JUDGMENT

SANJEEV NARULA, J. (Oral)

I.A. 11253/2021 (u/O XII Rule 6 r/w Section 151 of the Code of Civil Procedure, 1908 on behalf of the Plaintiff)

1. The Plaintiff has filed the instant suit seeking partition of property bearing plot no. 42 & 43, admeasuring 87.6 Sq. mtrs (each), situated at Transport Centre, Azadpur Mandi, Delhi-110033 [hereinafter, ‘Suit Property’].

2. The Suit Property was jointly purchased by the Plaintiff and Defendant under a Sale Deed dated 02nd June, 2014, registered with the office of the Sub-Registrar bearing Registration No. 9745, Book No.1, Volume No. 5312 from page 1 to 8 [hereinafter, ‘Sale Deed’].

3. The Plaintiff served a legal notice dated 19th August, 2019 upon the Defendant for partition of Suit Property, to which the Defendant did not reply or agree. Thus, the instant suit has been instituted, seeking partition thereof, in equal share.

4. In light of the averments made by the Defendant in the written statement, the instant application has been filed, seeking judgment on admissions under Order XII Rule 6 of the Code of Civil Procedure, 1908.

5. The short question before the Court is whether there is an admission which entitles the Plaintiff to the judgment as prayed for.

6. The Defendant, in paragraph no. 10 of the written statement, admits the execution of the Sale Deed, in the following words: “10. That on 22nd July 2014 a sale deed was executed wherein the plot no. 42 and 43 along with construction thereon situated at Transport Nagar, Azadpur Mandi, Delhi-110033 were transferred by Mr. Manwani to defendant and Smt. Gurpeet Sethi wife of Sanjay Sethi and daughter in law of Mr. Ramesh Sethi for a sum of Rs. 3.50 crores and he assured to pay an amount of-Rs 5.50 lacs per month as assured return on Rs 3.50 crores for using this premises. Mr. Manwani agreed to execute the documents rent/lease deed for this but never did so. Mr. Manwani had paid Rs. 5.50 lacs to defendant and Mr. Sethi only for one month and that too in parts like Rs. 50000/- and Rs. 25000/- in cash and kept on assuring that he will pay the money but did not keep his promises. The defendant has come to know that all this manipulation was created by Mr. Manwani to get money from defendant and from Mr. Sethi for his own business needs and he had dishonest intention from the beginning to cheat the defendant and Mr. Ramesh Sethi.”

7. Despite admission of execution of the sale deed, the relief sought in the suit is vehemently opposed by the Defendant. The sum and substance of the objection is founded on the plea that the Sale Deed, as on date of execution, was under a mortgage with HDFC Bank, Azadpur Branch. Since the Suit Property was a collateral security against loan of working capital, availed by the seller, it limited the beneficial enjoyment of the seller to dispose the Suit Property and thus, Mr. Bhagwan Das Manwani did not have legal competence to execute the Sale Deed, without first having obtained permission and No Objection from HDFC Bank. Hence, Mr. Bhagwan Das Manwani did not have “clear title” in respect of the Suit Property and the Sale Deed so executed by him is void ab initio.

8. The averments to that effect are as follows:

“That in fact Mr. Bhagwan Das Manwani did not have legal competence to execute the said Sale Deed in favour of any party without first having obtained permission and No Objection in writing from HDFC Bank which was not done. There is well established doctrine of law namely “nemo defendant quad non habet” which means "no one can transfer a better title than he himself possesses". Since Mr. Bhagwan Das Manwani had mortgaged the said Cold Storage in favour of HDFC Bank, he did not have a “clear title” in respect of the said Cold Storage on July 22“, 2014 and thus the Sale Deed so executed by him was ab initio invalid in law. Mr. Manwani made a false statement in the said Sale Deed that the property is free from all encumbrances as the said property was mortgaged with the HDFC Bank on the day of execution of