$~10 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment:15.12.2017 + RFA1782014, Review Petition 305/2017 & CM No.27475/2017 (condonation of delay of 654 days in filing review petition) & CM No.27473/2017 (stay of operation of order dated 30.07.2015) SH. JYOTI SWARUP ..... Appellant Through: Mr. V.V. Manoharan, Advocate versus SH. CHANDER GUPTA & ORS ........ RESPONDENTS
Through: Mr. Manuj Aggarwal, Advocate for R-1. CORAM: HON'BLE MR. JUSTICE VINOD GOEL VINOD GOEL, J.
(ORAL) 1. The petitioner seeks condonation of delay of 654 days in filing the review petition to review the order of this court dated 30.07.2015 passed in RFA No.178/2014.
2. Learned counsel for the petitioner submits that at the time of adjudication of the execution petition pending before the court of learned ADJ-1 (South West) Dwarka Courts, New Delhi, the petitioner came to know that the impugned order dated RFA1782014 Page 1 of 6 30.07.2015 is unenforceable as the respondents have been unable to produce a clear title in respect of the suit property and the relinquishment deed cannot be executed by them. He submits that the petitioner has immediately filed the review petition on becoming aware of the said fact and informed the execution court of his intention to file the present review petition. On these grounds, the petitioner seeks review of the impugned order dated 30.07.2015.
3. Reply to application has been filed contesting the contents and seeking its dismissal.
4. I have heard the learned counsel for the parties. Record reveal that the predecessor of the parties Smt. Darshna Devi was the owner of the property in question i.e. RZ2, Mohan Nagar, Pankha Road, New Delhi total measuring 198 square yards (123 square yards + 75 square yards). The plaintiff Chander Gupta had filed a suit No.1573/2003 for partition and permanent injunction in respect of said property against his three brothers and two sisters titled as Chander Gupta Vs. Jyoti Swarup & others. The petitioner Jyoti Swarup (defendant No.1) had inter alia taken an objection in his written statement that one Jai Narain was the owner of the said property No.RZ2, Mohan Nagar, Pankha Road, New Delhi measuring 123 square yards, who had mortgaged the said property with him against loan of Rs.4,000/- in the year 1975 and since Jai Narain had failed to RFA1782014 Page 2 of 6 pay the loan amount and he is the owner of the said property. He pleaded that one Tek Chand was the owner of the remaining part of the said property measuring 75 square yards and he had mortgaged this property with him against a loan of Rs.2,000/- in the month of September, 1976 and since Tek Chand had failed to pay the loan amount, now the said property belongs to him. He pleaded that the plaintiff-Chander Gupta and other defendants have no right, title and interest therein.
5. The learned ADJ-1, (South West), Dwarka referred the matter to Mediation Centre, Dwarka where before the learned Mediator, the parties had amicably resolved and settled all their disputes on 06.03.2014 and the settlement agreement was reduced to writing.
6. The learned ADJ-1(South West) Dwarka had recorded the statements of the parties on 12.03.2014. The petitioner/defendant No.1 had admitted his signature at point E, E1 & E2 on the mediation settlement (Ex.PA) but disputed the proceedings of the mediation and submitted that he is not ready to abide by the terms and conditions. Similar statement was made by defendant No.2 Rajender Prasad, though he had admitted his signature at point F , F1 and F2 on the meditation settlement (Ex.PA). The plaintiff and other defendants had confirmed the mediation settlement before learned ADJ-1, (South West), Dwarka, NewDelhi. The learned ADJ disposed of RFA1782014 Page 3 of 6 the suit in terms of the mediation settlement on 12.03.2014 and made the mediation settlement Ex.PA as part of the decree.
7. As per the terms and condition No.2 of the mediation settlement Ex.PA it was agreed that the plaintiff and defendants No.3 to 5 shall not claim any share, interest & rights in the said property No.RZ-2, Mohan Nagar, Pankha Road, New Delhi measuring 198 square yards. However, the defendants No.1 to 3 shall pay a total sum of Rs.36 lacs (Rs.12 lacs each to the plaintiff). It was also agreed that the plaintiff and defendants No.3 to 5 shall relinquish their shares, interest and rights in the said property measuring 198 square yards in favour of defendants No.1 and 2 equally in favour of defendants No.1 and 2.
8. Against the said judgment and decree dated 12.03.2014 passed by the learned ADJ-1 (South West), Dwarka on the basis of the mediation settlement Ex.PA, the RFA No.178/2014 was filed by the petitioner (defendant No.1) wherein condition No.3 of Ex.PA was modified with the consent of the parties and it was agreed that defendants No.1 to 3 shall pay a total sum of Rs.30 lacs (Rs.10 lacs each) to the plaintiff in one single slot on or before 31.10.2015.
9. Admittedly, one of the defendant-Mahender Kumar had already paid Rs.10 lacs of his share to plaintiff Chander Gupta. Admittedly, the petitioner (defendant No.1) and defendant No.2 Rajinder Prasad are in occupation of the said property. It RFA1782014 Page 4 of 6 appears that they want to avoid or prolong the due payment to the plaintiff-Chander Gupta, and the defendant No.1 (petitioner) and defendant No.2 want to remain in occupation of the said property without making the settlement amount to the plaintiff Chander Gupta.
10. Learned counsel for the petitioner argued that Jai Narain and Tek Chand were the owners of the said property and that the plaintiff and defendants No.3 to 5 have no right, title in their favour to execute the Relinquishment Deed and order passed by this Court dated 13.07.2015 is inexecutable. He argued that even the mother of the parties Smt.Darshana Devi had no right, title or interest in the property.
11. These defences were already taken by the petitioner/defendant No.1 in his written statement and despite this he had consciously amicably resolved and settled the matter with the plaintiff and co-defendants before the learned Mediator on 06.03.2014. However, when defendant No.2 appeared before the court of ADJ-1 (South West), Dwarka they disputed the contents of the settlement though, they admitted their signatures. However, in the appeal with their consent, condition No.3 of the mediation settlement dated 06.03.2014 was modified and the amount was reduced from Rs.36 lacs to Rs.30 lacs which was payable by defendants No.1 to 3 equally (Rs.10 lacs each). RFA1782014 Page 5 of 6 12. In the circumstances, now the petitioner (defendant no.1) is estopped from saying that there was no title in favour of plaintiff and defendants No.3 to 5 to execute the relinquishment deed. The petitioner had not filed any document of title either in favour of Tek Chand or Jai Narain who are claimed to be the alleged mortgagor of the said property. He has also not filed any alleged mortgage deed on the record. Learned counsel for the petitioner submitted that these were oral mortgees. Under Section 59 of the Transfer of Property Act, 1882 if a mortgage of an immovable property is created for a value of the property more than Rs.100/- it requires compulsory registration. No justifiable ground is made out for condonation of delay of 654 days in filing the review petition. Even otherwise, on merits, there is no error apparent on the face of the record. Looked from any angle, neither there is any justification in application for condonation of delay nor any merit in review petition.
13. As such CM No.27475/2017 and CM No.27473/2017 and review petition are dismissed with costs Rs.25,000/- payable to the plaintiff Chander Gupta. DECEMBER15 2017 “sandeep” (VINOD GOEL) JUDGE RFA1782014 Page 6 of 6