Om Prakash v. M/S Iocl Officers Welfare Society & Anr

RAJIV SAHAI ENDLAW, J. JANUARY 11, 2019 ‗bs/pp/gsr' (corrected & released on 25th January, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th January, 2019 + CS(OS) 590/2016 OM PRAKASH ..... Plaintiff Through: Mr. Ravinder Kumar Yadav and Mr. Vinayak Sharma, Advs. Versus IOCL OFFICERS WELFARE SOCIETY & ANR..... Defendants Through: Mr. Shyamal Kumar and Mr. Samdarshi Sanjay, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.5463/2017 (of defendants u/O VII R-11 CPC) 1. The counsel for the defendants/applicants states that with the filing of subsequent application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), this application has become infructuous. 2. The application is disposed of. IA No.11174/2018 (of defendants u/O VII R-11 CPC) 3. The two defendants, namely (i) M/s IOCL Officers Welfare Society and (ii) Bijoy Kumar Sharma seek rejection of the amended plaint dated 16th July, 2018 in this suit for recovery of Rs.3,72,00,000/- with pendente lite and future interest at 12% per annum, on the ground of (i) the plaintiff having not approached this Court with clean hands and having suppressed material facts; (ii) the claim in the plaint being contrary to the registered Sale Deed between the parties and the claim thus being barred by Sections 91 and 92 of the Indian Evidence Act, 1872; (iii) the suit being barred by the principles of estoppel; and, (iv) the suit having been filed with mala fide intention of extorting money from the defendants. 4. The counsel for the defendants/applicants and the counsel for the plaintiff have been heard. 5. The plaintiff has claimed recovery of Rs.3,72,00,000/- pleading, (i) that the plaintiff is the absolute owner and recorded bhumidhar in actual possession of 1/4th share ad measuring 15 bighas 11 biswas and 15 biswani (3.247 acres) out of total agricultural land measuring 62 bighas and 7 biswas comprised in Khasra No.25/17/2 (1-2), 18 (4-4), 19 (4-1), 21(4-11), 22(4-12), 23 (4-16), 24 (4-10), 30 (0-5), Khasra No.30, Killa No.1(4-16), 2/1 (2-6), 3/1 (2-8), 4 (4-16), 5/1 (3-4), 10 (4-16) and Khasra No.31, Killa No.6(4-16), 15(4-16), 16/1 (2-8) of Revenue Estate of Village Daulatpur,Tehsil – Kapashera, District-South West, New Delhi – 43; (ii) that the defendant no.2 Bijoy Kumar Sharma is the authorised signatory and Secretary of the defendant no.1 Society; (iii) that the plaintiff had agreed to sell the land aforesaid to the defendant no.1 Society for a total sale consideration of Rs.14,49,00,000/- and in pursuance to the said agreement executed a Sale Deed dated 29th August, 2013, registered on 30th August, 2013, in favour of the defendant no.1 Society; (iv) that the defendants have committed fraud upon the plaintiff; out of total sale consideration of Rs.14,49,00,000/-, only Rs.10,77,00,000/- has been paid to the plaintiff; (v) that a sum of Rs.78,00,000/- was paid in cash before the execution of the Sale Deed; (vi) a sum of Rs.50,00,000/- in cash was received before the execution of the Sale Deed; (vii) a sum of Rs.8,00,00,000/- was received vide cheque/DD dated 26th August, 2013 at the time of execution and registration of the Sale Deed; (viii) a sum of Rs.1,49,00,000/- was received through cheque/DD dated 28th August, 2013, again at the time of execution and registration of the Sale Deed; (ix) the balance amount of Rs.3,72,00,000/- has not been paid; (x) that the defendants, on 29th August, 2013 when the Sale Deed was executed, had paid two cheques/DDs to the plaintiff besides the cash paid earlier and the plaintiff, after calculation discovered the total amount paid to be deficit by Rs.3,72,00,000/-; (xi) the plaintiff immediately pointed out the same to the defendants who told the plaintiff that the same was inadvertently left out due to a mistake in calculation and assured that ―let the ‗sale deed' be executed, this balance amount of Rs.3,72,00,000/- (Rupees Three Crore Seventy Two Lakhs only) will be paid in cash after mutation, but the defendants till today failed to make the payment of balance consideration‖; (xii) ―that the defend