Vidur Impex and Traders Pvt. Ltd. v. Tosh Apartments Private Limited

1. The appellant nos. 1 to 6/original defendant nos. 3 to 81 before the learned Single Judge are impugning the judgment dated 18.08.2022, whereby, vide a decree of declaration, the six sale deeds dated 30.05.1997 executed by one Mr. Pradeep Kumar Khanna[2] in their favour have been declared null and void and the respondent no.1/original plaintiff before the Learned Single Judge has been held to be entitled to cost of Rs. 2,00,000/-.

2. Before adverting to the merits of the matter, we are reminded of the „Phoenix‟, an ancient mythological bird symbolizing resurrection, which with amongst other qualities, is known to rise from the ashes over and over Hereinafter collectively referred to as “appellants” Hereinafter referred to as “Original Owner” again. The appellants, vide this appeal, while trying to play the role of the said „Phoenix‟, are alas forgetting that even the „Phoenix‟ though can rise from the ashes but cannot flog a dead horse. In essence, though the appellants, vide the present appeal, have challenged the impugned decree with all vigour and renewed energy after suffering at the hands of the Learned Single Judge, however, the said effort of the appellants is miscued as, unfortunately, they are merely referring to issues/aspects which have already been agitated before and have been decided and foreclosed by the Hon‟ble Supreme Court of India and which have been in turn recognised, admitted and followed by this Court at different levels from time to time. In effect, the appellants are draining all their energy over a lost cause which has been stamped and cannot be undone by this Court at this level.

3. Today, though the present appeal is listed before this Court for the first time, however, since the facts and issues involved in the present appeal already stand settled, we have taken up the same for hearing to proceed with this appeal. For this, we have had the pleasure of hearing the learned counsel for the appellants at length and also the learned counsel(s) for the respondents, who appear on caveat.

4. Succinctly put, the respondent no.1 instituted a suit for declaration, being CS(OS) 864/2014 seeking declaration of six sale deeds dated 30.05.1997 executed by the original owner, who was the predecessor-ininterest of respondent nos. 4 to 6 herein in favour of the appellants with respect to property bearing no. 21 Aurangzeb Road, New Delhi-1100013, as null and void as also their cancellation from the records of the concerned Hereinafter referred to as “property” Sub-Registrar, New Delhi. During its pendency before the learned Single Judge, the appellants filed an application under Order VII rule 11 of The Civil Procedure Code, 1908[4] specifically raising two grounds, firstly alleging that the suit of the respondent no.1 was time barred and secondly there was no disclosure of a cause of action in the plaint. Thereafter, after framing the sole issue, i.e. “Whether late Sh. Pradeep Kumar Khanna (now represented through defendant nos. 9 to 11) executed a valid sale deed dated 30th May, 1997 in favour of defendant no. 3 to 8 respectively? OPP” and as the parties did not wish to lead evidence, the learned Single Judge proceeded to pronounce the impugned judgment under challenge before us.

5. The cryptic factual matrix of this case prior to the institution of CS(OS) 864/2014 reveals that the original owner, after entering into an Agreement to Sell dated 13.09.1988 with the respondent no.1 herein, failed to execute the Sale Deed in its favour. This prompted the respondent no.1 herein to institute a suit for specific performance, damages and injunction, being CS(OS) 425/1993, against the original owner, wherein the Learned Single Judge vide order dated 18.02.1993, which was confirmed on 31.01.2000, restrained the original owner from creating any third party rights in respect of the property. De-hors the said orders, the original owner first executed six Agreements to Sell dated 19.02.1997 and then further executed six registered Sale Deeds dated 30.05.1997 in respect of the same property in favour of the appellants.

6. Thereafter, the original owner left for his heavenly abode on 12.01.2002 leaving behind respondent nos. 4 to 6 herein as his surviving Hereinafter referred to as “the Code” legal heirs. It was then in 2008 that the appellants herein filed an application under Order I rule 10 of the Code in CS(OS) 425/1993 seeking their impleadment as defendants therein. The said application was first dismissed by the learned Single Judge vide order dated 26.05.2008, which was affirmed by a Division Bench of this Court vide order dated 20.02.2009, which was again affirmed by the Hon‟ble Supreme Court of India vide order dated 21.08.2012 and lastly, the review thereagainst was dismissed by the Hon‟ble Supreme Court of India vide order dated 13.12.2012.

7. After the aforesaid dismissal, the respondent no.1 herein, vide a legal notice dated 12.11.2013, called upon the respondent nos. 2 and 3 to cancel the registrations of all the six sale deeds in the names of appellants herein and restore the name of the original owner. Finally, CS(OS) 425/1993 was disposed of vide a consent decree dated 01.09.2015 wherein the respondent nos. 4 to 6 herein agreed to transfer the property in favour of the respondent no.1 herein and also handed over the possession thereof to it. However, as the respondent nos. 2 and 3 failed to cancel the six registered sale deeds in favour of the appellants, the respondent no.1 instituted CS(OS)864/2014 giving rise to the impugned judgement challenged by way of the present appeal before us.

8. It may be noted for the sake of clarity that, in the meanwhile, the original owner instituted a suit for declaration, being CS(OS) 161/1999, against the appellants herein for declaring the six sale deeds as null and void. Similarly, the appellants also instituted a suit for declaration, possession, and injunction, being CS(OS) 3195/2012, against the respondent nos. 4 to 6 herein. Since they have no material bearing to the facts before us, we are refraining from commenting anything qua the said suit.

9. Everything turns upon the order of dismissal dated 21.08.2012, reported as Vidur Impex & Traders Pvt. Ltd. & Ors. v. Tosh Apartments Pvt. Ltd. & Ors. 5, relevant extracts whereof are reproduced as under:- “42. In the light of the above, we shall now consider whether the learned Single Judge and the Division Bench of the High Court committed an error by dismissing the appellants' application for impleadment as parties to Suit No. 425 of 1993. At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dated 13-9-1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating third-party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants did not have any legal sanctity. The status of the agreement for sale executed by the appellants in favour of Bhagwati Developers was no different. These transactions did not confer any right upon the appellants or Bhagwati Developers. Therefore, their presence is not at all necessary for adjudication of the question whether Respondents 1 and 2 had entered into a binding agreement and whether Respondent 1 is entitled to a decree of specific performance of the said agreement. That apart, after executing the agreement for sale dated 18-3-1997 in favour of Bhagwati Developers, the appellants cannot claim to have any subsisting legal or commercial interest in the suit property and they cannot take benefit of the order passed by the Calcutta High Court for appointment of an arbitrator which was followed by an order for appointment of Receiver because the parties to the proceedings instituted before that Court deliberately suppressed the facts relating to Suit No. 425 of 1993 pending before the Delhi High Court and the orders of injunction passed in that suit.

43. We are in complete agreement with the Delhi High Court that the application for impleadment filed by the appellants was highly belated. Although, the appellants have pleaded that at the time of execution of the agreements for sale by Respondent 2 in their favour in February 1997, they did not know about the suit filed by Respondent 1, it is difficult, if not impossible, to accept their statement because the smallness of time-gap between the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants and the execution of agreement for sale by the appellants in favour of Bhagwati Developers would make any person of ordinary prudence to believe that Respondent 2, the appellants and Bhagwati Developers had entered into these transactions with the sole object of frustrating the agreement for sale dated 13-9-1988 executed in favour of Respondent 1 and the suit pending before the Delhi High Court. In any case, the appellants will be deemed to have become aware of the same on receipt of summons in Suit No. 161 of 1999 filed by Respondent 2 for annulment of the agreements for sale and the sale deeds in which Respondent 2 had clearly made a mention of Suit NO. 425 of 1993 filed by Respondent 1 for specific performance of the agreement for sale dated 13-12-1988 and injunction or at least when the learned Single Judge of the Delhi High Court entertained IA NO. 625 of 2001 filed by Respondent 1 and restrained Respondents 2 and 4 from transferring possession of the suit property to the appellants. However, in the application for impleadment filed by them, the appellants did not offer any tangible explanation as to why the application for impleadment was filed only on 4-2-2008 i.e. after 7 years of the passing of injunction order dated 22-1-2001 and, in our considered view, this constituted a valid ground for declining their prayer for impleadment as parties to Suit No. 425 of 1993.

44. The ratio of the judgment in Kasturi v. Iyyamperumal [Kasturi v. Iyyamperumal, (2005) 6 SCC 733] on which heavy reliance has been placed by the learned Senior Counsel for the appellants, does not help his clients. In the present case, the agreements for sale and the sale deeds were executed by Respondent 2 in favour of the appellants in a clandestine manner and in violation of the injunction granted by the High Court. Therefore, it cannot be said that any valid title or interest has been acquired by the appellants in the suit property and the ratio of the judgment in Surjit Singh v. Harbans Singh [Surjit Singh v. Harbans Singh, (1995) 6 SCC 50] would squarely apply to the appellants' case because they are claiming right on the basis of transactions made in defiance of the restraint order passed by the High Court. The suppression of material facts by Bhagwati Developers and the appellants from the Calcutta High Court, which was persuaded to pass orders in their favour, takes the appellants out of the category of bona fide purchaser. Therefore, their presence is neither required to decide the controversy involved in the suit filed by Respondent 1 nor required to pass an effective decree.

10. We may note that the above extracts have also been reproduced by the Learned Single Judge in the impugned judgment and it is only after taking the same into consideration, vide the impugned judgement, the suit of the respondent no.1 has been allowed and appropriate decree in that regard has been passed in its favour and against the defendants concerned therein. It is clear from careful perusal of the above that as the rights of the appellants qua the property since long have already been foreclosed, they are barred from agitating anything anew and/or contrary to the above settled position qua the property and their rights in it.

11. If what the appellants are trying to advert to has already been adjudicated and finalised by the Hon‟ble Supreme Court of India and which has been repeatedly approved vide various orders passed in different proceedings before the Learned Single Judge and before the Division Bench of this Court at numerous stages prior to the passing of the impugned judgement, there is no occasion or reason for this Court to once again sit in appeal over the same as it is impermissible under law. There is in fact nothing surviving in the present suit and the same has been rightly decreed by the Learned Single Judge vide the impugned judgment. The defences and issues raised by the appellants before the Learned Single Judge have already been settled after final adjudication thereon long back. The appellants are estopped from raising issues which are already settled and finalised before different Court(s), more so, whence the same have been settled and stamped by the Hon‟ble Supreme Court of India, to which the appellants cannot have any legitimate grievance left.

12. It is more than clear that the present appeal is based on similar facts, qua which a definite finding has already been arrived at by the Hon‟ble Supreme Court of India and which has been repeatedly approved vide various orders passed in different proceedings before the Learned Single Judge and the Division Bench of this Court at numerous stages prior to the passing of the impugned judgement, based whereon the Learned Single Judge has also, once again, vide the detailed impugned judgment, settled the issue. Before this Court also, the learned counsel for the appellants has merely tried to reagitate the same contentions without disputing the settled position of facts and of law. Having no answer to the order dated 21.08.2012 passed by the Hon‟ble Supreme Court of India, approved later, the present appeal, being barred by the principles of res-judicata enshrined under Section 11 of the Code, is neither maintainable in facts nor on law and thus deserves outright dismissal as it cannot be allowed.

13. Accordingly, the judgment dated 18.08.2022 is upheld and the present appeal, along with the pending application(s), if any, is dismissed in limine with no order as to costs.