Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 75/2017
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% Date of decision : 17 August, 2017
NARENDER JAIN ..... Appellant
Through : Mr. Lalit Gupta, Adv.
versus
ANIS AHMED RUSHDIE (SINCE DECEASED THR LRS) & ORS
..... Respondents
Through : Mr. B.B. Gupta, Sr. Adv. with
Mr. Sanjay Sharma, Adv. for
R-1
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
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1. This appeal assails the order dated 8 February, 2017 passed by
the learned Single Judge in IA No.1707/2017 in CS(OS)No. 994/2017
whereby an application under Section 151 of the Code of Civil
Procedure, 1908 made by the plaintiff seeking a direction to the
Registry of this court to effect service of notice of the pendency of the
proceedings to defendant nos. 1A to 1D and seeking compliance of
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orders dated 3 April, 2013; 2 August, 2013 and 7 October, 2013
was dismissed. The order is reasoned and fairly detailed.
FAO(OS) 75/2017 Page 1 of 4
2. The suit being CS(OS)No. 994/1977 which stood filed in the
year 1977, sought specific performance of an agreement to sell dated
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22 December, 1970 of the immovable property bearing no. 4, Flag
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Staff Road, Civil Lines, Delhi-110054, was decreed on 5 October,
1983. This decree was finally upheld by the Supreme Court of India
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by the judgment dated 3 December, 2012 in Civil Appeal No.
8653/2012 directing the execution of the sale deed by the defendants
in favour of the plaintiff at the prevalent market price of the property.
The position is that the matter is pending on the original side only for
determination of the market value ever since, as directed by the
Supreme Court.
3. We also note the objection with regard to maintainability of the
appeal.
4. The impugned order notes the various efforts made by the
appellant to prevent compliance with the orders of the Supreme Court
and delaying determination of the market price. In view thereof, when
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the appeal was listed before us on 18 May, 2017, we had called upon
learned Senior Counsel for the appellant to apprise this court of the
market value of the property. This was not done. We had also put it
to learned counsel for the appellant that the appellant ought to deposit
at least the tentative amount towards the amount which, according to
him, would be payable in terms of the judgment of the Supreme Court.
On a submission made on behalf of the appellant, it was noted that as
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per the general power of attorney dated 4 November, 2010, the
valuation on that date was to the tune of Rs.12.60 crores.
FAO(OS) 75/2017 Page 2 of 4
5. It was pointed out on behalf of the respondent no.1 that in terms
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of the Circle Rate of properties as on 3 December, 2012, the
valuation by the Sub-Divisional Magistrate, as filed shows that the
property was valued at Rs.51.51 crores.
6. Therefore, as an interim direction and in order to test the
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bonafides of the appellant, on 23 May, 2017, we had directed that the
appellant ought to deposit a sum of Rs.15 crores in the Registry of this
court. On specific request of the appellant to comply with this
direction, time of eight weeks, as sought, was granted. The
appellant’s application for modification of the order being CM No.
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27971/2017 was rejected on 4 August, 2017.
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The order dated 23 May, 2017 has not been complied with till
date. No deposit stands effected.
7. Today, after some arguments, learned counsel prays for leave to
withdraw this appeal. Given the time which has been spent on this
appeal and the manner in which the matter has been proceeded, we are
of the view that though we cannot reject the prayer for withdrawal of
the appeal however, the respondent who has been represented by
Senior Counsels even, must be burdened with costs.
8. In view of the above, the appeal is dismissed as withdrawn
subject to payment of costs of Rs.20,000/- which shall be deposited
with the Delhi High Court Legal Services Committee within a period
of three weeks from today.
Proof of deposit of costs shall be filed before the learned Single
Judge.
FAO(OS) 75/2017 Page 3 of 4
9. So far as the non-compliance with the direction to deposit the
amount is concerned, it shall be open for the parties to place the same
before the learned Single Judge who may consider the implications
thereof in accordance with law.
10. We make it clear that in the present appeal, we have not
expressed any opinion so far as the valuation or the market value of
the subject property is concerned.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
AUGUST 17, 2017/ kr
FAO(OS) 75/2017 Page 4 of 4