Full Text
Date of Decision: 30th May, 2018
JATINDER OBEROI ..... Plaintiff
Through: None.
Through: Mr. Raghvendra Singh, Adv. for D-1.
JUDGMENT
1. The defendant No.1, by this application filed through Advocate other than the Advocate who had appeared for the applicant/defendant No.1 on 29th November, 2017 when the final decree for partition of sale of the immoveable property and distribution of sale proceeds as per shares declared in the preliminary decree for partition was passed, seeks the reliefs of (i) holding that the order dated 29th November, 2017 is not a final decree; (ii) re-hearing of the suit and its decision in accordance with law; and, (iii) adjudication of the Counter-Claim filed by the applicant/defendant No.1.
2. Though having gone through the application, the application was found to be totally misconceived but on the insistence of the counsel for applicant/defendant No.1, he has been given as much time as he desired for addressing arguments. 2018:DHC:3601
3. In this suit for partition of basement, ground floor, first floor and half terrace above the second floor of property No.L-10, Kalkaji, New Delhi, vide order dated 30th May, 2016 as under: “1. Counsel for all the parties to the suit agree that a preliminary decree be passed by which plaintiff will have 50% undivided share in the property bearing no.L-10, Kalkaji New Delhi and the remaining 50% undivided ownership of the suit property will fall to the share of the defendant no.1-Sh. Rajiv Oberoi. Let the Registry accordingly draw up a preliminary decree for partition.
2. It is noted that plaintiff admits that plaintiff entered into an agreement to sell dated 20.5.2011 with the defendant no.4 as also the two sale deeds dated 2.5.2011. Since however the property was undivided as between the plaintiff-owner and the defendant no.1 when these documents were executed, plaintiff hence could not have sold specific portions of the property i.e. first floor, basement and terrace floor to the defendant no.4 as has been sought to be done under the aforesaid sale deeds and the agreement to sell. Since however the property was undivided, these documents will not confer title to the defendant no.4 of specific portions and at best the effect of these contracts would be that to the extent of the share which the defendant no.4 has purchased from the plaintiff i.e from the plaintiff’s undivided 50% share in the suit property the defendant no.4 will have appropriate rights and there would be inter se division between the plaintiff and the defendant no.4 of the 50% net sale proceeds falling to the share of the plaintiff and are thus to be divided between the plaintiff and the defendant no.4. This will however not affect the 50% net sale proceeds which have been given to the defendant no.1 and who has the 50% undivided interest in the suit property.
3. Counsel for the parties state that parties and the counsel will make an endeavour in the first instance to partition the property by metes CS(OS) No.140/2012 and bounds giving the respective parties respective shares of the suit property.
4. List for further proceedings on 22nd September, 2016.” a preliminary decree for partition was passed and vide order dated 29th November, 2017 as under: “1. In this suit for partition of Basement, Ground Floor, First Floor and half terrace above the Second Floor, of property No.L-10, Kalkaji, New Delhi, a preliminary decree for partition was passed on 30th May, 2016 declaring the plaintiff Jatinder Oberoi and the defendant no.1 Rajiv Oberoi to be having 50% undivided share therein.
2. The entire Second Floor and half of the terrace above the Second Floor is informed to have been jointly sold by the plaintiff Jatinder Oberoi and the defendant no.1 Rajiv Oberoi prior to the institution of the suit in favour of persons who are not before this Court.
3. The plaintiff Jatinder Oberoi has executed Agreement to Sell dated 20th May, 2011 with respect to the entire First Floor of the property in occupation of the plaintiff Jatinder Oberoi in favour of the defendant no.4 Rajesh Gupta.
4. Similarly, the plaintiff has executed Sale Deed dated 2nd May, 2011 with respect to his 50% undivided share in the basement of the property and another Sale Deed also dated 2nd May, 2011 with respect to his 50% undivided share in 50% of the terrace above the Second Floor, in favour of the defendant no.4 Rajesh Gupta.
5. The plaintiff Jatinder Oberoi has also executed yet another Agreement to Sell in favour of the defendant no.4 Rajesh Gupta with respect to his 50% undivided share in the First Floor and 50% undivided share in the Ground Floor of the property.
6. However, on 30th May, 2016, it was agreed that the Agreement to Sell adn the Sale Deeds aforesaid will be construed as with respect to 50% undivided share of the plaintiff Jatinder Oberoi in the property aforesaid.
7. It is the contention of the counsel for the defendant no.1 Rajiv Oberoi that the Agreement to Sell with respect to 50% of the undivided share in the First Floor and 50% undivided share in the Ground Floor is in violation of the interim order in this suit. IA No.7827/2017 under Order XXXIX Rule 2A is pending in this regard.
8. The counsels for the plaintiff, Jatinder Oberoi, defendant no.1 Rajiv Oberoi and defendant no.4 Rajesh Gupta are ad idem that the Basement, Ground Floor, First Floor and 50% of terrace above the Second Floor qua which preliminary decree for partition has been passed are impartible by metes and bounds. Hence, a final decree for partition of sale of the said portion of the property and distribution of sale proceeds in terms of shares declared in the preliminary decree for partition has to be passed.
9. Accordingly, a final decree for partition of the Basement, Ground Floor, First Floor and 50% of terrace above the Second Floor of property No.L-10, Kalkaji, New Delhi, constructed over land ad-measuring 200 sq. yds., is passed, of sale thereof and of distribution of sale proceeds in terms of the shares declared in the preliminary decree for partition dated 30th May, 2016.
10. As far as the IA No.7827/2017 of the defendant no.1 Rajiv Oberoi under Order XXXIX Rule 2A CPC is concerned, I have enquired from the counsel for the defendant no.1 Rajiv Oberoi that even if it were to be held that the plaintiff has acted in violation of any interim order and for that reason the Agreement to Sell with respect to 50% undivided share in the First Floor is bad or null and void, the same will not prevent the plaintiff from acting through the defendant no.1 Rajiv Oberoi in the proceedings to take place in pursuance to this final decree for partition. The plaintiff Jatinder Oberoi through counsel states that the plaintiff Jatinder Oberoi is bound by the Agreement to Sell and has assigned his entire 50% undivided share under the preliminary decree for partition in favour of the defendant no.4 Rajesh Gupta.
11. In this view of the matter, it is felt that no purpose will be served by enquiring into the application under Order XXXIX Rule 2A of the CPC or by rendering finding thereon.
12. Thus IA No.7827/2017 is dismissed.
13. It is further directed i) that the defendant no.1 Rajiv Oberoi and the defendant no.4 Rajesh Gupta as nominee of the plaintiff Jatinder Oberoi shall be entitled to make inter se bids before seeking execution of the final decree for partition by sale through process of the Court; ii) that whichsoever party’s bid is the highest shall be entitled to execution by the other party of all documents of conveyance and to vacant peaceful physical possession of the portion of the property in the possession of that party; iii) that in the event of an Execution Petition being filed and the property being auctioned through the process of this Court, the defendant no.1 Rajiv Oberoi and the defendant no.4 Rajesh Gupta who are today in actual physical possession of different portions of the property aforesaid would, on receipt of sale consideration, be liable to deliver vacant peaceful physical possession of the entire portion in their respective possession to the purchaser and if fail to do so, shall be liable to be dispossessed therefrom as if in execution of a decree for possession; iv) that the plaintiff Jatinder Oberoi, defendant no.1 Rajiv Oberoi and defendant no.4 Rajesh Gupta shall hereafter not deal with the property or induct any other person into possession of or encumber the property, save in accordance with this order and the final decree for partition.
14. This order shall form part of the decree sheet. No costs. Decree sheet be prepared.” a final decree for partition of sale and distribution of sale proceeds was passed.
4. Needless to state the applicant/defendant No.1, on 30th May, 2016 as well as on 29th November, 2017, was represented by Advocates and on 29th November, 2017 by a briefed counsel.
5. The applicant/defendant No.1, in this application states (i) that the applicant/defendant No.1, in November, 2014, along with his amended written statement had filed a Counter-Claim challenging the Sale Deeds and Agreement to Sell between the plaintiff and defendant No.4 of portions of the said property and paid court fees of Rs.2,00,900/- on the Counter-Claim; (ii) that the amended written statement and Counter-Claim were taken on record vide order dated 12th February, 2015, when the Registry was also directed to assign a number to the Counter-Claim; (iii) that the suit was thereafter “purportedly disposed of in terms of preliminary decree dated 30th May, 2016 and a purported final decree dated 29th November, 2017” (though the preliminary decree dated 30th May, 2016 is also called „purported‟ in the application but Mr. Raghvendra Singh, Advocate today appearing for the applicant/defendant No.1 states that the applicant / defendant no.1 has no grievance against the preliminary decree dated 30th May, 2016 and the grievance is only against the final decree dated 29th November, 2017); (iv) however, the Court has till date not taken up or decided the Counter-Claim and the Counter- Claim of the applicant/defendant No.1 has not been adjudicated; (v) that as per Order VIII Rule 6-A(3) of the Code of Civil Procedure, 1908 (CPC), the Counter-Claim has to be treated as a separate suit; and, (vi) that in the absence of an adjudication of Counter-Claim, even the suit could not have been disposed of and a final decree for partition could not have been passed.
6. The counsel for the applicant/defendant No.1 has referred to Rajender Singh Vs. Harpreet Kaur 2014 SCC OnLine Del 4197 on the aspect that mistake of Court should not harm anyone, Raj & Associates Vs. Videsh Sanchar Nigam Limited ILR (2009) V Delhi 729 on the aspect that the counter-claim once admitted must be decided and Digicall Global Pvt. Ltd. Vs. BLS International Services Ltd. 2017 SCC OnLine Del 10331 on the aspect that the suit and the counter-claim should be decided together.
7. I have enquired from the counsel for the applicant/defendant No.1 as to what steps the applicant/defendant No.1 took, after 12th February, 2015, with respect to the Counter-Claim.
8. The counsel for the applicant/defendant No.1 states that it was for the Registry of this Court to number the Counter-Claim and the fault is of the Registry and the fault is not of any of the Advocates for the defendant No.1 and the applicant/defendant No.1 has no grievance against any of the Advocates earlier appearing for the applicant / defendant no.1 and that is why has not taken any action against any of the Advocates.
9. On enquiry, whether pleadings in the Counter-Claim were completed, the counsel for the applicant/defendant No.1 states that the right of the plaintiff to file written statement to the Counter-Claim was closed but subsequently the plaintiff had filed a written statement to the Counter-Claim.
10. The applicant / defendant no.1, in the Counter-Claim, sought the relief of declaration of the Sale Deeds and Agreement to Sell as illegal, null and void.
11. As a perusal of the order dated 30th May, 2016 reproduced hereinabove would show, this Court on that date was fully seized of the Agreement to Sell and the two Sale Deeds executed by the plaintiff with respect to the portions of the property. However, the need for framing issues in the suit or to deal with the Counter-Claim was not felt because as recorded in para 1 of the order dated 30th May, 2016, the counsels for all the parties agreed to passing of a preliminary decree for partition declaring the plaintiff to be having 50% undivided share in the property and the defendant No.1 to be having the remaining 50% undivided share in the property. This Court on 30th May, 2016 and against which order the counsel for the applicant/defendant No.1 has again reiterated that the applicant/defendant No.1 has no grievance, held that since the property was undivided between the plaintiff and the applicant/defendant No.1 when the Agreement to Sell and Sale Deeds were executed by the plaintiff, the plaintiff could not have sold specific portions of the property as has been done under the Sale Deeds and the Agreement to Sell and could have sold only his undivided share in the property and thus the property was to be divided between the defendant No.4 as purchaser from the plaintiff and the defendant No.1.
12. The preliminary decree for partition dated 30th May, 2016 which was on consent and the part of the order dated 30th May, 2016 qua effect / impact of the Agreement to Sell and Sale Deeds has attained finality and applicant / defendant no.1 today also has no grievance with respect thereto. The parties, on 30th May, 2016 took time to make endeavours to partition the property by metes and bounds.
13. It was as a corollary to the order dated 30th May, 2016, that upon the parties again stating that the property was incapable of division by metes and bounds and a final decree for partition of the property by sale be passed, that the final decree for partition was passed on 29th November, 2017.
14. The orders dated 30th May, 2016 and 29th November, 2017 contained enough reasons to show why the need was not felt by the applicant/defendant No.1 to have his Counter-Claim adjudicated and why the applicant/defendant No.1 did not press the Counter-Claim.
15. It is only now, perhaps on obtaining fresh legal advice and as an afterthought, that an attempt is being made by filing this application, to keep the pot of litigation boiling and not let it settle down. The applicant/defendant No.1 now is attempting to renege from the consent given and statements made on 30th May, 2016 and 29th November, 2017.
16. For this reason, none of the judgments cited by the counsel for the applicant/defendant No.1 have application to the facts of the case.
17. The counsel for the applicant/defendant No.1, inspite of repeated asking, has no explanation as to why the counsels then appearing for the applicant/defendant No.1, did not wake up or agitate the issue of the Counter-Claim. The applicant/defendant No.1, after allowing the matter to attain finality since 30th May, 2016, cannot now after two years make this application and which is clearly mala fide.
18. Though it is also urged that the applicant/defendant No.1 has paid court fees on the Counter-Claim but mere payment of court fees does not entitle a litigant to indulge in such practices.
19. The counsel for the applicant/defendant No.1, on being asked that once the application/defendant No.1 had consented to the preliminary decree for partition and to the final decree for partition of sale of the property, what is his grievance, states that the applicant/defendant No.1 is invoking Section 22 of the Hindu Succession Act, 1956 and Section 44 of the Transfer of Property Act,
1882.
20. I have asked the counsel for the applicant/defendant No.1 that how can the applicant/defendant No.1, after having himself stated on 30th May, 2016 that endeavour will be made to divide the property by metes and bounds and having further stated on 29th November, 2017 that the property cannot be divided by metes and bounds and be sold and the sale proceeds be distributed, can invoke Section 22 of Hindu Succession Act and Section 44 of Transfer of Property Act and whether not the defendant no.1, by this application, is taking a somersault.
21. No answer is forthcoming.
22. Once the property is to be sold, Section 22 of Hindu Succession Act and Section 44 of Transfer of Property Act are irrelevant, even if earlier had been invoked in the Counter-Claim.
23. I have enquired from the counsel for the applicant/defendant No.1, whether Section 22 of the Hindu Succession Act and Section 44 of the Transfer of Property Act were pleaded in the Counter-Claim.
24. The counsel for the applicant/defendant No.1 states that they were not so expressly pleaded.
25. I have perused the Counter-Claim and do not find any case under Section 22 of the Hindu Succession Act or Section 44 of the Transfer of Property Act to have been pleaded. In fact, Section 22 of the Hindu Succession Act requires an application to be filed for determining the price for purchase of the property or part of the property and which step was not taken. It is quite evident that the plea of Section 22 of the Hindu Succession Act and Section 44 of the Transfer of Property Act has been taken now for the first time in a mala fide attempt to not allow the matter to attain finality.
26. In fact, I had on 29th November, 2017 enquired the position of the second floor of the property from the parties and the parties had informed that the plaintiff and the defendant No.1 had jointly, prior to the institution of the suit, sold the said second floor and half of the terrace above the second floor and which is also contrary to the argument being now urged of induction of a stranger into the property causing inconvenience. Moreover, once the applicant/defendant No.1 agreed to the sale of the property as recorded on 29th November, 2017, the question of inconvenience does not arise.
27. The application is thus not only found to be mala fide but the applicant/defendant No.1 has also wasted time of the Court today and the application is dismissed with exemplary costs of Rs.[2] lakhs to be deducted out of the share of the applicant/defendant No.1 in the sale proceeds of the property and to be deposited with the Delhi High Court Advocates Welfare Trust.
28. A copy of this order be forwarded to plaintiff and other defendants in suit as well as to Delhi High Court Advocates Welfare Trust, to ensure compliance.
RAJIV SAHAI ENDLAW, J. MAY 30, 2018 „bs‟