Full Text
HIGH COURT OF DELHI
JUDGMENT
MOHD ASHHAR ..... Plaintiff
Through Mr.Ravi Gupta, Sr. Adv. with Ms.Preeti
Gupta, Adv.
Through Mr.Kirti Uppal, Sr. Adv. with Md.Amanullah, Mr.Mubashi Mushtaq and
Mr.Siddharth Chopra, Advs. for the defendants.
Mr.Rajeev Saxena, Adv. for D-6 to 8 in
IA No. 2023/2016 u/O 39 R 1 & 2 CPC) and 2379/2016 (u/O 39 R 4
CPC)
1. This suit is filed seeking specific performance, recovery and permanent & Mandatory Injunction and Recovery inter-alia seeking direction for Specific Performance of the Contract dated 07.11.2012 regarding the property, namely, 750 Sq. Yards out of 1000 Sq. Yards being 2018:DHC:5124 part of Khasra No. 372 Min situated in Village Jasola, Tehsil Mehrauli, New Delhi now known as Shaheen Bagh, Abul Fazal Enclave, Part-II, Jamia Nagar, Okhla, New Delhi-110025. The plaintiff has filed the application being IA No. 2023/2016 under Order 39 Rule 1 & 2 CPC seeking an exparte ad- interim injunction to restrain the defendants from creating third party interest in respect of the suit property. This court on 11.02.2016 on the said application when the suit came up for hearing directed the parties to maintain status quo with regard to the title and possession of the suit property. Thereafter, the defendants have filed IA No. 2073/2016 under Order 39 Rule 4 CPC for vacation of the said stay order. The orders of this court dated 11.02.2016 and 29.02.2016 were challenged by the defendants in an appeal before the Division Bench of this court. The Division Bench by order dated 18.03.2016 disposed of the appeal directing that the application be placed before this court for hearing and the same be disposed of at an early date.
2. The case of the plaintiff in the plaint is that the defendants approached the plaintiff and apprised that they had entered into an agreement to sell and purchase dated 25.04.2011 with respect to 1000 Sq. Yards of the suit property with Sh. Ravinder Singh, Sh. Abdul Aziz and Mohd. Sualeh for a total consideration of Rs. 4.10 crores (hereinafter referred to as „the original owners‟). It was further pleaded that defendant No.2 had paid Rs.50 lakhs to the said original owners at the time of the execution of the said agreement to sell dated 25.04.2011. It was pleaded that the defendant did not have the means to pay the balance sale consideration. Hence, defendant No. 1 offered to sell 250 Sq. Yards out of the proposed purchase of 500 Sq. Yards whereas defendant No. 2 offered to sell his entire share of 500 Sq. Yards to the plaintiff. It was agreed that the sum of Rs.50 lakhs that was paid by defendant No.2 to the original owners would be returned to the defendants and in addition, the balance sale consideration of Rs. 2.85 crores would be paid by the plaintiff. Hence, the defendants jointly offered 750 Sq. Yards of the suit property to the plaintiff for a total sale consideration of Rs.3,07,50,000/-. It is pleaded that pursuant to the said arrangement, defendant No.2 executed a Special Power of Attorney dated 08.05.2012 in favour of the plaintiff to file a suit against the original owners. The plaintiff as attorney of defendants No.2 along with defendant No.1 filed a suit for specific performance of the Contract dated 25.04.2011 being CS(OS) 1873/2013 titled as „Arshad Zamal Siddique & Anr. vs. Ravinder Singh & Ors.‟ (This may be referred to as the „First Suit‟). On 27.06.2012 when the said suit came up for hearing, the court was pleased to issue summons and to restrain the defendants therein from creating third party rights in respect of the suit property subject to the plaintiff therein depositing the balance sale consideration of Rs. 2.85 cores. It is stated that this amount was deposited by the plaintiff from his own account with the Registry of this court. To avoid controversy, it was agreed that the agreement between the parties would be reduced in writing. Accordingly, a written agreement and other documents of transfer were said to have been executed by the defendants in favour of the plaintiff and an agreement was hence signed on 07.11.2012. The defendants jointly also executed GPA, Indemnity Bond, Affidavit, MOU, Acknowledgment-cum-receipt and receipt-cum-promissory note all dated 07.11.2012. Defendant No. 1 also separately executed such documents on 17.09.2012 in respect of 250 Sq. Yards. It is stated that in lieu of the said agreements, the plaintiff deposited Rs.2.85 crores with the Registry of this court. It is stated that both the defendants would have lost their respective rights in the subject property of 1000 sq. Yards (including the suit property) as well as Rs. 50 Lacs could have been forfeited which was paid by the defendant No. 2 at the time of execution of the said agreement to sell dated 25.04.2011, had the plaintiff not deposited 2.85 Crores with the Registry as there was a forfeiture clause in agreement to sell dated 25.04.2011. Plaintiff also paid a sum of Rs.50 lakhs in cash to defendant No. 2 on 07.11.2012 when the agreement dated 07.11.2012 was executed. Hence, it is stated that the defendants on receiving the said amount agreed that they shall not claim any right, title and interest in this said property.
3. It is stated that in the said suit that was filed by the plaintiff as attorney of defendant No.2 being CS (OS) 1873/2012 (First Suit), the defendants therein filed their written statement alleging that 600 sq.yards out of total land of 1,000 sq.yards had already been sold and possession handed over to Shri Taskeen Hussain Siddiqui, Mr. Shahzama Khan, Mr.Muddassir Hayat, and Mohd.Babu Qureshi. The said parties were impleaded by a subsequent application. The suit was thereafter referred for mediation. The same got settled and compromised amicably. The plaintiff also paid Rs.20 lakhs to defendants No. 6, 8 and 9 of the suit CS(OS) No.1873/2012 at the time of signing of the settlement. In terms of the settlement arrived at before the Delhi High Court Mediation and Conciliation Centre a compromise decree dated 08.09.2014 was passed. The sum of Rs. 2.85 crores that had been deposited by the plaintiff had become around Rs. 3.40 crores due to interest accrued. The sum of Rs. 3.30 crores was released in favour of the defendants in the said suit. The plaintiff had also paid Rs. 5 lakhs in addition to defendant No. 2 on 10.09.2014 as full and final amount.
4. The case of the plaintiff is that he has in all paid a total of Rs.5,12,33,000/- whereas he should have paid Rs. 3,07,50,000/-. Hence, according to the plaintiff, the defendants are liable to refund a sum of Rs.2,04,83,000/- as the same is excess consideration paid by the plaintiff. It is stated that the aforesaid amount has been paid by the plaintiff upon the requests of the defendants to save the transaction between the defendants and their sellers, and it was agreed that the aforesaid amount shall be paid by the defendants to the plaintiff. Defendants are further liable to pay interest @18% per annum upon the aforesaid amount from the date of the institution of the present suit till its actual payment. Subsequently, thereafter, the plaintiff states that he has on number of occasions requested the defendants to execute the sale deed and other title documents in favour of the plaintiff. As the said defendants failed, a legal notice was sent to the defendant on 18.09.2014. A corrigendum/legal notice was also issued on 24.09.2014. Defendant No. 1 replied on 25.09.2014. Thereafter the plaintiff has taken possession of the suit property from the defendants in CS(OS) 1873/2012 (First Suit). Defendant No. 1 has taken possession in respect of 250 Sq. Yards out of 1000 Sq. Yards. The possession letter dated 14.10.2014 has duly been acknowledged and signed by the defendants in CS (OS) 1873/2012 (First Suit) including the owners.
5. As the plaintiff learnt that the defendants are trying to sell the suit property, the plaintiff filed a suit for permanent and mandatory injunction being CS(OS) 3720/2014 titled „Mohd. Ashhar vs. Zeeshan Zama Khan & Anr.‟ (Hereinafter also referred to as the Second Suit). On 09.12.2014, this court directed the parties to maintain status quo with respect to the title and possession of the suit property. The defendants, it is stated, filed their written statement and counter-claim and they sought possession from the plaintiff of the suit property. On 09.02.2016, the plaintiff withdrew CS(OS) 3720/2014 (Second Suit) with liberty to file a fresh substantive suit as per law. Hence, the present suit is now said to have been filed by the plaintiff. It has been pleaded that the plaintiff is ready and willing to perform his part of the contract if something is left unperformed. It is stated that the defendants are backing out and not seeking to perform their part of the contract. The defendants are trying to create 3rd party right, title & interest and to sell the Suit Property or part thereof just to deprive the plaintiff of his valuable right, title and interest which cannot be compensated in terms of money. The defendants are already negotiating with property dealers and trying to create 3rd party right and interest, in the suit property in the garb of withdrawal of the said suit being CS (OS) No. 3720/2014 (Second Suit). Hence, the present suit has been filed seeking a decree of specific performance. A decree for recovery of Rs.2,04,83,000/- is also sought apart from other reliefs.
6. The defendants have filed their written statement and have taken the following broad objections:-
(i) The decree that was passed in CS(OS) 1873/2012 (First Suit) is a conditional decree passed in terms of the settlement dated 28.04.2014. Unless and until, the conditions of the settlement are fulfilled, there would remain a cloud on the title of the defendants and the suit land may have to be given back to the defendants in CS(OS) 1873/2012.
(ii) It is pleaded that the alleged documents dated 17.09.2012 and
07.11.2012 prepared by the plaintiff are all forged. These have been created by the plaintiff while the injunction order passed in CS(OS) 1873/2012 (First Suit) was in force. Hence, there are no documents creating a title in favour of the plaintiff.
(iii) It is also pleaded that the claim of the plaintiff is sham and bogus. As per the compromise, to which the plaintiff is also a signatory, a total sale consideration payable for the land to the defendants of CS(OS) 1873/2012 (First Suit) is Rs. 7.91 crores. Hence, there can be no reason why out of a land measuring 1000 Sq. Yards which is worth almost Rs.[8] crores, a portion measuring 750 Sq.Yards would be sold to the plaintiff for only Rs. 3.07 crores. Meaning thereby that the defendants would be left with the ownership of 250 Sq.Yards by paying Rs. 4.83 crores.
(iv) It has also been pleaded that it was the defendants who have deposited
(v) It has also been pleaded that though CS(OS) 1873/2012(First Suit) was filed by the plaintiff as attorney of defendant No.2, he nowhere at any stage in the proceedings mentioned about the so called agreement to sell dated 07.11.2012 or the documents said to have been executed in his favour. Even in the replication that was filed on 29.04.2011, there was no reference to these documents. It is pleaded that this aspect was noted by this court in its order dated 02.12.2015 in CS(OS) 3720/2014 (Second Suit) and commented adversely thereon.
7. I have heard learned senior counsel for the plaintiff and the defendants. Both the counsel have reiterated their submissions which have been made in the pleadings which I have already noted as above.
8. I may only note a few important admitted facts which follow from the pleadings of the parties.
(i) There is no dispute that defendant No.2 executed a power of attorney in favour of the plaintiff on 08.05.2012 based on which the plaintiff instituted the suit on behalf of defendant No. 2 along with defendant No.1 being CS(OS) 1873/2012(First Suit), „Arshad Zamal Siddique & Anr. vs. Ravinder Singh & Ors.‟ for specific performance of agreement to sell dated 25.04.2011.
(ii) It is also an admitted fact that the plaintiff had deposited the sum of
Rs. 2.85 crores in court pursuant to the interim order passed by the this court on 27.06.2012 when the said suit for specific performance was filed being CS(OS) 1873/2012(First Suit). The defendants have in their written statement that was filed in CS(OS) 3720/2014(Second Suit) admitted that the plaintiff had deposited the sum of Rs.2.85 crores on behalf of defendant No. 2 being his attorney. It was pleaded that the amount was arranged in the bank account of the plaintiff by defendant No.2 after obtaining a friendly loan from his contacts. It is also admitted that the said amount was deposited with the Registrar General of this court by the plaintiff. Prima facie there can be no reason why the defendants would organize fund to comply with the interim orders of the court dated 27.06.2012 and deposit the same in the account of the plaintiff for the purpose of depositing the same with the Registry of this Court. In my opinion, prima facie the plaintiff has paid the sum of Rs.2.85 crores that was deposited in court in CS(OS) 1837/2012 (First Suit).
(iii) It is also an admitted fact that the possession of the suit property was handed over to the plaintiff. The plaintiff has placed on record a copy of the possession letter dated 14.10.2014 signed by defendants No. 1 to 3 and 5 to 9 in CS(OS) 1873/2012(First Suit). This is also manifest from a reading of the counter-claim filed by the defendants in CS(OS) 3720/2014(Second Suit). In the said counter-claim, the defendants sought a decree of declaration declaring the agreement dated 07.11.2012, power of attorney dated 07.11.2012, indemnity bond, Affidavit, MOU, Acknowledgement-cum-receipt, etc. as non-est, null and void being forged and fabricated. A decree of mandatory injunction was also sought by the defendants to restrain the plaintiff from interfering with or parting with possession jointly held by the plaintiff in the capacity of attorney of defendant No. 2 of the suit. Relevant portion of the prayer clause of the counter-claim filed by the defendant reads as follows:- “(b) Pass a decree of Mandatory Injunction in favour of the Plaintiffs/Defendants and against the Defendant/Plaintiff thereby commanding the Defendant/plaintiff, his attorney, representative, assignee, etc. from interfering with or parting with the possession jointly held by him in the capacity of attorney of the plaintiff No.2/defendant No. 2 of the property ad measuring 1000 Sq. Yards out of Khasra No. 372 min situated in area of Village Jasola Tehsil Mahrauli New Delhi now known as Shaheen Bagh, Abul Fazar Enclave Part-II Jamia Nagar, New Delhi.”
9. In my opinion, the above facts do prima facie show that the agreement to sell dated 07.11.2012 has been executed between the parties, the plaintiff has parted with at least Rs.2.85 crores and has also received physical possession of the suit property. No doubt there are serious allegations, counter allegations being made by both the sides. These are all issues which have to be adjudicated upon at the time of leading evidence.
10. In the course of submissions learned senior counsel for the defendant had made strong submissions as to why this court should vacate the interim order. Some of the contentions I may deal with. It was strongly pleaded that the documents which are being relied upon by the plaintiff were allegedly executed on 7.11.2011. These documents or documents dated 17.9.2012 were not mentioned at all in the proceedings that took place in CS(OS) 1873/2012(First Suit) though the plaintiff himself was a signatory to the pleadings. I may add that the plaintiff has clarified that in the first suit the plaintiff was not a party but was the attorney of defendant No.2. This may be a plausible explanation. In my opinion, the contentions of the defendant do not itself lead to a conclusion that no such documents were executed on 7.11.2012 sor 17.9.2012. These are aspects which will have to be gone into after parties have led their evidence.
11. Strong reliance has also been placed on the orders passed by this court on 02.12.2015 by the learned senior counsel for the defendants to contend that this court has already adversely commented against the plaintiff. It is no doubt true that in CS(OS) 3720/2014, on 02.12.2015 this court had noted that the agreement to sell dated 07.11.2012 is prior to the compromise decree and the said documents ought to have been brought to the notice of the court when the compromise decree was being passed. The relevant portion of the order dated 2.12.2015 passed by this court in the first suit reads as follows:- "The case of the present plaintiff is premised upon a Possession Letter dated 14th October, 2014, which is admittedly after the passing of the Compromise Decree in the CS(OS) No.1873/2012. It is also premised on an Agreement to Sell dated 7th November, 2012, which is prior to the said Compromise Decree. The latter document ought to have been brought to the notice of the Court, when the Compromise Decree was being passed and the present plaintiff had represented plaintiff No.l in that suit as his Attorney. There was no mention of the present plaintiff acquiring any rights in the suit property in his individual capacity. Furthermore, the plaintiff's alleged possession of the suit property is subsequent to the Compromise Decree. The rights of the parties can arise only in terms of the Compromise Decree and no special equity or rights would arise beyond what the Decree states".
12. A perusal of the above order would show that no final conclusion was arrived at that the documents relied upon by the plaintiff dated 7.11.2012 were illegal or void. For the purpose of adjudicating the present applications, the said order does not help the defendants.
13. Another serious objection taken by learned senior counsel for the defendant was regarding the rights of the original owners. It has been pointed out that as per the compromise arrived at in CS(OS) 1873/2012(First Suit), the plaintiff of the said suit had to pay Rs.5.04 crores to defendants No. 5 to 9. In case payment was not made by the plaintiff to defendants NO. 5 to 9, possession of 600 sq. yards was to be handed back to defendants NO. 5 to 9 of the said suit. It is no doubt true that if for some reason, the title of the defendants is defective or they lose their rights in the property, it may impair the relief that is being sought by the plaintiff, namely, of specific performance of the agreement to sell dated 07.11.2012. However, in my opinion that per se cannot be a ground to come to a conclusion that no interim orders should be passed to protect the plaintiff. The present suit does not deal with the rights of defendants No.5 to 9 in CS(OS) 1837/2012 which have been dealt with in the said CS(OS) 1873/2012, namely, first suit. The injunction orders have been passed only against the defendants herein and not any third parties to the suit.
14. Mulla on Code of Civil Procedure (Fifteenth Edition) notes the principles for grant of interim injunction as follows: “In issuing temporary injunctions, the tests to be applied are (i) whether the plaintiff has a prima facie case (ii) whether the balance of convenience is in favour of the plaintiff and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for temporary injunction is disallowed.”
15. Reference may also be had to the judgment of the Supreme Court in the case of Zenit Mataplast P. Ltd. v. State of Maharashtra & Ors., (2009) 10 SCC 388, where the court held as follows: “23. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)”
16. Keeping in view the admitted facts which I have noted above, namely, that the plaintiff had made a payment of Rs.2.85 crores for compliance of the interim order dated 26.2.2012 passed in the suit for specific performance being suit No.CS(OS)1873/2012, the possession of the land in question was handed over to the plaintiff, in my opinion, the plaintiff has succeeded in making out a prima facie case. In case the defendants are allowed to deal with the said property, irreparable injury would be caused to the plaintiffs. Ultimately if the court decrees the suit in favour of the plaintiff and the property has been alienated or sold by the defendant, the decree would be rendered otiose.
17. The plaintiff has made out a prima facie case. Balance of convenience is also in favour of the plaintiff. I confirm interim order dated 11.02.2016 passed in favour of the plaintiff and against the defendants. The applications stands disposed of as above.
JUDGE AUGUST 14, 2018