Pankaj Bali vs Maya Properties Pvt Ltd & Ors
2015 Latest Caselaw 8148 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment pronounced on: 29th October, 2015

+              I.A. No.1662/2014 & I.A. No.9415/2014
               in CS(OS) 239/2014

        PANKAJ BALI                                                ..... Plaintiff
                                Through      Mr.Anil Airi, Adv. with
                                             Mr.Ravi Krishan Chandna,
                                             Ms.Sadhana Sharma, Mr.Aman
                                             Madan & Mr.Ishan Khanna, Advs.

                                versus

        MAYA PROPERTIES PVT LTD & ORS              ..... Defendants
                      Through    Mr.Akhil Sibal, Adv. with
                                 Mr.Nishit Kush, Ms.Mercy Hussain
                                 & Mr.Aditya Garg, Advs.

        CORAM:
        HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit for specific performance of Receipt-cum-Agreement to Sell and Purchase dated 11th February, 2013.

2. By order dated 28th January, 2014 the defendants were restrained from selling, transferring, dealing with, disposing of, alienating encumbering or creating any third party interest in the suit property till the next date of hearing.

3. The plaintiff has alleged in the plaint that he had entered into an Agreement to Sell dated 11th February, 2013 with the defendant No.1 through its Director Mr. Jai Bhagwan Chaudhary (husband of

defendant No.2 and father of defendant No.3) for purchase of agriculture land measuring 2 acres 1 biswa comprising in Khasra No. 23/4 (1 Bigha), 23/1 (8 Biswas), 25/1 (14 Biswas), 18-3 (1Bigha), 120-18-2 (1 Bigha) i.e. 1Acre 1Biswa and Khasra No. 122/6/15 (3 Bigha 1 Biswa) and Khasra No. 122/6, 123/27 i.e. 1acre comprising of old structure having 3 bedrooms and 1 drawing room situated in the revenue estate of village Biswasan, Tehsil Vasant Vihar, New Delhi (hereinafter referred to as the 'suit property') for total sale consideration of Rs.1,20,00,000/-. The plaintiff has further alleged that he had paid a sum of Rs 1,16,00,000/- in cash to Mr. Jai Bhagwan Chaudhary, receipt of which is acknowledged in the Agreement and had also received the possession of the suit property simultaneously with the execution of Agreement to Sell dated 11th February, 2013 and he has been and continues to be in possession of the suit property.

4. The plaintiff further alleged that the balance sum of Rs 4,00,000/- was deposited by him in current bank account of the defendant No.1 through a cheque. Thereafter, Mr. Jai Bhagwan Chaudhary expired on 25th July, 2013. On the basis of alleged facts the plaintiff has filed the suit for specific performance of Receipt cum Agreement to Sell dated 11th February, 2013 in respect of the suit property along with the application for temporary injunction under Order XXXIX Rule 1 and 2 CPC being I. A. No. 1662/2013 for grant of interim injunction.

5. In view of the aforesaid facts, by order dated 28th January, 2014 an ex parte interim injunction was granted in favour of the plaintiff and directed the defendants to restrain from selling, transferring,

dealing with, disposing of, alienating, encumbering or creating third party interest in the suit property.

6. The defendants have filed the written statement and an application under Order XXXIX Rule 4 CPC being I. A. No. 9415/2014 for vacation of injunction order dated 28th January, 2014. The defendants have denied all the averments and allegations of the plaintiff. It is alleged that the signatures appearing on the alleged Agreement to Sell dated 11th February, 2013 be sent to Central Forensic Science Laboratory for examination.

7. In the written statement the case of the defendants is that the alleged Receipt cum Agreement to Sell dated 11th February, 2013 is not valid and binding document and cannot be enforced being a manufactured and fabricated document. It is further stated that the said document was never executed by Late Mr. Jai Bhagwan Chaudhary on behalf of the defendant No.1 or any other capacity and the signature purported to be signatures of Late Mr. Jai Bhagwan Chaudhary are not his signatures. Late Mr. Jai Bhagwan Chaudhary had already surrendered his authority to sign on behalf of the Company vide Board Resolution dated 10th September, 2012 due to his ill health and had also transferred his shares in the Company in favour of the defendant Nos. 2 and 3.

8. It is also alleged by the defendants that the Khasra No. 120-18- 2 mentioned in the suit property does not belong to the defendant No.1, however Khasra No. 120-18/2 belongs to Gaon Sabha. Further Khasra No. 122/6/15 does not exist and Khasra Nos. 122/6 and 123/27 belongs to the defendant No.1 but the land area is not properly defined in the suit property. Moreover no old structure of 3

bedroom and 1drawing room is on the suit property, while only dilapidated structure without roof exists on the site.

9. It is mentioned by the defendants that the plaintiff has falsely mentioned in the plaint that the possession of the suit property was handed over to him simultaneously with the execution of Receipt cum Agreement to Sell dated 11th February, 2013, however possession of the khasra Nos. mentioned in the suit property which belong to the defendant No.1 are still in its possession who was never parted with possession of the same. In fact the plaintiff admitted in his replication to the written statement that since the land was vacant and contiguous to other land belonging to the defendants, he was not allowed to enter into suit property after service of notice. The plaintiff himself admitted that after service of notice he was not allowed in the suit property and further alleged possession of the suit property he has already transferred to one Ms. Neeta Prakash vide Agreement to Sell dated 8th May, 2014.

10. It is alleged on behalf of the defendants that under these circumstances, it is admitted fact that the plaintiff is not in possession of the suit property. The contention of the plaintiff is merely that he was not allowed to enter the suit property after service of notice is entirely vague, lacking in all material particulars, unsupported by any evidence and obviously an afterthought. Thus obviously the statement in the plaint that the plaintiff is in possession of the suit property was entirely false.

11. The plaintiff is not able to establish that he is in possession of the suit property and it is only the defendant No.1 who is in possession of the suit property. Merely vague statement is made in

the plaint that he is in possession, but in the replication he has modified his stand in para 3(d) of the replication.

12. It is alleged by the defendant No.1 in its written statement that the defendant No.1 is the owner in possession of some of the Khasra Nos. mentioned in the suit property and the same along with other land of the defendant No.1 are bounded by a boundary wall and is also fenced with barbed wire and there are watchmen/ guards posted for the safeguard of the same since long.

13. It is specially alleged by the defendants that the plaintiff has not paid any consideration of Rs.1,16,00,000/- in cash to the defendant No.1 as mentioned in the plaint. The alleged cheque of Rs. 4,00,000/- towards the balance consideration was purportedly deposited by the plaintiff in the defendant No.1's bank account was issued by one Ms. Neeta Prakash without the knowledge of the defendants.

14. It was informed to the court by the defendants during hearing that the plaintiff has failed to show any other document except Receipt cum Agreement to Sell dated 11th February, 2013 vide which the defendants had accepted the receiving of the alleged cash of Rs. 1,16,00,000/- from the plaintiff. Further the plaintiff had no financial capacity to pay such a huge amount of Rs.1,16,00,000/- to the defendants. The plaintiff is working and employed by the agent of Mr. Naveen Malhotra, the witness of the alleged Receipt cum Agreement to Sell dated 11th February, 2013, otherwise he has no resource to purchase the suit property. The request was also made by the defendants to examine the plaintiff under Order X CPC to ascertain his identity and in respect to money allegedly paid by him in cash to Late Shri Jai Bhagwan Chaudhary.

15. It has come on record as per material placed that one Mr. Naveen Malhotra had filed a police complaint dated 11th February, 2013 in Greater Kailash, Police Station against the defendants with allegations pertaining to entire landholding of the defendant No.l stating that he has joint ownership of 11 acres land with the defendant No.1 and he has not received his share of payments from the defendants, without any substance and proof. In fact he failed to give any proof on what basis he is claiming ownership of defendant No.1's land. The present suit is collusive and is a result of conspiracy to grab the land of the defendant No.1 and the same is proved from the fact that firstly Mr. Naveen Malhotra had filed false and frivolous complaint against the defendants before the police; thereafter the plaintiff manufactured the Agreement to Sell dated 11th February, 2013 to deceive the defendants and Mr. Naveen Malhotra became one of the witness in that Agreement and later on during the pendency of the present suit the plaintiff had transferred all his alleged rights, title and interest in the suit property to one Ms. Neeta Prakash who is sister of Mr. Naveen Malhotra and with whom the plaintiff allegedly has family terms and surprisingly Mr. Naveen Malhotra again became one of the witnesses in the Agreement to Sell dated 8th May, 2014 allegedly executed between the plaintiff and Ms. Neeta Prakash.

16. After having gone through the pleadings of rival parties, this Court by order dated 1st August, 2014 had recorded that it would be appropriate that if the validity of the Agreement to Sell dated 11 th February, 2013 allegedly signed by Late Shri Jai Bhagwan Chaudhary is verified by CFSL, Hyderabad and therefore directed the Registrar General of this Court that the original Agreement to Sell which contains disputed signature and specimen signatures of Late Shri Jai

Bhagwan Chaudhary to be obtained from Karnataka Bank Ltd, R. K. Puram Branch in which he was maintaining the account, send to CFSL, Hyderabad for comparison. The defendants submitted the passport of the deceased and the specimen signatures of deceased were also procured from Karnataka Bank Ltd, R. K. Puram Branch and sent to CFSL, Hyderabad.

17. By an application being I.A. No. 18674/2014 under Order XI Rule 14 CPC, the plaintiff alleged that Late Shri Jai Bhagwan Chaudhary had habit of signing different documents with different signatures and even before banks where he was also maintaining the bank accounts i.e. Andhra Bank, Palam Vihar Branch, Gurgaon and State Bank of India, Rajpur Road, New Delhi, therefore, more signatures of Late Shri Jai Bhagwan Chaudhary were required to be sent to CFSL for comparison. The Court acceded the request of the plaintiff by order dated 10th October, 2014 and directed the Andhra Bank, Palam Vihar Branch, Gurgaon to produce the specimen signatures of Late Shri Jai Bhagwan Chaudhary and further directed the Registrar to send the same for comparison along with earlier documents. Thereafter, the specimen signatures from Andhra Bank, Palam Vihar Branch, Gurgaon and State Bank of India, Rajpur Road, New Delhi were procured and registered power of attorneys executed by Late Shri Jai Bhagwan Chaudhary were also submitted by the defendants for comparison.

18. It is admitted position that the plaintiff despite of direction issued on 26th November, 2014 also has not produced on record any proof of the amount of Rs.1,16,00,000/- allegedly given by the plaintiff to Late Mr. Jai Bhagwan Chaudhary. On query, counsel for the plaintiff conceded that the plaintiff has not filed any proof in

respect of alleged payment in cash and the said fact is duly recorded in order dated 27th January, 2015.

19. Thus, the plaintiff has also failed to provide any details and proof on the date of hearing of interim applications that the payment of Rs.1,16,00,000/- in cash to Late Shri Jai Bhagwan Chaudhary despite directions of this Court, therefore the Plaintiff has not been able to establish prima facie case in his favour. The balance of convenience also lies in favour of defendant No.1.

20. On 30th April, 2015 in the open Court, the CFSL report was opened and read out and the court had recorded that CFSL report dated 7th January, 2015 states that when the specimen signatures of Mr. J. B. Chaudhary are compared with the signatures on the face of Agreement to Sell and Purchase dated 11th February, 2013 it is clear that there are differences between the writing habits of the questioned signatures, which are fundamental in nature and beyond the range of natural variation and disguise. It is opined that the author of the signatures contained in the Agreement to sell and purchase dated 11th February, 2013 is not the one whose specimen signatures were forwarded to the CFSL for the purpose of comparison.

21. Even otherwise, the plaintiff himself contended that during the pendency of the instant suit he has sold the suit property to one Ms. Neeta Prakash, vide Agreement to Sell dated 8th May, 2014 therefore he has no locus to raise any objections in respect of the suit property. Counsel for the defendants has rightly pointed out that the ownership of an immovable property cannot be transferred only on the basis of an unregistered agreement to sell. The plaintiff is claiming his right on

the suit property only on the basis of an alleged Receipt cum Agreement to Sell dated 11th February, 2013 and the said document itself is under cloud as per report of CFSL.

22. It is also settled law that any contract of sale, which is not registered, will not confer any title or transfer any interest in an immovable property. Only an Agreement to Sell (in the present case the Receipt -cum-Agreement to Sell dated 11th February, 2013 is a doubtful document as per CFSL report) with or without possession is not a deed of conveyance. Reliance is placed on Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656. An agreement to sell does not create an right /title in favour of the intending buyer as held by the Supreme Court in the case of Meghmala v. Narasimha Reddy (2010) 8 SCC 383.

23. The Supreme Court has held that conduct of the plaintiff is an important element for consideration in exercise of a relief in a case for Specific performance which is a discretionary relief. Reliance in this regard is placed on R. C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140, Lourder Mari David v. Louis Chinnaya Arogiaswamy (1996) 5 SCC 589, S.P Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853.

24. Under these circumstances, the plaintiff has not been able to make out a prima facie case in his favour, nor is the balance of convenience in favour of the plaintiff. He will also not suffer any irreparable loss and injury if the order dated 28th January, 2014 is vacated. The plaintiff has to prove his case about the alleged agreement in trial.

25. Therefore, the plaintiff is not entitled to any relief of injunction against the defendants. Therefore, the interim order dated 28th January, 2014 is vacated. The application filed by the plaintiff for interim injunction is dismissed with cost of Rs.50,000/- which shall be deposited by the plaintiff with the Prime Minister Relief Fund within four weeks. Consequently the application, being I.A. No. 9415/2014 of the defendants for vacation of order dated 28th January, 2014 is allowed.

26. Both applications are accordingly disposed of.

CS(OS) 239/2014

27. List before the Joint Registrar on 13th January, 2016.

(MANMOHAN SINGH) JUDGE OCTOBER 29, 2015