Shivraj Krishan Gupta vs Chander Krishan Gupta & Ors
2012 Latest Caselaw 2901 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment:02.05.2012.


+     CM(M) 492/2012 CM Nos.7463-64/2012


      SHIVRAJ KRISHAN GUPTA              ..... Petitioner
                   Through  Mr. Rajeev Mehra, Sr. Advocate
                            with Ms. Sangeeta Jain, Adv.

                      Versus


      CHANDER KRISHAN GUPTA & ORS          ..... Respondents
                  Through  Mr. Suhail Dutt, Sr. Advocate
                           with Mr. N.K. Kantawala, Adv.
                           for R-2 to R-4.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated 27.02.2012

vide which the application filed by the petitioner under Section XLVII

of the Code of Civil Procedure (hereinafter referred to as the 'Code')

seeking a review of the order dated 24.11.2011 had been dismissed. On

24.11.2011, the averments made by the petitioner that the reserve price

of the suit premises (property No. 38-A, Amrita Shergill Marg) (which

had been fixed by the Court on 26.03.2008 in the sum of Rs.1.40 crores)

in view of the intervening long period of time and property prices

having escalated in this period requiring a revision in the reserve price

had been declined.

2 Record shows that a preliminary decree of partition qua the

aforenoted suit property had been passed on 08.08.1980; 25% of the

share in the suit property devolved upon the present petitioner; this was

a dispute inter-se four branches of the same family. On 08.04.2002, a

single Judge of the High Court had ordered the sale of the aforenoted

property against which an appeal was filed by the present petitioner and

dismissed on 22.07.2005. In 2006, this suit which was pending in the

High Court, because of change of the pecuniary jurisdiction was

transferred to the District Court. In the proceedings before the District

Court, the present petitioner filed an application seeking permission of

the Court to relinquish his rights in the other family properties in case

the share in those properties could be adjusted in the present suit

property; this application was dismissed on 02.12.2006. On 24.08.2007,

another application was filed by the petitioner seeking permission of the

Court to convert this property from lease-hold into free-hold which was

dismissed on 25.10.2007. This order was the subject matter of a petition

under Article 227 of the Constitution of India which was dismissed by

this Court on 30.11.2007. Thereafter the parties were granted

opportunity to file the documents for the purpose of evaluation of the

reserve price of the property; during the course of these proceedings, an

SLP was preferred by the petitioner praying for a stay of the auction;

this SLP was dismissed on 21.01.2008. Further submission of the

petitioner that no auction can be conducted on a preliminary decree was

dismissed by the trial Court on 26.03.2008 on which date the reserve

prices of Rs.1.40 crores had been fixed by the trial Court. Attention has

been drawn to the aforenoted order; contention of the petitioner is that

even on 26.03.2008, a judicial notice had been taken of the prices in the

vicinity and although the submission of the present petitioner was that

the suit property is valued at more than Rs.150-160 crores, the counter

submission of the non-applicant was that a reserve price should be fixed

between Rs.110-120/- crores; the Court had taken judicial notice and

fixed the reserve prices at Rs.1.40 crores. Advanced submission on this

count being that as on date, this Court can also take judicial notice of the

escalation in property prices from 26.03.2008 (which was the date when

reserve price of Rs.1.40/- was fixed) and after taking judicial notice of

the aforenoted price-rise, a reserve price should be re-fixed.

3 Record further shows that the modalities of the auction were fixed

on 14.08.2008. Learned counsel for the respondent has drawn attention

of this Court the said order; the trial Court in this order of 14.08.2008

had specifically noted the fact that the reserve price of the property has

been fixed at Rs.1.40 cores; thereafter it had proceeded to fix the

modalities of sale. This order of 14.08.2008 was the subject matter of a

petition under Article 227 of the Constitution of India which was

dismissed by this Court vide its order dated 16.10.2008. This Court had

again noted that the reserve price of the property had been fixed at

Rs.1.40 crores; the other modalities of sale fixed by the trial Court had

also been adverted to; the High Court did not think it to be a fit case to

interfere with the order of the trial Court; the High Court at this point of

time had also noted inter-alia as under:-

"Since the amount of reserve price involved in the case in the auction of the property is Rs.140 crores, no bidder would come forward unless he is assured of vacant possession of the property."

4 It is also an admitted fact that the petitioner is in possession of the

suit premises.

5 The SLP preferred against the order of the High Court dated

16.10.2008 was dismissed on 11.08.2001. The question of law posed

before the Apex Court (as is evident from the grounds contained therein)

were again on the terms and conditions of the contract of auction and

sale; contention of the petitioner being that this order of the High Court

and Apex Court although has become final, yet it relates to the

modalities of sale which had been fixed vide order dated 14.08.2008 and

it is in no manner related to the reserve price which had been fixed by an

earlier order of 26.03.2008. In fact the entire crux of the arguments of

the learned counsel for the petitioner is based on this submission.

6 This submission of the learned counsel for the petitioner is wholly

mis-directed. It appears to be malafide. The malafides can be seen from

the fact that the petitioner has admittedly been in possession of the suit

property over a long period of time. Record further shows that on one

pretext or the other effort is being made by the petitioner as a delaying

tactic to delay the progress of the case; he is not allowing the sale of the

property which was ordered as way back as on 08.04.2002 (by an order

of the High Court) to culminate. The impugned order which has

dismissed the review petition on 27.02.2012 has also noted these

delaying tactics on the part of the petitioner; it is not in dispute that the

order of the High Court dated 16.10.2008 has been finally been set to

rest by the dismissal of the SLP on 11.08.2011; this order clearly

evidences that the modalities of the sale fixed by the trial Court on

14.08.2008 have not been interfered with; it was implicit in these

modalities of sale that the reserve price of the suit property had been

fixed at Rs.1.40 crores. This has clearly and categorically been noted in

the order dated 14.08.2008. Thus the submission of the petitioner that

the reserve price fixed at Rs.1.40 cores vide order dated 26.03.2008 was

not the subject matter of appeal either before the High Court or before

the Supreme Court is clearly a mis-conceived submission; this

submission appears to be one more last ditch effort on the part of the

petitioner to delay the progress of the case.

7 The alternate submission of the learned counsel for the petitioner

is that in case the reserve price is permitted to be modified which was

fixed more than 3- ½ years ago, neither of the parties would suffer as a

time schedule can be fixed by this Court and the new valuer appointed

can give his valuation on the prevailing price within the said time

schedule; submission being that Rs.1.40 cores fixed in March, 2008 is

very much on the lower side; to substantiate this submission documents

had been placed on record; submission being that in Defence Colony a

property for which a reserve price at Rs.1.90 crores had been fixed in

April, 2008 had been sold at a Court auction in 2012 for Rs. 35 crores.

Admittedly this was the actual price which had been fetched of the

aforenoted property. Further submission on this count being that family

of Shanti Bhushan had also bought a property in the same locality i.e.

Amrita Shergil Marg in the year 2006 for Rs.1.37 cores and to

substantiate this submission a newspaper cutting has been placed on

record. The reserve price which has been fixed of the suit property at

Rs.1.40 crores is not the final price which the property will fetch; at the

time of fixing this reserve price, the Court had also taken into account

the prevailing circle rates; even presuming that property prices have

escalated from March, 2008, reserve price is only the minimum price

which has to be bid by the bidder in an auction; it is not the final

purchase price. Reserve price is in fact the smallest price on which the

seller is willing to purchase a good or a server; this is a term commonly

used in auctions; it is not the highest price that the buyer is willing to

pay.

8 Submissions of the petitioner are wholly without any merit.

Petition is misconceived any merit. Dismissed.

                                            INDERMEET KAUR, J
MAY       02, 2012
A