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J R Singhal v/s Kameshwar Das Atri & Others

    CS(OS). No. 3265 of 2015 & I.A. Nos. 22898-22899 of 2015

    Decided On, 18 July 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE MANMOHAN

    For the Plaintiff: Vineet Sinha, Advocate. For the Defendants: D1, Adarsh Kumar Gupta, Shashank A. Singh, D4, Subhash Chawla, D5 to D8, Akhil Sibal, Sr. Advocate, Rishi Manchanda, Davinder Hora, Nitya Gupta, Divya Singh, D9, Ajay Kohli, Bhumika Kapoor, D11, Soumitra Chatterjee, Sriparna Chatterjee, D12, Amita Gupta, Advocates.



Judgment Text

Oral:

1. Present suit has been filed for declaration, possession, mandatory injunction, damages and recovery of Rohini property.

2. It is the case of the plaintiff that the property No.21, Pocket I-5, Sector 16, Rohini, Delhi-110085 (hereinafter referred to as ‘suit property’) had been originally purchased by one Mr. Narinder Kalra, who sold it to Mr.Manish Gupta, who in turn, sold it to the plaintiff under an Agreement to Sell dated 11th September, 1995. The property was mutated in plaintiff’s favour on 06th October, 2009 and thereafter a registered Conveyance Deed was executed in favour of the plaintiff on 13th November, 2009. A building plan was sanctioned in favour of the plaintiff in 2011 and thereafter, the ground floor was constructed on the suit property in 2011.

3. It is the plaintiff’s case that since the plaintiff was a permanent resident of Alaknanda property at New Delhi, the suit property was lying vacant and unutilized.

4. The plaintiff is admittedly in possession of all the original documents of the suit property till date.

5. It is the plaintiff’s case in the present suit that in 2012, a sale deed of the suit property was executed in favour of defendant no.1 by a person who impersonated the plaintiff.

6. In the written statement, it is the defendant no.1’s case that the person who sold the property to defendant no.1 was introduced by defendant no.3. It is further averred that as the defendant no.3 owed money to the defendant no.1, no sale consideration was paid for purchase of the suit property. Subsequently, the property was mutated in the name of the defendant no.1 in MCD records.

7. On 03rd December, 2014, the defendant no.1 transferred the suit property to defendant nos.3 & 4, who happen to be husband and wife, by executing a sale deed.

8. Subsequently, the suit property was sold by defendant nos.3 & 4 to defendant nos.5 to

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8 vide sale deed dated 02nd June, 2015. The defendant nos.5 to 8 had purchased the suit property for Rupees One Crore Eighty Five Lacs, for which they had taken a loan of Rupees One Crore Sixty Three Lacs from defendant no.9/bank. The said defendants are in admitted possession of the suit property and have electricity as well as telephone connections in their name.

9. Since there was inter se dispute between the defendant no.9/bank and defendant nos.5 to 8 with regard to non-payment of the loan, the matter was referred to arbitration and an arbitral award dated 15th November, 2016 has been passed in favour of defendant no.9/bank for a sum of Rupees One Crore Sixty Seven Lacs Eighty Six Thousand One Hundred Sixty One against defendant nos.5 to 8.

10. On 09th July, 2018, when this Court had heard the matter, the admitted position that emerged was that the suit property had been transferred in favour of the defendant no.1 by fraudulent means inasmuch as the plaintiff had never executed a sale deed in 2012 in favour of defendant no.1. Even the photograph of the seller on the sale deed executed in favour of defendant no.1 was not that of the plaintiff.

11. Further, learned counsel for defendant no.4 (who is the wife of defendant no.3), during the course of arguments, admitted that the transfer of title of the suit property in favour of the defendants was fraudulent and the defendant nos.1 to 3 were jointly carrying on the business of purchasing properties. He also drew attention of this Court to the written statement filed by defendant no.4. The relevant portion of the written statement filed by defendant no.4 is reproduced hereinbelow:-

'........The defendant no.1 to 3 are in the business of real Estate for last several years and they have jointly made several transactions of property sale purchase in last 10-12 years. The answering defendant no.4 had no personal dealing with the plaintiff or the defendant no.1 and 2 as well as defendant no.5 to 8. The defendants no.1 to 3 have jointly purchased properties in past also as informed to the answering defendant no.4 by her husband defendant no.3. The answering defendant no.4 had no involvement in the business of defendant no.3.

xxx xxx xxx

The defendant no.3 for past about one year has been torturing the answering defendant one way or the other as she some how got knowledge of the fact that defendant no.3 has committed forgery and fraud and he has opened some bank account in joint names of himself and defendant no.4 on the basis of forged documents and ID proof of defendant no.4, and he used to himself operate all such accounts, with HDFC Bank, ICICI Bank, Axis Bank etc, by forging signature of defendant no.4 also. Finally on 16/05/2016 the defendant no.3 suddenly turned her out from the matrimonial home and now the answering defendant is residing separately at 2nd Floor Flat no. 17, Pocket – 13, Sector 24, Rohini Delhi in the rented accommodation. It is further submitted that answering defendant was during these 12 years of her marriage with defendant no.3, has never heard of any relative or friend of her husband (defendant no.3) by the name J.R. Singhal,(plaintiff) nor she ever met any relative or friend of her husband/defendant no.3 by the name Sh. J.R. Singhal (plaintiff). In Fact the answering defendant has never interfered in the business of her husband. However on the request of her husband she has earlier also executed sale purchase documents for the properties which were purchased by her husband in joint name of himself and defendant no.4 and later sold by her husband. The defendant no.3 has opened some joint Bank account of himself and the answering defendant in some banks as above stated and which accounts were in fact operated by defendant no.3 only and he only used to put funds in the said accounts. After getting documents of this case she met officials of Axis Bank and sought details of the account no. ...........but the bank refused to give any details stating that the account was being operated by defendant no.3 he being the 1st joint account holder and therefore details can be provided only if the request is made by defendant no.3. The counsel for answering defendant also issued a legal notice to said bank demanding the details but still the said bank has not provided any details. Hence in the circumstances the answering defendant is filing this interim reply and as and when she gets details from various banks the full and complete reply/W.S shall be filed.

3. The suit property bearing house no. 21, Pocket I-5, Sector 16, Rohini Delhi was purchased by defendant no. 3 Sh. Radhey Shyam, the husband of answering defendant from the defendant 1 Sh. Kameshwar Das Atri. However the sale deed was got registered by defendant no.3 in joint name of defendants no.3 and 4 and the defendant no.4 on the request of her husband signed the sale deed without knowing any thing and just believing her husband. The answering defendant had no knowledge of the transaction. The entire sale consideration was paid by defendant no.3. The answering defendant has no knowledge of any bank account with Axis bank Tri Nagar or regarding any other joint bank account as she never opened any account in the said bank nor she ever visited the said bank as well as HDFC and ICICI banks etc for any banking transaction. The answering defendant has no knowledge how the defendant no.3 arranged the funds to pay for the entire sale consideration to purchase the above mentioned property no.21, Pocket-I-5, Sector 16, Rohini Delhi. However from the documents placed on records by the plaintiff in this case, it is evident that the defendant no.1 received full sale consideration for sale of the suit property to the defendant no.3 in December 2014.

4. It is further that the defendants no.5 to 8 later in year 2015 approached the defendant no.3 for purchase of the suit property. All the negotiations were held between the defendant no.3 and defendants no.5 to 8 and in none of the meetings the answering defendant was present. The defendants 5 to 8 negotiated with defendant no.3 for purchase of the property and when the deal was finalized and the sale deed was to be executed the defendant no.3 took the answering defendant to office of sub registrar for signing and registration of the sale deed and the answering defendant being wife of defendant no.3 followed the instructions of her husband and signed the sale deed and it then got registered. The entire sale consideration was received by defendant no.3 and answering defendant has no knowledge where the defendant no.3 deposited the amount of sale consideration received by him from defendants no.5 to 8. The answering defendant has no knowledge as to where the defendant no.3 deposited the pay orders/cheques received by him from defendants no.5 to 8. The answering defendant did not even enquired from defendant no.3 in this respect as the defendant no.4 was only a benami owner for her husband. The real owner was defendant no.3 had opened several joint bank accounts in his name with answering defendants which accounts were operated by defendant no.3 only. The answering defendant has now come to know and therefore she got published a public notice in this respect in the newspaper on -----. Clarifying her position to the general public and cautioning the general public for dealing with defendant no.3. It is again placed on records that the entire sale consideration as received by defendant no.3 from the defendants no. 5 to 8 for sale of the suit property has been kept and utilized by the defendant no.3 only. In past also the defendant no.3 has no various occasions compelled the answering defendant to sign the sale documents for the properties and motor vehicles, for which the answering defendant had no knowledge as to how and when the said properties were purchased. The answering defendant as compelled to sign the documents in order to save her matrimonial life as she married the defendant no.3 against consent of her parents.' (emphasis supplied)

12. The admitted position is that the bank accounts of defendant nos.3 & 4 had been seized by the police in proceedings filed by the defendant nos.5 to 8.

13. Consequently, this Court on 09th July, 2018 had observed that it was a prima facie case of egregious fraud and it was a fit case for suo motu appointment of a Receiver. However, on the said date, the order for appointment of the Receiver was deferred as the proxy counsel for defendant nos.5 to 8 had stated that Mr. Devender Hora, arguing counsel for defendant nos.5 to 8 was unwell.

14. Today, learned senior counsel appears for defendant nos.5 to 8 contends that no strong prima facie case is made out of any collusion of defendant nos.5 to 8 with defendant nos.1 to 3. Learned senior counsel for defendant nos.5 to 8 disputes the factum of a fraud having been perpetrated by defendant nos.5 to 8 in the matter. He further states that defendant nos.5 to 8 are eventual losers as defendant nos.3 & 4 had pocketed the sale consideration of Rupees One Crore Eighty Five Lacs and defendant nos.5 to 8 are still liable to make payment to the bank for the loan that they had taken and are rather bonafide purchasers.

15. He also submits that it would not be just and convenient to appoint a Receiver in the facts of the present case. In support of his submission, he relies upon the Division Bench judgment of this Court in Mohinder Nath Vs. Narender Nath; 1998 (45) DRJ, wherein it has been held as under:-

'In T.Krishnaswamy Chetty Vs. Thangavelu Chetty and Others, it was held that the appointment of a receiver is recognised as one of the harshest remedies which the law provided for the enforcement of right and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. Therefore, this exceedingly delicate and responsible duty has to be discharged by the court with utmost caution and only when the requirements embodied in the words "just and convenient" in Order 40 Rule 1 are fulfillled by the facts of the case under consideration. Some of these requirements are:-

"1. The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

2. Not only must the plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.

3. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one. And

4. The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse the interfere unless his conduct has been free from blame.'

16. He also relies upon the Division Bench judgment of the Bombay High Court in B.D.A. Ltd., Bombay Vs. Central Bank of India & Anr., 1995 SCC OnLine Bom 298, wherein it has been held as under:-

'4. The principles relating to appointment of a receiver are well-settled for more then a century and we respectfully agree with the principles laid down in the Madras decision in Krishnaswamy Chetty (T.) v. Thangavelu Chetty (C.) , where Ramaswami J. (as his Lordship then was), has laid down the five principles or requirements which have been described by His Lordship as "panch sadachar" of our courts exercising equity jurisdiction in appointing receiver.

5. According to the catena of decisions referred to in that Madras decision, the element of danger is an important consideration and the court will not act on possible danger only but the danger must be great and imminent demanding immediate relief. The appointment of a receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the creditors is exposed to manifest peril. We are afraid that the case at hand does not satisfy these tests. It would be trite to say that a receiver is not to be appointed unless there is some substantial ground for such interference, such as a well founded apprehension that the property in suit will be dissipated or other irreparable mischief may be done unless the court appoints a receiver.'

17. He lastly states that without prejudice defendant nos.5 to 8 are willing to pay Rs.10,000/- per month as use and occupation charges as claimed by the plaintiff.

18. Having perused the paper book, this Court finds that there had been a fraudulent transfer of the suit property in favour of defendant no.1 in 2012, inasmuch as, the said sale deed had been executed by a person who impersonated the plaintiff. Also, the fact that the defendant no.1 had paid no sale consideration for transfer of the suit property proves prima facie that the plaintiff is a victim of fraud.

19. Further, the written statement filed by defendant no.4 reads prima facie like a statement of an approver, inasmuch as, the defendant no.4 has admitted that the defendant no.3 had committed forgery and fraud.

20. Though learned senior counsel for defendant nos.5 to 8 tried to urge that his clients were victims of fraud, yet their contemporaneous conduct is not ‘above board’, inasmuch as, they have not filed any civil proceedings till date against the remaining defendants, even though the transfer of suit property in favour of defendant no.1 and, thereafter, to defendant no.3 is admittedly vitiated by fraud.

21. Initially, there was even reluctance on the part of defendant nos.5 to 8 to disclose what amount they had actually paid out of their own pockets either to defendant no.9/bank or to defendant nos.3 & 4. However, when the order was being dictated, counsel for defendant nos.5 to 8 after taking telephonic instructions stated that they had paid approximately Rupees fifteen lakhs by way of an EMI to the bank (against loan of Rupees One Crore Sixty Three lacs) and Rupees Twenty Lacs Fifteen Thousand in cash to defendant nos.3 & 4 and the balance amount had been paid by defendant no.9/Bank to defendant nos.3 and 4.

22. This Court at the present stage of proceedings is of the view that prima facie defendant nos.5 to 8 cannot be allowed to remain in possession of the suit property after paying only Rupees Fifteen lacs by way of a cheque to the bank, and that too against a loan of Rupees One Crore Sixty Seven Lacs Eighty Six Thousand One Hundred Sixty One. Further, as an arbitral award dated 15th November, 2016 for sum of Rupees One Crore Sixty Seven Lacs Eighty Six Thousand One Hundred Sixty One has been passed against defendant nos.5 to 8 and they have not taken any steps to challenge the same, this Court is of the view that prima facie there is fraud and/or illegality at both the ends of the spectrums i.e. initially upon the plaintiff and at the other extreme, upon the defendant no.9/bank.

23. Keeping in view the serious fraud that has been perpetrated by some of the defendants, this Court is of the view that it would not be just and proper to allow the defendant nos.5 to 8 to remain in possession of the suit property. There is real and imminent danger of the possession of the property being parted with and/or third party rights being created. In any event, equity also demands that persons who have paid Rupees Fifteen Lacs cannot be allowed to remain in possession of the property worth in excess of Rupees One Crore Seventy Five Lacs, especially when the title holder (plaintiff) and the respondent no.9/bank, who had financed the transaction of purchase are out of possession.

24. It is settled law that under Order XL CPC, the Court has the power to appoint a Receiver where it appears to it that it would be just and convenient to do so. Order XL CPC does not require that there should be an application to appoint a Receiver. Even without such an application and if the facts and circumstances of the case so warrant, the Court can suo motu appoint a Receiver (See: Ravi Lakshmaiah Vs. Nagamothu Lakshmi; 1970 SCC OnLine A.P. 44).

25. Mr. D.K. Batra, former Registrar, Delhi High Court, Mobile No.9910390913 is appointed as the Receiver to take over the possession of the suit premises forthwith. The fee of the Receiver is tentatively fixed at Rs.1,00,000/-. The local police is directed to render all assistance to the Receiver.

26. Learned counsel for the parties are given liberty to locate a suitable tenant within a period of four weeks. The offers received by the Receiver shall be placed before the Court for consideration on the next date of hearing.

27. Defendant nos.3 & 4 are directed to be personally present in Court on the next date of hearing as this Court intends to examine them under Order 10 CPC. Learned counsel for the plaintiff as well as defendant no.9/bank and defendant nos.5 to 8 are directed to file their proposed questionnaire in a sealed cover within a period of four weeks.

28. The Investigating Officers are also directed to be personally present in Court along with a status report. Registry is directed to intimate a copy of this order to the SHO concerned in FIR No.270/2017 dated 03rd July, 2017 and FIR No.1200/2015 both registered at PS K.N. Katju Marg.

29. List on 19th September, 2018.

30. Registry is directed to intimate a copy of this order to Mr.D.K. Batra, Receiver, forthwith.

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