Karishma Oberoi v. Ajay Kumar & Abhishek Oberoi

Delhi High Court · 08 Dec 2022 · 2022:DHC:5393

Neena Bansal Krishna

CS(OS) 637/2021

2022:DHC:5393

civil appeal_dismissed Significant

AI Summary

The Delhi High Court dismissed the suit for cancellation of Sale Deed due to failure to plead fraud with requisite particulars, holding that vague allegations do not constitute cause of action under Order VI and VII CPC.

Full Text

2022/DHC/005393

CS(OS) 637/2021
HIGH COURT OF DELHI

Reserved on: 18th October, 2022

Date of Decision: 08th December, 2022

CS(OS) 637/2021
KARISHMA OBEROI
W/o Sh. Aditya Oberoi R/o 22/54, 2nd Floor West Patel Nagar, New Delhi .....Plaintiff
Represented by: Mr. Shyam Babu, Advocate.

versus

JUDGMENT

1. AJAY KUMAR S/o Sh. J.C. Kumar, R/o H.No. 25/18, East Patel Nagar, New Delhi

2. MR.

ABHISHEK OBEROI S/o Sh. Rajiv Oberoi R/o H. No. 3A/73, Western Extension Area, Karol Bagh, New Delhi..... Defendants Represented by: Ms. Pooja Dua, Advocate for D-1. Mr. Gaurav Duggal, Advocate for D-2. CORAM: HON’BLE MS.

JUSTICE NEENA BANSAL KRISHNA J U D G E M E N T NEENA BANSAL KRISHNA, J. I.A. 3703/2022 (U/O VII Rule 11 (a), (c) & (d) r/w Section 151 of CPC,

1908)

1. The present application under Order VII Rule 11 (a), (c) and (d) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the defendant No. 2/Abhishek Oberoi seeking rejection of the Plaint.

2. Facts in brief are that defendant No. 2 Abhishek Oberoi is the real brother of the plaintiff Karishma Oberoi and defendant No. 1 Ajay Kumar is her younger uncle (Phufa). The plaintiff has filed the present Suit for cancellation of the Sale Deed dated 10th February, 2010 executed by the defendant no.2 in favour of defendant no.1, on the ground of misrepresentation and fraud.

3. It is asserted in the application on behalf of Defendant No.2 that no averments have been made nor any particulars disclosed in respect of how the fraud has been played on the plaintiff. It is a settled law that in case of fraud and undue influence, the pleadings have to set forth full particulars so that they can be decided accordingly. The general allegations are insufficient to amount to an averment of fraud. In the present case, there is not even a whisper of any allegation or material facts or particulars from where any inference of a fraud can be made. Mere claim of a fraud is not sufficient.

4. Order VI Rules 2 and 4 of CPC, 1908 mandates that in case the party relies on misrepresentations, fraud, breach of trust, willful default or undue influence, particulars with dates and items are to be stated in the pleading as a necessary factual matrix. The provisions are couched in mandatory terms. It is asserted that the Plaint is absolutely bereft of any material particulars in regard to alleged misrepresentation and fraud and is couched in most vague and ambiguous terms.

5. It is further submitted that in Paragraph No. 29 of the Suit, the valuation for the purpose of Partition is fixed at Rs. 2,20,00,000/-, and for the Declaration of the Sale Deed as null and void at Rs. 12,00,000/-. The plaintiff has claimed herself to be in constructive possession and has paid the court fee of Rs. 20/-. A false averment has been made by the plaintiff about having constructive possession when she has not even visited the property since her marriage on 22nd September, 2018 when she had physically moved out except for a single day i.e., 13th November, 2020 on the demise of their grandmother. The plaintiff has never been in possession of the property. There is no basis for claiming the constructive possession.

6. It is submitted that ad valorem court fee in the sum of Rs. 2,20,000/is required to be paid by the plaintiff. In case, she fails to pay the requisite court fee, the Suit is liable to be rejected. Hence, the present petition has been made for rejection of the Suit.

7. The plaintiff in her Reply has denied that no specific pleadings have been made in respect of fraud committed by the defendants. It is asserted that the modus operandi and the illicit benefits reaped and wrongful gains made by the defendants by committing the fraud as well as causing wrongful losses to the plaintiff, have been clearly mentioned. Even the right to file the criminal complaint pertaining to fraud has been specifically reserved in Paragraph Nos. 16 to 20 of the Plaint.

8. Reliance has been placed by the counsel for the plaintiff on the decision of the Hon’ble Supreme Court in Hari Singh vs. Kanhaiyalal AIR 1999 SC 3325, wherein it has been held that mere lack of details in the pleading cannot be a reason to set aside concurrent finding of facts, and the details if any, can be supplemented through evidence. It is denied that the Suit lacks material particulars as required to be detailed by Order VI Rules 2 and 4 of CPC, 1908. It is claimed that non-mentioning of the details of fraud in the Plaint would not attract Order VII Rule 11 of CPC, 1908.

9. It is further denied that since the day of her marriage i.e., 22nd September, 2018, she had moved out physically or that she does not have the constructive possession of the suit premises. It is asserted that the requisite court fee has been paid. Reliance has been placed on the decision in State of Punjab & Ors. vs. Dev Bharat Sharma Civil Appeal No. 2064/2022, arising out of SLP (Civil) No. 12468/2018.

10. It is asserted that the application is without merit and is liable to be dismissed.

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11. Submissions heard.

12. The plaintiff has filed the suit for declaring the Sale Deed dated 10th February, 2010 in favour of the defendant No. 2 as null and void. The plaintiff has stated in her plaint that her father Late Sh. Rajiv Oberoi was the owner of the suit property having purchased it from one Sh O.P. Bhatia. He died intestate on 03.05.2011 and her mother Smt. Neeraj Oberoi died on 22.10.2011. She and defendant no.2, her brother are the only Class –I legal heirs who became entitled to equal share in the suit property.

13. It is stated by the plaintiff that defendant no.2 sold their Shimla property without her free consent but assured that he would pay Rs.15,00,000/- to her at the time of her marriage. Thereafter, on 24.08.2014 it was mutually agreed between the plaintiff and defendant no.2 that he would pay Rs.15,00,000/- to the plaintiff in lieu of the Shimla property, if she relinquished her in that property in his favour. It was further agreed that all the gold jewellery of their grandmother Smt. Nirmal Oberoi shall belong to the plaintiff. The defendant no.2 also agreed to give Rs.1,00,00,000/- to the plaintiff at the time of her marriage in case he got Rs. 2,00,00,000/- from their uncle Defendant no.1.

14. It is asserted by the plaintiff that a fraud has been played upon her by defendant No. 2, her brother in collusion with uncle, defendant No. 1, inasmuch as the suit property which originally belonged to her father, had been first fraudulently transferred on the basis of alleged Agreement to Sell, etc executed on 23rd November, 1999, in the name of defendant No. 1/ uncle and thereafter defendant No. 1 on the basis of those documents, has allegedly executed a Sale Deed dated 10th February, 2010 in favour of the defendant No. 2.

15. Order VI Rules 2 and 4 of CPC, 1908 read as under:

“2. Pleading to state material facts and not evidence.—(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. 4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

16. Order VI Rule 4 provides that the details of the alleged fraud need to be specifically mentioned in the plaint.

17. In Afsar Sheikh & Ors. vs. Soleman Bibi & Ors. AIR 1976 SC 163, the Hon’ble Supreme Court held that a general allegation in the Plaint of the plaintiff being an old man of 90 years who reposed total confidence in the defendants, would be totally insufficient to amount to undue influence. The allegations in respect of fraud have to be stated with specificity, particularity and with precision, and use of general words such as fraud would not be enough.

18. In Bishundeo Narain vs. Seogeni Rai AIR 1951 SC 280, the Hon’ble Supreme Court observed that if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties must set forth full particulars and case can only be decided on the particulars as laid; general allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice. However, consideration must be given to the language in which allegations of fraud are couched.

19. In Ladli Prasad Jaiswal vs. Karnal Distillery Co. Ltd & Ors. AIR 1963 SC 1279, it was laid down that the object of pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute so as to narrow the controversy to precise issues and to give notice to the parties of the nature of testimony required on either side in support of their cases. A vague or general plea cannot serve this purpose; the parties pleading must, therefore, be required to plead the precise nature of fraud and the manner of use or the unfair advantage has been obtained. This rule has been evolved with a view to narrow the issue and to protect the party charged with improper conduct from being taken by surprise.

20. This principle was reaffirmed by the Hon’ble Supreme Court in Varanseya Sanskrit Vishwavidyalaya vs. Dr. Rajkishore Tripathi (1997) 6 SCC 117, wherein it was observed that by simply claiming some kind of fraud bereft of any particulars would not be sufficient to satisfy the requirements of Order VI Rule 4 of CPC, 1908.

21. In A.C. Ananthaswamy & Ors. vs. Boraiah (dead) by LRs Civil Appeal NO. 3768/2000 decided by the Hon’ble Supreme Court on 20th August, 2004, it was observed that to prove the fraud, it must be proved that the representation made was false to the knowledge of the party making such representations or that the party could have no reasonable belief that it was true. The degree of proof required is extremely high. Having spelled out that there has to be a specific pleading in respect of fraud and misrepresentation, the facts as pleaded in the Plaint need to be considered if the plaintiff has been able to spell out any fraud on the part of the defendant.

22. In the light of the aforesaid principles, the facts of this case may be analyzed. It is not disputed that the suit property was owned by the father and a Sale Deed dated 10th February, 2010 exists in the name of defendant No. 2, the brother of the plaintiff.

23. It is the case of the plaintiff that on 29.09. 2021, she gave a Legal Notice to defendant no.2 claiming her share in the suit property. Instead of giving her share, the defendant no.2 threatened to sell the property. She then made an enquiry at the office of sub-Registrar and came to know that a set of documents, namely, Agreement to Sell, etc. dated 23rd November, 1999 were executed by the father in the name of defendant No.1, Phupha/uncle of the plaintiff and defendant No. 2. On the basis of these documents, the defendant No. 1 had executed a Sale Deed in favour of the defendant No. 2 on 10th February, 2010. The defendant No. 2, therefore, has a duly registered Sale Deed in his favour since 2010. She got a copy of the Sale Deed from her relative on 04.10.2021.

24. The plaintiff is the sister of defendant no.2 and had been residing in the suit property till she got married on 22.08. 2018. The documents under challenge are of 1999 and 2010 respectively on the ground of there being a fraud. The relevant paragraphs of the plaint are as under: “14.That Plaintiff got married on 22/09/2018 and thereafter gave a number of reminders to the Defendant no.2 to make the payment as per the settlement dated 24.08.2014 but defendant didn't pay any heed to the multiple requests of the plaintiff.

15. That Plaintiff issued legal notice to the Defendant No. 2 dated 29 September 2021 to demand her rights in the assets and said property, The Defendant No. 2 did not paid any heed to the demands of the plaintiff and threatened the plaintiff, that he is a process of selling the said property, Plaintiff after receiving such threats enquired the sub-registrar office regarding the status.The plaintiff came to know that the defendant No. 1 along with Dependent No. 2 has executed the sale deed on the basis of forged document GPA and agreement to sell(between father and defendant no.1) which were never registered between the dependent and the father of the plaintiff.”

25. The plaintiff though has claimed that there has been a fraud in execution of the Sale Deed in favour of the defendant No. 2, but has not been able to explain the nature of fraud. It is simply asserted by her that she got the copy of the Sale Deed through a relative and thus, came to know about the Sale Deed in favour of the defendant No. 2. The plaintiff fails to disclose the name of the relative or the circumstances in which this fact was disclosed to her. Merely claiming that the Sale Deed has been executed in favour of the defendant No. 2 fraudulently, is as vague a plea as it can be. There has to be some material particulars disclosed in the plaint which may constitute fraud. Aside from a bald assertion that a fraud has been committed, the plaintiff has not explained the nature of fraud nor has she pleaded any facts from where any fraud can even be spelled out.

26. The plaintiff has not been able to disclose the nature of fraud or explain the basis on which the fraud is claimed to have been committed. There is a valid Sale Deed dated 10th February, 2010 in the name of defendant No. 2 which makes him the absolute owner of the property. The Declaration sought in respect of the Agreement to Sell, etc. dated 23rd November, 1999 in favour of defendant No. 1 and Sale Deed dated 10th February, 2010 executed in favour of defendant No. 2 as null and void, is without any basis and without there being any facts being disclosed and is, therefore, without any cause of action.

27. The Sale Deed establish that it is the Defendant No.2 is the absolute owner of the suit property, the plaintiff has no right/ title in the suit property to claim partition. There is no cause of action to seek partition and the suit for partition is clearly not maintainable.

28. For the same reason, the decree of Permanent Injunction sought for restraining the defendants from selling or creating third-party rights in the suit property is not tenable for the simple reason that the defendant No. 2 is the owner of the suit property by virtue of a registered Sale Deed and there can be no restraint order against a registered owner.

29. The plaintiff has further asserted that the plaintiff and the defendant No. 2 had mutually agreed in a Family Settlement on 24th August, 2014 that the defendant No. 2 would pay a sum of Rs. 15,00,000/- to the plaintiff, if she relinquished her rights in Shimla property. It was further agreed that all the gold ornaments owned by the grandmother, Smt. Nirmal Oberoi, would belong to the plaintiff. Further, defendant No. 2 shall pay a sum of Rs. 1,00,00,000/- to the plaintiff at the time of her marriage if the defendant NO. 2 got a sum of Rs. 2,00,00,000/- from the defendant No. 1.

30. The plaintiff is absolutely silent about their agreement in regard to Shimla property. She has asserted that the defendant No. 1 may be directed to disclose whether he has paid a sum of Rs. 2,00,00,000/- to defendant NO. 2 in terms of the Family Settlement dated 24th August, 2014. From the very averments made in the Plaint in regard to this Family Settlement and also this alleged agreement of Rs. 1,00,00,000/- to be paid by defendant No. 2 on payment of Rs. 2,00,00,000/- by the defendant No. 1 to defendant No. 2 are again extremely vague. No circumstances have been disclosed as to why Defendant No.1 who is the Uncle, would pay Rs.[2] crores to the defendant No.2, the nephew. Moreover, the alleged mutual settlement between plaintiff and defendant No.2 cannot in any way create a cause of action against Defendant No.1. The relief sought in this regard is in the realm of speculation which does not disclose any cause of action.

31. The plaintiff has also claimed that she and defendant no.2 had agreed that the gold jewelry belonging to the grandmother shall be given to her at the time of marriage. Significantly, the jewellery is of the grand mother. Interestingly, despite her being alive till 13th November, 2020, it is plaintiff and defendant no.2 who mutually decided as to how the jewellery would be divided. Again, except a bald assertion, no other details of jewellery which may or may not have been left by the grandmother is forthcoming. The claim for jewellery is completely bereft of any particulars and does not disclose any cause of action.

32. The plaintiff has not been able to disclose any cause of action in her Plaint for any of the reliefs claimed by way of present Suit.

33. Accordingly, the present Application under Order VII Rule 11 (a), (c) and (d) read with Section 151 of the CPC, 1908 is allowed, and the Suit is hereby rejected along with pending application(s), if any, in the above terms.

JUDGE DECEMBER 08, 2022 S.Sharma

Karishma Oberoi v. Ajay Kumar & Abhishek Oberoi

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