Sh. Syed Afi Moazzam vs Smt. Nafees Fatma & Ors.
2010 Latest Caselaw 5128 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment Pronounced on: 11.11.2010

+           CS(OS) No. 455/2008
SH. SYED AFI MOAZZAM                               ..... Plaintiff

                             - versus -

SMT. NAFEES FATMA & ORS.                        ..... Defendants

Advocates who appeared in this case:

For the Plaintiff : Mr Nasis Aziz, Adv.
For the Defendant : Mr S.H. Nizami, Adv. for D-1 to 4
                   : Mr Satish Kumar Verma, Adv. for D-5

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

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

2. To be referred to the Reporter or not? No

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

V.K. JAIN, J (Oral)

1. This is a suit for declaration, partition, rendition of

accounts, mandatory injunction and permanent injunction.

Defendant No.1 Smt. Nafees Fatma Hashmi is the mother

of the plaintiff No.1 and defendants 2 to 5. Plaintiff No.2 is

the wife of plaintiff No.1. Vide order dated 15th January,

2010, this Court noted that parties were closely related and

purposed to explore the possibility of a settlement. They

were directed to appear before Delhi High Court Mediation

and Conciliation Centre on 22nd January, 2010. When the

matter was taken up on 07th April, 2010, the Court was

informed by the learned counsel for the parties that an oral

settlement had been arrived between the parties and some

time was required to produce the same in the written. The

parties were again directed to appear before the Mediation

Centre on 15th April, 2010.

2. On 17th May, 2010, a settlement agreement was

recorded before Delhi High Court Mediation and

Conciliation Centre which is Ex.P-2. All the parties to the

suit were also the parties to the settlement agreement dated

17th May, 2010. The settlement agreement was signed by all

of them in the presence of Mediators and their counsels Mr.

Nasis Aziz was representing the plaintiff, whereas Mr.

S.Hilal Nizami was appearing for the defendants. The

settlement agreement was also signed by both the counsels.

3. Under the terms of agreement dated 17th May,

2010, the parties agreed as under:-

"(b) That it is decided that all the parties will jointly apply to

the concerned banks for release of funds lying in all such

bank accounts as held by Late Zahir Anjum Hashmi as on

the date of his demise and all such funds lying in these

bank accounts shall be distributed amongst the parties as

per their sharing ratios.

(c) That it has also been agreed that the First party

relinquishes his claim on the business of Late Zahir Anjum

Hashmi carried on under the name S P Powder Coating as

well as the Maruti Car No. DL 2C AA 2047.

(d) That it has been unanimously agreed that property No.

J-60 A would henceforth belong exclusively and would

remain under the use and possession of the party of the one

part to the exclusion of all other parties/legal heirs. It is

also made clear that Smt. Iffat wife of the First party shall

not lay any claim against the party of the second part.

(e) That the property No. J-12, Abul Fazal Encalve, Jamia

Nagar, New Delhi-110025, has already been disposed of.

(f) That it has also been unanimously agreed that the

property No. T-9C, Ghafoor Nagar, Jamia Nagar, New Delhi-

110025 shall be in the ownership of all the other legal heirs

to the exclusion of the party of first part and the defendant

No.5 i.e. Shri Razi Tariq Hashmi and will be

distributed/shared or dealt with in any other manner by the

remaining party of the second part.

(g) That after the execution of this compromise deed,

Plaintiff/the party of the first part and the Defendant No.5

i.e. Shri Razi Tariq Hashmi will not have any claim, title or

interest left in properties No.J -12 A and T-9C; on the other

hand the party of second part shall have no claim title or

interest left in property No.J-60A.

(h) That in lieu of the above settlement, the defendant No.5

ie. Shri Razi Tariz Hashmi shall be paid a sum of Rs

35,00,000/- (Rupees thirty five lakhs only) in full and final

settlement in respect of all the claims/properties mentioned

hereinabove by defendant No.4 i.e. Shri Shariq hashmi, on

behalf of himself and the Defendant Nos. 1 to 3 (i.e. his

mother and two sisters). Shri Shariq Hashmi undertakes to

pay the said total amount of Rs 35,00,000/- (Rupees thirty

five lakhs only) by way of five post dated cheques of Rs.

7,00,000/- (Rupees seven lakhs only) each on 25th May,

2010 before this Hon'ble Court. The said five post dated

cheques may be presented by the defendant No.5 i.e. Shri

Razi Tariq Hashmi on the following dates:-

i)          17.10.2010

ii)         17.11.2010

iii)        17.12.2010


 iv)         17.01.2011

v)          17.02.2011

(i)         That the party of second part has filed a suit for

possession with regard to property No. J-60A which is

pending in the Tis Hazari Court. In view of compromise

arrived at between the parties, the party of second pat, more

specifically Shri Shariq Hashmi on behalf of the party of

second part undertakes to withdraw the suit forthwith and

will not prosecute the said matter any further.

4. Defendant No.5 was to be paid Rs 35,00,000/- by

way of five post-dated cheques of Rs 7,00,000/- each. The

first cheque was encashable on 17.10.2010, the second

on 17.11.2010, the third on 17.12.2010, the fourth on

17.01.2011 and the fifth on 17.02.2011. This amount was

to be paid to him in full and final settlement of all the

claims/properties and the payment was to be made by

defendant No.4 for himself and for defendants 1 to 3. The

defendants were to withdraw the civil suit which they had

filed for possession with regard to Property No.J-60 A Abul

Fazal Encalve, Jamia Nagar, New Delhi. When this matter

was taken by the Court on 25th May, 2010, defendant No.5

was not present though his counsel was present. The

matter was adjourned to 02nd June, 2010. On that day, it

was pointed out by the plaintiffs that the defendants are

required to hand over the documents of title related to

property No. J-60 A Abul Fazal Enclave, Jamia Nagar, New

Delhi to the plaintiffs. When the matter was taken up on

02nd June, 2010, the learned counsel for the defendants

Mr.S.H. Nizami informed the Court that the defendants were

searching for the documents, mentioned in para 11 of the

settlement and sought some more time for this purpose. The

matter was adjourned to 28th July, 2010. On 28th July,

2010 also, defendant No.5 was not present in the Court

though defendant No.4 was present alongwith Mr S.S.

Nizami Adv. On that date, it was stated that the original

documents had been placed on the file of another case filed

by the defendants against the plaintiff. The learned counsel

for the defendants sought one week's time to produce the

documents in the Court. The matter was adjourned to 17 th

August, 2010. On 17th August, 2010, no one was present for

the parties and the matter was adjourned to 26 th August,

2010. On 26th August, 2010, the matter was adjourned to

08th September, 2010 on the request of the learned counsel

for the plaintiff. Defendant Nos.4 and 5 were present in

person on that date. On 08th September, 2010, defendant

No.5 was not present in the Court. On that date, the

plaintiff informed the Court that they had filed an

application under Order 1 Rule 10 of CPC. The matter was

adjourned to 23rd September, 2010. On 23rd September,

2010, defendant No.5 was not present and the application

under Order 1 Rule 10 of CPC for impleading the wife of the

then sole plaintiff as plaintiff No.2 was allowed by the Court

since no objection was raised by the defendants to her

impleadment as a co-plaintiff. The matter was directed to

be listed before the Joint Registrar at 11 AM on 28th

September, 2010 and before this Court at 2.15 PM on the

same date. On 28th September, 2010, the Joint Registrar

recorded the statements of the plaintiffs, defendant No.4

and Mr Shafi Ullah, Advocate, who appeared for defendant

No.5. The statement of defendant No.4 was recorded for

himself as well as for defendants 1 to 3, who executed a

Special Power of Attorney in his favour. All the five cheques

bearing No.786126 to 786130 for Rs 7,00,000/- each all

drawn on Delhi State Cooperative Bank Limited, Trikona

Park, Main Road, Okhla, New Delhi were accepted by Mr

Shafi Ullah, who appeared for defendant No.5 and he

undertook to file the original acknowledgement of the

cheques from defendant No.5 in favour of defendant No.1 to

4 within two weeks. When the matter was taken up by the

Court at 2.15 PM on that date, the Court was of the view

that it would be necessary to record the statement of

defendant No.5. The cheques that had been handed over to

his counsel were returned back to defendant No.4, who was

present in the Court and he was directed to bring the

cheques on next day. When the matter came up before the

Court on 07th October, 2010, defendant No.5 was not

present, despite earlier direction of the Court to remain

present in the Court. Cost of Rs 10,000/- was imposed

upon him and it was directed that in case he fails to put in

appearance, the matter would be disposed of in terms of the

settlement arrived at between the parties. Defendant No.4

was directed to remain present alongwith the cheques. The

matter was adjourned to 29th October, 2010.

5. When the matter was taken up on 29th October,

2010, statement of defendant No.5, who was present in the

Court, was recorded by the Court. He admitted that the

agreement Ex.P-2 was signed by him before Delhi High

Court Mediation & Conciliation Centre in the presence of his

counsel S.Hilal Nizami. He also admitted that his counsel

had also singed the settlement agreement 'X-1' in his

presence. He admitted that he had executed a vakalatnama

in favour of S.Hilal Nizami, which is available on the Court

file. He claimed to be a post-graduate with knowledge of

reading and writing English. He also stated that he had read

the settlement agreement Ex.P-2 and understood it before

he signed it. He, however, claimed that when he signed the

agreement on 17th May, 2010, he was in need of money and

that is why he was agreed to accept the cheques mentioned

in para 13(h) of the agreement Ex.P-2. He also admitted

that he had engaged Mr Shafi Ullah as his Advocate on 07th

September, 2010 and that he had appeared in the Court on

08th September, 2010. According to him, the post-dated

cheques, mentioned in the settlement agreement, were not

handed over to him on 08th September, 2010 and the matter

was adjourned to 23rd September, 2010. He admitted that

he had appeared before the Joint Registrar on 23rd

September, 2010. He also admitted that he had not

appeared before the Court at any time after 08 th September,

2010.

6. It is quite clear from the above discussion that the

parties to the suit, including defendant No.5 had willingly

and consciously entered into an agreement before Delhi

High Court Mediation and Conciliation Centre on 17th May,

2010, in the presence of their respective counsels.

Defendant No.5, who now, wants to back out of the

settlement, is not an illiterate person. He is a post-graduate

and admittedly, he had read and understood the settlement

agreement before it was signed by him. Admittedly, the

agreement was also signed by his counsel S.Hilal Nizami.

The grievance of defendant No.5, who is present in the

Court and is now represented by S.K. Verma, Advocate, is

that since the cheques were not handed over to him in time

he could not meet his requirement of funds and, therefore,

now he does not want to honour the agreement which was

executed before Delhi High Court Mediation and

Conciliation Centre on 17th May, 2010. As noticed earlier,

the five cheques which were to be given to defendant No.5

under the settlement agreement were all post dated

cheques, the first cheque being dated 17th October, 2010.

The cheques were tendered to his advocate, Mr Shafi Ullah

on 28th September, 2010. He himself did not appear before

the Court on 23rd September, 2010 though the date of 23rd

September, 2010 was fixed in his presence on 08th

September, 2010. The statement of his counsel Mr Shafi

Ullah was recorded by the Joint Registrar on 28 th

September, 2010 and the cheques were also accepted by

him. The cheques were returned back to defendant No.4

only because defendant No.5 was not present and the Court

felt that his statement was required to be recorded before

handing over the cheques to him or to his counsel. Had

defendant No.5 appeared in the Court on 23rd September,

2010 and/or 28th September, 2010, the cheques would have

been handed over to him and he could very well have

utilized the whole money, including the amount of the first

cheque which could not have been encashed before 17 th

October, 2010. It would be pertinent to note again that the

defendant No.5 did not appear before the Court on 07th

October, 2010, despite a specific direction having been given

for his personal appearance. Therefore, there was absolutely

no justification for his not remaining present in the Court

on 07th October, 2010. The Court had also to take recourse

to burden him with costs, on account of his remaining

absent, despite direction of the Court. Had he appeared in

the Court on 07th October, 2010, the cheques would have

been given to him and he would have been able to encash

even the first cheque on 17th October, 2010. Therefore,

there is no merit in the contention of defendant No.5 that he

was deprived of the use of the money on account of delay in

delivery of the cheques to him. Defendant No.5 cannot be

allowed to take advantage of his own act by his remaining

absent from the Court, despite direction of the Court. It is

not open to him to remain absent from the Court and then

say that the cheques were not given to him before 17 th

October, 2010. No useful purpose in any case would have

been served by giving the cheques to him before prior to 17th

October, 2010 when the first cheque could not have been

encashed before that date. Therefore, I have no doubt that

the reason given by defendant No.5 backing out of the

settlement agreement is nothing but an afterthought and a

lame excuse.

7. Order 23 Rule 3 of CPC, to the extent it is relevant,

provides that where it is proved to the satisfaction of the

Court that a suit has been adjusted wholly or in part by any

lawful agreement or compromise in writing and signed by

the parties, the Court shall order such agreement or

compromise to be recorded and shall pass a decree in

accordance therewith, so far as it relates to the parties to

the suit, irrespective of whether the subject matter of the

agreement or compromise is the same as the subject matter

of the suit or not. It further provides that where it is alleged

by one party and denied by the other party that an

adjustment or satisfaction has been arrived at, the Court

shall decide the question. In the case before this Court,

there is no dispute that the parties had actually entered into

a settlement. It is not permissible for defendant No.5 to

back out of the settlement arrived at between the parties

and recorded in writing before Delhi High Court Mediation

and Conciliation Centre. Hence, defendant No.4 is directed

to hand over the five post-dated cheques, mentioned in the

settlement agreement Ex.P-2 to defendant No.5, who is

present in the Court, in full and final settlement of all the

claims/properties, mentioned in the settlement agreement.

All the five cheques have been handed over to defendant No.

5 in the Court. I am informed that the civil suit, mentioned

in para 13(i) of the settlement agreement has already been

withdrawn. All the parties to the settlement will apply to

the concerned banks, in terms of Clause 13(b) of the

settlement, for release of funds lying in all such accounts as

on the date of the demise were held by late Zahir Anjum

Hashmi and all such funds lying in these bank accounts

shall be distributed amongst the parties as per their sharing

ratios. If defendant No.5 does not join in applying to the

concerned banks for release of funds, the bank will act in

this regard on the application of all other parties, on the

strength of the order being passed by this Court.

8. The suit is decreed in terms of the settlement

agreement Ex.P-2, subject to payment of additional Court

fee, if any, required to be paid in the light of the settlement

agreement. Decree sheet be prepared accordingly. The

settlement agreement Ex.P-2 shall form part of the decree.

There shall be no order as to costs. Defendant No.5 need

not to deposit costs of Rs 10,000/ which were imposed on

him vide order dated 07th October, 2010. It has been agreed

between the parties that defendant No.4 will initiate the

application to the banks for release of funds in terms of

para 13(b) of the settlement agreement and defendant No.5

will also sign that application as and when requested by

other parties to the suit. The Registry will examine the

matter to ascertain whether any additional Court fee is

required to be paid for preparing Decree Sheet in terms of

the settlement agreement Ex. P-2. If any additional Court

fee is required, the Registry shall communicate the same to

the parties to the suit within two weeks and the additional

Court fee shall be filed in the Court within one week,

thereafter. It is made clear that the Decree Sheet will be

prepared only if additional Court fee, if any, demanded by

the Registry is filed.

(V.K. JAIN) JUDGE NOVEMBER 11, 2010 bg/Ag