Sarawjeet Singh vs Kusum Kumaria & Ors
2018 Latest Caselaw 2701 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Reserved on: 25th April, 2018
                                        Pronounced on: 02nd May 2018

+       EX.P. 298/2014, EX.APPL.(OS) 821/2014, 584/2016, 106/2017
        SARAWJEET SINGH
                                                        ..... Decree Holder
                           Through :    Mr.Anil Airi, Sr Advocate with
                                        Mr.Ravi     Krishan     Chandna,
                                        Ms.Sadhana Sharma, Ms.Bindiya
                                        Logawney, Mr.Satyam Bhatia and
                                        Mr.Jayant Jha, Advocates.

                           versus

        KUSUM KUMARIA & ORS
                                                    ..... Judgement Debtors
                           Through :    Mr.Abhishek Singh and Mr.Amit
                                        Bhalla, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. Before coming to the real issues in the present matter it would be appropriate to state few facts. The impugned property was sold in an auction but the decree holder improved upon the bid and deposited 5,32,50,000/- in the Court on 08.11.2013. Hence on 28.07.2014 a sale certificate was issued in favour of the decree holder. However the judgment debtor did not hand over possession of the premises to the decree holder and on the other hand had challenged the order of the Court

before the Division Bench in RFA(OS) 124/2015. The first appeal was dismissed on 20.10.2015 subject to costs. The Judgment debtor then filed SLP(C) 4821/2016 which was also dismissed on 22.07.2016.

2. I may refer to some orders of this Court relevant to deciding the controversy.

Order dated 05.09.2016 "EA No.584/2016 (by DH u/O XXI R-95 CPC)

1.On the last date of hearing, i.e., on 20.7.2016, counsel for the Judgment Debtors had stated that the SLP filed by his clients against the judgment dated 20.10.2015 passed by the Division Bench in RFA(OS)No. 124/2014 was listed before the Supreme Court on 22.7.2016. Mr. Airi, learned Senior Advocate appearing for the Decree Holder states that on 22.7.2016, the said SLP filed by the Judgment Debtors, has been dismissed. A copy of the order dated 22.7.2016 passed by the Supreme Court in SLP(C)No.4821/2016 has been enclosed with the present application and marked as Annexure A-2.

2. It is submitted on behalf of the Decree Holder that now there is no impediment in proceeding further in the execution petition and directing issuance of warrants of possession in respect of the ground floor of the property bearing No.W-152, Greater Kailash Part-I, New Delhi.

3. Despite service of advance copy of the application on the Judgment Debtors, none is present on their behalf.

4. Issue notice to the non-applicants/Judgment Debtors, directly as also through counsel, on filing of process fee by the Decree Holder within one week, by ordinary process, speed post and dasti as well, returnable on 24th November, 2016, the date already fixed.

5. The notice to be issued to the non-applicants shall indicate that reply to the application be filed within two weeks, with an advance copy to the other side, who may file a rejoinder thereto two days before the next date of hearing."

Order dated 24.11.2016 "1. In response to the notices issued to the judgment debtors in terms of the directions in the order dated 05.09.2016 only judgment debtor no.2 Mohit Kumria has appeared in person. Though other two judgment debtors have also been duly served, no reply/objections or any other response has been filed within the period specified in the last order.

2. After the dismissal of the appeal, it being RFA (OS) 124/2014 by judgment of a Division Bench dated 20.10.2015 and dismissal of the Special Leave Petition (Civil) No.4821/2016 by the Supreme Court by order dated 22.07.2016, a copy whereof was submitted for record to this court, this court agrees that there is no impediment in proceeding further in the execution petition and for directions for warrant of possession to be issued in respect of ground floor of property bearing no.W-152, Greater Kailash Part-I, New Delhi.

3. Order accordingly.

4. The decree-holder shall take requisite steps in this regard. 5 The warrant of possession shall be returnable before the Joint Registrar on 15.02.2017."

Order dated 14.12.2016 "EA 829/2016 (u/0. 21 R. 26 r/w S. 151 CPC by JD1 & 2)

After some hearing, the learned counsel for the applicants / judgment debtors on instructions of judgment debtor no.2, who is present in person in court, submits that he withdraws this application though would like to come up with another application submitting mercy plea for extension of time and for release of the amount which stands already deposited in the court. The application is dismissed as withdrawn with liberty as prayed for."

Order dated 15.02.2017 "EX.P. 298/2014

As per office note, warrants of possession issued with respect to subject property has been received back unexecuted with the report that door was found closed with interlock and there was no order for breaking open of the lock. At request, put up before Hon'ble Court on date already fixed there i.e. 16.02.2017, for further directions."

Order dated 16.02.2017 "The warrant of possession was issued pursuant to directions in the order dated 24.11.2016. On 14.12.2016, an application of the judgment debtors was considered but withdrawn with liberty granted, as was sought at that stage for another application with mercy plea for extension of time to be moved. No such application has been moved ever since. The warrant of possession, however, could not be executed as though the premises has been vacated, it was found to be under the lock and key of the judgment debtors.

By the application at hand, the decree holder prays for the locks to be broken and the execution of the decree be carried out with police assistance in case the judgment debtors continue to obstruct.

When the application has come up for consideration, the learned counsel for the judgment debtors is present and presses for one week's* time so that the premises can be handed over formally though conceding that the judgment debtors have already removed all their goods and belongings from the premises. If it were so, there is no reason why any further indulgence be shown, particularly because the decree holder through counsel also submits that the judgment debtor had entered premises again to cause damage to certain electrical fittings (booster pump etc.) of the decree holder.

Thus, the application is allowed. A fresh warrant of possession shall be issued with liberty given to the bailiff to seek police assistance, which needless to add, the local police will be duty bound to render and to

carry out the execution after breaking open the locks, if any, found on the premises.

The steps shall be taken in these terms for the warrant of possession to be issued returnable before the Joint Registrar on 31.03.2017."

Order dated 01.03.2017 "EA (OS) No. 106/2017 (Order XXI Rule 1 read with Section 47 & 151 CPC moved by judgment debtors)

By this application, the judgment debtor seeks "permission" to handover the possession of the suit premises to the decree-holder in terms of the decree and also prays for release of certain amount claiming it to be his share along with interest accrued thereupon.

The learned counsel for the decree-holder, who is present on supply of advance copy, accepts notice of the application and submits that for the present a local commissioner may be appointed so that representatives of both parties may go together and handover/take over possession of the suit premises under such supervision. As regards the prayer for release of the amount, the same shall be considered on the next date of hearing and the decree-holder would be at liberty to file a formal reply to that extent, followed by rejoinder, if required.

As now agreed by the counsel for the judgment-debtor as well, Mr. Varun Kapur, Advocate (mobile No.9910032035) C/o 131, Lawyers Chambers, Delhi High Court, New Delhi, who is present in court, is appointed as local commissioner for visiting the suit premises, accompanied by the representatives of both parties, formally nominated for such purposes, at 11:00 a.m. on 04.03.2017, as has been mutually agreed upon by the parties and oversee handing over of the vacant and peaceful possession of the suit premises in terms of the decree by the judgment-debtor to the decree-holder. A copy of the judgment and decree for the enforcement of which such proceedings are to take place, shall be made available to the local commissioner. The local commissioner in his proceedings would also take care to take note of any facts brought to his knowledge by either side, vis-avis, the condition/status of the suit premises.

The fee of the local commissioner shall be fixed at Rs.50,000/-. As agreed by learned counsel on both sides, the fee of the local commissioner shall be borne equally by the decree-holder and the judgment-debtor.

The warrant of possession with liberty for police assistance and breaking open of the locks, as granted by order dated 16.02.2017 shall be kept in abeyance till the visit by the local commissioner and shall be subject to result of such efforts.

The report of the local commissioner shall hopefully be filed well in time for the matter to be taken up on 31.03.2017 before the Joint Registrar (judicial), as is already fixed."

Order dated 17.04.2017

"Learned counsel for the decree holder concedes that the possession of the property has been handed over to him on 14.3.2017; this was after police assistance has been accorded by this Court to break open the locks. Learned counsel for the decree holder further points out that out of the sum of Rs.5,32,50,000/- lying deposited with the Court the decree holder may be permitted to deduct Rs. 17,33,560/- which are the expenses incurred by the decree holder. This amount is disputed. Learned counsel for the judgment debtor points out that at best the decree holder may deduct only Rs.3.19,000/-. Parties will place respective statements of account on affidavits of the respective parties before next date. The documents of the property shall also be brought to Court by the judgment debtor; copy of the list of such documents has been handed over by the decree holder to the judgment debtor in the Court today. List for direction on 04.8.2017."

Order dated 07.09.2017 "The Execution petitioner has received the possession on 14.03.2017 from the respondents. The property was purchased by the execution petitioner in a Court auction for a sum of Rs.5,32,50,000/- lying deposited with the Registrar General of this Court.

Learned counsel for the execution petitioner submits that the title documents of the property have not been handed over to the execution petitioner, as yet. The learned counsel for the respondent today has brought and handed over to the execution petitioner the following documents:

1. Sale deed dated 17.11.1960 (original)

2. Original death certificate of Mr. S.A. Kumaria.

3. Original deed of relinquishment.

4. Original sanction plan.

5. Copy of death certificate of Ms. Sudershan Kumaria.

Now, the only dispute is qua paying of electricity/water charges/deductions, if any, to be made hence in these circumstance let now the amount of Rs.5 crores be released in favour of the judgment debtors, namely, Mohit Kumaria, Kusum Kumaria and Ms.Ratna Kumaria in equal proportion. The Registrar General to release the amount as aforesaid. For the issues left, list on 8 December, 2017."

3. Admittedly the possession was handed over on 04.03.2017 and the relevant documents concerning the subject property were handed over to the decree holder on 07.09.2017. Admittedly the amount of 5 crores has been released to the judgment debtor and only an amount of 32,50,000 is now lying with the Registrar General alongwith interest

awarded on deposit of 5,32,50,000/-. The issues remained to be sorted are: a) reimbursing the expenses incurred by the decree holder; and b) the appropriation of interest accrued upon deposit of 5,32,50,000/-.

4. The learned counsel for the petitioner now has handed over to this court the details of payments to be deducted from an amount of 32,50,000/- so lying with the Registrar General of this Court qua the expenses incurred by the decree holder in relation to the subject property. The expenses are the payment of house tax(s) to the tune of 5,63,031/- payment of water bills to DJB to the tune of 77,779/-; cost imposed in RFA 124/2015 - balance to the extent of 3,19,750/-; Cost of 50000/- imposed vide order dated 10.10.2013; videography & photography expenses to the tune of 10,000/-; misc. expenses for auction 30,160/- ; publication charges 45,235/-; TDS to be deposited 5,32,500/-; statutory interest on TDS 3,35,000/-. The respondent has no objection qua deduction of aforesaid expenses from the amount lying with the Court to be paid to the decree holder. However the objection is qua the auctioneer fees viz. 1,00,000/- which per order dated 21.07.2015 was to be paid by the decree holder only hence the judgment debtor has no liability to pay it. Further the judgment debtors are also not liable to pay the excess payment of 13,62,500/- made by the decree holder to the bidder as the said amount was paid to get the property in his favour. I agree to the contention raised by the judgment debtor in this regard hence only an amount of 19,60,455/- is to be deducted and be paid to the decree holder from the balance amount of 32,50,000/- lying deposited

in this Court. Hence the said amount be released by the Registrar General in favour of the decree holder.

5. An issue qua b) the fate of interest accrued on 5,32,50,000/- lying deposited since the year 2013, I may refer to Section 55 (6)(b) of the Transfer of the property Act:

"55(b)(a)xxxxx

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, 2[* * *] to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission."

6. Further in Delhi Development Authority vs. Skipper Construction Co.(P) Ltd. and Others (2000) 10 SCC 130 the Court held :

"29. It is plain from the above provision that, in the absence of a contract to the contrary, the buyer will have a charge on the seller's interest in the property which is the subject matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the buyer has improperly declined to accept delivery. The charge is available against the seller and all persons claiming under him. This charge in favour of the buyer is the converse of the seller's charge under Section 55(4)(b). The buyer's charge under this Section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a separate contract.

xxxxx

31. The above sub-section of Section 55 also makes it clear that the buyer is entitled to interest on the amount of purchase money paid. Interest is payable from the date of payment of the purchase money to the seller till date of delivery of property to the purchaser or till the execution of the sale deed, whichever is earlier. Points 1 and 2 are decided accordingly in favour of the buyers."

7. In Videocon Properties Ltd. vs. Dr.Bhalchandra Laboratories and Others (2004) 3 SCC 711 the Court held:

"The buyer's charge engrafted in clause (b) of paragraph 6 of Section 55 of the Transfer of Property Act would extend and ensure to the

purchase-money or earnest money paid before the title passes and property has been delivered by the purchaser to the seller, on the seller's interest in the property unless the purchaser has improperly declined to accept delivery of property or when he properly declines to accept delivery including for the interest on purchase money and costs awarded to the purchaser of a suit to compel specific performance of the contract or to obtain a decree for its rescission. The principle underlying the above provision is a trite principle of justice, equity and good conscience. The charge would last until the conveyance is executed by the seller and possession is also given to the purchaser and ceases only thereafter. The charge will not be lost by merely accepting delivery of possession alone. This charge is a statutory charge in favour of a buyer and is different from contractual charge to which the buyer may become entitled to under the terms of the contract, and in substance a converse to the charge created in favour of the seller under Section 55(4)(b). Consequently, the buyer is entitled to enforce the said charge against the property and for that purpose trace the property even in the hands of third parties and even when the property is converted into another form by proceeding against the substituted security, since none claiming under the seller including a third party purchaser can take advantage of any plea based even on want of notice of the charge. The said statutory charge gets attracted and attaches to the property for the benefit of the buyer the moment he pays any part of the purchase money and is only lost in case of purchaser's own default or his improper refusal to accept delivery. So far as payment of interest is concerned, the section specifically envisages payment of interest upon the purchase-money/price prepaid, though not so specifically on the earnest money deposit, apparently for the reason that an amount paid as earnest money simplicitor, as mere security for due performance does not become repayable till the contract or agreement got terminated and it is shown that the purchaser has not failed to carry out his part of the contract, and the termination was brought about not due to his fault, the claim of the purchaser for refund of earnest money deposit will not arise for being asserted."

8. The position is made clear by the law above. The new sale certificate was issued by the Court only after the SLP was dismissed and the sale was registered in favour of the decree holder only in July 2017 and whereas the possession of the property was handed over only on 04.03.2017 to the decree holder, as discussed above. Per law (supra) the interest need to be paid to the purchaser till the date on which either the possession was delivered or the sale deed was executed whichever was earlier. The decree holder is thus entitled to the interest on the sum of 5,32,50,000/- lying deposited with this court till the date of handing

over of possession of the property to him viz. till 4.03.2017 as the said date is an earlier date than the date when sale was registered in July 2017.

9. The judgment debtor relies upon Order 21 Rule 94 of CPC viz. where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold, the amount of the purchase-money and the name of the person who at the time of sale is declared to be the purchaser and such certificate shall bear date the day on which the sale became absolute and alleges since the initial date of issue of the sale certificate is 28.07.2014 the interest be awarded to the petitioner only till such date. I am not inclined to accept this contention since the judgment debtors themselves have challenged the sale and kept it in abeyance till the matter was finally disposed of in SLP (C) 4821/2016 on 22.07.2016. Neither did the judgment debtors gave possession of the premises to the decree holder nor they allowed the decree holder to get the sale registered. As stated above the new sale certificate was issued only on 10.07.2017 and thereafter it was registered. The judgment debtors cannot claim benefit of stalling the proceedings; not handing over of the possession to the purchaser and yet be allowed to enjoy the interest upon the purchase price. Thus the interest on deposit of 5,32,50000/- till 04.03.2017 be also released in favour of the decree holder by the Registrar General.

10. List for compliance on 31.07.2018.

YOGESH KHANNA, J

MAY 02, 2018 DU