MONICA GOGIA vs M S RSS ESTATE LLP & ANR.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09th March, 2024
+ CS(OS) 202/2024
MONICA GOGIA ….. Plaintiff
Through: Mr. Gopal Jain, Sr. Advocate with Mr. Saket Sikri, Mr. Arjun Syal, Ms. Mehaak Jaggi, Mr. Shreyan Dass, Mr. Randeep Sachdeva, Mr. Raghuveer Kapur, Mr. Rohit Kumar & Mr. Vaibhav Luthra, Advocates.
versus
M S RSS ESTATE LLP & ANR. ….. Defendants
Through: None.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 5650/2024 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
CS(OS) 202/2024
3. The present Suit for Cancellation and Permanent Injunction has been filed on behalf of the plaintiff seeking following reliefs: –
a. Pass a decree in favor of the Plaintiff and against the Defendants thereby cancelling the Agreement to Sell dated 22.01.2024 with respect to the Agricultural Land measuring 4 bighas i.e 4032 sq. yds, bearing Mustatil No. 33, Killa No. 17 min(4 0) situated in the revenue estate of Village Mehrauli, Tehsil Mehrauli, New Delhi;
b. Pass a decree in favor of the Plaintiff and against the Defendants thereby cancelling the purported Sale Deed executed for the Agricultural Land measuring 4 bighas i.e 4032 sq. yds, bearing Mustatil No. 33, Killa No. 17 min(4 0) situated in the revenue estate of Village Mehrauli, Tehsil Mehrauli, New Delhi;
c. Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendants thereby restraining the Defendants, their agents, attorneys, assignees from alienating, disposing, selling off or part with possession of Suit Property;
d. Pass a Decree of Permanent Injunction in favor of the Plaintiff and against the Defendants thereby restraining the Defendants, their agents, attorneys, assignees from entering into of Suit Property;
e. Pass a Decree awarding costs of the instant suit along with legal costs in favor of the Plaintiff and against the Defendants.
4. Issue summons.
5. On taking steps, let summons be issued on the defendants through ordinary and electronic modes, returnable on 13.03.2024.
I.A. 5646/2024 (u/O XXXIX Rules 1 & 2 r/w Section 151 of CPC, 1908)
6. By way of present application, the applicant/plaintiff seeks the following reliefs: –
a. Pass an Ex Parte Ad-Interim Order restraining the Defendants, their agents, attorneys, assignees from alienating, disposing, selling off or part with possession with the Suit Property, as defined in the accompanying Suit, till the pendency of the present Suit;
b. Pass an Ex Parte Ad-Interim Order restraining the Defendants, their agents, attorneys, assignees from carrying out any kind of construction on the Suit Property, as defined in the accompanying Suit, till the pendency of the present Suit;
c. Pass an Ex Parte Ad-Interim Order restraining the Defendants, their agents, attorneys, assignees from blocking the ingress and egress of the Plaintiff and her family to the Entire Property as the sole entrance to the Entire Property is vested in the Suit Property, till the pendency of the present Suit;
d. Pass an Ex Parte Ad-Interim Order restraining the Defendants, their agents, attorneys, assignees from entering into of Suit Property, as defined in the accompanying Suit, till the pendency of the present Suit;
e. Pass an Ex Parte Ad-Interim Order restraining the Defendants, their agents, attorneys, assignees from forcefully dispossessing the Plaintiff and her family from Suit Property, as defined in the accompanying Suit, till the pendency of the present Suit.
7. Briefly stated that the applicant/plaintiff is the sole and absolute owner of the Agricultural Land measuring 4 bighas (4032 sq. yards) bearing Mustatil No. 33 Killa No. 17 min (4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi (hereinafter referred to as the suit property) which is a part of the Agricultural Land admeasuring 12 bighas and 02 biswas Killa No. 17 min(4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi (hereinafter referred to as the entire property).
8. It is asserted that the applicant/plaintiff had acquired the entire property from HDFC Ltd. by way of a Public Auction in furtherance of which the Sale Certificate dated 12.05.2020 bearing Document No. 2030 and Additional Book No. I, Volume No. 3332 registered with the Office of Sub-Registrar, New Delhi, has been issued.
9. The defendant No. 1, M/s RSS Estate LLP with whom the applicant/plaintiff had entered into two Agreements to Sell both dated 22.01.2024. One Agreement to Sell (hereinafter referred to as ATS-I) is in respect of the suit property having market value Rs. 38,00,00,000/-, out of which Rs. 10,00,00,000/- has been paid by the defendant No. 1 at that time of execution of ATS-I and the balance consideration was payable on or before 10.02.2024. The second Agreement to Sell (hereinafter referred to as ATS-II) is for the remaining part of the entire property having market value of Rs. 95,50,00,000/- out of which Rs. 18,50,00,000/- has been paid by the defendant No. 1 at that the time of execution of ATS-II and the balance consideration was payable on or before 22.07.2024.
10. It is asserted that the defendant No. 1 has failed to pay balance consideration of Rs. 28,00,00,000/- qua the ATS-I on 10.02.2024. On enquiry, the defendant No. 1 made a specious excuse that the concerned Bank is in the process of approving the loan and assured that the balance consideration shall be paid soon and before the execution of the Sale Deed.
11. On 19.02.2024, the defendant No. 2/Shally Thapar, who is the designated partner of the defendant No. 1, along with 4-5 of her assignees, landed at the residence of the applicant/plaintiff unannounced with various documents which included NOC and purported Sale Deed and without any Bank official accompanying. The defendant No. 2 requested the applicant/plaintiff to sign and put her thumb impression on the said documents on the pretext that those documents were necessary for the loan and that the bank officials were urgently demanding the said documents failing which the loan sanction would be further delayed.
12. It was also stated by the defendant No. 2 that the registration process at the Office of Sub-Registrar, New Delhi is a time-taking process and signing and getting the Sale Deed ready would save the applicant/plaintiffs time at the Sub-Registrars Office.
13. The Sale Deed which was shown by the defendants specifically reflected that the total sale consideration for the suit property is Rs. 38,00,00,000/-. With the sense of urgency created by the defendants, the plaintiff signed the NOC and the purported Sale Deed on the assurance of the defendants that the Sale Deed would not be effective and not executed before the Sub-Registrars Office unless the applicant/plaintiff appears in person and authenticates her signatures therein and there would be no sale transaction till the time the parties appear before the Sub-Registrars Office.
14. The applicant/plaintiff was also assured that all her interests would be protected and she can choose not to appear before the Sub-Registrars Office until and unless the entire balance consideration is received by her.
15. The applicant/plaintiff, believing the assurances to be true in good faith, signed the Sale Deed along with NOC and other documents, without receiving the balance consideration.
16. On 23.02.2024, when the applicant/plaintiff reached the Office of Sub-Registrar, there was a long queue of applicants waiting for their respective turns. The applicant/plaintiff, who had already laid the ground for defrauding, was told by the defendant No. 2 to proceed for her biometrics on completion of which, she was kept waiting for the sale consideration, but no bank draft was furnished and the applicant/plaintiff returned.
17. The applicant/plaintiff and her family got rude shock on 27.02.2024 when the defendants attempted to dump certain materials on the suit property by misleading the guards as if the same was being done at the behest of the applicant/plaintiff and her family. When the applicant/plaintiff got suspicious of the ulterior motive of the defendants, she issued the Legal Notice dated 27.02.2024 terminating the ATS-I and forfeiting 10% of the entire sale consideration.
18. The applicant/plaintiff also issued the Letter dated 27.02.2024 to the Sub-Registrars Office informing about the termination of the ATS-I and requested him to not register any documents in respect of the suit property.
19. On 04.03.2024, the applicant/plaintiff received the Reply dated 29.02.2024 from the Office of the Sub-Registrar, seeking clarity on the documents referred to in her Letter dated 27.02.2024.
20. On 05.03.2024, the applicant/plaintiff responded the Letter dated 29.02.2024 issued by the Office of the Sub-Registrar and she received an SMS message from the Office Sub-Registrar stating that the Sale Deed for the suit property, has already been allegedly registered.
21. The applicant/plaintiff has further submitted that on 08.03.2024, a mob of 60-70 people, including the labourers, bouncers and armed gunmen entered into the suit property, who at the behest of the defendants constructed a wall between the suit property and the entire property thereby forcibly blocking the complete ingress and egress of the applicant/plaintiff to the suit property through the gate which is the only access point for the entire property.
22. Mr. Gopal Jain, learned Senior Advocate on behalf of the applicant/plaintiff, has submitted that there is only one entrance to the entire property and the way in which the wall has been constructed, it completely blocks the applicant/plaintiffs access to her house which is only through main/entrance gate. The construction of the said wall has led to a situation where the applicant/plaintiff and her family have been confined in their portion of the property which is behind the suit property.
23. Mr. Gopal Jain, learned Senior Advocate on behalf of the applicant/plaintiff, further submits that the husband of the applicant/plaintiff is paraplegic and in case of emergency, they would not be able to get out of the property.
24. He also submits that only a part consideration has been paid by the defendant No. 1 at the time of execution of the aforesaid two ATS and no balance consideration vis-a-vis., the two ATS has been paid till date and the fraud has been committed on the applicant/plaintiff by forcibly making the applicant/plaintiff sign the NOC and other documents being purportedly made for getting the loan when in fact, the same is now being alleged to be a Sale Deed.
25. The defendants have been duly served with the summons of the present Suit though none is present on behalf of the defendants.
26. Submissions heard.
27. The averments made in the Plaint are that there were two ATS both dated 22.01.2024 in respect of Agricultural Land measuring 4 bighas (4032 sq. yards) bearing Mustatil No. 33 Killa No. 17 min (4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi which is a part of the Agricultural Land admeasuring 12 bighas and 02 biswas Killa No. 17 min (4-0) situated in the Revenue Estate of Village Mehrauli, Tehsil Mehrauli, New Delhi.
28. Apparently, the Sale Deed has allegedly been executed in respect of suit property/front part in respect of which the ATS-I was executed between the applicant/plaintiff and the defendant No. 1. Now, a wall has been raised which has blocked the ingress and egress of the applicant/plaintiff to her part of the property, in which she is residing. The photographs have also been filed along with the present Suit in order to depict the actual situation as it exists today.
29. Considering the submissions made on behalf of the applicant/plaintiff and also that there is a challenge to the Sale Deed and it is claimed that the balance consideration vis-a-vis., the ATS-I has not been paid by the defendant No. 1, prima facie case is made out for staying any construction being carried out on the suit property till the next date of hearing.
30. Also, the defendants are directed not to confine and deny the applicant/plaintiff and her family to the egress and ingress through the main gate.
31. The defendants are further directed to provide access to the applicant/plaintiff to the ingress and egress to her part of the property, including the drive way of the applicant/plaintiff by removing any wall so constructed by the defendants.
32. The aforesaid access be provided by the defendants within three hours of communication of this Order and in case, the defendants fail to do so, the applicant/plaintiff is at liberty to get the same done by removing the obstruction/wall obstructing the drive way at her own expense, to be recovered from the defendants.
33. The parties shall maintain status quo vis-a-vis., the title and possession of the suit property till further Orders.
34. A copy of this Order be communicated to the defendants through through ordinary and electronic modes.
35. The copy of this Order may be taken dasti.
36. A copy of this Order be also communicated to the SHO concerned for compliance.
37. Till the next date of hearing, the parties to maintain status quo.
38. List on 13.03.2024.
39. Order dasti be given under the signatures of Deputy Controller of Accounts-cum-Private Secretary.
I.A. 5647/2022 (u/O XXVI Rule 9 of CPC, 1908)
40. By way of present application, the applicant/plaintiff seeks appointment of Local Commissioner to visit and inspect the suit property with the direction to take the photographs and make a videograph qua the construction being carried out for the purpose of record of this Court.
41. Mr. Gopal Jain, learned Senior Advocate on behalf of the applicant/plaintiff, requests that a Local Commissioner may be appointed in order to ascertain the ground situation at the suit property in question.
42. In view of the submissions made on behalf of the applicant/plaintiff as well as reasons and grounds stated in the present application, the application is allowed and Mr. Toshiv Goyal, Advocate, Mobile No. 9899003676, is hereby appointed as the Local Commissioner on the following terms and conditions: –
(i) The fee of the Local Commissioner is fixed at Rs. 2,00,000/- to be paid by the applicant/plaintiff.
(ii) The Local Commissioner shall visit the suit property on 10.03.2024 at 04:00 P.M. after giving intimation to the applicant/plaintiff as well as the defendants through E-mail, WhatsApp or telephonically.
(iii) The Local Commissioner shall submit his report about the existence of the construction and also about the persons who are in possession of the suit property.
(iv) The Local Commissioner shall take the photographs of the suit property.
43. Accordingly, the present application is disposed of.
I.A. 5648/2022 (u/S 151 of CPC, 1908)
44. By way of present application, the applicant/plaintiff seeks exemption from filing the court fee.
45. For the reasons and grounds stated in the present application, the application is allowed and the applicant/plaintiff is directed to pay the court fee within one week.
46. Accordingly, the application is disposed of.
I.A. 5649/2022 (u/S 151 of CPC, 1908)
47. By way of present application, the applicant/plaintiff seeks exemption from filing the duly affirmed affidavits.
48. For the reasons and grounds stated in the present application, the application is allowed and the applicant/plaintiff is directed to file the duly affirmed affidavits within one week.
49. Accordingly, the application is disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
MARCH 09, 2024
S.Sharma
CS(OS) 202/204 Page 10 of 10