Mohinder Nath ... vs Ram Kumar & Ors.
2012 Latest Caselaw 2542 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No. 228/2003

%                                                           19th April, 2012

         MOHINDER NATH SHARMA(DECD.)THR.LR'S
                                           ..... Appellant
                     Through: Mr. P.V.Kapur, Sr. Adv. with
                              Mr. Inderjit Sharma &
                              Mr. Aman Anand, Advs.

                      versus

         RAM KUMAR & ORS.                            ..... Respondents

Through: Mr. B.R. Sharma, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.6717/2012(for exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

CM No.241/2012(for review of order)

1. This Regular First Appeal was allowed by a detailed judgment

dated 22.3.2012. The judgment holds that the respondents/sellers were not

only guilty of breach of contract, but were unfair in dealing with the

appellant under the contract. After finding the respondents/sellers guilty of

breach of contract, this Court accepted the appeal and decreed the suit for

specific performance by applying the provision of Section 12 of the

Specific Relief Act, 1963.

2. After applying the provision of Section 12 of the Specific

Relief Act, 1963, this Court also, inter alia, observed as under:

27. Accordingly, while accepting the appeal and setting aside the impugned judgment of the Trial Court dated 25.1.2003, it would be required that a competent person be appointed to measure the exact area of land which is in the possession of the appellant, so that the balance price which may be payable by the appellants to the respondent for specific performance of the subject agreement to sell can be decided. Today, no orders can be passed as to what is the balance amount which the respondents will be entitled to inasmuch as I intend to modulate the amount which would be payable to the respondents depending on the exact area which is found to be in possession of the appellant. However, I hold that whatsoever would be the balance price, which would be if payable, should be multiplied by 40 times inasmuch as I would take the rough appreciation of the prices in a city like Delhi in these last 33 years from 1979 till date at approximately 40 odd times. Of course the factor of 40 times is also taken not only with reference to the increase of prices from the date of the Agreement to Sell to today but also as per the facts of the case where I feel that multiplication of balance price by forty times will meet the ends of justice. I have also taken note of the fact that the subject land is not situated in the prime localities of Delhi such as the South Delhi and Central Delhi, and is situated in North Delhi which did not rapidly urbanise. That the Courts have the power to alter the price in order to promote equity, justice and good conscience is no longer res integra and direct judgment of the Supreme Court entitling Courts to suitably alter the price payable to

a seller on account of passage of time is the judgment of the Supreme Court in the case of Nirmala Anand vs. Advent Corporation (P) Ltd. 2002(8) SCC 146. However, I may hasten to clarify that this observation with respect to multiplying the balance price by 40 times is made by me on the assumption that in fact considering the actual area with the appellant taken with the price already paid of `1,00,000/-, the price paid to the respondents is less than as compared to and as a proportion to the total price of `1,60,000/- i.e. there would be payable balance price by the appellants as they would be having proportionately larger area than the area which ought to be with the appellant when this area of which appellant is in possession is taken in proportion to the price paid being ` 1 lakh out of the total price of ` 1,60,000/-."

(Emphasis added)

3. The emphasized portion of para 27 above shows that the

multiplier of 40 was taken not only with reference to increase of the prices

but also as per the fact of the case where multiplication of balance price by

40 times will meet the ends of justice, meaning thereby, compensation was

given to the respondents at 40 times not only taking the issue of market

rates, but also the facts of the case where the respondents were found to be

guilty of breach of contract.

4. In the Review Petition, the following averments are made in

paragraphs 4 to 6:-

4. That it is worthwhile to state herein that the Hon'ble court has inadvertently applied the multiplier of 40 times because the appellant agreed to pay a sum of `50,00,000/- (Rupees fifty lakhs only) in settlement, whereas the respondents were ready to take the excess land in

possession of the appellant than the price paid by the appellant which was taken as `1,00,000/- by the Hon'ble Court although it was disputed by the respondents as `80,000/-. Admittedly, the agreement for sale was for a sum of `1,60,000/-.

5. That while passing the judgment by the Hon'ble Court the module which was working in the mind of the Hon'ble Court that the land price at the time of the agreement for sale is `800/- per sq. yard and 40 times of it would come to `32,000/- (Rupees thirty two thousand only) which would be a fair price of land prevailing in the area at present and accordingly multiplier of 40 times was allowed in favour of the respondents to meet the end of justice.

6. That it is pertinent to mention herein that in the year 1979 the Delhi Development Authority allotted the land in plots to the various part of the Delhi which were the parts of outer Delhi at a price of `60 sq. yards which are presently not available even in the price of `1 lakh per sq. yards. Even the minimum rates (circle rate) for valuation of land for the purpose of registration under the Registration Act, 1908 where the disputed property is situated for the industrial is `31,740/- per Sq. Meter (15870/- x 2) as per circular No.F.1(152)Regn.Br./Div.Com/Hq/2011/919 dated 15-11- 2011 of the Government of NCT of Delhi, Revenue Department, 5 Sham Nath Marg, Delhi as this locality comes in category H. However, in reality, no land is available on the price of the circle rates in Delhi and in actual the price of the land is much more than the circle rates. It is pertinent to mention herein that the area where the land under agreement to sale is situated is in the proximity of Rohini as Rohini area is just adjoining to Alipur Village. In Rohini area, no land can be purchased less than rupees 1 lakh per sq. yards. The land price has increased about 1000 times in Delhi from the year 1979."

5. First of all, in my opinion, averments made in these paras

borders on Contempt of Court. This I say so because there is a reference in

para 4 to a settlement of `50 lacs, however, in the judicial record, there is

absolutely nothing whatsoever to suggest this settlement for an amount of

Rs.50 lacs to the respondents/review petitioners. Surely, if conciliation and

compromise talks take place between the parties and which do not fructify,

and which are not part of judicial record, the averment now being made can

only be seen as a desperate attempt by the applicants/respondents to create

evidence of an alleged compromise of Rs.50 lacs. Surely, this attitude of

the applicants and its counsel needs to be severely condemned, and I do so.

Further, the averments of 'module working in the mind of the Court' is

again an attempt to overreach the Court as there can be nothing which can

be said of alleged 'mind of the court' inasmuch as a Court only speaks

through its judgment, nothing more, noting less.

6. A reference to paras 4 to 6 also seems to suggest that the Court

has taken multiplier of 40 times only because of increase of prices, whereas

I have already stated above, the same is not so.

7. Learned counsel for the applicants/review petitioners has

sought to place reliance upon two judgments, one of the Supreme Court in

the case of S. Nagaraj & Ors. vs. State of Karnataka & Anr., 1993

Supplementary (4) SCC 595 and a Division Bench judgment of this Court

reported as Sh. Bhulan vs. Land Acquisition Collector and others, 1996

AIHC 1904. I fail to understand how at all these judgments can apply in a

review petition merely because the review petitioners claim that this Court

should apply circle rates. The suit for specific performance has been

decided on the basis of the facts of the case and seeking to give a

reasonable compensation to the review petitioners, for which the multiplier

of 40 was taken considering not only the increase in prices but also the

facts of the case. Endeavour of the applicants/review petitioners therefore

to restrict the expressions used in the judgment of giving a multiplier of 40

times only with respect to the increase of prices is quite clearly misplaced.

8. Learned counsel for the appellants/non-applicants very

vehemently and emphatically denied that there was an alleged compromise

with respect to `50 lacs being paid to the Review Petitioners. An affidavit

has been filed in Court today disputing the factum of compromise at the

amount of `50 lacs.

9. As already stated above, the object of the review petition is the

ulterior motive to create evidence with respect to the alleged compromise

of ` 50 lacs which never took place. Therefore, in the facts of the present

case, review petition is liable to be dismissed with actual costs, and I do so.

10. Let the appellants file an affidavit alongwith certificate of its

lawyers with respect to the fees which has been paid by the appellants to its

Advocates for this review petition, and such costs as stated in the affidavit

supported by the certificates of the lawyers of having received the fees with

respect to the review petition, will be the costs of this review petition.

Costs be paid within two weeks. I may only add that I had allowed the

main appeal in the judgment dated 22.3.2012 without imposition of any

costs on the respondents.

11. Accordingly, the review petition is dismissed with actual costs

as quantified above.

VALMIKI J. MEHTA, J APRIL 19, 2012 ak