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2010 DIGILAW 969 (DEL)

Raj Rani Sharma v. Gayatri Kukreja

2010-09-20

V.K.SHALI

body2010
V.K. Shali, J. IA Nos. 4897/07, 7083/08 & 15209/08 1. This order shall dispose of three applications bearing IA Nos. 4897/2007 (u/O 39 Rules 1-2 CPC), 7083/2008 (u/O 39 Rules 1 and 2 CPC) and 15209/2008 (u/O 39 Rule 4 CPC). 2. Briefly stated the facts leading to filing of the present applications are that the plaintiff filed a suit for declaration and in the alternative claiming a compensation to the tune of Rs. 82,16,000/- from the defendants apart from other reliefs. It was alleged in the plaint that the plaintiff was a bonafide purchaser of a residential flat bearing No. B-47 in Upkar Co-operative Group Housing Society situated at plot No. 18, Mayur Vihar, Phase I Extension, New Delhi -91 from defendant No. 1 for a total sale consideration of Rs. 7,90,000/- vide a registered sale deed dated 9.5.2005. It is alleged that at the time of execution of the sale deed, the defendant No. 1 had represented and assured the plaintiff that the property in question was free from all encumbrances. Believing these representations to be true and coupled with the fact that the defendant No. 1 had got a certificate from defendant No. 2/Society on 29.12.2003 in her favour granting no objection for converting the lease hold rights in respect of the flat to freehold by the DDA, the plaintiff purchased the flat. It is further alleged that subsequent thereto, the DDA had also registered a Conveyance Deed in favour of the defendant No. 1 on 24.8.2004 whereupon the defendant No. 1 had sold this flat to the plaintiff on 09.5.2005. It is alleged in the plaint that the plaintiff had taken possession of the flat on 09.4.2004 although the document of sale was executed on 9.5.2005 but on account of sad demise of her husband, she could not carry out the renovation work in the flat. She had allegedly gone to Mascat to be with her son. During this period, she had put the lock on the flat in question and when after a year or so she came back to India in the month of April, 2006, she was surprised to find that the locks of the flat had been changed. She lodged a report with the police on 10.5.2006. During this period, she had put the lock on the flat in question and when after a year or so she came back to India in the month of April, 2006, she was surprised to find that the locks of the flat had been changed. She lodged a report with the police on 10.5.2006. To her utter shock and surprise she found that on 20.5.2006, the defendant No. 2/cooperative society got an advertisement inserted in newspaper intimating that nobody should deal with the flat in question as the defendant No. 1 having membership No. 230 had obtained the said membership on the basis of false representation. 3. The plaintiff has alleged in the plaint that on account of insertion of the advertisement, a cloud was sought to be cast on the right of the plaintiff and therefore, she has chosen to file the present suit for declaration to the effect that she be declared as bonafide purchaser of the suit property but curiously enough, the plaintiff has also made a prayer that the sale deed dated 9.5.2005 which is purported to be executed by defendant No. 1 in her favour be declared as void and should be cancelled. It is also prayed by the plaintiff that she be admitted as a member of the Cooperative society/defendant No. 2, or in alternative a decree for a sum of Rs. 82,16,000/- be passed against the defendant. 4. The defendant No. 1 has filed the written statement and contested the claim of the plaintiff. She has denied that the flat has been sold by her to the plaintiff. 5. The defendant No. 2 has also taken the plea that the plaintiff could not be granted the relief of being declared as a bonafide purchaser on account of the fact that the defendant No. 1 had obtained the membership of the Cooperative Society by furnishing the false documents inasmuch as her husband was also member of the Cooperative Society and according to the provisions of the Delhi Co-operative Society Act and the rules framed thereunder lays down that both the spouses could not be members of a Cooperative Society and since the husband of the defendant No. 1 was a member of the Co-operative society therefore, her membership stood cancelled. Since the membership of the defendant No. 1 stood cancelled, consequently she was not the rightful member of defendant No. 2 society and much less she could transact the property in favour of the plaintiff. 6. The defendant No. 3 is a newly impleaded defendant who is claiming that she was also a member of defendant No. 2 Society vide membership No. 133, however, her membership was cancelled by the defendant No. 2 in the year 1987 on the wrong assumption that she had submitted her. It is alleged that she had never submitted her resignation and actually her signatures were forged as a consequence of which he had got her right regarding membership of the society adjudicated in different forums ultimately culminating into a reference of the dispute to Sh.S.M.Aggarwal, ADJ (Retired) under Section 55 of the Delhi Cooperative Society Act. He held her to be a lawful member of the defendant No. 2/society. It is stated by him that defendant No. 2 has issued allotment letter to the defendant No. 3 and the restraint order which has been passed on 11.8.2008 restraining defendant No. 2/society from allotting the said flat, to any person, is thereby causing a undue hardship to him inasmuch as she is not able to take the possession of the flat in question. 7. It is in this backdrop of the aforesaid facts that application bearing No. 4897/2007 has been filed by the plaintiff originally along with the suit for passing an ad interim injunction order against the defendant from creating any third party interest in respect of the flat in question. The plaintiff was not granted any ex parte ad interim injunction despite the fact that the application has been pending for considerable length of time. 8. Subsequent thereto, a fresh application bearing IA No. 7083/2008 was filed by the plaintiff by urging that new facts have emerged to her knowledge which show that the defendant No. 3 who is claiming himself to be the rightful member of the defendant No. 2 society had actually adjudicated his rights by way of arbitration under Section 60 of the Delhi Cooperative Society Act which proceedings took time and his resignation from the defendant No. 2 society was held to be valid. It is stated that the defendant No. 3 had thereafter challenged the said order before the Commissioner as well as before the High Court without any success and it is only after being unsuccessful in different forums that the defendant No. 3 has now chosen to get the matter referred to a retired ADJ as Lok Adalat for resolution of the dispute. Sh.S.M.Aggarwal, ADJ (Retired) has given a finding in his favour declaring his membership to be lawful and consequently, the plaintiff is apprehending that the flat may be allotted to him. The defendant No. 2 is trying to hand over the possession of the flat to the defendant No. 3 and therefore, the application for stay was filed again by the plaintiff. 9. It is on this application, that the Court had passed an order on 11.8.2008 restraining the defendant No. 2 from handing over or allotting the flat in question to any person during the pendency of the suit. 10. So far as the third application bearing No. 15209/2008 is concerned, that is filed under Order 39 Rule 4 CPC by the defendant No. 3. The defendant No. 3 has taken the plea that the interim order dated 11.8.08 which is passed against the defendant No. 2 is working to his detriment inasmuch as, despite a finding having been given by Sh.S.M. Aggarwal, ADJ (Retired) in his favour declaring him to be lawful member and the defendant No. 2 deciding to allot the flat in question to him yet he is not able to get the possession of the flat, and therefore, he has prayed that the interim order dated 11.8.08 deserves to be vacated. 11. I have heard the learned counsel for the parties and perused the record. 12. There is no dispute that the centre of controversy revolves around the allotment or the purchase of flat No. B-47 in Upkar Co-operative Group Housing Society situated at plot No. 18, Mayur Vihar, Phase I Extension, New Delhi -91. It is also not disputed that the flat in question was purportedly purchased by the plaintiff from defendant No. 1 vide registered sale deed dated 9.5.2005 but what is pertinent is that whether the defendant No. 1 was competent to sell the flat to the plaintiff or not. It is in this context that the averments which are made by the plaintiff become important. 13. It is in this context that the averments which are made by the plaintiff become important. 13. The plaintiff herself in various paragraphs of the plaint gives an impression that she has been subjected to fraud by the defendant No. 1 as a consequence of which she has already instituted a criminal complaint against defendant No. 1 on the basis of which an FIR is stated to have been registered for an offence of cheating and using forged documents as genuine by SHO PS Mayur Vihar. The averments which are made in the plaint reads as under:- "12. That thus defendant No. 1 had fraudulently executed the sale deed dated 9.5.2007 in favour of the plaintiff, inspite of the fact that she was not having any title to the disputed property. The defendant No. 1 had also failed to inform to the plaintiff about the material defect in her title of the disputed property and the fraud onteh part of defendants in connivance with one another, was thus revealed to the plaintiff in the month of December, 2006, when the plaintiff received a copy of the order dated 25.2.1999 of Registrar, Co-operative Societies. It is pertinent to point out herein that though on 11.5.2005 itself the plaintiff had informed the defendant No. 2 as well as the Registrar, Co-operative Societies about the sale deed dated 9.5.2005 executed in her favour by defendant No. 1 however, none of them had either informed or cautioned the plaintiff regarding the entitlement of defendant No. 1 to the disputed property." 14. The defendant No. 1 had executed a sale deed dated 9.5.2005 in favour of the plaintiff in spite of the fact that she was not having any title to the disputed property. The defendant No. 1 had also failed to intimate to the plaintiff about the material defects in her title in respect of the disputed property and the fraud on the part of the defendant No. 1 was revealed to the plaintiff in the month of December, 2006, when the plaintiff received a copy of the order dated 25.2.99 of the registered Cooperative Societies. In the prayer clause, in para 21, the plaintiff has made the following prayers, which read as under:- "(a) pass a decree declaring that the plaintiff is the bona fide purchaser of the disputed property and the sale deed dated 9.5.2005 executed by defendant No. 1 in favour of the plaintiff in respect of the disputed property is an outcome of fraud committed by both the defendants in connivance with one another and against the plaintiff and the same is therefore, void; and (b) pass a decree cancelling the said sale deed dated 9.5.2005;" 15. The contention which arises for consideration is as to whether the interim order which is passed on 11.8.08 by this Court restraining defendant No. 2 from allotting the flat in question to anybody including defendant No. 3 ought to be continued or not or whether the plaintiff is entitled to any stay so far as the allotment of the said flat in respect of which she is claiming to be declared as bonafides purchaser, should be passed or not. 16. There is no dispute about the fact that in order to get interim order, a party has to admittedly show that it has got prima facie a good case in its favour. In the present case, the question to be considered is whether the plaintiff has got prima facie a good case in its favour which may prompt the Court to pass an interim order in favour of the plaintiff qua the flat and against the defendant. Certainly the plaintiff cannot be said to be having prima facie case in this regard. This is on account of the fact that one of the basic dictums of law, is that nobody can pass a title better than what he has. The plaintiff herself is admitting in para 12 of the plaint that the defendant No. 1 did not have the lawful and rightful title to the flat in question and consequently, the plaintiff became a victim of fraud. In the prayer clause, she herself is stating that the sale deed dated 9.5.2005 which is purported to have been executed by defendant No. 1 in her favour should be declared as null and void and in the prayer `B' she is claiming that the said sale deed be cancelled. 17. In the prayer clause, she herself is stating that the sale deed dated 9.5.2005 which is purported to have been executed by defendant No. 1 in her favour should be declared as null and void and in the prayer `B' she is claiming that the said sale deed be cancelled. 17. If that be so, meaning thereby if the relief regarding cancellation of the sale deed dated 9.5.2005 or a declaration to the effect that the sale deed dated 9.5.2005 is void, one wonders under what authority or on what basis the plaintiff can be declared to be the owner of the flat in question much less the bonafide owner. 18. In other words, the entire thrust of the plaint of the plaintiff is that the defendant No. 1 did not have the title to the property and yet she sold the same in favour of the plaintiff and consequently, she became a victim of fraud and yet she wants to be declared as bonafide purchaser. These two things are totally incongruent and cannot stand together. By no stretch of imagination, it could be said that the plaintiff has got prima facie case in her favour and accordingly, no injunction order in favour of the plaintiff qua the flat in question can be passed. The plaintiff is admittedly claiming another relief in the suit that is regarding recovery of Rs. 82 lacs which clearly shows that even the plaintiff is clear that in case she fails to get the first relief in the alternate, she may be given the second relief. The grant of second relief claimed by the plaintiff will be more in line with the averments made in the pleadings, if at all she succeeds in proving her case. 19. The next question which arises for consideration is that if no restrain order can be passed qua the flat in question, does it deserve to be allotted to the defendant No. 3 by the defendant No. 2? 19. The next question which arises for consideration is that if no restrain order can be passed qua the flat in question, does it deserve to be allotted to the defendant No. 3 by the defendant No. 2? In this regard no doubt, the defendant No. 3 has given a long history of his membership and the subsequent litigation resulting his membership starting from 1981 and the culmination of the same resulting in the finding given by Sh.S.M.Aggarwal, ADJ (Retired) that the defendant No. 3 was a lawful member of the defendant No. 2/society but the Court is not, in this proceeding, going to decide as to whether such finding given by Sh.S.M.Aggarwal, ADJ (Retired) was lawful and valid in the light of the fact that the defendant No. 3 had earlier lost in almost every forum right up to High Court. 20. Since defendant No. 3 is not the plaintiff before this Court and is not seeking any relief, it is not for this Court to adjudicate as to the question of legality or validity of the membership of the defendant No. 3 nor it is open to this Court to suggest to the defendant No. 2 that it may or may not allot the said flat in question to the defendant No. 3. The only thing which this Court can do is to vacate the restraint order which has been passed by this Court on 11.8.08 restraining the defendant No. 2 from allotting the said flat in question to any person during the pendency of the suit leaving the society free to allot the said flat to any such member whom it considers to be the lawful , valid and eligible to be allotted the flat in accordance with law. 21. For the reasons mentions above, I feel that the interim order dated 11.8.08 deserves to be vacated leaving the society /defendant No. 2 free to allot the said flat in such a manner and to such a member as it may deemed fit and it is in accordance with law. 22. Accordingly, IA 4897/2007 and IA 7083/2008 are dismissed and IA 15209/2008 is allowed.