Mohanjit Singh v. M/S Sunshine India Pvt Ltd & Ors

1. Registry is directed to number the two applications filed in Court under Order 23 Rule 2 and 3 read with Section 151 of the Code of Civil Procedure. Concededly,reference to Rule 2 ofOrder 23 is misplaced. The applications bring on record a compromise entered into in writing by the parties requiring the two appeals as also CS (OS) No.2501/2011 to be disposed ofby passing a decree in the suit.

2. Since on a mention made in the forenoon session that settlement between the parties embraces the dispute in the suit,as directed,the Registry has listed the suit before us.

3. All litigating parties to the suit including members of Bhai Manjit Singh (HUF) have filed affidavits duly deposed before the Oath Commissioner in support of the applications. A memorandum of understanding dated May 03,2016, duly signed by all the litigating parties FAO(OS)Nos.404/2015&405/2015 Page2of[7] has been filed along with the two applications.

4. Having perused the two applications we are satisfied that a lawful agreement by way ofa compromise has been arrived at between the parties and thus the two applications need to be accepted and in terms thereof CS (OS)No.2501/2011 to be decreed,

5. It being a part ofthe compromise that all adverse remarks made in the impugned order dated May 20,2015 be expressly expunged so as to denude the parties to rely thereupon in future,we note reasons why we need to pen a few paragraphs concerning said aspect ofthe settlement for the reasons as we read the impugned order, so integral to the reasoning of the learned Single Judge they are, it may not be possible to save the impugned order after expunging the offending expressions used. But, in respect thereof a clarification could be recorded.

6. Sunshine India Pvt. Ltd. instituted a suit seeking declaration, mandatory injunction and specific performance. The foundation ofthe suit was a registered document captioned as 'agreement to sell' dated July 29, 2005 executed by Bhai Manjit Singh(HUF)through its Karta, Ms.Maheep Manjit Singh. It records that for a consideration of^9.25 crores property bearing Municipal No.61, Golf Link, New Delhi, ad-measuring 1641.70 square yards owned by the HUF would be sold to the plaintiff. It records that the sale consideration in sum of^8,99,14,974/- has been received and the purchaser put into possession of the subject property. In the written statements filed albeit using different expressions,essentially the same stand was taken. The stand was thatthe registered agreement to sell is not what it purports to be. It is a pretence. The factual basis of the stand was the pleading that one Ashok Burman, a patriarch ofthe Burman family was a FAO(OS)Nos.404/2015&405/2015 Page3of[7] Jgood friend of Bhai Manjit Singh(HUF)whose companies owed debts to third parties and to satisfy the said debts Ashok Burman arranged for money to be directly paid to said third parties from the coffers of the plaintiff company. It is in this context that the words ^sham\ 'frivolous'' and 'fictitious'' etc. were used in the written statements.

7. In the suit, lA No.17960/2011 invoking the inherent powers of the Court under Section 151 ofthe Code of Civil Procedure was filed praying that during pendency of the suit a direction be issued to the land owning agency i.e. L&DO to grant a no objection certificate in the name of the plaintiff to effect construction on a plot in accordance with the sanctioned plan, upon an express understanding that the plaintiff would not claim any special equity ifpermitted to be construct on the land forming subject matter ofthe suit.

8. Needless to state it fell for consideration before the learned Single Judge whether the plaintiff had made out a very strong prima-facie case entitling the plaintiffto alter the status quo with respect to the suit property, which admittedly was a vacant piece ofland when the application was filed for the reason the existing structure on the land was dilapidated and demolished by the plaintiff.

9. Faced with the fact that money had flown from the coffers of M/s.Sunshine India Pvt. Ltd. and the fact that the registered agreement to sell contained acknowledgements thereof and as scribed, evinced the same to be an agreement to sell, motivated on the reasoning that except for a paltry sum ofless than ?26 lacs the entire sale consideration was paid,the learned Single Judge has used expressions such as 'false\ 'dishonesf, 'ulterior motive','unscrupulous','u-turn','turned turtle','nottrustworthy', FAO(OS)Nos.404/2015 &405/2015 Page4of? 'frivolous', 'shamelessly and 'wriggle out' in various paragraphs of the order dated May 20,2015 to describe the conductofthe defendants.

10. It would be difficult to expunge these expressions from the impugned order and let the remainder remain for the reason it would make the sentences unintelligible.

11. But we find the said expressions totally unwarranted and the interpretation of the law concerning Section 91 and 92 of the Indian Evidence Acttotally misplaced.

12. We need not make a catalogue of the various judgments v/herein, concerning a document, used as a noun the word 'sham' has been recognized to bring outthatthe documentis not whatit purports to be and is a pretence;the real transaction being something else. One suchjudgment be noted to suffice. It is reported as(1982)1 SCO 4 Gansabai Vs. Chhatabai. A party is entitled in law to take the plea that a document is a sham document,the word'sham'being the name given to a document and hence a noun.

13. Whether such a defence would ultimately succeed or notis a matter of evidence. Thus, sans evidence, it would be impermissible to use the descriptors used by the learned Single Judge to describe the conduct or the personality ofa party.

14. We accordingly declare that the aforenoted expressions which certainly negatively impinge upon the character, reputation and honour of the defendants,are misplaced.

15. The view taken by the learned Single Judge that such a defence is incapable of being proved because Section 91 and 92 ofthe Evidence Act prohibit evidence to be led is clearly contrary to the known tenets oflaw of FAO(OS)Nos.404/2015 &405/2015 Page5of[7] evidence.