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$-15 HIGH COURT OF DELHI
W.P.(C) 7480/2015
W.P.(C) 7480/2015
JUDGMENT
dated 6"' August, 2015 M/S NAITHANI EDUCATION SOCIETY(REGD) Petitioner
Through
Through
versus
DEEPAK GARG & ORS.
Through Mr. Anil Sapra, Senior Advocate with Mr. Sultan Singh & Ms. Rupali Kapoor, Advocates for the petitioner along with
Mr. Rajesh Gupta,President ofthd petitioner society and son of Smt. Saroj Gupta present in person.
Respondents Mr. Arun Batta with Mr. Amit Srivastava, Advocates along with Mr. Deepak Garg,'
Caveator/ respondent no.l present in person.
Through Mr. Anil Sapra, Senior Advocate with Mr. Sultan Singh & Ms. Rupali Kapoor, Advocates for the petitioner along with
Mr. Rajesh Gupta,President ofthd petitioner society and son of Smt. Saroj Gupta present in person.
Respondents Mr. Arun Batta with Mr. Amit Srivastava, Advocates along with Mr. Deepak Garg,'
Caveator/ respondent no.l present in person.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S
CA
1.
CIV
2.
3.
W.
4.
SISTANI, J (ORAL) v. No.820/2015 Since the Caveator has entered appearance through counsel, the present
Caveat petition stands disposed of accordingly.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S
CA
1.
CIV
2.
3.
W.
4.
SISTANI, J (ORAL) v. No.820/2015 Since the Caveator has entered appearance through counsel, the present
Caveat petition stands disposed of accordingly.
LAPPL 13827/2015
Exemption allowed, subject to alljust exceptions.
Application stands disposed of '.(C) 7480/2015
This matter is listed today after having been mentioned before DB-II. The principal borrower had approached Indian Overseas Bank for financial
W.P (C)No.74S0/2015 Page 1 of4 2015:DHC:11555-DB
5.
W.P.
Essistance and also mortgaged land measuring 1306 sq.yds (1 Bigha 6
Biswas) situated in the revenue estate of Village Baprolla, New Delhi as per the sale deed dated 13.02.2003. Subsequently, the borrowers entered into a lease with the petitioner herein on 05.08.2004 for running a school.
Since the principal borrower was unable to maintain financial discipline, proceedings were initiated under the SARFAESI Act and the Recovery of
;Debts Due to Banks and Financial Institutions Act, 1993. The bank obtained symbolic possession after issuance of notice under Section 13 of
;he SARFAESI Act, but the petitioner continued to run the school. The
Droperty mortgaged was auctioned in the year 2012 and purchased by respondent no.l herein for a sum of Rs.1.0 crore. The petitioner has claimed independent right as a tenant over the mortgaged property which is opposed by respondent no.l on the ground that despite an order of injunction and in utter violation thereof, Smt. Dolly Naithani sold the mortgaged property to one Smt. Saroj Gupta and Smt. Saroj Gupta thereafter entered into fresh lease with the petitioner herein.
Mr. Batta submits that any tenancy created against the provisions of
Section 65A ofthe Transfer of PropertyAct would make the lease a nullity and the occupation of the petitioner as a rank trespasser. Be that as it may, after some hearing in the matter, parties have entered into an amicable, ftill and final settlement in following agreed terms:
(i) The petitioner withdraws all their claims with respect to the mortgaged property and recognise respondent no.l as the lawftil auction purchaser;
(ii) The petitioner seeks 15 months time to hand over the vacant physical possession of the mortgaged land and building to respondent no.l in the same or better condition;
(iii) For the use and occupation for 15 months, the petitioner would pay
'C)No.7480/20I5 Page 2 of4 6.
7.
> occupation charges @ Rs. 1,00,000/- per month for 12 months instead of 15 months;
(iv) The petitioner will not seek extension of time, and at the end of 15 months hand over the physical vacant possession to respondent no.l;
(v) In case of any default in payment of the use and occupation charges, the petitioner would be liable to pay for 15 months of the use and occupation charges;
(vi) The use and occupation charges would be payable from 01.08.2015 onwards and the payment shall begin from 01.09.2015;
(vii) The petitioner will withdraw all the proceedings initiated against respondent no.l;
(viii) The mortgaged portion shall be demarcated by a local Patwari.
The local Patwari is directed to demarcate the area based on the sale deed within a period of two weeks from today in the presence ofthe parties and submit his report to this Court; and
(ix) The petitioner will be liable to pay all the statutory dues, including water and electricity charges for the period of their occupation and such dues shall be clearedbefore the vacation ofthe property and at the time of vacation and a 'No Due Certificate' shall be provided by the petitioner to respondent no.l and shall hand over the vacant physical possession inthe same orbetter condition as oftoday.
In view of the settlement arrived at between the parties, the orders dated
27.07.2015 of Debts Recovery Tribunal-II, Delhi and 31.07.2015 of Debts
Recovery Appellate Tribunal, Delhi shall not be given effect to. The parties have signed on the ordersheet in token oftheir acceptance.
Additionally, the petitioner will file an undertaking in the form of an affidavit after supplying acopy thereofto the respondent. The undertaking
W.P.(C) No.7480/2015 Page 3 of4 i, 8.
9.
"1 in the form of an affidavit shall be filed by Rajesh Gupta, President of the petitioner society and Smt. Saroj Gupta within a period of one week from tiDday which shall be treated as an undertaking to this Court. The petitioner has been explained the consequences of breach of the i ndertaking given to the Court.
'he writ petition is disposed of in above terms.
List for compliance on 09.09.2015.
Exemption allowed, subject to alljust exceptions.
Application stands disposed of '.(C) 7480/2015
This matter is listed today after having been mentioned before DB-II. The principal borrower had approached Indian Overseas Bank for financial
W.P (C)No.74S0/2015 Page 1 of4 2015:DHC:11555-DB
5.
W.P.
Essistance and also mortgaged land measuring 1306 sq.yds (1 Bigha 6
Biswas) situated in the revenue estate of Village Baprolla, New Delhi as per the sale deed dated 13.02.2003. Subsequently, the borrowers entered into a lease with the petitioner herein on 05.08.2004 for running a school.
Since the principal borrower was unable to maintain financial discipline, proceedings were initiated under the SARFAESI Act and the Recovery of
;Debts Due to Banks and Financial Institutions Act, 1993. The bank obtained symbolic possession after issuance of notice under Section 13 of
;he SARFAESI Act, but the petitioner continued to run the school. The
Droperty mortgaged was auctioned in the year 2012 and purchased by respondent no.l herein for a sum of Rs.1.0 crore. The petitioner has claimed independent right as a tenant over the mortgaged property which is opposed by respondent no.l on the ground that despite an order of injunction and in utter violation thereof, Smt. Dolly Naithani sold the mortgaged property to one Smt. Saroj Gupta and Smt. Saroj Gupta thereafter entered into fresh lease with the petitioner herein.
Mr. Batta submits that any tenancy created against the provisions of
Section 65A ofthe Transfer of PropertyAct would make the lease a nullity and the occupation of the petitioner as a rank trespasser. Be that as it may, after some hearing in the matter, parties have entered into an amicable, ftill and final settlement in following agreed terms:
(i) The petitioner withdraws all their claims with respect to the mortgaged property and recognise respondent no.l as the lawftil auction purchaser;
(ii) The petitioner seeks 15 months time to hand over the vacant physical possession of the mortgaged land and building to respondent no.l in the same or better condition;
(iii) For the use and occupation for 15 months, the petitioner would pay
'C)No.7480/20I5 Page 2 of4 6.
7.
> occupation charges @ Rs. 1,00,000/- per month for 12 months instead of 15 months;
(iv) The petitioner will not seek extension of time, and at the end of 15 months hand over the physical vacant possession to respondent no.l;
(v) In case of any default in payment of the use and occupation charges, the petitioner would be liable to pay for 15 months of the use and occupation charges;
(vi) The use and occupation charges would be payable from 01.08.2015 onwards and the payment shall begin from 01.09.2015;
(vii) The petitioner will withdraw all the proceedings initiated against respondent no.l;
(viii) The mortgaged portion shall be demarcated by a local Patwari.
The local Patwari is directed to demarcate the area based on the sale deed within a period of two weeks from today in the presence ofthe parties and submit his report to this Court; and
(ix) The petitioner will be liable to pay all the statutory dues, including water and electricity charges for the period of their occupation and such dues shall be clearedbefore the vacation ofthe property and at the time of vacation and a 'No Due Certificate' shall be provided by the petitioner to respondent no.l and shall hand over the vacant physical possession inthe same orbetter condition as oftoday.
In view of the settlement arrived at between the parties, the orders dated
27.07.2015 of Debts Recovery Tribunal-II, Delhi and 31.07.2015 of Debts
Recovery Appellate Tribunal, Delhi shall not be given effect to. The parties have signed on the ordersheet in token oftheir acceptance.
Additionally, the petitioner will file an undertaking in the form of an affidavit after supplying acopy thereofto the respondent. The undertaking
W.P.(C) No.7480/2015 Page 3 of4 i, 8.
9.
"1 in the form of an affidavit shall be filed by Rajesh Gupta, President of the petitioner society and Smt. Saroj Gupta within a period of one week from tiDday which shall be treated as an undertaking to this Court. The petitioner has been explained the consequences of breach of the i ndertaking given to the Court.
'he writ petition is disposed of in above terms.
List for compliance on 09.09.2015.
CM.APPL 13826/2015(stav)
10. In view of the writ petition having been disposed of, the application also stands disposed of AUGUST 06, 2015 pst ei IS /\ V W.P.(C) No.7480/2015 G.S.SISTANI, J sang: RA SEHGAL, J. w Page 4 of[4]