Full Text
HIGH COURT OF DELHI
5646/2024, I.A. 5853/2024, I.A. 5854/2024, I.A. 5872/2024, I.A.
6601/2024, I.A. 6603/2024, I.A. 6604/2024, I.A. 6606/2024, I.A.
8359/2024, I.A. 8360/2024, I.A. 8740/2024, I.A. 8877/2024
MONICA GOGIA ..... Plaintiff
Through: Mr. Abhimanyu Bhandari, Mr. Arjun Syal, Mr. Shreyan Das, Ms. Mehak Jaggi, Mr. Raghuveer Kapur, Mr. Jagdeep Sharma, Mr. Kartikay Sharma & Mr. Randeep Sachdeva, Advocates.
Through: Mr. Dayan Krishnan & Mr. Sunil Dalai, Sr. Advocates
& Mr. Thakur Ankit Singh, Advocates for Applicant
JUDGMENT
Plaintiff & I.A.5872/2024: Application under Order XXXIX Rule 4
CPC by the Defendant to vacate the Stay Dated 09.03.2024.
1. An Application under Order XXXIX Rule 1 And 2 Code of Civil Procedure, 1908 („CPC‟ hereinafter) has been filed by the plaintiff and Application under Order XXXIX Rule 4 CPC has been filed on behalf of the defendants for vacating the ex-parte ad-interim Orders dated 09.03.2024.
2. Briefly stated, the plaintiff had instituted the aforesaid suit for cancellation of Agreement to Sell dated 22.01.2024 and the consequent purported two Sale Deeds dated 23.02.2024 executed with defendant No.1 in respect of the suit property and for Permanent Injunction for restraining the defendants from selling or parting with possession of the suit property.
3. As stated in the plaint, the plaintiff is a sole and absolute owner of the Agricultural Land measuring 4 bighas (4032 sq. yards) bearing Mustatil NO. 33 Killa No. 17 min (4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi (hereinafter referred to as the “suit property”) which is a part of the Agricultural Land admeasuring 12 bighas and 02 biswas Killa No. 17 min(4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi (hereinafter referred to as the “entire property”). The applicant/plaintiff had acquired the entire property from HDFC Ltd. by way of a Public Auction in furtherance of which the Sale Certificate dated 12.05.2020 bearing Document No. 2030 and Additional Book No. I, Volume No. 3332 registered with the Office of Sub-Registrar, New Delhi, has been issued.
4. The plaintiff entered into two Agreements to Sell, both dated 22.01.2024 with defendant No.1 M/s RSS Estate LLP. One Agreement to Sell (hereinafter referred to as “ATS-I”) was in respect of 4032 sq. yards of the entire property with the sole entrance to the entire property and the second Agreement to Sell (hereinafter referred to as “ATS-II”) pertains to the remaining part of the entire property, admeasuring 8168 sq. yards. The reason given by the defendants for executing two separate Agreements to Sell was that since total sale consideration was huge, executing two Agreements to Sell with different timelines for payment of consideration would allow the defendant with adequate time to arrange for the entire funds and it would be easier for the defendants to avail loan facilities in two tranches. It is stated by the plaintiff that prevailing market value of the entire property in question was approximately 135 Crores.
5. In respect of ATS-I for suit property measuring 4032 sq. yards the defendant was to pay a total consideration of Rs.38 Crores, out of which Rs.10 Crores was paid at the time of execution of ATS-I and the balance consideration was payable on or before 10.02.2024. The ATS-II for the remaining part of the entire property for which a total consideration was Rs.95,50,00,000/- out of which Rs.18,50,00,000/- was paid by the defendant at the time of execution of the ATS-II and the balance consideration was payable on or before 22.07.2024.
6. The plaintiff has asserted that the defendant failed to pay the balance sale consideration under ATS-I till the stipulated time and on enquiry from the plaintiff, it made some specious excuses about the concerned Bank being in the process of approving the loan. The defendant assured that it shall release all the payments soon before the date of execution of the Sale Deed.
7. The plaintiff had asserted that when it approached the defendant for execution of the requested documents pursuant to ATS-I, the defendant assured that he would be bringing the officials of the Bank to the property of the plaintiff on 20.02.2024 to obtain signatures on NOCs and other documents in order to secure the loan. However, on 19.02.2024 the defendant No.2 along with 4-5 of his associates landed at the residence of the plaintiff totally unannounced with various documents which included NOC and the purported Sale Deed. No bank official was accompanying them. They requested the plaintiff to sign and put her thumb impression on the said documents on the pretext that the said documents were necessary for the loan and the bank officials were urgently demanding these documents for sanction of the loan. It was further stated that unless these documents were submitted, the sanction of loan would be further delayed and the registration process at the office of Sub-Registrar which is also a time-taking process and that signing and getting the Sale Deed ready would save the plaintiff’s time at the office of Sub-Registrar.
8. It is submitted that the Sale Deed which was shown by the defendants specifically reflected that the total sale consideration for the suit property is Rs. 38,00,00,000/-. With the sense of urgency created by the defendants, the plaintiff signed the NOC and the purported Sale Deed on the assurance of the defendants that the Sale Deed would not be effective and not executed before the Sub-Registrar’s Office unless the applicant/plaintiff appeared in person and authenticated her signatures therein and that there would be no sale transaction till the time the parties appear before the Sub-Registrar’s Office.
9. The applicant/plaintiff was also assured that all her interests would be protected and she can choose not to appear before the Sub-Registrar’s Office until and unless the entire balance consideration is received by her.
10. The applicant/plaintiff, believing the assurances to be true in good faith, signed the Sale Deed along with NOC and other documents, without receiving the balance consideration.
11. On 23.02.2024, when the applicant/plaintiff reached the Office of Sub-Registrar, there was a long queue of applicants waiting for their respective turns. The applicant/plaintiff, who had already laid the ground for defrauding, was told by the defendant No. 2 to proceed for her biometrics on completion of which, she was kept waiting for the sale consideration, but no bank draft was furnished and the applicant/plaintiff returned. It is asserted that defendant kept delaying the payment of the balance sale consideration on one pretext or the other and assured that it is only a matter of time that the balance consideration would be released to the plaintiff and the delay was only on account of the bank officials. The plaintiff was also shown a picture of a certain bank draft.
12. While the plaintiff waited for balance sale consideration to be transferred so that the Sale Deed could be executed, the defendant after a point stopped responding to the calls and messages of the plaintiff who thus, became suspicious of the intentions of the defendants. She immediately returned from the Sub-Registrar’s office without even meeting the Subplaintiff ever passed on to the defendants.
13. It was further submitted that even if for the sake of argument, it was accepted that some interest in the property was created in favour of the defendants even then the possession of the suit property cannot be forcibly taken away from the plaintiff. The plaintiff tried to reach out to the defendants to seek the explanation for not giving the balance sale consideration and to clarify the further course of action, however, despite repeated calls and messages, no satisfactory response was forthcoming from the defendants who eventually stopped responding to the calls and messages of the plaintiff. This made the plaintiff further suspicious of the intent and motive of the defendants.
14. The applicant/plaintiff and her family got a rude shock on 27.02.2024 when the defendants attempted to dump certain materials on the Suit Property by misleading the guards as if the same was being done at the behest of the applicant/plaintiff and her family. When the applicant/plaintiff got suspicious of the ulterior motive of the defendants, she issued the Legal Notice dated 27.02.2024 terminating the ATS-I and forfeiting 10% of the entire sale consideration.
15. The applicant/plaintiff also issued the Letter dated 27.02.2024 to the Sub-Registrar’s Office informing about the termination of the ATS-I and requested him to not register any documents in respect of the suit property.
16. On 04.03.2024, the applicant/plaintiff received the Reply dated 29.02.2024 from the Office of the Sub-Registrar, seeking clarity on the documents referred to in her Letter dated 27.02.2024.
17. On 05.03.2024, the applicant/plaintiff responded the Letter dated 29.02.2024 issued by the Office of the Sub-Registrar and she received an SMS message from the Office Sub-Registrar stating that the Sale Deed for the suit property, has already been allegedly registered.
18. The applicant/plaintiff has further submitted that on 08.03.2024, a mob of 60-70 people, including the labourers, bouncers and armed gunmen entered into the suit property, who at the behest of the defendants constructed a wall between the suit property and the remaining entire property thereby forcibly blocking the complete ingress and egress of the applicant/plaintiff to her portion of the property which was behind the suit property, through the gate which is the only access point for the entire property.
19. The plaintiff has further asserted that the defendants are attempting to illegally alter the nature and character of the property by not only constructing the wall but also by blocking the entire drive way and the main and sole entrance. They are also threatening the plaintiff and her family to vacate the entire suit property. Thus, the plaintiff has filed a suit for cancellation of the Agreement to Sell and the Sale Deed and also sought interim protection.
20. The plaintiff along with the suit had filed I.A.5646/2024 under Order XXXIX Rule 1 and 2 CPC for restraining the defendants from parting with the possession of the suit property and for carrying out any kind of construction in the suit property and also for restraining the defendants from blocking the ingress and egress of the plaintiff to the entire property by removing the wall and by providing access through the main gate.
21. The Application bearing No. I.A.5646/2024 for ex-parte ad-interim was allowed vide Order dated 09.03.2024 whereby the defendants had been directed to provide access to the ingress and egress of the plaintiff to her part of the property including the drive way by removing any wall which may have been constructed by the defendants.
22. After the grant of the ex-parte ad interim Injunction, subsequent events have been brought on record by the plaintiff in the Application I.A.5853/2024 under Order XXXIX Rule 1 & 2 CPC wherein while referring to the aforesaid facts, the plaintiff has further asserted that on the filing of the present suit in the Court, this Court vide Order dated 09.03.2024 granted an ad-interim relief to the plaintiff by directing the defendants to provide the plaintiff and her family members an ingress and egress to her part of the property including the drive way by removing the wall constructed by the defendants and also to provide the access through the main gate.
23. It is further submitted in the Application that pursuant to this Order dated 09.03.2024 the defendants have been acting with spite and vengeance and are harassing the plaintiff and her family members. They are not allowing the security guards of the plaintiff in the Guard Hut on the main gate of the suit property and have deployed their own security guards. They have disconnected the wires connected to the CCTV cameras because of which the plaintiff has lost the complete access to most of its CCTVs that were installed in the property. The plaintiff has been completely blindsided and is not in a position to ascertain the extent of unlawful occupation and is unable to gather the proof of various illegal activities been conducted by the defendants on the Suit Property.
24. Further, the defendants have disconnected the internet connection of the plaintiff and the plaintiff has been compelled to install a separate internet connection at her own expense. There is a deliberate nuisance and inconvenience been caused by the defendants to the plaintiff and a threat has been given to cut off the basic essential supplies including water, electricity, gas, and the generator to the premises of the plaintiff.
25. Moreover, enormous pressure is being exerted by the defendants who have forcefully entered the Suit Property and have thereafter, blocked the ingress and egress of the plaintiff to the Suit Property.
26. The plaintiff has thus, sought a prayer that the defendants be directed to restore all supplies and services to the premises of the plaintiff and to stop threatening the plaintiff to disconnect the essential amenities.
27. The defendants have filed the Application bearing No.I.A.5872/2024 under Order XXXIX Rule 4 CPC read with Section 151 CPC for vacating this ex-parte ad-interim stay granted vide Order dated 09.03.2024.
28. It is stated in the Application that the suit is the classic case of dishonest litigation resorting to falsehood and concealment of material facts, thereby misleading the court and that too, on a day when the Court was on a holiday and especially when the Caveat was filed by the defendant, but no prior notice was given to the plaintiff. It is a case of sheer brazenness and total lack of respect for the sanctity of the Court of Law and its processes.
29. The defendants have submitted that the plaintiff has already received the entire sale consideration for plot No.1 and plot No.2 (measuring a total area of 4032 sq. yards.)i.e. Rs.[4] Crores and Rs.[6] Crores respectively and has executed two separate registered Sale Deeds on 23.02.2024 in respect thereof, for which the plaintiff and the defendants had appeared before the concerned Sub-Registrar. The physical possession of these two plots was duly handed over to the defendants on the same date i.e. 23.02.2024 as is also recorded in the two Sale Deeds. The two registered Sale Deeds are accompanied with duly signed Site Plans of the suit property i.e. Plot No.1 and 2 each measuring 2016 sq. yards. The sale deeds have been duly signed and have thumb impression of the plaintiff as well as her son Shri Ankur Gogia as witness No.1. The photographs were taken of the parties in the office of Sub-Registrar which has been pasted on the Sale Deed which clearly reflects the presence of the plaintiff, the defendants as well as of the witnesses who appeared before the Sub-Registrar. Each and every page of the Sale Deeds is signed by the plaintiff and the Registrar has also certified that the plaintiff admitted having receipt the entire sale consideration.
30. It is claimed that an impression is sought to be created in the Court that the plaintiff was not aware of the contents of the two Sale Deeds. In fact, the plaintiff was duly informed on 22.02.2024 itself about the appointment in the office of Sub-Registrar for registration of the Sale Deeds on 23.02.2024 vide a SMS.
31. The defendants have asserted that the plaintiff has concealed that there were in fact two Sale Deeds that were executed in respect of Plot No.1 and not one Sale Deed as is being stated in the plaint. The plaintiff’s dishonest intention is exhibited in projecting the physical condition of her husband merely to successfully mislead this Court into granting the ex-parte order. There are inherent contradictions in the pleadings and claims of the plaintiff which reveal the falsehood of her assertions.
32. It is submitted that in the complaint to the SHO, P.S. Vasant Kunj dated 27.02.2024 it was claimed that on 19.02.2024 the defendants had got some documents signed from the plaintiff on the representation that it would save time before the office of Sub-Registrar though the copies of the drafts were not provided for reading and vetting as had been promised by the defendants. The plaintiff has further asserted that the defendants, however, did not come back or supply the copy thereof and the plaintiff is not aware of the content of the documents that were signed by her. The plaintiff has claimed that she tried to contact the defendants telephonically for the copy of documents and to have consented date for appearance before the office of Sub Registrar, but the defendants did not respond.
33. The defendants have claimed that in this entire complaint there was no reference to the fact that the plaintiff along with her son, had already appeared before the Sub-Registrar and executed the two Sale Deeds dated 23.02.2024 and admitted receiving the entire sale consideration by signing and putting her thumb impression on the documents.
34. In the complaint dated 27.02.2024 made to the District Magistrate, Saket, the plaintiff continued with the false narrative as was stated in the earlier complaint.
35. The plaintiff allegedly made a similar complaint to the Sub-Registrar on 27.02.2024 consequent to which Sub-Registrar issued a Memorandum dated 29.02.2024 clarifying and certifying that “in the matter, the execution of both the sale deeds have been admitted before the undersigned and consideration has been received by the Vendor”.
36. The Sub-Registrar also sought the copy of the status quo order of the Court failing which he would register the Sale Deeds. The three day’s time from the receipt of the letter, was granted to the plaintiff to clarify the facts.
37. The plaintiff admittedly did not act on the said Memorandum within a period of three days obviously for the reason that she along with her son had appeared before the Sub-Registrar and executed the two Sale Deeds pursuant to ATS-I after receipt of the entire sale consideration. The factum of execution of the two Sale Deeds is so apparent and obvious that the entire earlier story of receiving no response from the defendants since 19.02.2024 is clearly exposed to be a blatant line.
38. The defendants have asserted that ingeniously the plaintiff has coined another story in its letter dated 06.03.2024 which in fact was a response to Memorandum dated 29.02.2024, with an attempt to cover the entire false suit by falsely claiming that the plaintiff had appeared on 23.02.2024 before the Sub-Registrar for some work relating to NOC.
39. Further, in contradiction to the earlier false claims, the plaintiff has stated in the plaint that on 19.02.2024 the defendants visited the plaintiff to get some documents i.e. NOC and purported Sale Deed signed and thumb impression by representing that the same would be required urgently for the registration process at the Sub-Registrar’s office. In this new set of story as concocted in the plaint, it is now stated for the first time that the draft Sale Deed was shown to reflect a sale consideration of Rs.38 Crores.
40. It is admitted in the plaint that the plaintiff had appeared before the office of the Sub-Registrar and signed and put thumb impression on the Sale Deeds. The plaintiff has tried to give an impression that she was not aware of the exact nature and content of the Sale Deeds, but has conveniently and dishonestly suppressed the material facts about the two Sale Deeds being duly signed by her.
41. It is asserted that the plaintiff herself is a Doctor and her son is a highly qualified person and her husband is a Chartered Accountant. The absurdity of the claims made by the plaintiff are totally unbelievable. The plaintiff has in fact handed over the vacant and peaceful possession of the Plot No.1 and 2, the to the defendants as was recorded in Clause 2 of the Sale Deeds.
42. The plaintiff for obtaining the ex-parte ad-interim stay which was granted by the Court vide Order dated 09.03.2024 had falsely asserted that she was residing in the back side of the property (to which the ATS-II pertains) and that the defendants had constructed a wall blocking the ingress and egress of the plaintiff to the entire property as the drive way was the sole entrance to the entire property. She also pleaded the physical condition of her husband to project that the plaintiff’s have got confined to the back portion of the suit property without any mode of ingress and egress to the back portion because of the construction of the wall by the defendants.
43. These statements are claimed to have been made despite the factum of registration of the two Sale Deeds by the plaintiff and witnessed by her son.
44. The defendants have claimed that these assertions of the plaintiff are blatantly false as she is residing at C-1/2, Vasant Vihar, New Delhi and occasionally visits the suit property which is used as a Farm House by her and her family members. This also finds reflection in the Memo of Parties and the affidavit filed in support of the plaint.
45. The plaintiff has concealed the fact that the possession of the Plot No.1 and 2 has been duly handed over to the defendants vide the two registered Sale Deeds. The Plot No.1 and 2 are clearly demarcated, the possession of which has been handed over to the defendants. The access to the back portion is from the street adjoining the plot as shown in the Site Plan annexed herewith. The plaintiff in fact had installed a separate gate in January, 2024 as it was agreed so as to demarcate and separate the back portion from Plot No.1 and 2 and to provide separate access to the back plot independent of the exclusive passage to Plot No.1 and 2 in the front. The drive way was never intended to serve as a common drive - way to the back portion. The plaintiff was duly bound to disclose the access to the back portion through the adjoining street and about the gate installed in the back portion. The Local Commissioner appointed by the Court has confirmed about the existence of a gate in the back portion which opens in the adjoining street.
46. The defendants have asserted that had the complete and true facts been brought before the Court, no ad-interim ex-parte injunction would have been granted to the plaintiff.
47. The defendants have submitted that in compliance and in deference of the ex-parte Order dated 09.03.2024, the defendants have demolished the wall in the drive - way though they are the registered owners of Plot No.1 and 2 and the drive way was agreed to be exclusively used by the owners of Plot No. 1&2. The plaintiffs have been left with no right in this plot after the registration of the Sale Deed and they have deprived the defendants a right of exclusive possession of the property by way of the ex-parte adinterim injunction.
48. The defendants have further claimed that the plaintiff and her husband have now started misusing and abusing this Order by squatting in the drive way along with other muscle men who indulge in abuse and create a ruckus in the area. The physical condition of the husband of the plaintiff was sought to be exploited unfortunately for illegal gains by way of ex-parte adinterim Order and is being used not as a means to have ingress and egress but to abuse and instigate the security guards and indulge in vulgar behaviour in the presence of lady security guards as well. The plaintiff has also threatened to physically remove the name plates and the Boards of the defendant on the facade of the property and unnecessary ruckus is created by insisting on keeping the Main Gates open at all times and have also created nuisance and security issues for the defendants. They are also seeking to encroach upon the other portions of property in question for which they reserve their right to seek appropriate relief.
49. The defendants have thus sought the vacation of ex-parte ad-interim Order dated 09.03.2024.
50. The plaintiff in its Reply to the Application under Order XXXIX Rule 4 CPC filed by the defendants has alleged that the purported Sale Deeds are forged, fabricated and have been obtained fraudulently. There are glaring discrepancies and the inconsistency in the purported Sale Deeds. The purported Sale Deeds comprise of two digital time stamps on it, while a genuine document can have only one-time stamp. Further, Clause 2 of the purported Sale Deeds states that the possession of the property has been handed over on the spot to the defendants. If so was the case, there was no reason for the defendants to forcibly enter on 08.03.2024 along with 60-70 agents including musclemen and bouncers and take possession of the suit property and to commence unauthorized construction.
51. Moreover, the SMS dated 22.02.2024 received by the plaintiff from the office of the Sub-Registrar fixed the appointment for registration of only one document with a specific pre-registration number. Thereafter, the plaintiff had received SMS dated 05.03.2024 from the office of Subclearly showcase the mala fides of the defendants. Moreover, in Clause 18 of the alleged Sale Deeds it was mentioned that all original Sale Certificates have been handed over by the plaintiff to the defendants which again is proven to be false since the original documents are still lying with HDFC Bank on account of loan transaction between the plaintiff and the Bank.
52. The plaintiff has further asserted that the Memorandum dated 29.02.2024 from the office of Sub-Registrar was received on 04.03.2024 by the plaintiff. The Memorandum sought the clarification within three days of its issue i.e. by 07.03.2024. However, the Sale Deeds have been executed on 05.03.2024 i.e. prior to the expiry of these three days on 07.03.2024. The plaintiff has already lodged a Criminal Complaint dated 13.03.2024 vide Diary No.D-404 before the Economic Offence Wing, New Delhi which is pending investigations. It is thus, asserted that the alleged Sale Deeds relied by the defendants are forged and fabricated documents.
53. The plaintiff has further claimed that it has not concealed or suppressed the true facts. By way of fair disclosure, the plaintiff has placed on record the original copies of both ATS-I and ATS-2, wherein the son of the plaintiff has signed as a witness on ATS-1. The biometrics of the plaintiff’s son before the office of Sub-Registrar on 23.02.2024 is not relevant in the present case as it is the case of infringement of the right of the plaintiff in the suit property.
54. The plaintiff has asserted that the defendants have played fraud upon the plaintiff. It has been claimed by them that the total consideration for the suit property was Rs.10 Crore. There are two ATS executed in respect of the suit property and the adjacent properties. The comparison of the two ATS would show that the signature and stamp seal are identical. The plaintiff has already moved an Application for sending the original ATS-I to FSL for the verification of the signatures. The defendants are not disputing that the price of 8000 sq. Yards (i.e. the back portion which is the subject matter of ATS-II) is Rs.95.[5] Crores. It is inconceivable that plaintiff would agree to sell 4032 sq. yards for merely 10 Cores which ex-facie shows that the Sale Deeds are illegal.
55. Moreover, the plaintiff had issued Legal Notice dated 27.02.2024 to terminate ATS-1 and ATS-2 and to forfeit 10% of the total sale consideration. The Legal Notice was issued before the date of execution of the purported Sale Deeds. The defendants have further tried to state that only a sum of Rs.1.98 cores was paid to the plaintiff on friendly terms. However, it is a false statement as the defendant has made a payment of additional 1.98 crores and Rs.5.98 Cores on 22.01.2024 and 24.01.2024 respectively. The plaintiff has further claimed that there is no embargo or other law for an Agreement to Sell to have any person as a witness which has been agitated as a ground by the defendants. The plaintiff has thus, asserted that there exists no ground for vacating the ex-parte ad-interim stay granted vide Order dated 09.03.2024.
56. In regard to the installation of a separate gate opening in the adjoining lane for the back portion, the plaintiff has asserted that it is absolutely a misleading statement since it is evident from the Report of the Local Commissioner dated 09.03.2024 that the alleged metal gate opens to a wall and beyond that is a street. The gate does not open into the street and it is not even known if it is a private or a public street. The Local Commissioner has also stated that he was unable to confirm if the adjoining street was private or public. The Local Commissioner in its subsequent Report dated 13.03.2024 has confirmed that there is only one entry and exit to the entire property. Undeniably, there exists this iron gate in the portion in which the plaintiff resides,, though it is not functional.
57. On merits, all the averments made in the application for vacating the stay under Order XXXIX Rule 4 CPC has been denied.
58. The plaintiff in her written submissions has submitted that the present suit is maintainable and not barred under Section 6 of the Specific Relief Act, 1963 since it involves serious issues including fraud perpetuated by the defendants which requires detailed evidence which cannot be done in a summary manner. It is further contended that since the primary grievance of the plaintiff is a fraud committed in getting the sale deeds executed, it has to seek cancellation/termination of the ATS and the purported sale deeds which is the only remedy left with the plaintiff. Even otherwise, a specific plea has been taken by the plaintiff of not only denying the execution of Agreement to Sell which have been claimed to have forged and fabricated but also the consequent Sale Deeds.
59. Since the Sale Deeds though fraudulently have been executed pursuant to the ATS, the plaintiff has no choice but to seek cancellation of the Sale Deeds as well. The reliance has been placed on the judgment of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and Ors. (2020) 7 SCC 366.
60. Mere fact that the purported Sale Deeds are registered, only give rise to a rebuttal presumption of genuineness and do not rule out the chances of the exercise of fraud, misrepresentation or coercion. Once the evidence points to a sketchy manner of registration, it is sufficient to rebut the presumption of genuineness thereby justifying the grant of ex-parte order in the present case. Mere registration does not sanctify a document nor does it has an irrebuttable presumption of genuineness attached to it, as observed in the case of Dhaniram & Ors. vs. Shiv Singh (Civil Appeal No.8172 of 2009). Furthermore, even if the instrument is signed by both the parties, the presumption of its execution by both the parties is only a rebuttable presumption. The plaintiff has argued that there is a prima facie case on account of serious infirmities in the Sale Deeds and in the manner in which they have been procured; there is disproportionate consideration under ATS-I and 2 for the suit properties which clearly points towards the fraud by the defendants.
61. The transfer of Rs.1.98 Crores and 5.98 Crores on 22.02.2024 and 24.01.2024 respectively and cumulatively Rs.10 Crores in accordance with ATS-I by the defendants in the account of the plaintiff, was a payment in terms of ATS-I and not a friendly loan. The claim of the defendants that
1.98 crores was towards a friendly payment, is rebutted by the very fact that the defendants have deducted TDS from it.
62. The defendants have alleged the ATS-I to be forged and fabricated but its comparison with ATS-2 would show that they both bear exactly same signatures and stamps on it. Even the Stamp Paper was purchased by the defendants. The claims made that the Stamp Paper had been purchased to obtain an NOC, but has failed to produce the same.
63. The Legal Notice had been duly served by the plaintiff. In fact, the defendants in part of an illegal designed conspiracy has forcibly taken possession of the suit property over the extended weekend. It is again highlighted that the Sale Deeds relied upon by the defendants are forged and fabricated.
64. It is contended that if the stay is not granted to the plaintiff, irreparable hardship would be caused to the plaintiff since there is only one main entrance to the entire property and her husband who is paraplegic, would be handicapped for going for his regular check-ups. He has to leave the premises in a special car, which cannot come out on account of blocking of drive way and the entrance by the defendants.
65. It is asserted that the balance of convenience is also in favour of the plaintiff as its easementary rights have been violated by the defendants and vacating the interim order dated 09.03.2024 would cause inconvenience to the plaintiff as its ingress and egress to the property would be impacted. It is explained that there cannot be any separate access to the Plot No.2 because the gate which exists in the back portion is blocked by a wall and it is not known whether the adjoining street in which this gate may be opened is a private or a public street. It is, therefore, submitted that the Application for vacating the stay is liable to be rejected.
66. The plaintiff in support of her case has relied upon the following judgments:
(i) Jaswant Singh v. Punjab Agricultural University (SLP (C)
Diary No. 24044/2018) where the Apex Court held that proceedings under Section 6 of the Specific Relief Act are summary in nature.
(ii) Behari Kunj Sahkari Avas Samiti v. State of U.P. (2008) 12
(iii) In Veena Singh (Dead) through Legal Representative v.
District Registrar/Additional Collector and Anr. (2022) 7 SCC 1 where the apex court held that if an instrument is signed by both parties then it is a presumption of fact that both parties have executed it and it is a rebuttable presumption.
(iv) CS (OS) 646/2023 Nitin Saxena v. Amit Saxena where it was held that courts have jurisdiction to pass interim or final orders in relation to registered documents.
(v) In Smt. Chandra Kala through her LRs & Ors v. Smt. Ram
Pyari Joshi (Died) through her LRs [2018 (4) RLW 3148] it was held that witnesses are not mandatory in an Agreement to Sell.
(vi) Maharwal Khewaji Trust, Faridkot v. Baldev Dass (2004) 8 SCC
488 the Apex court held that the court should not permit the nature of property to be changed, including alienation or transfer of property which may lead to loss or damage being caused to a party who may ultimately succeed.
(vii) In Sadhna Bhatnagar v. Shree Sita Ram Bhandar Society
[2000(52) DRJ] it was held that law respects possession even if there is not title to support it does not permit any person to disposes a person in actual possession without legal recourse.
(viii) In Rame Gowda (Dead) By LRs v. M. Varadappa Naidu (Dead) by LRs and Anr. (2004) 1 SCC 769 the apex court held that a rightful owner must take recourse of law and cannot unilaterally dispossess the trespasser by force.
(ix) In Krishna Ram Mahale (Dead) by his LRs v. Mrs. Shobha Venkat
Rao (1989) 4 SCC 131 the Apex court observed that possession must be obtained as per one’s entitlement through a court of law.
(x) In Samir Sobhan Sanyal v. Tracks Trade Private Ltd. and Ors.
(1996) 4 SCC 144 Apex court observed that any high-handed action taken without due process of law cannot be condoned.
67. The defendants in their written submissions have asserted that the Application of the plaintiff seeking temporary injunction is liable to be dismissed and the application of the defendants for vacating the ex-parte adinterim Order dated 09.03.2024 is liable to be allowed. It is claimed that the plaintiff as per her own submissions and the Report of the Local Commissioner, is not in possession of the suit property. The Sale Deeds have been duly executed by the plaintiff pursuant to the ATS-I on payment of entire sale consideration. Having executed the Sale Deeds, the plaintiff has no right, title interest left in the suit property which is now in the possession of the defendants as the same was handed over to them pursuant to the execution of the Sale Deeds.
68. The factum of genuine execution of Sale Deeds is reaffirmed not only from the registration of the two sale deeds but also from the physical presence of the plaintiff and her son before the Sub-Registrar and their signatures on the Sale Deeds in the presence of the Registrar which have been duly endorsed.
69. It is further asserted that the documents relied upon by the plaintiff suffer from inherent contradictions and false statements. The complaint made to the SHO contains a false narrative which is repeated in the complaint made subsequently to the DM. Plaintiff is taking different stands in its two complaints and also in its response dated 06.03.2024 to the Memorandum issued by the Sub-Registrar. She has tried to cover up the gaps in her story in its complaints. Another story has been set up in the Reply to Order XXXIX Rule 4 CPC, wherein it is claimed that an unregistered Sale Deed was also signed on 19.02.2024 by the plaintiff on being misled by the defendants.
70. The plaintiffs have admittedly availed a loan from the bank in respect of the two plots. The Bank dues were to be cleared by 20.02.2024 and the defendants on account of its friendly and family relations and sheer trust and good faith, had paid the sum of Rs.[2] crores on 20.01.2024 and a further sum of Rs.[2] crores on 22.01.2024 and Rs.[6] crores on 24.01.2024. The plaintiff had further represented that she had bank dues of Rs.16-17 crores and that she had necessary funds in addition to Rs.10 crores received from the defendants, to clear the bank dues. Accordingly, the stamp paper was purchased by defendant No.2 on 19.02.2024 in respect of the two plots. The plaintiff was asked to execute the Sale Deeds on 20.02.2024, but she and her husband stated that the bank dues still remained to be paid and that they have other business commitments for which they had kept aside Rs.10 crores paid by the defendants. The defendants on the representations of the plaintiff that the additional sum of Rs.17 cores would be adjusted in the sale consideration, gave this amount to the plaintiff, her husband and her son. The plaintiff from the amount so received immediately cleared the bank dues and provided the NOC issued by the bank to the defendants on the same day. It is thus, denied that the defendants had ever represented that they were seeking any loan for purchasing the suit property.
71. It is further denied that there is any balance consideration remains to be paid on or before 10.02.2024. The defendants have claimed that plaintiff is not only resorted to falsehood but has even indulged in fabricating documents. The alleged ATS-I is clearly a false and fabricated document and while the ATS-2 is a genuine document with respect to the portion at the back of Plot No.1 and 2. It is further asserted that the present suit is not maintainable since on date the plaintiff is not in a possession of the suit property. It is, therefore, submitted that the present suit itself is not maintainable and relief of cancellation of Sale Deeds cannot be granted to the plaintiff.
72. The Defendants have placed reliance on Jamila Begum v. Shami Mohd., (2019) 2 SCC 727; Prem Singh v. Birbal, (2006) 5 SCC 353; and Rattan Singh v. Nirmal Gill (2021) 15 SCC 300 where the Apex Court held that there is a presumption under law that a registered document has been validly executed. Further reliance is placed on K.D. Sharma v. SAIL, (2008) 12 SCC 481; S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 and Benara Bearings & Pistons Ltd. v. Mahle Engine Components India (P) Ltd., 2017 SCC OnLine Del 7226 to state that a party is not entitled to equitable relief of injunction if they did not approach the court with unclean hands.
73. Submissions heard and record perused.
74. It is not in dispute that the plaintiff is the owner of the entire agricultural land measuring 4 bighas i.e. 4032 sq. yds, bearing Mustatil No.33, Killa No.17 min(4-0) situated in the revenue estate of village Mehrauli, Tehsil Mehrauli, New Delhi which includes the suit property i.e. Mustatil No.33, Killa No.17 min(4-0) situated in Tehsil Mehrauli, New Delhi, admeasuring 4 bighas i.e. 4032 sq. yards having purchased it under a Sale Certificate from HDFC Ltd. in a public auction. According to the plaintiff it entered into two Agreements to Sell, which are as follows: “(i) One Agreement to Sell & Purchase was for the Suit Property i.e 4032 sq. yds of the Entire Property(“ATS 1”) wherein the total consideration which was payable by the Defendant was Rs. 38,00,00,000/- and out of which Rs. 10,00,00,000/- was paid by the Defendant at the time of execution of the ATS and the balance consideration was payable on or before 10.02.2024 on which date the sale deed was to be executed.
(ii) The second Agreement to Sell was for the remaining part of the Entire Property i.e 8168 Sq. Yds of the Entire Property(“ATS 2”) wherein the total consideration which was payable by the Defendant was Rs. 95,50,00,000/- out of Rs. 18,50,00,000/- was paid by the Defendant at the time of execution of the ATS and the balance consideration was payable on or before 22.07.2024 up to which the sale deed was to be executed.”
75. According to the plaintiff different timelines under the two ATS had been provided since the total sale consideration was huge.
76. From the application filed by the defendants under Order XXXIX Rule 4 CPC it emerges that the property in question, was an encumbered property, against which the plaintiff had taken the loan on account of which it needed time till July, 2024 to execute the Sale Deed pursuant to ATS-II. In order to facilitate the redemption of the property in question and on account of the friendly relations between the parties, defendant paid Rs.17 crores to the plaintiff on 20.02.2024 even though the date of execution of Sale Deed under second ATS was 22.07.2024. This money so taken from the defendant was utilized by the plaintiff to redeem the mortgaged loan from the bank and the plots were released from all encumbrances. The NOC was issued immediately by the Bank. Consequent thereto, the plaintiff and her son appeared before the Sub-Registrar on 23.02.2024 and acknowledged before the Registrar about the receipt of entire sale consideration and executed two separate Sale Deeds in respect of Plot No.1 and 2 each measuring 2016 sq. yards each.
77. The defendants have taken a specific plea that the ATS-I which is claimed by the plaintiff to have been executed on the same day as ATS-II i.e. 22.01.2024, was never executed and is a forged document which is apparent from the bare perusal of ATS-I itself. While the ATS-II which is purportedly executed on the same day bears the signatures of the witnesses as well, the ATS-I significantly does not bear the signature of the witnesses. It is in comprehendible that the two identical documents though in respect of two separate portions of the property in question were executed at the same time, but one document (ATS-II) was duly signed by the two witnesses while the other document (ATS-I) does not bear the signatures of the two witnesses. It is claimed that it is evident from the perusal of ATS-I that it is a forged and a fabricated document which is also borne out from the contradictory stands taken by the plaintiff while making complaints to various authorities as well as its averments made in the plaint and the reply to the applications. The defendant has, therefore, contended that no ATS-I was executed and that the two Sale Deeds in respect of 4032 sq. yards has been directly executed.
78. The defendant has claimed that the plaintiff has no prima facie case in its favour as the two Sale Deeds have been duly executed on 23.02.2024 have been duly executed before the Sub-Registrar and that the Sale Deed have not only the signature of the plaintiff, but also of her son who has signed as a witness. Their photographs also appear on the sale documents. Having duly executed the Sale Deed after receiving the entire sale consideration, a fact which is acknowledged by the Sub-Registrar in the Sale Deed itself, the plaintiff has left with no right, title, interest in the suit property and is, therefore, not entitled to any interim relief as is claimed.
79. While the execution of two registered Sale Deeds on 23.02.2024 in respect of total area of 4032 sq. yards is a matter of fact and the copies of two Sale Deeds have also been produced on record, but the plaintiff has challenged the Sale Deeds by claiming that they are the documents which have been fraudulently procured. It is submitted that on 22.02.2024 the defendants had approached them and on false assurances had obtained their signatures on certain documents without giving them an opportunity to read their contents. It is also contended by the plaintiff that it was agreed that the plaintiff would appear before the Sub-Registrar at the schedule time for which an SMS was also received from the office of Sub-Registrar. According to the plaintiff, when she reached the office of Sub-Registrar, the defendant procured her signatures on various documents on the pretext that it would take time and the defendants after getting the documents signed would expedite the entire procedure and that the actual registration of the Sale Deed would be done only on payment of the balance sale consideration. The plaintiff has not denied that she had gone to the office of Sub-Registrar or that she and her son had signed all the documents, but her assertion is that there is a huge fraud played as the entire transaction was manipulated by the defendants in connivance with the Sub-Registrar. No balance sale consideration has been received and that she never appeared before the Submanipulated which is corroborated by the fact that the Sub-Registrar since then has been suspended.
80. It is also explained by the plaintiff that the SMS dated 22.02.2024 which was received by the plaintiff in regard to registration of the Sale Deed, mentions that only one document is to be registered. Pertinently, two Sale Deeds got executed on 23.02.2024 which shows that this alleged two Sale Deeds has been manipulated as only one document was scheduled to be registered on 23.02.2024. The very fact of two documents instead of one getting executed creates a suspicion about the genuineness of the Sale Deed.
81. The plaintiff has claimed that she had informed the office of the Sub- 27.02.2024. Thereafter, she received Memorandum dated 29.02.2024 from the office of Sub Registrar on 04.03.2024 seeking clarity on the documents purported to be the Sale Deeds within three days from the date of receipt of letter i.e. by 07.03.2024. However, the plaintiff received an SMS from the Office of Sub-Registrar on 05.03.2024 and even before the time given to the plaintiff to respond to its aforesaid letter, the Sale Deeds have already been registered on 05.03.2024. The Sub-Registrar despite the intimation of Cancellation of ATS by the plaintiff well in time i.e. on 27.02.2024 and despite having issued a Memorandum dated 29.02.2024 has gone ahead to register the Sale Deeds on 05.03.2024, which again reflects the close nexus between the defendant and the Sub-Registrar in manipulating the registration of the Sale Deeds.
82. It is evident from the aforesaid rival contentions of the parties that though there is an alleged registered Sale Deed in respect of which there is a presumption of genuineness as has been held in Jamila Begum v. Shami Mohd (supra) Prem Singh v. Birbal (supra) and Rattan Singh v. Nirmal Gill (supra), but it is a rebuttable presumption and various issues including the assertion that the entire consideration not having been paid, have been raised by the plaintiff to challenge the genuineness and the authenticity of the Sale Deed.
83. There are triable issues raised in respect of the genuineness of the Sale Deeds, the payment of entire sale consideration and actual handing over of the physical possession of the suit property to the defendant. Though the defendants are admittedly in possession of the suit property which is 4032 sq. yards of the land, but the plaintiff has raised various triable issues which require adjudication. Therefore, a prima facie case is disclosed by the plaintiff entitling her to an interim injunction.
84. The defendants are already in possession of the suit property pursuant to the Sale Deeds, the genuineness of which is under challenge. No irreparable loss and injury would be caused to the defendant, if they are restrained from creating third party right in respect of the suit property.
85. The balance of convenience lies in favour of the plaintiff as not only is the possession not with the plaintiff, but it is the claim of the plaintiff that the entire balance consideration has not been received by her.
86. The plaintiff is, therefore, entitled to an interim injunction for restraining the defendants from creating any third party right in respect of the suit property i.e 4032 sq. yards. of the land.
87. The plaintiff has also sought access to the property admeasuring about 8168 sq. yds of land in respect of which ATS-II had been executed between the parties in respect of which the Sale Deed has to be executed in July, 2024. The plaintiff’s have claimed that the only access to their part of the property which is admittedly in their possession, is through the main gate in the front and therefore, till all the disputes are settled, the plaintiff have an easementary right to have access through the only main gate existing in the property to their portion.
88. The defendants, however, have contested the right of access of the plaintiff to their portion through the main gate. It is refuted that the main gate through the property of the plaintiff is the only access to the portion in possession of the plaintiff by asserting that there is another gate existing in the portion of the plaintiff which opens into the side lane. It is argued that this existence of second gate is not denied by the plaintiff and also confirmed from the Report of the Local Commissioner. There being an alternate access to the portion in possession of the plaintiff, they cannot claim a right and easementary right through the property of the defendant.
89. Pertinently, the reference be made to ATS-II which is a document admitted by the defendant as well as the plaintiff. In its Clause (v) it is clearly mentioned that during the pendency of the Agreement, the second party (defendants) shall have uninterrupted and unrestricted 24x[7] access to the said land which shall be duly cooperated by the first party (plaintiff) and persons associated with her.
90. It is evident from the covenant of ATS-II itself that the parties had contemplated a free access of the parties through this main gate till the entire transaction was executed. There is no mention of this second gate in the ATS-II. Had it been in the contemplation of the parties that the access to the rear plot would be through the second gate, it would have obviously found a mention in the ATS-II, for which the date of payment of balance consideration was 22.07.2024. Pertinently, the date of execution of Sale Deed for the front portion was 23.02.2024. The existing access to the rear portion which is in possession of the plaintiff, is undeniably through the main gate which passes through the front portion. If the parties had contemplated that plaintiff would have access through the admittedly nonfunctional Gate in the back portion, then considering the gap of about five months in the two ATS/deals, there was nothing that prevented the parties to specifically so provide in ATS-II which is conspicuously missing from the ATS-II. Rather, its Clause (v) clearly mentions that during the pendency of the Agreement, the second party (defendants) shall have uninterrupted and unrestricted 24x[7] access to the said land which prima facie establishes the right of access of the plaintiff through the functional main gate existing in the front.
91. The other factor which is of huge significance is the claim of the Applicant Mr. Manoj Kumar, Legal Heir of Smt. Sharbati Devi, who have filed an application under Order I Rule 10 CPC for Impleadment. They have claimed that Choudhary Het Ram was the owner of the lands of which the suit properties are part and parcel. Choudhary Het Ram expired on 20.02.1995 after which Smt. Sharbati Devi became the owner, but she also expired on 31.05.2006 and the applicants became the owners of the property being the legal heirs of Smt. Sharbati Devi. They have claimed that while transferring these land parcels to various persons along side the street in question in the year 1992, Late Choudhary Het Ram had permitted these parties to use to street which is in fact a private street, on certain terms and conditions. It is claimed that the private street running adjoining to the property in question is owned by the applicants and that it is not a public street and there is no absolute right of third parties to have an access through the private street. It is contended that the parties to the suit cannot open a fresh entry on the side of the private street without the consent and permission of the applicants. It is asserted that the side street is a private street owned by the applicants in which the easementary right cannot be claimed by the parties to the suit.
92. Whether there is an alternate access to the portion of the land in possession of the plaintiff aside from the main entry gate, is a moot question which needs adjudication and determination. Till such time it can be ascertained if there is an alternate access to the portion in the possession of the plaintiff, they cannot be denied their right of ingress and egress through the main gate. Any endeavour by the defendants to block this passage by claiming that they have purchased this land through two alleged Sale Deeds, the genuineness of which has also been challenged, cannot be decided at this stage.
93. The defendants have tried to resist this claim by asserting that plaintiff is residing in Vasant Vihar property as is made out from the title of the suit as well as her affidavit and that this is only a Farm House which is used occasionally by the plaintiff. However, undeniably the portion in the back is in possession of the plaintiff. Even if she is visiting infrequently or is using it as a Farm House on the weekends, it cannot be a reason to limit or restrict her right to her part of the property according to the convenience of the defendants. It is an independent right and whether it is used frequently or infrequently cannot be a ground to deny free access to the plaintiff through the main existing gate which opens towards the Church Road.
94. There is, therefore, a prima facie case in favour of the plaintiff to continue to have access to their part of the property through the main gate as before. No irreparable loss and injury would be caused to the defendants if the plaintiffs continue to have the access through the main gate. The balance of convenience also lies in favour of the plaintiff since there is no other alternate operational gate for access to the portion in possession of the plaintiff. Conclusion:
95. In the light of the above discussion, it is hereby held that the plaintiff has been able to satisfy the triple test entitling it to an interim injunction. The defendants, its agents and representative are hereby restrained from creating third party rights in respect of the suit property i.e. 4032 sq. yards of land in respect of which allegedly two Sale Deeds dated 23.02.2024 have been executed. Further, the defendants are restrained from obstructing the access of the plaintiff and her family members through the main gate opening towards the Church Road, till the disposal of the suit.
96. The Application under Order XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff is, therefore, allowed, while the Application under Order XXXIX Rule 4 CPC filed on behalf of the defendants is dismissed.
97. Be listed before the Roster Bench on 07.08.2024.
JUDGE JULY 08, 2024