MUKESH SAINI vs MADAN LAL SAINI & ORS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:-22nd January, 2024.
+ CS(OS) 1169/2014, CRL.M.A. 15433/2023, I.As. 8173/2019, 9662/2019, 13023/2021, 9839/2022, 11621/2022, 13919/2022 & 357/2024
MUKESH SAINI ….. Plaintiff
Through: Mr. R.S. Tomar, Mr. Rakesh Kumar, Mr. Dadeep Singh, Advs. with plaintiff in person (M. 9811138442)
versus
MADAN LAL SAINI & ORS ….. Defendants
Through: Mr. Rajesh Pandey, Advocate for D-2 to 4 along with D-2&3 present in person (M-9540321200)
Mr. Ashish Sharma, Advocate for Proposed Purchasers along with Mr. Raj Kumar (M-7838474717) & Mr. Gurmeet Singh (M-9810336479) – Proposed Purchasers
Mr. Rishikesh Kumar, ASC, GNCTD with Mr. Sudhir Shukla, Adv. (M. 9910845606)
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.
I.As. 8173/2019, 13023/2021, 9839/2022, 11621/2022, 13919/2022 & 357/2024
2. This is a suit filed by the Plaintiff seeking partition of the property bearing no. 36 Sham Nagar, Kalkaji, New Delhi ad measuring 200 sq. yds (hereinafter referred as the ‘suit property’) against the Defendant Nos. 2 & 3, as also an injunction from creating third party rights in the said property. The following applications have been filed by the Plaintiff, Defendant Nos. 2 & 3 and the proposed purchasers with respect to the same :
* IA. 8173/2019- The present application has been filed by the Plaintiff with respect to order dated 10th July, 2018, seeking permission to purchase the property in question at the same consideration at which it is being sold to the proposed purchasers i.e., Raj Kumar and Gurmeet Singh or be permitted to bring purchasers who are willing to buy the property for more value.
* IA. 9839/2022- The present application has been filed in lieu of the above stated application against the proposed purchasers and Defendant Nos. 2 to 4 seeking restraint against construction on the suit property and accept the offer of the Plaintiff to purchase the suit property.
* IA. 13023/2021-This application has been filed by Defendant Nos. 2 to 4 seeking purchasers to comply with the order dated 10th July, 2021 and 28th May, 2019 and pay an interest on the delayed period in favour of Defendants. In furtherance, to which they will register the sale deed in favour of the proposed purchasers.
* IA. 11621/2022- This is an application filed by the Plaintiff under section 28 of the Specific Relief Act, 1963, seeking recession of the agreement to sell dated 27th January, 2014.
* I.A.13919/2022- This is an application filed for stay of order dated 26th July, 2022, under order XXXIX Rule 1 & 2.
* I.A.357/2024- This is an application filed by the prospective purchasers seeking restoration of the order dated 26th July, 2022, with respect to execution of sale deed in their favour.
3. The present suit is another unfortunate dispute between the members of the same family. Defendant No.1-Shri. Madan Lal Saini is the father and Smt. Aasha Rani is the mother of the Plaintiff and Defendants in the present case. Plaintiff-Shri. Mukesh Kumar Saini, is the eldest son and Defendant Nos. 2 and 3-Shri. Suresh Kumar Saini and Sh. Naresh Saini – Defendant No. 3 are the youngest sons and Defendant No.4- Smt. Sunita Saini is the daughter of late Sh. Madan Lal Sain and Smt. Aasha Rani. The suit for declaration, partition and permanent injunction was filed by the Plaintiff seeking partition of various family properties on the ground that the properties belong to a Hindu Undivided Family (HUF). The mother of the Plaintiff and Defendants expired on 16th October, 2008.
4. It is averred that the suit property was bought in the name of his mother by the Plaintiff in the year 1986. It is further averred that the Plaintiff in the year 2014 came to know that an agreement to sell has been entered into between the Defendant Nos. 2 & 3 and Mr. Raj Kumar & Mr. Gurmeet Singh for the suit property. Thereafter the present suit was filed.
5. The suit was listed on 28th April, 2014 on which date, the Court had restricted the suit prayer only to one property. The said order reads as under:
“I.A No.7626/2014 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 1169/2014 IA No.7625/2014 (u/O 39 R-1&2 CPC)
3. The plaintiff has sued for declaration that several of the properties in the name of the father and the brothers of the plaintiff, impleaded as defendants, are properties of HUF of the father of the plaintiff and for n partition thereof and for injunction restraining the defendants from dealing therewith.
4. The plaintiff has made very vague allegations of the HUF. The nucleus of the HUF has not been explained. The only basis for the HUF is, of the plaintiff having contributed to the purchase price thereof by making a monthly payment to his mother and after the death of the mother to the father. Pleas of benami have been raised which are not maintainable under the Benami Transactions (Prohibition) Act, 1988.
5. The plaintiff is a government servant. It has been enquired from the counsel for the plaintiff whether the plaintiff, while making declaration of his assets, has declared any of the said properties to be his or whether the plaintiff anywhere in his income tax returns or any records has declared any right therein.
6. The answer is in the negative.
7. The counsel for the plaintiff however states that the plaintiff is not claiming the entire properties but only a share in the HUF. However no income tax return of any HUF is stated to have been filed. The plaintiff, in his income tax return or in his official declaration has also not disclosed any share in the HUF or the existence of any HUF.
8. Faced therewith, the counsel for the plaintiff states that he is at this stage confining the suit only to property no.36. Sham Nagar, Kalkaji, New Delhi, ad-measuring 200 sq. yds.
9. It is the averment of the plaintiff in the plaint that the said property was in the name of the mother of the plaintiff and though the father of the plaintiff impleaded as defendant no. l had claimed a Will in his favour qua the said property and sought probate thereof but withdrew the same and has now entered into an Agreement to Sell of the said property. Though the date for completion of the agreement has since gone but the counsel for the plaintiff on enquiry states that the defendant no. l is still in possession of the said property and besides Rs.50,00,000/- further payment has not been made by the purchaser to the defendant no. 1.
10. Issue summons of the suit and notice of the application, confined to property no.36, Sham Nagar, Kalkaji, New Delhi, ad-measuring 200 sq. yds., to the respondents by all modes including dasti, returnable on 11′” August, 2014.
11. Till the next date of hearing, the defendant no. 1 shall stand restrained from further alienating, encumbering or parting with possession of property no.36. Sham Nagar, Kalkaji, New Delhi, ad-measuring 200 sq. yds.
12. Provisions of Order 39 Rule 3 be complied forthwith.”
6. A perusal of the above order shows that the Defendant No.1 was injuncted from alienating or parting with possession of the said suit property. Subsequent to this order, the suit continued to remain pending and there were applications which were moved by the Plaintiff from time to time. The said applications were considered on 9th July, 2018. On the said date, the amendment of the Plaint was partially allowed. Leave under Order II Rule 2 CPC was granted. An allegation was raised on the said date that the Defendants were in violation of the injunction order which was passed on 28th April, 2014. An application under Order XXXIX Rule 2A CPC was accordingly filed. In the said order, after hearing some arguments, the Court observed as under:
“I.A. 10800/2014 (u/O XXXIX Rule 2A CPC)
9. Arguments have been heard. Learned counsel for the Plaintiff submits that the order dated 28th April, 2014 was passed by this Court restraining the Defendants / Contemnors No.1 from alienating, encumbering or parting with possession of property No. 36, Sham Nagar, Kalkaji, New Delhi. Learned counsel for the Plaintiff points out that the said order was served upon the Defendants by speed post. Compliance affidavit is also on record. Learned counsel for the proposed purchasers of the property submits that they had entered into an Agreement to Sell dated 27th January, 2014. The sale consideration as per the said Agreement for the property was Rs.2.40 crores. Possession of the property was also taken over by them in January, 2014 and they had started construction in the property. It is their submission that they were not informed of the order dated 28th April, 2014 though the Defendants were informed of the same. Immediately upon learning of the order, they stopped the construction and entered appearance in this Court. It is submitted that the sale deed has also not been executed by Defendant No.1 in favour of the proposed purchaser, though the Agreement to Sell has already been entered into as recorded in paragraph 9 of the order dated 28th April, 2014. Learned counsels for the parties wish to take instructions as to the stand of their respective clients in respect of the Agreement to Sell. ”
7. Vide the above stated order the proposed purchasers informed the Court that they have the possession of the said suit property since January, 2014, but construction on the same has been stopped. Furthermore, it has been submitted that execution of sale deed has still not taken place. On the next date i.e. 10th July, 2018, the Court heard detailed submissions on the applications for injunction and the Order XXXIX Rule 2A application and directed as under:

“I.As. 7625/2014 (stay), 10800/2014 (u/O XXXIX Rule 2A CPC) & 18624/2015
1. Further to the order dated 09th July, 2018, the parties have reverted with the instructions. The Plaintiff insists that the Defendants and contemnors should not be allowed to raise any construction or go further with the transaction as per the agreement to sell dated 27th January, 2014. The Defendants however submit that they are willing to go ahead with the transaction, though the same was entered into in 2014.
2. The Plaintiff, at best, if he succeeds in the suit, would be entitled to 1/5th share in the property. The agreement to sell was executed prior to the filing of the suit i.e. on 27th January, 2014. The sale transaction, as per the agreement to sell dated 27th January, 2014, is consented to by all the co-owners except the Plaintiff. The order dated 28th April, 2017 was passed at the ex-parte stage when parties were yet to put in their appearance.
3. It is clear that except the Plaintiff, all other co-owners wish to go ahead with the sale transaction. The proposed purchasers were given possession of the suit property prior to the filing of the suit and they were raising construction. They have also paid a substantial sum of Rs.50 Lakhs out of the agreed sale consideration of Rs.2.4 crores. Further, the agreement to sell has various consequences in case the sale deed is not executed and the same could lead to multiplicity of litigations.
4. Learned counsel for the Plaintiff submits that the Plaintiff is not interested in money but would be praying for partition/physical possession. The Plaintiff’s rights are yet to be established in the suit and at this stage, when the agreement to sell has already been entered into prior to the filing of the suit and possession has already been handed over, not permitting the parties to go ahead with the sale transaction, would result in liabilities being created against all the parties concerned, inasmuch as Rs.50 Lakhs has already been paid by the proposed purchasers.
5. Under such circumstances, the order that would balance the equities between all the parties concerned, would be to secure the interest of the Plaintiff by directing the Defendants to deposit 1/5th of the sale consideration in the Court. The Defendants are permitted to execute the sale deed in favour of the proposed purchasers, as, if the sale transaction is not given a closure, there would be higher liabilities fastened upon the Defendants. The sale deed and other documents etc. shall be executed in favour of the proposed purchasers within a period of six weeks upon receipt of the complete consideration. The proposed purchasers shall make a deposit of Rs. 48 lakhs with the Registrar General of this Court, in order to safeguard the interest of the Plaintiff. The amount so deposited shall be kept in an FDR by the Registrar General of this Court. The sale deed shall not be executed by the parties until the said deposit is made in this Court. The remaining sale consideration shall be paid to the Defendants. The deposit of Rs. 48 lakhs shall abide by the final decision in the suit.
6. All the IAs are disposed of in the above terms.”
8. As can be seen clearly from the above order, the Plaintiff’s share in the suit property was recorded as being 1/5th and since the agreement to sell was entered into on 27th January, 2014 prior to the filing of the suit and a substantial amount of Rs.50 lakhs had been paid by the proposed purchaser to the father-Defendant No.1, the Court held that the purchase would be given effect to with 1/5th of the sale consideration being deposited before this Court with the worthy Registrar General. The said order was challenged by the Plaintiff before ld. Division Bench which, vide order dated 7th March, 2019 held that the Plaintiff’s interest was adequately protected by directing deposit of 1/5th of the sum. The observations of ld. Division Bench are set out below:
“3. We have heard learned counsel for the parties and we find that while dealing with the application under Order XXXIX Rule 2A CPC the interim protection granted by the learned Single Judge in Para 5 found that except the plaintiff herein all other co-owners want to go ahead with the same transaction. It is also found that the proposed purchaser has been given possession of the suit property much prior to filing of the suit and they have already started raising construction. A substantial sum of Rs.50 lakhs as agreed to out of the sale consideration of Rs. 2.4 crores have finally been granted. The learned Court found that the agreement to sell has various consequences in case the sale deed is not executed and the same would lead to further complication and multiplicity of litigation.
4. Taking note of all these circumstances, the plaintiff’s interest has been adequately protected while granting injunction and the injunction has been granted in the following terms:
“5. Under such circumstances, the order that would balance the equities between all the parties concerned, would be to secure the interest of the Plaintiff by directing the Defendants to deposit 1/5th of the sale consideration in the Court. The Defendants are permitted to execute the sale deed in favour of the proposed purchasers, as, if the sale transaction is not given a closure, there would be higher liabilities fastened upon the Defendants. The sale deed and other documents etc. shall be executed in favour of the proposed purchasers within a period of six weeks upon receipt of the complete consideration. The proposed purchasers shall make a deposit of Rs. 48 lakhs with the Registrar General of this Court, in order to safeguard the interest of the Plaintiff. The amount so deposited shall be kept in an FDR by the Registrar General of this Court. The sale deed shall not be executed by the parties until the said deposit is made in this Court. The remaining sale consideration shall be paid to the Defendants. The deposit of Rs. 48 lakhs shall abide by the final decision in the suit.”
5. Taking note of the aforesaid circumstances and the fact that the learned Single Judge has already protected the interest of the plaintiff adequately and the sale has been made subject to final decision of the suit, it does not cause any prejudice to the appellant and therefore the discretion exercised in grant of injunction does not call for any interference.
6. Accordingly, the appeal as well as the pending application stand disposed of.”

9. The order of the ld. Division Bench was again challenged before the Supreme Court by the Plaintiff. In the said SLP No.10935/2019, the Supreme Court observed as under:
“Heard learned counsel for the petitioner.
We are not inclined to interfere with the impugned judgment. The special leave petition is, accordingly, dismissed. However, dismissal of the special leave petition will not come in the way of the petitioner to give offer for buying out the share of the other coparceners which may be considered by the trial court on its own merits in accordance with law.”

10. Subsequent to the order passed by the Supreme Court, two applications under Section 28 of the Specific Relief Act being I.A. Nos. 9839/2022 and 11621/2022 were filed. Vide these applications, the Plaintiff prayed for rescission of the agreement to sell dated 27th January, 2014 and a restraint order was also sought from raising construction in the suit property. The Court in these applications observed as under:-
“1.I.A. 11621/2022 has been filed for rescission of the alleged Agreement to Sell dated 27th January, 2014. I.A. 9839/2022 has been filed on behalf of the plaintiff seeking the restraint against the proposed purchasers and the defendant no. 2 to 4 from raising construction in the property bearing No. 36, Sham Nagar, Kalkaji, New Delhi (suit property). Further, the direction is sought that the proposed purchaser be directed to restore the possession of the room in occupation of the tenant of the plaintiff, Sh. Ram Chander.
xxxx
3. In the order dated 10th July, 2018, it was noted that:
i. The Agreement to Sell was executed prior to filing of the suit in favour of the proposed purchasers, on 27th January, 2014.
ii. The proposed purchasers were given possession of the suit property prior to filing of the suit. iii. A sum of Rs.50,00,000/- out of the total agreed consideration of Rs.2,40,00,000/- was paid to the defendant no. 1.
iii. The proposed purchaser would deposit 1/5th of the sale consideration i.e. Rs.48,00,000/- with the Court in order to secure the interest of the plaintiff.
iv. The Sale Deed would be executed within a period of six weeks upon receipt of the complete consideration.
4. The said order was taken up in appeal in FAO (OS) No. 120/2018 by the plaintiff and the appeal was dismissed by the Division Bench vide order dated 7th March, 2019. A special leave petition (C) No. 10935/2019 was filed by the plaintiff against the said order, the said SLP was dismissed by the Supreme Court vide order dated 7th May, 2019, while giving liberty to the petitioner to give an offer for buying out the share of the other coparceners, which offer was to be considered by the Trial Court on merits in accordance with law.
5. Admittedly, the balance consideration was not paid by the proposed purchasers in a timely manner. A sum of Rs 48,00,000/- was paid only in May, 2022. Attention of the Court is also drawn to the order dated 15th May, 2019, wherein it was noted that the plaintiff is issuing various letters to the Sub-Registrar for not registering the Sale Deed in favour of the proposed purchasers, including the letter dated 5th May, 2019. Subsequently, in the order dated 28th May, 2019, it was noted that the plaintiff has withdrawn the letter dated 5th April, 2019 written by the plaintiff to Sub-Registrar and also undertook not to create any impediments with the registration of the Sale Deed. A further time of 12 weeks was given to the proposed purchasers to arrange funds for the payment of the balance consideration and Sale Deed was to be executed before 31st August, 2019.
6. Today, the counsel appearing on behalf of the proposed purchaser submits that the entire balance consideration of Rs.1,42,00,000/- along with interest at the rate of 9% per annum, shall be paid on or before 31st October, 2022. Counsel for the defendants no.2 to 4 are agreeable for the same.
7. It is made clear that if the aforesaid balance amount is not paid on or before 31st October, 2022, then the Court will be inclined to cancel the Agreement to Sell in favour of the proposed purchasers.
8. Counsel for the plaintiff submits that upon the death of defendant no. 1 on 16th October, 2020, his share has increased from 1/5th to 1/4th .
9. Counsel for the defendant submits that out of the total consideration, Rs.50,00,000/- has already been paid to the defendant no.1 before his death, at the time of execution of the Agreement of Sell. This aspect shall be taken into consideration on the next date of hearing.”
11. In terms of the above order, it was agreed by the proposed purchasers that the entire balance consideration of Rs.1.42 crores along with the interest at 9% per annum shall be paid on or before 31st October, 2022. The Court held that if the said amounts are not paid, the Court would be inclined to cancel the agreement to sell. A review was sought against the said order dated 26th July, 2022 vide Review Petition 215/2022. The said review petition was decided vide order dated 11th July, 2023 by a detailed order. In the said order, the Court observes that there was no ground to challenge the review after the I.A. 8173/2019 was filed pursuant to the order of the Supreme Court. The said application was filed by the Plaintiff in consideration to order dated 10th July, 2018, seeking permission to purchase the property in question at same consideration at which it is being sold to the proposed purchasers i.e., Raj Kumar and Gurmeet Singh or be permitted to bring purchasers who are willing to buy the property for more value.
12. The Court, therefore, reviewed the order in view of the Supreme Court’s directions where the Plaintiff was to make an offer to the other Defendants.
13. The matter has thereafter remained pending, awaiting the offer to be made by the Plaintiff in terms of the order of the Supreme Court where liberty was granted to the Plaintiff to make an offer. On several dates, the matter has been adjourned. On 17th October, 2023, the Court granted time to the Plaintiff in order to explore the possibility of an amicable settlement in the matter. The Plaintiff was accordingly expected to give an offer in terms of the liberty given to him by the Supreme Court. However, till date, it is noticed that the Plaintiff is not willing to give any offer. On 8th January, 2024, the Court records that the Plaintiff has failed to appear before the Mediation Centre and did not make any concrete offer in terms of the order of the Supreme Court. Accordingly, Mr. Mukesh Kumar Saini was directed to appear before the Court today.
14. Today, ld. Counsels for the parties have made their submissions. Ld. counsel for the Plaintiff submits that the Plaintiff is not in a position to buy out the share of the other Defendants i.e. the brothers. It also appears that the Plaintiff is clearly unable to buy out even the proposed purchaser. Under such circumstances, clearly, the case of the Defendants is that the proposed purchasers should be permitted to pay the interest in terms of the order passed by the Court and the sale deed ought to be executed in favour of the proposed purchasers. The proposed purchasers have also appeared before the Court and have submitted that the interest would be liable to be paid only from 1st September, 2019 to 31st October, 2022, in view of the fact that the proposed purchasers were always ready and willing to pay the said amount.
15. The total amount which has been paid by the proposed purchasers are as under:
Recipient of the said amounts
Amount
Date of payment
Earnest Money received by defendant No.1/Sh.
Madan Lal Saini at
time of execution of agreement
dt.27.01.2014.
50,00,000.00
27-01-2014
Money received by Plaintiff’s/Registrar
General. As per Order dated 10.07.2018
48,00,000.00
31-05-2022

Money received by Defendant No.4 in
account of Defendant No.4 on 21.07.2022
8,00,000.00
21-07-2022
Registrar General
as per order dt. 17.10.2022 through
4 (Four) Demand
Drafts in favour of
/Registrar General
of Delhi High Court.
1,34,00,000.00
28-10-2022

Total
2,40,00,000.00

16. Thus, as on date, the total amount of Rs.2,40,00,000/- (Rupees Two Crores and Forty Lakhs) stands paid by the proposed purchasers. The only amount that remains is the interest component which the Defendants agree along with the purchasers would be Rs.38,34,000/- for the period 1st September, 2019 to 31st October, 2022. Clearly, interest would not be liable to be paid for the entire period by the Purchasers as the matter has been in a state of uncertainty due to the repeated challenges by the Plaintiff. Insofar as Plaintiff is concerned, the sum of Rs.48 lakhs stands deposited on 31st May, 2022. No interest would be liable to be paid qua the Plaintiff inasmuch as the Plaintiff despite repeated options being given to him and despite the orders of the Supreme Court, has failed to give any offer and the cause of delay in this suit is substantially the Plaintiff’s responsibility. In fact, the proposed purchasers have also suffered considerably having paid the substantial sum way back in 2014, have had to wait almost a decade to get the sale deed in their favour.
17. Statement has been recorded of the Plaintiff- Mr. Mukesh Saini today in Court, that he would not execute the sale deed in favour of the proposed purchasers. The statement reads:
“I was working in the CPWD till 1980, thereafter, I worked in IPGCL till 31st January, 2017. During the said period the plot was purchased in the year 1986, in the name of my mother. That is the reason, I have sentimental values for that property as I have no other residence of my own in Delhi. I am now enrolled as an Advocate with an enrolment no. D/1114/2017. I am also a member of the Supreme Court Bar Association.
I am not willing to execute the sale deed in favour of the proposed purchasers. I do not wish the said property be sold to the proposed purchasers. I pray that the suit property be physically divided and my share be given to me. I am not willing to execute the sale deed.”

18. On the contrary Defendant Nos. 2 and 3 have given their statement in favour of executing the sale deed towards the proposed purchasers. The said statement reads as under:
“We are willing to execute the sale deed in favour of the proposed purchasers or their wives upon receiving the amount of Rs.38,34,000/- towards interest component. This will be a full and final settlement with the proposed purchasers.”

19. Under these circumstances, and bearing in mind the facts narrated above as also the orders passed both in this case as also by the Ld. Division Bench and the Supreme Court, the following directions are issued:
i) the proposed purchasers shall now pay a sum of Rs.38,34,000/- to the Defendant Nos. 2 to 4 within a period of two weeks, as requested. The sale deed for the suit property be executed in favour of the purchasers or their wives as their nominees within a period of four weeks after payment of the entire amount of Rs.38,34,000/- to the Defendant Nos. 2 to 4;
ii) On behalf of the Plaintiff, if the Plaintiff wishes to seek withdrawal of the sum of Rs.48 lakhs then the Plaintiff may also execute the sale deed, failing which, an official shall be nominated by the worthy Registrar General for executing the sale deed on behalf of the Plaintiff;
iii) Upon the sale deed being executed, the sum lying deposited in this Court to the tune of Rs.1,34,00,000/- (Rupees One Crore and Thirty Four lakhs) be released in favour of the Defendant Nos. 2 to 4 through ld. Counsels.
20. All pending applications i.e., I.As. 8173/2019, 13023/2021, 9839/2022, 11621/2022, 13919/2022 & 357/2024 are disposed of except CRL.M.A. 15433/2023 and I.A.9662/2019.
CS(OS) 1169/2014, CRL.M.A. 15433/2023, I.A. 9662/2019
21. List before the worthy Registrar General on 12th February, 2024.
22. List the suit for further proceedings before the Court on 24th April, 2024.

PRATHIBA M. SINGH
JUDGE
JANUARY 22, 2024/Rahul/ks

CS(OS) 1169/2014 Page 2 of 2