Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 24 March, 2022.
+ CS(OS) 437/2021
VANDANA VERMA ..... Plaintiff
Through: Mr. Mahesh Singh, Advocate.
versus
ROOP SINGH & ORS. ..... Defendants
Through: Mr. Ajit Rajput, Advocate for D-1 to
D-4 along with Defendants no.1 and 2
in person.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.(ORAL)
I.A. No.14107/2021 (for urgent hearing of I.A. No.11830/2021)
1. For the reasons stated in the application, the same is allowed.
I.A. No.11830/2021 (u/O-XXXIX R-1 & 2 of CPC) & I.A. No.11829/2021
(u/O-XXXVIII R-5 of CPC)
2. I.A. No.11830/2021 has been filed on behalf of the applicant/plaintiff,
seeking a direction that the defendants be restrained from carrying out
construction work in the suit property and be restrained from selling,
disposing or creating any third party interest in the suit property.
3. I.A. No.11829/2021 has been filed on behalf of the applicant/plaintiff
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 1 of 12
under Order XXXVIII Rule 5 of the CPC for the defendants to be asked to
show why the suit property should not be attached, unless the defendants
deposit the claimed amount together with costs of the suit or furnish security
for the same.
th
4. Notice was issued in both the applications on 14 September, 2021.
5. The non-applicants/defendants no.1 to 4 have filed replies opposing
both applications.
th
6. Vide order dated 24 January, 2022, the defendant no.5 was
proceeded ex parte.
7. Facts relevant for deciding the present applications are set out below:-
i. The plaintiff was the owner of the suit property bearing no. S-523,
measuring area 200 sq. yard, (i.e. land plinth area 167.22 sq. mtrs. &
constructed plinth area 334.44 sq. mtrs.), consisting of double storey
built up, with the rights of upper storey construction upto the last
storey, fitted with electricity and water tap connections with their
meters, out of Khasra No. 262, situated at abadi of School Block,
Park-1, Near Jain Mandir, Shakarpur Khas, Illaqa Shahdara, Delhi-
110092 (hereinafter referred to as the ‘suit property’).
ii. A shop, which forms part of the suit property admeasuring approx. 30
sq. yards on the ground floor of the suit property, was sold by the
th
plaintiff to the defendant no.5 on 13 July, 2017 and the possession of
the same was also handed over to the defendant no.5.
th
iii. Vide an Agreement dated 16 January, 2018, the defendant no.5
undertook that he would completely co-operate with the plaintiff if
any proposal for reconstruction and re-development of the suit
property was initiated with any other party, including his own shop
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 2 of 12
and for which purpose, the defendant no. 5 shall hand over vacant
th th
peaceful possession of his shop by 10 to 15 of March, 2018.
Further, it was agreed that after reconstruction of the said entire suit
property, the defendant no. 5 would be handed back his shop.
th
iv. On 24 January, 2018, the plaintiff entered into an Agreement to Sell
and Purchase with the defendants no.1 and 2 for a sum of
Rs.4,25,00,000/-.
v. Upon the defendants no.1 and 2 failing to pay the amounts agreed to
be paid to the plaintiff, a legal notice was sent on behalf of the
th
plaintiff to the defendants no.1 and 2 on 29 May, 2019 for rescinding
th
the Agreement to Sell and Purchase dated 24 January, 2018.
th
vi. A Mutual Agreement dated 8 June, 2019 was entered into between
the plaintiff and defendants no.1 and 2, wherein it was specifically
noted that in view of the failure of the plaintiff to get the defendant
no.5 to vacate the portion sold to him and other reasons, the sale
consideration was reduced from Rs.4,25,00,000/- to Rs.3,30,00,000/-.
vii. On the same date, an affidavit was also executed on behalf of the
plaintiff, wherein it had specifically been affirmed by the plaintiff that
due to some misunderstanding between the parties, the legal notice
th
dated 29 May, 2019 was served by the plaintiff to the defendant no.2
and subsequently, the matter has been settled between the parties. It
may be pertinent to note herein that the signed copy of this affidavit
was not filed by the plaintiff along with the documents in the suit and
has been filed by the defendants.
th
viii. Subsequently, a Sale Deed dated 9 March, 2020 was executed by the
plaintiff in favour of the defendants no.1 to 4 in respect of the suit
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 3 of 12
property, and the entire sale consideration of Rs.3,30,00,000/- has
been received by the plaintiff.
ix. Thereafter, there was a prolonged silence on behalf the plaintiff and
st
only on 1 July, 2021, a legal notice was issued by the plaintiff to
defendants no.1 to 5 asking them to make good loss of Rs.95,00,000/-
to the plaintiff.
x. Since defendants did not pay the aforesaid amount, the present suit
was instituted by the plaintiff in September, 2021.
8. The counsel for the plaintiff has vehemently contended that fraud was
played upon the plaintiff by the defendants no.1 to 4, who in collusion with
defendant no.5, obtained the suit property. It is contended that the defendant
no.5 in collusion with defendants no.1 to 4 did not vacate the property and
therefore, it resulted in the defendants no.1 to 4 coercing the plaintiff to sell
the suit property at a value, which was much less than what was agreed
upon.
9. The counsel for the defendants no.1 to 4 has denied that there was
fraud played on the plaintiff and that there was collusion between the
defendants no.1 to 4 and the defendant no.5.
th
10. I have gone through the Mutual Agreement dated 8 June, 2019
entered into between the plaintiff and defendants no.1 and 2, and the
th
registered Sale Deed dated 9 March, 2020, in terms of which document, the
possession and title of the property passed on to defendants no.1 to 4 from
the plaintiff.
th
11. The relevant provisions of the Mutual Agreement dated 8 June, 2019
are set out below:-
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 4 of 12
“1. That now entire sell consideration of the above said
property will be settled as Rs.3,30,00,000/- (Rs. Three Crore Thirty
Lacs only), and out which a sum of Rs.53,00,000/- (Rs. Fifty Three
lacs only) has been already received by the first party from the
second party as detailed above.
2. That the final time for the execution of proper sell document
and to give the balance amount of above said sell consideration as
been settled 30/11/2019.
3. That now the balance amount of the above said property
under sell is Rs. 2,77,00,000/- (Rs. Two Crore Seventy Seven lacs
only) which will be paid by the second party to the first party on or
before the 30/11/2019.”
12. This arrangement was reaffirmed by the plaintiff in the affidavit dated
th
8 June, 2019 executed by the plaintiff as follows:-
“I, SMT. VANDANA VERMA WIFE OF SHRI YOGENDER PAL
SINGH, RESIDENT OF S-523, SCHOOL BLOCK, SHAKAR PUR,
DELHI-110092, do hereby solemnly affirm and declare as under:-
1. That I sold my ONE BUILT UP PROPERTY BEARING
NO. S-523, ALONGWITH WHO OF ITS STRUCTURE
OF GROUND FLOOR, AREA MEASURING 200 SQ.
YDS., (EXCEPT ONE SHOP AREA MEASURING 12FT.
X 22.5FT., ON GROUND FLOOR, WHICH HAS BEEN
ALREADY SOLD BY THE FIRST PARTY TO SHRI
MANOJ KUAMR SON OF SHRI SIYA RAM), i.e. ON
GROUND FLOOR AREA MEASURING 170 SQ. YDS.
APPROX., AND AREA MEASURING ON FIRST FLOOR
AND ABOVE IS 200 SQ. YDS., WITH THE RIGHTS OF
UPPER CONSTRUCTION UPTO THE LAST STOREY,
FITTED WITH ELECTRICITY AND WATER
CONNECTION BOTH IN RUNNING CONDITIONS
WITH THEIR METERS, SITUATED IN THE AREA OF
VILLAGE SHAKAR PUR KHAS, IN THE ABADI OF
SCHOOL BLOCK, SHAKAR PUR, ILLAQA
SHAHDARA, DELHI-110092 :: TO :: (1) SHRI ROOP
SINGH SON OF LATE SHRI BHAWANI SINGH,
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 5 of 12
RESIDENT OF S-81, SUNDER BLOCK, SHAKAR PUR,
DELHI-110092, (2) SHRI TARSEM CHAND
AGGARWAL SON OF SHRI AMAR NATH AGGARWAL,
RESIDENT OF 489, SECOND FLOOR, SCHOOL
BLOCK, NEAR DDA PARK, SHAKAR PUR, DELHI-
110092, as per Agreement to Sell and Purchase on Dt.
24/01/2018…”
13. The plaintiff has not denied the execution of any of the aforesaid
documents. In fact, the plaintiff admits that the entire sale consideration in
th
respect of the Sale Deed dated 9 March, 2020 has been received by the
plaintiff. Further, it is an admitted position that the plaintiff remained silent
th
from the date of execution of the Sale Deed on 9 March, 2020 and only
st
sent the legal notice on 1 July, 2021, after almost 16 months. Though,
various allegations of fraud and collusion have been raised on behalf of the
plaintiff but these are the subject matter of trial in the suit.
14. The counsel for defendants has placed reliance on the judgment of the
Supreme Court in Dalpat Kumar and Anr. Vs. Prahlad Singh and Ors. ,
(1992) 1 SCC 719, paragraphs 4 and 5 of which judgment are set out
below:-
“4. Order 39 Rule 1(c) provides that temporary injunction may be
granted where, in any suit, it is proved by the affidavit or otherwise,
that the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in
the suit, the court may by order grant a temporary injunction to
restrain such act or make such other order for the purpose of
staying and preventing ... or dispossession of the plaintiff or
otherwise causing injury to the plaintiff in relation to any property
in dispute in the suit as the court thinks fit until the disposal of the
suit or until further orders. Pursuant to the recommendation of the
Law Commission clause (c) was brought on statute by Section
88(i)(c) of the Amending Act 104 of 1966 with effect from February
1, 1977. Earlier thereto there was no express power except the
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 6 of 12
inherent power under Section 151 CPC to grant ad interim
injunction against dispossession. Rule 1 primarily concerned with
the preservation of the property in dispute till legal rights are
adjudicated. Injunction is a judicial process by which a party is
required to do or to refrain from doing any particular act. It is in
the nature of preventive relief to a litigant to prevent future possible
injury. In other words, the court in exercise of the power of
granting ad interim injunction, is to preserve the subject matter of
the suit in the status quo for the time being. It is settled law that
the grant of injunction is a discretionary relief. The exercise
thereof is subject to the court satisfying that (1) there is a serious
disputed question to be tried in the suit and that an act, on the
facts before the court, there is probability of his being entitled to
the relief asked for by the plaintiff/defendant; (2) the court’s
interference is necessary to protect the party from the species of
injury. In other words, irreparable injury or damage would ensue
before the legal right would be established at trial; and (3) that the
comparative hardship or mischief or inconvenience which is likely
to occur from withholding the injunction will be greater than that
would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by
affidavit or otherwise that there is “a prima facie case” in his
favour which needs adjudication at the trial. The existence of the
prima facie right and infraction of the enjoyment of his property
or the right is a condition for the grant of temporary injunction.
Prima facie case is not to be confused with prima facie title which
has to be established, on evidence at the trial. Only prima facie
case is a substantial question raised, bona fide, which needs
investigation and a decision on merits. Satisfaction that there is a
prima facie case by itself is not sufficient to grant injunction. The
Court further has to satisfy that non-interference by the Court
would result in “irreparable injury” to the party seeking relief and
that there is no other remedy available to the party except one to
grant injunction and he needs protection from the consequences
of apprehended injury or dispossession. Irreparable injury,
however, does not mean that there must be no physical possibility
of repairing the injury, but means only that the injury must be a
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 7 of 12
material one, namely one that cannot be adequately compensated
by way of damages. The third condition also is that “the balance
of convenience” must be in favour of granting injunction. The
Court while granting or refusing to grant injunction should
exercise sound judicial discretion to find the amount of
substantial mischief or injury which is likely to be caused to the
parties, if the injunction is refused and compare it with that which
is likely to be caused to the other side if the injunction is granted.
If on weighing competing possibilities or probabilities of
likelihood of injury and if the Court considers that pending the
suit, the subject matter should be maintained in status quo, an
injunction would be issued. Thus the Court has to exercise its
sound judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit. ”
15. Reliance is also placed on Mandali Ranganna & Ors. Vs. T.
Ramachandra & Ors. , (2008) 11 SCC 1, by the counsel for defendants, and
paragraphs 21 and 22 of which judgment are set out below:-
“21. While considering an application for grant of injunction, the
court will not only take into consideration the basic elements in
relation thereto viz. existence of a prima facie case, balance of
convenience and irreparable injury, it must also take into
consideration the conduct of the parties .
22. Grant of injunction is an equitable relief. A person who had
kept quiet for a long time and allowed another to deal with the
properties exclusively, ordinarily would not be entitled to an order
of injunction. The court will not interfere only because the property
is a very valuable one. We are not however, oblivious of the fact
that grant or refusal of injunction has serious consequence
depending upon the nature thereof. The courts dealing with such
matters must make all endeavours to protect the interest of the
parties. For the said purpose, application of mind on the part of the
courts is imperative. Contentions raised by the parties must be
determined objectively.”
16. Upon applying the principles laid down in the aforesaid judgments to
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 8 of 12
the facts of the case, I am of the view that in the present case, the plaintiff
has failed to make out a prima facie case for grant of temporary injunction,
restraining the defendants from carrying out construction work in the suit
property and from selling, disposing or creating any third party interest in
the suit property. At best, the case of the plaintiff is with regard to the
deficient amount of consideration of Rs.95,00,000/-, which is a monetary
claim. If the plaintiff succeeds in the present suit she would be entitled to
recover the aforesaid amount from the defendants. It is to be noted that that
the plaintiff has preferred the present suit only in September, 2021, after
th
almost 16 months of the Sale Deed dated 9 March, 2020, during which
time period the defendants were free to deal with the properties exclusively.
17. Thus, in the opinion of this Court, the present case it is not one where
irreparable harm and injury would be caused to the plaintiff if the injunction
is not granted.
18. On the other hand, if the defendants are restrained from dealing with
the suit property, even after they have paid the full consideration in terms of
th
the Sale Deed dated 9 March, 2020 and which Sale Deed has been duly
executed in their favour, irreparable harm and injury would be caused to the
defendants. In the opinion of this Court, the balance of convenience also lies
in favour of the defendants.
19. In view of the above, no case for grant of interim injunction is made
out. Accordingly, I.A. No.11830/2021 stands dismissed.
20. In so far as I.A. No.11829/2021 is concerned, the law with regard to
the provisions of Order XXXVIII Rule 5 of the CPC has been settled by the
Supreme Court judgment in Raman Tech. & Process Engg. Co. & Anr. Vs.
Solanki Traders , (2008) 2 SCC 302, as below:-
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 9 of 12
“ 5. The power under Order 38 Rule 5 CPC is a drastic and
extraordinary power. Such power should not be exercised
mechanically or merely for the asking. It should be used
sparingly and strictly in accordance with the Rule. The purpose
of Order 38 Rule 5 is not to convert an unsecured debt into a
secured debt. Any attempt by a plaintiff to utilise the provisions
of Order 38 Rule 5 as a leverage for coercing the defendant to
settle the suit claim should be discouraged. Instances are not
wanting where bloated and doubtful claims are realised by
unscrupulous plaintiffs by obtaining orders of attachment before
judgment and forcing the defendants for out-of-court settlements
under threat of attachment.
6. A defendant is not debarred from dealing with his property
merely because a suit is filed or about to be filed against him.
Shifting of business from one premises to another premises or
removal of machinery to another premises by itself is not a ground
for granting attachment before judgment. A plaintiff should show,
prima facie, that his claim is bona fide and valid and also satisfy
the court that the defendant is about to remove or dispose of the
whole or part of his property, with the intention of obstructing or
delaying the execution of any decree that may be passed against
him, before power is exercised under Order 38 Rule 5 CPC.
Courts should also keep in view the principles relating to grant of
attachment before judgment. (See Premraj Mundra v. Md. Manech
Gazi [AIR 1951 Cal 156] for a clear summary of the principles.)”
21. The Supreme Court has observed as aforesaid that the provisions of
Order XXXVIII Rule 5 of the CPC have to be used sparingly and that the
plaintiff has to satisfy the Court that the defendant is seeking to remove or
dispose of whole or part of his property with the intention of obstructing or
delaying the execution of the decree that may be passed against him.
22. In M/s. K. C. V. Airways Ltd. & Anr. Vs. Wg. Cor. R. K. Blaggana ,
AIR 1998 Delhi 70, a Division Bench of this Court held that the power of
the Court under Order XXXVIII Rule 5 of the CPC is an extraordinary
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 10 of 12
remedy. Reference in this regard may be made to paragraph 8 of the
judgment:
“8. Needless to say, that R. 5 of O. XXXVIII, CPC is an extra
ordinary remedy and if the ingredients for invoking it are
lacking in the application and the affidavit filed in support
thereto attachment before judgment order cannot be ordered
claim for attachment before judgment on the averments has been
mainly set out in paras 7 and 8 reproduced above of the
application in question and a bare reading thereof reveals, that it
was not pleaded therein that the appellants with intent to
obstruct or delay the execution of the decree that may be passed
against them (a) are about to dispose of the whole or any part of
the property, or (b) are about to remove the whole or any part of
the property from the local limits of the jurisdiction of this
Court. Affidavit filed along with the application contains no
statement except an assertion that the respondent has gone
through the application and the facts stated therein are correct to
the best of his knowledge and information received. That be so, on
the basis of the averments as they stand made in the application
and the affidavit in question the appellant could not have been
legally asked to furnish security in the sum of Rs. 8,50 lacs.”
23. In light of the principles expounded in the judgments aforesaid, none
of the aforesaid parameters for granting attachment of the suit property
under Order XXXVIII Rule 5 of the CPC are fulfilled in the present case. As
held above by me, the plaintiff has failed to make out a prima facie case for
grant of interim injunction under the provisions of Order XXXIX Rules 1
and 2 of the CPC. Resultantly, no prima facie case is made out by the
plaintiff for grant of attachment of the suit property under the provisions of
Order XXXVIII Rule 5 of the CPC. Furthermore, the application filed on
behalf of the plaintiff is bereft of any details as to how relief under Order
XXXVIII Rule 5 of the CPC can be granted in her favour as there are no
material particulars pleaded in this regard. Such power cannot not be
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 11 of 12
exercised by this Court mechanically or merely for the asking of the
plaintiff.
24. Accordingly, I.A. No.11829/2021 stands dismissed.
I.A. No.4563/2022 (of the defendants no.1 to 4 u/O-VII R-11 of CPC)
25. The counsel for the defendants no.1 to 4 seeks to withdraw the present
application.
26. The application is dismissed as withdrawn.
I.A. No.15456/2021 (for bringing on record two Youtube videos) & I.A.
4564/2022 (for condonation of delay of 84 days in re-filing I.A.
No.4563/2022 )
27. In view of the orders passed above, no orders are required to be
passed in the said applications.
28. Both the applications are dismissed.
CS(OS) 437/2021
29. Pleadings are complete.
th
30. List for framing of issues on 4 May, 2022.
31. The counsels for the parties to file proposed list of issues atleast one
week before the next date of hearing.
AMIT BANSAL, J.
MARCH 24, 2022
at
Signature Not Verified
Signed By:SAKSHI
RAMOLA
Signing Date:03.27.2022
10:09:25
CS(OS) 437/2021 Page 12 of 12