S.M. Wahi And Anr. vs Reeta Wahi And Ors.
2007 Latest Caselaw 319 Del

JUDGMENT

A.K. Sikri, J.

1. The plaintiff Nos. 1 and 2 are husband and wife respectively. The defendant No. 1 is the niece of the plaintiff No. 1 (daughter of his brother). Initially, she was alone imp leaded as the defendant. However, thereafter, on an application moved by the plaintiffs, the defendant Nos. 2 & 3 were also imp leaded. The plaintiffs have filed CS (OS) No. 690/2004 for declaration, permanent and mandatory injunction and cancellation of the sale deeds. Declaration was sought to the effect that the plaintiffs were the owners of property bearing No. 13, Kautilaya Marg, New Delhi. Decree for permanent injunction, which was prayed, was that the defendants be restrained from leasing out portion of the said property or from selling, transferring, alienating this property to third party or dispossessing the plaintiffs from the said property. Cancellation of the sale deeds dated 16.5.1997, 19.5.1997 and 30.6.1997 was also prayed for.

2. It is not necessary to go into the averments in the plaint, on the basis of which the aforesaid prayer was sought, nor is it necessary to gather in detail the defense of the defendants taken in the written statement filed in the said suit. Suffice it to state that the defendants had made counter claims as well. What is important is that during the pendency of the said suit, the parties entered into settlement. A joint application under Order XXIII Rule 3 of the Code of Civil Procedure (for short, 'CPC') read with Section 151 CPC was filed by the parties. In this application, it was stated that they had settled all their disputes and differences amicably on the terms and conditions as per the Deed of Settlement dated 25.11.2006. The said Deed of Settlement, in original and signed by the parties, was also annexed along with the application. This settlement shows that not only the plaintiff No. 1 and the defendant No. 1 were parties to the said agreement, Mr. Sanjit Bakshi, M/s. Deer Farms Pvt. Ltd and M/s. Vaishali International Management & Resources Ltd. were also parties to the settlement. In fact, between all these parties, apart from the suit in question, there were three more suits and four appeals. The disputes in all these eight suits/appeals were settled by the said Deed of Settlement. Mr. Sanjit Bakshi had agreed to pay a sum of Rs. 4 crores, as per this settlement, to the plaintiff. A sum of Rs. 1 crore was to be paid at the time of recording of the statement and passing decree in terms thereof and at the same time the plaintitf No. 1 was to handover possession of complete annexe block in the said property in question to Mr. Sanjit Bakshi. Balance amount of Rs. 3 crores was to be paid to the plaintiff No. 1 at the time of handing over the remaining actual physical vacant possession of the property on or before 10.1.2007. Qua the defendants, the settlement provided as under:

Upon compliance of the terms of the settlement, SMW has no objection to the collaboration agreement dated 11.6.2004 and Agreement to Sell dated 28.1.2005 and any dealings between the RW and SB and with DFPL with regard to the said property or any part thereof and SB & RW shall be liable to redeem the mortgage of the said property from the Punjab National Bank as per their agreement/understanding after payment of the full outstanding inclusive of interest till date of payment and SMW and VIMAR represent that total liability of VIMAR and SMW as on 31.12.2006 as verified by them from Punjab National Bank is less than Rs. 5.69 crores [Rupees five crores sixty nine lakhs only] and SB/RW shall be entitled to receive the original title deeds from the Punjab National Bank. SB and RW shall redeem the mortgage within 15 days of handing over of the actual physical possession of the property to SB as agreed in Clause 1(d) and 2 above.

3. This application was supported by affidavits of all the parties to the agreement, including the plaintiff No. 1 and the defendants. This application came up for hearing on 27.11.2006 and following order was passed:

Present:Ms. Suruchi Aggarwal with Ms. F. Rahman, Advs. for plaintiff.

Plaintiff in person.

Mr. Ravinder Sethi, Sr. Adv. with Ms. Nandini Sahni, Adv. for D-1.

Mr. Y.P. Chandna, Adv. for PNB (D-3).

IA No. 13205/2006 (O23 R3 CPC) and CS (OS) No. 690/2004

The parties to the suit have reached a compromise as contained in the Deed of Settlement dated 25th November, 2006. The parties seek disposal of the suit in terms of settlement so arrived at. The application is signed by the parties and supported by their respective affidavits. The parties to the suit4 are present in person and confirm having signed the application and sworn affidavits in respect thereof. The plaintiff undertakes to pay the requisite Court Fee on the amount of Rs. 4 crores receivable by him under the compromise within a week. The compromise, as incorporated in the Deed of Settlement dated 25th November, 2006, appears to be voluntary and lawful. As per terms of compromise, an amount of Rs. 1 crore out of Rs. 4 crores is being paid by the defendant No. 2 by way of two demand drafts No. 168237 dated 27th November, 2006 and 168238 dated 27th November, 2006 in favor of the plaintiff for Rs. 50,00,000/- each which the plaintiff acknowledges having received in the Court. The balance of Rs. 3 crores is payable to the plaintiff on or before 10th January, 2007. Upon payment of Rs. 1 crore out of Rs. 4 crores, the plaintiff has handed over the key and vacant possession of complete annexe block in the property No. 13, Kautilya Marg, Chanakyapuri, New Delhi to defendant No. 2. The possession of the remaining part of property No. 13, Kautilya Marg, Chanakyapuri, New Delhi is to be handed over to defendant No. 2 on or before 10th January, 2007 at the time when the payment of balance amount of Rs. 3 crores is to be made by the plaintiff to defendant No. 2.

In terms of compromise, the defendant No. 2 shall be bound by the condition contained in para 1(b) of the Deed of Settlement. The defendants 1 and 2 shall be liable to redeem the mortgage of the property from the Punjab National Bank, D-3, on payment of outstanding amount inclusive of interest till date due and payable in the account of M/s. Vaishali International Management & Resources Ltd. On redemption of mortgage, the defendant No. 3 shall immediately hand over the original title deeds of the property to the mortgagor, Mrs. Reeta Wahi, defendant No. 1.

Learned Counsel for the defendant No. 3 has no objection against return of original title deeds to defendant No. 1 on entire outstanding amount including interest till date being paid by defendants 1 and 2.

The suit is accordingly decreed in terms of settlement as contained in the Deed of Settlement dated 25th November, 2006. A decree be drawn accordingly. The Deed of Settlement shall form part of decree. The Registry shall calculate the Court Fee payable on the amount of Rs. 4 crores which shall be paid by the plaintiff within a week from the date of this order. As agreed by the parties, Mr. Raman Kapur, present in Court, is appointed as Local Commissioner to visit the property No. 13, Kautilya Marg, Chanakyapuri, New Delhi on the date, to be intimated by the parties, to supervise the payment of balance amount of Rs. 3 crores by defendant No. 2 to the plaintiff and handing over of the physical vacant possession of the aforesaid property by plaintiff to defendant No. 2 on or before 10th January 2007. The remuneration of the Local Commissioner is fixed at Rs. 50,000/- payable by the defendant No. 2.

The application and the suit stand disposed of accordingly."

4. Thus, not only the suit was decreed in terms of the settlement after statement was made that the settlement was arrived at between them, a Local Commissioner was also appointed with a direction to visit the suit property and to supervise the payment of balance amount of Rs. 3 crores by the defendant No. 2 to the plaintiff and handing over the physical vacant possession of the aforesaid property by the plaintiffs to the defendant No. 2 on or before 10.1.2007. Since the suit was decreed in terms of the compromise and no order was passed on the counter claims preferred by the defendant No. 1 on that date, the matter was listed again on 4.12.2006. Counsel for the defendant No. 1, in view of the settlement and disposal of the suit in terms thereof, withdrew the counter claims which were dismissed as such. This statement was made by counsel for the defendant No. 1 on instructions from the defendant No. 1, as is clear from the order dated 4.12.2006 itself, which reads as under:

Counter claim by defendant No. 1 be assigned separate suit number. Learned Counsel for defendant No. 1 states on instructions from defendant No. 1 that in view of disposal of suit in terms of IA No. 13205/2006 the defendant No. 1 withdraws her counter claim and the same may be dismissed as withdrawn.

The counter claim by defendant No. 1 shall accordingly stand dismissed as withdrawn.

5. The defendant No. 1 has now filed the present application for setting aside the order dated 27.11.2006 passed by this Court alleging that the Deed of Settlement dated 25.11.2006 was obtained through coercion in a state of hurry and through misrepresentation by the plaintiffs and the other defendants in order to obtain an unfair and unjust settlement, which extinguishes the rights of the defendant No. 1 vis-a-vis the suit property. It is alleged that even the Agreement to Sell dated 28.1.2005 for the entire suit premises was obtained through coercion primarily at the behest of the plaintiff No. 1, who had ensured that the defendant No. 1 is driven away from the suit premises by setting up a false plea. In an attempt to show that there was coercion, the defendant No. 1 has mentioned in detail the alleged events from 1978 onwards in respect of the suit property as well as the alleged occurrence between the plaintiff No. 1 and the defendant No. 1. In fact, all these are the averments which were taken in the written statement filed on behalf of the defendant No. 1 and it is, therefore, sought to be contended that when the defendant No. 1 was maltreated and there was coercion exercised by the plaintiff No. 1 upon her for all these years, it should be believed that the Deed of Settlement dated 25.11.2006 was also the result of said coercion.

6. I am afraid, such a plea is not tenable and the Settlement dated 25.11.2006, on the basis of which detailed order dated 27.11.2006 was passed, cannot be nullified on this ground. What transpired earlier, as alleged by the defendant No. 1, cannot be a basis to say that the settlement in question is also the result of coercion. There is hardly any convincing reason or ground given as to how the defendant No. 1 was coerced or intimidated in entering into the settlement in question. Order VI Rule 4 of the CPC specifically mentions that full particulars are required to be given in support of the plea of coercion, undue influence, etc. {See - Mahinder Pal Wadhwa v. Ashok Kumar Wadhwa 1993 (3) AD (Delhi) 13}. There are hardly any particulars which have direct nexus with the settlement in question arrived at between the parties on 25.11.2006 and the applicant is harping on the allegations, which she had levelled in the written statement and which are based on past events.

7. In the present case, there are some more important facts which are to be borne in mind and which would negate the contention of the applicant/defendant No. 1. After the settlement was signed between the parties, application under Order XXIII Rule 3 CPC was prepared. This application is also signed by all the parties, including the applicant/defendant No. 1. She has even sworn the affidavit. At the time of hearing, learned Counsel for the plaintiff No. 1 informed that when the negotiations for settlement were going on, the counsel for the parties had taken active part therein. She was represented through a senior advocate assisted by counsel of adequate standing at the Bar and, thus, she had the best legal advice available. Furthermore, when the application came up for hearing, she appeared in the Court and made statement before the Court about the settlement, as is clear from the following observation in the order dated 27.11.2006:

...The parties to the suit are present in person and affirm having signed the application and sworn affidavits in respect thereof.

Settlement was partly acted upon on the said date and parties were directed to remain bound by the terms of the settlement and for effecting the remaining part of the settlement, even a Local Commissioner was appointed to ensure that the parties carried out their respective obligations as per the settlement. Not only this, when the matter was listed on 4.12.2006, in respect of counter claims of the defendant No. 1, statement was made by her counsel "on instructions from the defendant No. 1" to the effect that in view of disposal of the suit in terms of the settlement, she was withdrawing her counter claims.

8. The defendant No. 1 has not even stated as to when she ceased to be under the coercion or intimidation. The application is, therefore, clearly an afterthought and the defendant No. 1 cannot be allowed to wriggle out of the said settlement on the basis of which even consent decree has been passed. In Gagandeep Pratishthan Pvt. Ltd. v. Mechano , the Supreme Court, under somewhat similar circumstances, held that consent decree could not be set aside on the plea of duress or coercion taken by the respondent No. 1 in the said case. The plea of duress or coercion taken subsequently was found to be untenable and the judgment of the High Court was reversed on the ground that there was no real discussion of any material on record to conclude that, in fact, on account of duress and coercion, the respondent was compelled to sign consent terms. On the contrary, the Apex Court found that the consent decree was acted upon and further there was no complaint by the respondent No. 1 therein to anyone about his having been forced to sign certain documents. Failure of the respondent to take prompt action after his dispossession, pursuant to the consent decree, was treated as fatal. It would also be useful to refer to the decision of a Single Judge of this Court in Virendra Bhatnagar Sansthan v. AAR ESS & Co. 2005 (1) AD (Delhi) 561, wherein it was held that prima facie plea of coercion, even if believed, cannot have any relevance when it was not pressed when the order was passed by the Court on the basis of settlement between the parties and plea of coercion was deemed to be abandoned and version of the defendant was found to be unbelievable.

9. It would also be apposite to reproduce the observations made by this Court in Double Dot Finance Limited V. Goyal MG Gases Ltd. 2005 (2) AD (Delhi) 534, though that case arose out of the arbitration proceedings:

If such pleas are sustained, the sanctity and purpose of 'amicable settlements' between the parties would stand totally eroded. Amicable resolution of disputes and negotiated settlements is 'public policy in India'. Section 89 of the Code of Civil Procedure, Arbitration and Concliation Act, 1996 as well as Legal Services Authorities Act, 1995 call upon the Courts to encourage settlements of legal disputes through negotiations between the parties. If amicable settlements are discarded and rejected on flimsy pleas, the parties would be wary of entering into negotiated settlements and making payments there under as a shrewedparty after entering into a negotiated settlement, may pocket the amount received under it and thereafter challenge the settlement and reagitate the dispute causing immeasurable loss and harassment to the party making payment there under. This tendency has to be checked and such litigants discouraged by the Courts. It would be in consonance with public policy of India.

10. For all the aforesaid reasons, I am of the opinion that the present application is merely an afterthought attempt on the part of the defendant No. 1 to wriggle out the compromise on the basis of which even the consent decree had already been passed and the settlement acted upon.

11. The application is, therefore, wholly misconceived and is dismissed.