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2008 DIGILAW 1074 (DEL)

Ramchand Sobhraj Kimatrai v. L. S. Monga

2008-11-21

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: 1. The petitioner is aggrieved by an order dated 28th April 2007 passed by the learned trial court whereby an application under Order 6 Rule 17 of CPC filed by respondent No.1 seeking amendment of the plaint and adding relief of specific performance and possession was allowed. The contention of the petitioner is that the similar application made under Order 6 Rule 17 of CPC filed by the plaintiff was earlier dismissed by the predecessor of learned Civil Judge and the learned Civil Judge wrongly allowed the second application made for the same purpose and that the second application for the same purpose was not permissible under law. 2. The plaintiff filed a suit before the trial court for declaration and permanent injunction. In the suit, the plaintiff pleaded that the defendant No.1 sold him a flat bearing No.H-38, Sarita Vihar, New Delhi-110023 allotted to him by the DDA (defendant No.2). The transaction of sale and purchase was arrived at between the parties for a consideration of Rs.4,10,000/-. The plaintiff paid the entire consideration by way of a bank draft of Rs.4 lac dated 27th December 1995 and Rs.10,000/- in cash on 28th December 1995. Defendant No.1 executed documents of transfer namely agreement to sell and purchase, receipt of Rs.4,10,000/-, indemnity bond, Will, Special Power of Attorney and General Power of Attorney on 28th December 1995. The documents were attested by Notary Public in favour of the plaintiff and defendant No.1 also handed over allotment papers in original to the plaintiff along with the payment challans regarding deposit of the cost of the said flat. Defendant No.1 also executed rent agreement in respect of the flat in question and two affidavits that he will not revoke or cancel or withdraw the power of attorney. He also executed an affidavit that the flat in question was free from all encumbrances. In these documents it was stated that the defendant No.1 had given vacant peaceful possession of the said flat to the plaintiff on the spot along with documents concerning thereto. The plaintiff, however, contended that vacant, peaceful possession of the flat was actually not given and he was orally told that the possession of the flat was yet to be given by the DDA to defendant No.1 and same shall be handed over to him whenever the same is delivered to defendant No.1. The plaintiff, however, contended that vacant, peaceful possession of the flat was actually not given and he was orally told that the possession of the flat was yet to be given by the DDA to defendant No.1 and same shall be handed over to him whenever the same is delivered to defendant No.1. The plaintiff in paragraph 14 of the plaint stated that the defendant No.1 has sold and transferred his right, title and interest in the property to the plaintiff and it was plaintiff who was entitled to possession of the property being owner thereof. He wanted a declaration that the plaintiff be declared to be the owner of flat No.H-38, Sarita Vihar by virtue of the documents executed in his favour and a decree of permanent injunction be passed in favour of the plaintiff and against the defendant. 3. Since the defendant No.1 was the allottee of the flat, the possession of the flat in due course would have been handed over to him by DDA, defendant No.2. Due to some dispute regarding payment of amount to DDA, defendant No.1, approached the Consumer Redressal Forum. The complaint of defendant No.1 was allowed partly by Consumer Redressal Forum and against that decision, defendant No.2 filed an appeal before State Consumer Redressal Commission. On coming to know of the appeal and the proceedings in November 1999, the plaintiff filed an application before State Commission in the appeal, to be impleaded as a party and he also filed an application for stay of delivery of possession. The plaintiff also lodged a complaint dated 2nd December 1999 before DCP South that he has been cheated by defendant No.1 and requested DCP South to take action defendant No.1 since defendant No.1 having sold the flat to plaintiff, was seeking possession illegally. 4. Defendant No.1 in his response to the application under Order 1 Rule 10 CPC stated that the plaintiff had no locus standi. He was not in any way connected with the flat and he wanted to grab the property of the defendant with dishonest intention and the documents relied upon by the plaintiff were completely forged as the plaintiff had obtained signatures from defendant No.1 by fraud on some blank papers and on some blank stamp papers. The defendant No.1 signed the same in good faith. Defendant No.1 was an NRI. He had to stay abroad for most of the time. The defendant No.1 signed the same in good faith. Defendant No.1 was an NRI. He had to stay abroad for most of the time. The plaintiff was appointed as attorney by defendant No.1 for limited purpose of pursuing the allotment of the flat with DDA and on a visit of defendant No.1 to India, the plaintiff got many blank papers signed from him with the evil intentions of grabbing the property. 5. In the written statement also, defendant No.1 had stated that the plaintiff was appointed as Manager of M/s J. Kimatrai and Company and he was authorized, by approval of the said company, to conduct the business. The defendant No.1 was one of the partners of the company. The plaintiff gained faith of defendant No.1 and other partners and kept on cheating and misappropriating the funds of Ms J. Kimatrai and Company and after gaining faith of defendant No.1 by virtue of his behavior, he approached him and requested that he will look after and deal with DDA regarding allocation of flat for which defendant No.1 had applied in a Scheme launched by DDA. The defendant No.1 being NRI and most of the times busy with his business activities, agreed to the suggestion of the plaintiff and appointed plaintiff as his special power of attorney by way of an SPA dated 23rd January 1984. In 1993, the plaintiff came to defendant at Mumbai accompanied with his brother P.N. Monga, Advocate saying that he was real brother of plaintiff and was an advocate and would take care of his affairs. The defendant No.1 lodged a consumer complaint dated 13th December 1993 through his brother P.N. Monga as attorney of defendant No.1. The complaint No. was 3567 of 1993. This complaint was decided by the Consumer Forum vide its judgment dated 6th May 1996 and the plaintiffs brother was consistently appearing in the complaint being attorney and counsel of defendant No.1 and thereafter when the appeal was filed before the Consumer District Redressal Commission he represented defendant No.1. All original receipts, challans and registration certificate etc were demanded from defendant No.1 by plaintiff and his brother on the pretext of filing the same with consumer complaint before the District Consumer Forum. He pleaded that the original documents were entrusted to them in good faith. They conspired thereafter to play fraud upon the defendant No.1. All original receipts, challans and registration certificate etc were demanded from defendant No.1 by plaintiff and his brother on the pretext of filing the same with consumer complaint before the District Consumer Forum. He pleaded that the original documents were entrusted to them in good faith. They conspired thereafter to play fraud upon the defendant No.1. Defendant No.1 wrote many letters dated 19th October 1992, 13th November 1995, 20th May, 1996 to the plaintiff and his brother and nowhere stated that property was sold to the plaintiff. In the year 1991, defendant No.1 was informed by the plaintiff vide letter dated 28th February 1991 that a letter from DDA regarding allotment of flat No. H-38, Sarita Vihar was received and same was sent by plaintiff to defendant No.1 for apprising him and defendant No.1 was also told that his presence was needed at Delhi to take physical possession. He visited Delhi several times but plaintiff and his brother kept on evading him. On 12th January 1996, plaintiff with his son D. Monga went to the office of defendant No.1 at Mumbai and told defendant No.1 that various formalities were required to be completed with DDA regarding possession of the flat and in this connection many papers and documents were required to be submitted with DDA from time to time and both of them requested defendant No.1 to put his signatures on various blank papers. In order to avoid harassment and repeated visits to Delhi and having faith in the plaintiff he put his signatures on the papers believing that the papers will be used for submitting letters to DDA for completing formalities as and when required. Later on he came to know that these documents were got signed from him to play forgery on him. He also stated that the plaintiff was a cheater. He was facing FIR No.283 of 1997 under Sections 409, 408, 420, 421 IPC Police Station Chandi Chowk. He was facing another FIR being No. 266 of 1999 under Section 409, 411 IPC, Police Station Chandi Chowk. P.N. Monga, the elder brother, introduced as an advocate by the plaintiff, was also found to be a fraud in an inquiry conducted in FIR No.283 of 1997. It was revealed that he was not an advocate. The Court of Mr. He was facing another FIR being No. 266 of 1999 under Section 409, 411 IPC, Police Station Chandi Chowk. P.N. Monga, the elder brother, introduced as an advocate by the plaintiff, was also found to be a fraud in an inquiry conducted in FIR No.283 of 1997. It was revealed that he was not an advocate. The Court of Mr. A.K. Singh, Metropolitan Magistrate had sought a report from Bar Council of Delhi and Punjab and Haryana and from their reports it came to light that the registration number given by Mr. P.N. Monga was actually the registration number of one Mr. Om Pal Singh Advocate. It was denied that a sum of Rs.4.10 lac was paid as sale consideration to the defendant No.1. It was stated that no consideration at all was paid. The averment made in the agreement to sell of defendant No.1 being in dire need of money was totally false since defendant No.1 was in business and he had been spending huge amount on his stay itself in Delhi as he used stay in a hotel. A draft of Rs.4 lac was handed over by the plaintiff to defendant No.1 when the defendant No.1 was in Mumbai at his office as he wanted to start a garment business for himself and for his son at Linking Road, Bandra, Mumbai. This draft was not at all concerned with the transaction in question and had nothing to do with the property. 6. The suit was filed by the plaintiff on 19th September 2001. The written statement was filed in the Court on 18th February 2002 i.e. the next date of hearing. The plaintiffs contention all along had been that he had become owner by way of these documents and there was no further document to be executed in his favour and, therefore, he should be declared as the owner. The plaintiffs application under Order 39 Rules 1 and 2 CPC was dismissed and thereafter the plaintiff had preferred an appeal before the Appellate Court. Before the Appellate Court, the plaintiffs counsel made following statement: The appellant filed a suit for declaration along with an application under Order 39 Rules 1 and 2. The said Suit was based on agreement to sell, receipt and other documents pertaining to property no.H-38, Sarita Vihar, New Delhi. Before the Appellate Court, the plaintiffs counsel made following statement: The appellant filed a suit for declaration along with an application under Order 39 Rules 1 and 2. The said Suit was based on agreement to sell, receipt and other documents pertaining to property no.H-38, Sarita Vihar, New Delhi. The said suit since was not maintainable, the appellant has already filed an application under Order 6 Rule 17 converting the said suit to a suit for specific performance of the aforesaid agreement. In view of this, I may be permitted to withdraw the said appeal with the permission to file the fresh application under Order 39 Rules 1 and 2 in case the said amendment is allowed by the trial court. 7. Thereafter, the plaintiff made an application under Order 6 Rule 17 of CPC in 2004 seeking amendment in the plaint stating therein that the plaintiff had been ready and willing to perform his part of the contract and was seeking relief of specific performance against the defendant No.1 in terms of the agreement to sell and purchase dated 28th December 1995, in view of the fact that defendant No.1 had failed to fulfill his part of the agreement. He also wanted to add relief that a decree of specific performance be granted in favour of the plaintiff and against defendant No.1 directing defendant No.1 to execute a sale deed for transferring Flat No.H-38, Sarita Vihar, New Delhi in favour of the plaintiff. This application of the plaintiff was dismissed by the Civil Judge on 7th November 2005. The plaintiff did not challenge this order of the dismissal of the application under Order 6 Rule 17 CPC it attained finality. 8. The petitioner made another application under Order 6 Rule 17 CPC wherein he wanted an amendment in the suit in view of order dated 20th September 2005 passed by the State Commission whereby DDA, defendant No.2, was directed to handover the possession of the said flat to defendant No.1, alleging that defendant No.1 now became legally entitled to execute the sale deed in favour of the plaintiff and to handover the possession of the said flat. When the suit was filed there was a dispute regarding the possession and allotment of flat in question between defendant No.1 and 2 since that dispute has been finally settled, defendant No.1 was now under an obligation to execute the sale deed in respect of the flat in favour of the plaintiff. The plaintiff was ready and willing to perform his part of the contract and rather had already performed his part of the contract and defendant No.1 was refusing to perform his part of the contract even after passing of the order dated 20th September 2005 so a decree of specific performance in favour of the plaintiff and against the defendant No. be passed directing the defendant No.1 to execute the sale deed in favour of the flat. It was stated that the cause of action arose on 20th September 2005. 9. The learned Civil Judge vide the impugned order allowed the amendment observing therein that the cause of action of recovery and possession accrued on 20th September 2005 when the possession was received by the defendant No.1 and in order to avoid multiplicity of proceedings, the amendment was allowed. The learned Civil Judge did not even bother to discuss the earlier dismissal of the application of the petitioner for similar relief by his predecessor and did not give reasons why the order passed on the earlier application would not operates as res judicata. He did not even bother to discuss any of the other pleadings or about the maintainability of the suit and his authority to allow the second application under Order 6 Rule 17 CPC after first application was dismissed by his predecessor by a reasoned order. 10. A perusal of the pleadings and documents filed by the plaintiff before the learned Civil Judge shows that plaintiff had asserted that the entire sale transaction was complete and he had already become the owner. A person claims that he had already become the owner of the property cannot seek execution of further documents of ownership from the previous owner of the property. None of the documents on which the plaintiffs suit is based was referred to by the trial court. A person claims that he had already become the owner of the property cannot seek execution of further documents of ownership from the previous owner of the property. None of the documents on which the plaintiffs suit is based was referred to by the trial court. If the learned trial Court would have bothered to refer to these documents, the Court would have found that as per the plaintiffs documents, possession of the property had already been handed over at the time of receiving the consideration. He had already become the owner. The documents relied upon by the plaintiff could not even otherwise looked into in terms of Section 35 of the Stamp Duty Act. The purported agreement to sell in fact was in the nature of a sale deed wherein the entire consideration had moved and the possession of the property had been handed over and the entire transaction stood completed. Such a document is required to be compulsorily registered as it transferred interest of Rs.4,10,000/- in the property. The nomenclature of the document is not material but import of the document is material. An unregistered document transferring title in the property cannot be looked into by the Court. The document should also be duly stamped. 11. The suit filed by the plaintiff was not maintainable and such a statement was made by the plaintiffs counsel before this Court. Since the suit was not maintainable, the only proper course available to the plaintiff was to file a fresh suit as per law. A perusal of the previous order of the predecessor of the Civil Judge would show that earlier amendment application under Order 6 Rule 17 CPC was dismissed on merits including on the ground of limitation. The trial court did not even bother to read the previous order despite the fact that it was specifically stated in reply to the application that the previous application seeking same relief has been dismissed. 12. The application seems to have been allowed by the learned Civil Judge in a cavalier and surprising manner without scrutiny of law and facts and without jurisdiction. The real issue in this case between the parties was about the genuineness of the documents relied upon by the plaintiff. The documents were allegedly executed in 1995. The defendant had denied the genuineness of the documents and had alleged that these were forged documents. The real issue in this case between the parties was about the genuineness of the documents relied upon by the plaintiff. The documents were allegedly executed in 1995. The defendant had denied the genuineness of the documents and had alleged that these were forged documents. None of the facts stated in the application for amendment were new. The excuse of avoiding multiplicity of proceedings given by the trial court was merely a ploy. I find that the order of the Civil Judge is bad in law as well as on facts and is totally an illegal order and is liable to be set aside. 13. In the result, the petition is allowed and the order of the Civil Judge is hereby set aside. No order as to costs.