Nirmala Jain & Anr. vs G.S.Batra & Anr.
2015 Latest Caselaw 2632 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                           Judgment reserved on March 10, 2015
                          Judgment delivered on March 27, 2015
+                  IA 19137/2014 in OMP No. 145/2004

NIRMALA JAIN & ANR.
                                                 ..... Petitioners
                   Through:           Mr.Rajat Navet, Advocate

                   versus

G.S.BATRA & ANR.
                                                 ..... Respondents
                   Through:           Mr.Rakesh Malhotra, Adv. for R-
                                      1
                                      Ms.Shweta            Priyadarshani,
                                      Advocate for R-2 & R-3
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

IA 19137/2014 in OMP No. 145/2004 (filed by the respondent No. 1)

1. By the present order, I will dispose of the application i.e. IA

19137/2014 filed by the respondent No. 1/applicant (Applicant, in short)

Mr. G.S.Batra in the aforesaid OMP.

The facts:

2. The aforesaid OMP has been filed by the petitioners herein under

Section 9 of the Arbitration and Conciliation Act, 1996 (Act, in short).

When the matter was listed on May 4, 2004, this Court has passed the

following order:

"Notice to the respondents for 14th July, 2004. In the meanwhile, the parties are directed to maintain status quo in regard to the title as well as possession of property No. 40/72, Punjab Bagh (West), New Delhi and are restrained from raising any further constructions therein or creating any third party interest in any portion of the said property. The respondents are further restrained from obstructing the ingress and egress of the petitioners, their family members as well as visitors to the portions of the suit property in their possession".

3. The aforesaid order was confirmed by this Court on November 22,

2005. Two applications i.e. one by the petitioners (IA No. 13795/2014)

for appointment of a Court Receiver and for appointment of a Court

Commissioner for sealing the property in question 40/72, Punjabi Bagh

(West), New Delhi and the other by the respondent No. 1 (IA No.

15470/2014) for recall of order dated August 14, 2014 were filed. The

application (IA 15470/2014) was withdrawn by the applicant herein.

On July 31, 2014, in IA 13795/2014, this Court had appointed Mr.

Jayant K. Mehta, Advocate as the Court Commissioner, who was to visit

the property/site and take photographs and file his report. Mr. Jayant

K.Mehta, in his report, has stated that large scale construction is going

on at the site. This aspect was noted by this Court on August 14, 2014.

The Court appointed Mr.D.S.Bhandari, then OSD of this Court as a

Court Receiver to ensure that the property is sealed. The Court Receiver

in his report stated that, the terrace and the first floor have been sealed.

On August 20, 2014, this Court after perusing the report and the

photographs and also hearing the Court Commissioner Mr. Jayant K.

Mehta, continued the sealing carried out at the behest of the Court.

Since contempt petition was filed by the petitioners, the Court was of the

view that any party seeking variation of the aforesaid order or access to

the premises except the ground floor, will approach the Court in which

the contempt proceedings are pending. The contempt proceedings were

dismissed in default for non-appearance of the petitioners.

4. The learned Single Judge hearing the contempt petition on an

application filed by the applicant, gave liberty to the respondent No. 1 to

approach this Court vide order dated September 22, 2014. The prayers

sought in the present application are as under:

"a. De-seal the first floor of the property bearing number 40/72, West Punjabi Bagh, New Delhi in the interest of justice.

b. Call the record of Cont. Case 470 of 2014 titled as Nirmala Devi Versus G.S.Batra and Others in the interest of justice.

c. Call the record of the Cont. Case No. 89 of 2011 titled as Nirmala Devi Versus G.S.Batra and Others in the interest of justice"

5. It is the case of the applicant in the application that the applicant

has the possession of the subject property and the petitioners/non-

applicants have deliberately got the contempt petition dismissed by not

appearing in those proceedings. It is also his case that the petitioners

intentionally did not file any application for restoration and which

clearly shows an attempt to harass the respondents, which resulted in

loss of considerable time for the applicant to move an application for

desealing. It is his case that the applicant has acquired ownership of

1/3rd undivided share in the subject property by virtue of registered sale

deed dated April 6, 2004 and on that day, possession of the subject

property has been handed over to the applicant. The subject property

was mortgaged by the petitioners with UCO Bank and failing to clear the

dues of the bank, proceedings under SARFAESI Act, 2002 were

instituted by UCO Bank and the respondent No. 3 has acquired the

ownership of the subject property by virtue of sale certificate issued by

UCO Bank on August 17, 2007 and possession of the property has been

handed over to the respondent No. 3. He would state that the respondent

No. 3 has allowed the applicant to remain in the subject property. It is

also stated by the applicant that the petitioners have challenged the sale

before the learned DRT which dismissed the petition vide order dated

August 6, 2012 and the petitioners have challenged the order before the

DRAT which is pending adjudication.

6. The applicant's case is that since it is a 40 years' old case, the

property was in urgent need of repairs as electrical wires as well as

internal pipelines were severely damaged on the ground floor as well as

the first floor and also the fact that due to ongoing rainy season, all the

walls, roofs of some part of the property got damaged, resulting in

frequent short circuits. He would also state that the applicant is living

with his family and temporarily shifted from subject property to a lease

property so that the renovation work can be carried out smoothly in their

absence. According to him, this aspect was concealed by the petitioners

from this Court in IA 13795/2014 and represented to the Court that they

are the owners of the subject property despite the fact that the subject

property has been sold by the bank by invoking the provisions of

SARFAESI Act, 2002 to Mr.Jasbir Singh. He would state that no

structural deviation or any construction is being carried out at the

subject property. Rather, it is a mere renovation which was much

necessitated due to its structural conditions. It is also stated that FIR has

been lodged against the petitioners for stealing the original title

documents from the Court file qua the aforesaid property. The applicant

would state that, in the absence of desealing of the first floor, it is

becoming very difficult for the applicant to use the ground floor as water

tanks as well as main meter switch is installed at the first floor and

unless the subject property is desealed, the applicant will suffer

irreparable loss and because of ensuing festival, many family friends and

relatives may visit the house of the applicant.

7. The petitioners/non-applicants filed a reply to this application. It

is their case in the reply that the applicant has not approached this Court

with clean hands and deliberately concealed material facts. The

petitioners would dispute the fact of applicant is residing in the property

in question. The petitioners dispute the factum of the applicant having

given permission by Mr. Jasbir Singh to reside in the property in

question. According to the petitioners, the attempt of the applicant to

somehow get the first floor of the property desealed, is only to defeat the

valuable rights of the petitioners. According to them, the documents

annexed by the applicant all came into existence after the year 2010. It

is the case of the petitioners that the applicant is not residing in the

property in question and has filed a wrong, false and frivolous

application. He relied upon para 7 of the report of the Local

Commissioner to submit that the observations of the Local

Commissioner clearly negates the submission of the applicant that he is

residing in the property in question. The petitioners would also state that

the property, to the best of their knowledge, does not require any

renovation and/or repair works. According to the petitioners, massive

construction work is being carried out in the subject property by giving it

a colour of repair and renovation. It is also stated by the petitioners that

they have learnt that the respondents have already sold the subject

property by way of an Agreement to Sell to one Mr. Rajesh Gulla and his

brother Mr. Sandeep Gulla. In other words, it is the petitioners'

contention that the subject property was a single dwelling unit but now it

has been modified and reconstructed into two dwelling units. In reply

they sought dismissal of the petition.

8. Mr.Sandeep Sethi, learned Senior Counsel with Mr.Rakesh

Malhotra, Advocate appearing for the respondent No.1/applicant would

submit that the petitioners have no title to the property. According to

him, the petitioners have entered into a Agreement to Sell with the

respondent No.1 and have received valuable consideration. Further the

property has now been sold to Mr.Jasbir Singh, with whose permission

the respondent No.1 is in the property. According to him, the sale

certificate issued is valid and has till date not been stayed In view

thereof, there cannot be any doubt with regard to the respondents'

enjoyment of the property and as such the respondent No.1/applicant is

well within its right to carry out the repairs in the property and the same

cannot be scuttled by any person much less the petitioners who have no

right in the property. He would state, the basic plea of the petitioners is

that the respondents have disobeyed the order by carrying out large scale

construction/demolition in the property. He has drawn my attention to

some of the photographs, to contend that the plea of the petitioners is

totally incorrect. It is his endeavour to impress upon the Court that the

repairs work is being done in the property. He would concede to the fact

that the petitioners should have come to this Court before starting the

repair work. For this inaction, the respondent No.1/applicant tenders his

unqualified apology. It is contended that even assuming the conclusion

of the Local Commissioner is correct the same in no manner suggest that

the respondents have raised any further construction in the property. It is

his attempt to show that the petitioners with indifferent credentials, being

involved in several cases and committed cheating with the respondents

and UCO bank by agreeing to sell the subject property to them which

property was already mortgaged with the UCO bank need to be dealt

strictly. It is the contention that the persons with such background are not

entitled to any relief, moreso when they have no right, title or interest in

the suit property.

9. On the other hand, Mr.Rajat Navet, learned counsel for the

petitioner would contend that the order of sealing was passed on August

14, 2014 by this Court after hearing and concurring with the Local

Commissioner's report dated August 06, 2014 that the large scale

construction is being done by the respondents in the subject property. It

is his submission that no cogent reasons have been given in support of

their plea for de-sealing of the subject property. He would state that the

attempt of the respondent No.1/applicant is to mislead and misguide the

Court by raising various issues which are subject matter of the arbitral

proceedings already pending adjudication before Justice (Retired) Anil

Dev Singh. He states that the subject matter of the arbitral proceedings

includes prayer for declaration of the Agreement to Sell and other

documents between the petitioners and the respondents as null and void

and further for directions to the respondents to put the petitioners back

into possession of the subject property. He states that even the public

auction by the DRT is subject of the outcome of the arbitration

proceedings and this fact has been specifically mentioned in the public

auction notice. He rely upon the report of the Local Commissioner,

wherein the Commissioner has stated that in some rooms he has found

scaffoldings and iron bars which have been put for creating the roofs, to

contend that the facts as noted by the Commissioner shows structural

changes are being done in the subject property, converting the same from

one single dwelling into two separate dwellings. He has also taken me

through some of the photographs in support of his contentions. He has

also disputed the contention on behalf of the learned Senior Counsel for

the respondent No.1/applicant that only minor repair work is going on.

According to him, in fact he had filed a comparison of the photographs

filed by the petitioners and the Local Commissioner and explanation

against each of the photographs.

10. The parties have filed their respective submissions.

11. Having heard the learned counsel for the parties, I note that the IA

13795/2014 was filed by the petitioners herein on the ground that the

respondents have violated the injunction order dated May 04, 2004 vide

which the Court has restrained the respondents from carrying on further

construction in the property in issue. This Court on the application filed

by the petitioners accordingly appointed the Court Commissioner. The

Court Commissioner's report was noted by this Court on August 14,

2014 of "large scale construction is going on at the site in issue". It is

pursuant thereto the Court Receiver was appointed who had sealed the

first floor of the property. That apart on August 20, 2014 this Court after

hearing the learned Court Commissioner was of a prima facie view that

some construction was being carried out at the site. I agree with the said

conclusion. The apprehension of the petitioners of large scale activities

is justified in the given facts, more so in view of the photographs filed. I

note that the issue regarding the Agreement to Sell is pending

adjudication before the learned Arbitrator. The issue would determine

the rights of the parties to the property. That apart even the sale

certificate has been made subject to the outcome of the arbitration

proceedings. Suffice to state, the said issue would be germane to

determine the ownership. I have been told that even though the

respondents were not appearing before the learned Arbitrator, an

application for summoning of the witnesses has been filed and thereafter

arguments would be addressed before the learned Arbitrator.

12. The order dated May 04, 2004 has restrained the parties from

raising any further construction. The said order is in operation since then.

Surely under the guise of minor repair work, a party cannot make

construction in the property. No justifiable reasons have been given by

the respondent No.1 for de-sealing of the property. The intent of Section

9 of the Act includes preservation of immovable property which is the

subject matter of the dispute in arbitration. I am of the view that the

present application filed by the respondent No.1/applicant is devoid of

any merit. I accordingly dismiss the present application.

(V.KAMESWAR RAO) JUDGE

MARCH 27, 2015 akb