Full Text
HIGH COURT OF DELHI
Date of Decision: 3rd February, 2022
NARESH KHER ..... Appellant
Through: Mr. Anunaya Mehta & Mr. Vinayak Thakur, Advocates.
Through: Mr. Rajat Aneja and Ms. Sagrika Wadhwa, Advocates for R-1.
Mr. Ujjwal Jha & Mr. Rohan Gupta, Advocates for Mr. Mahesh Verma.
JUDGMENT
1. This hearing has been done through video conferencing.
2. The present execution first appeal challenges the impugned order dated 18th December, 2018 passed by the Executing Court in Ex. No.2298/2016 titled S. Jagjit Singh v. Narbada Devi, by which objections filed by the Appellant herein/Mr. Naresh Kher (hereinafter “Mr. Naresh Kher”) have been rejected.
3. This appeal relates to property bearing Flat No.169, (Duplex) Category-III, Munirka Vihar, JNU, New Delhi (hereinafter “suit property”). Today, part submissions have been made by ld. counsels for the parties. These submissions and the record in this case, has brought out the following facts before this Court: 2022:DHC:456 i) The suit property is claimed to have been allotted by the DDA in favour of one Mrs. Narmada Devi/Respondent No.2 (hereinafter “Mrs. Narmada Devi”) who along with her son, Mr. Deepak Varshney, have entered into multiple agreements to sell/ sale deeds in respect of the same suit property. The said owner has collected huge sums of money from the following persons with whom agreements were entered into: a) Agreement to sell dated 26th June, 2009 and sale deed dated 10th May, 2016, is claimed to have been executed in favour of Mr. Jagjit Singh/Respondent No.1 (hereinafter “Mr. Jagjit Singh”). The sale consideration as per this agreement was Rs.20 lakhs, out of which, Rs.19.[5] lakhs is stated to have be paid; b) Agreement to sell dated 16th April, 2009 and Sale Deed dated 3rd March, 2010, is stated to have been executed in favour of one Mr. Kanahiya Lal Kewal Parmani/Respondent No.3 (hereinafter “Mr. Kanahiya Lal Kewal Parmani”), wherein the sale consideration is mentioned as Rs.18.80 lakhs; c) Sale deed dated 27th November, 2009 executed in favour of Mr. Mahesh Verma and his wife, who paid a consideration of Rs. 60 lakhs; d) Agreement to sell with Mr. Naresh Kher, executed on 1st / 2nd July, 2012. The consideration as per the said agreement was Rs.1.55 crores, out of which, Rs.1,05,50,000/- is stated to have been paid to Mrs. Narmada Devi. This payment is also stated to include a loan in Allahabad Bank to the tune of Rs.65.50 lakhs cleared by Mr. Naresh Kher on behalf of Mrs. Narmada Devi, by way of RTGS. The remaining amount is stated to have been paid in the form of a cheque for Rs.[4] lakhs with Rs.36 lakhs being paid in cash. Mr. Naresh Kher was handed over the documents to the suit property by Mrs. Narmada Devi and given possession of the suit property on 4th July, 2012, by Mrs. Narmada Devi and her son. ii) There are various proceedings pending in respect of this suit property: a) CS(OS) 1608/2014 titled Naresh Kher v. Narmada Devi & Ors. filed by Mr. Naresh Kher; b) CS(OS) 3329/2014 titled Mahesh Verma & Anr. v. Naresh Kher & Ors. filed by Mr. Mahesh Verma. Both these suits are pending before the Original Side of this Court. In CS(OS) 1608/2014, vide order dated 26th May, 2014, status quo was granted qua title and possession of the suit property. c) Apart from these two suits, there are criminal complaints filed against Mrs. Narmada Devi and her son. Mrs. Narmada Devi was also arrested and is stated to have remained in custody for more than four years and was given bail thereafter.
4. Notably, in the said criminal proceedings, a charge-sheet was initially filed on 27th August, 2012 and a supplementary charge-sheet was filed on 28th May, 2014. In the supplementary charge-sheet, it is clearly recorded that the Police had also conducted enquiries with Respondent No.1- Mr. Jagjit Singh, who claimed that he had an agreement to sell and purchase dated 26th June, 2009 in respect of the suit property. However, no documents in respect thereof were disclosed to the Police. Mr. Jagjit Singh, also did not disclose that a suit had been filed by him being CS No.264/15 titled Sh. Jagjit Singh v. Smt. Narmada Devi & Anr., in which he had sought specific performance of the said agreement to sell. Thus, Mr. Jagjit Singh prima facie appears to have kept the Police as also the other parties in the dark about the proceedings which he had filed.
5. A perusal of the order dated 29th July, 2015 shows that in the suit filed by Mr. Jagjit Singh being CS No.264/15, Mrs. Narmada Devi initially filed her written statement claiming that the agreement to sell was forged and fabricated. However, she stopped appearing thereafter. Mr. Kanahiya Lal Kewal Parmani was also a party in the said suit. However, both Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani were proceeded ex parte and an ex parte decree was passed on 29th July, 2015. The execution proceedings which are being presently considered, arise out of the said decree.
6. In the execution proceedings seeking to execute the decree dated 29th July, 2015 in favour of Mr. Jagjit Singh, a bailiff was appointed and on 6th June, 2016, the bailiff visited the suit property for breaking open the locks. Mr. Naresh Kher’s son is stated to have reached the premises immediately informing the bailiff that the suit property could not be locked as Mr. Naresh Kher had a status quo order in his favour, in effect protecting his possession to the suit property. Parallelly, Mr. Naresh Kher also moved an application before the Executing Court to inform the Court of the suit filed by him and the fact that he had a status quo order dated 26th May, 2014 passed by the High Court in his favour. The said application was taken up by the Executing Court at 2:50 p.m., on 6th June, 2016, and the order dated 18th May, 2016 issuing warrants of possession and appointing the bailiff was recalled. However, by then, the lock had been already put on the suit property by the bailiff and the keys are admittedly now in the possession of Mr. Jagjit Singh. The said order dated 6th June, 2016 reads as under: ““File taken up today on an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure, 1908 moved on behalf of the objector Present Sh. Anynaya Mehta, counsel for the objector. Learned counsel for the objector has filed an application under Order XXI Rule 35 & 99 of the Code of Civil Procedure, 1908 objecting to the issuance of warrant of possession in favour of the decree holder and directions given to the bailiff vide order dated 18.05.2016 to break open the locks of property bearing No.169, Munirka Vihar, 2nd and 3rd Duplex. The present objections have been filed by the counsel for the applicant without any power of attorney (vakalatnama) since the applicant is stated to be in US as on today. Learned counsel submits that since there was an emergency as a result of the warrants of possession being executed today by the bailiff, he was constrained to file the present objection without the vakalatnama. However, he has appended his own affidavit in support of the averments made in the objection petition and also filed a memo of appearance. Learned counsel contends that he is in possession of the suit property in his independent right as purchaser from the original owner Ms. Narmada Devi. He further submits that he has already filed a suit for specific performance, which was earlier filed before the Hon'ble Delhi High Court but now stands transferred to Patiala House Courts, against Ms. Narmada Devi, who is also the judgment debtor in the present execution petition. Learned counsel has brought the attention of the court to the order dated 26.05.2014 passed by Hon'ble High Court vide which the Hon'ble High Court had directed the defendant No.1 to 5 to maintain status quo with respect to the title and possession of the property bearing Flat No.169, Second and Third Duplex, Munirka Vihar, New Delhi. Learned counsel has also drawn the attention of this court to the letter dated 23.01.2013 addressed by Sh. Praveen Tomar, Patwari, Tehsil Vasant Vihar to the SHO P.S. Vasant Vihar wherein it has been mentioned that the possession of the flat No.169, Munirka Vihar, has been handed over to Naresh Kher, who is the objector in the present execution petition. Consequently, Learned counsel prays that the directions issued to the bailiff be stayed immediately as the bailiff has already initiated the process of handing over the possession to the decree holder. In view of the above, warrants of possession which were directed to be issued vide order dated 18.05.2016 are recalled. Notice of this application be issued to the decree holder on filing of PF, returnable on the date already fixed i.e. 02.07.2016. Naib Nazir is directed to issue Robkar in this regard. Copy of this order be given dasti to Learned counsel for the Objector.”
7. Subsequently, on 18th December, 2018, the Executing Court dismissed the objections of Mr. Naresh Kher since the agreement to sell with Mr. Naresh Kher had been executed during the pendency of the suit proceedings filed by Mr. Jagjit Singh. The operative portion of the said order reads as under:
8. This order is under challenge in the present appeal.
9. The counsels for the parties have made some submissions today. Mr. Mehta, ld. counsel appearing on behalf of Mr. Naresh Kher, submits that the entire decree dated 29th July, 2015 was obtained by fraud inasmuch as at no point in time, was the Court informed about any of the other agreements subsequently executed with the other parties and neither was the information about the suit filed by Mr. Jagjit Singh disclosed to the other parties.
10. Mr. Jha, ld. Counsel appearing for Mr. Mahesh Verma, submits that in the supplementary charge-sheet, Mr. Jagjit Singh has made a deliberate effort to conceal the proceedings filed by him seeking specific performance, being CS No.264/15.
11. Mr. Rajat Aneja, ld. Counsel for Mr. Jagjit Singh, however, submits that a third-party purchaser who may have purchased the suit property during the pendency of existing litigation would not have any locus to file objections. He relies upon the judgment of the Supreme Court in Usha Sinha v. Dina Ram & Ors., (2007) 7 SCC 144.
12. Having heard the ld. counsels for the parties and having perused the records, this Court is of the prima facie opinion that permitting the execution of the decree dated 29th July, 2015 in this manner when there are other proceedings pending in respect of the same suit property and that too in violation of the status quo order dated 25th May, 2014, in favour of Mr. Naresh Kher, would not be permissible.
13. It is evident from a perusal of the record, especially the supplementary chargesheet dated 28th May, 2014, that Mr. Jagjit Singh has cleverly concealed the suit filed by him. In the supplementary charge-sheet, the following is recorded by the Police: “3) श्री जगजीत स िंह S/o श्री बलवीर स िंह R/o 524, DDA Flats, Tagore Garden, New Delhi क े ाथ श्रीमती नममदा देवी W/o Late Sh. कमल क ु मार द्वारा 26.06.2009 को Flat No. 169, Munirka Vihar का Agreement to Sell & Purchase 20 लाख रूपए में सकया सज े करीब 7.[5] लाख रूपए Cheque े और करीब 9.[5] लाख रूपए Cash प्राप्त करना बतलाया गया है| श्री जगजीत स िंह क े द्वारा कोई कागज़ात प्रस्तुत नहीिं सकए गए|”
14. In view of these facts, this Court notes that the question as to who would be the legally entitled owner in respect of this suit property, would have to be adjudicated in the two suits which are pending before the Delhi High Court being CS(OS) 1608/2014 and CS(OS) 3329/2014. The fact that Mrs. Narmada Devi & Mr. Kanahiya Lal Kewal Parmani, chose not to contest the suit filed by Mr. Jagjit Singh and Mr. Jagjit Singh also failed to disclose in the said suit that subsequent agreements have been entered into with regard to the same suit property, makes the entire proceedings in the suit of Mr. Jagjit Singh quite suspect. It also points to the fact that while the decree was passed, the Court was not aware of the various facts which had already transpired by the date of the decree i.e., 29th July, 2015, such as, the other agreements executed by the owner, the amount of consideration received by her, the other orders passed by the Original Side of this Court in the two suits, etc. Even if Mr. Jagjit Singh himself had disclosed at any point in time either during the criminal proceedings in 2012/2014, which was clearly subsequent to the institution of the said suit, i.e., subsequent to 27th July, 2010, or disclosed the execution of subsequent agreements in any other manner, the decree dated 29th July, 2015 may not have been passed by the Trial Court. It clearly appears to the Court that the original owner has made multiple sales of the same suit property and has collected a huge amount of money of approximately Rs.[2] crores, in a fraudulent manner, defrauding multiple parties. The Executing Court cannot obviously turn a blind eye to such a maze of facts which has resulted in multiple persons being granted rights in respect of the same suit property. It is also well-established that a decree obtained by fraud is a nullity and can be challenged even before the Executing Court. In A.V. Papayya Sastry & Ors. v. Government of A.P. & Ors., 2007 V AD (S.C.) 21, the Supreme Court held as below: