Narender Kumar Goel And Anr vs Jai Prakash Goel
2012 Latest Caselaw 6931 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of Decision: 04.12.2012

+      CS(OS) 955/2012
       NARENDER KUMAR GOEL AND ANR                                  ..... Plaintiff
                               Through:   Mr. Gurinder Pal Singh, Mr. Gaurav Barathi
                                          and Mr. Mishal, Advocates
                      versus
       JAI PRAKASH GOEL                                            ..... Defendant
                               Through:   None
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

1. This is a suit for partition, permanent injunction and rendition of accounts.

The case of the plaintiffs is that they, along with defendant, purchased the property

bearing number PU-22, Visakha Enclave, Pitampura, Delhi and, therefore, the

parties to the suit have 1/3rd share each in the said property which comprises of

ground floor, first floor, second floor and the terrace. The ground floor is stated to

be in possession of the defendant whereas the first floor, second floor and the

terrace are stated to be occupied by the tenant. It is also alleged that the entire rent

of the tenanted portion is being realized by the defendant alone. At one point of

time, the aforesaid property was mortgaged with the Union Bank of India, but the

loan taken from the bank stands settled on payment of Rs 65 lakhs and a Settlement

Certificate dated 3.3.2008 has already been issued by the bank in this regard. It is

alleged that on receipt of Settlement Certificate from the bank, the plaintiff

approached the defendants and offered to pay their share in the settlement amount

of Rs.65 lac, which the defendant had paid to the bank as against the total due of

Rs.1,19,78,541/-. The plaintiff claims to have requested the defendant on or about

4.4.2012 to partition the suit property. Since the defendant has neither come

forward to partition the suit property nor rendered accounts of rent realized by him

from the first floor, second floor and the terrace, the plaintiffs are now seeking a

decree for partition of the aforesaid suit property besides rendition of account in

respect of the rent realized by the defendant. They are also seeking an injunction

restraining the defendant form creating any third party interest in the aforesaid

property.

2. Since the written statement was not filed despite more than 90 days having

expired, the defence was struck off vide order dated 20.11.2012. The plaintiffs

were, however, directed to file affidavits by way of evidence in order to satisfy the

Court with respect to the merits of this case.

3. The plaintiffs no.1 and 2 have accordingly filed affidavits by way of

evidence, supporting on oath the case set out in the plaint and also proved various

documents relied upon by them. Both the plaintiffs have stated that the suit

property was jointly owned by the parties to the suit and all of them have 1/3 rd

share each in the said property. They have also stated that the entire rent of the first

floor, second floor and the terrace which has been let out to a tenant is being

realized by the defendant alone. They further stated that the aforesaid property was

mortgaged with Union Bank of India for taking a loan in favour of M/s Baboo Lal

Jai Prakash, which was a partnership firm of plaintiff no.1 and the defendant. Since

the partnership firm closed down and did not pay the dues of the bank, an OA was

filed by the bank for recovery of its dues. The defendant, however, approached the

bank and settled the matter with it vide Certificate Ex.PW1/4. They have also

stated that they had requested the defendant to partition the suit property and render

accounts of the rent realized by him, but he failed to do.

4. Ex.PW1/2 is the certified copy of the Conveyance Deed executed by one

Madan Mohan in favour of Jai Prakash Goel, Narender Kumar and Anil Kumar,

parties to the suit, in respect of property bearing number PU-22, Visakha Enclave,

Pitampura, Delhi measuring 126 sq. yards. Ex.PW1/3 (Colly) are the three site

plans filed by the defendant, one in respect of ground floor, second in respect of the

first floor and the third one is in respect of second floor of the suit property.

Ex.PW1/8 is the Settlement Certificate dated 3.3.2008 which shows that the bank

accepted a sum of Rs.65 lac from the defendant Jai Prakash Goel in full and final

settlement of its dues against the partnership firm M/s Baboo Lal Jai Prakash. It

further shows that Mr. Jai Prakash Goel, defendant in this suit, and Mr. Narender

Kumar Goel, plaintiff no.1 in the suit, were the partners of the aforesaid firm,

whereas Mr. Anil Kumar, plaintiff no.2 in this suit had, stood guarantor of the loan

taken by the said firm.

5. I see no reason to disbelieve the unrebutted preposition of the plaintiff which

stands corroborated from the documentary evidence produced by them in the form

of Conveyance Deed executed in joint name of all the parties to the suit. Mere

redeeming the mortgage does not transfer share of the plaintiffs in the suit property

to the defendant, though he may be entitled to recover, from the concerned

plaintiff, his share in the amount paid by him to the bank for redeeming the

mortgaged property. Accordingly, a preliminary decree for partition is passed

declaring that the parties to the suit have 1/3rd share each in the property bearing

number PU-22, Visakha Enclave, Pitampura, Delhi measuring 126 sq. yards.

6. Mr. Ashish Sharma, Advocate who is present in the Court is hereby

appointed as the Local Commissioner to visit the suit premises and suggest the

mode of its partition by metes and bounds. He shall be entitled to engage an

architect, if so required by him and in that event, the fees of the architect would

also be shared equally by the parties to the suit. Since the defendant has not come

forward to contest the suit, initially the fees of the Local Commissioner as well as

architect, if any engaged by him, shall be paid by the plaintiff. The orders with

respect to the adjustment of the share of the defendant in the fee of the Local

Commissioner and the architect would be passed at the time of passing the final

decree. The fee of the Local Commissioner is fixed at Rs.35,000/- which shall be

paid in terms of this order.

7. Since the suit property was jointly owned by the parties, the defendant alone

cannot appropriate the whole of the rent realized by him from the tenant and he

must render accounts to the plaintiff, in respect of the rent, realized by him. A

preliminary decree for rendition of account is also hereby passed directing the

defendant to render the account in respect of the rent realized by her from letting

out the first floor, second floor and the terrace of the suit property. The account

would be rendered to the Local Commissioner appointing by this Court within four

weeks from today.

Decree sheet be drawn accordingly.

Renotify on 7.2.2013, awaiting the report of the Local Commissioner.

V.K. JAIN, J OCTOBER 15, 2012 rd/bg