Delhi High Court
Rayrikh Sagar vs Krishan Kumar Aggarwal & Ors. on 10 September, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 10th September, 2021
+ CM (M) 30/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
PUSHPA DEVI & ORS. .....Respondents
Through: Mr. Surinder Singh Bhatia and Mr.
Baldev Singh, Adv. for R-1
Mr. Fahad Khan, Adv. for R-3 &
R-4
+ CM (M) 32/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
MADHVI SHARMA & ORS. .....Respondents
Through: Mr. Surinder Singh Bhatia and Mr.
Baldev Singh, Adv. for R-1
Mr. Fahad Khan, Adv. for R-3 &
R-4
+ CM (M) 43/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
MOHAN SWAROOP AGGARWAL & ORS. .....Respondents
Through: Mr. Surinder Singh Bhatia and Mr.
Baldev Singh, Adv. for R-1
Mr. Fahad Khan, Adv. for R-3 &
R-4
Signature Not Verified
CM(M) 30/2021, 32/2021, 43/2021, 45/2021, 50/2021 & 51/2021 Page 1 of 15
Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
+ CM (M) 45/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
NEETU SHARMA & ORS. .....Respondents
Through: Mr. Surinder Singh Bhatia and Mr.
Baldev Singh, Adv. for R-1
Mr. Fahad Khan, Adv. for R-3 &
R-4
+ CM (M) 50/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
LALITESH & ORS. .....Respondents
Through: Mr. Surinder Singh Bhatia and Mr.
Baldev Singh, Adv. for R-1
Mr. Fahad Khan, Adv. for R-3 &
R-4
+ CM (M) 51/2021
RAYRIKH SAGAR .....Petitioner
Through: Mr.Siddharth Yadav, Sr. Adv. with
Mr.Wasim Ashraf, Adv.
Versus
KRISHAN KUMAR AGGARWAL & ORS. .....Respondents
Through:
Mr. Fahad Khan, Adv. for R-3 &
R-4
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
Signature Not Verified
CM(M) 30/2021, 32/2021, 43/2021, 45/2021, 50/2021 & 51/2021 Page 2 of 15
Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
JUDGMENT
[VIA VIDEO CONFERENCING]
1. These six petitions are being disposed of by this common order, as
the issues involved are materially the same.
2. These petitions have been filed under Article 227 of the
Constitution of India, challenging the orders dated 25th September, 2020
passed by the learned Additional District Judge/Trial Court, allowing the
application under Order XXXIX Rules 1 & 2 CPC filed by each of the
plaintiffs before it in CS DJ 119/2019; CS DJ 123/2019; CS DJ 122/2019;
CS DJ 121/2019; CS DJ 124/2019 and CS DJ 120/2019 respectively, who
are the respective respondent No.1 in each of the petitions before this
Court.
3. It is to be noted that the petitioner herein is not a party to the suits.
However, he is aggrieved because according to him, the impugned orders
affect his rights to the extent of 75% of the undivided share in the
property bearing House No. 45, Arjun Nagar, New Delhi (hereinafter
referred to as the Suit Property), without giving him an opportunity of
being heard.
4. Mr. Siddharth Yadav, learned senior counsel for the petitioner,
submitted that respondents No.2 to 5/defendants No.1 to 4 had become
owners of 25% undivided share each in the Suit Property, having
purchased the same vide registered Sale Deed dated 8th March, 2018,
placed on record as Annexure P-2. Amongst themselves, respondents
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Signing Date:11.09.2021
08:30:54
No. 2 to 5/defendants No.1 to 4 entered into an oral agreement to develop
the Suit Property together in such a manner that after the
construction/development, the Suit Property would consist of stilt level
for parking, Ground Floor, First Floor, Second Floor and Third Floor.
They further agreed that the Ground Floor shall belong to respondent
No.2/defendant No.1, the First Floor to respondent No. 3/defendant No.2,
the Second Floor to respondent No.4/defendant No.3 and the Third Floor
to respondent No.5/defendant No.4. They were also free to sell their
respective shares to any other third party without any hindrance or
objection from the other respondents/defendants.
5. It was submitted that the suits were filed for Specific Performance
of Agreements to Sell, alleging that respondent No.2/defendant No.1, had
transferred various flats to the plaintiffs in the suits, being respondent
No.1 in each of the present petitions. Claiming that he had been
authorized by the other joint owners, he entered into various Agreements
as below:
(i) with the respondent No.1/plaintiff in CM(M) 30/2021 dated
22nd October, 2017 agreeing to sell to her an Apartment on
the left side of the third floor of the Suit Property;
(ii) with the respondent No.1/plaintiff in CM(M) 32/2021 dated
15th November, 2018 agreeing to sell to her an Apartment on
the Upper Ground floor on the right side of the Suit
Property;
(iii) with the respondent No.1/plaintiff in CM(M) 43/2021 dated
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Signing Date:11.09.2021
08:30:54
03rd November, 2017 agreeing to sell to him an Apartment
on the back side on the ground floor of the Suit Property;
(iv) with the respondent No.1/plaintiff in CM(M) 45/2021 dated
15th November, 2018 agreeing to sell to her an Apartment on
the right side of the third floor of the Suit Property;
(v) with the respondent No.1/plaintiff in CM(M) 50/2021 dated
23rd October, 2017 agreeing to sell to him an Apartment on
the left side of the first floor of the Suit Property and,
(vi) with the respondent No. 1/plaintiff in CM(M) 51/2021 dated
27th April, 2018 agreeing to sell to him an Apartment on the
Upper Ground floor of the Suit Property.
6. These Agreements to Sell were not registered. Learned senior
counsel for the petitioner therefore submitted that in the absence of
registered documents, the respondent No.1/plaintiff in each of the
petitions had no right in the Suit Property.
7. Subsequently, through a registered Sale Deed dated 9th January,
2019, respondent No.2/defendant No.1 transferred his undivided 25%
share in the Suit Property in favour of respondent No.6/Shri Rambir
Singh. Thus the respondent No.2/defendant No.1 was left with no rights
or title in his 25% share in the Suit Property as it vested in respondent
No.6/Shri Rambir Singh with effect from 9th January, 2019.
8. It was also submitted that subsequently, respondents
No.4 and 5/defendants No.3 and 4 sold their 25% share each in the Suit
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Signing Date:11.09.2021
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Property in favour of the petitioner vide registered Sale Deeds dated 28th
August, 2020. Further, respondent No.6/Shri Rambir Singh also
transferred the undivided 25% share transferred to him by respondent
No.2/defendant No.1, to the present petitioner vide registered Sale Deed
dated 11th September, 2020.
9. Thus, while the respondent No.1/plaintiff in each of these petitions
had no right, title or interest in the Suit Property the petitioner had
acquired 75% share in the Suit Property. In these circumstances, the
learned senior counsel for the petitioner submitted, that the learned Trial
Court erred in passing the impugned orders restraining the respondents
No.2 to 5/defendants No.1 to 4 from creating third party interests in the
Suit Property bearing House No.45, Arjun Nagar, New Delhi having a
plot area of 200 sq. yds while at the same time describing the Suit
Property as "a Flat" out of several Flats in the Suit Property.
10. The learned senior counsel for the petitioner submitted that at best,
perhaps, the respondent No.1/plaintiff in each of the petitions, could
claim a right to the respective flats in the Suit Property, subject matter of
the Agreements to Sell, but that could only be against the respondent
No.2/defendant No. 1. Learned senior counsel for the petitioner submitted
that by means of these suits, the respondent No.1/plaintiff in each of the
petitions, were seeking to fasten other defendants with the burden of
compensating them, as the respondent No.2/defendant No.1 was
absconding. This was unfair and unjust, as none of the other defendants
were parties to the alleged Agreements to Sell. Thus, it was prayed that
the impugned orders be set aside.
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
11. In the second limb of his arguments, learned senior counsel for the
petitioner, submitted that the impugned order could not be sustained, as
the law did not permit stay of registration of a document. It was
contended that once documents were submitted to the Registrar, he had
no discretion left and had to register the documents. In these
circumstances, the request of the Registrar for an order of the court to
stop him from registering the Sale Deeds in favour of the petitioner, was
improper and the grant of such an injunction by the learned Trial Court
was also improper. Reliance has been placed on Hari Singh v. Sub
Registrar (1998) 120 PLR 787 and Gurjeet Singh Madaan v. Sub-
Registrar-IX (District South-West), 2013 SCC OnLine Del 3868.
According to learned senior counsel for the petitioner, the documents had
in fact been already registered, as evidenced from Annexures P-15, P-16
and P-17.
12. Learned senior counsel for the petitioner submitted that the
principle of lis pendens would apply to the petitioner only on his being
made a party to the suit. It was submitted that Section 52 of the Transfer
of Property Act, 1882 did not render a transfer of property during the
pendency of the suit void. It only provides that the purchaser would be
bound by the decree. Reliance has been placed on Hardev Singh v.
Gurmail Singh, (2007) 2 SCC 404 and T.G. Ashok Kumar v.
Govindammal, (2010) 14 SCC 370. Since 2019, respondent
No.1/plaintiff in each of the petitions was aware of the existence of the
petitioner despite which, no action was taken to implead the petitioner in
the suits.
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
13. Furthermore, no relief had been claimed against respondent
No.6/Shri Rambir Singh, as stated in the reply filed on behalf of
respondent No.1/plaintiff placed at page 262 of the e-file in CM(M)
30/2021. Thus, it was submitted that when his undivided share in the
premises was sold by respondent No.2/defendant No.1 to respondent
No.6/Shri Rambir Singh and he in turn had transferred the same to the
petitioner, and as no declaration or relief has been claimed by respondent
No.1/plaintiff in each of the petitions against respondent No.6/Shri
Rambir Singh, the petitioner's interest could not have been prejudiced by
the learned Trial Court.
14. Mr. Surinder Singh Bhatia, learned counsel for the respondent
No.1/plaintiff in CM(M) 30/2021, CM(M) 32/2021, CM(M) 43/2021,
CM(M) 45/2021, CM(M) 50/2021, submitted that the respondent
No.1/plaintiff in each of the petitions had never at any point of time,
conceded the claim of the petitioner to the complete ownership of the Suit
Property. The petitioner had no locus standi to file the present petitions,
as he was not a party before the learned Trial Court. Moreover, if the
Sub-Registrar had been restrained from registering the documents of
transfer, the petitioner has failed to implead the State/Sub-Registrar, as a
party here. According to the learned counsel for the respondent
No.1/plaintiffs, the documents filed by the petitioner itself reveal that
they have not been registered. Further, because the Sub-Registrar of his
own, could not have refused to register the documents, it had become
necessary for him to ask the respondent No.1/plaintiff to bring such an
order from the court and, the application seeking these directions, was
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
thereafter filed before the learned Trial Court, on which, the orders were
issued, restraining the Sub-Registrar from registering the Sale Deeds.
15. Learned counsel for the respondent No.1/plaintiff further pointed
out to the RTI reply dated 19th March, 2021 to the RTI application of the
respondent No.1/plaintiff, that the Sale Deeds in respect of the Suit
Property in favour of the petitioner had yet not been registered, as the
process had not been concluded and there was a restraint order of the
Court.
16. It was submitted by learned counsel for respondent No.1/plaintiff
that Section 60 of the Registration Act, 1908 requires that an endorsement
be made and therefore without the endorsement, it cannot be said that the
documents have been registered. Thus, there was no jurisdictional error in
the impugned orders and therefore the present petitions were not
maintainable.
17. Learned counsel for the respondents further argued that though the
Agreement to Sell were between the respondent No.1/plaintiff and
respondent No.2/defendant No.1, the other respondents/defendants were
impleaded as respondent No.2/defendant No. 1 was acting on their behalf
as well. The Sale Deed referred to undivided shares. Since respondent
No.2/defendant No.1 had fraudulently transferred for consideration, the
Flats as described in each of the Agreements to Sell, the respondents
No. 2 to 5/defendants No.1 to 4, being owners of the entire Suit Property,
were jointly liable for the Specific Performance of the Agreements or for
return of the consideration paid, as the amounts received had been shared
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
amongst the respondents No.2 to 5/defendants No.1 to 4. The respondent
No.1/defendant No.1 had processed the entire transaction by purchasing
the stamp paper on behalf of the respondents No.2 to 5/defendants No.1
to 4. Similarly for de-sealing and other municipal dues, the respondent
No.2/defendant No.1 had acted on behalf of respondents
No.2 to 5/defendants No.1 to 4, as such the claim of the respondent No.1
as plaintiff in each of the petitions against all these defendants was fully
maintainable.
18. The remaining questions as to the source of money for payment of
consideration whether or not a cash transaction, as claimed by the
petitioner could have been made, were questions that required evidence.
The law does not make a cash transaction void. There are only penalties
prescribed for taxation purposes and therefore the claims of the
respondent No.1/plaintiff in each of the petitions that the amounts of
Rs.35,00,000/-, Rs.28,50,000/-, Rs.20,00,000/-, Rs. 21,00,000/-,
Rs.45,00,000/- and Rs.32,00,000/- have been paid in cash respectively,
would not suffice to detract from the fact that such a transaction had in
fact occurred. It was submitted that all the payments, whether by cash or
otherwise, having been shared by the respondents No.2 to 5/defendants
No.1 to 4, and if no protection was given and the respondents
No.2 to 5/defendants No.1 to 4 frittered away the Suit Property, the
respondent No.1/plaintiff in all the petitions would be left high and dry. It
was submitted that if the petitioner so felt the need, he could implead
himself by moving an application before the learned Trial Court. Hence it
was prayed that the petitions be dismissed.
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
19. Having heard learned counsel for the parties, it is clear that the
questions of what consideration was paid or against whom the relief as
claimed in the plaint can be granted, are not questions that need to be
considered by this Court at this stage. What needs to be looked into is
whether the impugned orders are in any way so perverse that calls for
interference by this Court in exercise of its powers under Article 227 of
the Constitution of India.
20. The question whether the Sale Deeds have been registered or not
and whether the Sub-Registrar can be restrained from registering the
same are of course the matters, which need to be considered by this
Court. The procedure for admitting documents for registration is
mentioned in Sections 58-60 of the Registration Act, 1908. Under Section
58, various particulars have to be endorsed on every document admitted
to registration. Under Section 59, these endorsements have to be signed
by the Registering Officer who is also to affix the date to the effect that
the signatures on the documents have been made in his presence on that
day. However, the registration of a document is completed when the
Certificate of registration is issued under Section 60. Section 60 of the
Registration Act is reproduced herein below:
"60. Certificate of registration.--
(1) After such of the provisions of sections 34, 35, 58
and 59 as apply to any document presented for
registration have been complied with, the registering
officer shall endorse thereon a certificate containing
the word "registered", together with the number and
page of the book in which the document has been
copied."
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
21. The Hon'ble Supreme Court in Chandrika Singh v. Arvind Kumar
Singh, (2006) 10 SCC 404 of course while considering the issue of right
of pre-emption, had occasion to observe that unless the registration is
complete under Section 60 of the Registration Act, 1908, the transfer of
the land in question would still be inchoate. Referring to its previous
decisions in Radhakisan Laxminarayan Toshniwal v. Shridhar
Ramchandra Alshi, (1961) 1 SCR 248 and Hiralal Agrawal v.
Rampadarath Singh, (1969) 1 SCR 328, where too it was observed,
again no doubt in the context of enforcement of right to pre-emption, that
no transfer of immovable assets takes place unless the deed is registered
and registration is complete only when the Certificate under the
provisions of the Registration Act, 1908 is issued. In other words, even if
the proceedings have taken place as provided under Section 58 and 59 of
the Registration Act, 1908, until and unless the Certificate duly signed,
sealed and dated by the Registering Authority is issued under Section 60,
the transfer of title will not have taken place.
22. A reference may also be made to the Guidelines issued to the Sub-
Registrar Offices by the Department of Revenue, Government of NCT of
Delhi dated 12th November, 2014 where it is clearly directed to the Sub-
Registrar that he shall not keep any document pending on the ground of a
complaint made by any party unless there was a stay order granted by a
Court of law to maintain status quo or restraining the transfer of property.
To that extent, if the Sub-Registrar had asked the respondent
No.1/plaintiff to produce a court order, it cannot be said that he was over
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
stepping his powers.
23. In the present case, from the reply dated 19th April, 2021 given to
the RTI query, it is evident that no Certificate in respect of any of the
three Sale Deeds executed in favour of the petitioner has been issued. The
response in the RTI query is reproduced herein below:
24. It is thus apparent that while the Sale Deeds had been presented
before the Sub-Registrar and the Sub-Registrar had proceeded to start the
process of registering them, in the absence of the Certificate of
registration, the transfer has not been completed. The impugned order
restraining the Sub-Registrar has been issued, clearly before the
completion of the process of registration. It is also to be noted that it is
not the Sub-Registrar who has refused to register the Sale Deeds, but it is
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
the Court, having head the parties, that has asked the Sub-Registrar not to
go ahead. The Sub-Registrar has not over-stepped his powers.
25. The question now to be addressed is whether the learned Trial
Court was justified in issuing the restraint orders while disposing of the
applications under Order XXXIX Rules 1 & 2 CPC. The main grievance
of the petitioner is that the respondent No.1/plaintiff had entered into
unregistered Agreements for transfer of one Flat but was now seeking
restraint on the entire Suit Property. Secondly, without the petitioner
being a party to the suits, his 75% share in the Suit Property was being
adversely impacted. In this regard, the contention of the learned counsel
for the respondent No.1/plaintiff that if the petitioner is aggrieved, he
should implead himself as a party to the suit, has weight. The title of the
petitioner to the Suit Property is not complete till the Certificate of
registration is issued. Since the Sub-Registrar will not be able to proceed
further till the court issues directions, the petitioner can await the result of
the suits or he can implead himself as a party and raise all these questions
before the learned Trial Court to seek a modification of the orders passed
in applications under Order XXXIX Rules 1 & 2 CPC.
26. The petitioner is challenging the right of the respondent
No.1/plaintiff to any relief on grounds based on law as well as facts.
These cannot be determined in these proceedings, where the only
question that needs to be considered is whether the impugned orders are
erroneous. This court cannot find any error in the impugned orders
insofar as it has restrained the Sub-Registrar from proceeding further in
the matter of registration of the Sale Deeds as it is but a necessary
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Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
corollary to the restraint on the respondents No.2 to 5/defendants
No.1 to 4 from creating third party interests in the Suit Property. None of
them appear to have challenged the said order though it is clearly
impacting them. The petitioner, without being a party, has no locus to
challenge the impugned orders so far as it restrains the respondents No.2
to 5/defendants No.1 to 4 from creating third party interests in any
manner in the Suit Property.
27. The petitions thus, are found to be without merit and are
accordingly dismissed.
28. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
September 10, 2021
pkb
Signature Not Verified
Signed By:MANJEET KAUR
Signing Date:11.09.2021
08:30:54
