Pawandeep Singh & Anr vs Gurdeep Singh Virdi
2019 Latest Caselaw 3585 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Judgment Reserved on: 07.05.2019
                              Judgment pronounced on: 02.08.2019

+      RFA (OS) 42/2018 AND CM APPL. 24353/2018

       PAWANDEEP SINGH & ANR.             ..... Appellant
              Through: Mr. Vivek R. Mohanty and Mr.Puneet
                        Parihar, Advocates.
                          Versus

       GURDEEP SINGH VIRDI                .....Respondent

Through: Mr. Dinesh Garg, Advocate.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J:

1. The present appeal has been preferred by the appellants/defendants against the judgment dated 27.04.2018 passed by the Ld. Single Judge in CS(OS) No.43/2018, decreeing the suit for possession in respect of Flat no.2, 1st Floor, Property no. M-5, Greater Kailash-I, New Delhi instituted by the respondent/plaintiff, under Order VIII Rule 10 of the Code of Civil Procedure, 1908 ('CPC'). The appellants are the son and daughter-in-law of the respondent. The ld. Single Judge also granted mesne profits/damages in favour of the respondent for the use and occupation of the suit premises against the

appellants @ 50,000/- per month from the date of institution of the suit i.e. 01.02.2018, till the delivery of possession.

2. The appellants were served with the summons in the suit on 08.02.2018. The statutory period of 30 days available for them to file the written statement expired on 09.03.2018. The maximum period of 90 days available in law reckoned from 08.02.2018, expired on 09.05.2018. In the interregnum, the appellants entered appearance before the Joint Registrar on 26.02.2018 and were given time of 30 days to file their written statement. The period of 30 days reckoned from 26.02.2018, expired on 27.03.2018. However, the appellants did not file their written statement within the extended time of 30 days granted by the Joint Registrar.

3. When the suit was listed before the learned Single Judge on 15.03.2018, the Court noticed that the appellants had not filed their written statement. Instead, learned counsel sought an adjournment. In the interest of justice and to avoid any technicality by passing a decree for possession against the appellants, on the very same date, learned Single Judge deferred orders to await the written statement of the defendants till 25.03.2018. By the same order, the appellants were also directed to deposit in Court, a sum of Rs.50,000/- per month w.e.f. 01.02.2018 i.e., from the date of institution of the suit, towards use and occupation of the suit premises.

4. In the impugned order dated 27.04.2018, the learned Single Judge noted that the appellants had neither filed any written statement,

nor complied with the order dated 15.03.2018, wherein they were directed to deposit certain amounts in Court. As learned counsel for the appellants asserted that he had filed the written statement within the time stipulated in the order dated 15.03.2018, i.e. till 25.03.2018 and the written statement was still not on record, the matter was passed over for the Registry to find out the status of the written statement. On the second call, the Registry informed the court that the appellants had filed their written statement only on 02.04.2018 but it was returned under objections and taken back by learned counsel on 10.04.2018. At that stage, counsel for the appellants had to admit that after taking back the written statement on 10.04.2018, to remove the defects, he had re-filed the same only on 27.04.2018, after the matter had been passed over. This fact was not disclosed to the Court on the first call and the impugned order records that it was only at the pointing out of the counsel for the respondent/plaintiff that counsel for the appellants had disclosed to the Court that the written statement had not been re-filed till the matter was passed over.

5. As a result, the right of the appellants to file a written statement was closed in view of the delay in filing the same and a decree for possession under Order VIII Rule 10 of the CPC was passed in favour of the respondent along with mesne profits assessed @ Rs.50,000/- per month from the date of the institution of the suit i.e. 01.02.2018, till the date of delivery of possession.

6. Mr.Mohanty, ld. counsel for the appellants argued that the impugned judgment is not based on a correct appreciation of facts and law and hence deserves to be set aside. He contended that the appellants were unjustly denied the right to file their written statement resulting in a gross violation of the principles of Natural Justice. He further argued that Order VIII Rule 10 of the CPC does not postulate that a decree can be passed mechanically, in the absence of a written statement and the Court must examine the merits of the case.

7. Per contra, Mr.Dinesh Garg, ld. counsel for the respondent contended that the impugned judgment and decree does not suffer from any infirmity and is based on the correct appreciation of facts and law.

8. We have heard the ld. counsel for the parties and given our thoughtful consideration to the submissions made.

9. The contention of the appellants that they were not given an opportunity to file a written statement, is misconceived as a perusal of the order dated 15.03.2018 shows that the parties had appeared before the Joint Registrar on 26.02.2018 after the summons in the suit were received by them and they were granted 30 days time to file their written statement. The impugned order shows that the time to file the written statement had expired on 10.04.2018, after taking into consideration the holidays from 25.03.2018 till 02.04.2018. The written statement was filed on 02.04.2018 but since the same was under objections, it was taken back from the Registry on 10.04.2018

and re-filed only on 27.04.2018, the date when the suit was listed before the court.

10. The appellants had ample time to re-file the written statement after it was returned on account of objections, however, they chose to sit idle till 27.04.2018 and re-filed the written statement only after taking a pass over on the said date.

11. Here it would be prudent to refer to Order VIII Rule 10 of the CPC which reads as under:

"10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."

12. The nature and scope of the powers conferred under Order VIII Rule 10 of the CPC was elaborated upon by the Supreme Court in Shantilal Gulabchand Mutha v. Tata Engg. & Locomotive Co. Ltd., (2013) 4 SCC 396 where it was held that:

"9. In view of the above, it appears to be a settled legal proposition that the relief under Order 8 Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which needs to be proved in spite of

deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understand what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed."

13. Coming to the reason for passing the impugned judgment, we are mindful of the view expressed by the Supreme Court in the case of Balraj Taneja & Another Vs. Sunil Madan & Another, (1999) 8 SCC 396 relied upon by ld. Counsel for the appellants wherein it has been held that in case where the written statement has not been filed by the defendant, the Court must be cautious in proceeding under Order VIII Rule 10 CPC and before passing a judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any facts mentioned in the plaint.

14. In the instant case, in an earlier order dated 15.03.2018, the ld. Single Judge had referred to the contentions of the appellants that they had paid a sum of Rs.33 Lacs to the respondent for the purchase of the suit premises, and were looking for the Agreement to Sell. On enquiry by the ld. Single Judge, ld. Counsel for the appellant had stated that the Agreement to Sell was not a registered document.

15. It is noteworthy that the appellants have filed a photocopy of the alleged Agreement to Sell dated 01.09.2017, purported to have

been executed by the respondent in respect of the suit premises, in favour of the appellant no.1 along with the appeal paperbook. Ld. counsel for the appellant stated that the total sale consideration for the suit premises was agreed at Rs.42,50,000/-. The appellants have also placed on record a copy of the Bayana Receipt dated 01.09.2010, regarding payment of a sum of Rs.10 Lacs to the Respondent by two cheques for Rs.5 Lacs each and a Receipt dated 10.10.2017, regarding payment of a sum of Rs.23,000,000/- to the respondent by two cheques for Rs.15,00,000/- and Rs.8,00,000/-. He submitted that the amount of these cheques was credited into the account of the appellant no.1's step mother i.e. wife of the respondent.

16. A perusal of the copy of the Agreement to Sell reflects that it only bears the signatures of the respondent and not that of the second party, i.e., the appellant no.1. Copies of the Agreement to Sell, Bayana Receipt and Receipt mentioned above, are not signed by any witness. We find the signature of the respondent on the first page on the copy of the Agreement to Sell to be entirely different from what is appearing on the second page of the said document. On inquiring from him, ld. counsel for the appellants submitted that the original Agreement to Sell dated 01.09.2017, is lying with the respondent, but he could not explain as to why was the original left with the respondent. He could also not explain as to why copies of the original Agreement to Sell, Bayana Receipt and Receipt do not bear the signatures of any witness and most importantly, why a copy of the Agreement to Sell does not bear the signature of the appellant no.1

who claims to be the purchaser. He could also not explain as to why cheques were issued by the appellant no.1 in the name of his step mother, instead of the seller i.e. respondent and why was this fact not mentioned in the Agreement to Sell, Bayana Receipt dated 01.09.2010 or Receipt dated 10.10.2017. All above contentions relating to execution of the Agreement to Sell and Receipts were strongly disputed by ld. counsel for the respondent.

17. Ld. counsel for the appellants further argued that the suit premises in fact belonged to the Hindu Undivided Family (HUF) and the appellant no.1 had a share in the said premises. When asked as to why then did the appellant agree to purchase the said premises if he had a legitimate share in the HUF property and could have very well filed a suit for partition to claim his legitimate share therein, no answer, much less a plausible answer was forthcoming. Further, any such plea about the suit premises being a HUF property does not find mention in the grounds of appeal or the submissions made before the ld. Single Judge.

18. Ld. Counsel for the appellants contended that the appellant no.1 had been residing in the suit premises since 26.10.1988 and after the appellant no.1 had got married to the appellant no.2 in the year 2003, appellant no.2 had also started residing in the said premises along with appellant no.1. He has tried to take the shield of Section 53 A of the Transfer of Property Act, 1882 ('TPA') to protect the possession of the appellants in the suit premises before the ld. Single Judge.

19. The law on this aspect is clear. An unregistered Agreement to Sell cannot be used as a shield under Section 53 A of the TPA since Section 17 (1-A) of the Registration Act, 1908 makes the documents containing a contract to transfer for consideration, any immovable property for the purpose of Section 53 A, compulsorily registrable. If such documents are not registered, they shall have no effect for the purposes of Section 53 A. For purposes of ready reference, Section 17 of the Registration Act, 1908 is reproduced below: -

17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been examined on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt, from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A."

20. The remedy, if any, for the appellant no.1 would have been to sue for specific performance as Section 49 of the Registration Act, 1908 states that a suit for specific performance can be initiated on the basis of an unregistered Agreement to Sell. Section 49 reads as under:

"49. Effect of non-registration of documents required to be registered.--No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument."

21. The appellants herein do not have any right to remain in possession of the suit premises till they acquire a title in pursuance to a decree for specific performance. It was so held in Sunil Kapoor v. Himmat Singh ILR (2010) 11 Delhi 616. We may note that SLP (C) No.6010/2010 against the said judgment was dismissed by the Supreme Court on 12.03.2010.

22. It may be noted that the respondent/plaintiff had acquired the suit premises vide registered Sale Deed dated 11.08.2011, duly registered as Document no.13109 on Book No. I, Vol. No.11, 401 on Pages 111 to 120 on 18.08.2011, in the office of the Sub-Registrar-V,

New Delhi. A copy of this Sale Deed was also filed by the respondent/plaintiff along with the plaint.

23. We are not at all convinced with the arguments advanced by ld. counsel for the appellants to assail the impugned judgment. He could not explain the delay of 17 days in filing the written statement. On merits, he first contended that the appellant no.1 had purchased the suit premises from the respondent but was unable to produce the original Agreement to Sell. A photocopy thereof placed on record does not bear the signatures of the appellant no.1. The purported signatures of the respondent on the first page of the photocopy of the Agreement to Sell are entirely different from the signature as appearing on the second page. Ld. Counsel could also not explain as to why the amount of sale consideration of the suit premises was credited into the account of the appellant no.1's step mother and not in the account of the respondent/vendor. Further, he could not explain why the factum of the consideration for the Agreement to Sell being paid into bank account of the appellant no.1's step mother does not find mention either in the Agreement to Sell or the Bayana Receipt dated 01.09.2010 or the Receipt dated 10.10.2017. There was no explanation forthcoming as to why the photocopies of the Agreement to Sell, Bayana Receipt, Receipt were not signed by any witness. Even the originals of the purported Receipts have not been filed. The contention of the ld. Counsel that the suit premises belongs to the HUF, does not hold any water as the appellant No.1 could have easily filed a suit for partition claiming his legitimate share. We have already

discussed above that an unregistered Agreement to Sell cannot be used as a shield to protect the claimant's possession under Section 53 A of the TPA as an Agreement to Sell is a compulsorily registrable document under Section 17 (1-A) of the Registration Act, 1908.

24. In view of the above discussion, we do not find any reason to interfere with the impugned order. The appeal is dismissed as meritless along with CM. APPL. 24353/2018 with costs throughout.

(VINOD GOEL) JUDGE

(HIMA KOHLI) JUDGE AUGUST 02, 2019