PRALEEN CHOPRA Vs. HONEY BHAGAT

JUDGEMENT

(1.) The plaintiff Praleen Chopra has instituted the suit against the five defendants namely (i) Honey Bhagat; (ii) Rohit Bhagat; (iii) RV Akash Ganga Infrastructure Ltd.; (iv) Dewan Housing Finance Corporation Ltd.; and, (v) Tanisha INFO Pvt. Ltd., for the reliefs of (i) declaration as null, void and nonest of Sale Deed dated 25th May, 2016 executed by defendants no. 1 to 3 in favour of defendant no.5 with respect to third floor of the North side portion of property No.47 North Avenue Road, Punjabi Bagh, New Delhi; (ii) for cancellation of the said Sale Deed; (iii) recovery of vacant, peaceful and physical possession of the said property; (iv) permanent injunction restraining defendants no. 1 to 5 from dealing with the property; (v) mandatory injunction directing defendant no.5 to deliver vacant, peaceful and physical possession of the property to the plaintiff; and, (vi) recovery of mesne profits.

(2.) It is the case of the plaintiff in the plaint, (i) that the plaintiff is the Director of M/s Earthz Urban Spaces Pvt. Ltd. (EARTHZ) and has been authorized by the Board of Directors of EARTHZ to institute the present suit; (ii) that on the basis of the Collaboration Agreement dated 18th February, 2008 and registered General Power of Attorney dated 2nd November, 2010, the plaintiff became absolute owner and acquired title and exclusive possession of third floor Northern side portion, ad measuring area of 142.66 sq.mts., of property No.47, Northern Avenue Road, West Punjabi Bagh, New Delhi; (iii) that the defendants no. 1 and 2 as Directors of defendant no.3 agreed to purchase the said property along with terrace thereon from the plaintiff for Rs.7,31,00,000/- but represented that they had applied for home loan to the defendant no.4 which had sanctioned the housing loan for Rs.4,54,99,809/- only; (iv) that the plaintiff in good faith executed and registered a Sale Deed dated 1st November, 2013 in favour of defendants no. 1 to 3 with respect to the third floor aforesaid without terrace thereon; (v) simultaneously, with the execution of the Sale Deed, on 1st November, 2013 itself, a Memorandum of Understanding was executed between the plaintiff on the one hand and defendants no. 1 to 3 on the other hand whereunder the defendants no. 1 to 3 undertook to pay the balance sale consideration of Rs.2,81,00,000/- on or before 31st December, 2013 to the plaintiff and did not take possession of the third floor of the property with respect whereto Sale Deed was executed, as security to pay the balance sale consideration of Rs.2,81,00,000/-; (vi) owing to typographical errors in the Sale Deed dated 1st November, 2013, a Rectification Deed dated 12th December, 2013 was also executed between the plaintiff on the one hand and defendants no. 1 to 3 on the other hand; (vii) that under the MoU dated 1st November, 2013, the defendants no.1 to 3 had no right to sell the third floor with respect to which Sale Deed was executed in their favour, without paying the balance consideration of Rs.2,81,00,000/-; (viii) that the defendants no. 1 to 3, in violation of the MoU dated 1st November, 2013, have executed the impugned Sale Deed dated 25th May, 2016 with respect to the third floor of the property in favour of defendant no.5, without even paying the balance consideration of Rs.2,81,00,000/- to the plaintiff; (ix) that the defendants no.1 to 3 had handed over post-dated cheques to the plaintiff for the said sum of Rs.2,81,00,000/- but the said cheques were also dishonoured; (x) that the defendants no.4 initiated proceedings before the Debt Recovery Tribunal and managed the affairs in the said proceedings at the back of the plaintiff, to deliver the possession of the property to the defendant no.5; (xi) that since the Sale Deed dated 25th May, 2016 executed by the defendants 1 to 3 with respect to the third floor of the property in favour of defendant no.5 is in violation of the prohibition contained in the MoU dated 1st November, 2013, the Sale Deed dated 25th May, 2016 is void; (xii) that the defendant no.3 itself filed a civil suit for declaration of the Sale Deed dated 1st November, 2013 executed by the plaintiff in favour of defendants no. 1 to 3 of the third floor of the property to be void; (xiii) that the Sale Deed dated 25th May, 2016 was executed during the pendency of the aforesaid suit; (xiv) that as per the MoU dated 1st November, 2013, the physical possession of the third floor with respect whereto Sale Deed was executed, was to remain with the plaintiff and to be delivered only on payment of the balance sale consideration of Rs.2,81,00,000/-; (xv) that the possession of the defendant no. 1 to 3 of the third floor was in terms of MoU dated 1st November, 2013; and, (xvi) that the defendant no.4 took possession of the third floor aforesaid in illegal exercise of powers under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

(3.) The suit came up first before this Court on 27th April, 2018, when summons/notice thereof were ordered to be issued but no ex parte interim order sought granted, observing that the doctrine of lis pendens will apply.