Suraj Prakash Singh v. Kamlesh Prakash & Ors.

1. This order is in continuation of the earlier order dated 28^*^ January,

2013. Though the cost imposed has not been paid (the counsel for the plaintiff assures that the same will be deposited today) and the plaintiff has also not appeared but the counsel for the plaintiff states that he now has instructions from the plaintiff. The whole idea ofdirecting the presence of Page 1 of[4] CS(OS)1230/2009 & EX.P. 69/2012 2013:DHC:7987 v> the plaintiffbeing to enable the counsel to have instructions, it is not deemed necessary to adjourn the matter awaiting the presence ofthe plaintiff

2. The counsel for the plaintiff Shri Suraj Prakash Singh, the counsel for the defendants no.l&2 Smt. Kamlesh Prakash and Shri Rohit Prakash Singh and the counsel for the defendant no.3 Dr. Sweta Prakash have been heard.

3. In this suit for partition of immovable properties, a preliminary decree was passed on25^'' Febmary, 2011 holding the plaintiffand the defendants no.lto 3 to have having 1/4**^ share each in the subject properties. The said preliminary decree was modified vide consent order dated 23'^'' May, 2011 in RFA(OS) No.58/2011 preferred thereagainst. All counsels are ad idem that now the issue only with respect to property No.C-13, Green Park Extension, New Delhi remains and the matter in so far as the other properties is concerned, stands settled.

4. The subsequent order dated 14'*^ November, 2011 in the suit records that inter se bidding took place between the parties qua their share in the said Green Park Extension property and pursuant whereto the plaintiff and the defendant no.3 agreed to receive Rs.5,31,25,000/- each from the defendants no.l&2. The mode of the said payment was also stipulated in the said Agreement. The counsel for the plaintiff states that the entire payment as per the order dated 14^^ November, 2011 was to be made by 20'^ February, 2012.

5. Execution Petition 69/2012 is filed by the plaintiff of the said order contending that no amount was paid.

6. The counsel for the defendantno.3 states that the defendant no.3 has also filed Execution Petition 112/2012 ofthe same order which is not listed. CS(OS) 1230/2009 &EX.P. 69/2012 2of[4] The same, on enquiry from the Registry, is found to have been dismissed in default and for non-prosecution on 19"^ July, 2012.

7. However the counsels for the plaintiff and the defendant no.3 themselves admit that since the defendants no.l&2 were unable to pay the amounts in terms of the order dated 14"^ November, 2011, it was jointly agreed between all the parties to enter into a Collaboration Agreement with a builder and under which Collaboration Agreement the builder would give the second floor of the reconstructed property to the plaintiff and the defendant no.3 and the third floor with terrace to the defendants no.l&2 besides payment of Rs.[2] crores each to the plaintiff and the defendant no.3 and Rs. 1.75 crore each to the defendants no. 1&2.

8. The contention of the counsels for the plaintiff and the defendant no.3 is that though the builder has paid a sum of Rs. 1.25 crore each to the plaintiff and the defendant no.3 but the balance amount of Rs.75 lacs each remains to be paid by the builder to the plaintiff and the defendant no.3.

9. The senior counsel for the defendants no.l&2 has invited attention to the agreements executed by the parties with the builder to contend that the said balance amount is payable within seven days of casting ofthe third floor slab and simultaneously against execution/registration of documents qua the basement, ground, first and stilt floor (except four parking spaces). He contends that thus no purpose would be served in keeping the suit and the execution pending.

10. Per contra, the counsels for the plaintiff and the defendant no.3 state that the suit as well as the execution be kept pending till the Collaboration Agreement with the builder is implemented and the balance amount ofRs.75 CS(OS) 1230/2009 & EX.P. 69/2012 lacs is paid to each of the plaintiff and the defendant no.3 and the possession ofthe second floor delivered to the plaintiffand the defendant no.3.

11. It has been enquired from the counsels for the plaintiff and the defendant no.3 as to what purpose would be served by keeping these proceedings pending in as much as the builder is not a party to the present proceedings and even if the builder defaults in payment or otherwise, the remedies ofthe parties thereagainst cannot be in these proceedings.

12. No plausible answer is forthcoming.

13. The aforesaid narrative would show that no further orders are required to be passed in these proceedings.

14. It has been enquired from the counsels whether they desire the decree sheet to be draAvn up. All counsels join and state that they do not want to take the biuden ofpayment ofthe Stamp Duty on the decree sheet.