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2001 DAILYLAW 981 (DEL)

HARISH RAMCHANDANI v. MANU RAMCHANDANI

2001-04-18

A K Sikri

body2001
A. K. SIKRI ( 1 ) THIS application is filed under the provisions of Order XXXIX Rule 10 of Code of Civil Procedure (for short Civil Procedure Code ). Prayer made in this application is that defendants, who according to the plaintiff are in unauthorised occupation of the suit property, may be directed to deposit in this court an amount of rs. 43,000. 00 p. m. from the date of filing of the suit till their continued use, occupation and enjoyment of the suit property. ( 2 ) THE suit filed by the plaintiff is for possession, permanent injunction, recovery of original documents, damages, mesne profits with interest and costs. The parties are related to each other. In fact the defendant No. 1 is real brother of the plaintiff, defendant No. 2 is wife of defendant No. l and defendants 3 and 4 are the children of defendant No. l. The plaintiff claims that he is the sole, absolute and exclusive owner of the first and second floors of the property bearing Municipal No. E-182. Greater kailash-II, New Delhi (hereinafter referred to as the suit property ) which comprised of five bedrooms with attached bathrooms drawing-cum--dining hall, lounges on both floors two kitchens and two servant quarters situated on the terrace floor. He had purchased the suit property from the previous owner that is his mother Late (Smt.)Sushila Ramchandani and three sale deeds dated 4/3/1994 8/3/1994 18/3/1994 were duly executed and registered with the sub-Registrar. He got the suit property mutated in his name and even carried out the construction/renovations in the suit property by adding one room, kitchen, drawing room and toilets on the second floor. Mother of the plaintiff died on 17/10/1995 while residing with the plaintiff in the suit property. It is further mentioned by the plaintiff in the plaint that while residing in this suit property, he acquired another property bearing No,m-24, Chittaranjan Park new Delhi which is an independent house. After its acquisition, the plaintiff decided to shift to the said property at. Chittaranjan Park. At this stage, the defendant No. 1 requested the plaintiff to allow him and his family to occupy the suit property and out of love and affection and regard for his elder brother, the plaintiff allowed the defendant No. 3. and his family members to occupy the suit property purely as licensee and for no other consideration whatsoever. Chittaranjan Park. At this stage, the defendant No. 1 requested the plaintiff to allow him and his family to occupy the suit property and out of love and affection and regard for his elder brother, the plaintiff allowed the defendant No. 3. and his family members to occupy the suit property purely as licensee and for no other consideration whatsoever. The possession of the suit property was given to the defendants sometime in february/march,1996 and the plaintiff shifted to his newly acquired property in chittaranjan Park sometime in the first week of April, 1996. However, while residing in the suit property defendants became greedy and developed illegal designs of grabbing the suit property. Accordingly the plaintiff asked the defendants to vacate the premises and even served legal notice dated 7/2/1997 to this effect. The defendants did not do so although on termination of licence by notice dated 7/2/1997 they became unauthorised occupants and trespassers in the suit property. It is further alleged in the plaint that after the receipt of the quit notice the defendant No. 1 illegally and surreptitiously on or before 15/2/1997 removed the three original sale deeds dated 4/3/1994 8/3/1994 18/3/1994 executed by Smt. Sushila Ramchandani in favour of the plaintiff in respect of suit property from the drawers and custody of the plaintiff situated in the premises No. M-368, Main Market, Grater Kailash-I , New delhi while the plaintiff was away to Jaipur. In the said shop partnership business was being run under the name and style of M/s Ramchandani Enterprises of which plaintiff, his mother and defendant No. 1 were partners. After the death of plaintiff s mother the business in the same name continued to be transacted by the plaintiff and defendant No. l although without entering into fresh partnership agreement. The defendant No. 1 was therefore having access to the shop premises where the sale deeds pertaining to the suit property were kept and he illegally removed the same in the absence of the plaintiff. On coming to know of this wrongful act of the defendant No. l. the plaintiff immediately sent notice dated 17/2/1997 calling upon the defendant No. l to return the original sale deeds. On coming to know of this wrongful act of the defendant No. l. the plaintiff immediately sent notice dated 17/2/1997 calling upon the defendant No. l to return the original sale deeds. In reply dated 20/2/1997 the defendant No. l took the plea that the plaintiff had agreed to sell the property after receiving sale consideration from the defendant No. l, and therefore, the defendant No. l was the owner of the suit property and in lawful possession thereof. The plaintiff refuted these allegations vide letter dated 14/3/1997 issued through his advocate reasserting his ownership and denying any such agreement to sell. The defendant No. l responded again vide letter dated 26/3/1997 wherein it was claimed that the defendant No. l had paid an amount of rs. 8,40,000. 00 as total sale consideration by three cheques dated 18/3/1996 and 4/4/1996- It was also mentioned that the plaintiff had purchased the property at Chittaranjan Park out of the aforesaid amount given by the defendant No. l. The plaintiff in these circumstances filed the instant suit for possession etc. ( 3 ) AS is obvious from the replies given by the defendant No. l to the plaintiff s notices in the written statement, the stand of the defendants is that the defendant No. l has purchased the property in question for Rs. 8,40,000. 00 for which three cheques of rs. 2,80,000. 00 each have been given. It is further stated that the agreement to sell was oral and the defendants did not insist on agreement in writing keeping in view the relationship between the parties. ( 4 ) IT is keeping in view the aforesaid respective claims of the parties in this suit that the present application is to be decided. The aforesaid narration of facts would reveal that there is no dispute that the plaintiff had purchased the suit property, by means of three sale deeds, from his mother. Sale consideration in respect of each portion/sale deed is Rs. 1,90,000. 00. It is further an admitted case that there is no written document evidencing any agreement to sell between the plaintiff and the defendant No. l. However, the defendant No. 1 has pleaded oral agreement to sell and has tried to explain the circumstances to show that such oral agreement to sell existed. The learned counsel for the defendants submitted that three cheques of Rs. 2,80,000. The learned counsel for the defendants submitted that three cheques of Rs. 2,80,000. 00 each given by the defendant No. 1 to plaintiff are not in dispute. The counsel submitted that dates on these cheques are crucial. Two cheques are dated 18/3/1996. Third cheque is dated 4/4/1996 on which date the defendants had shifted to the suit property after they were given possession by the plaintiff. It is submitted that oral agreement on 18/3/1996 was entered into. Since the property was purchased by the plaintiff from his mother by three sale deeds, the defendant No. l also agreed to give the consideration by means of three cheques. Not only there was any other purpose of giving these cheques there could not be any occasion to give the cheques which were three in number. It was submitted that the plaintiff had purchased the three portions comprising suit property at Rs. 1,90,000. 00 and the defendant No. l, being his brother, agreed to give him Rs. 2,80,000. 00 for each portion. It is out of these funds that the plaintiff purchased the property at Chittaranjan Park. The defendant No. 1 even purchased three stamps papers of the value of Rs. 24,200. 00 each for the purpose of executing the sale deed by the plaintiff. The stamps papers were purchased on 8/4/1996. The defendant No. l even constructed the second floor and is paying the house tax. ( 5 ) THE plaintiff has not denied the receipt of the three cheques of Rs. 2,80,000. 00 each. However, he alleges that the amount represented the loans granted by defendant No. l to the plaintiff in the course of business. It is further stated that the plaintiff could not sold the property at a meagre amount of rs. 8,40,000. 00 when the market value of the suit property was far in excess of Rs. 50. 00 lacs at the relevant time i. e. March/april, 1996. He has also relied upon the judgment of the Supreme Court in the case of Chaliagulla Ramachandrayya and Ors. Vs. Satyanaraand Ors. . . reported as AIR 1964 SC 877 in support of his submission that in the absence of any written agreement to sell doctrine of part performance as stipulated in Section 53a of the Transfer of property Act, 1882 was not applicable, and therefore, the defendants could not take advantage of payment by means of these three cheques. Satyanaraand Ors. . . reported as AIR 1964 SC 877 in support of his submission that in the absence of any written agreement to sell doctrine of part performance as stipulated in Section 53a of the Transfer of property Act, 1882 was not applicable, and therefore, the defendants could not take advantage of payment by means of these three cheques. ( 6 ) BEFORE dealing with the respective contentions, it would be appropriate to refer to the provisions of Order XXXIX Rule 10 Civil Procedure Code. This would enable us to ascertain as to what are the requirements to be satisfied before the plaintiff becomes entitled to an order for deposit by way of interim measure as per this provision. Order XXXIX Rule 10 Civil Procedure Code reads as under; "where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing a a trustee for another party or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court. " ( 7 ) THIS rule would be applicable only when there is an admission on the part of the defendants of the nature which would constitute sufficient admission under Order XII Rule 6 Civil Procedure Code. Rule 10 of Order XXXIX does not apply unless- (A) The admission of the party is an admission sufficient under 0. 12 R. 6 AIR 1927 Sind 25 (27 ). CB) The party making the admission "holds" the property or other things capable of deliver. (1903) 27 mad 168 (172) (SB ). ( 8 ) THE first thing which the plaintiff has to show, prima facie, that the defendants are in illegal and unauthorised occupation of the suit property in question. Although the plaintiff claims that he continues to be the owner of the property, the claim of the defendants is that the plaintiff had agreed to sell the suit property to the defendant No. 1 for which the plaintiff has even received complete sale consideration. Although the plaintiff claims that he continues to be the owner of the property, the claim of the defendants is that the plaintiff had agreed to sell the suit property to the defendant No. 1 for which the plaintiff has even received complete sale consideration. Although there is no agreement to sell in writing, keeping in view the relationship between the parties, it is possible that oral agreement to sell was entered into and such an agreement, if any, is not bad in law. The circumstantial evidence, prime facie, lends credence to the story putforth by the defendants, and therefore, it cannot be said that totally sham or frivolous defence is raised by the defendants, why the defendant No. 1 gave three A/c payee cheques to the plaintiff? why these three cheques were of rs. 2,80,000. 00 each? The three cheques correspond to three units of the suit property as the plaintiff also purchased the suit property by means of three agreement to sell. Further the dates when the cheques were given are also crucial. Two were given on 18/3/1996 and third was given on 4/4/1996 i. e. the period when defendants shifted in the suit property. Moreover what was the occasion for the defendants to purchase three sets of stamp papers for the purpose of sale deeds of the value of Rs. 24. 00. 00 each. The dates on these stamps papers which were purchased on 8/4/1996 are also crucial. The plaintiff gave first notice to the defendants calling upon the defendants to vacate the premises on 17/2/1997. The papers were purchased more than ten months before and at that time relations between the parties were normal and the defendants could not foresee that any such notice would be given by the plaintiff in future. Further the defendants carried out the construction on the second floor as well which in normal course the plaintiff would not have allowed. The defendant no. l is even paying the house tax of the suit property. Defendant no. l has even filed a suit for specific performance (Suit No. 1176/99) which is pending in this court. In view of the circumstances mentioned above and in view of their being serious disputes about the ownership of the property, at this stage it would be difficult to give a direction under Order XXXIX Rule 10 Civil Procedure Code. Defendant no. l has even filed a suit for specific performance (Suit No. 1176/99) which is pending in this court. In view of the circumstances mentioned above and in view of their being serious disputes about the ownership of the property, at this stage it would be difficult to give a direction under Order XXXIX Rule 10 Civil Procedure Code. ( 9 ) THE judgment cited by the plaintiff is not applicable to the facts and circumstances of the. present case. That was a case wherein the court was interpreting the provisions of Section 53a of the transfer of Property Act, 1882 and the court held that the doctrine of part performance would be applicable only where the requirements of Section 53a of the Act are satisfied. Facts are totally different. It was a for partition filed by three plaintiffs; third a purchaser of the interest of some of the reversloners. It was not a case like the present, where the defendants are claiming to be in possession of the house by virtue of agreement to sell for which they further claimed that they have paid the entire sale consideration. The IA is accordingly dismissed. ( 10 ) ALTHOUGH not required, still for the purpose of clarity, it is mentioned that any expression of opinion in this order is only tentative and will in no way prejudice either party.