Murari Mirchandani v. Jatinder Sardna & Ors.

(ix) On 14th April, 2014 a local property broker informed the plaintiff that the defendant no.1 is trying to enter into fresh negotiations in respect of the suit property.

(x) It was the apprehension of the plaintiff that the defendant no.1 in collusion with the defendant no.5 might enter into some understanding and usurp the suit property.

5. Accordingly, the present suit was filed on behalf of the plaintiff seeking the following reliefs: “a) pass a decree of declaration in favour of the plaintiff and against the defendants thereby declaring GPA and Agreement to Sell dated 24.02.1986 in favour of Defendant No.5 as well as the Conveyance Deed dated 12.08.2013 executed by DDA in favour of Defendant No.5 with respect to the property bearing house bearing No.S-94, Panchsheel Park, New Delhi as null, void and not binding on the Plaintiff.

BANSAL b) pass a decree of specific performance in favour of the Plaintiff and against the Defendants thereby directing the Defendants to specifically perform the MOU dated 18.01.2012 and Agreement to Sell dated 11.04.2012 jointly and hand over the possession of the suit property and execute and get the Sale Deed registered in respect of the suit property being the property bearing house bearing No.S-94, Panchsheel Park, New Delhi, built up on a land measuring 499 sq. yds.

OR IN THE ALTERNATIVE pass a decree of recovery of damages in favour of the plaintiff and against the defendants jointly and severally, for a sum of Rs.19,00,00,000/- (Rupees nineteen crores only) alongwith interest at the rate of 18% p.a. from the date of filing of suit till realization. c) pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants thereby restraining the Defendants from selling, transferring, handing over possession, alienating or creating third party interest in the property bearing house bearing No.S-94, Panchsheel Park, New Delhi, built up on a land measuring 499 sq. yds. d) award costs of the suit to the Plaintiff. e) pass any other or further order which this Hon'ble Court may deem fit and proper in the facts and circumstance of the case in favour of the Plaintiff and against the Defendants.”

SUBMISSIONS OF THE DEFENDANT NO.5

6. Counsel appearing on behalf of the defendant no.5 has made the following submissions in support of the present application:

(i) The present suit has no cause of action against the defendant no.5 as the defendant no.5 was never a party to the agreement to sell dated BANSAL 11th April, 2012 and there is no privity of contract between the plaintiff and the defendant no.5. Hence, the plaint may be rejected against the defendant no.5.

(ii) The present suit is not maintainable as the defendants no.1 to 4 neither have any title nor have any right or interest in the suit property and therefore, the agreement to sell dated 11th April, 2012 entered into by the defendants no.1 to 3 and the plaintiff is illegal and specific performance thereof cannot be granted. Since, specific performance of agreement to sell dated 11th April, 2012 cannot be granted, the damages in lieu thereof can also not be granted.

(iii) The plaintiff, being a stranger to the transaction between Late Shri

S.K. Sardana and the defendant no.5, has no right to challenge the title documents of the defendant no.5 under Section 34 of the Specific Relief Act, 1963,

(iv) The present suit has been filed on behalf of the plaintiff in April,

2014 for declaration of the GPA and agreement to sell dated 24th February, 1986 in favour of the defendant no.5 in respect of the suit property as null and void and hence, the present suit is barred by limitation.

(v) The defendant no.5 is in the power and possession of the original document of the suit property and has been in continuous possession of the suit property since 24th February, 1986. The suit property has been mutated in the name of defendant no.5 by a registered conveyance deed dated 12th August, 2013 executed by DDA after conducting a vigilance enquiry. This would relate back to 24th February, 1986, being the date of the agreement to sell.

BANSAL

(vi) The writ petition filed by the defendant no.1 for cancellation of the mutation of property in favour of the defendant no.5 was dismissed and the appeal filed thereagainst has also been dismissed by a Division Bench of this Court. The suit filed by the defendants no.1 and 2 before the Saket Court seeking declaration against the defendant no.5 stands abated qua the defendant no.1 herein and has been dismissed in default on account of non-prosecution by the defendant no.2 herein. Reliance is placed on provisions of Order XXII Rule 9 of the CPC to contend that when a suit abates, no fresh suit can be filed on the same cause action. Even under Order IX Rule 9 of the CPC, when a suit is dismissed for non-prosecution, the plaintiff is precluded from filing a fresh suit in respect of the same cause of action. Furthermore, the defendants no.3 and 4 never challenged the title documents of the defendant no.5 despite being a party to the suit for partition filed by Smt. Sangeeta Bhambani in respect of the suit property.

(vii) The plaintiff cannot claim any relief under Section 19 (b) of the

Specific Relief Act, 1963 against the defendants, as the agreement to sell dated 11th April, 2012 in favour of the plaintiff is a document subsequent to the agreement to sell dated 24th February, 1986 executed in favour of the defendant no.5.

(viii) Reliance has been placed on the following judgments:

a) Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, b) T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467.

BANSAL c) Shakti Sugars Limited v. Union of India, 1980 SCC OnLine Del 289. d) Rajya Tulsibhai Patel v. Benar Enterprise, 1987 SCC OnLine Guj 49. e) Maya Devi v. Lalta Prasad, (2015) 5 SCC 588.

SUBMISSIONS OF THE PLAINTIFF

7. Senior counsel appearing on behalf of the plaintiff has made the following submissions:

(i) The title documents on the basis of which the defendant no.5 is claiming ownership of the suit property are forged and fabricated. The contention of the defendant no.5 that the possession of the suit property was handed over to him on 24th February, 1986 is false as late Shri S.K. Sardana was in possession of the suit property till his death on 5th April, 2011.

(ii) Till his death, late Shri S.K. Sardana dealt with the suit property as its absolute owner. Reliance has been placed on the various documents filed by the plaintiff along with rejoinder to the application filed by the plaintiff under Order XXXIX Rules 1 & 2 of the CPC to show that late Shri S.K. Sardana was looking after and managing the suit property as his own till his death. These documents completely demolish the case of the defendant no.5 that the suit property was sold to him in 1986.

(iii) Even the defendants no.1 to 2 protected their interest in the suit property against the defendant no.5 after the death of Shri S.K. Sardana till 2014, when the suit was filed before the Saket Court.

BANSAL

(iv) Defendant no.5 only emerged after the death of Shri S.K. Sardana.

(v) Collusion between the defendant no.5 on one hand and the defendants no.1 to 4 on the other hand is evident from the fact that despite no summons being issued to the defendant no.5, he appeared on his own and filed the present application under Order VII Rule 11 of the CPC. Further, the same counsel appeared for the defendants no.1 and 2 in Saket Court and on his statement that he is unable to contact the defendants, the said suit was abated qua the defendant no.1 herein and dismissed for non-prosecution qua the defendant no.2 herein, whereas in the present suit, the same counsel continued to appear for the said defendants and did not give any such statement.

(vi) The plaintiff is entitled to claim specific performance of the agreement to sell against the defendant no.5, under Clause (b) of Section 19 of the Specific Relief Act. The conveyance deed executed in favour of the defendant no.5 was subsequent to the agreement to sell in favour of the plaintiff.

(vii) No documents have been placed on record by the defendant no.5 to show that any consideration was paid by the defendant no.5 to late Shri S.K. Sardana in terms of the alleged agreement to sell dated 24th February, 1986. The agreement only records that an amount of Rs.16,00,000/- was paid in cash. No other document has been placed on record by the defendant no.5 before the death of Shri S.K. Sardana. The first document placed on record is a receipt of BANSAL payment of Rs.18,31,050/- by defendant no.5 to DDA on 21st June,

2013.

(viii) Reliance is placed on the first order dated 21st April, 2014 passed in the present suit when while issuing summons, this Court expressed a view that the present suit was maintainable against the defendants no.1 to 4.

(ix) It is a settled principle of law that a suit cannot be rejected under

Order VII Rule 11 of the CPC in a piecemeal manner. The suit, if it is to be rejected, has to be rejected against all the defendants.

(x) Further, rejection of a plaint under Order VII Rule 11 of the CPC would have to be determined on the date when the plaint was filed and not on the basis of subsequent developments. When the present suit was filed, the suit filed by the defendants no.1 and 2 before the Saket Courts was pending. Therefore, subsequent dismissal/abatement of the said suit cannot be a ground for rejection of the plaint in the present suit.

(xi) Reliance has been placed on the following judgments:

a) Romi Garg v. BDR Builders & Developers Pvt. Ltd., 2018 SCC OnLine Del 7867. b) Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, c) Ram Prakash Gupta v. Rajiv Kumar Gupta, 2006 SCC OnLine Del 488.

8. I have heard the counsels for the parties.

BANSAL

9. The case of the defendant no.5 is based on the agreement to sell, General Power of Attorney and a Will, all dated 24th February, 1986 executed by late Shri S.K. Sardanain favour of the defendant no.5. As per the agreement to sell, the entire consideration of Rs.16,00,000/- was paid by the defendant no.5 to Shri S.K. Sardana in cash and a receipt of Rs.16,00,000/- towards the said amount has been filed on record.

10. The next document relied upon by the defendant no.5 is of 8th August, 2013, when a sum of Rs.18,31,050/- was called upon the defendant no.5 by the DDA as conversion charges. Pursuant thereto, a Bankers Cheque dated 21st June, 2013 of Rs.18,31,050/- was deposited by the defendant no.5 with DDA on 28th June, 2016 for the conversion of the suit property. It is pertinent to note that the aforesaid document was after Shri S.K. Sardana had expired on 5th April, 2011. No other document dating prior to the death of Shri S.K. Sardana has been placed on record.

11. On the other hand, the plaintiff along with the rejoinder to reply of the defendant no.5 to I.A. No.19522/2014 filed by the plaintiff under Order XXXIX Rules 1 & 2 of the CPC has placed on record various documents after the execution of the said agreement to sell dated 24th February, 1986, which are, inter alia, as under: i. Letter dated 27th January, 1988 for appointment of Architects for construction of a house at the suit property. ii. Letter dated 2nd January, 1989 to MCD for revalidation of building plans of the suit property. iii. Correspondence with MCD with regard to property tax. iv. Bank drafts towards conversion of suit property into freehold.

BANSAL

12. All the aforesaid documents clearly point out that late Shri S.K. Sardana was dealing with the suit property as his own till the time of his death. If the suit property had indeed been sold to the defendant no.5, then surely, late Shri S.K. Sardana would not have appointed an architect for construction of the suit property or had applied to MCD for sanction of building plans. It also fails to stand to reason as to why Shri S.K. Sardana would seek the conversion of the suit property from leasehold to freehold and pay a sum of Rs.5,49,446/- in respect thereof. It is only after the death of late Shri S.K. Sardana that the defendant no.5 became active and paid a sum of Rs.18,31,050/- towards conversion charges to DDA and got the conveyance deed executed in his favour on 12th August, 2013.

13. In terms of the agreement to sell dated 24th February, 1986, the entire consideration had been received by late Shri S.K. Sardana from the defendant no.5. It defies logic that even after paying the entire sale consideration under the agreement to sell no steps for conversion were taken during the lifetime of late Shri S.K. Sardana. Nothing has been placed on record to show that the defendant no.5 was in possession of the suit property.

14. All the aforesaid documents create a serious doubt in the mind of the Court with regard to the authenticity of the agreement to sell, GPA and other documents stated to be executed by late Shri S.K. Sardana in favour of the defendant no.5 on 24th February, 1986.

15. Immediately upon the death of Shri S.K. Sardana, an FIR was filed by the defendant no.1 on 23rd July, 2011 alleging that the original documents in respect of the suit property had been lost. Further, on 2nd August, 2011, the defendant no.1 made an application to DDA for BANSAL mutation of the suit property in favour of the legal representatives of late Shri S.K. Sardana. A complaint was filed on behalf of the defendant no.1 with Police Station-Malviya Nagar on 19th November, 2013, wherein it has been categorically stated that his brother, late Shri S.K. Sardana had not sold or executed any agreement in respect of the suit property in favour of any person and that the original documents in respect of the suit property were stolen by Mr. Chander Bahadur, who was the servant of late Shri S.K. Sardana. Further, a civil suit was filed on behalf of the defendants no.1 and 2 before the District Court, Saket challenging the GPA and agreement to sell dated 24th February, 1986 in favour of the defendant no.5 herein. At that point of time, the defendants no.1 and 2 were not aware of the conveyance deed in favour of the defendant no.5 and therefore, the challenge was restricted to the Agreement to Sell and the GPA dated 24th February, 1986. Therefore, it appears that from the death of Shri S.K. Sardana on 5th April, 2011 till filing of the suit in Saket Court in January, 2014, the defendants no.1 and 2 were taking all steps to safeguard the suit property. However, it appears that the situation changed thereafter.

16. The order dated 6th September, 2018 in the suit filed before the Saket Court records the submission of the counsel for the plaintiffs (defendant no.1 and 2 herein) that he has repeatedly been trying to contact the wife of the plaintiff no.1 (defendant no.1 herein) and plaintiff no.2 (defendant no.2 herein) through e-mails but did not get any response from them. On the basis of the said statement and taking into account that no application for substitution of legal representatives of the plaintiff no.1 BANSAL (defendant no.1 herein) was made and the suit was abated qua plaintiff no.1 (defendant no.1 herein).

17. On 1st December, 2018, submission of the counsel for the plaintiff was noted that he has written various e-mails to the plaintiff no.2 (defendant no.2 herein) but no response thereto was received and plaintiff no.2 had telephonically informed him that she does not want to pursue this case. In view thereof, the suit was dismissed for non-prosecution on the said date.

18. In the present suit, the same counsel had been representing the defendants no.1 and 2. A perusal of contemporaneous orders dated 5th September, 2018, 22nd November, 2018, 6th February, 2019 and 19th February, 2019 in the present suit show that no such submission was made on behalf of the counsel.

19. Once again, this creates doubts in the mind of the Court that the defendants no.1 and 2 were acting in collusion with the defendant no.5 and accordingly, the suit in Saket Court was gotten dismissed in a collusive manner.

20. Senior counsel appearing on behalf of the plaintiff has drawn attention to the first order passed in the present suit on 21st April, 2014, where similar submissions, as are now being raised on behalf of the parties, were also raised. The relevant observations of the Court are set out below: “11. In the aforesaid state of affairs, it has been enquired from the senior counsel for the plaintiff as to what is the right of the plaintiff to claim the specific performance against the defendant no.5 and to challenge the Agreement to Sell in favour of defendant no.5 of a date prior to the Agreement to Sell in favour BANSAL of the plaintiff; Section 19(b) of the Specific Relief Act, 1963 permits the relief of specific performance to be claimed, besides against the parties to the agreement, only against a person claiming title subsequent to the contract with the plaintiff.

12. The senior counsel for the plaintiff has contended that since the conveyance deed is of a date after the Agreement to Sell with the plaintiff, the plaintiff is entitled to claim the said relief.

13. The question which arises for consideration is whether the words "title" arising subsequently to the "contract" used in Section 19(b) would cover an Agreement to Sell coupled with delivery of possession as claimed by the defendant no.5.

14. The senior counsel to address on the said aspect.

15. It has further been enquired as to what is the locus of the plaintiff to seek the relief of cancellation of conveyance deed in favour of the defendant no.5 and whether not the claim of the plaintiff for specific performance is subservient to the decision in the suit also filed by the defendants no.1 to 4 against the defendant no.5.

16. The senior counsel for the plaintiff has drawn attention to para no.14 of the plaint where the apprehension, of the defendants colluding with each other has been expressed.

17. Enquiry has also been made about the valuation of the suit for the purpose of relief of cancellation of conveyance deed.

18. List for hearing on the said aspect also.

19. Since all the aforesaid aspects concern the defendant no.5 and the relief claimed against the defendant no.5, in the meanwhile, issue summons of the suit and notice of the application to the defendants no.1 to 4 by all modes including dasti, returnable on 30th April, 2014.

BANSAL

20. Till then the defendants no.1 to 4 are restrained from alienating, encumbering, dealing in any manner whatsoever and parting with possession of property no.S-94, Panchsheel Park, New Delhi or any part thereof.”

21. In view of the aforesaid, a prima facie view was expressed by the Court that the suit was maintainable against the defendants no.1 to 4 and summons were issued to the said defendants and they were restrained form creating third party rights in the suit property.

22. Despite no summons being issued to the defendant no.5, defendant no.5 appeared on his own and accepted summons in the suit on 22nd August, 2014. Thereafter, the defendant no.5 filed the present application along with an application under Order XXXIX Rule 1 and 2 of the CPC.

23. It has to be borne in mind that the present suit was filed on 16th April, 2014 when the Saket suit was still pending. It has specifically been pleaded by the plaintiff in paragraph 14 of the plaint that the plaintiff apprehended that defendant no.1 is colluding with defendant no.5 and therefore, he may settle the suit in Saket Court in a manner that would be adverse to the interest of the plaintiff. Hence, the present suit was filed in which prayer (a) sought a declaration against the agreement to sell/GPA dated 24th February, 1986 in favour of the defendant no.5, which was also the subject matter of the suit in the Saket Court. Therefore, I do not find merit in the submission of the defendant no.5 that prayer (a) in the suit was not maintainable under Section 34 of the Specific Relief Act.

24. Prayer (b) in the present suit was for seeking specific performance of the MOU dated 18th January, 2012 and the agreement to sell dated 11th BANSAL April, 2012, which were documents executed prior to the conveyance deed dated 12th August, 2013 in favour of the defendant no.5.

25. At this stage, it may be relevant to refer to Section 19(b) of the Specific Relief Act, 1963, which is extracted below: “19.Relief against parties and persons claiming under them by subsequent title.—Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against— (a)… (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; …”

26. A reading of the aforesaid provision would show that a suit for specific performance can be filed against a person who acquired the title after the execution of agreement to sell in favour of the plaintiff. Therefore, in the present case, a suit for specific performance is maintainable against the defendant no.5, if the title document in favour of the defendant no.5 was subsequent to the agreement to sell in favour of the plaintiff. The agreement to sell in favour of the plaintiff was executed on 11th April, 2012, whereas, the conveyance deed in favour of the defendant no.5 was executed on 12th August, 2013. However, the defendant no.5 claims that the conveyance deed would date back to 24th February, 1986, when the agreement to sell was executed in favour of the defendant no.5 by the original owner.

27. I have already expressed serious doubts about the authenticity and validity of the agreement to sell/GPA dated 24th February, 1986 allegedly BANSAL executed in favour of the defendant no.5. Therefore, I am not satisfied that there was a valid title document in favour of the defendant no.5 prior to the execution of the agreement to sell in favour of the plaintiff. The Supreme Court has held in Suraj Lamps (supra) that Agreement to Sell/GPA/Will does not convey any title nor creates any interest in an immovable property. Accordingly, at this stage, I am of the view that relief of specific performance can be enforced by the plaintiff against the defendant no.5.

28. Even otherwise, it cannot be stated that the relief of specific performance is not maintainable against the defendants no.1 to 4 as it were the said defendants, who had executed the MOU/agreement to sell in favour of the plaintiff.

29. Counsel appearing on behalf of the defendant no.1 has placed reliance on the judgement of the Supreme Court in Church of Christ Charitable Trust (supra) in support of the submission that rejection of a plaint can be done against one of the defendants against whom there is no cause of action. The aforesaid judgment is not applicable to the present case as reading of the plaint would show that the plaintiff has pleaded a cause of action against the defendant no.5 on the basis of collusion between the defendant no.1 and the defendant no.5, which can only be tested in a trial.

30. Senior counsel appearing on behalf of the plaintiff has correctly placed reliance on the judgment of the Supreme Court in Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 in support of his submission that under Order VII Rule 11 of the CPC the plaint cannot be rejected in a piecemeal manner and has to be rejected as a whole. In Sejal BANSAL Glass (supra), the Supreme Court observed that if the plaint survives against certain defendants and/or properties, Order VII Rule 11 of the CPC will have no application and the suit must then proceed to trial.

31. I am also in agreement with the submission of the senior counsel for the plaintiff that for the purpose of deciding an application under Order VII Rule 11 of the CPC, cause of action has to be taken on the date of filing of the plaint and not on the basis of subsequent events. Therefore, the subsequent events of abatement/dismissal of the suit in Saket Court cannot be considered for the purposes of rejection of the plaint in the present suit under Order VII Rule 11 of the CPC.

32. In view of the discussion above, no grounds have been made out for rejection of the plaint under the provisions of Order VII Rule 11 of the CPC. There is no merit in the application and the same is dismissed with costs of Rs.1,00,000/-.

33. Needless to state any observations made herein are only for the purposes of deciding the present application and would have no bearing on the final adjudication of the suit. CS(OS) 1081/2014&I.A. 7032/2014 (O-XXXIX R-1 & 2 of CPC),I.A. 19522/2014 (O-XXXIX R-1 & 2 of CPC)

34. List before the Joint Registrar on 7th December, 2022 for further proceedings. AMIT BANSAL, J. November18, 2022 BANSAL