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2000 DIGILAW 878 (DEL)

GURMIT SINGH v. RAJIV SINGH

2000-10-10

MUKUL MUDGAL

body2000
MUKUL MUDGAL ( 1 ) IA. 11425/97 is an application, filed by the plaintiffs for confirmation of the interim order passed under Order XXXIX Rules 1 and 2 Civil Procedure Code. This Court had passed the ex parte order of ad-interim injunction on 17/12/1997 and the IA. 110/98, filed on behalf of defendant No. 1 under Order XXXIX Rule 4 Civil Procedure Code comes up for vacation of the said order and both are being disposed of together. ( 2 ) THE case of the plaintiffs as set out in the plaint is that the plaintiff No. 1/gurmeet Singh s family was well-off and was maintaining a Fiat Car and owned their house at G-93, Kalkaji, New Delhi. The plaintiff No. 1-Gurmeet Singh and defendant No. 1-Rajiv Singh in spite of their vast difference in standards of living were good friends. The plaintiff No. 1-Gurmeet Singh s parents died in a road accident and the defendant No. 1-Rajiv Singh won over the plaintiffs confidence and accordingly started regularly keeping the money of the plaintiff No. 1 and in fact bought a car and a motor-bike out of the money of the plaintiff No. 1 and though plaintiff No. 1 had objected to such lavish purchases by defendant No. 1 from the funds of the plaintiff No. 1 he was assured that the money so spent would be repaid by the 1 st defendant. Due to the depression of the plaintiff No. 1, defendant No. 1 was permitted to sit in the shop of the plaintiff No. 1 and gradually started running and controlling the business of the plaintiff No. 1. Cheque books were given to defendant No. 1 and all sale proceeds of the business were deposited by the defendant No. 1 in his own account in Central Bank, Krishna Market, Kalkaji, New Delhi. A large sum of money of the plaintiff No. 1 was transferred in this manner by the defendant No. 1 in his own name. The plaintiff No. 1 also executed a General Power of Attorney in favour of Rajiv Singh, defendant No. 1 authorising him to let out the disputed property and to collect the rent and the rent was collected from the tenant on behalf of plaintiff No. 1 by defendant No. 1. The plaintiff No. 1 also executed a General Power of Attorney in favour of Rajiv Singh, defendant No. 1 authorising him to let out the disputed property and to collect the rent and the rent was collected from the tenant on behalf of plaintiff No. 1 by defendant No. 1. However, this rent was never given to plaintiff No. 1 and defendant No. 1 had in fact collected rent which had accumulated to Rs. 3. 5 lacs but he was however only given a sum of Rs. 1 lacs as the rent of the basement through a Cheque dated 18. 5. 1995. The defendant No. 1 also took an additional security of Rs. 2 lacs from the tenant but this money was also never paid to plaintiff No. 1 and thus by the General Power of Attorney executed by the plaintiff No. 1 in favour of defendant No. 1, the defendant No. 1 collected a sum of Rs. 3. 5 lacs in addition to the security amount of Rs. 2 lacs from the. tenant. That in furtherance of his mala fide intentions and ill designs, the defendant No. 1 persuaded the plaintiffs to execute a sale deed in favour of the defendant No. 1 in respect of the suit property for protecting the same from the sisters of the plaintiff No. 1 and promised to re-execute a sale deed in favour of the plaintiffs. The plaintiffs contended that a sum of Rs. 2. 5 lacs mentioned as the consideration in the sale deed which was duly registered on 19. 4. 1996 was in fact without any consideration and the said sum of Rs. 2. 5 lacs only represented the advance security and the rent collected by defendant No. 1 from the tenant Y. M. Mahajan of M/s Mixture Exports in respect of the same property. Thereafter a suit was also filed by defendant No. 1 in the Court of Civil Judge, Delhi where they had secured interim orders. The plaintiffs have submitted that the following modus operand! was adopted by defendant No. 1 to defraud the plaintiffs:- " (A) sale proceeds of the business of plaintiff No. 1, Gurmeet Singh, being handled by defendant No. 1, Rajiv Singh were deposited by Rajiv Singh in his own account. (b) A cheque issued by Rajiv Singh from his own account in favour of Gurmeet Singh. was adopted by defendant No. 1 to defraud the plaintiffs:- " (A) sale proceeds of the business of plaintiff No. 1, Gurmeet Singh, being handled by defendant No. 1, Rajiv Singh were deposited by Rajiv Singh in his own account. (b) A cheque issued by Rajiv Singh from his own account in favour of Gurmeet Singh. (c) A voucher slip for depositing this cheque was filed by Rajiv Singh himself. (d) with the help of this voucher slip, the said cheque was deposited by Rajiv Singh in Gurmeet Singh s account in same bank branch i. e. Central Bank, Krishna Market, New Delhi. (e) Rajiv Singh withdrew the amount the same day by filling the blank cheques (duly signed by Gurmeet Singh) which were in his possession. " ( 3 ) THERE were also some instances of violence alleged. The plaintiffs have averred in Para No. 27 of the plaint that the premises in question have been attached by the police under Section 145 of Criminal Procedure Code. Consequently the following prayers were made in the suit:- " (A) pass a decree of declaration in favour of the plaintiffs and against defendant No. 1 whereby declaring the sale deed bearing registration no. 2996, additional book no. 1, vol. no. 687 at pages 66 to 71 dated 19. 4. 96 in respect of suit property i. e. basement of G-93, Kalkaji, New Delhi as null and void. (b) pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants directing the defendant No. 2 to restore the possession of the suit property to the plaintiffs mentioned above which is, at present, with the police. " ( 4 ) THIS Court passed an order of ex parte ad-interim injunction on 17/12/1997 directing status quo in terms of possession. The aforesaid order reads as follows:- "this is an application under Order 39 Rule 1 and 2 Civil Procedure Code. Notice, returnable on 30. 4. 1998. In the meanwhile, status quo in terms of possession of basement of property no. G-93, Kalkajir, New Delhi, which has allegedly been sealed by the Police be maintained till the next date of hearing. " ( 5 ) THE plaintiffs seek the confirmation of the above order and defendant No. 1 seeks the vacation of this interim order dated 17/12/1997. In the meanwhile, status quo in terms of possession of basement of property no. G-93, Kalkajir, New Delhi, which has allegedly been sealed by the Police be maintained till the next date of hearing. " ( 5 ) THE plaintiffs seek the confirmation of the above order and defendant No. 1 seeks the vacation of this interim order dated 17/12/1997. ( 6 ) THE defendant No. 1, apart from the plea of total improbability of the case set up by the plaintiffs and other inherent contradictions in the case set up by the plaintiffs, has strongly relied upon a averment made in the plaint that the suit property had been sealed by the police under Section 145 of Criminal Procedure Code. The defendant No. 1 contends that this averment which is false led to the grant of interim injunction by the Court which is evident from the fact that even the status quo order granted by this Court on 17/12/1997 mentioned the sealing of the suit premises by the police. The defendant No. 1 contended that the property was purchased by defendant No. 1 for a 187 consideration of Rs. 2,50,000. 00 and defendant No. 1 was put in possession of the said property and has been in the possession of defendant No. 1 till now. The consideration was paid by two cheques (i) Cheque No. 303411 dated 20/07/1994 for Rs. 1,50,000. 00 and by Cheque No. 327206 dated 18/05/1995 for Rs. 1,00,000. 00. The defendant No. 1 has also relied upon the Para 21 of the written statement of defendant No. 2-Station House Officer, Police Station, Kalkaji, New Delhi which reads as follows:- "but it is absolutely false to allege that the suit property is in possession of the police. It is submitted that it was in the possession of defendant No. 1 and even now it is in his possession. There is no provision in law under which the police could have taken the said property in its possession. Only the Ld. S. D. M. is legally empowered to seal the property in the event of urgency but the Ld. S. D. M. has not passed any such orders. The property has neither been sealed nor it is in possession of the police. Only the Ld. S. D. M. is legally empowered to seal the property in the event of urgency but the Ld. S. D. M. has not passed any such orders. The property has neither been sealed nor it is in possession of the police. " ( 7 ) THE Report of the Local Commissioner dated 09/01/1998 has also been relied upon by the learned counsel for defendant No. 1 and is in the following terms:- "on inspection of the suit premises/basement of G-93, Kalkaji New Delhi I found no police seal on the premises and neither Gurmeet Singh or Amarjit Singh present for plaintiff could show me any police seal on the door of the premises. Rajeev Singh defendant alongwith his brother Rajesh Singh and their associates were already in the basement before my entry. At the time of inspection I found Rajeev Singh in possession. " ( 8 ) UPON considering the rival submissions of the parties, the interim order dated 17/12/1997 cannot be continued. In my view even on a short ground that a wrong statement was made in Para No. 27 of the plaint that the premises in question had been attached by the police under Section 145 of Criminal Procedure Code. , the interim order deserves to be vacated. This averment was categorically denied in the written statement by defendant No. 1 as a false statement and the replication merely reiterates the averments made in the plaint without specifically dealing with the pleas raised by defendant No. 1 in paragraph 27 of the written statement. Even the written statement of the S. H. O. , Police Station, Kalkaji-defendant No. 2 and the Local Commissioner s report falsify the claim of the plaintiffs. I am satisfied that the defendant No. 1 is in the actual and physical possession of the suit premises. Apart from the above reason of a misleading and false statement in the plaint which in itself is sufficient to discontinue the interim order, the plaintiffs case is so imrprobable prima facie so as to defy credibility and belief. The 1st plaintiff s version of the implicit trust deposed by the plaintiff in the defendant No. 1 is improbable and highly unnatural. The sale deed dated 19/04/1996 which the plaintiffs want to back out of is a registered sale deed. The plaintiffs have also received a sum of Rs. The 1st plaintiff s version of the implicit trust deposed by the plaintiff in the defendant No. 1 is improbable and highly unnatural. The sale deed dated 19/04/1996 which the plaintiffs want to back out of is a registered sale deed. The plaintiffs have also received a sum of Rs. 1 lacs the receipt of which is said to be denied on the ground that this was the reimbursement of the rent to the plaintiff No. 1 which the defendant No. 1 was collecting from the tenant. It is surprising that the plaintiffs waited for an accumulation of Rs. 3. 5 lacs of rent and Rs. 2 lacs as security taken by the defendant No. 1 from the tenant before being alerted to his rights. It is inconceivable that the trust of the plaintiffs went to such an extent that he allowed such a big amount to be accumulated by defendant No. 1 which money was collected for and behalf of plaintiff No. 1. The furher version of the plaintiff No. 1 that the defendant No. 1 persuaded the plaintiff No. 1 to enter into a registered sale deed though in fact the transaction was for return of the accumulated rent collected by the defendant No. 1 from the plaintiff No. 1 is prima facie bizarre and one which no reasonable person could believe. It is highly improbable that the plaintiff No. 1 who had already" remonstrated with the defendant No. 1 for having purchased a car and motor-cycle with his funds, would enter into a sale deed under circumstances and for reasons claimed in the plaint. The plaintiff No. 1 nevertheless permitted an accumulation of rent amount to Rs. 3. 5 lacs and the security deposit of Rs. 2 lacs. The inherent probability of this version of the plaintiff No. 1 further lends prima facie support to the plea of the defendant No. 1 that the plaintiffs case is false and an obvious attempt to get out of the liabilities accruing from the registered Sale Deed dated 19/04/1996. ( 9 ) PRIMA facie I am of the view that the version in the plaint is nothing but an attempt to get out of the liabilities arising from a registered sale deed and the receipt of the consideration of Rs. 2. 5 lacs by two cheques (one cheque of Rs . 1 lacs and other of Rs. 1. ( 9 ) PRIMA facie I am of the view that the version in the plaint is nothing but an attempt to get out of the liabilities arising from a registered sale deed and the receipt of the consideration of Rs. 2. 5 lacs by two cheques (one cheque of Rs . 1 lacs and other of Rs. 1. 5 lacs paid to the plaintiffs ). I am, therefore, satisfied that the plaintiffs have no case at all for the continuance of the interim injunction granted by this Court on 17/12/1997. Accordingly, the prayer made in the defendant No. 1 s application, IA. 110/98 is allowed. Consequently, the interim order dated 17/12/1997 cannot be continued and stands vacated. Since the plaintiffs have been found to have made incorrect statements in the plaint to secure an interim order, the defendant No. 1 will be entitled to costs quantitified at Rs. 10,000. 00 to be paid within four weeks from today. ( 10 ) BOTH the applications are accordingly disposed of. Suit No. 2622/97 ( 11 ) LIST this matter on 24/11/2000 before the appropriate Bench for further proceedings, subject to the orders of the Judge-in-Charge (Original Side ).