Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14.03.2019
+ FAO(OS) No.114/2018
USHA GOYAL & ORS. ..... Petitioners
Through Mr.Pulkit Aggarwal, Adv.
Versus
DEVI DAYAL GARG & ANR. ..... Respondents
Through Mr.Shakeet, Mr.Sarwar Wari &
Mr.Sindhu Suta, Advs.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J (ORAL)
1. We have heard learned counsel for the parties. We proceed to
dispose of the present appeal.
2. The appellants are the wife, son and daughter of Late Shri
Manoj Goyal. Respondent No.2 is the mother-in-law of Late Shri
Manoj Goyal. Shri Manoj Goyal, according to the respondent
no.1/plaintiff, entered into an Agreement to Sell with the plaintiff in
respect of the property bearing No.2, Road 20 situated in Punjabi
Bagh East, New Delhi admeasuring 352.01 square yards. The
plaintiff claims that under the Agreement to Sell and Purchase dated
06.11.2013, he paid to Late Shri Manoj Goyal, an amount of Rs.51
lakhs by cheque, and an amount of Rs.1,01,25,000/- in cash on
FAO (OS) No.114/2018 Page 1 of 5
06.11.2013 as bayana/earnest money out of the total sale
consideration of Rs.12,01,00,000/- for purchase of the aforesaid
property. Soon after encashment of the cheque, Late Shri Manoj
Goyal refunded the amount of Rs.51 lakhs by cheque. The plaintiff
claims that the cash amount of Rs.1,01,25,000/- was, however, not
refunded. According to the plaintiff, Shri Manoj Goyal and the
plaintiff reinstated the Agreement to Sell subsequently.
3. The plaintiff has filed the suit to claim an amount of
Rs.2,53,50,000/- along with pendente lite and future interest at the
rate of 24% per annum. The amount of Rs.2,53,50,000/- is double of
the amount allegedly paid by the plaintiff to Late Shri Manoj Goyal.
The claim is on the basis that under the agreement, in case of default
of Shri Manoj Goyal-the seller, to complete the transaction, the
buyer/plaintiff was entitled to double the amount.
4. The plaintiff also moved an application under Order XXXIX
Rule 1 and 2 CPC (IA No.5609/2014) to seek an injunction against
the defendants from transferring, alienating or dealing with the
aforesaid property. It appears that an ex parte order of injunction was
passed in the suit against the defendants. The interim application was
heard and decided by the learned Single Judge vide the impugned
order dated 14.05.2018. The learned Single Judge has confirmed the
ex-parte injunction granted in favour of the plaintiff/respondent no.1,
restraining the heirs of Late Shri Manoj Goyal, who passed away
before the institution of the suit, from alienating or dealing with the
aforesaid property.
5. The appellants are aggrieved by the said injunction and,
FAO (OS) No.114/2018 Page 2 of 5
consequently, have preferred the present appeal. The submission of
the learned counsel for the appellants is that the application to seek
interim injunction in respect of the aforesaid property was not
maintainable, since the only relief sought in the suit is for recovery of
money and no interest is claimed in the property in respect of which
the injunction has been obtained. Learned counsel submits that soon
on the encashment of Rs.51 lakh, Shri Manoj Goyal refunded the said
amount and the plaintiff/respondent no.1 accepted the said refund
without protest/demur. The appellants/defendants deny that Shri
Manoj Goyal entered into the agreement as set up by the
plaintiff/respondent no.1 as well as the receipt inter alia in respect of
the cash payment of Rs.1,01,25,000/-. They also deny that the alleged
agreement was re-instated by Late Shri Manoj Goel.
6. On the other hand, learned counsel for the respondent no.1
firstly points out that the deletion of respondent no.2/Rama Goyal–
who is a party defendant in the suit and has also filed her written
statement, is improper. She has been deleted on the ground that she
cannot be served, even though, she is the mother-in-law of appellant
no.1 and grandmother of appellant nos.2 and 3. Learned counsel for
respondent no.1 further submits that the respondent no.1/plaintiff is
entitled to security for the amount claimed in the suit. The defendants
have not disclosed their other assets which would be available and
sufficient to satisfy the decree that may be passed in his suit.
7. We have considered the submissions of learned counsels. Since
the suit is not in respect of the property aforesaid, an injunction under
Order XXXIX Rule 1 and 2 CPC could not have been granted to
FAO (OS) No.114/2018 Page 3 of 5
restrain its alienation. To this extent, the submission of learned
counsel for the appellants appears to be justified. At the same time,
the respondent no.1/plaintiff is entitled to security of the amount
alleged to have been paid to Shri Manoj Goyal in cash i.e.
Rs.1,01,25,000/-. The plaintiff has placed on record the Receipt and
the agreement to sell claimed to have been executed by Late Shri
Manoj Goel, which records the receipt of the said amount in cash.
The trial in the suit would unravel the truth of the matter.
8. Learned counsel for respondent no.1 has submitted that he
should be secured for the suit amount, which is the double of the
amount allegedly paid to Shri Manoj Goyal. In this regard, he places
reliance on Clause 7 of the Agreement to Sell.
9. We are not inclined to agree with this submission, since the
claim for damages would have to be established upon trial.
10. We, therefore, modify the injunction granted by the learned
Single Judge vide the impugned order. The legal heirs of Shri Manoj
Goyal are free to deal with the said property. However, before they
enter into any transaction to transfer any rights in the said property in
the nature of sale, mortgage, gift etc., they should inform the Court of
the same, and they shall deposit in this Court the amount of
Rs.1,01,25,000/-. From out of the consideration received by them,
the amount shall be retained in the Court during the pendency of the
suit in a fixed Deposit in the name of the Registrar General of this
Court, and its disbursal shall abide by the final decree that the Court
may pass.
11. We make it clear that those directions shall not be construed as
FAO (OS) No.114/2018 Page 4 of 5
an opinion on the merits of the claim of the plaintiff, or the defence of
the defendants.
12. The appeal stands disposed of.
(VIPIN SANGHI)
JUDGE
(REKHA PALLI)
JUDGE
MARCH 14, 2019
gm
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