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2006 DIGILAW 1502 (DEL)

DHARAM PAL v. RAMESH MINOCHA

2006-08-30

MUKUNDAKAM SHARMA

body2006
MUKUNDAKAM SHARMA, J. ( 1 ) THIS appeal arises out of the order dated 10th November, 2004, passed by the learned Single Judge dismissing the application filed by the appellant/plaintiff praying for grant of an injunction. The appellant as plaintiff filed a Suit for declaration and injunction in respect of the suit property. Along with the said Suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 was also filed by the appellant/ plaintiff praying for a restraint order restraining the defendant/respondent from alienating, selling or disposing of the suit property. The said application was considered by the learned Single Judge who, after due consideration of the pleas taken, dismissed the application holding that on consideration of the prima facie case, balance of convenience and equity, no case is made out for grant of injunction. The said order is challenged in this appeal on which we have heard the learned counsel appearing for the parties. ( 2 ) A bare perusal of the impugned order would indicate that the appellant/plaintiff suppressed very vital and material information which were not disclosed. The appellant/plaintiff did not bring on record several documents along with the plaint such as the registered general power of attorney as also the will dated 1st September, 2004. No whisper is made about the execution of the aforesaid documents by the appellant/plaintiff either in the plaint or in the. application filed for interim orders. The appellant has taken up a plea in the present appeal that respondent No. 1 forced appellant No. 1 to enter into an agreement to self the property in question for a sum of Rs. 24,24,500/- only, which is much lower than the market price. Further plea of the appellant/plaintiff is that due to fact that the plaintiff is a resident of Malaysia, he had no option but to sign the agreement to sell under coercion. It was also alleged that the respondent did not sign the said agreement to sell and retained the original agreement to sell with him. It was submitted that only a photocopy of the said agreement to sell was handed over to the appellant. It was also stated that earnest money was paid by the respondent by two cheques of one lac each which were encashed by the appellants. Thereafter, the agreement to sell was also executed for a sum of Rs. It was submitted that only a photocopy of the said agreement to sell was handed over to the appellant. It was also stated that earnest money was paid by the respondent by two cheques of one lac each which were encashed by the appellants. Thereafter, the agreement to sell was also executed for a sum of Rs. 12,12,000/- with respondent No. 1 and for a sum of RS. 12,12,500/- with respondent No. 2, who is the wife of respondent No. 1, for sale of the suit property. The learned counsel for the appellant has submitted that in that view of the matter, the respondents do not and cannot claim any right and title in respect of the suit property and consequently they should not be allowed to make any construction in the suit property and a restraint order is required to be passed in that regard. ( 3 ) ON appreciation and scrutiny of the record, however, we find that although a restraint order was sought for, but no such order was passed by the learned Single Judge as a result of which the earlier construction which was existing in the suit property was demolished and a new construction was made which is also now complete. In that view of the matter the application seeking for injunction itself could be said to have become infructuous. Be that as it may, since the issue was considered by the learned single Judge, which is under challenge in this appeal, we would like to give / our decision and opinion on the issue posed before us. ( 4 ) THE specific case of the respondent/defendant is that the property in question was sold by the appellants in the month of August, 2001 under registered general power of attorney and sale deed dated 1st September, 2001. During the aforesaid period not only the registered general power of attorney was executed but other connected documents were also executed in the office of the Sub-Registrar. It is also the specific case of the respondent/defendant that the appellant/plaintiff appeared before the sub-Registrar and himself executed the said documents upon receipt of the entire sale consideration of the property in question. It is also the specific case of the respondent/defendant that the appellant/plaintiff appeared before the sub-Registrar and himself executed the said documents upon receipt of the entire sale consideration of the property in question. Records indicate that the appellant/plaintiff came to India in August, 2001, and on 31st August, 2001 he received the entire sale consideration for the property and on receipt of such consideration, executed the documents which are signed by him. Even on the next date. e. 1st September, 2001, the appellant/plaintiff executed the registered general power of attorney in favour of both the respondents, after receipt of the entire consideration. He intentionally did not make a disclosure either about the receipt of the aforesaid amount or execution of the documents and suppressed the said facts in the pleadings filed in the suit. On receipt of the consideration amount and on execution of the documents, possession of the property in question was also handed over by the appellant/plaintiff to the defendants on the basis of and in view of execution of the agreement to sell. The aforesaid documents were signed by the plaintiff himself and in case he was coerced to sign and was not paid the entire consideration amount, the appellant/plaintiff could have agitated the matter in various and different manners and modes before the appropriate forum. The suit now is filed by the appellant/plaintiff only in the year 2004. e after three years of execution of the aforesaid documents to which the appellant/plaintiff was a signatory and executant. We have looked into all the aforesaid documents and such documents also indicate that the entire sale consideration amount has been received, which is acknowledged by the appellant/plaintiff himself in those documents. Therefore, the plea raised that he did not receive the entire consideration amount and that he was coerced to sign the documents is ex facie found to be moonshine and an afterthought to wriggle out from the resultant situation and position, with the intention to make undue gains. ( 5 ) HAVING gone through the impugned order passed by the learned single Judge, we find no error in any of the findings recorded by the learned single Judge. The said findings have been arrived at on appreciation of the records and could be the only conclusion which could be arrived at on the interpretation of the entire documents and on consideration of the records. The said findings have been arrived at on appreciation of the records and could be the only conclusion which could be arrived at on the interpretation of the entire documents and on consideration of the records. The appeal, therefore, has no merit and is dismissed. We, however, make it clear that the views and opinions expressed herein are meant only for the purpose of deciding the injunction application. The suit shall be decided on its own merit and on the basis of the evidence on record which would be led by the parties. No cost.