Delhi High Court
Rakesh Chhabra vs Ansul Arya & Ors on 19 March, 2015
$~7
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS) 148/2014, CM Nos.18218-19/2014, 18223/2014
& 5159/2015
% Date of decision: 19th March, 2015
RAKESH CHHABRA ..... Appellant
Through : Mr. Sanjeev Sindhwani, Sr.
Adv. with Mr. Manoj Kumar
Sahu, Adv.
versus
ANSUL ARYA & ORS ..... Respondents
Through : Mr. Virendra Choudhary and
Mr. Anand Verdhan
Maitraya, Advs. for R-1.
Mr. Rajiv Vig, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S.TEJI
GITA MITTAL, J. (Oral)
1. Learned counsel for the parties submit that the record of
CS(OS)No.411/2013 as is necessary for the effective adjudication
of the present appeal has been filed by the appellant. We have
been carefully taken through the record and perused the impugned
judgment dated 21st July, 2014 passed by the learned Single Judge.
Learned senior counsel for the appellant and learned counsels for
the respondents have been heard at length.
2. Respondent no.1 Anshul Arya (as plaintiff) had originally
filed suit bearing CS(OS)No.411/2013 against defendant no.1
Rakesh Chhabra (appellant herein) and defendant no.2 Mohinder
Kumar (respondent no.2 herein), who was the owner of Flat No.42,
3rd Floor, Antariksha Apartment, Vikas Puri, New Delhi-110018.
It appears that Rakesh Chhabra (the appellant herein), who was a
tenant in the property and had been earlier claiming under
agreement to sell with Mohinder Kumar, unsuccessfully filed a suit
for specific performance. The suit by Rakesh Chhabra as on date
stands dismissed on the finding that the appellant was unable to
establish readiness and willingness to perform his part of the
contract. The appeal against the dismissal of the suit happens to be
pending in this court. We are informed by learned counsel
appearing for respondent no.1 herein that interim stay in the appeal
has been declined to the appellant herein for the reason that he is
claiming under an unregistered agreement to sell. Be that as it
may, for the purposes of adjudication of the present appeal, it is not
necessary for us to deliberate on this litigation between Rakesh
Chhabra and Mohinder Kumar, the recorded owner of Flat No.42,
3rd Floor, Antariksha Apartment, Vikas Puri, New Delhi-110018
any further.
3. So far as the suit out of which the present appeal arises is
concerned, Anshul Arya claiming under a registered agreement to
sell as well as general power of attorney both dated 1st April, 2008
executed by Mohinder Kumar in his favour, filed the suit for
declaration, recovery of possession, damages for illegal occupation,
mesne profits and permanent injunction initially against Rakesh
Chhabra (appellant herein) and Mohinder Kumar, the recorded
owner of the said property. Subsequently, the plaintiff was
permitted to amend the plaint to implead the Antariksha Co-
operative Group Housing Society as defendant no.3. The plaintiff
sought the following prayers in the amended plaint:
"(a) Pass a decree of declaration in favour of the
Plaintiff and against Defendant No.1 thereby declaring
that the Plaintiff is the absolute purchaser of the suit
property i.e. Flat No.42, 3rd floor, Antariksha
Apartment, Vikas Puri, New Delhi-110018 by virtue of
duly Registered „Agreement to sell and registered
General Power of Attorney‟ dated 01.04.2008;
(b) Pass a decree of recovery of possession in favour
of the plaintiff and against the defendant no. 1 thereby
directing the defendant no. 1 to handover the peaceful
and vacant possession of the suit property i.e. Flat No.
42, 3rd Floor, Antariksha Apartment, Vikas Puri, New
Delhi-110018 to the plaintiff (specifically shown in the
site plan annexed herewith);
(c) pass a decree of Rs.5,40,000/- (Rupees five lacs
forty thousand onlyl) alongwith interest 2 18% per
annum w.e.f. 15.02.2010 till date of payment for
damages for illegal occupancy/mesne profits in favour
of the plaintiff and against the defendant no.1
(d) pass a decree of penalty @ Rs.2000/- per day
w.e.f. 15.02.2013 till the actual vacation/handing over
possession of the suit property in favour of the plaintiff
and against the defendant no.1.
(e) allow the costs of the suit in favour of the plaintiff
and against the defendant no.1.
(f) pass a decree of permanent injunction in favour of
the plaintiff and against the defendant thereby
restraining the defendant no. 1, his associates, agents,
servants and any person acting and representing on
behalf of the defendant no. 1 from selling, alienating or
crating third party interest in the suit property i.e. Flat
No. 42, 3rd floor, Antariksha Apartment, Vikas Puri,
New Dlehi-110018;
(ff) pass a decree of mandatory injunction in favour of
the plaintiff and against the defendant no. 3 thereby
directing the defendant no. 3 to issue necessary NOC in
respect of suit property in favour of the plaintiff."
4. It appears that despite service, Rakesh Chhabra (appellant
herein) failed to file written statement in accordance with law and
his right to do so was closed on 30th May, 2014. For the reason
that no further steps were taken by Rakesh Chhabra as well as the
fact that Mohinder Kumar admitted the plaintiff‟s case, the court
proceeded to judgment on the 21st of July 2014 and decreed the suit
in favour of the plaintiff (respondent no.1 herein) against the
present appellant in terms of the prayers.
5. It is noteworthy that so far as prayer for mesne profits was
concerned, it is recorded that the appellant herein was in
occupation of the suit property at a monthly rent of `6,500/- on 13th
September, 2006 when the agreement to sell was executed between
Mohinder Kumar and Rakesh Chhabra. We find that the learned
Single Judge has also noted that the legal notice was issued to the
appellant herein on the 1st of April 2008 wherein entitlement to
mesne profits at the rate of last paid rent i.e. `6,500/- per month
with increase of 15% on the increased amount every year had been
sought. The court consequently decreed the mesne profits at this
rate. Before us, the appellant has challenged and prayed for setting
aside of the judgment dated 21st July, 2014 and prayed for grant of
an opportunity to file written statement in the suit. It is urged that
given the nature of the prayers in the suit and the claim of the
respondent no.1 herein which was premised on agreement to sell,
albeit registered, the learned Single Judge was first required to
consider the prayer of the respondent no.1 herein for the
declaration that he was the absolute owner of the suit property. It
is contended by Mr. Sanjeev Sindhwani, learned senior counsel for
the appellant that so far as the decree for possession as well as
mesne profits in favour of Anshul Arya (respondent no.1 herein) is
concerned, it was consequential upon the learned Single Judge first
returning a finding that the respondent no.1 was the owner of the
suit property and hence entitled to these consequential reliefs.
Learned senior counsel would challenge the decree dated 21 st July,
2014 for the reason that there is no such finding therein.
6. It is also submitted that reliance by respondent no.1/plaintiff
was on an agreement to sell and consequently on the face of the
claim made by the plaintiff, the relief of possession and mesne
profits could not have been decreed in favour of the respondent
no.1, even if the appellant had failed to file written statement or to
contest the suit.
7. It is also contended that without making a prayer for specific
performance against Mohinder Kumar (impleaded as defendant
no.1), the relief of declaration was barred by virtue of the proviso
to Section 34 of the Specific Relief Act, 1963. Mr. Sindhwani,
learned senior counsel has also contested the maintainability of the
suit on several grounds including the ground that mere purchaser
under agreement to sell cannot seek possession of the property
from even a lawful tenant.
8. Learned senior counsel for the appellant has also drawn our
attention to the explanation given by the appellant for not having
filed the written statement and the circumstances in which he was
prevented from taking steps with regard to his defence which
resulted in the passing of the judgment on 21st July, 2014.
9. Mr. Virendra Chaudhary, counsel appearing for respondent
no.1 has vehemently contested the present appeal. It is urged that
given the admission by Mohinder Kumar of the case of respondent
no.1, no prayer for specific performance was necessary in the facts
and circumstances of this case. It is also urged that the appellant
herein is wrongfully occupying the suit property without paying a
single penny since August, 2006 and that there are no equities in
his favour. Learned counsel has also submitted that the failure to
file a written statement was sheer negligence and that the appellant
has, with malafide, deliberately awaited for passing the judgment
in favour of respondent no.1, before seeking leave to file a written
statement. The submission is that in the facts and circumstances of
this case, the judgment and decree dated 21 st July, 2014 cannot be
faulted and the appeal against the same must be dismissed.
10. We have given our thoughtful consideration to the records
placed before us as well as the rival contentions. We find that in
para 7 of the impugned judgment dated 21 st July, 2014, while
narrating the facts giving rise to the suit, the learned Single Judge
has noted that the respondent no.1 Anshul Arya had purchased the
suit property from the "erstwhile" owner Mohinder Kumar on 1st
April, 2008 vide "registered sale deed" which stood registered in
accordance with law. The same factual narration is repeated at the
end of the consideration of the case. It therefore, appears that the
learned Single Judge has been pleased to decree the suit as prayed
for on the erroneous impression that the title of the property had
passed in accordance with law from Mohinder Kumar, who was an
admitted owner of the property, to Anshul Arya by execution of the
documents registered in accordance with law. It is not disputed
before us that the plaintiff Anshul Arya was relying on the
registered agreement to sell dated 1st April, 2008. It is an admitted
position that no sale deed has been registered so far. Therefore, the
learned Single Judge appears to have proceeded on the erroneous
assumption of title having passed in favour of the respondent no.1.
11. The agreement to sell dated 1st April, 2008 which has been
placed on record would show that the sale consideration of
`9,00,000/- stated therein stands paid. However, for the reason that
the flat is a leasehold property and certain formalities including no
objection certificate from the superior owner as well as the
conversion of the property to freehold from the Delhi Development
Authority has to be obtained before the property can be finally
conveyed in favour of the purchaser. It is therefore, recorded in
Clause 11 of the agreement to sell that the second party Anshul
Arya would obtain all permissions and approvals to "complete the
sale transactions". This position has been noted for the reason that
learned Senior Counsel for the appellant has staunchly contested
the entitlement of the respondent no.1 to the decree for possession
and mesne profits and also emphasized that without first declaring
the respondent no.1 as the owner of the property, no such reliefs
could have been decreed in his favour. We find merit in this
submission of the learned senior counsel for the appellant. The
learned Single Judge has not returned any findings with regard to
the title of the suit premises and the right of the respondent no.1 to
the decree of possession and mesne profits. No decree of
declaration in terms of prayer(a) as prayed in the suit has been
granted in the impugned judgment and without such declaration,
certainly the relief of possession and mesne profits could not have
been considered.
12. We are now required to consider the prayer of the appellant
for leave to file the written statement. It cannot be disputed that the
appellant has contested the present case negligently. So far as the
explanation for not filing the written statement or taking steps for
setting aside the order of 30th May, 2014 is concerned, the
appellant has sought to put the blame squarely on the counsel who
was conducting the case. Detailed submissions in this regard have
been made from paras (AA) to (EE) of the appeal. There is also
the fact that the suit has been decreed on the first date after closure
of defence. The legal entitlement of the plaintiff has not been
adjudicated in the judgment and decree which has followed. The
above discussion would show that the judgment dated 21st July,
2014 cannot be sustained in law. We are therefore, inclined to
accept the explanation given by the appellant for his default in
filing the written statement and failing to take steps in accordance
with law.
13. However, in the facts and circumstances noted by us,
including the fact that the appellant has not paid any charges
towards use and occupation of the suit property since August,
2006, the appellant is disentitled to any unconditional relief in the
present appeal.
14. We may also note so far as the agreement to sell dated 1 st
April, 2006 relied upon by the appellant is concerned, the appellant
seems to have paid a paltry sum of `1,00,000/- as sale
consideration to Mohinder Kumar herein.
15. Before us, learned counsel for respondent no.1 has
contended that the market rate of rent for similar flats as on date is
not less than `30,000/- per month. Be that as it may, these are the
aspects which are required to be gone through by the learned
Single Judge. In order to balance equities, we are of the view that
the appellant should deposit in court, use and occupation charges
with effect from 1st September, 2006 till 1st April, 2015 @
`10,000/- per month. With effect from 1st April, 2015, the
appellant shall deposit an amount of `15,000/- on this count on or
before seventh day of each English calendar month in this court
towards use and occupation charges.
16. We make it clear that the order we have passed today and the
deposit which shall be made by the appellant is without prejudice
to the respective rights and contentions of the parties. In case, the
respondents are able to establish mesne profits at a rate higher than
the rate which has been ordered by us, the appellant shall be liable
to pay the same.
17. We also find that pursuant to the order dated 13 th January,
2005, the appellant has deposited an amount of `5,00,000/- in this
court which has been kept in a fixed deposit receipt. It is directed
that the amount in the fixed deposit receipt shall be transferred to
the record of CS(OS)No.411/2013 for administrative convenience.
The fixed deposit receipt shall be kept renewed till further orders of
any court.
18. So far as the amount to be deposited in terms of this order is
concerned, the appellant shall be entitled to deduct the amount of
`5,00,000/- from the arrears of the amount in terms of the orders
that we have passed today. All deposits which are made in terms
of the orders passed today, shall be kept on the record of
CS(OS)No.411/2013. The amount as and when deposited shall be
kept in fixed deposit receipt till final adjudication of the suit.
19. At this stage, the appellant who is present in person makes a
prayer that he may be permitted to deposit the amount of arrears
ordered by us today in four equated instalments. The prayer
appears to be reasonable. The appellant is permitted to deposit the
amount of arrears in four monthly equated instalments. The first
instalment shall be payable on or before 7th April, 2015.
20. The appellant shall also be liable for payment of costs of
`50,000/- to the respondent no.1 on or before the next date of
hearing.
21. Subject to the above, we hereby set aside the judgment and
decree dated 21st July, 2014 and the order closing the right of the
appellant to file the written statement. The written statement with
documents relied upon in support shall be positively filed by the
appellant within four weeks from today. The respondent no.1
plaintiff may file the replication thereto within four weeks
thereafter. The plaintiff is also permitted to file any documents in
support.
22. The parties shall file their admission/denial of documents of
the other side on affidavit which shall be filed within 10 weeks
from today.
23. The parties shall appear before the Joint Registrar (Original)
for marking of documents on 6th July, 2015.
24. The matter shall be listed before the learned Single Judge for
framing of issues on 19th August, 2015.
The appeal is allowed in the above terms.
CM Nos.18218-19/2014 & 18223/2014
In view of the orders passed in the appeal, these applications
are disposed of.
GITA MITTAL, J
P.S.TEJI, J
MARCH 19, 2015
aj
