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2013 Supreme(Del) 1088
High Court of Delhi
JAYANT NATH, J.
Sajjan Pal
Versus
Usha Mehta
IA No. 17541 of 2010 in CS(OS) 2526 of 2010
Decided on : 30-08-2013
For the Plaintiff:A.K. Bajpai, M.N. Khan, Advocates.
For the Defendant:Pradeep Dewan, Senior Advocate with Ms. Anupam Dhingra, Advocate.
Appointment of a Receiver is justified when there is a strong prima facie case, danger or likelihood of loss to the property, and no other adequate remedy is available.
Headnote:
Receiver - Specific Performance of Agreement to Sell - Order XL Rule 1, CPC - Prima facie case of fraud and fabrication of documents - Appointment of Receiver justified - Appointment of Court Receiver to take over the custody of the suit property - Property exposed to grave danger and likelihood of loss - Appointment of Receiver allowed
Fact of the Case:
Defendant filed an application seeking appointment of a Receiver for specific performance of the Agreement to Sell. Plaintiff alleged to have fraudulently obtained possession of the property and misrepresented the sale consideration. Defendant claimed a strong prima facie case in her favor and likelihood of success in the suit.
Finding of the Court:
The Court found a strong prima facie case in favor of the defendant and likelihood of success in the suit. The plaintiff's conduct indicated fraud and fabrication of documents. The property was exposed to grave danger and likelihood of loss.
Issues: Prima facie case of fraud and fabrication of documents, appointment of Receiver, danger and likelihood of loss to the property.
Ratio Decidendi: Appointment of a Receiver is justified when there is a strong prima facie case, danger or likelihood of loss to the property, and no other adequate remedy is available. The Court has the discretion to appoint a Receiver to protect the rights of all parties involved.
Final Decision: The application for appointment of a Receiver was allowed. A Court Receiver was appointed to take possession of the suit property, evict any person in physical possession, and preserve and protect the property. The Receiver's fee and expenses were to be borne by the defendant.
Jayant Nath, J.
IA No.17541/2010 in CS(OS) 2526/2010
1. This is an application filed by the defendant seeking appointment of a Receiver. The accompanying plaint is filed for specific performance of the Agreement to Sell and purchase Flat No. C-105 Sai Baba Cooperative Group Housing Society Ltd., Sector 9 at Plot No.4, Rohini, Delhi-110055. It is stated by the plaintiff that as per Agreement to Sell dated 7.7.2010 entered into between the plaintiff and defendant for the said flat, the plaintiff was to pay a total consideration of Rs.25 lacs. Rs.20 lacs was paid to the defendant through RTGS clearance on 7.7.2010. It is stated that the balance of Rs.5 lacs was to be paid on or before 7.12.2010. It is stated that defendant failed to reach the office of the Sub-Registrar on 7.12.2010 though the plaintiff was ready and willing to complete his part of contract.
It is further stated that at the time of signing the agreement dated 7.7.2010 property was under the tenancy of ICICI Bank limited for 11 months from 1.1.2010 to 30.11.2010. The property was vacated by the bank on 30.11.2010 and thereafter physical possession of the flat was handed over to the plaintiff by the defendant on 2.12.2010. Hence, it is stated that the entire flat is now in the physical possession of the plaintiff who is residing therewith valuable articles. Hence, the present suit for Specific Performance of Agreement to Sell dated 07.07.2010.
2. The defendant has filed her written statement raising extremely serious allegations against the plaintiff. It is stated by the defendant that the plaintiff is part of a gang involved in illegally grabbing properties which are not occupied by their owners and owned by the persons who are not residing in Delhi/India and who do not have the means/might to protect their properties from illegal grabbers. It is stated that the plaintiff in collusion with one Jitender has by exercising fraud and deceit, has taken the possession of the suit property by trespassing into it without the knowledge or consent of the defendant. It is further stated that the Agreement to Sell dated 7.7.2010 relied upon by the plaintiff is a fraud and fabricated document.
3. It is stated that the defendant is a widow and a saintly lady. She is a disciple of Shirdi Sai Baba and is commonly known as Shri Sai Maa. She stays mostly out of Delhi. In February, 2009 it is stated that the defendant let out a portion of the suit property but she continued to occupy one room which had her belongings. It is stated that in the year 1998 the defendant in the process of constructing Shirdi Sai Baba Temple and Aashram at Panipat used to often visit the said town. There she met one Shri Jitender who claimed to be an Advocate. Defendant used to depend upon the said Shri Jitender for various work relating to construction of the Ashram. It is stated that on 6.7.2010 defendant came to Delhi and at the request of Shri Jitender an Agreement to Sell the property for a consideration of Rs.1.85 crores was agreed to be drawn. On 7.7.2010, before the Agreement was executed a sum of Rs.20 lacs was transferred to the account of the defendant. The defendant also executed a receipt acknowledging the receipt of Rs.20 lacs from the plaintiff against Bayana payment for sale of the suit property.
4. It is further pointed out that the plaintiff alongwith Shri Jitender and the defendant alongwith one Vipin Vadhera went to the shop of a property dealer in Rohini. The plaintiff and Shri Jitender sat with the computer typist and got the Agreement to Sell prepared. A draft of the Agreement to Sell on plain paper was first shown to the defendant showing consideration of Rs.1.85 crores. After the defendant approved the draft the plaintiff and Shri Jitender sat with the computer typist to take the print on stamp paper. After some time, the plaintiff asked the defendant to sign and put a thumb impression on the Agreement to Sell dated 7.7.2010. It was represented that the said agreement was
