Research › Search › Judgment

Delhi High Court · body

2009 DIGILAW 808 (DEL)

Rajinder Singh v. Manjit Singh

2009-07-27

ARUNA SURESH

body2009
JUDGMENT ARUNA SURESH, J. 1. By this common order, I shall dispose of two applications; one filed by the plaintiff under Order 39 Rule 1 & 2 CPC and the other filed by defendants No. 1 and 2 under Order 39 Rule 4 CPC for vacation of the ex-parte ad interim order passed by this court on 17th August, 2007. 2. Briefly narrated the case of the plaintiffs is that Plaintiff No.1 and defendant No.1 are real brothers. Plaintiff No.2 is the wife of Plaintiff No.1 whereas defendant No.2 is the wife of defendant No.1. Parties to the suit purchased a residential plot No.43, Jasola, Pocket 1, behind Apollo Hospital Delhi, admeasuring 250.14 sq. metres jointly from the DDA in an auction. Perpetual Lease Deed dated 22nd June, 2005 duly registered in favour of the parties was executed by the DDA/defendant No.3. Defendant No.1 had acted for and on behalf of the plaintiffs as their Special Power of Attorney holder at the time of execution and registration of the Perpetual Lease Deed by virtue of Power of Attorney executed by the plaintiffs in favour of defendant No.1 on 1st October, 2004 duly registered at the office of the Sub Registrar. Plaintiffs along with their children left for USA in the year 2004 after execution of Power of Attorney and Letter of Authorization, etc. including Power of Attorney dated 1.10.2004 in favour of defendant No.1 empowering him to act on their behalf in respect to their half un-demarcated share in the said immoveable property. Plaintiffs also executed a Power of Attorney and Letter of Authorization, etc. in favour of defendant No.1 in USA and sent them to defendant No.1 and 2 to act upon the same as they had trust and confidence on defendant No.1 being Plaintiff No.1’s younger brother. 3. In the month of May, 2007, plaintiffs came to know that defendants No.1 and 2 were negotiating for the sale of the suit property without informing and without obtaining consent of the Plaintiffs. Plaintiffs therefore, executed Deed of Revocation of General Power of Attorney dated 24th May, 2007 whereby they revoked Power of Attorney dated 1.10.2004 issued by them in favour of defendant No.1 and also all other Power of Attorneys given in favour of defendant No.1 thereafter. Plaintiffs therefore, executed Deed of Revocation of General Power of Attorney dated 24th May, 2007 whereby they revoked Power of Attorney dated 1.10.2004 issued by them in favour of defendant No.1 and also all other Power of Attorneys given in favour of defendant No.1 thereafter. Plaintiffs also got issued a Public Notice dated 24th May, 2007 in ‘Sunday Statesman’ informing the public that defendant No.1 had no authority to do any act, deed of transaction on Plaintiffs behalf in respect of the suit property. Necessary intimation was also sent to Sub Registrar, Mehrauli, Sub Registrar Aruna Asaf Ali Road and DDA. Plaintiffs apprehended, on the basis of reliable information received by him that, defendants would in illegal manner sell, alienate, transfer or part with possession of the half un-demarcated share of the plaintiffs in the suit property, thereby causing wrongful loss to them and undue gain to themselves. Hence, the present application seeking temporary injunction against defendants No.1 and 2 for restraining them from alienating the suit property in any manner or creating any third party interest in the same. 4. Defendants have contested the application and also as stated above, filed an application seeking vacation of the ex-parte ad interim injunction granted in favour of the plaintiffs. Defendants have contended in their reply that plaintiffs had no right, title or interest in the suit property in view of Memorandum of Understanding (MOU) executed between the parties on 1.10.2004, pursuant to which the plaintiffs sold their entire right and claim over the property and gave up their 50% undivided share in the suit property in favour of defendant No.1 on receipt of payment of Rs.14,50,000/- vide receipt dated 1.10.2004. The Plaintiffs also executed General Power of Attorney and Special Power of Attorney in favour of defendant No.1 granting all rights and interest in the suit property including the sale, alienation, etc. of the property. Besides, plaintiffs also executed Indemnity Bond and a Notarized Will in favour of defendant No.1 on 1.10.2004 itself to the exclusion of their right, title or interest in the suit property by bequeathing the same in favour of defendant No.1. of the property. Besides, plaintiffs also executed Indemnity Bond and a Notarized Will in favour of defendant No.1 on 1.10.2004 itself to the exclusion of their right, title or interest in the suit property by bequeathing the same in favour of defendant No.1. The Plaintiffs also executed another Irrevocable General Power of Attorney (IGPA) and Irrevocable Special Power of Attorney (ISPA) in favour of defendant No.1 on 18th March, 2005 pertaining to the suit property duly notarized by the Indian Embassy USA empowering defendant no.1 to sell, mortgage, gift or release the said property in any manner. 5. It is further averred that the defendants had paid the entire consideration amount of Rs.80,50,000/- to the DDA for the purchase of the suit property. In lieu of plaintiff No.1 depositing EMI of Rs.51,974/- for the repayment of the loan taken from the Bank for the purchase of the property, defendant No.1 had been depositing the amount of Rs.52,000/- in the account of Plaintiff No.1 and Plaintiffs did not pay any amount even for repayment of the loan and that plaintiff No.1 was facing criminal charges and he fled to USA and has been declared Proclaimed Offender in the criminal proceedings pending against him. Defendant No.1 vide two registered agreements to sell dated 26th May, 2006 sold 50% share of the suit property to defendant No.2 and that defendant No.2 is the owner of 75% of the property and defendant No.1 is the owner of 25% of the property. The defendants have no intention to sell the suit property but intend to build a residential house in the said property and reside with their mentally retarded child. 6. The defendants have also challenged the maintainability of the suit on the principle of acquiescence and estoppels and it is prayed that the application filed by the plaintiffs under Order 39 Rule 1 and 2 CPC deserves dismissal and the ex-parte ad interim order granted in their favour be set aside. 7. I have heard Mr. B.T. Singh, learned counsel for the plaintiffs, Mr. Sandeep Sethi, learned senior counsel for defendant No.1 and 2, Ms. Amrit Kaur Oberio, learned counsel for defendant No.3 DDA and have carefully perused the record. 8. The admitted facts in the case are:- (a) Parties jointly purchased a plot No.43, Jasola, Pocket 1, behind Apollo Hospital Delhi, admeasuring 250.14 sq. metres from DDA in an open auction. Sandeep Sethi, learned senior counsel for defendant No.1 and 2, Ms. Amrit Kaur Oberio, learned counsel for defendant No.3 DDA and have carefully perused the record. 8. The admitted facts in the case are:- (a) Parties jointly purchased a plot No.43, Jasola, Pocket 1, behind Apollo Hospital Delhi, admeasuring 250.14 sq. metres from DDA in an open auction. (b) DDA executed a Perpetual Lease Deed dated 22nd June, 2005 duly registered with the registrar in favour of the parties which was signed by defendant No. 1 as attorney of the plaintiffs. (c) Plaintiffs had executed a Power of Attorney on 1.10.2004 in favour of defendant No.1 which was also got duly registered on the same day with the Sub Registrar Aruna Asaf Ali Road in respect of the suit property. (d) The Plaintiffs also executed a MOU, Indemnity Bond, a Will and a receipt for Rs.14,50,000/- which he had received on 1.10.2004 itself in favour of defendant No.1. The Plaintiffs executed another General Power of Attorney and Special power of Attorney in favour of defendant No.1, at USA where they are residing, duly notarized by Indian Embassy at USA on 18th March, 2005. (e) Defendant No.1 entered into two separate agreements to sell dated 26.5.2006 for sale of the half portion of the plot in dispute in favour defendant No.2, his wife for a total consideration of Rs.21,00,000/- each (total Rs.42,00,000/-) by virtue of Power of Attorney dated 18th March, 2005. (f) Plaintiff No.1 revoked the Power of Attorney dated 1.10.2004 in favour of defendant No.1 vide revocation deed dated 30th May, 2007 and Plaintiff No.2 revoked the Power of Attorney dated 1.10.2004 on 31st July, 2007 duly attested by Assistant Consular Officer, Consulate General of India, New York. 9. Mr. B.T. Singh, Advocate appearing for the Plaintiffs has argued that the earnest money for a sum of Rs.20,12,500/- for the purchase of the suit plot was paid to DDA out of the joint resources. Since the plaintiffs had to travel abroad in connection with his business, defendant No.1 taking advantage of the circumstances prevailed upon the plaintiffs to leave with him some signed blank papers and also executed a GPA in his favour so that plaintiffs interest in the property jointly owned by them could be taken care of and management properly done. Since the plaintiffs had to travel abroad in connection with his business, defendant No.1 taking advantage of the circumstances prevailed upon the plaintiffs to leave with him some signed blank papers and also executed a GPA in his favour so that plaintiffs interest in the property jointly owned by them could be taken care of and management properly done. It is submitted that Section 17 of the Registration Act requires that all documents relating to immoveable property, in case they contain a clause extinguishing a right in such property, have to be compulsorily registered and also receipts acknowledging consideration on account of such extinction of right have to be compulsorily registered. None of the documents dated 1.10.2004, which have been fabricated by defendants No.1 and 2, are registered and therefore those documents cannot be looked into by the court while deciding this application as they are inadmissible in evidence. The receipt which is shown to have been notarized was not actually notarized on 1.10.2004 which could be seen after summoning the record of the concerned Notary Shri R.P. Gupta, Advocate. 10. It is emphasized that since DDA has refused to accept the Power of Attorney dated 1.10.2004, the plaintiffs had to execute a GPA and SPA on 18th March, 2005 on the basis of which a Lease Deed was executed by DDA on 22nd June, 2005 and therefore the earlier Power of Attorney and other documents executed on 1.10.2004 became non actionable. 11. It is further argued that apprehension of the plaintiffs that defendant No.1 would sell away the property is proved to be true in view of the two agreement to sell executed by defendant No.1 in favour of his wife defendant No.2 on 26.5.2006 and that since the interest of the four parties to the suit as co-lessees are indivisible and they hold impartible lease hold ownership rights, the transactions of sale were in violation of terms of the Perpetual Lease. No permission was obtained from DDA and defendant No.2 could not have possessed Rs.40,00,000/- on the date of the transaction. It being a same transaction, Plaintiffs liability as guarantor for the loan is still subsisting. No permission was obtained from DDA and defendant No.2 could not have possessed Rs.40,00,000/- on the date of the transaction. It being a same transaction, Plaintiffs liability as guarantor for the loan is still subsisting. Had the plaintiffs really intended to relinquish their right in the property in 2004, subsequent execution of Power of Attorney dated 18.5.2005 by them was invalid and could not have been invoked by defendant No.1 for selling plaintiffs half share in the property in favour of defendant No.2. 12. It is further argued that Defendant No.1 failed to inform about his entering into agreement to sell their share of the plot in suit in favour of his wife defendant No.2 and the said two agreements have been executed without the knowledge of the plaintiffs. It is emphasized that since plaintiffs have a right in the suit property and the Power of Attorney executed in favour of defendant No.1 has been revoked the balance of equities tilt in favour of the plaintiffs. The Plaintiffs would suffer irreparable loss and injury if their interest in the property is not protected. Hence, it is prayed that the interim order of this court dated 17th August, 2007 be made absolute. 13. Mr. Sandeep Sethi, learned senior counsel for defendants No.1 and 2 has argued that on persistent harassment and pressure of the plaintiffs the defendants made the plaintiffs as the co-sharer to join in the successful bidding of the plot and the entire earnest money was deposited by defendant No.1 from his own personal resources. Defendant No.1 has been paying the installments for repayment of the loan amount of Rs.44,27,000/- which was got sanctioned by the parties from the Citibank for payment of the balance consideration amount to the DDA. Plaintiffs were also shown as co-borrowers. Plaintiffs contributed a sum of Rs.14,50,000/- but subsequently they started harassing the defendants and insisted to sell the said property. It is argued that because of this harassment, plaintiffs were repaid their amount of Rs.14,50,000/- and MOU along with a Will, receipt, Indemnity Bond, etc. were executed by the plaintiffs in favour of the defendants thereby relinquishing their half undivided share in the property in favour of defendant No.1. It is argued that because of this harassment, plaintiffs were repaid their amount of Rs.14,50,000/- and MOU along with a Will, receipt, Indemnity Bond, etc. were executed by the plaintiffs in favour of the defendants thereby relinquishing their half undivided share in the property in favour of defendant No.1. A General Power of Attorney along with Affidavit was also executed on 1.10.2004 by plaintiff No.1 in favour of defendant No.1 granting him all rights including but not limiting to sale of the said property. 14. It is further argued that the MOU regarding a family settlement does not fall within the ambit of Section 17 of the Registration Act and is not compulsory registrable. The Plaintiffs withheld the necessary documents and facts from the court while seeking interim relief. It is further argued that the installments of the loan amount were being paid from the account of the Wall Décor in the Bank of Rajasthan, the sole proprietorship of defendant No.1 and defendants have already paid substantial loan amount to the bank whereas the plaintiffs have not paid any installments to the bank. Once plaintiff No.1 has admitted having executed a GPA, he cannot be allowed to deny the rest of the documents executed on the same day. It is argued that plaintiffs have fled to USA with a view to avoid their arrest and not for any business reasons. The defendants are in need of a house because of their mentally retarded child as at present they are residing on the third floor which is not conducive to the said needs of their son. The defendants also claim that they have already obtained sanctioned plan for the construction of the suit property. 15. It is emphasized by the learned counsel for the defendants that Power of Attorney dated 18th March, 2005 empowers defendant No.1 to sell, mortgage, gift or release the said property in any manner. It is also pointed out that the suit is not properly valued for purposes of court fee as the plaintiffs had valued the half demarcated share of the suit property at Rs.27,50,000/- and as per their own admission, the suit property is atleast of the value of Rs.1.5 crores and that too in the year 2004. It is also pointed out that the suit is not properly valued for purposes of court fee as the plaintiffs had valued the half demarcated share of the suit property at Rs.27,50,000/- and as per their own admission, the suit property is atleast of the value of Rs.1.5 crores and that too in the year 2004. It is also argued that no prior permission as contemplated by Clause 4 (a) of the Lease Deed is required for an inter-lessee transfer of the suit property, the application, therefore, is devoid on merits and deserves dismissal. 16. The Plaintiffs though have claimed themselves to be owner of 50% share of the suit property having purchased the same jointly with defendants in an open auction held by DDA for a total consideration of Rs.80,50,000/-. Perusal of the plaint indicates that plaintiffs have no where disclosed as to how much money was contributed by them for the purchase of the said plot, especially when defendants have categorically taken a stand that the entire plot was purchase by them from their own money. During the course of arguments it is stated that the amount of Rs.20,12,500/- for the earnest money was paid to the DDA out of joint resources. The plaint lacks material particulars. Even the reply of the application under Order 39 Rule 4 CPC lacks particulars about the alleged joint resources and also who was responsible for handling the said joint resources. 17. It is not the case of the plaintiffs that they were doing business with defendant No.1 or were having any common resource of income. There are sufficient documents to show that the sale consideration amount was paid by the defendants. The balance amount of sale consideration was paid after obtaining loan from Citibank by the parties jointly. According to the defendants the installments are being paid by them from the firm of defendant No.1. Admittedly, the plaintiffs have not made payment of any single installment towards the loan amount. He has tried to allege that he was only a guarantor. The fact remains he being the joint owner of the property was a joint borrower of the loan and equally responsible to pay installments to the bank to clear of the property from the mortgage. 18. It is admitted case of the parties that Rs.14,50,000/- were contributed by the plaintiffs for the purchase of the suit property. The fact remains he being the joint owner of the property was a joint borrower of the loan and equally responsible to pay installments to the bank to clear of the property from the mortgage. 18. It is admitted case of the parties that Rs.14,50,000/- were contributed by the plaintiffs for the purchase of the suit property. This money was received back by the plaintiffs as is evident from the receipt dated 1.10.2004. Prima facie, therefore, it is clear that plaintiffs did not contribute any money for payment of the sale consideration of the suit property. 19. Besides Power of Attorney, which is a registered document executed by plaintiff No.1 in favour of defendant No.1 on 1.10.2004, plaintiff No.1 does admit his signatures on the other documents namely, MOU, receipt for Rs.14,50,000/-, Indemnity Bond, a Will, Affidavit along with Power of Attorney executed on 1.10.2004 only. It is not the case of the plaintiffs that the defendants had got his signatures on some blank papers. He himself has averred in the plaint that besides Power of Attorney he had also executed Special Power of Attorney and Letters of Authorization in favour of defendant No.1. Defendants have placed on record copy of Affidavit dated 1.10.2004 sworn in by Plaintiff No.1. This affidavit confirms execution of various documents like Power of Attorney, Indemnity Bond, Will etc. by Plaintiff No.1 in favour of defendant No.1. Plaintiff No.1 also admitted having executed Memorandum of Understanding dated 1.10.2004 between the plaintiffs and defendants in respect of the suit property. 20. As per the terms contained in MOU, the plaintiffs have agreed to relinquish their half undivided share in the suit property in favour of defendants on receipt of sum of Rs.14,50,000/- in full and final settlement. The defendants were made liable to pay balance cost along with interest to the bank for which plaintiffs were not liable and responsible. With the result defendants made payment of the loan installments to the bank regularly without even calling upon the plaintiffs to pay a single installment. A joint owner or co-sharer of the property is expected to pay half of the loan. 21. With the result defendants made payment of the loan installments to the bank regularly without even calling upon the plaintiffs to pay a single installment. A joint owner or co-sharer of the property is expected to pay half of the loan. 21. Prima facie all these documents indicate that since plaintiffs wanted to settle in USA, they had no intention to keep their interest in the suit property alive and, therefore, they did not invest any money for the purchase of the plot; rather executed aboved noted documents on 1.10.2004. 22. By virtue of Power of Attorney dated 1.10.2004 plaintiffs authorized defendant No.1 to sell their share in the suit property in whole or in part or execute the Sale Deed, present the same for registration, admit the execution, receive the consideration amount, issue receipt and get the same registered and also to transfer the share of the plaintiff in the suit property in whole or in part, to sell, gift, mortgage or release or otherwise and execute relevant documents and papers, get the same registered with the competent registering authority. Besides, defendant no.1 was also given other rights to deal with the property in his own way. 23. Even if the submissions of the plaintiffs made for the first time during the course of arguments while seeking vacation of the stay order that defendant No.1 had got some blank papers signed from him which he subsequently forged in his favour is considered, execution of Power of Attorney dated 18th March, 2005 at USA by the plaintiff belies his own case. This Power of Attorney executed by both the Plaintiffs was attested by Ramesh Chand, Assistant Consular Officer, Consulate General of India, New York. By virtue of this Power of Attorney, the plaintiffs authorized defendant No.1 to sell the suit plot whole or in part, gifts, mortgage, release or otherwise, to execute the Sale Deed or any other relevant docuemnt, to present the same for registration, to admit the execution, to receive the consideration amount, to issue receipt and to get the same registered with the competent registering authority. Not only this, defendant No.1 was also authorized to apply and obtain permission to sell in respect of the said plot of land from the Delhi Development Authority or any other concerned authority and execute the requisite documents. Not only this, defendant No.1 was also authorized to apply and obtain permission to sell in respect of the said plot of land from the Delhi Development Authority or any other concerned authority and execute the requisite documents. Besides, defendant No.1 was also given all the powers to deal with DDA and other authorities for the execution of the documents for construction of the property, etc. 24. Perpetual Lease Deed dated 22nd June, 2005 has been signed by defendant No.1 for himself as well as for and on behalf of the plaintiffs as their Power of Attorney holder. 25. Revocation Deed dated 24th May, 2007 speaks specifically of revocation of Power of Attorney dated 1.10.2004. True that, there is one line inserted at the end of the document saying all other Power of Attorneys signed and thereafter attested in USA also stands revoked. The fact remains, Power of Attorney dated 18th March, 2005 does not specifically finds mention in the revocation deed. Be that as it may, the merits of the case are not to be looked into by this court at this stage. Only the prima facie case has to be seen. 26. Two agreements to sell dated 26th May, 2006 were executed by defendant No.1 in favour of defendant No.2 much before the revocation of Power of Attorneys. Therefore, prima facie at the time when these two agreements were entered into between the defendants, defendant No.1 had all the authority to sell the share of the plaintiffs in favour of anyone including defendant No.2. Perusal of the agreements to sell indicate that defendant No.1 referred to Power of Attorney dated 18.3.2005 which authorized him as an attorney of the plaintiffs to sell the property. Power of Attorneys dated 1.10.2004 and 18.3.2005 respectively are Irrevocable Power of Attorneys. 27. Whether these attorneys could be revoked is a question which is to be considered by the court at the relevant stage while deciding the case on merits. 28. Similarly, as regards compulsory registration of MOU dated 1.10.2004 and other connected documents by virtue of Section 17 of the Registration Act is a question to be decided on merits of the case at the relevant stage. Learned counsel for defendant No.1 has referred to various judgments to emphasis that MOU being a family settlement did not need compulsory registration. Similarly, as regards compulsory registration of MOU dated 1.10.2004 and other connected documents by virtue of Section 17 of the Registration Act is a question to be decided on merits of the case at the relevant stage. Learned counsel for defendant No.1 has referred to various judgments to emphasis that MOU being a family settlement did not need compulsory registration. I need not go through these judgments at this stage because any observations of the court at this stage on this issue is likely to prejudice the rights of the parties on merits of the case. 29. As regards valuation of the suit for purposes of court fee and jurisdiction, again this shall be considered at the relevant stage being a mix question of law and facts. 30. Defendants in categorical terms stated in their application that they have no intention to sell the property but intend to raise construction on the same as they need house because of their mentally retarded son as at present they are residing on the third floor of the house where they always have sense of insecurity for the child who does not know the consequences of his movements. 31. Under these circumstances, balance of convenience tilts in favour of the defendants. The plaintiffs have settled abroad and it is the defendants who are deprived of the fruits of the property in which admittedly they have half share if not full. 32. In view of my discussion as above and also considering the defendants’ statement made in the application as well as at the time of arguments of the case that they have no intention to sell the property, to the contrary they intent to construct a house on the same, I find no merits in the application of the plaintiff seeking temporary injunction, apprehension of the plaintiffs being without any basis. 33. Hence, IA No.9240/2007 (Order 39 Rule 1 & 2 CPC) filed by the plaintiffs is hereby dismissed. IA No.11548/2007 (Order 39 Rule 4 CPC) filed by defendants No.1 and 2 is allowed. Ex-parte ad interim order of this court dated 17th August, 2007 is hereby vacated. 34. It is made clear that this order has no reflection on the merits of the case and is without prejudice to the rights of the parties. CS (OS) No.1480/2007 Be listed before the regular Bench on 31st July, 2009.