Jaswin Arora vs Harmeet Singh Sood & Ors
2018 Latest Caselaw 2145 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Reserved on: 04th April, 2018
                                    Pronounced on: 06th April, 2018

+    CS(OS) 3056/2014, IA Nos.19555-19556/2014, 13825/2016,
     601/2018, 3154-3155/2018, O.A. 8/2018

     JASWIN ARORA                                     ..... Plaintiff
                         Through:   Mr.Kunal Tandon and Ms.Ria
                                    Anand, Advocates.

                         versus

     HARMEET SINGH SOOD & ORS               ..... Defendants
                 Through: Mr.Pardeep Gupta, Mr.Parinav
                           Gupta, Ms.Mansi Gupta and
                           Mr.Moazzam Ali, Advocates for
                           D-6.
                           Mr.Rajshekhar Rao and Mr.Ravi
                           Kapoor, Advocates for D-7.
                           Mr.Kush Sharma, Advocate for
                           DDA.
                           Mr.Manish Sharma and Mr.Ninad
                           Dogra, Advocates for Applicants
                           in IA No.11797/2017.

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

IA No.11797/2017

1. This application under Section 151 CPC is moved by the applicant Smt.Sangeeta Sen, an owner of the front ground floor portion of the

premises bearing No.D-16, Greater Kailash Enclave, New Delhi, seeking clarification of the orders dated 09.10.2014 and 23.11.2015 passed by this Court. The order dated 09.10.2014 inter alia notes as under:-

""I.A. No.19555/2014 Issue notice to the defendants, for the date fixed.

Learned counsel for the plaintiff is pressing for an ex parte ad-interim injunction. In view of the statement made in the plaint and the original documents produced by the plaintiff, it appears to the Court that the plaintiff has been able to make out a strong prima-facie case for the grant of an ex parte ad-interim injunction in her favour. The balance of convenience also lies in favour of the plaintiff and against the defendants. Till the next date of hearing, the defendants are restrained from selling, alienating, transferring or parting with possession or creating any third party rights and interest in respect of the suit property, i.e. basement, ground floor and terrace rights of the property bearing No.D-16, Greater Kailash Enclave-I, New Delhi.

Compliance of Order XXXIX Rule 3 CPC be made within one week. Dasti."

Order dated 23.11.2015 reads:-

"I.A. No.10019/2015 The abovementioned application has been filed by the plaintiff seeking prayer that plaintiff be allowed to fix a sign board at some conspicuous place at the suit property wherein the fact of pendency of the litigation and passing of an interim order on the suit property is mentioned. Defendant Nos.2 and

3 are yet to be served. No one appeared on behalf of defendant No.4. Defendant No.2 is served by the publication. In view of the reason stated in the application, the same is allowed. The plaintiff is allowed to fix a sign board at the suit property wherein the fact of pendency of the litigation and passing of an interim order on the suit property is mentioned.

The application is disposed of."

2. The learned counsel for the applicant has referred to the prayer clause of the plaint as well as the prayer made in the injunction application (IA No.19555/2014)which notes as under:-

Plaint "i) pass a decree in favour of the plaintiff and against the defendants, more particularly the defendants no.1, 2, and 3 directing the defendants to specifically perform the Agreement to Sell/ Memorandum of Understanding dated 19.05.2012 and 22.5.2012 thereby directing the Defendants No.1, 2, and 3 to specifically perform their part of the contract by obtaining all the requisite permissions/ NOCs from the authorities concerned and also to clear all the charges in respect thereto and by executing the sale deed to sell, transfer and convey the right, interest and title in respect of the rear Ground Floor, rear basement and terrace rights and above alongwith the proportionate land rights of the property bearing No.D-16, Greater Kailash Enclave Part-I, New Delhi- 110048 in favour of the Plaintiff and in the alternative this Hon'ble Court may be pleased to get the compliance of the decree

through any officer of this Hon'ble Court at the cost of the defendants;

ii) pass a decree of possession in favour of the plaintiff and against the defendants, more particularly the defendant no.4 directing the defendant to handover the vacant peaceful possession of the rear ground floor portion of the property bearing no. D-16, Greater Kailash Enclave-I, New Delhi;

iii) pass a decree of perpetual injunction restraining the defendants from selling, transferring, alienating and or creating third party rights therein and creating any encumbrance on the said property in favour of the plaintiff and against the defendants;

iv) pass a decree of mandatory injunction directing the defendant no.5, DDA, to take up the case file of the property in question bearing no.D-16, Greater Kailash Enclave, Part -I, New Delhi and to convert the property from leasehold to freehold in full or floorwise or in parts.

v) costs of the suit be also awarded in favour of the plaintiff and against the defendants."

Prayer made in injunction application is:-

"pass an ad-interim injunction, restraining the defendants, their agents, associates, nominees, servants, attorney, representatives etc, from selling, alienating, transferring or parting with the possession, or creating any third party rights and interest etc. in respect of the basement, Ground Floor and terrace rights in respect of the property bearing no.D-16, Greater Kailash Enclave-I, New Delhi"

3. The above prayer clauses have been read out by the learned counsel for the applicant to demonstrate the plaintiff had though asked for relief only qua the rear ground floor and rear basement of the property in his plaint, but deliberately had noted the entire ground floor and entire basement in his injunction application under Order 39 Rule 1 & 2 of the CPC as such has succeeded in getting an order dated 09.10.2014 for the entire ground and entire basement of the property.

4. It is alleged the applicant is an owner of the front portion of the ground floor and as such the orders dated 09.10.2014 and 23.11.2015 need clarification. The learned counsel for the applicant rather has referred to the averments made by the plaintiff in paras No.14 & 20 of his plaint and it notes:-

"14. That in order to repose confidence in the plaintiff that the defendant no.1 was ready and willing to abide by the terms and agreement of the Memorandum of Understanding dated 19.5.2012, so as to enable the plaintiff to enter into a collaboration agreement to redevelop and reconstruct the building in question, the defendant no.1 had executed a third agreement to sell dated 17.7.2012, in respect of Front Basement and Front Ground Floor portion of the property in question for a further total sale consideration of Rs.3,00,00,000/-. It is relevant to mention here that on the pretext of getting the agreement to sell dated 17.7.2012, the defendant no.1 had extracted from the plaintiff a further sum of Rs.62,00,000/- on 17.7.2012, Rs.60,00,000/- on 21.7.2012, and Rs.40,00,000/- on

10.8.2012, thereby confirming that the complete payment in respect of the rear ground floor portion of the property had been made to the defendant no.1. The defendant no.1 had handed over the vacant and peaceful physical possession of the rear ground floor portion of the property to the plaintiff vide a possession letter dated 21.7.2012. On 9.8.2012 the plaintiff had paid a sum of Rs.32,00,000/- to Mrs. Sonia Singh in respect of the rear basement portion of the property in question. Accordingly, the plaintiff had paid a total sum of Rs.47,00,000/- to the defendant no.2, Mrs. Sonia Singh, out of total sale consideration of Rs.1,00,00,000/- and had taken over the possession of the rear basement portion of the property by the plaintiff vide possession letter dated 9.8.2012.

xxx xxx

20. That it is stated that in view of dilatory tactics adopted by the defendant nos.1 and 2 in getting the property converted from leasehold to freehold, and to get the consent agreement from the other co-owners/ residents of the other portion of the property and to execute the sale deed in favour of the plaintiff so as to enable the plaintiff to redevelop and reconstruct the property had created serious doubt in the mind of the plaintiff. On inquiring from the other co- owners of the property in question, it was shockingly revealed that the defendant no.1 was not even the owner or attorney in respect of front basement portion and front ground floor portion of the property in question. It was further revealed that the

defendant no.1 did not have any right, title and interest in respect of the front ground floor and front basement portion and he ought not to have entered into an agreement to sell dated 17.7.2012 with the plaintiff in respect of the said portion. The plaintiff immediately realized that the defendant no.1 had induced the plaintiff to part away with his hard earned money by fraudulent means by executing a false and fraudulent agreement to sell with respect of a portion of the property which he did not have any right and title at any point of time."

5. Thus in para No.20 the plaintiff had himself acknowledged the sale of front portion of the ground floor and that defendant no.1 was never its owner hence cannot seek relief against such front portion. The applicant's counsel also referred to a signboard affixed in front of the property stating interalia the stay is granted by this Court in respect of entire basement, entire ground floor and terrace and despite the applicant having writing letters to the plaintiff to correct such sign board, the plaintiff has ignored such requests, hence the present application has been moved by the applicant.

6. The applicant relies upon various documents to prove her ownership viz. agreement to sell dated 23.05.2000 through which the mother of the applicant had purchased the front ground floor of premises; the indemnity bond; receipt for 7.50 Lac; the possession letter, all three dated 23.05.2000 in respect of front ground floor of premises. the Will dated 18.02.2014 of Smt.Uma Puri - the mother of the applicant; death certificate of Smt.Uma Puri; and NOC from the brother of the

applicant in favour of the applicant; It is stated the said premises is let out on rent upon the demise of Smt.Uma Puri - mother of the applicant.

7. The learned counsel for the applicant alleges the person who has purchased the property viz. the rear ground floor portion from defendant No.4 has also been made a party to the suit vide order dated 31.10.2017.

8. Thus from the pleadings it is clear the plaintiff has though mentioned about the agreement to sell dated 17.07.2012 of the front portion, but had only prayed for specific performance of the agreement/ and MOU dated 19.05.2012, and 22.05.2012 and not for agreement to sell dated 17.07.2012 as had made assertion in para No.20 of plaint admitting the said portion has been sold by the original owner to someone else prior to his purchase of the rear portion(s).

9. Since in para No.20 (supra) plaintiff had acknowledge the front ground floor of the property has been sold by the owner to someone else and the defendant no.1 had fraudulently entered an agreement to sell for the said front portion on 17.07.2012 reveal he is not an owner of the front portion and as such cannot claim relief in respect of such portion. The prayer made in his injunction application under Order 39 Rule 1 & 2 of the CPC was thus wrong/concealment on his part, hence the facts aforesaid, do require modification of orders dated 09.10.2014 and 23.11.2015.

10. Accordingly, the application is allowed and the orders dated 09.10.2014 and 23.11.2015 are modified to the extent the stay would operate only qua rear ground floor, basement and terrace of the subject

property. Needless to say the plaintiff shall make necessary amendments in the signboard within a week from today.

11. The application stands disposed of. No order as to costs.

CS(OS) 3056/2014, IA Nos.19555-19556/2014, 13825/2016, 601/2018, 3154-3155/2018, O.A. 8/2018

12. List on 13.09.2018.

YOGESH KHANNA, J

APRIL 06, 2018 M