Advocates:
['RAMJI SHRIVASTAVA', 'I P KOHLI', '', 'KANTI RAM SHARMA', 'RAJNI SUPYAL/LATWAL']

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 2976 of 2018

Sanjay Kumar Nagalia

..…Petitioner.

Versus

SM Milkose Limited

.… Respondents

Present :

Mr. Ramji Srivastava, Advocate, for the petitioner.

Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate, the respondent.

Judgement Reserved : 15.02.2022

Judgement Delivered : 05.05.2022

JUDGEMENT

Hon’ble Sharad Kumar Sharma, J.

The petitioner in the present Writ Petition, is a

plaintiff in Suit No. 45 of 2013, Sanjay Kumar Nagalia Vs.

ZX Sources Pvt. Ltd., which has been instituted before the

Court of Additional Civil Judge (Senior Division), Dehradun,

for grant of a decree of declaration and permanent injunction,

as against the defendants, who have been impleaded therein.

2.

The brief facts, which engaged consideration in

the said case was, that the property, which constituted as to

be the subject matter of the Suit, was the property bearing

Municipal No. 220/221 (Old No. 224), Rajpur Road,

Dehradun, measuring 4.37 bighas, (hereinafter, to be called

as the property in dispute).

3.

The property initially formed to be the property of

the joint Hindu family, which comprised of Mahendra

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Kumar, the father of the petitioner, who was the Karta of the

family, Rajiv Nagalia, the brother of the petitioner and the

petitioner himself, who were coparceners of the property.

4.

It is contended by the petitioner that the property

was orally partitioned on 20^th November, 2009, and the

property was thus settled between the coparceners based

upon their exclusive share and possession as per the terms of

the oral partition. After the oral partition being carried, there

arose certain disputes between the coparceners, which

resulted into institution of a Civil Suit, being Suit No. 55 of

2010, Mahendra Kumar Nagalia Vs. Rajiv Nagalia and

others, seeking a declaration and grant of decree of

permanent injunction. But, however, during the pendency of

the said Suit between the coparceners, a compromise was

entered into between the parties to the Suit, and the dispute

of Suit No. 55 of 2010, was admittedly resolved by way of a

compromise which was entered between the coparceners.

5.

It was that during the pendency of the said Suit,

that taking advantage of the age of the father of the

petitioner, who was at the relevant point of time 80 years of

age, the respondent, herein, was able to manage and procure

an agreement for sale, which was said to have been executed

in their favour on 29^th August, 2011. However, in this

registered agreement for sale, it was stipulated that the sale

deed would be ensured to be got executed on or before 28^th

February, 2012, but, as per the records no sale deed as a

consequence thereto was ever got executed by the

respondents.

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6.

However, on 25^th November, 2011, the Suit

between the coparceners, i.e. Suit No. 55 of 2011, was

decided by way of a decree on the basis of the compromise,

which became final qua its parties and was inter se binding

between the coparceners, of which, Mr. Mahendra Kumar,

was the Karta. As a consequence of the aforesaid

compromise decree of 25^th November, 2021, the petitioner

became an exclusive owner of the respective part of the

property, as an effect of the judgement of 25^th November,

2011. The petitioner with a view to sell the property

contends, that he has got a sale deed executed in favour of

one M/s ZX Source Pvt. Ltd., which was a sale deed

registered on 7^th December, 2011, for a sale consideration of

Rs.6,30,00,000/-. The purchaser of the property had

executed three cheques towards the sale consideration, but

however, the said cheques were not honoured by the Bank,

because of the information given by the Bank, that there was

a direction for “stop payment of the cheques”, and further

because of the fact, that the sale deed was ultimately found to

be