Sandeep Sethi & Anr. vs Rajinder Kumar Sethi
2011 Latest Caselaw 6098 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of decision: December 13, 2011


+             RFA(OS) No.95/2011 & CM No.16396/2011

       SANDEEP SETHI & ANR.              ..... Appellants
           Through: Mr.Dilip Mehra and Mr.Siddharth Yadav,
                     Advocates

                          versus
       RAJINDER KUMAR SETHI               ....Respondent
            Through: Mr.S.C.Singhal, Advocate


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE S.P. GARG


PRADEEP NANDRAJOG, J.

RFA 95/2011 & CM No.16396/2011

1. Praying that 1173 days delay in filing the appeal be condoned, challenge is to the impugned order dated 25.04.2008 wherein the learned Single Judge has terminated the order by observing in para 6 and 7, as under:-

"In view of the above fact that there is no dispute that the firm stands dissolved, the Court is of the opinion that a preliminary decree in terms of prayer

(b) is to be drawn. The Court hereby appoints Ms.Anita Sahani, Advocate, 363, Lawyers Chambers, Delhi High Court, New Delhi (Ph.23386822, 9810113256, 23386081, who had earlier sought to settle the disputes between the parties as Local Commissioner on the suggestion of

counsel, to draw and file a report in the Court within 3 weeks, also indicating the mode of dividing the properties including the immovable properties. The Local Commissioner's fee is fixed at `50,000/- to be shared equally be the plaintiff and the defendant within three weeks. The Local Commissioner shall ascertain the views of the plaintiff and the defendant, and also take such material as may be necessary including books of accounts etc. from the Chartered Accountant Sh.Vijay Verma, 14/10, West Patel Nagar, 1st Floor, New Delhi - 110018.

7. List on 23rd September, 2008 for consideration of the report of the Local Commissioner and the application I.A.3175/2008."

2. It is true that the order in question has not formally passed a preliminary decree holding that Rajender Kumar Sethi and Sushil Kumar Sethi had half share each in property No.B-100, Mayapuri Industrial Area, Phase I, New Delhi, but as would be evident from the facts hereinafter noted, the parties treated said order as if a preliminary decree was passed and this is the reason why the instant appeal has been registered as a Regular First Appeal against a decree.

3. We are neither impressed with the argument for delay to be condoned nor with an argument laying a challenge to the decree.

4. We say so for the reason it is not in dispute that Rajender Kumar Sethi and his brother Sushil Kumar Sethi were the only two partners of M/s.Tara Rubber Industries and the partnership was dissolved. Distribution of the assets of the company created problems. Amongst other assets, the partnership firm Tara Rubber Industries owned property No.B- 100, Mayapuri Industrial Area, Phase I, New Delhi and thus, said facts not being in dispute, we hardly see any scope for a

preliminary decree not being passed that the two brothers owned 50% share each in the property. It be highlighted that the two brothers, as per the deed of partnership had 50% share each in the assets of the partnership and were liable to contribute 50% each to make good the liabilities of the firm.

5. After order dated 25.04.2008 was passed the learned Local Commissioner held various proceedings and filed a report which was considered by the learned Single Judge on 23.09.2008. Matter lingered on. The two brothers could not agree to a mode to partition the property by metes and bounds and thus on 16th November, 2009 an order was passed that the two brothers could bid for the property by submitting offers in a sealed cover to the Court. It was expressly recorded that after the sealed covers were received and were opened, the parties would be enabled to improve upon their offers.

6. Order dated 15.02.2010 records that Rajender Kumar i.e. the plaintiff was prepared to purchase the property for `10 crores and since his share therein was 50%, he was ready to pay `5 crores to the defendant i.e. his brother Sushil Kumar Sethi. The next order dated 14.05.2010 records that Sushil Kumar Sethi was ready to pay `5 crores to Rajender Kumar to buy his 50% share in the property, to which Rajender Kumar Sethi agreed. Thereafter, the matter was adjourned from time to time to enable Sushil Kumar Sethi to pay `5 crores by depositing the same in this Court.

7. He did not do so and prayed for time. Vide order dated 9th September 2010 further extension of time was

declined to him and it was directed that upon plaintiff depositing `5 crores the matter would be considered further.

8. Rajender Kumar Sethi deposited `5 crores which has been kept in a fixed deposit and unfortunately for him, his brother having died, his nephews got impleaded as the legal heirs. It was only thereafter that the legal heirs have chosen to file the instant appeal.

9. The legal heirs of late Sh.Sushil Kumar Sethi, having stepped into his shoes, cannot charter a journey wearing shoes other than those of their father. Late Sh.Sushil Kumar Sethi has clearly acquiesced in the order dated 25.04.2008 and clearly understood the same to be a preliminary decree. It needs to be noted that the legal heirs were impleaded on 03.03.2011. They have participated in the suit and started questioning the very maintainability of the suit. It was only on 12th August 2011 that the instant appeal was filed.

10. We hold that the appellants are not entitled to have the delay condoned in preferring the appeal and independently thereof we also hold that the order impugned, though not very happily worded, is clearly a preliminary decree and was so understood by the parties. In view of the admitted fact that Rajender Kumar Sethi and late Sh.Sushil Kumar Sethi were the only two partners of the partnership firm and each had 50% interest in the assets and liabilities of the partnership firm, upon the dissolution of the firm, the two brothers are entitled to 50% share in property bearing Municipal No. B-100, Mayapuri Industrial Area, Phase I, New Delhi.

11. The appeal is dismissed with costs in sum of `25,000/- (Rupees Twenty Five Thousand) against the appellants and in favour of the respondent.

(PRADEEP NANDRAJOG) JUDGE

(S.P.GARG) JUDGE DECEMBER 13, 2011 mm