Delhi High Court
Smt. Satwant Chwdhry vs Smt. Sharda Chowdhary on 8 October, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 10120/2009 in CS (OS) No. 1704/2008
Reserved on: 18th September, 2009
% Decided on: 8th October, 2009
Smt. Satwant Chowdhry ...Plaintiff
Through : Mr. Manish Makhija, Adv.
Versus
Smt. Sharda Chowdhary ...Defendant
Through : Mr. V.K. Kalra, Adv.
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 No
in the Digest?
MANMOHAN SINGH, J.
1. The present application under consideration has been filed by
the plaintiff under Section 151 of the Code of Civil Procedure, 1908 with
the prayer that a Court Auctioneer be appointed and directed to sell by
way of public auction the property bearing municipal number VII/2871
(old) and 4874 (new), Ward No. VII Abadi of Phatak Namak wala,
Bazar Sirkiwalan, Delhi (hereinafter referred to as the 'suit property'),
that the Court Auctioneer be directed to divide and handover 50% of the
sale proceeds to both parties after deducting the expenses incurred in
arranging the public auction, and that the defendant be directed to assist
the entire above-stated procedure and not create any hindrance to the
same.
2. The brief facts necessary for reflection at this point are that
the plaintiff filed the present suit for partition of the suit property, for
permanent injunction restraining the parties to maintain status quo, for
mandatory injunction restraining the defendant, her associates, agents
etc. from selling, alienating or creating any third party interest in the suit
property.
3. On 19 August, 2008 this court passed an order restraining the
defendant from doing selling, transferring, creating any third party
interest on the suit property. On 24 February, this court noted that there
was no dispute between the parties as to 50% ownership of each and
thus, the only remnant dispute is how to divide the property. By order
dated 15 May, 2009 this court passed a final decree for partition by sale
of the property by mutual effort of the parties. In case such efforts failed,
the parties were given the liberty to apply for sale through the process of
the court.
4. In the present application, the plaintiff has stated that she sent
a letter dated 25 May, 2009 through her counsel to the defendant,
inviting her to meet and settle the sale of the suit property. The letter also
stated that the if the defendant did not respond/revert back within 10
days from the receipt of the letter, the plaintiff would conclude that the
defendant was not interested in selling it by mutual cooperation and
would file an application with this court for the same. The said letter is
annexed as Annexure 'A'. The plaintiff avers that she has attempted to
talk to/arrive at a conclusion with the defendant as to the sale of the suit
property, but to no avail. It is in these circumstances that the present
application has been filed.
5. The defendant, on the other hand, has stated that the plaintiff
left India on 15 May, 2009 and that she has not contacted the defendant
herself or through anyone since. The suit property is locked and the
plaintiff's counsel conveyed to the entire market that the same is
disputed property. As such, it would be impossible to locate a buyer until
the plaintiff visits the area of the suit property with the defendant/son or
husband of the defendant to show unity and to clarify that the suit
property is no longer disputed. The defendant merely asks the plaintiff
be directed to contact the defendant through her attorney to get the buyer
of the property in the market.
6. I have perused the contentions of the parties. It appears that
no reason has been given by the defendant for not answering the
plaintiff's letter dated 25 May, 2009 though its receipt has been affirmed
to be on or after 29 May, 2009. In such circumstance, the defendant's
statement that the plaintiff has never tried to contact her is clearly ruled
out. Since both parties want to sell the property and this court's order to
the same effect was passed as early as on 15 May, 2009, and since
almost five months have passed and the parties seem unable to arrive at
any mutual plan/buyer/strategy for sale, and since the said order gave
either party liberty to approach this court in case mutual sale was
deemed improbable, it deems appropriate to appoint a local
commissioner for the said purpose.
7. Accordingly, I appoint Mr. Ankur Garg, Adv. (Mobile
No.9971420555) as Local Commissioner. The Local Commissioner is
directed to take necessary steps for inviting offers from the public for
auctioning the suit premises. For the purpose of ascertaining the value
of the suit property, the Local Commissioner shall be at liberty to engage
a government approved valuer who will submit his report to the Local
Commissioner. After the government approved valuer gives his report,
the Local Commissioner shall fix the same as the basic price for inviting
offers from the public for sale of the suit premises. He shall take all
further steps in pursuance thereof by publishing a proclamation of sale in
the newspaper and inviting bids in respect of the suit premises. The bids
shall be accompanied by a token amount toward earnest money. After
finalizing the highest bidder, a report shall be submitted by the Local
Commissioner to the Court. The fee of the Local Commissioner is
tentatively fixed at Rs.40,000/- to be shared equally by the parties in
proportion to the entitlement of the parties in the suit premises. Fee of
the government approved valuer shall be paid in the same manner.
8. List the matter before the Court on 3rd February, 2010.
MANMOHAN SINGH, J.
OCTOBER 08, 2009
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