M/S Prem Chand Sharma & Co. vs Delhi Development Authority
2009 Latest Caselaw 451 Del

*     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.

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

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

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

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

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

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