M/S Jga Fasion Private Limited vs Krishan Kumar Khanna & Ors.
2011 Latest Caselaw 5318 Del

*              HIGH COURT OF DELHI: NEW DELHI

%                                  Orders pronounced on: 03.11.2011

+                       CS(OS) No.66/2010

M/S JGA FASION PRIVATE LIMITED               ..... Plaintiff
                 Through Ms. Anjali Manish, Adv.

                        Versus

KRISHAN KUMAR KHANNA & ORS                 ..... Defendants
              Through Mr. Arun Khosla, Adv. for the
                      defendants.
                      Mr. Simran Mehta, Adv. for the
                      applicant Mr. Manmohan Singh Ghai,
                      in I.A. No.17304/2011.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?

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

MANMOHAN SINGH, J. (ORAL)

I.A. No.13751/2011 (u/s 151 CPC, by the defendants), I.A. No.15786/2011 (u/s 151 CPC for modification of order dated 20.05.2011, by the plaintiff), I.A. No.17304/2011 (u/o 1, R.10 CPC by applicant M.S.Ghai) and I.A. No.17305/2011 (for exemption, by applicant M.S.Ghai)

1. The parties have addressed their submissions on the

above-mentioned applications.

2. Firstly, I shall take up the application being I.A. No.15786/2011

filed by the plaintiff, M/s JGA Fashion Private Limited, for modification of

order dated 20.05.2011.

3. The above-mentioned suit was filed by the plaintiff seeking the

decree of specific performance to renew the lease deed dated 02.08.2004 in

respect of the property situated at 10189/92, Arya Samaj Road, Karol Bagh,

Delhi, for a further period of four years, and for injunction. Another suit

bearing CS(OS) No.1773/2010 was filed by the defendants for possession.

On 19.05.2011 when both the suits were listed before the Court, the parties

and their counsels appeared and agreed to settle both the matters on the

following terms:-

"(i) The plaintiff in CS(OS) No.66/2010 shall unconditionally withdraw the suit bearing CS(OS) No.66/2010.

(ii) Suit bearing CS(OS) No.1773/2010 shall be decreed. However, the execution of the decree shall remain suspended till 1st April, 2012 subject to the following conditions:-

(a) M/s JGA Fashion Pvt. Ltd. and its Directors, Mr.Vinod Chhabra and Mr. Arvinder Singh, shall pay damages at the rate of 8.5 lakhs per month to the plaintiffs in CS(OS) No.1773/2010 by 10th of each English calendar month commencing from 1st May, 2011.

(b) TDS certificates in respect of deductions made from the damages shall be handed over to the plaintiff in CS(OS) No.1773/2010 within one month.

(c) In the event of two consecutive defaults, the plaintiffs in CS(OS) No.1773/2010 shall be entitled to approach this Court for appropriate orders.

(d) In the event of default of the aforesaid payment, M/s JGA Fashion Pvt. Ltd. as well as their Directors shall also be liable to pay further damages at the rate of Rs.5,000/- per day with effect from the date of the default in addition to Rs.8.5 lakhs per month till the date of handing over of the possession.

(e) M/s JGA Fashion Pvt. Ltd. and its Directors shall clear the previous arrears and shall hand over the pending TDS certificates or the payment in lieu thereof to the plaintiffs in CS(OS) No.1773/2010 on or before 15th June, 2010."

4. In view of the above said terms and conditions, a joint

application was filed before the Court under Order XXIII, Rule 3 CPC

being I.A. No.9032/2011 along with the compromise Ex.C1 and vide order

dated 20.05.2011the terms and conditions were duly recorded. The order

dated 20.05.2011 reads as under:-

"CS(OS) 66/2010 and I.A. No.......(to be numbered) CS(OS) 1773/2010 and I.A. No......(to be numbered)

1. The parties have amicably resolved all their disputes and have filed joint application under Order XXIII Rule 3 of the Code of Civil Procedure. The application is taken on record. Let the same be numbered by the Registry.

2. The compromise application under Order XXIII Rule 3 of the Code of Civil Procedure is signed by both the parties as well as by their respective counsels and is also supported by their affidavits. Both the parties are present in Court along with their counsels and they affirm the terms of settlement. The application under Order XXIII Rule 3 of the Code of Civil Procedure and the affidavits is marked as Ex.C-1.

3. The compromise Ex.C-1 has been signed by Arvinder Singh, Director of JGA Fashion Private Limited. Let the Board resolution authorizing Mr. Arvinder Singh, Director of JGA Fashion Private Limited to enter into the compromise Ex.C-1 be placed on record within one week with advance copy to the opposite counsel.

4. M/s JGA Fashion Private Limited and its director, Mr. Arvinder Singh undertake not to create any third party interest in respect of the suit property and further to handover the vacant and peaceful possession of the suit property to the landlord on or before 1st April, 2011 in terms of the compromise application Ex.C-1. The undertaking of M/s JGA Fashion Private Limited and its director is hereby accepted.

5. The learned counsel for the landlords submit that the cheques in respect of the payment of damages be given to Mr. Krishan Kumar Khanna at the address given below to which the learned counsel for M/s JGA Fashion Private Limited has no objection:-

„D-40, South Extension, Part-I, New Delhi -110049‟

6. The compromise between the parties is lawful and is recorded. CS(OS) No.1773/2010 is decreed and CS(OS) No.66/2010 is dismissed as withdrawn in terms of the compromise Ex.C-1. Both the parties shall remain bound by the terms of compromise.

7. The learned counsels for both the parties submit that in the 5th line of para 1 of the order dated 19th May, 2011, Mr. Krishan Kumar Khanna, Mr. Satish Khanna, Mr. Sanjeev Khanna and Mr. Umesh Khanna have been recorded as plaintiffs in suit bearing CS(OS) No.66/2010 whereas they are the plaintiffs in suit bearing CS(OS) No.1773/2010 and the defendants in suit bearing CS(OS) No.66/2010. The error in the 5th line of para 1 of the order dated 19 th May, 2011 is corrected and the appearance of Mr. Krishan Kumar Khanna, Mr. Satish Khanna, Mr. Sanjeev Khanna and Mr. Umesh Khanna be read as plaintiffs in suit bearing CS(OS) No.1773/2010 and as defendants in suit bearing CS(OS) No.66/2010.

8. Copy of this order be given „Dasti‟ to learned counsel for both the parties under signature of Court Master."

5. Now, the above-mentioned application has been filed by the

plaintiff for modification of the above said order dated 20.05.2011 in

respect of the amount of damages @ Rs.5.5 lac in place of Rs.8.5 lac per

month and also for removing the penalty clause @ Rs.5,000/- per day with

effect from the date of default.

6. It appears from the terms and conditions recorded by the Court

in the orders dated 19.05.2011 and 20.05.2011, the suit of the plaintiff was

dismissed and the suit filed by the defendants was decreed by mutual

consent. The present application under these circumstances is not

maintainable. Firstly, the suit of the plaintiff was dismissed in the presence

of the parties. Now, the present application has been filed after the expiry

of four months from the date of passing of the said order. The application

is totally misconceived, it is an after-thought and the same is liable to be

dismissed. Thus, the same is dismissed with cost of Rs.5,000/- to be

deposited by the plaintiff with the Prime Minister‟s Relief Fund, within two

weeks from today.

7. Now, I would like to take the second application bearing I.A.

No.17304/2011 filed by the applicant Mr. Manmohan Singh Ghai, under

Order 1, Rule 10 read with Section 151 CPC, praying that he be impleaded

as a party in the suit bearing CS(OS) No.66/2010 which was already

dismissed by the order dated 20.05.2011. Admittedly, the applicant was not

a party in the said suit. The application has been filed after the expiry of

more than 5½ months. The same is also not maintainable, as the suit in

question has already been dismissed. The present application along with

the exemption application bearing I.A. No.17305/2011 is dismissed with

cost of Rs.5,000/- to be deposited by the applicant with the Prime

Minister‟s Relief Fund, within two weeks from today. However, the

applicant is at liberty to take other remedies if available to him in

accordance with law.

8. The third application bearing I.A. No.13751/2011 has been filed

by the defendants, with the following prayer:-

"It is most respectfully prayed that this Court may be pleased to direct the plaintiff to -

(i) make the payment in the sum of Rs.17 lac along with such interest as deemed proper by this Court from the dates that the various payments towards damages became due,

(ii) make the payment in such sum of money calculated at the rate of Rs.5,000/- per day from the 1st July, 2011 along with such interest as deemed proper by this Court from the dates that the various payments towards the said damages became due,

(iii) make the payment in the sum of Rs.14,04,200/- in lieu of the TDS Certificates that the plaintiff has not delivered and will never be in a position to deliver in view of its never having deposited the said deductions with the Department, and

(iv) hand over peaceful vacant possession of the demised premises forthwith."

9. It appears from the application that despite the terms and

conditions having been recorded by the Court on 19.05.2011 in the

presence of the parties as well as in the applications under Order XXIII,

Rule 3 CPC for settlement on 20.05.2011, the plaintiff has committed a

default in certain payments to the defendants, i.e. payment of damages @

Rs.8.5 lac for certain period as well as payment in lieu of the TDS

Certificates. Mr. Khosla submits that in view of that, the defendants are

entitled for the peaceful vacant possession of the suit property and the other

reliefs claimed in the application. He has also referred Clause (d) of the

settlement which reads as under:-

"(d) In the event of default of the aforesaid payment, M/s JGA Fashion Pvt. Ltd. as well as their Directors shall also be liable to pay further damages at the rate of Rs.5,000/- per day with effect from the date of the default in addition to Rs.8.5 lakhs per month till the date of handing over of the possession."

10. The above-mentioned application filed by the defendants is

allowed only to some extent for the reason that despite of undertaking given

by the plaintiff, the terms and conditions are not complied with. The

defendants, under these circumstances, may take the appropriate remedy in

accordance with law. The reliefs sought by the defendants in the present application

under Section 151 CPC cannot be granted. However, the defendants are at liberty

to take the necessary steps in accordance with law for the enforcement of

decree. The application is disposed of, as no further orders are required to

be passed.

11. Copy of this order be given Dasti to the learned counsels for the

parties.

MANMOHAN SINGH, J.

NOVEMBER 03, 2011/ka