K. R. DONGRE v. VIDYAWANTI — 1998 DIGILAW 140 (DEL)

D. K. Jain, J. ( 1 ) THIS order will dispose of IAs No. 2534/97, 3037/97 and 3683/97. ( 2 ) IN this suit for specific performance of the agreement to sell dated 9 December 1990 in respect of the terrace of the ground floor of the property bearing no. E-4/4, Vasant Vihar, New Delhi, and for declaration to the effect that the sale deed dated 1 March 1996 executed by defendant no. 1 in favour of defendant no. 3 in respect of the subject property is null and void and for permanent injunction restraining the defendants from selling, transferring, alienating or creating any third party interest in respect of the terrace rights of the ground floor and from raising any construction on the said portion of the property, the plaintiff filed IA No. 2534/97 for grant of ad-interim injunction. On the said application, notice with an ex parte, ad-interim injunction order was issued on 20 March 1997 restraining the defendants from further transferring, selling, alienating or creating third party interest or otherwise altering the status quo of and from raising the construction on the terrace of the ground floor of the subject property. ( 3 ) ON being served with the notice in the application, defendant no. 3 has application (IA No. 3037/97) for vacation of the said ex parte order and IA 3683/97 for a direction to the plaintiff to deposit a sum of Rs. 5 lacs per month and/or give sufficient security to this court to compensate the said defendant for all losses it is likely to suffer on account of the interim injunction. The facts, in brief, necessary for the disposal of the applications, as can be culled out from the plaint, are : ( 4 ) THE plaintiff and defendant no. 1 entered into an agreement to sell the terrace of the ground floor with proportionate rights in the land underneath the suit property on 9 December 1990 for a total consideration of Rs. 9,50,000. 00. A sum of Rs. 50,000. 00 is stated to have been paid by the plaintiff to defendant no. 1 as the earnest money and the balance sale consideration of Rs. 9 lacs was agreed to be paid at the time when defendant no. 2, the son of defendant no. 9,50,000. 00. A sum of Rs. 50,000. 00 is stated to have been paid by the plaintiff to defendant no. 1 as the earnest money and the balance sale consideration of Rs. 9 lacs was agreed to be paid at the time when defendant no. 2, the son of defendant no. 1, had shifted his residence from the ground floor of the property to some other place in order to make available the terrace of the suit property for construction to the plaintiff. It is pleaded that as per the said agreement it was agreed between the parties that defendant no. 2 will vacate the suit premises within seven years from the date of the said agreement to sell and thereafter, will send the formal intimation to that effect to the plaintiff, on receiving which, the plaintiff was to complete the construction within 24 months on the terrace and make available the ground floor of the suit property for rehabilitation to defendants no. 1 and 2 failing which the plaintiff had to pay compensation @ Rs. 2,500. 00 per month for the extended period. Plaintiff claims to have learnt later that defendant no. 1 and 2 in alliance/collusion with defendant no. 3 had entered into an agreement to sell, dated 28 February 1995, in respect of the entire suit property, including the terrace rights for a total consideration of Rs. 1,60,00,000. 00 with a view to deprive the plaintiff from enjoying his lawful rights in respect of the terrace of the ground floor and further that defendants no. 1, 2 and 3 had subsequently got the sale deed executed and registered in favour of defendant no. 3 on 1 March 1996. It is alleged that instead of performing her part of contractual obligation in the said agreement to sell with the plaintiff, defendant no. 1 entered into various collusive transactions with respect to the entire property without intimating him. It is claimed that the plaintiff has all through been ready and willing to perform his part of the agreement to sell and on account of breach of the terms and conditions of the agreement to sell by defendant no. 1, the plaintiff is entitled to specific performance of the said agreement to sell and defendant no. 1 having failed to execute the sale deed in favour of the plaintiff, it had no option but to file the present suit. 1, the plaintiff is entitled to specific performance of the said agreement to sell and defendant no. 1 having failed to execute the sale deed in favour of the plaintiff, it had no option but to file the present suit. ( 5 ) THE suit as well as the application for interim relief is contested by defendants no. 1 and 3, inter alia, on the pleas that : (i) the agreement to sell dated 9 December 1990 is a forged and fabricated document and there was no occasion for defendant no. 1 to enter into such an agreement because : a) She herself executed a will on 26 November 1990 wherein she bequeathed that after her death the subject property will be sold and the proceeds thereof shall be distributed in a manner specified therein, which shows that she had no intention to sell the property in part or in whole; b) her signatures on the said will and the alleged agreement to sell are different; c) The witnesses to the agreement to sell are not known to defendant no. 1 and since defendant no. 1 did not understand English she would not have signed the agreement in the absence of her family members and that the plaintiff, in connivance with defendant no. 2, whose relations with defendant no. 1, got strained due to the sale of subject property to defendant no. 3, has forged the signatures of defendant no. 1 on the said agreement with a view to grab the terrace of the property which is worth Rs. 2 Crores. It is averred that the suit itself is not maintainable because as per the terms and conditions of the perpetual sub lease dated 6 April 1971, in favour of defendant no. 1 the terrace rights of the ground floor could not be transferred in favour of the plaintiff. ( 6 ) DEFENDANT no. 3 further claims to have purchased the entire property for Rs. 1,60,00,000. 00 under the sale deed dated 1 March 1996 and to have paid the entire sale consideration to defendant no. 1 besides making an additional payment of Rs. 30 lacs to defendant no. 2 at the time of delivery of possession by him to defendant no. 3. ( 7 ) I have heard learned counsel for the plaintiff and defendants no. 1, 3 and 4. 1 besides making an additional payment of Rs. 30 lacs to defendant no. 2 at the time of delivery of possession by him to defendant no. 3. ( 7 ) I have heard learned counsel for the plaintiff and defendants no. 1, 3 and 4. The main thrust of the arguments of learned counsel for defendant nos. 1 and 3 is that the plaintiff s alleged agreement to sell, dated 9 December 1990, is a fabricated document and, therefore, he is not entitled to any relief in equity. It is submitted that in the absence of any overt act on the part of the plaintiff for seven years, it could be safely presumed that the said agreement was not a genuine agreement. ( 8 ) I have considered the matter. A finding on the question of genuineness or otherwise of the agreement to sell alleged to be based on a conspiracy between the plaintiff and defendant no. 1 s son would be possible only after the trial and the same cannot be contemplated. The pointed out allegations cannot, in the circumstances, without something more be deemed sufficient to conclude at this stage that the agreement to sell in favour of the plaintiff is in fact a forged document. At any rate, there appears to be a bonafide contest between the parties and a serious question with regard to the genuineness or otherwise of the agreement to sell dated 9 December 1990 needs a trial on merits. ( 9 ) IN this view of the matter, I feel that a prima facie case exists in favour of the plaintiff; the balance of convenience also lies in his favour and if the defendants are not restrained from carrying out further construction on the terrace of the first floor and from transferring or alienating the property further, the plaintiff is likely to suffer irreparable injury because defendant no. 3, being in the construction business, is keen to have further construction on the subject property. However, it was submitted by learned counsel for defendant no. 3 that the said defendant, being a bonafide purchaser of the suit property for a consideration of Rs. 1,60,00,000. 00, not only their funds are locked up, they are also not in a position to exploit the property for which purpose it had been purchased. However, it was submitted by learned counsel for defendant no. 3 that the said defendant, being a bonafide purchaser of the suit property for a consideration of Rs. 1,60,00,000. 00, not only their funds are locked up, they are also not in a position to exploit the property for which purpose it had been purchased. Having given my thoughtful consideration to this aspect of the matter, in the interests of justice, equity and fair play, and to show that the plaintiff has been ready and willing to have the agreement implemented, it is necessary to put him to terms. Accordingly, I would direct the plaintiff to deposit the balance sale consideration of Rs. 9 lacs in this court within six weeks from today with a further direction that in the event of plaintiff failing in the suit, he will be liable to pay interest to defendant no. 3 on the aforenoted amount of Rs. 1,60,00,000. 00 at such rate as may be directed by the court at the time of the final disposal of the suit. On the plaintiff depositing the said amount the ad-interim stay granted on 20 March 1997 will stand confirmed till the disposal of the suit. The amount so deposited will be put in a fixed deposit receipt in the UCO Bank, High Court Branch, in the name of the Registrar of this Court, initially for a period of two years, to be renewed from time to time, till the disposal of the suit. ( 10 ) IN the result IA No. 2534/97 is allowed in the above terms and applications No. 3037/97 and 3683/97, filed by defendant no. 3 stand dismissed.