Delhi High Court
Sh. Jyoti Swarup vs Sh. Chander Gupta & Ors on 15 December, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:15.12.2017
+ RFA 178/2014, Review Petition 305/2017 & CM
No.27475/2017 (condonation of delay of 654 days in filing
review petition) & CM No.27473/2017 (stay of operation of
order dated 30.07.2015)
SH. JYOTI SWARUP ..... Appellant
Through: Mr. V.V. Manoharan, Advocate
versus
SH. CHANDER GUPTA & ORS ..... Respondents
Through: Mr. Manuj Aggarwal, Advocate
for R-1.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
1. The petitioner seeks condonation of delay of 654 days in filing
the review petition to review the order of this court dated
30.07.2015 passed in RFA No.178/2014.
2. Learned counsel for the petitioner submits that at the time of
adjudication of the execution petition pending before the court
of learned ADJ-1 (South West) Dwarka Courts, New Delhi, the
petitioner came to know that the impugned order dated
30.07.2015 is unenforceable as the respondents have been
unable to produce a clear title in respect of the suit property and
the relinquishment deed cannot be executed by them. He
submits that the petitioner has immediately filed the review
petition on becoming aware of the said fact and informed the
execution court of his intention to file the present review
petition. On these grounds, the petitioner seeks review of the
impugned order dated 30.07.2015.
3. Reply to application has been filed contesting the contents and
seeking its dismissal.
4. I have heard the learned counsel for the parties. Record reveal
that the predecessor of the parties Smt. Darshna Devi was the
owner of the property in question i.e. RZ2, Mohan Nagar,
Pankha Road, New Delhi total measuring 198 square yards (123
square yards + 75 square yards). The plaintiff Chander Gupta
had filed a suit No.1573/2003 for partition and permanent
injunction in respect of said property against his three brothers
and two sisters titled as Chander Gupta Vs. Jyoti Swarup &
others. The petitioner Jyoti Swarup (defendant No.1) had inter
alia taken an objection in his written statement that one Jai
Narain was the owner of the said property No.RZ2, Mohan
Nagar, Pankha Road, New Delhi measuring 123 square yards,
who had mortgaged the said property with him against loan of
Rs.4,000/- in the year 1975 and since Jai Narain had failed to
pay the loan amount and he is the owner of the said property.
He pleaded that one Tek Chand was the owner of the remaining
part of the said property measuring 75 square yards and he had
mortgaged this property with him against a loan of Rs.2,000/- in
the month of September, 1976 and since Tek Chand had failed
to pay the loan amount, now the said property belongs to him.
He pleaded that the plaintiff-Chander Gupta and other
defendants have no right, title and interest therein.
5. The learned ADJ-1, (South West), Dwarka referred the matter
to Mediation Centre, Dwarka where before the learned
Mediator, the parties had amicably resolved and settled all their
disputes on 06.03.2014 and the settlement agreement was
reduced to writing.
6. The learned ADJ-1(South West) Dwarka had recorded the
statements of the parties on 12.03.2014. The
petitioner/defendant No.1 had admitted his signature at point E,
E1 & E2 on the mediation settlement (Ex.PA) but disputed the
proceedings of the mediation and submitted that he is not ready
to abide by the terms and conditions. Similar statement was
made by defendant No.2 Rajender Prasad, though he had
admitted his signature at point F , F1 and F2 on the meditation
settlement (Ex.PA). The plaintiff and other defendants had
confirmed the mediation settlement before learned ADJ-1,
(South West), Dwarka, NewDelhi. The learned ADJ disposed of
the suit in terms of the mediation settlement on 12.03.2014 and
made the mediation settlement Ex.PA as part of the decree.
7. As per the terms and condition No.2 of the mediation settlement
Ex.PA it was agreed that the plaintiff and defendants No.3 to 5
shall not claim any share, interest & rights in the said property
No.RZ-2, Mohan Nagar, Pankha Road, New Delhi measuring
198 square yards. However, the defendants No.1 to 3 shall pay a
total sum of Rs.36 lacs (Rs.12 lacs each to the plaintiff). It was
also agreed that the plaintiff and defendants No.3 to 5 shall
relinquish their shares, interest and rights in the said property
measuring 198 square yards in favour of defendants No.1 and 2
equally in favour of defendants No.1 and 2.
8. Against the said judgment and decree dated 12.03.2014 passed
by the learned ADJ-1 (South West), Dwarka on the basis of the
mediation settlement Ex.PA, the RFA No.178/2014 was filed by
the petitioner (defendant No.1) wherein condition No.3 of
Ex.PA was modified with the consent of the parties and it was
agreed that defendants No.1 to 3 shall pay a total sum of Rs.30
lacs (Rs.10 lacs each) to the plaintiff in one single slot on or
before 31.10.2015.
9. Admittedly, one of the defendant-Mahender Kumar had already
paid Rs.10 lacs of his share to plaintiff Chander Gupta.
Admittedly, the petitioner (defendant No.1) and defendant No.2
Rajinder Prasad are in occupation of the said property. It
appears that they want to avoid or prolong the due payment to
the plaintiff-Chander Gupta, and the defendant No.1 (petitioner)
and defendant No.2 want to remain in occupation of the said
property without making the settlement amount to the plaintiff
Chander Gupta.
10. Learned counsel for the petitioner argued that Jai Narain and
Tek Chand were the owners of the said property and that the
plaintiff and defendants No.3 to 5 have no right, title in their
favour to execute the Relinquishment Deed and order passed by
this Court dated 13.07.2015 is inexecutable. He argued that
even the mother of the parties Smt.Darshana Devi had no right,
title or interest in the property.
11. These defences were already taken by the petitioner/defendant
No.1 in his written statement and despite this he had
consciously amicably resolved and settled the matter with the
plaintiff and co-defendants before the learned Mediator on
06.03.2014. However, when defendant No.2 appeared before
the court of ADJ-1 (South West), Dwarka they disputed the
contents of the settlement though, they admitted their
signatures. However, in the appeal with their consent, condition
No.3 of the mediation settlement dated 06.03.2014 was
modified and the amount was reduced from Rs.36 lacs to Rs.30
lacs which was payable by defendants No.1 to 3 equally (Rs.10
lacs each).
12. In the circumstances, now the petitioner (defendant no.1) is
estopped from saying that there was no title in favour of
plaintiff and defendants No.3 to 5 to execute the relinquishment
deed. The petitioner had not filed any document of title either
in favour of Tek Chand or Jai Narain who are claimed to be the
alleged mortgagor of the said property. He has also not filed any
alleged mortgage deed on the record. Learned counsel for the
petitioner submitted that these were oral mortgees. Under
Section 59 of the Transfer of Property Act, 1882 if a mortgage
of an immovable property is created for a value of the property
more than Rs.100/- it requires compulsory registration. No
justifiable ground is made out for condonation of delay of 654
days in filing the review petition. Even otherwise, on merits,
there is no error apparent on the face of the record. Looked from
any angle, neither there is any justification in application for
condonation of delay nor any merit in review petition.
13. As such CM No.27475/2017 and CM No.27473/2017 and
review petition are dismissed with costs Rs.25,000/- payable to
the plaintiff Chander Gupta.
(VINOD GOEL)
JUDGE
DECEMBER 15, 2017
"sandeep"
