SUKHVINDER KUMAR Vs. SURESH KUMAR AND OTHERS

JUDGEMENT

(1.) It is defendant's second second appeal against the concurrent findings, recorded by both the learned courts below, whereby suit for declaration and injunction filed by the plaintiffs, was decreed.

(2.) Brief facts of the case, as noticed by the learned first appellate Court in paras 2 and 3, are that defendant No.1-Tarun Bansal entered into an agreement of sale of the property measuring 1034 square yards bearing unit No.502-A to 502-G situated at award No.15, Hansi, as fully detailed and described in the head note of the plaint (hereinafter referred to as the disputed property for brevity) with the plaintiffs-respondents for a sale consideration of Rs. 15,50,000/- and received a sum of Rs. 5,00,000/- by way of cheques as well as cash on that day and the balance amount of Rs. 10,50,000/- was to be paid to the Oriental Bank of Commerce, Hansi (for short 'Bank') with whom defendant No.1 had mortgaged the disputed property vide registered mortgage deed No.466 dated 29.05.1997; the plaintiffs made payment of Rs. 1 lakh to defendant No.1 on 25.01.2003 through cheque No.DTC248329 and amount of Rs. l,50,000/- on 20.03.2003 through cheque No. CA 440256077 and again an amount of Rs. 60,000/- on 04.06.2003 through cheque No. CA 440256980 and defendant No.1 executed four respective receipts in this regard; the plaintiffs besides making payment of Rs. 8,70,000/- as stated above also made payment of an amount of Rs. 1,20,000/- on 04.08.2003 and again an amount of Rs. 1,20,000/- on 01.10.2003 through cheque No.256982 and another one lakh rupee on 29.12.2003 and an amount of Rs. 1,64,376/- on 20.2.2004 through cheque No.61360 and in this way, the plaintiffs have paid whole of the amount of the sale consideration of Rs. 15,50,000/- of the disputed property to defendant No.1; defendant No.1 handed over the actual physical possession of the disputed property to the plaintiffs on 10.05.2002 and it was agreed between the parties that the registration charges would be borne by the plaintiffs and it was also agreed that as and when the plaintiffs would desire, defendant No.1 would execute and get registered the sale deed of the disputed property in favour of the plaintiffs at their expenses; for the purposes of execution of the sale deed on the disputed property, defendant No.1 executed on general power of attorney in favour of plaintiff No.2 on 10.05.2002 and on the same day defendant No.1 also executed one will in favour of the plaintiffs and that both the documents were registered in the office of Sub Registrar, Delhi; now the plaintiffs came to know that defendant No.1 had got cancelled both the aforesaid general power of attorney as well as Will earlier executed by him on 10.05.2002 and was hesitating in executing and getting registered the sale deed of the disputed property in favour of the plaintiffs; the plaintiffs were still ready and willing for getting executed sale deed of the disputed property in their favour and thus got issued one legal notice on 19.11.2003 which was received by defendant No.1; defendant No.1 in order to cause loss to the plaintiffs, had sold away the disputed property to defendant No.2 by way of registered sale deed No.1336 dated 11.06.2007 which alongwith the site plan so appended with it is wrong, against law and facts, nullity, not binding on the rights of the plaintiffs and was hit by Section 52 of the Transfer of Property Act as well as by the doctrine of lispendens; defendant No.1 also moved an application No.16-C of 01.10.2003 whereby he sought permission for selling the disputed property in capacity as of guardian of his son as well as daughters which was pending adjudication in the court of learned Additional Civil Judge (Sr.Divn.), Hansi; the plaintiffs asked defendant No.1 for getting executed and registered the sale deed of the disputed property in their favour and for handing over the symbolic possession of the same to the plaintiffs and the plaintiffs also requested defendant No.1 not to interfere in their possession over the disputed property and not to alienate or transfer the same but defendant No.1 was adamant in his refusal, hence, necessity arose to file the suit.

(3.) On notice, defendants appeared. Defendant No.1 filed his written statement where usual preliminary objections regarding cause of action; locus standi and maintainability etc. were taken. It was alleged by him that he never agreed to sell away the disputed property to the plaintiffs on 10.05.2002 and the alleged agreement dated 10.05.2002 and the receipts were false and fictitious; the plaintiffs filed the suit with an ulterior motive to grab the property of HUF of defendant No.1 and his other family members; the true facts were that defendant No.1 set up a firm under the name and style of M/s Bansal Chemicals, Kali Devi Road, Hansi of which defendant No.1 was the sole proprietor and for his firm, he raised loan from the Oriental Bank of Commerce, Hansi out of which, the term loan of Rs. 4,50,000/- and an amount of Rs. 8,00,000/- was advanced against the cash credit limit as working capital bearing interest at the rate of 17% per annum with quarterly rests and usual bank charges; the unit of the defendant No.1 caught fire on 8.10.1999 and this incident was reported to the bank but due to the non-cooperative and deficiency in services by the Bank Manager of the Bank, the unit of defendant No.1 became a sick unit and ultimately defendant No.1 was constrained to close down the said unit and consequently said M/s Bansal Chemicals was required to pay an amount of Rs. 9,76,629.80/- as on 18.11.2001 inclusive of interest at the rate of 15% per annum with quarterly rests alongwith pendent lite and future interest at the stipulated rate till the date of actual realisation to the aforesaid bank; a Civil Suit No.189-C of 2001 for recovery was filed by the said bank against defendant No.1 and his firm on 19.11.2001 and at that time, defendant No.1 was in dire need of money as the defendant and his firm were burdened with recurring interest on the advanced loan and as such, defendant No.1 and one Chander Bhan, father of the plaintiffs, entered into an understanding to the extent that he shall lend money and shall also repay the balance bank loan to save defendant No.1 and his firm from recurring interest, installments and against which defendant No.1 was required to secure the repayment of loan amount by the said Chander Bhan and in pursuance thereof, the said Chander Bhan obtained signatures of defendant No.1 on various documents under the pretext that it was a security against the repayment or loan amount of defendant No.1 and his firm and it was also agreed that the possession of the part of the disputed property i.e. residential portion and the shops constructed in front of the disputed property shall be delivered by the defendant No.1 to him against the interest of the loan amount by earning the rental income from the shops which were vacant at that time as well as of the residential portion; in pursuance of the said oral understanding, defendant No.1 was constrained to execute the papers as desired by said Chander Bhan against the security of repayment of the loan amount in favour of the plaintiffs; defendant No.1 had no intention to alienate the disputed property having worth of more than Rs. 50 lacs. Against a petty amount of Rs. 15.50 lacs as depicted in the alleged agreement; even otherwise it was well within the knowledge of said Chander Bhan that the disputed property belongs to HUF and the same was mortgaged with the Oriental Bank of Commerce, Hansi and the income tax clearance certificate issued by the income tax department was also issued showing the status of the disputed property which was appended with the mortgaged deed and after becoming the owner of the disputed property the same was blended with the status of HUF under-' the name and style of Tarun Bansal and sons regarding which the regular income tax returns were filed by the said HUF with the income tax department right from the day when the property came into the hands of defendant No.1 by way of Civil Court decree and thereafter it attained the status of HUF and thus defendant No.1 was not competent to sell the disputed property to the plaintiffs being HUF property; out of said oral understanding an amount of Rs. 1 lakh was paid through Cheque No.919801 dated 05.09.2001 and a sum of Rs. 2 lakh was paid in cash on 24.10.2001 which was duly credited in the account books of defendant No.1'S firm on 01.05.2002; similarly, an amount of Rs. 2 lakh was received by defendant's No.1 firm on 10.05.2002 in the name of defendant No.1 through Cheque No.979808 dated 10.05.2005; after the said oral understanding between defendant No.1 and said Chander Bhan, defendant No.1 of his own and on behalf of his firm amicably settled the bank loan to the extent of Rs. 9,50,000/- on 01.02.2003 by which defendant No.1 as his own and on behalf of his firm admitted his firms liabit1ity to the extent of Rs. 9,50,000/- agreed to be paid in installments out of which Rs. 2,50,000/- was agreed to be paid by 31.03.2003 and the balance amount of Rs. 7,00,000/- was to be paid by 20.03.2004 in twelve monthly installments alongwith simple interest at the rate of 11% per annum which was accepted by the then Branch Manager with the previous sanction of the Regional Manager of the Oriental Bank of Commerce; that out of said assurance, compromise and oral understanding between defendant No.1 and said Chander Bhan, he issued a cheque of Rs. 1 lakh bearing No.BT/C-248329 dated 25.01.2003 signed by plaintiff No.2 in the name of defendant No.1 which was deposited by the defendant No.1 in his account against which a cheque was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi in the shape of agreed instalments; similarly on 20.03.2003 a cheque No.CA/44 0256976 for Rs. 1,50,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by the defendant No.1 in his account with the Union Bank of India, Hansi against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi against the second instalment of loan amount; similarly on 28.04.2003 a cheque No. CA/44 0256977 for Rs. 60,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by defendant NO.1 in his account and against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Commerce, Hansi against third instalment of the loan amount; similarly on 04.06.2003 a cheque No.CA/44 0256980 for Rs. 60,000/- purported to be signed by plaintiff No.1 was issued by the said Chander Bhan in the name of defendant No.1 which was also deposited by defendant No.1 in his account and against which a cheque of the same amount was issued by defendant No.1 firm in the name of Oriental Bank of Corrunerce, Hansi against the fourth instalment of the loan amount; in this way, defendant No.1 took a total loan of Rs.8.70/- lacs from said Chander Bhan the father of the plaintiffs; defendant No.1 never struck any deal with either of the plaintiffs and they never came in picture during the said entire transactions and payment and execution of alleged agreements alleged receipts, alleged will and alleged power of attorney and execution of all these documents shown that this was a loan transaction and all the said documents were obtained to keep defendant No.1 under the thumb of the father of the plaintiffs and the plaintiffs at any stage had got no concern with the execution of all the alleged documents; after the last payment, the said Chander Bhan who had already hatched a conspiracy against defendant No.1 to grab the disputed property started putting pressure upon defendant No.1 that he paid almost more than 50% of the loan amount to the bank and the balance amount shall also to be paid to the bank and he obtained the agreement to sell the disputed property as well as receipts, will and power of attorney in favour of his sons at Delhi, therefore, he shall execute and get registered the sale deed of the disputed property in favour of his sons and also shoed the alleged agreement, receipt, Will of the defendant No.1 as also threatened defendant No.1 that if he failed to execute and get registered the sale deed of the disputed property, then he shall utilize the said documents against defendant No.1; upon knowing the cheating and conspiracy of said Chander Bhan, defendant No.1 immediately moved a written application to the Branch Manager Oriental Bank of Commerce, Hansi directing him specifically not to permit any person to operate his firm's account other than defendant NO.1 himself because defendant No.1 apprehended that the father of the plaintiffs to show the alleged readiness and willingness, shall deposit the balance amount in defendant's No.1 firm account and shall seek enforcement of through Court; however, the father of the plaintiff, in connivance with his close relative namely Ajay Saini, who was an employee of the Oriental Bank of Commerce, Hansi against the banking rules and regulations, started receiving the payment in cash an by way of cheques either from plaintiff No.2 or from said Chander Bhan against the specific instructions issued by defendant No.1 to his bank; but upon knowing the cheating and conspiracy, defendant No.1 told the entire facts to his wife who immediately took a stern action and got published public notice in a newspaper dated 17.07.2003 informing therein that the disputed property was owned by Tarun Bansal and sons HUF of which, her husband was merely a Karta and if any person deals with that property that shall be at his own risk; in furtherance of the threatening given by the father of the plaintiffs, defendant No.1 as of precautionary measure, got cancelled the alleged will as well as general power of attorney on 03.09.2003 and the said fact was got published in the newspaper on 14.09.2003: the recitals of the alleged agreement were full of contradictions, inconsistent pleas, against statutory provisions and the execution of the alleged Will and the alleged power of attorney or any other paper at Delhi was in itself were suspicious circumstances when it was witnessed by a regular Deed Writer namely Surender Jain who was working at Hansi for the last more than three decades besides other Deed Writers available at Hansi: when the father of the plaintiff threatened to grab the disputed property belonging to the HUF, then defendant No.1 negotiated to sell the disputed property to clear the loan amount with the proposed vendees at a market price at Rs. 55 lacs in order to repay the loan amount of the father of the plaintiffs and to discharge the liability of the Board Chemicals and thus the permission was sought on behalf of the minor coparceners of the HUF in which proceedings the present plaintiffs appeared and, filed their written statement objecting the permission to sell the shares of minor co-parceners and consequently the petition was withdrawn on 06.05.2004: the possession of the part of the disputed property was delivered by defendant No.1 to the father of the plaintiff as a licensee to earn the profits of rent of the shops and house to meet the liability of the interest which were equivalent to each other; the shed of the factory constructed over the disputed property was still in the possession of defendant No.1 in which the machinery and other parents and articles of the factory were lying therein; the alleged will as well as alleged power of attorney was a result of cheating and conspiracy and both were got cancelled by defendant No.1 when he came to know about the cheating and conspiracy of the father of the plaintiffs. All the others averments of the plaint were denied categorically and a prayed for dismissal of the suit with costs was made.