Delhi High Court

Sunil Gupta vs Vijay Sharma on 24 November, 2014

Author: G.P. Mittal

     *       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Pronounced on: 24th November, 2014

+        CS (OS) 118/ 2011

         SUNIL GUPTA                                                                   ..... Plaintiff

                                  Through:         Mr. Bhuvanesh Sehgal, Adv. with
                                                   Mr. Anubhav Bhasin, Adv.

                                  versus

         VIJAY SHARMA                                                                 ..... Defendant

                                  Through:         Mr. Manish Miglani, Adv. for Third
                                                   Party Objector.

+        EX. P. 240/ 2013

         HARJINDER PAL SINGH                                                ..... Decree Holder

                                  Through:         Mr. Rajat Aneja, Adv. with
                                                   Ms. Rashmi Verma, Adv.

                                  versus

         VIJAY SHARMA                                               ..... Judgment Debtor

                                  Through:         Mr. Manish Miglani, Adv. for Third
                                                   Party Objector.

%
         CORAM:
         HON'BLE MR. JUSTICE G.P. MITTAL

IA No. 5652/ 2014 (O. XXI Rules 59, 91 & 92 CPC) in CS (OS) No. 118/
2011
IA No. 6423/ 2014 (Objections) in CS (OS) No. 118/ 2011, and
EA (OS) No. 288/ 2014 (Objections) in Ex. P. 240/ 2013
IA No. 5652/ 2014 in CS (OS) No. 118/ 2011 and EA No. 288/ 2014 in Ex .P. 240/ 2013      Page 1 of 15
 1.

The three applications in the above stated suit and Execution Petition

are taken up for disposal together as a common question of law and

fact is involved in all the three applications moved by the applicant/

objector.

2. CS (OS) No. 171/2010 titled Harjinder Pal Singh vs. Vijay Sharma,

which led to the filing of the Execution Petition No. 240/ 2013 as the

suit for specific performance of the contract dated 29.05.2009 in

respect of sale of lower ground floor of property no. S-381, Greater

Kailash Part-1, New Delhi, was decreed in favour of the decree holder

and against the judgment debtor Vijay Sharma on 27.08.2013.

3. EA (OS) No. 288/ 2014 (under Order XXI Rule 58 CPC) has been

filed by the applicant/objector (his name is not known as the name has

not been disclosed either in the title of the objections or at the end of

the objection while putting signatures through the Power of Attorney

Vineet Narang or anywhere else in the body of the objection) with the

plea that the objector came to know from the website of this Court that

a decree in respect of the suit property purchased by the objector from

the judgment debtor has already been passed in favour of the decree

holder on 27.08.2013 and the decree holder has taken steps for

execution of the decree. According to the objector, on 16.04.2009, the

judgment debtor had agreed to sell the property, subject matter of the

execution and had accepted a token money of ` 11,000/-. The suit

property, as described earlier, was to be sold for a total consideration

of ` 25,16,000/-. A sum of ` 15 lacs was paid at the time of executing

the second Agreement to Sell dated 06.07.2009 and the balance sum

of ` 10,16,000/- was to be paid at the time of execution of the Sale

Deed. It is averred that the Agreement to Sell dated 06.07.2009 was

lying under objections with the Sub-Registrar V, New Delhi and the

same could be registered and delivered to the objector only on

18.05.2010. In the meanwhile, on 19.11.2009, the judgment debtor

had approached the objector for release of additional funds and

consequently, another sum of ` 9,16,000/- in cash towards balance

sale consideration was paid on 19.11.2009 and actual and physical

possession of the suit property (except one small room and one toilet)

was delivered to the objector at that time. According to the objections,

it was agreed between the parties, that is objector and the judgment

debtor that the Sale Deed would be executed by the judgment debtor

in favour of the objector soon after the registration of the Agreement

to Sell dated 06.07.2009.

4. It is urged that the judgment debtor is under the legal obligation to

complete the sale transaction and the decree holder who claimed

specific performance on the basis of some Agreement to Sell dated

29.05.2009 cannot have precedence over the right of the objector.

Thus, sum and substance of the objections is that the decree as passed

against the judgment debtor cannot be executed against the objector.

5. The photocopies of the Agreement dated 16.04.2009 through which

sum of ` 11,000/- in cash was allegedly paid by the objector to the

judgment debtor, photocopies of the Agreement purported to be dated

06.07.2009 registered on 15.05.2010, photocopies of the receipt dated

06.07.2009 for ` 15 lacs, photocopies of the possession letter dated

06.07.2009 and subsequent Agreement to Sell and receipt dated

19.11.2009 have been placed on record by the objector.

6. The objections have been opposed by the decree holder by way of

filing a written reply. In the reply, it has been stated that filing of the

objections in the Execution Petition tantamounts to a bold fraud

committed upon this Court. The judgment debtor had in fact entered

into an Agreement to Sell and Purchase dated 29.05.2009. A sale

consideration of ` 34 lacs has already been paid to the judgment

debtor/Defendant in the suit and the balance sale consideration of `

2,00,000/- has also been deposited with the Registrar General of this

Court. Directions have been issued to the judgment debtor to execute

the Sale Deed, failing which the official of the High Court is to

execute the Sale Deed on behalf of the judgment debtor. It is urged

that the judgment debtor and the objector are in collusion and the

alleged Agreement to Sell and Receipt etc. propounded by the objector

are forged by them in collusion with each other so much so that

although a sum of ` 11,000/- is stated to have been taken as a token

money by Agreement to Sell dated 16.04.2009, but neither this token

money and the Agreement dated 16.04.2009 is referred to in the

alleged Agreement to Sell dated 06.07.2009 nor the adjustment of `

11,000/- allegedly paid has been made. It is urged that the title to the

immoveable property can be claimed only under a registered Sale

Deed and by no other document. Reliance is placed on Suraj Lamps &

Industries Pvt. Ltd. v. State of Haryana, SLP (C) No. 1397/ 2009.

7. Similar pleas have been taken in IA No. 5652/ 2014 (objections under

Order XXI Rule 59 CPC) and IA No. 6423/ 2014 preferred for

restoration of the physical possession of the suit property to the

objector in CS (OS) No. 118/ 2011.

8. The learned counsel for the objector has relied upon the list of dates

and events placed on record by the objector along with IA

No.5652/2014. It would be apposite to extract the dates and events as

relied upon by the objector as that would be helpful to understand the

case set up by the objector and the plea taken in reply by the decree

holder and Petitioner in Execution Petition No. 240/ 2013 and CS

(OS) No. 118/ 2011. The same is extracted hereunder:-

Dates Events 16.04.2009 Agreement for Token Money dated 16.04.2009, executed between the parties, in respect of the suit property.

06.07.2009 Agreement to Sell dated 06.07.2009, executed by Defendant in favour of the Applicants/objectors. 19.11.2009 Agreement dated 19.11.2009, executed between the parties.

18.05.2010 Agreement to Sell dated 16.07.2009, executed by Defendant in favour of the Applicants/objectors, was registered in the office of the Sub-Registrar V, Delhi on 18.05.2010.

20.05.2010 The Applicants/objectors received the Agreement to Sell dated 06.07.2009 from the office of Sub Registrar, after its registration on 18.05.2010.

20.05.2010 The Applicants/objectors verbally requested the onwards Defendant on a number of occasions to execute Sale Deed in their favour, but the Defendant did not do so. 29.09.2011 An application under Order 1 Rule 10 of CPC (IA No.18038/2011) filed by applicants/objectors. 17.10.2012 The above application was dismissed by this Hon'ble Court.

04.03.2013 Legal Notice dated 04.03.2013 sent by the Applicants/objectors' counsel to Defendant and the Defendant has not responded to the same.

14.05.2013 Suit for specific performance of the contract filed before this Hon'ble Court CS (OS) No.1276/2013. 20.01.2014 An application for removal of attachment has been filed by the applicants/objectors in Ex. Petition No.240/2013 - in the matter of - Harjinder Pal Singh v. Vijay Sharma. The same application is pending for

adjudication.

16.03.2014 The applicants/objectors visited their property at S-

381 (admeasuring 200 sq.yds.), Greater Kailash Part 1, New Delhi came to know about the proposed sale/auction of the property in question on 24.03.2014 from Sale Proclamation/Notice affixed on the property.

20.03.2014 The present application/objection has been filed by the applicants/objectors with this Hon'ble Court.

9. Before appreciating the respective contentions raised by the parties, it

is very intriguing to note and which speaks volume about collusion

and inappropriate behaviour on the part of one Mr. Naveen Pushkarna,

Advocate, who appeared on behalf of the Defendant/ judgment debtor

Vijay Sharma and at the same time represented the objector (the name

of the objector has not been disclosed at some places, it is stated to be

one Mr. Ranjeet Singh Manhas and another and the objections have

been filed through one Mr. Vineet Narang, General Power of Attorney

holder).

10. A perusal of the CS (OS) No. 118/ 2011 reveals that Mr. Naveen

Pushkarna, Advocate appeared on behalf of the Defendant in CS (OS)

No. 118/ 2011 on 17.02.2011 (before the Court) and on 30.03.2011

(before the Joint Registrar) but some proxy counsel appeared on

26.07.2011 (before the Court) and the right to file written statement by

the Defendant was closed by the Court and the case was posted for ex-

parte evidence. A vakalatnama executed by Defendant Vijay Sharma

in favour of Mr. Naveen Pushkarna, Advocate on 16.02.2011 has also

been filed in the case.

11. A perusal of the court record reveals that Mr. Naveen Pushkarna,

Advocate also appeared on behalf of the objector in IA No. 5652/

2014 and IA No. 6423/ 2014. It is not that Mr. Naveen Pushkarna,

Advocate had appeared on behalf of Mr. Vijay Sharma only in CS

(OS) No. 118/ 2011 and then subsequently on behalf of the objector,

rather he appeared on behalf of Defendant Vijay Sharma in CS (OS)

No. 171/ 2010 (which was ultimately decreed and Execution Petition

No. 240/ 2013 is now pending in respect thereof) on 30.03.2011 as

well. In this case also, subsequently, he absented himself and the

written statement having not been filed by Mr. Naveen Pushkarna,

Advocate in time, an application under Order VIII Rule 1 CPC was

dismissed by the Joint Registrar by an order dated 14.09.2011.

Subsequently, a decree was passed by an order dated 27.08.2013. Not

only that, Mr. Naveen Pushkarna, Advocate had appeared on behalf of

the objector, as stated earlier in the Court, he had even issued a notice

dated 04.03.2013 on behalf of the objector (purported to be Mr.

Ranjeet Singh Manhas) to his earlier client the Defendant/ judgment

debtor Vijay Sharma. This reflects adversely not only on the part of

Vijay Sharma and the so-called objector Mr. Ranjeet Singh Manhas

through his General Power of Attorney holder, but also shows that

some members of the Bar have stooped too low for the reasons best

known to them. This is only one part which clearly demonstrates

collusion between Vijay Sharma and the objector. Mr. Naveen

Pushkarna, Advocate is a responsible member of the Bar and being an

Advocate appearing as an officer of the Court to assist the Court,

ought to have ensured that he does not act on the part of the opposite

parties at least in the same lis.

12. Now, I shall turn to the various Agreements to Sell relied upon by the

objectors. The first one is the Agreements for token money. It may be

mentioned that none of the original Agreements to Sell was placed on

record in either of the two cases. No leave was sought from the Court

to place the original at any subsequent stage although EA (OS) No.

288/ 2014 in Execution Petition No. 240/ 2013 was filed way back in

January, 2014 and IA No. 5652/ 2014 was filed in March, 2014. In

any case, still this Court is under obligation to examine even the

photocopies, whatever worth they may have.

13. Agreement for token money is alleged to have been entered into

between the objector and Vijay Sharma on 16.04.2009. A token

money of ` 11,000/- was paid. Sale consideration was not settled but it

was stated that the parties will execute a proper Agreement to Sell. It

will be necessary to extract the relevant paragraph of the Agreement

for token money dated 16.04.2009 hereunder:-

"That the Second Party has paid a token amount of ` 11,000/- (Rupees Eleven Thousand only) to the First Party, towards purchase of the said property and the First Party has accepted the said amount. The Parties have agreed to negotiate and finalize the terms/conditions for sale & purchase of the said property in the near future and after finalization of the same, the parties shall execute a proper Agreement to Sell or Sale Deed, in respect of the said property. In case, the parties are not able to negotiate the terms & conditions for sale, within a maximum period of three months from the date, the above token amount shall be returned back by the First Party to the Second Party, otherwise the said token amount shall be adjusted at the time of execution of the sale deed in respect of the property."

14. Thereafter, another Agreement to Sell alleged to be dated 06.07.2009

was entered into between Vijay Sharma and Mr. Ranjeet Singh

Manhas, the alleged objector. The total consideration as mentioned in

this Agreement was ` 25,16,000/-. The amount of ` 15,00,000/- was

paid towards part consideration and the balance amount of `

10,16,000/- was settled to be paid at the time of execution of the Sale

Deed. Curiously enough, in this agreement, there is absolutely no

mention of the earlier agreement for token money dated 16.04.2009

nor the adjustment of ` 11,000/- is sought by the purchaser, that is, the

objector herein. At this juncture, I would also like to extract the details

of the payment allegedly made of ` 15,00,000/- in para 1 of the

Agreement to Sell dated 06.07.2009. It reads as under:-

"1. That the entire consideration amount as per the market value of ` 25,16,000/- (Rupees Twenty Five lac Sixteen Thousand Only) of the above said property is fixed between the parties as mentioned above, out of which the first party has received a sum of ` 15,00,000/- (Rupees Fifteen lac only), from the second party and the detail of the received amount is given below:-

(a) ` 5,00,000/- (Rupees Five Lac only), vide cheque/pay order No.980141, dated 03.07.09, drawn on Syndicate Bank, Branch Vikas Puri, New Delhi-110018.

(b) ` 3,00,000/- (Rupees Three lac only), vide cheque/pay order no.261046, dated 20.07.2009, drawn on Syndicate Bank, Branch Vikas Puri, New Delhi-110018.

(c) ` 2,00,000/- (Rupees Two lac only), vide cheque/pay order no. 361245, dated 02.07.2009, drawn on Syndicate Bank, Branch Vikas Puri, New Delhi-110018.

(d) ` 5,00,000/- (Rupees Five lac only) by cash."

15. During the course of hearing, a query was put to the learned counsel

for the objector as to how the payments were made. It was stated that

the payments were made by cheques. However, the learned counsel

for the objector was unable to answer the query as to when the

cheques were encashed. Probably, he did not have the means to

answer the query as it has not even been pleaded in the objections as

to how the payments were made and if the payments were made by

cheques, then when the cheques were encashed. Because it is very

easy to put a specific date on the cheque, unless the date of

encashment of the cheque is pleaded, it is difficult to say as to when

the payment was actually made, particularly, when fraud and collusion

is alleged by a party to the litigation.

16. Now, adverting to the details of payment extracted above, it may be

mentioned that the payment is pleaded vide cheques/pay orders. The

option of cheques/pay orders has not been limited by striking out one

of the modes, so it is unknown whether the payment was made by pay

orders or by cheques.

17. There is a possession letter dated 06.07.2009 which refers to the

payment of ` 15,00,000/-. The third Agreement is alleged to be an

Agreement dated 19.11.2009. Through this Agreement and receipt of

even date, a sum of ` 9,16,000/- was paid in cash to Vijay Sharma and

balance of ` 1,00,000/- was undertaken to be paid at the time of

execution of the Sale Deed. Again, the possession letter dated

06.07.2009 and the Agreement dated 19.11.2009 are contrary to each

other with regard to delivery of possession. By virtue of possession

letter dated 06.07.2009, the objector allegedly handed over the

possession of the property purported to be sold (except one room and

one servant room). The recital in Clause 2 of the so-called Agreement

dated 19.11.2009 reveals that after receiving a sum of ` 9,16,000/- the

possession of the property (except one small room and one toilet) had

been handed over to the objector. Clause 1 and Clause 2 of the

Agreement dated 19.11.2009 are extracted hereunder:-

" 1. That the Second Party has agreed and made payment of an additional sum of ` 9,16,000/- (Rupees Nine Lacs and Sixteen Thousand only), in cash to the First Party, towards the cost of the property and the First Party hereby acknowledges receipt of the said amount. Hence, now the First Party has since received a total sum of ` 24,16,000/- (Rupees Twenty Four Lacs and Sixteen Thousand only) from the Second Party and the balance amount of ` 1,00,000/- shall be paid at the time of execution of the sale deed.

2. That after receiving the above mentioned additional amount, the First Party has handed over a vacant peaceful actual physical possession of the entire premises (except one small room and one toilet) to the Second Party. The actual physical possession of the said one small room and one toilet shall be handed over by the First Party to the Second Party at the time of execution of the sale deed."

18. Thus, all the three Agreements become suspicious. On top of this, the

Agreement dated 06.07.2009 reveals that it was registered with the

Sub-Registrar only on 15.05.2010. By this time, as per the third

Agreement dated 19.11.2009, another sum of ` 9,16,000/- had already

been paid by the objector to Vijay Sharma. Obviously, this amount of

` 9,16,000/- does not find any mention in the Agreement dated

06.07.2009 which was registered on 15.05.2010.

19. Moreover, there was just a balance amount of ` 1,00,000/- left to be

paid on 19.11.2009. There is absolutely no averment as to why the

balance amount of ` 1,00,000/- was not paid immediately and the Sale

Deed/ Conveyance Deed executed at that very time. The documents

presented by the objector are not only suspicious but smack of