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HIGH COURT OF DELHI
Date of Decision: 24.08.2023
AMRIT PAL SINGH ..... Petitioner
Through: Mr. Kunal Madan and Mr. Manmay, Advocates.
Through: Dr. R.S. Sasan, Advocate for R-1.
JUDGMENT
1. This petitionfiled on 17.01.2023underArticle227 ofthe Constitution ofIndia impugnstheorderdated 08.02.2021passedby the Additional District Judge-02, West District,Tis Hazari, Delhiin ExecutionPetitionno. 219/2018 (‘Executing Court’) whereby the Executing Court has dismissed the objections filed by the Petitioner herein under Order 21 Rule 90 of the Civil Procedure Code, 1908 (‘CPC’) for setting aside the auction sale dated 20.06.2019.
2. The Petitioner herein is the Judgment Debtor No.2.
2.1. RespondentNos.[1] and 2 are Decree Holders and theoriginalplaintiffs in the civil suit.
2.2. Respondent No.3 is the Judgment Debtor No.1 and Respondent No. 4 is the Judgment Debtor No.3.
2.3. RespondentNo.5 is theAuction Purchaser appointed by theExecuting Court.
3. A civil suit bearing No.1207/11/2010 (New No. 9789/2016) was filed by Respondent Nos. 1 and 2 seeking partition of property bearing no. WZ- 230, Gali no. 4, Guru Nanak Nagar, MBS Nagar Tilak Nagar, Delhi-110018 measuring 75 sq. yards. (‘subject property’) on 09.12.2010.
3.1. The Judgment Debtors who were impleaded as defendants in the civil suit were proceeded ex-parte on 15.12.2010.
3.2. Vide judgment dated 21.07.2016 a preliminary decree was passed by Additional District Judge -05 West District, Tis Hazari Courts Delhi (‘Trial Court’) declaring that the Decree holders (i.e., the plaintiffs) are entitled to ¼th undivided share in the subject property jointly. It further held that the remaining¾th sharebelonged toJudgmentDebtors No. 1, 2 and[3] respectively in equal shares.
3.3. The final decree was passedby the Trial Courton 12.01.2017holding that thepropertyhad tobesold in auctionsaleand thesaleproceedsbedivided in four (4)equalshares between theDecreeHolders andtheJudgment Debtors respectively.
4. Theexecution petitionwas filed by RespondentNo. 1 and[2] in February 2018 andinitially, theExecutingCourtappointed anAdvocatefor conducting the auction of the subject property on 18.02.2019. However, before the auction could be held, Petitioner herein i.e., Judgment Debtor No.2 filed an applicationbeforetheTrialCourt offeringto valuethesubject propertyat Rs. 94 lakhs andpay the DecreeHolders andJudgmentDebtorsNo. 1 and 3, 1/4th shareeach. In other words, the JudgmentDebtorNo.2offered to pay Rs.23.[5] lakhs each to the Decree Holders, Judgment Debtor No.1 and Judgment Debtor No.3 respectively.
4.1. The ExecutingCourtaccepted theoffer of the JudgmentDebtorNo.2 and stayed the order of auction of the subject property. However, subsequently,it transpired thatthe JudgmentDebtor No.2wasunableto make any payment in terms of the statement made before the Court and the Judgment Debtor No.2 came forward before the Court to withdraw his offer and requestedthe ExecutingCourtto proceed with theauction at thehearing dated 05.04.2019.
4.2. In these circumstances, the Executing court directed that the auction sale of the subject property be proceeded with and fixed the date of 20.06.2019fortheauction. Thereservedpriceofthesubject propertyhasbeen fixed at Rs. 44,30,000/-.
4.3. The auction was conducted by the Court Auctioneer on 20.06.2019 after complying with all the procedures of publication, affixation and proclamation andan auctionpurchaser i.e., StableDevelopersPrivateLimited (i.e., RespondentNo.5), wasdeclaredas thehighestauctionpurchaser tooffer to pay a sum of Rs. 45 lakhs to purchase the subject property. The auction purchaser deposited25% oftheamounti.e., Rs. 11,25,000/-by way ofa bank draft with the Court Auctioneer on the same date.
5. Thereafter, the Petitioner (i.e., Judgment Debtor No.2) herein filed objections under Order 21 Rule 90 of the CPC to the said auction purchase, which weredismissed by theimpugnedorder dated08.02.2021 upholdingthe auction.
5.1. Pertinently, in thesaid objections, thePetitionerfailed to pointout any substantial injury which may have been caused to him and he did not make any avermentthathewas precludedfrom participatingin thebiddingprocess or that he intended to offer any higher bid.
6. Similarly, Judgment Debtor no.1 also filed objections under Order 21 Rule 90 of the CPC which were identical in content and the same were dismissed by the Executing Court on 31.08.2021. Thereafter, the Judgment Debtor No. 1 challenged the order dated 31.08.2021 before this Court in CM(M) 636/2021. The said petition was dismissed by this Court vide order dated 21.09.2021 wherein this Court held that the objections were barred by delay and laches.
6.1. In themeantime, theauction purchaser i.e., RespondentNo.5 deposited the balance amount of Rs. 33.75 lakhs with the Executing Court and in this manner the entire amount of Rs. 45 lakhs stood deposited with the Court (deposited in 2019).
7. The impugned order dismissing the objections filed by the Petitioner was passed on 08.02.2021 and passed an order making the sale absolute in favour of the auction purchaser by a separate order of even date.
8. The Petitionerherein has after a period oftwo (2) years on 17.01.2023 filed the presentpetition seekingto impugn theorder dated 08.02.2021. This matter was first listed before this Court on 08.02.2023. In the interregnum, the sale certificate has also been executed and registered in favour of theauction purchaser on 01.02.2023.In theopinionof this Court, the present petition is barred by delay and laches.
9. Learned counsel for the Petitioner before this Court has raised a singular contentionthata perusaloftheCourt Auctioneer’sReportshowsthat the auction was conductedat 3:30 P.M. and the highest bid received was Rs. 45 lakhs. He states that the report further records that the equivalent 25% of the bid amount was deposited by the auction purchaser with the Auctioneer immediately thereafter. He states that this fact is incongruous in as much as how could a pre-determinedamount ofthefinal bid be readily availablewith the auction purchaser. He states that it is his case that the auction was not conducted legally and it is his contention thattheauction was not conducted at 3:30 P.M. as mentioned in the report of the Court Auctioneer.
10. This Court has perused the impugned order of the Executing Court dated 08.02.2021 wherein the Executing Court had duly dealt with the conduct of the sale and returned its satisfaction with respect to the reserved price mentioned therein. The Executing Court has also recorded that the Petitioner herein during the course of oral arguments before the Executing court on 08.02.2021 offered an enhanced amount of Rs. 46 lakhs as the bid amount whereas the Court Auctioneer had recorded the highest bid received on 20.06.2019 as Rs. 45 lakhs. The Executing Court therefore recorded its satisfaction that the Petitioner herein by offering a bid of Rs. 46 lakhs had confirmed the reasonableness of the bid offered by the auction purchaser. It would be relevant to note that the bid amount of Rs. 45 lakhs was offered by the auction purchaser on 20.06.2019 and deposited with the Executing Court immediately thereafter in 2019.
11. The Petitioner herein offered before the Executing Court an increased amount of Rs. 46 lakhs in the year 2021 however almost two (2) years later only increased the bid marginally by an amount of one lakh.
12. This Court thereforefindsno error in thefindingoftheExecutingCourt that the Petitioner herein has not been prejudiced in any manner by the acceptanceofthebid amount ofRs. 45lakhs on20.06.2019,as thebid amount offered by thePetitioner twoyearslater was only higher by an amountofRs. 1 lakh, which wouldhavebroughtmerely andenhanced amountof Rs. 25,000 to the Petitioner herein.
13. Further, in view of the fact that on identical objections raised by Judgment Debtorno.1, theobjectionsweredismissed by theExecutingCourt and thedismissalhas also been upheldby theCoordinatebench of this Court vide order dated 21.09.2021, would also have bearing on the maintainability of this petition as no distinct objection or submission has been raised by the Petitioner. This Court is bound by the decision passed by the Coordinate Bench on 21.09.2021.
14. The auction sale having made absolute on 08.02.2021 and sale certificate having been registered on 01.02.2023 in favour of the auction purchaser; thefilingofthepresentpetition two(2)yearslater bythePetitioner clearly evidences that thePetitioneris merely obstructingtheexecution ofthe decree and seeking to defeat the rights of the auction purchaser.
15. Accordingly, thepresentpetition is dismissed. Pendingapplications,if any, stand disposed of.