Delhi District Court
By This Common Order vs R K Jain on 27 May, 2011
ID No.02401C0844482006
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
Execution No.79/2008
Kimti Lal Jain ..............Decree Holder
Versus
R K Jain .............Judgment Debtor
O R D E R
1. By this common order, I shall dispose of the objections filed by the judgment debtor (JD) under order 21 Rule 58 of Code of Civil Procedure, 1908 (CPC) (the objectionI) and by the decree holder (DH) under Order 21 Rule 65 and 66 read with Section 151 of CPC (the objectionII) because they involve the common discussion.
2. Brief facts relevant for the disposal of the objections are that JD (the plaintiff) filed a suit for partition against DH (the defendant) in respect of plot admeasuring 225 sq. yards situated at 45, Arihant Nagar, Punjabi Bagh, New Delhi (the suit plot). Vide judgment dated 04.05.2005, DH and JD were held entitled to one half share in the suit plot and it was directed that the suit plot should be sold by the parties in the open market at best available within a period of 03 months from that day and the parties should apportion the sale proceeds in the ratio of 50 % after meeting out the 1/16 Kimti Lal Jain vs. R K Jain statutory liability if any. It was further held that if the defendant (DH) failed to cooperate with the plaintiff (JD) in selling the suit plot within the stipulated period of 03 months then JD should be entitled to sale the suit plot himself and deposit the share of DH with the court for its payment to him. On deposit of the deficit court fee, the decree was drawn on 11.05.2005. Admittedly, the suit plot was not sold within the period of three months. Subsequently, DH filed a suit for permanent and mandatory injunction on 07.06.2006. Vide order dated 05.08.2006, the said suit was disposed of by the court of Shri Shailender Malik, Civil Judge, Delhi. Subsequently, on 16.09.2006, DH filed the present execution petition.
3. In the present execution petition, on 02.02.2007, JD entered into appearance and sought time to file the reply to the execution petition. On 13.04.2007, JD filed the objectionI wherein it is stated that since it was he who filed the suit for partition wherein the decree was passed in his favour and against DH, therefore, DH could not file any execution petition. It is also stated that since DH did not cooperate with JD for sale of the suit plot, hence, on expiry of the period of 03 months, he had the exclusive right to sale the suit plot. As such, the present execution petition is not maintainable and may be dismissed.
4. During the pendency of the present execution petition and the objectionI, JD sold the suit plot on 19.10.2007. Being aggrieved by the same, DH filed the objectionII on 31.07.2008. In the objection - II, it is stated that on 06.05.2008, DH came to know that JD had already sold the suit plot on 2/16 Kimti Lal Jain vs. R K Jain 19.10.2007 and also about deposition of 50 % share of DH in the court of Shri S K Jain, Ld. ADJ, Delhi. According to JD, he served a notice dated 25.08.2005 upon DH which he failed to reply. Therefore, he sold the suit plot for Rs.35,00,000/ on 19.10.2007. DH denied receipt of the said notice and stated that AD card was not signed by him. It is stated that despite repeated requests of DH, JD had not come forward to sale the suit plot in terms of the decree dated 11.05.2005. It is also stated that on the one hand, JD was participating in the present execution petition and also filed the objection I, while on the other hand, he sold the suit plot on 19.10.2007 despite the fact that on 04.10.2007, he wrote a letter to JD disclosing his intentions to sale the suit plot. It is also stated that the suit plot falls in category E and according to the applicable circle rates, the suit plot was sold at a price much below the market value. In fact, the suit plot was sold to a company whose management is closely related to the counsel for JD. As such, the said transaction is nonest in the eyes of law. Hence, it is prayed that the sale of the suit plot be held illegal. It is also prayed that the court auctioneer be appointed to sale the suit plot in compliance of the decree and the sale proceeds be shared equally by the parties.
5. In response to the objectionII, JD filed the reply and denied each and every averment made by DH. It is stated that DH had not come forward to sale the suit plot. Accordingly, JD issued a legal notice dated 25.08.2008 which was duly served upon DH. It is also stated that after three months of passing the judgment, JD was entitled to dispose of the suit plot due to non cooperation of DH. Further, the date when the suit plot was sold, there was 3/16 Kimti Lal Jain vs. R K Jain no order of attachment or stay against disposal of the same. Hence, it is prayed that the objectionII may be dismissed.
6. On the basis of the pleadings vide order dated 21.03.2009, the Ld. Predecessor of this court framed the following issues :
(1) Whether the sale of the plot in question i.e. bearing no.45, Arihant Nagar, Punjabi Bagh, New Delhi by the judgment debtor to M.s Protech Coatings Private Ltd. Company having its registered office at A36, 3rd Floor, Shankar Garden, Vikas Puri, New Delhi - 110 018 is illegal and invalid in view of the decree dated 04.05.2005 ? (Onus to proof upon the DH) (2) Whether the sale of the plot during the pendency of the execution petition has been in violation of the existing law and rules and has been deliberately done in order to render the execution petition infructuous on account of severe under valuation of the plot in question which is less than the circle rate ? (Onus of proof upon the DH) (3) Whether the decree holder had not co operated with JD in sale of the plot and the sale by JD dated 19.10.2007 is legal and valid ? (Onus to proof upon JD) (4) In case if the issue no.1 and 2 are decided 4/16 Kimti Lal Jain vs. R K Jain in affirmative, what would be its effect ?
7. DH examined himself as DHW1 and his affidavit in evidence is Ex.DHW1/A. He relied upon the Order dated 07.08.2004 Ex.DHW1/1, Agreement dated 09.09.2004 Ex.DHW 1/ 2, receipt dated 09.09.2004 Ex.DHW 1/3, letter dated 13.03.2008 sent by DH to JD Ex.DHW 1/ 4 , postal receipt Ex.DHW 1/5, receipt form issued by Finance Officer, Publication Department Ex. DHW 1/6, copy of the gazette notification Ex. DHW1/7, letter dated 22.08.2008 written by DH's counsel to the Post Master, Tis Hazari Courts Ex.DHW 1/8, letter dated 25.09.2008 issued by Department of post Ex.DHW 1/9.
8. He also examined Shri Ajay Jain as DHW2. JD failed to cross examine the said witness despite given opportunities.
9. JD examined himself as JDW1 and his affidavit in evidence is Ex.JDW1/A. Shri Sharafat Ali Khan, UDC, DDA Cooperative Cell was examined as JDW2. Shri Ram Murti Gupta, Public Relation Inspector (Post) was examined as JDW3.
10. JD relied upon legal notice dated 25.08.2005 which is Ex.DHW1/JD1, AD Card which is Ex. DHW 1/JD2, copy of the judgment dated 04.05.2005 is ExDHW1/JD3, copy of decree dated 11.05.2005 which is Ex.DHW1/JD 4, copy of the plaint which is Ex.DHW1/JD6, copy of written statement which is Ex.DHW1/JD7. Letter issued by the department of post is 5/16 Kimti Lal Jain vs. R K Jain Ex.JDW1; letter dated 02.05.2006 sent by JD to Director of Societies is Ex.JDW2/1; letter dated 05.06.2006 issued by DDA is Ex.JDW 2/2; letter dated 11.01.1988 is Ex.JDW2/3 ; letter dated 09.11.2006 sent by DH to DDA is Ex.JDW2/4; letter dated 12.03.2008 sent by DH to DDA is Ex.JDW 2/5; letter dated 13.03.2008 sent by DH to DDA is Ex.JDW2/6 and letter dated 22.08.2008 sent by DH through his counsel to DDA is Ex.JDW2/7 .
11. I have heard the ld. Counsels for the parties and have perused the material available on record.
ISSUE No.1 to 3
12. Onus to prove the issues no. 1 and 2 was on the DH while the onus to prove the issue no. 3 was on JD. Issues no. 1 to 3 are taken up together because they involve the common discussion.
13. In the objectionI, JD challenged the competency of DH to file the present execution petition and pleaded that since it was he who filed the suit for partition wherein the decree was passed in his favour and against DH, therefore, DH could not file any execution petition. As such, the present execution petition is not maintainable. Admittedly, the decree was passed in a suit for partition filed by JD and it was held that DH and JD are entitled for one half share each in the suit plot. It was also ordered that the sale proceeds of the suit plot shall be divided between the parties in equal proportion. It is an admitted fact that on 16.09.2006, when the present 6/16 Kimti Lal Jain vs. R K Jain execution petition was filed by DH, the suit plot had not been sold in compliance of the decree. Since the decree remained unsatisfied, hence, DH being the beneficiary under the decree and also as an aggrieved party for non satisfaction of the same filed the present execution petition. Therefore, in my opinion, DH was competent to seek the execution of the decree by way of the present petition. Therefore, there is no substance in the said plea of JD. Hence, it is held that DH is competent to file the present execution petition.
14. Now, the first question arises whether the sale of the suit plot done by JD was in conformity with the judgment and the decree.
15. Counsel for DH pleaded that despite the best efforts made by the DH, JD avoided to cooperate in selling of the suit plot. On the contrary, to make the decree and the present execution petition infructuous, JD sold the suit plot against set procedure of law that too at a price much below the market value of the suit plot. In reply, counsel for JD pleaded that in the said suit, DH was proceeded exparte at the stage of his evidence, therefore, it was not the duty of JD to inform DH. Counsel for JD also pleaded that JD sent a legal notice dated 25.08.2005 Ex.DHW1/JD1 to the DH, who had failed to reply the same. Therefore, on expiration of 03 months from the date of judgment, JD had exclusive right to sale the suit plot. It is also pleaded that JD was not required to sale the suit plot in the open market. It is also pleaded that there was no attachment order under Order 21 Rule 54 of the CPC, hence, there was no need to follow the provisions of order 21 Rule 65 and 66 of CPC.
7/16 Kimti Lal Jain vs. R K Jain
16. In the present case, the decree was passed in a suit for partition filed by JD against DH and they were held entitled for a share of 50 % each in the suit plot. As per the decree, firstly, DH had to cooperate with JD to sell the suit plot in the open market at best available price. In case, DH failed to cooperate with JD only then he had the right to sale the suit plot at his own. No doubt, after the period of three months, JD was given the right to sale the suit plot but the same was subject to condition that DH must have failed to cooperate with JD in his efforts to sale the suit plot jointly. It is the own case of JD that at the stage of evidence, DH failed to appear in the said suit and was proceeded exparte. Admittedly, DH had not appeared in the said suit since thereafter. Therefore, the onus was heavily upon JD to prove that DH had the knowledge of the judgment and the decree and despite that he had not taken the steps for sale of the suit plot. Even in his evidence, though JD deposed that he contacted DH but he failed to mention any specific date, month and year when he contacted him. As such, JD has failed to prove that within 03 months from 04.05.2005, DH had the knowledge of the said judgment and the decree or he himself made the efforts to intimate DH about the said condition so that the suit plot could be sold in terms thereof. JD much relied upon letter dated 25.08.2005 Ex. DHW1/JD1 and pleaded that he had informed DH however, he had not cooperated with him. JD has not filed any postal receipt to show that the letter dated 25.08.2005 was dispatched to DH. Further, the onus to prove that the AD card Ex.DHW1/JD2 bears the signature of DH was upon JD which he failed to prove. Regarding service of the said letter, JD No.3 deposed that the 8/16 Kimti Lal Jain vs. R K Jain concerned record had been destroyed and he cannot identify the stamp of the post office in encircled "A" on Ex.DHW1/JD2. He also deposed that he cannot say from the said AD card whether the same was served upon DH. Hence, it is not proved that the said letter was served upon the DH. Even otherwise, the said letter itself bears the date 25.08.2005 i.e. after the expiry of the period of three months and is of non consequence to take the advantage of 03 months as pleaded. JDW1 admitted fact that the original documents of the suit plot were in his possession. Therefore, in absence of the same, it cannot be expected from DH to take the effective steps for sale of the suit plot. It implies that DH was not aware of the judgment and decree and the condition mentioned therein, as such, no question of any cooperation of DH arose at that stage. As such, JD has failed to prove that he fulfilled the pre condition to become entitled to sale the suit plot exclusively.
17. Now the question arises whether after the period of 03 months from the date of judgment, JD had the absolute right to sale the suit plot at any price. In the judgment, the option was given to the parties to sale the suit plot in the open market so that it could fetch the best price which could be shared equally by them. Reading the judgment as a whole nowhere reveals that the conditions for sale in the open market and the best price were put by the trial court only when the suit plot was to be sold jointly and not in case when JD would sale the suit plot at his own. Further, if the plea of JD is accepted then it would amount to as if the trial court had given him the liberty to sale the suit plot after three months at a throw away prices. But said interpretation is against the true intent of the judgment and the decree.
9/16 Kimti Lal Jain vs. R K Jain Rather, JD1 in his deposition admitted that the trial court directed to sale the suit plot in the open market at the best available price. Hence, there is no substance in the plea of JD that he had a exclusive right to sale the suit plot at any price that too not in the open market, on expiry of 03 months from the date of judgment.
18. Now the question arises whether JD sold the suit plot in the open market at the best price available at that time. DH examined himself and pleaded that in the year 2004, the parties entered into a settlement whereby DH agreed to pay Rs.20 lacs as one half share to JD. Subsequently, another agreement was entered into wherein DH agreed to pay Rs.27 lacs towards one half share. Not only that he paid Rs. 1 lac towards the earnest money to JD which was accepted by him. JD admitted the agreement Ex.DHW 1/ 2 and value of the one half share as mentioned by DH. He also admitted the fact that he received the earnest money vide receipt Ex.DHW1/3. His only plea is that the said agreement could not be materialised. It is also an admitted fact that JD had forfeited the earnest amount paid by DH. As such, even if the agreement could not materialized but the fact remains that in the year 2004, the value of one half share in the suit plot was Rs.27 lacs i.e. the total value of the suit plot was Rs.54 lacs. It is nowhere the case of JD that after the year 2004, the prices of the propertiess had come down in the market. Rather, JD showed his ignorance whether after the year 2004, there was exclanation in the real estate prices and the value of the suit plot in the open market was above Rs.1 crore. As such, an adverse inference can be drawn against him. Therefore, it cannot be believed that on 19.10.2007, the market 10/16 Kimti Lal Jain vs. R K Jain value of the suit plot was Rs.35 lacs. JD placed much reliance on the circle rates issued by the MCD and pleaded that as per the circle rate, the market value of the suit was Rs.35 lacs. Needless to say that the circle rates are for mere guidance in ascertaining the value of the properties and provide only the lower limit regarding the value of the properties in the particular area and not the higher limit. Hence, by fixing the value exactly as per the circle rates it cannot be held that the same was the best price for the suit plot in the market on 19.10.2007. Therefore, it can be held that Rs.35 lacs was not the best price of the suit plot in the open market on 19.10.2007.
19. Now question arises whether the procedure adopted by JD to sale the suit plot was fair in nature. In his testimony, JDW1 admitted that the trial court directed to sale the suit plot in the open market at the best available price; he had not invited any quotation nor gave any publication in the newspaper about sale of the suit plot after the judgment and before sale of the same; he did not even ask from the property dealer or the customers about the price of the suit plot; and he had not conducted the local survey regarding the market value of the suit plot. He again deposed that he contacted one property dealer to ascertain the market value of the suit plot whose name was Ajay Jain however, he failed to mention the date and month of the meeting. In the present case, Ajay Jain had deposed as DHW2 to the contrary. JDW1 also deposed that apart from the present purchaser namely, M/s Protech Coatings Pvt. Ltd., Company, he contacted other clients also. However, he failed to mention a single name or the address of any such client. He further deposed that prior to sale he informed DH, however, he 11/16 Kimti Lal Jain vs. R K Jain failed to mention the date and the month when he informed him. He also deposed that the purchaser contacted him along with a mediator in the year 2007 but he did not remember the date and month of the meeting. Even he did not know the said mediator. He also deposed that the purchaser did not give any quotation for the purchase of the suit plot. He also deposed that he did not remember how much price he quoted for the sale. He also showed his ignorance what was the best price at that time in 2007. Admittedly, there was no urgency for sale of the suit plot. It is also not the case of JD that he was in financial crises that's why he wanted to sale the suit plot at any price. As such, it is quite strange that JD sold the suit plot however, he himself was not aware as to how much price he quoted and what was the market value. Not the least, JD deliberately avoided to answer the questions regarding the market value of the suit plot and manner in his conduct the said sale. Therefore, an adverse inference can be drawn against him. Hence, it can be held that the procedure adopted by JD to sale the suit plot was not fair.
20. To dispose of the present objections, it is inevitable to discuss the conduct of the parties. Case of JD is that since DH had not cooperated with him to sale the suit plot in the open market within 03 months of the judgment, therefore, he got the exclusive right to sale the suit plot after expiry of the three months. As discussed above, JD has failed to prove that he made any effort to contact DH within the period of three months to sale the suit plot. JD has also failed to prove as to when he contacted the DH for the sale of the suit plot even after the expiry of the 03 months from the date of judgment. Not the least, in his testimony he avoided to give the answers 12/16 Kimti Lal Jain vs. R K Jain regarding the said questions or gave very vague replies. Even in his testimony, he gave the vague replies and also showed his ignorance about the manner in which he transacted with the purchaser to sale the suit plot. Not the least, he showed his ignorance as to the sale consideration also. He even showed his ignorance about the date, month and year when he issued the notice to DH. To show the conduct of the DH, counsel for JD pleaded that DH in order to obtain the exparte order furnished the wrong address of JD. In his cross examination, JD admitted that when he filed the suit, he was residing at the address mentioned in the plaint, however, he changed the said address after two months. Again said, he did not remember when he shifted from the said place. It implies that even during the pendency of the said suit, JD shifted from the address mentioned in the plaint. Admittedly, till the disposal of the suit, JD had not furnished his fresh address to the trial court. It is also an admitted fact that DH filed the present execution petition against JD mentioning the same address which he mentioned in the plaint. It is nowhere the case of JD that he ever furnished his fresh address to DH at any point of time. Rather, it is the DH himself who furnished the fresh address of JD on the court record and get he service effected upon him in the present execution petition. As such, JD has failed to prove that it was DH who furnished his wrong address to the court. On the contrary, it is JD himself who concealed his correct address from the trial court. Therefore, there is no substance in the said plea of JD. Subsequently, on 13.04.2007, JD filed the objections under Order 21 Rule 58 of CPC and contested the same. When the said objections were pending JD sold the suit plot on 19.10.2007. Though on 23.05.2007, counsel for JD informed the court that he was in the 13/16 Kimti Lal Jain vs. R K Jain process of selling the suit plot but simultaneously JD was directed to appear in person to make the statement. However, the statement was not tendered. The matter was fixed for hearing on 17.10.2007 and counsel for JD appeared however, nothing was mentioned about the sale of the suit plot. Even on 15.02.2008 and 27.03.2008 it was not disclosed to the court that the suit plot had been sold.
21. On the other hand, admittedly, DH filed a suit for permanent and mandatory injunction against JD to seek enforcement of the decree. Thereafter, the said suit was disposed of. Consequently, DH filed the present execution petition. In the present execution petition, DH tried to serve JD. However, as discussed above, since JD himself had not disclosed his fresh address in the suit filed by him, hence, he could not be served. Later, DH furnished the fresh address of JD and he was served and appeared on 02.02.2007. DH relied upon letter dated 13.03.2008 Ex.DHW1/ 4 requesting JD to sale the suit property jointly. It is not the case of JD that he had not received the said notice. Rather, JD in his cross examination showed his ignorance as to whether DH asked him to sale the suit plot vide letter Ex.DHW1/ 4. Hence, it can be held that JD received the said letter. Despite that JD had not come forward. Not the least, JD had not responded to the effect that he had already sold out the suit property on 19.10.2007. In view of the foregoing discussions, it can be held that JD not only tried his level best to conceal the factum of sale of the suit plot but also sold out the suit plot in mischievous manner to the puchaser i.e. a company whose management is closely related to the counsel for JD. On the other hand, DH had been 14/16 Kimti Lal Jain vs. R K Jain making the efforts to sale the suit plot in terms of the decree.
22. In view of the foregoing discussions, it can be held that the sale of the suit plot by JD in favour of M/s Protech Coatings Pvt. Ltd. (the purchaser) is illegal and invalid in view of judgment and decree. It is also held that JD deliberately entered into the transaction dated 19.10.2007 at a price much below the market value of the suit plot to make the decree as well as the present execution petition infructuous. Further, JD has miserably failed to prove that DH had not cooperated with JD in sale of the suit plot and the sale by JD on 19.10.2007 is legal and valid. Therefore, the issues no.1 and 2 are decided in favour of DH and against JD. Issue no.3 is decided against JD and in favour of DH.
ISSUE NO.4
23. Admittedly, JD received the notice of present execution petition; filed the objectionI; and when the same was pending for disposal, he sold the suit plot without intimation and permission of the court. Therefore, the said transaction is hit by the doctrine of lis pendence. Hence, there is no substance in the plea of the counsel for JD that since there was not stay against the suit plot, hence JD had absolute right to sale the suit plot. As discussed above, admittedly, there was no urgency for sale of the suit plot. It is also not the case of JD that he was in financial crises that's why he wanted to sale the plot at any price. JD has failed to explain the hurry in selling the suit plot during the pendency of the petition. It is the specific case of JD that the suit plot was sold to a company whose management is closely related to the 15/16 Kimti Lal Jain vs. R K Jain counsel for JD. No suggestion to the contrary is given.
24. In view of the foregoing discussions and findings given in issue no. 1 and 2, it can be held that the only object of JD to enter into the sale transaction with the purchaser on 19.10.2007 was to make the decree as well as present execution petition infructuous. Therefore, the sale of the suit plot by JD in favour of the purchaser i.e. M/s Protech Coatings Pvt. Ltd. is liable to be held as null and void and be set aside. Issue no.4 is decided accordingly.
25. In view of the findings given on the issue no.1 to 4, the objectionI filed by JD is dismissed. The ObjectionII filed by the DH is allowed. Consequently, the sale transaction regarding the plot admeasuring 225 sq. yards situated at 45, Arihant Nagar, Punjabi Bagh, New Delhi entered into between JD and M/s Protech Coatings Pvt. Ltd. on 19.10.2007 is held null and void and therefore, is set aside.
ANNOUNCED IN THE OPEN COURT, Today i.e. on 27th of May, 2011.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
27.05.2011
16/16 Kimti Lal Jain vs. R K Jain
17/16 Kimti Lal Jain vs. R K Jain