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HIGH COURT OF DELHI
DHRUV GOYAL AND ORS. ..... Plaintiffs
Through: Mr. Trideep Pais, Sr. Advocate with Mr. Shivam Sharma &
Mr. Sudaksihna Prasad, Advocates.
ANAND PRAKASH GOYAL Through LRs AND ORS. ..... Defendants
Through: Mr. Kunal Tandon, Mr. Ajay Shekher, Ms. Niti Jain, Mr. Amandeep Singh & Ms. Aanchal Khanna, Advocates for D-2. Mr. Asheeh Jain, Mr. Adarsh Kumar Gupta & Mr. Keshav Mann, Advocates for
D-14 to 16. Ms. Kshriya Agarwal, Advocate for applicant-Sunita Gupta in I.A.
14901/2021 and for D(C) & D(G).
J U D G E M E NT
NEENA BANSAL KRISHNA, J. I.A. 8468/2009
JUDGMENT
1. A family litigation for partition was commenced by the widow daughter-in-law and her children against the father-in-law and the brothersin-law way back in 1982 and despite 40 years having gone by, this litigation does not seem to end. This not only is a reflection on our judicial system but is also a clarion call to the parties to make an endeavour to settle their family disputes rather than leave a legacy of litigation for posterity.
2. An application under Section 151 of Code of Civil Procedure (hereinafter referred to as “the Act”) has been filed on behalf of the defendant no.2, Sh. Virender Kumar Goyal for directions to the plaintiffs for payment of charges for occupation of property at Asaf Ali Road, New Delhi.
3. It is submitted that plaintiff has filed a suit for partition of family properties mentioned in Schedule A; rendition of accounts and recovery of money from the properties mentioned in Schedule B. One of the properties mentioned in Schedule-A is the basement and third floor of property No. 29- A/1, Asaf Ali Road, New Delhi. It originally belonged to the partnership firm R.S. Madho Ram and Sons. On 01.05.1964 the property was divided as follows:
(i) Basement and third floor:
Sh. Anand Parkash Goyal (Defendant no. 1) - 51.50% Sh. Virender Kumar Goyal (Defendant No.2) - 24.25% Sh. Suresh Kumar Goyal (Predecessor of plaintiffs) - 24.25%
4. Shri Anand Prakash Goyal, Defendant No 1 (father-in-law of plaintiff no. 3), executed his last Will dated 12.12.1987, bequeathing his 51.50% share in the property to Shri Virender Kumar Goyal, Defendant No 2 and Shri Ravinder Kumar Goyal, Defendant No 3 in the ratio of 26.50% and 25% respectively. The Will has been accepted by all the legal heirs of late Shri Anand Parkash Goyal.
5. The basement was under the tenancy of ANZ Grindlays Bank which vacated the same and handed over the keys to the plaintiff and defendant NO. 2. The premises have been lying vacant since 1998 pending adjudication of the present suit. Defendant no. 2, Shri Virender Kumar Goyal on a routine visit to the premises in April, 2008 was shocked to note the large scale renovation being carried out in the premises. On enquiry, he was informed that some BPO/Call Centre is sought to be inducted by the plaintiffs. The defendant thus moved an application vide I.A. No. 4800/2008 seeking interim orders for restraining the plaintiff from carrying out business/renovation in the premises and to direct the plaintiffs to hand over the keys of the premises to the Hon’ble Court. The plaintiffs’ counsel made a statement in the Court on 25.04.2008 that no third-party interest in any manner would be created and an Undertaking was given which still continues.
6. Thereafter, a reply was filed on behalf of the plaintiffs wherein it has surprisingly been claimed that the plaintiff has started his office and business for the last few years and has been carrying out extensive renovation in the said premises.
7. The defendant has referred to a reply of the plaintiff to I.A. NO. 4800/2008 has asserted that he is the co-owner and is in possession of the Basement of the suit property and has been spending on the maintenance as well as the upkeep of the said property. The defendants have neither spent, nor have they offered any money for the maintenance. The plaintiff has been running his office and business from the premises for a few years and has been investing in it heavily and has been paying the taxes. If not for the maintenance of the property by plaintiff no. 1, it would have been in ruins and turned worthless.
8. Defendant no. 2 has claimed that the act of the plaintiff in usurping the Basement of the suit property for running a personal office and business is clearly illegal. The keys of the premises had been handed over by the Bank jointly to the plaintiff and defendant no. 2. The premises have been kept vacant as the plaintiff and defendant nos. 2 and 3 were the co-owners. The plaintiff cannot unilaterally usurp the possession of the basement for his personal use.
9. The defendant no. 2 has asserted that as per his information, the rent in the area would be about Rs. 65 per sq. ft. and the rent for the space which is illegally and unauthorizedly occupied by the plaintiff to the exclusion of other co-owners, is Rs. 3 lakhs per month or more.
10. It is claimed that the plaintiff has been delaying the disposal of the suit thereby depriving the defendants of the valuable piece of commercial property. A prayer is therefore made that the plaintiff be directed to pay a sum of Rs. 1,50,000/- per month as the defendant no. 2 is rightfully entitled to the market rent of the property in respect of his share. Further, a prayer is made to direct the plaintiff to pay Rs. 54,00,000/- to defendant no. 2, being his share of rental of the property for the last three years.
11. The plaintiff, in its Reply has taken a preliminary objection that the present application has been filed with the sole aim of denying the plaintiffs, a widow and her children, of their right to the family properties, business and the income being derived there from. It is a counterblast which is highly belated and is an afterthought to the claim of the plaintiff to the property of Sunder Nagar. The plaintiffs are not in wrongful possession of the suit property. It is further submitted that the plaintiffs are the wife and two children of late Shri Suresh Goyal, (son of Defendant No.1) who were thrown out of their joint family home and business in 1972 after the demise of Shri Suresh Goyal. Plaintiff nos. 1 and 2 are the minor children of plaintiff no. 3 against whom false criminal cases were filed with a view to throw her out of the residential house and to deny them any right in the family business and other joint family properties.
12. The plaintiff has stated that defendant nos. 2 and 3 have denied the plaintiffs their right to the share in the joint family business, property, and home through all possible means. Without prejudice, it is asserted that defendants are enjoying 95% of the suit properties to the exclusion of the plaintiff for the last 37 years. The capital value of the various properties of the parties would be about 40-50 crores besides the income from these properties which is few crores a year (conservatively 21 lakhs per month). It is asserted that plaintiff no. 1 is in physical possession of only of 29A/1 Asaf Ali Road out of the entire commercial and residential estate; all being in the possession of defendant nos. 2 and 3 to the exclusion of the plaintiffs, and the plaintiff nos. 2 and 3 are not in possession of even a single residential or commercial property.
13. The defendant nos. 2 and 3 for the last 37 years have been wrongly enjoying crores of Rupees as rent /goodwill returns from business to the tune of 10-15 crores per year for the last 37 years while the plaintiffs have been burdened and have also paid 1/3rd of all business liabilities.
14. It is asserted that all the commercial properties, which are the suit properties have originated from an MOU dated 01.05.1964 in which late Suresh Kumar Goyal, father of the plaintiff nos. 1 and 2 was a beneficiary and two other properties were created from joint family business funds during his lifetime. None of the properties have been created by late Anand Prakash Goyal or defendant nos. 2 and 3. Despite this, defendant nos. 2 and 3 are in possession of 12 of those properties, the capital value of which is around 60-70 crores while the rental value and income of the properties is about 10 to 15 crores per year. They have been in exclusive possession of the properties to the exclusion of the plaintiffs even though plaintiffs admittedly have a share in them. It is asserted that in the interest of equity and justice, all the commercial properties as detailed in the application should be considered and dealt with in totality.
15. It is further asserted that the defendants are not entitled to any mesne profits. They are claiming 50% right in the Asaf Ali Road property through one of the various Wills of late Anand Prakash Goyal, which is disputed. Moreover, the share in the properties of late Anand Prakash Goyal (defendant no. 1) is subject to rendition of accounts and till such time the accounts are given, the properties of late Anand Prakash Goyal cannot be dealt with by any legal heirs and the properties and income from these properties are liable to settlement of the claims of the plaintiff.
16. It is stated that since 1999, the suit property is under the Order of the Court and has been rendered incapable of earning any rental income. On one hand, the defendant is claiming that the plaintiff be prevented from renting out the property and on the other hand, he is claiming rent from this property which cannot be rented because of the Orders obtained by defendant no. 3.
17. It is explained that the basement which is the subject property, was in shambles and at that point of time, none of the defendants came forward to maintain it. In 2005, there was threat to the entire building because of the water which collected in the basement and it was plaintiff no. 1 who in order to protect the property, spent lakhs of Rupees to make it capable of use. Now, suddenly defendants have surfaced claiming their alleged share.
18. The plaintiffs as early as in 2001, had moved an interim application seeking permission to rent out the basement since they were finding it difficult to maintain the property. The defendants neither offered to pay for the maintenance nor accepted the proposal of the plaintiff to rent out the property. It is claimed that this application is an abuse of the process of the Court.
19. On merits, the averments made in the application are denied and it is stated that the application is without merit and is liable to be dismissed.
20. Submissions heard.
21. The plaintiffs have filed a suit for Partition, Declaration that the plaintiffs are entitled to enjoy the usufruct of tenancies which are neither saleable nor divisible; Rendition of Accounts and Recovery of Rs. 4,85,025.90 along with interest and also Recovery of shares/properties as mentioned in the plaint. The plaintiffs had also sought that a provision be made for the maintenance of marriage of plaintiff no. 2 who is the daughter of late Suresh Kumar Goyal, the deceased son of defendant no.1, Anand Prakash Goyal and niece of defendants No.2&3 Mr. Virender Kumar Goyal and Mr. Ravinder Kumar Goyal, sons of defendant no.1, Anand Prakash Goyal.
22. It is the case of the plaintiffs that there were numerous properties owned by the HUF M/s. Anand Prakash and Sons, the details of which had been given in Schedule A. There were various properties that were owned exclusively by late Suresh Kumar Goyal (who died on 11.08.1972), the details of which are given in Schedule B. The plaintiffs who are the son, daughter and wife of late Suresh Kumar Goyal had given details of various properties that were owned by the various members of the family and had claimed Partition, Rendition of Accounts and Recovery of the same in accordance to their share.
23. During the pendency of the suit, four applications were filed namely, I.A. No. 2039/2009 seeking enhancement of the interim amount of Rs. 15,000/- that was directed to be paid by the defendants to plaintiffs; I.A NO. 9180/2009 seeking compensation in respect of the shops in possession of the defendants; I.A No. 2657/2009 and I.A No. 8468/2009 in which defendant nos. 2 and 3 had sought directions to be issued to the plaintiffs in respect of use and occupation of certain properties at Asaf Ali Road, claiming a share in the basement.
24. Defendant nos. 2 and 3 had been directed to pay Rs. 3,000/- per month commencing from 01.03.1985 vide Order dated 29.03.1985 in lieu of the plaintiffs right to reside in the Sundar Nagar house. This amount was increased to Rs. 3500/- per month vide Order dated 07.03.1988 and was thereafter enhanced to Rs. 15,000/- per month vide Order dated 27.10.1997. In the last Order, it was observed that late Shri. Suresh Kumar Goyal was admittedly a co-owner having 24.25% share in the Sunder Nagar Property. Since the plaintiffs were ousted and were not in occupation of the said property, they were deprived of their right to enjoyment of the property and were thus held to be entitled to compensation and the amount was enhanced to Rs. 15,000/- per month in recognition of their right in the property. FAO (OS) 268/1997 and CM 386/1998 was preferred against this Order which was dismissed. SLP (C) NO. 8389/1998 was preferred in the Hon’ble Supreme Court wherein the amount was reduced to Rs. 10,000/- per month.
25. Vide Order dated 19.03.2010, this amount was enhanced to Rs. 80,000/- per month by this Court. By the same order, the present application bearing I.A. 8468/2009 which is under consideration, was dismissed against which the Appeal was preferred, and it had been directed to be decided afresh.
26. The assertions made by the defendant nos. 2 and 3 are that the plaintiffs are in possession of the basement of the property at Asaf Ali Road which they are using for their office in which the defendants also have a share. The defendants have claimed that they are entitled to the corresponding mesne profits for use and occupation of the basement by the plaintiffs. It may be observed that this is a suit for partition and rendition of accounts in respect of various properties/businesses which are claimed to be jointly owned. The plaintiffs have also claimed that there are various properties, as listed in Schedule B, of which Shri Suresh Kumar Goyal was the exclusive owner of which as well, the partition is claimed.
27. There are thus multiple properties involved in respect of which partition has been sought. Some of the properties, though owned jointly, are being enjoyed exclusively by some of the parties. The rendition of accounts has also been sought. One of the parties moved an application for appointment of receiver which was rejected. This case is pending since 1982 and till date, neither any Receiver has been appointed nor is there any accounting of profits/benefits being derived by any of the parties in regard to various properties/ businesses which are the subject matter of this suit. There is no perceptible justification for this Court to hold any enquiry in the nature of rendition of accounts of one property at this stage when so has not been done in respect of other properties.
28. The case has travelled this far since 1982 and is nearing completion and is listed for evidence of the defendants. To hold any enquiry at this stage about the respective shares of the properties and the interim entitlement to mesne profits, when it has not been done till date would only lead to an unnecessary delay and further derail the trial, which looking at the age of this case, would not be in the interest of justice. Taking up this exercise would only delay the trial as each property under question would then have to be considered separately. It may also be observed that while the plaintiffs are using one property for their business to earn their livelihood, there are various other properties which are with the defendants from which they are deriving benefit of which there is no rendition of accounts. Also, the plaintiffs are using the property for their own business, and it cannot be said that third party rights have been created in the Asaf Ali property.
29. In so far as the property of Sunder Nagar is concerned, the observations that have been made are that the plaintiffs, who are the wife of the deceased Suresh Kumar Goyal and his two children, have been deprived of their right of residence in the said Property and since they have taken residence elsewhere, the amount has been given only to enable them to meet their expense of residence and is not by way of rendition of accounts or in recognition of their share in the said property.
30. The mesne profits to the extent of their share in the Asaf Ali property as sought by the defendant nos. 2 and 3 at this stage is deferred to be considered at the relevant stage along with the other suit properties.
31. The application is accordingly disposed of.
JUDGE JANUARY 10, 2023