Inder Kumar Kathuria vs K.K. Kathuria & Ors.
2013 Latest Caselaw 627 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment Pronounced on: February 08, 2013

+                       I.A.No.20833/2012 in CS(OS) No.90/2004

        INDER KUMAR KATHURIA                    ..... Plaintiff
                     Through Mr.Manish K.Jha, Adv.

                        versus

        K.K. KATHURIA & ORS                                       ..... Defendants
                      Through                  Mr.Gaurav Puri, Adv. with
                                               Ms.Gayatri Puri & Ms.Jasmine Sethi,
                                               Advs.

        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The plaintiff, namely Inder Kumar Kathuria had filed the abovementioned suit for permanent injunction and recovery of possession of immovable property as well as for mesne profits against his brother, namely Krishan Kumar Kathuria, defendant No.1, and defendants No.2 to 4 who are the family members of defendant No.1.

2. During the pendency of the suit, the joint application under Order XXIII, Rule 3 CPC was filed by the parties, being I.A.No.7595/2004 for recording the settlement. The terms and conditions of the settlement were mentioned in the application. The same read as under:-

"(i) The plaintiff will sell the entire property to a third party within a period of 3 years from the passing of compromise decree at the price mutually agreed by the parties.

(ii) The plaintiff would pay to the defendant No.1, 29% of the gross sale consideration.

(iii) In case the plaintiff is not being able to sell the entire property to a third party within a period of 3 years from the passing of compromise decree, he will transfer the ownership/title of the first floor of the property to the defendant No.1."

3. The said application was allowed and the suit was accordingly disposed of by order dated 10th November, 2004.

4. The defendant No.1 in the year 2009 filed an execution petition being Ex.P.No.400/2008, praying that the decree be executed by directing the plaintiff to deliver the possession of the first floor of the property in question to defendant No.1. He also filed an application under Section 12 of the Contempt of Courts Act, 1971 for non-compliance of the order dated 10th November, 2004. By common order dated 19th November, 2009, the contempt application was dismissed, whereas the execution petition was allowed with the direction to draw a decree in terms of the settlement recorded in the order dated 10th November, 2004.

5. Aggrieved by the said order dated 19th November, 2009, the plaintiff filed an appeal before the Division Bench, being EFA(OS) No.5/2010. During the pendency of the appeal, the parties again worked out a mutually amicable solution and certain terms of the said settlement were proposed to be implemented, viz., as the plaintiff was not able to sell the property within three years of the compromise order, defendant No.1 was given right to the property and was entitled to get 29% of the agreed consideration in respect of the whole property and the plaintiff was to get 71% of the agreed consideration or process of bid be conducted as agreed between the parties and the higher bidder would get some time to deposit the amount, failing

which the auction will revert to the other party. A facilitator was appointed to assist the implementation of the terms and conditions of the agreement. However, on 1st November, 2010 on the basis of the report of the facilitator, it was recorded that no mutual settlement could be possible between the parties. The appeal filed by the plaintiff was disposed of by order dated 22nd March, 2012. As the said order was not complied with by the plaintiff, defendant No.1 thereafter filed an execution application for revival of the execution petition being Ex.P.No.400/2008, which had been disposed of by this Court by order dated 26th March, 2012.

6. Thereafter, in November, 2012, the plaintiff filed the application being I.A.No.20447/2012 for setting-aside the order dated 10th November, 2012. Along with the said application, another I.A.No.20469/2012 was also filed for condonation of delay. When the said applications were listed before Court on 9th November, 2012, after having addressed arguments for some time, learned counsel for the plaintiff sought to withdraw the same while reserving the right of the plaintiff to file appropriate applications for similar relief. The said leave was granted. Thereafter, the plaintiff filed the present application being I.A.No.20833/2012 under Order XXIII, Rule 3 read with Section 151 CPC for setting aside the compromise decree dated 19th November, 2009 passed by the Court in terms of the order dated 10 th November, 2004. The prayer was also made in the application that the suit be decided on merits after restoring the same.

7. I have gone through the averments made in the application. On the face of it, said application is not maintainable, for the following reasons:-

(a) Admittedly, the disputes between the parties were settled on the basis of the joint application filed by them under Order XXIII, Rule 3 read with Section 151 CPC being I.A.No.7595/2004. The

terms and conditions of the settlement are specifically mentioned in the said application. The execution was filed by defendant No.1 on account of failure on the part of the plaintiff to comply with the terms and conditions mentioned in the application. It is not the case of the plaintiff that by virtue of the said compromise, the defendants have played fraud upon the Court or the compromise arrived at between the parties was not legal.

(b) After the disposal of the suit, the decree has been framed under the provisions of Order XXIII, Rule 3A CPC which mandates a bar to fresh suit which shall not lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Thus, the decree is enforceable in law.

(c) As the plaintiff failed to comply with his obligations, defendant No.1 left with no option but to file the execution petition praying that the decree be executed by directing delivery of possession of the first floor of the property in question. Not only that, the plaintiff challenged the said order dated 19th November, 2009 before the Division Bench of this Court by filing of the appeal being EFA(OS) No.5/2010 and C.M.No.1286/2010 (for stay). Before the Division Bench, there was again a settlement between the parties and the above said appeal and the stay application were disposed of by order dated 22nd March, 2012, in the following terms:-

"In pursuance of our order dated 19.3.2012, the appeal and the application are disposed of in the following agreed terms:

i. The appellant will pay to the respondents a sum of `3.40 crore (mistakenly recorded as `3.04

crore on 19.3.2012), in the name of "Mr. Krishan Kathuria", in full and final settlement of the claim of the respondents against the 29 per cent share in the suit property within a period of sixty (60) days from today.

ii. In case the payment is not made within sixty (60) days, the appellant will get a grace period of another sixty (60) days but will have to pay interest @ 15 per cent per annum simple interest for the delayed period till date of payment.

iii. The possession of the first floor of the property will be handed over by the respondents to the appellant within sixty (60) days of the full consideration being paid by the appellant to the respondents with or without interest as the case may be.

iv. If the appellant fails to make payment to the respondents within the period of sixty (60) days as also within the grace period of sixty (60) days with interest, the directions contained in the impugned order would come into effect and the respondents will be entitled to get the sale deed registered in their name for the first floor of the property along with 29 per cent undivided share in the land within a period of one (1) month thereafter. In case the appellant fails to execute the sale deed, the sale deed will be executed by an Officer of this Court to be appointed for the said purpose.

The appeal and the application stand disposed of in the aforesaid terms."

(d) Admittedly, in terms of the said order, the plaintiff has not paid `3.40 crore to defendant No.1 as full and final settlement of the claim of defendant No.1 against his 29% share in the suit property within a period of 60 days from the date of the order i.e. 22nd

March, 2012. In the order, it was mentioned that in case the payment was not made within 60 days, the plaintiff would get a grace period of another 60 days but would have to pay interest @ 15% per annum (simple interest) for the delayed period till date of payment. It was also specifically mentioned in clause (iv) as mentioned above that if the plaintiff fails to make payment to the defendants within the period of 60 days as also within the grace period of 60 days with interest, the defendants would be entitled to get the sale deed registered in their names for the first floor of the property along with 29% undivided share in the land within a period of one month thereafter. It was also mentioned in the order of the Division Bench that in case, the plaintiff fails to execute the sale deed, the same will be executed by an Officer of this Court to be appointed for the said purpose. Apparently, the plaintiff has not paid `3.40 crore within the stipulated time nor shown any interest till today to pay the same during the course of hearing of the present application, except to challenge the order dated 19th November, 2009 passed in the execution petition. The plaintiff is also not prepared to execute the sale deed as mentioned in the order passed by the Division Bench.

8. For the aforesaid reasons, I am of the view that all the grounds made in the application filed by the plaintiff are false and frivolous, as the plaintiff himself has settled the matter with the defendants before the Division Bench. Now, he is debarred to take any plea raised in the present application, as he has failed to comply with any of the conditions of the consent order passed by the Division Bench. Thus, the application is

dismissed, with cost of `10,000/- to be deposited by the plaintiff with the Delhi High Court Mediation and Conciliation Centre within four weeks.

9. The defendants in terms of the order dated 22nd March, 2012 passed by the Division Bench would be entitled to the benefit as recorded in clause

(iv) of the said order. Since the execution petition is not listed before this Court, therefore, such direction for execution of sale deed cannot be passed while disposing of the present application.

10. The application is accordingly disposed of.

(MANMOHAN SINGH) JUDGE FEBRUARY 08, 2013/ka