Rama Goel vs Gujranwala Cooperative Group ...
2014 Latest Caselaw 2662 Del

$~ 2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 1916/2009

%                                        Judgment dated 23.05.2014

       RAMA GOEL                                    ..... Plaintiff
               Through:            Mr.Udayan Jain, Advocate

                          versus

       GUJRANWALA COOPERATIVE GROUP
       HOUSING SOCIETY LTD,BLOCK J         ..... Defendant
                Through: Ms.Saroj Bidawat, Adv. for MCD

       CORAM:
             HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
1.

Plaintiff has filed the present suit for mandatory / prohibitory injunction. Defendants no.1, 2, 3 and 4 were served with the summons in the suit and they entered appearance through counsel. Counsel for the defendants No.1 to 4 sought time to file their respective written statements, however, only defendant no.2 had filed the written statement. Thereafter the contesting defendants being defendant nos.2 and 5 did not appear in the matter and the said defendants were proceeded ex parte on 4.3.2014.

2. The plaintiff has filed the affidavit by way of evidence.

3. As per the plaint, the plaintiff is the owner of flat bearing No. A-48, Second Floor, J Block situated in Gujranwala C,G.H.S. Ltd, Vikaspuri, New Delhi. The affidavit by way of evidence of the plaintiff has been filed which is exhibited as Ex.PW-1/A.

4. PW-1 has deposed that defendant No.1 Society originally allotted Flat

No.A-48, situated in the premises of Gujaranwala CGHS Limited, Delhi in favour of one Shri Mohan Lal, son of Sh. Tek Chand. After execution of the requisite documents the defendant No.1 had handed over the actual physical possession of the flat to Shri Mohan Lal on 11.01.1987 and he became the legal owner in possession of the flat. Certified Copy of the possession letter dated 11.01.1987 issued by defendant No.1 in favour of Mohan Lal is exhibited as Ex-PW-1/1.

5. PW-1 has further deposed that the plaintiff has purchased Flat No. A-48 from its owner Shri Mohan Lal on 21.10.1988 for a sale consideration of Rs.1,60,000.00 (Rupees One Lac and Sixty Thousand Only) and executed an agreement to sell, registered money receipt, registered will in her favour along with an undertaking acknowledging the execution of the above documents in presence of the plaintiff and the witnesses. On 21.10.1989 Shri Mohan Lal has also executed a general power of attorney duly registered in favour of Shri Jai Bhagwan husband of the plaintiff duly authorizing him to deal with the suit property in all manners. The deponent plaintiff recognizes the signatures of Mohan Lal, witnesses and her husband Jai Bhagwan on the above documents. Certified copies of the agreement of sale dated 21.10.1988, receipt for Rs. 1,60,000.00 dated 21.10.1988, declaration cum undertaking dated 21.10.1988, registered Will dated 21.10.1988 and registered General Power of attorney dated 21.10.1989 have been exhibited as Ex-P-2/D2, Ex-PW-1/2, Ex-PW-1/3, Ex-PW-1/4 and Ex-PW-1/5 respectively.

6. PW-1 has deposed that after the purchase of above flat the plaintiff with her family started living in the same. Plaintiff applied for her name to be mutated in the records of Municipal Corporation of Delhi, defendant No.3 herein. The defendant No.3 passed an order dated 30.11.2004 mutating the name of the plaintiff for the purpose of payment of property tax.

Certified copies of the Assessment order dated 30.11.2004 and copies of the house tax receipts have been exhibited as Ex-PW-1/6, Ex- PW-1/7, Ex-PW-1/8, Ex-PW-1/9, Ex-PW-1/10, Ex-PW-1/11 and Ex- PW-1/12.

7. PW-1 has deposed that the passport of plaintiff, her Voter Card, and ration card of her husband Shri Jai Bhagwan Goel were all also issued with the address of the same Flat. Copy of the Plaintiff's passport (O.S.R.) is exhibited as Ex-PW-1/13. Certified copies of the Plaintiff's Voter Card, Voter Card of her husband Jai Bhagwan and his ration card are marked as Ex-PW-1/14, Ex-PW-1/15 and Ex-PW-1/16.

8. PW-1 has also deposed that the plaintiff also got installed telephone connection No.5501702 in her flat. The plaintiff used the same telephone and continues to pay the bills regularly. Certified copy of one telephone bill is marked as Ex-PW-1/17.

9. PW-1 has deposed that Gujaranwala Apartments Residents Welfare Association has always recognized the plaintiff as owner of the flat and plaintiff has paid the monthly maintenance charges to the RWA. Certified copies of receipt dated 05.03.2009 and 07.09.2008 are marked as Ex-PW- 1/18 and Ex-PW-1/19.

10. PW-1 has further deposed that the plaintiff's husband in connection with his work visited Dubai and his work/occupation required him to stay at Dubai more often. It is also deposed that the plaintiff with her children had joined her husband at Dubai. Therefore, the plaintiff had requested the Assistant Engineer, Delhi Vidyut Board, Vikaspuri, New Delhi to disconnect the electricity connection since she intended to stay outside India for a long time. The electricity connection was accordingly disconnected.

11. PW-1 has next deposed that the Plaintiff came to know that the Delhi

Development Authority has launched a scheme for conversion of leasehold rights to freehold rights with respect to flats constructed by Group Housing Society on the land allotted/ leased to the Society by DDA. The said scheme was applicable upon the flat in question. The scheme required No Objection Certificate from the concerned Group Housing Society.

12. PW-1 has also deposed that on 05.06.2009 plaintiff through her husband Jai Bhagwan had written a letter to defendant No.1 with the request to issue a No Objection Certificate so that the plaintiff may apply to D.D.A. for conversion of her flat from leasehold to freehold. Copy of letter dated 05.06.2009 signed by Sh. Jai Bhagwan is exhibited as Ex-PW-1/20.

13. PW-1 has deposed that the defendant No.1 failed to take any action on the request of the plaintiff for issuance of N.O.C. Therefore the plaintiff through her counsel at M/s Dua Associates on 24.08.2009 served a legal notice to defendant No.1 for the issuance of N.O.C. Copy of the notice dated 24.08.2009 is exhibited as Ex-PW-1/21.

14. PW-1 has also deposed that the defendant No.1 through their reply notice dated 05.09.2009 informed the plaintiff to submit further documents and also informed her that one Smt. Pan Pori Jain /defendant No.2 has also submitted photocopies of some documents for transfer of the said flat in her name. Plaintiff on 10.10.2009 through her counsels M/s Dua Associates served the rejoinder notice to defendant No.1's reply dated 05.09.2009 informing them that the required documents have already been furnished to them and shall be again furnished to them on 15.09.2009 and also directed them for not transferring the said flat and membership in the name of defendant No.2 failing which she shall be compelled to initiate appropriate civil and criminal action against it. Original allottee, Shri Mohan Lal on 10.10.2009 had also submitted his

letter with defendant No.1 confirming that he has sold the said flat to the plaintiff and he has never entered into any agreement or transaction with alleged Mrs. Pan Pori Jain and defendant No.1 should transfer the flat in the name of the plaintiff. The Plaintiff on 15.10.2009 submitted all the requisite documents with defendant No.1 through her counsel. Certified copies of original reply dated 05.09.09 of defendant No.1, office copy of rejoinder notice dated 10.09.09, Office copy of Letter of Mohan Lal dated 10.10.2009 duly signed by him which are recognized by the deponent and office copy of the letter dated 15.10.09 duly signed by Jai Bhagwan are exhibited as Ex-PW-1/22, Ex-PW-1/23, Ex-PW-1/24 and Ex-PW-1/25.

15. PW-1 has further deposed that the defendant No.1 society was asked several times to show the documents on the basis of which defendant No.2 claims the flat in her favour but neither the Society nor the defendant No.2 ever disclosed the alleged documents to the plaintiff. The plaintiff repeatedly asked the defendants No.1 to grant No Objection Certificate to the plaintiff for obtaining freehold rights over the flat to which the defendant No.1 has not agreed and has finally refused to issue any No Objection Certificate in favour of the plaintiff. Therefore, the plaintiff was constrained to file the present suit.

16. PW-1 has deposed that the defendant no.2 filed her written statement to the suit on 14.01.2011 and thereupon plaintiff for the first time came to know that the defendant no.2 and her son in law, i.e defendant no.5 have played a fraud upon her. Defendant No. 5 manipulated to get the agreement of sale and GPA relating to the suit property executed and registered in favour of defendant no. 2 on 22.12.2008 with the office of Sub Registrar-II, Janakpuri, New Delhi on the basis of fraud, forgery and cheating and therefore, the said documents are null and void ab initio. Photo Copies of the agreement of sale & GPA dated 22.12.2008 have

been copied from their respective originals. The Originals of the documents have been seized by police from the possession of Mr.Ram Bhaj Jain, husband of defendant No.2 during investigation of case F.I.R. No. 391 of 2011 P.S. Janakpuri, New Delhi. The certified copy of the agreement of sale dated 22.12.2008 and GPA dated 22.12.2008 are exhibited as Ex-P-1/ D2 and Ex-PW-1/26.

17. PW-1 has deposed that the defendant No.2 has no locus standi to claim any right or title on the said flat on the basis of above mentioned void agreement of sale and GPA dated 22.12.2008 executed by defendant No.5 in her favour. The entire criminal conspiracy relating to fraud, forgery, cheating and acts of criminal trespass by breaking the locks of the plaintiff and usurping of the entire household goods kept in the said flat have been exposed during subsequent inquiries by the revenue authorities and the police. The defendant No.2 is guilty of concealment of material facts, misrepresentations and filing photocopies of false and forged documents with her written statement. The complete chain of events and the facts leading to the fraud played by defendant No.5 and defendant No.2 are that in the year 2008 the plaintiff and her husband Sh. Jai Bhagwan were at Dubai. Through some common friends plaintiff had come in contact with defendant No.5 who was also an NRI at Dubai. Defendant No.5 after obtaining knowledge of the fact that the plaintiff is the owner of Flat No. A-48, 2nd Floor at Gujranwala Co-operative Group Housing Society Ltd, J Block, Vikaspuri, Delhi hatched a conspiracy and expressed his desire to purchase the said flat for a sale consideration of Rs.50,00,000/- (INR Rupees Fifty Lac Only) and promised the plaintiff to pay her the sale consideration at one go by depositing the same in plaintiff's NRI/NRO bank account in India. On the basis of lofty assurances of the defendant No.5 the plaintiff fell prey to his well planned trap. In good faith and

under a bonafide belief that after the execution of the documents she will be paid the entire sale consideration, on 21.08.2008 the plaintiff executed an agreement of sale, General Power of Attorney, Indemnity bond in favour of defendant No.5 at Dubai before Deputy Consular General of India, Dubai. Original of the above documents have been seized by the police during investigation of FIR No.391 of 2011 P.S. Janakpuri, New Delhi. The Copies of the documents were prepared from their originals. Copies of the agreement of sale and GPA dated 21.08.2008 at Dubai are exhibited as Ex-PW-1/27 and Ex-PW-1/28.

18. PW-1 has also deposed that since the defendant No.5 had failed to pay the sale consideration to the plaintiff, the plaintiff cancelled the Agreement of sale & GPA, indemnity bond dated 21.08.2008 vide her communications dated 22.09.2008 and 20.10.2008 which were personally communicated and delivered to him by the plaintiff and were also sent through Fax at Dubai. Later, on 10.03.2009 the plaintiff executed a deed of cancellation of GPA dated 21.08.2008 before the office of Vice Consular General of India at Dubai which fact was also communicated and delivered to defendant No.5 through letter dated 12.03.2009 personally and through fax. The revocation of the GPA dated 21.08.2008 was also notified to General Public vide public notice dated 12.08.2009 in the newspaper Times of India, New Delhi Edition. Original and Duplicate Office copies of letter dated 22.09.2008, 20.10.2008 and 12.03.2009 were duly signed by the Plaintiff at Dubai. Office copies of letters dated 22.09.2008, 20.10.2008 and 12.3.2009 are filed and exhibited as Ex-PW-1/29, Ex- PW-1/30 and Ex-PW-1/31. Original of the cancellation deed dated 10.03.2009 and notice published in newspaper are marked as Ex-PW- 1/32 and Ex-PW-1/33.

19. PW-1 has deposed that the defendant No.5 Moti Gupta on 22.12.2008 falsely claiming himself to be the attorney of the plaintiff, NRI resident of Dubai in terms of the cancelled G.P.A. dated 21.08.2008 executed in his favour at Dubai and alleged to have been authenticated by Collector of Stamps, Delhi on 16.12.2008 appeared before the office of Sub-Registrar- II, Janakpuri, Delhi and got the above-said documents, namely 'Agreement to Sell' & G.P.A. in favour of Defendant No.2 registered with the office of Sub-Registrar-II, Janakpuri, Delhi with Registration No.27303 in book no.1, Volume no. 16575 and a 'GPA' with Registration no. 17583 in Book No. 4, Volume no. 12386 on 22.12.2008.

20. I have heard counsel for the plaintiff and perused the plaint as also the documents which have been placed on record. The plaintiff has been able to establish that the flat was purchased by her from one Shri Mohan Lal on 21.10.1988 for a total sale consideration of Rs.1.60 lacs, supporting documents have been exhibited as Ex.P-2/D2 and PW-1/2 to PW-1/5. Plaintiff has also placed on record copies of the assessment order dated 30.11.2004 and house-tax receipt (Ex.PW-1/6 to PW-1/12). To show the possession plaintiff has also placed on record a copy of her passport and her Voter Card, and her husband's voter card and ration card, Ex.PW- 1/13, Ex.PW-1/14, Ex.PW-1/15 and Ex.PW-1/16, which were prepared at the address mentioned in the suit. The plaintiff has also got a telephone connection installed, the telephone bill has been marked Ex.PW-1/17. Plaintiff has also placed documents on record to show that she was paying maintenance charges to the R.W.A. and certified copies of the receipts are exhibited as Ex.PW-1/18 and Ex.PW-1/19. The plaintiff has also placed documents to show that she has requested the DDA to convert the property from lease-hold to free-hold, Ex.PW-1/20. A legal notice dated 24.8.2009 issued to defendant no.1 seeking no objection from the society

is Ex.PW-1/21. Plaintiff has also established on record that the transaction entered into by her with defendant no.5 was cancelled. Letter from Mr.Mohan lal, supporting the case of the plaintiff has also been placed on record and exhibited as Ex.PW-1/24. It is also the case of the plaintiff that she had lodged an FIR against defendant no.2 and 5 and chargesheet was also filed. The FIR has also been filed on record is marked as Mark-'A'. Plaintiff has also placed on record copies of the letters exhibited as Ex.PW-1/29 to PW-1/31 and public notice showing that the arrangement between the plaintiff and defendant no.5 stood cancelled, which is exhibited as Ex.PW-1/33.

21. The affidavit by way of evidence also gives in detail the systematic fraud sought to be perpetuated by defendant no.5 in connivance with defendant no.2. The evidence of the plaintiff has gone unrebutted. Consequently, the present suit is decreed in favour of the plaintiff and against the defendants. The defendant No.1, society is directed to transfer ownership of the flat bearing No. A-48, Second Floor, J Block situated in Gujranwala C,G.H.S. Ltd, Vikaspuri, New Delhi in favour of the plaintiff and issue a No Objection Certificate as well after all the dues stand cleared. Decree-sheet be drawn up accordingly.

G.S.SISTANI, J MAY 23, 2014 ssn