JUDGMENT
A.K. Sikri, J.
1. This suit filed by the plaintiff is for
specific performance of Agreement dated 3.7.1996 as
well as permanent injunction and declaration. The
plaintiff has averred in the plaint that vide Agreement
to Sell dated 3.7.1996 he purchased entire ground floor
of property bearing Shop No. 5, New Market, Malviya
Nagar, measuring 84 sq.yards with rear portion
measuring 12 ft 9 inch x 39 ft of the property bearing
Shop No. 6, New Market, Malviya Nagar (hereinafter to be
called as “suit property) with structure standing
thereon as well as fittings and fixtures installed
thereon along with proportionate share to leasehold
rights in the land. The Agreement to Sell was entered
into between the plaintiff and defendant No. 8, namely,
M/s. Shiv Ram Builders Pvt. Ltd. with late Shri Jiwan
Dass, father of defendants 2 to 7 and husband of
defendant No. 1 as confirming party. The case set up is
that late Shri Jiwan Dass was the owner of the property
in question who entered into a Construction Agreement
dated 3.4.1995 with defendant No. 8 by virtue of which
defendant No. 8 constructed the suit properly with its
own fund and resources. As per this construction
Agreement between late Shri Jiwan Dass and defendant
No. 8, late Shri Jiwan Dass was required to pay Rs. 29
lakhs as full and final settlement of construction.
Clause-7 of the Agreement stipulated that this payment
was to be made either during the construction or within
six months from the date of sanction of the plans of
the construction failing which he was liable to pay
interest on delayed payment at the rate of 2% P.M. to
defendant No. 8. Clause-10 further stipulated that in
case late Shri Jiwan Dass failed to make full and final
payment and failed to return the security deposit of
Rs. 6 lakhs to defendant No. 8 within a maximum period of
9 months from the date of sanction of the plans by MCD
then in such an event defendant No. 8 was to become
sole, absolute and exclusive owner and was entitled to
seek possession of the entire ground floor in lieu of
cost of construction incurred by it and the security
amount deposit along with interest on both the said
amounts. Since late Shri Jiwan Dass did not make the
payment, defendant No. 8 became the owner and took
possession of the entire ground floor of the suit
property.
2. Late Shri Jiwan Dass also executed several
documents on 27.3.1996 in favor of defendant No. 8
thereby transferring his right, title and interest in
the suit property. These documents included two
special power of attorneys, affidavit, general power of
attorney, will etc. On the strength of this general
power of attorney and after becoming the owner of the
suit property in the aforesaid manner, defendant No. 8
entered into an Agreement to Sell dated 3.7.1996 with
the plaintiff whereby the suit property was agreed to
be sold to the plaintiff for a total consideration of
Rs. 27 lakhs. The plaintiff took possession of the suit
property on spot in part performance of the Agreement
to Sell dated 3.7.1996 when on that date the plaintiff
made payment of Rs. 26.50 lakhs vide Cheque No. 511645 of
even date drawn on Punjab National Bank and Rs. 50,000/-
was paid by cash. Late Shri Jiwan Dass was confirming
party to this Agreement who signed the Agreement to
Sell dated 3.7.1996 in token on his acceptance to the
said deed.
3. It is also averred that the plaintiff is in
possession of the suit property for valid consideration
and entire consideration has been paid for which
defendant No. 8 has also executed the receipts as well
as other necessary documents. However, certain
disputes arose when late Shri Jiwan Dass and defendants
1 to 7 illegally and unlawfully started obstructing the
business activities of the plaintiff and causing
harassment to him and even FIR was lodged by late Shri
Jiwan Dass on 30-9-1998.
4. In these circumstances the plaintiff filed the
present suit praying for decree of specific performance
of Agreement dated 3-7-1996 and also prayed for decree
of permanent injunction restraining defendants 1 to 7
their legal heirs, employees, servants etc. from
obstructing the business activities of the plaintiff in
the suit property. The plaintiff has also prayed for
declaration to the effect that he is in possession of
the suit property in part performance of Agreement to
Sell dated 3-7-1996.
5. Along with this suit IA.No.5740/99 being an
application under Order XXXIX Rules 1 and 2 CPC praying
for ex-parte ad interim injunction restraining
defendants 1 to 7 from interfering in the peaceful
possession of the property has been filed. On
27.5.1999 while issuing summons in the suit, ex-parte
injunction order was passed on this application
restraining defendants from selling, transferring,
alienating or creating third party rights in the suit
property and also from obstructing ingress and egress
of the plaintiff in the suit property.
6. On summons being served upon the defendants,
the defendants have put in appearance. Defendants 1 to
7 have filed their written statement contesting the
suit. Defendant No. 8 has filed written statement
supporting the case of the plaintiff. In the written
statement filed on behalf of defendants 1 to 7 the main
defense set up is that late Shri Jiwan Dass was not the
owner of the suit property. In fact defendant No. 1 had
filed Suit No. 544/95 in which court decree was passed
on a compromise application filed by the parties and
defendant No. 8 was signatory to the said compromise
application and was fully in the knowledge of the fact
that it is the defendant No. 1 who had the right in the
ground floor of the suit property. Thus the ownership
rights in the ground floor of Shop No. 5 were recognised
by both late Shri Jiwan Dass and defendant No.8 in
compromise application dated 31.1.1996 and in view of
this defendant No. 8 could not have entered into
Agreement to Sell dated 3.7.1996 in respect of the same
portion of the property with the plaintiff. Likewise
late Shri Jiwan Dass could not act as confirming party
to the said Agreement. It is also sought to be
highlighted that all documents relied upon by the
plaintiff were either forged or drawn on blank papers
on which signatures of late Shri Jiwan Dass were
obtained fraudulently at the time of execution of the
construction agreement dated 3.4.1995. The defendants
1 to 7 have also tried to demonstrate the circumstances
on the basis of which it is sought to be contended that
in normal course such documents could not have been
executed and a fraud is played by defendant No. 8 in
collusion with other henchmen who are land grabbers.
These circumstances are not narrated in detail as it
may not be necessary to do so for the purpose of
present application.
7. At this stage while deciding the application
under Order XXXIX Rules 1 and 2 CPC the Court has to
satisfy itself about the presence of three conditions
before the plaintiff becomes entitled to an injunction,
namely, whether the plaintiff has good prima facie case
and is likely to succeed; whether balance of
convenience is in his favor and; whether the
plaintiff shall suffer irreparable loss and injury if
the injunction is not granted.
8. In order to appreciate the controversy in the
light of aforesaid parameters, let us first scan
through the admitted facts. Defendants 1 to 7 in fact
have not denied the existence of either Construction
Agreement dated 3.4.1995 between late Shri Jiwan Dass
and defendant No. 8, or for that matter other documents
executed between these two parties. They have also not
denied the execution of Agreement to Sell dated
3.7.1996 between the plaintiff and defendant No. 8 on
which late Shri Jiwan Dass signed as confirming party.
The thrust of the defense raised by defendants 1 to 7
is that these documents were got signed from late Shri
Jiwan Dass when they were blank and late Shri Jiwan
Dass was duped. However, at the time Construction
Agreement dated 3.4.1995 was executed between late Shri
Jiwan Dass and the defendant No. 8, the defendant No. 8
was to pay a sum of Rs. 6 lakhs by way of deposit and
amount of Rs. 5,40,000/- was paid by means of account
payee cheque drawn in favor of late Shri Jiwan Dass.
Receipt of this amount is also not denied. Although
there is a dispute about the payment of balance sum of
Rs. 60,000/-, fact remains that a sum of Rs. 5,40,000/-
was paid by cheque and accepted by Shri Jiwan Dass. If
there was no such Construction Agreement, on what
account he received the payment, needs to be answered
by the defendants 1 to 7. Agreement dated 3.7.1996 is
also not in dispute. The defendant No. 8 has accepted
having signed this Agreement. As afore-mentioned
signatures of late Shri Jiwan Dass as confirming party
on this Agreement are not denied the only averment made
is that his signatures were taken on blank document.
The sale consideration as per Agreement dated 3.7.1996
was Rs. 27 lakhs and on this very date cheque No. 511645
in the sum of Rs. 26,50,000/- drawn on Punjab National
Bank, Section-27, Noida was given by the plaintiff. The
payment of such a huge amount by means of cheque given
by the plaintiff on the execution of this Agreement
lends credence to the plaintiff’s case that such an
agreement was in fact entered into. When the plaintiff
made the payment of entire consideration on the same
date, his averment that possession of the suit premises
was given to him on that very date is highly probable.
Fact remains that admittedly as on date of the filing
of the suit, the plaintiff was in possession and
continues to remain in possession. It would be
worthwhile to mention at this stage that the defendants
1 to 7 filed various complaints against the plaintiff
and the defendant No. 8 including complaint dated
11.6.1999 before the Metropolitan Magistrate, New Delhi
and these complaints admit the possession of the
plaintiff in the suit property. The plaintiff is
running its business from this property. Thus
possession of the plaintiff in the suit property also
stands established.
9. It may also be significant to point out that
the defendants 1 to 7 have not filed any case against
the plaintiff to obtain possession of the property
which they claim has been illegally usurped from them
since 1995. They have also not filed any case against
defendant No. 8 or the plaintiff alleging that defendant
No. 8 or late Shri Jiwan Dass could not enter into
Agreement to Sell dated 3.7.1996 on the ground that it
is the defendant No. 1 who is the owner of ground floor
of the property.
10. Be that as it may, in view of there being
Agreement to Sell dated 3.7.1996 in favor of the
plaintiff in respect of suit property for which the
plaintiff has paid the consideration and settled
possession of the suit property, the plaintiff has made
out a prima facie case in his favor. Balance of
convenience also lies in favor of the plaintiff as the
purpose of temporary injunction pending the suit is to
maintain status quo in respect of the suit property.
Furthermore the injury likely to be suffered by the
plaintiff if the injunction is not granted would be
more than the injury that may be caused to the
defendants 1 to 7, in case injunction is granted and
the plaintiff ultimately fails in the suit inasmuch as
the defendants can take out appropriate proceedings for
alleged unlawful possession by the plaintiff in case
they ultimately succeed.
11. The defendants 1 to 7 are trying to argue that
this Court should infer that the documents signed by
late Shri Jiwan Dass were either blank or fraudulently
taken by the plaintiff and the defendant No. 8. These
are all disputed facts which can be thrashed out only
after the evidence is led. At this stage these
allegations cannot be presumed to be gospel truth and
the injunction to the plaintiff cannot be refused who
has produced on record number of documents in support
of his case and has also proved his settled possession.
12. The result of the aforesaid discussion is that
this IA.5740/99 stands allowed. Interim order dated
27th May, 1999 is made absolute till the disposal of the
suit.