Smt. Madhu Bhaskar & Others vs Shri Bharat Bhaskar & Others
2016 Latest Caselaw 2681 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS (OS) No.2090/2008
%                                                        April 06, 2016


SMT. MADHU BHASKAR & OTHERS                      ..... Plaintiffs
                 Through: Mr. Ravi Gupta, Sr. Advocate with
                          Ms. Misha Rohtagi Mohta and Ms.
                          Aayesha Sharma, Advocates
                 versus
SHRI BHARAT BHASKAR & OTHERS                ..... Defendants
                 Through: Ms. Harsh Lata, Advocate for D-1


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

IA Nos. 17291/2015 and 17292/2015

1.

These are two applications which are filed under Order IX Rule

13 of the Code of Civil Procedure, 1908 (CPC) and under Section 5 of the

Limitation Act, 1963 for condonation of 734 days' delay in filing of the

application under Order IX Rule 13 CPC. By these applications, delay is

prayed to be condoned and the ex parte preliminary decree of partition dated

12.7.2013 is prayed for being set aside.

2. The ex parte preliminary decree dated 12.07.2013 has been

passed with respect to two properties which were the subject matter of the

suit, and which are mentioned in para 7 (II) and (III) of the plaint as under:-

"(II) Land, bearing Khasra No. 260 Mauza Bahapur (Ishwar Nagar) total area 4 bighas 16 biswas in Ishwar Nagar, New Delhi; (III) 1/4th share in Khasra no. 261, Mauza Bahapur (Ishwar Nagar) total area 1 bigha 14 biswa in Ishwar Nagar, New Delhi."

3. The subject suit is a suit between the plaintiffs on the one hand

who represent the branch of Sh. Vinay Bhaskar; Sh. Vinay Bhaskar being the

son of Sh. T.N. Bhaskar, the defendant no.1 Sh. Bharat Bhaskar; another son

of Sh. T.N. Bhaskar on the other hand, and thirdly the defendant no.2; the

mother of Sh. Vinay Bhaskar and Sh. Bharat Bhaskar, namely, Smt. Gargi

Devi Bhaskar and wife of late Sh. T.N. Bhaskar.

4. The mother/defendant no.2/Smt. Gargi Devi Bhaskar has

expired during the pendency of the suit. The legal heirs of the mother have

not been brought on record, but the legal heirs of the mother are already on

record with plaintiffs representing the branch of Sh. Vinay Bhaskar, the

defendant no.1 being the son, and the defendant nos. 3 to 5 being the

daughters of late Sh. T.N. Bhaskar and Smt. Gargi Devi Bhaskar.

5. The defendant no.1 Sh. Bharat Bhaskar appeared in the suit and

filed IA No. 16692/2009 for rejection of the plaint under Order VII Rule 11

CPC. This application filed in the year 2009 remained pending and was

adjourned till 21.2.2012, when the same was dismissed in default on account

of non-appearance of anyone on behalf of defendant no.1. By the same

Order dated 21.2.2012, the defendant no.1 was proceeded ex parte. The

plaintiff thereafter led evidence resulting in passing of the preliminary decree

by a learned Single Judge of this Court dated 12.7.2013.

6. As stated above, the preliminary decree was passed with respect

to two properties totalling to 1148 sq. yards of land situated in Khasra Nos.

260 and 261, situated in Village Bahapur (Ishwar Nagar), New Delhi and

which are the properties mentioned in para 7 (II) and (III) of the plaint.

7. The case set up by the defendant no.1 is that that none appeared

on behalf of the defendant no.1 because the defendant no.1 was under the

bona fide belief that the plaintiff will in fact withdraw the suit in view of the

written Settlement Agreement entered into between the parties on 5.10.2011.

This settlement agreement is admittedly signed by all the plaintiffs as also

the other persons including the defendant no.1. This agreement as a whole is

reproduced as under:-

"Minutes of the meeting held on October 5th, 2011 at J 12, Green Park, New Delhi 5 PM.

Present in the Meeting:

Mr. Bharat Bhaskar, Mrs. Kiran Bhaskar, Mr. Ashish Bhaskar, Mr. Abhinav Bhaskar, collectively (BB Group).

Mrs. Madhu Bhaskar, Mr. Apurv Bhaskar, Miss Akansha Bhaskar, Mr. Akshat Bhaskar, copllectively (MB Group).

Dr. O P Sharma, Mr. Tarun Oberoi, Mr. Rajendra Sharma.

In an endeavour to resolve the issues and on going litigation in Ishwar Industries Limit4ed, TNB Investments Pvt. Ltd and T N Bhaskar and Sons (HUF) between the BB and MB Group a meeting was held where on all the parties brought in their view points and suggests. After deliberation, the meeting was concluded with the following understanding :

1. MB Group will take 50% of the land and building as full and final settlement, free of any liabilities in Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi-85.

BB Group will take over all the litigations, liabilities and other connected matters of the Ishwar Industries Limited, TNB Investments Pvt. Ltd. and T N Bhaskar & Sons (HUF).

2. All the remaining assets and liabilities of Ishwar Industries Limited TNB Investments Pvt. Ltd and T N Bhaskar & Sons (HUF) will be the responsibility of BB Group.

3. The division of Block Number 6, Tribhuvan Complex, Ishwar Nagar, New Delhi - 110 065 is excluding the area belonging to Mr. Sanjay Bhaskar, An Architect will be appointed to identify entry to the MB Group and the BB Group along with their respective areas which has to be mutually accepted by both the parties. Any expenses incurred shall be the borne equally of both the parties. The settlement of Mr. Vidhur Bhaskar is the responsibility of the BB Group.

4. The stay order obtained in the Delhi High Court in the matter of M/s. Magpie Developers Pvt. Ltd Vs. Ishwar Industries Ltd. and any other shall be got vacated and / or settled by BB Group with respect to Block No. 6, Tribhuvan Complex, Ishwar Nagar, New Delhi - 110 065.

5. That this MOU/Agreement will be filed before the Company Law Board jointly by both the BB Group and MS Group,, on the next date of hearing that is October 10th, 2011 for a decree to be passed accordingly.

6. Formal agr3eement with necessary resolutions as required under law will be prepared within 15 days hereof and filed before the Company Law Board and wherever necessary.

7. It is expressly understood that all expenses, professional, architect fee, legal and any other taxes that may be levied for the above understanding only shall be borne in equal proportion by both the parties.

            Sd/-                                        Sd/-

            BB GROUP                                    MB GROUP"
                                                             (underlining added)

8. A reference to the introductory first para of the Settlement

Agreement dated 5.10.2011 shows that all the disputes between the parties,

be they of the companies of the parties or of T.N. Bhaskar & Sons (HUF),

were finally settled by the said Settlement dated 5.10.2011. Admittedly, the

present suit is qua the properties of T.N. Bhaskar and sons (HUF). The

dispute qua these properties is also stated to be settled in terms of the

Settlement dated 5.10.2011.

9. It is the case of the applicant/defendant no.1 that it is on account

of this final settlement entered into between the parties and signed by them

that defendant no.1 did not appear believing that the suit will be withdrawn

by the plaintiff in view of the Settlement arrived at between them dated

5.10.2011.

10. The defendant no.1/applicant came to know of the continuation

of the present suit only when the defendant no.1 received a notice from the

Local Commissioner appointed for partitioning of the property in view of the

Preliminary Decree passed by a learned Single Judge of this Court on

12.7.2013. On receiving a copy of the Notice dated 24.1.2014 from the

Local Commissioner, the applicant/defendant no.1 realised that the suit was

pending and hence the present applications were filed under Order IX Rule

13 CPC and Section 5 of the Limitation Act for condonation of delay.

11. Learned senior counsel for the plaintiff has argued three aspects

for seeking dismissal of the application. The first aspect which is argued is

that the suit property was not a part of the Settlement dated 5.10.2011. The

second aspect argued is that in any case the terms of the settlement were

never acted upon and hence not final. The third aspect argued was that the

applicant/defendant no.1 is negligent in not pursuing the suit for the reason

that the plaintiff would withdraw the suit and reliance in this regard is placed

upon a judgment delivered by this Court in the case of Suresh Kumar &

Anr. Vs. Dileshwari Devi, 2014 SCC OnLine Del 35.

12. In my opinion, both the application under Order IX Rule 13

CPC along with the connected application for condonation of delay are

bound to be allowed and are accordingly allowed for the reasons given

hereinafter.

13. The first argument urged on behalf of the plaintiffs that the suit

property did not form part of the Settlement dated 5.10.2011 is clearly false

on the face of it because the introductory first para of the Settlement dated

5.10.2011 talks of disputes and the ongoing litigations which were the

subject matter of the settlement and which will include the present suit

properties of T.N. Bhaskar and Sons (HUF), viz the suit properties stated in

para 7(II) and (III) which are stated to be owned by T.N. Bhaskar & Sons

(HUF) as the plaintiffs are claiming rights in the same as they are

coparceners etc of T.N. Bhaskar & Sons (HUF) as their predecessor-in-

interest. Sh. Vinay Bhaskar is stated to be the coparcener in the HUF. Para 1

of this Settlement dated 5.10.2011 specifically records that in lieu of the

rights of the plaintiff, pertaining to either the companies or the properties of

T.N. Bhaskar & Sons (HUF), the plaintiffs will get 50% of the land and

building of Block Number 6, Tribhuvan Complex, Ishwar Nagar, New

Delhi-110065 in full and final satisfaction of their claims. Taking this as

correct it means that plaintiffs have received their rights under the settlement

on account of ongoing litigations, the companies in question as also the

properties of T.N. Bhaskar & Sons (HUF), and the defendant no.1 was hence

entitled to have the belief that the said suit would not be pursued by the

plaintiff.

14. No doubt, the plaintiffs have claimed that the Settlement

Agreement dated 5.10.2011 was not acted upon, but on the other hand, the

defendant no.1 claims that the Settlement Agreement dated 5.10.2011 has

been acted upon. I note that the dismissal in default of the application under

Order VII Rule 11 CPC filed by the defendant no. 1 is on 21.2.2012, i.e in

proximation of time period of the Agreement/Settlement dated 5.10.2011,

and hence, there is a ring of truth in the stand taken up by the

applicant/defendant no.1 that it is because of the settlement that the

defendant no.1 was under an impression that the subject suit would be

withdrawn and consequently the applicant/defendant no.1 did not follow the

suit.

15. The aspect that plaintiffs claim that the settlement agreement

was never acted upon, this aspect would be a seriously disputed question of

fact requiring trial, however for the purpose of decision of the present

applications, in view of the facts stated above this cannot be the ground for

dismissing the stand of defendant no.1 because of the relevant stage when

the defendant no.1 did not pursue the present suit and his pending

application under Order VII Rule 11 CPC, the defendant no.1 on the ground

that there was a written Settlement Agreement dated 5.10.2011 satisfying the

shares of the plaintiff with respect to the claim of the properties in T.N.

Bhaskar and Sons (HUF) was entitled to believe that the suit would be

withdrawn by the plaintiff.

16. Reliance placed by the plaintiffs upon the judgment in the case

of Suresh Kumar & Anr. (supra) is misconceived because in the facts of

Suresh Kumar & Anr.'s case (supra) it was not found that there was any

written agreement signed by the parties, and there was pleaded only an oral

assurance that the parties had settled their dispute, and thus it was held that

the oral agreement for non appearance cannot be a good ground for allowing

of an application under Order IX Rule 13 CPC.

17. In view of the above, the applications are allowed. The ex parte

Preliminary Decree dated 12.7.2013 passed against the defendant no.1 is set

aside. Anything contained in the present order is no reflection of the merits

of the case with respect to the validity and/or bindingness of the Settlement

Agreement dated 5.10.2011, and which dispute will be seen and decided

finally as per the defence and other aspects of merits which would be raised

by the plaintiffs and the defendant no.1.

18. Suit is restored back to the stage as it was on 21.2.2012 i.e the

pendency of the application filed under Order VII Rule 11 CPC i.e IA No.

16692/2009 filed by the defendant no.1 is being restored, and the ex parte

proceedings and Preliminary Decree dated 12.07.2013 against the defendant

no.1 are set aside.

19. Parties are left to bear their own costs.

IA No. 16692/2009

20. List for further proceedings on 4.8.2016.

CS(OS) No. 2090/2008

21. Learned senior counsel for the plaintiffs says that defendant

no.1 should now file the written statement and no delay should be caused

with respect to further proceedings of the suit, and accordingly, the

defendant no.1 shall positively file written statement within six weeks from

today, failing which the right to file written statement will be deemed to be

closed.

22. Replication be filed within four weeks thereafter.

23. Parties will file the documents along with their pleadings and

admission/denial of documents be done within two weeks thereafter by filing

an affidavit attaching thereto an index of documents of the other side with an

additional column of endorsement of admission/denial.

24. List before the Joint Registrar for marking of exhibits on

14.7.2016.

25. List before Court for framing of issues and disposal of the

pending IAs on 4.8.2016.

APRIL 06, 2016                                     VALMIKI J. MEHTA, J
P