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SCA/5089/2010 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5089 of 2010
With
SPECIAL
CIVIL APPLICATION No. 4738 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
SHAMIMBEN
MOHMMADHUSSAIN GADA D/O HANIFABEN BHIKHUBHAI & 3 - Petitioner(s)
Versus
NOORMOHMMAD
BHIKHUBHAI SHAIKH & 7 - Respondent(s)
=================================================
Appearance
:
Mr.SANJANWALA
WITH Mr.Dilip Kanojiya for Petitioner(s) : 1, 1.2.1, 1.2.2,
1.2.3,1.2.4 - 2, 2.2.1, 2.2.2, 2.2.3,2.2.4 - 3, 3.2.1, 3.2.2, 3.2.3,
3.2.4, 3.2.5, 3.2.6, 3.2.7,3.2.8 - 4, 4.2.1, 4.2.2, 4.2.3, 4.2.4,
4.2.5,4.2.6
None for Respondent(s) : 1 - 2, 2.2.1, 2.2.2,
2.2.3,2.2.4 - 4, 4.2.1, 4.2.2,4.2.3 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4,
6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.9, 6.2.10, 6.2.11, 6.3.1, 6.3.2,
6.3.3,6.3.4 - 7.
- for Respondent(s) : 0.0.0
- for
Respondent(s) : 0.0.0
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 05/05/2010
COMMON
ORAL JUDGMENT
Present
petitioners no.1/1 to 1/4 : original plaintiffs no.1/1 to 1/4;
Nos.2/1 to 2/4 : Original defendants no.9/1 to 9/4; Nos.3/1 to 3/8 :
original defendants no.10/1 to 10/8; and Nos.4/1 to 4/6 : original
defendants no.14/1, 14/2, 14/5 ti 14/8, are before this Court being
aggrieved by an order passed below Exhibits 711, 712, 719, 720 in
Civil Suit No.4149 of 1978 by the City Civil Court No.21, Ahmedabad
by order dated 17th March 2010; and also by order dated
23rd March 2010 passed below exhibit 788 in Civil Suit
No.4149 of 1978 by the same learned Judge. The petition was then
amended as permitted by the court by order dated 26.04.2010 praying
that order dated 12.04.2010 passed below exh.793 and 794; order dated
13.04.2010 passed below exh.795; order dated 13.04.2010 passed below
applications-exh.797 and 798 by the learned Judge, City Civil Court
No.22, Ahmedabad in Civil Suit No.4149 of 1978 be quashed ans set
aside.
2. Heard
learned advocate Mr.Sanjanwala for the petitioners and Mr.Gandhi for
the respondent-auction purchaser.
At
this juncture, learned advocate Mr.Sanjanwala submitted that the
single petition is filed challenging the orders passed qua Ahmedabad
property as well as Bombay property. As purchasers of Bombay
property are not before this Court he may be permitted to withdraw
the petition qua Bombay property with a liberty to file a fresh
petition qua Bombay property. Taking into consideration the fact
that the suit was filed for partition of the family properties and
Bombay property is sought to be sold for an amount of Rs.54 lacs
though the next lower bidder of Rs.52 lacs has shown his willingness
to raise the bid to Rs.62 lacs, the court has confirmed the bid at
Rs.56 lacs. The learned advocate for the petitioners submitted that
the petitioners have sentimental attachment with the property, it
being the family property and they will see to it that they purchase
that property for Rs.62 lacs. The learned advocate submitted that if
that is permitted the petitioners and other respondents-family
members will be benefited because, in that case instead of Rs.56
lacks, Rs.62 lacs will be coming to the common pool and in addition
to that the petitioners will be able to retain their family property.
At this stage, the Court restrains itself from expressing any
opinion on the aforesaid facts and permits the learned advocate for
the petitioner to withdraw these petitions qua the Bombay property
with a liberty to file a fresh petition for Bombay property.
3. So
far as Ahmedabad property is concerned, learned advocate
Mr.Sanjanwala submitted that the learned Judge without there being
any valuation report on the record, fixed upset price for Ahmedabad
property at Rs.5,00,00,000/- and bids were invited. A bid was
received for Rs.6,50,00,000/-. Learned advocate Mr.Sanjanwala
objected to the said being accepted and the property being sold for a
sum of Rs.6,50,00,000/-. He submitted that as per the information
available with him the property is valued at Rs.14,00,00,000/-, if it
is without tenants. But even if there are tenants, it is valued at
Rs.10,99,52,000/- and odd. In light of the fact that the learned
Judge fixed upset price without there being any valuation report
before him order/s is/ are required to be quashed and set aside.
4. Rule.
Mr.Gandhi, learned advocate appearing for the main affected party
and the main contesting party waives service of rule. At the request
of Mr.Sanjanwala and with the consent of Mr.Gandhi, learned advocates
for the parties, the matter is taken up for final disposal. The
court below could not have proceeded with fixing up of upset price in
absence of any valuation report with it. Orders are required to be
quashed and they are accordingly quashed and set aside. At this
juncture, it is deemed fit that the petitioners should be saddled
with the expenses incurred out of the common pool for the purpose of
past advertisement and also for the fresh valuation report, if any
required by the court and for fresh advertisement which will be
required to be issued after fixing upset price on the basis of the
valuation report which may be accepted by the court below.
5. Learned
advocate Mr.Sanjanwala requested that the petitioners be permitted to
submit valuation report which is already submitted before this Court.
The request is granted. It will be open for the petitioners to
submit the same valuation report before the court below which is
placed on record here. But then, it is clarified that in the event
the Court feels that a fresh valuation report is required, as in this
valuation report it is mentioned that for having more scientific
valuation certain more documents are required, it will be open for
the court below to undertake that exercise and in the event the court
decides to undertake that exercise the petitioners will have to bear
the expenses for the same.
6. Learned
advocate Mr.Gandhi submitted that expenses of Rs.83,000/- were
incurred for advertising the sale of the property at the first
instance and later on an amount of Rs.57,000/- was spent for issuing
another advertisement, the total of which comes to Rs.1,40,000/-.
The present petitioners are directed to deposit 50% of this amount as
their share with the court below, which will go to the common pool.
So far as new advertisement is concerned, the expenses for the same
will be borne by the petitioners.
7. This
brings the Court to issue directions with regard to the aforesaid
exercise in a time frame, namely:
The
Court below is directed to undertake the exercise of fixing
valuation of the property either with the help of present valuation
report or with the help of fresh valuation report within four weeks
from today.
Once
valuation is fixed, upset price be fixed within next one week.
Advertisement
be issued within two weeks thereafter.
Then to
proceed further and complete the entire exercise within eight weeks.
At
the request of the learned advocate Mr.Gandhi, it is clarified that
it will be open for the present bidder to bid in response to the new
advertisement. In the event they bid in response to new
advertisement an amount of Rs.6 lacs which they have deposited will
be adjusted against the amount required to be deposited under the
fresh advertisement. In the event, in response to the fresh
advertisement, if no higher bid than Rs.6,50,00,000/- is received
their offer will be considered in accordance with law. The petition
is allowed in the aforesaid terms. Rule is made absolute to the
aforesaid extent.
(RAVI
R. TRIPATHI, J.)
karim
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