Written statement of defendant no. 2 with evidence affidavit in suit for declaration and permanent injunction
0 of 20 blanks filled
IN THE HON'BLE COURT OF LD. SENIOR CIVIL JUDGE;
NEW DELHI DIST.; Court complex name COURTS,
NEW DELHI.
CIVIL SUIT NO. Civil suit number OF 20Last two digits of suit year.
IN THE MATTER OF :-
Plaintiff's name Plaintiff's surname: PLAINTIFF
VERSUS
Defendant no. 1's name & ANR.: DEFENDANTS
WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT NO. 2 TO THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION FILED BY THE PLAINTIFF
MOST RESPECTFULLY SHOWETH :-
That the instant written statement is based on the limited information provided by the plaintiff in the aforesaid suit. Before rebutting the contents of the suit, the answering defendant no. 2 craves leave to place on record certain preliminary submissions/objections and material facts, which are without prejudice to its rights and contentions, but which go to the root of the matter and require to be decided by this Hon'ble Court before adjudication of the matter. The said submissions/objections and facts, as stated hereinafter for the consideration of the Hon'ble Court for proper determination of the issues involved, would show that the said suit is wholly irrational and baseless, and is therefore frivolous and vexatious, both in law and on facts.
PRELIMINARY SUBMISSIONS / OBJECTIONS:-
1.That the present suit filed by the plaintiff is false, frivolous, fabricated and vexatious. It is an abuse of the process of law, in that the plaintiff has taken recourse to falsehood and fraud. A bare perusal of the present suit clearly reveals that the plaintiff has got the same filed with ulterior motives and with mala fide and wrongful intentions, merely to drag the answering defendant no. 2 (hereinafter referred to as the "Defendant") into unnecessary and frivolous litigation and to otherwise prejudice the Defendant.
2.That the plaintiff has no locus standi to file and pursue the present suit in the capacity of the owner of the second floor of the suit property. Apart from the bare statement in the plaint that the plaintiff is the owner in occupation of the second floor flat, the plaintiff, despite filing additional documents, has failed to furnish any proof of his rights as the owner of the said portion of the property. The present suit is therefore liable to be dismissed on this ground alone, especially as against the defendant no. 2.
3.That the answering defendant is the owner of (a) the basement along with the ground floor and (b) the terrace over the second floor of the suit premises (both (a) and (b) being covered by separate sale deeds), and that there is no illegal construction at the ground floor or in the basement of the property bearing no. Suit property house number, Suit property locality, New Delhi. The entire plinth area is exactly the same as purchased by the defendant no. 2 under the registered sale deed executed by the erstwhile owner in May, 2011.
4.That the present suit is a counterblast to the plaintiff, in that the defendant no. 2 refused the offer of the plaintiff for extension of the front balcony and extension of the back portion rooms of the plaintiff on his second floor, at the cost of the answering defendant, in lieu of compensation, to allow the answering defendant to discharge the mud from the basement of the suit premises.
5.The answering defendant submits that the plaintiff has asserted, and has even alleged, that the answering defendant has no right to use the common passage/driveway; however, the answering defendant is the owner of the terrace over the second floor of the suit premises, which specifically entitles him to all rights as available under the registered sale deed in favour of the defendant no. 1.
6.It is also submitted that the plaintiff does not recognise any land right in the terrace in spite of the sale deed in favour of the answering defendant, which clearly states that, as terrace owner, the defendant no. 2 owns 20% of the land share out of the whole plot. Further, the plaintiff has repeatedly told the answering defendant that such a situation will be created that the defendant no. 2 will be forced to sell the terrace to the plaintiff alone and to no one else. This suit is nothing but the product of the plaintiff's frustration, since the defendant no. 2 refused to allow him further extension of the balcony and rooms at the back portion of the building, and locked the terrace, which was previously an area freely accessible to the plaintiff, where he and his staff roamed about blatantly with a purpose to display their prowess and with a view to dislodging the defendant no. 2 from his exclusive rights as owner of the terrace and to grabbing the property of the defendant no. 2.
7.That the answering defendant further submits that there is no digging or illegal construction in the basement of the suit premises till date, and the MCD officials may visit the suit premises and submit their report in respect thereof. Even otherwise, it is submitted that constructing a basement, especially in an existing house, is technically a challenging and intricate task requiring considerable time and the expertise of experienced professionals and licensed contractors specialising in such excavations; therefore, the secret construction or extension of a basement is merely a hallucination that the plaintiff wishes to believe.
8.That the defendant no. 2 states that there is likewise no illegal coverage or construction at the back portion of the ground floor of the suit premises. The entire built-up area of the basement and ground floor of the suit premises is as per the MCD norms and regulations, and there is no illegal construction at the suit premises by the defendant no. 2 till date. The entire built-up area of the ground floor and basement of the suit premises is the same as mentioned in the sale deeds in favour of the defendant no. 1 dated 28.05.2011.
9.That the answering defendant submits that the defendant no. 1 himself is residing in the suit premises along with his aged mother, wife and two children, whereas on the contrary the plaintiff is residing alone at the second floor of the suit premises, and till date there has been no objection or issue whatsoever as regards the water supply to any of the other occupants of the suit premises, including the plaintiff. It is pertinent to mention, and has also been admitted by the plaintiff, that the water tanks are common to all floors, so that there is no manner in which one floor receives supply while any other floor is deprived of the same.
10.That the answering defendant submits that he and the defendant no. 1 had put a lock on the terrace over the second floor of the suit premises, which belongs to the defendant no. 2 exclusively. Even otherwise, the answering defendant has informed the plaintiff, as well as the occupant/resident of the first floor of the suit premises, personally as well as by email and by a message pasted on the door.
11.That the answering defendant submits that he has put a lock on the terrace over the second floor of the suit premises owing to the illegal loitering and unabated trespassing and other indecent and unlawful activities being noticed by the defendant no. 2 on his terrace floor. Further, it is submitted that the keys of the said lock are available with the guard of the defendant no. 2, to be provided to the plaintiff as well as the resident of the first floor of the suit premises as and when required, at all reasonable hours.
12.That the answering defendant further submits that the plaintiff, with the malicious intention of dislodging the physical possession of the terrace over the second floor of the suit premises and of arm-twisting the defendant no. 2 to eventually sell his terrace over the second floor of the suit premises at a throwaway price, has filed the present suit in order to harass the defendant no. 2.
13.That, without prejudice to the rights and contentions of the defendant and further without admitting anything, it is submitted that the documents filed by the plaintiff along with the suit cannot be taken on record, inasmuch as the same have not been properly pleaded in the suit, and the documents on which reliance has been placed by the plaintiff cannot be read as part of the pleadings, the same having not been mentioned in the contents of the suit. It is further pertinent to mention that the plaintiff has relied upon incomplete documents which fail to show any direct nexus with the suit and with the grievances between the averments made as portrayed by the plaintiff.
14.That the plaintiff has deliberately and mischievously withheld material facts and has instead filed the present suit on a baseless and concocted story with a view to harassing the Defendants. Had the plaintiff been aware of the ground situation prevailing, she would herself have understood the entire scenario and would thereafter have been persuaded by good sense.
15.That the allegations contained in the plaint under reply are vague and devoid of any specificity. The said allegations stand conclusively rebutted by the submissions made in the present written statement, coupled with the fact that the plaintiff has failed to establish her case. The allegations being vague and baseless, the suit is frivolous, vexatious and a gross abuse of the due process of law.
16.That the present suit has not been properly valued for the purposes of court fees and jurisdiction and is therefore liable to be rejected outright. There is absolutely no cause of action in favour of the plaintiff and against the answering defendant.
17.At the outset, the answering defendants deny and dispute all the contentions, claims, demands, allegations, averments, imputations and insinuations of the plaintiff, save and except what are matters of record and what have been specifically admitted herein. The suit is wholly frivolous and contrary to well-settled law and binding judicial precedents.
18.That the plaintiff has not approached this Hon'ble Court with clean hands, and on this ground alone the aforesaid suit is liable to be dismissed.
19.That no cause of action arises against the answering defendants, and the present suit is liable to be rejected in view of the provisions of Order VII Rule XI C.P.C.
20.That the present suit is false, malicious, incorrect and mala fide, and is nothing but an abuse of the process of law, wasting the precious time of this Hon'ble Court, and has been filed solely to avail of undue advantage. The present suit is therefore liable to be dismissed.
21.That the plaintiff has no cause of action against the answering defendant, and the suit filed by the plaintiff is wholly misconceived, baseless and frivolous, and is not maintainable in law.
REPLY ON MERITS :-
1.That in reply to paragraph 1 of the plaint, the contents thereof are a matter of record and hence require no reply. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
2.That in reply to paragraph 2 of the plaint, the contents thereof are a matter of want of knowledge and hence require no reply. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
3.That in reply to paragraph 3 of the plaint, the contents thereof are denied to the extent that the defendant had abruptly started unauthorised activities and had begun to harass and humiliate the plaintiff on one pretext or the other. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
4.That in reply to paragraph 4 of the plaint, the contents thereof are wrong and denied. It is denied that in terms of the said agreement, the said property was to be constructed up to the second floor and that the owner was entitled to the basement measuring approximately 600 Sq. Ft., the ground floor with front and rear set back, the open terrace over and above the second floor, the driveway (adjoining property no. 31), the use of common areas and proportionate, undivided, indivisible and impartible ownership rights in the said property. It is further denied that the plaintiff is the owner of the second floor, and it is denied that the plaintiff has come to know that Mr. Director's name, director of Company name of director Pvt. Ltd., has purchased the share of the erstwhile owner. It is further denied that the said purchasers have purchased the said share in piecemeals, thereby affecting the very nature of the property in question. It is further denied that the said property was impartible in nature and could not have been purchased in piecemeals. It is further denied that the subsequent sale deed executed in favour of Company name in sale deed Pvt. Ltd., which mentions/defines the share of the purchaser as 20% indivisible undivided rights, itself exposes the malicious act done during the registration of the terrace portion. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
5.That in reply to paragraph 5 of the plaint, the contents thereof are wrong and denied. It is denied that the action of the purchasers/defendant no. 2, apart from being invalid, places the undersigned in a detrimental position, in that the share of the undersigned in the ground underneath the building of the property is affected by their shares in the property. It is further denied that the purchaser was completely aware of the limitations set forth in the collaboration agreement and was also aware that he was bound by the same. It is further denied that, as per well-settled law, no one can claim unjust enrichment. It is further denied that even as per the collaboration agreement, the total floor area ratio sanctioned on the said plot of land by the MCD has been equally divided between all the floors, namely the ground, first and second floors, and that therefore, by specifically mentioning and conveying a 20% share as stated hereinabove, defendant no. 2 has purported to purchase rights in the property greater than he was entitled to. It is further denied that defendant no. 2 has intentionally executed an invalid and void deed behind the back of the plaintiff and by misleading defendant no. 1, in order to increase his share in the property and thereby decrease the share of the plaintiff in the said property. It is further denied that the execution of both the sale deeds in favour of defendant no. 2 has detrimentally affected the plaintiff. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
6.That in reply to paragraph 6 of the plaint, the contents thereof are wrong and denied. It is denied that the plaintiff came to know of the said aspect only recently, as he was not privy to the documents executed in favour of defendant no. 2, and that upon coming to know of the same, the plaintiff had for the last few months been trying to request defendant no. 2 to get the said documents amended, as the plaintiff, not being a party to the said documents, could not take steps before the Registrar. It is further denied that defendant no. 2, through Mr. Name of defendant's representative, instead of paying heed to the just request of the plaintiff, mocked him and stated in a rude tone that the plaintiff was a loner and an old fellow, tried to assert his right over the property, and asked the plaintiff whether he wished to sell his portion in the property at throwaway prices. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
7.That in reply to paragraph 7 of the plaint, the contents thereof do not relate to the answering defendant and hence require no reply. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
8.That in reply to paragraph 8 of the plaint, the contents thereof are wrong, denied and incorrect. It is further denied that the plaintiff has recently come to know from reliable sources that defendant no. 2 is attempting to dispose of a portion of the said impartible property and is inclined to transfer/alienate the share in the property as wrongly/inadvertently mentioned in the impugned sale deeds. It is further denied that although the plaintiff tried to convince defendant no. 2 not to do so, as it cannot be done in the present situation, no heed has been paid to the plaintiff's request. The answering defendant craves leave to refer to the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
9.That in reply to paragraph 9 of the plaint, the contents are wrong and are denied. It is denied that Defendant No. 2 filed an additional written statement in the earlier pending Suit, namely Suit No. 1589/2018, and thereby revealed his intention to construct on the 3rd floor of the suit property in complete defiance of the existing building bye-laws and with utter disregard to the safety and rights of the plaintiff. It is further denied that the intentions of the defendant are manifestly malicious, or that he openly boasts that his father was a senior officer in the MCD and that no power on earth can prevent him from constructing another floor on his terrace. It is further denied that Defendant No. 2 may carry out his threats of proceeding with illegal construction. The answering defendant craves leave to refer to and rely upon the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
10.That in reply to paragraph 10 of the plaint, the contents are wrong and are denied. It is denied that the position in law is settled that construction on the terrace above the second floor cannot be carried out without the consent of all the co-owners of the property and without stilt parking being available in accordance with the existing building bye-laws. It is further denied that such construction is contrary to the rights of the plaintiff as per the collaboration agreement and the sale deed. The answering defendant craves leave to refer to and rely upon the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
11.That in reply to paragraph 11 of the plaint, the contents are wrong and are denied. It is denied that the cause of action first arose upon execution of the collaboration agreement dated 7.10.2002, under which the shares in the property were categorically distributed. It is further denied that the cause of action further arose on 14.05.2004, when the second floor of the suit property was purchased by the mother of the plaintiff and was subsequently inherited by him upon his mother's death. It is further denied that the cause of action further arose on 9.05.2011 as well as on 02.06.2011, when the property was purchased by Defendant No. 2. It is further denied that the cause of action also arose in the year 2018, when the defendant began harassing and humiliating the plaintiff. It is further denied that the cause of action further arose on 18.02.2019 and also in February, 2023, when Defendant No. 2 filed his statement as well as an additional written statement, in which he categorically referred to the said sale deed in his favour and proclaimed his share in the property. It is further denied that the cause of action also arose when, despite numerous requests by the plaintiff, Defendant No. 2 failed to take any steps to amend his sale deeds. It is further denied that the cause of action also arose when the plaintiff caused a legal notice dated 17.10.2023 to be served upon Defendant No. 1, but no heed was paid thereto. It is further denied that the cause of action arose on various dates when Defendant No. 2 categorically threatened the plaintiff that he would transfer rights in the property in excess of his entitlement under the collaboration agreement, by relying upon the unlawful/invalid/illegal sale deeds. It is further denied that the cause of action is still subsisting and continuous, as the impugned sale deeds are detrimental to the rights of the plaintiff. The answering defendant craves leave to refer to and rely upon the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
12.That in reply to paragraph 12 of the plaint, the contents are wrong and are denied.
13.That the contents of paragraph 13 of the plaint are wrong and incorrect, and are therefore denied. It is, however, submitted that the suit has not been properly valued for the purposes of court fee and jurisdiction, and is liable to be dismissed on this ground alone. The answering defendant craves leave to refer to and rely upon the submissions made hereinabove, which are not reproduced herein for the sake of brevity.
It is respectfully submitted that the present suit is absolutely false, frivolous, baseless, misconceived and vexatious, to the knowledge of the plaintiff himself, besides being unsustainable in law, and is therefore liable to be dismissed with compensatory costs.
The prayer clause paragraphs of the plaint, along with their sub-paragraphs, are absolutely wrong and are specifically denied. The plaintiff is not entitled to any of the reliefs claimed.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly dismiss the plaint of the plaintiff with heavy costs in favour of Defendant No. 2 and against the plaintiff, for having instituted the present frivolous litigation, in the interest of justice, equity and in the circumstances of the case.
Any other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the defendant.
It is prayed accordingly.
DEFENDANT NO. 2
NEW DELHI
DATEDTHROUGH
Advocate's name
(Advocate)
Counsel for Defendant No. 2
VERIFICATION :-
Verified at Delhi on this Date of verification of written statement day of April, 2024, that the facts stated in paragraphs 1 to ….. of the preliminary objections/submissions, and in paragraphs 1 to 13 of the reply on merits and reply to the grounds of the plaint, are true and correct to my knowledge, and the legal submissions made therein are believed to be true upon legal advice. The last paragraph is a prayer to this Hon'ble Court.
DEFENDANT NO. 2
IN THE HON'BLE COURT OF THE LD. SENIOR CIVIL JUDGE,
NEW DELHI DISTRICT, Court complex name COURTS,
NEW DELHI
CIVIL SUIT NO. Civil suit number OF 20Last two digits of suit year
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendant no. 1's name & ANR.: DEFENDANTS
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, Director of M/s. Deponent's company name Pvt. Ltd., having its office at Company office address, New Delhi-1100Pin code digits
I, the deponent named above, do hereby solemnly affirm and declare as under :-
1.That I am the Director of Defendant No. 1 Company in the above-noted matter, am well conversant with the facts of the case, and am competent to swear the present affidavit.
2.That the submissions of fact made in the accompanying written statement filed in the above suit have been drafted by my counsel under my instructions; the same have been read over and explained to me in my vernacular, and may be read as part and parcel of this affidavit, and are not reproduced herein for the sake of brevity.
DEPONENT
VERIFICATION :-
Verified at Delhi on this Date of verification of affidavit day of April, 2024, that the contents of the above affidavit are true and correct to my knowledge, that no part of it is false, and that nothing material has been concealed therefrom.
DEPONENT