* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O.(OS) No.38/1998 & C.M. No.1907/1998
Date of Decision: 09th February, 2009
M/S PREM CHAND SHARMA & CO. ..... Appellant
Through: Mr. Sandeep Sharma, Advocate
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Alpana Pandey for Mr. D.S.
Mahindru, Advocate
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
% JUDGMENT (Oral)
MUKUL MUDGAL, J.
1. This appeal challenges the judgment of the learned Single Judge dated 19.09.1997 in suit No.2592/1994, by which the award dated 28.10.1994 was partly made Rule of the Court. The appeal was admitted by this Court on 03.02.1998. The respondent DDA filed the present application (C.M.No.1907/1998) by which they brought the following letter of the appellant on record and, therefore, pressed for dismissal of the appeal. The said letter reads as follows: -
"The Executive Engineer, 13.2.98 South Western Divisions No.6, DDA, New Delhi.
FAO(OS) 38/1998 & C.M. No.1907/1998 Page 1 of 7
Sub: C/o 534/540 Houses under SFS at Kalkaji (WCC) Pkt-II (SH: C/o 56 Cat-II, III Cat-III & 112 Car garage i.e. internal development of land in Pkt-II.
Agreement No.: 2/HD-II/81-82 Suit No.: 2592/94 Sir, It is informed that we had gone into Arbitration in the above noted work & Shri. K. D. Bali was appointed the Sole Arbitrator for adjudicating the claims & Ld. Arbitrator published the award on 28-10-94. The award was contested & made rule of Court by Hon'ble Justice Sh. K. Ramamurthy of High Court Delhi.
In this regard, it is further submitted that the award made rule of Court by Hon'ble High Court Delhi is fully acceptable to us & we withdraw our appeal against this judgment and we hereby undertake we shall not contest the judgment provided our due payment is released to us by 20-2-98 & we also forego our interest after 28-1-98 & we accept the due payment made rule of Court by Hon'ble High Court Delhi as full & final settlement of our claims rised by us in the above said Arbitration case.
If our due payment not made to us by 20-
2-98 our application of appeal in Hon'ble High Court Delhi will not be withdrawn.
Thanking you Yours faithfully M/s Prem Chand Sharma & Co."
(emphasis supplied)
2. Upon notice being issued to the appellant on the said application, on 10.08.1998, the stand taken by the appellant before the Court was that this letter was taken from it under coercion. The Court directed that the aforesaid application of the respondent would FAO(OS) 38/1998 & C.M. No.1907/1998 Page 2 of 7 be considered at the time of final disposal. The appellant was granted time to file its reply. Reply has been filed by the appellant dated 19.08.2000.
3. Counsel for the appellant has submitted that as stated in its reply, the said letter was taken under undue influence and coercion from the appellant and, therefore, the reliance on the said letter of 13.02.1998 is not justified, and the appellant is entitled to pursue the present appeal on merits. The relevant averment made by the appellant in its reply reads as follows:-
"3. Paragraph no.3 of the application is wrong and is denied. It is wrong and is denied that the appellant wrote letter dated 13/2/1998 out of his own free will. The said letter was written under undue influence and coercion. The respondent threatened the appellant that in case such a letter is not written by the appellant the respondent will not make the payment of the award which was made Rule of Court and the respondent categorically told the appellant that the matter shall be dragged for another 20 years and no payments will be made to him. It was in these circumstances the letter dated 13/2/1990 was written and the appellant specifically withdraws the said letter now."
4. In our view the aforesaid stand of the appellant is not worthy of any credence. Order VI Rule 4 of the Civil Procedure Code states that in "all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms" (contained in Appendix-A) "particulars (with dates and items if necessary) shall be stated in the pleading". The FAO(OS) 38/1998 & C.M. No.1907/1998 Page 3 of 7 averments made by the appellant in its reply as extracted hereinabove miserable fails to satisfy the requirement of the law. It is not stated as to which officer of the respondent DDA threatened the appellant, as alleged. It is not stated that when and where the threat, as alleged, was issued to the appellant. It is not even disclosed as to who, in particular, was threatened as alleged. We may note that the appellant claims to be a partnership firm. Consequently it is not clear as to whether one of the partners or an employee was allegedly threatened. It is not stated as to what were the circumstances which resulted in the appellant coming under the undue influence of, and succumbing to the coercion of the respondent. The so called threat is also nothing more than a whimper, even if it is believed to be true. The threat allegedly given was that the matter shall be dragged for another 20 years and no payment will be made to him. This can hardly be considered to be a threat. All that the appellant would have had to do, even if the payment in terms of the award as made rule of the Court had not been made, was to file an execution petition. It is also very pertinent to note that the appellant, of its own, never refuted the aforesaid letter written by it, soon after writing the same. The stand taken by the appellant has come only by way of a reply in response to the respondent's application. The letter was written as early as on 13.02.1998 and the stand taken by the appellant, that the said letter was written under undue influence and coercion, was for the first time taken verbally on 10.08.1998, and in writing on 19.08.2000. Had there been any truth in the aforesaid allegation of the appellant, the appellant would have immediately withdrawn the said communication dated 13.2.1998 FAO(OS) 38/1998 & C.M. No.1907/1998 Page 4 of 7 contemporaneously without waiting for the respondent to produce the same in this Court which it did only on 22.05.1998 when C.M.No.1907/1998 was filed, i.e. after more than three months of the letter being written. Moreover, the appellant would have given the necessary particulars in its reply with regard to the alleged undue influence and coercion which are conspicuous by their absence. To us it is clear that the appellant wrote the letter dated 13.02.1998 to the respondent not only to persuade the respondent to release the amount covered by the award as made Rule of the Court without the appellant having to take steps to execute the same, but also to prevent the respondent DDA from challenging the judgment of the learned single Judge in so far as it upheld the award of the Arbitrator and rejected the objections of the respondent DDA. This is also inferable from the clear representation that the said amount would be accepted in full and final settlement of the appellant's claims in arbitration, and the statement of the appellant that the DDA threatened that the matter would be dragged for years and no payment will be made to the appellant. This eventuality could have arisen only if the DDA had challenged the judgment of the Learned Single Judge in so far as it made the award a Rule of the Court. Had the appellant not made the offer and representation as contained in its letter dated 13.02.1998, it is quite possible that the respondent DDA may have challenged the decision of the learned single Judge in so far as its objections were dismissed by the learned Single Judge. However, on account of the settlement offered by the appellant, which was accepted by the respondent, the respondent was prevented from challenging the decision of the learned FAO(OS) 38/1998 & C.M. No.1907/1998 Page 5 of 7 single Judge as made Rule of the Court in appeal. The appellant having persuaded the respondent to part with the payment under the award as made Rule of the Court on the clear representation that the said amount would be accepted in full and final settlement of the appellant's claims in arbitration, and that the present appeal would be withdrawn, cannot now be heard at this stage to wriggle out of the settlement offered by it and accepted and acted upon by the DDA. We also cannot lose sight of the fact that the appellant is an established and empanelled civil contractor of the DDA and is an experienced litigant, who acts under the advice of competent counsel.
5. Counsel for the appellant has cited the decision in "P.R. Deshpande v. Maruti Balaram Haibatti" AIR 1998 SC 2797, where the Hon'ble Supreme Court has held that an undertaking to vacate the premises in eviction proceedings would not bar the tenant from filing the special leave petition. The Hon'ble Supreme Court held that a statutory remedy of appeal cannot be scuttled or foreclosed by such an undertaking. In the present case, that is not the situation. This decision has no application in the facts of the present case. The appellant had already preferred this appeal and thereafter persuaded the respondent to part with the payment on the basis of the letter dated 13.02.1998, wherein the appellant represented that: (a) the award as made Rule of the Court by the learned single Judge of this Court is fully acceptable to it and it will withdraw its appeal against the judgment, provided the payment is released to it by 20.02.1998 and,
(b) it will forego the interest after 28.01.1998, and will accept the due FAO(OS) 38/1998 & C.M. No.1907/1998 Page 6 of 7 payment made under the award as made Rule of the Court as full and final settlement of its claims raised in the arbitration case. The appellant, therefore, cannot now be heard to take such a stand.
6. Another decision relied by the appellant is in "Smt. Sanjeevamma & Ors. v. G. Krishna & Ors." AIR 2004 Karnataka 338 which says that the appeal does not become infructuous merely because the decree granted by the trial Court stands executed. This situation has not arisen in the present case. This decision, therefore, has no application in the present case.
7. Accordingly the application filed by the respondent is allowed. The appellant is bound by its representation made to the respondent, which was accepted and acted upon by the respondent. The appellant is not entitled to pursue this appeal. Accordingly, the appeal is dismissed with costs quantified at Rs.20,000/- payable by 17th March, 2009. In case the costs is not paid upto 17th March, 2009, it shall carry interest @ 12% p.a. MUKUL MUDGAL, J.
VIPIN SANGHI, J.
FEBRUARY 09, 2009 as/rsk FAO(OS) 38/1998 & C.M. No.1907/1998 Page 7 of 7