Sarla Rakheja vs Bimla & Others
2014 Latest Caselaw 4095 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 267/2013
%                                    Date of decision : 2nd September, 2014

       SARLA RAKHEJA                                ..... Plaintiff
                   Through:              Mr.Rajesh Bhatia, Adv.

                          versus

       BIMLA & OTHERS                                ..... Defendant
                    Through:             Mr.Rishi Sarl, Adv. for D-1.
                                         Mr.Sameer Kumar, Adv. for D-2
                                         Mr.Surbat Deb with Ms.Isha Agarwal,
                                         Advs. for D-3.
                                         Mr. Devendra Kumar, Adv. for D-4

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

G.S.SISTANI, J. (Oral)

I.A.No.5722/2014

1. Written statement filed by defendant No.1 is already taken on record.

2. Application stands disposed of.

I.A.12492/2014

3. This is an application filed by the defendant No.2 under Order 39 Rule 4 CPC seeking modification of the order dated 27.3.2014 by which this court had restrained defendants No.1 and 2 from alienating, transferring, disposing of or creating any third party interest in respect of the suit property.

4. Counsel for the applicant seeks vacation of the order passed by the court on 27.3.2014, inter alia on the ground that when the order was passed

defendant / applicant was not served, hence, no opportunity of hearing was granted. Counsel for the plaintiff, however, submits that defendant No.2 was served, however, defendant No.2 had chosen not to appear in the matter. Be that as it may, it is agreed that IA.No.2302/2013 be re- heard along with the application [I.A.12492/2014 (u/O.39 R=4 CPC)].

5. The facts which has given rise to filing of the present suit for declaration, possession and permanent injunction and as set out in the plaint are that the plaintiff purchased the suit property being Flat No.291, Sector 13, Pocket-A, Dwarka, New Delhi from defendant No.1 on 14.3.2012 when the sale deed was signed and executed before the Sub Registrar after all the formalities were completed. Subsequently, an objection was raised before the Sub-Registrar. Resultantly, copy of the sale deed has not been handed over to the plaintiff.

6. Defendant No.2 relies upon a registered agreement to sell dated 15.10.2012 in his favour with respect to the same property. Learned counsel for defendant No.2 also relies on paragraph 13 of the plaint wherein the plaintiff admits the possession of defendant No.2 in the suit property. Counsel for defendant No.2 submits that he has paid the sale consideration to the defendant No.1 and he is in settled possession after the sale transaction was completed and thus the plaintiff is not entitled to any interim relief and no fetters can be put on the rights of defendant no.2, qua property in question.

7. Learned counsel for the plaintiff to the contrary submits that the alleged agreement to sell is a suspicious document as the same was signed on 15.10.2012 even prior to the property was allotted to the defendant no.1. Possession was handed over by the DDA to defendant No.1 on 14.10.2011 and further conveyance deed was executed in favour of defendant No.1 on 1.11.2011. Thus agreement to sell dated 15.10.2010

relied upon by defendant No.2 is null and void. Counsel for the plaintiff submits that he has paid viable consideration of Rs.21,55,000/- to the defendant No.1 by means of a cheque which stands duly encashed by defendant no.1, owner, besides Rs.70,000/- was paid in cash. In contrast the defendant No.2 claims to have paid Rs.20,00,000/- in cash to defendant No.1 and thus the Agreement to Sell relied upon by the defendant no.2 is not enforceable in the eyes of law.

8. I have heard the learned counsel for the parties, considered their rival submissions and perused the documents and pleadings on record. The case of defendant No.2 is that he is the prior purchaser of the suit property having paid the entire sale consideration to defendant No.1 at the time of execution of the agreement to sell dated 15.10.2010. It is not in dispute that all payments were made in cash. In contrast thereto the plaintiff relies on a sale deed executed by defendant No.1 in his favour, which acknowledge payment of Rs.21,55,000/- made by plaintiff by means of a cheque to the defendant no.1. The cheque stands duly encashed. The possibility of defendant No.1 cheating both the plaintiff and defendant No.2 cannot be ruled out at this stage. In case the defendant No.2 is permitted to deal with the property, the subject matter of the present suit may extinguish and thus the present suit may be rendered partly infructuous. Admittedly, defendant No.2 is in settled possession of the suit property and he is enjoying the same, and in contrast plaintiff despite paying the sale consideration is out of the property.

9. While considering an application for grant of injunction, the Court is to consider the three multiple factors which are balance of convenience, irreparable loss and strong prima facie case.

10. Principles laid down for grant of interlocutory injunction have been discussed by the Supreme Court in the case of Hindustan Petroleum

Corpn. Ltd. v. Sriman Narayan & Anr reported at (2002) 5 SCC 760. Relevant paragraphs of the judgment read as under:-

"7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:

(i) whether the plaintiff has a prima facie case;

(ii) whether the balance of convenience is in favour of the plaintiff; and

(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where "the balance of convenience" lies.

9. In Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117 this Court, discussing the principles to be kept in mind in considering the prayer for interlocutory mandatory injunction, observed:

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

11. Taking into consideration that the defendant No.1 has executed a sale deed in favour of the plaintiff would show that the plaintiff has a strong prima facie case. In case the suit property is allowed to be sold, the plaintiff is likely to suffer irreparable loss. Since the defendant no.2 is in possession,

he is enjoying the property, but he cannot be allowed to sell the same as it would also lead to multiplicity of proceedings. Thus to balance the equities the interim order would satisfy the third condition as well i.e. balance of conveyance. In my view the suit property is required to be preserved, till the final adjudication of the case. Accordingly, the defendants no.1 and 2 their family members, representatives, agents, assigns etc. are restrained from alienating, transferring, disposing of or creating any kind of third party interest/right in respect of the suit property being Flat No.291, Sector-13, Pocket-A, Dwarka, New Delhi, till the final adjudication of the case. Needless to say that any observation which is being made is only for the purpose of deciding the present applications [I.A.12492/2014 (u/O.39 R=4 CPC)] & [IA.No.2302/2013 (u/O.39 Rs=1 & 2 CPC] and would not have bearing at the time of final decision of the matter. Accordingly, application [I.A.12492/2014 (u/O.39 R=4 CPC)] is dismissed and the application [IA.No.2302/2013 (u/O.39 Rs=1 & 2 CPC] is allowed.

12. Sub Registrar is directed to deposit the sale deed before the Registrar General of this court. The Registrar General shall keep it in the safe custody.

13. Both the applications [I.A.12492/2014 (u/O.39 R=4 CPC)] & [IA.No.2302/2013 (u/O.39 Rs=1 & 2 CPC] stand disposed of. CS(OS)No.267/2013

14. List the matter before the Joint Registrar on 4.3.2015, the date already fixed.

G.S.SISTANI, J

SEPTEMBER 02, 2014 ns/ssn /pdf