Delhi High Court
Ram Charan Agrawal vs Ram Gopal & Ors on 30 August, 2010
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on : 30.08.2010
+ EX.P. 227/2010
RAM CHARAN AGRAWAL ..... Decree Holder
Through : Sh. L.K. Singh, Advocate.
versus
RAM GOPAL & ORS ..... Judgement Debtors
Through : Sh. Inder Bir Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT, J
E.A. Nos. 371/2010 (U/S 151) 465/2010 (U/O 39 R 4) & 466/2010 (U/O 21 R 58)
1. In the present execution proceeding, the Decree Holder seeks a direction to the Judgment
Debtors to execute and register Conveyance Deed in respect of property no. 1375, Katra
Lehswan, Chandni Chowk, Delhi (hereafter called "the suit property") in his favor, failing
which, to appoint a Court Commissioner to comply with the formalities to that end.
2. The facts necessary to decide the execution proceeding - as well as the objections filed
by the Judgment Debtors, being E.A. No. 466/2010 (Under Order 21 Rule 58 CPC) are that the
Decree Holder and the Judgment Debtors were inter alia parties to a formal partition suit. During
the course of proceedings, the petitioner and Judgment Debtor No. 1 (hereafter referred to as
"Sh. Ram Charan and Sh. Ram Gopal" respectively), entered into an understanding whereby it
was agreed that the process of inter se bidding would be carried-out in respect of the properties
Ex. P. 227/2010 Page 1
that were subject matter of the suit. This execution proceeding is confined only to the dispute
raised by the Judgment Debtors in respect of the suit property. The Court had, on 23.10.2007,
recorded the terms of bidding during the course of which it was directed as follows:
"XXXXXX XXXXXX XXXXXX
...Insofar as the tenancy rights in respect of 1375, Lhtswa Katra, Chandni Chowk,
Delhi-6 are concerned, they are also the subject matter of the bid in respect of the
Delhi properties. It is stated by the parties that the ownership of the said property
belongs to the wife of Ram Gopal and his son. It is made clear that whoever
succeeds to this property consequent to the bid would not be hindered in the
enjoyment of the same.
The bids would be submitted by the parties in a sealed cover by the parties
on or before 26.11.2007. Three separate bids would be made for the Mumbai
properties, Delhi properties and Hathras properties by each party.
Dasti to both the parties.
XXXXXX XXXXXX XXXXXX"
3. The parties submitted the respective bids; the Judgment Debtor, i.e. Sh. Ram Gopal bid `
4 crores in respect of the Delhi lot, which comprised three properties, and included the suit
property. Eventually, the bid of Sh. Ram Charan being higher that Sh. Ram Gopal's, was
accepted. The Court was conscious of the circumstances that the suit property was tenanted. A
further detail needs to be noticed at this stage. The pleadings in the suit had indicated that the suit
property, being tenanted, was occupied by a firm, of which the Decree Holder and Judgment
Debtor were partners. During the pendency of the suit, the property was purchased by Sh. Ram
Gopal's son and his wife. Learned counsel (for the Judgment Debtor) mentions that the sale
consideration was ` 4.5 lakhs and a registered conveyance was executed in 1998.
4. On the basis of the understanding arrived at by the parties - since Sh. Ram Gopal, wife
and son were not formal parties to the proceedings, the statements were recorded on 14.02.2008.
It is necessary to extract the statement of Sh. Ram Gopal, recorded by the Court on that date. The
same is as follows:
"XXXXXX XXXXXX XXXXXX
Statement of Mr. Ram Gopal, S/o Shri Ganeshi Lal, R/o 1287, Kashmeri Gate,
Delhi.
Ex. P. 227/2010 Page 2
On oath.
I have had discussions with my nephew Mr. Ram Bhakt Aggarwal who has
been authorized by my brother Mr. Ram Charan Aggarwal to have discussions on
his behalf with me. We have arrived at a settlement as has been recorded in the
order dated 23.10.2007. However, with regard to the amount of Rs. 1.75 crores
mentioned in that order, the figure has now become Rs. 1.80 crores due to
accrual of interest. Insofar as that sum of money is concerned, it has been agreed
between me and my brother that since the same has to come out of the partnership
firm, my brother shall bear the liability to the extent of Rs. 90 lacs i.e., 50% of the
said amount. The said amount shall be adjusted or become payable as per the
finalization of the bids. It has also been agreed between us that the sum of Rs. 17
lacs which has been mentioned in the order dated 23.10.2007 shall be the liability
of my brother towards me. I shall abide by the terms of the bid that have been set
out in the order dated 23.10.2007 and I also undertake that vacant, peaceful and
unencumbered possession of the properties shall be handed over/taken over
simultaneously with the payment/receipt of the sums of money as per the bids. I
have the authority to make this statement on behalf of my family members and the
statement that is being made by me is also binding on them. We have fully and
finally settled all our disputes between me and my brother as well as between my
family and his family and it has also be agreed by my brother Mr. Ram Charan
that despite the Will dated 05.10.1981 of late Shri Lala Ganeshi Lal, his
properties, including his share in the partnership (M/s Lalji Mal Tika Ram) shall
be distributed between the two brothers equally i.e., 50% each. In view of this
settlement that has been arrived at between the parties, I undertake to withdraw
the Special Leave Petition which has been filed before the Supreme Court and it
has been agreed that both me and my nephew shall make a joint statement before
the Supreme Court on the next date of hearing. No further claim shall be made by
me or my family members including my LRs against my brother Shri Ram Charan
and/or his family members in respect of the said partnership firm as also the
properties which form the subject matter of the disputes in these matters.
XXXXXX XXXXXX XXXXXX"
5. The Judgment Debtor complains that despite the above position and his having paid the
entire accepted bid of ` 3.5 crores, conveyance in respect of the suit property has not been
executed or registered. The Decree Holder further claims to be aggrieved by the conduct of the
Judgment Debtors. It is submitted that the second and third Judgment debtors, the being wife and
son of Sh. Ram Gopal, sought to disturb his possession by initially filing a complaint under
Section 145 of the Criminal Procedure Code (Cr.PC) and thereafter approaching the authorities
under the Slum Areas (Improvement and Clearance) Act, 1956 and then moving the Rent
Controller for execution on the ground of bona fide need.
Ex. P. 227/2010 Page 3
6. It is submitted that the judgment, based on the understanding of the parties, was clear
enough, i.e. that the bid amount encompassed not only tenancy rights but also full enjoyment,
which in turn, implied title to the property. It is submitted that Sh. Ram Gopal was aware of this
and even submitted as much in his statement recorded on oath on 14.02.2008.
7. The Judgment Debtors, object to the proceedings contending that the parties were
conscious of what they were offering to purchase and sell. Viewed from this perspective, submit
the Judgment Debtors, every bid would clearly indicate that the ownership or tenancy rights that
were being by all the transactions and are ultimately affirmed to by all the decree. It is submitted
that Sh. Ram Gopal himself too, had been claiming tenancy rights in respect of the suit property.
Likewise, this Court was conscious on 23.10.2007 when it noticed that ownership of the suit
property belonged to the second and third Judgment Debtors. In these circumstances, the
clarification that whoever succeeds to the property consequent to the bidding would not be
hindered in the enjoyment of the same, has to be read as subject to the legal rights flowing from
the ownership as to whoever was legitimately entitled to the property. Since the Decree Holder
too analysed over tenancy rights, he could not claim anything more than that.
8. The second and third Judgment Debtors do not deny awareness or disagreement with the
statements made by Sh. Ram Gopal, which were recorded by the Court on 14.02.2008.
9. The eviction proceeding is part of the record. It would be relevant, before analyzing the
rival contentions, to extract certain portions of the pleading in that case. They are as follows:
"XXXXXX XXXXXX XXXXXX
19. Any other relevant information
(i) That the premises in question were originally let-out to M/s. Lalji Mal
Tika Ram of which Late Sh. Ganeshi Lal along with his two sons Shri Ram Gopal
and Sh. Ram Charan Aggarwal, were the partners. Sh. Ganeshi Lal died on
9.10.1981. The firm M/s. Lalji Mal Tika Ram was the tenant in the premises in
question and that the said firm was having businesses both at Mumbai and Delhi.
The respondent Shri Ram Charan Aggarwal was looking after the business at
Mumbai whereas the father of the petitioner no. 2 and husband of petitioner no.1, was looking after the business at Delhi.
(ii) That after the death of Shri Ganeshi Lal in the year 1981, both the brothers continued their businesses respectively at Mumbai and Delhi. After the death of Shri Ganesh Lal, although both the brothers were carrying on the businesses in their respective names, but there was no partnership business the said firm including the two brothers and a number of properties, the premises in Ex. P. 227/2010 Page 4 question being tenanted premises.
(iii) That numerous litigations started between the two brothers and ultimately in the Hon'ble High Court of Delhi, matter was settled between the brothers and that the tenancy rights of the shop in question came to the share of respondent and that by operation of law,/compromise, the respondent has become a tenant of the petitioners.
20. Relief claimed: It is humbly prayed that the court be pleased to pass an order for eviction against the tenant/respondent with costs in respect of the premises bearing no. 1375, Gali Lehswan, Chandni Chowk, Delhi-110006 more specifically shown red in the plan of the said property.
Delhi Sd/-
Date 5.12.2008 (Signature of applicants/petitioners)
XXXXXX XXXXXX XXXXXX"
The above eviction proceeding was filed on 05.12.2008.
10. The short question which this Court is called to decide upon is whether the execution proceeding lies in respect of the decree and whether the Judgment Debtors can be directed to convey the title to the property.
11. There is no dispute that the subject-matter of the suit was a claim for partition. The two brothers, i.e. the Decree Holder and the Judgment Debtor were also in business jointly and partners of more than one firm. These are carrying-on business in various places, including in Delhi. One of those firms was carrying on business in tenanted premises, i.e. the suit property. The business and tenancy was part of the suit property. During the pendency of the suit, the suit property was purchased by Judgment Debtor Nos. 2 and 3. The apparent consideration for the same was ` 4.5 lakhs. When the parties arrived at an understanding, the rival position were in respect of tenancies since that was subject matter of the suit as originally confirmed (since there was no amendment of the pleadings), incorporating the subsequent developments. The Judgment Debtors' application, being E.A. No. 466/2010 nowhere indicates that the firm or the two brothers, who were admittedly carrying the business in the suit property were paying rents as tenants of the same after the sale took place in 1998. Furthermore, significantly, the ground for eviction claimed is bona fide need; there is no averment that the firm or the Decree Holder had defaulted in payment of rent. In these circumstances, this is a significant aspect, which the Court Ex. P. 227/2010 Page 5 has to keep in mind while considering the order of 23.10.2007 that is the bone of contention today.
12. No doubt, the Court had noticed that the rights in respect of the suit property were tenancy rights. However, the Court equally recorded that the ownership of the property was that of Sh. Ram Gopal as well as the second and third Judgment Debtors. It was, in these circumstances, that the Court felt compelled to state that whoever succeeded to the property as a bidder would not be hindered in the enjoyment of the same. Sh. Ram Gopal in his statement dated 14.02.2008 clearly undertook that vacant, peaceful and unencumbered property which were with him would be handed-over whenever the payments were received. Crucially, he also stated that he had authority to make the statement on behalf of the family members and that the same was binding upon them. If this statement is to be read along with the entirety of the order dated 23.10.2007, it is clear that the Court's direction that whoever succeeded to the property consequent to bid would not be hindered in the enjoyment of the same precisely meant that in the letter and spirit. Any other construction, in the opinion of the Court, would render the whole exercise a futility as the Decree Holder would be deemed to have bid and paid substantial amount of approximately ` 1.5 crores towards tenancy rights and at the same time be exposed to eviction proceedings immediately thereafter. Such construction would plainly defeat the intention of the decree and the understanding arrived at by the parties. This Court has also noticed earlier that the second and third Judgment Debtors nowhere challenged the statement made by Sh. Ram Gopal; nor do they question it on the ground of his incompetence today was and that the same is not binding upon them.
13. In these circumstances, the Court is of the opinion that the objections to the execution proceedings are unmerited and even frivolous. For the same reasons, this Court is of the opinion that the full and effective enjoyment of the property would only imply that the consideration paid was towards title to the same. In these circumstances, the Judgment Debtors are directed to execute conveyance in respect of the suit property within four weeks under the supervision of the Joint Registrar. The objections to the execution proceedings, filed in the form of applications, are therefore dismissed for the above reasons. The execution proceeding, Ex.Pet. 227/2010 is entitled to succeed. The judgment debtors are therefore, directed to execute a conveyance deed, in favour of the decree holder, within three weeks. The matter shall be listed before the Joint Registrar, for recording compliance, on 21.09.2010.
Ex. P. 227/2010 Page 6
14. Ex. P. 227/2010 is therefore, allowed, in the above terms. All pending applications are also disposed of.
S. RAVINDRA BHAT,J
AUGUST 30, 2010
'ajk'
Ex. P. 227/2010 Page 7