IN THE HIGH COURT OF DELHI AT NEW DELHI CS (OS) 758 of 2008 & IA Nos. 14395-96 of 2008, 12013 of 2013 Reserved on: November 6, 2013 Decision on: December 6, 2013 ANAND J.
DATWANI Through: ..... Plaintiff Mr. Rajat Navet, Ms. Prachi V. Sharma, Ms. Sanya Talwar and Mr. Kushagra Pandit, Advocates versus GEETI BHAGAT DATWANI & ORS. ..... Defendants Through: Mr.A.P.S.Ahluwalia,Senior Advocate with Mr. Vinay Sharma and Mr. S.S. Ahluwalia, Advocates for Defendants 1-3 CORAM: JUSTICE S. MURALIDHAR JUDGMENT
0612.2013 IA No.12013 of 2013 (Order VII Rule 11 CPC) 1. This is an application under Order VII Rule CPC filed by Defendant No.1 seeking rejection of the plaint.
2. The above suit has been filed by Mr. Anand Datwani against his wife, Mrs. Geeti Bhagat Datwani and her parents, Mr. Manmohan Bhagat and Mrs. Sumohini Bhagat, Defendants 2 and 3 for partition, declaration and permanent injunction.The Plaintiff seeks partitioning of the property, including the land and building, at 32, Shivji Marg, Westend Greens, Rangpuri, New Delhi (‘the suit property ’) in equal shares between the Plaintiff and Defendant No.1 and a declaration that the undertaking given by him on 29th April 2004 is null and void. The Plaintiff also seeks a permanent injunction to restrain the Defendants from dealing with the suit property.
3. The Plaintiff and Defendant No.1 were married on 13th October 1994. A daughter and a son were born on 4th August 1996 and 20th December 1999 respectively. The Plaintiff states that sometime in 1995-96, Defendant No.1, after consulting Defendants 2 and 3, expressed her desire to develop the land at 32, Rangpuri and requested the Plaintiff to provide the finances. According to the Plaintiff, it was mutually agreed that two independent residential units would be constructed and that the entire ‘farm land’ would be developed for residential purposes. According to the Plaintiff, at the request of Defendant No.1, he agreed to incur the cost and expenses of the said construction and development of the farm land. According to him, it was agreed that the Plaintiff would be vested with an equal and undivided share in the property comprising of the entire land and the two residential units to be built thereon. In other words, according to the Plaintiff, it was agreed that he and Defendant No.1 would enjoy the said property as joint owners, having equal right, title and interest.
4. It is stated in para 4 of the plaint that pursuant to the aforementioned agreement, the terms mutually agreed upon between the parties were recorded in a ‘Development Agreement’ (‘DA’) executed by the Plaintiff and Defendant No.1 “in the year 1996 which was duly endorsed and witnessed by the Defendants 2 and 3.”
5. Significantly, neither is the date of the DA mentioned nor is a copy thereof been placed on record by the Plaintiff. However, it is the Plaintiff’s case that the parties acted upon the said DA. He also states that “being a dutiful husband and son-in-law in good faith, even though the defendants 2 and 3 had no right, title or claim in the suit property”, he agreed to the suggestion of Defendant No.1 that the rent received from the second residential unit constructed on the said land should be considered as part of the Defendant’s share in the property and should be given to Defendants 2 and 3 till December 2007.
6. Over time, disputes and differences arose between the Plaintiff and Defendant No.1. The Plaintiff states that since Defendant No.1 threatened to walk away from the marriage, in order to save the marriage, he was coerced into signing an undertaking on 29th April 2004, although, according to him, Defendant No.1 had agreed and admitted to the Plaintiff that the said undertaking had no legal effect and would not be relied upon by her for any purpose. The Plaintiff has himself produced a copy of the said undertaking, which is in the form of an indenture on a stamp paper of Rs.100. It states that Defendant No.1 “is the sole and exclusive owner of premises bearing No.32, Shivji Marg, Westend Greens II, Rangpuri, New Delhi-110037. She acquired lands in 1989 vide three Sale Deeds all duly registered with the Registrar of Assurances, New Delhi situated in the revenue estate of Village Rangpuri alias Malikpur Kohi, Tehsil Mehrauli in the Union Territory of Delhi, bearing Khasra Nos. 727 (4-16), 728 (2-18), 731 (0-6), 733 (0-9), 737 (0-7), 738 (3-8) executed by the erstwhile owner Sangeeta Gupta, wife of Rajiv Gupta r/o 19, Banarsi Dass Estate, Delhi through her attorney Shri Rajiv Gupta in favour of Miss Geeti Bhagat. She thereafter obtained the requisite sanction in July 1990 and with her parents started construction of a house thereon and completed the same in July 1993.”
7. Paras 2, 3 and 4 of the said indenture dated 29th April 2004 read as under:
“2. That I solemnly affirm and declare that I have no right over the said property belonging to my wife. She has all the rights of ownership to use, let, sell, mortgage and so on her properties and assets in any way she deems fit and I will not stand as an impediment in any manner in implementing her plans, which may involve my shifting out of the said property when asked, without any delay or demur.
3. I declare that any expenditure that I have incurred during renovations or may incur directly or indirectly on the aforesaid property, does not give me any right of residence or tenancy or to claim the property or part thereof to demand back such expenditure nor claim any income accruing from the said property or rentals therefrom.
4. That I hereby undertake that in the event of me or my wife filing legal proceedings for judicial separation or divorce I will shift out of the premises forthwith and make no claims thereon in the event of my wife’s demise, I would neither claim nor occupy the said premises beyond a period of 3 months.”
8. In the plaint, it is stated that a petition was filed by Defendant No.1 against the Plaintiff on 10th October 2007 under Section 12 of Protection of Women from Domestic Violence Act 2005 (‘PWDVA’). The learned Metropolitan Magistrate (‘MM’), by an order dated 3rd November 2007, decided that the dispute relating to the suit property could be decided in a civil court and not under the PWDVA. The Plaintiff, however, states that he was shocked to know that Defendant No.1 produced a copy of the aforementioned undertaking in the said proceedings. It is stated that, on 10th October 2007, the learned MM passed interim orders in the proceedings under the PWDVA and restricted the Plaintiff from entering into any portion of 1, Tees January Lane, New Delhi where Defendants 2 and 3 were residing and from taking custody of his children from Defendant No.1 or taking them out of the said premises. Further, interim orders were passed by the learned MM on 15th October 2007 in the presence of counsel for the Plaintiff that if the Plaintiff returned to India from Bali, Indonesia, he would have a right to enter the matrimonial house, but would not communicate, in any manner, with Defendant No.1 without her desiring to do so and will move himself to a particular portion assigned to him.
9. In para 25 of the plaint, the Plaintiff alleges that on the night of 12th October 2007, Defendants 1 and 2, along with several other persons, came to the house at 32, Rangpuri in four vehicles, forcibly entered the house “and took illegal possession/removed the personal effects and other important documents of the Plaintiff including the originals of the agreement entered into between the Plaintiff and the Defendant No.1.”
He states that an application to this effect was filed by Mr. Rattan Datwani in Police Station (PS), Vasant Kunj. The Plaintiff claims that on his return from Bali, Indonesia, he found that the documents, including the DA signed between the parties, were missing. He states that he filed a complaint on 22nd October 2007 with the local police. Thereafter, he filed an application under Section 156 (3) Code of Criminal Procedure, 1973 (Cr PC) before the learned MM for registration of a First Information Report (FIR).
10. In the proceedings under the PWDVA, the learned MM, by an order dated 3rd November 2007, directed the Plaintiff to remove himself from the matrimonial house within seven days and restrained him from meeting the children, except in Court, on 2nd Sundays of each month, in the presence of the Duty Magistrate. The appeal against the said order was allowed by the learned Additional Sessions Judge (ASJ) by an order dated 11th August 2008. The order dated 11th August 2008 was confirmed by the High Court by order dated 13th January 2009 in Writ Petition (Crl) No.1097 of 2008 filed by Defendant No.1.
11. On 1st May 2008, summons were directed to be issued in the present suit and accepted by learned counsel for the Defendants in Court. Defendant No.1 filed a written statement on 13th May 2008 stating that the claim of the Plaintiff was false. It was stated that the Plaintiff does not have any right, title or claim in the suit property which was purchased by Defendant No.1 from her own funds in 1989, five years prior to her marriage with the Plaintiff in 1994. The suit property was registered in her name in 1989 itself. The plans for construction of the suit property were submitted to the Municipal Corporation of Delhi (‘MCD’) and sanctioned in 1990. The completion certificate was applied for on 28th July 1993, prior to the marriage of the Plaintiff with Defendant No.1. The Plaintiff had no role in the acquisition of the suit property. Defendants 2 and 3 had advanced a sum of Rs. 1,20,00,000 to Defendant No.1 for renovation of the property and this was reflected in their Income Tax (‘IT’) Returns and bank details. Defendant No.1 denied that there was any DA, as alleged by the Plaintiff. If it conferred any title on the Plaintiff as alleged by him, it was required to be compulsorily registered under the Registration Act, 1908 as, admittedly, the property was worth more than hundred rupees. Further, for the alleged DA to be valid as per the law prevalent in 1996, it required permission under Section 269 UC of the IT Act, 1961 under Form-37(I). The Plaintiff made no mention of the alleged DA before any statutory or other authority. Accordingly, it is submitted that the suit based on an non-existent DA was an abuse of the process of Court and liable to be dismissed.
12. It is further submitted by Defendant No.1 that the court fee paid by the Plaintiff was deficient. The Plaintiff is a British citizen. The acquisition of immovable property by a foreign national is regulated under Section 6 (3)(i) of the Foreign Exchange Management Act (‘FEMA’), 1999. There was a bar on the Plaintiff acquiring farm land. The Plaintiff could not seek reliefs as prayed for in law.
13. In addition to the above pleas, in IA No.12013 of 2013 under Order VII Rule 11 CPC, Defendant No.1 states that the suit is also barred by limitation. Under Article 54 of the Schedule to the Limitation Act (‘LA’) 1963, a suit for specific performance had to be filed within the period of three years from the date fixed for performance. In any event, as far as the relief of declaration of invalidity of the undertaking dated 29th April 2004 is concerned, under Article 58 of Schedule to the LA it had to be sought not later than three years thereafter. Reliance is placed on the decision in Ashish Kumar Hazara v. Rubi Park Cooperative Society AIR1997SC2724 It is stated that even if the issue of limitation was not pleaded, the suit wass liable to be dismissed as explained in Ashok Khurana v. Steelman Industries AIR2000Delhi 336 (DB) and Rajkishore Mohanty v. Kangali Moharan AIR1972Ori. 119 (FB). Under Order VI Rule 4 CPC, the Plaintiff had to give exact details and particulars including the ‘date and circumstances’ as regards the plea of coercion and undue influence relating to the undertaking dated 29th April 2004. Defendant No.1 contends that the Plaintiff has not come to the Court with clean hands. There were a number of cases pending between the Plaintiff and Defendant No.1 and the details of such cases have also been set out in the application. Defendant No.1 also refers to the decisions in Prestige Lights Ltd. v. SBI2007(8) SCC449and SP Chengalvaraya Naidu v. Jagannath AIR1994SC853to contend that if the Plaintiff misleads the Court or suppresses relevant materials, the Court could straightaway dismiss the suit.
14. Learned counsel for the Plaintiff refers to the reply filed by the Plaintiff to the present application. It is stated that IA No.14395 of 2008 filed by the Plaintiff under Order VI Rule 17 CPC seeking amendment of the plaint to incorporate relief of specific performance was yet to be allowed. It is stated that for the purposes of Order VII Rule 11 CPC, the Court can only consider the plaint and accept as correct the averments made therein. In other words, the Court cannot examine the written statement to determine if the plaint discloses a cause of action. It is stated that the construction raised in 1993 on the suit property was a bare shell and did not have the plaster, plumbing or electricity and was only to the extent of 1500 sq. ft. It is submitted that it is only after the erstwhile structure was demolished, that a fresh foundation was laid and the two residential units were constructed pursuant to the DA.
15. As regards the complaint filed by the Plaintiff against the Defendants alleging theft of the documents including the DA, it is stated that the learned MM has by his order dated 21st November 2012 summoned Defendant No.1. It is stated that the Plaintiff was in possession of the suit property till the interim order was passed by the learned MM in PWDVA proceedings. It is denied that the suit is undervalued. The suit property was not an agricultural land. The said contention was accepted by this Court by the order dated 30th April 2013. It is submitted that the suit is also not barred by limitation because it was only in her written statement filed on 13th May 2008 that Defendant No.1 denied the existence of the DA. It is also submitted that Defendant No.1 had withdrawn her application under Section 12 of PWDVA on 24th September 2013.
16. Counsel for the Plaintiff referred to the decision in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel MV Fortune Express (2006) 3 SCC100to urge that the plaint could not be rejected on the basis of allegations made by Defendant No.1 in her written statement or in the application under Order VII Rule 11 CPC. The Court had to examine whether the plaint discloses a cause of action and in doing so had to proceed on the basis that the averments in the plaint were correct.
17. The question that arises in the present case is whether the plaint, in fact, discloses a cause of action vis-à-vis the reliefs sought by the Plaintiff. The entire suit revolves around the DA. While it is correct that pursuant to the complaint filed by the Plainitff under Section 156(3) Cr PC alleging that the DA was stolen by Defendant No.1, the learned MM has summoned Defendant No.1, that by itself is not determinative of the existence of the DA in the first place. There is no specific reference in the said complaint about the allegedly missing DA. It only generally refers to the documents missing. Significantly, even in the complaint made to the Police on 22nd October 2007 the Plaintiff makes no mention of the DA. In para 13 of the complaint, he states that he returned from Bali and found that “all my documents, cash and jewelry and major part of my clothing missing, which had been stolen/removed by my wife, Geeti Bhagat Datwani and her father, Man Mohan Bhagat and some others whose names I do not know. This list of all missing things shall be provided on thoroughly checking everything.”
Thereafter, the complaint talks of ‘valuables’ and seeks the help of the Police in recovering his ‘stolen goods’. If, indeed, the DA was such a crucial document, it is unlikely that the Plaintiff would not have specifically mentioned it either in the complaint to the Police or in the complaint under Section 156 (3) Cr PC.
18. In the order dated 21st November 2012 passed by the learned MM, reference has been made to para 11 of reply filed by Defendant No.1 admitting that “she is in the possession of the clothing and shoes” and that she wanted to hand over the same “to the Complainant.”
The learned MM proceeded to hold that since Defendant No.1 had made an admission to the above effect, and since it had been removed from the room assigned to the Plaintiff, a criminal offence was prima facie committed and, therefore, summons was issued to only Defendant No.1 under Sections 379/411 IPC. The above order makes no reference to any admission by Defendant No.1 to removing the DA.
19. Since it is the Plaintiff’s case that the DA confers on him rights and title to the suit property, the burden was on him to produce the document. It is not the case of the Plaintiff that there was any oral agreement between the parties. His specific case was that a DA was in fact executed some time in 1996. Secondly, there can be no doubt that the suit property was worth several crores and, therefore, if the DA purportedly conferred joint title thereto in favour of the Plaintiff it was required to be registered and stamped in accordance with law. With there being no such document at all on record, it is inconceivable that the Plaintiff can seek any relief in relation thereto.
20. Although the Court is required to proceed on the basis of the averments made in the plaint, even those averments, on a bare reading, do not even prima facie satisfy the Court that the Plaintiff’s claim is genuine and that the plaint discloses a cause of action. It is not just the plaint that has to be examined but also the documents filed with it [See Liverpool & London S.P. & I Asson. v. M.V. Sea Success I (2004) 9 SCC512. Clearly, the undertaking dated 29th April 2004, a copy of which has been filed by the Plaintiff, contradicts what the Plaintiff states in the plaint. This explains his seeking a declaration of the inavlaidity of the said undertaking. However, the undertaking was given on 29th April 2004 and a declaration is being sought by a suit filed on 5th April 2008. Clearly, that relief is barred by limitation. Even otherwise, the plaint lacks the particulars regarding the alleged coercion and undue influence relating to the undertaking dated 29th April 2004.
21. On the question of the delay and laches in the Plaintff seeking to assert is rights under the alleged DA, it is inconceivable that the Plaintiff would have taken no action till 2008 when according to him the DA was executed ‘in the year 1996’. On his own showing, the disputes between the parties arose in 2004 itself. The Plaintiff’s explanation for not seeking relief earlier is not satisfactory. The averments in relation to the DA are also vague. The Plaintiff is unable to disclose the precise date of the said DA and in whose presence it was executed. In other words, the averments in relation to the DA are bereft of any material particulars to constitute a cause of action for claiming relief in relation theretro. In terms of the law explained in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (supra), the Court is not satisfied that the plaint discloses a cause of action.
22. Furthermore, the Plaintiff does not dispute that the suit property was purchased by Defendant No.1 from her own funds, much prior to her marriage with the Plaintiff. Defendant No.1 has placed on record the registered Sale Deed dated 9th February 1989 executed in her favour by the erstwhile owner, Mrs. Sangeeta Gupta. The Plaintiff is not seeking any relief in relation thereto. Defendant No.1 continues, therefore, to be the absolute owner of the suit property. She also has placed on record the documents showing that she applied for and was sanctioned building permission by the MCD way back on 30th July 1990. The sanction was revalidated up to 29th July 1993. All these events were prior to the marriage between the Plaintiff and Defendant No.1. In the circumstances, it is inconceivable that the alleged DA of an indefinite date, which is admittedly unregistered, would confer title in favour of the Plaintiff.
23. To summarise the conclusions, the averments in the plaint are vague, indefenite and lacking in material particulars. The documents necessary to support even prima facie the averments in the plaint have not been produced. The explanation for the delay in seeking relief in relation the DA is unsatisfactory. The relief of declaration of invalidity of the undertaking dated 29th April 2004 is barred by limitation. The plaint even otherwise fails to disclose a cause of action to enable the Plaintiff to seek the reliefs prayed for. Proceeding to trial on the basis of such plaint would be a futile exercise.
24. For the above reasons, the plaint is rejected and consequently, the suit is dismissed, with costs of Rs. 20,000, which shall be paid by the Plaintiff to the Defendant, through counsel, within eight weeks. All the pending applications are also dismissed. S. MURALIDHAR, J.
DECEMBER6 2013 tp