VIJAYA SHRIVASTAVA Vs. MIRAHUL ENTERPRISES
LAWS(SC)-2006-7-26
SUPREME COURT OF INDIA (FROM: DELHI)
Decided on July 19,2006

VIJAYA SHRIVASTAVA Appellant
VERSUS
MIRAHUL ENTERPRISES Respondents


Referred Judgements :-

JAYARAM MUDALIAR VS. AYYASWAMI [REFERRED TO]
K A KHADER VS. RAJAMMA JOHN MADATHIL [REFERRED TO]



Cited Judgements :-

MILKHA SINGH VS. NIRMAL SINGH [LAWS(P&H)-2007-9-15] [REFERRED TO]
INDERJIT KAUR VS. GURDEV CHADHA [LAWS(P&H)-2014-7-277] [REFERRED TO]
HARJIT GREWAL VS. VINOD KUMAR BATRA [LAWS(P&H)-2009-4-133] [REFERRED TO]
PANNALAL RATHORE & ANR VS. W H DEETH (BALLABGARH) & CO & ORS [LAWS(DLH)-2018-5-326] [REFERRED TO]


JUDGEMENT

- (1.)The Order of the Court was as follows :
Two suits bearing no.450/86 and 451/86 were filed in the Delhi High Court for specific performance of the agreement dated 2.11.1983 in which it was alleged that defendant nos.1 to 5 (developers) had agreed to sell to the plaintiffs two flats in Mirahul Apartments, Green Park Extension, New Delhi. The above two suits claimed from the developers execution of the sale deed and refund of the alleged loan amount extended by the vendees to the developers. The defendant-developers submitted that there was no conclusive agreement between the parties and that the agreement dated 2.11.1983 was a provisional agreement which the plaintiff required to avail of the loan from HDFC Bank. During the pendency of the suits, the defendant-developers conveyed a portion of the suit flat to the 6th defendant, viz., S.S. Mohd. Arshad, a resident of Madras. Therefore, the plaintiffs (appellants herein) amended the plaint and alleged that the conveyance in favour of Mohd. Arshad dated 9.6.1987 was a sham transaction and that the vendees were not bound by such transaction.

(2.)In the said suits, the learned single judge framed the following issues:
"Suit No.451/86:

1. Whether the plaint has been signed and verified by a person competent to do so and suit instituted by a duly authorized person? OPP

2. Whether the agreement dated 2.11.1983 executed between the plaintiff and the defendants 1-5 and set up by the plaintiff, is binding in all respects on the parties? OPP

3. If issue No.2 is held in favour of the plaintiff, whether defendants 1-5 are not liable to execute the sale deed and transfer possession of the flat measuring 1156 sq. ft. to the plaintiff? OPDs 1-5

4. Whether the plaintiff is liable to pay to defendants 1-5 any sum over and above the admitted sum of Rs.2, 64, 261/- in execution of agreement to sell? OPDs 1-5

5. Whether the plaintiff was ready and willing to perform his part of the agreement at all material points of time? OPP

6. Whether the plaintiff/her husband made any additional to writings as part of the agreement to sell dated 2.11.1983, as alleged by defendants 1-5? If so, to what effect? OPDs 1-5

7. Whether any sum by way of loan was advanced to defendants 1-5 by the plaintiff? If so, what amount and during what period and on what terms and whether plaintiff can seek relief in respect to said loan in the present suit? OPP

8. In case defendants are held entitled to recover from the plaintiff in the event of specific performance being granted, any amount of Rs.2, 64, 261/- then whether the plaintiff is entitled to claim adjustment for the excess claim against the alleged loan amount?

9. Whether the sale or parting with possession by defendants 1-5 of one bed room of that flat in question in favour of defendant no.6 is fraudulent, illegal and not binding on the plaintiff for the reasons stated in paras 24(a) to 23(i) of the plaint? OPP

10. Relief. OPP

Suit No.450/86:

1. Whether the plaint has been signed and verified by a person competent to do so and suit instituted by a duly authorized person? OPP

2. Whether the agreement dated 2.11.1983 executed between the plaintiff and the defendants 1-5 and set up by the plaintiff, is binding in all respects on the parties? OPP

3. If issue no.2 is held in favour of the plaintiff, whether defendants 1-5 are not liable to execute the sale deed and transfer possession of the flat measuring 955 ft. to the plaintiff? OPDs 1-5

4. Whether the plaintiff is liable to pay to defendants 1-5 any sum over and above the admitted sum of Rs.2, 68, 000/- in execution of agreement to sell? OPDs 1-5

5. Whether the plaintiff was ready and willing to perform his part of the agreement at all material points of time? OPP

6. Whether the plaintiff/her husband made any additional to writings as part of the agreement to sell dated 2.11.1983, as alleged by defendants 1-5? If so, to what effect? OPDs 1-5

7. Whether any sum by way of loan was advanced to defendants 1-5 by the plaintiff? If so, what amount and during what period and on what terms and whether plaintiff can seek relief in respect to said loan in the present suit? OPP

8. In case defendants are held entitled to recover from the plaintiff in the event of specific performance being granted, any amount of Rs.2, 68, 000/-, then whether the plaintiff is entitled to claim adjustment for the excess claim against the alleged loan amount?

9. Relief. OPP"

(3.)By judgment and order dated 5th July 1996, the learned single judge decided all the issues in favour of the plaintiffs and granted specific performance of the agreement for immovable property. However, the learned single judge found that the conveyance dated 9.6.1987 executed by the defendant-developers in favour of defendant no.6 was collusive and accordingly the claim of defendant no.6 of being a bona fide purchaser for value without notice was rejected. By the said judgment, the learned single judge granted decree in respect of flat no. S-2 and flat no.S-1 respectively in favour of the original plaintiff. However, the learned single judge refused to grant decree for refund of the loan and, therefore, four appeals were filed before the division bench of the Delhi High Court bearing RFA (OS) Nos.29, 30, 41 and 42 of 1996. Even defendant no.6 joined the developers in their appeal and reiterated that he was a bona fide purchaser of a portion of the suit land for consideration without notice.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.