Back
2019 Supreme(Bom) 2135
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anuja Prabhudessai, J.
Sharma Properties Pvt. Ltd. - Appellant
Versus
Ashish Rajinder Kapila - Respondent
Notice of Motion No. 21 of 2012
Decided On : 16-04-2019
Headnote:
Court Receiver - Sale of Property - Cr.P.C. 195 - Anticipatory Bail Application No.820 of 2011 - Specific Performance of Contract - Forgery - Fraud - Criminal Contempt - Court Receiver - Possession of Property - Contempt of Courts Act, 1971
Fact of the Case:
Plaintiff seeks appointment of Court Receiver for property purchase, Defendant denies agreement and payment, Plaintiff alleges fraud and breach of contract, Defendant claims agreement is forged, Plaintiff paid loan amount to Citibank, Defendant failed to execute sale deed and hand over possession, Defendant made false statements and undertakings before the Court, Defendant suppressed attachment orders, Defendant offered to clear encumbrances but failed, Defendant sought to quash criminal proceedings and withdraw amount deposited in Court
Finding of the Court:
Defendant's conduct indicates breach of agreement, suppression of material facts, false statements, and interference with administration of justice, Defendant's offer lacks bona fide and is mala fide, Plaintiff made out a prima facie case, Court orders Defendant to vacate premises, Court Receiver to put Plaintiff in possession, Defendant restrained from interfering with possession, Notice of Motion filed by Defendant dismissed, Defendant to show cause for criminal contempt
Issues: Alleged breach of agreement, Forgery and fraud, Suppression of material facts, False statements and undertakings, Interference with administration of justice, Defendant's offer and conduct
Ratio Decidendi: Defendant's conduct, including suppression of material facts, false statements, and interference with administration of justice, led to the Court's decision to appoint a Court Receiver and put Plaintiff in possession of the property
Final Decision: Defendant directed to vacate premises, Court Receiver to put Plaintiff in possession, Defendant restrained from interfering with possession, Defendant's Notice of Motion dismissed, Defendant to show cause for criminal contempt
JUDGMENT
Anuja Prabhudessai, J. - The Notice of Motion Nos.21 of 2012 and 1784 of 2015 are filed by the Plaintiff seeking the following reliefs:
(i) Appointment of Court Receiver in respect of the Office bearing Unit No.8, situated at 8th Floor, admeasuring 1103.77 sq.ft. in building ''New Harileela House No.1'' situated at 134 B, Mint Road, Near GPO, Mumbai (''the suit premises'').
(ii) To restrain the Defendant from selling, transferring, alienating, and creating third party rights or encumbrances in respect of the suit premises.
(iii) To file a complaint under Section 195 of Cr.P.C. against the Defendant for committing perjury.
2. The Notice of Motion No.604 of 2017 is taken out by the Defendant for the following reliefs :
(i) to dispose of the Suit by directing the Plaintiff to receive the money deposited in the Court pursuant to the order passed in Anticipatory Bail Application No.820 of 2011 with further direction to the Plaintiff either to withdraw the complaint MECR No.9 of 2011 and /or to direct the Plaintiff to consent for quashing the said complaint/MECR.
(ii) In the alternative to permit the Defendant to withdraw the amount deposited in the Court with a condition to put the Plaintiff in possession of the suit premises through the Court Receiver and to quash the FIR with consent of the Plaintiff, in appropriate proceedings.
3. The Defendant is the owner of the suit premises. The suit premises were mortgaged to the Citibank N.A., Andheri to secure the loan availed by Kapila Knit Fabrics Pvt. Ltd. The Defendant is the director of the said Company. It is alleged by the Plaintiff that the Defendant had approached him with a proposal of sale of the suit premises. The Defendant furnished to the Plaintiff a letter dated 25/9/2009 whereby the Citibank had informed the Defendant that the loan account would be closed against full and final settlement of Rs.1,04,00,000/- which was secured against the suit premises. Pursuant to negotiations, the Plaintiff agreed to purchase the suit premises for total consideration of Rs.1,04,00,000/-. The Defendant as a Director of Kapila Knit Fabrics Pvt. Ltd. informed the CitiBank that the loan of Rs.1,04,00,000/- would be cleared by the Plaintiff through RTGS. Accordingly, the Plaintiff made the payment of Rs.1,04,00,000/- to the CitiBank. Pursuant to the payment made, the CitiBank handed over the title documents in respect of the suit premises. The Defendant represented to the Plaintiff that he has a clear marketable title and full power and absolute authority to deal with the suit property. The Defendant and Plaintiff thereafter entered into an agreement for sale dated 03/10/2009 whereby the Defendant agreed to sell to the Plaintiff the suit premises for Rs.1,04,00,000/-. The Defendant agreed to vacate the suit premises and hand over actual possession of the suit premises by 31/12/2009 and further to register the sale deed on 20/01/2010. The grievance of the Plaintiff is that having induced him to pay the amount of Rs. 1,04,00,000/- to the Citibank, the Defendant avoided executing the sale deed and handing over of the vacant possession of the suit premises. The Plaintiff therefore lodged a criminal complaint and also instituted a suit for specific performance of the contract and other consequential reliefs.
4. The Defendant has denied having entered into an agreement with the Plaintiff for sale of the suit premises and having received any amount from the Plaintiff on account of any sale transaction. Main thrust of the defence is that the agreement dated 3/10/2009 is forged and fabricated. The Defendant claims that the plaintiff has played a fraud upon him and then filed a false and frivolous suit.
5. Mr. Anuuj Narula, the learned counsel for the Plaintiff submits that the agreement dated 03/10/2009 as well as the correspondence between the Defendant and the Citibank clearly indicates that the Defendant had agreed to sell the suit premises to the Plaintiff for total consideration of Rs.1,04
