SUBHASH ARORA vs KALVINDER SINGH SANDHU & ORS

$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 06.09.2024

+ EX.P. 54/2017
SUBHASH ARORA …..Decree Holder
Through: Ms.Damini Chawla, Adv.

versus

KALVINDER SINGH SANDHU & ORS ….Judgement Debtors
Through: Mr.Anand Varma, Ms.Adyasha Nanda, Advs.for JD-1.
Mr.V.D’Costa, Adv. for Trustee of JD.
Mr.Girdhar Govind and Mr.Noor Alam, Advs. for applicant.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

EX.APPL.(OS) 1201/2024
1. This application has been filed by the applicant, M/s. Wimpy International Limited, under Order XXI Rules 97 to 103 of the Code of Civil Procedure, 1908, praying for the following reliefs:
“i) Allow this application;
ii) Protect the right, title, interest, occupation of the applicant in the suit property bearing No.B-8A, Kailash Colony, New Delhi;
iii) set aside the decree dated 26.09.2016 passed on the basis of Agreement to sell dated 20.07.2010 between the Decree-holder and Judgment-debtor, as the said decree is not binding on the applicant.”

2. In the application, the applicant states that it is the owner of the property bearing No. B-8/A, Kailash Colony, New Delhi, which is the property in question in the present execution. The applicant, states that the subject property is in the physical possession of Dr.Sukhvender Kaur, one of the Directors of the applicant.
3. The applicant further states that one Mr.Kewal Singh Sandhu and Mr.Kalvinder Singh Sandhu had filed a suit, being CS(OS) 1990/2000 titled Kewal Singh Sandhu & Anr. v. Kanwaljit Singh Sidhu & Anr., against Mr.Kanwaljit Singh Sidhu and the applicant, for ejectment from the immovable property and for recovery of rent/licence fee and for future mesne profits for its use and occupation. In the said suit, a written statement was filed by the applicant herein inter alia contending therein that the plaintiffs therein are neither the owners nor the landlords of the suit premises and as such, have no right, title or interest in the property. It was stated that Mr.Kanwaljit Singh Sidhu was the owner of the property in question. Issues in the said Suit were framed on 07.02.2006 inter alia on whether the defendant no.1 therein is the owner of the suit property and has a right, title and interest in the suit property. A Local Commissioner was also appointed to confirm that the possession of the ground floor of the property is with the applicant herein. The applicant submits that, however, the plaintiff in the said suit filed an application to withdraw the said suit and thereafter, entered into an Agreement to Sell with one Mr.Subhash Arora, the decree holder herein.
4. The applicant asserts that the applicant, on coming to know of the suit, that is, CS (OS) 734/2011, wherein the decree in question has been passed, filed an application seeking impleadment. The said application was dismissed by the Court vide its Order dated 04.08.2015, inter alia observing as under:
“4. The applicant by this application seeks that since the applicant M/s. Wimpy International Limited is in possession of the suit property and its rights are liable to be affected by the decree of the suit, the applicant must be added as a party.
5. I may note that in the application, no facts are stated as to how the title in the suit property would vests in favour of the applicant.
6. At this stage, learned senior counsel for the applicant Mr. Rajeeve Mehra states that the application can be disposed of, if this court observes that whatever right the applicant has, can always be protected in terms of Order 21 Rule 97 to 103 CPC or in case the applicant so chooses to file appropriate proceedings to establish its rights in the suit property in such proceedings. This being the position in law, the same is not disputed on behalf of plaintiff, and therefore, this application is disposed of as not pressed, by observing that if M/s.Wimpy International Limited has any rights in the property, either the provisions of Order 21 Rules 97 to 103 CPC will apply or the applicant can always get its right established in the property by filing appropriate legal proceedings.”

5. The applicant further asserts that on strength of a registered Will of Mr. Nauhria Ram, the property in question was sold by Mrs. Sushilawati Devi jointly in favour of Mr.Kewal Singh Sandhu and Mr.Kalvinder Singh Sandhu. Mr.Kanwaljit Singh Sidhu had a very close friendly association with Mr.Kewal Singh Sandhu, and as per an understanding between the two of them, it was agreed that the property in question would be used/owned and possessed by Mr.Kanwaljit Singh Sidhu, and in return of the same, as and when a restaurant business would be floated by Mr.Kanwaljit Singh Sidhu, the shares of the same would be issued to Mr.Kewal Singh Sandhu. It is stated that since 1986, Mr.Kanwaljit Singh Sidhu, the husband of Dr. Sukhvender Kaur, started residing there, and has been in possession of the property in question.
6. Certain assertions with respect to a Company-M/s Goodwill Foods Pvt. Ltd and the relationship between Mr.Kewal Singh Sandhu and Mr.Kanwaljit Singh Sidhu have also been made in the present application. The name of the said company was later changed to M/s Wimpy International Ltd.
7. To put it briefly, the applicant is stating that it is in possession of the subject property and Dr.Sukhvender Kaur, its Director, is occupying the subject property. There is also a reference to other litigations between Mr.Kewal Singh Sandhu and Mr. Kanwaljit Singh Sidhu, however, one thing which is missing in the entire application is proof of the claim of ownership by the applicant of the subject property. At best, the applicant claims itself to be in possession of the subject property.
8. The learned counsels for the decree holder and the judgement debtors submit that by a detailed Judgment dated 20.03.2024, this Court while dismissing the application filed by the Trustee, Mr. Michael T. Leeds, being Ex.Appl.42/2019, has further disposed of the execution petition based on the Settlement dated 09.01.2019 arrived at between the parties, and observed as under:
“41. The application of the Intervener under Order I Rule 10, CPC has already been dismissed. Furthermore, the present Execution Petition was in respect of a Decree for Specific Performance of Contract dated 26.09.2016, in respect of an Agreement To Sell entered into between the parties on 20.07.2010. The parties have validly entered into an Mediation Settlement and reduced the sale consideration to Rs.7,60,00,000/- for which the explanation given is that the Judgment Debtor is unable to evict the trespasser who is occupying the premises and has been constraint to reduce
the consideration amount.
42. The present Execution pertains to execution of the Agreement to Sell dated 20.07.2010 between the parties which has now been settled by them. There is no merit in the objection taken on behalf of the Intervener to stall or to keep this Execution pending. There is no plea that mediation settlement is entered due to any pressure or coercion. The Sale Deed already stands executed. Nothing more survives in the present Execution Petition, which is hereby disposed of in terms of the Mediation Settlement dated 09.01.2019.”

9. The Judgement dated 20.03.2024 was later corrected by the Order dated 02.05.2024, which reads as under:
“1. An application has been filed on behalf of the Decree Holder for correction in the Order dated 20.03.2024.
2. It is submitted that in paragraph No.42 it has been recorded that the Sale Deed already stands executed, though, in fact it is yet to be executed as mentioned in the Settlement Agreement.
3. The Judgment Debtor has no objection if the correction is made in the Order dated 20.03.2024.
4. The paragraph 42 may therefore be read that “The Sale Deed has not been executed and shall be executed”.”

10. The learned counsel for the decree holder submits that the sale consideration had been reduced in the Settlement dated 09.01.2019 only because of the fact that the property in question was not in possession of the judgement debtors, which he claims was in the possession of the trespassers. She further submits that for seeking possession, in any case, the decree holder would have to take the appropriate remedy in accordance with law, and therefore, for that reason, the Judgment dated 26.09.2016 read with Order dated 17.10.2016 passed by this Court in CS(OS) 734/2011 cannot be recalled, and/or the present execution petition cannot be stalled. The learned counsel for the decree holder, while denying the above submissions of the applicant, submits that a valid Decree has been passed and that the applicant is merely a trespasser in the subject property.
11. I find merit in the submissions made by the learned counsel for the decree holder. As is noted hereinabove, the applicant has not produced any document showing title to the the subject property. The applicant merely submits that it is in possession of the subject property, which it claims under some settlement between Mr.Kanwaljit Singh Sidhu and Mr.Kewal Singh Sandhu, by which Mr.Kewal Singh Sandhu had handed over the possession of the subject property to Mr.Kanwaljit Singh Sidhu, the husband of the Director of the applicant. The application has neither been filed by Dr.Sukhvender Kaur and nor by Mr.Kanwaljit Singh Sidhu. As far as the possession of the property is concerned, in case the decree holder seeks the same, it shall have to take appropriate legal remedies for the same. However, for that reason alone, the decree cannot be recalled in the present application filed by the applicant.
12. I, therefore, find no merit in the present application. The same is accordingly dismissed.

NAVIN CHAWLA, J
SEPTEMBER 6, 2024/Arya/SJ
Click here to check corrigendum, if any

EX.P. 54/2017 Page 7 of 7