Ram Dulari vs Jai Narain Prasad Fa
2009 Latest Caselaw 3890 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                              Pronounced on :22.09.2009

+                              CS(OS) 387/1993

RAM DULARI                                                    ....... Plaintiff

                        Through : Mr. Vinod Kumar, Advocate
                                             Versus

Jai Narain Prasad FA                                 ....... Defendant

                Through : Mr. R.P. Bansal, Sr. Advocate with
                Mr. Manjula Gandhi, Mr. Gautam Anand and Mr. P.K. Tyagi,
                Advocates.
              Ms. Maninder Acharya, Advocate.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers                         Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                            Yes

3.     Whether the judgment should be                                Yes
       reported in the Digest?

HON'BLE MR. JUSTICE S.RAVINDRA BHAT (Open Court)

*

1. This order proposes to dispose of certain applications which have been pending in this case for over 9 years; they mainly concern the conduct of an auction, under orders of the court, on 21-3-2000.

2. In view of the order made- with consent of counsel for the parties, more particularly, the third defendant (who is also present in court), there is no need to discuss in detail the contours of the controversy. The plaintiff sought partition of suit properties as shown in Schedule `A' annexed with the plaint. The court by its judgment dated 19-10-1978 declared the shares of the concerned parties, and directed that a preliminary decree should be drawn. Concededly, the plaintiff was held entitled to 25% of the share in Schedule A properties - she had the largest share. The entitlements of the other parties too were delineated. The third defendant, Jagadish Parshad, was held entitled to 6 %; it is not disputed that due to death in the interregnum, this increased to 6.25%.

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3. There appears to have been a deadlock, and nothing happened for over two decades. On 16-12-1998, the court directed the third defendant to ascertain the value of his share, to enable the other parties to decide whether that amount could be paid - he appears to have been the contesting party. The counsel for some other parties had indicated the value of the five properties being shown as Serial Nos. 1, 9, 10, 11 and 12 as shown in Schedule `A' at Rs. 60 lakhs. The court noted, on 18-1-1999, that no valuation had been made, and the response to the valuation of the other parties too was not disclosed. The order dated 17-3- 1999, after noting the third defendant's inability to accept the valuation, and also the inability to value his share, appointed a commissioner to conduct the auction; the court directed that individual properties in schedule A should be auctioned, and 10% of the bid amount was to be deposited by the successful bidder. The later order dated 10-5-1999 noted that the auction had not yet been conducted; it also recorded the parties' contention that properties mentioned in Sl. Nos. 2,3,5,6,8 and 16 had already been sold and such the same are not required to be sold in auction. Again, on 12th August, 1999, the court noted that nothing happened, and directed the previous orders to be complied with. On 6-12-1999, the court noted that the commissioner appointed earlier did not appear to be interested, and appointed a new commissioner (an official of the court) to conduct the auction, within 45 days. The same direction was repeated by the subsequent order of 13-3-2000; no auction had been carried out. That day, the court directed the auction to be held in accordance with the previous directions within 10 days; the parties were required to be present before the commissioner for the purpose on 21-3-2000.

4. The commissioner, by his report, states that an auction proceeding was held on 21-3- 2000, when some parties wanted the auction to be put off due to illness of plaintiff and unavailability of certain defendants. The commissioner, perhaps feeling compelled by the court's order, declined the request. Resultantly, the parties who were present - except the third defendant, did not participate in the auction. The third defendant however, did so, and submitted bids for all the schedule A properties; the total amount worked out to Rs. 32,75,000/-. Since this was the lone bid, the commissioner accepted it.

5. In the meanwhile, the plaintiff had filed an application to postpone the auction, due to her illness; the application was supported by a medical certificate. She was at that time an old lady. Other applications were also filed by some defendants, suggesting that some properties should be excluded from the auction. These remained pending, and the auction went ahead.

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6. All the applications concerning the conduct of auction - including the request for its postponement, as well as objection to the report, and the request for excluding some properties, remained pending in court, for over nine years. These were heard by the court. During the hearing, the plaintiffs relied on the judgment of the court reported as Rani Aloka Dudhoria -vs- Goutam Dudhoria 2009 (3) JT 626, where, recollecting the law on the subject, and interpreting Sections 2 and 6 of the Partition Act, 1893, the Supreme Court ruled on the mandatory obligation to fix a reserve price for the auction, before proceeding further. The judgment reiterated the principle recognised in Malati Ramachandra Raut -vs- Madhavrao Vasudeo Joshi 1991 Supp (1) 321 that the court is under a duty to order valuation of the shares of the party asking for sale of property, under Section 2 and offer to sell the shares to the shareholders, applying for leave to buy them.

7. After some hearing, Ms. Acharya, learned counsel, on instructions on behalf of the third defendant, stated that there may be some distinguishing features, in this case; however, the binding nature of the law declared in Rani Aloka Dudhoria and Malati Ramachandra Raut were not disputed. It was however requested that since the matter has remained unresolved for over three decades, the court should put a mechanism to speed up the process.

7. In view of the above discussion, submissions made, and the law declared by the Supreme Court, the auction conducted by the Commissioner, in this case, on 21-3-2000 cannot be sustained; it is hereby set aside. The applications IA 2583/2000; 1967/2000, 9396/2000 and 9397/2000 and unnumbered IAs filed by Defendants 12, 13, 17, 18, 19 and LRs of Defendant No.9 are accordingly disposed.

8. List the case in the main list on 5th October, 2009 for further proceedings, to consider the parties submissions regarding fixation of modalities to value the properties, and further directions towards auctioning them.

                                                             S. RAVINDRA BHAT,J

SEPTEMBER 22, 2009




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