VALMIKI J. MEHTA, J.

RFA 903/2017 and C.M. Appl. No. 38618/2017 (for stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant nos. 1 and 2/defendant nos. 1 and 2/counter-claimants impugning the judgment of the Trial Court dated 11.8.2017 by which the trial court has dismissed the counter claim as being barred by the Benami Transactions (Prohibition) Act, 1988. I may note that with effect from 1.11.2016 the Benami Transactions (Prohibition) Act, 1988 was amended and the new Act is now called as the Prohibition of Benami Property Transactions Act, 1988. Since the new Act has now become applicable with effect from 1.11.2016 and the counter claim was filed by the appellant nos. 1 and 2 defendant nos. 1 and 2 in May, 2017, therefore what will govern the parties is not the Benami Transactions (Prohibition) Act, 1988 but the Prohibition of Benami Property Transactions Act, 1988.

2. By the subject suit the respondents/plaintiffs sought possession, damages etc. of the suit property being Flat No. 501, block 6, Plot no. 2, Sector-22, Dwarka, New Delhi. As per the admitted position appearing from pleadings of both the parties it is not in dispute that the suit property in terms of the title deeds is in the name of the respondents/plaintiffs. appellant nos. 1 and 2/defendant nos. 1 and 2/counter claimants however set up a case that the suit property was only purchased in the name of the respondents/plaintiffs and that actually the appellant nos. 1 and 2/defendant nos. 1 and 2 were the de jure owners as they had paid consideration with respect to the suit property to the seller/Delhi Development Authority. appellant nos. 1 and 2/defendant nos. 1 and 2 also relied upon two power of attorneys dated 5.12.2013 executed by the respondents/plaintiffs in favour of the appellant nos. 1 and 2/defendant nos.1 and 2 that these power of attorneys showed that appellant nos. 1 and 2/defendant nos.1 and 2 were the owners of the suit property.

3. As already stated above trial court has rejected the counter claim on account of the same being barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The counter claim has been rejected under Order VII Rule 11 CPC. This Court as already stated will consider the issue from the stand point of the provisions of law as contained in the Prohibition of Benami Property Transactions Act, 1988.

4. It is relevant to at the outset state that Section 4(3) of the Benami Transactions (Prohibition) Act, 1988 as it stood was repealed in terms of the Amended Act which came into force with effect from 1.11.2016 and what was contained in some part of sub-sections (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 as originally stood was incorporated in the definition of ‘Benami Transaction’ as found in Section 2(9) of the Prohibition of Benami Property Transactions Act. This provision of Section 2(9) of the Prohibition of Benami Property Transactions Act, 1988 is reproduced as under:-

“(9) “benami transaction” means,—

(A) a transaction or an arrangement—

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by—

(i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family;

(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 an