Nina Khanna And Ors vs Narayan Parwal
2015 Latest Caselaw 94 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 367/2012
       NINA KHANNA AND ORS                        ..... Plaintiffs
                    Through: Ms. Sonali Chopra, Advocate.

                          versus

       NARAYAN PARWAL                              ..... Defendant
                   Through: Mr. J.M. Bari, Advocate for defendant.
                            Mr. Anil Sapra, Senior Advocate with
                            Mr. Mridul Yadav and Ms. Rupali
                            Kapur, Advocates for M/s. Unique
                            Buildwell (India) Pvt. Ltd.

%                                  Date of Decision: 08th January, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN
                          JUDGMENT

MANMOHAN, J: (Oral)

I.A. 21849/2014 (condonation of delay) in O.A. 239/2014 Keeping in view the averments in the application, delay in filing the appeal is condoned.

Accordingly, present application stands allowed. O.A. 239/2014

1. Present appeal has been filed challenging the order dated 27th September, 2014 passed by the Joint Registrar dismissing the appellant- defendant's application under Order I Rule 10 CPC for impleadment of M/s. Unique Buildwell (India) Pvt. Ltd. The relevant portion of the impugned order is reproduced hereinbelow:-

"...............Heard. The contention of the proposed defendant and as well as plaintiffs is that plaintiffs were co-owners of the property bearing no.7, Hailey Road, New Delhi measuring the 5454.68 sq. yards as the right was devolved on the plaintiffs due to the presumed death of one--Mr. Arun Khanna to the extent of 9.33%.

It is also the case of the plaintiffs that assignment deed was executed by the defendant inadvertently and therefore, the same has to be declared null and void.

It is also admitted by the plaintiffs that plaintiff have issued the cheques in favour of defendant against which also a declaration is prayed.

The only contention of the defendant is that the plaintiffs have transferred the property in the name of the proposed defendant i.e. M/s. Unique Buildwell India Pvt. Ltd. based on the assignment deed which is sought to be declared null and void. Ld. counsel for defendant refers to Para 12 of the assignment deed and submits that the transfer made by the plaintiffs in the name of the proposed defendant will be directly hit and therefore, the proposed defendant i.e. M/s. Unique Buildwell India Pvt. Ltd. is a necessary party. The entire case facts show that there was a transaction between the plaintiffs and defendant wherein an assignment deed was executed by the defendant in favour of the plaintiffs and plaintiffs issued certain cheques for the payment of the consideration. Admittedly no relief is sought by defendant against the proposed defendant and plaintiff by filing a proper counter claim.

Even in case suit filed by the plaintiffs is dismissed, the rights of the defendant will be only to receive amount of consideration as per the assignment deed dated 29.04.2010 and shall not affect the transfer made in terms of assignment deed nor shall affect the rights of the proposed defendant in the property. M/s Unique Buildwell India Pvt. Ltd. is therefore neither a necessary nor a proper party in the present suit, hence it cannot be dragged into the litigation.

In the above facts and circumstances proposed defendant M/s Unique Buildwell is not considered as a necessary and proper party.

Accordingly, the application is dismissed."

2. The relevant facts of the present case are that the respondents-plaintiffs have filed the present suit challenging the Assignment Deed dated 29th April, 2010 whereby the appellant-defendant had assigned 4.665% share in property No.7, Hailey Road, New Delhi for a consideration of Rs.2 crores. Only Rs. 1 lac has been paid by respondents-plaintiffs to the appellant-defendant till date.

3. In the plaint, it has been averred that the appellant-defendant had no right, title and interest in the property and as a consequence, he could not have transferred any right by way of the impugned Assignment Deed.

4. It is alleged in the plaint that one of the co-owners, Mr. Arun Khanna had been missing for seven years and his 4.665% share in property had devolved upon the respondents-plaintiffs by the law of succession.

5. Mr. J.M. Bari, learned counsel for appellant-defendant submits that if the reliefs sought in the present suit are granted, it would directly hit and affect the Sale Deed dated 23rd January, 2012 executed in favour of the party whose impleadment has been sought as the said Sale Deed would automatically become void.

6. Mr. Bari also points out that appellant-defendant has filed a counter claim wherein he is seeking declaration that the Sale Deed dated 23rd January, 2012 executed by the respondents-plaintiffs in favour of the party whose impleadment has been sought, is void.

7. Mr. Anil Sapra, learned senior counsel for M/s Unique Buildwell (India) Pvt. Ltd. whose impleadment has been sought, states that irrespective of the fact whether the contentions of the respondents-plaintiffs or those of the appellant-defendant are accepted as correct, the same would not affect his right with respect to 4.665% share acquired by Sale Deed dated 23 rd January, 2012 from the respondents-plaintiffs.

8. Mr. Sapra contends that if the 4.665% share has been acquired by the plaintiffs by virtue of the Assignment Deed dated 29th April, 2010, then the defendant is only entitled to the balance consideration of Rs.1,99,00,000/-. In the alternative, he states that if the respondents-plaintiffs have acquired the share by devolution, then also the right of the subsequent purchaser would not be affected.

9. With the assistance of the counsel, this Court has perused the paper book and finds that the appellant-defendant in its written statement has filed a counter claim wherein he has prayed as under:-

"..........It is therefore, most respectfully prayed that this Hon'ble court may be pleased to adjudge and declare that the Sale Deed dated 23.1.2012 executed by the plaintiffs in favour of M/s Unique Buildwell (India) Ltd. having the Registration No.1215 in Additional Book No.I Volume No.4274 on pages 55 to 68 on 23.1.2012 registered in the office of Sub-Registrar VII, New Delhi, is void to the extent of 4.665% share in the property No.7, Hailey Road, New Delhi and order it to be delivered up and cancelled; and send a copy of the decree to the Sub-Registrar VII, New Delhi so that the said Sub-Registrar VII shall note the fact of its cancellation on the copy of said Sale Deed dated 23.1.2012 contained in his books."

10. The relevant portion of Order VIII Rule 6A CPC which deals with counter claim by defendant is reproduced hereinbelow:-

" 6A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set-up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not........."

11. Consequently, the appellant-defendant's counter claim can only be against the respondents-plaintiffs and against no other person.

12. In fact, this issue is no longer res integra. A coordinate Bench of this Court in Gastech Process Engineering (India) Pvt. Ltd. vs. Saipem, (2009) 159 DLT 756 has held as under:-

"10. What has to be adjudicated is whether the legislature in adding Rule 6A to 6G aforesaid to the CPC by the amendment of the year 1976 intended the counter claim to be anything different than as ordinarily understood as aforesaid. On a reading of the aforesaid rules I am unable to hold that the legislature had intended to allow a counter claim to be made against persons other than the plaintiff also and who had not made any claim against the counter claimant.

11. Rule 6A(i) provides for counter claim of "right or claim ....................against the plaintiff". Thus the reference is to the cause of action against the plaintiff only and not to the cause of action if any against persons other than the plaintiff. The senior counsel for the plaintiff has also drawn attention of Rule 6 A (3) where the right of filing written statement to the counter claim has been given to the plaintiff only and not to any other person and correctly contended that it follows therefrom that counter claim cannot be against any person other than the plaintiff.

xxx xxx xxx

15. This Court on an interpretation of the aforesaid rules thus is of the opinion that the counter claim is maintainable against the plaintiff only and cannot be treated as a counter claim if including a claim against persons other than the plaintiff."

13. This Court is also in agreement with the decision of the Joint Registrar that the present suit is an inter se fight between the respondents-plaintiffs and appellant-defendant regarding validity of the assignment deed on the ground of fraud. If the assignment deed is held to be valid, then the respondents-plaintiffs

will have to pay to the defendant the balance consideration.

14. Since it is the respondents-plaintiffs case that they are the owner of 4.665% share by devolution and no substantive suit has been filed by the respondents-plaintiffs, this Court is of the view that there is no occasion to allow the impleadment application.

15. Accordingly, the appeal being bereft of merits, is dismissed. Further, as the counter claim against M/s Unique Buildwell (India) Pvt. Ltd. is untenable in law, the same is also dismissed.

I.As. No.3415/2013 & 7008/2014 in CS(OS) 367/2012 As these I.As. have already been disposed of by the Joint Registrar on 27th September, 2014, the same need not be shown in the cause list. I.As. 2836/2012 in CS(OS) 367/2012 Learned counsel for plaintiff-applicant does not wish to press the present application.

Accordingly, the same is dismissed as withdrawn. I.A. 8290/2013 in CS(OS) 367/2012 At joint request, list on 16th April, 2015.

MANMOHAN, J JANUARY 08, 2015 js