YOTSANA ARTI Vs. PREM SINGH

JUDGEMENT

(1.) By this application under Order 39 Rule 4 of the Code of Civil Procedure, 1908 (for short 'Civil Procedure Code'), 2nd and 3rd defendants are seeking vacation of the interim order dated 12.6.1998, whereby the defendants were restrained from alienating, encumbering or parting with possession in any manner with the premises No. D-125, Anand Niketan, Moti Bagh-II, New Delhi (for short 'the suit

(2.) Facts in brief are : that on 22.9.1997, plaintiff filed a suit for specific performance alleging that 2nd defendant-Ms. Rachna Sethi, was allotted the plot of land measuring 262.83 sq. yds. by DDA, through registered sub-lease in her name. On 5.3.1974, she executed an irrevocable General Power of Attorney in favour of 1st defendant-Prem Singh, registered in the Office of Sub-Registrar, as Document No. 1449 in Additional Book No. 4 Volume 285 on pages 9-10 vesting him with powers in respect of the suit property, including the power to take possession, to manage, supervise and control it; to make any construction, additions or alterations on it; to apply for sanctioning of building plan for construction of the building/additional construction; to apply for conversion from lease-hold to free-hold; to sell / mortgage it and to receive earnest money, part payment, full and final sale consideration and to issue receipt; to obtain sale permission/N.O.C.; to submit necessary documents for its transfer etc., to hand over vacant and peaceful possession of the suit property to the purchaser and get the same mutated in the name of the purchaser (for short the disputed GPA).

(3.) On 29.6.1996, the 1st defendant-Prem Singh, on the basis of the said disputed GPA, executed an agreement to sell in favour of the plaintiff, agreeing to sell the suit property for Rs. 21.00 lacs allegedly paid in cash in three instalments of Rs. 2.50, Rs. 2.50 and Rs. 16.00 lacs each, on 29.6.1996,10.12.1996 and on 29.12.1996 respectively; and that 1st defendant on 7.10.1997, executed general power of attorney in favour of the mother of the plaintiff, who applied to the DDA for conversion of the suit property from lease-hold to free-hold and for transfer of the same in favour of the plaintiff. It is further pleaded that on 6.1.1997 notice was published on behalf of 2nd defendant-Ms. Rachna Sethi in "The Hindustan Times", stating therein that the 2nd defendant-Ms. Rachna Sethi/ had entered into a development agreement with M/s. Vobco Engineers and Consultants Pvt. Ltd., in respect of the suit property, and that anybody else dealing with the same, would be doing so at his own risk and responsibility. On 8.1.1997 the plaintiff sent reply to the public notice; and on 9.1.1997 the plaintiff found her locks over the property broken and the same was occupied by some unknown persons. It is claimed that a report in this regard was lodged to the Deputy Commissioner of Police, South West Zone, New Delhi. It is alleged that on 2.9.1997, the plaintiff alongwith her mother visited the suit property and found that the 3rd defendant-M/s. Vobco Engineers and Consultants Pvt. Ltd. had started raising construction on the suit property after demolishing the existing structure; the plaintiff alongwith her mother was booked by the police, for the offences punishable under Sections 452/342/506/427/34, Indian Penal Code vide FIR No. 732/97. They were granted bail on 6.9.1997. Lastly, it is alleged that the plaintiff had always been ready and willing to fulfil her part of the obligations as contemplated in the sale agreement dated 29.6.1996 with the 1st defendant-Prem Singh, to whom the entire sale consideration of Rs. 21.00 lacs was paid. On these averments the plaintiff has prayed for a decree of specific performance against 1st and 2nd defendants in respect to the suit property. On 8.7.1999, the 1st defendant-Prem Singh filed written statement supporting the case of the plaintiff.