Y.P. Khanna & Ors. vs P.P. Khanna & Ors.
2011 Latest Caselaw 1857 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on: 3rd March, 2011
%                                   Date of decision: 30th March, 2011

+      EFA (OS) 2/2010 & CM 1040/2010

Y.P. KHANNA & ORS.                                      .....Appellants
              Through:              Mr. Deepak Tyagi, Advocate

                  -versus-

P.P. KHANNA & ORS.                                     .....Respondents
              Through:              Mr. Sanjeev Anand, Ms. Kajal
                                    Chandra and Ms. Prachi Gupta,
                                    Advocates for Mr. P.P.
                                    Khanna/Respondent No.1/Group
                                    'E'.
                                    Mr. Ashwani Khanna for Group 'D'.

       CORAM:
       HON'BLE MR. JUSTICE VIKRAMAJIT SEN
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


       1.         Whether reporters of local papers may be allowed to see
                  the judgment?                                    No.
       2.         To be referred to the Reporter or not?           Yes.
       3.         Whether the judgment should be reported in
                  the Digest?                                      Yes.

                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present Appeal assails the order dated 13th January,

2010 passed by the learned Single Judge in Execution Petition

No.233/2009, whereby the learned Single Judge allowed release

of an amount of `1,06,26,000/- to the Respondent No.1(i) to (iii).

2. The only grievance raised by the Appellants is that the

learned Single Judge ought not to have released the

aforementioned amount to the said Respondents without

adjudicating the inter-se claims of the Appellants and Group 'E'.

3. The facts as are necessary for disposal of the present

Appeal are that:

(a) A family arbitration Award was passed on 1st

January, 1999. The Award settled the shares and

claims between five brothers forming Group 'A',

Group 'B', Group 'C', Group 'D' and Group 'E'

respectively. The Award has since been upheld by

the Hon'ble Supreme Court vide order dated 15th

May, 2009 subject to the amendment of the final

Award by the Division Bench of this Court vide order

dated 1st August, 2008.

(b) As per the Award, Group 'E' (Respondent No.1(i) to

(iii) herein) was to hand over vacant possession of

a portion of the property bearing No. D-1, Okhla

Industrial Area, Phase-I, Delhi (hereinafter referred

to as 'Okhla Property') to Group 'C' (Appellants

herein) within 45 days of passing of the Award and

thereafter a sum of `1,06,26,000/- was to be

released in favour of Group 'E'. However,

subsequently objections were filed by members of

herein) against the family Award dated 1st January,

1999 which were later on dismissed by the Hon'ble

Supreme Court. Group 'E' remained in possession of

Okhla Property even after 45 days of passing of the

Award, inasmuch as, owing to the objections filed by

the Respondent No.2 and 3 the family Award

became unexecutable.

(c) It is the claim of the Appellants that Group 'E' was

illegally withholding the possession of Okhla

Property since 1997, when during the course of the

family arbitration the Appellants i.e. Group 'C' had

already handed over the factory premises No.C-7

and C-8 to Group 'E' i.e. Respondent No.1(i) to (iii)

herein.

(d) The Appellants herein filed an Execution Petition

No.398/2008 before this Court for execution of the

family Award dated 1st January, 1999. In the

Execution Petition No.398/2008 the Appellants had

sought for various claims against Group 'E'

including claim of proportionate House Tax and

Ground Rent in respect of Okhla Property which was

occupied by Group 'E' since 1997. The House Tax

liability has been paid by Group 'E' under the

directions given by this Court for the period from

1974 to 1984.

(e) In a separate Execution Petition No.233/2009 filed

by Group 'E', it has been prayed that an amount of

`1,06,26,000/- be released to them keeping in view

the outstanding liabilities.

(f) Vide the impugned order dated 13th January, 2010

the learned Single Judge came to the view, inter

alia, that the amount payable under Award to Group

'E' should not be withheld. Consequently, the

impugned order directed the Registry of this Court

to prepare a cheque of `1,06,26,000/- in favour of

the Respondent No.1(i) to (iii) herein and hand over

the same to the learned Counsel for the respective

Groups. At the same time it was made clear in the

impugned order that all the rights and contentions

including the issue of interest payable to the parties

would be adjudicated upon subsequently.

(g) Simultaneously, in Execution Petition No. 398/2008

by an order of the same date, i.e. 13th January, 2010,

the learned Single Judge directed that the issue of

inter-se liabilities would be examined and

adjudicated after all statutory dues are paid to the

respective banks and financial institutions.

(h) The grievance raised by the Appellants is to the

effect that contrary to the family Award, Group 'E'

continued qua their possession of Okhla Property

during all these years and vacated the same only on

8th June, 2009 and on the other hand raised massive

construction on C-7 & 8, Okhla Industrial Area,

Delhi, being vacated and handed over by Group 'C'

to them and predicated on this the Appellants had

asked for damages/rent in respect of 6,780 Square

Feet approximately.

4. On behalf of the Appellants it is contended that the

impugned order fell into error, inasmuch as, it released the sum

of `1,06,26,000/- to Group 'E' without adjudicating the inter-se

claims and liabilities between Group 'C' and Group 'E' and

failing to appreciate the liability of Group 'E' to compensate

Group 'C' for illegal and unauthorized occupation of part of

premises of Okhla Property from 15th February, 1999 to 7th June,

2009.

5. In the present case, it is seen that the possession of Okhla

Property was handed over to Group 'C' on 8th June, 2009.

Therefore, the issue for which damages/rent are being claimed

relates to the period beyond the period of 45 days from the date

of the family settlement dated 1st January, 1999 i.e. 15th

February, 1999. The Appellants claim compensation for the

illegal and unauthorized occupation of Okhla Property by Group

'E' during all these years. In this behalf, it must be noticed that

the order dated 13th January, 2010 in Execution Petition

No.398/2008 itself states that the issue of inter-se liabilities

would be examined and adjudicated after all statutory dues are

paid to respective banks and financial institutions. Therefore,

the contention on behalf of the Appellants that the Single Judge

virtually dismissed the claims of Group 'C' qua Group 'E'

without adjudicating the same are untenable.

6. It is seen from the impugned order dated 13th January,

2010 that, in the first instance, the learned Single Judge

addressed issues of payment of the outstanding liabilities

arising from the said family Award and the amounts to be paid

towards all the said liabilities. Having come to the conclusion

that the said liabilities in aggregate would not exceed `1Crore,

whereas the amount lying deposited in the Court by the parties

to the Award was about `3.5Crore, the learned Single Judge

directed that the liabilities be discharged in the first instance.

Thereafter the learned Single Judge addressed the issue of

releasing `1,06,26,000/- to Group 'E' under the family Award. At

this stage Counsel appearing on behalf of the Appellants herein

requested that the issue of outstanding rent between Group 'C'

and Group 'E' in respect of Okhla Property be referred to

mediation. Mr. Sandeep Sethi, Senior Advocate, was requested

by the learned Single Judge to act as mediator with regard to

the aforesaid dispute and see if the same can be resolved

amicably between Group 'C' and Group 'E'. However, the

learned Single Judge was of the view that the amount payable

under the Award to Group 'E' should not be withheld in the

meantime and in that view of the matter directed the Registry to

release the aforesaid sum of `1,06,26,000/- in favour of Group

'C'. Simultaneously, the learned Single Judge made it very clear

in the order dated 13th January, 2010 that the issue of inter-se

liabilities would be examined and adjudicated after all statutory

dues were paid to respective banks and financial institutions.

7. We find no infirmity in the impugned order for the

following reasons. Firstly, the view taken by the learned Single

Judge is a possible view in the facts and circumstances of the

case and a view which could legally have been taken in the

matter. Secondly, it has not been shown that the order of the

learned Single Judge is in any manner perverse or that the view

taken by him was not a possible view (reference can be made on

this proposition to the decision of the Supreme Court in Wander

Ltd. -vs.- Antox India Pvt. Ltd., 1990 (Supp) SCC 727). Thirdly,

the learned Single Judge did not reject the claim of the

Appellants qua the Respondent No.1(i) to (iii) and only deferred

the adjudication to beyond the payment of all the statutory dues

under the family Award. Thus, the claim of the Appellants for

compensation from Group 'E' for illegal and unauthorized

occupation of Okhla Property has yet to be adjudicated.

8. In this view of the matter, we find no infirmity or

perversity in the impugned order so as to warrant interference

in appeal. In view of the above, we find no force in the Appeal

which is hereby dismissed leaving the parties to bear their

respective costs.

SIDDHARTH MRIDUL, J.

VIKRAMAJIT SEN, J.

March 30, 2011 mk