Sh. Jagmohan Nath Kapoor vs Sh. Manmohan Nath Kapoor

Kailash Gambhir

This order will dispose of the objections filed by the defendant against report dated 25-26/4/2010 filed by Mr. Jayant K Mehta, Advocate, Local Commissioner appointed by this court vide order dated 21.1.2010. No reply to these objections had been filed by the plaintiff. Mr. Anupam Srivastava counsel for the plaintiff sought to address arguments on these objections without filing reply to the same. Mr. Vijay Gupta, Advocate appearing for the defendant stated that defendant had never agreed to the appointment of Mr. B.P. Singh as Valuer to value the suit property. Mr. Vijay Gupta further submitted that vide letter dated 31.5.2011 defendant had suggested to the Local Commissioner to select the Govt. valuer from the list of approved Govt. value Rs. The contention of counsel for the defendant was that the said local Commissioner had accepted the name of Mr. B.P. Singh whose name was suggested by the plaintiff and the same was never approved by the defendant. Counsel also submitted that the valuer never followed any parameters to assess the valuation of the said property. Counsel further submitted that the valuer did not take into consideration the circle rates to determine the valuation of the property as the circle rates are the guiding factors to determine/assess the valuation of any property located in a particular circle. Counsel further submitted that plaintiff had valued the suit property in the present suit in terms of the circle rates only as the rates applicable in 2009 were Rs. 27,300/- per sq.meter according to which valuation of the suit land which is 168 sq.yds. works out to Rs. 45,86,400/-. Counsel also submitted that according to the revised rates the valuation of the land in the said circle between 8.2.11 and 15.11.11 would work out to Rs. 91,72,800/- and w.e.f. 16.11.2011 it would work out to Rs. 1,83,45,600/- in respect of the entire plot of land. Counsel further submitted that valuer also did not take into consideration any of the recent transactions which had taken place in the locality to arrive at correct figure of the valuation of the property. Counsel also submitted that the Local Commissioner ignored the directions given by this court vide order dated 23.5.11 as the said order clearly directed the Local Commissioner to consider the nature of the property in question being a lease hold property while giving valuation of the same. Counsel contended that the incumbent Local Commissioner should have separately taken into consideration the valuation of the lease-hold property and that of free-hold property. Counsel also submitted that the Local Commissioner was fully aware of the order dated 23.5.11 as in his report he had given reference to the said order. Opposing the said objections and the arguments advanced by Mr. Vijay Gupta, counsel for the defendant, Mr. Anupam Srivastava, counsel for the plaintiff submitted that these objections have been filed by the defendant with oblique motives and malafide designs to cause further delay in the sale of the property through public auction. Counsel also submitted that already this court has reached to the conclusion that the subject property cannot be partitioned by metes and bounds and there is also no possibility of having floor wise division of the property with suitable adjustment of money after ascertaining the valuation of each floor of the said property. Counsel also submitted that the Local Commissioner Mr. Jayant K. Mehta had requested both the parties to suggest the name of the valuer so that he could appoint a suitable valuer but since no names were suggested by the defendant, therefore, the said Local Commissioner had accepted the name of Mr. B.P. Singh as suggested by the plaintiff. Counsel further submitted that Mr. B.P. Singh is a Govt. Approved valuer and therefore his credentials cannot be doubted. Counsel also submitted that the said Local Commissioner also took abundant precaution to call upon both the parties to intimate them if any one of them had any objection for the appointment of Mr. B.P. Singh as valuer. In response to that no written communication was sent by any of the parties although counsel for the plaintiff had telephonically informed the Local Commissioner conveying no objection to the appointment of Mr. B.P. Singh as Valuer. Similarly the son of defendant also confirmed that they had no objection to his appointment. Counsel further submitted that once both the parties had consented to the appointment of Mr. B.P. Singh as valuer then it is highly unfair on the part of the defendant to challenge his appointment on the ground that his consent was not taken before his appointment. Counsel further submitted that the said valuer was fully conscious of the nature of the subject property being lease-hold property as would be evident from his report. Counsel further argued that the said valuer took into consideration all the relevant factors before arriving at the value of the land at Rs. 8,15,50,000/- including the property being lease-hold property and likewise for arriving at cost of construction of the said property. Counsel thus submitted that the present belated objections filed by the defendant are only with a view to create further hurdles in the final sale of the said property and the same merits dismissal.

I have heard Ld. counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them. Vide orders dated 25.4.2011 read with order dated 23.5.2011 this court directed the Local Commissioner to report the floor wise valuation of the said property so that the court could have a re-look at the matter to explore the possibility of floor wise partition of the suit property. The court also directed the Local Commissioner to take the assistance of any Architect/valuer for the purpose of giving report on the valuation of the said property. In compliance of the said direction given by this court the Local Commissioner submitted its report vide report dated 26.7.2011 and alongwith its report the Local Commissioner also placed on record copy of the order dated 16.7.2011 sent by him to the Advocate of the plaintiff and defendant. Also annexed to the report is the valuation report submitted by Mr. B.P. Singh, a Govt. approved valuer. In the said communication dated 16.7.2011 not only the Local Commissioner had informed the parties the name of the said valuer but both the parties were also called upon to inform the Local Commissioner their no objection if any on the appointment of the said valuer in writing within a period of two days of the said letter. As per his report, although, no written communication was made by any of the parties but both the parties had telephonically informed him giving their approval on the appointment of the said valuer. On the basis of the said report of the Local Commissioner and communication placed on record the objection raised by the defendant that he was not consulted by the Local commissioner before finalizing the name of Mr. B.P. Singh as valuer merits outright rejection being ex-facie false and preposterous. The other objection raised by counsel for the defendant that Mr. B.P. Singh did not take into consideration the nature of the said property being lease-hold is equally devoid of merit as perusal of the report clearly reveals that the said valuer was fully conscious of the nature of the said property being lease hold. One of the objections raised by counsel for the defendant is that the valuer should have taken into consideration the circle rates as declared by Govt. of NCT of Delhi in respect of different areas of location in Delhi for assessing the correct valuation of the said land. This objection raised by counsel for the defendant also holds no water as the said valuer Mr. B.P. Singh took into consideration various parameters including the circle rates as well before assessing the value of land at Rs. 4 lacs per sq.yds. Counsel for the defendant has also taken a stand that the Local commissioner has exaggerated the value of the subject property with the sole objective to out-bid the defendant from purchasing the said property. This objection again is devoid of any merit as the valuation of the said property if it is exaggerated then it is for both the parties and not for defendant alone. In the light of above discussion this court does not find any merit in the present objections filed by the defendant which otherwise have been filed by the defendant belatedly on 13.2.12 although the Local Commissioner had filed its report on 25.7.2011. Even otherwise there seems to be no possibility of these parties to buy each other''s share as there is a wide gap between the offers given by the plaintiff and the defendant to buy out 50% share of each other and in such circumstances the subject property finally will have to be sold by directing public auction. The present objections filed by the defendant are devoid of any merit and same are accordingly dismissed.