Judgment:
M.K. Sharma, J.
(1) In the present suit instituted by the plaintiff against the defendants praying for a decree of specific performance of the agreement with physical possession of the suit property in favor of the plaintiff or in the alternative for payment of Rs. 17,50,000.00 with interest @ 24% per annum to the plaintiff, the plaintiff filed an application under Order 39 Rules I and 2 of the Code of Civil Procedure which is registered as I.A.I 0107/1994. By this order, I propose to dispose of the said application filed by the plaintiff after hearing the Counsel appearing for the parties.
(2) The plaintiff instituted the suit contending, inter alia, that in respect of the suit property being a flat on No. E-14/7,Vasant Vihar, New Delhi, late K. M. Sharma was the owner and that Satish Seth, the predecessor in interest of defendant No. 4 entered into an agreement with late K. M. Sharma on 5.9.1988. Late K. M. Sharma and late Satish Seth also entered into an agreement of collaboration with M/s. Saraswati Builders through its proprietor, Satish Seth, for the construction of a building on the said piece of land wherein it was agreed to that the building to be constructed would consist of six flats situated on the ground floor, first floor and second floor besides a basement to provide accommodation for servants for each of the flat owners out of which late Satish Seth would have the right of disposal in respect of 3 flats, one in each floor. In pursuance of the aforesaid agreement entered into between late K. M. Sharma and Satish Seth, late K. M. Sharma gave full authority to Satish Seth to sell and handover the flats which had fallen to his share to the buyers directly and that said late Satish Seth also had the full and exclusive right to sell the flats under his share as deemed fit and proper.
(3) In pursuance of the said agreement, Satish Seth entered into an agreement with the plaintiff for sale of the flats situated in the front portion of the second floor for a sum of Rs. 18,50,000.00 out of which the plaintiff paid a sum of Rs. 11.00 lakhs in cash on various dates between 11.3.1989 to 31.3.1989, besides making a token sum of Rs. 10.000.00 being paid through a cheque dated 31.3.1989 by the plaintiff to late Satish Seth. No receipt for the sum of Rs. 11.00 lakhs handed over by the plaintiff to late Satish Seth was executed and handed over to the plaintiff and it was represented that the same would be handed over to the plaintiff under the signature of late K. M. Sharma. It is stated that subsequently, the plaintiff also made a further payment of Rs. 6,40,000.00 to said Satish Seth in between 31.5.1989 to 1.8.1989 and thereby leaving a balance of Rs. 1.00 lakh only to be paid by the plaintiff towards the entire sale consideration of the aforesaid flat. In token of receipt of the advance amount and a major part of the sale consideration, it is stated, that possession of the flat was also handed over to the plaintiff and that the plaintiff put his own lock on the main entry door of the said flat.
(4) Subsequently, however, late K. M. Sharma in collusion and conspiracy with Syndicate Bank obtained an order on 28.11.1991 for appointment of Receiver in respect of the flats including the flat under possession of the plaintiff. The Receiver locked the outer door of the said flat over the lock of the plaintiff which is already placed on the said flat. Subsequently, however, after the disposal of the suit in which the Receiver was appointed, the Receiver handed over the possession of the said flat to the heirs of late K. M. Sharma and accordingly the present suit has been filed by the plaintiff for the aforesaid relief.
(5) In the present application filed by the plaintiff, he has sought for an order restraining the defendants from selling, alienating, transferring or in any manner encumbering the said flat situated on the second floor (front portion) of property No. E-14/7, Vasant Vihar, New Delhi.
(6) The defendants No. 1 and 2 have contested the suit by filing a written statement and also a reply to the application filed by the plaintiff under Order 39 Rules 1 and 2. It is contended by the said defendants that the agreement of collaboration dated 5.9.1988 entered into between late K.M. Sharma and Satish Seth was terminated by the defendant No. 1 on 27.3.1989 and the power of attorney granted in favor of Satish Seth was revoked on 27.3.1989. Revocation of the authority of Satish Seth was also published in the newspaper on 6.4.1989. The aforesaid termination of the collaboration agreement and the power of attorney has now become the subject-matter of Suit No. 1315A/1989.
(7) It is further contended that prior to the institution of the aforesaid suit, the Syndicate Bank instituted a suit being Suit No. 2525/1986 against late K.M. Sharma who was arrayed as one of the defendants. In the said suit, a Receiver was appointed on the application of late K. M. Sharma. In the said suit, a restraint order was passed by this Court on 19.1.1989 restraining the defendants from selling, alienating or in any manner creating any third party interest in respect of the suit property which also included the suit property of the present suit. This Court in the said suit was pleased to appoint a Receiver vide order dated 28.11.1981 and attached two flats in the said property including the present suit property. It was also clarified that when the Receiver took possession of the aforesaid flat and attached the same, the plaintiff herein was not in possession of the said flat and possession was not taken over by the Receiver from the plaintiff. After disposal of the aforesaid suit by this Court, the Receiver handed back the flat to the defendants No. 1. It is also stated that there was no agreement at all between the defendant No. 1 and 2 with the plaintiff at any point of time nor late Satish Seth had any authority to enter into any agreement with the plaintiff on 31.3.1989. The said defendants have further denied receipt of any amount from the plaintiff and have also stated that there was no contract at all in the present case with the plaintiff which could be enforced through the present suit.
(8) Having heard the learned Counsel appearing for the parties and having considered the various pleadings and documents produced in the present case, let me consider as to whether the plaintiff is entitled to any temporary injunction under Order 39 Rules 1 and 2 in respect of the flat in question. An agreement has been alleged between Satish Seth and the plaintiff. According to the contents of the documents filed along with the plaint, the sale consideration for sale of the aforesaid flat which is the suit property was stated to have been agreed upon at Rs. 7.50 lakhs. The plaintiff has, however, pleaded in his plaint that the sale consideration fixed in pursuance of the aforesaid agreement was at Rs. 18.50 lakhs. The aforesaid alleged agreement is stated to be dated 31.3.1989. Although the specific case of the plaintiff isthatby31.3.1989,hehaspaidanamountofRs.ll,10,000.00 , is found on the aforesaid agreement to sale dated 31.3.1989 except for mention of only a sum of Rs. 10,000.00 . If, as pleaded by the plaintiff, an amount of Rs. 11.00 lakhs was paid by the plaintiff in between 11.3.1989 to 31.3.1989 towards part payment of the sale consideration, the same should have been definitely found mention in the said document.
(9) Coming next to the authority of Satish Seth to enter into any agreement with the plaintiff, I find that there was a restraint order passed by this Court in Suit No. 2525/86 restraining the defendants including late K.M. Sharma from selling, transferring or creating any third party interest in respect of the two flats including the suit flat. The collaboration agreement was cancelled and power of attorney was revoked by late K.M. Sharma on 27.3.1989, which fact was also published on 6.4.1989. :
(10) In view of the aforesaid position, I am of the prima facie opinion that on the date when the plaintiff alleged to have entered into an agreement with late Satish Seth, late Satish Seth had no authority to enter into any negotiation for selling the property with anyone including the plaintiff. The plaintiff also lodged a complaint against Satish Seth and Saraswati Builders in the Court of Sukhdev Singh, Metropolitan Magistrate, New Delhi and a copy of the said complaint dated 6.2.1990 is on record. In the said criminal complaint filed by the plaintiff it was stated that in May, 1989, there was an advertisement showing that Satish Seth was restrained from selling the said flat to anyone including the complainant and that the said advertisement had appeared in the Hindustan Times too. It was further stated therein that the criminal design of Satish Seth was exposed when the complainant was preparing to shift to the said flat in Vasant Vihar.
(11) The aforesaid statements made before the Criminal Court prima fade show that the plaintiff had some knowledge about the restraint order and also about the cancellation of the collaboration agreement and revocation of the power of attorney given by late K.M. Sharma in favor of late Satish Seth. The said statement also shows that the before the plaintiff could move into the flat in question, he came to know of the alleged criminal activity of Satish Seth. Although .it has been alleged in the plaint that Satish Seth received Rs. 11.00 lakhs from him towards part payment of the sale consideration, no receipt for the same could be produced by the plaintiff in support of such payment being made. Although he has explained in the plaint the circumstances under which the receipt was not given to him, the said circumstances are required to be proved at the time of trial by the plaintiff before the same could be accepted to be convincing.
(12) The entire transaction alleged in the plaint prima fade appears to be shrouded in. mystery and would require strong proof, which at this stage unfortunately appears to me to be lacking. In the facts and circumstances, it cannot be said that the plaintiff has a very strong prima fade case. In my considered opinion, the balance of convenience is also in favor of the defendants No. 1 and 2, they being the owners of the said flat. The plaintiff in the plaint has alternatively prayed for return of Rs. 17,50,000.00 alleged to have been paid by him to late Satish Seth, although in the present application he has not prayed for any relief as against the defendant No. 4, the wife of late Satish Seth, but only against defendants No. 1 and 2. As pleaded in the plaint, injury alleged could be compensated in terms of money and thereforee I do not consider this to be a fit case for grant of temporary injunction under Order 39 Rules I and 2 of the Code of Civil Procedure. The application accordingly stands rejected.
(13) Since the pleadings in respect of the suit are complete, let the suit be listed before the Joint Registrar for admission/denial of documents on 22.4.1997 and before the Court on 10.7.1997 for arguments on the application registered as I.A.s 3251/95 and for framing of issues.
(14) Application registered as I.A. 2285/95 also stands disposed of.