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2007 DIGILAW 1475 (DEL)

PROMILA MEHRA v. J. K. MEHRA

2007-07-25

A.K.SIKRI, ARUNA SURESH

body2007
A. K. SIKRI, J. ( 1 ) PARTIES to these appeal are the owners of 208, Golf Links, New Delh. Some disputes arose between them. Suit No. 241/2004 was filed in this court. In the said Suit parties settled the matter and decree in terms of settlement was passed. For the execution of the said decree Execution Petition No. 181/2006 and no. 271/2006 were filed by both the parties. Parties had agreed to sell the suit property. Steps in this behalf were taken to auction the property through the process of the Court. M/s. Vibes Developers Pvt. Ltd. was the highest bidder, whose bid in the sum of Rs. 30 crores has been accepted ( 2 ) IT may also be noted at this stage that the parties had moved LNDO for converting the suit property from leasehold into the freehold property since sale Deed can be executed in favour of the auction purchaser after the property converted into freehold. The proceedings which are going on before the learned trial Court in the meantime relates to the working out the modalities of making payment by the auction purchaser and handing over of the possession by the parties. The auction purchaser has made the payment of Rs. 15 crores to the parties to this appeal. Keys of the First Floor and the Second Floor of the suit property have been handed over to the auction purchaser pursuant to the order passed by the learned Single Judge. ( 3 ) THE appellant was also directed to hand over the possession of the ground Floor of the suit premises by depositing the keys in the Court. When the matter came up before the learned Single Judge on 15th February, 2007, it was agreed between the parties that vacant peaceful possession of the said portion would be handed over to the purchaser at the end of three months from that day or once the property is converted into freehold whichever is earlier, subject to certain conditions stipulated in that order. However, thereafter on 7th May, 2007 this order was modified with the consent of the parties. However, thereafter on 7th May, 2007 this order was modified with the consent of the parties. It was agreed by the parties that conversion of property from leasehold to freehold would not be linked to the handing over to the possession of the property and the property would be handed over to the purchaser on or before 16th June, 2007 when the sale consideration will also be paid and the Sale Deed would be executed. It was also clarified that in case Sale Deed can not be executed, the major balance sale consideration shall be paid to the parties except a small amount out of the sale consideration, which shall be deposited in the Court, to ensure the presence of the parties to complete the sales transactions. The learned Single Judge also observed that the amount which is to be deposited in the Court shall be decided on the next date of hearing which was fixed as 15th May, 2007. ( 4 ) AS per the aforesaid order, the balance sale consideration was to be given by the purchaser to the parties herein on or before 16th June 2007 when the Sale Deed was also to be executed. In case, the Sale Deed cannot be executed, the purchaser was to pay substantial portion of the balance sale consideration to the sellers and remaining amount was to be deposited in the court. Meaning thereby, in so far as the purchaser is concerned, he had to give the complete balance consideration by 16th June, 2007. However, when the matter came up for hearing on 15th May, 2007, the learned counsel for the purchaser submitted that the purchaser was not in a position to make the payment of balance sale consideration unless the property is converted into freehold. He further submitted that entire balance consideration would be paid within one week of the conversion of the property into freehold. The appellant, however, requested for some more time to hand over the possession on the ground that he had suffered some injuries. Keeping in view his medical problems he was directed to hand over the possession "on or before 16th July, 2007 or within three days of the property being converted into freehold whichever is earlier". This arrangement was jointly agreed by the parties. Keeping in view his medical problems he was directed to hand over the possession "on or before 16th July, 2007 or within three days of the property being converted into freehold whichever is earlier". This arrangement was jointly agreed by the parties. The appellant, however, did not hand over the possession by the date stipulated in order dated 15th May, 2007 and instead filed EA No. 334/2007 seeking further time to hand over the possession. This application was decided by impugned order dated 16th July, 2007. Perusal of the order shows that the learned counsel for the appellant had made a statement even on that date the appellant was willing to handover the formal possession of the Ground Floor to the Court. Learned Single Judge also took note to the fact that the appellant was seeking extension of time repeatedly. However, time was extended till 1st August, 2007 "on the express undertaking of the judgment debtor (appellant herein), which is accepted by the court. " ( 5 ) LEARNED counsel for the appellant argues that till the balance consideration is paid to the appellant by the purchaser, he should not be asked to deposit the keys of the Ground Floor and handing over the possession thereof to the Court. We do not agree with this submission of the learned counsel for the appellant in view of the fact that orders dated 15th May, 2007 and 16th july, 2007 were the orders passed by the learned Single Judge with the consent of both the parties. On 15th May, 2007 the appellant had agreed to hand over the possession on or before 16th July, 2007 and the learned Single Judge categorically stated that "this arrangement has been jointly agreed by the parties, who are present through their respective counsel". ( 6 ) IN E. A. No. 334/2007, the appellant sought further extension. Time up to 1st August, 2007 is given vide impugned order in view of the express undertaking of the appellant which Undertaking is accepted by the Court while granting this time. In fact, voluntarily this undertaking which is accepted by the Court, may amount even to contempt of the Court. Time up to 1st August, 2007 is given vide impugned order in view of the express undertaking of the appellant which Undertaking is accepted by the Court while granting this time. In fact, voluntarily this undertaking which is accepted by the Court, may amount even to contempt of the Court. After giving such an undertaking, it is not open to the appellant to file the present appeal with the plea that the appellant should not be forced to handover the possession to the court till the balance consideration is given by the purchaser. ( 7 ) AT the same time, we feel that the purchaser is also at fault in not honouring the order passed earlier. e. on 7th May, 2007 whereby the Court had directed that the balance sale consideration shall be paid to the parties except a small amount which also he was to deposit in the Court. ( 8 ) THEREFORE, while dismissing this appeal, we hope that learned Single judge shall bestow his consideration on this aspect of the matter on the next date of hearing and pass appropriate orders deciding as to how much amount out of the balance sale consideration needs to be deposited by the purchaser in the court and shall also pass an appropriate orders for payment of balance consideration to the parties on the terms which the learned Single Judge deems fit and proper. ( 9 ) AT this stage, learned counsel for the appellant states that the appellant shall be given some time to hand over the possession. It would be appropriate for the appellant to make such a request to the learned Single judge. ( 10 ) SUBJECT to aforesaid observations, the appeal is otherwise dismissed. No costs. DASTI to both the counsel for the parties.