Delhi High Court

Suman Arora vs Asha Dhingra & Anr on 8 April, 2015

$~A-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CS(OS) 1221/2012
                               Date of decision: 08.04.2015

        SUMAN ARORA                                     ..... Plaintiff
                  Through:              Mr. Jugal Wadhwa, Advocate
                  versus
    ASHA DHINGRA & ANR                       ..... Defendants
                  Through: Mr. Rajiv Duggal, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present suit is filed for declaration, permanent injunction and mandatory injunction. The bone of contention is an unregistered sale deed executed by the plaintiff in favour of defendant No.1 dated 03.02.2010. The plaintiff is said to be the absolute owner of 48% undivided portion of the suit property being ground floor front portion of the property bearing No. J- 167, Rajouri Garden, New Delhi.

2. It is averred that defendants approached the plaintiff/plaintiff's husband for purchase of the said property for the consideration of Rs.35 lacs.

3. It is stated that on finalisation of the transaction defendant No.2 came to the plaintiff's house only with the sale deed and stated that the consideration would be paid and documents be signed in the meantime. Later on it was found that the consideration mentioned in the sale deed was Rs.7,75,000/- and an advance of Rs.75,000/- in cash was shown to have been paid by defendant No.2 to the plaintiff. In this background it is stated

that as the consideration was too low the plaintiff did not go to the Office of Sub Registrar to get the sale deed registered.

4. As the plaintiff showed an apprehension of the misuse of said sale deed, the defendants are alleged to have torn off the said sale deed. It is further stated that later on the plaintiff realised that the sale deed which was torn off was only the coloured copy of the deed and thereafter the defendants have made a complaint to the police wherein it is stated that a sum of Rs.75,000/- in cash has been paid by defendant No.1 through her husband to the plaintiff and her husband in the first week of January, 2010 and both of them have handed over the keys of the property to the defendants. It is further averred that the defendants are trying to take illegal advantage of the said draft sale deed as defendant No.2 has threatened the plaintiff's husband that the defendants will soon alienate and transfer the plaintiff's 48% share in the suit property to a third party. It is further averred that defendants with their dishonest intentions have filed false complaint against the plaintiff after two years from the alleged transaction. Hence the present suit has been filed seeking declaration declaring that the alleged draft sale deed dated 03.02.2010 is null and void and other reliefs of declaration and permanent injunction are also sought.

5. Learned counsel appearing for the plaintiff has vehemently argued that no payment has been received by the plaintiff whatsoever.

6. The suit is fixed for framing of issues.

7. However, learned counsel appearing for the defendants has vehemently argued that the suit is not maintainable and this being a question of law the court should reject the suit out-rightly before framing issues. He firstly has placed his reliance on Section 31 of the Specific

Relief Act which provides for cancellation of instrument. He states that one of the essential ingredients of Section 31 is that there should be a reasonable apprehension that such an instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void and voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. He submits that bare reading of the averments of the plaint shows that no serious apprehension is factually averred. Merely stating that the plaintiff apprehends injury is not sufficient as no factual details of the threatened injury has been mentioned. He further submits that as far as the declaration sought by the plaintiff is concerned, the sale deed is an unregistered document which confers no right or title to the suit property. There is no dispute that the plaintiff as of now is the owner of the suit property. In fact he points out that a suit for specific performance of the agreement that has entered into with the plaintiff has been filed by the defendants which is pending in the District Court. Hence, he submits that there is no dispute that title of the plaintiff to the suit property subsists. On this ground, he submits that the present suit is not maintainable and it is a fit case to reject the suit out-rightly at the preliminary stage itself.

8. Section 31 of the Specific Relief Act reads as follows:-

"When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable , and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument

has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."

9. Merely because an instrument is not legally binding cannot be ground to deny relief under the above provision to the plaintiff. Reference may be had to the judgment of the Allahabad High Court in 'Hamid and Ors. vs. Kanhaiya' 2005 1 AWC738All : MANU/UP/2331/2004 the Court held as follows:-

"47. In Batasar v. Udai Narain Upadhyaya, 1991 RD 90, the scope of Section 331 was considered along with Section 31 of the Specific Relief Act. This Court held:

It is for the Plaintiff to decide whether for better protection of his interest he would prefer to have an instrument in writing void against him cancelled or to ignore it and proceed to seek other relief to secure his interest. I do not think under the scheme of Section 31, Specific Relief Act a Court would be justified in the exercise of its discretion to refuse the relief to a Plaintiff merely for the reason that the instrument in writing sought to be cancelled being void against the Plaintiff could always be ignored in the eye of law and a decree for its cancellation was not necessary if that were so then the right conferred by Section 31 to have an instrument in writing void against the Plaintiff cancelled will be rendered nugatory and illusory.

... To my mind, the object of the cancellation of an instrument in writing under Section 31, Specific Relief Act will always be to remove the cloud on the title of the Plaintiff inasmuch as by the cancellation of the instrument the right and interest of the Plaintiff in such property would become secure. Since the object of cancellation of a sale deed in respect of agricultural holding is for securing of his rights and interests by the Plaintiff in that land, then to say any plaint presented before the civil court based on a cause of action on which relief for cancellation could be obtained is a facade or camouflage, would amount to

defeating the right of a Plaintiff conferred under Section 31, Specific Relief Act to obtain the equitable relief of cancellation...."

10. The first issue that is to be seen is whether the plaint discloses any apprehension of a serious injury that may be caused to the plaintiff.

11. A perusal of the plaint shows that there are two factors on the basis of which the suit is said to have been filed. The first apprehension of the plaintiff is that based on the draft of the said deed the defendants may attempt to sell the suit property claiming themselves to be owner of the suit property. The second apprehension is that the defendants are misusing the deed by filing frivolous complaints against the plaintiff in the police station and elsewhere. Some private complaints have also been filed.

12. It may be noted that as far as the relief in the suit, seeking declaration of title is concerned, the same may be redundant in view of the submissions of the learned counsel for the defendants that an unregistered sale deed confers no right or title in the suit property. However, in my opinion the plaintiff would have pleaded sufficient reasons about their apprehensions of a serious injury and have to be given an opportunity to prove in trial that there are sufficient apprehension of serious injuries that may be caused to the plaintiff.

13. The foundations of the apprehension are laid down in para 16 & 17 of the plaint. Relevant portion of the paras reads as follows:

"16. That the Defendants are trying to take illegal advantage of the alleged illegal draft Sale Deed as in the police station, the defendant no.2 threatened the plaintiff's husband that the defendants will soon alienate and transfer the plaintiff's 48% share in the suit property, to a third party on the basis of said document in their possession, and take the forcible possession.

17. That it is also evident that the defendants to further their dishonest intentions, have filed a false complaint against the plaintiff after two years from the alleged transaction. Had there been any truth in their allegations, the defendants would have taken immediate steps, and would not have been sitting idle for two years and the alleged false complaint filed by the defendants is nothing but another of their vicious attempts to pressurize the plaintiff and her husband with mala-fide intention to grab the hard earned property of the plaintiff."

14. I now proceed to draft the issues. Following issues are framed:-

ISSUES

(i) Whether these proposed deed dated 03.02.2010 said to be executed by the plaintiff is null and void? OPP

(ii) Whether the plaintiff is entitled to decree of declaration declaring the said deed dated 03.02.2010 as null and void and liable to be cancelled? OPP