Kuldeep Singh v. Khazanchi Prasad

RAJIV SAHAI ENDLAW, J JULY 19, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 19th July, 2018 + RSA 89/2017 & CM No.10607/2017 (for stay) KULDEEP SINGH ..... Appellant Through: Mr. Arun Kumar, Adv. Versus KHAZANCHI PRASAD ..... Respondent Through: Mr. V. Shukla, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree (dated 22nd December, 2016 in RCA No.43/16 of the Court of Additional District Judge -02 (NE)] allowing the First Appeal under Section 96 of the CPC preferred by the respondent/plaintiff against the order [dated 18th April, 2016 in CS No.4477/15 of the Court of Administrative Civil Judge, North East] on an application of the appellant/defendant under Order VII Rule 11 of the CPC rejecting the plaint in the suit filed by the respondent/plaintiff for declaration as null and void and an outcome of fraud and misrepresentation, the irrevocable General Power of Attorney executed by the respondent/plaintiff in favour of the appellant/defendant and registered on 21st June, 2006 and for perpetual and mandatory injunction restraining the appellants/defendant from dealing with the property, and resultantly restoring the suit for disposal in accordance with law. 2. The appellant/defendant sought rejection of the plaint on the ground that the suit had been filed after more than three years of the date when the respondent/plaintiff had knowledge of the exact nature of the documents. 3. The aforesaid application of the appellant/defendant under Order VII Rule 11 of the CPC found favour with the Suit Court which rejected the plaint. However the First Appellate Court has set aside the rejection of plaint by the Suit Court and restored the suit to original position holding that the question of limitation was a mixed question of law and fact and no case for rejection of plaint on the said ground was made out. 4. This appeal came up first before this Court on 17th March, 2017 when, without indicating as to what substantial question of law arises for consideration, notice thereof was ordered to be issued. Vide subsequent order dated 24th March, 2017 the Trial Court record was requisitioned and resultantly, inspite of there being no interim order in this appeal staying the proceedings in the suit, owing to the Trial Court record having been requisitioned, effectively there is a stay of proceedings in the suit. 5. The counsel for the appellant/defendant has been heard to elucidate whether any substantial question of law arises and the Trial Court record requisitioned has been perused. 6. The suit, from which this appeal arises, was instituted on 15th February, 2011. It was inter alia the plea of the respondent/plaintiff in the plaint, (i) that the respondent/plaintiff had on 6th June, 2006 approached his earlier landlord Vishwanath (impleaded as defendant no.2 in the suit and who has not been impleaded as a party to this appeal) for loan and which loan was advanced by the said Vishwanath to the respondent/plaintiff and the respondent/plaintiff had executed loan documents in favour of Vishwanath; (ii) after two days therefrom, Vishwanath approached the respondent/plaintiff and stated that the loan amount was arranged by him from his relative namely the appellant/defendant and thus the loan documents along with one surety for repayment thereof be executed in favour of the appellant/defendant; (iii) that the respondent/plaintiff, believing Vishwanath and appellant/defendant, agreed to mortgage his immovable property with the appellant/defendant; (iv) the respondent/plaintiff, on 21st June, 2006, in bona fide belief that he was executing the mortgage documents, went to the office of the Sub Registrar where his signatures were obtained on a number of documents; (v) that the respondent/plaintiff was regularly paying the agreed rate of interest while continuing in possession of mortgaged property; (vi) that in March, 2007, the respondent/plain