* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.12.2012
+ CS(OS) 955/2012
NARENDER KUMAR GOEL AND ANR ..... Plaintiff
Through: Mr. Gurinder Pal Singh, Mr. Gaurav Barathi
and Mr. Mishal, Advocates
versus
JAI PRAKASH GOEL ..... Defendant
Through: None
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
1. This is a suit for partition, permanent injunction and rendition of accounts. The case of the plaintiffs is that they, along with defendant, purchased the property bearing number PU-22, Visakha Enclave, Pitampura, Delhi and, therefore, the parties to the suit have 1/3rd share each in the said property which comprises of ground floor, first floor, second floor and the terrace. The ground floor is stated to be in possession of the defendant whereas the first floor, second floor and the terrace are stated to be occupied by the tenant. It is also alleged that the entire rent of the tenanted portion is being realized by the defendant alone. At one point of time, the aforesaid property was mortgaged with the Union Bank of India, but the CS(OS) 955/2012 Page 1 of 5 loan taken from the bank stands settled on payment of Rs 65 lakhs and a Settlement Certificate dated 3.3.2008 has already been issued by the bank in this regard. It is alleged that on receipt of Settlement Certificate from the bank, the plaintiff approached the defendants and offered to pay their share in the settlement amount of Rs.65 lac, which the defendant had paid to the bank as against the total due of Rs.1,19,78,541/-. The plaintiff claims to have requested the defendant on or about 4.4.2012 to partition the suit property. Since the defendant has neither come forward to partition the suit property nor rendered accounts of rent realized by him from the first floor, second floor and the terrace, the plaintiffs are now seeking a decree for partition of the aforesaid suit property besides rendition of account in respect of the rent realized by the defendant. They are also seeking an injunction restraining the defendant form creating any third party interest in the aforesaid property.
2. Since the written statement was not filed despite more than 90 days having expired, the defence was struck off vide order dated 20.11.2012. The plaintiffs were, however, directed to file affidavits by way of evidence in order to satisfy the Court with respect to the merits of this case.
3. The plaintiffs no.1 and 2 have accordingly filed affidavits by way of evidence, supporting on oath the case set out in the plaint and also proved various CS(OS) 955/2012 Page 2 of 5 documents relied upon by them. Both the plaintiffs have stated that the suit property was jointly owned by the parties to the suit and all of them have 1/3 rd share each in the said property. They have also stated that the entire rent of the first floor, second floor and the terrace which has been let out to a tenant is being realized by the defendant alone. They further stated that the aforesaid property was mortgaged with Union Bank of India for taking a loan in favour of M/s Baboo Lal Jai Prakash, which was a partnership firm of plaintiff no.1 and the defendant. Since the partnership firm closed down and did not pay the dues of the bank, an OA was filed by the bank for recovery of its dues. The defendant, however, approached the bank and settled the matter with it vide Certificate Ex.PW1/4. They have also stated that they had requested the defendant to partition the suit property and render accounts of the rent realized by him, but he failed to do.
4. Ex.PW1/2 is the certified copy of the Conveyance Deed executed by one Madan Mohan in favour of Jai Prakash Goel, Narender Kumar and Anil Kumar, parties to the suit, in respect of property bearing number PU-22, Visakha Enclave, Pitampura, Delhi measuring 126 sq. yards. Ex.PW1/3 (Colly) are the three site plans filed by the defendant, one in respect of ground floor, second in respect of the first floor and the third one is in respect of second floor of the suit property. Ex.PW1/8 is the Settlement Certificate dated 3.3.2008 which shows that the bank accepted a sum of Rs.65 lac from the defendant Jai Prakash Goel in full and final CS(OS) 955/2012 Page 3 of 5 settlement of its dues against the partnership firm M/s Baboo Lal Jai Prakash. It further shows that Mr. Jai Prakash Goel, defendant in this suit, and Mr. Narender Kumar Goel, plaintiff no.1 in the suit, were the partners of the aforesaid firm, whereas Mr. Anil Kumar, plaintiff no.2 in this suit had, stood guarantor of the loan taken by the said firm.
5. I see no reason to disbelieve the unrebutted preposition of the plaintiff which stands corroborated from the documentary evidence produced by them in the form of Conveyance Deed executed in joint name of all the parties to the suit. Mere redeeming the mortgage does not transfer share of the plaintiffs in the suit property to the defendant, though he may be entitled to recover, from the concerned plaintiff, his share in the amount paid by him to the bank for redeeming the mortgaged property. Accordingly, a preliminary decree for partition is passed declaring that the parties to the suit have 1/3rd share each in the property bearing number PU-22, Visakha Enclave, Pitampura, Delhi measuring 126 sq. yards.
6. Mr. Ashish Sharma, Advocate who is present in the Court is hereby appointed as the Local Commissioner to visit the suit premises and suggest the mode of its partition by metes and bounds. He shall be entitled to engage an architect, if so required by him and in that event, the fees of the architect would also be shared equally by the parties to the suit. Since the defendant has not come CS(OS) 955/2012 Page 4 of 5 forward to contest the suit, initially the fees of the Local Commissioner as well as architect, if any engaged by him, shall be paid by the plaintiff. The orders with respect to the adjustment of the share of the defendant in the fee of the Local Commissioner and the architect would be passed at the time of passing the final decree. The fee of the Local Commissioner is fixed at Rs.35,000/- which shall be paid in terms of this order.
7. Since the suit property was jointly owned by the parties, the defendant alone cannot appropriate the whole of the rent realized by him from the tenant and he must render accounts to the plaintiff, in respect of the rent, realized by him. A preliminary decree for rendition of account is also hereby passed directing the defendant to render the account in respect of the rent realized by her from letting out the first floor, second floor and the terrace of the suit property. The account would be rendered to the Local Commissioner appointing by this Court within four weeks from today.
Decree sheet be drawn accordingly.
Renotify on 7.2.2013, awaiting the report of the Local Commissioner.
V.K. JAIN, J OCTOBER 15, 2012 rd/bg CS(OS) 955/2012 Page 5 of 5