Delhi High Court
Samarjit Chakravarty And Anr vs M/S Tej Properties Pvt. Ltd. And ... on 15 April, 2014
$~24 & 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
24+ CS(OS) 1474/2008
SAMARJIT CHAKRAVARTY AND ANR ..... Plaintiffs
Through: Mr. Prithu Garg, Adv.
Versus
M/S TEJ PROPERTIES PVT. LTD. AND ANR ........ Defendants
Through: Mr. Manoj Goel, Mr. Shuvodeep Roy
and Ms. Sabika Ahmed, Advs. for D-
1.
Mr. Rajesh Gupta & Ms. Harpreet
Singh, Advs. for D-3&4.
AND
28+ CS(OS) 1523/2009
M/S TEJ PROPERTIES PVT LTD & ANR. ..... Plaintiffs
Through: Mr. Manoj Goel, Mr. Shuvodeep Roy
and Ms. Sabika Ahmed, Advs.
Versus
SAMARJIT CHAKRAVARTY & ORS ..... Defendants
Through: Mr. Prithu Garg, Adv. for D-1&2.
Mr. Rajesh Gupta & Ms. Harpreet
Singh, Advs. for D-3&4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 15.04.2014
1. The files are taken up today as 14th April, 2014 was declared a
holiday.
2. The two suits, vide order dated 5th March, 2014, were ordered to be
consolidated for the purposes of trial and decision and are listed today for
framing of consolidated issues.
3. Though the counsel for Samarjit and Arati and the counsel for Tej and
Prabhjit handed over proposed issues but while the issues proposed by
counsel for Samarjit and Arati are found to be suit-wise and not
consolidated, from the issues proposed by counsel for Tej and Prabjit, no
clarity emerged. Owing to cases of two days being listed, there was no time
to peruse the voluminous pleadings in the Court, accordingly, the files were
sent to chamber, for framing appropriate issues after perusing the pleadings.
4. The position of the parties and the two suits is as under:
Sl. Name Status in CS(OS) Status in CS(OS)
No. No.1474/2008 No.1523/2009
1. Samarjit Chakravarty Plaintiff No.1 Defendant No.1
(Samarjit)
2. Arati Chakravarty Plaintiff No.2 Defendant No.2
(Arati)
3. Tej Properties Pvt. Defendant No.1 Plaintiff No.1
Ltd. (Tej)
4. Prabjit Singh, Defendant No.2 Plaintiff No.2
Director, Tej
Properties Pvt. Ltd.
(Prabjit)
5. Sunil K. Chakravarty Defendant No.4 Defendant No.3
(Sunil)
6. Arun Chakravarty Defendant No.3 Defendant No.4
(Arun)
5. The position which emerges upon going through the pleadings in the
two suits is as under:
(i) the suits concern land admeasuring 8 bighas and 5 biswas
situated in Village Chattarpur, Tehsil Mehrauli, New Delhi;
(ii) the said land was owned by Sushil K. Chakravarty who had
mortgaged the same to New Bank of India succeeded by Punjab
National Bank (PNB);
(iii) Sushil K. Chakravarty was a bachelor and had no heirs within
the meaning of Class I of the Schedule to the Hindu Succession Act,
1956;
(iv) Sunil and Arun are brothers and were related to Sushil K.
Chakarvarty;
(v) Arati is the wife of Sunil and Samarjit is the brother of Arati;
(vi) Sushil K. Chakravarty, Sunil and Samarjit were partners in the
partnership firm M/s ESPI Industrial Corporation Ltd.;
(vii) that Sushil K. Chakravarty, Samarjit and Arati were partners in
another partnership firm M/s ESPI Trading Company;
(viii) disputes and differences arose with respect to the aforesaid
partnerships and the following three legal proceedings were filed:
(a) Arbitration Suit under Section 20 of the Arbitration Act,
1940 being CS(OS) No.1479A/1989 was filed by Samarjit
against Sushil K. Chakravarty;
(b) Sushil K. Chakravarty filed CS(OS) No.1964/1989
against Samarjit; and,
(c) Sunil filed CS(OS) No.1275/1990 against Sushil K.
Chakravarty;
(ix) vide order dated 12th June, 1989 in CS(OS) No.1479A/1989
aforesaid, Sushil K. Chakravarty was restrained from alienating or
transferring in any manner or creating any third party interest in the
aforesaid land;
(x) Sushil K. Chakravarty vide Agreement to Sell dated 17th
March, 1992 agreed to sell the aforesaid land to Tej for a
consideration of Rs.60 lakhs of which Rs.22 lakhs was paid as
advance and Rs.38 lakhs was payable subsequently;
(xi) disputes and differences arose between Sushil K. Chakravarty
and Tej also with respect to the said Agreement to Sell;
(xii) Sushil K. Chakravarty instituted CS(OS) No.1348/1996 for
declaration that the Agreement to Sell stood terminated and for
recovery of possession of the said land from Tej;
(xiii) Tej instituted CS(OS) No.2501/1997 for specific performance
of the Agreement to Sell;
(xiv) Sushil K. Chakravarty died on 3rd June, 2003 without leaving
any Class-I heirs and Sunil and Arun claimed to be the Class-II heirs
of Sushil K. Chakravarty;
(xv) Sunil and Arun got themselves substituted as legal heirs of
Sushil K. Chakravarty in the three legal proceedings aforesaid
relating to the partnership businesses;
(xvi) a compromise dated 11th November, 2005 was arrived at in the
three suits aforesaid relating to the partnership businesses, between
Sunil and Arun as legal heirs of Sushil K. Chakravarty on the one
hand and Samarjit and Arati on the other hand, whereunder it was
agreed that the said land will be sold and the sale proceeds thereof,
left after discharging the dues of PNB, will be distributed between
Samarjit, Arati and Sunil and Arun;
(xvii) however Sunil and / or Arun as legal heirs, did not take any
steps for substitution in the two suits aforesaid between Sushil K.
Chakravarty and Tej;
(xviii) resultantly CS(OS) No.1348/1996 filed by Sushil K.
Chakravarty was dismissed for non-prosecution and in CS(OS)
No.2501/1997 an ex-parte decree dated 25th July, 2007 of specific
performance of the Agreement to Sell was passed in favour of Tej;
(xix) that in execution of the ex-parte decree for specific
performance, Tej paid off the dues of the PNB and got the aforesaid
land freed from mortgage;
(xx) Samarjit and Arati filed CS(OS) No.1474/2008 contending that
neither they nor Sunil or Arun knew of the disputes of Sushil K.
Chakravarty with Tej and of CS(OS) No.1348/1996 and/or CS(OS)
No.2501/1997 and learnt of the same for the first time, after
compromise dated 11th November, 2005, upon approaching the PNB
for discharging the mortgage;
(xxi) CS(OS) No.1474/2008 has been filed only for the relief of
declaration that the ex-parte decree of specific performance in favour
of Tej is a result of fraud, concealment, misrepresentation, procedural
irregularity etc. and is null and void and not binding on Samarjit and
Arati and liable to be set aside;
(xxii) Tej is contesting CS(OS) No.1474/2008 and has also filed
CS(OS) No.1523/2009 contending that the compromise arrived at
between Samarjit and Arati on the one hand and Sunil and Arun as
legal heirs of Sushil K. Chakravarty on the other hand relating to
partnership businesses and on the basis whereof Samarjit and Arati
claim rights in the land aforesaid, is fraudulent and null and void.
6. Tej in its written statement in CS(OS) No.1474/2008 was also found
to have taken a plea that Sunil and Arun had also made applications in
CS(OS) No.1348/1996 and CS(OS) No.2501/1997 for setting aside the
order of dismissal for non-prosecution and ex-parte decree respectively
therein, on the same grounds as urged by Samarjit and Arati and in CS(OS)
No.1474/2008.
7. However, during the hearing on 15th April, 2014, neither counsels
informed the fate of the said applications.
8. Being prima facie of the view that the claim of Samarjit and Arati to
the subject land depends upon the rights of Sunil and Arun thereto as legal
heirs of Sushil K. Chakravarty, and that if Sunil and Arun in the applications
filed by them in CS(OS) No.1348/1996 and CS(OS) No.2501/1997 have not
met with any success, Samarjit and Arati also can have no right to continue
with CS(OS) No.1474/2008, I on my own, started enquiring about the fate
of the applications aforesaid.
9. It is found that the said applications being I.A. Nos.4531/2008 and
4532/2008 filed by Sunil and Arun for restoration of CS(OS) No.1348/1996
and for condonation of delay in applying for restoration and I.A.
No.3391/2008 filed by Sunil and Arun for setting aside of the ex-parte
decree of specific performance in CS(OS) No.2501/1997 were dismissed by
a learned Single Judge of this Court vide order dated 24th August, 2009.
10. My enquiries have further revealed that Sunil and Arun preferred
FAO(OS) Nos.516/2009 & 517/2009 against the aforesaid order of
dismissal of their applications and which appeals were also dismissed by the
Division Bench of this Court vide judgment dated 17th October, 2011.
11. It is yet further found that Sunil and Arun filed SLP(C) Nos.3307-
3308 of 2012 against the aforesaid, which were converted into Civil
Appeals No.2600-2601 of 2013 and which were dismissed vide judgment
dated 19th March, 2013 of the Supreme Court.
12. Thus, the challenge by Sunil and Arun to the ex-parte decree of
specific performance aforesaid in favour of Tej and which challenge, upon
reading of the judgments of the learned Single Judge, Division Bench and of
the Supreme Court, is found to be more or less on the same grounds as
urged by Samarjit and Arati, has failed till the Supreme Court and has
attained finality.
13. I have wondered the effect of the aforesaid judgments on the suits.
14. I am of the prima facie opinion that once the challenge by Sunil and
Arun as legal heirs of Sushil K. Chakravarty to the decree for specific
performance in favour of Tej has failed, the claim of Samarjit and Arati to
the said land, again through Sunil and Arun as legal heirs of Sushil K.
Chakravarty does not survive and need not be put to trial. The claim of
Sarmarjit and Arati to the said land is on the basis of the compromise dated
11th November, 2005 with Sunil and Arun, whereunder Sunil and Arun
agreed to sell the property and to share the sale proceeds with Samarjit and
Arati. Once, Sunil and Arun have been held to be not entitled to sell the
property, Samarjit and Arati cannot derive any title to the said property and
cannot have any locus to challenge the decree for specific performance and
which tantamounts to a second round of challenge to the said decree.
15. I am also of the prima facie opinion that if Samarjit and Arati are so
found to be having no right to challenge the decree for specific performance
in favour of Tej, there is no need for Tej also to in CS(OS) No.1523/2009
challenge the compromise dated 11th November, 2005 relating to the
partnership businesses; after all, Tej has challenged the said compromise
only to strike at the root of the claim of Samarjit and Arati in CS(OS)
No.1474/2008.
16. It is thus felt that there is no need to put the suits to trial.
17. Unfortunately, neither the counsel for Tej has bothered to consider
the matter in the said perspective and has mechanically proposed issues, nor
have the counsel for Sunil and Arun who though appearing have informed
the Court of the aforesaid subsequent developments having vital impact
aforesaid on these two suits. Of course, Samarjit and Arati, though closely
related to Sunil and Arun and thus deemed to be in the knowledge of
aforesaid developments, being interested in keeping the suits alive, have
also suppressed the aforesaid facts.
18. I am further of the view that if CS(OS) No.1474/2008 is to ultimately
fail for the aforesaid reasons and owing thereto CS(OS) No.1523/2009 is to
be rendered infructuous, no purpose will be served in blindly and
mechanically putting these suits to trial, taking valuable time, which can be
devoted to deserving cases.
19. However, since the counsels have not been heard on the aforesaid
aspect, though have been found to be totally lacking, I still deem it
appropriate to give them an opportunity to address on the said aspect.
20. However at the same time, having gone through the pleadings, it is
also deemed expedient to frame issues.
21. On the pleadings in the two suits, the following consolidated issues
(in which the parties are referred to by their nomenclature in CS(OS)
No.1474/2008) are framed:-
(i) Whether the plaintiffs in CS(OS) No.1474/2008, on the basis of
the compromise dated 11th November, 2005 with the
defendants no.3&4 in the said suit have any locus to challenge
the decree dated 25th July, 2007 for specific performance of the
Agreement to Sell by the predecessor-in-interest of the
defendants no.3&4 in favour of the defendant no.1, especially
when the said decree against the defendants no.3&4 has
attained finality? OPP
(ii) Whether the compromise dated 11th November, 2005 between
the plaintiffs and the defendants no.3&4 is collusive and
intended to defeat the Agreement to Sell executed by the
predecessor of the defendants no.3&4 in favour of the
defendant no.1 and if so to what effect? OPP
(iii) What is the effect if any of the discharge by the defendant no.1
of the mortgage in favour of PNB and whether the defendant
no.1 had no locus to so discharge the mortgage? OPPr
(iv) Whether CS(OS) No.1474/2008 has been correctly valued for
the purposes of Court Fees and jurisdiction and appropriate
Court Fees has been paid thereon and if not to what effect?
OPPr
(v) Whether the defendants no.1&2 are tenants in possession w.e.f.
1st March, 1989 of the property and if so to what effect (while
deciding this issue regard shall be had to the provisions of the
Delhi Land Reforms Act, 1954 on the effect of letting out of
the land)? OPPr
(vi) Whether the Agreement to Sell by the predecessor-in-interest
of the defendants no.3&4 in favour of the defendant no.1 was
in violation of interim injunction dated 12th July, 1989 in any
proceedings initiated by the plaintiff no.1 against the said
predecessor and if so to what effect? OPP
(vii) Whether the defendant no.1 was aware of suit No.1479A/1989
filed by the plaintiff no.1 against the predecessor of the
defendants no.3&4 and of the defendants no.3&4 being the
legal representatives of the agreement seller and if so what is
the effect if any of the defendant no.1 in the suit for specific
performance filed by him not disclosing the said fact and not
substituting the defendants no.3&4 as legal representatives?
OPP
(viii) Whether the defendants no.3&4 were unaware of the
Agreement to Sell and the proceedings in relation thereto
between their predecessor and the defendant no.1 and if so to
what effect? OPP
(ix) Whether the defendant no.1 was aware of the Suit
No.1479A/1989 and the compromise dated 11th November,
2005 therein and concealed the said fact from the suit for
specific performance and if so to what effect? OPD
(x) Whether the decree dated 25th July, 2007 in the suit for specific
performance is liable to be set aside? OPP
(xi) What is the effect if any of the plaintiffs inspite of being aware
of the proceedings for specific performance filed by the
defendant no.1 against the predecessor of the defendants
no.3&4 not taking any steps therein and whether the claim of
the plaintiffs is within time? OPP
(xii) What is the effect of the rights under the compromise dated 11th
November, 2005 claimed by the plaintiffs in the property being
subsequent to the rights claimed by the defendant no.1 under an
Agreement to Sell of an earlier date? OPP
(xiii) Whether no compromise dated 11th November, 2005 could
have been recorded in Section 20 of the Arbitration Act, 1940
proceeding? OPD-1
(xiv) Whether the defendant no.3&4 have inherited any rights in the
property from their predecessor Sushil K. Chakravarty so as to
be in a position to arrive at a compromise dated 11th November,
2005 with the plaintiffs qua the said property? OPP
(xv) Whether the claim in CS(OS) No.1523/2009 is within time?
OPD-1
(xvi) Whether the document dated 8th June, 1990 is the validly
executed last Will of the predecessor-in-interest of the
defendants no.3&4 and if so to what effect? OPD-1&2
(xvii) Relief.
22. No other issue is found to arise.
23. The Issue No.(i) aforesaid is ordered to be treated as a preliminary
issue.
24. List for hearing on the said preliminary issue on 16th May, 2014.
RAJIV SAHAI ENDLAW, J.
APRIL 15, 2014
'bs'/pp
(corrected and released on 15th May, 2014)
