Delhi High Court
Arjun Somdutt vs Vivan Somdutt & Ors on 27 September, 2022
Bench: Rajiv Shakdher, Sanjeev Narula
NEUTRAL CITATION NO: 2022/DHC/004177
$~SB-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 26.08.2022
Judgement pronounced on: 27.09.2022
+ EFA (OS) 1/2019
ARJUN SOMDUTT ...Appellant
Through: None.
versus
VIVAN SOMDUTT & ORS ......Respondents
Through: Mr Abhimanyu Mahajan with Mr
Abhishek Chauhan, Mr Munindra
Dvivedi and Ms Divya Bhalla,
Advocates for respondent no.1.
Ms Meghna Mishra with Mr Ankit
Rajgarhia, Advocates for respondent
no.2.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE SANJEEV NARULA
[Physical Court Hearing/Hybrid Hearing (as per request]
RAJIV SHAKDHER, J.:
CM APPL. 36348/2021 in EFA (OS) 1/2019
1. This is an application filed on behalf of respondents no. 1 and 2 i.e., Mr Vivan Somdutt and Mrs Roop Talwar, seeking clarification and/or modification of the order dated 11.01.2019 passed in the instant appeal.
1.1 Respondent nos. 1 and 2 aver, that clarification and/or modification is sought to a limited extent i.e., that the aforesaid order would not impede the Page 1 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 steps, if any, taken towards attachment and/or sale of the immovable property, described as B-8 Maharani Bagh, New Delhi [hereafter referred to as "subject property"] to obtain satisfaction and discharge of the partial decree dated 22.02.2018,passed in Execution Petition 61/2018.
2. This matter has undergone several twists and turns; a Family Settlement dated 31.12.1991 [in short "FS"] which has gone awry; an Agreement to Sell dated 03.01.2012 [in short "ATS] executed by persons who are parties to the present appeal, in favour of three persons, namely Mr Krishan Kumar Wadhwa, Mr Vijay Kumar Wadhwa and Mr Suresh Kumar Wadhwa [hereafter collectively referred to as "Wadhwas"] which has upended, and a compromise arrived at between the parties and Wadhwas [which was the subject matter of C.M Appl. 664/2012, whereby parties had agreed to sell the subject property, as per the share stipulated in the FS] which has turned sour.
3. The accompanying appeal has been preferred by the appellant/Mr Arjun Somdutt, against the order dated 12.11.2018 passed by the learned single judge to sell the subject property via public auction.
3.1 A perusal of the said order shows, that parties had indicated to the learned single judge, that they did not have the financial wherewithal to pay the court fee/stamp duty so that the preliminary partition decree passed by the suit court could get morphed into an executable decree.
3.2 Faced with this impediment, the learned single judge issued a direction via the aforementioned order, for the appointment of a Court Page 2 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 auctioneer, with a caveat that the court fee/stamp duty would be a first charge on the sale proceeds.
3.3 Furthermore, the parties were also cautioned by the learned single judge, that the sale of the subject property would entail payment of monies to the Court auctioneer.
4. The accompanying appeal is, thus, hinged on the legal tenability of the directions contained in the order issued by the learned single judge via order dated 12.11.2018.
5. In the appeal, a coordinate bench via the interim order dated 11.01.2019 i.e., the order of which clarification/modification is sought by respondents no. 1 and 2, has stayed the operation of the learned single judge's order dated 12.11.2018.
6. There is, on record, an application i.e., C.M Appl. 21772/2019, which has been filed by respondents no. 1 and 2, seeking vacation of the interim order dated 11.01.2019.
6.1 The aforementioned application i.e., C.M Appl. 21772/2019, came up before a Bench (as it then constituted)compromising one of us i.e., Rajiv Shakdher, J. on 12.11.2021.
6.2 Insofar as the instant application is concerned i.e., C.M Appl.34368/2021, it was listed on 12.10.2021, when it was felt necessary, that the application be placed before a Bench comprising Hon'ble Mr Justice Sanjeev Narula.
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NEUTRAL CITATION NO: 2022/DHC/004177 6.3 Subsequently, notice in the application was issued on 29.10.2021. The matter, thereafter, came up for hearing on 12.11.2021, when the broad contours of the case were captured. Therefore, for the purpose of disposal of the instant application, it would be useful to set down the relevant parts of the order dated 12.11.2021.
"....3. Mr. Mahajan, who appears for the applicants i.e., respondent nos. 1 and 2, says that, pleadings in the above-captioned application are complete.
4. Mr. Mahajan has, broadly, placed the contours of the case before us.
4.1. Mr. Mahajan informs us that, pursuant to a Settlement Agreement dated 31.12.1991 [in short "the SA"], arrived at between the parties, a preliminary decree of partition dated 10.11.2010 was passed in CS(OS)No.206/2007, which was subsequently modified on 22.11.2010.
4.2. According to Mr. Mahajan, as per the SA and [the] aforementioned preliminary decree of partition, the parties were to get the following shares in the suit property located at B-8 Maharani Bagh, New Delhi-110065:
SI. No. Party Share
1. Appellant/Arjun Somdutt 18.75%
2. Respondent no. 1/Vivan Somdutt 37.50%
3. Respondent no.2/Roop Talwar 25% Page 4 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177
4. Respondent no.3/Pritha Somdutt 18.75% 4.3. We are informed that the appellant and respondent no.3 are siblings[with the appellant being the brother and respondent no. 3 being the sister]and the remaining respondents i.e., respondent nos. 1 and 2 are related to the appellant.
4.4. We are also informed that an appeal was preferred against the aforementioned preliminary decree dated 10.11.2010, which was numbered as FAO (OS) 701-702/2010.
4.5. Our attention has been drawn to the order dated 13.01.2012, passed in CM No.664/2012 [preferred under Order XXIII Rule 3 read with Section151 of the Code of Civil Procedure, 1908], filed in the aforementioned appeal i.e., FAO (OS) 701-702/2010. The said order is appended on page 71of the case file.
4.6. By virtue of the order dated 13.01.2012, the SA arrived at between the parties before the Division Bench was taken note of, and the main matter i.e., FAO(OS) 701-702/2010 was disposed of in terms of the SA.
4.7. It is Mr. Mahajan's submission that, the SA between the parties was pivoted on the fact that the parties had found buyer(s) for the suit property. The buyers are Mr. Krishan Kumar Wadhwa, Mr. Suresh Kumar Wadhwa and Mr. Vijay Kumar Wadhwa [hereafter collectively referred to as "Wadhwas"].
4.8. Mr. Mahajan says that, the total consideration that was payable by Wadhwas, pursuant to the Agreement to Sell dated Page 5 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 03.01.2012, was Rs.65,00,07,000/-, out of which Rs. 10,00,00, 000/- were received by the parties [i.e., Rs. 2,50,00,000/- as earnest money and Rs. 7,50,00,000/- as partsale consideration], and distributed according to their share, as indicated above.
4.9. We are informed by Mr. Mahajan that, in 2013, the appellant unilaterally terminated the Agreement to Sell dated 03.01.2012, arrived at with Wadhwas, for the sale of the suit property.
5. Mr. Mahajan says that, since the termination of the Agreement to Sell dated 03.01.2012 by the appellant was unilateral, respondent nos.1 and 2filed an execution petition i.e., Ex.P. No.389/2014, for enforcing the aforementioned decree dated 13.01.2012.
5.1. It is stated by Mr. Mahajan that, thereafter, the Wadhwas served upon the parties a legal notice, which, inter alia, indicated their intention to terminate the Agreement to Sell dated 03.01.2012. This legal notice, apparently, was served on the parties in and about 2015. Because of this circumstance occurring, respondent nos.1 and 2 withdrew the earlier execution petition i.e., Ex.P. No.389/2014 and filed a fresh execution petition, numbered as Ex.P. 17/2016.
5.2. We are further informed that Wadhwas filed a suit for recovery i.e., CS (OS) No.3316/2015, for the recovery of the advance amount of Rs.10,00,00,000/-, paid by them at the relevant point in time for purchasing the suit property. In the said suit, we are told that, a partial decree was passed on22.02.2018, for Rs. 7,03,12,500/-. It is Page 6 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 for the execution of this decree that Wadhwas filed an execution petition, numbered as Ex.P. No.61/2018.
6. We may note that, the order impugned in the present appeal, which is dated 12.11.2018, has been passed in the aforementioned execution petitions i.e., Ex.P. No. 17/2016, filed by respondent nos. 1 and 2, andEx.P.No.61/2018 as also certain interlocutory applications, filed by Wadhwas.
6.1. A perusal of the impugned order shows that, the learned single judge, after noticing that court fee/stamp duty has not been paid, with the consent of the parties, directed the appointment of the Court Auctioneer to facilitatean auction of the suit property, as per law.
6.2. In the present appeal, the appellant has, inter alia, asserted that he did not give consent for [ the] sale of the property.
7. The record shows that, on 11.01.2019, while issuing notice in the above-captioned appeal i.e., EFA (OS) 1/2019 and the application for stay i.e., CM No.1191/2019, the operation of the impugned order dated12.11.2018, has been stayed.
7.1. Mr. Mahajan says that, the appellant has adopted a dog in the manger position. The appellant, according to him, is neither allowing the sale of the suit property, nor does he have the money to satisfy the partial decree dated22.02.2018, obtained by the Wadhwas in CS(OS) No.3316/2015.
7.2 It is Mr. Mahajan's contention that, while the parties are in possession of the asset i.e., the suit property, neither do they have the Page 7 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 requisite funds to pay the court fee, nor do they possess money to defray the decree obtained by Wadhwas in CS(OS) No.3316/2015, on 22.02.2018.
7.3. We may note that, it is in this background that, respondent nos. 1 and 2have moved the application i.e., CM No.36348/2021 for the modification of the order dated 11.01.2019, to the extent that the said order does not bar the suit property from being attached and sold --to discharge the unrealized partial decree dated 22.02.2018 being the subject matter of Ex.P. No.61/2018.
7.4. The order dated 11.01.2019 was passed by Hon'ble Mr. Justice S.Muralidhar [as he then was] and Hon'ble Mr. Justice Sanjeev Narula, and hence, on the previous date i.e., 12.10.2021, it was directed that the said application [i.e., CM No. 36348/2021] be placed before a bench of which, HMJ Sanjeev Narula is a member. We are told that, this application is listed before the concerned bench on 28.01.2022...."
7. The aforementioned application, thus, came up before the present bench on 28.01.2022, when once again the matter was examined, and notice was made returnable on 29.04.2022.
7.1 Since on 29.04.2022, the Bench could not assemble, the matter was posted for hearing on 29.07.2022 when a request for accommodation was made on behalf of the counsel for the appellant/Mr Arjun Somdutt.
7.2 Finally, arguments in the application were heard on 26.08.2022, which resulted in the judgement being reserved.
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8. The aforesaid backdrop would show, that in this litigation, the following milestones are relevant:
(i) First, the execution of the FS between the parties on 31.12.1991.
(ii) Second, the institution of the partition suit i.e., CS (OS) 206/2007 by respondent no. 2 i.e., Mrs Roop Talwar.
(iii) Third, the passing of the preliminary decree of partition on 10.11.2010, in consonance with the terms of the FS in CS(OS) 206/2007.
This preliminary decree was subsequently modified via order dated 22.11.2010, wherein the Court noted, that in the order dated 10.11.2010, it got inadvertently recorded that defendant no. 4 was the mother of the plaintiff, whereas the said defendant was the mother of defendants no. 2 and
3. Besides this, the Court, via order dated 22.11.2010 also modified the order dated 10.11.2020 to the extent that it directed incorporation of the following expression "as per family settlement"- towards the end of paragraph 2 on page 3 of the order.Resultantly, the parties acquired shares in the subject property, as recorded in paragraph 4.2of the order dated 12.11.2021.
(iv) Fourth, the institution of an appeal i.e., FAO (OS) 701-702/2010by the appellant/MrArjun Somdutt against the preliminary decree dated 10.11.2010,and the modification order dated 22.11.2010. In this appeal, the appellant/Mr Arjun Somdutt inter alia raised the grievance, that he had not been compensated for the loss of rental income by respondent no. 2/Mrs Roop Talwar.
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(v) Fifth, the execution of the ATS on 03.01.3012, by the parties herein, with the Wadhwas, for a total consideration of Rs 65,00,07,000/-. This step was taken by virtue of the indulgence granted by the Court in the hearing held on 15.11.2011.The execution of this ATS resulted in the Wadhwas paying Rs. 10,00,00,000/- to the parties, which included earnest money of Rs. 2,50,00,000/- and the balance i.e., Rs. 7,50,00,000/- which was paid as part-sale consideration. Concededly, the appellant/Mr Arjun Somdutt received Rs. 1,87,50,000/-, out of Rs. 10,00,00,000/-,as per his share in the subject property i.e., 18.75%.
(vi) Sixth, the disposal of FAO (OS) 701-702/2010, based on a joint compromise application [i.e., CM Appl. 664/2012] filed by the parties. This application was pivoted on the ATS executed by the parties, with the Wadhwas.
(vii) Seventh, the purported unilateral termination of the ATS by the appellant/ Mr Arjun Somdutt, by having a public notice published in the Times of India, on 13.06.2013.
(viii) Eighth, the application [i.e., C.M Appl. 5283/2014] moved by respondents no. 1 and 2, to enforce the undertaking given by the appellant/Mr Arjun Somduttat the time when the compromise was recorded, which failed to bear fruit, with the Court directing closure of the said application via order dated 25.03.2014; the Court's view being that the compromise arrived at between the parties, as reflected in the order dated 13.01.2012, could be taken forward in an execution proceeding.
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(ix) Ninth, the resultant institution of Execution Petition no. 389/2014 by respondents nos. 1 and 2, and its closure on 22.01.2016, as the Wadhwas had expressed their disinclination, in carrying the ATS forward.
(x) Tenth, the institution of a fresh execution petition i.e., Execution Petition no. 17/2016 by respondents no. 1 and 2, to have the subject property sold via public auction or other means, and the resultant proceeds being divided amongst the parties, as per the compromise arrived at between them on 13.01.2012.
(xi) Eleventh, the institution of the suit [i.e., CS (OS) 3316/2015] by the Wadhwas, for recovery of the refund amount paid to the parties.
(xii) Twelfth, the passing of partial decree dated 22.02.2018 in the Wadhwas' suit i.e., CS (OS) 3316/2016, whereby the defendants have been directed to pay Rs.7,03,12,500/-. This figure, it appears, has been arrived at by the Court, after adjusting Rs.46,87,500/-received by the Wadhwas from the appellant/Mr Arjun Somdutt, out of Rs. 7,50,00,000/- paid by them towards sale consideration. Admittedly,Rs.46,87,500/- was paid by the appellant/Mr Arjun Somdutt, out of the money received by him, upon distribution of Rs. 10,00,00,000/- paid by the Wadhwas, at the time of the execution of the ATS.
(xiii) Thirteenth, the order impugned in the accompanying appeal i.e., the order dated 12.11.2018, passed by the learned single judge in respondents no. 1 and 2's execution petition [i.e., Execution Petition no. 17/2016], whereby he directed, as noticed above, the appointment of a Court auctioneer, for effecting the sale of the subject property.
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(xiv) Fourteenth, the institution of an execution petition [i.e., Execution Petition no. 61/2018] by the Wadhwas, for enforcement of the aforementioned partial decree obtained by them on 22.02.2018.
9. It is in this background, that the relief sought in the above-captioned application [i.e., C.M Appl. 34368/2021] is resisted by the appellant/Mr Arjun Somdutt on the ground, that there is a collusion between the Wadhwas and respondents no. 1 and 2. The argument is, that the under the garb of seeking a clarification/modification of the order dated 11.01.2019, they are attempting to have the subject property attached and sold.
9.1 In support of this plea, reference is made to the application [i.e., CM 21772/2019] filed by respondents no. 1 and 2, for vacating the very same order i.e., the order dated 11.01.2019.
9.2 The appellant/Mr Arjun Somdutt, thus, claims that if clarification and/or modification is ordered, it would render the main appeal infructuous.
9.3 To buttress this plea, the appellant/Mr Arjun Somdutt has also referred to the prayer made in the appeal, whereby a direction has been sought to quash/set aside/modify the impugned order dated 12.11.2018, passed in Execution Petition no. 17/2016, and Execution Petition no. 61/2018.
10. It may be relevant to clarify, that the direction concerning the appointment of the Court auctioneer has been passed in Execution Petition no. 17/2016, which, as noticed above, has been preferred by respondents no. 1 and 2.
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NEUTRAL CITATION NO: 2022/DHC/004177 10.1 Insofar as Execution Petition no. 61/2018 is concerned, which is preferred by the Wadhwas, certain other directions have been issued, which inter alia boil down to giving the judgment debtors the last opportunity to file affidavits concerning their respective assets. Therefore, to that extent, the prayer made in the appeal is not quite accurate.
11. On the other hand, on behalf of respondents no. 1 and 2, it was argued, that a freeze on attachment and sale of the subject property would lead to escalation of the decretal debt, which would not enure to the benefit of the parties, which includes the appellant/Mr Arjun Somdutt.
11.1 Since parties have already expressed their inability to fork out monies for the payment of court fee/stamp duty that is required to be affixed on the preliminary decree for partition, the best way forward would be to grant the prayer made in the above-captioned application.
12. After having examined the record carefully and weighed the submissions, as also the counter-submissions made by the warring parties, we are of the opinion that the order dated 11.01.2019 requires modification.
12.1 We have reached this conclusion, as according to us, the appellant/Mr Arjun Somdutt has adopted a dog in the manger approach. Having arrived at a compromise, regarding the sale of the subject property, the appellant/Mr Arjun Somdutt has taken a position, that the compromise was pivoted on the sale being effected in favour of a particular set of persons i.e., the Wadhwas.
12.2 Concededly, the parties to the compromise, which include the appellant/ Mr Arjun Somdutt, are bereft of liquid funds. Their inability to shore up financial resources is reflected in the learned single judge's order Page 13 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/004177 dated 12.11.2018, which is, as noticed above, impugned in the accompanying appeal.
12.3 Absolute stay on the attachment/sale of the subject property, in the execution proceedings instituted by third parties [which in this case, is the Wadhwas], clearly, could not have been the intent of the Court, at the point in time when it passed the order dated 11.01.2019.
12.4 Admittedly, the Wadhwas paid Rs. 10,00,00,000/- to the parties herein, in pursuance of the execution of the ATS. Concededly, the said amount was distributed amongst the parties, as per their respective shares, as recorded in the preliminary partition decree dated 10.11.2010. Out of said amount i.e, Rs. 10,00,00,000/-, the appellant/MrArjun Somdutt, admittedly, had received 1,87,50,000/-. Although, the appellant/Mr Arjun Somdutt since then has returned Rs.46,87,500/-. In this context, the appellant/Mr Arjun Somdutt also claims that he attempted to pay the entire amount via three banking instruments, out of which only one was encashed, while the remaining two cheques were either not encashed, or were returned unpaid.
12.5 The fact remains, that a substantial part of the partial-decree dated 22.02.2018 remains unsatisfied. The burden of this decretal debt is carried by respondents no. 1 and 2. They wish to be relieved of that burden, and have, therefore, sought clarification/modification of the order dated 11.01.2019.
12.6 We are in agreement with respondents no. 1 and 2, that there is no good reason, in law, or fact, that such clarification and/or modification should not be ordered.
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13. Accordingly, the order dated 11.01.2019 is modified, to the extent that it would not come in the way of the Wadhwas seeking attachment or sale of the subject property, in satisfaction of the partial-decree dated 22.02.2018,being the subject matter of Execution Petition No. 61/2018.
14. CM APPL. 36348/2021 is disposed of in the aforesaid terms.
(RAJIV SHAKDHER) JUDGE (SANJEEV NARULA) JUDGE SEPTEMBER 27, 2022 Page 15 of 15 EFA (OS) 1/2019 This is a digitally signed Judgement.