Delhi High Court
Shri Akhileshwar Prasad Narayan ... vs Shri Shashi Shekhareshwar on 3 December, 2014
$~05.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 170/2008
% Judgment dated 03.12.2014
SHRI AKHILESHWAR PRASAD NARAYAN SINGH ..... Plaintiff
Through : Mr.Sandeep Sethi, Sr. Adv. with
Ms.Pragya Nalwa, Adv.
versus
SHRI SHASHI SHEKHARESHWAR
PRASAD NARAYAN SINGH & OTHERS ..... Defendants
Through : Mr.A.S. Chandhiok, Sr. Adv. with
Mr.Saurabh Kirpal, Ms.Manmeet Kaur,
Mr.Manan Chadha and Mr.Siddharth
Tyagi, Advs. for defendant no.1.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A. 11296/2014
1. Present application has been filed by plaintiff/applicant under Section 151
of the Code of Civil Procedure seeking the following prayers:
"a. Allow the instant application and direct Defendant
No.1/Mrs.Nalini Singh and Promont to provide full and
complete details and documents pertaining to the entire
consideration that was received by Defendant
No.1/Mrs.Nalini Singh and/or paid by Promont in lieu of the
Property and on this basis to direct Defendant No.
1/Mrs.Nalini Singh to pay unto the Plaintiff 1/4th (one-
fourth) of the entire sale proceeds of the Property (adjusted
by the sum of Rs.54.5 crores already paid unto the Plaintiff).
CS(OS)No.170-2008 Page 1 of 11
b. Pending disposal of the Application, injunct and restrain
Promont, its agents, employees, assigns, officers and
nominees from undertaking any development or
construction works on or in respect of the Property."
2. The plaintiff had filed a suit for partition with respect to property bearing
no.2 and 2A, Hailey Road, New Delhi, bearing Municipal No.II-P/R-7
and 8.
3. By an order dated 24.9.2008 a preliminary decree was passed defining the
shares of the parties as under:
"plaintiff, defendant no.1 and defendant no.2 as 1/4 th
undivided share, each, and defendants no.3 to 6 as remaining
1/4th undivided share (together) in the suit property."
4. Subsequently the parties entered into a Memorandum of Settlement on
2.2.2009, which was duly signed by the parties. As per this Memorandum
of Settlement, which was arrived at before Delhi High Court Mediation
and Conciliation Centre, the sale price of the suit property was fixed at
Rs.160 crores. It was also agreed that the property would be put to sale
and the sale consideration would be divided amongst the parties as per
their share. As per Clause 5.1 of this Memorandum of Settlement, it was
agreed that none of the parties would create any third party rights or
encumber the property. It is not in dispute that the parties were unable to
get a buyer for the estimated sum of Rs.160 crores. In the order dated
3.6.2011 fresh terms of settlement, which were agreed between the
parties, were recorded by the Court. Pursuant to the settlement recorded in
Court on 3.6.2011 the plaintiff was paid Rs.54.50 crores by defendant
no.1, as defendant no.1 had agreed to purchase 1/4th share of the plaintiff.
CS(OS)No.170-2008 Page 2 of 11
The property was sold to M/s Promont Hillside Private Limited, a
nominee of defendant no.1, which fact was brought to the notice of the
Court by defendant no.1 by filing an application, being I.A.14300/2012. It
is not in dispute that the plaintiff, defendant no.2 and defendants no.3 to 6
were paid their share. Details of demand drafts drawn in the name of other
defendants were detailed in I.A.14300/2012. Subsequently, a Local
Commissioner was appointed, possession of the property was handed over
to the buyer, nominee of defendant no.1, and a sale deed was executed by
all the parties in favour of the nominee.
5. Mr.Sethi, learned senior counsel appearing on behalf of the plaintiff,
submits that material facts were not disclosed by defendant no.1 to the
plaintiff, which include:
(i) That defendant no.1 had approached the L&DO for
conversion of the property from lease hold to free hold on the
premise that defendant no.1 was the sole and exclusive
owner of the suit property.
(ii) Defendant no.1 did not disclose his arrangement with his
nominee (purchaser).
(iii) Defendant no.1 did not disclose that he had approached the
office of competent authority i.e. Government of NCT Delhi
and Archaeological Survey of India for grant of permission
for reconstruction and construction at the suit property.
(iv) Defendant no.1 did not inform the plaintiff of his proposal to
take permission for construction of a group housing society
at the suit property.
6. Learned senior counsel for the plaintiff submits that the above facts are
CS(OS)No.170-2008 Page 3 of 11
material suppressions on the part of defendant no.1 and had the plaintiff
knowledge of all the future plans of defendant no.1, plaintiff would not
have agreed to accept Rs.54.50 crores as was offered to him.
7. Mr.Chandhiok, learned senior counsel appearing on behalf of defendant
no.1, submits that by a preliminary decree dated 24.9.2008 the shares of
the parties were defined. In the Memorandum of Settlement dated
2.2.2009 the parties had arrived at a tentative figure for sale of the
property, for Rs.160 crores. At that stage, it was open for any of the
parties to approach a prospective buyer as none of the parties were in a
financial position to pay approximately Rs.40.00 crores or above for the
individual share of each party. Learned senior counsel further submits that
no buyer could be found who was willing to pay Rs.160 crores, the
tentative figure, which finds mention in the Memorandum of Settlement,
to purchase the suit property. It is further submitted by learned senior
counsel that on 3.6.2011, when the matter was listed before the Court,
another settlement was arrived at between the parties, whereby parties
agreed to sell the property for Rs.218 crores and defendant no.1 took upon
plaintiff to pay Rs.54.5 crores. It is also contended that stringent
conditions were imposed upon the defendant no.1 as the said amount was
to be paid within 75 days of mutation irrespective of the fact whether the
suit property was converted from lease hold to free hold or not. It is also
clarified that defendant no.1 approached L&DO for conversion of the
property from lease hold to free hold on a mandate given to him which is
evident upon reading of the agreed terms of settlement between the parties
in the order dated 3.6.2011. Mr.Chandhiok contends that the parties were
ad idem that defendant no.1 would sell the property and the money would
be paid either by defendant no.1 or his nominee. It is further contended
CS(OS)No.170-2008 Page 4 of 11
that in this backdrop defendant no.1 had approached L&DO and an
application was made for conversion of the property into a group housing
project.
8. Mr.Chandhiok, learned senior counsel for defendant no.1, further submits
that once a preliminary decree was passed, it was open for either of the
parties to take any step for sale entered into a collaboration agreement or
any form of agreement with any purchaser to buy each others‟ share. It is
further submitted that, at this stage, the present application in a disposed
of suit is neither maintainable nor any direction can be sought calling
upon defendant no.1 to disclose complete details and documents, and the
sale consideration that was received by defendant no.1 or paid by the
purchaser. It is further submitted by Mr.Chandhiok that since a copy of
the sale deed is on record, by which the entire property was sold to
Promont Hillside Private Limited, wherein sale consideration has been
disclosed besides other details, thus, no further disclosure of any kind is
warranted.
9. I have heard learned senior counsel for the parties and considered their
rival submissions. I have also perused the present application and the
documents placed on record. It may be noticed that after the order dated
3.6.2011 was passed, an application, being I.A.18945/2012, was filed by
defendant no.2, wherein the following prayers were made:
"a) modification of order dated 5.9.2012 in C.S.(O.S)
No.170/2008 passed by this Hon‟ble Court to enable
Defendant No.2 to appear before the L&DO and direct the
L&DO to hear defendant No.2 as per their rules.
b) direct the L&DO to recalculate and apportion the misuse
charges of Rs.85,27088/- in line with their order dated
6.6.2012 and 14.6.2012.
CS(OS)No.170-2008 Page 5 of 11
c) direct the purchaser not to demolish any of the
building/structure at No.2 Hailey Road, New Delhi till it is
evaluated by the L&DO.
d) direct the purchaser to disclose this Hon‟ble Court the full
price paid and if any charges levies have been reimbursed to
D1."
10. I.A.18945/2012 was disposed of by an order dated 1.11.2012, which reads
as under:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 170/2008
SHRI AKHILESHWAR PRASAD NARAYAN SINGH .....
Plaintiff
Through Mr. Chander Bhushan Prasad, Advocate
versus
SHRI SHASHI SHEKHARESHWAR PRASAD
NARAYAN SINGH and OTHERS ..... Defendants
Through Mr. Saurav Kirpal and Ms. Diya Kapur,
Advocates for Defendant No.1
Mrs. Ravatrey Raghavan, Advocate for defendant No.
2
Mr. Amritesh Mishra, Advocate for Mr. Rohit Puri,
Advocate for D-3 to 6
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
01.11.2012
IA No. 18945/2012 (u/S 151 CPC)
The amount paid by one of the defendants towards
misuse/damages charges has been wrongly typed as Rs.89,94,587/-
in the order dated 5th September, 2012. The correct amount is
Rs.84,94,587/-. To this extent, order dated 5th September, 2012
stands corrected.
It has also been agreed between the parties that the order
dated 5th September, 2012 shall not be treated as an order/decree for
payment of 1/4th each of the aforesaid amount of Rs.84,94,587/- by
co-owners other than defendant No. 1 to defendant No. 1. If
defendant No. 1 is otherwise entitled in law to recover any amount
from the other co-owners of the property towards their share in the
misuse/damage charges, he would be entitled to take recourse to
appropriate legal proceedings in this regard.
The application stands disposed of.
Dasti."
11. It may be noticed that I.A.18945/2012 was decided in the presence of
learned counsel for the plaintiff and at that stage neither the plaintiff
joined issue with applicant/defendant no.2 nor defendant no.2 pressed the
prayers „c‟ and „d‟ of the application.
12. The dates in this matter, which are relevant and are being noticed below,
would show that a preliminary decree was passed on 24.9.2008, when the
shares of plaintiff, defendant no.1 and defendant no.2 were defined as
1/4th undivided share, each, and share of defendants no.3 to 6 were
defined as remaining 1/4th undivided share (together) in the suit property.
At that stage, the matter was referred to Delhi High Court Mediation and
Conciliation Centre and on 2.2.2009 a Memorandum of Settlement was
executed between the parties. A careful perusal of this Memorandum of
Settlement would show that the shares of the parties were again
acknowledged. The parties had jointly agreed that they would explore the
possibility of a joint sale of the suit property, mutually sell the suit
property and realise the sale proceeds in four equal parts. This settlement
was valid for a period of eight months as the minimum price had been
fixed at Rs.160 crores. It was also agreed that in case the property is not
sold during eight months‟ period or the extended period, all the parties
were to revert back to the Mediator to discuss mutually acceptable future
course of action. It was also agreed that each party would be at liberty to
bring prospective buyers, who would be interested in buying the property.
The names of brokers were also detailed in this Memorandum of
Settlement. The matter was listed before the Court on 16.2.2009 when the
case was adjourned for eight months to enable the parties to comply with
the terms of settlement. In the order dated 3.6.2011, the Court has noticed
the final terms of settlement between the parties. As per the order dated
3.6.2011, in terms of the settlement defendant no.1 had agreed to purchase
1/4th share, each, of the suit property from plaintiff and defendant no.2,
and from defendants no.3 to 6 (1/4th share). It was made clear that
defendant no.1 would be entitled to purchase the said share either in his
own name or in the name of his nominee. The value of the property was
also fixed by the parties at Rs.218 crores. The shares of each party was
Rs.54.5 crores [plaintiff, defendant no.1, defendant no.2 and defendants
no.3-6 (collectively)]. Seventy five days‟ time was fixed from the date of
mutation for completion of transaction.
13. Para 1 of the order dated 3.6.2011, being relevant, is being reproduced
below:
"(i) Defendant No.1 has agreed to purchase the 3/4th share of the
suit property from the plaintiff (1/4th share), defendant No.2 (1/4 th
share) and defendants No.3 to 6 (1/4th share). Defendant No.1 shall
be entitled to purchase the same either in his own name or in the
name of his nominee.
(ii) The total value of the suit property has been valued by the
parties to be Rs.218 crores. Accordingly, the value of 1/4th share of
defendant No.1 would be Rs.54.5 crores. Defendant No.1 shall pay
Rs.54.5 crores to the plaintiff, Rs.54.5 crores to defendant No.2 and
Rs.54.5 crores to defendants No.3 to 6 within a period of 75 days
from the date of mutation/substitution of the 1/4th share of Late
Prathibha Singh in the name of defendants No.3 to 6. However, all
charges payable for mutation/substitution shall be paid by
defendant No.1. Defendants No.3 to 6 shall intimate the charges
payable for mutation/substitution to defendant No.1 who shall make
the payment in respect thereof within one week. It is further agreed
that if any demolition has to be carried out for
mutation/substitution, the same shall be carried out by the relevant
parties within one week of defendants No.3 to 6 intimating them
the same.
However, if any charges are attributable to the plaintiff and
defendants No.2 to 6, defendants No.1 shall be entitled to
adjust/deduct the same from the sale consideration at the time of
final payment.
(iv) The plaintiff, defendant No.2 and defendants No.3 to 6 have
agreed to sell their 3/4th share to defendant No.1 on „as and where
is‟ basis and, therefore, all permissions/charges required to be paid
for transfer of the suit property shall be borne by defendant No.1
alone.
(iv) The parties agree to jointly apply for conversion of the suit
property from leasehold to freehold within a period of four weeks.
However, defendant No.1 shall be responsible for preparing the
application for conversion. All charges payable for conversion of
the suit property from leasehold to freehold shall be paid by
defendant No.1. The plaintiff and defendant Nos.2 to 6 shall hand
over all documents relating to this case within their power and
possession as per the list given by defendant No.1 to them and the
Court today to L&DO at the time of conversion.
(v) The plaintiff and defendants No.2 to 6 shall deposit the original
title documents directly with the Land and Development Office at
the time of application for conversion. However, the plaintiff and
defendants No.2 to 6 shall provide the photocopies of the original
documents in their possession to defendant No.1 within seven days
to enable defendant No.1 to prepare the application for conversion
of the suit property from leasehold to freehold.
(vi) It is further agreed that the time is the essence and defendant
No.1 shall pay Rs.163.5 crores to the plaintiff within 75 days of the
mutation irrespective of whether the suit property by that time is
converted into freehold or not."
14. A reading of the order dated 3.6.2011 would show that after the sale price
had been fixed and defendant no.1 had agreed to purchase the share of all
other parties, he was to apply for conversion; all the charges for
conversion of the suit property from lease hold to free hold were to be
borne by defendant no.1; original documents were to be given as per the
list to defendant no.1; time was the essence; and defendant no.1 was to
pay Rs.54.5 crores to the plaintiff within seventy five days of mutation
irrespective of whether the property is converted or not. A further reading
of the order dated 3.6.2011 would also show that in fact all the parties had
agreed to jointly apply for conversion of the suit property from lease hold
to free hold, however, defendant no.1 was made responsible for preparing
the application for conversion. Even the conversion charges were to be
paid by defendant no.1 and a time limit was fixed for defendant no.1 to
make the payment to the parties. In this backdrop, it is not unusual for
defendant no.1 to have approached the NDMC for conversion.
15. It has been strongly urged by learned senior counsel for the plaintiff
before this Court that defendant no.1, without informing the other parties,
had made the plans for seeking permission for group housing project and
had the plaintiff knowledge of the same, he may or may not have accepted
the terms of settlement. I am unable to accept this submission of learned
senior counsel for the plaintiff as the slate was always clean and wide
open after the preliminary decree was passed in the year 2008. It was also
open for any of the parties to have approached a buyer, builder, colonizer
or entered into any agreement for sale of this property and offer was made
by defendant no.1 in Court, which was accepted by all the parties, which
is evident upon reading of the order dated 3.6.2011. Having accepted the
offer and the payment, at this stage, for the plaintiff to seek further
information from defendant no.1 in a suit, which has already been
decreed, in my view, such an application would not be maintainable. Even
otherwise, the information sought by the plaintiff is available in the sale
deed, a copy of which has been placed on record. The plaintiff should
have been vigilant with regard to his rights and the information
sought/relied upon should have been collected prior to entering into
settlement. It was also open for the plaintiff to have quizzed the purchaser
of his terms and conditions and it is expected that only after satisfying
himself fully and completely the plaintiff would have entered into a
settlement and accepted Rs.54.5 crores.
16. In view of above, I find no merit in the present application and the same is
dismissed.
G.S.SISTANI, J
DECEMBER 03, 2014 msr/pdf
