Bhavana Gupta vs Gulshan Kumar & Anr.
2020 Latest Caselaw 1465 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 4th March, 2020

+       CS(OS) 293/2018, IA No.7975/2018(u/O.XXXIX R.1&2 CPC),
        IA No.327/2020(u/O.VI R.16 CPC), IA No.1342/2020
        (u/O.XXIII R.3 CPC) & IA No.3100/2020(u/O.I R.10(2) CPC)

        BHAVANA GUPTA                                     ..... Plaintiff
                   Through:           Mr. Ravi Gupta, Sr. Adv. with
                                      Mr. Naresh Gupta & Mr. Sachin Jain,
                                      Advs. with plaintiff in person.

                                   Versus

    GULSHAN KUMAR & ANR.                     ..... Defendants
                  Through: Mr. Pradeep Dewan, Sr. Adv. with
                           Mr. Sudhir Gupta, Adv. for D-1.
                           along with D-1.
                           Mr. Mahip Singh Saini, Adv. in
                           person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff instituted this suit against Gulshan Kumar (defendant no.2 is SHO Police Station - Model Town) (i) for declaration that the letter dated 11th May, 2018 sent by Gulshan Kumar to the plaintiff is void; (ii) for specific performance of the Agreement to Sell dated 5th October, 2017, by Gulshan Kumar to sell property No.46, Ishwar Colony, New Delhi to the plaintiff; (iii) for mandatory injunction directing the SHO, Police Station - Model Town to hand over the keys of the aforesaid property to the plaintiff; and, (iv) for permanent injunction restraining Gulshan Kumar from dealing with the property.

2. The suit came up first before this Court on 1 st June, 2018, when the same was entertained and vide ex parte order of that date, the defendants directed to maintain status quo qua possession and title of the property.

3. The defendant Gulshan Kumar contested the suit by filing a written statement.

4. The suit, ripe for framing of issues came up before this Court on 20 th September, 2019 when the counsel for the plaintiff relied upon on an admission of the defendant Gulshan Kumar. In view thereof, the suit was adjourned to 9th October, 2019 for the personal presence of Gulshan Kumar. The defendant Gulshan Kumar appeared before this Court on 9 th October, 2019 and his statement on oath was recorded and it was enquired from the counsel for the defendant, why on the basis of statement so recorded, action against defendant Gulshan Kumar for affirming pleading in contravention of pleadings in an earlier suit should not be taken and why the suit should not be decreed immediately. On request of the counsel for the defendant Gulshan Kumar, the proceedings were adjourned.

5. The plaintiff and the defendant Gulshan Kumar filed IA No.1342/2020 under Order XXIII Rule 3 of the CPC and which came up before this Court first on 31st January, 2020 when the following order was passed:-

"1. The sole plaintiff and the defendant No.1, in this suit for specific performance of an Agreement to Sell dated 5 th October, 2017 by the defendant No.1 to the plaintiff of property No.46, Ishwar Colony, New Delhi and for mandatory injunction to direct the defendant No.2 Station House Officer (SHO), Police Station Model Town, Delhi to hand over the keys of the said property bearing No.46, Ishwar Colony, New Delhi to the plaintiff and to put the plaintiff in possession of the property, have filed IA

No.1342/2020 under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 and the senior counsel for the plaintiff and the senior counsel for the defendant No.1 support the application and seek decree in terms thereof.

2. I have perused the compromise arrived at between the parties and find the same to be lawful.

3. Though not recorded in the application but the senior counsel for the plaintiff states that a direction be also issued to defendant No.2 SHO, Police Station Model Town to deliver possession to the plaintiff.

4. On enquiry, it is informed that the possession is with the defendant No.2 SHO, Police Station Model Town and attention is drawn to pages 193 and 198 of Part -III Volume A-2 file, being the orders dated 17th September, 2009 and 8th October, 2009 of this Court in Bail Application No.1550/2008. It is stated that Naresh Kumar, being the predecessor of the defendant No.1, had lodged a First Information Report (FIR) against one Charanjeet Singh, who had illegally taken possession of the property, and also against Mr. M.S. Saini, Advocate for the said Charanjeet Singh and Bail Application No.1550/2008 was filed by Mr. M.S. Saini, Advocate and the orders aforesaid are on the said Bail Application. It is further stated that it was found that there was no person by the name of Charanjeet Singh and the Court, vide the orders aforesaid directed the defendant No.2 SHO, Police Station Model Town to take possession of the property and granted liberty to Naresh Kumar, predecessor of the defendant No.1 to take appropriate proceedings for return of possession of the property. Attention is also drawn to page 229 of Part -III Volume A-2, being the order dated 15th May, 2018 of ACMM (North-West), Rohini Courts, Delhi in FIR No.14/2005 and it is stated that the present defendant No.1 had approached the Court for release of the keys and which was also disposed of, observing that in view of the earlier orders of this Court in Bail Application No.1550/2008, no variation could be entertained by the ACMM.

5. The order dated 15th May, 2018 refers to the "complainant". The senior counsel for the plaintiff states that the complainant was Naresh Kumar, who had expired and the present defendant No.1 is the successor of Naresh Kumar.

6. The orders dated 17th September, 2009 and 8th October, 2009 refer interchangeably to the property as B-46, Ishwar Colony and 46, Ishwar Colony. The description of the property in the plaint in this suit also is of 46, Ishwar Colony.

7. I have enquired from the senior counsel for the plaintiff, whether there was any civil proceeding initiated with respect to the property.

8. The answer of the senior counsel for the plaintiff, under instructions, is in the negative.

9. Ordinarily, when the Court refers to the civil proceedings, there should have been a civil proceeding in existence and else the counsels would have protested. Moreover, there is no reference to the present proceedings in any of the orders and I entertain doubt that any direction to the defendant No.2 SHO, Police Station Model Town can be issued in this suit and in my view the direction, if any will have to be obtained in appropriate proceedings, especially FIR No.14/2005 of Police Station Model Town, which is stated to be still pending. The direction to defendant No.2 SHO, Police Station Model Town will have to be sought, in my opinion, in the said prosecution.

10. The senior counsel for the plaintiff, under instructions, states that dasti notice be issued to the defendant No.2 SHO, Police Station Model Town, New Delhi and the same will be served.

11. Issue dasti notice to the defendant No.2 SHO, Police Station Model Town returnable on 20th February, 2020.

12. The SHO/his representative, Police Station Model Town, New Delhi to, on the said date, bring the status report also.

13. On request, the date of 5th February, 2020 before the Joint Registrar is cancelled.

14. List before the Court on 20th February, 2020, as already scheduled."

6. In response to the aforesaid SI Vipin from Police Station - Model Town, on 20th February, 2020 handed over a status report informing (i) that on the complaint of Naresh Kumar son of Teja Singh resident of ED-119, Tagore Garden, Delhi FIR No.14/2005 dated 8th January, 2005 under Sections 420/468/471/120B IPC was registered against Charanjit Singh, Rajender Kumar, Santosh Kumar and Advocate M.S. Saini; (ii) the said FIR related to property No.46, Ishwar Colony, New Delhi admeasuring 206 sq.yds.; (iii) the charge-sheet of the said case had been filed and the case was pending; (iv) an application for grant of bail was filed before the High Court by the accused M.S.Saini, Advocate and vide order dated 17 th September, 2009 therein, the High Court directed the IO to verify as to who was in possession of the property and also directed the IO to, if nobody was found in possession of the property, seal the same; (v) as per the aforesaid directions, the property was sealed and the keys of the property deposited in Malkhana, P.S. Model Town vide DD No.15-A dated 8th October, 2009 and since then the keys of the said property are deposited in Malkhana of P.S. Model Town; and, (vi) till date no person had approached P.S. Model Town, for obtaining the keys of the property.

7. The matter came up before this Court yesterday, when Mr. Jagvir Bhadana, Advocate appeared on behalf of Mr. Mahip Singh Saini, Advocate and stated that Mr. Mahip Singh Saini, Advocate had filed an application under Order I Rule 10 CPC for impleadment in the present suit. The said

application was however not on record and the matter was adjourned to today and on request of senior counsel for the plaintiff, direction was also issued for personal presence of Mr. Mahip Singh Saini, Advocate in this Court today.

8. Mr. Mahip Singh Saini, Advocate has appeared and has addressed the Court in person.

9. The senior counsel for the plaintiff has explained, (i) that the perpetual lease of the land underneath the property No.46, Ishwar Colony, New Delhi of land admeasuring 206 sq.yds. was granted in favour of one Shakuntla Devi who died unmarried and issueless on 2nd May, 1989 and the property was inherited by her brother Naresh Kumar and her sister Motia Kumari; (ii) that Motia Kumari, vide Relinquishment Deed dated 12 th October, 2006 released her share in favour of Naresh Kumar; (iii) Naresh Kumar died on 13th December, 2008 leaving a Will dated 6th November, 2008 bequeathing 25 sq.yds. of the property in favour of his wife Meena Kapoor and the remaining property to Motia Kumari; (iv) Motia Kumari sought probate of the said Will and in which objections were filed by Meena Kapoor; (v) before probate could be granted, Motia Kumari died on 9 th January, 2016 and the defendant Gulshan Kumar who is the husband of Motia Kumari was substituted in her place in the probate case; (vi) the defendant Gulshan Kumar agreed to sell the property to the plaintiff and of which Agreement to Sell dated 5th October, 2017 specific performance is claimed in the present suit; (vii) that defendant Gulshan Kumar settled with Meena Kapoor wife of Naresh Kumar and the money in pursuance to the settlement was paid by the plaintiff to Meena Kapoor and Meena Kapoor withdrew the objections filed to the probate and the probate of the Will was

granted; and (viii) that now the plaintiff and the defendant have arrived at a settlement on the terms contained in IA No.1342/2020 under Order XXIII Rule 3 of the CPC.

10. The senior counsel for the plaintiff, with respect to the application of Mr. Mahip Singh Saini, Advocate, states that it is the case of Mr. Mahip Singh Saini, Advocate:

(i) that Shakuntla Devi, vide Agreement to Sell dated 24th April, 1989 had agreed to sell the property to one Rajender Kumar;

(ii) the said Rajender Kumar vide Agreement to Sell dated 25 th October, 1999 had agreed to sell the property to Charanjit Singh;

(iii) Mr. Mahip Singh Saini as Advocate for Charanjit Singh sought execution of an arbitral award between Rajender Kumar and Charanjit Singh and in such execution, in the year 2002, took possession of the property;

(iv) that Naresh Kumar lodged an FIR No.14/2005 dated 8 th January, 2005 against Rajender Kumar, Charanjit Singh, Mahip Singh Saini, Advocate and one Santosh Kumar who was a witness to one of the documents;

(v) in the investigation pursuant to the said FIR it was found that no persons by the name of Rajender Kumar and Charanjit Singh existed;

(vi) Mr. Mahip Singh Saini, Advocate was also arrested in the said FIR and was granted bail only after about four and a half years;

(vii) one of the bail applications filed by Mr. Mahip Singh Saini, Advocate had come up before this Court on 17th September, 2009 when inter alia the following order was passed:-

"Bail Appn.1550/2008

The petitioner has been produced from jail. He has filed an affidavit giving the address of Charanjeet Singh. A copy has been supplied to the learned APP. Let the factum of existence of Charanjeet Singh be verified by the I.O. The property bearing No.B-46, Ishwar Colony, Delhi which has been taken possession by Charanjeet Singh, who according to the prosecution is a fake person. The petitioner, who is present, states that he has nothing to do with the property and he does not claim any interest therein. Learned counsel, on instructions, says that he has no objection if anybody takes possession of the said property. In these circumstance, the I.O, shall also verify as to who is in the possession of the said property and if nobody is in the possession of the property, he will seal the property.

List this matter on 07.10.2009 "

(emphasis added).

th

(viii) the order dated 8 October, 2009 in the aforesaid bail application records that the IO had taken possession of the property No.46, Ishwar Colony, New Delhi. Vide the said order the keys of the property were ordered to be kept in the Malkhana in the concerned Police Station and it was ordered as under:-

"Since in this matter Charanjeet Sinhg has been found to be non-existent by the I.O. the complainant can take appropriate proceedings for the return of possession of property no.46, Ishwar Colony of which he claims to be the owner in accordance with law."

(ix) that the case of Mr. Mahip Singh Saini, Advocate in the application under Order I rule 10 CPC filed now is, that Charanjit

Singh had, vide Agreement to Sell dated 4th June, 2002 agreed to Sell the property to Mr. Mahip Singh Saini, Advocate;

(x) that Mr. Mahip Singh Saini, Advocate as counsel for Amarjeet Singh had filed Civil Suit No.1160/2017 seeking to restrain defendant Gulshan Kumar and others from creating third party interest in the property and which suit has been withdrawn;

(xi) that Amarjeet Singh had also filed an application for impleadment in this suit and which application was dismissed vide order dated 9th May, 2019 in which also Mr. Mahip Singh Saini, Advocate was the counsel for the Amarjeet Singh Saini; and,

(xii) that Mr. Mahip Singh Saini, Advocate, realising that a settlement had been arrived at between the plaintiff and the defendant no.1 in this suit, has now, two weeks back filed a Civil Suit in the Rohini Courts with respect to the property.

11. The senior counsel for the plaintiff has contended that the plea of Mr.Mahip Singh Saini, Advocate of the existence of an Agreement to Sell dated 4th June, 2002 by Charanjit Singh in his favour is contradictory to the stand taken by Mr.Mahip Singh Saini, Advocate before this Court during the hearing of his bail application on 17th September, 2009 to the effect that he had nothing to do with the property and did not claim any interest therein and had no objection if anybody takes possession of the property.

12. Mr. Mahip Singh Saini, Advocate states that Naresh Kumar referred to by the senior counsel for the plaintiff is a fake person and the mutation effected in his favour was also cancelled. It is further stated that there was another property in the name of Naresh Kumar but which also came under dispute because of Naresh Kumar being a fake person. It is further stated

that he was not an Advocate in the arbitration between Rajender Kumar and Charanjit Singh or in the execution filed of the arbitral award in the said arbitration and came into picture later on.

13. On enquiry, how all the aforesaid is relevant to his claim, Mr. Mahip Singh Saini, Advocate states that today he is the owner of the property and has filed suit CS No. 291/2020 in Rohini Courts and thus possession of the property cannot be ordered to be delivered to the plaintiff as sought in the compromise application between the plaintiff and the defendant.

14. On further enquiry as to how the Agreement to Sell pleaded of 4 th June, 2002 can be believed in the face of the order dated 17th September, 2009 in the bail application, he states that he was not present in the Court on that date and his Advocate Mr. Ajay Burman made a statement without his instructions. On yet further enquiry, whether not the order dated 17 th September, 2009 records that Mr. Mahip Singh Saini, Advocate had been produced from jail, Mr. Mahip Singh Saini, Advocate now changes his statement and states that he was present in the Court but the statement was made by Mr. Ajay Burman, Advocate and nothing was asked by the Court from him personally and he was in custody.

15. To say the least, the behaviour of Mr. Mahip Singh Saini, in spite of being a lawyer, is abhorrent. He does not seem to have any regard for the orders of the Court or for the Advocates of the Court who represented him in his bail application when he was in custody.

16. Be that as it may, the claim of Mr. Mahip Singh Saini, Advocate in IA No.3100/2020 for impeadment in the present case is not tenable in law. Mr. Mahip Singh Saini, Advocate admittedly does not have any registered document with respect to the property in his favour. Mr. Charanjit Singh,

through whom Mr. Mahip Singh Saini, Advocate claims, also did not have any registered document in his favour with respect to the property. Even otherwise Mr. Mahip Singh Saini, Advocate is claiming adversely to the defendant Gulshan Kumar and the settled position in law is that a person claiming adversely to the seller in a suit for specific performance is not a necessary or a proper party. Reference in this regard may be made to Kasturi Vs. Iyyamperumal (2005) 6 SCC 733, Robin Ramjibhai Patel Vs. Anandbai Rama (2018) 15 SCC 614, Gurmit Singh Bhatia Vs. Kiran Kant Robinson AIR 2019 SC 3577, Anil Kumar Vs. TK Ahuja (2017) 242 DLT

14. Thus IA No.3100/2020 of Mr. Mahip Singh Saini, Advocate for impleadment in the present suit is dismissed.

17. I have gone through the compromise arrived at between the plaintiff and the defendant Gulshan Kumar and as contained in IA No.1342/2020. The defendant, on the sale consideration being enhanced from that of Rs.2,00,00,111/- as claimed by the plaintiff in the plaint, to Rs.2,40,00,111/- has withdrawn his defence to the suit. The same is found to be lawful.

18. IA No.1342/2020 is thus allowed and disposed of.

19. The counsel for the plaintiff has handed over to the counsel for the defendant no.1 bank drafts of the total sum of Rs.80,00,111/- in terms of IA No.1342/2020 and which have been received by the counsel for the defendant no.1.

20. A decree is accordingly passed, in favour of the plaintiff Bhavana Gupta and against the defendant no.1 Gulshan Kumar, of specific performance of the Agreement to Sell dated 5 th October, 2017 as modified by IA No.1342/2020 and a direction is issued to the defendant no.2 SHO P.S. Model Town to deliver the keys of property No.46, Ishwar Colony,

New Delhi lying deposited in its Malkhana, to the plaintiff. The parties are left to bear their own costs.

21. The amounts in the form of FDRs deposited in this Court on 28 th September, 2019 be also released in favour of the plaintiff by handing over the original FDRs to the plaintiff.

22. Decree sheet be prepared.

Dasti.

RAJIV SAHAI ENDLAW, J MARCH 04, 2020 'ak'..