Shalini Arora vs Surjit Singh & Ors.
2017 Latest Caselaw 7100 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 931/2017

%                                    Reserved on: 1st December, 2017
                                   Pronounced on: 8th December, 2017

SHALINI ARORA                                            ..... Appellant
                          Through:       Rana S. Biswas and Mr. Sunil
                                         Sharma, Advocates.
                          versus

SURJIT SINGH & ORS.                                     ..... Respondents

                          Through:       Mr. Raman Kapur, Sr. Adv. with
                                         Mr. Hemant Gupta, Adv. for R-1
                                         to 6.
                                         Mr. Moni Cinmoy, Adv. for R-7.
                                         Mr. Jinendra Jain, Adv. for R-8.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the

suit impugning the judgment of the trial court dated 13.1.2017 by

which the trial court has decreed the suit filed by the

plaintiffs/respondent nos. 1 to 6 herein. By the impugned judgment

and decree dated 13.1.2017 trial court has held that respondent nos. 1

to 6/plaintiffs are entitled to declaration that the bid of the appellant

and respondent no.8/defendant nos. 2 and 3 submitted to the

respondent no.7/defendant no.1/Delhi State Industrial Development

Corporation (DSIDC) with respect to the question-purchase of the

subject property being Shed No. A-13, Industrial Complex, Nangloi,

Delhi was liable to be cancelled as it was manipulated/altered after

being submitted. It has also been held by the impugned judgment and

decree that the respondent nos. 1 to 6/plaintiffs are entitled to

mandatory injunction to get the subject property allotted in their name

and for receiving possession of the same. By the impugned judgment

it has been held that the bid given by the defendant nos. 2 and 3 in the

suit viz the appellant/defendant no.2 and respondent no.8/defendant

no.3 was a manipulated bid on account of fabrication of the bid and

therefore such bid although was the lowest bid, the same has to be

rejected, and consequently, the next highest bid of the respondent nos.

1 to 6/plaintiffs has to be accepted.

2. The facts of the case are that in January 2004, the

respondent no.7/defendant no.1/DSIDC invited tenders for sale of the

subject property. The reserved price fixed was Rs.43.50 lacs and

earnest amount was fixed at Rs.1 lac. Respondents no.1 to 6/plaintiffs

offered a sum of Rs.55 lacs on 29.1.2004 with the requisite bank draft

towards earnest money. When the respondent nos. 1 to 6/plaintiffs had

submitted their bid, the appellant and respondent no.8/defendant nos.2

and 3 were also present and who were known to the respondent nos. 1

to 6/plaintiffs. As the time for filing the tender was over hence the

respondent no.1/plaintiff no.1 revealed his offering price to the

respondent no.8/defendant no.3 and whereupon respondent

no.8/defendant no.3 went away on pretext of doing some work. At

about 4 pm, when the bids were opened it transpired that the tender of

the appellant and respondent no.8/defendant nos. 2 and 3 was just

Rs.1,000/- more than that of the respondent nos. 1 to 6/plaintiffs i.e the

appellant and respondent no.8/defendant nos. 2 and 3 had been

successful as their bid was Rs.55,01,000/-. Since the respondent nos.

1 to 6/plaintiffs were of the opinion that the bid of the appellant and

respondent no.8/defendant nos. 2 and 3 was manipulated by the

appellant and respondent no.8/defendant nos. 2 and 3, after its

submission, therefore they filed their objections to the auction sale

before the Chairman of the DSIDC. The fact was that the appellant

and respondent no.8/defendant nos. 2 and 3 colluded with each other

whereby the tender given by the respondent no.8/defendant no.3 was,

after its submission, manipulated to include the name of

appellant/defendant no.2 as it was agreed between them to the share

profits of the successful tender for the subject property. It was pleaded

that appellant and respondent no.8/defendant nos. 2 and 3 in

connivance with the officials of the DSIDC fraudulently changed the

entries in the tender form and vide letter dated 9.2.2004 tender of the

appellant and respondent no.8/defendant nos. 2 and 3 was accepted as

the highest tender. Appellant and respondent no.8/defendant nos. 2

and 3 deposited Rs.13 lacs on 8.3.2004 with the remaining amount

having to be paid within three months. Thereafter, respondent

no.7/defendant no.1/DSIDC received the letter from the respondent

no.8/defendant no.3 that he was withdrawing his name from the tender

and the allotment will made in the sole name of the

appellant/defendant no.2, however thereafter respondent

no.8/defendant no.3 intimated respondent no.7/defendant no.1/DSIDC

that his request for deleting his name be withdrawn and he should be

continued as a co-allottee. On 1.4.2004, the appellant/defendant no.2

deposited the balance amount of Rs.41,01,000/-. Respondent nos.1 to

6/plaintiffs wrote to respondent no.7/defendant no.1/DSIDC for

cancelling of the tender accepted of the appellant and respondent

no.8/defendant nos.2 and 3 and requested that instead of the appellant

and respondent no.8/defendant nos.2 and 3, the respondent nos. 1 to

6/plaintiffs be declared as the successful bidders. Having failed in this

regard the subject suit was filed. In the meanwhile, disputes and

differences arose between the defendant nos. 2 and 3 i.e the appellant

and respondent no.8 resulting a writ petition being filed in this Court

by the respondent no.8/defendant no.3 and in such writ petition the

allotment of the shed was stayed.

3. The suit was contested by the appellant/defendant no.2

and the respondent no.8/defendant no.3. They filed separate written

statements. Whereas the respondent no.8/defendant no.3 in his written

statement admitted that the tender was first solely filled in the name of

the respondent no.8/defendant no.3 namely Sh. Kishan Lal and the

name of the appellant/defendant no.2/Smt. Shalini Arora was added

later on, however, in the written statement filed by the

appellant/defendant no.2 it was denied that any changes whatsoever

had taken place in the tender form and the tender form was always

jointly filled in the names of the appellant and the respondent

no.8/defendant nos.2 and 3. It was denied that any manipulation had

taken place. It was prayed that the suit be dismissed inasmuch as there

was no manipulation or fabrication as alleged by the respondents no. 1

to 6/plaintiffs.

4. After pleadings were completed, the trial court framed the

following issues:-

"(i) Whether the plaintiff is entitled to a decree of declaration declaring the acceptance of the bid of the defendant nos. 2 and 3 of Shed No.A-13, Industrial Complex, Nangloi, Delhi is illegal, null and void and if so its effect? OPP.

(ii) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP

(iii) Relief."

5. I may note that the respondent nos. 1 to 6/plaintiffs led

evidence in support of their case, but no evidence has been led from

the side of the defendants including the appellant/defendant no.2. The

order of the trial court closing the evidence of the defendants dated

12.3.2015 has become final. Therefore, present case is a case where

evidence is led by the respondent nos. 1 to 6/plaintiffs and who have

proved their case, on the other hand there is no evidence led on behalf

of any of the defendants, including the appellant.

6. On the basis of the document Ex.D-3 (also Ex.PW1/1)

being the original tender form which is only in the name of Sh. Kishan

Lal/respondent no.8/defendant no.3, and the altered tender form

proved and exhibited as Ex.PW1/3 showing that there were

subsequent changes in the same of addition of the name of Smt.

Shalini Arora/appellant/defendant no.2 as also clear cut overwriting in

the amount to change the amount to the amount of Rs. 55,01,000/-,

trial court has held that respondent nos. 1 to 6/plaintiffs have been

successful in proving the manipulation of the tender by the

appellant/defendant no.2 in collusion with the respondent

no.8/defendant no.3 after its original submission.

7. In order to appreciate the factum of manipulation and

alterations made in the tender form as originally submitted by the

respondent no.8/defendant no.3 which is Ex.D-3 and the altered tender

form which is Ex. PW1/3, the same are reproduced as under:-

8. I may note that there is no dispute that the original tender

form Ex.D-3/Ex.PW1/1 and amended tender form Ex.PW1/3 are

different because in the altered/amended tender form the name of the

appellant/defendant no.2/Smt. Shalini Arora is shown by a subsequent

addition on the right hand side in the column 1 of the form and that the

amount given in the original tender form at Rs.53,01,000/- stood

changed in the altered tender form Ex.PW1/3 to become Rs.

55,01,000/-. Not only there is clear cut overwriting in the amount to

change the figure both in letters and words, since there existed

alteration, hence the alterations are in fact signed by both the appellant

and the respondent no.8/defendant nos. 2 and 3 to validate the

alterations.

9. The only issue before the trial court as also this Court is

as to whether there was or was not manipulation after the tender form

no.102 was first submitted. In my opinion, since the respondent nos. 1

to 6/plaintiffs have led evidence and proved their case and the

appellant and respondent no.8/defendant nos.2 and 3 have led no

evidence, the case of the respondent nos. 1 to 6/plaintiffs has to be

accepted, and more so because of the fact that clearly there are

changes found to be existing from the tender form as originally existed

being Ex.PW1/1/Ex.D-3 when compared to the manipulated/altered

the same tender form no.102 which is Ex.PW1/3. It is extremely

relevant to note that the tender form which is Ex.D-3 has been

specifically admitted by the respondent no.8/defendant no.3 during the

admission/denial of documents and once the tender form no.102 as

originally existing is found to be admittedly different than the altered

form Ex.PW1/3, trial court in my opinion was completely justified in

holding that the appellant and respondent no.8/defendant nos.2 and 3

had manipulated the tender for becoming a successful highest bidder

by changing their tender amount to just Rs.1000 more than as was

filled by the respondent nos. 1 to 6/plaintiffs at Rs.55 lacs.

10. It is also important to note that the dishonesty of the

appellant/defendant no.2 and the respondent no.8/defendant no.3

becomes clear from the fact that in their separate written statements

separate stands were taken, i.e whereas the appellant/defendant no.2

claimed that always the tender form was the same without any

alterations, the respondent no.8/defendant no.3 however admitted that

tender form was changed than as originally filled in. In my opinion

the very fact that the name of the appellant/defendant no.2/Smt.

Shalini Arora is clumsily filled in only later on in the tender form

no.102 becomes quite clear from the fact that the name of the

appellant/defendant no.2/Smt. Shalini Arora appears on the blank right

hand side portion of the form and to the right hand side of the name of

Sh. Kishan Lal/respondent no.8/defendant no.3. The name of Sh.

Kishan Lal/respondent no.8/defendant no.3 is found to be written over

the underlined portion, but it is in the blank portion to the right hand

side of the underlined portion that the name of the appellant/defendant

no.2 has been added. Whatever doubt remains becomes clear from the

ex facie and apparent change in the tender amount to Rs. 55,01,000/-

by the appellant and respondent no.8/defendant nos. 2 and 3 and

which changes both in figure and words to increase the tender amount

to Rs. 55,01,000/- has been signed by the appellant and the respondent

no.8/defendant nos. 2 and 3 i.e all signatures are there because of

changes having been made to the tender amount and to validate the

alterations by the additional signatures adjacent to the alterations.

11. Learned counsels for the appellant and respondent

no.8/defendant nos. 2 and 3 argued before this Court that now a

conveyance deed has been executed in favour of the

appellant/defendant no.2 since the appellant/defendant no.2 was

successful in establishing her case in the writ petition and therefore the

present suit would not lie as the conveyance deed in favour of the

appellant/defendant no.2 has to be first cancelled, however this

argument is misconceived because once the present suit is successful

and it is directed that the bid given by the appellant and respondent

no.8/defendant nos.2 and 3 has to be cancelled then obviously and

consequently the conveyance deed executed in favour of the appellant

and/or respondent no.8, either individually or even if exists jointly if it

had been so executed, has to be cancelled. This is all the more so

because the judgment in the writ petition would not operate as res

judicata against the respondent nos. 1 to 6/plaintiffs because they were

not parties to the writ petition where only inter se disputes between the

appellant and respondent no.8/defendant nos.2 and 3 were decided.

Therefore, now DSIDC will have to cancel the conveyance deed

executed in favour of the appellant/defendant no.2 and the concerned

Sub-Registrar is directed to register this cancellation deed with the fact

that DSIDC should now execute the conveyance deed of the subject

property in favour of the respondent nos. 1 to 6/plaintiffs and

thereafter register the same with the concerned Sub-Registrar.

Respondent nos. 1 to 6/plaintiffs will be liable to pay for all the

necessary charges which are payable for the stamp duty etc towards

execution and also for charges of the registration of the conveyance

deed which will be executed by DSIDC in favour of the respondent

nos. 1 to 6/plaintiffs.

12. In view of the aforesaid discussion there is no merit in the

appeal which is dismissed.

DECEMBER 08,2017/ib                       VALMIKI J. MEHTA, J