Nirmala Jain v. G.S. Batra

1. By the present order, I will dispose of the application i.e. IA 19137/2014 filed by the respondent No. 1/applicant (Applicant, in short) Mr. G.S.Batra in the aforesaid OMP. The facts:

2. The aforesaid OMP has been filed by the petitioners herein under Section 9 of the Arbitration and Conciliation Act, 1996 (Act, in short). When the matter was listed on May 4, 2004, this Court has passed the following order: 2015:DHC:2993 “Notice to the respondents for 14th July, 2004. In the meanwhile, the parties are directed to maintain status quo in regard to the title as well as possession of property No. 40/72, Punjab Bagh (West), New Delhi and are restrained from raising any further constructions therein or creating any third party interest in any portion of the said property. The respondents are further restrained from obstructing the ingress and egress of the petitioners, their family members as well as visitors to the portions of the suit property in their possession”.

3. The aforesaid order was confirmed by this Court on November 22,

2005. Two applications i.e. one by the petitioners (IA No. 13795/2014) for appointment of a Court Receiver and for appointment of a Court Commissioner for sealing the property in question 40/72, Punjabi Bagh (West), New Delhi and the other by the respondent No. 1 (IA NO. 15470/2014) for recall of order dated August 14, 2014 were filed. The application (IA 15470/2014) was withdrawn by the applicant herein. On July 31, 2014, in IA 13795/2014, this Court had appointed Mr. Jayant K. Mehta, Advocate as the Court Commissioner, who was to visit the property/site and take photographs and file his report. Mr. Jayant K.Mehta, in his report, has stated that large scale construction is going on at the site. This aspect was noted by this Court on August 14, 2014. The Court appointed Mr.D.S.Bhandari, then OSD of this Court as a Court Receiver to ensure that the property is sealed. The Court Receiver in his report stated that, the terrace and the first floor have been sealed. On August 20, 2014, this Court after perusing the report and the photographs and also hearing the Court Commissioner Mr. Jayant K. Mehta, continued the sealing carried out at the behest of the Court. Since contempt petition was filed by the petitioners, the Court was of the view that any party seeking variation of the aforesaid order or access to the premises except the ground floor, will approach the Court in which the contempt proceedings are pending. The contempt proceedings were dismissed in default for non-appearance of the petitioners.

4. The learned Single Judge hearing the contempt petition on an application filed by the applicant, gave liberty to the respondent No. 1 to approach this Court vide order dated September 22, 2014. The prayers sought in the present application are as under: “a. De-seal the first floor of the property bearing number 40/72, West Punjabi Bagh, New Delhi in the interest of justice. b. Call the record of Cont. Case 470 of 2014 titled as Nirmala Devi Versus G.S.Batra and Others in the interest of justice. c. Call the record of the Cont. Case No. 89 of 2011 titled as Nirmala Devi Versus G.S.Batra and Others in the interest of justice”

5. It is the case of the applicant in the application that the applicant has the possession of the subject property and the petitioners/nonapplicants have deliberately got the contempt petition dismissed by not appearing in those proceedings. It is also his case that the petitioners intentionally did not file any application for restoration and which clearly shows an attempt to harass the respondents, which resulted in loss of considerable time for the applicant to move an application for desealing. It is his case that the applicant has acquired ownership of 1/3rd undivided share in the subject property by virtue of registered sale deed dated April 6, 2004 and on that day, possession of the subject property has been handed over to the applicant. The subject property was mortgaged by the petitioners with UCO Bank and failing to clear the dues of the bank, proceedings under SARFAESI Act, 2002 were instituted by UCO Bank and the respondent No. 3 has acquired the ownership of the subject property by virtue of sale certificate issued by UCO Bank on August 17, 2007 and possession of the property has been handed over to the respondent No. 3. He would state that the respondent No. 3 has allowed the applicant to remain in the subject property. It is also stated by the applicant that the petitioners have challenged the sale before the learned DRT which dismissed the petition vide order dated August 6, 2012 and the petitioners have challenged the order before the DRAT which is pending adjudication.

6. The applicant’s case is that since it is a 40 years’ old case, the property was in urgent need of repairs as electrical wires as well as internal pipelines were severely damaged on the ground floor as well as the first floor and also the fact that due to ongoing rainy season, all the walls, roofs of some part of the property got damaged, resulting in frequent short circuits. He would also state that the applicant is living with his family and temporarily shifted from subject property to a lease property so that the renovation work can be carried out smoothly in their absence. According to him, this aspect was concealed by the petitioners from this Court in IA 13795/2014 and represented to the Court that they are the owners of the subject property despite the fact that the subject property has been sold by the bank by invoking the provisions of SARFAESI Act, 2002 to Mr.Jasbir Singh. He would state that no structural deviation or any construction is being carried out at the subject property. Rather, it is a mere renovation which was much necessitated due to its structural conditions. It is also stated that FIR has been lodged against the petitioners for stealing the original title documents from the Court file qua the aforesaid property. The applicant would state that, in the absence of desealing of the first floor, it is becoming very difficult for the applicant to use the ground floor as water tanks as well as main meter switch is installed at the first floor and unless the subject property is desealed, the applicant will suffer irreparable loss and because of ensuing festival, many family friends and relatives may visit the house of the applicant.

7. The petitioners/non-applicants filed a reply to this application. It is their case in the reply that the applicant has not approached this Court with clean hands and deliberately concealed material facts. The petitioners would dispute the fact of applicant is residing in the property in question. The petitioners dispute the factum of the applicant having given permission by Mr. Jasbir Singh to reside in the property in question. According to the petitioners, the attempt of the applicant to somehow get the first floor of the property desealed, is only to defeat the valuable rights of the petitioners. According to them, the documents annexed by the applicant all came into existence after the year 2010. It is the case of the petitioners that the applicant is not residing in the property in question and has filed a wrong, false and frivolous application. He relied upon para 7 of the report of the Local Commissioner to submit that the observations of the Local Commissioner clearly negates the submission of the applicant that he is residing in the property in question. The petitioners would also state that the property, to the best of their knowledge, does not require any renovation and/or repair works. According to the petitioners, massive construction work is being carried out in the subject property by giving it a colour of repair and renovation. It is also stated by the petitioners that they have learnt that the respondents have already sold the subject property by way of an Agreement to Sell to one Mr. Rajesh Gulla and his brother Mr. Sandeep Gulla. In other words, it is the petitioners’ contention that the subject property was a single dwelling unit but now it has been modified and reconstructed into two dwelling units. In reply they sought dismissal of the petition.

8. Mr.Sandeep Sethi, learned Senior Counsel with Mr.Rakesh Malhotra, Advocate appearing for the respondent No.1/applicant would submit that the petitioners have no title to the property. According to him, the petitioners have entered into a Agreement to Sell with the respondent No.1 and have received valuable consideration. Further the property has now been sold to Mr.Jasbir Singh, with whose permission the respondent No.1 is in the property. According to him, the sale certificate issued is valid and has till date not been stayed In view thereof, there cannot be any doubt with regard to the respondents’ enjoyment of the property and as such the respondent No.1/applicant is well within its right to carry out the repairs in the property and the same cannot be scuttled by any person much less the petitioners who have no right in the property. He would state, the basic plea of the petitioners is that the respondents have disobeyed the order by carrying out large scale construction/demolition in the property. He has drawn my attention to some of the photographs, to contend that the plea of the petitioners is totally incorrect. It is his endeavour to impress upon the Court that the repairs work is being done in the property. He would concede to the fact that the petitioners should have come to this Court before starting the repair work. For this inaction, the respondent No.1/applicant tenders his unqualified apology. It is contended that even assuming the conclusion of the Local Commissioner is correct the same in no manner suggest that the respondents have raised any further construction in the property. It is his attempt to show that the petitioners with indifferent credentials, being involved in several cases and committed cheating with the respondents and UCO bank by agreeing to sell the subject property to them which property was already mortgaged with the UCO bank need to be dealt strictly. It is the contention that the persons with such background are not entitled to any relief, moreso when they have no right, title or interest in the suit property.

9. On the other hand, Mr.Rajat Navet, learned counsel for the petitioner would contend that the order of sealing was passed on August 14, 2014 by this Court after hearing and concurring with the Local Commissioner’s report dated August 06, 2014 that the large scale construction is being done by the respondents in the subject property. It is his submission that no cogent reasons have been given in support of their plea for de-sealing of the subject property. He would state that the attempt of the respondent No.1/applicant is to mislead and misguide the Court by raising various issues which are subject matter of the arbitral proceedings already pending adjudication before Justice (Retired) Anil Dev Singh. He states that the subject matter of the arbitral proceedings includes prayer for declaration of the Agreement to Sell and other documents between the petitioners and the respondents as null and void and further for directions to the respondents to put the petitioners back into possession of the subject property. He states that even the public auction by the DRT is subject of the outcome of the arbitration proceedings and this fact has been specifically mentioned in the public auction notice. He rely upon the report of the Local Commissioner, wherein the Commissioner has stated that in some rooms he has found scaffoldings and iron bars which have been put for creating the roofs, to contend that the facts as noted by the Commissioner shows structural changes are being done in the subject property, converting the same from one single dwelling into two separate dwellings. He has also taken me through some of the photographs in support of his contentions. He has also disputed the contention on behalf of the learned Senior Counsel for the respondent No.1/applicant that only minor repair work is going on. According to him, in fact he had filed a comparison of the photographs filed by the petitioners and the Local Commissioner and explanation against each of the photographs.

10. The parties have filed their respective submissions.

11. Having heard the learned counsel for the parties, I note that the IA 13795/2014 was filed by the petitioners herein on the ground that the respondents have violated the injunction order dated May 04, 2004 vide which the Court has restrained the respondents from carrying on further construction in the property in issue. This Court on the application filed by the petitioners accordingly appointed the Court Commissioner. The Court Commissioner’s report was noted by this Court on August 14, 2014 of “large scale construction is going on at the site in issue”. It is pursuant thereto the Court Receiver was appointed who had sealed the first floor of the property. That apart on August 20, 2014 this Court after hearing the learned Court Commissioner was of a prima facie view that some construction was being carried out at the site. I agree with the said conclusion. The apprehension of the petitioners of large scale activities is justified in the given facts, more so in view of the photographs filed. I note that the issue regarding the Agreement to Sell is pending adjudication before the learned Arbitrator. The issue would determine the rights of the parties to the property. That apart even the sale certificate has been made subject to the outcome of the arbitration proceedings. Suffice to state, the said issue would be germane to determine the ownership. I have been told that even though the respondents were not appearing before the learned Arbitrator, an application for summoning of the witnesses has been filed and thereafter arguments would be addressed before the learned Arbitrator.

12. The order dated May 04, 2004 has restrained the parties from raising any further construction. The said order is in operation since then. Surely under the guise of minor repair work, a party cannot make construction in the property. No justifiable reasons have been given by the respondent No.1 for de-sealing of the property. The intent of Section 9 of the Act includes preservation of immovable property which is the subject matter of the dispute in arbitration. I am of the view that the present application filed by the respondent No.1/applicant is devoid of any merit. I accordingly dismiss the present application.

(V.KAMESWAR RAO)

JUDGE MARCH 27, 2015 akb