Delhi High Court
M/S. Sunshine India Pvt. Ltd. vs Bhai Manjit Singh (Huf) & Ors on 20 May, 2015
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.2501/2011
Decided on : May 20, 2015
M/S. SUNSHINE INDIA PVT. LTD. ...... Plaintiff
Through: Mr. P.V. Kapur, Senior Advocate with
Mr. Sudhir Makkar, Advocate.
Versus
BHAI MANJIT SINGH (HUF) & ORS. ...... Defendants
Through: Mr. A.K. Mata, Senior Advocate with
Mr.Suresh Dutt Dobhal and Mr. Arun
Arora, Advocate for D-1 & 3.
Mr. Amit Sibal, Senior Advocate with
Mr. Apoorv Kapur, Mr.Alok K.Aggarwal
& Mr. Arun Arora,
Advocates for D-2 & 4.
Mr. Anil Airi, Advocate for D-5.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
I.A. No.17960/2011 (under Section 151 CPC by the plaintiff)
1. The question to be decided by this order (in I.A. No.17960/2011) is
as to whether the plaintiff company is to be given permission for the
purpose of raising construction on the property bearing No.61, Golf
Links, New Delhi (hereinafter referred to as the suit property), which was
agreed to be sold by D-1 to D-4 to the plaintiff vide agreement to sell
dated 29.07.2005. This permission is sought by the plaintiff after having
filed an undertaking that in case such a permission is granted, he shall not
claim special equities in respect of the construction so raised on the plot
in the event of suit being decided against them. A direction to L&DO is
also sought to give a 'No Objection Certificate' to the plaintiff to carry
out the construction.
2. Briefly stated the facts of the case leading to the filing of the
present application (as averred in the plaint) are that Bhai Manjit Singh
(HUF), D-1, is a Hindu Undivided Family, Mrs. Maheep Manjit Singh,
D-2, wife of Bhai Manjit Singh, Vikramjit Singh, D-3, Mohanjit Singh,
D-4 and Bhai Manjit Singh, D-5, father of D-3 & D-4. The D-2 to D-4
are the members of HUF, D-1. The D-1, acting through its karta and
manager D-2 entered into an agreement to sell dated 29.07.2005 whereby
the HUF, D-1, agreed to sell the suit property to the plaintiff for a total
sale consideration of Rs.9.25 crores subject to such terms and conditions
as stipulated in the agreement. The D-3 and D-4 acted as the confirming
parties to the said agreement. At the time of execution of the aforesaid
agreement, it was represented by the defendants that in pursuance to the
family settlement arrived at amongst the members of HUF, D-1, D-5 had
resigned as a member and the karta of HUF and it thereafter consisted
only of three persons, that is, D-2 to D-4.
3. Pursuant to the agreement the plaintiff paid a sum of
Rs.8,99,14,974/- out of total sale consideration of Rs.9.25 crores which
was inclusive of all charges that were required to be paid to the Central
Government for conversion of the said property from leasehold to
freehold. It also included payment of all stamp duty, municipal taxes,
registration charges, exclusive of transfer charges that may be payable to
the Central Government under the perpetual lease. The consideration was
paid to the various parties at the instance of the HUF, D-1, itself, details
of which are given in the agreement to sell itself. An amount of
Rs.29,19,447/- was also deposited with the L&DO towards the
conversion charges.
4. Simultaneously with the execution of the agreement to sell, D-2
acting as karta of the HUF, D-1, executed a power of attorney on
12.8.2005 in favour of one Abhay Aggarwal, who was the Director of the
plaintiff company. He was authorized to take all steps regarding
development of the said property . Both the documents, that is,
agreement to sell dated 29.7.2005 and the power of attorney dated
12.8.2005 were duly registered with the Sub-Registrar and further the
plaintiff was also put into physical possession of the suit property with
right to construct the property. It continues to be in his possession
uninterruptedly till date.
5. It is averred that simultaneously with the execution of these two
documents, HUF, D-1, applied for conversion of the leasehold property to
freehold and members of the HUF kept on extending assurances to the
plaintiff that all the requisite steps are being taken to secure the
conversion of the property from leasehold to freehold but despite
persistent follow-up action of the plaintiff with the members of the HUF,
D-1, the said conversion of the property from leasehold to freehold did
not materialize. The HUF, D-1 and its members, D-2 to D-4 are alleged
to have kept on giving one excuse or the other for the delay in disposal of
the application for conversion not being allowed by the competent
authority.
6. The plaintiff was informed that the application for conversion
could not be processed by the L&DO, Government of India as one party
by the name of FMI Investment Private Ltd. had instituted a suit bearing
No.2373/2001 against M/s. Montari Industries Ltd. and Another which
was pending adjudication in the Hon'ble High Court.
7. In the said suit, there was an ex parte ad interim injunction passed
restraining Bhai Manjit Singh, D-5, from selling, transferring, disposing
of the suit property. The plaintiff was not a party to the said suit nor was
there any injunction against the conversion of the property from leasehold
to freehold but the said company FMI Investment Private Limited is
alleged to have addressed some communication to L&DO intimating
them about the injunction order having been passed in respect of the suit
property as a consequence of which the application for conversion of the
property from leasehold to freehold was not being processed.
8. It is stated that the plaintiff filed an application seeking permission
of the Hon'ble Court in the said suit for modification and setting aside the
order dated 10.1.2002 and since no orders were passed on the said
application, another application was filed wherein it was prayed that the
order of 10.1.2002 may be directed not to come in the way of L&DO
from carrying out conversion of the property from leasehold to freehold
subject to the plaintiff furnishing an adequate security or depositing such
amount as may be considered appropriate by the Hon'ble Court to secure
the principal amount in the suit filed by the FMI Investment Private
Limited.
9. Vide order dated 1.4.2011, the Hon'ble Court was pleased to
dispose of the application filed by the plaintiff directing it to deposit an
FDR for a sum of Rs.1.46 crores with the Hon'ble Court and subject to
the said amount being deposited, it was ordered that the interim
injunction shall stand vacated from the date of deposit of the FDR and
that there would be no impediment on the applicant/the plaintiff, in
dealing with the suit property in any manner.
10. It is stated that after vacation of the injunction order passed by the
Hon'ble High Court on 1.4.2011, there was no impediment in getting the
property converted from leasehold to freehold; however, D-2, acted in
totally dishonest manner and with a view to extract more money from the
plaintiff, addressed a communication dated 26.4.2011 to Abhay
Aggarwal, the Director of the plaintiff company intimating that his power
of attorney has been revoked on the ground that she had signed the power
of attorney on the wrong advise as karta of HUF, D-1.
11. It was averred that dishonest intention of D-5, and his family
members became clear when D-5 approached the office of L&DO vide
communication dated 25.7.2011 wherein it was contended that D-2, had
cancelled the power of attorney purported to have been executed by her in
favour of Abhay Aggarwal and the HUF, D-1, was the lawful owner of
the property and no other person had a right to deal with the said property
in any manner whatsoever.
12. The plaintiff, on account of cancellation, approached Delhi High
Court by way of a writ petition assailing the legality, validity and
correctness of the notice dated 10.8.2011 issued by the NDMC
purportedly issued under Section 248 of the NDMC Act calling upon the
plaintiff to discontinue the building operation in respect of the suit
property. The aforesaid writ bearing W.P. (C) No.6156/2011 was
disposed of by the High Court vide order dated 24.8.2011 with the
direction to the L&DO/respondent No.1, to dispose of the application of
the plaintiff for grant of 'No Objection Certificate' in a time bound
manner. In the meantime, the plaintiff filed the present suit for
declaration, mandatory injunction, specific performance and permanent
injunction against HUF, D-1 and its members, D-2 to D-4 making D-5
also a party.
13. The L&DO is stated to have informed the plaintiff on 28.9.2011
that 'No Objection Certificate' for sanctioned building plan is given only
to the recorded lessee and hence, the same could not be given to the
plaintiff. It was further stated in the communication that karta of HUF,
D-1, had informed the office of L&DO that the power of attorney given
to P.C. Joshi and M. Narayan Kutty had been cancelled. It may be
pertinent here to mention that P.C. Joshi was an employee of D-5 while
as M. Narayan Kutty was an employee of the plaintiff company.
14. Aggrieved by the stand taken by the L&DO, the plaintiff filed
another writ petition [W.P. (C) No.7777/2011] before the High Court
praying therein for quashing of the aforesaid impugned decision of the
L&DO dated 28.9.2011. Vide order dated 1.11.2011, the aforesaid writ
petition was dismissed as withdrawn with liberty to approach the Civil
Court along with the observation that the relief sought by the petitioner in
the writ petition require appreciation of disputed questions of fact and as
such it would be appropriate for the petitioner/plaintiff to move to the
Civil Court seeking direction as were prayed for in the said writ petition.
15. In view of the observation made by the Hon'ble Court in W.P. (C)
bearing No.7777/2011, the plaintiff filed an application under Section
151 CPC bearing I.A. No.17960/2011 inter alia praying for the requisite
'No Objection Certificate' to be given in order to enable the plaintiff to
carry out the construction activity on the property in accordance with the
plans sanctioned by the NDMC. The plaintiff also moved an application
for amendment of the relief along with an application for impleading
L&DO as a party in the suit.
16. The application seeking amendment and impleadment was allowed
vide order dated 04.09.2013 by my learned predecessor. The said order
was reversed on 10.01.2014 by the Division Bench in FAO (OS)
No.433/2014. The learned Division Bench had taken note of the fact that
L&DO was sought to be impleaded as a party to the said suit, as it had
sent a communication dated 28.09.2011 by virtue of which 'No Objection
Certificate' for construction as per sanctioned building plan on the ground
of power of attorney having been given to M. Narayan Kutty and P.C.
Joshi having been cancelled by HUF, D-1 was withdrawn. It was stated
in the said communication that 'No Objection Certificate' could be given
only to the recorded lessee. The Division Bench made it abundantly clear
that though it was deleting L&DO as a party to the suit; however, the
L&DO shall abide by any interim or final order with regard to the
subject-matter of issuance of 'No Objection Certificate' or any other
direction including the right to construct by the plaintiff on the suit
property as may be granted by the single judge.
17. In the light of the aforesaid facts, the plaintiff is contending that as
the plan of the suit property has been sanctioned by the NDMC, it be
permitted to raise construction without prejudice. It is further stated that
the plaintiff has already filed an undertaking to the effect that it would not
claim any special equity for the construction so raised.
18. The D-1 and D-3 have filed written statement along with the
counter-claim by the HUF, D-1, for declaration and possession by HUF,
D-1. The D-2 and D-5 have filed their separate written statement. Apart
from raising preliminary objections in each of the written statement, the
matter has been contested on merits. The sum and substance of each of
the written statement is almost on the same lines.
19. It is alleged that the agreement to sell dated 29.7.2005 relied by the
plaintiff was devoid of any consideration. It is also alleged that the
plaintiff has made a false averment that at the time of entering into the
agreement, a substantial sum of approximately Rs.9 crores was paid. It is
stated that no such payment has been made to D-1, HUF, or to the
members of the HUF. It is stated that D-1 continues to be the undisputed
owner of the suit property on 29.7.2005 and even thereafter. It is stated
that all the amounts reflected in the agreement, even as alleged by the
plaintiff were payments made to defray the dues of the answering
defendants and his various companies on the basis of loan given by
Ashok Burman through the plaintiff company. It is alleged that these
loans were given to the answering defendants when in the year 1999
onwards, the defendants were in need of financial aid, they had
approached Ashok Burman patriarch of Burman family for temporary
assistance. It is alleged that the HUF, D-1, never approached Burmans for
advancing of loans. It is further stated that it was at the instance of Ashok
Burman power of attorneys were jointly executed in favour of their men
as the property was mortgaged. The power of attorneys were executed by
the answering defendants in the year 2000 in favour of one of the
functionaries of Burmans despite the fact that agreement to sell is
purported to have been executed much later. It is stated that the amount
of Rs.9.25 crores apparently which was advanced by way of a personal
loan was to carry an interest @ 12 per cent per annum and these advances
were made by Ashok Burman to the answering defendants in trenches
and the entire amount was to be given to the answering defendants till
31.3.2005. It is also alleged that as the amount which was being
advanced as a loan was substantial, therefore, at the request of Mr.
Burman, the agreement to sell was executed by D-1 in favour of the
plaintiff to give some colour of sanctity to the transaction; however, it is
alleged that the said document of agreement to sell was never intended to
be acted upon and was only a sham transaction to be shown without any
legal sanctity. The agreement was also got registered so that it evokes
some kind of sanctity but the document was never acted upon till the time
Ashok Burman was alive in the year 2011. It is also stated that the suit
property was much more valued being a plot of land measuring 1641.70
square yards and even at the time of dealing with M/s. Mitsui company,
the memorandum of understanding which was recorded on 3.2.1996, the
value of the property was shown as Rs.16 crores and, therefore, it could
not have been Rs.9.25 crores in the year 2005 which clearly showed that
the transaction was only a sham transaction.
20. The D-1, HUF, has also set up a counter-claim for declaration of
the agreement to sell dated 29.7.2005 as null and void and further sought
possession of the suit amount from the answering plaintiff apart from
claiming damages.
21. The D-2, 3 and 4 have admitted the existence of the agreement to
sell dated 29.7.2005 as well as the power of attorney dated 12.8.2005. D-
2 has signed the agreement as a karta as well as in her individual
capacity. However, D-5, has also supported the stand taken by the other
defendants contending that the agreement of sale is a sham document and
what was taken from the plaintiff was in fact a loan because of financial
difficulty.
22. So far as the application for ad interim relief of carrying out
construction on the suit property is concerned, it is the case of the D-1 to
D-4 that HUF continues to be the owner of the suit property and till the
actual deed is not executed, the plaintiff cannot be permitted to raise the
construction. It is stated that the sale agreement was a sham document
and not to be acted upon. Further, interim directions are issued for the
preservation of the property and not changing the nature of the property,
hence the rejection of the application was sought.
23. I was also alleged that one power of attorney which was executed
by D-5 in favour of PC Joshi and one Mr.Kutty employees of the D-5 and
the plaintiff/company by D-5 was revoked because it was allegedly
executed prior to the alleged date of the agreement in question. It was on
the strength of this document that plans were sanctioned and conversion
was applied for. It is further stated that so far as the power of attorney in
favour of one Mr.Abhay Aggarwal is concerned that was also revoked by
D-2 in the capacity of the karta because her stand was that she being a
woman was misled to act as a karta of the D-1 (HUF).
24. It is in this background that the learned senior counsel Mr. P.V.
Kapur has contended that the application seeking permission to raise the
construction over the plot of land in question has been filed. It is his
contention that the agreement to sell being a registered document on
which a sizeable amount of stamp duty has been paid apart from a sum of
Rs.9.25 crores to the D-1 to D-4 and the factum of the said agreement
having been executed by D-2, Mrs. Maheep Manjit Singh having not
being denied, shows that the plaintiff has got prima facie good case in its
favour. It is also stated that the possession of the property has been
handed over to the plaintiff at the time of execution of the agreement and
in the agreement itself it has been envisaged that the plaintiff will be
permitted to raise construction after obtaining necessary permission from
the competent authorities and since the said permission has already been
granted by the L&DO, therefore, the plaintiff be permitted to raise
construction on the suit property so that the same could be gainfully
utilized.
25. It has been contended by Mr. Kapur, the learned senior counsel that
he has filed an undertaking to the effect that on account of the
construction being permitted to be raised on the suit property, he will not
claim special equities in his favour in the event the court comes to a
finding which is adverse to the plaintiffs.
26. It has also been urged by Mr. Kapur, the learned senior counsel that
the stand of the defendants is that though the agreement dated 29.7.2005
was executed but there was an oral agreement between the plaintiff and
the defendant by virtue of which the agreement was not to be given effect
to and it was only a sham transaction, is a false defence and inadmissible
in law. Mr. Kapur, the learned senior counsel has also relied upon the
judgment passed in Karan Madaan vs. Nageshwar Pandey; 209 (2014)
DLT 241 to contend that the defendants cannot be permitted to
vary/contradict from and modify the terms and conditions of an
agreement to sell which has been admitted. This is completely prohibited
by Sections 91 and 92 of the Indian Evidence Act, 1872. It is the
contention of the plaintiff that this court in Karan Madaan's case has held
that once the document has been admitted, Section 91 of the Evidence
Act would come into play and the court cannot be oblivious of the fact
that oral evidence cannot be taken cognizance of for the purpose of
contradiction, modification and change of terms and conditions of the
agreement to sell which is a document in writing.
27. It has also been contended that the very fact that the suit itself has
been filed by the plaintiff in the year 2005 and is still at the threshold
despite almost a decade having passed, the final decision of the suit is
likely to take considerable time and on account of this, the plaintiff will
suffer an irreparable loss which cannot be compensated in terms of
money. So far as the two other conditions with regard to the availability
of a prima facie case in favour of the plaintiff and the balance of
convenience are concerned, they are satisfied by the present plaintiff
inasmuch as the agreement prima facie establishes a jural relationship
between the parties and with regard to the binding value of the
agreement.
28. The next submission of Mr. Kapur, the learned senior counsel is
that the power of attorney dated 12.8.2005 which is revoked by the D-2
could not have been revoked for the simple reasons that this power of
attorney was executed along with the agreement to sell by the defendants
and for consideration and was therefore an irrevocable power of attorney.
Any document which is contrary to the terms and conditions of the
agreement, cannot be taken cognizance of. Reliance in this regard is
placed on Shikha Properties Private Limited vs. S. Bhagwant Singh &
Others; 74 (1998) DLT 113.
29. It was contended that the plaintiff has satisfied all the three
conditions, namely, it has prima facie good case, balance of convenience
is in its favour and that it will suffer irreparable loss in case an ad interim
injunction for raising construction is not granted.
30. The aforesaid contentions of Mr. Kapur, the learned senior counsel
were contested by Mr. Ashwani Mata and Mr. Amit Sibal, the learned
senior counsel for the defendants. The contentions of the learned senior
counsel for the defendants have been essentially three-fold.
31. The first contention of the learned senior counsel for the defendants
is that the suit for specific performance of an agreement dated 29.7.2005
is being contested by the defendants on the ground that the said
agreement was a sham document and was never to be acted upon.
Thereby in essence meaning that when the document itself is under a
cloud and its validity is to be adjudicated then no right can be given to the
plaintiff to raise the construction on the suit property as it is the
proprietary right of the defendants. In other words, the contention has
been that the very fact that the suit for specific performance has been
filed by the plaintiffs acknowledges that the title or the ownership rights
in the suit property are vested in D-1, an HUF and, therefore, the plaintiff
does not have any right, title or interest in the property and consequently,
he ought not be permitted to raise any construction so as to change the
nature of the property. In order to supplement this submission, the
learned senior counsel has also contended that a writ petition was filed by
the plaintiffs bearing W.P. (C) No.7777/2011 which was withdrawn vide
order dated 1.11.2011 wherein it was clearly observed by the court while
permitting the withdrawal of the writ petition that it involved disputed
questions of fact which cannot be gone into in the writ petition and it
must be adjudicated in the civil suit. It is further stated that curiously the
relief which was claimed in the writ petition namely quashing of the letter
dated 28.09.2011 which stated that NOC could be granted to the
registered lessee only has not been prayed or challenged in the suit.
32. It is also contended by the learned senior counsel that the defense
of the defendants is that the plaintiff company, who was represented by
Mr. Ashok Burman, one of the Directors of the company had essentially
advanced a loan to D-5, in order to discharge his financial obligations and
in order to secure his interest. Despite the fact that there were family
relations between the defendants and the Burmans, the latter wanted his
interest to be sufficiently protected by giving it the colour of advancing a
loan and making it a genuine transaction by creating an agreement to sell
as is sought to be set up now. The learned senior counsel in this regard
referred to some earlier transaction having been entered into between the
D-1 and the company known as regent square in which Burmans only had
holding where similar set of documents with permission to raise
construction had been executed. This was essentially done to secure their
interest just as it was done in the case of the plaintiff.
33. The third contention by Mr. Mata is that keeping in view the above
broad parameters of the defense, the defendant has already setup a
counter-claim along with the written statement wherein a prayer for
declaring the agreement dated 29.7.2005 as null and void has been made
and, therefore, unless and until the claim in the suit along with the
counter-claim is adjudicated, the nature of the property has to be
preserved. It has also been contended that temporary injunctions or
interim reliefs are granted in exceptional circumstances so as to preserve
or restore the status quo with regard to the suit property and not in order
to change the nature of property. For this purpose, the learned senior
counsel Mr. Mata has relied upon number of judgments which are Jiwan
Dass Rawal vs. Narain Dass & Others; AIR 1981 Delhi 291, Dorab
Cowasji Warden & Others vs. Coomi Sorabg Warden & Others; AIR
1990 SC 867, Metro Marines & Another vs. Bonus Watch Company
Private Limited & Others; 2004 (7) SCC 478, Bachhaj Nahar vs. Nilima
Mandal & Others; AIR 2009 SC 1103, Rambhau Namdeo Gajrev,
Narayan Baapuji Dhotra (dead) through LRs; 2004 (8) SCC 614,
Maharwal Khewaji Trust Registered vs. Baldev Dass; 2004 (8) SCC 488
and M/s. National Film Development Cooperation Ltd. vs. Sri Shantilal
Bakhliwal; CDJ (2008) Cal. HC 310.
34. I may refer hereinafter to the various judgment referred to by the
learned senior counsel for the defendants. At the outset I must express
dismay that the number of authorities could have been conveniently kept
less as what is to be seen is what are the broad principles of law laid
down by the Apex Court and whether they are applicable to the facts of
the present case.
35. The first authority which has been relied upon is Jiwan Dass Rawal
(supra) to contend that temporary injunction cannot be issued at the
instance of a person in whose favour the agreement to sell was executed
till the decree for specific performance is obtained by him and a sale deed
is executed.
36. There is no dispute about the proposition of law laid down in the
said judgment, but before the said proposition is made applicable to the
facts of the present case in order to see whether it has any application, it
has to be borne in mind that the Supreme Court has repeatedly pointed
out that judgments should not be applied blindly like mathematical
propositions. The court must examine the facts of the case in the light of
which the proposition of law has been laid down and correlate the said
facts with the facts of the case where the said proposition is sought to be
made applicable. Reliance in this regard is placed on Haryana Financial
Corporation Vs. Jagdamba Oil Mills; AIR 2002 SC 834.
37. In Jiwan Dass's case (supra), the facts were that possession of the
suit property had not been given to the purchaser who had filed a suit for
specific performance who further, in turn had sold it to a third person.
Therefore, it was in this context that the court had observed that under
Section 54 of the Transfer of Property Act, a contract for sale does not
create any interest or any authority in such property. Such a contract is
merely a document creating right to obtain another documents in the form
of a sale deed to be registered in accordance with law and till the time the
said document is duly executed and registered the party ought not to be
permitted to raise the construction.
38. The facts of this case are distinguishable from the facts of the
present case. In the present case, the possession of the suit property is
admittedly with the plaintiff for the last more than nine years in an
uninterrupted manner and there is no third party involvement meaning
thereby the suit property has not been transacted twice to two different
parties on the basis of the agreement to sell. Further, the vendor has
given to the vendee specifically the right to construct the suit property.
Therefore, this judgment is not applicable to the facts of the present case.
39. The learned senior counsel for the defendants has also relied upon
the judgment of the Supreme Court in Dorab Cowasji's case (supra)
wherein it has been observed as under in para 14 :-
"14. 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 guideline. 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."
40. This was a case where the issue was with regard to the partition of
the suit property between co-sharers whose shares were not specified and
defined being the inheritors of the property from their common ancestor.
It was in such a contingency that the observation that interlocutory
mandatory injunctions are granted for preserving or restoring the status
quo ante is passed by the Apex Court.
41. The present case is not a case where the defendants and the
plaintiffs are co-sharers. On the contrary, the defendants have agreed to
sell the suit property to the plaintiffs for a hefty consideration of Rs.9.25
crores and taken almost the entire sale consideration, handed over
possession under an agreement to sell with detailed conditions including
the right to raise construction and thereafter taken a U-turn to contest the
said agreement to sell as a matter of document of sham. The signing of
the document by all the parties in court, who are educated, doing business
and understanding the implications of having executed the document
cannot be permitted to wriggle out of the said agreement despite the
possession having been handed over and yet not perfecting the title of the
plaintiff. The only inference which one can draw under such a
contingency is that all the defendants after having sold the property to the
plaintiffs have turned dishonest for ulterior considerations and these
ulterior considerations are that the value of the property each day is
jumping by leaps and bounds and so in the instant case also the value of
the property which was agreed to be sold by the defendants to the
plaintiffs for a total consideration of Rs.9.25 cores must have gone
beyond ten times which has prompted them to become dishonest to
extract more money from the plaintiff. Moreover, this judgment, instead
of helping the defendant Nos.1 to 4, in my view, is helping the plaintiff.
The plaintiff has not only been able to show prima facie case but, in my
view, it has been able to show more than a prima facie case by agreement
dated 29.7.2005, possession delivered to the plaintiff, substantial
consideration paid and right of construction being raised, satisfies the
requirement of Dorab Cowasji's case (supra). Therefore, this judgment
is also not helpful to the defendants.
42. In Metro Marins's case (supra) also the facts are distinguishable.
In the said case, a suit for possession came to be filed by the respondent
against the appellants alleging them to be licensee in respect of the suit
premises. During the pendency of the suit premises an application for
obtaining judgment on the basis of admission or alternatively an
application seeking mandatory injunction against the appellants was filed
by the respondent. The learned single Judge on the Original Side of
Calcutta High Court dismissed the application holding that granting of the
mandatory injunction of handing over the possession of the suit premises
to the respondent/plaintiff would tantamount to decreeing the suit and
accordingly rejected the application for passing a decree on the basis of
admission or even alternatively granting mandatory injunction.
43. On appeal being preferred by the respondent/plaintiff the appellate
Bench of the Calcutta High Court upturned the judgment of the learned
single Judge and passed an order of mandatory injunction in favour of the
respondent/plaintiff directing the appellant to hand over the possession to
the respondent.
44. The appellant/defendant feeling aggrieved by such a mandatory
injunction assailed the same before the apex court relying upon the
judgment Dorab Cowasji's case (supra) and rightly so held that the
appellate court of Calcutta High Court was wrong in passing a order of
mandatory injunction against the appellant directing him to hand over the
possession. This was on account of the fact that by directing a mandatory
ad interim order to hand over the possession tantamounted to decreeing
the suit itself in favour of the respondent/plaintiff when the suit was being
contested by the appellant/defendant on various grounds. For this
purpose, the apex court relied upon on its earlier judgment in Dorab
Cowasji's case (supra). The facts of this case are apparently no way near
the facts of the case in hand. In the instant case, as has been pointed out
earlier, the possession of the suit premises is with the plaintiffs for the last
more than nine years in uninterrupted peaceful manner. The agreement to
sell is purported to have been executed on behalf of D-1/HUF by D- 2.
The other two members of the D-1, that is, D-3 and D-4 have not disputed
the agreement. The only contention raised is that the document is sham
which on the face of it is untenable in the eyes of law as oral evidence, as
is sought to be produced, and is prohibited in terms of Sections 91 and 92
of the Indian Evidence Act, 1872.
45. The plaintiff has already paid a substantial portion of the
consideration to the defendants and yet despite being in possession, he is
not able to enjoy the property and the fact that the case has been filed
more than nine years ago is likely to take equal quantum of time before it
comes to stage of finality at the first stage thereby causing irreparable loss
to the plaintiffs.
46. The next submission of Mr. Ashwini Mata and Mr.Sibal, the
learned senior counsel is that there is no pleading in the suit with regard
to the construction and consequently, the same cannot be read into
existing pleading and the relief given to the plaintiff by way of permitting
him to raise the construction. In this regard Mr. Mata, the learned senior
counsel has placed reliance on Bachhraj Nahar vs. Nilima Mandal &
Others; AIR 2009 SC 1103 wherein it has been observed as under :-
"12. It is thus clear that a case not specifically pleaded
can be considered by the court only where the pleadings
in substance, though not in specific terms, contains the
necessary averments to make out a particular case and
the issues framed also generally cover the question
involved and the parties proceed on the basis that such
case was at issue and had led evidence thereon. As the
very requirements indicate, this should be only in
exceptional cases where the court is fully satisfied that
the pleadings and issues generally cover the case
subsequently put forward and that the parties being
conscious of the issue, had led evidence on such issue.
But where the court is not satisfied that such case was at
issue, the question of resorting to the exception to the
general rule does not arise. The principles laid down in
Bhagwati Prasad and Ram Sarup Gupta (supra) referred
to above and several other decisions of this Court
following the same cannot be construed as diluting the
well settled principle that without pleadings and issues,
evidence cannot be considered to make out a new case
which is not pleaded. Another aspect to be noticed, is that
the court can consider such a case not specifically
pleaded, only when one of the parties raises the same at
the stage of arguments by contending that the pleadings
and issues are sufficient to make out a particular case
and that the parties proceeded on that basis and had led
evidence on that case. Where neither party puts forth
such a contention, the court cannot obviously make out
such a case not pleaded, suo moto."
47. Mr. Mata and Mr.Sibal, the learned senior counsels have also
contended that the judgment which has been relied upon by Mr. P.V.
Kapur, the learned senior counsel for the plaintiff in support of his
contention seeking permission to raise construction by reference to two
judgments of the Supreme Court reported in Ram Sarup Gupta (dead) by
LRs vs. Bishun Narain Inter College & Others; AIR 1987 SC 1242 and
Bhagwati Prasad vs. Chandramaul; AIR 1966 SC 735 are not applicable
to the facts of the present case.
48. There is no dispute about the proposition of law laid down in the
aforesaid judgments relied upon by the respective sides. It is also not in
dispute that the Supreme Court in Bachhaj Nahar's case (supra) has put
stress on the pleadings in the light of evidence to be produced by the
parties. It has been held by the Supreme Court in the said case that there
must be an averment in the pleading, be that the plaint or the written
statement, and only then evidence with regard to the same can be
produced by a party or seen. The purpose of confining to such averments
in the pleading is to ensure that the opposite party is aware of the case
which it is supposed to meet so that it is not taken by surprise. It is in this
background that the Apex Court has held that no amount of evidence
which a party may produce can be relied upon unless and until there is a
pleading to that effect. There is absolutely no dispute about this
proposition of law.
49. So far as the judgments which have been relied upon by Mr. P.V.
Kapur, the learned senior counsel are concerned, though they are also on
the merits of the case where full fledged trial had taken place but the
object of the pleadings has aptly been summarized in Ram Sarup Gupta's
case (supra) that pleading must receive liberal construction and not
pedantic and parochial approach; more so in my view where question of
interim relief is involved or prayed. The purpose of pleadings is to ensure
fair trial and also that opposite side is not taken by surprise certainly
when the prayer of the plaintiff in the instant application is to raise
construction on the suit property it is inbuilt that he could not get such a
permission unless and until he satisfies three basic requirements merely
because there is no reproduction of the words like prima facie case,
balance of convenience or irreparable loss in the application would be a
hyper technical approach. Therefore, this argument of the defendant
opposing the application is rejected. Further the endeavour of the court is
to do substantive justice rather than get entangled in technicalities of law
because laws or procedural requirements are not meant to create hurdles
in dispensation of justice but to advance the same. Unless and until the
procedural lapse is not resulting in illegality or impropriety of causing a
serious prejudice to the opposite side, it ought not to deter the court in
passing an order which would advance the purpose of justice. In the
present case, I do not feel that the application suffers from any such vice.
On the contrary, the birds' eye view of the entire defence of the defendant
Nos.1 to 4 is to wriggle out of their agreed commitment and for that
purpose, to take all possible flimsy pleas whether they are legally
sustainable or not. It would be pertinent here to refer to the relevant para
of judgment of Ram Sarup Gupta (since deceased)'s case (supra) which
records as under.
"6. It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot be
considered. It is also equally settled that no party should
be permitted to travel beyond its pleadings and that all
necessary and material facts should be pleaded by the
party in support of the case set up by it. The object and
purpose of pleading is to enable the adversary party to
know the case it has to make. In order to have a fair trial it
is imperative that the party should state the essential
material facts so that the other party may not be taken by
surprise. The pleadings however should receive a liberal
construction; no pedantic approach should be adopted to
defeat justice on hair splitting technicalities. Sometimes,
pleadings are expressed in words which may not
expressly make out a case in accordance with the strict
interpretation of law, in such a case it is the duty of the
court to ascertain the substance of the pleading to
determine the question. It is not desirable to place
undue emphasis on form, instead the substance of the
pleading should be considered. Whenever the question
about the lack of the pleading is raised the enquiry should
not be so much about the form of pleading, instead the
court must find out whether in substance the parties knew
the case and the issues upon which they went to trial. Once
it is found that in spite of deficiency in the pleading the
parties knew the case and they proceeded to trial on those
issues by producing evidence in that event it would not be
open to a party to raise a question of absence of pleadings
in appeal."
50. The judgment cited by Mr. Mata, the learned senior counsel is not
applicable to the facts of the case. So far as the judgment in Bachhaj
Nahar's case (supra) is concerned, Mr. Mata has overlooked the fact that
this was the law laid down by the Supreme Court while examining the
case which had been decided on merits where the case had passed
through different stages of appeal and reached Supreme Court.
Therefore, the said proposition of law has to be made applicable to a case
when it is being decided finally and not at the interim stage. At the
interim stage, when the court is considering an application for grant of an
interim relief sought by a party, the only thing to be seen by the court is
as to whether the interim relief which is sought by a party is subsidiary
relief to the main relief or not. If the interim relief happens to be the
subsidiary/ancillary relief to the main relief obviously it has to be granted
provided the party concerned is able to satisfy the other three conditions.
51. Seen in the aforesaid light, the case of the plaintiff is for specific
performance and the sum and substance of its case is that D-1 through
D-2 its karta had sold the suit property to the plaintiff for a total
consideration of Rs.9.25 crores and the said document is a registered
document. Out of the aforesaid total sum, a sum of approximately
Rs.9.25 crores stands already paid, details of which are given in the
agreement itself. The possession has been handed over to the purchaser
and it continues to be with the purchaser uninterruptedly for a period of
last nine years. The D-1 ceases to have any right, title or interest in the
suit property after execution the agreement as envisaged therein. Further,
in the agreement itself, one of the important clauses which have been
incorporated is that the plaintiff, who has been termed to be a purchaser
has the right to not only carry out additions, alterations and even
demolition but also raise construction. The old construction has since
been demolished though the defendants are now alleging that it has been
done illegally, but they could have come to the court when the building
was being demolished and obtained a restraint order which was not done
and now to cry hoarse that the same building be erected or that they are
entitled to damages of Rs. 40 crores for the same is an argument of
desperation to throw a spanner.
52. A plain reading of the document itself makes it clear that it is not
an agreement to sell but in essence it is a document of sale itself and since
only a formality of getting a sale deed was to be executed between the
parties on payment of balance amount of approximately Rs.25,85,026/- in
terms of the agreement, the plaintiff's right to raise the construction
cannot be scuttled. As a matter of fact, this balance amount of
approximately Rs.25 lacs may also not required to be paid because the
plaintiff had been asked to deposit a sum of Rs.1.46 crores by the
Hon'ble High Court in order to get the stay vacated which prevented the
vendor of the property to deal with the same and as the vendor had
already washed off his hands from the said property by entering into an
agreement to sell with the plaintiff, the plaintiff was compelled to file an
application seeking modification of the said order for which it had to
deposit an amount of Rs.1.46 crores in terms of the court order.
53. I have been informed by Mr. Sibal learned senior counsel that the
defendants have already arrived at a compromise with the FMI in
Supreme Court by virtue of which it has to pay amount of Rs.1.46 crores
in three instalments which will leave the money deposited by the plaintiff
with the Registrar General to be refunded to the plaintiff.
54. Mr.Makker, the learned counsel for the plaintiff, has contested this
and stated that the suit itself has since been decreed and the appeal has
also been dismissed, therefore, there is no question of the amount being
refunded.
55. None of the learned counsel has placed any order before this court.
The fact of the matter remains that as on date it is not in dispute that only
25 lakhs or so is payable to the defendants in terms of the agreement
dated 29.07.2005. Assuming it to be correct in comparison, an amount of
Rs.1.46 crores has been deposited by the plaintiff with the Registrar
General of this court. Whether the defendant pays this amount of Rs.1.46
crore of their own and seek refund of the plaintiff with the High Court or
permit FMI to take this amount, fact of the matter prima facie remains
that the so called entire sale consideration in terms of the agreement from
the plaintiff's standpoint remains paid.
56. Therefore, keeping in view the aforesaid facts in the main petition,
the plaintiff being the owner, can deal with the property in any manner
whatsoever and since he only wanted to perfect his title in law as D-1 to
D-4 had turned dishonest and were casting a cloud on his title that he was
compelled to file a suit for specific performance. Since this suit for
specific performance has been pending for almost 4 years naturally, any
party placed in the situation in which the plaintiff is placed where a party
to an agreement has spent considerable amount of sale consideration
taken the possession of the suit property with specific clause of being
permitted to raise construction, yet is not able to gainfully utilize the suit
land that it will file an application seeking permission to raise
construction. This ad interim relief, in my view, is a subsidiary relief to
the main relief of perfecting its title. Therefore, keeping in view the fact
that the relief of construction which is sought by the present plaintiff by
way of an interim application & is essentially a subsidiary relief to the
main relief, there could not be any specific pleading in the main suit and
the judgments which has been relied upon by the learned counsel Mr.
Mata and Mr.Sibal are not applicable to the facts of the present case.
57. The next judgment which has been referred to by Mr. Mata, the
learned senior counsel in Maharwal Khewaji's case (supra) is to contend
that the settled legal proposition is that under Order 39 Rule 1 & 2 CPC,
orders are passed to protect the suit property and it cannot be used to
change the nature of the suit property by carrying out construction
thereon. I do not agree that the said judgment has any application to the
facts of the present case. This judgment along with judgment of Dorab
Cowasji's case (supra) which has been cited by the learned senior
counsel for the defendants, clearly supports the case of the plaintiff. That
is on account of the fact that no doubt, the orders under Order 39 Rule 1
& 2 CPC are essentially passed for the preservation of the property but
that is not an absolute rule, there are exceptions where mandatory ad
interim directions are also issued.
58. In the instant case, I have already observed under the agreement to
sell, the plaintiff has already paid almost the entire consideration,
possession has been taken, the plaintiff has been given the right to raise
construction and plans have been sanctioned, therefore, it has been able to
establish a prima facie case but it has been able to establish something
more than prima facie case in terms of Dorab Cowasji's case (supra)
which entitles it to raise the construction on the suit property. Further,
the plaintiff has given an undertaking to the court to the effect that it will
not claim any special equities in the event of it losing the suit.
59. Mr. Mata, the senior counsel has also referred to Section 54 of the
Transfer of Property Act, 1882, that no right, title or interest in the
immoveable property is transferred to the purchaser till the execution of
the sale deed and for this purpose, catena of authorities have been relied
upon by him. These are Suraj Lamps & Industries Pvt. Ltd. vs. State of
Haryana; 183 (2011) DLT 1, Jivan Dass Rawal (supra) and Sunil Kapoor
vs. Himmat Singh ; 2010 II AD 463.
60. Out of these judgments, I would like to make a reference to, is
Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr.; AIR 2012
SC 206. In the said case, the Hon'ble Supreme Court has held that the
transactions which have taken place on the basis of sale agreements,
GPA, Will, etc. do not confer any title to the property but only entitle the
holder of such documents to file a suit for specific performance meaning
thereby a person claiming to be owner of a property on the basis of
special power of attorney/general power of attorney, agreement to sell
and all other subsidiary documents coupled with the transfer of
possession has not been considered to be the owner of property in terms
of Section 54 of the Transfer of Property Act and the only remedy with is
obtaining a specific performance decree from the court against the vendor
but while passing this judgment, the Supreme Court has also observed in
para 19 as under:
"19. We make it clear that our
observations are not intended to in any
way affect the validity of sale
agreements and powers of attorney
executed in genuine transactions. For
example, a person may give a power of
attorney to his spouse, son, daughter,
brother, sister or a relative to manage his
affairs or to execute a deed of
conveyance. A person may enter into a
development agreement with a land
developer or builder for developing the
land either by forming plots or by
constructing apartment buildings and in
that behalf execute an agreement of sale
and grant a Power of Attorney
empowering the developer to execute
agreements of sale or conveyances in
regard to individual plots of land or
undivided shares in the land relating to
apartments in favor of prospective
purchasers. In several States, the
execution of such development
agreements and powers of attorney are
already regulated by law and subjected
to specific stamp duty. Our observations
regarding 'SA/GPA/WILL transactions'
are not intended to apply to such
bonafide/genuine transactions."
61. As is reflected form the aforesaid, the Supreme Court was
cognizant of the fact that there are genuine transactions which are based
on documents like agreement to sell, special/general power of attorneys
etc. If examined on this touchstone of Suraj Lamp's case (supra), the
question which would arise for consideration is as to whether the
agreement to sell dated 29.07.2005 was a genuine agreement or not. I
have already observed hereinabove that as a matter of fact the agreement
to sell was so elaborate that it has actually contained all the terms and
conditions of a sale deed though it has been termed as an agreement to
sell. Further, in terms of this very agreement not only more than the
substantial portion of consideration has been received from the
plaintiff/vendee by the vendor i.e.defendant No.1 for himself or its
nominee details of which are given in the agreement itself but the
consideration received also included the amount of Rs.29,19,447/-lakhs
which was paid to the L&DO for the purpose of processing the
conversion application of the vendor from leasehold to freehold and it
was after further envisaged in the agreement to sell that within 15 days of
the execution of the conveyance deed the vendor would execute the sale
deed in favour of the vendee i.e. the plaintiff. During the pendency of the
conversion application, rights of the vendee as a purchaser were fully
protected inasmuch as he was given the right to full enjoyment in respect
of the suit property. This is evinced in clause 7 & 9 whereby he could not
only make additions, alterations, demolition or raise fresh construction,
but he could deal with the property in any way pending execution of the
sale deed and D-1 to D-4 were left no right whatsoever. This clearly
shows that the plaintiff had full rights of a purchaser under the agreement
and, therefore, Suraj Lamp's case (supra) instead of helping the
defendants goes in favour of the plaintiff.
62. There is no dispute about the fact that Section 54 of the Act deals
with the question of sale of a property and lays down that no right, title or
interest in any immoveable property is transferred till the execution of the
sale deed but in the instant case, I have already observed that the
agreement to sell which is purported to have been executed by defendant
Nos.1 to 4 in favour of the plaintiff is not an agreement to sell but in fact
a sale document even though, it has been termed as an agreement to sell
because under the agreement all those rights have been given to the
vendee which accrue to him only on sale of the property. Possession had
been transferred to the vendee. Almost entire sale consideration had been
received except 3% of the total sale consideration which can also be taken
by the vendor to have been deposited by the vendee. To top it all, the
vendor on execution has ceased to have any right, title or interest in
property. For this purpose, I reproduce the entire agreement to sell which
reads as under :-
"AGREEMENT TO SELL
CONSIDERATION AMOUNT : Rs.9,25,00,000/-
STAMP DUTY : Rs.41,62,500/-
CORPORATION TAX : Rs.27,75,000/-
TOTAL STAMP DUTY : Rs.69,37,500/-
THIS AGREEMENT for sale is made on this the 29th day of July,
2005,
BETWEEN
Bhai Manjit Singh-HUF, a Hindu Undivided Family acting
through its Karta and Manager Mrs. Maheep Manjit Singh w/o
Bhai Manjit Singh, 2 South nd Lane, New Delhi 110011 and
hereinafter referred to as the 'VENDOR' of the First part,
AND
M/s. Sunshine Pvt. Ltd., a company duly incorporated under the
Companies Act, 1956 having its registered office at 4th Floor,
Punjabi Bhawan, Rouse Avenue, New Delhi-110002 acting
through its duly authorized representative/director Sh. Abhay
Aggarwal s/o Sh. M.C. Aggarwal r/o A-506, Gitanjali Apartments,
Delhi-110092, authorized by way of resolution dt. 10.8.2004,
hereinafter called the 'PURCHASER' of the Second part.
AND
1. Mrs. Maheep Manjit Singh w/o Bhai Manjit Singh
2. Mr. Vikramjit Singh s/o Bhai Manjit Singh
3. Mr. Mohanjit Singh s/o Bhai Manjit Singh
All residents of 2, Southend Lane, New Delhi and hereinafter
referred to as the 'CONFIRMING PARTIES'.
[The expression VENDOR, PURCHASER and CONFIRMING
PARTIES shall mean and include, unless repugnant to the context
thereof, all their legal heirs, assigns, constituents, members,
successors, executors and administrators, representatives,
nominees, etc.]
WHEREAS
A. The VENDOR is a Hindu Undivided Family comprising of
CONFIRMING PARTIES as its members and are the sole
and absolute owner of the property bearing No.61, Golf
Links, New Delhi admeasuring 1641.70 sq. yds. and
hereinafter referred to as the 'said property'.
B. The said property was initially allotted to Bhai Mohan
Singh by Land and Development Office, vide perpetual
lease deed dt. 30.4.1960 and duly registered at Srl.
No.4405 in Addl. Book No.1, Volume No.125 at pages 18 to
22 and on 7.6.1962 with Sub-Registrar of Assurances, New
Delhi. Copy of the Perpetual Lease Deed has been given to
the PURCHASER.
C. The said Bhai Mohan Singh put the said property in family
hotch potch and created an HUF known as Bhai Mohan
Singh-HUF and mutation in the records of said Bhai
Mohan Singh HUF was duly recorded in the records of L &
DO.
D. That the members of the said Bhai Mohan Singh-HUF
entered into a Family Partition Deed dt. 19.1.1991,
whereby the said property fell to the share of the VENDOR.
Copy of the Partition Deed has been given to the
PURCHASER.
E. The VENDOR applied to L & DO for mutation and the said
property was duly mutated in the name of VENDOR on
23.12.1999 vide letter No.L & DO/L-IV/9/10 (61)/99/544.
F. The VENDOR as per the policy of Land and Development
Office applied for conversion of leasehold rights to
freehold rights for the said property on 24.12.1999 and
deposited the conversion charges with L & DO and deed of
conveyance is awaited.
G. The said property was equitably mortgaged by Bhai Mohan
Singh-HUF, the erstwhile recorded owners on 24.5.1995
with State Bank of Travancore, 162, Mount Road, Chennai
(Madras) - 600002 having its branch at Karol Bagh, New
Delhi, as a collateral security for the limits obtained by
M/s. Montari Leather Ltd., the controlling interest of which
are with Bhai Manjit Singh and family, i.e., members of the
VENDOR.
H. The State Bank of Travancore has filed an application of
recovery being Original Application No.76 of 2003 before
the Debt Recovery Tribunal, New Delhi, against the
borrower and other defendants and had claimed rights of
mortgagee on the said property and the Debt Recovery
Tribunal vide order dt. 14.1.2004 had restrained the
disposal of the said property.
I. The proposal for settlement of dues of State Bank of
Travancore was made by the borrower and said proposal
has been accepted by the Bank and Bank has accepted a
sum of Rs.5 crores and has released the title documents.
J. That a Memorandum of Understanding [MOU] with regard
to said property had been entered with M/s. Mitsui & Co.
Ltd., The Metropolitan, Bangla Sahib Road, New Delhi
vide MOU dt.3.2.1996 and received a sum of Rs.1.60
crores [Rupees one crore sixty lakhs only]. The disputes
arose between M/s. Mitsui and VENDOR and others and
M/s. Mitsui claimed refund of the amounts paid by them
alongwith interest and have filed a suit for recovery of
Rs.2,46,40,000/- against the VENDOR and others in the
Hon'ble High Court of Delhi being Suit No.593 of 1999
and the Hon'ble High Court vide order dt.18.3.1999
restrained Bhai Manjit Singh and Bhai Mohan Singh from
transferring, alienating or disposing off the said property,
however, there is no stay order as against the VENDOR.
K. The physical possession of the said property is with M/s.
VIC Enterprises Pvt. Ltd. who had paid the debt of
VENDOR towards a company M/s. Regent Square
Promoters Pvt. Ltd. amounting to Rs.43,65,000/- and had
taken over the possession of the said property from the said
Company.
L. The VENDOR has approached the PURCHASER and has
offered to sell all its rights, title and interest whatsoever in
the said property to the PURCHASER by representing to
the PURCHASER that:
a) The VENDOR has all rights, powers, entitlements to
enter into this agreement to sell, to remove
hindrance, receive the sale consideration, and
generally to deal with the said property in any
manner whatsoever and can effectively transfer and
confer the title on PURCHASER.
b) Except whatever has been stated hereinabove there
are no other encumbrances on the property in
question.
c) Save as aforesaid, the said property is free from all
manner of encumbrances, mortgages, liens, charges,
litigation, attachments or acquisitions, requisitions
or notices thereof.
d) the VENDOR has not entered into an agreement to
transfer the said demised premises with any other
person till date.
e) the CONFIRMING PARTIES i.e. all the members of
the HUF have consented to the said sale being for
the benefit of HUF and its members.
f) that no person or member of HUF i.e.
CONFIRMING PARTY is claiming any interest in
the said property adverse to the interest of HUF.
M. On the basis of the aforesaid representations of the
VENDOR, the PURCHASER has agreed to purchase from
the VENDOR all its rights, interests, entitlements etc. in the
said demised premises, on terms and conditions and for
consideration hereinafter stipulated:
1. In this Agreement, the expression "Said Property" shall
mean and include the following :
(i) property bearing No.61, Golf Links, New Delhi,
admeasuring 1641.70 sq. yds., and all rights and
entitlements, residuary, reversionary etc. in the said
property or any part thereof including the right of
redemption or any other right, whether specifically
stated or not.
(ii) Right to deal with any member/assignee/nominee of
the VENDOR and to modify and/or cancel any
agreement or arrangement entered by the VENDOR.
(iii) Right to take over the vacant physical possession of
the said property from the present occupant i.e. M/s.
VIO Enterprises Pvt. Ltd. in its own right and retain
the same.
(iv) The right to carry out all modifications, additions,
alterations and further constructions, demolitions
and/or constructions in the said property and
without prejudice to the generality of the foregoing :
(a) The right to apply for and obtain in its name
or in the name of and on behalf of the VENDOR
insofar as necessary, any and all consents,
sanctions, approvals, permissions and no objections
whatsoever as shall or may be required for the
purpose of constructions, modification, alterations
etc. and extension and revalidations of all sanctions,
permissions, consents, approvals and no objections;
(b) The right to apply for and obtain in its name
or in the name and on behalf of the VENDOR
insofar as necessary any re-validation, revision,
amendment or modification of any Sanctioned Plan,
and completion/occupancy certificate(s);
(c) The right to apply for and obtain in its name
or in the name of and on behalf of VENDOR insofar
as necessary, any and all sanctions, consents and
quotas as may be required for construction in
respect of any controlled or concessional material
item, commodity, equipment, thing or facility;
(d) The right to apply for and obtain in its name
or in the name of and on behalf of the VENDOR
insofar as necessary, any and all temporary and
permanent connections for water, electricity, power,
gas or other utilities intended for consumption
during and/or after the
construction/modification/alteration etc. as
aforesaid;
(v) The right of free access to and from the said
property;
2. The VENDOR hereby agree to sell to the PURCHASER
and the PURCHASER hereby agrees to purchase from the
VENDOR the said Demised Premises for a total price of
Rs.9.25 crores (Rupees nine crores twenty five lakhs only)
free from any and all defects, encumbrances, charges,
liens, claims demands, acquisitions, requisitions and
notices thereof and attachments and litigation whatsoever
except whatever has been stated hereinabove. The said
price is inclusive of all conversion charges that may be
payable to the Central Government for conversion of the
said property to freehold status and related stamp duty,
Municipal Tax, registration charges on the resultant
conveyance and exclusive of any transfer charges/unearned
increase that may be payable to the Central Government
under the said Perpetual Lease as a pre-condition to
allowing the transfer the Perpetual Leasehold rights in
favour of the PURCHSER.
3. That the PURCHASER has paid to the VENDOR a sum of
Rs.8,99,14,974/- (Rupees Eight crores ninety nine lakhs
fourteen thousand nine hundred seventy four only) in the
following manner:-
(a) Rs.1,54,00,000/- (Rupees one crore fifty four lakhs
only) by way of cheques bearing nos.949630 for
Rs.1,52,00,000/- and cheque no.949631 for
Rs.2,00,000/- both dated 6.12.2004 and drawn on
Punjab National Bank, N-86, Janpath, New Delhi in
the name of Motor & General Finance Ltd., 4/17,
Asaf Ali Road, New Delhi-110002 for and on behalf
of VENDOR.
(b) Rs.43,65,000/- (Rupees fourty three lakhs sixty five
thousand only) has been paid to M/s. VIC
Enterprises Pvt. Ltd. by way of cheque bearing
No.176170 drawn on Standard Chartered Bank,
New Delhi dt. 6.12.2004 for and on behalf of
VENDOR. M/s. VIC Enterprises Pvt. Ltd. had paid
the said sum of Rs.43,65,000/- to M/s. Regent
Square Promoters Pvt. Ltd. for clearing the
liabilities of VENDOR.
(c) Rs.10,00,000/- (Rupees ten lakhs only) has been
paid to State Bank of Travancore, Karol Bagh
Branch, New Delhi by way of cheque bearing
No.949632 drawn on Punjab National Bank, N-86,
Janpath, New Delhi dt. 6.12.2004 on behalf of
VENDOR.
(d) Rs.4,90,00,000/- (Rupees Four crores ninety lakhs
only) by way of draft bearing No.949633 drawn on
Punjab National Bank dt. 25.1.2005 to the State
Bank of Travancore, Karol Bagh Branch, New Delhi
in full and final settlement of all dues of the said
Bank and against release of title documents.
(e) Rs.29,19,447/- (Rupees twenty nine lakhs nineteen
thousand four hundred and forty seven only)
towards conversion charges by way of cheque/DD
no.949640 dt. 29.4.2005 favouring State Bank of
India A/c Land & Development Officer on behalf of
VENDOR.
(f) Rs.1,60,00,000/- (Rupees one crore sixty lakhs only)
has been paid to the VENDOR vide cheque/DD
No.949644 dt. 19.5.2005 drawn on Punjab National
Bank in the name of Registrar Delhi High Court,
New Delhi for the purposes of payment to M/s.
Mitsui and Company.
(g) Rs.50,000/- (Rupees fifty thousand only) has been
paid on behalf of VENDOR to M/s Gee Gee
Holdings Pvt. Ltd. vide cheque/DD No.176167 dt.
6.12.2004 drawn on Standard Chartered Bank.
(h) Rs.49,900/- (Rupees forty nine thousand nine
hundred only) has been on behalf of VENDOR to
Mr. Vijay Dixit vide cheque/DD No.176167 dt.
6.12.2004 drawn on Standard Chartered Bank.
(i) Rs.7,56,274/- (Rupees seven lakhs fifty six thousand
two hundred seventy four only) towards property tax
by way of cheque no.949634 dt. 21.2.2005 favouring
NDMC on behalf of VENDOR.
(j) Rs.3,74,353/- (Rupees three lakhs seventy four
thousand three hundred fifty three only) towards
Electricity charges by way of cheque No.949634 dt.
25.2.2005 favouring NDMC on behalf of VENDOR.
The VENDOR hereby acknowledges the receipt of
the said sum of Rs.8,99,14,974/- (Rupees eight
crores ninety nine lakhs fourteen thousand nine
hundred seventy four only) paid by the
PURCHASER and from payment whereof discharges
the PURCHASER. The balance sale consideration
of Rs.25,85,026/- (Rupees twenty five lakhs eight five
thousand and twenty six only) shall be paid by the
PURCHASER to the VENDOR at the time of
execution and registration of sale deed.
4. It is agreed by both the parties that all encumbrances shall
be removed by the VENDOR and sale deed as stated herein
shall be executed and registered in favour of PURCHASER
within a period of 15 days of receipt of conveyance deed
from L & DO.
5. That the VENDOR shall settle the matter with M/s. Mitsui
and Company and shall deposit the said sum of Rs.1.60
crores in Delhi High Court. The VENDOR shall inform the
PURCHASER as to when the cheque issued in the name of
Registrar, Delhi High Court is being presented so that
same can be cleared on presentation. If the said cheque is
required to be prepared in any other name, the VENDOR
shall inform the PURCHASER about the same and
PURCHASER shall handover a new cheque in lieu of and
on delivery of the old cheque to the VENDOR.
6. The VENDOR hereby confirms and assures the
PURCHASER that:
(i) save as mentioned in the Recitals hereinabove, the said
Property 61, Golf Links New Delhi is free from all
manner of encumbrances, charges, liens, lis-pendens,
attachments and trusts whatsoever;
(ii) there is no order of attachment of the Income Tax
Authorities with respect to the said Property and the
Demised Premises or any part thereof and no notice in
this behalf has been received by the VENDOR;
(iii) there is no subsisting Agreement for sale or MOU in
respect of the said property nor has it been disposed off
or transferred to any other person or persons under
any gift, Will, exchange or any other arrangement etc.
except with the PURCHASER;
(iv) there is no legal impediment or bar whereby the
VENDOR can be prevented from entering into this
Agreement;
(v) no one other than the VENDOR have any right, title or
interest in the said property and the VENDOR is
entitled to give marketable title thereto;
(vi) that the members of the VENDOR HUF have consented
to the said sale and no member or any person has
claimed any interest adverse to that of the VENDOR;
(vii) pending consummation of this agreement and till
execution of sale deed, the VENDOR shall not deal
with the said Property in any manner detrimental to the
interest of the PURCHASER.
That the PURCHASER based on the representation,
assurances and undertakings as made by the VENDOR and
believing the same to be true, has agreed to purchase the said
Property for the aforesaid consideration and to enter into this
Agreement to sell.
7. Upon making the payment as aforesaid to the VENDOR
and pending execution and registration of sale deed in
favour of PURCHASER and notwithstanding Power of
Attorney and other authorities granted by the VENDOR to
the PURCHASER and/or its nominee as contemplated
herein, the VENDOR hereby acknowledge that the
PURCHASER shall be irrevocably entitle and authorized
on its behalf to deal with the "said property" in all respects
whatsoever, including without being limited to:
(a) to take all steps as may be necessary to be taken to
pursue together with VENDOR proceedings for
conversion of the said Property to Freehold status
and thereafter to have the said property transferred,
conveyed and mutated in the name of PURCHASER
by valid registered Sale deed/Conveyance.
(b) To take all steps as may be necessary to be taken to
deal with any party which has filed any proceedings
against the said property in any Court or Tribunal.
(c) Without prejudice or derogation or generality of the
foregoing, to enforce all rights agreed to be
transferred to the PURCHASER as part of the said
Property under this Agreement mentioned herein.
8. Without prejudice to the foregoing, the VENDOR shall
remain bound to the execute and register a valid Sale
Deed/Conveyance for the said Property in favour of the
PURCHASER immediately on PURCHASER calling upon
the VENDOR for the said purpose. Stamp duty and
registration charges payable on any such Sale
Deed/Conveyance for the Demised Premises in favour of
the PURCHASER as well as transfer changes, if any,
payable shall be borne by the PURCHASER.
9. That on execution of this Agreement the VENDOR shall not
be left with any right, title or interest in the said Property,
except the right to receive the payment from PURCHASER
as per payment schedule.
10. That the VENDOR shall apply for all clearances, as may be
required, to the requisite authorities having jurisdiction
over the Property, for effectively transferring and
conferring the title of the PURCHASER.
11. That for the purpose of execution of sale deed and/or
obtaining necessary sanction and approvals the VENDOR
shall execute a General Power of Attorney in favour of the
nominee of the PURCHASER as and when called upon by
the PURCHASER.
12. That the PURCHASER is authorized to assign and
nominate all its rights under this agreement in favour of
any person and the VENDOR shall be bound to perform all
their obligations under this agreement to sell in favour of
such nominee or assignee of the PURCHASER.
13. The VENDOR and CONFIRMING PARTY hereby agrees
and convenants that they shall not do any act, deed or thing
which in any manner shall cause any injury or reduce or
diminish the rights of the PURCHASER on the property in
question or in any manner dilatory reduce or diminish their
right till the time of execution of the sale deed in favour of
the PURCHASER or at any time thereafter. The VENDOR
hereby agrees to indemnify the PURCHASER against all or
any such injury, loss or damages suffered by the
PURCHASER due to any act, deed or thing of commission
or omission done by the VENDOR or on its behalf.
14. That this agreement and terms thereof shall be final and
binding on both the parties and shall take precedence over
all other agreements, arrangements, understandings etc.
signed and executed or otherwise arrived at between the
parties.
15. That all the expenses with regard to the stamp duty etc. and
other cause of expenses for registration of this Agreement
and for sale/conveyance deed shall be borne by the
PURCHASER.
16. That the execution of the General Power of Attorney in
favour of the PURCHASER or its nominee will not absolve
the VENDOR from performing her obligations and to sign
and execute any document which may be required by the
PURCHASER for perfecting its title on the property in
question.
17. The VENDOR shall at the time of execution of the
agreement hand over the original of all documents and
photocopies of all other documents which are not in their
possession duly signed and certified, of the said property
and demised premises in its power and possession to the
PURCHASER.
18. The CONFIRMING PARTIES hereby confirm that:
(a) the VENDOR is fully and exclusively competent and
entitled to enter into this transaction of sale and
transfer the said property in terms of this
Agreement;
(b) they have absolutely no objection to the sale of the
said property in terms of this Agreement for sale and
are bound thereby;
(c) the sale to the PURCHASER in terms of this
Agreement is in the best interest of the HUF and its
members:
(d) The CONFIRMING PARTIES shall undertake and
confirm at the request and cost of PURCHASER any
and all deed(s) or document(s) as may be needed by
the PURCHASER to more effectively conform title to
the said property in its favour in future.
IN WITNESS WHEREOF the parties have signed and executed
this agreement for sale at New Delhi, on the day, month and year
first above mentioned.
WITNESSES :
Sd/-
1. VENDOR
(BHAI MANJIT SINGH
HUF) THROUGH ITS
KARTA AND MANAGER
2. MRS. MAHEEP MANJIT
SINGH
Sd/-
PURCHASER
M/S. SUNSHINE PVT.
LTD., THROUGH
AUTHORISED
REPRESENTATIVE/
DIRECTOR SH. ABHAY
AGGARWAL
CONFIRMING PARTIES
Sd/-
1. Mrs. Maheep Manjit Singh
Sd/-
2. Mr. Vikramjit Singh
Sd/-
3. Mr. Mohanjit Singh"
63. If one reads the entire agreement especially the emphasized portion
court is left with no doubt that the vendor that is D-1 to D-4 are left with
no right, title in the property in question on the execution of the
agreement. The defendants have already received almost the entire sale
consideration. Secondly, the irrevocable power of attorneys have been
executed in favour of the nominees of the plaintiff and certain possession
of the suit property has been transferred to the plaintiff and he has been
given right not only to make additions, alterations and demolitions but
most importantly, the "right to raise fresh constructions" which is sought
to be done by way of the present application.
64. It is only when the defendants have tried to wriggle out of the
aforesaid transaction on account of ulterior considerations and have taken
dishonest stand that the amount of money which was paid on different
dates preceding to the date of sale of the property was by way of loan that
the plaintiff approached the court. The stand of the defendants on the
face of it is dishonest because Sections 91 and 92 of the Indian Evidence
Act, 1872, lays down that when the document itself is reduced into
writing, the contents of the document are to be read in evidence. Further,
no evidence can be recorded to contradict the terms of the document
except as envisaged in any of the provisos to Section 92. It is not the case
of the defendants that its case falls in any specific proviso. Therefore,
this is only a false and dishonest plea of the defendant that the document
was not to be acted upon.
65. The defendant No.2, who is the executant of the document for and
on behalf of defendant No.1, HUF, as karta of its HUF has admitted her
signatures on the said document. Similarly, the signatures of the other
two members of the HUF are also not in dispute and the statements of
two of the members of the HUF have been recorded under Order X CPC
where this fact has been admitted. When their statements under Order X
were recorded none of the parties stated what has been stated in the WS
or now during the course of arguments that the transaction was sham or
not to be acted upon although this stand is not legally tenable. It was
sought to be explained by the learned senior counsel that no question in
this regard was put to the witness or that they were not expected to
disclose their defence at that stage.
66. I am not impressed by this argument at all because D-2 and D-3 are
educated persons. D-2 is a business woman, therefore, they know what
are the consequences of their signatures on document or what they are
stating in court. Therefore, the only inference which can be drawn from
the facts of the case and the defence taken by the defendants is that they
are actuated to take this dishonest stand only on account of the fact that
the value of the properties has gone up by leaps and bounds more so in
respect of prime properties in area like Golf Link. The D-2 has herself
admitted that the value of the property in her WS as Rs. 200 crores.
67. All the members of the HUF are educated people and especially
defendant No.2, Mrs. Maheep Manjit Singh, is a business women
understanding the language of English yet acting dishonestly, which
propensity, in my view, deserves to be curbed with the heaviest possible
hand at an appropriate stage, therefore, none of these judgments, in my
view, are applicable to the facts of the present case.
68. I am tempted here to refer to the observations made by the apex
court in some of the judgments with regard to the unscrupulous litigants
taking false and frivolous stand in property matters. These cases are
Maria Margarida Sequeria Fernandes and Ors. Vs.
Erasmo Jack de Sequeria (Dead) through LRs.; 2012 (3) SCALE 550
where it has been observed as under:
"84. False claims and defences are really serious
problems with real estate litigation, predominantly
because of ever escalating prices of the real estate.
Litigation pertaining to valuable real estate properties
is dragged on by unscrupulous litigants in the hope
that the other party will tire out and ultimately would
settle with them by paying a huge amount. This
happens because of the enormous delay in
adjudication of cases in our Courts. If pragmatic
approach is adopted, then this problem can be
minimized to a large extent."
69. Similarly, in Dilip v.State of UP & Ors.; (2010) 2 SCC 114, the
Supreme Court observed as under:
"1. For many centuries, Indian society cherished two
basic values of life i.e., 'Satya' (truth) and 'Ahimsa'
(non-violence). Mahavir, Gautam Buddha and
Mahatma Gandhi guided the people to ingrain these
values in their daily life. Truth constituted an integral
Dart of justice delivery system which was in vogue in
pre-independence era and the people used to feel
proud to tell truth in the courts irrespective of the
consequences. However, post-independence period
has seen drastic changes in our value system. The
materialism has over-shadowed the old ethos and the
quest for personal gain has become so intense that
those involved in litigation do not hesitate to take
shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings. In last
40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any
respect for truth. They shamelessly resort to falsehood
and unethical means for achieving their goals. In order
to meet the challenge posed by this new creed of
litigants, the courts have, from time to time, evolved
new rules and it is now well established that a litigant,
who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or final."
70. Now, coming back to the facts of the present case. The defendant
Nos.2 to 4 belong to exactly this breed of unscrupulous dishonest litigants
who have shamelessly taken false and frivolous stand that despite the
agreement to sell having been entered into by them with the plaintiff
which is elaborate one and more in the nature of sale agreement itself and
after having received 97% of the sale consideration and making the
plaintiff deposit another 1.46 crores in the court, handing over possession,
getting the plans sanctioned and applying for conversion of the leasehold
rights into freehold rights, have turned turtle raising all and sundry
defences to wriggle out of the agreement because value of the property
each day is ascending and according to the defendant No.2 herself has
pegged the same at Rs.200 crores. This is a classic case of taking a
defence which is not only dishonest, but trying to take advantage of the
dilatory processes because of which the plaintiff's patience would get
worn out and they are able to extract money. The court cannot permit
such unscrupulous litigants to take advantage of this unfortunate situation
which is existing in courts.
71. Relying on the judgment rendered in Rambhau Namdeo Gajre v.
Narayan Bapuji Dhotra (dead) through LRs.; 2004 8 SCC 614, Mr.Mata
has contended that the right to construct property on the basis of
possession of the suit property cannot be granted till the time the specific
performance of agreement to sell is allowed in favour of the plaintiff. He
has stated that Section 53A of the Transfer of Property Act is only a
shield and not a sword. Since in the instant case, agreement to sell
coupled with transfer of possession is set up by the plaintiff in the suit for
specific performance, therefore, at best it can be used as a shield, while as
by seeking a right to construct, the plaintiff is essentially using the said
document as a sword and the same cannot be allowed.
72. I do not agree with this contention of the learned counsel for the
defendants as this judgment is not applicable to the facts of the present
case. Although there is no dispute about the proposition that agreement to
sell coupled with transfer of possession agreed to Section 53A can be
used as a shield and not as a sword, but then a distinction has to be made
from case to case basis.
73. This judgment has no applicability in the present case. The vendor
has no right, title or interest in the property left after signing of the
agreement. The plaintiff has been given the right to demolition, make
additions/alterations and even right to construct. The old property has
been demolished, plans had been sanctioned which can be got
revalidated. The contention of Mr. Sibal that these plans were sanctioned
on the basis of POA of Joshi and Kutty which stands revoked is of no
consequence. Same is the case with regard to the POA of Abhay
Aggarwal, Director of the plaintiff/company whose POA has been
revoked by D-2 in August, 2011 or so. That POA was also irrevocable
because it was for consideration having been paid by the plaintiff and
there are judgments galore that such attorneys cannot be revoked. The
plaintiff has already been given right to represent the defendants under
the agreement for enjoyment of the property, therefore, in my view,
revocation is of no consequence and the plaintiff can authorize any
person to represent it or the defendants for the purpose of raising
construction. So far as L&DO and NDMC is concerned the reason for
this is that under the agreement the plaintiff has been given the right to
get the plan sanctioned and to take all other ancillary steps which may be
necessary for the enjoyment of the property.
74. Mr. Sibal, the learned counsel for the defendant has also drawn the
attention of the court to certain averments made in the replication to
contend that the case of the plaintiff in replication was that the power of
attorney in favour of Joshi and Kutty was pre-dated and thus this
establishes that the said document itself was forged and fabricated and
once this is the stand of the defendant themselves, it could not be made
basis of seeking right to construction.
75. So far as this submission is concerned, firstly replication is not a
part of the pleading and, therefore, it cannot be taken into consideration
for the purpose of canvassing the point as has been sought to be urged. In
any case, the court is not granting or examining right to construction of
the plaintiff in the light of this power of attorney. The court is examining
the factum of permission to raise construction in the light of the rights
and obligations of the parties in terms of the agreement to sell dated
29.07.2005. Therefore, this submission of Mr. Sibal, in my view, does not
merit any consideration.
76. The next submission which was made by Mr. Sibal was that the
defendant had executed agreement to sell transferring the possession of
the suit property in favour of the company known as Regent Square
where also Burmans had some interest. The said agreement was also
executed in the nature of a security as was done in the instant case.
Therefore, this agreement dated 29.07.2005 is not an agreement of sale
but is only a sham document. This submission also does not merit any
consideration. As a matter of fact, this argument of Mr. Sibal clearly
shows that the defendants are not trustworthy. If one reads agreement to
sell, they assure the vendee that the property is not mortgaged to anybody
or no agreement to sell etc. has been executed in respect of the property
in favour of any person other than the plaintiff while on the date when the
agreement to sell was entered into with the plaintiff, there was also an
agreement on the similar lines with the Regent Square. This argument is
also contradictory to Sections 91 and 92 of the Evidence Act, 1872 which
clearly lays down that once the document is reduced into writing with
regard to disposition of the property, then it is only the document which
can be looked into. Therefore, the transaction which the defendant
entered into with Regent Square has no meaning for consideration.
CONCLUSION:
77. In the light of the aforesaid discussion, the following conclusion is
arrived at:
i) That the defendants are unscrupulous and dishonest litigants and
taking advantage of the dilatory processes of law and, therefore, they
have taken every possible objection to the agreement to sell to thwart the
prayer of the plaintiff.
ii) The plaintiff has been able to establish not only a prima facie case,
but more than a prima facie case for grant of right to construction on the
touchstone of Dorab Ji's case (supra). This is on account of the fact that
the agreement to sell takes note of the previous transactions which had
taken place between the plaintiff and the defendants either directly or for
and on behalf of defendants and the details thereof are reflected in the
agreement to sell itself. This also takes note of the fact that a transaction
had taken place with Regent Square.
iii) On the execution of the agreement to sell which is done at the
instance of the defendants themselves as vendors and which is accepted
by the plaintiff as a vendee, the right title or interest of the defendant
Nos.1 to 4 in the suit property has ceased to exist and the right of the
plaintiff in the said property has been created for the full enjoyment of the
same as if he is the owner and for this purpose he has been permitted to
demolish, make alterations, additions in the structure or raise new
structure and apply to the competent authorities for obtaining no
objection or sanctioned plan etc. The defendants themselves have
admitted that the plaintiff was permitted to carry additions and alterations
in the agreement which also mentions of raising new construction.
iv) A reading of the agreement to sell which is running into details
clearly shows that the agreement to sell is in the nature of a sale
document except that the title of the plaintiff was to be perfected by the
defendants by firstly getting the property converted into freehold and then
transferring the same to the plaintiff within fifteen days of such
conversion.
v) The balance of convenience is in favour of the plaintiff inasmuch
as they are in possession of the suit property for the last nearly nine years
in an uninterrupted manner, the plan of the building has already been
sanctioned which is valid till 15.06.2015 and can be got revalidated.
vi) The plaintiff will suffer an irreparable loss inasmuch as they will
not be able to enjoy the property despite the fact that they have furnished
undertaking to the court that they will not claim any special equities on
account of construction having been raised by them. Accordingly,
plaintiff is permitted to raise construction at the suit property in
accordance with the sanctioned plan.
vii) So far as the L&DO and NDMC are concerned, in terms of the
orders passed by the Division Bench, they shall entertain the application
on behalf of any authorized representative of the plaintiff as if it is given
by the owner of the suit property and grant them necessary permissions,
extensions, revalidation of the plans etc. for the purpose of raising
construction.
viii) The L&DO and NDMC are restrained from acting in any
manner whatsoever on the basis of any representation, letter,
document purported to have been given by the defendants or their
attorneys or agents which may cause any obstruction in the process
of taking a decision on sanctioning of plan or no objection
certificate.
ix) The plaintiff shall raise construction on the suit property in
accordance with the sanctioned plan and to the extent permissible by the
L&DO and they shall further furnish a fresh undertaking to the court that the
construction will be raised by the plaintiff in accordance with the sanction
plan and they shall not claim any special equity or damages on account of
the construction having been raised by them on the suit property in the
event of the suit being ultimately decided against them.
x) The undertaking shall also contain a condition that in the event of
suit being decided against them, if the court directs them to remove or
demolish the superstructure, the same shall be done.
78. With these observations, the application is allowed.
79. Normally, while passing an ad interim order, the court would have
observed that expression of any opinion made therein shall not be treated
as an expression on merits of the case. However and deliberately, I am
refraining from making such an observation on account of the fact that
the court has after examining the documents formed an opinion that the
defendants are unscrupulous and dishonest litigants and it is for the
successor court to form its own view on the basis of this order with regard
to the conduct of the defendants.
V.K. SHALI, J.
MAY 20, 2015
dm
