Surinder Pal Singh vs Balbir Kaur & Ors.
2009 Latest Caselaw 4714 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          I.A. No. 11099/2009 in CS (OS) No. 1181/2009

                                 Reserved on: November 6, 2009
%                                Decided on: November 19, 2009


Surinder Pal Singh                                             ...Plaintiff
                      Through    : Mr. Deepak Chopra, Adv.

                                 Versus

Balbir Kaur & Ors.                                        ...Defendants
                      Through    : Mr. Atul Bhuchar, Adv. for D1-2

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      No

2. To be referred to Reporter or not?                   No

3. Whether the judgment should be reported
   in the Digest?                                       No

MANMOHAN SINGH, J.

1. By this order, I shall dispose of I.A. No. 11099/2009 filed by

defendant no. 1 under Section 151 of the Code of Civil Procedure, 1908

seeking this court‟s permission to put up a vacant property being

property no. C-192, Vikas Puri, New Delhi on rent.

2. Brief facts of the case are as follows. The plaintiff filed the

present suit for partition, declaration, rendition of accounts, permanent

injunction and cancellation of a relinquishment deed. The plaintiff is the

son of defendant no. 1 and the brother of defendant no. 2 and together,

they are the co-owners of the properties bearing number 1, LSC, C

Block Market, Vikas Puri, New Delhi- 110018; C-192, Vikas Puri New

Delhi-110018; 308, LSC, C Block Market, Vikas Puri, New Delhi-

110018; 15% undivided share in the basement and ground floor of D-

116 Viaks Puri, New Delhi-110018(hereinafter collectively referred to as

„the suit properties‟) and of a Honda City car bearing no. DL-2FDC-

7000.

3. The suit properties were bought by late Sh. Manohar Singh

Kochhar, father of the plaintiff as well as defendant no. 2 and husband of

defendant no. 1. A property bearing number C-205, Vikas Puri, New

Delhi had been bought by the plaintiff as well as the deceased jointly,

and loan for the same was obtained in the plaintiff‟s name, though the

property was in the name of the deceased. To avoid any confusion in the

future, the parties decided that all the past, present and future properties

of the deceased would devolve, be sold/purchased in the name of

defendant no. 1 and defendant no. 1 would hold the share of the other

family members in a fiduciary capacity. A relinquishment deed dated 8th

November, 2005 was executed to this effect. Sh. Manohar Singh

Kochhar passed away on 19th October, 2005.

4. The plaintiff recently became aware of the fact that on 8 th

April, 2009 defendants no. 1 and 2 sold the entire property at D-116

Vikas Puri, New Delhi (including his share) to defendants no. 3 and 4 at

a low price of Rs. 10,00,000/- when the market price of the said property

is at least Rs. 50,00,000/-. Further, defendants no. 1 and 2 have been

behaving pettily and in a dishonest manner and have also threatened the

plaintiff that they would sell off all the properties etc., leading the

plaintiff to file the present suit as 1/3rd owner of all the suit properties.

5. On 7th July, 2009 this court passed an order directing the

parties to maintain status quo as regards the title and possession of the

suit properties. The said order was later on suspended in order dated 12 th

August, 2009 due to the reason that the earlier suit filed by the plaintiff

had been withdrawn. However, on fresh application, defendants no. 1

and 2 made statements before the court to the effect that they did not

intend to sell/dispose of the suit properties. All the properties are in

the name of defendant no. 1 who had taken several loans for

purchasing these properties, details of which have been reproduced

hereunder :

"A. Loan against property no. C-192, Vikas Puri, New Delhi- 18 from HDFC bank, for an amount of Rs. 87,00,000/- (eighty seven lacs only). The monthly installment of the same is 1,12,954/-.(Rupees one lac twelve thousand nine hundred and fifty four only).

B. Loan against property bearing no. 308, LSC, C Block Market, Vikas Puri, New Delhi-18, from India Bulls Housing Finance for an amount of Rs. 32,00,000/- (rupees thrity two lacs only). The monthly installment of the same is Rs. 54,329/- (Rupees Fifty Four thousand three hundred and twenty nine only)."

6. In view of the above-mentioned, defendant no. 1 has

submitted that she is under a total monthly liability of Rs. 1,67,283/- and

for this reason is seeking permission to rent out the second and third

floor of property mentioned in "A" above as well as property mentioned

in "B" above. The rental income from the said two properties would

greatly reduce the burden on defendant no.1 and therefore, it is prayed

that she may be allowed to rent out the said properties.

7. In his reply, the plaintiff has submitted that the application

under consideration ought to be dismissed as it has been filed on false

and frivolous grounds. It has been submitted that defendant no. 1‟s

contention that the monthly liability of installments is on her alone is a

false statement as the documents on the basis of which the loans were

sanctioned were signed by defendant no. 1 as well as the plaintiff and

therefore, the liability is not hers alone. Further, the plaintiff has

submitted that he has transferred cash from the family business into

defendant no. 1‟s bank account ahead of the time schedule for loan

repayment so that the said schedule may be adhered to without placing

the suit properties on rent.

8. It is further stated that defendants no. 1 and 2 have violated

this court‟s order dated 7th August, 2009 as they have transgressed into

the upper ground floor and first floor of the property being C-192, Vikas

Puri, New Delhi despite being aware of this court‟s orders as regards the

same. Being only two in number, the said defendants are occupying two

floors of C-192 Vikas Puri, New Delhi which consist of eight rooms,

two drawing rooms, eight toilets and four kitchens.

9. It is the plaintiff‟s contention that the present application has

been filed by defendant no. 1 only to save herself and defendant no. 2

from the repercussions of violating orders of this court. In fact, the main

contention of the plaintiff is that the present application has been filed by

defendant no. 1 only to divert the attention of this court from the

plaintiff‟s application under Order XXXIX Rule 2A of the Code of Civil

Procedure. Further, defendant no. 1 has grossly underestimated the

amount of rent proceeds from the suit properties.

10. Counsel for the plaintiff has prayed that the plaintiff be

allowed to occupy the second and third floor of C-192 Vikas Puri, New

Delhi or in the alternative, that defendants no. 1 and 2 be directed to rent

out the property at C-192 Vikas Puri, New Delhi to the best lessee i.e. to

the lessee who pays the maximum amount of monthly rent and that all

parties be allowed to bring/introduce such lessees.

11. I do not agree with the submission of the plaintiff as firstly,

prima facie it is doubtful as to whether the plaintiff‟s present suit is

maintainable, because of the fact of withdrawal of the earlier suit CS

(OS) No. 296/2009 by the plaintiff filed against the defendants;

secondly, there is no proof on record to show that defendant no. 1 has

breached the status quo order dated 7th August, 2009, i.e. at present, it is

merely a statement of the plaintiff which cannot be accepted without

reply or hearing; thirdly, there is no interim order restraining defendant

no. 1 from letting out the property in dispute on rent and still defendant

no. 1 has sought the permission of this court, which clearly shows bona

fide on the part of defendant no. 1.

12. Order dated 7th August, 2009 directed the parties to maintain

status quo of the title and possession of the suit properties. However, by

order dated 12th August, 2009 this court suspended the order of status

quo. On 17th August, 2009 while giving the defendants time to reply to

the plaintiff‟s application for ad interim ex parte injunction, the court

noted that counsel for defendants no. 1 and 2 stated that the said

defendants have no intention of selling any of the suit properties but if in

case they developed any inclination to sell the same, they would obtain

the court‟s permission.

13. I have perused the submissions of both parties. The plaintiff

has annexed along with his reply a copy of the documents pertaining to

the loans taken from Indiabulls Housing Finance Limited and Bank of

Punjab. The said documents are in the name of the plaintiff as well as

defendant no. 1.

14. I find that there is no impediment in allowing the present

application filed by defendant no. 1 as repayment of the loan will reduce

the burden of liability on both parties and therefore be beneficial for all

parties concerned. Without any prejudice to the contentions of the parties

on merit, I hereby allow the said application with the direction that the

lease deed/rent agreement be filed with the court as and when an

appropriate lessee is found and the same is finalized.

Application disposed of accordingly.

CS (OS) No. 1181/2009

List this matter before the Joint Registrar on 20 th January,

2010, the date already fixed.

MANMOHAN SINGH, J.

NOVEMBER 19, 2009 nn