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HIGH COURT OF DELHI
Date of Decision: 14.08.2024
ESVINDER SINGH & ORS. .....Decree Holders
Through: Mr.C.M. Lall, Sr. Adv.
Through: Mr.Raman Kapur, Sr. Adv.
Mr.Suman Malhotra, Advs. for the JDs.
Mr.Sumit Bansal, Mr.Pankaj Gupta, Ms.Surbhi Tandoon &
Ms.Tulma Rampal, Advs. for Auction Purchaser.
Ms.Pavitra Kaur, Adv. (Local Commissioner) present through
VC.
JUDGMENT
1. This application already stands disposed of vide Order dated 15.03.2023. The same should not be shown in the cause-list any further. EX.APPL.(OS) 1484/2023
2. This application has been rendered infructuous and is disposed of as such. EX.APPL.(OS) 1245/2024
3. This application has been rendered infructuous and is disposed of as such. EX.APPL.(OS) 1232/2024
4. This application has been filed by the Judgment Debtors challenging the directions issued by the learned Local Commissioner in minutes of proceedings dated 18.07.2024. The Judgment Debtors pray for the following Orders/Directions:- “a) Pass an appropriate order and or direction whereby setting aside the demand of the Local Commissioner to pay the Government Commission in terms of Rule 22 Part-L of Volume I of Chapter 12 of Delhi High Court Rules; and b) Pass an appropriate order and or direction whereby setting aside the direction to the successful bidder to deposit the balance sale consideration with the Registrar of this Hon'ble Court; c) Pass an appropriate order and or direction whereby permitting the Decree Holder No. 1 and Judgment Debtor No.1 to execute the sale deed in favour of successful bidder upon the receipt of balance sale consideration to the extent of their respective shares;”
5. The learned senior counsel for the Judgment Debtors points out that by a Judgment and Decree dated 14.05.2018, this Court had passed the following Decree:-
shares declared in the preliminary decree for partition, has to follow: S.No. Description of the property Chasvinder Singh & Family Share % (Defendant No.1 & 5 to 7) Esvinder Singh & Family Share % (Plaintiff No.1 to 3) 1 30-C/78, West Punjabi Bagh, New Delhi- 60 40 2 Plot No.185, Sec-4, IMT- Manesar, Haryana 60 40 3 Factory, Village Kheri, P.O. Trilokpur, Kala Amb, Tehsil- Nahan, Distt. Sirmour- 173030, H.P. 60 40 4 A-10, Wazirpur Industrial Area, New Delhi- 50 50 5 C-8, SMA Co-op. Industrial Estate, G.T. Karnal Road, Delhi-
110033. 50 50 6 1584, 1606- 50 50 1607, Gali No.31, Naiwalan, Karol Bagh, New Delhi- 7 1964-68, Bank Street, Karol Bag, New Delhi- 50 50 However, the parties, notwithstanding the final decree for partition, will be entitled to, before selling the properties to outsiders, make inter se bids and/or exchange the share in one property with the share in any other property.
5. Accordingly, a final decree for partition is passed, of the properties aforesaid, of sale thereof and of distribution of sale proceeds amongst the parties as per their shares aforesaid declared in the preliminary decree dated 8th January, 2018 of partition and with liberty to the parties to, before proceedings to sell the properties to outsiders, if so desire, make inter se bids with party bidding the highest buying the share of others in the property/ies or to exchange their respective shares in the properties with the share in any other property/ies.”
6. This Court, vide its Order dated 11.01.2021, modified the shares of the parties with respect to the property no.1 to 50:50.
7. As there was some dispute on the execution of the said Decree, the present Execution Petition was filed.
8. This Court, by its Order dated 15.03.2023, on the request of the parties, was pleased to appoint a Local Commissioner to take further steps for execution of the Decree by sale of the properties mentioned hereinabove, and for distribution of the proceeds that may be garnered therefrom in accordance with the share as mentioned in the Decree. The fee of the learned Local Commissioner so appointed was fixed as Rs.[2] lakhs, to be borne equally by both the parties. Additional expenses of the Local Commissioner were also to be borne by the parties in equal ratio.
9. As the sale of the properties could not take place, on an application filed by the Decree Holder, the learned Local Commissioner was changed by this Court, vide an Order dated 18.03.2024, appointing the present Local Commissioner. The fee of the learned Local Commissioner was enhanced to Rs.2.50 lakhs, to be shared equally by the parties.
10. Thereafter, the learned Local Commissioner has taken steps to conduct the auction of the property at serial no.4, that is, A-10, Wazirpur Industrial Area, New Delhi-110052, proceeds whereof were to be shared equally between the parties.
11. While the parties have no dispute on sharing of the fee of the learned Local Commissioner and the cost incurred for the auction, the learned Local Commissioner in her proceedings dated 10.07.2024, placing reliance on Rule-22 of Part-L of Volume I of Chapter 12 of the Delhi High Court Rules, demanded commission at the rate of 2% of the auction proceeds, and further directed that 0.5% of the auction proceeds shall have to be deposited with the Treasury of the Government.
12. As the parties were not agreeable to the same, by a subsequent proceedings dated 18.07.2024, the learned Local Commissioner directed the Auction Purchaser to deposit the auction proceeds with the Registry of this Court, instead of paying it to the parties.
13. This direction was reiterated by learned Local Commissioner in her proceedings of 01.08.2024.
14. Aggrieved of the above directions, the present application has been filed.
15. The learned Local Commissioner, who appears virtually, submits that she merely wanted to seek a clarification as to whether the above-mentioned Rule shall apply or her fee is confined only to Rs.2.50 lakh as has been stipulated in the Order dated 18.03.2024. She submits that as the interest of the revenue was also involved, therefore, this clarification was necessary to be obtained.
16. While I appreciate the concern of the learned Local Commissioner, the fee of the learned Local Commissioner had been clearly stipulated in the Order of 18.03.2024 to be Rs.2.50 lakh only. She has been appointed as a Local Commissioner and not as a Court Auctioneer. Therefore, Rule-22 of Part-L of Volume I of Chapter 12 of the Delhi High Court Rules shall have no application.
17. The learned senior counsel for the Judgment Debtors has also rightly placed reliance on the judgment dated 09.08.2011 of the Division Bench of this Court in FAO(OS) 8/2004 titled as Sh. Ram Chander (deceased) Through LRs v. Sh. Lal Chand (deceased) through LRs, wherein the Division Bench of this Court, in similar circumstances and on a similar request of the learned Local Commissioner seeking enhancement of the fee, had rejected the same and observed as under:- “The applicant seeks to rely upon the judgment of the learned Single judge of this court in Cement Corporation of India Ltd. Vs. Raj Kishan and Co. 2009 VII AD (DELHI) 149 where in para 47 while discussing the fee of the Court Auctioneer, a direction was made to pay the court auctioneer 80% of the amount of Rs.3,40,125/- calculated in terms of the aforesaid Rule. We may, however, note that, in that case, the auction carried out was in pursuance to the execution proceedings. In so far as the present case is concerned, the occasion to file execution proceedings never arose. The parties agreed that two shops should be sold by the mode of auction rather than there being any division of the shops as that was found not to be feasible. Part L of the Delhi High Court Rules deals with Sale of Property and Delivery to Purchaser. Rule 1 of the same makes it clear that the provisions of the Code of Civil Procedure, 1908 (in short the Code) on the subject of sale are contained under Order 21 Rule 64 to 102 as amended by the Punjab High Court (vide Chapter 21). Thus the High Court Rules and Procedures under this chapter are qua proceedings under Order 21 Rule 64 to 102. It is in that context, a Court Auctioneer fee has been provided in Rule 22. We may also notice that Rule 22 (ii) envisages that all incidental expenses incurred in conducting the sale shall be borne by the auctioneer. In the present case, all expenses have been borne by the parties in advance. The nature of job performed by the applicant in the present case is more akin to the function of a Local Commissioner appointed by the court under Order 26 of the Code. We may also notice pari materia provisions relating to appointment of Receiver are contained in Chapter 19 of the Delhi High Court Rules. Under Rule 9 Receiver’s remuneration has been provided. The said Rule stipulates that in case where sale value of the movable and immovable property is above Rs.[1] Lakh, the Receiver is to be paid remuneration equivalent to half percent. This provision for fee is also subject to a caveat; which is, unless otherwise ordered by the court in a particular case. The power of the court to specify a fee to be paid to a person appointed by the court to carry out a task cannot in any manner be diluted. The Division Bench had already vide its order dated 03.12.2010 fixed the fee to carry out the task albeit initially. This fee has been paid to the applicant. We see no reason to enhance the fee.”
18. In the present case, though the order appointing the learned Local Commissioner has been passed in the execution petition, the same, truly speaking, is not in accordance with the Order XXI Rule 64 to 102 of the Code of Civil Procedure, 1908. The Court is merely assisting the parties to sell their joint properties, who have otherwise agreed to sell the same, and for that purpose has appointed a Local Commissioner to carry out the mandate of the parties. The fee of the Local Commissioner has, therefore, been fixed by this Court. The expenses of the auction are not to be borne by the learned Local Commissioner, but by the parties. The provision of Rule-22 of Part-L of Volume I of Chapter 12 of the Delhi High Court Rules would, therefore, have no application in the facts of the present case.
19. The application is accordingly allowed.
20. The learned Local Commissioner confirms that she has already received the fee as stipulated in the Order dated 18.03.2024. She further states that the sale of the property at serial no.4 of the table reproduced hereinabove, has to be concluded on or before 22.08.2024. Mr. Sumit Bansal, learned counsel appearing for the Auction Purchaser, submits that he is ready with the balance sale consideration and he will take an appointment for the registration of the sale documents on or before 22.08.2024 and communicate the same to the learned Local Commissioner as also to the parties. The learned counsels for the Decree Holders and the Judgment Debtors state that the parties shall also remain present on the date and time as would be communicated by the successful auction purchaser and execute the requisite Sale Deed for the above property in favour of the Auction Purchaser.
21. As one of the properties now stand auctioned, the fee of the learned Local Commissioner for auction of the other properties shall be determined by this Court in future on an appropriate application being filed either by the parties or by the learned Local Commissioner.
22. The application is disposed of.
NAVIN CHAWLA, J AUGUST 14, 2024/rv/VS Click here to check corrigendum, if any