Doctrine of Part Performance under TPA could be raised only if there is an agreement between the parties: High Court of Delhi

CS195 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI % Pronounced on: 07th February 2022 + CS(OS) 195 2021 I.A. Nos.4937 2021& 4939 2021(by the plaintiff under Order XI Rules 12 & 14 read with Section 151 CPC read with Sections 65 66 & 68 of the Indian Evidence Act 1872) & 11758 2021SUNIL KUMAR CHATURVEDI..... Plaintiff Through: Mr. Chetan Lokur & Mr. Jaspal Singh Advs. versus PIYUSH SAMA & ANR. ...... Defendants Through: Ms. Sonali Chopra Adv. for D 1 CORAM: HON BLE MS. JUSTICE ASHA MENON O R D E R I.A. 4937 20211. This application has been filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 CPC for ad interim ex parte injunction. CS195 2021 2. The plaintiff is a Hindu Undivided Familysuing through the ‘Karta’ Mr. Sunil Kumar Chaturvedifor declaration of title over the suit property namely Flat No.76 C 2C Pocket 2 Janakpuri New Delhi alongwith Barsati on the roof. The plaintiff claims to be the rightful owner in possession of the said property. Consequential reliefs of permanent and mandatory injunctions have been sought against the defendant No.1 to restrain the defendant No.1 from dispossessing the plaintiff from the suit property or alienating or creating any third party rights over it. 3. The facts as set out are that the suit property had been originally leased by the Delhi Development Authorityto one Mr. Inder Pal Singh Pantle on 20th September 1977. Subsequently on 11th July 1986 after receiving permission and approval from the DDA he sold the property to one Mr. Joginder Pal Singh by executing an Agreement to Sell and other relevant documents. Later a Sale Deed was registered on 13th February 1987. Thus all leasehold rights in the suit property were transferred to Mr. Joginder Pal Singh absolutely. On 18th April 1988 Mr. Joginder Pal Singh executed an Agreement to Sell and a General Power of Attorneyin favour of defendant No.2 Smt. Rita Chaudhary who is the sister in law of the Karta. The defendant No.2 permitted the Karta to live in the suit property alongwith his family and thus the Karta has remained in the peaceful possession of the suit property since 1988 in terms of the internal family understanding. 4. It is the case of the plaintiff that on 30th October 1995 defendant No.2 transferred her title and interest in the suit property in his favour by CS195 2021 way of a GPA and Agreement to Sell and other documents and thus w.e.f. that date he became the absolute owner of the suit property. On 13th January 2000 the plaintiff applied to the DDA for conversion of the suit property into freehold but since the requisite conversion charges could not be deposited the conversion did not take place. 5. Mr. Siddharth Chaturvedi a co parcener of the plaintiff being the son of the Karta had some disputes with his employer Fastway Transmission Pvt. Ltd.as there were allegations made by FTPL that Mr. Siddharth Chaturvedi had siphoned of funds collected from Fastway Media Cable Network Pvt. Ltd.a subsidiary of FTPL by receiving payments from cable operators but not depositing the same with FMCNPL. A FIR was also registered against him by FMCNPL on 20th March 2017 being FIR No.65 2017 at Police Station Division No.5 Ludhiana. He was also arrested on 10th September 2017. 6. It is the case of the plaintiff that under the coercion of FTPL and FMCNPL it was compelled to transfer four different properties including the suit property in the name of the representatives and associates of FTPL and FMCNPL and all title documents including those relating to the suit property were taken from the custody of the plaintiff on the pretext of preparing Agreement to Sell etc. However the defendant No.1 insisted that the Agreement to Sell should be executed by the defendant No.2. In these circumstances the defendant No.2 agreed to execute the Agreement to Sell in favour of the defendant No.1 though she had no marketable title or possession over the suit property. She did so only in order to secure the release of the son of the Karta Mr. Siddharth CS195 2021 Chaturvedi. 7. It is the contention of the learned counsel for the plaintiff that in actual fact no consideration had passed for this Agreement to Sell since the defendant No.1 had handed over a cheque of Rs.44 lakhs to defendant No.2 and defendant No.2 transferred the said amount to the plaintiff who in turn transferred the same to FMCNPL. Thus what was paid through cheque on 25th September 2017 was transferred on that very day into the account of FMCNPL. What was supposedly paid by the defendant No.1 had returned to him in other words. Learned counsel submitted that the Karta and his family members are still in possession of the entire suit property and therefore pending the disposal of the suit their possession be protected. 8. Learned counsel for the plaintiff also submitted that the defendant No.1 was closely connected with the FMCNPL as his maternal aunt was a 25% shareholder in it and all the documents filed by the defendant No.1 established the clear nexus between the defendant No.1 and FMCNPL. The bank statements that have been produced by defendant No.1 also disclose specific monetary transactional relationship between defendant No.1 and FMCNPL. It was defendant No.1 who had assisted Mr. Siddharth Chaturvedi to get a job at FMCNPL. The defendant No.1 was in possession of a Mahindra car which was actually owned by FMCNPL. The FMCNPL was being run and operated from a building which was owned by a close family member of defendant No.1. The defendant No.1 has also been receiving regular monetary remuneration from FMCNPL. CS195 2021 9. In the light of all these circumstances according to learned counsel it was clear that the defendant No.1 was linked with FMCNPL at whose instance Mr. Siddharth Chaturvedi had been arrested and hence the Agreement to Sell executed by defendant No.2 was clearly under coercion. Secondly no consideration had passed. Therefore the Agreement to Sell was invalid and non est and on that basis the defendant No.1 could not be permitted to dispossess the Karta and his family members from the suit property during the pendency of the suit. 10. Learned counsel for the plaintiff has also placed reliance on the judgment of the Supreme Court in Suraj Lamp & IndustriesLtd.v. State of Haryana 1 SCC 656 to submit that even the Supreme Court had protected bonafide transfer of immovable property between family members through Agreement to Sell GPA etc. whereas the transaction relied upon by the defendant No.1 was hit by Section 53A of the Transfer of Property Act 1882since the plaintiff having acted upon the Agreement to Sell dated 30th October 1995 and having paid full consideration and having been in possession since that date the plaintiff had a superior claim to the suit property than that set up by the defendant No.1. 11. The defendant No.1 has filed his written statement and reply to the application. Written arguments have also been filed on behalf of defendant No.1. 12. Ms. Sonali Chopra learned counsel for defendant No.1 submitted that defendant No.1 and Mr. Siddharth Chaturvedi were close friends CS195 2021 since 2006. In 2016 upon the arrest of Mr. Siddharth Chaturvedi on account of certain acts committed by him during his employment with FTPL in order to come to a one time full and final settlement with FTPL the Karta approached the defendant No.1 for assistance in arranging funds. Pursuant to those discussions the defendant No.1 purchased the suit property from defendant No.2 for a mutually agreed sum of Rs.44 lakhs. A registered Agreement to Sell and a registered GPA were executed on 25th September 2017 and the leasehold rights in respect of the suit property were voluntarily sold by defendant No.2 to defendant No.1 for the said sum. A cheque bearing No.536526 dated 22nd September 2017 was also handed over to defendant No.2 who encashed the same on 27th September 2017. 13. According to Ms. Chopra since the suit property was the only dwelling unit available with the Karta the defendant No.1 did not disturb their occupation till they found an alternate accommodation. Thus only symbolic possession was handed over by defendant No.2 to the defendant No.1. It is claimed that defendant No.1 was to be paid a sum of Rs.20 000 per month towards use and occupation charges by the Karta. Towards this end six cheques for Rs.20 000 each were handed over to the defendant No.1. However when three of these cheques were presented they were dishonored. However no legal action was taken as the son of the Karta pleaded financial crunch. 14. The learned counsel for defendant No.1 submitted that the plaintiff was relying on unregistered and unstamped documents. Therefore there was no valid transfer of rights in the immovable property. Section 54 of CS195 2021 the TPA provides that sale of immovable property can be only through a registered instrument. Even the Supreme Court in Suraj Lamp & IndustriesLtd.affirmed this position in law that an Agreement to Sell not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA. Thus the plaintiff could not claim any ownership or title in the suit property on the basis of which they could file the instant suit or seek interim protection. 15. In respect of the argument of learned counsel for the plaintiff that the plaintiff was protected under Section 53A of the TPA the learned counsel for the defendant No.1 submittedthat such a protection did not endow the transferee with any rights of ownership which remained with the full owner till it was legally conveyed by a registered Sale Deed in favour of the transferee. Since the defendant No.2 had not executed such a registered Sale Deed or any other instrument in favour of the plaintiff the mere continued possession cannot be accepted as a reflection of its ownership as the ownership continued to remain with the defendant No.2. In any case according to the learned counsel for the defendant No. 1 the doctrine of Part Performance as enshrined in Section 53A of the TPA could be raised by the plaintiff only against the defendant No.2 had there been an agreement between the two but was not relevant to determine the rights of the defendant No.1 in respect of the suit property as there was no privity of contract between them. 16. Learned counsel for defendant No.1 further submitted that the plaintiff had failed to disclose precisely the manner of the alleged fraud CS195 2021 that was committed as bald assertions and allegations were insufficient. Reliance has been placed on the decision of this Court in Mukesh Hans v. Uma Bhasin 2010 SCC OnLine Del 2776. It is also submitted that there was not one averment either in the plaint or in the application which satisfied the definition of ‘coercion’ under Section 15 of the Indian Contract Act 1872 or of ‘fraud’ as defined in Section 17 of the said Act. No circumstances have been set out in the plaint. No dates or time have been revealed. No other particulars have been disclosed on the basis of which the court could conclude that there was either fraud coercion or undue influence or all of them at the time when the Agreement to Sell was executed in favour of the defendant No.1 on 25th September 2017. Thus vague and frivolous pleas have been taken in an effort to defeat the rights of the defendant No.1. 17. It was submitted that admittedly the sale consideration of Rs.44 lakhs had actually been paid by defendant No.1 to defendant No.2. Thus through registered documents for consideration the suit property had been transferred to the defendant No.1. The plaintiff had transferred the money to FMCNPL only in terms of the one time full and final settlement entered between the Karta and FTPL. The defendant No.1 had no connection with FTPL but was only an employee of FMCNPL in which his maternal aunt was a 25% shareholder. Moreover the defendant No.2 had not challenged any of these registered documents executed by her in favour of defendant No.1. The GPA executed was an irrevocable registered Power of Attorney for valuable consideration and the Karta had participated in the execution and registration of these title documents CS195 2021 executed by defendant No.2 in favour of defendant No.1 signing the same as a witness. 18. Thus the plaintiff had neither disclosed a prima facie case nor would irreparable injury and damage be caused to him. The balance of convenience was also not in his favour and thus it was not entitled to any interim injunction. Hence it was prayed that the application be dismissed. 19. Though none had appeared on behalf of defendant No.2 to argue the matter in the written statement filed by defendant No. 2 she has materially supported the case of the plaintiff by stating that she was also a victim of the coercive action initiated by the defendant No.1. She has stated that she had transferred the suit property to the plaintiff way back on 30th October 1995 vide the Agreement to sell GPA etc. and that she treated the son of the Karta Mr. Siddhant Chaturvedi like her own son. Therefore when the defendant No.1 forced the Karta to transfer the suit property to him at the same time not wanting to show any link in the transaction out of filial love and on account of the pressure and coercion fraud and undue influence and extortion exerted upon her by defendant No.1 she agreed to execute the documents in his favour on 25th September 2017. The sale consideration of Rs.44 lakhs was as per the circle rate and whatever money was received by defendant No.2 on 29th September 2017 was returned to defendant No.1 as per his instructions. Thus it is clear that the defendant No.2 has also taken the stand that the consideration had been returned. 20. I have heard the submissions of learned counsel for the parties and CS195 2021 have also considered the material available on record. It is apparent from the pleadings that the material facts are not in dispute namely that there was an earlier transaction dated 30th October 1995 between the defendant No.2 and the plaintiff and that the plaintiff has been in possession since before then that Mr. Siddharth Chaturvedi was involved in a criminal case filed by FMCNPL of which the defendant No.1 is an employee and that in order to facilitate a one time settlement a transaction dated 25th September 2017 was facilitated in respect of the suit property which is now the bone of contention. 21. Both sides have relied on the decision of the Supreme Court in Suraj Lamp & IndustriesLtd.one claiming that such transactions between family members were to be recognized as argued on behalf of the plaintiff while the other submitting that without registration the prior documents could not have transferred any right in the immovable property to the plaintiff. 22. However the transaction between defendant No.2 and defendant No.1 has been questioned by the plaintiff firstly on a lack of title with the defendant No.2 to have transferred the suit property to defendant No.1 and secondly the absence of consideration. The routing of the sum of Rs.44 lakhs will need to be considered as to whether it went to defendant No.1 or went towards the final settlement of the matter with FMCNPL as it is not disputed by the defendant No.1 that the Karta had actually paid that sum of money to FMCNPL. It needs to be also determined on evidence as to the circumstances in which this transaction was effected in view of the fact that evidence in respect of the bail proceedings etc. CS195 2021 will be relevant to come to any conclusion. 23. To that extent the plaintiff has disclosed a prima facie case. The balance of convenience lies in favour of the plaintiff inasmuch as since the year 1988 the Karta and his family have been in a possession of the suit property and have continued to remain in possession thereof after the execution of documents by defendant No.2 in favour of the plaintiff on 30th October 1995. 24. Admittedly even after the execution of the documents in favour of the defendant No.1 on 25th September 2017 the Karta and his family members have continued to be in possession till date. Clearly irreparable loss and injury would be caused to the plaintiff if at the end of the trial it were to succeed in the suit but in the absence of an interim injunction it stood dispossessed or third party interests created in the suit property. 25. Thus in view of the observations made hereinabove the application is allowed. The defendant No.1 is restrained from interfering with the peaceful possession of the plaintiff and its members in the suit property namely Flat No.76 C 2C Pocket 2 Janakpuri New Delhi. The defendant No.1 is also restrained from creating any third party rights title or interests in the said suit property. 26. Nothing contained in this order shall be a reflection on the merits of the case. 27. The application stands disposed of. CS195 2021 CS(OS) 195 2021 I.A. Nos. 4939 2021& 11758 202128. List before the Joint Registrar on 12th April 2022 for completion of pleadings in the suit as well as in the applications and admission denial of documents. 29. The order be uploaded on the website forthwith. JUDGE FEBRUARY 07 2022 ck 

Summary: Doctrine of Part Performance as enshrined in Section 53A of the TPA (Transfer of Property Act, 1882) could be raised if there is an agreement between the parties. 53A expressly provides that the transferee should have taken possession of the property or if he being already in possession should continue in possession and the same should be in furtherance of a contract. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 &amp; 55 of the TPA and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SUNIL KUMAR CHATURVEDI (HUF) vs. PIYUSH SAMA &amp; ANR. [CS(OS) 195/2021] on 07.02.2022. The facts of the case are that the suit property had been originally leased by the Delhi Development Authority (DDA) to Mr. Inder Pal Singh Pantle. Subsequently, after receiving permission and approval from the DDA, he sold the property Mr. Joginder Pal Singh. Mr. Joginder Pal Singh, then executed an Agreement to Sell and a General Power of Attorney (GPA) in favour of defendant i.e. Smt. Rita Chaudhary, who is the sister-in-law of the Karta. The defendant permitted the Karta to live in the suit property and he remained in the peaceful possession of the suit property in terms of the internal family understanding. The defendant then executed the Agreement to Sell in the name of the representatives and associates of FTPL and FMCNPL even though she had no marketable title or possession over the suit property. The plaintiff is a Hindu Undivided Family (HUF) and is suing through the ‘Karta’ for declaration of title over the suit property as he claims to be the rightful owner in possession of the said property. The plaintiff’s counsel submitted that the Karta and his family members are still in possession of the entire suit property and therefore, pending the disposal of the suit, their possession be protected. He further submitted that the defendant was closely connected with the FMCNPL as his maternal aunt was a 25% shareholder in it and, all the documents filed by the defendant established the clear nexus. The Agreement to sell executed by defendant was clearly under coercion and no consideration had been passed. Therefore, the Agreement to Sell was invalid and non est and on that basis. The respondent’s counsel submitted that since the suit property was the only dwelling unit available with the Karta, the defendant did not disturb their occupation till they found an alternate accommodation. Thus, only symbolic possession was handed over by defendant to the Karta. According to facts and circumstances, Court disposed of the suit on terms that the plaintiff cannot claim any ownership or title in the suit property u/s 54 &amp; 55 of TPA on the basis of which they could file the instant suit or seek interim protection. The Court observed that, “doctrine of Part Performance as enshrined in Section 53A of the TPA could be raised if had there is an agreement between the parties. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 &amp; 55 of the TPA.”