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2016 DIGILAW 3266 (DEL)

Parkash Jham v. Khurana Realtors

2016-08-24

S.MURALIDHAR

body2016
ORDER : S. Muralidhar, J. I.A. No. 23158/2015 (filed by the Plaintiffs under Order XXXIX Rules 1 & 2 CPC) 1. Shri Parkash Jham (Plaintiff No. 1), his wife Smt. Kamlesh Jham (Plaintiff No. 2) and his son Mr. Sumit Jham (Plaintiff No. 3) have filed this suit against M/s. Khurana Realtors (Defendant No. 1), Mr. Arun Khurana (Defendant No. 2), Mr. Sudhir Arora (Defendant No. 3), Mr. S.P. Gupta (Defendant No. 4) and Smt. Shilpi Baweja (Defendant No. 5) seeking specific performance of an oral Agreement to Sell dated 7th April, 2015 in terms of which, according to the Plaintiffs, Defendant Nos. 1, 2 and 3 had agreed to sell the entire first floor of the property at 107 in Block No. 2, Paschim Vihar, New Delhi, area measuring 256 sq.yds ("the suit premises?) to the Plaintiffs. A decree of permanent injunction to restrain the Defendants from creating any third party right in the suit premises has also been prayed for. The case of the Plaintiffs is that Defendant No. 1 is a partnership firm of which Defendant Nos. 2 and 3 are partners. It is stated that Defendant No. 1 is engaged in the business of collaborating, developing residential and commercial complexes. It is further stated that Defendant No. 5 is the sole and absolute owner of the land tearing No. 107, area measuring 256 sq.yds in Block No. 2 which is located in the lay out plan of the Low Income Group Government Servants Cooperative House Building Society Limited, colony known as Sunder Vihar, Paschim Vihar, New Delhi. 2. According to the Plaintiffs, Defendant No. 1 through Defendant Nos. 2 and 3 purchased the suit premises from Defendant No. 5 by a registered sale deed dated 8th September, 2014 and Defendant No. 1 became the absolute owner of the first floor of the suit premises. It is stated that at that time the suit premises was under construction, and as per the knowledge of the Plaintiffs, there was a collaboration agreement/understanding between Defendant Nos. 1 and 5 that the entire property would be constructed at the cost of Defendant No. 1. Thereafter, Defendant No. 1 would be entitled to the suit premises. 3. According to the Plaintiffs, they got in touch with M/s. Amit Estates and M/s. Nagpal Realtors who introduced Plaintiff No. 1 to Defendant No. 4. 1 and 5 that the entire property would be constructed at the cost of Defendant No. 1. Thereafter, Defendant No. 1 would be entitled to the suit premises. 3. According to the Plaintiffs, they got in touch with M/s. Amit Estates and M/s. Nagpal Realtors who introduced Plaintiff No. 1 to Defendant No. 4. It is stated that Defendant No. 4 had entered into an Agreement to Sell with Defendant No. 1 through Defendant No. 3 qua the suit premises. It is stated that on the representation made by Defendant No. 4, Plaintiff Nos. 1 and 2 visited the suit property which was under construction and verified the ownership and proprietary rights of the suit property. According to the Plaintiffs, as stated in para 5 of the plaint, "all the Defendants confirmed about the ownership rights and further it was affirmed by Defendant Nos. 2 and 3 that they had entered into an agreement to sell with Defendant No. 4 qua the suit property." 4. The Plaintiffs stated that they found the suit property suitable for their residential purposes and thereafter negotiated with Defendant No. 4. They further stated that after negotiation, Defendant No. 4 entered into an agreement to sell dated 7th April, 2015 whereby it was agreed to sell the suit premises to the Plaintiffs for a total consideration of Rs. 2,63,00,000. The Plaintiffs claimed to have paid a total earnest money deposit of Rs. 60 lakhs to Defendant No. 4, out of which a sum of Rs. 45 lakhs was paid in cash on 7th April, 2015 and Rs. 15 lakhs were given through three cheques of Rs. 5 lakhs each to Defendant No. 4. It is claimed that there was an understanding between the Plaintiffs and Defendant No. 4 wherein Defendant No. 4 was to pay the consideration amount qua the agreement to sell entered between Defendant No. 1 and Defendant No. 4, and that the Plaintiffs were to pay the consideration amount of suit property to Defendant No. 4 since the properly was under construction. As regards the remaining sale consideration, it was agreed that the Plaintiffs would make payment of Rs. 6o lakhs to Defendant No. 4 on or before 1st June, 2015, and further payment of Rs. 60 lakhs on or before 15th September, 2015 and the balance amount of Rs. As regards the remaining sale consideration, it was agreed that the Plaintiffs would make payment of Rs. 6o lakhs to Defendant No. 4 on or before 1st June, 2015, and further payment of Rs. 60 lakhs on or before 15th September, 2015 and the balance amount of Rs. 83 lakhs within seven days after completion of the building in all respect. 5. The Plaintiffs claimed to have sold their property at No. 1/54, Ground Floor, Paschim Vihar, Delhi for a total consideration of Rs. 1.58 crores to Smt. Meetu Gogia in order to generate money for purchase of the suit premises. It is stated that since Defendant No. 1 was facing financial constraints, Defendant No. 4 proposed to the Plaintiffs that they make the payment directly to Defendant No. 1. It is stated that Mr. Shreya Chadha of M/s. Amit Estate, Mr. Praveen Jolly of M/s. Krishna Estate and Mr. Manish Batra of M/s. Nagpal Realtors arranged a meeting between the Plaintiffs and Defendant Nos. 1 and 2 where it was mutually agreed that a fresh agreement to sell would be executed directly between the Plaintiffs and Defendant No. 1 wherein the payments made to Defendant No. 4 would be duly acknowledged by Defendant No. 1 being towards the earnest money qua the suit premises which was originally paid to Defendant No. 4. 6. According to the Plaintiffs, an agreement: to sell was executed between the Plaintiffs and Defendant No. 1 through Defendant No. 3 on 16th May, 2015 wherein the payments made earlier to Defendant No. 4 qua the earnest money were duly acknowledged. It is further stated that a further part payment of Rs. 60 lakhs was paid directly to Defendant No. 1 out of which Rs. 30 lakhs was in cash on 18th May, 2015 and the balance amount of Rs. 30 lakhs was tendered through two cheques of Rs. 15 lakh each, both dated 18th May, 2035 in the name of Defendant No. 1. The said cheques were duly executed by Defendant No. 1. It is stated that a proper receipt was executed by Defendant No. 3 on behalf of Defendant Nos. 1 and 2. It was then clarified that the building was still under construction and the further payment of Rs. 60 lakhs was to be made by 1st September, 2015. The balance sum of Rs. It is stated that a proper receipt was executed by Defendant No. 3 on behalf of Defendant Nos. 1 and 2. It was then clarified that the building was still under construction and the further payment of Rs. 60 lakhs was to be made by 1st September, 2015. The balance sum of Rs. 83 lakhs was to be paid within seven days after completion of the entire building. It had been mutually agreed that the schedule of payment as settled between the Plaintiffs and Defendant No. 4 was rearranged at the time of entering into the agreement to sell dated 16th May, 2015. 7. The Plaintiffs state that after a few days, Defendant No. 1 through Defendant Nos. 2 and 3 approached the Plaintiffs stating that Defendant No. 1 was facing financial constraints and requested for a sum of Rs. 40 lakhs for completion of the building to be adjusted against the balance sale consideration. The Plaintiffs state that they agreed to pay Rs. 40 lakhs for which another understanding was reduced into writing in the format of a Loan Agreement executed between Plaintiff Nos. 1 and 2 and Defendant No. 3 on behalf of Defendant No. 1. It is stated that two cheques of Rs. 20 lakh each were paid to Defendant No. 1 through Defendant No, 3 from the account of Plaintiff Nos. 1 and 2, It was clarified that the amount advanced in the form of loan was up to 1st September, 2015 by which date the payment of Rs. 60 lakhs was to be made to Defendant No. 1 in terms of the agreement to sell dated 16th May, 2015. It is further stated that the said document was executed in the presence of Defendant Nos. 2 and 3. 8. According to the Plaintiffs, it was understood that if Defendant No. 1 was unable to complete the work within the time stipulated, Defendant No. 1 shall pay interest @ 3% per month on the amount advanced and adjusted against the balance sale consideration. Thereafter, the Plaintiffs came to know that Defendant No. 3 was arrested by the police in FIR No. 1141 registered under Sections 420, 406 read with Section 34 IPC in Police Station Tilak Nagar as well as FIR No. 581 under Sections 420, 406, 120B read with Section 34 IPC registered at Police Station Paschim Vihar. 9. Thereafter, the Plaintiffs came to know that Defendant No. 3 was arrested by the police in FIR No. 1141 registered under Sections 420, 406 read with Section 34 IPC in Police Station Tilak Nagar as well as FIR No. 581 under Sections 420, 406, 120B read with Section 34 IPC registered at Police Station Paschim Vihar. 9. It is stated that Plaintiff No. 1 approached Defendant Nos. 2 and 4 as well as the, property dealers who all assured that there was nothing to worry. It is further stated that despite the construction work being completed, the possession of the suit premises was not given to the Plaintiffs and Defendant No. 2 started avoiding to hand over the possession on one pretext or the other and started avoiding to receive the balances sale consideration amount. 10. It is further stated that Defendant Nos. 2 and 5 began demanding extra money and another draft tripartite agreement for execution of the sale deed was sent for signature. It is stated that the contents thereof created an unnecessary dispute by Defendant No. 1 through Defendant No. 2 in connivance with Defendant No. 5. It is stated that during the meeting with the Defendants, the Plaintiffs offered Defendant No. 1 through Defendant No. 2 the balance sale consideration of Rs. 1.03 crores but the Defendants were adamant on the enhanced sale consideration. The Plaintiffs stated that they had already paid an amount of Rs. 1.60 crores to Defendant No. 1 out of the total sale consideration of Rs. 2.63 crores and they are ready and willing to pay the balance sum of Rs. 1.03crores. It is stated that the Plaintiffs came to know that Defendant Nos. 2 and 5 had been negotiating with prospective buyers in respect of the suit premises and, therefore, the present suit was filed seeking specific performance of the agreement to sell dated 7th April, 2015 and the other agreements and for a direction to the Defendants to execute the sale deed in favour of the Plaintiff and accept the balance sale consideration of Rs. 1.03 crores. 11. 1.03 crores. 11. At the hearing of the suit on 16th November, 2015, this Court directed the parties to maintain status quo in respect of the title and possession of the suit property i.e., the entire first floor of the plot bearing No. 107, area measuring 256 sq.yds in Block No. 2, situated/shown in the layout plan of the Low Income Group Government Servants Cooperative House Building Society Limited Colony known as Sunder Vihar, Paschim Vihar, New Delhi. 12. A written statement was filed by Defendant Nos. 1 and 2 in which preliminary objections were raised. It was stated that the Plaintiff had not come to Court with clean hands and no cause of action had arisen in favor of the Plaintiffs and against Defendant Nos. 1 and 2 and further, there was no privity of contract between the Plaintiffs and Defendant Nos. 1 and 2. It was pleaded that the contention of the Plaintiffs that they had again entered into agreement to sell dated 16th May, 2015 with Defendant No. 3 acting on behalf of Defendant No. 1 was a "totally false, wrong and misleading statement." It was stated that the Plaintiffs made alleged payments to either Defendant No. 3 or Defendant No. 4, hence no claim arose against Defendant Nos, 1 and 2. It was further submitted that the suit was liable to be dismissed for non-joinder of the necessary parties. 13. It was admitted that Defendant No. 1 is a partnership firm and Defendant No. 5 was the sole and absolute owner of property bearing No. 2/107, Sunder Vihar, New Delhi - 110087. It is further stated that Defendant No. 3 is the partner of Defendant No. 1 and Defendant No. 2 and Mrs. Shalini Khurana w/o. of Ajit Khurana are partners of Defendant No. 1. It is also admitted that Defendant No. 1 executed a registered sale deed dated 8th September, 2014 in favour of Defendant No. 5. It is, however, denied that the sale deed was signed by Defendant Nos. 2 and 3 on behalf of Defendant No. 1. It is pointed out that the sale deed was signed by Defendant No. 2 only on behalf of Defendant No. 1. It is denied that any collaboration agreement dated 7thSeptember, 2014 was entered into between Defendant No. 1 and Defendant No. 5. 2 and 3 on behalf of Defendant No. 1. It is pointed out that the sale deed was signed by Defendant No. 2 only on behalf of Defendant No. 1. It is denied that any collaboration agreement dated 7thSeptember, 2014 was entered into between Defendant No. 1 and Defendant No. 5. It is stated that the said collaboration agreement was entered into between Defendant No. 5 and the wife of Defendant No. 3. As per the said collaboration agreement, the entire property was to be constructed by the wife of Defendant No. 3 at her cost. The said agreement has been placed on record. It is denied that any meeting took place between the Plaintiffs and Defendant Nos. 2 and 3. It is asserted that Defendant No. 3 is not connected with Defendant No. 1 in any manner. It is further denied that a fresh agreement to sell was entered into between the Plaintiffs and Defendant No. 2 on l6th May, 2015. It is also denied that the amount paid to Defendant No. 4 as earnest money was acknowledged in writing in the agreement to sell dated 16th May, 2015. 14. However, it is admitted that the loan agreement dated 9th September, 2014 was entered into between Defendant No. 1 and wife of Defendant No. 3 whereby the wife of Defendant No. 3 received Rs. 1.25 crores from Defendant No. 1 and the said amount was to be paid back by her within nine months with interest @ 1.85% per annum payable quarterly in advance. It is stated that the wife of Defendant No. 3 was neither able to pay back the loan amount nor the interest accrued on it to Defendant No. 1. It is further stated that at the instance of Defendant No. 3, Defendant No. 2 gave the details of his bank account to the wife of Defendant No. 3 who transferred Rs. 30 lakhs by way of two cheques of Rs. 15 lakhs each in the account of Defendant No. 1 directly. Later on, when Defendant No. 2 checked the passbook and enquired from wife of Defendant No. 3 as to from whose account the said amount had been transferred to their account, she informed that the money was arranged by her husband from a third person with which Defendant Nos. 1 and 2 had nothing to do. Later on, when Defendant No. 2 checked the passbook and enquired from wife of Defendant No. 3 as to from whose account the said amount had been transferred to their account, she informed that the money was arranged by her husband from a third person with which Defendant Nos. 1 and 2 had nothing to do. [t is acknowledged that Defendant No. 1 has received the amount into their account. However, it is denied that Defendant Nos. 1 and 2 entered into any agreement with the Plaintiff or that Defendant No. 3 had any authority to enter into any agreement on behalf of Defendant No. 1. A copy of the loan agreement dated 9th September, 2014 has been placed on record. 15. As regards the draft tripartite agreement dated 16th September, 2015, it is stated that Defendant No. 2 received an email from the office of Mr. Dalip Mehra, Advocate, on 9th September, 2014 after which Defendant No. 2 enquired from the husband of Defendant No. 5 about the said email. He informed that the said agreement was only a draft proposal. Defendant No. 1 denied that the Plaintiffs ever offered to pay Rs. 1.03 crores towards the balance sale consideration of the suit premises. 16. Defendant No. 3 has filed separate written statement in which it is stated that Defendant No. 3 has no right, title or interest in the suit premises and, therefore, no relief was claimed against him and that the suit is liable to be rejected qua Defendant No. 3. It is further stated that the suit is bad for misjoinder of the parties. It is also stated that the suit is not maintainable against Defendant No. 3 under Section 41(e) of the Specific Relief Act, 1963. Defendant No. 3 denied that he had signed the sale deed dated 8th September, 2014 on behalf of Defendant No. 1. It is pointed out that Defendant No. 5 had entered into a collaboration agreement with M/s. Sheetal Enterprises, a proprietorship concern of the wife of Defendant No. 3 for re-developing the property in question. It is stated that the sale deed was executed by Defendant No. 5 in favour of Defendant No. 1 at the request of Defendant No. 2 and the wife of Defendant No. 3 was made a witness to the sale deed dated 8th September, 2014. It is stated that the sale deed was executed by Defendant No. 5 in favour of Defendant No. 1 at the request of Defendant No. 2 and the wife of Defendant No. 3 was made a witness to the sale deed dated 8th September, 2014. It is admitted that Defendant No. 3 was arrested by the police as was stated in the plaint. However, it is denied that Defendant No. 3 took a loan of Rs. 40 lakhs on behalf of Defendant No. 1 at the time of agreement dated 16th May, 2015. 17. On behalf of Defendant No. 4, a written statement has been filed stating that the agreement to sell dated 7th April, 2015 executed between the Plaintiffs and Defendant No. 4 as well as the agreement to sell dated 1st January, 2015 entered into between Defendant No. 4 and Defendant No. 1 through Defendant No. 3 have been duly cancelled with the consent of the Plaintiffs and Defendant No. 3 and the original agreement to sell dated 7th April, 2015 and 1st January, 2015 were torn off. It is further stated that with the cancellation of the said agreements, Defendant No. 4 is left with no right, title and interest in the suit property. Therefore, there is no privity of contract between the Plaintiffs and Defendant No. 4. Moreover, the Plaintiffs have not claimed any relief against Defendant No. 4 and, therefore, the suit does not disclose any cause of action against Defendant No. 4. It is further submitted that the suit should be dismissed for concealment of material facts in the plaint regarding the Plaintiffs having approached Defendant No. 4 with a suggestion that he should give up all his rights in the suit premises accrued by virtue of the agreement to sell dated 1st January, 2015. It is stated that he agreed to the said suggestion and the Plaintiffs entered into an agreement to sell dated 16th May, 2015 with Defendant No. 1 through Defendant No. 3. It is stated that the Plaintiffs have mischievously kept a photocopy of the agreement to sell dated 7th April, 2015 without disclosing in the present suit that the said agreement stands cancelled and was torn of and are using a photocopy of the said agreement before this Court. 18. It is stated that the Plaintiffs have mischievously kept a photocopy of the agreement to sell dated 7th April, 2015 without disclosing in the present suit that the said agreement stands cancelled and was torn of and are using a photocopy of the said agreement before this Court. 18. As far as Defendant No. 5 is concerned, it is stated that no cause of action has arisen in favour of the Plaintiffs and against the Defendants and, therefore, the suit is liable to be dismissed qua Defendant No. 5. It is also pleaded that the suit is bad for misjoinder of parties as well as nonjoinder of necessary parties. Again, it is pleaded that there is no privity of contract between the Plaintiffs and Defendant No. 5. Importantly, it is pointed out that "The Plaintiff has claimed to have entered into one alleged agreement to sell after another for the same property with different persons and at no time bothered to even verify the title of the alleged sellers or verify the same from the actual disclosed owner also. As such, the plaintiff deserves no relief in equity also and the plaint deserves to be dismissed forthwith." 19. On 1st April, 2016, this Court had directed the parties to file their respective original documents within two weeks and the matter was placed before the Joint Registrar ("JR") on 26th May, 2016 for admission/denial of the documents. The interim order was directed to continue. 20. When the matter was set down for admission/denial of the documents before the JR on 26th May, 2015, learned counsel for the Plaintiffs submitted that "the Plaintiff has already filed the original document whatever he had in his possession." Learned counsel for Defendant No. 5 pointed out that none of the documents were filed by the Plaintiffs and even the original sale deed dated 8th September, 2014 was not filed. While learned counsel for Defendant Nos. 1 and 2 brought the original documents, learned counsel for the Plaintiffs sought time to conduct admission/denial of the documents. Only Defendant No. 4 admitted his signature as witness to the agreement to sell dated 16th May, 2015 and the receipt dated 18th May, 2015. It was pointed out that rest of the documents filed by the Plaintiffs were photocopies and did not pertain to Defendant No. 4. 21. Only Defendant No. 4 admitted his signature as witness to the agreement to sell dated 16th May, 2015 and the receipt dated 18th May, 2015. It was pointed out that rest of the documents filed by the Plaintiffs were photocopies and did not pertain to Defendant No. 4. 21. Before the Court on 8th August, 2016 learned counsel for the Defendants submitted that there was no justification whatsoever to continue status quo order passed on 16th November, 2015 because no original documents had been filed by the Plaintiffs thus far to substantiate any of the averments made in the plaint. It was pointed by learned counsel for the Defendants that the Plaintiffs had put forth a false case to grab valuable property on the basis of false documents. Defendant No. 1 admitted to encashing two cheques of Rs. 15 lakhs on the bona fide belief that it was towards repayment of the loan advanced to Defendant No. 3. Later on, it was realized that the said cheques had been issued from the Plaintiffs' account as the money arranged by her husband from a third person with which Defendant Nos. 1 and 2 have nothing to do. Accordingly, it was offered by Defendant Nos. 1 and 2 that they are prepared to refund Rs. 30 lakhs to the Plaintiffs. They were also prepared to pay some normal interest on the said amount to the Plaintiffs from the date of encashment of those cheques till the date of payment. Learned counsel for the Plaintiffs sought time to take instructions. 22. Thereafter, the matter was adjourned to 17thAugust, 2016. Learned counsel for the Plaintiffs was in some difficulty, and therefore, the matter was adjourned on that day. 23. Today learned counsel for the Plaintiffs states, on in suctions, that the Plaintiffs are willing to deposit the balance sale consideration of Rs. 1.03 crores in the Court. However, they are not willing to accept the refund of Rs. 30 lakhs from Defendant Nos. 1 and 2. 24. From the narration of facts, it is plain that the Plaintiffs based their entire case on the premise that Defendant No. 3 was acting on behalf of Defendant Nos. 1 and 2 when he signed the agreement to sell dated 16th May, 2015. There is not even a shadow of evidence produced by the Plaintiffs to substantiate this fact. 24. From the narration of facts, it is plain that the Plaintiffs based their entire case on the premise that Defendant No. 3 was acting on behalf of Defendant Nos. 1 and 2 when he signed the agreement to sell dated 16th May, 2015. There is not even a shadow of evidence produced by the Plaintiffs to substantiate this fact. The second feature that emerges is that the Plaintiffs do not have the originals of the documents qua Defendant Nos. 1 and 2 against whom they are seeking a decree for specific performance. The agreement to sell dated 7th April, 2015 is between the Plaintiffs and Defendant No. 4 and not with Defendant Nos. 1 and 2 Although the said document mentions the agreement to sell dated 1st. January, 2015 supposed to have been entered into by Defendant No. 4 with Defendant No. 3 it is now conveniently stated that the originals of the agreement dated 7th April, 2015 as well as the agreement dated 1st January, 2015 have been destroyed. This explanation is not convincing at all. 25. As regards the so-called agreement dated 16th May, 2015, it is stated by the Plaintiffs that Defendant No. 3 has been acting on behalf of Defendant Nos. 1 and 2 but there is no evidence to show that Defendant No. 1 has given any authority to Defendant No. 3 to act on its behalf. This document also is not of any help to the Plaintiffs. The only document which is not disputed is the sale deed dated 8th September, 2014 executed in favour of Defendant No. 1 by Defendant No. 5. That document again does not help the case of the Plaintiffs. It only shows that Defendant No. 1 is the absolute owner of the suit property. The receipts are shown to have been executed by Defendant No. 3 and not by Defendant Nos. 1 and 2. There is no explanation why the wife of Defendant No. 3 was never made a party to the suit, although the transactions appear to have involved her. 26. With so many infirmities in the case of the Plaintiffs, the question of continuation of status quo order in their favour does not arise. Accordingly, this Court vacates the status quo order dated 16thNovember, 2015 and dismisses the application. CS (OS) No. 3304/2015 27. The sum of Rs. 26. With so many infirmities in the case of the Plaintiffs, the question of continuation of status quo order in their favour does not arise. Accordingly, this Court vacates the status quo order dated 16thNovember, 2015 and dismisses the application. CS (OS) No. 3304/2015 27. The sum of Rs. 30,00,000 given by two cheques to Defendant No. 1 and encashed in its account, shall be deposited by Defendant No. 1 in this Court within two weeks and, when so deposited, will be kept by the Registry in a fixed deposit with a nationalised bank which shall be kept renewed during the pendency of this suit and shall be subject to the final orders in the suit. List for framing of issues on 16th September, 2016, the date already fixed.