GOLD CAUSE CONSTRUCTION PVT. LTD. & ANR. vs ANAND PRAKASH GUPTA
$~32 & 33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 51/2023 & CM APPL. 66249/2023, CM APPL. 24388/2024, CM APPL. 66251/2023
GOLD CAUSE CONSTRUCTION PVT. LTD. & ANR.
….. Appellants
Through: Mr. Manav Gupta, Mr. Sahil Garg, Mr. Abhinav Jain, Ms. Samiksha Jain, Mr. Ankit Gupta, and Mr. Mithil Malhotra, Advs.
versus
ANAND PRAKASH GUPTA ….. Respondent
Through: Mr. Aryan Arora, Adv.
+ EX.F.A. 52/2023 & CM APPL. 66254/2023, CM APPL. 66256/2023, CM APPL. 18513/2024, CM APPL. 18514/2024, CM APPL. 24389/2024
GOLD CAUSE CONSTRUCTION PVT. LTD. & ANR.
….. Appellants
Through: Mr. Manav Gupta, Mr. Sahil Garg, Mr. Abhinav Jain, Ms.Samiksha Jain, Mr. Ankit Gupta, and Mr. Mithil Malhotra, Advs.
versus
ANAND PRAKASH GUPTA ….. Respondent
Through: Mr. Aryan Arora, Adv.
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R
% 26.04.2024
CM APPL. 24388/2024 in EX.F.A. 51/2023
1. This is an application, filed by the respondent, seeking condonation of delay is filing written argument.
2. For the reasons stated in the application, the delay is condoned. The application is allowed.
CM APPL. 66251/2023 in EX.F.A. 51/2023
3. This is an application seeking condonation of delay in filing Ex.F.A. 51/2023.
4. For the reasons stated in the application, the delay is condoned. The application is allowed.
CM APPL. 66256/2023 in EX.F.A. 52/2023
5. This is an application seeking condonation of delay in filing Ex.F.A. 52/2023.
6. For the reasons stated in the application, the delay is condoned. The application is allowed.
CM APPL. 18514/2024 in EX.F.A. 52/2023
7. Allowed, subject to all just exceptions.
8. The application is disposed of.
CM APPL. 18513/2024 in EX.F.A. 52/2023
9. This is an application by the respondent for taking certain additional documents on record.
10. Reserving his right to object to the validity of the documents and their relevance in the present appeal, learned Counsel for the appellant does not object the taking of the documents on record.
11. Accordingly, the documents are taken on record. The application stands allowed accordingly.
EX.F.A. 51/2023 &
EX.F.A. 52/2023
12. Mr. Manav Gupta, learned Counsel for the appellant, raises various objections to the impugned order dated 25 August 2023 passed by the learned ADJ as the executing court dealing with Ex. P. No. 98/2017 and Ex. P. No. 99/2017.
13. The executing court was executing judgment and decree dated 17 October 2012 passed by this Court in CS(OS) 231/2012 and CS(OS) 232/2012 (Anand Prakash Gupta v. M/s Gold Cause Constructions Pvt. Ltd.).
14. Paras 10 and 11 of the judgment dated 17 October 2012 of this Court read thus:
10. For the reasons stated hereinabove, I hold that the plaintiff is entitled to specific performance of the agreements dated 16.05.2005 for sale of commercial space no. F-39 admeasuring 401.60 sq. ft. covered area equivalent to 617.85 sq. ft. super area and commercial space No. F-40 admeasuring 414.31 sq. feet of covered area equivalent to 637.39 sq. ft super area on the first floor of Paradise Mall Plot no. 23, Shivaji Place, District Centre, Main Ring Road, Raja Garden, New Delhi.
11. The plaintiff is directed to deposit the balance sale consideration by way of a pay order/demand draft in the name of Registrar General of this Court within two weeks from today. The defendant shall thereafter execute the requisite document in favour of the plaintiff within tour weeks of deposit of the balance sale consideration under intimation to it and shall hand over peaceful and vacant possession of the aforesaid commercial spaces to the plaintiff. If the defendant does not con1ply with the order within the tune stipulated above, the plaintiff shall be entitled to apply to the court for appointment of a Local Commissioner to execute the docun1ents on behalf of the defendant and for delive1y of possession of commercial space No. F-39 and F-40 on the first Floor of the Paradise Mall, Plot No. 23, Shivaji Place, District Centre, Main Ring Road, Raja Garden, New Delhi to him. The plaintiff shall also be entitled to costs of the suits.
Decree sheet be drawn accordingly.
15. It is not in dispute that, on the date when the impugned judgment was passed by the learned ADJ as the executing court, the shops which were earlier F-39 and F-40 were no longer bearing the said numbers. It is also not in dispute that the shop numbers F-2 and F-3 which were situated at the locations at which shop numbers F-39 and F-40 were earlier situated, were larger in area as compared to the earlier shop numbers F-39 and F-40.
16. The appellant had, in these circumstances, pointed out that, as the total area which was decreed in favour of the respondent corresponded to only one of the two shops in respect of which the decree was passed, the respondent could take possession of either one of the two shops as per its choice. The respondent, however, insisted that on being granted possession of both the shops. The respondents plea has been accepted by the learned ADJ in the impugned order.
17. It falls for consideration as to whether the learned ADJ could at all have passed such an order especially when the judgment dated 17 October 2012 was not only shop number but also shop area specific. It is also not in dispute that the agreement to sell, of which specific performance was directed by this Court by the judgment dated 17 October 2012, was also not merely shop number, but also shop area specific.
18. Mr. Manav Gupta submits that the learned executing court has seriously exceeded its jurisdiction in directing handing over of possession of shops number F-2 and F-3 to the respondent.
19. It is further submitted that, in fact, the total area of shop number F-2 and F-3 would be nearly double the area which was decreed in favour of the respondent by this Court on 17 October 2012.
20. Mr. Arun Arora, learned Counsel for the respondent seeks some time to examine this issue.
21. Re-notify on 3 May 2024 for disposal.
C. HARI SHANKAR, J.
APRIL 26, 2024
dsn
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EX.F.A. 51/2023 & EX.F.A. 52/2023 Page 2 of 2