Delhi High Court
Bhiku Ram Jain And Others vs Anil Ahmed Rushdie on 24 December, 2019
Equivalent citations: AIRONLINE 2019 DEL 2133
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th December, 2019
+ CS(OS) No.994/1977
BHIKU RAM JAIN & ORS. .... Plaintiffs
Through: Mr. A.S. Chandiok & Mr. Ravi Gupta,
Sr. Advs. with Mr. Lalit Gupta, Mr.
Siddharth Arora, Advs. for Plaintiff
No.1(c) along with plaintiff No.1(c) in
person
Versus
ANIS AHMED RUSHDIE ......Defendant
Through: Mr. B.B. Gupta, Mr. Sanjeev
Sindhwani, Sr. Advs. with Mr. Sanjay
Sharma, Mr. Udai Khanna & Mr.
Apoorv Gupta, Advs. for 1D.
Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Rajat Bhala, Advs. for Mr. Ashok
Kumar, proposed buyer.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This order determines the market price of property ad-measuring 5373
sq. yds. bearing No.4 Flagstaff Road, Civil Lines, Delhi, as directed by the
Supreme Court vide judgment dated 3rd December, 2012 in Civil Appeal
No.8653/2012 reported as Satya Jain Vs. Anis Ahmed Rushdie (2013) 8
SCC 131 and as clarified vide subsequent order dated 8th May, 2013 reported
as Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 147.
2. It is deemed appropriate to give a brief history of the proceedings:
(A) This suit was filed as far back as in the 1977, seeking specific
performance of an Agreement to Sell dated 22nd December,
1970 by the deceased defendant no.1 Anis Ahmed Rushdie in
CS(OS) No.994/1999 Page 1 of 30
favour of deceased plaintiff no.1 Bhiku Ram Jain, of property
ad-measuring 5373 sq. yds. bearing No.4 Flagstaff Road, Civil
Lines, Delhi, for a total sale consideration of Rs.3.75 lacs, out of
which the plaintiff had paid a sum of Rs.50,000/- as earnest
money. Though the Agreement to Sell was by the sole
defendant Anis Ahmed Rushdie in favour of plaintiff no.1
Bhiku Ram Jain but in this suit for specific performance, the
two sons of plaintiff no.1 Bhiku Ram Jain viz. Narender Kumar
Jain and Arvind Kumar Jain were also impleaded as plaintiffs
no.2&3, pleading that the plaintiff no.1 under the Agreement to
Sell, of which specific performance was sought, was entitled to
have the sale deed executed in his own name or in the name of
his nominee / nominees and the plaintiff no.1 had nominated the
plaintiffs no.2 and 3 for execution of the sale deed. During the
pendency of proceedings, the plaintiff no.1 died and his
daughters and sons including plaintiffs no.2 and 3 substituted in
his place. Some of the said sons and daughters of the plaintiff
no.1 have also since died and their heirs have also been
substituted. Similarly, during the pendency of the suit, the sole
defendant Anis Ahmed Rushdie also died and was substituted
by his heirs viz. Mr. Salman Rushdie, Mrs. Nabeelah S. Shah,
Mrs. Nevid Hartenstein, Mrs. Samin Rushdie Momen. The last
amended memo of parties on record is of 12th December, 2012.
(B) The suit was allowed on 5th October, 1983 and a decree for
specific performance passed, in favour of the plaintiffs and
against the defendant, to execute and register the sale deed in
CS(OS) No.994/1999 Page 2 of 30
pursuance to Agreement to Sell dated 22nd December, 1970. It
was clarified, that the plaintiffs will have a right to either get the
sale deed executed in favour of plaintiff no.1 or plaintiffs no.2
and 3. The decree further provided that the balance sale
consideration of Rs.3.25 lacs shall be payable at the time of
execution of the sale deed.
(C) The defendant filed RFA (OS) No.11/1984 in this Court and
which appeal was allowed on 31st October, 2011 by the
Division Bench of this Court and the judgment and decree dated
5th October, 1983 of the Single Bench of this Court was set
aside and the suit dismissed. During the pendency of RFA(OS)
No.11/1984, vide order dated 11th May, 2011, one Amit Jain
was also impleaded as defendant no.2 and is shown as such in
the last amended memo of parties dated 12th December, 2012
aforesaid.
(D) The plaintiffs preferred Special Leave Petition (SLP) to the
Supreme Court which was granted and the Supreme Court vide
judgment dated 3rd December, 2012 in Civil Appeal
No.8653/2012 reported as Satya Jain Vs. Anis Ahmed Rushdie
(2013) 8 SCC 131, though allowed the suit for specific
performance filed by the plaintiffs, directed that the sale deed to
be executed by the defendant in favour of the plaintiffs will be
for market price of the property as on the date of the judgment
of the Supreme Court. As no material whatsoever was available
to enable the Supreme Court to make a correct assessment of
CS(OS) No.994/1999 Page 3 of 30
the market value of the property on that date, the Single Bench
of this Court was directed to undertake the said exercise "with
such expedition as may be possible in the prevailing facts and
circumstances".
(E) On receipt of judgment dated 3rd December, 2012 supra of the
Supreme Court, the suit was taken up by this Bench on 28 th
January, 2013.
(F) Supreme Court, vide subsequent order dated 8th May, 2013 in
IA No.325/2013 filed in the aforesaid Civil Appeal
No.8653/2012, clarified that the determination of market value
of the property in terms of the judgment dated 3 rd December,
2012 would be after affording an opportunity of being heard to
all the affected parties and after taking into account all relevant
facts and circumstances and that any party aggrieved by such
determination will be entitled to avail such remedies that may
be open in law to such party.
(G) Vide order dated 29th January, 2014, the proceedings were
posted before the Registrar General of this Court for holding an
enquiry regarding market value of the property in terms of the
Supreme Court judgment.
(H) Vide order dated 12th February, 2014, the Registrar General of
this Court directed the concerned Sub Divisional Magistrate
(SDM) to submit valuation report of the property in terms of the
order of the Supreme Court. In pursuance thereto, a report
dated 11th April, 2014 to the effect that "Mr. Narender Jain,
CS(OS) No.994/1999 Page 4 of 30
petitioner did not allow" the Tehsildar‟s team to measure the
property was presented. Subsequently, on 24th April, 2014,
valuation report dated 23rd April, 2014 was filed by the SDM,
reporting the total value of the property as Rs.51,51,85,000/-,
based on information and data document supplied by the owner
and physical verification and measurement. Vide same order
dated 24th April, 2014 of the Registrar General, ITCOT
Consultancy and Services Ltd. was nominated as the valuer to
ascertain the market value of the property.
(I) ITCOT Consultancy and Services Ltd. reported the value at
Rs.1,57,95,69,000/-.
(J) Vide order dated 22nd May, 2014, opportunity to file objections
to the valuation report was given.
(K). Vide order dated 14th July, 2014, an opportunity was given to
the parties to adduce evidence on the valuation of the property,
with both parties being also entitled to cross-examine SDM,
Civil Lines, Delhi and ITCOT Consultancy and Services Ltd.
with respect to their reports.
(L) The valuer of ITCOT Consultancy and Services Ltd. was cross-
examined by the counsels for the plaintiffs as well as by the
counsel for the defendant.
(M) The plaintiffs produced one valuer who was cross-examined by
the counsel for the defendant.
CS(OS) No.994/1999 Page 5 of 30
(N) The SDM, who had submitted the report in pursuance to
directions, aforesaid was also cross-examined by the counsel for
the plaintiffs. The counsel for defendant chose not to cross-
examine him.
(O) Though vide order dated 14th July, 2014 aforesaid, both parties
were directed to produce one witness only but the plaintiffs also
examined Mr. Narender Kumar Jain as PW-2 and who was
cross-examined by the counsel for the defendant.
(P) The defendant chose not to examine any witness.
(Q). The proceedings, after the recording of evidence on the aspect
of valuation had been concluded, were listed before this Bench
on 9th December, 2016 when the counsel for the plaintiff no.1(c)
/ plaintiff no.2 Narender Jain stated that the counsel appearing
for the legal heirs of defendant no.1 Anis Ahmed Rushdie was
appearing without any authority and the vakalatnama on the
basis of which the counsel was appearing was forged. It was
however enquired from the counsel for the plaintiff no.1(c) /
plaintiff no.2, how did that come in the way of this Court
proceeding with the determination of the valuation as directed
by the Supreme Court and the counsel was asked to argue.
However, the counsel for the plaintiff no.1(c) / plaintiff no.2
Narender Jain stated that he was not ready to address
arguments. Finding the objection taken by the plaintiff no.1(c) /
plaintiff no.2 Narender Jain to be dilatory and vexatious, while
adjourning the proceedings to 8th February, 2017, attention of
CS(OS) No.994/1999 Page 6 of 30
the counsel for the plaintiff no.1(c) / plaintiff no.2 Narender Jain
was invited to Section 28 of the Specific Relief Act, 1963.
(R) The plaintiff no.1(c) / plaintiff no.2 filed and got listed IA
No.1707/2017 for 8th February, 2017, seeking a direction to the
Registry of this Court to effect service of notice of pendency of
these proceedings on the legal heirs of deceased defendant no.1
Anis Ahmed Rushdie, inspite of the fact that their counsel was
appearing, contending that the counsel was appearing not at the
behest of legal heirs of defendant no.1 but at the behest of
purchaser (Fine Properties Pvt. Ltd. through its Director
Abhishek Gupta) of the property from the said legal heirs,
whose application for impleadment in these proceedings had
already been dismissed. It was again enquired from the counsel
for the plaintiff no.1(c) / plaintiff no.2 that for the purpose of
determination of valuation as directed by the Supreme Court
and since the defendants had not led any evidence on the aspect
of valuation, how did the authority of the counsel make a
difference especially when the plaintiff no.1(c) / plaintiff no.2
had not taken any objection to the cross-examination by the
same counsel of the witnesses on the aspect of valuation of the
plaintiffs and the valuer. The counsel for the plaintiff no.1(c) /
plaintiff no.2 stated that it was necessary to secure the presence
of the legal heirs of defendant no.1 for the purpose of execution
of sale deed conveying title of the property in favour of the
plaintiffs. It was however further enquired from the counsel for
the plaintiff no.1(c) / plaintiff no.2, whether not, even if the said
CS(OS) No.994/1999 Page 7 of 30
legal heirs did not appear, the sale deed could always be
executed under authority of this Court. The counsel for the
plaintiff no.1(c) / plaintiff no.2 was again asked to argue and on
his refusing to do so, while dismissing IA No.1707/2017 and
adjourning the hearing to 13th April, 2017, it was again observed
that such conduct of the plaintiffs would be taken into
consideration invoking the principles of Section 28 of the
Specific Relief Act; reference in this regard was made to
Hungerford Investment Trust Ltd. Vs. Haridas Mundhra
(1972) 3 SCC 684.
(S) The plaintiff no.1(c) / plaintiff no.2 preferred FAO(OS)
No.75/2017, against the order dated 8th February, 2017, notice
whereof was issued and hearing before this Bench deferred.
Ultimately, the said appeal was withdrawn on 17th August,
2017. However, the Division Bench in its order of the said date
has recorded that (i) during the hearings in the appeal, the
Division Bench had called upon the plaintiff no.1(c) / plaintiff
no.2 to address the Division Bench on the market value of the
property but this was not done; (ii) the Division Bench had also
put it to the plaintiff no.1(c) / plaintiff no.2 that he ought to
deposit at least the tentative amount which would be payable in
terms of judgment of the Supreme Court, whereupon the
plaintiff no.1(c) / plaintiff no.2 submitted that as on 4th
November, 2010, the valuation was to the tune of Rs.12.60
crores; (iii) it was however the contention of the counsel for the
legal heirs of defendant no.1 Anis Ahmed Rushdie that in terms
CS(OS) No.994/1999 Page 8 of 30
of circle rate of the properties as on 3rd December, 2012, the
property was valued at Rs.51 crores; and, (iv) that to test the
bona fides of the plaintiff no.1(c) / plaintiff no.2, the Division
Bench on 23rd May, 2017, had directed the plaintiff no.1(c) /
plaintiff no.2 to deposit a sum of Rs.15 crores in this Court and
time of eight weeks as sought by the plaintiff no.1(c) / plaintiff
no.2 was granted; however, the said order remained
uncomplied. The Division Bench in the circumstances, in the
order dated 17th August, 2017 observed that this Bench may
consider the implication of the non-compliance by the plaintiff
no.1(c) / plaintiff no.2 of the direction for deposit of Rs.15
crores.
(T) Hearing before this Bench was commenced on 13th February,
2018, when the counsel for the plaintiff no.1(c) / plaintiff no.2
argued, i) that the defendants themselves had entered into an
Agreement to Sell dated 4th November, 2010 for sale of the
entire property for a price of Rs.4.5 crores; going by the said
price, the market price as on 3rd December, 2012 should be
Rs.11.82 crores; ii) that ITCOT Consultancy Services Pvt. Ltd.
appointed by the Registrar General of this Court has reported
the valuation as on 3rd December, 2012 to be Rs.161 crores; iii)
that as per the Circle Rates, the value of the property as on 3rd
December, 2012 is about Rs.51 crores; iv) that the defendants
have not led any evidence qua the determination of market
value on 3rd December, 2012; v) that thus the market value be
determined at Rs.11.82 crores less the amounts for the other
CS(OS) No.994/1999 Page 9 of 30
peculiar factors. On specific enquiry, the counsel for the
plaintiff no.1(c)/plaintiff No.2 stated that considering the
peculiar factors, the valuation will come to about Rs.5 to 6
crores.
(U) Per contra, the counsel for defendant no.1D Mrs. Samin
Rushdie Momen, who alone appeared on 13th February, 2018,
argued i) that the Agreement to Sell dated 4th November, 2010
was in the circumstances prevalent at that time and which
depressed the price; and, ii) that ITCOT Consultancy Services
Pvt. Ltd. has reported the correct price and have further reported
that the depressed price would be about Rs.140 crores.
(V) On 13th February, 2018 it was enquired from the counsel for the
defendant no.1D, whether the defendant no.1D had any buyer
for the property for Rs.160 crores. The counsel for the
defendant no.1D stated that there was a buyer for Rs.145 crores.
Faced therewith, the counsel for the plaintiff no.1(c) / plaintiff
no.2, on 13th February, 2018, stated that if the buyer for Rs.145
crores was found to be a serious buyer, he will take instructions
from plaintiff no.1(c) / plaintiff no.2, whether the plaintiff
no.1(c) / plaintiff no.2 was willing to pay the price of Rs.145
crores for the property. The counsel for the plaintiff no.1(c) /
plaintiff no.2 however though contended that this was not the
procedure as per the mandate of the Supreme Court but was
unable to show why.
CS(OS) No.994/1999 Page 10 of 30
(W) Observing in the order dated 13th February, 2018, that the best
procedure for determining the market value of the property was
to determine whether any actual buyer was willing to purchase
the property for Rs.145 crores and while adjourning the hearing
to 8th March, 2018, the counsel for the defendant no.1D was
directed to bring the buyer for Rs.145 crores to this Court and to
also enquire from the said buyer whether the said buyer was
willing to deposit Rs.25 lacs in this Court as an element of his
seriousness.
(X) On 8th March, 2018, the counsel for the defendant no.1D stated
that the buyer who had earlier offered Rs.145 crores for the
property, in view of the falling price of real estate, was then
willing to offer only Rs.130 crores for the property on as is
where is basis / condition. It was also informed that the buyer,
Mr. Ashok Kumar, son of Sh. Chiranji Lal, resident of 19,
Farquhar Road, Birmingham was present in the Court and had
brought with him a demand draft of Rs.25 lacs in favour of the
Registrar General of this Court. The counsel for the plaintiff
no.1(c) / plaintiff no.2, after seeking instructions from his client
stated that this Court may proceed to hear arguments as the
plaintiff no.1(c) / plaintiff no.2 was not agreeable to offering
price of Rs.130 crores for the property. However, upon being
asked to argue, the counsel for the plaintiff no.1(c) / plaintiff
no.2 again sought adjournment. While so adjourning the hearing
to 4th April, 2018, the presence of the proposed buyer was
dispensed with.
CS(OS) No.994/1999 Page 11 of 30
(Y) On 4th April, 2018, the hearing was adjourned to 6 th April, 2018,
when the senior counsel for the plaintiff no.1(c) / plaintiff no.2
was heard and a narrative thereof dictated and a draft thereof
ordered to be provided to the counsels. Thereafter, on 11 th
April, 2018, the remaining arguments were heard and aide-
memoire of what transpired on that date in the Court was also
dictated and the draft thereof also ordered to be supplied to the
counsels, clarifying that the drafts dated 6th April, 2018 and 11th
April, 2018 were tentative, to serve only as aide-memoire with
no finality to be attached thereto.
(Z) During the hearings culminating in this order, the counsel only
for plaintiff no.1(c) who is also plaintiff no.2 i.e. Narender Jain
appeared on behalf of the plaintiffs. After this order was
reserved, an application was filed on behalf of plaintiff no.1(e)
Virender Jain, son of plaintiff no.1 Bhiku Ram Jain, not wanting
to be heard but only seeking all documents and which
application was allowed on 30th August, 2018.
3. I now record hereinbelow, with the assistance of the drafts dictated on
6th April, 2018 and 11th April, 2018, the respective arguments urged.
4. The senior counsel for the plaintiff no.1(c) / plaintiff no.2 argued, i)
that this suit was filed for specific performance of an Agreement of Sale
dated 22nd December, 1970 of sale of property No.4 Flagstaff Road, Civil
Lines, Delhi, admeasuring 4492.47 sq. mtrs. for a sale consideration of
Rs.3.75 lacs out of which Rs.50,000/- was paid by the plaintiff as advance;
ii) that the plaintiff, since prior to execution of Agreement to Sell, was in
CS(OS) No.994/1999 Page 12 of 30
possession of half of the property as tenant of the defendant; the other half of
the property was also let out to somebody else and in possession of that
tenant; the plaintiff as tenant and the other tenant are entitled to remain in
possession of the property as the tenancies are protected by the Delhi Rent
Control Act, 1958, with the annual rent paid by both the tenants being
Rs.6,708/- per annum; iii) that the suit was decreed for specific performance
by this Bench but in appeal preferred by the defendant thereagainst, the
decree was set aside; iv) that upon Supreme Court being approached,
Supreme Court by the judgments aforesaid held inter alia as under:
"28. The discretion to direct specific performance of an agreement and
that too after elapse of a long period of time, undoubtedly, has to be
exercised on sound, reasonable, rational and acceptable principles. The
parameters for the exercise of discretion vested by Section 20 of the
Specific Relief Act, 1963 cannot be entrapped within any precise
expression of language and the contours thereof will always depend on the
facts and circumstances of each case. The ultimate guiding test would be
the principles of fairness and reasonableness as may be dictated by the
peculiar facts of any given case, which features the experienced judicial
mind can perceive without any real difficulty. It must however be
emphasized that efflux of time and escalation of price of property, by itself,
cannot be a valid ground to deny the relief of specific performance. Such a
view has been consistently adopted by this Court. By way of illustration
opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and
more recently in Narinderjit Singh v. North Star Estate Promoters Ltd.
may be usefully recapitulated.
29. The twin inhibiting factors identified above if are to be read as a bar
to the grant of a decree of specific performance would amount to
CS(OS) No.994/1999 Page 13 of 30
penalizing the plaintiffs for no fault on their part; to deny them the real
fruits of a protracted litigation wherein the issues arising are being
answered in their favour. From another perspective it may also indicate the
inadequacies of the law to deal with the long delays that, at times, occur
while rendering the final verdict in a given case. The aforesaid two
features, at best, may justify award of additional compensation to the
vendor by grant of a price higher than what had been stipulated in the
agreement which price, in a given case, may even be the market price as on
date of the order of the final Court.
30. Having given our anxious consideration to all relevant aspects of
the case we are of the view that the ends of justice would require this court
to intervene and set aside the findings and conclusions recorded by the
High Court of Delhi in R.F.A.No.11/1984 and to decree the suit of the
plaintiffs for specific performance of the agreement dated 22.12.1970. We
are of the further view that the sale deed that will now have to be executed
by the defendants in favour of the plaintiffs will be for the market price of
the suit property as on the date of the present order. As no material,
whatsoever is available to enable us to make a correct assessment of the
market value of the suit property as on date we request the learned trial
judge of the High Court of Delhi to undertake the said exercise with such
expedition as may be possible in the prevailing facts and circumstances.
31. All the appeals shall accordingly stand allowed in terms of our
above conclusions and directions.";
v) that in pursuance to the aforesaid order, only the plaintiff has led evidence
and the defendant has not led any evidence; vi) that the defendant, during the
pendency of the proceedings aforesaid, on 4th November, 2010 executed a
sale deed with another person for sale of the entire property and also
executed a General Power of Attorney (GPA) in favour of the said purchaser,
CS(OS) No.994/1999 Page 14 of 30
for a total sale consideration of Rs.4.50 crores; vii) that the defendant, during
the pendency of the suit also, executed a Sale Deed dated 15th November,
2011 with respect to 836.12 sq. mtrs. equal to 1000 sq. yds. out of the total
property agreed to be sold to the plaintiff, for a sale consideration of Rs.2.20
crores; viii) that the defendant also executed another Sale Deed dated 21 st
November, 2011 of another portion of 418 sq. mtrs. equal to 500 sq. yds. for
a sale consideration of Rs.1.10 crores; ix) that as per consideration of said
sales, the sale consideration of the entire property would be Rs.11.82 crores
and there should be no difference between the price in November, 2011 and
the price in December, 2012 directed to be determined by the Supreme
Court; x) attention is drawn to the site plan at page 101 of the Convenience
Volume on record and it is shown that the size of the plot is irregular and the
same qualifies as shermukhi which is not considered auspicious for
residence; xi) that the locality in which the property is situated is residential
under the Master Plan / Zonal Plan; xii) that besides the aforesaid area of
4492.47 sq. mtrs., the property comprises of some other area also which was
not subject matter of the Agreement to Sell in favour of the plaintiff and for
the purposes of re-development of the property also, the Floor Area Ratio
(FAR) and ground coverage available on the entire property i.e. 4492.47 sq.
yds. agreed to be sold to the plaintiff plus the other portions will have to be
taken into consideration and re-development of the property may not also be
possible without the cooperation of the persons who are claiming title to the
other portions of the property described in the site plan as 4A, 4B and 4C;
xiii) that the plaintiff is the owner of property No.4B as shown in the site
plan aforesaid; xiv) that since the Supreme Court in the order aforesaid has
referred to the entitlement of the defendant over and above the sale
CS(OS) No.994/1999 Page 15 of 30
consideration as additional compensation, the said compensation cannot be
determined on the basis of third party bids as has been recorded in the order
dated 13th February, 2018 in these proceedings; xv) that even as per the
prescribed circle rate, on the date of the judgment aforesaid of the Supreme
Court, the market value of the property was Rs.51 crores and from which,
the deductions on account of the property being tenanted within the meaning
of the Delhi Rent Control Act and the development of the property being not
possible owing to the factors aforesaid, have to be deducted; xvi) that even
under the Land Acquisition Laws, apportionment of the compensation at
market rate is done between the owner and the tenant in possession and the
rebate on the valuation as per circle rate for the property being tenanted has
to be considered while determining the valuation; xvii) that the conduct of
the defendants, of executing Agreements to Sell and Sale Deeds of the
property / portions thereof, during the pendency of the proceedings, has also
to be considered; and, xviii) that the plaintiff has, besides the amount
advanced of Rs.50,000/-, also paid Rs.80,000/- to the income tax authorities
to stall the property from being auctioned by the income tax authorities and
the plaintiff has thus been safeguarding the property and inclusive of the said
sum of Rs.80,000/-, the plaintiff has already paid 1/3rd of the agreed
consideration of Rs.3.75 lacs; that the proof of such payment to income tax
authorities are at pages 253 to 273 of the Convenience Volume.
5. It was enquired from the senior counsel for the plaintiff no.1(c) /
plaintiff no.2 on 6th April, 2018, whether not for the reason of the plaintiff
no.1(c) / plaintiff no.2 having himself undertaken before the Supreme Court
to pay Rs.6 crores, it was not open to the plaintiff no.1(c) / plaintiff no.2 to,
in this proceeding, contend the value of the property to be less than that. The
CS(OS) No.994/1999 Page 16 of 30
senior counsel for the defendant no.1D, on 6th April, 2018 stated that the
plaintiff no.1(c) / plaintiff no.2, in the enquiry as to valuation, has filed
affidavit of valuation of the property at Rs.62 lacs to Rs.80 lacs.
6. On 6th April, 2018, it was also enquired from the senior counsel for the
plaintiff no.1(c) / plaintiff no.2, whether the plaintiff no.1(c) / plaintiff no.2
was desirous of testing the bona fides of the proposed buyer by having the
bank draft encashed.
7. It was also enquired from the senior counsel for the defendant no.1D
on 6th April, 2018, whether the defendant no.1D was willing to execute the
sale deed in favour of the proposed buyer for consideration of Rs.130 crores
with Rs.25 lacs being deposited in the Court and the balance sale
consideration being deposited within three months therefrom with the
amount of Rs.25 lacs being forfeited upon failure to deposit the balance sale
consideration.
8. The senior counsel for the defendant no.1D replied in the affirmative
and further informed that the defendant no.1D had become the sole owner of
the property.
9. Faced therewith, the senior counsel for the plaintiff no.1(c) / plaintiff
no.2 stated that the plaintiff no.1(c) / plaintiff no.2 was willing to have the
sale deed executed for a consideration of Rs.11.82 crores.
10. During the hearing on 11th April, 2018, it was enquired from the senior
counsel for the defendant no.1D, what was there to ensure that in the event
of the Court determining the value at Rs.130 crores, the proposed buyer
brought by the defendant no.1D will purchase the property for the said
amount. The senior counsel for the defendant no.1D, under instructions
CS(OS) No.994/1999 Page 17 of 30
stated that this Court, after determining the value at Rs.130 crores, may
direct that if the purchaser does not purchase the property for the said price,
the price would stand determined at Rs.11.82 crores as proposed by the
plaintiff no.1(c) / plaintiff no.2 and then, subject to the plaintiff no.1(c) /
plaintiff no.2 paying the said price, the defendant no.1D will execute the sale
deed in terms of the decree for a sale consideration of Rs.11.82 crores.
11. The senior counsel for the plaintiff no.1(c) / plaintiff no.2 in rejoinder
argued that the purport of the order dated 3rd December, 2012 of the Supreme
Court was to secure for the defendant additional compensation; however the
legal heirs of the defendant had sold their right, title and interest in the
property in favour of M/s Fine Properties (P) Ltd. and it would be the said
M/s Fine Properties (P) Ltd. which would be receiving the consideration of
Rs.130 crores if the same were to be determined to be the market price and
which would be contrary to the purport and intent of the order of the
Supreme Court. Attention was invited to the order dated 8 th May, 2013 of
the Supreme Court in this regard and it was argued that the parameters for
determining the price has to be the same as paid by M/s Fine Properties (P)
Ltd. to the original defendant.
12. The senior counsel for the defendant no.1D, on 11th April, 2018
argued i) that the total area of the property is 5373 sq.yds. equal to 4492 sq.
mtrs.; ii) that the constructed area is only 5200 sq.ft.; iii) 55% of the property
was in occupation of the plaintiff and the remaining with one Nank Chand;
that the plaintiffs in the present suit stated that they were in possession in
part performance of the Agreement to Sell and would vacate the portion in
their occupation if defeated in this suit; and, iv) on specific enquiry whether
CS(OS) No.994/1999 Page 18 of 30
the plaintiffs were in possession since prior to the Agreement to Sell and if
so in what capacity, the senior counsel for the defendant no.1D stated that
according to the defendant, the plaintiffs were not in possession prior to the
Agreement to Sell.
13. Per contra, senior counsel for the plaintiff no.1(c) argued that it was
recorded in the Agreement to Sell itself that the plaintiffs were already in
possession of the property as a tenant and in the judgment of the learned
Single Judge also, it was recorded that the plaintiffs were in possession as
tenant. It was further stated that the plaintiff no.1(c) has filed IA
No.2106/2018 for bringing on record the application filed by M/s Fine
Properties Pvt. Ltd. for substitution in place of the original defendants.
14. The counsel for the proposed buyer Mr. Ashok Kumar, son of Sh.
Chiranji Lal, resident of 19, Farquhar Road, Birmingham on 11 th April, 2018
was also asked to obtain instructions, what price was the proposed buyer
willing to pay if also put in actual physical possession of portion of the
property in occupation of the plaintiffs.
15. On 7th May, 2018, the senior counsel for the defendant no.1D handed
over written note of arguments and liberty was granted to the counsel for the
plaintiff no.1(c) / plaintiff no.2 to file his synopsis of submissions.
16. The counsel for the proposed buyer, on 7th May, 2018 informed that
the proposed buyer was only interested in buying the property "on as is
where is basis" and did not want to have any other transaction.
17. The defendant no.1D though on 11th April, 2018 had stated that upon
the proposed buyer not purchasing the property for Rs.130 crores, the
defendant no.1D would be willing to execute the Sale Deed in favour of the
CS(OS) No.994/1999 Page 19 of 30
plaintiffs for Rs.11.82 crores, filed IA No.6188/2018 pleading that if the
proposed buyer did not purchase for Rs.130 crores, this Court should
determine the market value and the defendant no.1D should not be made to
sell for the consideration offered by the plaintiffs of Rs.11.82 crores.
Though it was pleaded in the application that the defendant no.1D, on 11th
April, 2018 had not committed to Rs.11.82 crores and realized the same after
going through the copy of the aide-memoire aforesaid but I may record that
the aide-memoire was dictated in open court and what had transpired in the
Court was recorded therein. Be that as it may, on 7 th May, 2018 it was
ordered that IA No.6188/2018 will also be disposed of along with this order
on valuation.
18. The plaintiff no.1(c) / plaintiff no.2 also got listed on 7th May, 2018,
IA No.2106/2018 seeking to place on record (i) certified copy of DR
No.99185/2016 filed by the plaintiffs no.2&3 under Section 27 of the Delhi
Rent Control Act, 1958 for deposit of rent in respect of part of the property
in the occupation as tenant to show that the occupation of the plaintiffs of the
property was not as agreement purchasers but as tenants; and, (ii) an
application filed by M/s Fine Properties (P) Ltd. for impleadment in the
aforesaid proceedings for deposit of rent contending to be owner of the
subject property on the strength of registered GPA dated 4 th November, 2010
executed by the attorney of defendant no.1D and further claiming to have
paid the purchase consideration of Rs.4.50 crores on 4th November, 2010 for
the property. Vide order dated 7th May, 2018, the said application was also
ordered to be decided along with this order.
CS(OS) No.994/1999 Page 20 of 30
19. The plaintiff no.1(e), in IA No.11600/2018 which was allowed on 30th
August, 2018 as aforesaid, sought copy of the aide-memoire mentioned in
order dated 11th April, 2018 and which was on 30th August, 2018 ordered to
be supplied by counsel for the plaintiff no.1(c) / plaintiff no.2 subject to the
condition that the plaintiff no.1(e) shall not take any step to derail the
pronouncement of this order and shall not seek an opportunity to argue.
20. The counsel for the plaintiff no.1(c) / plaintiff no.2 in his written
arguments has contended, that (i) the Supreme Court in paras 27 and 28 of
the judgment dated 3rd December, 2012 has held that the plaintiffs are in no
way responsible for the delay and till then had live interest to have the
agreement enforced and that owing to the reasons given, had only granted
"additional compensation" to the defendant by grant of a price higher than
what had been stipulated in the agreement and which price may even be the
market price as on the date of the order of the final court; (ii) once the decree
for specific performance in favour of the plaintiffs has been upheld by the
Supreme Court, the plaintiffs cannot be required to outbid the third party;
(iii) the intention of the order of the Supreme Court was to compensate the
defendant and not to give any undue favour to the subsequent purchaser from
the defendant; (iv) M/s Fine Properties (P) Ltd. did not disclose the GPA for
a consideration of Rs.4.5 crores with respect to the property executed by the
defendant in its favour till the judgment dated 3 rd December, 2012 of the
Supreme Court; however in subsequent order dated 8th May, 2013, Supreme
Court, observed that it was not inclined to reopen concluded issues and left
the option of seeking remedies as may be open in law; (v) the price, as
directed by the Supreme Court, has to be determined considering the
permissible construction, the shape and state of the property and the fact that
CS(OS) No.994/1999 Page 21 of 30
the defendant has already parted with their entire ownership of the property
for a sum of Rs.4.5 crores on 4th November, 2010; (vi) the plaintiffs had paid
advance of Rs.50,000/- and also paid Rs.80,000/- between 6th August, 1984
and 9th September, 1985 for discharge of liability of the property; the
plaintiffs have thus already paid 35% of the agreed price of the property.
Reliance is placed on Ratan Singh Vs. Union of India 1993 (51) DLT 7,
Commissioner of Income Tax Vs. Duncans Agro Industries Ltd. (1991) 44
DLT 5, Appropriate Authority Vs. Shashi Sehgal 2001 (5) SCC 627 and
Appropriate Authority Vs. R.C. Chawla 2001 (4) SCC 710, to contend that
the aforesaid factors have to be taken into account for determination of
market price and on Nelson Fernandes Vs. Special Land Acquisition
Officer, Goa (2007) 9 SCC 447, Digamber Vs. State of Maharashtra (2013)
14 SCC 406, Perriyar Vs. State of Kerala (1991) 4 SCC 195, Viluben
Jhalejar Vs. State of Gujarat (2005) 4 SCC 789, V. Subramanya Rao Vs.
Land Acquisition Zone Officer (2004) 10 SCC 640 and Mohammad
Raofuddin Vs. Land Acquisition Officer (2009) 14 SCC 367 to contend that
sale instances of properties in terms of proximity in time and location is most
vital factor to ascertain the market price; and, (vii) two sale deeds dated 15th
November, 2012 and 21st November, 2012 have been executed in favour of
third parties of 1000 sq. yds. and 500 sq. yds. respectively of vacant portions
of the property besides the portions subject matter of this suit and
considering the same, the market price as on 3rd December, 2012 averages to
be Rs.11.82 crores and the market price of Rs.5 to Rs.6 crores proposed by
the plaintiffs on 6th April, 2018 was after taking into account discounts on
account of peculiar characteristics of the property.
CS(OS) No.994/1999 Page 22 of 30
21. The counsel for the defendant no.1D, in his written note has contended
that (i) the Supreme Court directed the current value to be determined in
exercise of discretion under Section 20 of the Specific Relief Act and to
balance the equities between the parties; (ii) the consideration stated in the
Agreement to Sell dated 22nd December, 1970 of Rs.3.75 lacs was admitted
to not represent the market value of the property as on 3rd December, 2012;
(iii) reliance is placed on HOTZ Industries Pvt. Ltd. Vs. Dr. Ravi Singh
2018 SCC OnLine Del 7618 and on Shikha Mishra Vs. S. Krishnamurthy
(2014) 210 DLT 178 on the aspects of purport of Section 20 of the Specific
Relief Act and on determination of market value in cases of specific
performance, to contend that in cases of specific performance, valuation is
not to be as per the guidelines laid down in land acquisition proceedings or
enshrined in the Rent Act; (iv) the enquiry which this Court is undertaking is
different from that envisaged under Order XX Rule 18 of the CPC; (v)
though SDM in response to the directions issued by the Registrar General of
this Court valued the property as on 3 rd December, 2012 at about Rs.51.52
crores but Government of National Capital Territory of Delhi (GNCTD) vide
notification dated 4th December, 2012 revised the circle rates to be effective
with effect from 5th December, 2012 and as per which, the value of the
property is about Rs.75 crores; (vi) ITCOT Consultancy and Services Ltd. in
its report as directed by the Registrar General of this Court, has valued the
property at Rs.161.19 crores with distress value of about Rs.145.07 crores;
(vii) the two witnesses of the plaintiffs deposed the valuation of the property
to be Rs.1.05 crores or Rs.7.72 crores; (viii) even as per the sale deed dated
3rd December, 2012 Ex.PW2/4 proved by the plaintiff, the market value of
the property would be about Rs.98.14 crores; (ix) the plaintiffs, during the
CS(OS) No.994/1999 Page 23 of 30
pendency of FAO(OS) No.75/2017 aforesaid had produced sale deed of 1/9th
share of property bearing No.11,Rajpur Road, Civil Lines, Delhi, ad-
measuring 4849.50 sq. mtrs. and as per which also, the total value of the said
property was Rs.135 crores and which property is also subject matter of
multifarious litigation and in possession of third parties; (x) as per
Ex.PW2/X2 also, the value of the property was Rs.150 crores; (xi) the e-mail
sent by one of the plaintiffs to a property dealer proved as Ex.PW2/X1 and
PW2/X3, the plaintiffs were offering the property for Rs.230 crores; and,
(xii) if the plaintiffs do not pay the market value as determined by this Court
within the time fixed by this Court, consequences under Section 28 of the
Specific Relief Act be ordered to follow.
22. The counsel for the plaintiff No.1(c) / plaintiff no.2 in his written
arguments in response to the contentions aforesaid of the counsel for the
defendant no.1D has contended that, (i) Ex.PW2/4 and Ex.PW2/5 are of no
relevance, being of a very small area and with respect to property having
clean title; (ii) the offer during the pendency of FAO(OS) No.575/2017 was
only for demonstrating the bona fides of the plaintiffs; (iii) the report of
ITCOT Consultancy and Services Ltd. is based on telephonic conversations
and websites / portals with respect to immovable property; (iv) circle rate is
not determinative of market value; reliance is placed on Amit Gupta Vs.
Govt. of NCT of Delhi 2016 (229) DLT 385 (DB); (v) the valuation has to
be fixed considering that the suit property is 100% tenanted / rented; and,
(vi) while the plaintiff has led cogent evidence on valuation, the defendant
has not led any evidence whatsoever.
23. I have considered the rival contentions.
CS(OS) No.994/1999 Page 24 of 30
24. Though in the course of the aforesaid exercise reference was made to
Section 28 of the Specific Relief Act but I am in the exercise undertaken not
entering into the said aspect, leaving it open to the defendant to, at
appropriate stage, urge the same. I say so because the purport of this
exercise is in terms of the direction of the Supreme Court.
25. I must also record that the aforesaid state of affairs left the
undersigned perplexed as to the market price of the property as on 3 rd
December, 2012. The following market prices have come on record:
(a) The price of Rs.51,51,85,000/- as determined by the SDM in
Valuation Report dated 23rd April, 2014;
(b) The price of Rs.1,57,95,69,000/- as determined by ITCOT
Consultancy and Services Ltd. in their report, also of April,
2014;
(c) The price of Rs.12.60 crores as on 4th November, 2010 as
claimed by the plaintiffs before the Division Bench in FAO(OS)
No.75/2017;
(d) The price of Rs.15 crores as put by the Division Bench vide
order dated 23rd May, 2017 in FAO(OS) No.75/2017;
(e) The price of Rs.4.50 crores for which the defendant agreed to
sell the property on 4th November, 2010 and which, according to
the plaintiffs extrapolated to the price, as on 3rd December, 2012
of Rs.11.82 crores;
(f) The price of Rs.145 crores as on 13th February, 2018 as claimed
by the defendant;
CS(OS) No.994/1999 Page 25 of 30
(g) The price of Rs.130 crores for which the buyer brought by the
defendant on 8th March, 2018 was ready to buy the property;
(h) The price of Rs.2.20 crores for 836.12 sq. mtrs. equal to 1000
sq. yds. of the property in the sale deed dated 15th November,
2011;
(i) The price of Rs.1.10 crores for 418 sq. mtrs. equal to 500 sq.
yds. of property as per the sale deed dated 21st November, 2011;
(j) The price of Rs.6 crores as offered by the plaintiffs in the
proceedings before the Supreme Court;
(k) The price of Rs.62 lacs to Rs.80 lacs as claimed by the plaintiffs
in the affidavit by way of examination-in-chief in the present
enquiry;
(l) The price of Rs.11.82 crores as offered by the plaintiffs during
the hearing on 6th April, 2018;
(m) The price of Rs.4.50 crores as on 4th November, 2010 paid by
M/s Fine Properties Pvt. Ltd. for the property;
(n) The price of Rs.75 crores as per the circle rates revised with
effect from 4th December, 2012;
(o) The price of Rs.98.14 crores for the entire property, by
extrapolating the price for sales of 836.12 sq. mtrs. equal to
1000 sq. yds. and 418 sq. mtrs. equal to 500 sq. yds. of the
property as on 15th November, 2011 and 21st November, 2011
respectively;
CS(OS) No.994/1999 Page 26 of 30
(p) The price of Rs.135 crores as per the sale deed of another
property produced by the plaintiffs before the Division Bench in
FAO(OS) No.75/2017; and,
(q) The price of Rs.235 crores asked for by the plaintiffs in their e-
mail to a property broker.
26. The aforesaid would show that while the stand of the plaintiffs qua the
price of the property has been varying from Rs.51-80 lacs to Rs.11.82 crores,
the stand of the defendant qua the price has been varying from Rs.130 crores
to Rs.135 crores.
27. As far as the price as per the circle rates is concerned, it has been held
by the Division Bench of this Court in Amit Gupta supra that the same is not
always reflective of the market price and the market price can be higher or
lower. In the present case, the price as per the circle rates was Rs.51 crores
as on 3rd December, 2012 but vide revision of circle rates the very next day
i.e. 4th December, 2012, was enhanced to Rs.75 crores.
28. The claim of the plaintiffs is of the price being lower than the market
price owing to several factors. However the plaintiffs himself has been
offering different prices of the property at different times as is obvious from
the above narrative. Also, inspite of said factors, the buyer brought by
defendant was willing to buy the property on as is where is basis for Rs.130
crores.
29. Price of immovable property is incapable of precise determination in
Court inasmuch as price, especially of residential properties is not uniform
and there may be wide variance in price of adjoining properties. The senior
counsels of the plaintiffs are right in listing the said variables as noted
CS(OS) No.994/1999 Page 27 of 30
hereinabove. It is virtually impossible for the price to be determined by the
Court. The contemporaneous sale deeds of adjoining properties are also
never a precise indicator of the price of another property. The only way to
determine the price is by public auction. However the price which is to be
determined of the subject property is of 3rd December, 2012 and not of today.
The Courts have however taken judicial notice of market trend of prices of
immovable properties and it can be said with reasonable certainty that since
December, 2012, the prices have been on the decline.
30. The most authoritative indicator of price of the subject property, was
from the offer brought by the defendant, of Rs.130 crores, for the property
on as is where is basis. Taking judicial notice of the market trend of price
since the year 2012 it can safely be assumed that the price as on 3 rd
December, 2012 would have been higher.
31. What has however bothered me and which has resulted in delay in
pronouncement of this order, is that by merely bringing an offer for Rs.130
crores, the defendant should not derive an unfair advantage. After all, the
offer brought by the defendant for purchase of the property on as is where is
basis for Rs.130 crores was but an offer, with no certainty of same
fructifying. It was felt that the defendant, by bringing an inflated offer,
should not be permitted to wriggle out of the decree for specific performance
if the plaintiffs were unable to accept the same.
32. Having given my thought to the matter, I am of the opinion that while
determining the price at Rs.130 crores and on plaintiffs failing to pay the
said price, a condition should be imposed on the defendant to, within
stipulated time sell the property at minimum Rs.130 crores. If the defendant
CS(OS) No.994/1999 Page 28 of 30
is then unable to so sell the property, the same will clearly establish that the
price of the property is not Rs.130 crores. Then, the best indicator of market
price would be the circle rate. Though circle rate as on 3rd December, 2012
was reported to be about Rs.51 crores but since the circle rate, the very next
day was revised to Rs.75 crores, it is felt that the said circle rate correctly
represents the market price as on 3rd December, 2012, rather than the circle
rate of Rs.51 crores fixed long back.
33. I thus determine the market price of the property as on 3 rd December,
2012 at Rs.130 crores, with the following further directions:
(i) The plaintiffs to, within 60 days of this determination indicate
their intention to purchase the property at the said price;
(ii) On the plaintiffs consenting to purchase the property at the said
price, the plaintiffs to within 90 days of today deposit in this
Court 10% of the purchase consideration equivalent to Rs.13
crores, by way of earnest money;
(iii) On failure to deposit the earnest money, the consequences as
hereinbelow provided shall follow;
(iv) If the earnest money is so deposited, the balance sale
consideration be paid within 180 days herefrom;
(v) On the plaintiffs not consenting to purchase the property at the
price aforesaid or on the plaintiffs so consenting but not
depositing the earnest money or on the plaintiffs depositing the
earnest money and not depositing the balance sale
consideration, the defendant to within 90 days therefrom enter
CS(OS) No.994/1999 Page 29 of 30
into an Agreement for Sale of the property at minimum Rs.130
crores on the same condition as to deposit of earnest money and
payment of balance sale consideration as applicable aforesaid to
the plaintiffs;
(vi) On the defendant being unable to sell the property to another for
minimum Rs.130 crores, the plaintiffs to within 60 days thereof
become entitled to purchase the property for Rs.75 crores; and,
(vii) On the plaintiffs failing to purchase the property for Rs.75
crores, the defendant to stand relieved of the agreement.
34. The exercise undertaken pursuant to directions of the Supreme Court
is closed with the aforesaid.
RAJIV SAHAI ENDLAW, J.
DECEMBER 24, 2019 „gsr‟ CS(OS) No.994/1999 Page 30 of 30