Delhi High Court
Kavita Arora & Ors vs Deepak Arora & Ors on 16 October, 2020
Bench: Rajiv Sahai Endlaw, Asha Menon
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 16th October, 2020
+ EFA (OS) 19/2019
KAVITA ARORA & ORS. .....Appellants
Through: Mr.Anil Sharma and Ms. Deepika
Madan, Advocates
versus
DEEPAK ARORA & ORS. .....Respondents
Through: Mrs. Kajal Chandra and Prerna Chopra, Advocates for respondents No. 1 to 3 Ms.Vandana Khurana, Advocate for respondents No.4 to 13 CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON JUSTICE RAJIV SAHAI ENDLAW EFA (OS) 19/2019 and C.M. Appl. Nos. 47444/2019 (of the appellants for stay), 54519/2019 (of respondent Nos.1 to 3 for directions) & 23313/2020 (of respondent No.1 for listing C.M. No.54519/2019 for hearing)
1. The counsel for the appellants at the outset states that the respondent No.11 Vidya Sapra has died on 12th January, 2020. It is stated that an application for substitution of her heirs has been filed.
2. No copy is found on the record.
EFA (OS) 19/2019 Page 1 of 73. Be that as it may, the counsel earlier appearing for respondent No.11 states that she is also appearing for the legal heirs of the respondent No.11.
4. Cause of action, if any and the right to sue is found to survive. The delay if any in seeking substitution, is condoned.
5. Accordingly Dr. Pramod K Sapra, being the son, and Ms. Kiran Khanna and Ms. Sangeeta Khanna, being the daughters and stated to be the only legal heirs of the deceased Vidya Sapra, are substituted in place of the deceased respondent No.11 Vidya Sapra and the amended memo of parties stated to have been also filed along with the application for substitution of legal heirs, be taken on record.
6. This Execution First Appeal has been preferred against the order dated 27th September, 2019 of the Single Judge in execution petition 56/2017 filed by the respondents/decree holders for execution of a decree for partition by sale of property bearing No. F-55 & F-56, Kohla Pur Road, Kamla Nagar, Delhi.
7. Vide the impugned order the objection of the appellants that without the decree for partition by sale being duly stamped, execution did not lie, was rejected. Aggrieved therefrom this appeal has been filed.
8. This appeal came up first before this Court on 1st November, 2019 when, without going into the aspect of maintainability EFA (OS) 19/2019 Page 2 of 7 thereof, notice thereof was issued and the appeal was adjourned from time to time. Vide order dated 21st September, 2020, a doubt was expressed as to the very maintainability of the appeal.
9. Be that as it may, vide order dated 8th October, 2020, the statements of the counsel for the respondents/decree holders, of the willingness of the respondents/decree holders to pay the stamp duty of their share was recorded and the counsels for the respondents/decree holders directed to take instructions whether the respondents/decree holders were willing to pay the stamp duty of the share of the appellants/judgment debtors also, to be reimbursed to them out of the sale consideration of the share of the appellants/judgment debtors, together with interest @12% per annum from the date of payment till the date of repayment/refund and the appellants/judgment debtors were directed to remain present in person to answer certain other queries.
10. Today, the counsels for the respondents/decree holders state that the respondents/decree holders are willing to pay the stamp duty of the share of the appellants/judgment debtors also and to take the said amount out of the sale proceeds of the shares of the appellants/judgment debtors, as proposed in the order dated 8th October 2020.
11. The counsels for the respondents/decree holders also state that the appellants/judgment debtors alone are in possession of the entire property and should be directed to vacate the property as the EFA (OS) 19/2019 Page 3 of 7 appellants/their family members interfere with the visits of brokers and prospective purchasers engaged by the respondents/decree holders for inspection of the property.
12. The counsel for the appellants/judgment debtors states that the respondents/plaintiffs/decree holders, in the plaint in the suit had described the property as only comprising of ground and first floors but there is a second floor also of the property and which has been existing for 40 years. It is contended that the respondents/plaintiffs/decree holders, while valuing the suit for partition, axiomatically did not value the second floor of the property.
13. We have enquired from the counsels, whether any issues were framed in the suit and any issue was framed on the aspect of valuation.
14. The counsels inform that the decree for partition by sale was passed on the basis of admissions in the pleadings though the counsel for the appellants/judgment debtors states that the appellants/judgment debtors in the written statement had pleaded the existence of the second floor and impugned the valuation given by the respondents/plaintiff/decree holders.
15. Be that as it may, the stage therefor, is gone. Once the decree has already been passed, at this stage, the said questions cannot be gone into. In any case, the Registry of this court, while valuing the property for the purposes of stamp duty, will follow the prescribed EFA (OS) 19/2019 Page 4 of 7 Rules.
16. We have enquired from the counsels, whether valuation of the property for the purposes of computing the stamp duty has been got done as yet.
17. The answer is in the negative. The parties, if are in a hurry, to now proceed to get the valuation done at the earliest and the Chief Controlling Revenue Authority having jurisdiction over the property No. F-55 & F-56 Kohla Pur Road, Kamla Nagar, Delhi, is directed to, on the file of the execution petition, within one month of today, place a valuation report of the property. The respondents/plaintiffs/decree holders to, on the basis of this order and alongwith copy thereof to approach the Chief Controlling Revenue Authority/SDM concerned and to facilitate the inspection of the property for the purposes of valuation and to have the valuation report placed on the file of the execution petition, within the time aforesaid.
18. The presence of the appellants/judgment debtors today was directed because it was informed on the earlier date that the appellants/judgment debtors had mortgaged the property. The appellants/judgment debtors are present today and have handed over to the counsel for the respondents/decree holders the Statements of Accounts of Union Bank of India, Nehru Place Branch, of two loan accounts against which the property has been mortgaged. It is informed that amount outstanding in the two EFA (OS) 19/2019 Page 5 of 7 accounts is in the sum of total about Rs.57 lakhs, as of today.
19. On further enquiry, it is informed that the entire property is in possession of the appellants/judgment debtors and their family members and none else is in occupation of any part of the property and the market value of the property is over Rs.10 crores and the one-fifth share of the appellants/judgment debtors would be enough to satisfy the mortgage amount.
20. The counsel for the appellants/judgment debtors, under instructions from the appellants/judgment debtors present in the Court, states that neither the appellants nor any of their family members present in the property, will obstruct inspections sought to be given by the respondents/decree holders or the agents of the respondents/decree holders, of the entire property to any broker or prospective purchasers and at all times allow the same.
21. It is made clear that if there is any complaint of obstruction by the appellants/judgment debtors or their family members, in spite of statement made today, the respondents/decree holders shall be entitled to seek warrants for dispossession of the appellants/judgment debtors and their family members from the property to enable the sale of the property. The appellants/judgment debtors and their family members shall however be liable to deliver vacant and peaceful physical possession of the entire property to the purchaser and if fail to do so, shall be liable to be ejected therefrom as if in pursuance to a EFA (OS) 19/2019 Page 6 of 7 decree for recovery of possession of the immovable property.
22. Accordingly, the appeal is disposed of, as aforesaid without going into the aspect of maintainability thereof, binding the parties, particularly the appellants/judgment debtors, to the statements or stand as recorded above in this order. On the respondents/plaintiffs/decree holders paying the share of the appellants/judgment debtors of stamp duty on the decree, the respondents/decree holders shall be entitled to reimbursement thereof from out of the sale proceeds of the property of the share of the appellants/judgment debtors, together with interest @ 12% per annum thereon from the day of payment and till the date of reimbursement, after however payment out of the share of the sale proceeds of the appellants/judgment debtors of the dues of the bank to discharge the mortgage on the property.
RAJIV SAHAI ENDLAW (JUDGE) ASHA MENON (JUDGE) OCTOBER 16, 2020 ak/pkb EFA (OS) 19/2019 Page 7 of 7