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DWIPANJALI ROY  Vs DR. BISWAJIT CHAUDHURI & ORSJudgment by Delhi High Court

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$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA(OS) 22/2017 & CM APPL. 13308/2023
% Date of decision: 10.04.2024
DWIPANJALI ROY ….. Appellant
Through: Mr Ajay Kohli and Ms Dipika Prasad, Advocates along with LR (i) of appellant in person.

versus

DR. BISWAJIT CHAUDHURI & ORS ….. Respondents
Through: Mr Vishal Bakshi, Mr Sushant Singh and Ms Kanchan Vashishth, Advocates for R-1 (b).
Mr Kirtiman Singh with Mr Waize Ali Noor, Mr Varun Rajawat, Mr Kartik Baijal and Mr Varun Pratap Singh, Advocates for R-2.
Mr Rajiv Nayyar, Senior Advocate with Mr Shiven Khurana and Mr Manjit Singh, Advocates for R-3.

CORAM:
HON’BLE MR. JUSTICE RAJIV SHAKDHER
HON’BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
AMIT BANSAL, J. (ORAL)
1. The present appeal has been directed against the judgment dated 2nd August, 2017 passed by the learned Single Judge in Ex.P.252/2015. Via the impugned judgment, the appellant/Judgment Debtor was directed to vacate the first floor and barsati floor of the suit premises bearing No. B-59, Defence Colony, New Delhi within a period of four months from the date of the judgment.
2. Brief facts leading to the filing of the present appeal are enumerated hereunder:
2.1 Two suits being CS(OS)644/1982 and CS(OS)2995/1996 were filed by the legal heirs of Late Lt. General Bijeta Chaudhuri in relation to two properties, being B-59, Defence Colony, New Delhi (hereinafter the Defence Colony Property) and 1/16, Shanti Niketan, New Delhi (hereinafter Shanti Niketan Property).
2.2 The legal heirs of Late Lt. General Bijeta Chaudhuri were as follows:
i. Dr. Biswajit Chaudhuri (son), the original Decree Holder/respondent no.1 herein.
ii. Lt. Col. Mahajit Chaudhuri (son), the original Judgment Debtor No.1/respondent no.2 herein.
iii. Smt. Dwipanjali Roy (daughter), the original Judgment Debtor No.2/appellant herein.
iv. Smt. Sreelata Chaudhuri (wife of predeceased son), the original Judgment Debtor No.3/respondent no.3 herein.
2.3 On 3rd February, 2020, certain directions were passed against the respondent no.2 in CS(OS)644/1982, against which an appeal being FAO (OS) 224/2010 was preferred.
2.4 In the proceedings in FAO(OS)224/2010, a settlement was arrived at between the parties and the following arrangement was effected:
i. The Defence Colony property would vest exclusively with the respondent no.1/Decree Holder.
ii. The respondent no.1/Decree Holder would give up his rights in respect of the Shanti Niketan Property, which would vest with the Judgment Debtors, being the appellant, the respondent no.2 and the respondent no.3.
iii. The Shanti Niketan Property would be sold by the Judgment Debtors and the proceeds thereof would be divided amongst them. From the sale, the appellant would be entitled to 30 percent of the consideration, the respondent no.2 to 28 percent and the respondent no.3 to 42 percent.
iv. The first floor and barsati floor of the Defence Colony property, which is in occupation of the appellant, would be vacated within a period of four months.
2.5 Accordingly, on the basis of the aforesaid settlement arrived at between the parties, the respondent no.1/Decree Holder became the exclusive owner of the Defence Colony property. Further, the appellant/Judgment Debtor No.2 gave up all her rights in the Defence Colony property in lieu of the share given to her in the Shanti Niketan property.
2.6 The difficulty arose as the parties could not sell the Shanti Niketan property, which in terms of the settlement was to be sold within three months.
2.7 Resultantly, the appellant did not vacate the first floor and barsati floor of the Defence Colony property, the possession and ownership of which was to go exclusively to the respondent no.1/Decree Holder.
2.8 In view of the aforesaid, the respondent no.1/Decree Holder initiated the execution proceedings by way of Ex.P.252/2015.
3. Via the impugned judgment dated 2nd August, 2017, the learned Single Judge held that the vacation of the first floor and barsati floor of the Defence Colony property by the appellant was not conditional upon the sale of the Shanti Niketan Property and directed the appellant to vacate the first floor and barsati floor of the Defence Colony property within four months from the date of the judgment, which was to expire on 1st December, 2017.
4. Aggrieved by the aforesaid direction, the appellant filed the present appeal. Notice in the present appeal was issued on 16th October, 2017 and taking a view that the settlement envisaged vacation of the Defence Colony property after the sale of the Shanti Niketan property, a direction was passed that no coercive steps would be taken against the appellant in terms of the impugned order. The aforesaid order was made absolute during the pendency of the present appeal by the order dated 2nd April, 2019.
5. During the pendency of the appeal, the appellant, the respondent no.1 and the respondent no.2 expired, who were duly substituted by their legal representatives.
6. Subsequently, the parties had been attempting to settle the present dispute by selling the Shanti Niketan Property and it was recorded in the order passed by this Bench on 19th January, 2024 that the parties will engage with each other to find a buyer for the Shanti Niketan property, failing which the Court would appoint an Auctioneer for selling the aforesaid property.
7. We are informed by the counsels for the parties that they have been unable to find a buyer for the Shanti Niketan property.
8. In these circumstances, the only option available would be to order a public auction in respect of the Shanti Niketan property.
9. Accordingly, Mr. S P Garg, former Judge of this Court [(C) 9910384627] is appointed as the Court Auctioneer to conduct the auction of the aforesaid property.
10. The fee of the Court Auctioneer for auctioning the property is tentatively fixed at Rs. 5,00,000/-, which shall be borne by the legal representatives of the appellant and the respondent no.2 and the respondent no.3 in proportion of their respective shares in the property. Apart from the fee of the Court Auctioneer, the parties shall also bear the out-of-pocket expenses that may be incurred by the Court Auctioneer for auctioning the suit property. If any party is unable to pay his share of the fees or expenses, the other parties to the suit shall pay the same with the right to recover the same from the sale proceeds of the suit property.
11. Counsel for the parties submit that the original title documents in respect of the Shanti Niketan property have been filed by the earlier Local Commissioner appointed by this Court, Mr A.K. Ohri, in the file of FAO (OS) 224/2010.
12. The Registry shall trace the original title papers of the Shanti Niketan property being 1/16, Shanti Niketan, New Delhi and handover the same to the Court Auctioneer.
13. In the event the Court Auctioneer is not handed over the original title papers of the Shanti Niketan property, he shall be at liberty to approach this Court by filing an appropriate application in this behalf.
14. Before conducting the public auction, the valuation of the Shanti Niketan property would be required to be conducted. For this purpose, the Court Auctioneer shall get a valuation done of the Shanti Niketan property from a government approved Valuer. The valuation shall be carried out taking the circle rate and market rate into consideration.
15. The fees of the Valuer shall be borne by the legal representatives of the appellant and the respondent no.2 and the respondent no.3 in proportion to their share in the Shanti Niketan Property, along with all the out-of-pocket expenses.
16. The Valuer, after conducting the valuation of the property, shall submit his report to the Court Auctioneer. Based on the valuation report and in consultation with the parties, the Court Auctioneer shall fix the reserve price for the sale of the property.
17. The Court Auctioneer, in consultation with the parties, shall also fix the terms and conditions of the sale of the property.
18. A report shall be filed on behalf of the Court Auctioneer before this Court delineating the reserve price of the Shanti Niketan property and the terms of conditions of the sale within four (4) weeks of receipt of a copy of the order.
19. List on 15th May, 2024 to consider the report of the Court Auctioneer.
20. The Registry shall forward a copy of this order to the Court Auctioneer forthwith, for information and compliance.

AMIT BANSAL
(JUDGE)

RAJIV SHAKDHER
(JUDGE)
APRIL 10, 2024/rt

EFA(OS) 22/2017 Page 2 of 2