Modern Maintenance Services vs All India Fine Arts & Crafts ...
2009 Latest Caselaw 4558 Del

*        HIGH COURT OF DELHI : NEW DELHI

+        I.A. No.13376/2009 in CS (OS) No.1089/2007


         MODERN MAINTENANCE SERVICES         .....    Plaintiff
                       Through   Mr. A. K. Chaudhary, Adv.

                       versus


         ALL INDIA FINE ARTS & CRAFTS SOCIETY & ANR.
                                                                    ..... Defendants
                                Through       Ms. Prerna, Adv. for D-1
                                              Mr. Prag Chawla, Adv. for D-2
                                              Mr. Alok Shukla for Ms. Manisha
                                              Aggarwal applicant in I.A.
                                              No.13376/2009,

Judgment reserved on: 3rd November, 2009
Judgment decided on : 10th November, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                   No

2. To be referred to Reporter or not?                No

3. Whether the judgment should be reported           No
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff filed a suit of recovery of an amount of Rs.20,43,318.40 against two

defendants namely All India Fine Arts & Crafts Society, defendant No.1 and British

Broadcasting Corporation, defendant No.2. Defendant No.1 filed the written statement

on 7th January, 2008. Similarly the defendant No.2 filed the written statement on 14th

December, 2007. As per agreement of the parties, the matter was referred to Mediation

and Conciliation Center vide order dated 25th September, 2009. The repot of the

Mediators was received on 7th October, 2009 wherein it was confirmed that the parties

have voluntarily and of their own will arrived at settlement in the presence of the

Mediators vide Settlement Agreement dated 7th October, 2009. The terms and conditions

agreed upon between the parties for settlement have been recorded in para 6 of the report

which reads as under:-

CS(OS) No.1089/2007 1 of 5 "6. The following settlement has been arrived at between the parties hereto:-

a. That the plaintiff had provided certain maintenance services to the defendant No.1 and the suit as well as the FIR mentioned below had been filed out of disputes having arisen from such services. The present settlement shall deem to have settled all cases including the two cases mentioned herein.

b. That the defendant No.1 had filed FIR No.209/2006 u/S 420/468/471 IPC registered at P.S. Parliament Street, New Delhi presently pending before Mr. Ajay Pandey, Learned A.C.M.M. In this matter after closure report had been given by the concerned police officer, the defendant No.1/complainant had filed the protest petition which is agreed to be withdrawn by way of the present settlement. In case, the said matter is not satisfactorily disposed off by the concerned Court, then the defendant No.1 agrees to support the plaintiff (accused) in getting the said matter quashed by an appropriate application in the Hon'ble High Court.

c. The defendant No.1 admits the claim of the plaintiff to the extent of Rs.11,00,000/- (Rupees Eleven Lakhs only) and shall pay the said sum by way of cheque or cheques for the satisfaction of the decree passed by Hon'ble Court in the present suit.

d. The parties shall make joint statements in the Hon'ble Court in terms of the present settlement to the effect that the present suit namely CS(OS) No.1089/2007 shall be decreed against the defendant No.1 for a sum of Rs.11,00,000/- (Rupees Eleven Lakhs only). This sum of Rs.11,00,000/- (Rupees Eleven Lakhs only) will include all claims of the plaintiff against the defendant in the present suit and on the defendant No.1 making the said payment, there will be no other claim subsisting between the parties.

e. The defendant No.1 on handing over the said cheques of Rs.11,00,000/- (Rupees Eleven Lakhs only) shall be absolved of any other claim which the plaintiff might have against it as well as all claims which the defendant No.1 might have against the plaintiff shall also be treated as settled.

f. The matter is listed on 13th October, 2009 before the Hon'ble Court and the parties have agreed that the defendant No.1 shall bring post dated cheques payable not later than within 30 days from today."

2. When the matter was listed on 13th October, 2009, the same was adjourned to 20th

October, 2009 at the joint request. When the matter was listed on 20th October, 2009 the

CS(OS) No.1089/2007 2 of 5 earlier counsel Mr. Alok Kumar with Ms. Manisha Agrawal, Advocates appeared on

behalf of defendant No.1 along with newly appointed counsel Ms. Prerna, Advocate for

the same defendant. A fresh application being I.A. No.13376/2009 under Order 23 Rule

3 (B) and Section 151 CPC was filed on behalf of the defendant No.1 supported by the

affidavit of Sh. Hariram Hiranandani claiming himself as Chairman of defendant No.1 for

ignoring the compromise arrived at between the parties on behalf of the defendant No.1

society.

3. The main contention in the application is that the last elections of defendant No.1

society were held in June, 2002 and there is intense infighting going on in the society.

The Annual General Meeting has not been held for seven years. Sh. B.L. Garg, a Retired

Addl. District Judge, Delhi was appointed as a Chairman of the meeting to complete the

urgent business and to hold fresh Annual General Meeting and elections. One group of

the society has expelled the Chairman, Mr. Hariram Hiranandani from his office by virtue

of Resolution which was communicated on 17th August, 2009. According to the

application, the expulsion is unlawful and without any notice as Civil Suit No.1661/2009

is pending in this court. In view thereof, Mr. Hariram Hiranandani continues to be the

Chairman of the defendant No.1 society and he has come to know that the society

through Sh. Ram V. Sutar, who is in control has now passed the Resolution to pay a sum

of Rs.11,00,000/- to the plaintiff in order to resolve the present matter despite the fact that

as per written statement, the said money is not due to the plaintiff.

4. The defendant No.1 society is a public charitable society and the courts are

custodians of the interest of public charities. No compromise in the suit can be allowed in

view thereof which ultimately goes against the interest of the public charitable society.

5. In reply to the application it is argued by Ms. Prerna, newly appointed Advocate

on behalf of the defendant No.1, that the application is not maintainable as the same has

been filed by Mr. Hariram Hiranandani, who has already been expelled from the post of

Chairman of defendant No.1 by Resolution dated 12th August, 2009 and order dated 17th

August, 2009. The allegations made by him are merely the personal objections and not

the decision of the members of the society. It is argued by the learned counsel that the

present suit is a case of recovery of money. The present objection raised by Mr. Hariram CS(OS) No.1089/2007 3 of 5 Hiranandani cannot be entertained as he is not associated with the defendant No.1 society

and he himself has admitted his expulsion in the present application. The filing of the

application on behalf of the existing Chairman tantamounts to contempt of court. It is

also argued by the learned counsel that the earlier advocate, who filed the application at

the behest of Mr. Hariram Hiranandani in the present suit is the same advocate who filed

the suit against the defendant No.1 society wherein Mr. Hariram Hiranandani challenged

his expulsion. The defendant No.1 has already terminated the services of Mr. Alok

Kumar, Advocate by writing to represent on behalf of the society after the expulsion of

the Chairman under the various provisions of Advocates Act, 1961.

6. It is also argued that in fact, it is Mr. Hariram Hiranandani who has withheld the

payment of the plaintiff but now the matter is being settled with the plaintiff, as they

agreed to settle the matter on 50% of the amount due to the plaintiff company, therefore,

the present application is liable to be dismissed with cost.

7. Learned counsel for defendant No.2 Mr. Prag Chawla submits that in view of the

settlement arrived at between the plaintiff and defendant No.1 before the Mediation and

Conciliation Center, the suit against the defendant No.2 is liable to be dismissed. He

further submits that in the settlement agreement dated 7th October, 2009 it is clearly

mentioned that defendant No.2 in the suit was a proforma party.

8. I have heard the learned counsel for the parties and have also gone through the

pleadings as well as the present application. The case of the plaintiff is that it had been

providing maintenance service to defendant No.2 BBC and defendant No.1 premises as

agreed between the parties. The defendant No.1 appointed a new agency for the said

services, however, the maintenance charges for the period October, 2003 to May, 2004

were admittedly not paid by the defendant No.1. A legal notice in this regard was also

served upon the defendant No.1 since no payment was made. A complaint against Mr.

Hariram Hiranandani and other Executive Committee members was also filed before the

Economic Offences Wing, New Delhi.

9. Admittedly, the said payment was not received by the plaintiff, hence the suit for

recovery of the said amount was filed for a sum of Rs.20,43,318.40 on behalf of the

CS(OS) No.1089/2007 4 of 5 plaintiff. After referring the matter to the Mediation and Conciliation Center on 29th

September, 2009 the plaintiff and defendant No.1 resolved their dispute by way of

Settlement Agreement dated 7th October, 2009. The settlement agreement was signed by

Mr. Sumit Bhasin, proprietor of plaintiff and Sh. Ram V. Sutar on behalf of defendant

No.1 as well as their respective counsels before two Mediators. It is not in dispute that

Mr. Hariram Hiranandani has already filed a separate suit for challenging his expulsion in

which no interim orders have been passed. Therefore, there is no impediment not to

allow the settlement arrived at between the parties before the Mediators.

10. The present application filed by the applicant Mr. Hariram Hiranandani appears to

be false and frivolous and the same is dismissed. The suit of the plaintiff is disposed of

in view of the Settlement Agreement dated 7th October, 2009. The parties shall be bound

by the terms and conditions mentioned in para 6 of the report received from Mediators on

7th October, 2009. No costs. The pending applications in the matter stand disposed of.

MANMOHAN SINGH, J.

NOVEMBER 10, 2009
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CS(OS) No.1089/2007                                                                 5 of 5