Full Text
Date of Decision: 24th December, 2019 CS(OS) No.994/1977
BHIKU RAM JAIN & ORS. .... Plaintiffs
Through: Mr. A.S. Chandiok & Mr. Ravi Gupta, Sr. Advs. with Mr. Lalit Gupta, Mr. Siddharth Arora, Advs. for Plaintiff
No.1(c) along with plaintiff No.1(c) in person
Through: Mr. B.B. Gupta, Mr. Sanjeev Sindhwani, Sr. Advs. with Mr. Sanjay Sharma, Mr. Udai Khanna & Mr. Apoorv Gupta, Advs. for 1D.
Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Rajat Bhala, Advs. for Mr. Ashok Kumar, proposed buyer.
JUDGMENT
1. This order determines the market price of property ad-measuring 5373 sq. yds. bearing No.4 Flagstaff Road, Civil Lines, Delhi, as directed by the Supreme Court vide judgment dated 3rd December, 2012 in Civil Appeal No.8653/2012 reported as Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 131 and as clarified vide subsequent order dated 8th May, 2013 reported as Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 147.
2. It is deemed appropriate to give a brief history of the proceedings: (A) This suit was filed as far back as in the 1977, seeking specific performance of an Agreement to Sell dated 22nd December, 1970 by the deceased defendant no.1 Anis Ahmed Rushdie in 2019:DHC:7238 favour of deceased plaintiff no.1 Bhiku Ram Jain, of property ad-measuring 5373 sq. yds. bearing No.4 Flagstaff Road, Civil Lines, Delhi, for a total sale consideration of Rs.3.75 lacs, out of which the plaintiff had paid a sum of Rs.50,000/- as earnest money. Though the Agreement to Sell was by the sole defendant Anis Ahmed Rushdie in favour of plaintiff no.1 Bhiku Ram Jain but in this suit for specific performance, the two sons of plaintiff no.1 Bhiku Ram Jain viz. Narender Kumar Jain and Arvind Kumar Jain were also impleaded as plaintiffs no.2&3, pleading that the plaintiff no.1 under the Agreement to Sell, of which specific performance was sought, was entitled to have the sale deed executed in his own name or in the name of his nominee / nominees and the plaintiff no.1 had nominated the plaintiffs no.2 and 3 for execution of the sale deed. During the pendency of proceedings, the plaintiff no.1 died and his daughters and sons including plaintiffs no.2 and 3 substituted in his place. Some of the said sons and daughters of the plaintiff no.1 have also since died and their heirs have also been substituted. Similarly, during the pendency of the suit, the sole defendant Anis Ahmed Rushdie also died and was substituted by his heirs viz. Mr. Salman Rushdie, Mrs. Nabeelah S. Shah, Mrs. Nevid Hartenstein, Mrs. Samin Rushdie Momen. The last amended memo of parties on record is of 12th December, 2012. (B) The suit was allowed on 5th October, 1983 and a decree for specific performance passed, in favour of the plaintiffs and against the defendant, to execute and register the sale deed in pursuance to Agreement to Sell dated 22nd December, 1970. It was clarified, that the plaintiffs will have a right to either get the sale deed executed in favour of plaintiff no.1 or plaintiffs no.2 and 3. The decree further provided that the balance sale consideration of Rs.3.25 lacs shall be payable at the time of execution of the sale deed.
(C) The defendant filed RFA (OS) No.11/1984 in this Court and which appeal was allowed on 31st October, 2011 by the Division Bench of this Court and the judgment and decree dated 5th October, 1983 of the Single Bench of this Court was set aside and the suit dismissed. During the pendency of RFA(OS) No.11/1984, vide order dated 11th May, 2011, one Amit Jain was also impleaded as defendant no.2 and is shown as such in the last amended memo of parties dated 12th December, 2012 aforesaid.
(D) The plaintiffs preferred Special Leave Petition (SLP) to the
Supreme Court which was granted and the Supreme Court vide judgment dated 3rd December, 2012 in Civil Appeal No.8653/2012 reported as Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 131, though allowed the suit for specific performance filed by the plaintiffs, directed that the sale deed to be executed by the defendant in favour of the plaintiffs will be for market price of the property as on the date of the judgment of the Supreme Court. As no material whatsoever was available to enable the Supreme Court to make a correct assessment of the market value of the property on that date, the Single Bench of this Court was directed to undertake the said exercise “with such expedition as may be possible in the prevailing facts and circumstances”. (E) On receipt of judgment dated 3rd December, 2012 supra of the Supreme Court, the suit was taken up by this Bench on 28th January, 2013. (F) Supreme Court, vide subsequent order dated 8th May, 2013 in IA No.325/2013 filed in the aforesaid Civil Appeal No.8653/2012, clarified that the determination of market value of the property in terms of the judgment dated 3rd December, 2012 would be after affording an opportunity of being heard to all the affected parties and after taking into account all relevant facts and circumstances and that any party aggrieved by such determination will be entitled to avail such remedies that may be open in law to such party. (G) Vide order dated 29th January, 2014, the proceedings were posted before the Registrar General of this Court for holding an enquiry regarding market value of the property in terms of the Supreme Court judgment. (H) Vide order dated 12th February, 2014, the Registrar General of this Court directed the concerned Sub Divisional Magistrate (SDM) to submit valuation report of the property in terms of the order of the Supreme Court. In pursuance thereto, a report dated 11th April, 2014 to the effect that “Mr. Narender Jain, petitioner did not allow” the Tehsildar‟s team to measure the property was presented. Subsequently, on 24th April, 2014, valuation report dated 23rd April, 2014 was filed by the SDM, reporting the total value of the property as Rs.51,51,85,000/-, based on information and data document supplied by the owner and physical verification and measurement. Vide same order dated 24th April, 2014 of the Registrar General, ITCOT Consultancy and Services Ltd. was nominated as the valuer to ascertain the market value of the property.
(I) ITCOT Consultancy and Services Ltd. reported the value at
Rs.1,57,95,69,000/-. (J) Vide order dated 22nd May, 2014, opportunity to file objections to the valuation report was given. (K). Vide order dated 14th July, 2014, an opportunity was given to the parties to adduce evidence on the valuation of the property, with both parties being also entitled to cross-examine SDM, Civil Lines, Delhi and ITCOT Consultancy and Services Ltd. with respect to their reports.
(L) The valuer of ITCOT Consultancy and Services Ltd. was crossexamined by the counsels for the plaintiffs as well as by the counsel for the defendant.
(M) The plaintiffs produced one valuer who was cross-examined by the counsel for the defendant. (N) The SDM, who had submitted the report in pursuance to directions, aforesaid was also cross-examined by the counsel for the plaintiffs. The counsel for defendant chose not to crossexamine him. (O) Though vide order dated 14th July, 2014 aforesaid, both parties were directed to produce one witness only but the plaintiffs also examined Mr. Narender Kumar Jain as PW-2 and who was cross-examined by the counsel for the defendant. (P) The defendant chose not to examine any witness. (Q). The proceedings, after the recording of evidence on the aspect of valuation had been concluded, were listed before this Bench on 9th December, 2016 when the counsel for the plaintiff no.1(c) / plaintiff no.2 Narender Jain stated that the counsel appearing for the legal heirs of defendant no.1 Anis Ahmed Rushdie was appearing without any authority and the vakalatnama on the basis of which the counsel was appearing was forged. It was however enquired from the counsel for the plaintiff no.1(c) / plaintiff no.2, how did that come in the way of this Court proceeding with the determination of the valuation as directed by the Supreme Court and the counsel was asked to argue. However, the counsel for the plaintiff no.1(c) / plaintiff no.2 Narender Jain stated that he was not ready to address arguments. Finding the objection taken by the plaintiff no.1(c) / plaintiff no.2 Narender Jain to be dilatory and vexatious, while adjourning the proceedings to 8th February, 2017, attention of the counsel for the plaintiff no.1(c) / plaintiff no.2 Narender Jain was invited to Section 28 of the Specific Relief Act, 1963. (R) The plaintiff no.1(c) / plaintiff no.2 filed and got listed IA No.1707/2017 for 8th February, 2017, seeking a direction to the Registry of this Court to effect service of notice of pendency of these proceedings on the legal heirs of deceased defendant no.1 Anis Ahmed Rushdie, inspite of the fact that their counsel was appearing, contending that the counsel was appearing not at the behest of legal heirs of defendant no.1 but at the behest of purchaser (Fine Properties Pvt. Ltd. through its Director Abhishek Gupta) of the property from the said legal heirs, whose application for impleadment in these proceedings had already been dismissed. It was again enquired from the counsel for the plaintiff no.1(c) / plaintiff no.2 that for the purpose of determination of valuation as directed by the Supreme Court and since the defendants had not led any evidence on the aspect of valuation, how did the authority of the counsel make a difference especially when the plaintiff no.1(c) / plaintiff no.2 had not taken any objection to the cross-examination by the same counsel of the witnesses on the aspect of valuation of the plaintiffs and the valuer. The counsel for the plaintiff no.1(c) / plaintiff no.2 stated that it was necessary to secure the presence of the legal heirs of defendant no.1 for the purpose of execution of sale deed conveying title of the property in favour of the plaintiffs. It was however further enquired from the counsel for the plaintiff no.1(c) / plaintiff no.2, whether not, even if the said legal heirs did not appear, the sale deed could always be executed under authority of this Court. The counsel for the plaintiff no.1(c) / plaintiff no.2 was again asked to argue and on his refusing to do so, while dismissing IA No.1707/2017 and adjourning the hearing to 13th April, 2017, it was again observed that such conduct of the plaintiffs would be taken into consideration invoking the principles of Section 28 of the Specific Relief Act; reference in this regard was made to Hungerford Investment Trust Ltd. Vs. Haridas Mundhra
(S) The plaintiff no.1(c) / plaintiff no.2 preferred FAO(OS) No.75/2017, against the order dated 8th February, 2017, notice whereof was issued and hearing before this Bench deferred. Ultimately, the said appeal was withdrawn on 17th August,
2017. However, the Division Bench in its order of the said date has recorded that (i) during the hearings in the appeal, the Division Bench had called upon the plaintiff no.1(c) / plaintiff no.2 to address the Division Bench on the market value of the property but this was not done; (ii) the Division Bench had also put it to the plaintiff no.1(c) / plaintiff no.2 that he ought to deposit at least the tentative amount which would be payable in terms of judgment of the Supreme Court, whereupon the plaintiff no.1(c) / plaintiff no.2 submitted that as on 4th November, 2010, the valuation was to the tune of Rs.12.60 crores; (iii) it was however the contention of the counsel for the legal heirs of defendant no.1 Anis Ahmed Rushdie that in terms of circle rate of the properties as on 3rd December, 2012, the property was valued at Rs.51 crores; and, (iv) that to test the bona fides of the plaintiff no.1(c) / plaintiff no.2, the Division Bench on 23rd May, 2017, had directed the plaintiff no.1(c) / plaintiff no.2 to deposit a sum of Rs.15 crores in this Court and time of eight weeks as sought by the plaintiff no.1(c) / plaintiff no.2 was granted; however, the said order remained uncomplied. The Division Bench in the circumstances, in the order dated 17th August, 2017 observed that this Bench may consider the implication of the non-compliance by the plaintiff no.1(c) / plaintiff no.2 of the direction for deposit of Rs.15 crores. (T) Hearing before this Bench was commenced on 13th February, 2018, when the counsel for the plaintiff no.1(c) / plaintiff no.2 argued, i) that the defendants themselves had entered into an Agreement to Sell dated 4th November, 2010 for sale of the entire property for a price of Rs.4.[5] crores; going by the said price, the market price as on 3rd December, 2012 should be Rs.11.82 crores; ii) that ITCOT Consultancy Services Pvt. Ltd. appointed by the Registrar General of this Court has reported the valuation as on 3rd December, 2012 to be Rs.161 crores; iii) that as per the Circle Rates, the value of the property as on 3rd December, 2012 is about Rs.51 crores; iv) that the defendants have not led any evidence qua the determination of market value on 3rd December, 2012; v) that thus the market value be determined at Rs.11.82 crores less the amounts for the other peculiar factors. On specific enquiry, the counsel for the plaintiff no.1(c)/plaintiff No.2 stated that considering the peculiar factors, the valuation will come to about Rs.[5] to 6 crores. (U) Per contra, the counsel for defendant no.1D Mrs. Samin Rushdie Momen, who alone appeared on 13th February, 2018, argued i) that the Agreement to Sell dated 4th November, 2010 was in the circumstances prevalent at that time and which depressed the price; and, ii) that ITCOT Consultancy Services Pvt. Ltd. has reported the correct price and have further reported that the depressed price would be about Rs.140 crores.
(V) On 13th February, 2018 it was enquired from the counsel for the defendant no.1D, whether the defendant no.1D had any buyer for the property for Rs.160 crores. The counsel for the defendant no.1D stated that there was a buyer for Rs.145 crores. Faced therewith, the counsel for the plaintiff no.1(c) / plaintiff no.2, on 13th February, 2018, stated that if the buyer for Rs.145 crores was found to be a serious buyer, he will take instructions from plaintiff no.1(c) / plaintiff no.2, whether the plaintiff no.1(c) / plaintiff no.2 was willing to pay the price of Rs.145 crores for the property. The counsel for the plaintiff no.1(c) / plaintiff no.2 however though contended that this was not the procedure as per the mandate of the Supreme Court but was unable to show why. (W) Observing in the order dated 13th February, 2018, that the best procedure for determining the market value of the property was to determine whether any actual buyer was willing to purchase the property for Rs.145 crores and while adjourning the hearing to 8th March, 2018, the counsel for the defendant no.1D was directed to bring the buyer for Rs.145 crores to this Court and to also enquire from the said buyer whether the said buyer was willing to deposit Rs.25 lacs in this Court as an element of his seriousness.
(X) On 8th March, 2018, the counsel for the defendant no.1D stated that the buyer who had earlier offered Rs.145 crores for the property, in view of the falling price of real estate, was then willing to offer only Rs.130 crores for the property on as is where is basis / condition. It was also informed that the buyer, Mr. Ashok Kumar, son of Sh. Chiranji Lal, resident of 19, Farquhar Road, Birmingham was present in the Court and had brought with him a demand draft of Rs.25 lacs in favour of the no.1(c) / plaintiff no.2, after seeking instructions from his client stated that this Court may proceed to hear arguments as the plaintiff no.1(c) / plaintiff no.2 was not agreeable to offering price of Rs.130 crores for the property. However, upon being asked to argue, the counsel for the plaintiff no.1(c) / plaintiff no.2 again sought adjournment. While so adjourning the hearing to 4th April, 2018, the presence of the proposed buyer was dispensed with. (Y) On 4th April, 2018, the hearing was adjourned to 6th April, 2018, when the senior counsel for the plaintiff no.1(c) / plaintiff no.2 was heard and a narrative thereof dictated and a draft thereof ordered to be provided to the counsels. Thereafter, on 11th April, 2018, the remaining arguments were heard and aidememoire of what transpired on that date in the Court was also dictated and the draft thereof also ordered to be supplied to the counsels, clarifying that the drafts dated 6th April, 2018 and 11th April, 2018 were tentative, to serve only as aide-memoire with no finality to be attached thereto. (Z) During the hearings culminating in this order, the counsel only for plaintiff no.1(c) who is also plaintiff no.2 i.e. Narender Jain appeared on behalf of the plaintiffs. After this order was reserved, an application was filed on behalf of plaintiff no.1(e) Virender Jain, son of plaintiff no.1 Bhiku Ram Jain, not wanting to be heard but only seeking all documents and which application was allowed on 30th August, 2018.
3. I now record hereinbelow, with the assistance of the drafts dictated on 6th April, 2018 and 11th April, 2018, the respective arguments urged.
4. The senior counsel for the plaintiff no.1(c) / plaintiff no.2 argued, i) that this suit was filed for specific performance of an Agreement of Sale dated 22nd December, 1970 of sale of property No.4 Flagstaff Road, Civil Lines, Delhi, admeasuring 4492.47 sq. mtrs. for a sale consideration of Rs.3.75 lacs out of which Rs.50,000/- was paid by the plaintiff as advance; ii) that the plaintiff, since prior to execution of Agreement to Sell, was in possession of half of the property as tenant of the defendant; the other half of the property was also let out to somebody else and in possession of that tenant; the plaintiff as tenant and the other tenant are entitled to remain in possession of the property as the tenancies are protected by the Delhi Rent Control Act, 1958, with the annual rent paid by both the tenants being Rs.6,708/- per annum; iii) that the suit was decreed for specific performance by this Bench but in appeal preferred by the defendant thereagainst, the decree was set aside; iv) that upon Supreme Court being approached, Supreme Court by the judgments aforesaid held inter alia as under: “28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. may be usefully recapitulated.
29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.
30. Having given our anxious consideration to all relevant aspects of the case we are of the view that the ends of justice would require this court to intervene and set aside the findings and conclusions recorded by the High Court of Delhi in R.F.A.No.11/1984 and to decree the suit of the plaintiffs for specific performance of the agreement dated 22.12.1970. We are of the further view that the sale deed that will now have to be executed by the defendants in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order. As no material, whatsoever is available to enable us to make a correct assessment of the market value of the suit property as on date we request the learned trial judge of the High Court of Delhi to undertake the said exercise with such expedition as may be possible in the prevailing facts and circumstances.
31. All the appeals shall accordingly stand allowed in terms of our above conclusions and directions.”; v) that in pursuance to the aforesaid order, only the plaintiff has led evidence and the defendant has not led any evidence; vi) that the defendant, during the pendency of the proceedings aforesaid, on 4th November, 2010 executed a sale deed with another person for sale of the entire property and also executed a General Power of Attorney (GPA) in favour of the said purchaser, for a total sale consideration of Rs.4.50 crores; vii) that the defendant, during the pendency of the suit also, executed a Sale Deed dated 15th November, 2011 with respect to 836.12 sq. mtrs. equal to 1000 sq. yds. out of the total property agreed to be sold to the plaintiff, for a sale consideration of Rs.2.20 crores; viii) that the defendant also executed another Sale Deed dated 21st November, 2011 of another portion of 418 sq. mtrs. equal to 500 sq. yds. for a sale consideration of Rs.1.10 crores; ix) that as per consideration of said sales, the sale consideration of the entire property would be Rs.11.82 crores and there should be no difference between the price in November, 2011 and the price in December, 2012 directed to be determined by the Supreme Court; x) attention is drawn to the site plan at page 101 of the Convenience Volume on record and it is shown that the size of the plot is irregular and the same qualifies as shermukhi which is not considered auspicious for residence; xi) that the locality in which the property is situated is residential under the Master Plan / Zonal Plan; xii) that besides the aforesaid area of 4492.47 sq. mtrs., the property comprises of some other area also which was not subject matter of the Agreement to Sell in favour of the plaintiff and for the purposes of re-development of the property also, the Floor Area Ratio (FAR) and ground coverage available on the entire property i.e. 4492.47 sq. yds. agreed to be sold to the plaintiff plus the other portions will have to be taken into consideration and re-development of the property may not also be possible without the cooperation of the persons who are claiming title to the other portions of the property described in the site plan as 4A, 4B and 4C; xiii) that the plaintiff is the owner of property No.4B as shown in the site plan aforesaid; xiv) that since the Supreme Court in the order aforesaid has referred to the entitlement of the defendant over and above the sale consideration as additional compensation, the said compensation cannot be determined on the basis of third party bids as has been recorded in the order dated 13th February, 2018 in these proceedings; xv) that even as per the prescribed circle rate, on the date of the judgment aforesaid of the Supreme Court, the market value of the property was Rs.51 crores and from which, the deductions on account of the property being tenanted within the meaning of the Delhi Rent Control Act and the development of the property being not possible owing to the factors aforesaid, have to be deducted; xvi) that even under the Land Acquisition Laws, apportionment of the compensation at market rate is done between the owner and the tenant in possession and the rebate on the valuation as per circle rate for the property being tenanted has to be considered while determining the valuation; xvii) that the conduct of the defendants, of executing Agreements to Sell and Sale Deeds of the property / portions thereof, during the pendency of the proceedings, has also to be considered; and, xviii) that the plaintiff has, besides the amount advanced of Rs.50,000/-, also paid Rs.80,000/- to the income tax authorities to stall the property from being auctioned by the income tax authorities and the plaintiff has thus been safeguarding the property and inclusive of the said sum of Rs.80,000/-, the plaintiff has already paid 1/3rd of the agreed consideration of Rs.3.75 lacs; that the proof of such payment to income tax authorities are at pages 253 to 273 of the Convenience Volume.
5. It was enquired from the senior counsel for the plaintiff no.1(c) / plaintiff no.2 on 6th April, 2018, whether not for the reason of the plaintiff no.1(c) / plaintiff no.2 having himself undertaken before the Supreme Court to pay Rs.[6] crores, it was not open to the plaintiff no.1(c) / plaintiff no.2 to, in this proceeding, contend the value of the property to be less than that. The senior counsel for the defendant no.1D, on 6th April, 2018 stated that the plaintiff no.1(c) / plaintiff no.2, in the enquiry as to valuation, has filed affidavit of valuation of the property at Rs.62 lacs to Rs.80 lacs.
6. On 6th April, 2018, it was also enquired from the senior counsel for the plaintiff no.1(c) / plaintiff no.2, whether the plaintiff no.1(c) / plaintiff no.2 was desirous of testing the bona fides of the proposed buyer by having the bank draft encashed.
7. It was also enquired from the senior counsel for the defendant no.1D on 6th April, 2018, whether the defendant no.1D was willing to execute the sale deed in favour of the proposed buyer for consideration of Rs.130 crores with Rs.25 lacs being deposited in the Court and the balance sale consideration being deposited within three months therefrom with the amount of Rs.25 lacs being forfeited upon failure to deposit the balance sale consideration.
8. The senior counsel for the defendant no.1D replied in the affirmative and further informed that the defendant no.1D had become the sole owner of the property.
9. Faced therewith, the senior counsel for the plaintiff no.1(c) / plaintiff no.2 stated that the plaintiff no.1(c) / plaintiff no.2 was willing to have the sale deed executed for a consideration of Rs.11.82 crores.
10. During the hearing on 11th April, 2018, it was enquired from the senior counsel for the defendant no.1D, what was there to ensure that in the event of the Court determining the value at Rs.130 crores, the proposed buyer brought by the defendant no.1D will purchase the property for the said amount. The senior counsel for the defendant no.1D, under instructions stated that this Court, after determining the value at Rs.130 crores, may direct that if the purchaser does not purchase the property for the said price, the price would stand determined at Rs.11.82 crores as proposed by the plaintiff no.1(c) / plaintiff no.2 and then, subject to the plaintiff no.1(c) / plaintiff no.2 paying the said price, the defendant no.1D will execute the sale deed in terms of the decree for a sale consideration of Rs.11.82 crores.
11. The senior counsel for the plaintiff no.1(c) / plaintiff no.2 in rejoinder argued that the purport of the order dated 3rd December, 2012 of the Supreme Court was to secure for the defendant additional compensation; however the legal heirs of the defendant had sold their right, title and interest in the property in favour of M/s Fine Properties (P) Ltd. and it would be the said M/s Fine Properties (P) Ltd. which would be receiving the consideration of Rs.130 crores if the same were to be determined to be the market price and which would be contrary to the purport and intent of the order of the Supreme Court. Attention was invited to the order dated 8th May, 2013 of the Supreme Court in this regard and it was argued that the parameters for determining the price has to be the same as paid by M/s Fine Properties (P) Ltd. to the original defendant.
12. The senior counsel for the defendant no.1D, on 11th April, 2018 argued i) that the total area of the property is 5373 sq.yds. equal to 4492 sq. mtrs.; ii) that the constructed area is only 5200 sq.ft.; iii) 55% of the property was in occupation of the plaintiff and the remaining with one Nank Chand; that the plaintiffs in the present suit stated that they were in possession in part performance of the Agreement to Sell and would vacate the portion in their occupation if defeated in this suit; and, iv) on specific enquiry whether the plaintiffs were in possession since prior to the Agreement to Sell and if so in what capacity, the senior counsel for the defendant no.1D stated that according to the defendant, the plaintiffs were not in possession prior to the Agreement to Sell.
13. Per contra, senior counsel for the plaintiff no.1(c) argued that it was recorded in the Agreement to Sell itself that the plaintiffs were already in possession of the property as a tenant and in the judgment of the learned Single Judge also, it was recorded that the plaintiffs were in possession as tenant. It was further stated that the plaintiff no.1(c) has filed IA No.2106/2018 for bringing on record the application filed by M/s Fine Properties Pvt. Ltd. for substitution in place of the original defendants.
14. The counsel for the proposed buyer Mr. Ashok Kumar, son of Sh. Chiranji Lal, resident of 19, Farquhar Road, Birmingham on 11th April, 2018 was also asked to obtain instructions, what price was the proposed buyer willing to pay if also put in actual physical possession of portion of the property in occupation of the plaintiffs.
15. On 7th May, 2018, the senior counsel for the defendant no.1D handed over written note of arguments and liberty was granted to the counsel for the plaintiff no.1(c) / plaintiff no.2 to file his synopsis of submissions.
16. The counsel for the proposed buyer, on 7th May, 2018 informed that the proposed buyer was only interested in buying the property “on as is where is basis” and did not want to have any other transaction.
17. The defendant no.1D though on 11th April, 2018 had stated that upon the proposed buyer not purchasing the property for Rs.130 crores, the defendant no.1D would be willing to execute the Sale Deed in favour of the plaintiffs for Rs.11.82 crores, filed IA No.6188/2018 pleading that if the proposed buyer did not purchase for Rs.130 crores, this Court should determine the market value and the defendant no.1D should not be made to sell for the consideration offered by the plaintiffs of Rs.11.82 crores. Though it was pleaded in the application that the defendant no.1D, on 11th April, 2018 had not committed to Rs.11.82 crores and realized the same after going through the copy of the aide-memoire aforesaid but I may record that the aide-memoire was dictated in open court and what had transpired in the Court was recorded therein. Be that as it may, on 7th May, 2018 it was ordered that IA No.6188/2018 will also be disposed of along with this order on valuation.
18. The plaintiff no.1(c) / plaintiff no.2 also got listed on 7th May, 2018, IA No.2106/2018 seeking to place on record (i) certified copy of DR No.99185/2016 filed by the plaintiffs no.2&3 under Section 27 of the Delhi Rent Control Act, 1958 for deposit of rent in respect of part of the property in the occupation as tenant to show that the occupation of the plaintiffs of the property was not as agreement purchasers but as tenants; and, (ii) an application filed by M/s Fine Properties (P) Ltd. for impleadment in the aforesaid proceedings for deposit of rent contending to be owner of the subject property on the strength of registered GPA dated 4th November, 2010 executed by the attorney of defendant no.1D and further claiming to have paid the purchase consideration of Rs.4.50 crores on 4th November, 2010 for the property. Vide order dated 7th May, 2018, the said application was also ordered to be decided along with this order.
19. The plaintiff no.1(e), in IA No.11600/2018 which was allowed on 30th August, 2018 as aforesaid, sought copy of the aide-memoire mentioned in order dated 11th April, 2018 and which was on 30th August, 2018 ordered to be supplied by counsel for the plaintiff no.1(c) / plaintiff no.2 subject to the condition that the plaintiff no.1(e) shall not take any step to derail the pronouncement of this order and shall not seek an opportunity to argue.
20. The counsel for the plaintiff no.1(c) / plaintiff no.2 in his written arguments has contended, that (i) the Supreme Court in paras 27 and 28 of the judgment dated 3rd December, 2012 has held that the plaintiffs are in no way responsible for the delay and till then had live interest to have the agreement enforced and that owing to the reasons given, had only granted “additional compensation” to the defendant by grant of a price higher than what had been stipulated in the agreement and which price may even be the market price as on the date of the order of the final court; (ii) once the decree for specific performance in favour of the plaintiffs has been upheld by the Supreme Court, the plaintiffs cannot be required to outbid the third party;
(iii) the intention of the order of the Supreme Court was to compensate the defendant and not to give any undue favour to the subsequent purchaser from the defendant; (iv) M/s Fine Properties (P) Ltd. did not disclose the GPA for a consideration of Rs.4.[5] crores with respect to the property executed by the defendant in its favour till the judgment dated 3rd December, 2012 of the Supreme Court; however in subsequent order dated 8th May, 2013, Supreme Court, observed that it was not inclined to reopen concluded issues and left the option of seeking remedies as may be open in law; (v) the price, as directed by the Supreme Court, has to be determined considering the permissible construction, the shape and state of the property and the fact that the defendant has already parted with their entire ownership of the property for a sum of Rs.4.[5] crores on 4th November, 2010; (vi) the plaintiffs had paid advance of Rs.50,000/- and also paid Rs.80,000/- between 6th August, 1984 and 9th September, 1985 for discharge of liability of the property; the plaintiffs have thus already paid 35% of the agreed price of the property. Reliance is placed on Ratan Singh Vs. Union of India 1993 (51) DLT 7, Commissioner of Income Tax Vs. Duncans Agro Industries Ltd. (1991) 44 DLT 5, Appropriate Authority Vs. Shashi Sehgal 2001 (5) SCC 627 and Appropriate Authority Vs. R.C. Chawla 2001 (4) SCC 710, to contend that the aforesaid factors have to be taken into account for determination of market price and on Nelson Fernandes Vs. Special Land Acquisition Officer, Goa (2007) 9 SCC 447, Digamber Vs. State of Maharashtra (2013) 14 SCC 406, Perriyar Vs. State of Kerala (1991) 4 SCC 195, Viluben Jhalejar Vs. State of Gujarat (2005) 4 SCC 789, V. Subramanya Rao Vs. Land Acquisition Zone Officer (2004) 10 SCC 640 and Mohammad Raofuddin Vs. Land Acquisition Officer (2009) 14 SCC 367 to contend that sale instances of properties in terms of proximity in time and location is most vital factor to ascertain the market price; and, (vii) two sale deeds dated 15th November, 2012 and 21st November, 2012 have been executed in favour of third parties of 1000 sq. yds. and 500 sq. yds. respectively of vacant portions of the property besides the portions subject matter of this suit and considering the same, the market price as on 3rd December, 2012 averages to be Rs.11.82 crores and the market price of Rs.[5] to Rs.[6] crores proposed by the plaintiffs on 6th April, 2018 was after taking into account discounts on account of peculiar characteristics of the property.
21. The counsel for the defendant no.1D, in his written note has contended that (i) the Supreme Court directed the current value to be determined in exercise of discretion under Section 20 of the Specific Relief Act and to balance the equities between the parties; (ii) the consideration stated in the Agreement to Sell dated 22nd December, 1970 of Rs.3.75 lacs was admitted to not represent the market value of the property as on 3rd December, 2012;
(iii) reliance is placed on HOTZ Industries Pvt. Ltd. Vs. Dr. Ravi Singh
2018 SCC OnLine Del 7618 and on Shikha Mishra Vs. S. Krishnamurthy (2014) 210 DLT 178 on the aspects of purport of Section 20 of the Specific Relief Act and on determination of market value in cases of specific performance, to contend that in cases of specific performance, valuation is not to be as per the guidelines laid down in land acquisition proceedings or enshrined in the Rent Act; (iv) the enquiry which this Court is undertaking is different from that envisaged under Order XX Rule 18 of the CPC; (v) though SDM in response to the directions issued by the Registrar General of this Court valued the property as on 3rd December, 2012 at about Rs.51.52 crores but Government of National Capital Territory of Delhi (GNCTD) vide notification dated 4th December, 2012 revised the circle rates to be effective with effect from 5th December, 2012 and as per which, the value of the property is about Rs.75 crores; (vi) ITCOT Consultancy and Services Ltd. in its report as directed by the Registrar General of this Court, has valued the property at Rs.161.19 crores with distress value of about Rs.145.07 crores;
(vii) the two witnesses of the plaintiffs deposed the valuation of the property to be Rs.1.05 crores or Rs.7.72 crores; (viii) even as per the sale deed dated 3rd December, 2012 Ex.PW2/4 proved by the plaintiff, the market value of the property would be about Rs.98.14 crores; (ix) the plaintiffs, during the pendency of FAO(OS) No.75/2017 aforesaid had produced sale deed of 1/9th share of property bearing No.11,Rajpur Road, Civil Lines, Delhi, admeasuring 4849.50 sq. mtrs. and as per which also, the total value of the said property was Rs.135 crores and which property is also subject matter of multifarious litigation and in possession of third parties; (x) as per Ex.PW2/X[2] also, the value of the property was Rs.150 crores; (xi) the e-mail sent by one of the plaintiffs to a property dealer proved as Ex.PW2/X[1] and PW2/X[3], the plaintiffs were offering the property for Rs.230 crores; and,
(xii) if the plaintiffs do not pay the market value as determined by this Court within the time fixed by this Court, consequences under Section 28 of the Specific Relief Act be ordered to follow.
22. The counsel for the plaintiff No.1(c) / plaintiff no.2 in his written arguments in response to the contentions aforesaid of the counsel for the defendant no.1D has contended that, (i) Ex.PW2/4 and Ex.PW2/5 are of no relevance, being of a very small area and with respect to property having clean title; (ii) the offer during the pendency of FAO(OS) No.575/2017 was only for demonstrating the bona fides of the plaintiffs; (iii) the report of ITCOT Consultancy and Services Ltd. is based on telephonic conversations and websites / portals with respect to immovable property; (iv) circle rate is not determinative of market value; reliance is placed on Amit Gupta Vs. Govt. of NCT of Delhi 2016 (229) DLT 385 (DB); (v) the valuation has to be fixed considering that the suit property is 100% tenanted / rented; and,
(vi) while the plaintiff has led cogent evidence on valuation, the defendant has not led any evidence whatsoever.
23. I have considered the rival contentions.
24. Though in the course of the aforesaid exercise reference was made to Section 28 of the Specific Relief Act but I am in the exercise undertaken not entering into the said aspect, leaving it open to the defendant to, at appropriate stage, urge the same. I say so because the purport of this exercise is in terms of the direction of the Supreme Court.
25. I must also record that the aforesaid state of affairs left the undersigned perplexed as to the market price of the property as on 3rd December, 2012. The following market prices have come on record: (a) The price of Rs.51,51,85,000/- as determined by the SDM in Valuation Report dated 23rd April, 2014; (b) The price of Rs.1,57,95,69,000/- as determined by ITCOT Consultancy and Services Ltd. in their report, also of April, 2014;
(c) The price of Rs.12.60 crores as on 4th November, 2010 as claimed by the plaintiffs before the Division Bench in FAO(OS) No.75/2017;
(d) The price of Rs.15 crores as put by the Division Bench vide order dated 23rd May, 2017 in FAO(OS) No.75/2017; (e) The price of Rs.4.50 crores for which the defendant agreed to sell the property on 4th November, 2010 and which, according to the plaintiffs extrapolated to the price, as on 3rd of Rs.11.82 crores; (f) The price of Rs.145 crores as on 13th February, 2018 as claimed by the defendant; (g) The price of Rs.130 crores for which the buyer brought by the defendant on 8th March, 2018 was ready to buy the property; (h) The price of Rs.2.20 crores for 836.12 sq. mtrs. equal to 1000 sq. yds. of the property in the sale deed dated 15th November, 2011;
(i) The price of Rs.1.10 crores for 418 sq. mtrs. equal to 500 sq.
yds. of property as per the sale deed dated 21st November, 2011; (j) The price of Rs.[6] crores as offered by the plaintiffs in the proceedings before the Supreme Court; (k) The price of Rs.62 lacs to Rs.80 lacs as claimed by the plaintiffs in the affidavit by way of examination-in-chief in the present enquiry;
(l) The price of Rs.11.82 crores as offered by the plaintiffs during the hearing on 6th April, 2018;
(m) The price of Rs.4.50 crores as on 4th November, 2010 paid by
M/s Fine Properties Pvt. Ltd. for the property; (n) The price of Rs.75 crores as per the circle rates revised with effect from 4th December, 2012; (o) The price of Rs.98.14 crores for the entire property, by extrapolating the price for sales of 836.12 sq. mtrs. equal to 1000 sq. yds. and 418 sq. mtrs. equal to 500 sq. yds. of the property as on 15th November, 2011 and 21st November, 2011 respectively; (p) The price of Rs.135 crores as per the sale deed of another property produced by the plaintiffs before the Division Bench in FAO(OS) No.75/2017; and, (q) The price of Rs.235 crores asked for by the plaintiffs in their email to a property broker.
26. The aforesaid would show that while the stand of the plaintiffs qua the price of the property has been varying from Rs.51-80 lacs to Rs.11.82 crores, the stand of the defendant qua the price has been varying from Rs.130 crores to Rs.135 crores.
27. As far as the price as per the circle rates is concerned, it has been held by the Division Bench of this Court in Amit Gupta supra that the same is not always reflective of the market price and the market price can be higher or lower. In the present case, the price as per the circle rates was Rs.51 crores as on 3rd December, 2012 but vide revision of circle rates the very next day i.e. 4th December, 2012, was enhanced to Rs.75 crores.
28. The claim of the plaintiffs is of the price being lower than the market price owing to several factors. However the plaintiffs himself has been offering different prices of the property at different times as is obvious from the above narrative. Also, inspite of said factors, the buyer brought by defendant was willing to buy the property on as is where is basis for Rs.130 crores.
29. Price of immovable property is incapable of precise determination in Court inasmuch as price, especially of residential properties is not uniform and there may be wide variance in price of adjoining properties. The senior counsels of the plaintiffs are right in listing the said variables as noted hereinabove. It is virtually impossible for the price to be determined by the Court. The contemporaneous sale deeds of adjoining properties are also never a precise indicator of the price of another property. The only way to determine the price is by public auction. However the price which is to be determined of the subject property is of 3rd December, 2012 and not of today. The Courts have however taken judicial notice of market trend of prices of immovable properties and it can be said with reasonable certainty that since December, 2012, the prices have been on the decline.
30. The most authoritative indicator of price of the subject property, was from the offer brought by the defendant, of Rs.130 crores, for the property on as is where is basis. Taking judicial notice of the market trend of price since the year 2012 it can safely be assumed that the price as on 3rd December, 2012 would have been higher.
31. What has however bothered me and which has resulted in delay in pronouncement of this order, is that by merely bringing an offer for Rs.130 crores, the defendant should not derive an unfair advantage. After all, the offer brought by the defendant for purchase of the property on as is where is basis for Rs.130 crores was but an offer, with no certainty of same fructifying. It was felt that the defendant, by bringing an inflated offer, should not be permitted to wriggle out of the decree for specific performance if the plaintiffs were unable to accept the same.
32. Having given my thought to the matter, I am of the opinion that while determining the price at Rs.130 crores and on plaintiffs failing to pay the said price, a condition should be imposed on the defendant to, within stipulated time sell the property at minimum Rs.130 crores. If the defendant is then unable to so sell the property, the same will clearly establish that the price of the property is not Rs.130 crores. Then, the best indicator of market price would be the circle rate. Though circle rate as on 3rd was reported to be about Rs.51 crores but since the circle rate, the very next day was revised to Rs.75 crores, it is felt that the said circle rate correctly represents the market price as on 3rd December, 2012, rather than the circle rate of Rs.51 crores fixed long back.
33. I thus determine the market price of the property as on 3rd December, 2012 at Rs.130 crores, with the following further directions:
(i) The plaintiffs to, within 60 days of this determination indicate their intention to purchase the property at the said price;
(ii) On the plaintiffs consenting to purchase the property at the said price, the plaintiffs to within 90 days of today deposit in this Court 10% of the purchase consideration equivalent to Rs.13 crores, by way of earnest money;
(iii) On failure to deposit the earnest money, the consequences as hereinbelow provided shall follow;
(iv) If the earnest money is so deposited, the balance sale consideration be paid within 180 days herefrom;
(v) On the plaintiffs not consenting to purchase the property at the price aforesaid or on the plaintiffs so consenting but not depositing the earnest money or on the plaintiffs depositing the earnest money and not depositing the balance sale consideration, the defendant to within 90 days therefrom enter into an Agreement for Sale of the property at minimum Rs.130 crores on the same condition as to deposit of earnest money and payment of balance sale consideration as applicable aforesaid to the plaintiffs;
(vi) On the defendant being unable to sell the property to another for minimum Rs.130 crores, the plaintiffs to within 60 days thereof become entitled to purchase the property for Rs.75 crores; and,
(vii) On the plaintiffs failing to purchase the property for Rs.75
34. The exercise undertaken pursuant to directions of the Supreme Court is closed with the aforesaid.
RAJIV SAHAI ENDLAW, J. DECEMBER 24, 2019 „gsr‟