Satish Kumar Malhotra vs Rajinder Bajaj
2011 Latest Caselaw 663 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 01.02.2011
                          Judgment Delivered on: 04.02.2011


+            RSA No.175/2004 & CM No.9290/2004

SATISH KUMAR MALHOTRA                 ...........Appellant
             Through: Mr.Rohit Kumar, Advocate.

                   Versus
RAJINDER BAJAJ
                                                  ..........Respondent
                   Through:      Mr.Ashok Bhalla, Advocate.


                             AND

CM(M) No.967/2004 & CM No.9240/2005 (for stay) & CM
No.9242/2004(for hearing the CM(M) with the RSA)


SATISH KUMAR MALHOTRA                 ...........Appellant
             Through: Mr.Rohit Kumar, Advocate.

                   Versus
RAJINDER BAJAJ
                                                  ..........Respondent
                   Through:      Mr.Ashok Bhalla, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. Satish Kumar Malhotra is the appellant before this court. He

has impugned the judgment dated 28.2.2004. Vide the impugned

judgment and decree dated 28.2.2004 the order of the trial judge

dated 15.12.1999 had been endorsed. The trial judge had

disposed of the petition under Section 20 of the Indian Arbitration

Act 1940 (hereinafter referred to as the „Arbitration Act‟) and

simultaneously allowed the application under Order 23 Rule 3 of

the Code of Civil Procedure (hereinafter referred to as the „the

Code‟) in terms of which the parties had entered into a valid

cancellation agreement dated 11.7.1997 cancelling their

agreement dated 30.11.1983. In terms of this compromise dated

11.7.1996 Satish Kumar Malhotra (hereinafter referred to as „the

appellant‟) had handed over the suit property i.e. property bearing

No.GI/10, G.T.Karnal Road, Industrial Area, Delhi to Rajinder Bajaj

(hereinafter referred to as „the respondent‟).

2. Factual matrix of the case is as follows:

i. Suit No.405/84 had been filed by the respondent against

the appellant under Section 20 of the Arbitration Act.

ii. Appellant had filed suit No.701/1987 against the

respondent praying for a declaration to the effect that he is a

tenant of respondent; accordingly decree for perpetual

injunction be granted in his favour and respondent be

restrained from interfering in his peaceful possession of the

suit property.

iii. Respondent filed an application under Section 34 of the

Arbitration Act seeking a stay of the proceedings in view of

the admitted agreement dated 30.11.1983.

iv. On 6.3.1986 the suit was stayed and the matter was

referred to the Sole Arbitrator Sh.SantoshKumar.

v. RCA No.52/1986 was filed by the respondent impugning

the order dated 6.3.1986.

vi. On 2.11.1987 the appeal was allowed and the matter

was remanded back to the civil judge to frame specific issues

and after allowing the parties to lead evidence decide the suit

afresh.

vii. This order dated 6.3.1986 had also been impugned by

the respondent in FAO No.66/1986 before the High Court.

This was disposed of on 31.8.1999. During the pendency of

this FAO the respondent had filed CM No.387/1988 which

was an application under Order 23 Rule 3 of the Code

seeking to take on record the compromise arrived at between

the parties which had been evidenced by document dated

11.7.1997.

viii. Vide order dated 31.8.1999 the High Court remitted

the matter back to the Civil Judge before whom the

proceedings under Section 20 of the Arbitration Act were

pending with a direction that CM No.387/1988 (which was an

application under Order 23 Rule 3 of the Code) to considered

afresh. This was in view of the categorical contention of the

appellant that he had only signed on a blank paper and never

agreed to handover the possession of the suit property to the

respondent. Vide the aforenoted order i.e. the order dated

31.8.1999 the Civil Judge was directed to take evidence and

decide the matter after giving opportunity to the respective

parties in accordance with law.

ix. Thereafter on 30.9.1999, the following three issues

were framed; they read as follows:

1. Whether the compromise/agreement dated 11.7.97 was voluntarily arrived at between the parties? OPA

2. Whether the signature of the respondent were obtained on the aforenoted agreement dated 11.7.97 under duress on the blank paper? OPR

3. Relief.

x. The respondent examined himself as AW-1; Rajinder

Kumar Sahi a witness to the agreement dated 11.7.1997 was

examined as AW-2. The appellant had examined 13

witnesses including himself.

xi. On 15.12.1999, on the basis of the oral and

documentary evidence led before the trial court the Civil

Judge allowed the application under Order 23 Rule 3 of the

Code. It held that the compromise agreement dated

11.7.1997 had voluntarily been entered into between the

parties and the parties had voluntarily and willfully

compromised the matter in terms of the application under

Order 23 Rule 3 of the Code. Suit of the appellant was

dismissed. Petition under Section 20 of the Arbitration Act

was also disposed of; this was vide a common order dated

15.12.1999.

xii. Two appeals i.e. RCA No.21/2003 and RCA No.22/3003

were filed against the impugned judgment and decree; they

were in suit No.405/1984 and Suit No.701/1987 respectively.

Vide a common judgment dated 28.2.2004 both the appeals

were dismissed. The impugned judgment had re-appreciated

the oral and documentary evidence led by the respective

parties including the oral versions of AW-1 and AW-2 as also

RW-1 to RW-13. The testimonies of the witnesses of the

respondent were found to be credible. The impugned order

allowing the application under Order 23 Rule 3 of the Code

i.e. CM No.387/1988 was considered. Petition under Section

20 of the Arbitration Act was disposed of as compromised in

view of the cancellation agreement dated 11.7.1997 entered

into between the parties.

3. A second appeal i.e. RSA No.175/2004 has been filed by the

appellant; CM(M) No.967/2004 had also simultaneously been

preferred against the same judgment.

4. On behalf of the appellant, it has been urged that a

substantial question of law has arisen in the second appeal;

findings in the impugned judgment are perverse; the impugned

judgment has made reference to Ex.AW-1/2 as the compromise

petition under Section 23 Rule 3 of the Code which was an

incorrect observation; the application under Order 23 Rule 3 of the

Code was CM(M) No.387/1998. Attention has been drawn to para

8 onwards of the impugned judgment. It is submitted that a

perusal of the same shows that the Presiding Officer had not

applied its mind and that is why, not at one place but at several

places the compromise petition under Section 23 Rule 3 of the

Code has been referred to as Ex.AW-1/2; in fact, this shows that

CM No.387/1998 which was in fact the compromise application had

not been adverted to at all. This has raised a substantial question

of law. Attention has been drawn to the version of AW-1 Rajinder

Bajaj. It is pointed out that in the cross-examination, he had

admitted that on 09.7.1997 criminal proceedings were pending

inter se between the parties. He had admitted that on 9.7.1997 he

had lodged a FIR against the appellant which had been withdrawn

on the same day on the asking of Ramesh Sehgal who was a

witness to Ex.AW-1/1; it is pointed out that Ex.AW-1/1 was the

cancellation agreement dated 11.7.1997; on 9.7.1997 the

document dated 11.7.1997 had not been created; reference by PW-

1 in his cross-examination to Ramesh Sehgal witnessing Ex.AW-1/1

as the person who had put pressure upon him to withdraw the FIR

clearly reveals the falsity of the witness. It is pointed out that

RW-11 Ramesh Sehgal who was the attesting witness to this

cancellation agreement had clearly supported the case of the

appellant; the impugned judgment giving effect to the compromise

dated 11.7.1997 is a perversity. It is pointed out that in para 20 of

the judgment of the trial court, the trial judge had also noted

contradictions between versions of AW-1 and AW-2 yet he has

chosen to rely upon the said versions. The impugned judgment

endorsing these findings; is a perversity and call for an

interference.

5. Arguments have been countered. It is submitted that the

parties had voluntarily entered into the compromise; the

compromise had been reduced into writing on 11.7.1997 in terms

of which the parties i.e. the appellant Satish Kumar Malhotra and

the respondent Rajinder Bajaj had settled all their disputes and

differences. All the contentions now raised before this Court have

been dealt with in the impugned judgment. The findings of the

courts below call for no interference. Counsel for the

respondent has placed reliance upon (1999) 3 SCC 529 Kanhaiya

Lal Vs. Babu Ram as also (1999) 6 SCC 343 Karnataka Board of

Wakfs Vs. Anjuman-E-Ismail as also another judgment of the Apex

Court reported in 2010 (6) Scale 368 UOI Vs. Ram Prakash to

support his submission that concurrent findings of fact by two

Courts below cannot be interfered with. The scope for interference

by the High Court in an appeal under Section 100 is limited; it is

confined only to substantial questions of law; no interference is

called for on any other count.

6. Record has been persued.

7. The facts have been aforenoted. Suit No.405/1984 had been

filed by Rajinder Bajaj against Satish Kumar Malhotra; which was a

petition under Section 20 of the Arbitration Act. Simultaneously

suit bearing no.701/1987 titled as Satish Kumar Malhotra Vs.

Rajinder Bajaj had been filed by Satish Kumar Malhotra against the

defendant wherein Satish Kumar Malhotra claimed himself to be a

tenant under Rajinder Bajaj. Pursuant to the application under

Section 34 of the Arbitration Act, the suit proceedings were stayed.

Reference was made to the Sole Arbitrator Santosh Kumar; this

was vide order dated 6.3.1986. Appeals were filed against the

aforenoted order dated 6.3.1986. Matter was again remitted back

to the Civil Judge for disposal of the petition under Section 20 after

framing of issues. The appeal impugning the order dated 6.3.1986

was preferred in the High court was disposed of on 31.8.1999

directing the Civil Judge before whom the petition under Section

20 of the Arbitration Act was pending to consider the plea of Satish

Kumar Malhotra that the compromise agreement dated 11.7.1997

was not a voluntary compromise agreement and the signatures of

Satish Kumar Malhotra had been obtained on a blank paper under

duress.

8. Two concurrent findings of fact had been recorded by the

Courts below. The two witnesses had been examined on behalf of

the appellant Rajinder Bajaj of whom Rajinder Bajaj was examined

as AW-1. Nothing has been elicited in his cross-examination which

could shake his testimony. He has categorically averred that the

parties had voluntarily entered into a compromise on 11.7.1997

and Satish Kumar Malhotra had put his signatures on the said

document at point A. This compromise agreement has been proved

as Ex. AW-1/1; therewere two witnesses to this agreement of whom

Ramesh Sehgal had been examined as RW-11. RW-11 has

supported the stand of Satish Kumar Malhotra stating that the

signatures of Satish Kumar Malhotra had been obtained on blank

papers forcibly under pressure; he had admitted that he is „Samdi‟

of Satish Kumar Malhotra as his brother‟s daughter is married to

the son of Satish Kumar Malhotra. The other attesting witnesses

to this agreement was AW-2 Rajinder Kumar Sahi who had

supported the stand of the appellant. These oral versions as also

the documentary evidence which included Ex.AW-1/1 to Ex.AW-1/3

were examined and scrutinized by the courts below. Testimony of

RW-5, the Notary Public, as also the version of RW-11 Ramesh

Sehgal has been rejected. The court had noted that Satish Kumar

Malhotra examined as RW-4 and Ramesh Sehgal examined as

RW-11; had admitted that they had not lodged any report to the

police to the effect that it was under threat and coercion that they

had signed certain blank papers; the alleged threats had also not

been explained. Compromise agreement Ex.AW-1/1 dated

11.7.1997 was held to be a voluntary agreement arrived at

between the parties wherein the respondent has appended his

signatures willfully.

9. Relevant at this stage would it be to examine the aforenoted

documents. Ex.AW-1/1 is the cancellation agreement which is

dated 11.7.1997; it is signed by Satish Kumar Malhotra as a first

party not on one page but on both the two pages of the document.

Contention of Satish Kumar Malhotra that he was coerced to sign

one blank paper is thus belied. He is not clear as to whether it

was one blank or more than one blank paper on which he had

signed. One attesting witness to this said document (AW-2) had

fully supported this document stating that both the parties had

signed the document in his presence. This witness was known to

both the parties equally; he was the secretary of the GT Karnal

Road Manufacturer Association and was a neutral witness. His

statement was also recorded earlier on 28.5.1998 under Order X of

the Code in the High Court wherein he had stuck to the same

stand. Per contra the second attesting witnesses to this agreement

RW-11 (Ramesh Sehgal) was closely related to Satish Kumar

Malhotra; although, he had stated that Satish Kumar Malhotra

had been coerced to sign on blank paper, he admitted that no

complaint of this coercion was ever reported to the police. After

scrutiny of his version he was held not to be a credible witness.

10. Ex.AW-1/2 was the compromise petition under Order 23 Rule

3 of the Code. The signature of Satish Kumar Malhotra appeared

in the column of the defendant; it is a single page application;

Satish Kumar Malhotra had earlier signed in the column of the

plaintiff; thereafter his signature was scored off and written in the

column of the defendant. Admittedly, these are the signatures of

Satish Kumar Malhotra. The Court had correctly noted that had

the signatures of Satish Kumar Malhotra been appended on a blank

paper, they would not have first appeared in the column above the

plaintiff; thereafter scored off and rightly recorded in the column

above the defendant.

11. Ex.AW-1/3 is a ditto of Ex.PW-1/2 and had been exhibited in

the second suit proceedings.

12. The minor contradictions pointed out by learned counsel for

the appellant in the version of AW-1 and AW-2 have been dealt with

by the two courts below. Credibility of AW-1 and AW-2 had been

established qua the testimony of the witnesses of the respondent;

the documentary evidence proved as Ex.AW-1/1 to Ex.AW-1/3 also

evidenced that the respondent Satish Kumar Malhotra had

voluntarily, willfully and without coercion or duress had appended

his signatures on the cancellation agreement Ex.AW-1/1.

13. Ex.AW-1/2 was the application under Order 23 Rule 3 of the

Code which had been filed before the Court of Mr.Daya Prakash,

Civil Judge; this was a compromise petition dated 11.7.1997 under

Order 23 Rule 3 of the Code signed by both the parties. CM

No.387/1988 was the compromise petition which had been filed

before the High court; this was dated 23.1.1988 and was an

application filed by Rajinder Bajaj in the pending FAO No.66/1986;

this was signed by the respondent alone. In para 8 of the impugned

judgment inadvertently reference has been made to Ex.AW-1/2 as

the compromise petition filed jointly by the parties under Order 23

Rule 3 of the Code. This was in fact the joint petition filed before

the Civil Judge. This, however, does not in any manner support the

submission of the appellant that CM No.387/1998 had not been

adverted to. In fact in para 3 of the impugned judgment the

Presiding Officer had correctly noted that in terms of the orders of

the High court dated 31.8.1999 the Court had been directed to

consider afresh the application of Rajinder Bajaj under Order 23

Rule 3 of the Code and the whole body of the impugned judgment

is herewith bordered thereupon. There is no perversity on this

score as has been emphasized by the learned counsel for the

appellant.

14. Courts below had rightly returned a concurrent finding that

the cancellation agreement Ex.AW-1/1 dated 11.7.1997 had

cancelled the business agreement dated 30.11.1983 entered into

between the Satish Kumar Malhotra and Rajinder Bajaj; appellant

Satish Kumar Malhotra had removed his goods from the suit

property and the parties had further agreed to withdraw all

pending litigation inter se between the parties.

15. The appeal is yet at the stage of admission. The substantial

question of law has been formulated on page 27 of the body of the

appeal; they read as follows:

"a. Whether the judgements of the Ld. Lower Courts are untenable in law as the same have been based on mere conjectures, surmises and inferences contrary to the facts and circumstances and the evidence on record?

b. Whether the conclusions arrived at by the Ld. Lower Courts are bad in law as being based on misinterpretation, misreading and ignoring material evidence on record?

c. Whether the Ld. Lower Courts exceeded the jurisdiction vested in the Ld. Lower Courts?

d. Whether the Ld. Lower Courts have erred in law in following a procedure untenable and vitiated in law in dismissing the suit of the plaintiff?

e. Whether the conclusions arrived at by the Ld. Lower Courts that a compromise had been arrived at between the parties without the basic ingredients of the compromise alleged by one party still not being fulfilled as is apparent from the record, vitiated in law?

f. Whether the Ld. Lower Courts have gravely erred in law in giving findings on the basis of a forged document? g. Whether the suit of the plaintiff seeking substantial relief for protection of valuable rights could be dismissed summarily on the erroneous findings based on a forged document in a separate proceeding?

h. Whether the Ld. Courts could record a compromise which was illegal and barred under the law and on the basis of the compromise dismissed the suit of the plaintiff?"

16. In the judgment of Ram Prakash (supra) the Supreme Court

relied upon its earlier judgment reported in (1998) 6 SCC 683

Sheel Chand Vs. Prakash Chand of the Apex Court inter alia held

as follows:

"7.......The existence of a "substantial question of law" is the sine qua none for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 CPC. It appears that the learned Single Judge overlooked the charge brought about to Section 100 CPC by the amendment made in 1976. The High court unjustifiably interfered with pure questions of fact while exercising jurisdiction under section 100 CPC. It was not proper for the learned Single Judge to have reversed the concurrent findings of fact while exercising jurisdiction under Section 100 CPC."

17. The aforenoted substantial questions of law do not arise; no

substantial question of law has arisen.

18. CM(M) No. 967/2004 has also impugned the judgment dated

28.2.2004. This is a petition under section 227 of the Constitution

of India, where powers of the High Court are superintending

powers. Interference is called for only when there is a patently

wrong decision arrived at by a judicial or quasi judicial Tribunal

either on fact or on law, No interference is called for where

substantial justice has been done to the parties or where in the

larger interest it would not be prudent to issue such a writ.

19. Concurrent findings of the both the Courts below calls for no

interference. The RSA, CM(M) as also the pending applications are

dismissed.

INDERMEET KAUR, J.

FEBRUARY 4, 2011 nandan