Delhi High Court
Arvinder Kaur Sethi vs Krishan Kumar Aggarwal & Ors on 6 February, 2018
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2104/2008
ARVINDER KAUR SETHI ..... Plaintiff
Through: Mr. G.S. Raghav and Mr. Dashrath
Raghav, Advs.
Versus
KRISHAN KUMAR AGGARWAL & ORS ..... Defendants
Through: Mr. Vijay K. Gupta, Mr. Shailesh
Tiwary and Ms. Mehul Gupta, Advs.
for D-1 to 4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 06.02.2018
IAs No.8508/2014 & 8509/2014 (of D-1 to 4 for recall of the compromise
recorded on 2nd April, 2014 in terms whereof the suit was disposed of
and for stay of compromise terms), 7615/2014 (u/S 151 CPC), CRL.M.A.
No.10334/2014 (u/S 340 CrPC) & IA No.10168/2017 (of D-1 to 4 seeking
permission to let out the property)
1. A compromise decree under Order XXIII Rule 3 of the Code of Civil
Procedure, 1908 (CPC) was drawn up in this suit as far back as on 2nd April,
2014 in terms of IA No.6236/2014 filed by the plaintiff Arvinder Kaur Sethi
and the defendants No.1 to 4 namely Krishan Kumar Aggarwal, Santosh
Rani, Honey Gupta and Mika Gupta. Though in the suit, besides the
defendants No.1 to 4, Life Insurance Corporation of India (LIC) was also
impleaded as defendant No.5 but the plaintiff, in the light of the compromise
arrived at with the defendants No.1 to 4, on 2nd April, 2014, withdrew the
suit against the defendant No.5.
2. IAs No.8508/2014 & 8509/2014 of the defendants No.1 to 4 for recall
and stay of the compromise came up first before this Court on 9th May, 2014
and since when the same have been adjourned ample number of times, for
over three years, on the request of the counsels that the parties were
attempting to amicably resolve the controversy. The controversy has not
been resolved and in between other applications aforesaid came to be filed.
3. The counsel for the plaintiff and the counsel for the defendants No.1
to 4 have been heard.
4. The property, subject matter of the suit, was 4 out of 108 flats in
property known as Dilkhush Estate, G.T. Karnal Road, Azadpur, Delhi.
5. Both counsels are ad idem, that the land underneath the aforesaid
property was owned by two brothers namely Narender Chadha and Naresh
Chadha, who entered into a collaboration agreement with "Ansals" for
development/re-development of the said land by construction of flats
thereon; 108 flats were so constructed and under the agreement between
Chadhas and Ansals, both Chadhas and Ansals were entitled to sell the flats
falling to their respective share under the collaboration agreement; the four
flats subject matter of the suit, were acquired by the defendants No.1 to 4
with Ansals, not by a registered agreement to sell or sale deed, but under an
unregistered unstamped Flat Buyers Agreement and the defendants No.1 to 4
were in possession thereof.
6. Though neither of the defendants had any registered documents of title
in his/her respective favour with respect to any of the flats, but the
defendants No.1 to 4 managed to execute registered gift deeds in favour of
each other with respect to the said flats.
7. It is also not in dispute that Bank of India instituted a suit for recovery
of its dues from Chadhas and in which a decree for recovery of money was
passed and which decree was executed in the Debt Recovery Tribunal (DRT)
under the Recovery of Debts Due to Banks and Financial Institutions Act,
1993 (DRT Act) and in which execution, the entire property comprising of
108 flats was put to auction and was acquired by the plaintiff herein and a
sale deed was executed in favour of the plaintiff.
8. It is also not in dispute that Association of Flat Buyers, of which the
defendants No.1 to 4 were members, filed objections before the DRT and
which were dismissed and the appeal preferred against the said order was
also dismissed.
9. The plaintiff instituted this suit for recovery of possession of the four
flats from the defendants and for declaration of the gift deeds with respect
thereto executed by the defendants inter se as null and void and for mesne
profits and injunction.
10. On 2nd April, 2014, the following order was passed:
"CS(OS) 2104/2008, I.As. No.1424/2013 (of D-1 to 4 u/O 23 R-
3 CPC), 12349/2008 (u/O 39 R-1&2 CPC), 12350/2008 (u/O 39
R-10 CPC), 1949/2010 (of D-5 u/O 26 R-9 CPC), 15865/2011
(of D-1 to 4 for release of keys), 4074/2012 (of plaintiff for
release of keys) & 7156/2012 (for filing additional documents)
& CC No.68/2009 (of D-1 to 4)
ARVINDER KAUR SETHI ..... Plaintiff
Through: Mr. K.G. Seth and Mr. A.P.
Mohanti, Advocates.
Versus
KRISHAN KUMAR AGGARWAL AND ORS. ..... Defendants
Through: Mr. P.K. Patanaik, Adv. for D-1
to 4.
Mr. Kamal Mehta, Adv. for
D-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 02.04.2014
I.A. No.6236/2014 (of plaintiff and D-1 to 4 u/O 23 R-3 CPC)
1. The suit, besides the defendants No.1 to 4, also has Life
Insurance Corporation of India (LIC) as defendant No.5. The
counsel for the plaintiff on enquiry states that the plaintiff
hereby withdraws the suit insofar as against the defendant No.5
LIC. Accordingly, the suit against the defendant No.5 LIC is
dismissed as withdrawn.
2. The plaintiff and the four defendants are stated to have
compromised all their disputes and differences subject matter of
this suit on the terms and conditions contained in this
application and as set out in detail in the Deed of Settlement
Annexure A-1 to the said compromise application.
3. The compromise application is stated to be signed by the
plaintiff as well as he defendants No.1 to 4 and is also stated to
be accompanied by the affidavits of the plaintiff and the
defendants No.1 to 4. The compromise application is also
stated to be signed by the Advocates for the plaintiff and the
four defendants. The Deed of Settlement is also stated to be
signed on the last page thereof by the plaintiff and the four
defendants.
4. The plaintiff had instituted the present suit for recovery of
possession of immovable property, mesne profits and for
cancellation of Gift Deeds.
5. The Deed of Settlement records that the defendants No.1
to 4 shall within 15 days of the recording of this compromise,
have the said Gift Deeds cancelled.
6. It has been enquired from the counsels as to how, in the
absence of any order or direction from the Court, the defendant
No.1 will have the Gift Deeds cancelled.
7. The counsels state that a consent judgment/decree
directing the cancellation of the said Gift Deeds be passed.
8. It is also a term of the Deed of Settlement that the
defendants No.1 to 4 shall be entitled to collect the keys of the
respective flats mentioned in the Deed from the record of
CS(OS) No.57/2009 where they are stated to be deposited and
shall be entitled to continue in occupation of the said flats.
9. It has been enquired from the counsels as to in what
right/capacity, the said occupation by the defendants No.1 to 4
of their respective flats will be and on what terms and
conditions.
10. The counsels state that the said occupation will be as a
licensee under the plaintiff and till the time the defendants No.1
to 4 purchase their respective flats from the plaintiff.
11. The terms and conditions of purchase are not part of the
Deed of Settlement.
12. The counsels have been informed that the said occupation
by the defendants No.1 to 4 of the flats, if entailing payment of
any stamp duty, cannot by virtue of the Deed of Settlement on
which no stamp duty has been paid, create any rights in favour
of the defendants No.1 to 4.
13. The counsels are agreeable to the same.
14. Save to the aforesaid extent, the compromise as contained
in the application and in the Deed of Settlement is found to be
lawful.
15. The application is allowed.
16. Subject to what is recorded hereinabove, the suit and the
counter claim are decreed in terms of the compromise
application, leaving the parties to bear their own costs. A
decree is also passed for cancellation of the four Gift Deeds
particulars whereof are mentioned in prayer paragraph (b) of
the plaint dated 22nd September, 2008 and the concerned Sub-
Registrar is directed to in his records make a note of the factum
of the cancellation of the said Gift Deeds vide this judgment and
decree of this Court.
17. The compromise application and the Deed of Settlement
to form part of the decree sheet.
18. Decree sheet be drawn up.
19. The keys of the flats stated to have been deposited in
CS(OS) No.57/2009 and further stated to have been transferred
to this suit be released to the plaintiff in terms of the
compromise.
20. The counsel for the defendant No.5 LIC states that an
appeal arising from CS(OS) No.57/2009 is pending
consideration.
21. Needless to state that the release of the keys to the
plaintiff shall be subject to the orders, if any for retention of the
said keys in the Court in CS(OS) No.57/2009 and/or in appeal
arising therefrom.
Copy of this order be given dasti."
11. The defendants No.1 to 4 have filed IA No.8508/2014, pleading (i)
that the defendants No.1 to 4 had not engaged Mr. P.K. Patanaik, Advocate
as their counsel; (ii) that the defendants No.1 to 4 had no knowledge about
filing of IA No.6236/2014 under Order XXIII Rule 3 of CPC; (iii) that the
defendants No.1 to 4 entered into a compromise with the plaintiff in terms of
IA No.1424/2013; the subsequent compromise application being IA
No.6236/2014 is false, frivolous and fraudulent; (iv) that IA No.1424/2013
was to be signed by the plaintiff and was to be handed over to the defendants
No.1 to 4 for the purpose of filing in the Court; (v) however the defendants
No.1 to 4 had filed IA No.1424/2013 also under Order XXIII Rule 3 of CPC
which was taken by the Court on 24th January, 2014 and re-notified for 12th
February, 2014 and withdrawn on 14th March, 2014 on the pretext of a fresh
settlement having been arrived at; (vi) that the defendants No.1 to 4 have
paid a sum of Rs.5 lakhs to the husband of the plaintiff in terms of
compromise contained in IA No.1424/2013; (vii) that it was represented by
the husband of the plaintiff to the defendants No.1 to 4 that there were some
discrepancies with respect to age and address in IA No.1424/2013 and for
which reason the same was not filed and in last week of March, 2014, the
husband of the plaintiff got various papers signed from the defendants No.1
to 4 on the pretext of correcting the said mistakes and also obtained
photographs of the defendants No.1 to 4 for pasting on the compromise
applications; (viii) that the representation to the defendants No.1 to 4 was
that the original compromise as contained in IA No.1424/2013 would stand;
(ix) however IA No.6236/2014 was filed before the date fixed on 29 th April,
2014 and the compromise decree obtained; (x) that a fraud had been played
on the defendants No.1 to 4; (xi) that on 22nd/23rd April, 2014, the husband
of the plaintiff informed defendant No.3 that he had already collected the
keys from the Court and called upon the defendants No.1 to 4 to get their gift
deeds cancelled; (xii) that on 25th April, 2014, IA No.7615/2014 was being
shown in the Cause List and when the defendants No.1 to 4 appeared, they
discovered Mr. Mohanty and Mr. Patanaik, Advocates to be appearing for
them and were put to enquiry and learnt of the fraud practised by the
plaintiff.
12. On 9th May, 2014, the following order was passed on IAs No.8508-
8509/2014:
"IAs No.8508-509/2014 (of the defendants no.1 to 4 for recall
of the compromise recorded on 02.04.2014 in terms whereof
the suit was disposed of and for stay of the compromise terms)
1. The compromise as recorded on 2nd April, 2014 is sought
to be recalled by alleging fraud including by the advocates.
2. It has been enquired from the counsel for the defendants /
applicants whether any FIR of the fraud alleged has been
lodged.
3. The counsel for the applicants / defendants replies in
negative, though states it is being done.
4. It has further been enquired from the counsel for the
applicants / defendants as to how the compromise once
recorded and in accordance with law, can be recalled. Though
the applicants / defendants have in the application generally
referred to a number of judgments on fraud but without
referring to the facts thereof and the facts of none of the said
judgments are found to be akin to the facts on which the same
are sought to be relied upon as precedent.
5. The Court cannot, after the compromise is recorded on
the basis of a compromise application filed by the parties and
supported by the advocates appearing for the parties, so lightly
initiate proceedings for recall of the said compromise,
specifically when with the party seeking such recall has not even
taken steps as are expected if the allegations made were to have
any substance. Reference in this regard can be made to Sunil
Kumar Kapur Vs. Anil Kumar Kapur MANU/DE/3514/2010.
6. It is significant that the applicants / defendants have
nowhere denied their signatures on the compromise application
or the settlement deed annexed thereto and their plea is that the
plaintiff had asked them to sign blank papers and which blank
papers with their signatures have been used for the purpose of
having the compromise recorded. It appears highly unlikely
that the defendants who are in litigation with the plaintiff in this
suit since the year 2008 and appear to be in litigation with the
plaintiff in other suits as well, as warring parties would give
signatures on blank papers of their opponent. The application
is thus liable to be summarily dismissed. However it is deemed
appropriate to give an opportunity to the counsel for the
applicants / defendants to study the matter and satisfy the Court.
7. List on 16th May, 2014."
and on 16th May, 2014, the following order was passed:
"IAs No.8508/2014 & 8509/2014 (of D-1 to 4 for recall of
order dated 2nd April, 2014 and for stay)
1. This order is in continuation of the earlier order dated 9 th
May, 2014.
2. The senior counsel for the defendants/applicants No.1 to
4 has referred to Zahoor Bux Vs. Fareed Bux (2005) 13 SCC
383 and Dadu Dayal Mahasabha Vs. Sukhdev Arya (1990) 1
SCC 189. However, while the head note of the first judgment
though refers to Order XXIII Rule of the Civil Procedure Code
(CPC), 1908 but no reference thereto is found in the body of the
judgment and the proceedings therein were before the Deputy
Director of Consolidation, before whom, in my opinion, the
provisions of Order XXIII Rule 3 CPC do not apply.
3. As far as the second of the aforesaid judgments is
concerned, though undoubtedly in para 7 thereof it has been
held that if a party makes an application before the Court for
setting aside the decree on the ground that he did not give his
consent, the Court has the power and duty to investigate the
matter and to set aside the decree if finds the consent lacking
but I am of the prima facie opinion that such applications
cannot be entertained at the mere asking and only if a factual
basis therefor is made out.
4. Reliance is also placed on para 7 of Banwari Lal Vs.
Smt. Chando Devi AIR 1993 SC 1139.
5. Before considering the matter, it is deemed appropriate to
have before this Court the counsel who had appeared for the
defendants/applicants No.1 to 4 on the date when the
compromise was recorded.
6. Though the senior counsel for the defendants/applicants
No.1 to 4 has contended that a notice be issued to the said
counsel but it is deemed appropriate to first seek his appearance
otherwise. Of course, if inspite of communication of the present
counsel for the defendants/applicants No.1 to 4, the counsel
does not appear, this Court will have no option but to issue
notice.
7. The senior counsel for the defendants/applicants No.1 to
4 also states that a complaint to the Delhi Bar Council and a
complaint to the Police have also been made. An affidavit to the
said effect be also filed before the next date of hearing along
with copies of the complaints filed and the action taken thereon.
8. List on 22nd May, 2014.
RAJIV SAHAI ENDLAW, J.
MAY 16, 2014
9. At this stage, Mr. A.P. Mohanty, Advocate for the plaintiff
and Mr. P.K. Patnaik, Advocate appear.
10. Mr. P.K. Patnaik, Advocate on enquiry, as to on whose
instructions he had appeared on behalf of the
defendants/applicants No.1 to 4, states that he appeared on the
authority of the Vakalatnama duly signed by the
defendants/applicants No.1 to 4. On further query, as to who
had signed the Vakalatnama, he points out to defendant No.3
Mr. Honey Gupta present in Court. He further states that
though he had asked the said Mr. Honey Gupta for the presence
of all the defendants but Mr. Honey Gupta informed him that the
defendants No.2 & 4 being ladies cannot come. It is further
stated that the Vakalatnama was signed at the residence of the
plaintiff Ms. Arvinder Kaur Sethi. He further states that the
presence of Mr. Honey Gupta was recorded on the CCTV
installed at the residence of Mr. Joginder Singh Sethi husband
of the plaintiff Ms. Arvinder Kaur Sethi.
11. Mr. A.P.Mohanty, Advocate also states that since the
parties had arrived at a compromise, he had got engaged Mr.
P.K. Patnaik on behalf of the defendants No.1 to 4.
12. List for further hearing on 22nd May, 2014. Mr. P.K.
Patnaik, Advocate is also requested to remain present on that
date."
13. Vide order dated 29th May, 2014, the following order was passed:
"1. This order is in continuation of the previous orders dated
09.05.2014 & 16.05.2014.
2. During the course of the hearing, it has been noticed that
while as per para no.8 of the order dated 02.04.2014, the keys of
the "respective flats" mentioned in the Compromise Deed were
to be collected by the defendants no.1 to 4 from the record of
CS(OS) No.57/2009 where they were stated to be deposited and
the defendants no.1 to 4 were to be entitled to continue in
occupation of those flats but in para no.19 of the order, the keys
of the flats have been ordered to be released to the plaintiff "in
terms of the compromise".
3. Though it is the contention of the senior counsel for the
defendants no.1 to 4 that the same also shows the mala fides and
collusion and misrepresentation in obtaining the order dated
02.04.2014 but as far as I recollect, there was no
misrepresentation and inconsistency in what is recorded in para
no.8 and what is directed in para no.19 appears to be a
typographical error.
4. The senior counsel for the defendants further states that
the plaintiff, taking advantage of the same has already taken the
keys of the flats from the file of CS(OS) No.57/2009 and has
started the work of making additions and alterations in the said
flats.
5. Mr. G.S. Raghav, Advocate appearing today for the
plaintiff states that the direction for release of the keys is in
terms of the order dated 19.07.2010 in CS(OS) No.57/2009.
However though reference to the said order is made but the
Compromise Deed further states that the possession of the flats
is to be given to the defendants no.1 to 4.
6. It is thus clear that in terms of the compromise, the keys
and the possession of the subject flats was to be of the
defendants instead of the plaintiff.
7. In the aforesaid circumstance, it has been put to the
counsel for the plaintiff that the plaintiff, since defending the
compromise recorded on 02.04.2014, should abide thereby by
delivering the possession of the flats to the defendants forthwith.
Else, it would be deemed that the plaintiff itself is in violation of
the compromise and an inquiry will have to be made.
8. Mr. Raghav, Advocate for the plaintiff under instructions
states that the possession of the said flats shall be delivered to
the defendants by tomorrow i.e. 30.05.2014.
9. List for further consideration on 11th July, 2014.
Dasti under signature of Court Master."
14. The defendants No.1 to 4 since then are in possession of the property.
15. A perusal of IA No.1424/2014 (the counsel for the defendants No.1 to
4 admits that in IA No.8508/2014, the number of the said application has
wrongly been mentioned as 1424/2013), the compromise arrived at was as
under:
"I.A. No.1424/2014
In
CS(OS) 2104/2008
IN THE MATTER OF:-
ARVINDER KAUR SETHI....
....PLAINTIFF
VERSUS
KRISHAN KUMAR AGGARWAL & ORS
.....DEFENDANTS
Application under Order 23 Rule 3 Read with Section 151
of the code civil procedure, 1908 in C.S.(O.S.) 2104/2008 filed
on behalf of Defendants i.e. Krishan Kumar Aggarwal
(Defendant No.1), Smt. Santosh Rani (Defendant No.2), Honey
Gupta (Defendant No.3) and Smt. Mika Gupta (Defendant
No.4), Occupants as per the Flat Buyer Agreement of Flat No.
CGF-1, CGF-2, CGF-3 and CGF-4.
MOST RESPECTFULLY SHOWETH:-
1. That the matter has been settled amicably among the parties,
as per the under mentioned terms:-
i) a). That the Defendant No.1,2,3 and 4, in the present
Suit No.2104/2008 hereby agree as per the terms
written in Flat Buyer Agreement.
b) Sum Rs. 5 Lac only paid toward maintenance
charges as claimed by Plaintiff.
ii) Therefore accordingly hereby no objection for release of
the keys in favour of the Defendants 1 to 4.
iii) Defendant 1 to 4 on account of internal family
arrangement have agreed among themselves for
rearrangement of flats in question and agree for
cancellation of gift deeds followed by arrangement among
family members by virtue of this Suit. Thereby treating
these gift deeds cancelled as on date of suit.
Prayer:-
Therefore it is most humbly prayed before this Hon'ble Court,
that as per the above terms, the suit may be disposed off
accordingly as prayed.
Prayed Accordingly.
Arvinder Kaur Sethi (Krishan Kumar Aggarwal)
Sd. Sd.
Plaintiff Defendant No.1
Sd.
(Smt. Santosh Rani)
Sd.
Defendant No.2
(Honey Gupta)
Sd.
Defendant No.3
(Mika Gupta)
Sd.
Defendant No.4"
16. A perusal of the aforesaid application, which according to the
defendants No.1 to 4 recorded the compromise arrived at with them, would
show that the defendants No.1 to 4 therein also had agreed to cancellation of
the gift deeds in their favour and as per the compromise contained therein
also, the plaintiff was not to convey any title in the four flats in favour of the
defendants No.1 to 4 and the right of the defendants No.1 to 4 with respect to
the said flats was to be in terms of the Flat Buyers Agreement only.
17. The said Flat Buyers Agreements which are unregistered and
unstamped do not create any rights better than as per the compromise
recorded on 2nd April, 2014 in favour of the defendants No.1 to 4. In the
light thereof, all the arguments made of fraud in arriving at the compromise
are of no avail, inasmuch as the terms of compromise agreed according to
the defendants No.1 to 4 were no different from the terms on which
compromise was being recorded.
18. Even otherwise, once the defendants No.1 to 4 have been litigating
with the plaintiff for long and before different fora, the pleas taken in IA
No.8508/2014 of having signed documents at the mere asking of the husband
of the plaintiff and without reading the contents thereof do not inspire
confidence.
19. The counsel for the plaintiff referred to Dadu Dayal Mahasabha Vs.
Sukhdev Arya (1990) 1 SCC 189.
20. The counsel for the defendants No.1 to 4 has referred to Jamilabai
Abdul Kadar Vs. Shankarlal Gulabchand AIR 1975 SC 2202, Chengan
Souri Nayakam Vs. A.N. Menon AIR 1968 Kerala 213 (FB), Advocate
General of Madras Vs. Amanullakhan AIR 1967 Madras 162, S. P.
Chengalvaraya Naidu Vs Jagannath (1994) 1 SCC 1, judgment dated 14th
March, 2000 in Civil Appeal No.2088/2000 titled United India Insurance
Co. Ltd. Vs. Sanjay Singh, D.P. Chadha Vs. Triyugi Narain Mishra AIR
2001 SC 457 and Indian Bank Vs. M/s Satyam Fibres (India) Pvt. Ltd.
(1996) 5 SCC 550.
21. However, here, as aforesaid, there is no difference in the compromise
as the defendants no.1 to 4 / applicants claim was arrived at and the
compromise in terms whereof the suit was disposed of. Once it is so, all
pleas of fraud having been practised, dissipate and need to deal with
judgments aforesaid is not felt.
22. No other argument has been urged.
23. There is no merit in the applications.
24. Dismissed.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 06, 2018
Bs..
