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Date of Decision: 9th August, 2011 CS(OS) No.90/2010
JAIDEEP SANGWAN & ORS ..... Plaintiffs
Through Mr. Kishore M. Gajaria, Adv. with Mr. Piyush Sachdeva, Adv.
Through Mr.Rahul S. Sahay, Adv. for D-5 to 8.
Mr. Amit S. Chadha, Sr. Adv. with Mr. Kunal Sinha, Adv. for D-10.
Mr. Pawan Mathur, Adv. for DDA.
JUDGMENT
1. Whether reporters of local papers may be allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the No Digest? GITA MITTAL, J (Oral)
1. Costs in terms of the order dated 17th February, 2011 have not been paid. Learned counsel for the plaintiffs submits that the plaintiffs do not wish to file the replication.
2. In this view of the matter, pleadings are complete.
3. The record shows that some original documents have been 2011:DHC:4050 received from the plaintiffs on 29th January, 2010. No copy thereof has been furnished to the defendants. Let copy of the documents filed by the plaintiffs be furnished to the defendants within one week from today.
4. Affidavit of admission/denial stated to have been filed by the plaintiffs is not on record. The defendants are permitted to file the affidavit of admission/denial within five weeks.
5. List the matter before the Joint Registrar for marking of exhibits on 19th October, 2011.
6. The case be listed before court for framing of issues on 8th December, 2011. IA No.710/2010
7. The instant suit has been filed seeking specific performance of an alleged agreement to sell dated 20th February, 2004 by the plaintiffs in respect of the property bearing no.D-937A, Block D, New Friends Colony Cooperative House Building Society, New Friends Colony, New Delhi. As per the documents placed on record, the agreement has been entered into between Smt. Sita Wanti Chadha, widow of Late Shri Munshi Ram Chadha “through her constituted power of attorney holder Shri Sumit Chadha” in favour of plaintiff no.1-Jaideep Sangwan and Shri Rajinder Trehan, plaintiff no.2 herein.
8. The suit has been filed on 18th January, 2010 arraying all the sons of Late Smt. Sita Wanti Chadha as party defendants.
9. It is noteworthy that Shri Sumit Chadha is a grandson of Smt. Sita Wanti Chadha and has been arrayed as defendant no.1. Smt. Sita Wanti Chadha expired on 14th October, 2007.
10. It is noteworthy that in the Agreement to Sell dated 20th February, 2004 Smt. Sita Wanti Chadha has been referred to as the `First Party’ and shown as residing at House No.235, Sector 15-A, Faridabad, Haryana.
11. Some of the material recitals and covenants in the agreement to sell dated 20th February, 2004 relied upon by the plaintiffs deserve to be considered in extenso and read as follows:- “1. That in pursuance of this Agreement to Sell and in consideration of total sum of Rs.22,00,000/- (Rupees Twenty Two Lacs only) The First party has received the full and final sale consideration amount from the Second party, in the following manner:- Cheque No. & Date Amount Drawn on (i) 543351 Rs.15,00,000/- ICICI Bank Ltd. 20/02/2004 Faridabad Branch SCF No.58, Sector 15, Faridabad (ii) 838604 Rs.7,00,000/- State Bank of Patiala, Sector-9 Faridabad, Total Rs.22,00,000/-Haryana The receipt of which the First party admits, confirms and acknowledges hereby, the First party doth hereby sell, convey, transfer and assign all her rights, titles and interests in the said property unto the Second party, absolutely and forever.
2. That the First party has handed over the actual vacant physical possession of the said property to the Second party at the time of signing of this Agreement to Sell. xxx xxx xxx
6. That the First party doth hereby further covenants with the Second party that the Second party or their nominee/s, shall henceforth quietly and peacefully hold, possess, and enjoy the said property, without any let, hindrance, denial, demand, interruption or eviction by the First party, erstwhile owner, or any other person or persons lawfully or equitably claiming through under or in trust or in relation for the First party and the Second party is free, entitled and authorized to transfer or sell the said property. xxx xxx xxx
10. That the First party has delivered the relevant title documents pertaining to the said property whatever she had in possession, to the Second party.”
12. The agreement to sell also mentions that a general power of attorney in favour of Shri Sumit Chadha stands registered in the office of Sub-Registrar VII, Delhi.
13. Along with the suit, the plaintiff filed the present application seeking grant of ad interim injunction.
14. The defendant nos.1, 2, 4 & 11 had entered appearance pursuant to the summons in the suit and notice in the application. On this date, the court had restrained the Delhi Development Authority, defendant no.11 in the suit from passing any order in respect of the mutation of the property (If it had already not been made). The defendant nos.1, 2, 4 & 11 have not filed written statement in the suit and have not been appearing in the matter as well.
15. According to Mr. Gajaria, learned counsel for the plaintiffs, in terms of agreement to sell dated 20th February, 2004, the plaintiffs had paid full consideration of Rs.22,00,000/- to Late Smt. Sita Wanti Chadha through her attorney Shri Sumit Chadha. It is submitted that based on the documents in favour of the plaintiffs, they had applied to the DDA on the 9th March, 2004 for conversion of the suit property to freehold. It is submitted that pursuant to the demands made by the DDA, an amount of Rs.8,00,000/- has been paid to the DDA.
16. The matter of conversion, however, did not culminate in any favourable order from the DDA for the reason that the plaintiffs received a letter dated 27th January, 2009 from the DDA informing them that the legal heirs of Smt. Sita Wanti Chadha had applied for conversion of the suit property in their name. In this background, the suit was filed on 18th January, 2010.
17. This application has been vehemently opposed on behalf of Shri Suresh Chander Chadha, defendant no.10.
18. I find from the record that as per the claim of the defendants, 50% of the suit property had devolved on Shri Harish Chander Chadha who had been arrayed as defendant no.9. For the failure of the plaintiffs to take steps upon death of defendant no.9 to implead his legal heir(s) within the period of limitation, the suit qua defendant no.9 stands abated and it was so recorded by the court on 17th February,
2011. It is contended by Mr. Amit S. Chadha, learned senior counsel appearing for the defendant no.10 that the very genesis of the suit is completely misconceived and baseless. The defendants have challenged the documents relied upon by the plaintiffs as forged and fabricated. The defendant no.10 has also challenged the said documentation on the ground that the plaintiffs are in collusion with Shri Sumit Chadha who has colluded so as to deprive late Smt.Sita Wanti Chadha as well as her legal heirs of the fruits from the suit property. It has been pointed out that Shri Sumit Chadha had allegedly derived authority to enter into an agreement to sell from the general power of attorney dated 29th April, 2003. The defendant no.10 has challenged execution of any General Power of Attorney by Smt. Sita Wanti Chadha.
19. My attention is drawn to the originals of these documents which have been placed on record. The defendant no.10 is claiming right, title and interest in the suit property under a registered Will and testament by Smt. Sita Wanti Chadha executed on 4th March, 1993. It has further been pointed out that by this last Will and testament dated 4th March, 1993, Late Smt. Sita Wanti Chadha had in fact fulfilled the desire and wish of her husband Late Shri Munshi Ram Chadha as manifested from the registered Will dated 24th September, 1979 which has also been placed on record.
20. Perusal of the documents placed by the defendants on record would show that Smt. Sita Wanti Chadha was signing documents in Gurmukhi. The same signatures are to be found affixed on the registered Will photocopy whereof has been placed on record.
21. The defendant no.10 has also placed on record documentation relating to payment of electricity and water bills; property tax; payment of insurance policies payment of insurance premium and several other correspondence to manifest that Late Smt. Sita Wanti Chadha along with the defendant nos.[9] & 10 was residing in the suit property.
22. I also find letters dated 27th July, 1991; 1st October, 1991; 29th October, 1991; addressed by Smt. Sita Wanti Chadha to the House Building Society; NDMC records and other correspondence which bears the signatures of Smt. Sita Wanti Chadha even in 1994. Mr. Amit Chadha, learned senior counsel has also placed reliance on the wedding cards with regard to the children of defendant no.10; photographs of weddings and related ceremonies at the suit property. It is urged that Smt. Sita Wanti Chadha, defendant no.1 as well as defendant no.2 (mother of defendant no.1) are present in these celebrations.
23. It is submitted that Smt. Sita Wanti Chadha was permanently residing in the suit property which is manifested from her ration card. In this background, learned senior counsel for the defendant no.10 has urged that the perusal of the General Power of Attorney relied upon by the plaintiffs would show the fraud which has been perpetrated in respect of the suit property. It has been pointed that Smt. Sita Wanti Chadha has been reflected therein as if she was a resident of House No.235, Sector 15-A, Faridabad, Haryana. It is further pointed out that the general power of attorney does not even contain any signatures of the executant.
24. The third aspect which has been pointed out as a suspicious circumstance is the fact that the said general power of attorney is witnessed by one Shri Deepak Trehan who is resident of 326, Sector 15- A, Faridabad, Haryana. As per the General Power of Attorney as well as the plaint, Shri Rajinder Trehan-the plaintiff no.2 is a resident of 326, Sector 15-A, Faridabad, Haryana. In answer to the question by this court, Mr. Gajaria, learned counsel for the plaintiffs has very fairly conceded that Deepak Trehan is the son of plaintiff no.2. Thus, prima facie, it would appear that even though Smt. Sita Wanti Chadha was residing at the suit property, she has been mischievously reflected as residing with the defendant no.1 at Faridabad. The fact that Shri Deepak Trehan, son of the plaintiff no.2 has witnessed the said attorney and the agreement to sell is executed in favour of his father Shri Rajinder Trehan prima faice suggests that the transactions were a part of the prior design.
25. So far as the agreement to sell dated 20th February, 2004 is concerned, as noticed hereinabove, the same also incorrectly reflects that Smt. Sita Wanti Chadha was residing at the same address at Faridabad. This document has also not been signed by Smt. Sita Wanti Chadha. On the contrary, the same has been executed by Shri Sumit Chadha acting as her general power of attorney.
26. As noticed above, the documents reflect that the suit property bearing no.D-937 A, Block D, New Friends Colony, New Delhi admeasuring 472 sq. yards as per the agreement to sell, has been sold for a consideration of Rs.22,00,000/-. Even in February, 2004, when the property was claimed to have been sold, the amount of consideration is certainly not reflective of the real worth of the property. However, this would not influence adjudication of the present application inasmuch as the parties are yet to record evidence in respect of their respective cases.
27. Be that as it may, certain covenants in this agreement to sell certainly render the transaction suspicious. The same are briefly noticed hereinafter.
28. In clause 1 of the agreement to sell reproduced above, it has been stated that an amount of Rs.22,00,000/- has been paid by two cheques. The first payment of an amount of Rs.15,00,000/- has been mentioned as having been paid by a cheque dated 20th February, 2004 drawn on the ICICI Bank, New Delhi. The second payment has been by means of a cheque of Rs.7,00,000/- paid on 20th February, 2004 which is drawn on State Bank of Patiala.
29. To support the encashment of this cheque, the plaintiff has placed on record the extracts of his bank statement. Perusal thereof would show that the cheques have been paid in the name of Shri Sumit Chadha. There is not a single document on record which prima facie suggests that any amount has been received by Late Smt. Sita Wanti Chadha as sale consideration pursuant to the said agreement to sell.
30. I also find that in clause 2 & clause 6 of the said agreement to sell, it has been stated that the seller has handed over “actual vacant physical possession of the said property to the plaintiffs at the time of signing of this agreement to sell” (Page 47). This is reiterated in clause 6 wherein it is stated that the plaintiff or their nominee/s shall henceforth quietly and peacefully, hold, possess, and enjoy the said property.
31. Mr. Chadha, learned senior counsel for the defendant no.10 has vehemently challenged this statement in the agreement to sell and has contended that Smt. Sita Wanti Chadha; with her two sons defendant nos.[9] & 10 and their families have all along been in possession of the suit property. 32. This has been countered by Mr.Gajaria, learned counsel for the plaintiffs who has placed reliance on an alleged writing purportedly executed by Late Smt. Sita Wanti Chadha on the 25th of February, 2004 which in effect is an alleged request by Late Smt. Sita Wanti Chadha to the effect that she is a senior citizen; that she has no other house except the said property and during her lifetime, wishes to stay in the house. She also confirms the agreement to sell in this document and also that she has handed over possession to the purchase with whose consent she was wishing to continue to stay in this house”.
33. It is important to note that this document relied upon by the plaintiffs also bears only a thumb impression. The document is not witnessed by any family member of the deceased Smt. Sita Wanti Chadha but by one Shri Karan Singh, a resident of 501, Sujhav Colony, Ballabhgarh, Faridabad, Haryana. The defendant no.10 has challenged this document and submitted that it was never executed by Late Smt. Sita Wanti Chadha.
34. I also find that the plaintiffs have placed on record an alleged possession letter dated 20th February, 2004 executed between plaintiffs on the one hand and the defendant no.1 on the other wherein it is stated that vacant and physical possession of the property had been handed over to the plaintiffs in terms of the agreement to sell dated 20th February, 2004 in the presence of two witnesses. The contents of the letter dated 25th February, 2004 are in blatant contradiction to the certification contained in the possession letter dated 20th February,
2004.
35. Yet another material factor which this court is required to take into consideration and which has bearing on the prayer for grant of ad interim injunction is the fact that the plaintiffs have placed reliance on the agreement to sell dated 20th February, 2004. There is no explanation at all to explain the delay till 18th January, 2010 when the suit has been brought. The plaintiffs have not addressed any communication to Late Smt. Sita Wanti Chadha or any of the defendants to seek specific performance of an agreement to sell.
36. Mr. Gajaria, learned counsel for the plaintiffs has sought to explain the delay in bringing the suit on the fact that the plaintiff no.1 is the citizen of United States of America and he was frequently travelling abroad. It has also been asserted that the plaintiff was taking steps to get the property converted to freehold so that the execution of the sale deed could be effected. It is urged that so far as the leasehold property is concerned, it may not have been permissible execution of the sale deed. In my view, these submissions are really of no assistance to the plaintiffs so far as the grant of interim injunction is concerned. This explanation would bear consideration at the time of moulding equities at the stage of granting final relief. However, at this stage, the plaintiffs in my view have failed to make out a case of any extreme urgency which would entitle the plaintiffs to grant of injunction.
37. The above narration would also show that the prima facie the documents relied upon by the plaintiffs do not inspire confidence. There is nothing to show that they were ever validly executed or that they were executed by or on behalf of Smt. Sita Wanti Chadha. There is no material on record to evidence payment of any consideration to her in respect of the suit property. On the contrary, it is the plaintiffs case that they made payments to and in the name of Shri Sumit Chadha. The writing dated 25th February, 2004 is unexplained and contrary to the agreememnt to sell as well as possession letter dated 20th February, 2004 which record an event of handing over of possession of the suit property to the plaintiffs.
38. Clause 10 of the agreement to sell reflects hereinabove also stipulates that the plaintiffs have received all original documents relating to the suit property. This position is also not correct.
39. It is pointed out by Mr. Amit Chadha, learned senior counsel for defendant no.10 that the original lease deed with all original documents of the suit property are in power and possession of the defendant no.10. It is submitted that the original lease deed of the suit property executed by L & DO in favour of Late Shri Munshi Ram Chadha is in power and possession of defendant no.10. Perusal of the record would show that this submission of the defendants is also correct. The agreement to sell, therefore, contains false recitals.
40. In this background, the plaintiffs have failed to establish any of the ingredients entitling them to grant of interim injunction. There is no prima facie case in favour of the plaintiffs nor balance of convenience or equity in their favour justifying grant of any injunction or continuation of order which was passed on 4th February, 2010. The plaintiffs have also failed to make out a case of any irreparable loss or damage which would have enure to the plaintiffs. In view of the above, I find no merit in this application which is hereby dismissed. The interim order passed on 4th of February, 2010 is vacated. Dasti. GITA MITTAL,J AUGUST 09, 2011 aa