Shri Harish Sharma v. Raj Kumar & Ors

order as to costs.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 31, 2013

RFA (OS) 99/2013 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 31.10.2013 + RFA (OS) 99/2013, C.M. NOS.12541-43/2013 & 12545/2013 SHRI HARISH SHARMA ..... Appellant Through: Sh. Yashpal Singh with Sh. Rikesh Singh, Advocates. versus RAJ KUMAR AND ORS. ..... Respondents Through: Sh. Kush Sharma with Sh. Ishwar Upneja, Advocates, for Resp. Nos. 1 and 5. Sh. C. Prakash, Advocate, for Resp. Nos. 3 and 4. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) % C.M. NO.12543/2013 (for condonation of delay) For the reasons mentioned in the application, the delay is condoned. C.M. No.12543/2013 is allowed in the above terms. RFA (OS) 99/2013 Page 2 RFA (OS) 99/2013, C.M. NOS.12541/2013 (for stay), 12542/2013 (for filing addl. Documents) & 12545/2013 (seeking exemption from filing deficient Court Fees and extension of time in making up the deficient Court Fee) 1. This is a Regular First Appeal from an order of a learned Single Judge in CS(OS) 3001/2011, dismissing the suit for a failure to disclose any cause of action in the plaint. 2. Briefly, the plaintiff, Harish Sharma, seeks to impugn a registered General Power of Attorney signed by him in favour of the defendant, Raj Kumar. The plaint, alleged that the appellant purchased, and was in possession of, Property No. C-486-B, Gali No. 20, Bhajanpura, Delhi (hereinafter the "suit property") through sale deed dated 8th February, 2007 for a sale consideration of `3,05,000/- from one Smt. Sosan Masih. The appellant argued that thereafter, on account of financial constraints in 2009, the defendant, who knew him previously, agreed to advance a loan of `13,00,000 to him at 2% interest, with repayment stipulated in 6 months. It is claimed however, that in return the defendant required a General Power of Attorney (hereinafter "GPA") to be registered in his favour in respect of the suit property and for possession of the plot to be handed over to him. It is alleged that though the appellant insisted upon the execution and registration of a mortgage deed only, the defendant insisted on a GPA and nothing else. The plaintiff claims that he required the loan to pay the erstwhile owner of the suit property in accordance with a RFA (OS) 99/2013 Page 3 compromise dated 04.08.2009. It is argued that the appellant was not in possession of the suit property on the date of the GPA (03.08.2009), and that he came into possession only on 15.09.2009. 3. It is admitted by the plaintiff that possession of the property was given to the defendant subsequently, though it is contended that the GPA was only to secure re-payment of the loan and that the defendant never acquired any independent right or interest in the ownership of the property. Accordingly, the plaintiff claims that when he offered repayment of the loan (with a total payment of `14,51,500/-), the defendant's claims to the suit property ended. 4. The terms of the GPA in this case are broad and unqualified, and do not admit any restrictions or reservations in the manner in which the attorney could deal with the property. Neither does the plaintiff deny that this GPA was indeed signed in these terms. In order to vitiate the GPA, which is the basis of the defendant's authority to have let out the suit premises or to have dealt with it in any manner as he has done, the plaintiff's counsel alleges various faults with the GPA, which would be dealt with in turn. 5. It is claimed that the plaintiff was illiterate and thus, did not know the contents of the documents he was signing. It is argued that the documents signed were in English, and the plaintiff/Appellant had primary education in a Hindi medium RFA (OS) 99/2013 Page 4 school and studied only up to Class VI. Therefore, as the contents of the documents were not read out to him in vernacular, it is argued that the GPA was signed on the basis of fraud. For this, learned counsel for the plaintiff places reliance on the judgment