Delhi District Court
Sh. Amarjeet Singh Lamba vs Sh. Daljit Singh Lamba & Ors on 22 April, 2016
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ (WEST)08, TIS HAZARI COURTS, DELHI
MCA No. 03/2016
Sh. Amarjeet Singh Lamba ........Appellant
Versus
Sh. Daljit Singh Lamba & ors. ....... Respondents
Date of institution of the appeal : 22.02.2016
Date of reserving order : 22.03.2016
Date of pronouncement of order : 22.04.2016
ORDER
1. Vide this order, I shall decide the present appeal under section 96 CPC read with Order 41 Rule 1 CPC filed by the appellants who are defendant No. 4 and 5 respectively before the Ld. Trial Court against the impugned order's dated 30.01.2016, 27.01.2016 and 04.06.2014 passed by the Ld. Trial court.
2. At the outset, it is observed that the appeal is maintainable only against the impugned order dated 04.06.2014 whereby the Ld Trial Court directed the appointment of receiver on joint application signed by all the MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 1 of 24 parties except Defendant No. 4. The Appellant No. 1 who is defendant No. 4 filed an application under section 151 CPC seeking recalling of order dated 04.06.14 and the said application was dismissed by Ld Trial Court vide order dated 27.01.2016 and vide order dated 30.01.16, the Ld Trial Court executed the order dated 04.06.14. The subsequent orders dated 27.01.2016 and 30.01.2016, are also flowing out of the impugned order dated 04.06.2014 and thus, incase, this court holds that impugned order dated 04.06.14 is liable to be set aside or modifies the said impugned order dated 04.06.2014, the orders flowing out of said order would lose their legal enforcement to that extent.
3. Pertinently, an appeal against order dated 04.06.14 appointing receiver is maintainable under section 104 CPC read with order 43 rule 1 CPC and not under section 96 CPC read with order 41 rule 1 CPC. Though the wrong provision of law has been mentioned in the appeal and objection was also raised by Respondent No. 1 in this regard, I am treating present appeal under section 104 CPC read with Order 43 Rule 1 (s) CPC in the interest of justice. Further, an application under section 5 Limitation Act, 1963 has been filed seeking condonation of delay in filing the present appeal against the impugned order dated 04.06.2014.
4. I have heard the arguments of the parties on the application for condonation of delay as well as appeal. I shall first decide an application MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 2 of 24 for condonation of delay in filing the present appeal against impugned order dated 04.06.2014.
5. Before considering the application for condonation of delay, it is necessary to throw light on the brief facts of the case which are that the appellants and the parties to the suit are legal heirs of late Sh. Man Singh Lamba and Late Smt. Tej Kaur Lamba. Present suit for seeking partition of the property bearing no. G230, Naraina, New Delhi measuring 300 sq. yards in 8 equal parts was filed on 17.01.2002 by the Plaintiff. A preliminary decree was passed on 19.11.2005 whereby it was held that the Respondent No. 1 being plaintiff and other legal heirs are entitled to 1/8th share each in the suit property. After passing of the preliminary decree, Sh. Daljeet Singh Lamba filed an application under order 1 rule 10 CPC for impleading legal heirs of Late Smt. Savinder Kaur Sachdeva, deceased sister as one of the parties to the suit and consequently, vide application under order 6 rule 17 r/w Section 151 CPC, the respondent no. 1, Sh. Daljeet Singh Lamba sought to amend pleadings so that the suit property be divided into 9 equal parts. Ld. Civil Judge vide order dated 29.05.2012 allowed the amendment and amended preliminary decree was passed on 24.02.2012.
6. Vide order dated 07.08.2012, the Ld. Civil Judge called for the auction of the suit property in view of the report of the local commissioner that it MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 3 of 24 was not feasible to partition the suit property in 9 equal parts by metes and bounds. Later on, the parties arrived at a compromise in form of settlement agreement to try for sale without auction to fetch best market price and order dated 05.11.2012 setting aside the auction order dated 07.08.2012 was passed in view of the compromise arrived at between the parties but the said settlement failed. Consequent to the failure of the compromise, Ld. Civil Judge ordered for auction of the suit property vide order dated 23.09.2013 in pursuance of which two valuation report dated 18.09.2013 were filed. As per order dated 23.09.13, auction of property was directed to be held at base price of Rs. 12,54,72,000/ on 11.11.13. However, the said auction proceedings failed due to high base price and the persons who approached the auctioneers quoted base price between Rs. 8,00,000,00/ to Rs. 8,50,00,000/. Accordingly, Ld Trial Court vide order dated 29.11.13 called for reauction of suit property at Rs. 9,00,000,00/ scheduled for 21.01.14 alongwith publication of auction notice in Times of India. The second auction also failed in terms of court auctioneer's report dated 31.01.2014. On 08.05.14, the Respondents and the Appellant No. 2 filed joint application seeking appointment of court receiver for conversion of suit property from leasehold to freehold and to take possession of suit property from those in possession. In terms of joint application to which Appellant No. 1 was not signatory, the Ld Trial MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 4 of 24 Court vide impugned order dated 04.06.14 allowed the appointment of court receiver for conversion of suit property from leasehold to freehold and thereafter, take possession of the suit property from defendant Nos. 2,4 and 5.
7. It is averred in the appeal that vide order dated 04.06.14, the Ld Trial Court without considering the factual basis of the Court auctioneer's report dated 31.01.14 observed that the failure of auction proceedings was due to the fact that the Appellants being in possession of the suit property led to the fear in the persons bidding that they would be deprived of peaceful possession of the suit property without considering the fact that the appellants had given an undertaking dated 05.11.12, which the court auctioneer failed to inform the bidders. It is the case of the Appellants that second auction failed for the reason that the leasehold property was not converted into freehold.
8. It is the case of the respondent No. 1 that the auction held on 21.01.14 failed as per the Court auctioneer's report dated 31.01.14 for the reason that the vacant possession of suit property is necessary before the suit property is put to auction again.
9. Ld Counsel for the Respondent No. 1 contended that since the appellant has availed the remedy of recalling order dated 04.06.14 by way of application u/s 151 CPC which was also dismissed by the trial court vide MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 5 of 24 order dated 27.01.2016 with cost of Rs. 10,000/ to be deposited in DLSA and cost of Rs. 1000/ to each of the parties to the suit, the appellant cannot file the appeal against the same order dated 04.06.2014. Further, the appeal filed by the appellant no. 2 is not maintainable as appellant no. 2 had signed the joint application dated 08.05.2014, wherein as per para 10 and 13, receiver was appointed to take possession of the suit property from the appellants and respondent no. 3 after the property gets converted from lease hold to free hold. There is delay of about 162 days in filing the present appeal, which is not sustainable in the eyes of law.
OR DER ON APPLICATION FOR CONDONATION OF DELAY
10. It is now to be seen in the light of the aforesaid factual matrix as to whether the Appellants are entitled to condonation of delay in filing the present appeal.
11. It is stated in the application that application for stay of proceedings was filed within the period of limitation i.e. soon after the passing of order dated 04.06.2014 and was not pressed till the conversion of suit property from lease hold to free hold which was done vide conveyance deed dated 16.02.2015. Thereafter, vide order dated 27.01.2016, the stay was vacated and vide order 30.01.2016, Ld. Trial court has executed order dated 04.06.2014. It is further stated that due to MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 6 of 24 this reason the present appeal was filed after the delay of almost one year and the delay in filing the appeal is neither deliberate nor intentional. It is further stated that appellants would suffer irreparable loss, if the delay in filing the present appeal is not condoned.
12. In reply to application for condonation of delay, it is stated that application for condonation of delay is misconceived and not maintainable under Section 5 of the Limitation Act as there is specific provision under order 41 Rule 3A CPC. It is further submitted that the application does not disclose any sufficient cause for not preferring the appeal within the period of limitation. In the application, the applicant has not mentioned the exact number of days for which the condonation of delay is sought. It is further stated that the appellant has filed the appeal under section 96 CPC r/w order 41 r. 1 CPC which is not maintainable as this section lies for appeal against the decree and orders dated 04.06.2014 and 30.01.2016, are not judgment and decree, thus, the question of condonation of delay does not arise.
13. 0n 03.03.16, both the Appellants filed their separate detailed affidavit's explaining delay in filing the present appeal. By way of detailed affidavit, Appellant No. 1 stated that on 23.08.14, he had paid cost of Rs. 10,000/ towards part payment of fees of Local Commissioner and on the same date, an application to retain the right to challenge the MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 7 of 24 order dated 04.06.14 and 19.07.12 was filed on the advice of the lawyer that order dated 04.06.14 could be challenged only after payment of cost. On subsequent dates and till 30.09.14, Appellant No. 1 made payment for conversion of suit property from leasehold to freehold and it is only after complete payment, an application for stay of order dated 04.06.14 was moved by his counsel. Delay in filing an application was only for allowing the conversion of leasehold property to freehold property and the delay is bonafide.
14. Similarly, Appellant No. 2 filed detailed affidavit on 03.03.16, whereby she stated that she being defendant No. 5 moved joint application for appointment of court receiver alongwith respondents however, she stated that her signatures were obtained under undue influence and misrepresentation by the Respondent No. 1 who had subjected her to brutal assault and made her to sign an application. She was not aware of the exact contents of the application and would not have appended signature if she was aware that she will be forced to leave the suit property without having any alternate accommodation.
15. The Appellants also filed rejoinder to the reply filed by Respondent No. 1 to an application for condonation of delay whereby they reiterated the contents of application.
16. Ld. Counsel for the appellants has relied upon the judgment passed MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 8 of 24 by Hon'ble Supreme court titled as State of Haryana vs. Chandermani, 1996 SCC (3) 132 where in the Hon'ble Supreme court has held that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made.
17. Ld. Counsel for the appellants states that the order dated 04.06.2014 has merged in order dated 27.01.2016 and thus, there is no delay in filing the present appeal. To substantiate his contention, Ld. Counsel for the appellants has placed reliance upon the judgment of Hon'ble Supreme Court bearing SLP (Civil) No 4616/2010 titled as MCD vs. Yashwant Singh Negi decided on 08.04.2013 wherein the Hon'ble Supreme Court has held that in case the review petition is allowed and decree /order under review is reversed or modified, such an order shall be a composite order. In the instant case, the Ld. Trial court has dismissed the application u/s 151 CPC for recalling of order dated 04.06.2014 and thus, the contention of the Ld. Counsel for the appellant that order dated 04.06.2014 has merged with order dated 27.01.2016 has no merit. However, the further contention of the Ld. Counsel for the appellants that the period spent while application u/s 151 for recalling of order dated 04.06.2014 was pending, be excluded, as the said time was spent by appellant No. 1 diligently in pursuing the remedy under section 151 CPC by appellant No. 1 for recalling of order dated 04.06.2014 requires MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 9 of 24 consideration as per the provision of section 14 of the Limitation Act, 1963. Further, the Hon'ble Apex Court in the aforesaid judgment also made an observation that time taken by the party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in filing of the appeal.
18. The Hon'ble High Court of Delhi in LPA No. 388/2015 titled as Smt. Ram Giri versus Union of India decided on 15.03.2016 after considering the various judgments of Hon'ble Supreme Court of India condoned the delay of 1873 days in filing the appeal and 577 days in refiling the appeal.
19. The judgment of Hon'ble Apex Court titled as Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) SCC 107, wherein the Apex Court laid down following guidelines for condoning the delay in filing the appeal still hold the field of law as: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 10 of 24 that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. XXX XXX XXX ................"
20. After referring to the various judgments, the Hon'ble Apex Court in State of Haryana v. Chandra Mani 2002(143) ELT 249(SC) held ;
".....The expression 'sufficient cause' should, therefore, be considered with pragmatism in justiceoriented process approach rather than the technical detention of sufficient case for explaining every day's delay.
The factors which are peculiar to and characteristic of the functioning of MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 11 of 24 pragmatic approach injustice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. ............'
21. In N. Balakrishnan v. M. Krishnamurthy 2008(228)ELT 162(SC), the Hon'ble Apex Court observed as :
"It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court."
MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 12 of 24
22. The ratio of the aforesaid judgments of the Apex Court is that Section 5 of the Limitation Act lays down that an appeal may be admitted after the period of limitation if the appellant shows sufficient cause for not preferring the appeal "within such period". Further, power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit.
23. It is as per record that application u/s 151 CPC was filed on 29.10.2014 by appellant no. 1 seeking recall of order dated 04.06.2014 and subsequent orders thereafter. On 31.07.2014, Appellant No. 1 was present, however, he did not raise any objection to the order dated 04.06.2014. Thereafter, on 23.08.2014, Appellant no. 1 filed an application seeking permission to deposit the amount of Rs. 10,000/ without prejudice to his right to challenge order dated 04.06.2014 and order dated 19.07.2012. Vide order dated 18.02.2015, Court receiver informed the Court that property has been converted into free hold and on the said date, counsel for defendant No. 4 sought time to obtain the instructions as to whether he wants to pursue the case on merits or amicably wants to sell this property with other parties. Matter kept on being adjourned for one reason or the other and finally, application for MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 13 of 24 recalling of order dated 04.06.14 got dismissed with cost vide order dated 27.01.16 and the present appeal was subsequently filed on 22.02.16. Thus, the Appellant No. 1 exercised his legal right on 23.08.14 by filing an application seeking permission to deposit charges without prejudice to his rights to challenge the order dated 04.06.14. Thereafter, he filed an application on 29.10.14 under Section 151 CPC for recalling of order dated 14.06.2014. This court is of opinion that the Appellant No. 1 is entitled to exclusion of the period from 23.08.14 till 27.01.16 while he was diligently pursuing the remedy of recalling of order dated 04.06.14.
24. In view of facts of the present case in the light of law laid down by Hon'ble Apex Court, this Court is taking liberal view of the matter keeping in mind that the Appellant No. 1 has not assailed the first part of impugned order whereby the Receiver was appointed for conversion of leasehold property to freehold property and the later part of order became executable only vide order dated 30.01.16. Accordingly, application for condonation of delay insofar as Appellant No. 1 is concerned is allowed.
25. The application for condonation of delay filed by the Appellant No. 2 is dismissed for different reasons as narrated here in below.
26. In so far as appellant No. 2 is concerned, she herself is signatory to the joint application filed by the plaintiff and the other defendants on 08.05.14 and further, she has not filed any application for recalling of MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 14 of 24 impugned order dated 04.06.2014, and thus, the delay in filing the present appeal against the impugned order dated 04.06.2014 is writ large.
27. The Appellant No. 2 has not averred before the Trial Court after the passing of impugned order dated 14.06.14 and on various dates thereafter when the matter was taken up that she was forced to sign the joint application, she even did not say so in the appeal and it is for the first time, she averred the same in the detailed affidavit filed for condonation of delay in filing the present appeal.
28. No doubt, perusal of record reveals that application for appointment of receiver under O 40 R 1(b) CPC was earlier filed by the Respondent No. 1/ plaintiff on 23.01.14 with the prayer that the court should appoint receiver and take possession from defendant nos. 2,4 and 5 and keep the custody of property till the property is auctioned and handover the possession to the prospective buyer whose bid is accepted and confirmed by the court. Reply was filed by the defendant no. 5 who is appellant no. 2 herein and she objected on the ground that she has no other residential house in Delhi. Reply was also filed by defendant no. 4 on 25.03.14 and he also objected to the appointment of receiver. Part arguments were heard by the Trial Court on 28.04.14 on the said application and case was fixed on 08.05.14 for exploring the possibility of settlement. On 08.05.14, joint application was filed which was got MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 15 of 24 signed by all the parties except Appellant No. 1. Vide order dated 08.05.14, it was recorded that all the parties have reached to consensus as per terms of settlement i.e. Ex S1 and statement of parties stands recorded in this regard.
29. The aforesaid court proceedings envisage that the Appellant No. 2 was not agreeable for appointment of receiver to take possession as she had no other alternate accommodation to stay in Delhi. However, to the utter surprise, she later on signed the joint application dated 08.05.14 for appointment of receiver. As the record reveals that the previous application filed by the Plaintiff is still pending which was contested by the Appellant No. 2 by filing detailed reply however, the clock cannot be put back once she did not raise any objection before the trial court on the subsequent dates of hearing and even in the appeal filed before this Court. Such averment raised for the first time in the detailed affidavit filed on 03.03.2016 for condonation of delay before this court after passing of impugned order on 04.06.14 does not inspire confidence. Accordingly, application for condonation of delay in filing the present appeal by the appellant no.2 is dismissed.
ORDER ON APPEAL
30. This Court has perused the joint application dated 08.05.2014 which is signed by all the parties except Appellant No. 1 / defendant No. MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 16 of 24
4. In the said application, it is stated in paragraph 13 that as soon as the suit property gets converted from leasehold to freehold, the defendant Nos. 2 and 5 have agreed that they would vacate and hand over the peaceful vacant possession without any objection on or before one month from the date of registration conveyance deed at DDA, New Delhi. On the basis of the said application, impugned order dated 04.06.2014 was passed. Vide order dated 04.06.2014, ld. Trial Judge observed in para 6 that as per para 13 and 14 of the joint application, the receiver shall be empowered to take over the possession from defendant No. 2, 4 and 5 on or before one month of registration of conveyance deed at DDA.
31. It is the case of the appellant No. 1 that he has no objection in so far as appointment of receiver is concerned for conversion of the suit property from lead hold to free hold. However, the appellant No. 1 is assailing only later part of the impugned order whereby receiver is authorized to take possession of the suit property from him.
32. Ld. Counsel for the Respondent No. 1 states that in terms of local commissioner report, defendants who are in occupation of suit property are delaying the proceedings. This Court has perused the auction report dated 21.01.2014 filed on 31.01.2014 wherein in paragraph 6 of his report, it is stated that one Shri Rakesh Kumar, local property dealer made inquiry about the suit property and told that he may be interested to MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 17 of 24 buy the vacant property only as he will have to file litigation, in case, three defendants who are in possession do not vacate the property and he had shown his inclination to participate in auction, if the property in auction is vacant. It is further stated that the value of the property should be about Rs. 8 crore only otherwise, it is not possible to purchase the property in auction. In paragraph 8 of the local commissioner report, reference is made to one Shri Arvind Kalra who also stated that incase of vacant physical possession, he would also be interested in buying the suit property and value of the property should be between Rs. 7 Crore to Rs. 8 Crore. It is further mentioned in para 9 that Shri T.S. Vohra being brother of defendant No. 5, who is in possession of the property also shown his disinterest to bid on the premise that his own sister is in possession of property. The Local Commissioner/Court auctioneer stated that all the three buyers refused to buy the property on the premise that the value of the auction property is higher than the present value of the property and property should be vacant. Previously, also on 11.11.2013 the property was put in auction for Rs. 12,54,72,000/ and said auction had also failed due to higher value of the property at that time. The Court auctioneer thus gave his opinion that property can be sold in auction if property in auction is vacant and value of the property is between Rs. 7.5 Crores and Rs. 8 Crores only. I have also perused the MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 18 of 24 Court notice published in the newspaper wherein the public notice was given for auction of the property in question for sale by way of Court auction on 21.012014 at 11:00 AM. However, in the entire Court notice, it is not mentioned that the appellants had already given an undertaking on 05.11.2012 that at the time of sale, the Appellants would hand over the peaceful and vacant possession of the suit property to the concerned buyer immediately.
33. Ld. Counsel for the Appellants has relied upon the judgment bearing 1993 (2) ALT 154 Chelikam Rajamma vs Padileti Venkataswami Reddy wherein the Hon'ble High Court observed as:
".........After an exhaustive review of the case law bearing on the subjectboth Indian and AmericanRamaswami, J. of the Madras High Court in Krishnaswamy v. Thangavelu, has observed that five requirements should be satisfied under Order 40, Rule 1 of the Code of Civil Procedure for the appointment of receiver. Even though the case in which Ramaswami, J laid down the five requirements did not arise out of a partition suit, the principles enunciated by the learned Judge are very useful guidelines in the exercise of discretion for appointment of receivers. They are:
(1) The appointment of receiver is a matter in the discretion of MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 19 of 24 the court and the discretion shall not be exercised in an arbitrary or unsound manner;
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has got excellent chance of succeeding in the suit;
(3) The plaintiff must show some emergency or danger or loss demanding immediate action and he should be clear about his right;
(4) The receiver should not be appointed if such appointment has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the property is 'in medio', that is to say, in the enjoyment of no one, the court can appoint a receiver; and (5) If the conduct of the party seeking appointment of receiver is not free from blame, the court shall not appoint a receiver."
34. Keeping in view the law laid down by Hon'ble Andhra Pradesh High Court as to what are the circumstances warranting the appointment of receiver, this Court has already gone through the trial court record and noticed that the Appellants had given an undertaking on 05.11.2012 before the Trial Court pursuant to settlement between the parties that at the time of sale, the Appellants would hand over the peaceful and vacant possession of the suit property to the concerned buyer immediately failing which the auction proceedings may be restart. It is also stated that appellants would cooperate in all formalities in getting the property MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 20 of 24 converted from leasehold to freehold and all formalities relating to sale of the property in question and would abide by the majority decision regarding the best available price decided by the majority decision. Accordingly vide order dated 05.11.2012, order dated 07.08.12 was recalled and set aside and auction proceedings which was scheduled for 08.11.2012 were cancelled.
35. It appears from the perusal of the record that the property was neither mutated nor it was sold on the basis of compromise recorded between the parties as reflected in order dated 05.11.12 and thereafter, vide order dated 23.09.13, suit property was directed to be auctioned again which was subsequently failed. The Court auctioneer filed report dated 31.01.2014 on the basis of three buyers who visited the suit property, the Court auctioneer gave his opinion that suit property can be sold in auction, if property in auction is vacant and value of the property is between Rs. 7.5 Crores and Rs. 8 Crores only.
36. It is the apprehension of the Respondent No. 1 that property would not fetch better price unless and until the property is vacated and the possession is handed over to court receiver for the auction. The said apprehension of the Respondent No. 1 is based on the basis of court auctioneer report dated 31.01.14 however, this Court has already observed that the auction notice in the newspaper did not make a mention MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 21 of 24 of the fact that the appellants had given undertaking on 05.11.14 before the Ld Trial Court that at the time of sale, the Appellants would hand over the peaceful and vacant possession of the suit property to the concerned buyer immediately failing which the auction proceedings may be restart. In the absence of any averment in public notice in the newspaper, the apprehension of prospective buyers has substance that they would not like to invest money in the property which is already occupied. But, in the instant case, the Appellants are ready and willing to handover the vacant possession to prospective buyer. This court is of opinion that the occupants of suit property who are in legal possession by virtue of their being entitled to 1/9th share each of suit property cannot be asked to vacate the property till the time property is sold and they are given the sale proceeds.
37. It is also pertinent to mention that this Court also made efforts to settle the matter at appellate stage and it is reflected in the orders dated 09.03.16, 19.03.16 and 22.03.16 wherein on the basis that the Respondent No. 1 has availability of buyer and the said buyer is ready and willing to pay Rs. 8.40 crores as price of suit property, the Appellants initially shown their inclination to the said offer but did not ultimately agree on the premise that the price of suit property is Rs. 9.5 crore approximately.
MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 22 of 24
38. Be that as it may, interest of justice would be met if the order dated 04.06.14 is modified to the extent that the Appellant No. 1 would give an undertaking again before the trial court that he would hand over the possession to the court receiver immediately on receipt of his respective 1/9th share of earnest money from the successive bidder in auction/prospective buyer and incase, the Appellant No. 1 fail to handover the possession to court receiver even on receipt of his respective share of earnest money from successive bidder in auction/prospective buyer, the court receiver shall be entitled to take possession from the appellant No. 1 with the assistance of local police by evicting him. Incase, the premises is found locked, he has also power to break the lock, if necessary, for the purpose of handing it over to the successive bidder/prospective buyer. The Appellant No. 1 would not hold the possession of the suit property on the ground that he would vacate only on receipt of total 1/9th share of purchase value and would handover possession on receipt of his share of earnest money. Further, the Appellant No. 1 would give undertaking to the trial court in this regard. The said undertaking of the Appellant No. 1 must be reflected in the notice for proclamation of sale to be issued under order XX1 Rule 66 CPC as well as in the public notice for auction of suit property in the newspaper. The said mentioning in the public notice for auction would MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 23 of 24 dispel the apprehension of the Respondents.
39. Needless to add, trial court record reveals that the Appellant No. 1 has been delaying the proceedings on one pretext or the other. Any sort of further delay tactics on the part of Appellant No. 1 would be taken of seriously by the trial court.
40. Accordingly, the appeal filed by the Appellant No. 1 against impunged order dated 04.06.2014 is allowed in aforesaid terms. Needless to say, application for condonation of delay in filing the present appeal by the appellant No. 2 has been dismissed as she herself was signatory party to the joint application for appointment of receiver and she did not take any legal remedy thereafter till the filing of the present appeal. Appeal of the appellant No. 2 is also consequently dismissed.
41. Trial Court record is sent back with this order and the parties are directed to appear before the Trial Court on 08.05.2016 for further proceedings.
42. File of the appeal be consigned to record room after necessary compliance.
Announced in the open court (MANJUSHA WADHWA)
on i.e. 22.04.2016 ADDL.DISTRICT JUDGE08,
WEST DISTRICT/DELHI
MCA No. 03/2016 Amarjeet Singh Lamba Vs. Daljit Singh Lamba & Ors. Page No. 24 of 24