urged that even if
reliefs claimed in the plaint of declaration are to be held to be time barred,
the same would not apply to the relief claimed of permanent injunction.
56. Per contra, the counsel for the respondent / defendant No.2 invited
attention to Dr. Kamal Gupta Vs. Smt. Uma Gupta AIR 2006 Delhi 182,
Life Insurance Corporation of India Vs. Raghunath Prasad Almal 44
(1991) DLT 521 and to Punjab & Sind Bank Vs. Himachal Lithographers
MANU/HP/0064/2002 to contend that where a plaint is manifestly vexatious
and meritless in the sense of not disclosing a right to sue, the Trial Court
should exercise its powers under Order 7 Rule 11 of the CPC and bogus
litigation should not be permitted to go on and that by virtue of Section 17 of
the Limitation Act, 1963 every person is presumed to know his legal rights
and that a plaintiff cannot be permitted to plead date of discovery as
beginning of limitation period and that Order VI Rule 4 requires the
pleadings of misrepresentation, fraud, breach of trust, undue influence etc. to
be specific. Referring to Article 58 of the Schedule to the Limitation Act, he
has contended that the limitation provided is of three years from the date
when the right to sue first accrues and has contended that the right to sue in
the aforesaid facts would first accrue to the appellant / plaintiff on the date of
execution of the Conveyance Deed of freehold rights on 18 th February, 1994
and in any case on 11th November, 1992 when Sh. Ajit Singh predecessor of
the appellant / plaintiff died and when the appellant / plaintiff if diligent
ought to have got mutation of the property in her name and whereupon she
would have come to know of the execution of the deed of freehold
conversion in the name of the respondent / defendant No.2.
57. The senior counsel for the appellant / plaintiff in rejoinder has invited
attention to Ram Prakash Gupta Vs. Rajiv Kumar Gupta (2007) 10 SCC 59
where the Supreme Court had set aside the order of rejection of the plaint
observing that few lines or passages should not be read in isolation and
pleadings have to be read as a whole to ascertain its true import and that the
knowledge mentioned in the plaint could not be termed as inadequate or
incomplete as had been done by the High Court. He has further contended
that the judgments cited by the counsel for the respondent / defendant No.2
are all post trial.
58. I have considered the rival contentions aforesaid on the aspect of
limitation and whether the same require any trial.
59. Part III of the First Division of the Schedule to the Limitation Act
deals with suits relating to declarations. As aforesaid, the primary relief
claimed in the suit from which this appeal arises is of declaration and the
reliefs of cancellations of Sale Deed and permanent injunctions are
consequential thereto. Article 56 under Part III provides limitation for suits
for declaration of forgery of an instrument; Article 57 provides limitation for
a suit for declaration that an alleged adoption is invalid or never in fact took
place and Article 58 provides for limitation for the suits to obtain any other
declaration. It is not the case of the appellant / plaintiff that the defendants
have forged any document. The applicable article therefore is Article 58 and
limitation thereunder is of three years commencing from the date when the
right to sue "first" accrues.
60. The Supreme Court in Khatri Hotels Private Limited Vs. Union of
India (UOI) (2011 ) 9 SCC 126 has held that while enacting Article 58 of
the 1963 Act, the legislature has designedly made a departure from the
language of Article 120 of the 1908 Act; the word 'first' has been used
between the words „sue‟ and „accrues‟. This was held to mean that if a suit is
based on multiple causes of action, the period of limitation will begin to run
from the date when the right to sue first accrues; successive violation of the
right will not give rise to fresh cause of action and it was observed that suit
was liable to be dismissed if it was beyond the period of limitation, counted
from the day when the right to sue first accrued. Applying the said
principles, it was held that since the plaintiff, from the pleadings of DDA in
an earlier suit knew of the rights claimed by the plaintiff having stood
violated, even if the plaintiff did not know of the Notifications by which his
right to property was taken away, knowledge of violation of right was
enough and cause of action had accrued and mere knowledge of entries
would not confer a fresh cause of action.
61. The appellant / plaintiff in the present case claims to have learnt of
the execution of the conveyance of freehold rights in the land underneath the
property in the name of the respondent / defendant no.2 for the first time
from the reply dated 6th October, 2009 of the respondent / defendant no.1
DDA to the RTI query made by the appellant / plaintiff on 17th August,
2009. On the said basis, the suit for declaration filed on 18 th August, 2012
i.e. prior to expiry of three years on 5th October, 2012 from the date of the
reply of the DDA, is claimed to be within time.
62. However what has emerged, as recorded above, is that possession of
the property was taken over by the Recovery Officer of the DRT on 13th
December, 2005. The appellant / plaintiff though in the plaint filed on 18 th
August, 2012 had not pleaded the possession of the property to be with the
Recovery Officer of the DRT but has before this Court claimed that the
possession of the property was with the tenant M/s. Ratan Exports &
Industries Ltd. against whom the appellant / plaintiff took a decree of
possession and in execution whereof recovered possession from the tenant
on 9th October, 2012 and that the possession by the Recovery Officer of the
DRT was taken thereafter from the plaintiff and which stand of the
appellant / plaintiff has been found to be false as aforesaid. In fact the
appellant / plaintiff before this Court has not even taken a stand that the
proceedings of the Recovery Officer of the DRT are not correct.
63. Even if the case of the appellant / plaintiff of the Agreement to Sell by
the predecessor-in-interest of the appellant / plaintiff and the respondents /
defendants no.3 to 5 in favour of the respondent / defendant no.2 having
stood cancelled and the said predecessor having continued to exercise rights
as owner of the property were to be believed, the appellant / plaintiff at least
upon being divested possession of the property by the Recovery Officer of
the DRT on 13th December, 2005 would have come to know of the
Conveyance Deed executed by the respondent / defendant no.1 DDA in
favour of the respondent / defendant no.2 .
64. I have in MMTC Ltd. Vs. Raj Rani Gulati MANU/DE/4871/2013
held that if a person ought to have been put to enquiry and does not take any
steps and allows a state of affairs casting doubt on his / her title to the
property to continue to exist, he / she cannot by unilaterally deciding when
to make enquiries, govern the date of commencement of limitation. Reliance
in this regard was placed on Sh. Satya Parkash Gupta Vs. Sh. Vikas Gupta
MANU/DE/2042/2010 upheld in RFA(OS) No.23/2010 with the same title,
laying down that the plea of the plaintiff of not knowing the exact
documents is of no avail and that rules of limitation are meant to see that
parties do not resort to dilatory tactics but seek their remedy promptly and
those who sleep upon their claims should not be assisted by the Courts.
65. The aforesaid reasoning being based on uncontroverted documents, I
fail to see the need to put the parties to trial. Reliance placed by the counsel
for the respondent / defendant no.2 on the judgments mentioned hereinabove
is apposite.
66. The appeal fails, though for reasons different from the ones given in
the impugned judgment and is dismissed.
67. I am also of the opinion that the suit as well as this appeal are
vexatious and an abuse of the process of the Court. Accordingly exemplary
costs are awarded against the appellant / plaintiff and in favour of the
respondent / defendant no.1 and respondent / defendant no.2 in the sums of
Rs.25,000/- each, payable within four weeks. Though this is a fit case for
also initiating proceedings against the appellant / plaintiff for abuse of
process of the Court but I am refraining from doing so in the hope that good
sense would prevail on the appellant / plaintiff and the respondents /
defendants no.3 to 5.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J
MARCH 11, 2014
gsr/pp
