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2007 DIGILAW 13 (DEL)

S. AVTAR SINGH v. S. GURBACHAN SINGH

2007-01-03

J.P.SINGH, MUKUL MUDGAL

body2007
MUKUL MUDGAL, J. ( 1 ) THIS appeal challenges the order dated 2nd December, 2004 passed by the learned Single Judge dismissing an application under Order XXXIX rule 1 and 2 filed by the appellant No. 1 Shri Avtar Singh (defendant in original suit) for an interim injunction restraining the respondents (plaintiffs in original suit) from transferring, alienating, mortgaging, encumbering the suit property in any manner or creating third party interest. ( 2 ) THE case of the appellant as set up in the present appeal is as under: (a) The Suit Property is situated at No. 12, Curzon Road, New Delhi and belonged to the late Sardar Bahadur Mohan Singh (66%) and Sardar Ujjal Singh (34% ). After the death of Sardar Bahadur Mohan Singh, his share in the suit property devolved equally on his three sons, Gurbachan Singh (Respondent No. 1), the late Jatinder Singh and the late Tajinder Singh (who is being represented by respondents 2 and 3, his son and wife respectively), while after the death of sardar Ujjal Singh his 34% share in the suit property devolved on his widow the late Sardarni Sant Sev Ujjal Singh. The heirs of the late Sardar Mohan Singh occupied the ground floor of the suit property, and a predominant portion of the garage block and servants' quarters while the late Sardarni Ujjal Singh occupied the first floor of the suit property and the remaining servants' quarters. (b) The present suit concerns only the 66% undivided share of the heirs of the late Sardar Bahadur Mohan Singh in the suit property. ECHO is on. (c) On or about 18. 5. 84, the Respondent No. 1, the late Shri Jatinder Singh and the late Shri Tejinder Singh agreed to sell their undivided 22% share each in the said property to Shri Avtar Singh, free from encumbrances and third party rights for a consideration of Rs. 35,00,000/- payable to each (making a total of rs. 1. 05 crores) payable for their total 66% undivided share in the said property. (d) The said Shri Avtar Singh was a leading Indian exporter of footwear and apparel. 35,00,000/- payable to each (making a total of rs. 1. 05 crores) payable for their total 66% undivided share in the said property. (d) The said Shri Avtar Singh was a leading Indian exporter of footwear and apparel. (e) The Respondent No. 1 the late Jatinder Singh and the late Tejinder singh had represented at the time that the construction was inadequate to accommodate their three families, and that they had decided to sell this property so that each brother could apply his share of the sale proceeds in such manner as he deemed fit. However, these co-owners could not immediately sell their share in the said property because of regard for Sardarni Sant Sev Ujjal singh, who was a woman of advanced years and whom they did not wish to inconvenience in any way. (f) It was therefore, agreed by Shri Avtar Singh, Shri Jatinder Singh and shri Tajinder Singh that out of the sale consideration of Rs. 35 lacs payable to each of the brothers for his respective 22% share in the property, a sum of rs. 7,00,000/-representing 20% of the total sale consideration payable to each (making a total of Rs. 21,00,000/-) would be paid at that time according to their requirements, and that the balance sale consideration of Rs. 28,00,000/- payable to each of them would be paid on completion of the sale transaction. It was also agreed that the sale transaction would be completed only upon the death of sardarni Sant Sev Ujjal Singh. Thus, Shri Jatinder Singh and Shri Tajinder singh were obliged to transfer their respective undivided shares in the property to Shri Avtar Singh (appellant No. 1) only upon the demise of Smt. Sant Sev Ujjal singh. (g) It was agreed that meanwhile, upon payment of Rs. 21,00,000/-, Shri avtar Singh would be put in possession of a part of the garage block and servant quarters and surrounding land, while the possession of the remaining property would not be altered until the sale transaction was completed. The transaction was to be completed by Shri Jatinder Singh and Shri Tejinder Singh, by putting shri Avtar Singh in vacant possession of the ground floor of the main building and the balance servant quarters and garages / out houses in their possession. The transaction was to be completed by Shri Jatinder Singh and Shri Tejinder Singh, by putting shri Avtar Singh in vacant possession of the ground floor of the main building and the balance servant quarters and garages / out houses in their possession. They were also required to execute a General Power of Attorney and any other document (s) that Shri Avtar Singh would have required in respect of their shares in the said property in a format satisfactory to him and a Will in respect thereof. (h) Accordingly, in terms of the said agreement, Shri Avtar Singh caused to be paid to the Respondents, Shri Jatinder Singh and Shri Tajinder Singh between May 18, 1984 and January 11, 1985 a sum of Rs. 7 lakhs each to Shri tajinder Singh, Jatinder Singh and Shri Gurbachan Singh (making the total of rs. 21 lakhs) and on completion of the said payment was put in possession of the entire first floor of garage block and land adjoining the garage block in part performance of the said Agreement. (i) The appellant No. 1 after being put in possession of the said premises inducted appellant No. 2 who is his employee into the said premises in January 1985 as his caretaker. This was not objected to by the respondents or anyone claiming through or under them. The appellant attempted to contact the respondents to workout the modalities to complete the sale transactions after he heard that Sardarni Sant Sev Ujjal Singh had died. Legal notice was served by his lawyers dated 1st May 1996 to the respondents. The respondents replied to this notice through letter dated 17th August 1996 admitting the receipt of the said sum of Rs. 21 lakhs but alleging that the said sum was paid to them not by the appellant but by Shri O. S. Kohli respondent No. 4. Preliminary negotiations allegedly took place and an amount totalling Rs. 21 lakhs was paid but Shri Kohli echo is on. then disappeared and his clients were willing to refund the sum of Rs. 21 lakhs. Respondent No. 4 was a property dealer who had dealt with the appellant and the respondents in the past and with whom the appellant had serious disputes to the knowledge of the respondents. The respondents had also filed eviction petition against appellant No. 2 and Respondent No. 4. 21 lakhs. Respondent No. 4 was a property dealer who had dealt with the appellant and the respondents in the past and with whom the appellant had serious disputes to the knowledge of the respondents. The respondents had also filed eviction petition against appellant No. 2 and Respondent No. 4. In further response to the said notice, respondents 1 to 3 also filed Suit No. 82/97 before this Court against the appellant and Respondent No. 4 seeking declaration, possession and permanent injunction. The late Sardar Jitender Singh died on 8th July 2004 and thereafter the respondent vacated the premises and started showing the premises to proposed buyers. When the appellants came to know that the respondent No. 1 to 3 were trying to sell the suit property an application seeking ad-interim injunction against the respondents 1 to 3 from parting with possession, alienating or creating a third party right was filed by the appellant in this Court. This application was dismissed by the impugned order dated 2nd December, 2004 ( 3 ) THE respondents' (original plaintiffs') case was that Respondent No. 4 (Defendant No. 2) Mr. O. S. Kohli had approached them sometime in the year 1984 with a proposal for a collaboration agreement regarding re-development of the property and had paid a sum of Rs. 21 lakhs in this regard. However Respondent no. 4 disappeared thereafter. He was also inducted as tenant in garage block of the property and he inducted some sub-tenant for which an eviction petition was filed before the Rent Controller. Since the appellant No. 1 served a legal notice dated 1. 5. 1996 regarding the alleged agreement to sell, the plaintiffs filed a suit in January 1997 seeking declaration to the effect that no such agreement was ever entered into nor possession handed over the the Appellant no. 1 in part performance of the said agreement. In their counter-claim to the suit filed by the Respondents, the defendants 1, 3 and 4 in the original suit took the stand that though the initial introduction was through Respondent no. 4, Mr. Kohli, but all material dealings in connection with the agreement to sell in respect of this property were held directly between Plaintiffs 1 and 2 (Gurbachan Singh and Jitender Singh) and Defendant No. 1 (Avtar Singh ). 4, Mr. Kohli, but all material dealings in connection with the agreement to sell in respect of this property were held directly between Plaintiffs 1 and 2 (Gurbachan Singh and Jitender Singh) and Defendant No. 1 (Avtar Singh ). They further stated that since they did not want to cause any disturbance to Sardarni sant Sev Ujjal Singh during her lifetime, the execution of the sale deed was only to take place after her demise. ( 4 ) MR. Sidharth Mridul, the learned Senior Counsel appearing for the appellant, submitted that since both the appellants and the respondent's families were from well known respectable Sikh families of Delhi, the amount of rs. 21 lakhs was given on mere trust to the respondent and was not supported by any agreement in writing. He submitted that the agreement to sell was oral but that it was substantiated by part payment and receipt of Rs. 21 lakhs as consideration. He further submitted that no action was taken since it was agreed by the parties that no inconvenience should be caused to Sardarni Sant sev Ujjal Singh who at that time was in possession of the first floor of the property and servant quarters. Mr. Mridul urged that though Sardarni Sant Sev singh Ujjal died on 28th April 1994, this fact became known to the appellant only in the year 1996 and consequently on 1stmay 1996 the legal notice setting out the case of the petitioner was issued. He further submitted that the fact that the payment was made by the appellant is discernible from the clearance of the amount of Rs. 21 lakhs from the accounts of the appellant as evident from the three certificates furnished by Dena Bank. According to Mr. Mridul, the said payment constituted a strong pillar of the prima facie case of the appellants entitling them to an interim injunction. He further submitted that this payment was further substantiated by the fact that from 1985 Sudarshan Lal Arora, appellant No. 2 an employee of the petitioner occupied the garage portion. In the year 1996 the appellant filed an eviction petition for the eviction of sudarshan Lal Arora. He further submitted that it is surprising that for 11years a sub-lease lessee such as appellant was in possession and in that echo is on. period no rent was paid for the garage and no grievance was made by the appellant. In the year 1996 the appellant filed an eviction petition for the eviction of sudarshan Lal Arora. He further submitted that it is surprising that for 11years a sub-lease lessee such as appellant was in possession and in that echo is on. period no rent was paid for the garage and no grievance was made by the appellant. ( 5 ) MR. Sandeep Sethi, the learned Senior Counsel, appearing for the respondent submitted that there is no explanation why from 1984 to 1996 there was no insistence on the specific performance of the alleged agreement. He submitted that it is a fantastic claim that a property worth more than Rs. 5 crores and of which according to the plaintiff his share was 1. 5 crores in the year 1984 could not have an agreement to sell executed if Rs. 21 lakhs was paid as part consideration. He submitted that the mere fact that an oral agreement has been alleged in respect of an extremely valuable property in the heart of delhi was in itself sufficient ground to deny interim injunction. He further submitted that in any case, no valid explanation had been furnished for not filing the suit in respect of such such a valuable property from 1984 to 1996 and that even the agreement does not aver when precisely the agreement was to be performed. This was another reason why the learned Single Judge did not grant an interim injunction. He further submitted that even the first notice dated 1st May 1996 and the second notice dated 3rd December, 1996 have put forth varying claims. In the first notice, it was stated that the payment was made through 'representatives', whereas in the second notice it is averred that alleged payments were delivered to the respondents 1 to 3 directly by the appellant. ( 6 ) THE learned Single Judge concluded that there was no written agreement to sell and that interim injunction could not be granted given the circumstances of this case. The relevant findings of the Learned Single Judge as found in the impugned order declining the interim injunction sought by the defendants in their counter claim are as under: (a)There was no written agreement to sell. The Defendant himself did not plead that there was any written agreement to sell and his case was based solely on the understanding, alleged to have been arrived in 1984. The Defendant himself did not plead that there was any written agreement to sell and his case was based solely on the understanding, alleged to have been arrived in 1984. (b)The Plaintiffs admitted to the receipt of Rs. 21 lakhs from Mr. Kohli, defendant No. 2 sometime in the year 1984-85 in relation to collaboration agreement for a re-development of the property. (c)In order to make out agreement to sell, the existence of following four ingredients has to be proved : (1) the consideration (2) certainty as to the parties namely the vendor and vendee; (3) certainty as to the property to be sold; (4) certainty as to other terms relating to conveyance e. g. time for completion of the contract etc. (d)In the present case two of the ingredients (1) name of the vendee (2) date of completion of the contract are conspicuously uncertain since the plaintiffs completely denied that there was any such agreement with the defendant No. 1. (e)The uncertainty with regard to date of execution of the sale deed is all the more baffling since property of such high value cannot be tied down indefinitely by paying token money/advance money on mere understanding in the absence of a concrete agreement to sell. (f)For twelve years, the defendant kept complete silence. First legal notice was sent only in May 1996 calling upon the plaintiff to execute the sale deed even though Sardarni Sant Sev Ujjal Singh died in the year 1994. (g)It does not appear that there was any consensus between the parties to formally execute an agreement to sell. ECHO is on. (h)In these circumstances, it is difficult to infer that any concluded agreement to sell existed between the parties. ( 7 ) IN our view, there is no substance in the appeal quite apart from the above findings of the learned Single Judge with which we fully agree and affirm. The circumstances under which the payment of Rs. 21 lakhs was made are not very clear. At this prima facie stage, the respondent's stand that this was a development agreement with builders cannot be ruled out as an improbable stand. The non-payment of rent for a small portion of the property comprising the garage is too small an amount to warrant any serious doubt in the context of the large value of the property. At this prima facie stage, the respondent's stand that this was a development agreement with builders cannot be ruled out as an improbable stand. The non-payment of rent for a small portion of the property comprising the garage is too small an amount to warrant any serious doubt in the context of the large value of the property. The explanation for delay given by the appellants from 1984 to 1996 in respect of such a valuable property that it was out of regard and respect for Sardarni Sant Sev Ujjal, in our view, is not worthy of credence. Given the fact that there were two highly respected Sikh families from Delhi it is not possible to believe at this stage that from 1994 to 1996 the appellant did not know of Sardarni Sant Sev Ujjal Singh's death. In any event, it is not prima facie likely, that for a property for which the share of the appellants was over Rs. 1. 05 crores, no written agreement was entered into. Even the two notices dated 1. 5. 1996 and 3. 12. 1996 show considerable variance in the case set up by the appellant. The principal ground of variance in the two notices is that the first notice states that payment was made through 'representatives', whereas in the second notice it is averred that alleged payments were delivered to the respondents 1 to 3 directly by the appellant. In such circumstances, the grant of an injunction, under Order XXXIX Rule 1 and 2 CPC can certainly not be justified. ( 8 ) IN this view of the matter, we are fully satisfied that there is no infirmity in the order of the learned Single Judge and any interference is not warranted by this Court in appeal. The appeal is accordingly dismissed.