M/S Sentinel Consultants Pvt Ltd vs Sudhir Malhotra & Ors
2016 Latest Caselaw 6249 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     EX.P. 329/2012

      M/S SENTINEL CONSULTANTS PVT LTD           ..... Decree Holder
                    Through : Mr Suresh Singh, Advocate.

                          versus

      SUDHIR MALHOTRA & ORS                  ..... Judgement Debtor
                   Through : Mr Bijender Singh and Ms Aashima
                   Gupta, Advocates for JD Nos. 3 & 4
      CORAM:
      HON'BLE MR. JUSTICE VIBHU BAKHRU
                   ORDER

      %            27.09.2016
EX APPL (OS) No. 527/2016
    Allowed, subject to all just exceptions.

      The application is disposed of.

Ex APPL (OS) No. 525/2016

1. This is an application filed by Judgment Debtor No.3, inter alia, praying as under:-

"(a) recall the impugned order dated 27.01.2016 and consequential order dated 25.07.2016 passed in the present Execution Petition vide which warrant of possession were issued in favour of the decree holder and against the judgment debtor No.3 and 4; and

(b) dismiss the Execution Petition qua the judgment debtors No.3 and 4; or in alternative, stay the proceedings under present execution petition till the disposal of Civil Suit No. 39 of 2016."

2. The above captioned petition has been filed by the Decree Holder

(DH) for execution of a decree dated 21.10.2011 (as modified on 10.10.2012 pursuant to the decision dated 21.05.2012 of the Division Bench in RFA (OS) 20/2012) for specific performance of an Agreement to Sell dated 27.03.1997.

3. The DH had filed a suit (CS (OS) 1571/1998), inter alia, praying for specific performance of an Agreement to Sell (the Agreement) dated 23.03.1997. The DH (plaintiff) was a tenant under the defendant No.1 in the said suit in respect of ground floor of the property bearing No. A-249, Defence Colony, New Delhi. Defendant No.1 therein had entered into a Collaboration Agreement with defendant No.2 for demolition of the then existing structure and reconstruction on the property bearing No. A-249, Defence Colony, New Delhi. Under the Collaboration Agreement, basement, ground floor and terrace floor of the aforesaid property were to be given to defendant No.1 and the first floor and second floor were to belong to defendant No.2. The DH (plaintiff in the said suit) and defendant Nos. 1 & 2 in the aforementioned suit entered into the Agreement dated 27.03.1997 whereby defendant No.1 agreed to sell all his rights and interests including property rights in the basement to be constructed on the aforesaid property to the DH (plaintiff). The total consideration for the basement was fixed at `12,25,000/- out of which a sum of `25,000/- was paid by the DH (plaintiff) to defendant No.1 at the time of execution of the said agreement. Out of the balance sale consideration of `12 lakhs, ` 2 lakhs was payable to defendant No.1 on the possession of the basement being handed over and `10 lakhs was agreed to be adjusted on account of relinquishment of subsisting tenancy rights which DH had in respect of the ground floor of the said property.

4. In the aforementioned suit, this Court had passed an interim order on 03.08.1998 directing the parties therein to maintain status quo in respect of the ground floor and first floor of the property in question, which was subsequently modified on 10.11.1998 by directing the parties to maintain status quo with respect to basement only.

5. Despite the aforesaid orders, the defendant No.1 delivered the suit property to one M/s ESSEMM Realtors through Judgment Debtor (JD) No.3 (the applicant in the present application). Thereafter, by a sale deed dated 28.01.2003, defendant No.1 sold the basement measuring about 450 sq. feet to JD Nos. 3 and 4. This Court by a judgment dated 21.10.2011 granted the specific performance of the Agreement dated 27.03.1997 in favour of the Decree Holder. This Court further specifically held that "in view of the injunction order passed by this Court on 3rd August, 1998, the defendants could not have let out the basement portion to Mr Sanjay Sharma and Mr Manoj Kain and they could not have sold it to them vide sale deed dated 28 th January, 2003. The lease created as well as the sale deed executed in their favour being in violation of the injunction order passed by this Court are void List before another Bench on 10.08.2016, subject to orders of Hon'ble the Judge Incharge (Original Side). Initio and non est in law which the Court is required to ignore from consideration."

6. JD Nos. 3 and 4 preferred an appeal before a Division Bench of this Court (RFA (OS) 20/2012) against the aforesaid judgement dated 21.10.2011, which was dismissed by an order dated 21.05.2012 and the findings of the Learned Single Judge were upheld. However, the division bench directed that the sum of `2,00,000/- deposited by the DH in this court be paid to the appellants (JD Nos. 3 and 4). JD Nos. 3 and 4 carried the

matter to the Supreme Court by way of a Special Leave Petition, which was also dismissed. In the aforesaid view, the finding that the sale deed executed in favour of JD Nos 3 and 4 during the pendency of the suit and in violation of the interim injunction was voidable at the option of the DH has attained finality and, therefore, is no longer open to challenge.

7. After having exhausted their remedy in the Supreme Court, JD Nos. 3 and 4 have filed a suit being Civil Suit no. 39 of 2016 before the District Judge, South District, Saket Courts alleging that the decree dated 21.10.2011 was obtained by collusion and inter alia praying as under:

(i) decree the suit by declaring the judgment and decree dated 21.10.2011 passed in Civil Suit (OS) No. 1571 of 1998 by the Hon'ble High Court of Delhi (Original Side) illegal, null and void;

(ii) decree the suit for permanent injunction qua suit properly in favour of the plaintiffs and against the defendants whereby the defendants, their office j bearers, members, legal heirs, assignees, legal representatives or anyone else claiming through, under and for and on behalf of the defendants be restrained from dispossessing the plaintiffs from the suit property;"

8. In its Written Statement filed in the aforementioned suit (Suit 39/2016), the DH has averred that at the material time, it was protected under the Delhi Rent Control Act. It is JD No. 3's case that the DH had incorrectly represented before this court (in suit No 1571/1998) that it was a tenant of the ground floor of the property in question and was paying a rent of `6000/- and, therefore, was outside the ambit of the Delhi Rent Control

Act. The learned counsel for the applicants states that the aforesaid statement was false as it is contrary to the written statement filed by the DH in the suit (Civil Suit No. 39/2016) filed by JD Nos. 3 and 4.

9. It is, thus, contended that decree sought to be executed in this petition has been obtained by fraud and is a nullity. The learned counsel for JD No,3 (the applicant) referred to the decision of the Supreme Court in S.P. Chengalvaraya Naidu vs. Jagannath and Ors: 1994 (1) SCC (1) in support of his contention that the decree was a nullity since it was secured fraudulently and this contention could be agitated in any proceedings and at any stage.

10. The learned counsel appearing for the DH submits that the statement made in the written statement filed in Civil Suit No. 39/2016 is factually erroneous and in fact, the decree holder's tenancy was not covered under the Delhi Rent Control Act. He further submits that an executing court cannot go behind a decree.

11. I am unable to accept that the decree in question was obtained by fraud as alleged. There is no finding of any court that the decree was obtained by fraud nor has any court found that the statement that the rent paid by the DH at the material time for the ground floor of the premises in question was less than `3,500/-. The decision in the case of Chengalvaraya Naidu (supra) would have no applicability in the facts of the case as fraud is neither apparent nor established. It is well settled that an executing court cannot go behind a decree (See: Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors: (1970) 1 SCC 670).

12. Further, admittedly, JD Nos. 3 & 4 claim to have acquired the

property in question while the order of status quo as to the basement was operative and, in any event, the finding that the said sale deed in their favour is voidable has attained finality and cannot be assailed. In this view, the question whether the decree has been obtained by making an incorrect statement - which is also neither apparent nor established - is not material. Since the sale deed executed in favour of JD Nos. 3 & 4 on the basis of which JD Nos. 3 & 4 are claiming right in the property has been held to be voidable, the said JDs cannot object to the present execution petition.

13. JD Nos. 3 and 4 are only entitled to receive a sum of Rs.2 lakhs which has already been deposited in the Court. In the circumstances, JD Nos. 3 and 4 are at liberty to approach the Registry for withdrawal of the said amount with accrued interest. However, it is not open for the JDs to resist handing over possession of the property to the DH on the said ground. The application is thus dismissed.

EA (OS ) No. 526/2016

14. In view of the above order, this application does not survive and is disposed of.

EX.P. 329/2012 & EA (OS) Nos. 729/2012

15. List on 23.01.2017.

VIBHU BAKHRU, J SEPTEMBER 27, 2016 pkv