Sh Krishan Kumar Kathuria vs Sh Inder Kumar Kathuria
2015 Latest Caselaw 2914 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: April 13, 2015

+               E.A. (OS) No.1094/2014 & E.A. (OS) No.1096/2014
                in Ex. P. No.400/2008

        SH KRISHAN KUMAR KATHURIA         ..... Decree Holder
                     Through Mr.Prag Chawla, Adv. with
                             Ms.Suman Arora, Adv.

                             versus

        SH INDER KUMAR KATHURIA         ..... Judgment Debtor
                     Through Mr.Kumar Kislay, Adv. along with
                             judgment debtor in person.

        CORAM:
        HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The judgment debtor despite of third round of litigation decided against him has not stopped from filing the fresh application/ objection. Therefore, the facts in the matter are again to be mentioned herein for the purpose of disposing of pending applications.

2. The judgment debtor filed the suit for possession, being 90/2004, before this Court wherein a joint application was filed on the basis of the compromise arrived at between the parties. The extract of the settlement already recorded in paras 17 and 18 of my order dated 19th November, 2009 reads as under:

"17. In the present case, as regards the filing of the execution petition, the same has been filed on the basis of the compromise order dated 10th November, 2004 part of which reads as under :

"This is a joint application under Order XXIII Rule 3 read with Section 151 CPC moved on behalf of the parties praying for recording settlement and satisfaction reached between the parties in relation to the subject matter of the suit. The application is supported by the affidavit of Mr. Inder Kumar Kathuria-plaintiff, Mr. Krishan Kumar Kathuria- defendant no. 1, Mrs. Veena Kathuria- defendant no. 2, Mr. Amit Kathuria- defendant no. 3 and Mr. Arjun Kathuria- defendant no. 4. Parties are present in court and they fully affirm to the contents of the application. Accordingly the application is allowed, the compromise reached between the parties is taken on record and the suit of the plaintiff is disposed of as satisfied, leaving the parties to bear their own costs. All pending applications also stand disposed of."

18. The terms and conditions of the above-mentioned settlement arrived at between the parties are reproduced hereinbelow:

"I. That the defendants categorically stated that they do not dispute or bring into question the title of the plaintiff in the suit property, viz., the first floor of property bearing No.D-133, East of Kailash, New Delhi-1100065. The plaintiff also assures the defendants that, subject to the terms of the present compromise contained hereinafter, the defendant No.1 shall be the owner of the suit property for all intents and purposes.

II. That the parties agree that the plaintiff shall be entitled to sell the entire property, namely D-133, East of Kailash, New Delhi-110065 (including the suit property) to a third party within a period of three years from the passing of the compromise decree by this Hon'ble Court, at a price which may be mutually agreed by the parties. The defendant No.1 shall be entitled to be a part of all negotiations for the said sale. The plaintiff undertakes to pay to the defendants No.1 or his nominees an amount from the sale consideration equivalent to 29 % of the gross sale price. The plaintiff undertakes to faithfully comply with the aforesaid condition and make prompt immediately upon the receipt of the sale consideration from the purchaser.

III. In the event of the plaintiff not being able to sell the said entire property to a third party within a period of three years from the passing of the compromise decree by this Hon'ble Court as aforesaid, the plaintiff undertakes to transfer completely, the ownership/title of the suit property to the defendant No.1, immediately on the expiry of the said three years and to execute all necessary documentation as may be required for the said purpose. The plaintiff agrees that the defendant No.1 shall be then at complete liberty to deal with the suit property in such manner as he deems fit, with full proprietary rights therein.

The defendants agree that the plaintiff is entitled to the payment from the defendants, a sum of Rs 8,75,000/- (Rupees eight lakhs and seventy five thousand only) towards lump-sum reimbursement of

electricity, water and other charges levied by the competent authority and paid by the plaintiff in respect of the suit property for the period August 1996 till the date of passing of the compromise decree by this Hon'ble Court. Of the said amount, the defendants shall pay to the plaintiff a sum of Rs 1 lac by cheque, before the Hon'ble court on the date of hearing of the present application. The defendants agree that the plaintiff shall be entitled to deduct the balance amount of Rs 7,75,000/-(Rupees Seven Lacs and Seventy Five Thousand only), from the share of the defendants in the sale proceeds referred to above. In the event the plaintiff not selling the property within three years and transferring the ownership of the suit property, to the defendant No.1, the defendant No.1 undertakes to this Hon'ble Court to pay the said balance amount of Rs 7,75,000/-( Rupees Seven Lacs and Seventy Five Thousand only)before the said documentation is executed by the plaintiff in his favour."

3. Paras 21 and 22 of the said order are also relevant which are reproduced hereinbelow:

"21. I am of the considered opinion that in view of settled law, the order dated 10th November, 2004 which has been passed in the application under Order 23 Rule 3 which has been accepted by the parties as the application was duly signed by the parties and supported by affidavits and the order was passed in the presence of the parties whereby the terms and conditions mentioned in the application were also accepted by the Court, thus I feel that order dated 10th November, 2004 passed by this court amounts to a 'decree' within the meaning of Section 2(2) of the Code. Therefore, I direct that a

decree be drawn in view of the order passed on 10th November, 2004.

22. The decree holder is also entitled to his right to the suit property being D-133 [1st Floor], East of Kailash, New Delhi and I direct the judgment debtor Sh. Inder Kumar Kathuria to execute all the documents for transferring his right in the suit property to the decree holder against the amount agreed to by the parties and also to hand over vacant and peaceful possession of the same to the decree holder. Further, the judgment debtor is directed to pay the court fee stamp, if leviable, and if not, then the same shall be adjusted from the amount payable to the judgment debtor. Execution petition disposed of accordingly."

4. The said order was challenged by the judgment debtor before the Division Bench by filing of EFA (OS) No.5/2010. The order dated 22nd March, 2012 passed by the Division Bench is reproduced as under:-

"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 Rs.3.40 crore (mistakenly recorded as Rs.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."

5. The said appeal was subsequently dismissed as withdrawn for non-compliance of the settlement.

6. Not only that, the judgment debtor challenged the compromise decree separately before the Division Bench by filing of RFA (OS) 98/2010. By detailed judgment, the said appeal was dismissed with cost of Rs.50,000/-. All the arguments raised by the judgment debtor in the fresh objection filed by him have been discussed in the judgment of the Division Bench in para 22 of the same which reads as under:

"In any case, the order of the learned Single Judge in Execution Petition 400/2008, has now attained finality, with the appeal having been disposed off by an order dated 22.03.2012, leading to a revival of the said order. The learned Single Judge, in paragraphs 11-22,

considered the very question of whether the compromise in this case, and the order of 10th November, 2004, can be called a decree or not, and whether execution proceedings in respect of that order are maintainable. In considering the arguments raised by the plaintiff, the learned Single Judge concluded that the order was a decree under the terms of Section 2(2), CPC. Given those findings, which have not been challenged, that issue is thereby decided against the plaintiff. As regards the argument that the compromise is void for failure to disclose a consideration, this Court notices that the compromise was presented by way of a joint application, i.e. it was in writing, and was recorded in the presence of the parties, without any protest. While the Court recording the decree must entertain caution in recording such a compromise under Order XXIII CPC, which is then translated into a decree of the Court, and not just a settlement between the parties, once the parties have accepted such a compromise settling their rights and liabilities, the plea that the settlement be rescinded does not lie. Indeed, this is why the safeguards under Order XXIII, which were met in this case, are crucially important (i.e. settlement in writing and signed by the parties, or their authorized representatives). Moreover, it is an established principle of law that the Court will not go behind a contractual agreement between the parties, and ascertain the adequacy of consideration. Rather, the fact that some consideration flowed to either party is sufficient to uphold the contractual arrangement. A reading of the compromise reflected in the joint application of parties in this case clearly shows that both parties have rights and obligations - while the first defendant does receive 29% of the sale proceeds/ownership of the 1st Floor, the agreement records his liability to pay water and electricity charges, and crucially, settles the rights of parties in proportion (71% for the plaintiffs, and 29% for the first defendant) finally as opposed to the first defendant contesting this question at trial in the suit. Moreover, the

Court also notices that this is the first time since 10 th November, 2004 - after a period of one decade, that a plea of lack on consideration has been raised, almost as an afterthought to bypass a compromise freely and voluntarily recorded between the parties-an instance of clear abuse of the judicial process."

7. I have been informed that the decree has attained finality after the Supreme Court dismissed the Special Leave Petition filed by the judgment debtor. In order to enforce the terms and conditions of the decree, this court on 9th October, 2014 passed the direction by appointing Local Commissioner to execute all the documents on behalf of the judgment debtor in favour of the decree holder to execute all the documents on behalf of the judgment debtor in favour of the decree holder in respect of first floor of the suit property, i.e. property bearing No.D-133, East of Kailash, New Delhi-110065 within four weeks from today, from Sub Registrar-V.

8. Due to non-cooperation, the Local Commissioner has made the request that she may be discharged from the said responsibility. The decree holder thereafter filed an application under Section 153 read with Section 151 CPC for rectification of order dated 9th October, 2014 passed by this Court, being I.A. No.1094/2014, seeking prayer that instead of sale deed as observed in the order of the Division Bench, the settlement deed be registered in view of the settlement arrived at between the parties.

9. I have heard the learned counsel for the judgment debtor as well as the judgment debtor. The judgment debtor is not agreeable to execute any documents as per the decree passed by this Court

which is confirmed upto the Supreme Court. Rather he is raising the similar objections which were already rejected by the Division Bench by judgment dated 3rd October, 2013. His main contention is that since the consideration has not been received from the decree holder, he is not prepared to execute any document although it is not denied that the similar plea was taken and the same was rejected by the Division Bench in appeal.

10. Mr.Prag Chawla, learned counsel appearing on behalf of the decree holder states that let the settlement deed be executed. In order to maintain the harmony in the family his client shall bear all the expenses of registration charges including the stamp duty and fee of the Local Commissioner and his client would not recover the same from the judgment debtor. The said offer is reasonable and the request is accepted.

11. Accordingly, Mr.Rakesh Kumar, Advocate (Mobile No.9810147798) is appointed as a Local Commissioner to execute all the documents on behalf of the judgment debtor in favour of the decree holder in respect of first floor of the suit property, i.e. property bearing No.D-133, East of Kailash, New Delhi-110065 within four weeks from today, from Sub Registrar-V. The draft of the settlement deed along with the copies of the judgments with regard to this matter shall be handed over by the decree holder to the Local Commissioner in advance who will go through the same and after going through the same if any correction is required in the draft of settlement deed it may be discussed and incorporated the same in the draft. He will fix

up the time for the purpose of registration with the decree holder and get the settlement deed registered. The fee of the Local Commissioner at present is fixed at Rs.60,000/- which shall be paid by the decree holder in advance as well as all the expenses. The other expenses for the said purpose shall also be borne by the decree holder as agreed.

12. As far as application filed by the judgment debtor is concerned, the same is dismissed being without any merit. The application filed by the decree holder for correction of order dated 9th October, 2014 is also modified and the same is accordingly disposed of.

13. Dasti under the signatures of the Court Master to both parties.

(MANMOHAN SINGH) JUDGE APRIL 13, 2015