HIGH COURT OF DELHI
C.M. (M) 672 of 2002 C.M. 1369 of 2003
Punjab National Bank Vs Iqbal Ahmad
R.S. Sodhi, J.
Decided on : November 7, 2003
R.S. Sodhi, J.:—C.M. (M) 672 of 2002 is directed against the judgment and order dated 2.9.2002 of the Additional District Judge, Delhi, in M.C.A. No. 1 of 2002 whereby the learned Judge, while adjudicating upon an appeal against the order of the trial court/Civil Judge, Delhi, dated 21.11.2000 allowing an application under Order 39 Rules 1 and 2 CPC, held that the appeal was devoid of any merits and upheld the order of the trial court.
2. Brief facts of the case, as noted by the learned Additional District Judge, are that:
“Sh. Abdul Ghaffar i.e. Father of plaintiff No. 1 and Shri Abdul Sattar i.e. Father of plaintiff No. 2 had purchased plot No. 40 in Hathi Khana Scheme, Bara Hindu Rao Road, Pul Bangesh, Delhi from Shri Mohd. Naqi in their joint names in the years 1944 and 1945.
Both the aforesaid persons entered into an agreement in the year 1962 that they would let out the ground floor of the said plot after raising the construction over the same at monthly rent of Rs. 2000/-. In the year 1962 the Punjab National Bank (to be referred as appellant bank) approached the father of the plaintiffs and entered into an agreement. The DDA did not grant ‘no objection certificate’ for construction of the plot for use of the bank. On 30.11.64, the office of then mayor of the office of MCD informed the respective fathers of the plaintiff that is, the respondents, that according to the master plan all vacant plots are to be acquired for community facilities. The appellant bank assured the fathers of the respondents that being the public utility concern they would get the plan sanctioned from the authority. On the assurance given by the appellant bank the aforesaid plots were given to the appellant bank vide agreement dated 31.3.65 and 9.10.65. The appellant bank further assured the respondents that after getting the plan sanctioned original agreement dated 28.6.63 in between the bank and owners would be implemented, so the sale deed dated 31.3.65 and 9.10.65 with regard to plot No. 40 and 41 were executed in favour of the bank. The original agreement were kept by the appellant bank and typed copies were handed over to the respondents’ father. The sale considerations were paid to the respondents’ father and were kept by the appellant bank in the form of fixed deposits subject to bank’s lien thereon and the bank also kept the fixed receipts with itself and till date the bank has not paid the said amount to the owners of the legal representatives of the owners of the plots. The bank has kept the plot as well as the sale amount and original documents illegally with it and thus, cheated the fathers of the respondents and caused them a great loss. The plots were grabbed by the appellant bank without paying a single penny to its owners. The appellant bank has taken the matter before the DDA regarding the grant of permission for raising construction but the same was rejected on 9.4.1973. The bank sent another letter dated 27.4.1973 along with the aforesaid letter dated 9.4.73 to the respective fathers of the respondents because the owners of the plot were equally interested in the construction of the plot as per the agreement with the appellant bank. It has been further submitted that the appellant was entitled for the possession of the ground floor on agreed rent and the fathers of the respondents were entitled to occupy the floors constructed above the ground floor as their resident. So the appellant bank has no other right or title except the limited right of tenancy. The appellant bank applied for sanction of the plan for raising construction over the land but same was not accepted by the competent authority who raised the objection that bank has failed to fulfill those objections. One of the objections raised by the competent authority is mutation from DDA in favour of the bank. The respondents also approached many a time to the officials of the bank to return the plot in question as per the terms of the agreement executed between the parties and the DDA has not done mutation in the name of the appellant
bank, the appellant bank is not entitled for the construction of the building over the plots as the appellant bank have not paid a single penny to them. It has been further alleged that on 31.8.2001 the respondents visited the said plots and saw that the defendants/appellant bank had collected building material to raise the construction there. The respondents requested the officials of the appellant bank not to take law in their own hands and not to raise construction over the said plot without settling the matter with the legal representatives of late Shri Abdul Ghaffar and Abdul Sattar but they refused to hear anything.
In the written statement of the DDA it has been submitted that suit plot No. 40 and 41 at Hathi Khana Scheme were disposed off by the DDA on free-hold basis to Shri Abdul Sattar, Abdul Gaffur and Mohd. Nai in 1943 through tenders vide agreement for sale. According to the agreement, the vendee was required to construct the building within 24 months from the date of laying down water pipelines. It has also been stipulated in the agreement that the vendees during the period of agreement shall not without first obtaining consent of the Trust in writing sub-divide the said land or part with the possession or transfer or sub-let the part of the said suit land. It has also been stipulated that in case the vendees commit any breach of agreement or make any default in the performance of terms of the agreement it shall be lawful for the trust or for any officer in its employment to take possession of the said suit land along with all such buildings or erections or materials as may be found thereupon for the absolute use of the trust or thereupon, this agreement shall be void and the security deposit shall be forfeited. The DDA has not allowed mutation in favour of appellant bank for violation of terms and conditions of agreement or sale. Since the plot has not been used within stipulated time the successors of the vendors also otherwise do not have any right, title over the suit land. The respondents have no specific right against the DDA.
In the written statement of appellant bank it has been submitted that the said deeds were duly executed on 29.3.65 and 9.10.65 by Abdul Ghaffar in favour of the appellant bank. According to clause 5 of the sale deeds executed in the year 1965 permission from the DDA for the sale, transfer and demise of the plot was to be obtained and delivered to the appellant bank. The appellant bank with a view to secure the compliance of the above said terms of the restitution and refund of the consideration entered into an agreement dated 31.3.65 with the vendor keeping consideration amount of sale in the form of FDRs for a period of one month. It was agreed that in case the permission was granted by the DDA for transfer of the plots then the appellant bank shall without the least objection on its part, return the FDRs on demand by the parties. It was further agreed that the return shall be made within one week of the notice of demand. It is further submitted that no such demand has yet been received by the bank till date. The original FDRs are in possession and custody of the bank which have been renewed from time to time
and the bank shall be ready to return the same to the proper person on the legal proof so furnished by the claimant. It has been denied that Abdul Sattar and Abdul Ghaffar continued to be the owner of the suit land. The appellant bank made purchase of the sale from Abdul Ghaffar and Abdul Ghaffar and Abdul Sattar through duly registered sale deed on 31.3.65 and 9.10.65. The respondents have no right in the demised plot. It has been further submitted that since the demised plot were purchased by the appellant bank through the registered sale deeds, the question of any agreement of tenancy, as alleged by the plaintiffs, does not arise at all. It has been further submitted that the DDA vide its letter dated 24.2.1984 has also issued no objection certificate to the appellant bank. The allegation regarding the legal notice dated 1.10.81 sent by the plaintiffs is wholly incorrect, baseless, irrelevant and tainted with mala fide. It has also been submitted that sale deeds dated 31.3.65 and 9.10.65 and the agreement executed on 31.3.65 and 16.10.65, the consideration amount of both the demised plots were volunterely deposited by the vendor late Shri Abdul Ghaffar and Abdul Sattar with the answering defendants/appellant bank in the shape of FDRs for the specific compliance of the agreement. As submitted above, the bank has safeguarded its interest through deposits and ready to pay the proceeds of the FDRs due as on date as and when the same are demanded by the duly authorised person or legal heirs. It has also been submitted that the appellant bank has duly obtained the sanction of the plan in respect of the demised plot as per the rules.”
3. The learned Civil Judge had held that prima facie case for allowing the application under Order 39 Rules 1 and 2 CPC had been made out. Aggrieved thereof, the appellant herein moved the First Appellate Court which court, as already stated, dismissed the appeal. It was contended by counsel for the petitioner that the courts below were wrong in laying undue importance on an unregistered document viz to vary the terms of a registered agreement. This, he submitted, cannot be allowed. He also submitted that the prayer which could not be granted in the main suit cannot be granted by way of an interim injunction and also that no injunction can be granted against the true owner of the property.
4. I have heard learned counsel for the parties at length and carefully gone through the judgment under challenge. It appears to me that by virtue of two registered sale deeds dated 31.3.1965 and 9.10.1965 in respect of plot Nos. 40 and 41, Hathikhana Scheme, Bara Hindu Rao Road, Pul Bangas, Delhi, being the subject matter of sale between the appellant herein and the predecessor-in-interest of the respondents. The sale deed dated 31.3.1965 acknowledged receipt of full consideration of Rs. 56,542/- by way of cheques dated 31.3.1965 drawn in favour of the vendees and actual physical possession of the said plot was handed over to the Punjab National Bank under clause 4 of the aforesaid sale deed. Under clause 5 thereof it was submitted that the vendor shall approach the DDA for permission to sell, transfer and assign the demised premises absolutely to the Punjab National Bank. Under clause 8, the Punjab National Bank was declared to be the sole and absolute owner with no right, title or interest
reserved to the vendors. Vide the second sale deed dated 9.10.1965 in respect of Plot No. 41, similar clauses, as were in sale deed dated 31.3.1965, were incorporated. By yet other agreements entered on 31.3.1965 and 16.10.1965, which are unregistered, it was agreed between the parties that the vendor shall be under an obligation to take steps to obtain permission from the DDA for transfer in favour of Punjab National Bank. It was further agreed that in the event permission was not granted then the vendors would deposit the entire amount of consideration received from the Punjab National Bank together with interest thereon. The building plans were sanctioned by the MCD and construction on the plot was allowed to commence by the DDA vide letter dated 24.2.1984 addressed to the Bank. It was on the basis of a No Objection Certificate from the DDA to the Bank dated 24.3.1984 that the building plans by the MCD were sanctioned.
5. It may be pointed out that no suit for specific performance of unregistered agreements dated 31.3.1965 and 16.10.1965 was filed nor have the respondents sought cancellation of the registered sale deed dated 31.3.1965 and 19.10.1965. This would lead to a situation where the respondents are not avoiding the transaction in the registered instrument but are seeking to use the unregistered agreements dated 31.3.1965 and 16.10.1965 to seek mandatory and permanent injunction as also possession. Such is impermissible and any interim order in furtherance thereof cannot be granted. It has been held by the Supreme Court in S. Saktivel (dead) by LRs. v. M. Venugopal Pillai and Ors., 2000 (7) SCC 104, that registered document cannot be rescinded, varied or altered by unregistered document. Therefore, no final relief can be granted on the basis of unregistered agreement in the teeth of the registered sale deed. Consequently, where a final relief cannot be granted, an interim relief to the same effect is also barred.
6. I need hardly go into other aspects of the matter raised by learned counsel, but suffice it to say that the injunction order under Order 39 Rules 1 and 2 CPC cannot be sustained in view of the registered sale deed not being canceled. In parting, I may deal with the objections of the respondents that this Court under Article 227 of the Constitution of India ought not to interfere with concurrent findings. No doubt, as a proposition of law this may be a good objection, however, where the CPC does not provide a remedy of revision or appeal against an interim order, a petition under Article 227 of the Constitution would lie. Reference may be had to JT 2003 (6) SC 465, Surya Dev Rai v. Ram Chander Rai Ors.
7. In view of the above discussion I hold that there is no prima facie case for grant of an interim injunction against the Bank as prayed for in the application under Order 39 Rules 1 and 2 read with Section 151 CPC. Therefore, the judgments of the trial court as also the first appellate court are set aside. C.M. (M) 672 of 2002 is allowed. However, no expression of opinion of facts and law should deter the trial court from dealing with the main suit in accordance with law. C.M. 1369 of 2003 also stands disposed of.