Delhi High Court

Dipavali Debroy vs Bibek Debroy & Ors. on 6 November, 2012

Author: V. K. Jain

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: 06.11.2012

+      CS(OS) No.116/2008, IA No.3041/2010(u/s 151 CPC) and IA
       No.17440/2012(u/O 23 R.1 & 2 CPC)

       DIPAVALI DEBROY                             ..... Plaintiff

                            Through: Mr.Rohit Kumar, Advocate.

                            versus

       BIBEK DEBROY & ORS.                           ..... Defendants

                            Through: Mr.P.Banerjee, Advocate

                                     And

+      CS(OS) No.670/2009, IA No.11622/2009(u/S 151 CPC) and IA
       No.17441/2012(u/O 23 R.1 & 3 CPC)

       BIBEK DEBROY                        ..... Plaintiff

                            Through: Mr.P.Banerjee, Advocate

                            versus

       DIPAVALI DEBROY & ORS.                        ..... Defendants

                            Through: Mr.Rohit Kumar, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                            JUDGMENT

V.K.JAIN, J. (ORAL)

1. CS(OS) No.116/2008 has been filed by Smt.Dipavali Debroy, wife of

defendant No.1 in that suit against Shri Bibek Debroy and five others seeking

declaration, cancellation and injunction. The case set out in the plaint is that

property bearing Flat No.6410(Ground Floor), Pocket C-6 & 7, Vasant Kunj, New

Delhi, Flat No.67(First Floor) in Block-F, Sushant Lok-II, Gurgaon and the Time

Sharing Unit sold by defendant No.6, namely M/s Prestige Holiday Resort Pvt.

Ltd. were jointly acquired by the plaintiff and defendant No.1. The flat in Vasant

Kunj is stated to have been purchased from defendant No.2 Mahmud Uddin by

way of documents comprising Agreement to Sell and Power of Attorney etc. The

Agreement to Sell was executed in favour of the plaintiff whereas the Power of

Attorney was executed in favour of defendant No.1. The flat in Sushant Lok was

acquired from defendant No.5 M/s Ansal Buildwell Ltd. whereas the Time Sharing

Units were acquired from defendant No.6. Defendant No.3 is stated to be the agent

of defendant No.1 acting for and on his behalf. The following prayers were made

in the suit:-

(i) Declare the Conveyance Deed dt. 15.11.2000 registered as Doc. No.17120

in Addl. Book No.1, Vol.No.402 on pages 51 to 52 dt. 29.11.2000 executed

by Defendant No.4 in favour of Defendant No.2 as null and void and

consequently direct Defendant No.4 to execute a Conveyance Deed in

favour of the plaintiff or in the alternative direct specific performance of the

agreement to sell dt. 21.12.1993 and further direct defendant no.3 to

execute a sale deed in favour of the Plaintiff;

(ii) Declare the Plaintiff as owner of property bearing flat No.6410 (Ground

Floor) in Pocket C-6 & 7 , Vasant Kunj, New Delhi;

(iii) restrain Defendant No.2 from executing documents for transferring the

property bearing flat No.6410 (Ground Floor) in Pocket C-6 & 7, Vasant

Kunj, New Delhi in favour of either defendant No.1 or Ms.Suparna

Banjerjee or jointly in their names;

(iv) restrain Defendants No.1 and 2 from creating any third party interest of any

nature or kind whatsoever by misusing the General Power of Attorney

executed by Defendant No.2 in faovur of Defendant No.1 or misusing the

Conveyance Deed dt. 15.11.2000 executed in favour of Defendant No.2 by

Defendant No.4.

(v) restrain Defendant No.1 to 3 or their agents, servants etc. from

dispossessing the Plaintiff from flat bearing No.6410 (Ground Floor) in

Pocket C-6 & 7, Vasant Kunj, New Delhi;

(vi) restrain Defendant No.1 from entering in flat No.6410 (Ground Floor) in

Pocket C-6 & 7, Vasant Kunj, New Delhi or causing any interference in the

peaceful user and enjoyment of the Plaintiff and her ailing mother;

(vii) direct Defendant No.5 to execute a sale deed of flat no.F-67 First Floor in

Block-F, Sushant Lok-II, Gurgaon (Haryana) jointly in the names of the

plaintiff and Defendant No.1 and be pleased direct Defendant No.1 to join

in execution of the same;

(viii) restrain Defendant No.1 from having the name of the plaintiff struck off as

co-owner of flat bearing No.F-67 First Floor in Block-F, Sushant Lok-II,

Gurgaon (Haryana) from the records of Defendant No.5 M/s Ansals

Buildwell Ltd.

(ix) restrain Defendant No.1 from asserting exclusive ownership rights and

creating third party interest thereof in property bearing flat no.F-67 First

Floor in Block-F, Sushant Lok-II, Gurgaon(Haryana)

(x) restrain Defendant No.5 M/s Ansals Buildwell Ltd. from transferring

property bearing flat No.F-67 (First Floor) in Block-F, Sushant Lok-II,

Gurgaon(Haryana) in their records exclusively in the name of Defendant

No.1 or in joint names of Defendant No.1 and Ms.Superna Banerjee;

(xi) restrain Defendant No.1 from having the name of the Plaintiff struck off as

co-owner of Time Sharing Unit in the Royal Goan Beach Club from the

records of Defendant No.6 M/s Prestige Holiday Resorts Pvt. Ltd.

(xii) restrain Defendant No.6 from striking off the name of the plaintiff from the

records with respect to time sharing unit in the Royal Goan Beach Club;

(xiii) restrain Defendant No.6 from incorporating the name of Ms.Suparna

Banerjee as co-owner of Time Sharing Unit along with defendant No.1 in

its records;

(xiv) direct defendant no.1 to hand over the original documents pertaining to flat

no.6410 (Ground Floor) in Pocket C-6 & 7, Vasant Kunj, New Delhi, flat

no.F-67 First Floor in Block-F, Sushant Lok-II, Gurgaon(Haryana) and the

Time Sharing Unit at Royal Goan Beach Club and;

(xv) direct defendant no.1 to hand over one set of keys of flat bearing No.F-67

First Floor in Block-F, Sushant Lok_II, Gurgaon (Haryana) to the plaintiff;

(xvi) restrain Defendant No.3 from using any papers/documents handed over by

the Plaintiff to the said Defendant and to return all papers signed by the

Plaintiff and given to Defendant no.3;

(xvii) restrain Defendant No.1 from taking possession of the Car, model Opel

Corsa bearing registration No.DL 1CG 8629 and

Any other or further relief as may be deemed fit and just in the facts and

circumstances of the case may also be passed in favour of the Plaintiff and

against the Defendants."

2. In CS(OS) No.116/2008, DDA who was impleaded as defendant

No.4, had filed written statement stating therein that the plaintiff had no cause of

action against it. The suit was contested by defendant No.1, who also filed a

counter-claim seeking the following reliefs:-

(a) pass a decree of declaration in favour of the Defendant No.1/Counter

Claimant and against the Plaintiff declaring the Defendant No.1/Counter Claimant

to be the exclusive and absolute owner of property bearing No.F-67, First Floor,

Sushant Lok-II, Gurgaon, Haryana.

(b) pass a decree of mandatory injunction compelling the Defendant No.5, its

agents, representatives, officers, assigns and nominee(s) to execute and register

Sale/Title Deed with respect to the suit property in the sole name of the Defendant

No.1/Counter Claimant only;

(c) pass a decree of permanent injunction restraining the Plaintiff, her

representative(s), nominee(s) and assign(s) from entering into the suit property or

any way disturb quite vacant, actual and legal possessin of the suit property or

selling, mortgaging and/or creating any third party interest therein.

(d) costs of the institution and prosecution of the suit; and

(e) Pass such other and/or further order(s) as this Hon'ble Court may deem fit

and proper in the facts and circumstances of the case."

3. CS(OS) No.670/2009 has been filed by Shri Bibek Debroy, defendant No.1

in CS(OS) No.116/2008 claiming exclusive right in respect of Vasant Kunj flat.

The following prayers were made in the suit:-

a) "pass a decree of possession and direct the Defendant to hand over the actual,

vacant and peaceful possession of property bearing Flat No.6410 (Ground

Floor), Pocket C-6 & 7, Vasant Kunj, New Delhi to the Plaintiff;

b) pass a decree of permanent injunction restraining the Defendant, her agents,

representatives, nominee(s) and assign(s) from either entering the suit property

or creating any third party interest with respect to property bearing Flat

No.6410 (Ground Floor), Pocket C-6 & 7, Vasant Kunj, New Delhi;

c) pass a money decree for compensation for damages to the tune of

Rs.1,30,000/- (Rupees One Lakh thirty thousand only);

d) direct an enquiry into the extent of mesne profits with respect to the suit

property and award pendent lite compensation for damages till the possession

is recovered by the Plaintiff;

e) costs of the institution and prosecution of the suit;"

f) pass any other and further orders as this hon'ble court may deem just and

equitable in these facts and circumstances.

4. During the pendency of the suit, the matter has been settled between Shri

Bibek Debroy and Smt.Dipavali Debroy and the terms of settlement are contained

in the Settlement Agreement dated 1.9.2012 executed before Delhi High Mediation

and Conciliation Centre. Under the settlement, it has been agreed that Sushant Lok

flat would go exclusively to Smt.Dipavali Debroy, whereas Vasant Kunj flat would

go to Shri Bibek Debroy. It has also been agreed that Time Sharing Units from

defendant No.6 would be transferred in the sole name of Smt. Dipavali Debroy.

5. Learned counsel for the plaintiff in CS(OS) No.116/2008, gives up

defendants No.3 and 4 in the suit i.e. Shri L.D.Mago and DDA. Their names are

accordingly deleted from the array of defendants. An amended memo of parties

has been filed today.

6. The learned counsels for Smt.Dipavali Debroy and Shri Bibek Debroy state

that Flat No.6410, Pocket C-6 & 7, Vasant Kunj has since been converted into a

freehold property by DDA in the name of defendant No.2 and the entire

consideration had already been paid to him, at the time of agreement was executed

by him in favour of Smt.Dipavali Debroy. The only requirement now is execution

of sale deed by defendant No.2 in favour of Shri Bibek Debroy. The learned

counsel for Smt.Dipavali Debroy has drawn my attention to Clause 5 of the

Agreement to Sell(Ex PW- 1/1) dated 21st December, 1993 executed by defendant

No.2 in CS(OS) No.116/2008 in favour of the plaintiff in the said suit, which

provides for execution of the sale deed in favour of the plaintiff in the suit or her

nominees. The learned counsel states that Smt.Dipavali Debroy has accordingly

nominated Shri Bibek Debroy as her nominee and, therefore, sale deed is to be

executed in his favour.

7. Article 54 of Limitation Act provides that in a suit for specific performance

of a contract, the period of limitation is 3 years to be computed from the date fixed

for the performance, or, if no such date is fixed, the plaintiff has noticed that

performance is refused. In her supplementary affidavit filed today, Smt.Dipavali

Debroy has stated that the aforesaid flat was converted into a freehold property

only on 5.11.2000 by Conveyance Deed but she came to know of this fact only on

19.11.2007 when this document was filed in the divorce petition which her

husband had filed against her. The contention is that the Suit for Specific

Performance of the Agreement to Sell executed by defendant No.2 on 21st

December, 1993, therefore is well within limitation, since defendant No.2 never

refused to execute sale deed in terms of the agreement dated 21 st December 1993

and in any case there was no cause of action to file a suit for its specific

performance before conversion of the property into freehold and the plaintiff being

intimated of the conversion. A perusal of the Agreement to Sell Ex.PW-1/1 would

show that defendant No.2 was required to obtain sale permission from the lessor

and then execute the requisite sale deed in favour of the vendee. That having not

been done, the plaintiff could not have sought execution of sale deed in her favour

and consequently the period of limitation for seeking specific performance of the

agreement dated 21st December, 1993 did not commence, before the property was

converted into freehold thereby making it transferable without prior permission of

the lessor and the plaintiff came to know of the aforesaid conversion.

8. As regards, the flat in Sushant Lok-II, the plaintiff has stated in para 5 of her

supplementary affidavit dated 6.11.2012 that sale deed could not be executed since

registration charges for floor wise dwelling units were not finalized by Govt. of

Haryana. She has further stated that during the pendency of the suit that defendant

No.5 M/s Ansal Buildwell Ltd. had informed them vide letter dated 11.3.2010 that

the stamp charges for registration of floor wise dwelling units have been

determined and notified by Govt. of Haryana vide notifications dated 27.3.2009

and 5.8.2009. Defendant No.5 never refused to execute sale deed pursuant to the

agreement dated 21.12.1993 and the plaintiff could not have insisted on its

execution and registration before the requisite stamp fee was determined.

Therefore, the relief for specific performance of the agreement dated 13.1.1998

(Ex.PW1/5) is also stated to be within limitation. The learned counsels for the

parties state that the entire consideration for purchase of flat in Sushant Lok-II

already stands paid to defendant No.5 and the only requirement now is execution

of sale deed/transfer deed/conveyance deed by defendant No.5 M/s Ansal

Buildwell Ltd. in favour of plaintiff Smt.Dipavali Debroy, plaintiff in CS(OS)

No.116/2008.

9. As regard to Time Sharing Unit from defendant No.6, learned counsels for

the parties state that the only requirement is deletion of the name of Shri Bibek

Debroy from the record of defendant No.6 since the units were allotted in the joint

name of the husband and wife.

10. For the reasons stated hereinabove, both the suits as well as counter-claim

are disposed of in the following manner:-

a) The sale deed of Flat No.6410, Pocket C-6 & 7 at Vasant Kunj shall be

executed by defendant No.2 in CS(OS) 116/2008 in favour of Shri Bibek

Debroy defendant No.1 in the aforesaid suit, within eight weeks from

today. Both the parties will jointly inform defendant No.2 within one

week that Smt.Dipavali Debroy, plaintiff in CS(OS) No.116/2008 has

nominated Shri Bibek Debroy, defendant No.1 in the aforesaid suit as her

nominee in terms of Para 5 of the Agreement to Sell dated 21.12.1993.

He shall then execute the sale deed in favour of Shri Bibek Debroy

within the time stipulated in this order. One copy of this order shall also

be annexed to the intimation to be sent to defendant No.2. If he fails to

execute the sale deed in terms of this order, it shall be open to defendant

No.1 in CS(OS) No.116/2008, namely, Shri Bibek Debroy to seek

appointment of a Court Commissioner to execute the sale deed on behalf

of defendant No.2. The stamp duty and all other charges required for

execution and registration of the sale deed in favour of defendant No.1

Shri Bibek Debroy shall be borne by him.

b) The plaintiff in CS(OS) No.116/2008 Smt.Dipavali Debroy shall be the

sole owner of Flat No.67(First Floor) in Block-F, Sushant Lok-II,

Gurgaon. Defendant No.5 M/s Ansal Buildwell Ltd. shall execute sale

deed/transfer deed/conveyance deed of the aforesaid flat in favour of

Smt.Dipavali Debroy within eight weeks from today. Both, the husband

and wife will, within one week, jointly inform defendant No.5 of this

order and request it to execute the sale deed/transfer deed/conveyance

deed of said flat in favour of Smt.Dipavali Debroy. If defendant No.5

fails to execute the sale deed in terms of this order, it shall be open to

plaintiff in CS(os) No.116/2008, namely, Smt.Dipavali Debroy to seek

appointment of a Court Commissioner to execute the sale deed on behalf

of defendant No.5. The stamp duty and all other charges required for

execution and registration of the sale deed in favour of defendant No.1

Smt.Dipavali Debroy shall be borne by her. A copy of this order will be

annexed to the intimation.

If any charges still remain unpaid to defendant No.5, the same shall be

paid by Smt.Dipavali Debroy if demanded by defendant No.5, on receipt

of intimation in terms of this order.

c) The Time Sharing Units in Royal Goan Beach Club, Goa allotted by

defendant No.6 on 26.9.1995 shall vest exclusively in Smt. Dipavali

Debroy and the name of Shri Bibek Debroy, defendant No.1 in CS(OS)

No.116/2008 shall be deleted in the record of defendant No.6 as far as

ownership of these units are concerned. The plaintiff and defendant No.1

shall jointly intimate defendant No.6 of the order passed today and make

a request for deleting the name of Shri Bibek Debroy in the record of

defendant no.6 as well as the in the said units. A copy of this order would

also be annexed to the intimation to be sent to the defendant No.6.

11. Keeping in view the facts and circumstances, there shall be no order

as to costs. Decree sheet be drawn accordingly.

12. The suit and all pending IAs also stand disposed of.

13. The parties shall remain bound by their respective undertakings

contained in IA No.17441/2012.

14. Since the matter has been settled between the parties before the Delhi

High Court Mediation and Conciliation Centre on reference from the Court

and the issues are yet to be framed, the plaintiffs in both the suits are entitled

to refund the Court Fee in terms of Section 16 of the Court Fee Act.