Document Fragment View
Fragment Information
Showing contexts for: second highest bidder in Mrs. Rama Arora vs Rita Khanna on 15 March, 2017Matching Fragments
Vide this order, I shall decide the two applications filed by the defendants seeking rejection of the plaint u/o 7 Rule 11.
1. Two separate applications u/o 7 Rule 11 are filed, one is preferred by defendants 1 and 2 registered as IA No. 15583/13 and the other is filed on behalf of defendants 4 and 5. The defendants seek rejection of the plaint on the ground that the suit as filed by the plaintiff is a glaring example of gross abuse and misuse of process of law and is liable to be dismissed forthwith. As per the allegations in the plaint itself a suit for partition was filed by defendant no. 1 against defendant no. 2 and 3 bearing CS(OS) No. 625/2012. The disputes were referred to mediation and a settlement agreement dated 03.07.2013 was entered into between the said parties agreeing to sell the suit property bearing No. C102, Defence Colony, New Delhi 110024 measuring 325 sq. yards. Defendant no. 1 agreed to take 46% share of the sale proceeds whereas defendants no. 2 and 3 agreed to take 27% each from the sale proceeds. For undertaking the sale, the Hon'ble Court vide order dated 18.07.2013 appointed two nominees, namely former Chief Justice(Retd.) Mukul Mudgal and Justice (Retd.) Usha Mehra. The plaintiff was the highest bidder for Rs. 24.60 crores and in accordance with the terms and conditions of sale deposited, by way of three Pay Orders, a sum of Rs. 1 crores in the names of defendants no. 1 to 3. The plaintiff through her husband and GPA Sh. Subhash Arora vide letter dated 09.09.2013 withdrew their offer and categorically stated that they were no longer interested in the said bid transaction and had requested for refund of the sum of Rs. 1 crores. Since the plaintiff did not agree to deposit balance 20% amount, the Court Nominees in the proceedings held on 09.09.2013 canceleld the bid of the plaintiff and directed that the amount of Rs. 1 crore be forfeited. Thereafter the counsel for the parties requested the Court Nominees to contact the next highest bidder to know whether they were still interested in purchasing the property. Sequel thereto the property was sold to the defendant no. 4 and 5 by virtue of a sale deed dated 09.10.2013 for a total sale consideration of Rs. 22.50 crores and the possession of the property was handed over at site to defendants No. 4 and 5. The sale deed stood duly registered at Sub RegistrarV, New Delhi at Serial No. 9000 in Book No. 1, volume No. 13003 on pages 162 to 175 on 14.10.2013. In the meantime, Sh. Subhash Arora, as Attorney of the plaintiff, lodged an NCR on 09.09.2013 regarding loss of the aforesaid 3 pay orders on 09.09.2013. The Pay Orders for Rs. 1 crores were returned unpaid by Kotak Mahindra Bank Ltd. when presented for encashment since they had been reported lost. It was in these circumstances that I.A. No. 15583/2013 was filed by defendants no. 1 to 3 for directions to Sh. Subhash Arora and Kotak Mahindra Bank Ltd. to deposit the amount of Rs. 1 crore in the Hon'ble Court. In the meantime the Pay Order for Rs. 46.00 lacs in favour of defendant no. 1 was encashed. The Hon'ble Court vide order dated 27.11.2013, after hearing the parties including the Counsel for the plaintiff, directed Kotak Mahindra Bank Ltd. to cancel the pay orders of Rs. 27 lacs each in the name of defendants no. 2 and 3 and issue Bankers Cheque in their favour. The Hon'ble Court further directed the SHO to examine whether a cognizable offence stood made out against Sh. Subhas Arora and take appropriate steps in that regard. The application was allowed subject to cost of Rs. 50,000/ to be paid by Sh. Subhash Arora. It was against the said order dated 27.11.2013 that an FAO(OS) 577/2013 had been preferred by the plaintiff herein whereunder the liberty being claimed to institute the present suit for the reliefs as claimed is stated to have been passed. That, the liberty if any, to the plaintiff given by the Hon'ble Division Bench was only regarding filing of appropriate proceeding with regard to claim of Rs. 1 crore which has been forfeited. Cancellation of the bid of the plaintiff or for that matter the sale in favour of defendants no. 4 and 5 was never in question before any forum. No application whatsoever was ever filed by the plaintiff in CS(OS) 625/2012 challenging the cancellation of his bid or for that matter for the cancellation of the sale deed dated 09.10.2013 signed and executed by defendants no. 1 to 3 in favour of defendants no. 4 and 5. There is thus no cause of action for filing the present suit which is liable to be dismissed with exemplary costs. That the suit as filed against is wholly misconceived, in as much as the present suit is the second round of litigation wherein the plaintiff seeks adjudication of the issues which she has, admittedly, already contested in CS(OS) No. 625 of 2012 and the same have been duly adjudicated by a court of competent jurisdiction i.e., the Hon'ble High Court of Delhi vide Order dated 27.11.2013. It was held in the order dated 27.11.2013 that there was no valid justification for the plaintiff herein for not depositing balance amount of Rs. 3.90 crores towards the 20% of sale consideration and as the earnest money of Rs. 1 crore was liable to be forfeited. It was further recorded in the Order dated 27.11.2013 that the suit property was sold to the second highest bidder i.e., defendant no. 4 and 5 for Rs. 22.50 crores in as much as after the bidding process was over, Rs. 22.50 crores was the best price which the property could fetch. Findings of this Hon'ble Court in the Order dated 27.11.2013 in CS(OS) No. 625 of 2012 have attained finality when the Appeal bearing FA(OS) No. 577 of 2013 against the same was dismissed as withdrawn on 13.12.2013. Even the suit bearing CS(OS) No. 625 of 2012 stands disposed off on 28.03.2014 as nothing survived in the said proceedings. Hence the present suit is barred by the principles of resjudicata as envisaged under Section 11 of the Code of Civil Procedure, 1908 and the same is liable to be dismissed. That Section 47, CPC mandates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Further, as per Order 21 Rule 92 of the Code of Civil Procedure, 1908 no suit lies against the order of confirmation of sale. In the present case, no objections were raised by the plaintiff to the cancellation of her bid and confirmation of sale of the suit property in favour of defendants no. 4 and 5. It was held in the Order dated 27.11.2013 that there was no valid justification for the plaintiff herein for not depositing balance amount of Rs. 3.90 crores towards the 20% of sale consideration and the earnest money of Rs. 1 crores was liable to be forfeited. It was further recorded in the Order dated 27.11.2013 that the suit property was sold to the second highest bidder i.e., defendants no. 4 and 5 for Rs. 22.50 crores in as much as after the bidding process was over, Rs. 22.50 crores was the best price which the property could fetch. An appeal preferred by the plaintiff was also dismissed vide order dated 13.12.2013 passed in FA(OS) No. 577 of 2013. Hence, the cancellation of bid of the plaintiff and sale of the suit property in favour of the defendants no. 4 and 5 has attained finality. The sale of a property through Court auction has to be considered sacrosanct and the same is not open to challenge in any other proceedings. Hence, the present suit is liable to be dismissed. That the suit as filed is not maintainable in as much as the plaintiff in the entire suit has not claimed any right, title or interest in the suit property and has nowhere disclosed as to what right, title or interest does he have in the suit property. The plaintiff seeks cancellation of the sale of the suit property and a decree of cancellation of the sale deed dated 09.10.2013. The plaintiff has no right, title or interest to pray for cancellation of the sale deed dated 09.10.2013 signed and executed by defendants no. 1 to 3 the erstwhile owners in favour of defendants no. 4 and 5 for valuable consideration. The plaintiff in the entire suit has nowhere disclosed as to what right, title or interest he has in the suit property. The plaintiff is neither the executant of the said sale deed nor is he claiming any right in the said property and as such the question of seeking any cancellation of an instrument of which he is not a party simply does not arise. In so far as Prayers(c) and (d), are concerned, the same are not maintainable in as much as once the plaintiff claims recovery of Rupees one crore only, there does not arise any cause of action for the reliefs of cancellation as prayed. Plaintiff has effectively admitted that the sale of the suit property was valid and the same has attained finality. Further, even the Order dated 13.12.2013 passed in FA(OS) No. 577 of 2013 has given the plaintiff only a limited liberty to institute appropriate proceedings with regard to his claim of Rupee one crore only, which has been forfeited. Hence the present suit is liable to be dismissed under Order VII Rule 11, Code of Civil Procedure, 1908. That the suit as filed is not maintainable in as much as in so far as the reliefs of cancellation sale of the suit property and cancellation of the sale deed dated 09.10.2013 as prayed in Prayers(c) and (d), in view of the provisions of the Specific Reliefs Act, 1963. Prayer Clause (c) seeks cancellation of sale of the sent property, whereas as per Section 31 of the Specific Reliefs Act, 1963, cancellation can be sought/granted only for a written instrument and not the act per se. As such the suit for cancellation of the sale of the suit property, concluded between the defendants No. 1 to 3 and the defendants no. 4 and 5, is not maintainable and the same is liable to be dismissed. So far as Prayer Clause (d) seeking cancellation of Sale deed dated 09.10.2013 is concerned, as per Section 31 of the Specific Reliefs Act, 1963, cancellation can be sought/ granted of a written instrument only if the same is void or voidable against the person seeking such cancellation.
c. Pass a decree of cancellation of the sale of the suit property bearing plot no. C102, admeasuring 325 sq. yards, Defence Colony, New Delhi concluded between the defendant no. 1 to 3 and defendant no. 4 and 5 ( second highest bidders); and/or d. Pass a decree of cancellation of the sale deed dated 09.10.2013 executed by the defendant no. 1, 2 and 3 in favour of defendant no. 4 and 5 (second highest bidders) in regard to the suit property bearing plot no. C102, admeasuring 325 sq. yards, Defence Colony, New Delhi; and/or e. Grant costs of the suit in favour of the plaintiff and against the defendants; and/or f. Pass and such further order(s) which this Hon'ble Court seems fit and proper in the interest of justice."
23. The plaint itself recounts the circumstances leading to the execution of the sale deed in respect of property described as C102, Defence Colony, New Delhi 110024 by the defendants 1 to 3 in favour of defendants 4 and 5. As per the narration of facts set down under the plaint and the orders relied upon, it emerges that instantly after the cancellation of bid of the plaintiffs, the defaulting purchaser, on the same day I.e, 09.09.2013, the counsels for the defendants requested the nominees to contact the second highest bidder Ms. Namitha Pradhan and Mr. Amit Khanna. Pursuant to the request of the counsels of the defendants the court nominees immediately approached the second bidder the very same day. Thereafter, on 18.09.2013, the defendant no. 1 to 3 entered into a Sale Agreement with the second highest bidder i.e., Ms. Namitha Pradhan and Mr. Amit Khanna (defendant no. 4 and 5 herein) at the Sale Auction instantly after the bid of the plaintiff was cancelled and security amount of the plaintiff of Rs. 1 crore was handed over to the defendants. The defendant no. 1 to 3 sold the property in question to the second highest bidder vide registered Sale Deed dated 09.10.2013 for a total consideration of Rs. 22.50 crores, which was much less than the highest bid of the plaintiff at Rs. 24.620 crore.