BHIKU RAM JAIN AND ORS Vs ANIS AHMED RUSHDIE & ANR
Bench: SINGLE BENCH
Acts Referenced
Judgement Snapshot
Case Number
994 of 1977
Hon'ble Bench
Rajiv Sahai Endlaw
Advocates
V.K. Garg, Lalit Gupta, Rahul Malhotra, Noopur Dubey, Harsh Singhal, Gaurav, B.B. Gupta, Sanjay Sharma
Acts Referred
- Specific Relief Act, 1963, Section 28 - Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed
Judgement Text
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1. This application has been filed seeking (i) direction to the Registry of this Court to effect service of notice of pendency of the present proceedings to actual defendants i.e. defendant No.1(A) to 1(D) being the legal representatives (LRs) of the original sole defendant; and, (ii) compliance of the orders dated 3rd April, 2013, 2nd August, 2013 and 7th October, 2013 in its letter and spirit and a direction to the counsels to file Vakalatnama on behalf of LRs of the original sole defendant.
2. It is not as if that the LRs of the original sole defendant are not appearing in these proceedings. They appear through counsels whose presence is recorded hereinabove.
3. However, the counsel for the plaintiffs on the last date i.e. 9th December, 2016 also stated that the senior counsel appearing for the defendant is appearing before this Court without any authority and that the Vakalatnama is forged.
4. It was on 9th December, 2016 enquired from the counsel for the plaintiffs, as to how that claim could come in the way of this Court proceeding with the matter.
5. It is necessary to give the history of the proceedings. This suit, filed as far back as in the year 1977 for specific performance of an agreement of sale of immovable property, was decreed on 5th October, 1983. A decree was passed in favour of the plaintiffs and against the sole defendant to execute and register the sale deed in pursuance to the agreement to sell dated 22nd December, 1970. However, RFA(OS) No.11/1984 preferred thereagainst was allowed on 31st October, 2011 and the judgment and decree dated 5th October, 1983 was set aside and the suit dismissed. SLP preferred against the judgment dated 31st October, 2011 of the Division Bench was granted and vide judgment dated 3rd December, 2012 in Civil Appeal No.8653/2012 the suit for specific performance of the agreement to sell dated 22nd December, 1970 was decreed. The Supreme Court however further directed that the sale deed to be executed by the defendants in favour of the plaintiffs will be for market price of the property as on the date of the judgment of the Supreme Court. As no material whatsoever was available to enable the Supreme Court to make a correct assessment of the market value of the property on that date, this Court was requested to undertake the said exercise "with such expedition as may be possible in the prevailing facts and circumstances".
6. On receipt of judgment dated 3rd December, 2012 of the Supreme Court, the suit was taken up on 28th January, 2013. Inspite of more than four years having elapsed, "expedition" desired by the Supreme Court has not been achieved.
7. Supreme Court, vide order dated 8th May, 2013 in applications filed before it, clarified that the determination of the market value of the property in terms of the judgment aforesaid would be after affording an opportunity to all the affected parties and after taking into account all relevant facts and circumstances and that any party aggrieved by such determination will be entitled to avail such remedies that may be open in law to such party.
8. Vide order dated 12th February, 2014 of the learned Registrar General of this Court, concerned Sub Divisional Magistrate (SDM) was directed to submit valuation report of the property in terms of the order of the Supreme Court. In pursuance thereto, a report dated 11th April, 2014 to the effect that "Mr. Narender Jain, petitioner did not allow" the Tehsildar''s team to measure the property was presented. The order dated 24th April, 2014 of the Registrar General records that valuation report dated 23rd April, 2014 was filed by the SDM and copies thereof were provided to the contesting parties.
9. Vide order dated 24th April, 2014 of the Registrar General, ITCOT Consultancy and Services Ltd. was nominated as the valuer to ascertain the market value of the property. The subsequent order dated 22nd May, 2014 records that valuation report was filed; again opportunity was given to the parties to file objections, if any to the valuation report.
10. Vide order dated 14th July, 2014, an opportunity was given to the parties to produce evidence on the valuation of the property, with both parties being also entitled to cross-examine SDM, Civil Lines, Delhi and ITCOT Consultancy and Services Ltd.
11. The valuer of ITCOT Consultancy and Services Ltd. was crossexamined by the counsels for the plaintiffs as well as by the counsel for the defendant.
12. The plaintiffs produced one valuer who was cross-examined by the counsel for the defendant.
13. The SDM who had submitted the report in pursuance to directions aforesaid was also cross-examined by the counsel for the plaintiffs. The counsel for defendant chose not to cross-examine him.
14. Though vide order dated 14th July, 2014 aforesaid, both parties were directed to produce one witness only but the plaintiffs also examined Mr. Narender Kumar Jain as PW-2 and who was cross-examined by the counsel for the defendant.
15. The defendant chose not to examine any witness.
16. It was in the aforesaid scenario that on 9th December, 2016 when the matter was ripe for hearing counsels on the aspect of valuation but the counsel for the plaintiffs contended that the senior counsel for the defendant was appearing without any authority and the Vakalatnama was forged, it was observed that such tactics on the part of the plaintiffs appeared to be dilatory and vexatious, inviting Section 28 of the Specific Relief Act, 1963. The counsel for the plaintiffs on 9th December, 2016 stated that he was not ready to address arguments on valuation and on his request the matter was posted to today.
17. Notwithstanding the aforesaid observations recorded in the order dated 9th December, 2016, this application has been filed.
18. For the reasons appearing hereinafter, it is not necessary to reproduce herein the reasons given in the application to claim that the senior counsel appearing for the defendant is appearing without authority. Suffice it is to state that the contention of the plaintiffs is that the senior counsel appearing for the defendant is appearing not at the behest of the defendant but at the behest of purchaser of the property from the defendant whose application for impleadment in these proceedings has already been dismissed.
19. As far as the reference to the earlier orders dated 3rd April, 2013, 2 nd August, 2013 and 7th October, 2013 is concerned, vide the said orders, on similar contentions of the counsel for the plaintiffs, notices were issued to the LRs of the defendant. However not only have a long time lapsed therefrom but the counsel now appearing for the defendant has thereafter been appearing throughout and has been conducting cross-examination, as aforesaid.
20. I have today also enquired from the senior counsel appearing for the plaintiffs, as had enquired on 9th December, 2016, as to how does it make a difference to the plaintiffs or to the determination to be done by this Court in terms of the orders aforesaid of the Supreme Court vis-a-vis the valuation of the property, whether the counsel for the defendant has authority from the defendant or not. It is not as if the defendant has led any evidence in the suit, for it to be said that the depositions are not of the defendant but of some other persons. No objections appear to have been raised when the same counsel appearing for the defendant cross-examined the witnesses of the plaintiffs and the valuer.
21. The senior counsel for the plaintiffs states, as was stated by the counsel for the plaintiffs on 9th December, 2016 also, that it is necessary to issue notice to the legal heirs of defendant to secure their presence before the Court for the purposes of execution and registration of the sale deed of the property in favour of the plaintiffs.
22. I have further enquired from the senior counsel for the plaintiffs, as had also enquired on 9 th December, 2016, that even if the legal heirs of the defendant do not come forward to execute the sale deed in favour of the plaintiffs or it is found that the persons from whom the counsel for the defendant is holding Vakalatnama is not competent to execute the sale deed, whether not the Code of Civil Procedure, 1908 (CPC) provides for this Court to authorise an officer to execute the sale deed in favour of the plaintiffs on behalf of the legal heirs of the defendant.
23. The senior counsel for the plaintiffs cannot refute. He however insists on the presence of the legal heirs of defendant without disclosing any reason and does not desire the senior counsel who is appearing for them to address this Court.
24. It appears that the plaintiffs are merely delaying determination of market value and consequential payment thereof. On enquiry, the senior counsel states that the plaintiffs are in possession of the property. That makes the reason for the delay obvious. The plaintiffs, while continuing to use the property, do not want to pay the price thereof. Once the process of issuing notices to the legal heirs of the defendant is commenced, the determination of valuation is bound to be unduly delayed. A perusal of the record shows that the plaintiffs themselves have filed affidavits of service of the legal heirs of the defendant by emails.
25. I have further put to the senior counsel for the plaintiffs that even if it were to be believed that the counsel appearing for the defendant is not authorised from the legal heirs of the defendant, whether not this Court, on finding that none is appearing for the defendant, seek the assistance of any counsel including the counsel who is appearing for the defendant, to assist the Court as an Amicus Curiae for determination of the value.
26. Again, the senior counsel for the plaintiffs cannot refute.
27. It appears that the plaintiffs are not ready and willing to perform their part of payment of sale consideration of the agreement to sell. It is not as if, once the plaintiffs in a suit for specific performance have obtained a decree in his favour, he is entitled to delay the execution. Section 28 of the Specific Relief Act provides for rescission of the decree as well as the contract, if the plaintiff in such suit does not pay the purchase money within the time directed. The plaintiffs though were on 9th December, 2016 reminded of the same but seem to be bent on delaying the payment of price.
28. The senior counsel for the plaintiffs states that Section 28 would be attracted only after the price is determined and time for payment thereof fixed.
29. What needs to be seen is the spirit of Section 28 of the Specific Relief Act. It may be noted that the Supreme Court has vide order dated 8th May, 2013, clarified that the decree for specific performance at market price prevailing then was in the facts of the case. Thus, while the date of determination of market price remains static i.e. the date of the judgment of the Supreme Court, with no provision of any interest for delay being paid thereon, the determination of price leading to payment thereof, is being unreasonably delayed by the plaintiffs. The Courts are not powerless in such a situation to invoke the principles of Section 28 of the Specific Relief Act and to set aside the decree for specific performance and/or the contract. Reference in this regard can be made to Hungerford Investment Trust Limited Vs. Haridas Mundhra (1972) 3 SCC 684.
30. However, I refrain from expressing any final view on the same, as notwithstanding the mention being made thereof in the order dated 9 th December, 2016, the counsels have not been fully heard thereon.
31. Though the counsel for the plaintiffs has also filed written submissions on the application, dealing with the same but still I deem it appropriate to consider the said aspect at the time of determination of valuation of the property.
32. For the reasons aforesaid, the application is dismissed. CS(OS) 994/1977, IA Nos.12337/2014 (u/O XXVI R-10 CPC), 18906/2014, 18907/2014 & 21370/2014 (all u/S 151 CPC)
33. List the suit for arguments on 13th April, 2017.
