* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 931/2017
% Reserved on: 1st December, 2017
Pronounced on: 8th December, 2017
SHALINI ARORA ..... Appellant
Through: Rana S. Biswas and Mr. Sunil
Sharma, Advocates.
versus
SURJIT SINGH & ORS. ..... Respondents
Through: Mr. Raman Kapur, Sr. Adv. with
Mr. Hemant Gupta, Adv. for R-1
to 6.
Mr. Moni Cinmoy, Adv. for R-7.
Mr. Jinendra Jain, Adv. for R-8.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the suit impugning the judgment of the trial court dated 13.1.2017 by which the trial court has decreed the suit filed by the plaintiffs/respondent nos. 1 to 6 herein. By the impugned judgment RFA No. 931/2017 Page 1 of 16 and decree dated 13.1.2017 trial court has held that respondent nos. 1 to 6/plaintiffs are entitled to declaration that the bid of the appellant and respondent no.8/defendant nos. 2 and 3 submitted to the respondent no.7/defendant no.1/Delhi State Industrial Development Corporation (DSIDC) with respect to the question-purchase of the subject property being Shed No. A-13, Industrial Complex, Nangloi, Delhi was liable to be cancelled as it was manipulated/altered after being submitted. It has also been held by the impugned judgment and decree that the respondent nos. 1 to 6/plaintiffs are entitled to mandatory injunction to get the subject property allotted in their name and for receiving possession of the same. By the impugned judgment it has been held that the bid given by the defendant nos. 2 and 3 in the suit viz the appellant/defendant no.2 and respondent no.8/defendant no.3 was a manipulated bid on account of fabrication of the bid and therefore such bid although was the lowest bid, the same has to be rejected, and consequently, the next highest bid of the respondent nos. 1 to 6/plaintiffs has to be accepted.
2. The facts of the case are that in January 2004, the respondent no.7/defendant no.1/DSIDC invited tenders for sale of the RFA No. 931/2017 Page 2 of 16 subject property. The reserved price fixed was Rs.43.50 lacs and earnest amount was fixed at Rs.1 lac. Respondents no.1 to 6/plaintiffs offered a sum of Rs.55 lacs on 29.1.2004 with the requisite bank draft towards earnest money. When the respondent nos. 1 to 6/plaintiffs had submitted their bid, the appellant and respondent no.8/defendant nos.2 and 3 were also present and who were known to the respondent nos. 1 to 6/plaintiffs. As the time for filing the tender was over hence the respondent no.1/plaintiff no.1 revealed his offering price to the respondent no.8/defendant no.3 and whereupon respondent no.8/defendant no.3 went away on pretext of doing some work. At about 4 pm, when the bids were opened it transpired that the tender of the appellant and respondent no.8/defendant nos. 2 and 3 was just Rs.1,000/- more than that of the respondent nos. 1 to 6/plaintiffs i.e the appellant and respondent no.8/defendant nos. 2 and 3 had been successful as their bid was Rs.55,01,000/-. Since the respondent nos. 1 to 6/plaintiffs were of the opinion that the bid of the appellant and respondent no.8/defendant nos. 2 and 3 was manipulated by the appellant and respondent no.8/defendant nos. 2 and 3, after its submission, therefore they filed their objections to the auction sale RFA No. 931/2017 Page 3 of 16 before the Chairman of the DSIDC. The fact was that the appellant and respondent no.8/defendant nos. 2 and 3 colluded with each other whereby the tender given by the respondent no.8/defendant no.3 was, after its submission, manipulated to include the name of appellant/defendant no.2 as it was agreed between them to the share profits of the successful tender for the subject property. It was pleaded that appellant and respondent no.8/defendant nos. 2 and 3 in connivance with the officials of the DSIDC fraudulently changed the entries in the tender form and vide letter dated 9.2.2004 tender of the appellant and respondent no.8/defendant nos. 2 and 3 was accepted as the highest tender. Appellant and respondent no.8/defendant nos. 2 and 3 deposited Rs.13 lacs on 8.3.2004 with the remaining amount having to be paid within three months. Thereafter, respondent no.7/defendant no.1/DSIDC received the letter from the respondent no.8/defendant no.3 that he was withdrawing his name from the tender and the allotment will made in the sole name of the appellant/defendant no.2, however thereafter respondent no.8/defendant no.3 intimated respondent no.7/defendant no.1/DSIDC that his request for deleting his name be withdrawn and he should be RFA No. 931/2017 Page 4 of 16 continued as a co-allottee. On 1.4.2004, the appellant/defendant no.2 deposited the balance amount of Rs.41,01,000/-. Respondent nos.1 to 6/plaintiffs wrote to respondent no.7/defendant no.1/DSIDC for cancelling of the tender accepted of the appellant and respondent no.8/defendant nos.2 and 3 and requested that instead of the appellant and respondent no.8/defendant nos.2 and 3, the respondent nos. 1 to 6/plaintiffs be declared as the successful bidders. Having failed in this regard the subject suit was filed. In the meanwhile, disputes and differences arose between the defendant nos. 2 and 3 i.e the appellant and respondent no.8 resulting a writ petition being filed in this Court by the respondent no.8/defendant no.3 and in such writ petition the allotment of the shed was stayed.
3. The suit was contested by the appellant/defendant no.2 and the respondent no.8/defendant no.3. They filed separate written statements. Whereas the respondent no.8/defendant no.3 in his written statement admitted that the tender was first solely filled in the name of the respondent no.8/defendant no.3 namely Sh. Kishan Lal and the name of the appellant/defendant no.2/Smt. Shalini Arora was added later on, however, in the written statement filed by the RFA No. 931/2017 Page 5 of 16 appellant/defendant no.2 it was denied that any changes whatsoever had taken place in the tender form and the tender form was always jointly filled in the names of the appellant and the respondent no.8/defendant nos.2 and 3. It was denied that any manipulation had taken place. It was prayed that the suit be dismissed inasmuch as there was no manipulation or fabrication as alleged by the respondents no. 1 to 6/plaintiffs.
4. After pleadings were completed, the trial court framed the following issues:-
"(i) Whether the plaintiff is entitled to a decree of declaration declaring the acceptance of the bid of the defendant nos. 2 and 3 of Shed No.A-13, Industrial Complex, Nangloi, Delhi is illegal, null and void and if so its effect? OPP.
(ii) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
(iii) Relief."
5. I may note that the respondent nos. 1 to 6/plaintiffs led evidence in support of their case, but no evidence has been led from the side of the defendants including the appellant/defendant no.2. The order of the trial court closing the evidence of the defendants dated 12.3.2015 has become final. Therefore, present case is a case where evidence is led by the respondent nos. 1 to 6/plaintiffs and who have RFA No. 931/2017 Page 6 of 16 proved their case, on the other hand there is no evidence led on behalf of any of the defendants, including the appellant.
6. On the basis of the document Ex.D-3 (also Ex.PW1/1) being the original tender form which is only in the name of Sh. Kishan Lal/respondent no.8/defendant no.3, and the altered tender form proved and exhibited as Ex.PW1/3 showing that there were subsequent changes in the same of addition of the name of Smt. Shalini Arora/appellant/defendant no.2 as also clear cut overwriting in the amount to change the amount to the amount of Rs. 55,01,000/-, trial court has held that respondent nos. 1 to 6/plaintiffs have been successful in proving the manipulation of the tender by the appellant/defendant no.2 in collusion with the respondent no.8/defendant no.3 after its original submission.
7. In order to appreciate the factum of manipulation and alterations made in the tender form as originally submitted by the respondent no.8/defendant no.3 which is Ex.D-3 and the altered tender form which is Ex. PW1/3, the same are reproduced as under:- RFA No. 931/2017 Page 7 of 16 RFA No. 931/2017 Page 8 of 16 RFA No. 931/2017 Page 9 of 16 RFA No. 931/2017 Page 10 of 16 RFA No. 931/2017 Page 11 of 16
8. I may note that there is no dispute that the original tender form Ex.D-3/Ex.PW1/1 and amended tender form Ex.PW1/3 are different because in the altered/amended tender form the name of the appellant/defendant no.2/Smt. Shalini Arora is shown by a subsequent addition on the right hand side in the column 1 of the form and that the amount given in the original tender form at Rs.53,01,000/- stood changed in the altered tender form Ex.PW1/3 to become Rs. 55,01,000/-. Not only there is clear cut overwriting in the amount to change the figure both in letters and words, since there existed alteration, hence the alterations are in fact signed by both the appellant and the respondent no.8/defendant nos. 2 and 3 to validate the alterations.
9. The only issue before the trial court as also this Court is as to whether there was or was not manipulation after the tender form no.102 was first submitted. In my opinion, since the respondent nos. 1 to 6/plaintiffs have led evidence and proved their case and the appellant and respondent no.8/defendant nos.2 and 3 have led no evidence, the case of the respondent nos. 1 to 6/plaintiffs has to be accepted, and more so because of the fact that clearly there are RFA No. 931/2017 Page 12 of 16 changes found to be existing from the tender form as originally existed being Ex.PW1/1/Ex.D-3 when compared to the manipulated/altered the same tender form no.102 which is Ex.PW1/3. It is extremely relevant to note that the tender form which is Ex.D-3 has been specifically admitted by the respondent no.8/defendant no.3 during the admission/denial of documents and once the tender form no.102 as originally existing is found to be admittedly different than the altered form Ex.PW1/3, trial court in my opinion was completely justified in holding that the appellant and respondent no.8/defendant nos.2 and 3 had manipulated the tender for becoming a successful highest bidder by changing their tender amount to just Rs.1000 more than as was filled by the respondent nos. 1 to 6/plaintiffs at Rs.55 lacs.
10. It is also important to note that the dishonesty of the appellant/defendant no.2 and the respondent no.8/defendant no.3 becomes clear from the fact that in their separate written statements separate stands were taken, i.e whereas the appellant/defendant no.2 claimed that always the tender form was the same without any alterations, the respondent no.8/defendant no.3 however admitted that tender form was changed than as originally filled in. In my opinion RFA No. 931/2017 Page 13 of 16 the very fact that the name of the appellant/defendant no.2/Smt. Shalini Arora is clumsily filled in only later on in the tender form no.102 becomes quite clear from the fact that the name of the appellant/defendant no.2/Smt. Shalini Arora appears on the blank right hand side portion of the form and to the right hand side of the name of Sh. Kishan Lal/respondent no.8/defendant no.3. The name of Sh. Kishan Lal/respondent no.8/defendant no.3 is found to be written over the underlined portion, but it is in the blank portion to the right hand side of the underlined portion that the name of the appellant/defendant no.2 has been added. Whatever doubt remains becomes clear from the ex facie and apparent change in the tender amount to Rs. 55,01,000/- by the appellant and respondent no.8/defendant nos. 2 and 3 and which changes both in figure and words to increase the tender amount to Rs. 55,01,000/- has been signed by the appellant and the respondent no.8/defendant nos. 2 and 3 i.e all signatures are there because of changes having been made to the tender amount and to validate the alterations by the additional signatures adjacent to the alterations.
11. Learned counsels for the appellant and respondent no.8/defendant nos. 2 and 3 argued before this Court that now a RFA No. 931/2017 Page 14 of 16 conveyance deed has been executed in favour of the appellant/defendant no.2 since the appellant/defendant no.2 was successful in establishing her case in the writ petition and therefore the present suit would not lie as the conveyance deed in favour of the appellant/defendant no.2 has to be first cancelled, however this argument is misconceived because once the present suit is successful and it is directed that the bid given by the appellant and respondent no.8/defendant nos.2 and 3 has to be cancelled then obviously and consequently the conveyance deed executed in favour of the appellant and/or respondent no.8, either individually or even if exists jointly if it had been so executed, has to be cancelled. This is all the more so because the judgment in the writ petition would not operate as res judicata against the respondent nos. 1 to 6/plaintiffs because they were not parties to the writ petition where only inter se disputes between the appellant and respondent no.8/defendant nos.2 and 3 were decided. Therefore, now DSIDC will have to cancel the conveyance deed executed in favour of the appellant/defendant no.2 and the concerned Sub-Registrar is directed to register this cancellation deed with the fact that DSIDC should now execute the conveyance deed of the subject RFA No. 931/2017 Page 15 of 16 property in favour of the respondent nos. 1 to 6/plaintiffs and thereafter register the same with the concerned Sub-Registrar. Respondent nos. 1 to 6/plaintiffs will be liable to pay for all the necessary charges which are payable for the stamp duty etc towards execution and also for charges of the registration of the conveyance deed which will be executed by DSIDC in favour of the respondent nos. 1 to 6/plaintiffs.
12. In view of the aforesaid discussion there is no merit in the appeal which is dismissed.
DECEMBER 08,2017/ib VALMIKI J. MEHTA, J
RFA No. 931/2017 Page 16 of 16