{"id":84611,"date":"2002-10-04T00:00:00","date_gmt":"2002-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-kamal-chugh-and-ors-vs-mr-narinder-kumar-gulati-and-ors-on-4-october-2002-2"},"modified":"2015-05-11T04:22:32","modified_gmt":"2015-05-10T22:52:32","slug":"mr-kamal-chugh-and-ors-vs-mr-narinder-kumar-gulati-and-ors-on-4-october-2002-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-kamal-chugh-and-ors-vs-mr-narinder-kumar-gulati-and-ors-on-4-october-2002-2","title":{"rendered":"Mr. Kamal Chugh And Ors. vs Mr. Narinder Kumar Gulati And Ors. on 4 October, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Mr. Kamal Chugh And Ors. vs Mr. Narinder Kumar Gulati And Ors. on 4 October, 2002<\/div>\n
Equivalent citations: AIR 2003 Delhi 219<\/div>\n
Author: S Mukerjee<\/div>\n
Bench: S Mukerjee<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S. Mukerjee, J.  <\/p>\n
 IA 6716\/2002  <\/p>\n
 1. There are two separate aspects arising for
\nconsideration. The first is regarding the ex parte stay,
\nwhile the second aspect is in relation to the continuance
\nof the ad-interim stay order already granted, or whether
\nany interim order at all is warranted and if so, to what
\nextent and of what nature.\n<\/p>\n
 VALIDITY OF THE EX PARTE INJUNCTION GRANTED IN favor OF
\nTHE PLAINTIFF PLAINTIFF.\n<\/p>\n
 2. An interesting question has arisen as to whether
\nin a suit, where there is a Caveator upon whom copies
\nare served but for some reason caveator’s counsel does
\nnot appear and ex-parte, ad-interim injunction is
\ngranted, then whether the compliance with Order 39 Rule
\n3 CPC is still to be carried out or not.\n<\/p>\n
 3. The submission of learned counsel for the
\ndefendant is that in this case neither process fee was
\nfiled nor dusty summons or dusty orders were got
\ncollected, and no affidavit at all has been filed, even
\nthough a one page letter of intimation about the stay
\norder, had been received by the defendant.\n<\/p>\n
 4. The contention of the plaintiff on the other
\nhand, is that once there is a Caveator which has been
\nserved with the papers and the name of the Caveator’s is
\nshown in the list, thereafter only letter of intimation
\nis required and there is no necessity to send the
\ncomplete set of papers all over again or to file an
\naffidavit. In this case it is the admitted position that
\ndesignated advocate of the Caveator had been served with
\nthe complete set of papers prior to the matter being
\nlisted in the Court.\n<\/p>\n
 5. Learned counsel for the defendant has in support
\nof the stand relied upon the judgment of the Supreme
\nCourt reported as   A. Venkatasubbiah Naidu v. S.
\nChellappan and Ors.<\/a> ;  and the judgment of
\nthis Court reported as  Interling Services Pvt. Ltd.
\nv. Sh. S.P. Bangera;   .\n<\/p>\n
 6. To my mind, wherever there is a Caveator who has
\nbeen served with a complete set of papers in advance of
\nthe case being listed in the Court, and the name of the
\nCaveator’s shown in the cause list, there can be no
\nnecessity for compliance with Order 39 Rule 3 of the Code
\nof Civil Procedure. The reason is simple. Once there is
\na Caveator who has filed a Caveat, and the compliance of
\nthe caveat has been done that party (Caveator) is before
\nthe Court and the ad-interim order being passed is not an
\norder of ex-parte nature, or an order at pre-notice
\nstage. As such the provisions of Order 39 Rule 3 CPC
\nwould not be attracted at all.\n<\/p>\n
 7. Once caveator has been served with the complete
\nset of papers, thereafter it is not within the control of
\nthe plaintiff as to when exactly the case will be listed.
\nThe Registry of the Court may raise one or more
\nobjections or for any other reason the matter may be
\nlisted after a gap of a few days. However as soon as the
\nname of the defendant\/Caveator’s counsel is shown in the
\nlist, that it itself intimation of all practicing
\nAdvocates, about the case being taken up on the date of
\nlisting, and as such the order passed is not an order
\npassed ex-parte or at pre-notice stage.\n<\/p>\n
 8. In the letter which admittedly was sent by
\nlearned counsel for the plaintiffs and was admittedly
\nalso received by the defendants, the complete details of
\nthe Suit No. the date of listing and the orders passed
\nhave been communicated by the learned counsel for the
\nplaintiffs. He has also conveyed that the complete set
\nof documents stands already served earliest in terms of
\nthe caveat. To my mind, the main purpose of such an
\nintimation is to ensure that the defendant come to know
\nabout the injunction against him at the earliest, and
\ndoes not have to wait for the Court summons\/service of
\norders in routine course through the Process Serving
\nAgency etc. which may take a longer time. Once the
\nintimation has admittedly been received, atleast in the
\ncase of the Caveator, there can be no question of the
\nsaid party claiming the vacation of stay on that count.\n<\/p>\n
 9. The matter may be considered from another angle
\nalso.\n<\/p>\n
 10. The rigour of Order 39 Rule 3 CPC is not to be
\nheld against the plaintiffs in such cases of Caveator on
\naccount of defendant having been duly served, and the
\ndefendant’s counsel name having been duly recorded in the
\nofficial list of business of the High Court.\n<\/p>\n
 11. After the order was reserved, learned counsel for
\ndefendant cited  but that judgment is on
\nthe point that once Court directs notice by Court order,
\nthen compliance thereof is to be by actual notice and not
\nby deemed service since Caveator’s name is shown in the
\nlist.\n<\/p>\n
 12. In view of the above there is no merit of the
\nsubmission of the learned counsel for the defendants that
\non account of non-service of another complete set of
\npleadings and documents and\/or on account of non-filing
\nof affidavit, the injunction granted is liable to be
\nvacated on that short ground alone.\n<\/p>\n
  AD INTERIM INJUNCTION TILL THE DISPOSAL OF THE SUIT
\nWHETHER WARRANTED AND IF SO THE NATURE AND EXTENT THEREOF     <\/p>\n
 13. The facts of this case, to the extent admitted by
\nboth parties, may briefly be capsulated. Vide agreement
\nto sell dated 19.1.1993 executed between one Ms.
\nPromilla Kapoor and the plaintiffs 1 & 2, the said
\nplaintiffs 1 & 2 agreed to purchase the entire property
\nbearing No. N-79, Panchsheel Park, New Delhi-110017, for
\ntotal consideration of Rs. 1.20 Crores. Proceedings for
\nIncome-tax clearance had also been taken in relation to
\nthis transaction between Ms. Kapoor and the plaintiffs.\n<\/p>\n
 14. After the plaintiffs came into possession of the
\nproperty, they in turn agreed to sell to defendants 1 & 2
\nthe first floor of the property to be re-built, at Rs. 65
\nLacs, vide agreement to sell dated 29.10.1993.\n<\/p>\n
 15. On 26.8.1994 Income-tax permission was obtained
\nin relation to the transaction between the plaintiffs and
\nthe defendants.\n<\/p>\n
 16. The possession of the first floor was also handed
\nover to defendants 1 & 2 on 24.8.1995.\n<\/p>\n
 17. A power of Attorney was thereafter executed by
\nplaintiff No. 3, in favor of Defendant No. 3, on
\n20-5-1997.\n<\/p>\n
 18. It is customary in such transactions where
\npayment has been made and possession of property has been
\ntransferred pursuant to agreement to sell, that one of
\nthe family members of the purchaser is given a Power of
\nAttorney so that the seller’s presence may not be
\nnecessary at the time of registration of the sale deed.\n<\/p>\n
 19. On 7.6.2002, a sale deed was executed by Ms.
\npromilla Kapoor in favor of the plaintiffs for the
\nentire property, after the said property had been
\nconverted to free-hold, vide document dated 4.4.2000.\n<\/p>\n
 20. In the intervening period, after the property had
\nbeen converted to free-hold and before the sale deed of
\nthe entire property took place between Ms. Promilla
\nKapoor and the plaintiffs, the defendants 1 & 2, it
\nappears, by taking advantage of the Power of Attorney
\ndated 20.5.1997 which was already executed by plaintiff
\nNo. 3 in favor of Defendant No. 3, got a sale deed
\nexecuted between themselves, in which vendor, is shown to
\nbe the original owner Ms. Promilla Kapoor making the
\nsale through Shri Rohit Gulati (Defendant No. 3) acting as
\nthe subsequent attorney of the first attorney (Shri K.L.
\nChugh Plaintiff No. 3).\n<\/p>\n
 21. Thus a piquant situation has developed whereby
\nso-to-say the second stage purchaser of the first floor,
\nhas jumped over the head of his immediate seller (viz
\nPlaintiffs 1 & 2), and has rather got executed a sale
\ndeed in his (defendant’s) favor even before the sale
\ndeed in favor of the plaintiffs, by showing the
\ndefendant No. 3 who is the son of defendant No. 1 to be the
\nattorney through attorney of the original seller Ms.
\nPromilla Kapoor.\n<\/p>\n
 22. The said piquant situation has been further
\ncomplicated by the fact that while incorporating the
\nterms and conditions of the sale deed dated 18.10.2000,
\nthe defendants 1 & 2 have deviated\/departed from certain
\nterms and conditions of the agreement to sell between the
\nplaintiffs and the defendants, including in particular
\nwith reference to a premption clause, agreed to between
\nthe parties, and duly embodied in their agreed to sell
\ndated 26.10.1990.\n<\/p>\n
 23. Other grievances in relation to the said sale
\ndeed in favor of defendants No. 1 & 2, are that (a) the
\nproportionate land share has been enlarged and (b) the
\nshare of 1\/3rd of free-hold conversion charges and
\ncharges for the total property, have been given the
\ngo-bye. Certain other covenants, including purely
\nresidential user have been allegedly dropped.\n<\/p>\n
 24. Above all the plaintiffs are aggrieved of what
\nthey describe to be a totally fraudulent exercise of the
\ndefendants using the Income-tax Clearance Certificate
\npertaining to transaction between Ms. Promilla Kapoor
\nand the plaintiffs, as if the same were an ITCC between
\nMs. Promilla Kapoor and themselves.\n<\/p>\n
 25. There are certain other elaborations of the
\naspect of false or the fraudulent ITCC user as also
\napprehensions of the plaintiffs that the plaintiffs could
\nbe in difficulty of re-opening of it’s Income-tax
\nassessments etc., with which I do not propose to deal in
\ndetail lest the same operate to the prejudice of any one
\nof the parties, and in any case the niceties and further
\nextrapolation of this point need not be gone into by me
\nas I feel I should confine for interim purchases only to
\nthe aspect that it appears to be the admitted position
\nthat there was no ITCC directly between Ms. Promilla
\nKapoor and the defendants, and therefore the sale deed
\nexecuted on 18.10.2000 by defendant No. 3 acting as
\nAttorney through Attorney of Ms. Promilla Kapoor, is
\nunder a cloud to the extent.\n<\/p>\n
 26. The matter was heard at considerable length and
\nboth parties made their submissions from their own
\nrespective stand-points, and each claimed to be the
\nvictim of black-mail and arm-twisting activities of the
\nother.\n<\/p>\n
 27. The stand of the defendants primarily was that
\ndefendant has purchased the first floor and admittedly
\nhas paid the full price as agreed and as such there can
\nbe no doubt about the defendants entitlement to ownership
\nof the said first floor. According to learned Senior
\nCounsel for defendant the whole dispute boils down to
\nand revolves around the so-called right of pre-emption as
\ncontained in Clause 11 of the agreement to sell (but not
\nincorporated in the final impugned sale deed), which
\nclause defendants submits is to be held as void on
\naccount of uncertainty. The submission of defendants
\nsubmits is that the clause be held as void on account of
\nuncertainty of price or bases of computation thereof.
\nShri Valmiki Mehta, learned Senior Counsel for the
\ndefendants submits that such a pre-emption clause, at the
\nhighest, can amount to an agreement to sell the first
\nfloor back to the plaintiffs, which necessarily requires
\nconsensus ad-item. The most significant aspect is that
\neither there should be an agreed price, or a mechanism to
\nwork out the price, such as a stipulation to the effect
\nthat on repayment of price initialy paid by defendants
\nplus interest year by year at “X” %, the plaintiffs will
\nbe entitled to pre-emptively buy back the first floor.\n<\/p>\n
  28. The absence of any parameters governing
\ncomputation of price, according to him is fatal, and
\ntherefore the non-inclusion of that unenforceable clause
\nin the final sale deed, is immaterial and in
\nconsequential.\n<\/p>\n
 29. There further alternative contention of Shri
\nValmiki Mehta, learned Senior Counsel for the defendants
\nis that, in any case, the defendant has already carried
\nout substantial compliance of the “pre-emption clause”,
\nby sending a communication dated 3.10.1998 to the
\nplaintiffs, informing them that the defendants had a
\nbuyer for Rs. 1.60 Crores, to which plaintiffs No. 1 & 2
\nreplied back, that the offer is highly excessive and
\ncalled upon the defendants to furnish further
\nparticulars.\n<\/p>\n
 30. To my mind, on a prima-facie appreciation, this
\naspect of compliance with the pre-emption clause needs to
\nbe dealt with in the first instance. Either the clause
\ncontained in the agreement to sell (and which the
\nplaintiff contended should have been there in the
\nimpugned final sale deed), is either to be held as vague
\nand unenforceable or as violative of Sections 10 and 11
\nof the transfer of Property Act (in case we proceed upon
\nthe stand taken by the plaintiff), or would have to be
\nread down to imply merely the stipulation of an
\nopportunity being extended to the plaintiff to exercise
\nhis right of pre-emption, by being allowed to jump in at
\nthe last moment and to purchase the first floor at
\nwhatever consideration amount, which has been hard-bargained
\nbetween the defendant and some other third
\nparty.\n<\/p>\n
 31. It could have been understood if the response of
\nthe plaintiffs, had been to give a counter offer-cum-conditional
\nwaiver by responding that the  “rate quoted is
\ntoo high”, but we are prepared to purchase at say Rs. 1
\ncrore”. In case you have an offer above Rs. 1.0 crore
\nwhich would abide by the terms of the agreement to sell
\ndated 19.1.93, and not containing any terms undermining
\nor taking away the benefit of the terms of the said
\nagreement to sell dated 19.1.93, then we (plaintiffs)
\nwaive our right to pre-emption subject to sale being
\neffected in favor of a third party at the price of Rs.
\n1.60 crore or more” .\n<\/p>\n
 32.  It could have been added in response of the
\nplaintiff that “in case the sale is not concluded at the
\nvalue of Rs. 1.60 crore, then for any lesser value,
\nbelow that amount, further option will have to be
\nextended to us (plaintiffs) in accordance with the terms
\nand conditions of the agreement to sell dated 19.1.93.”\n<\/p>\n
 33. The response of the plaintiff not having been on
\nabove lines, those aspects of challenge no longer ensure
\nto the favor of the plaintiff whether we consider the
\nterms of Clause 11 of the agreement to sell dated 19.1.93
\nto be void and unenforceable under clause Sections 10 &
\n11 of the Transfer of Property Act or alternatively we
\nconsider the option of pre-emption as having been
\nsatisfied and exhausted by the communications dated
\n3.10.98 and 16.10.98 which are document Nos. 3 & 4 to the
\ndefendant’s documents as filed on record.\n<\/p>\n
 34. Coming back now to the main grievance of the
\nplaintiffs viz regarding the impugned action on the part
\nof the defendants No. 1 & 2 in getting a sale deed
\nexecuted in their favor, by their own son (defendant
\nNo. 3), and by procuring the creation of a sale deed
\ndocument having clauses materially different, and at
\nvariance with the agreement to sale dated 19.1.93, and
\nrather operating to the prejudice and undermining the
\nessential sub-stratum of some of the vital terms and
\nconditions of the said agreement to sell between the
\nparties.\n<\/p>\n
 35. The Learned Senior Counsel for this defendants
\nunderstandably kept the focus away from the admitted
\nposition before transaction was completed and once the
\npayment was made and possession delivered the defendants
\nthereafter completed the execution of document at the
\nlevel of their own family itself by the son (defendant
\nNo. 3) executing the sale deed in favor of the parents
\n(defendants 1 & 3).\n<\/p>\n
 36. No doubt the payment having been made by the
\ndefendants and possession was with them and on the moral
\nstand points the defendant did not commit any grave crime.
\nHe had paid money and was entitled to completed the paper
\nwork.\n<\/p>\n
 37. The Plaintiffs had also provided to the
\ndefendants convenient opportunity for carrying out this
\nbit of manipulation, by keeping the General Power of
\nAttorney in effect all through in favor of the defendant
\nNo. 3 who thereby became the attorney of the attorney in
\nrelation to original owner Ms. Pramila Kapoor.\n<\/p>\n
 38. It is the admitted position that the said Power
\nof Attorney in favor of defendant No. 3 had a provision
\nfor a further sale to be effected by the defendants in
\nfavor of some third party.\n<\/p>\n
 39. After the property was converted to free-hold,
\nand the transaction in favor of the plaintiffs became a
\ntransaction of valid and lawful transfer of the entire
\nproperty in there favor of the plaintiff it was then
\nappropriate and required on the part of the plaintiff to
\nhave immediately got the sale deed executed in their own
\nfavor, and then to have executed a sale deed in favor
\nof the defendant 1 & 2.\n<\/p>\n
 40. In case the defendants No. 1 and 2 were not
\ncooperating in contributing their share of 1\/3rd of the
\nfree-hold conversion charges or sale deed expenses, then
\nthe appropriate recourse would have been to serve a
\nnotice upon the defendants informing them about the
\ncompliances required of them and offering to execute a
\nsale deed as power the agreed terms and conditions already
\ncontained in the agreement to sell dated 19.1.93.\n<\/p>\n
 41. In case the defendants did not cooperate after
\ndue service of notice, the plaintiffs ought to have
\nthereupon revoked the General Power of Attorney in favor
\nof the defendant No. 3. The plaintiff did not adopt
\neither of these valid recourses.\n<\/p>\n
 42. Equally, the defendant No. 1 & 2 also did not act
\nin accordance with their rights and obligations in law.
\nIt is not, and cannot be a valid defense on their part
\nthat they had done all what was needed of them and\/or
\nthat they had called upon the plaintiffs to execute the
\nsale deed and\/or that it was only on account of the
\nplaintiffs action unreasonably that the execution and
\nregistration of sale deed remained pending and\/or that
\ntherefore, the defendants 1 & 2 felt constrained to get
\nthe sale deed executed in their favor by using the
\nservice of defendant No. 3 who is their own son and
\nattorney of attorney.\n<\/p>\n
 43. In the entire written statement, there is no
\nallegation to the effect that the plaintiffs were in any
\nmanner averse to or not cooperating in execution of sale
\ndeed in favor of the defendant.\n<\/p>\n
 44. There is also no explanation whatsoever as to why
\nor how the ITCC obtained by Ms. Promilla Kapoor in
\nrelation to her transaction viz-a-viz plaintiffs for the
\nentire property, could be hijacked and utilised by the
\ndefendants for executing the sale deed in their own
\nfavor.\n<\/p>\n
 45. Moreover, it is not and it cannot be the case of
\nthe defendants that their transaction was really with Ms.
\nPromilla Kapoor, and that the plaintiff was only an
\nintermediary.\n<\/p>\n
 46. Once the first floor was sold by the plaintiffs 1
\n& 2 in favor of defendants No. 1 & 2, it was obligatory
\non the part of the defendants to stick to that situation,
\nin both the “de-jure” and also the “de-jure” sense.
\nDefendants are acknowledging that the transaction was of
\nsale between themselves and plaintiffs. As such the
\ndeviation and departure from the terms and conditions of
\nthe agreement to sell dated 19.1.93, concludes the
\nsituation as far as the establishing of a malafide or
\ncolourable motive, atleast for prima-facie purposes.\n<\/p>\n
 47. When the matter was argued out and my question
\nput to the Ld. Senior Counsel for the defendants, made
\nit perhaps apparent to the defendants, that this aspect
\nof essential conditions of agreement to sell having been
\ngiven a go-by in the impugned sale deed, was weighing
\nheavy on my consideration, the defendants thereupon filed
\nwhat they described to be  “proposed terms of settlement
\non behalf of the defendant”.\n<\/p>\n
 48. These are dated 28.9.2002 and duly supported by
\nthe affidavit of the defendant No. 1. In and by the said
\ndocument, the defendant have tried to revert back in the
\nform of an undertaking to the Court\/or clarification to
\nthe executed registered sale deed which has been impugned
\nin the suit, or most of the aspects on which departure
\nhad been made from the agreement to sell dated 19.1.93,
\nexcept in relation to the pre-emption clause, which
\nobviously the defendants are insisting to be void and
\nunenforceable or alternative satisfied by exchange of
\nletters.\n<\/p>\n
 49. On a consepctuous of what has been said above. I
\nhave pondered over the three tests governing the grant of
\ninterlocutory injunction, I find that the plaintiffs has
\nestablished both strong prima-facie case and balance of
\nconvenience in their favor. As regards the irreparable
\ninjury aspect also I find that if the defendants are not
\ninjuncted from effecting any further sale, that would
\noperate to cause irreparable injury to the plaintiffs
\nsince the defendants No. 1 and 2 have eliminated
\nplaintiffs No. 1 and 2 from the picture and also the
\nterms and conditions of the basic agreement to sell dated
\n19.1.93, and any third party who now enters into the
\nfirst floor as the bonafide purchaser for consideration
\nwithout notice, may in law be entitled to insist upon the
\nterms and conditions of the impugned sale deed dated
\n18.10.2000.\n<\/p>\n
 50. The learned Senior Counsel for the defendants has
\nalso drawn my attention to the latest decision of the
\nApex Court in  Hindustan Petroleum Corporation v. Sriman
\nNarayan and Anr.,  and<\/a> in
\nparticular, to the following passage:-\n<\/p>\n
  “The decision whether or not to grant an
\ninterlocutory injunction has to be taken at a time
\nwhen the exercise of the legal right asserted by
\nthe plaintiff and its alleged violation are both
\ncontested and remain uncertain till they are
\nestablished on evidence at the trial. The relief
\nby way of interlocutory injunction is granted to
\nmitigate the risk of injustice to the plaintiff
\nduring the period before which that uncertainty
\ncould be resolved. The object of the
\ninterlocutory injunction is to protect the
\nplaintiff against injury by violation of his right
\nfor which he could not be adequately compensated
\nin damages recoverable in the action if the
\nuncertainty were resolved in his favor at the
\ntrial. The need for such protection has, however,
\nto be weighed against the corresponding need of
\nthe defendant to be protected against injury
\nresulting from his having been prevented from
\nexercising his own legal rights for which he could
\nnot be adequately compensated. The Court must
\nweight one need against another and determine
\nwhere the “balance of convenience” lies”.\n<\/p>\n
 51. Even by the said yard-stick, I find that the
\nplaintiff is entitled to grant an injunction to mitigate
\nthe risk of in justice to the plaintiff, till the matter
\nis resolved by the final disposal of the suit. Any sale
\nor third party rights created by the defendants, under
\nthe impugned sale deed, would result in injury by
\nviolation of plaintiff’s right for which the plaintiff
\ncannot be compensated in damages.\n<\/p>\n
 52. The defendants having acted at their own
\ninitiative and peril, do not need to be protected from
\nthe eventuality of there own creation and as such not
\nbeing able to exercise their right to sell or transfer or
\nalienate the premises in the meanwhile.\n<\/p>\n
 53. In view of the above, I consider this to be a fit
\ncase for grant of ad interim injunction in favor of the
\nplaintiff and against the defendants restraining the
\ndefendants, their employees, agents, attorneys,
\nrepresentatives and servants from disposing of or
\ncreating any third party interest in the suit property,
\ni.e. first floor portion of the said building with a store
\nroom measuring approx. 70 sq. ft. in the basement and a
\nproportionate share in the land underneath of the
\nproperty N-79, Panchsheel Park, New Delhi-17 in any
\nmanner except in strict conformity with the terms of the
\nAgreement to Sell dated 19-1-1993 executed before the
\nPlaintiffs Nos. 1 & 2 the Defendants Nos. 1 & 2, and not
\nwithout disclosing in writing the pendency of these
\nproceedings as a recital to the document with the third
\nparty.\n<\/p>\n
 54. While concluding, I do feel some element of
\ncompassion and sympathy for the defendants who have paid
\nthe entire consideration, and but for their folly (or so
\nit prima-facie appears), would have been in a position to
\nenjoy the rights of transfer\/alienation of the first
\nfloor in favor of third parties.\n<\/p>\n
 55. To my mind for properly balancing the equities,
\ngrant of stay has to conditional in most cases. The
\ncondition may be of actual costs of contest or
\nindemnification of drop in price of immovable property
\nor waiver of one out of possible alternative stands\/contentions\/reliefs
\nor anything else which appears to
\nthe Court granting injunction, to be required and\/or
\nproper.\n<\/p>\n
 56. The plaintiff’s, stand as reflected by their
\nresponse in October 1998, is that they need not respond
\nto each offer of third party, but rather to their
\n(plaintiff’s) assessment of fair sale value in absolute
\nterms.\n<\/p>\n
 57. To this end, I feel that it would be required and
\nwarranted that the first party be made to convey its
\noffer in a sealed cover regarding purchase the first
\nfloor on the same terms and conditions as are contained
\nin the agreement to sell dated 19.1.93 and subject to
\nfurther consideration thereof by this Court the sealed
\noffer will have to be accompanied by an undertaking by
\nthe plaintiffs that this is a final exercise of option of
\npre-emption by them, and that subject to the terms of the
\nimpugned sale deed being brought in line with the
\nagreement to sell dated 19.1.93, the plaintiff’s option
\nof pre-emption shall stand as satisfied\/exhausted\/eliminated
\nupon the defendants bringing any
\nthird party before the Court, for amount even one rupee
\nhigher than the amount contained in the sealed bid of the
\nplaintiff, subject to the third party so brought by the
\ndefendants agreeing to a sale deed in line with the
\nagreement to sell dated 19.1.1993, save and except for
\nthe pre-emption clause which shall stand exhausted, and
\ntherefore not required to be repeated in the future
\ntransfer documents in favor of the third party. This
\nsealed bid and undertaking of the plaintiffs should come
\non record within a period of two weeks from today,
\nfailing which the matter be placed before court for
\nadditional condition to be imposed upon the plaintiffs,
\nby way of security for possible fall in price of the
\nfirst floor. The bid if it be filed, will be opened now
\nor at later stage after hearing the parties on that
\naspect.\n<\/p>\n
 58. I also propose to expedite the final disposal of
\nthe suit itself by separate orders to that effect.\n<\/p>\n
   SUIT NO. 1245\/2002    <\/p>\n
 1. Amended plaint and court fee be filed within a
\nweek. Written statement within one week thereafter
\nReplication within three weeks from the date of this
\norder. Both the parties to file their respective
\noriginals documents after exchanging advance copies
\nwithin 4 weeks from the date of this order.\n<\/p>\n
 2. The matter to be listed for admission\/denial of
\ndocuments before the Joint Registrar on 15.11.2002. The
\nevidence by way of affidavits would have to be filed by
\nthe plaintiffs within 15 days thereafter and by the
\ndefendants before the date fixed. The matter be listed
\nfor cross-examination before Mr. Sanjiv Sharma Advocate
\nof this Court who is appointed Local Commissioner as per
\nprescribed scale of fee to record cross-examination on
\nthe said date and to continue day by day from 4.00 p.m.
\nonwards, on consecutive days. On the date immediately
\nafter the conclusion of evidence, the matter be listed in
\nthe Court for final hearing.\n<\/p>\n
 Application IA 6716\/2002 stands disposed of.\n<\/p>\n
   IA 8554\/2002 (Under Order VI Rule 17)    <\/p>\n
 The amendments sought do not change the nature of
\nthe suit and are aimed at bringing on record subsequent
\nevents as well as to make up the deficiency of court fee.
\nThe amendments being necessary for complete and
\nefficacious adjudication, is allowed.\n<\/p>\n
 Application (IA 8554\/02) stands disposed of.\n<\/p>\n
 Amended plaint with court fee be filed within a
\nweek.\n<\/p>\n
   IA 8558\/2002 (Under Order 39 Rule 1 & 2 CPC)    <\/p>\n
 For the reasons detailed in relation to IA
\n6716\/2002 and in view of disposal of suit itself having
\nbeen expedited, the defendants are restrained from
\ncarrying out any structural changes, additions or
\nalternations except after obtaining leave of this Court.\n<\/p>\n
 Application (I.A. No. 8558\/02) stands disposed of.\n<\/p>\n
 I.A. No. 8559\/02 (Under Order 26 Rule 9 CPC)  <\/p>\n
 Learned counsel for petitioner did not press this
\napplication at this stage. Application is accordingly
\ndismissed as withdrawn.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Mr. Kamal Chugh And Ors. vs Mr. Narinder Kumar Gulati And Ors. on 4 October, 2002 Equivalent citations: AIR 2003 Delhi 219 Author: S Mukerjee Bench: S Mukerjee JUDGMENT S. Mukerjee, J. IA 6716\/2002 1. There are two separate aspects arising for consideration. The first is regarding the ex parte stay, while […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-84611","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMr. Kamal Chugh And Ors. vs Mr. Narinder Kumar Gulati And Ors. on 4 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-kamal-chugh-and-ors-vs-mr-narinder-kumar-gulati-and-ors-on-4-october-2002-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. Kamal Chugh And Ors. vs Mr. Narinder Kumar Gulati And Ors. on 4 October, 2002 - 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