Delhi High Court
Bela Kapoor & Ors vs Vandana Kapoor & Ors. on 21 March, 2013
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st March, 2013
+ CS(OS) 1375/2010 IA No.8887/2010 (u/O 39 R-1&2), 9663/2011
(u/S 151 CPC) , 10192/2011 (u/O 11), 10193/2011 (u/O 11 R-1),
16223/2011 (objection of plaintiff no.2 to settlement deed) &
5594/2012 (U/O 39 R 2A).
BELA KAPOOR & ORS .....Plaintiffs
Through: Mr. Harish Malhotra, Sr. Adv. with
Mr. Anuj Aggarwal, Advs for Kiran
Vijhani.
Mr. Aman Lekhi, Sr. Adv. with Mr.
Rajeshekher Rao & Ms. Simon
Benjamin, Advs. for P-4.
Versus
VANDANA KAPOOR & ORS. .... Defendants
Through: Mr. P. Banerjee & Mr. M. Baruah,
Advs. for D-1 & D-2
Mr. Rajiv Talwar, Advs. for D-4.
AND
+ CS(OS) 2298/2010, IA No.15120/2010 (u/O 39 R-1&2), 15121/2010
(u/O 2 R-2) & 15122/2010 (u/O 11 R-12&14).
VANDANA KAPOOR ..... Plaintiff
Through:
Versus
SATISH KAPOOR AND ORS ..... Defendants
Through: Mr. Aman Lekhi, Sr. Adv. with Mr.
Rajeshekher Rao & Ms. Simon
Benjamin, Advs. for D-1.
Mr. Rajiv Talwar, Adv. for D-5
CS(OS) Nos.1375, 2298, 2299 of 2010, CS(OS) 1642/2011 & CS(OS) 741/2012 Page 1 of 39
AND
+ CS(OS) 2299/2010 & IA No.15125/2010 (u/O 39 R-1&2)
VANDANA KAPOOR & ANR. .... Plaintiffs
Through:
Versus
SATISH KAPOOR ..... Defendant
Through: Mr. Aman Lekhi, Sr. Adv. with Mr.
Rajeshekher Rao & Ms. Simon
Benjamin, Advs. for D-1
AND
+ CS(OS) 1642/2011, IA No.10535/2011 (u/O 39 R-1&2), 5541/2012
(u/O VIII R-10), 5891/2012 (for delay), 9536/2012 (u/o39 R-4),
10187/2012 (u/O 7 R-11), CCP (O) 26/2012
SATISH KAPOOR ..... Plaintiff
Through: Mr. Aman Lekhi, Sr. Adv. with Mr.
Rajeshekher Rao & Ms. Simon
Benjamin, Advs.
Versus
VANDANA KAPOOR & ORS. ..... Defendants
Through: Mr. Raman Kapoor, Sr. Adv. with
Mr. Mohit Chaudhary, Pragya Singh
& Mr. Harsh Sharma Adv. for D-
3&4.
Mr. Harish Malhotra, Sr. Adv with
Mr. Thehak, Adv. for D-8.
Mr. Rajiv Talwar, Adv. for D-5
AND
CS(OS) Nos.1375, 2298, 2299 of 2010, CS(OS) 1642/2011 & CS(OS) 741/2012 Page 2 of 39
+ CS(OS) 741/2012, IA No.5511/2012 (u/O 39 R-1&2), 11183/2012
(u/O 39 R-1&2) & CC No.68/2012
SATISH KAPOOR & ORS ..... Plaintiffs
Through: Mr. Aman Lekhi, Sr. Adv. with Mr.
Rajeshekher Rao & Ms. Simon
Benjamin, Advs. for P-4.
Versus
ANKUR ARORA AND ORS ..... Defendants
Through: Mr. Raman Kapoor, Sr. Adv. with
Mr. Mohit Chaudhary, Pragya Singh
and Mr. Harsh Sharma Adv. for D-1
to 3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
% JUDGMENT
21.03.2013
1.
CS(OS) No.1375/2010 is filed, (i) for declaration that the four
plaintiffs namely Ms. Bela Kapoor, Ms. Kiran Vijhani, Ms. Neelam Deewan
and Mr. Satish Kapoor and the defendants No.1 and 4 namely Ms. Vandana
Kapoor and Ms. Anu Kawatra, being the legal heirs of late Sh. Raja Ram
Kapoor, are the owners of property No.B-5/81, Safdarjung Enclave, New
Delhi-110029; (ii) for declaration that the mutation of the said property and
conveyance of freehold rights in the land underneath the same by the Delhi
Development Authority (DDA) in favour of the defendants No.1 and 2
namely Ms. Vandana Kapoor and Ms. Sonika Pruthi is null and void; (iii)
for injunction restraining the defendants No.1 & 2 namely Ms. Vandana
Kapoor and Ms. Sonika Pruthi from dealing with the property No.B-5/81,
Safdarjung Enclave, New Delhi; and, (iv) for damages for use and
occupation.
2. CS(OS) No.2298/2010 is filed by Ms. Vandana Kapoor against Mr.
Satish Kapoor, Ms. Kiran Vijhani, Ms. Neelam Deewan, Ms. Bela Kapoor,
and Ms. Anu Kawatra, (i) for declaration that Mr. Satish Kapoor has no
right whatsoever in the estate of late Sh. Raja Ram Kapoor, having been
disowned and disinherited in the lifetime of Sh. Raja Ram Kapoor; (ii) for
declaration that property No.F-130/4, Western Avenue, Sainik Farms, New
Delhi is an integral part of the estate of late Sh. Raja Ram Kapoor; (iii) for
partition of, (a) Shop No.1251, Kaccha Bagh, Chandni Chowk, Delhi-06;
(b) Shop No.1253, Kaccha Bagh, Chandni Chowk, Delhi-06; (c) Shop
No.4E, New Market, Kamla Nagar, Delhi-06; and, (d) Property No.F-130/4,
Western Avenue, Sainik Farms, New Delhi, between Ms. Vandana Kapoor,
Ms. Kiran Vijhani, Ms. Neelam Deewan, Ms. Bela Kapoor, and Ms. Anu
Kawatra; (iv) for mandatory injunction to Mr. Satish Kapoor to give
accounts of movable assets of late Sh. Raja Ram Kapoor removed by him;
(v) for partition of the movable assets of late Sh. Raja Ram Kapoor; and,
(vi) for injunction restraining Mr. Satish Kapoor from dealing with the
estate of late Sh. Raja Ram Kapoor.
3. CS(OS) No.2299/2010 is filed by Ms. Vandana Kapoor and Ms.
Sonika Pruthi against Mr. Satish Kapoor for (i) possession of Shop
No.1252, Kaccha Bagh, Chandni Chowk, Delhi-06; (ii) permanent
injunction restraining Mr. Satish Kapoor from dealing with the said shop;
(iii) recovery of Rs.36 lakhs towards past mesne profits with respect to the
said shop; and, (iv) for future mesne profits/damages for use and occupation
of the said shop.
4. The aforesaid three suits were vide order dated 24th May, 2011
referred to the Delhi High Court Mediation and Conciliation Centre and the
parties i.e. Ms. Bela Kapoor, Ms. Kiran Vijhani, Ms. Neelam Deewan, Mr.
Satish Kapoor, Ms. Vandana Kapoor, Ms. Sonika Pruthi and Ms. Anu
Kawatra agreed to Mr. Atul Batra, Advocate being appointed as Mediator.
5. It may be clarified that while Ms. Bela Kapoor, Ms. Kiran Vijhani,
Ms. Neelam Deewan, Mr. Satish Kapoor, Ms. Vandana Kapoor and Ms.
Anu Kawatra are all children of late Sh. Raja Ram Kapoor and late Smt. Raj
Rani Kapoor, Ms. Sonika Pruthi is the daughter of Ms. Vandana Kapoor.
6. A Settlement Agreement dated 7th June, 2011 accompanied by a
Memorandum of Settlement also dated 7th June, 2011 was signed by all the
said parties, their respective Advocates and the Mediator and forwarded to
the Bench of this Court before which the aforesaid three suits were pending
and tagged to the file of CS(OS) No.1375/2010.
7. It may be mentioned that the reference to mediation was in pursuance
to I.A. No.8616/2011 in CS(OS) No.1375/2010, I.A. No.8617/2011 in
CS(OS) No.2298/2010 and I.A. No.8615/2011 in CS(OS) No.2299/2010, all
under Section 89 of Civil Procedure Code (CPC), 1908, of Ms. Vandana
Kapoor. This Court while referring the parties to mediation vide order dated
24th May, 2011, imposed the condition that the Mediator will take up the
matter only if all the parties appear before him.
8. CS(OS) No.1375/2010 was listed before this Court on 4th July, 2011
when it was informed that the matter had been settled before the Mediation
Cell of this Court. Accordingly, the parties were directed to appear on 29 th
July, 2011 for recording of the settlement and the other two suits also
directed to be listed on the same day.
9. The matter could not be taken up on 29th July, 2011 owing to a Full
Court reference scheduled on that date and was renotified for 18th August,
2011.
10. It appears that on 18th August, 2011, there was some controversy and
this Court expressed an opinion that the matter can be finally resolved with
the intervention of the Court and directed the personal presence of all the
parties on 25th August, 2011.
11. On 25th August, 2011, Ms. Bela Kapoor, Ms. Kiran Vijhani, Ms.
Neelam Deewan, Mr. Satish Kapoor failed to appear and after some hearing
the matter was adjourned to 1st September, 2011 for their presence.
12. On 1st September, 2011, the counsel for Ms. Kiran Vijhani stated that
he wanted to file objections to the Settlement recorded before the Mediation
Cell.
13. I.A. No.16223/2011 in CS(OS) No.1375/2010 came to be filed by
Ms. Kiran Vijhani objecting to the Settlement Agreement.
14. It appears that Ms. Vandana Kapoor and Ms. Sonika Pruthi vide Sale
Deed dated 8th June, 2011 registered on 20th June, 2011 sold property No. B-
5/81, Safdarjung Enclave, New Delhi to Ms. Anshul Arora wife of Mr.
Ankur Arora. CS(OS) No.1642/2011 has been filed by Mr. Satish Kapoor
for declaration of the Sale Deed dated 8th June, 2011 as null and void and
for cancellation thereof. Besides Ms. Vandana Kapoor, Ms. Sonika Pruthi,
Ms. Anshul Arora and Mr. Ankur Arora, the aforesaid Ms. Anu Kwatra, Ms.
Bela Kapoor, Ms. Kiran Vijhani and Ms. Neelam Deewan have also been
impleaded as defendants to the said suit. It is the case of Mr. Satish Kapoor
in the said suit that the said Sale Deed is in violation of interim orders in the
earlier suits restraining Ms. Vandana Kapoor and Ms. Sonika Pruthi from
dealing with the property and is also in violation of Clause 20 of the
Settlement Agreement signed between the parties.
15. CS(OS) No.2532/2011 also was filed by Ms. Kiran Vijhani for
cancellation of the Settlement Agreement dated 7 th June, 2011 and for
restraining Ms. Vandana Kapoor, Ms. Sonika Pruthi, Ms. Anshul Arora and
Mr. Ankur Arora from dealing with the property No. B-5/81, Safdarjung
Enclave, New Delhi. The other parties as aforesaid were also impleaded as
defendants in the said suit.
16. CS(OS) No.741/2012 has been filed by Mr. Satish Kapoor, his son
Mr. Ravi Kapoor, his daughter-in-law Ms. Ambika Kapoor and his minor
son Master Raunak Kapoor against Mr. Ankur Arora, Ms. Anshul Arora,
Ms. Vandana Kapoor etc. for restraining them from causing any harm to
them and/or from dispossessing them from their residence at B-70,
Sarvodaya Enclave.
17. CCP(O) No.26/2012 in CS(OS) No.1642/2011 has been filed by Mr.
Satish Kapoor against Ms. Vandana Kapoor, Ms. Sonika Pruthi, Ms. Anshul
Arora and Mr. Ankur Arora for terrorizing and intimidating him.
18. All the aforesaid matters as well as CS(OS) No.2532/2011 were heard
at length on 7th March, 2013 when,
A. CS(OS) No.2532/2011 was dismissed as not maintainable;
B. CS(OS) No.1642/2011 was held maintainable and the pleas of
Ms. Vandana Kapoor, her daughter Ms. Sonika Pruthi, Ms.
Anshul Arora and Mr. Ankur Arora for rejection of plaint in
CS(OS) No.1642/2011 were negated;
C. All counsels agreed on that date, that if the objections filed by
Ms. Kiran Vijhani vide I.A. No.16223/2011 in CS(OS)
No.1375/2010 and supported by Mr. Satish Kapoor were to be
dismissed and the Settlement Agreement to be upheld, then all
suits/proceedings shall stand disposed of in terms of the said
Settlement Agreement; however if the objections to the
Settlement Agreement were to be upheld or to be put to
evidence, then the suits will have to proceed;
D. The statement of counsel for Ms. Anu Kawatra to the effect
that she was not challenging or opposing the Settlement
Agreement and shall be bound by the same was also recorded
on that date.
After hearing the counsels on the objections/opposition to the
Settlement Agreement, orders thereon were reserved.
19. On 7th March, 2013, the counsel for Ms. Anshul Arora and Mr. Ankur
Arora had also handed over the affidavit-cum-No Objection Certificate
(NOC) stated to have been signed by Ms. Bela Kapoor, Neelam Deewan,
Mr. Satish Kapoor and Ms. Kiran Vijhani disclaiming any right, title or
interest in property No. B-5/81, Safdarjung Enclave, New Delhi and giving
their no objection in view of the Settlement Agreement dated 7th June, 2011
and confirming receipt of monies in terms of the Settlement Agreement.
However a doubt was raised on that day by the counsel for Mr. Satish
Kapoor about the signatures of Mr. Satish Kapoor on the affidavit-cum-
NOC purportedly signed by him. Liberty was given to him to file an
affidavit on the said effect. An affidavit dated 11 th March, 2013 of Mr.
Satish Kapoor has since been filed confirming his signatures on the said
affidavit-cum-NOC.
20. Before I come to the challenge to the Settlement Agreement, it is
deemed expedient to notice the relevant terms thereof.
21. The Settlement Agreement dated 7th June, 2011 records:
(i) that the subject matter of CS(OS) Nos.1375/2010, 2298/2010
and 2299/2010 is the estate of late Sh. Raja Ram Kapoor and late
Smt. Raj Rani Kapoor comprising of, (a) property No. B-5/81,
Safdarjung Enclave, New Delhi admeasuring 199.1 sq. yds.; (b)
property Nos.1251, 1252 & 1253 and terrace, Kaccha Bagh,
Chandni Chowk, Delhi, and, (c) leasehold rights in property No.4,
Badamshah Market, Kamla Nagar, Delhi under the tenancy of Kamal
Jewellers;
(ii) that meetings were held between the parties on 6 th & 7th June,
2011 with the assistance of the Mediator;
(iii) that in view of the assurances of Ms. Bela Kapoor, Ms. Kiran
Vijhani, Ms. Neelam Deewan, Mr. Satish Kapoor, Ms. Vandana
Kapoor and Ms. Sonika Pruthi that they would amicably resolve all
their inter se disputes and would not raise any further claims in
relation to the estate of late Sh. Raja Ram Kapoor and late Smt. Raj
Rani Kapoor, Ms. Anu Kawatra has voluntarily given up her share in
the estate of her parents in favour of her siblings to enable them to
restore peace, harmony in the family and to enable them to amicably
resolve their disputes and settle all their inter se litigations;
(iv) that the parties had signed a separate Memorandum of
Settlement on 7th June, 2011 to be read as part and parcel of
Mediation Settlement;
(v) that the Settlement Agreement shall be recorded in CS(OS)
No.1375/2010 and the other two suits shall be withdrawn;
(vi) that on signing of the Settlement Agreement, the parties were
left with no other claims or demands against each other and all the
disputes and differences stood settled by the process of
Mediation/Settlement;
(vii) that the parties undertake to the Court that they shall abide by
the terms and conditions contained in the Settlement Agreement and
not dispute the same.
22. The Memorandum of Settlement dated 7th June, 2011 annexed to the
Settlement Agreement, in addition records:
(a) that Ms. Vandana Kapoor and Ms. Sonika Pruthi relinquished
their right, title and interest in shop No.1252, Kaccha Bagh, Chandni
Chowk, Delhi in favour of Mr. Satish Kapoor and shall also have no
claim in the remaining Kaccha Bagh shops/properties and Kamla
Nagar shop/property and/or any other part of the estate of late Sh.
Raja Ram Kapoor and late Smt. Raj Rani Kapoor including in their
movable and immovable properties, if any;
(b) that Mr. Satish Kapoor shall be the sole and absolute owner of
Kaccha Bagh shops/properties and Kamla Nagar shop/property and
shall have the sole and exclusive rights in the family business and
related commercial properties/tenancies to the exclusion of the other
heirs;
(c) Ms. Anu Kawatra, Ms. Kiran Vijhani, Ms. Bela Kapoor, Ms.
Neelam Deewan, Mr. Satish Kapoor acknowledged the mutation and
conveyance of the property No.B-5/81, Safdarjung Enclave, New
Delhi in favour of Ms. Vandana Kapoor and Ms. Sonika Pruthi and
their no objection thereto;
(d) Ms. Vandana Kapoor and Ms. Sonika Pruthi were paying Rs.30
lakhs to Ms. Neelam Deewan and a sum of Rs.5 lakhs to Ms. Kiran
Vijhani, Ms. Bela Kapoor and Mr. Satish Kapoor in full and final
settlement of all disputes in relation to the estate of parents;
(e) Mr. Satish Kapoor had also paid Rs.1 lakh each in cash to Ms.
Vandana Kapoor, Ms. Sonika Pruthi, Ms. Kiran Vijhani, Ms. Bela
Kapoor and Ms. Neelam Deewan in full and final settlement of all
disputes;
(f) that all the three suits shall be decreed in terms of the
Settlement Agreement;
(g) that the parties shall execute all other documents in support of
the Settlement and sign other papers for mutation of the properties in
the names of the parties to whose share they had fallen under the
Settlement Agreement;
(h) to present themselves before the Court for recording of the
settlement;
(i) Ms. Vandana Kapoor, Ms. Sonika Pruthi, Ms. Anu Kawatra,
Ms. Kiran Vijhani, Ms. Bela Kapoor and Ms. Neelam Deewan will
have no share in the business of late Sh. Raja Ram Kapoor in the
name of M/s Kishan Chand Kapoor & Company or in any movable
property;
(j) that Ms. Anu Kawatra, Ms. Kiran Vijhani, Ms. Bela Kapoor
and Ms. Neelam Deewan have also executed Relinquishment Deeds
in favour of Mr. Satish Kapoor with respect to Kaccha Bagh and
Kamla Nagar properties;
(k) Ms. Vandana Kapoor executed a Relinquishment Deed in
favour of Mr. Satish Kapoor with respect to Kaccha Bagh and Kamla
Nagar properties;
(l) that the property No.B-5/81, Safdarjung Enclave, New Delhi
was being sold to Ms. Anshul Arora wife of Mr. Ankur Arora and the
payments mentioned in the Settlement were being done from the
monies received by Ms. Vandana Kapoor and Ms. Sonika Pruthi from
the said Ms. Anshul Arora;
(m) that property No.F-130/4, Western Avenue, Sainik Farms, New
Delhi did not form part of the estate of late Sh. Raja Ram Kapoor and
late Smt. Raj Rani Kapoor and Mr. Satish Kapoor shall be free to deal
with the same and had legitimately sold the same to the Aggarwal
Family.
23. Ms. Kiran Vijhani in IA.No.16223/2011 objecting to the Settlement
Agreement dated 7th June, 2011 has pleaded -
(i) that the plaintiffs in CS(OS) 1375/2010 had in April, 2010 learnt
that Ms. Vandana Kapoor and Ms. Sonika Pruthi had vide
Agreement dated 11th June, 2001 agreed to sell the Safdarjung
Enclave property to Shikha Pahuja and who had filed
CS(OS)1898/2003 for specific performance thereof and vide
interim order in that suit, Ms. Vandana Kapoor and Sonika
Pruthi stood restrained from dealing with the said property;
(ii) that during the pendency of CS(OS)1375/2010, the plaintiffs
therein, in November, 2010 learnt of pendency of another suit for
specific performance qua the Safdarjung Enclave property being
CS(OS)1455/2010 filed by one Mascot Buildcon Pvt. Ltd against
Ms. Vandana Kapoor and Ms. Sonika Pruthi with respect to
Agreement to Sell dated 25th August, 2009;
(iii) that Ms. Vandana Kapoor and Sonika Pruthi surreptitiously
entered into a compromise in CS(OS)1898/2003 by paying Rs.70
lacs to Ms. Shikha Pahuja aforesaid and on payment of which
amount CS(OS) 1898/2003 was withdrawn on 6th May, 2011;
(iv) that similarly CS(OS)1455/2010 was also withdrawn by the
plaintiff therein on 11th May, 2011, upon receipt of a sum of
Rs.16 lacs from Ms. Vandana Kapoor and Ms. Sonika Pruthi;
(v) that both the amounts aforesaid had in fact been paid out of the
account of Aroras to whom the Safdarjung Enclave property was
ultimately sold by Ms. Vandana Kapoor and Ms. Sonika Pruthi
vide Sale Deed dated 8th June, 2011;
(vi) that the plaintiffs in CS(OS) 1375/2010 were in third week of
May, 2011 approached by Aroras on behalf of Ms. Vandana
Kapoor and Ms. Sonika Pruthi for amicable settlement, without
disclosing about the withdrawal of CS(OS) 1898/2003 and
CS(OS)1455/2010 for specific performance against Safdarjung
Enclave property;
(vii) that immediately on learning of the withdrawal of the suits for
specific performance, the plaintiffs in CS(OS)1375/2010 filed an
application therein seeking interim orders and vide order dated
3rd June, 2011, Ms. Vandana Kapoor and Ms. Sonika Pruthi were
directed to maintain status quo with respect to Safdarjung
Enclave property;
viii) that at the time of the Settlement dated 7th June, 2011, Ms.
Vandana Kapoor and Ms. Sonika Pruthi had informed the
plaintiffs in CS(OS)1375/2010 that the Safdarjung Enclave
property was being sold to the Arora's for a sale consideration of
Rs.80 lacs and in support thereof stamp papers purchased by the
Arora's stating the consideration price of Rs.80 lacs were shown;
ix. that Ms. Vandana Kapoor and Sonika Pruthi stated that they
were paying Rs.30 lacs to Ms. Neelam Deewan and Rs.5 lac
each to Ms. Bela Kapoor, Ms. Kiran Vijhani and Mr. Satish
Kapoor under the Settlement Agreement out of the sale
consideration of Rs.80 lacs being received by them from Aroras;
x. that Ms. Vandana Kapoor and Ms. Sonika Pruthi, even before
getting the relinquishment deed/no objection certificate
registered and in disregard of interim order and settlement
agreement dated 7th June, 2011, executed the Sale Deed dated 8th
June, 2011 and the said Sale Deed does not even mention the
litigation pending in this Court and on the contrary mentions the
property to be free from all encumbrances;
xi. that the sale was absolutely illegal and vitiated as it had been
done fraudulently as revealed subsequently;
xii. that the plaintiffs in CS(OS)1375/2010 subsequently learnt that
Ms. Vandana Kapoor and Sonika Pruthi had concealed the real
amount for which the Safdarjung Enclave property was being
sold to the Aroras and consequently had crafted the settlement
terms on a lesser amount and pocketed the major share of sale
proceeds to their advantage. It was learnt that Aroras had paid
Rs.80,0000/- over and above the sum of Rs.30 lacs to Ms.
Neelam Deewan and Rs.5 lacs each to Ms. Bela Kapoor, Ms.
Kiran Vijhani and Mr. Satish Kapoor;
xiii. that the defendant no.2 further stated in the Court that a sum of
Rs.1 crore more was to be paid by Aroras as part of sale
consideration;
xiv. that Ms. Vandana Kapoor and Sonika Pruthi had thus concealed
the sale consideration being received by them for the Safdarjung
Enclave property;
xv. that for this reason Ms. Kiran Vijhani had not encashed the
cheque of Rs.5 lacs received by her under the Settlement
agreement.
24. Ms. Vandana Kapoor and Ms. Sonika Pruthi in their reply to the said
application have stated-
a. that the Settlement Agreement was signed after serious and
detailed deliberations between the parties;
b. that all the parties were aware that Aroras would be making
payments as per the Settlement Agreement; so much so the
Aroras also paid on behalf of Mr. Satish Kapoor the sum of Rs.1
lac to Ms. Vandana Kapoor, Ms. Sonika Pruthi, Ms. Kiran
Vijhani, Ms. Bela Kapoor and Ms. Neelam Dewan in cash;
c. that each and every party quoted a specific figure which they
wanted to be given to them to settle their claim;
d. that the application is an attempt to resile from the settlement and
to interfere with the administration of justice;
e. that the quantum of the settlement amount paid to each party had
no nexus whatsoever with the ultimate sale of Safdarjung Enclave
property and was not a portion or percentage to be given from the
sale value of Safdarjung Enclave property;
f. that the application is a disguise to extort more monies;
g. that there was no misrepresentation or fraud;
h. that in the entire Settlement Agreement there is no mention of the
sale value of Safdarjung Enclave property;
i. that once Ms. Kiran Vijhani had consciously assessed her claim
before the Mediation Centre, it is not open to her to reopen the
entire settlement;
j. that even as per the Settlement Agreement, Ms. Vandana Kapoor
and Ms. Sonika Pruthi were free to deal with the Safdarjung
Enclave property and have accordingly executed the Sale Deed.
25. Mr. Harish Malhotra, senior counsel for Ms. Kiran Vijhani has argued
that Ms. Kiran Vijhani had agreed to receive Rs. 5 lacs only under the
Settlement Agreement on the premise that two suits for specific
performance of Agreement to Sell with respect to Safdarjung Enclave
property were pending and if it was known to her that the said suits stood
withdrawn, she would have asked for a much higher amount inasmuch as
the market value of the said property was otherwise much more than Rs. 80
lacs, being the sale consideration being paid by the Aroras as disclosed to
her. He has thus argued that the consent of Ms. Kiran Vijhani to the
settlement has been obtained by falsehood and by misrepresentation and the
said questions cannot be decided without the matter being put to trial.
26. I have inquired from Mr. Malhotra, senior counsel whether there are
any pleadings to the effect that the sale price of Safdarjung Enclave property
was much more. He has fairly stated that there are no such pleadings.
27. The argument that Ms. Kiran Vijhani at the time of signing the
Settlement Agreement did not know about the withdrawal of the two suits
for specific performance is contrary to pleadings. Ms. Kiran Vijhani before
signing the Settlement Agreement dated 7th June, 2011 was fully aware of
the withdrawal of the two suits for specific performance and in fact in her
application being IA.No.16223/2011 has expressly pleaded that the occasion
for approaching the Court by IA No.9663/2011 on 3rd June, 2011 while
mediation was still on, was the knowledge of the withdrawal of the suits for
specific performance.
28. Though I would have been inclined to dismiss IA.No.16223/2011 of
Ms. Kiran Vijhani on the ground of making a false argument alone but this
being the first Court, it is deemed expedient to deal with the other
arguments also.
29. Mr. Malhotra, senior counsel has next shown, that the stamp papers
for the sale deed executed on 8th June, 2011 by Ms. Vandana Kapoor and
Ms. Sonika Pruthi in favour of Aroras were purchased on 25 th May, 2011
disclosing the sale consideration as Rs.80 lacs and contends that the said
stamp papers were shown to Ms. Kiran Vijhani to convince her that Aroras
were paying a total of Rs.80 lacs only and out of which Rs.30 lacs was
being paid to Ms. Neelam Deewan and Rs. 5 lac each to Ms. Bela Kapoor,
Ms. Kiran Vijhani and Mr. Satish Kapoor.
30. It is further argued that Ms. Vandana Kapoor and Ms. Sonika Pruthi
in their reply to the application have not denied having made a statement
that they are entitled to a further sum of Rs.1 crore from Aroras. It is stated,
that it is for this reason only that though the Sale Deed dated 8 th June, 2011
records possession to have been given but admittedly till date possession has
not been given.
31. It is argued, that had Ms. Kiran Vijhani known that Ms. Vandana
Kapoor and Ms. Sonika Pruthi were getting Rs.1,80,00,000/- from Aroras,
she would have demanded a higher amount than Rs.5 lac. It is contended
that once Ms. Kiran Vijhani succeeds in showing that her consent to the
compromise was obtained by misrepresentation, the compromise being
nothing but an agreement, would be voidable and should not be accepted by
the Court.
32. Mr. Aman Lehki, Sr. Advocate for Mr. Satish Kapoor has taken me
through the Memorandum of Settlement to contend that even the same
contemplated execution of the Sale Deed in favour of the Aroras, after the
relinquishment deed with respect to other properties in favour of Mr. Satish
Kapoor had been executed and after compromise had been recorded in the
Court. It is contended that while Ms. Vandana Kapoor and Ms. Sonika
Pruthi have encashed the Safdarjung Enclave property falling to their share,
Mr. Satish Kapoor has been left in a lurch.
33. At this stage counsel for Ms. Vandana Kapoor and Sonika Pruthi has
undertaken on their behalf to abide by the terms of the Memorandum of
Settlement and denies that they have ever refused performing their
obligations.
34. Though it was asked to Mr. Lekhi, senior counsel as to how Mr.
Satish Kapoor suffers by different stages contemplated in the Settlement
Agreement being not followed chronologically, specially when Ms.
Vandana Kapoor and Ms. Sonika Pruthi are still ready to comply with their
obligations thereunder, the only answer forthcoming was that even the title
deeds of the property which had fallen to the share of Mr. Satish Kapoor had
not been delivered. Upon being pointed out that there was no such
obligation of Ms. Vandana Kapoor and Ms. Sonika Pruthi under the
Settlement Agreement, the senior counsel contends that the same is an
implied term of the settlement.
35. The counsel for Ms. Vandana Kapoor and Ms. Sonika Pruthi on their
behalf has also given a statement that they are not in possession of the Sale
Deed or other title documents of the properties which have fallen to the
share of Mr. Satish Kapoor and further confirm that they have not dealt with
the properties in any manner whatsoever and have not deposited the said
documents with any other person.
36. Mr. Lekhi, senior counsel has also argued that Ms. Vandana Kapoor
and Ms. Sonika Pruthi have in the Sale Deed dated 8 th June, 2011 dealt with
Safdarjung Enclave property on the basis of a Will of Mr. Raja Ram Kapoor
which was disputed by Mr. Satish Kapoor and without mentioning the
Settlement Agreement. It is stated that the same casts a cloud on the bona
fides of the case set up by Mr. Satish Kapoor in these proceedings.
37. Though the aforesaid contention is not found to be tenable, I may
record that the counsel appearing for Ms. Vandana Kapoor and Ms. Sonika
Pruthi has stated that they have no intention to take any action against Mr.
Satish Kapoor for making false pleas and are bound by the settlement.
38. I may record that, experience of advising on transactions of sale /
purchase of immovable properties show, a purchaser does not want any
dispute/litigations to be mentioned in the title documents as the same tends
to lower the price of the property and make the subsequent purchasers
suspicious. It is thus not unusual to not include in the recitals of the title
documents any past disputes once the disputes have been settled. Moreover,
in the present case the mutation of property in the name of Ms. Vandan
Kapoor and Ms. Sonika Pruthi and which in the suits was sought to be set
aside and which claim in the Settlement Agreement was given up, was on
the basis of Will and nothing unusual is found in the Sale Deed in favour of
Aroras describing the title on the said basis only
39. The counsel for Ms. Vandana Kapoor and Ms. Sonika Pruthi and the
senior counsel for the Aroras have contended that the Sale Deed dated 8 th
June, 2011 is not in violation of the Settlement Agreement and in any case
after obtaining the NoC cum affidavits from all other parties and after
making payments under the Settlement Agreement to the others. They have
contended that under the same Settlement Agreement several other
properties have fallen to the share of Mr. Satish Kapoor also. Reliance is
placed besides on Afcons Infrastructure Ltd. Vs. Cherain Varkey
Construction Company Pvt. Ltd. (2010) 8 SCC 24, on Sait Bolumal
Dharmdas Firm Vs. Gollapudi venkatachelapathi Rao AIR 1959 AP 612,
on Kale Vs. Deputy Director of Consolidation (1976) 3 SCC 119 and on
K.N. Govindan Kutty Menon Vs. C.D Shaji 2011(13) SCALE 232.
40. The senior counsel for the Aroras has also contended that they are the
first cousin of the parties and were rather asked to buy the Safdarjung
Enclave property to enable a settlement to be arrived at between the warring
siblings. He has further contended that the pay orders for Rs.30 lacs and
Rs.5 lac each in favour of Ms. Neelam Deewan, Ms. Kiran Vijhani, Ms.
Bela Kapoor and Mr. Satish Kapoor respectively are of 24th May, 2011
which shows that the settlement as to the amount to be paid had been
arrived at prior thereto only. It is explained that the Mediator had spent
nearly two full days with Mr. Rajshekhar Rao and Mr. Banerjee, Advocates.
It is thus contended that the arguments now raised of the stamp paper dated
25th May, 2011 for the Sale Deed registered on 8th June, 2011 being shown
to convince to Ms. Neelam Deewan, Ms. Kiran Vijhani, Ms. Bela Kapoor
and Mr. Satish Kapoor to receive Rs. 30 lacs and Rs. 5 lac each is false
inasmuch as on 24th May, 2011 when the pay orders for the said amount
were prepared, stamp papers of the sale deed were not even in existence.
Attention is invited to the Mediation and Conciliation Rules, 2004 of this
Court to contend that the challenge under Rule 25, if any to the Settlement
agreement, is to be made within 14 days and which has not been done in the
present case. It is contended that IA. No.16223/2011 challenging the
Settlement Agreement dated 7th June, 2011 was filed only on 5th September,
2011.
41. I have weighed the aforesaid rival contentions in the factual position
aforesaid. I had during the hearing itself, upon Mr. Malhotra, senior counsel
repeatedly contending that the pleas taken in IA.No.16223/2011 of the
consent of Ms. Kiran Vijhani having been obtained by misrepresentation is
a factual plea which could not be decided without evidence, invited
attention of Mr. Malhotra to the proviso to Order 23 Rule 3 of the CPC
which requires the Court to immediately adjudicate the challenge to the
compromise, without adjourning the matter, except for reasons to be
recorded in writing. It was put to Mr. Malhotra, senior counsel whether the
same was not indicative of, not all challenges to a compromise being
required to be adjudicated by putting the same to trial and the Court being
required to form an opinion on the preponderance of probabilities whether
there was any merit in the challenge to the compromise or not and only if
found such case being made out, to put it to evidence or else reject the same
summarily.
42. It was also pointed out to Mr. Malhotra, senior counsel during the
hearing that the Settlement Agreement signed before the Mediation Cell of
this Court could not be treated on the same pedestal as a private agreement,
inasmuch as the same has been given a statutory colour under Section 89 of
the CPC.
43. Neither Mr. Malhotra nor Mr. Lekhi, senior counsels argued that all
objections under the proviso to Order 23 Rule 3 to recording of
compromise, have to be put to trial. Similarly, nothing was urged to
contend that inspite of Settlement Agreement being the culmination of
mediation, statutorily recognized in Section 89 of the CPC as a mode of
settlement of dispute, challenge to validity of the same is to be tested on the
same anvil as a private agreement.
44. Though Section 141 of the CPC prescribes the same procedure as
provided in the CPC in regard to suits, in other proceedings also and which
would cover application as under proviso to Order 23 Rule 3 objecting to a
compromise, but "as far as it can be made applicable." I am of the
considered view that the language of the proviso to Order 23 Rule 3
mandating "the Court shall decide the question; but no adjournment shall be
granted for the purpose of deciding the question, unless the Court, for
reasons to be recorded, thinks fit to grant such adjournment" makes the
procedure prescribed in the CPC in regard to suits, of putting all disputed
questions of fact arising from pleadings to trial, inapplicable to decision of
the objections to compromise. If the legislative intent had been that such
objections, if raising factual controversy, are to be put to trial, the proviso
would not have required immediate decision, without adjournment, save for
reasons to be recorded in writing. The test, in my opinion, is to be akin to
that in grant of leave to defend under Order XXXVII of the CPC. If the
Court finds objections to the compromise being a moonshine or fantastic or
vexatious or malafide, the same, even though raising a factual controversy,
need not be put to trial and are to be dismissed summarily and the suit
decreed in terms of compromise.
45. The Supreme Court recently in Mahalaxmi Co-operative Housing
Society Ltd. Vs. Ashabhai Atmaram Patel MANU/SC/0202/2013 has held
that Order 23 Rule 3 casts an obligation on the Court to decide the questions
under the proviso at the earliest without giving undue adjournments. In that
case also the objections raised were adjudicated without putting the same to
trial.
46. We are thus to examine the objections in IA No.16223/2011 on the
said parameters.
47. However before that, Naresh Kumar Vs. Ashok Arora
MANU/DE/9778/2007 may also be noticed. A Division Bench of this
Court (in the said judgment) approved the earlier dicta of this Court in
Double Dot Finance Limited Vs. Goyal MG Gases Limited 117 (2005)
DLT 330 to the effect that if such pleas are sustained, the sanctity and
purpose of amicable settlements between the parties would stand totally
eroded. It was held that amicable resolution of disputes and negotiated
settlements is public policy of India and Section 89 of the CPC as well as
Legal Services Authorities Act, 1995 call upon the Courts to encourage
settlement of legal disputes through negotiations between the parties and if
amicable settlements are discarded and rejected on flimsy pleas, the parties
would be wary of entering into negotiated settlements and making payments
thereunder as a shrewd party after entering into a negotiated settlement, may
pocket the amount received under it and thereafter challenge the settlement
and re-agitate the dispute causing immeasurable loss and harassment to the
party making payment there under. This tendency has to be checked and
such litigants discouraged by the Courts.
48. As far as challenge to the compromise by Mr. Satish Kapoor is
concerned, it may be highlighted that he has not filed any application
objecting thereto or pleading the Settlement Agreement to be not lawful or
induced by misrepresentation. The challenge by him is only on the ground
of the chronology in which the compromise was to be implemented having
not been followed and the Sale Deed in favour of Aroras having been
executed before recording of the compromise before the Court and while the
order restraining Ms. Vandana Kapoor and Ms. Sonika Pruthi from dealing
with the Safdarjung Enclave property was still in force. Mr. Lekhi, senior
counsel being fully aware of the view taken by the undersigned in judgment
dated 11th December, 2008 in CS(OS) No.2314/1994 titled A.K. Chaterjee
Vs. Ashok Kumar Chatterjee (and appeal whereagainst was withdrawn) to
the effect that sale in violation of Court injunction is not void or nonest also
argued that the same requires reconsideration.
49. I do not find the above objection to be an impediment to the recording
of the compromise and disposal of suits in terms thereof. The violation,
even if any, by Ms. Vandana Kapoor and Ms. Sonika Pruthi in chronology
agreed to be followed in implementation of compromise is not found to be
such as to vitiate the compromise. No prejudice is found to have been
suffered by Mr. Satish Kapoor. Moreover, the Settlement Agreement
envisages a decree in terms thereof and which decree can be executed
against whosoever is in non-compliance of obligations thereunder. Ms.
Vandana Kapoor and Ms. Sonika Pruthi against whom apprehensions are
expressed, have already, as recorded above, undertaken to comply with their
obligations and they are further ordered to be bound by the said statement.
50. The objection of Ms. Kiran Vijhani is predicated solely on the amount
of Rs.5 lacs which she under the Settlement Agreement agreed to take,
having been on the basis of Ms. Vandana Kapoor and Ms. Sonika Pruthi
receiving only a sum of Rs.80 lacs from Aroras and out of which Rs.45 lacs
was being disbursed, leaving them with Rs.35 lacs only and the subsequent
discovery of their receiving more. The other argument of, not knowing
about withdrawal of the suit for specific performance, has already been
falsified as noted above.
51. However there is nothing whatsoever in the Settlement Agreement to
suggest so. In fact under the Settlement Agreement, the Safdarjung Enclave
property falls to the share of Ms. Vandana Kapoor and Ms. Sonika Pruthi
and several other properties fall to the share of Mr. Satish Kapoor and no
valuation of any of the said properties is mentioned and only the amounts
paid to the other parties are mentioned. Had the said amounts been in any
case linked to the sale consideration being received by Ms. Vandana Kapoor
and Ms. Sonika Pruthi, nothing prevented Ms. Kiran Vijhani and Mr. Satish
Kapoor, ably represented before the Mediation Cell also by counsels of this
Court, to have mentioned so in the Settlement Agreement. The argument,
of having believed the sale consideration to be Rs.80 lacs only, on the basis
of the stamp papers dated 25th May, 2011 is falsified from the pay orders
having been prepared on a day prior thereto.
52. The fact that the amounts to be paid to Ms. Kiran Vijhani and Mr.
Satish Kapoor under the Settlement Agreement had no nexus to the sale
consideration of Safdarjung Enclave property is also borne out from the fact
that a considerably larger amount of Rs.30 lacs was agreed to be paid to Ms.
Neelam Deewan. There is no plea of, what percentage of the sale
consideration was agreed to be paid. If a party to a Settlement Agreement,
of its own arrives at some justification for settling for a particular amount,
the said party cannot be heard to challenge the said Settlement Agreement
on the ground that her assumptions therefor were erroneous as long as there
is nothing to show that such assumption had any linkage to the
representation of the other. Lord Maugham, as far back as in Martin
Cashen Vs. Peter J. Cashen AIR 1938 PC 103 said that where family
arrangements have been fairly entered into, then although a party may have
greatly misunderstood his situation and mistaken his rights, a Court of
Equity will not disturb the quiet which is the consequence of that agreement.
Under Section 22 of the Indian Contract Act, 1872, a contract is not
voidable merely because it was caused by one of the parties to it being
under a mistake as to a matter of fact. The plea even otherwise does not
inspire confidence. Ms. Kiran Vijhani, as noted above, already knew of
withdrawal of the two suits for specific performance with respect to the
Safdarjung Enclave property; she could not have logically assumed such
withdrawal to be without any consideration and such consideration flowing
from anyone other than Aroras who were very much in the picture; she can
thus be safely assumed to be knowing that the Aroras, besides the
consideration of Rs.80 lacs, were also paying other amounts for having the
pending disputes with respect to the property settled. Not only so, it is also
not disputed that the amounts, payable under the Settlement Agreement by
Mr. Satish Kapoor, were to be paid and were paid by Aroras. The plea of
misrepresentation taken is also vague and without any particulars as
required to be pleaded under Order VI Rule 4 of the CPC. The Supreme
Court, in Ranganayakamma Vs. K.S. Prakash (2008) 15 SCC 67, in the
absence of particulars of when the fraudulent representations were made,
who made the representations, what type of representation was made and
finding the documents to have been signed at a public place i.e. Advocate's
Office and not in a hush-hush manner or in blank and further finding the
vague allegations to be far-fetched and beyond the ordinary human conduct,
negated the same.
53. I am even otherwise of the view that the legal procedure for setting
aside a compromise, is not a procedure for setting aside a hard bargain.
54. Insufficiency of consideration can even otherwise not be a ground of
challenge, neither of a sale nor would it be a ground in a compromise. This
sentiment was expressed by this Court in Hari Ram Vs. K.L. Gandhi 110
(2004) DLT 190 also.
55. Mention may also be made of Gangadeep Pratisthan Pvt.Ltd. Vs.
M/S. Mechano 2005 (11 ) SCC 273 where the High Court had accepted the
plea of the consent of a party to a settlement therein being vitiated by duress
and/or coercion for the reason of some monies also having exchanged in
cash. The Supreme Court however set aside the said judgment and held that
where the parties had agreed not to make payments in cash a term of
compromise and had made payment on the basis of mutual faith, the same
cannot be interpreted to mean that the consent was vitiated by duress or
coercion. The Supreme Court also gave considerable weightage to payment
under the compromise having been accepted. In the present case also
though Ms. Kiran Vijhani claims that she had not encashed her pay order of
Rs. 5 lacs but the payment of Rs.30 lacs and Rs. 5 lacs each given by
Arora's to Ms. Neelam Deewan, Ms. Bela Kapoor & Mr. Satish Kapoor
respectively have been encashed.
56. There is merit also in the contention, of different considerations
applying while considering challenge to family settlements. The Settlement
Agreement in the present case is nothing but a family settlement through the
medium of mediation. With the societal changes, the common elder
relatives of the family who used to bring about amicable settlements
amongst warring siblings, hesitate to or do not want to interfere. The said
rule has been taken over by professional mediators. The Supreme Court in
Ranganayakamma supra held that relinquishment of property amongst
siblings stands on a different footing and held that where the underlying
idea is to bring an era of peace and harmony in the family and to put an end
to discord, disharmony, acrimony and bickering and the consideration is
love and harmony, the challenge on the ground of Section 25 of the Contract
Act which itself carves out an exception for the same, has to be brushed
aside.
57. I therefore do not find any merit in the objections to the Settlement
Agreement and dismiss IA.No.16223/2011. As already observed above, the
effect of dismissal of the objections to the Settlement Agreement would be
that CS(OS)1375/2010, CS(OS)2298/2010 and 2299/2010 shall stand
decreed in terms of the said Settlement Agreement with the Settlement
Agreement forming part of the decree sheet. Resultantly CS(OS)1642/2011
and CS(OS)741/2012 shall also stand dismissed. In the facts aforesaid, no
case for pursuing the CCP(O) 26/2012 further is also made out and which is
also dismissed. No costs.
Decree Sheets be prepared.
RAJIV SAHAI ENDLAW, J.
st
MARCH 21 , 2013
Bs/M
