Delhi High Court
Sh. Jagmohan Nath Kapoor vs Sh. Manmohan Nath Kapoor on 9 August, 2012
Author: Kailash Gambhir
Bench: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 09.08.2012
+ IA No. 4172/2012 in CS(OS) 1254/2009
SH. JAGMOHAN NATH KAPOOR ..... Plaintiff
Through: Mr.Anupam Srivastava with
Mr.Manish
Srivastava, Advs.
versus
SH. MANMOHAN NATH KAPOOR ..... Defendant
Through: Mr.Vijay Gupta with Ms.Geeta, Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:
KAILASH GAMBHIR, J.
1. By this application filed under Section 151 CPC the defendant has prayed to consider various other alternatives for the division of the subject property in the best interest of both the parties.
2. The first suggestion given by the defendant in the present application is to buy out the plaintiff's share in the suit property at Rs. 2 crores. As per the defendant, the said offer of Rs. 2 crores to buy out the share of the plaintiff has been given considering the fact that CS(OS) 1254/2009 Page 1 of 12 the plaintiff himself has valued his share in the property at Rs. 25 lakhs in the valuation para of the plaint and Rs. 60 lakhs in his application dated 13th February, 2012. The defendant has further taken a stand that even as per the circle rate declared by the Government of NCT of Delhi, as applicable w.e.f. 16.11.2011, the value of the share of the plaintiff comes out to be Rs. 91,72,800/-. The defendant has also prayed that if this suggestion is accepted then he be given reasonable time frame to enable him to pay the said amount of Rs. 2 crores to the plaintiff.
3. The second suggestion given by the defendant in the present application is that the suit property be first converted from lease hold to free hold after a joint initiative is taken by both the parties and thereafter the said property be demolished so as to convert it into an open plot. Thereafter, the open plot of 200 sq.yds be physically divided into two plots of 100 sq.yds each by means of vertical division and the portion which is contiguous to the defendant's property No. F- 12, Lajpat Nagar-III, New Delhi be taken by the defendant towards his 50% share and the remaining portion by the plaintiff.
4. The third suggestion given by the defendant in the present application is that after getting the property converted from lease CS(OS) 1254/2009 Page 2 of 12 hold to free hold, both the parties can jointly proceed to develop the property by constructing four dwelling units and thereafter each party can take two dwelling units as per the arrangement to be worked out between them.
5. The said application has been strongly opposed by the plaintiff. The stand taken by the plaintiff in his reply to this application is that during the mediation proceedings all these options were suggested and duly considered by both the parties but nothing turned out of such suggestions and ultimately mediation proceedings resulted into abrupt failure. The plaintiff has also taken a stand that these suggestions have been given by the defendant again with oblique motives to further prolong the present proceedings.
6. Contesting the first suggestion given by the defendant to buy out the share of the plaintiff, the plaintiff has taken a stand that the plaintiff is prepared to buy out the share of the defendant at the value suggested by the Local Commissioner and to show his bona fides the plaintiff also brought a demand draft for a sum of Rs. 50 lakhs and undertook to make the balance payment within a period of six months. In answer to second suggestion for vertical physical division of the property the plaintiff took a stand that such an offer is not acceptable CS(OS) 1254/2009 Page 3 of 12 to him as the same is practically and legally not possible. The plaintiff has also taken a stand that sub-divided plot of 100 sq. yards would not fetch the same market price as the undivided suit property would otherwise attract. The plaintiff has also taken a stand that if this proposal is accepted then the defendant would stand to benefit as he would be getting 100 sq.yds with his adjacent property of 200 sq. yards. The plaintiff has also taken a stand that as per the notice issued by Ministry of Urban Affairs, sub-division of plots is not permissible. Contesting the third suggestion of jointly raising a construction project, the stand of the plaintiff is that both the parties are quite aged, being 82 and 84 years of age, respectively, and at this advanced stage of their life it cannot be expected of them to raise a construction project . The plaintiff has also taken a stand that the parties have been seriously litigating against each other since 2009 and there is no harmony between them to raise such a joint construction project.
7. I have heard the learned counsel for both the parties and given my due consideration to the arguments advanced by them in support of their respective pleas.
8. Vide orders dated 21st January, 2010, a preliminary decree of partition with respect to the subject property was passed by this CS(OS) 1254/2009 Page 4 of 12 Court based on the admitted stand of both the parties having one-half share each in the suit property. For suggesting partition of said property by metes and bounds, this Court appointed Mr. Jayant K. Mehta as a Local Commissioner. Vide his report dated 26th April, 2010 the Local Commissioner after taking into consideration the suggestions given by the Architect Mr. Siddharth Chaturvedi gave his opinion that keeping in view the existing structure of the property design and the current building norms it may not be possible to exactly divide the property by metes and bounds. The Local Commissioner also gave various suggestions to partition the said property between the plaintiff and the defendant. Vide separate order passed by this Court objections filed by the plaintiff against the report of the Local Commissioner dated 26.4.2010 had been dismissed. This Court while dealing with IA No. 902/2011 had passed a detailed order dated 25th April, 2011 taking into consideration all the suggestions given by the Local Commissioner and ultimately reached to the conclusion that the said property is not capable of partition by metes and bounds between the parties in the exact ratio of 50% and, therefore, in such circumstances the most appropriate course of action would be to direct the sale of suit property. Vide IA No. CS(OS) 1254/2009 Page 5 of 12 902/2011 moved by the plaintiff under Sections 2 and 3 of the Partition Act, the plaintiff gave a proposal to purchase the share of the defendant and considering the fact that there being no request from any of the parties for the sale of the suit property amongst the co- sharers, the request of the plaintiff for purchasing the share of the defendant could not be entertained, therefore, this Court treated the said application moved by the plaintiff under Section 2 of the Partition Act proposing sale of the said property and on the request made by the counsel for the defendant the reply filed by the defendant to the said application as an application under Section 3 of the Partition Act for the purchase of the share of the plaintiff in the suit property. In order to decide the said applications of the plaintiff and the defendant, the Court directed the Local Commissioner to suggest the current valuation of 50% share which the plaintiff has in the suit property. Court also directed the Local Commissioner to take the assistance of an architect for the purpose of giving his report in compliance with the said direction. The Court also directed the Local Commissioner to keep in mind the offer given by the plaintiff to buy out the share of the defendant at Rs. 2 crores. The Local Commissioner, Mr. Jayant K. Mehta, submitted his report vide report CS(OS) 1254/2009 Page 6 of 12 dated 26th July, 2011. Objections to the said Local Commissioner report were filed by the defendant vide IA No. 4172/2012 and the same have been dismissed by this Court by a separate order.
9. It is pertinent to note here that vide order dated 26th October, 2009 on the joint request of both the parties the matter was sent to Mediation and Conciliation Centre for possible settlement of disputes between the parties. The mediation efforts did not fructify as is evident from the report dated 24.11.2009 submitted by the Mediation and Conciliation Centre. This matter was sent again by this Court to the Mediation and Conciliation Centre to bring out a settlement between the parties. The Court also directed that senior Mediator be appointed by the Mediation Centre to mediate between the parties, but second time also the mediation efforts resulted in failure. With the two interventions by the Mediation and Conciliation Centre of this Court, it is hard to believe that the suggestions being advanced by the defendant through the present application would not have been discussed between the parties before the Mediator. The detailed order passed by this Court vide order dated 25.4.2011 further amplifies that the stage of entertaining the said suggestions has already gone, once the Court had proceeded to consider the application moved by the CS(OS) 1254/2009 Page 7 of 12 defendant under Section 3 of the Partition Act and the application moved by the plaintiff under Section 2 of Partition Act. The plaintiff then had offered an amount of Rs. 2 crores to buy out the share of the defendant in the subject property and after the valuation of the property given by the valuer at Rs. 8,15,50,000 the plaintiff has raised his offer from Rs. 2 crores to Rs. 4 crores for buying out the 50% share of the defendant in the said property. On the other hand, the defendant has challenged the valuation given by the valuer at Rs. 8,15,50,000/- as highly exaggerated and fanciful. Simultaneously, the defendant has also made an offer to buy out the plaintiff's share in the suit property at Rs. 2 crores with a view to buy peace and with intendment to retain the said property which is contiguous to his family property bearing No. F-12, Lajpat Nagar-III, New Delhi - 110024. It would be thus seen that the plaintiff has given an offer at Rs. 4 crores to buy out the 50% share of the defendant while the defendant in his application under Section 151 CPC has extended the offer to buy out 50% share of the plaintiff at Rs. 2 crores. As per the report submitted by the valuer, he has valued the entire suit property as a single unit at Rs. 8,15,50,000/- and valued 1/2 interest in the suit property at Rs. 4,07,75,000/-. As has been stated above, the plaintiff CS(OS) 1254/2009 Page 8 of 12 has agreed to accept the valuation of the property as has been assessed by the valuer but the defendant has raised a serious exception to the said valuation. There has thus arisen a wide gap between the price offered by the plaintiff of 50% share of the defendant and the price offered by the defendant of the 50% share of the plaintiff and no possibility can be seen to bridge the said gap. The plaintiff has already prayed to direct the sale of the property by public auction and to the Court also no other solution is seen more beneficial and equitable to serve the best interest of the parties who are already at the advance stage of 82 and 84 years respectively. The above view finds support from the case R. Ramamurthi Iyer v. Raja v. Rajeshwara Rao (1972) 2 SCC 721, in which the Supreme Court observed as under
"...The scheme of section 2 and 3 is that if the nature of the property is such or the number of shareholders is so many or if there is any other circumstance and a division of the property cannot reasonably or conveniently be made the court can in its discretion, on the request of any of any of the shareholders interested individually or collectively to the extent CS(OS) 1254/2009 Page 9 of 12 of one moiety or upwards, direct a sale of the property and distribute the proceeds amongst the shareholders..."
The same view has been reiterated in Rani Aloka Dudhoria And Others V. Goutam Dudhoria And Others, (2009) 13 SCC 569 in which the Supreme Court after referring to the above mentioned case and also relying on the cases Sathi Lakshmana KC v. P.C. Mohandas, (2008) 4 KLT 401 and Rukmani v. Uday Kumar, ILR 2008 Kant 13, has held that "For passing of order in terms of section 2 of The Partition Act, 1893 in relation to sale of properties involved in partition suit instead of division thereof, what is necessary is that there should be a request in that regard from a shareholder; a formal prayer in that regard may not be necessary; a positive finding that the property is incapable of division by metes and bounds and that the property cannot be reasonably and conveniently be partitioned, would not be necessary."
10. In the light of the aforesaid discussion, the court dismisses the present application filed by the defendant and directs the sale of the subject property by public auction.
CS(OS) 1254/2009 Page 10 of 12
11. This Court accordingly appoint Shri Anurag Aggarwal, Advocate (M) 9810059350 as Local Commissioner to conduct the auction of the property so as to get highest bid for the property. The Local Commissioner shall invite the bid by public notice in national dailies having a wide circulation. Liberty is given to both the parties or their authorized representatives/nominees to participate in the bid. The fee of the Local Commissioner is tentatively fixed at Rs. 1,00,000/- apart from other expenses. Both the parties shall bear in equal proportion the fee of the Local Commissioner and other expenses. The parties shall also deposit a tentative amount of Rs. 1,00,000/- with the Local Commissioner towards the miscellaneous expenses. The Local Commissioner shall file his report within a period of three weeks from the date of this order.
List this matter on 19.11.2012.
KAILASH GAMBHIR, J th 09 August, 2012 rkr CS(OS) 1254/2009 Page 11 of 12 CS(OS) 1254/2009 Page 12 of 12