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2011 DIGILAW 4593 (MAD)

First v. Second

2011-11-22

VINOD K.SHARMA

body2011
Judgment : VINOD K. SHARMA,J. 1. The plaintiff / applicant has filed a suit for, i. a declaration that the sale deed dated 05.07.2004 for the schedule mentioned property executed by the defendants 1 and 2 as power agent of the plaintiff and registered as Doc.No.1798 of 2004 at SRO, T.Nagar is null and void as the sale deed has been executed based on the power dated 08.03.2004 and registered as Doc.No.529 of 2004 at SRO, Virugambakkam which has been obtained by defendants 1 and 2 by coercion, kidnapping threat fraud force and hence the said power dated 08.03.2004 itself is null and void. ii. Directing the defendants 1 to 5 to pay the damages at the rate of Rs.30,000/- per month for suffering mentally from July 2004 to till March 2007 which comes to Rs.10,20,000/- (mental agony, suffering physically and mentally causing torture, illegal custody, ill-treatment, causing injury to the body with burning cigarette buds, loosing possession and title over the property) till the plaintiff gets back the schedule mentioned property by physical possession. iii. a declaration and delivery of possession that the plaintiff is the absolute owner of the suit schedule property and directing the defendants, their agents, servants or any one acting under them to hand over the possession of the suit schedule property to the plaintiff. iv. for permanent injunction restraining the defendants, in particular 5th defendant his agents, servants and any one acting under them from dealing with the suit schedule property in any manner either by way of sale, lease or improvement or construction or development or any other mode of construction or creating any charge over the property in respect of the suit schedule property. 2. It is pleaded case of the plaintiff / applicant that two registered power of attorneys were executed by the plaintiff in favour of defendant nos. 1 & 2. The power of attorney holders of the plaintiff / applicant sold the property to defendant nos.3 to 5. The possession of the property was also handed over to the Vendee, who are in possession of the property, by virtue of sale. 3. As already observed above, the suit has been filed for declaration that sale deeds, executed in favour of defendant nos. 3 to 5 are illegal and null and void and not binding on the rights of the plaintiff / applicant, being outcome of fraud. 4. 3. As already observed above, the suit has been filed for declaration that sale deeds, executed in favour of defendant nos. 3 to 5 are illegal and null and void and not binding on the rights of the plaintiff / applicant, being outcome of fraud. 4. The pleaded case of the plaintiff / applicant is that the defendant nos. 1 & 2 had kidnapped the plaintiff / applicant and she was forced to execute the power of attorney in their favour. The attorney holders, after sale, did not pass on the sale consideration to the applicant / plaintiff. 5. The stand of defendant nos. 1 & 2 is that the sale consideration was passed on to the plaintiff. In support thereof, defendant nos.1 & 2 have produced on record receipts for proof of receipt of money by the plaintiff. 6. In C.S.No.280 of 2007, the following applications were filed: i) A.No.2914 of 2009- To direct the Advocate Commissioner who has been appointed in A.No.2939 of 2007 dated 11.04.2007 to inspect the property and file the report taking note of earlier report and further construction made by the 5th respondent after 25.04.2007 and place report before this Court. ii) A.Nos.3225 of 2009- To direct the 5th respondent to demolish unauthorised construction put up by the 5th respondent / defendant subsequent to the orders of the Honble Court dated 11.04.2007 and 25.04.2007 and bring it to the original status as how the property was in existence before 25.04.2007, pending disposal of the suit. iii) A.No.3226 of 2009 –To attach the property of the 5th respondent bearing door No.15, Ranganathan Street, T.Nagar, Chennai-600 017 and after attachment of the property, the property may be brought for auction in public and the property may be sold and the sale proceeds may be adjusted towards damage caused to the property of the applicant / plaintiff towards her damages and excess if any may be made to the 5th defendant. iv) A.3227 of 2009 –To direct the 5th respondent to demolish unauthorised construction put up by the 5th respondent / defendant subsequent to the orders of the Honble Court dated 11.04.2007 and 25.04.2007 and bring it to the original status as how the property was in existence before 25.04.2007, pending disposal of the suit. iv) A.3227 of 2009 –To direct the 5th respondent to demolish unauthorised construction put up by the 5th respondent / defendant subsequent to the orders of the Honble Court dated 11.04.2007 and 25.04.2007 and bring it to the original status as how the property was in existence before 25.04.2007, pending disposal of the suit. v) O.A.No.428 of 2007 - a) For an interim injunction restraining the defendants, in particular 5th defendant his agents, servants and any one acting under them from dealing with the suit schedule property in any manner either by way of sale, lease or improvement or construction or development or any other mode of construction or creating any charge over the property in respect of the suit schedule property; b) To appoint an Advocate Commissioner to inspect the suit property bearing Door No.33 Natesan Street, morefully described in the Judges Summons and note down the physical features of the suit property with the help of an Engineer and take note down the measurements at the site, nature of construction, type of construction, present status of construction with the photos and file a report before this Honble Court on pending disposal of the suit. vi) A.3979 of 2008 - To vacate the interim stay granted by this Court in A.No.428 of 2007 by order dated 11.04.2007, pending C.S.No.280 of 2007 on the file of this Court. 7. On consideration of the matter, I find that the plaintiff / applicant is not entitled to interim reliefs, as prayed for, in A.No.2914 of 2009, A.Nos.3225 to 3227 of 2009 and O.A.No.428 of 2007. 8. Once it is not disputed that the power of attorney, was executed by the plaintiff / applicant, whether it is outcome of fraud or misrepresentation or whether applicant was forced to sign the power of attorney, is question to be decided after parties lead evidence. In the event of success, it will always be open to the Court to grant relief, in view of settled law that fraud vitiates everything, and that this Court, in exercise of inherent jurisdiction, can pass any order to do justice to the aggrieved party. 9. As on date, defendant nos. In the event of success, it will always be open to the Court to grant relief, in view of settled law that fraud vitiates everything, and that this Court, in exercise of inherent jurisdiction, can pass any order to do justice to the aggrieved party. 9. As on date, defendant nos. 3 to 5 are the registered owners of the property, who have purchased it for consideration, therefore, cannot be restrained, specially when any transaction or alienation will be subject to "lis pendens" where the rights of the plaintiff / applicant will be duly protected. 10. Interim relief can only be granted to maintain status quo, and cannot be used as a mean to harass defendants, for some other consideration 11. The plaintiff / applicant, in order to succeed in prayer for interim injunction, has not only to prove prima facie case, but also require to prove balance of convenience and irreparable loss or injury. 12. In this case, the plaintiff / applicant failed to make out any prima facie case nor are likely to suffer irreparable loss or injury, in view of the protection under "lis pendens". 13. Furthermore, balance of convenience also cannot be said to be in favour of the plaintiff / applicant, as defendant nos.3 to 5 are admittedly registered owners of the property, having purchased it for consideration. As already observed, it cannot be said that the applicant will suffer irreparable loss, if injunction is not granted, as "lis pendens" transferee steps into the shoes of his vendor and thus is bound by the decree. 14. Consequently, finding no merit in all these applications, A.No.2914 of 2009, A.Nos.3225 to 3227 of 2009 and, O.A.No.428 of 2007 are ordered to be dismissed. 15. In view of the detailed order passed in the above applications, A.3979 of 2008 is dismissed as having been rendered infructuous.