Bhai Balbir Singh & Ors. vs Bhai Upinder Singh & Ors.
2020 Latest Caselaw 2388 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Decision:- 11.08.2020

+      EX.P. 92/2016 & E.A. 922/2020, E.A. 24/2020

       BHAI BALBIR SINGH & ORS.           ..... Decree Holders
                     Through: Ms.Mohini Narain with Mr.Ishan
                              Narain, Advs.
                            versus

       BHAI UPINDER SINGH & ORS.           ..... Judgement Debtors
                     Through: Ms.Anusuya Sadhu Sinha with
                              Mr.Shubhankar, Advs. for JD-2B
                              Mr.Gaurav Duggal, Adv. for JD-3B
                              Mr. Sanjeev Mahajan, Adv. for JD-2
                              (c) and 2(d)
                              Mr.Sujoy Chatterjee, Adv.
                              Mr.Tushar       Sannu,    ASC      with
                              Ms.Malvika Trivedi, ASC for NDMC.


       CORAM:
       HON'BLE MS. JUSTICE REKHA PALLI

      REKHA PALLI, J (ORAL)

      1.

The present execution petition seeks execution of an award which was passed as long back as on 03.05.2005 between parties who are closely related family members.

2. Before dealing with the rival submissions, the factual matrix of the matter, as is necessary for disposal of the present petition, maybe noted. In 1948, the common ancestor of the parties Bhai Sundar Das,

purchased a plot admeasuring 1.06 acres at Property No. 9, Ratendone Road (now known as Amrita Shergill Marg). With the permission of the Land & Development Office, the plot was divided into two portions in 1962 which came to be known as Property No. 9, Amrita Shergill Marg (hereafter referred to as "Property No. 9"), and Property No. 9-A, Amrita Shergill Marg (hereafter referred to as "Property No. 9-A"). According to the division, Property No. 9 was to comprise of 0.5 acres, and Property No. 9-A was to comprise of 0.56 acres.

3. After the death of Bhai Sundar Das in 1963, his widow Smt. Somawanti Devi, as also her 3 sons namely, Bhai Surjit Singh, Bhai Trilochan Singh and Bhai Swinder Singh executed relinquishment deeds on 29.11.1972, relinquishing their shares in Property No. 9-A in favour of DH No. 1. A similar relinquishment deed in favour of DH No. 1 was also executed by Smt. Harbans Kaur, the daughter of Bhai Sundar Das. However, the JDs herein have claimed that pursuant to the execution of the relinquishment deed in favour of DH-1, making him the exclusive owner of Property No. 9-A, he was required to execute a similar relinquishment deed with respect to Property No. 9 in favour of Bhai Swinder Singh, Bhai Upinder Singh Group and Bhai Trilochan Singh Group, who are represented by the JDs. However, DH-1 failed to execute a deed to that effect, resulting in disputes between the parties, which were then referred for arbitration.

4. On 03.05.2005, an award came to be passed, in terms whereof the DH was held liable to execute and register a relinquishment deed with respect to Property No. 9 in favour of Bhai Swinder Singh, Bhai Upinder Singh Group and Bhai Trilochan Singh Group, represented in these proceedings by the JDs. Accordingly, directions were given to

DH No. 1 to execute and register all requisite legal documents for relinquishment of Property No. 9 in favour of the JDs. However, since it was found that a portion of the building constructed on Property No. 9, admeasuring 337 sq. yards, was protruding into Property No. 9-A, the learned Arbitrator directed the JDs to demolish the construction existing on this portion of 337 sq. yards and restore its possession to DH No. 1.

5. This award came to be challenged by both sides in OMP No. 270 of 2005 and OMP No. 274 of 2005, which were disposed of by the learned Single Judge vide order dated 03.01.2007 by upholding the award and directing the DH No.1 to execute and register the relinquishment deed for Property No. 9, simultaneously with directions to the JDs to demolish the protruding construction and handover the possession of the 337 sq. yards of vacant land to DH No. 1, within a period of 1 year. This order dated 03.01.2007 was challenged before the Division Bench in FAO (OS) No. 83 of 2007, during the pendency whereof, a family settlement dated 21.5.2010 was arrived at between DH No. 1 and JD No. 2B and, consequently, the appeal was disposed of by taking the said family settlement on record.

6. It appears that despite the award having attained finality, the parties did not perform their obligations thereunder, leading to filing of the present execution petition by DH No. 1 on 25.05.2016. The petition was initially disposed of by the Court vide order dated 24.11.2016 with certain directions for implementation to the parties. This order was assailed by one of the JDs before the Division Bench by way of EFA(OS) No. 31/2016 and was partially allowed on 05.12.2017. However, even after the disposal of this appeal, the award

was still not executed, as neither the JDs handed over the possession of 337 sq. yards of land to DH No. 1, nor did the DH No. 1 execute the relinquishment deed in their favour.

7. In the backdrop of these facts, this Court, vide its order dated 08.01.2019, after taking a holistic view of entire matter and hoping that the parties would now implement the award in its true letter and spirit, directed as under:

"Having heard learned counsel for the parties and perused the record, according to me, apart from, anything else. Clause 4(e) of the Settlement Deed dated 21.05.2010 has led to an absurd situation which is that if Judgment Debtor no. 2B does not demolish or sell the house for the next 50 years the decree would remain unsatisfied till then.

10.1 The decree holder has, to my mind, rightly taken the stand that he would execute and register the Relinquishment Deed with respect to Property No.9A, Amrita Shergill Marg, New Delhi only if the entire portion of 337 sq. yds. is handed over to him.

10.2 It is not disputed by any of the JDs that the ownership of 337 sq. yds. would vest with the decree holder. The situation, as it obtains today, is that the decree holder and-the JDs are unable to enjoy the subject property on account of a small piece of land, as is indicated above, marked as EIGL, which, I am told, admeasures only 60 sq. yds.

10.3 In view of the log jam which has obtains in this matter, I am of the view that the best way forward is to construe Clause 4(e) of Settlement Deed dated 25.05.2010 in a manner which is real and practical and which exemplifies the true intent of the parties, that is, to enjoy the traits of decree in their lifetime. Since, the decree

holder is willing to execute and register the Relinquishment Deed, I am inclined to direct Judgment Debtor no.2B to demolish and handover the portion marked as EIGL on the aforementioned map to the decree holder. The needful will be done by the Judgment Debtor no.2B within four (4) weeks from today. Upon the needful being done, the decree holder will execute and register the Relinquishment Deed in favour of all JDs."

8. Although the matter was directed to be listed on 08.03.2019 for compliance, the same was finally taken up for consideration only on 22.10.2019. On this date, this Court recorded the JD's admission that the DH was the absolute owner of Property No.-9A and that they would not carry out any act, deed or thing to prejudice his right in the said property. It also recorded the tender of possession of the portion of land marked as EIGL by the JDs to the DH. Further, the Court, after noticing the fact that the demolition upon EIGL had been duly carried out in terms of the order dated 08.01.2019, specifically observed that the DH had refused to accept possession thereof. The relevant extracts of the order dated 22.10.2019 reads as under:

"1. Learned counsels for judgment debtors No.l, 2A, 2B, 2C, 2D and 3A to 3C submit that vide order dated 08th January, 2019, this Court directed JD No.2B to demolish and handover the portion marked 'EIGL' to the decree holder within four weeks. It is submitted that the demolition was carried out in March, 2019 and the judgment debtors have written three letters to the decree holder to take over the possession. Learned counsel for JD No.2B submits that they are handing over the possession of the portion marked 'EIGL' to the decree holder today in Court.

2. The decree holder present in Court along with his counsel submits that he is not willing to take over the

possession of the portion marked as 'EIGL' till the registration of the relinquishment deed. The tender of the possession by the judgment debtors to the decree holder with respect to portion marked as 'EIGL' is taken on record.

5. Learned counsel for the judgment debtors submit that they have settled their disputes with the plaintiff in CS(OS) 1877/1984 with respect to their property No.9, Amrita Shergil Marg, New Delhi and they have not done any act, deed or thing against the decree holder with respect to the decree holder's right in property No.9A, Amrita Shergil Marg, New Delhi. The judgment debtors admit the decree holder to be the absolute owner of property bearing No.9A, Amrita Shergil Marg, New Delhi and they agree not to do any act, deed or thing to prejudice the decree holder's right in the aforesaid property as they do not have any right, title or interest in the said portion.

6. The statement made by the judgment debtors sufficiently safeguards and protects the decree holder's right in property bearing No.9A, Amrita Shergil Marg, New Delhi.

7. The decree holder present in Court today has executed the relinquishment deed in respect of property bearing No.9, Amrita Shergil Marg, New Delhi in favour of the judgment debtors without prejudice to his rights and contentions. The judgment debtors shall intimate the date of registration to the decree holder. The decree holder is directed to appear before the Sub-Registrar on the date to be fixed. The original relinquishment deed shall be submitted by the judgment debtors to the Sub-Registrar for registration. The judgment debtors shall collect the original relinquishment deed and deposit the same with the Registrar General within three days after receipt and same shall be released to the judgment debtors after hearing both the parties."

9. As is evident, the Court, after noticing the fact that JDs had complied with their obligations under the award as also with the directions passed by this court from time to time; observed that it had become incumbent upon DH No. 1 to execute a relinquishment deed in favour of the JDs in respect of Property No. 9. On being informed that DH No. 1 has executed the relinquishment deed, which was yet to be registered, the Court directed the DH No. 1 to appear before the Sub- Registrar for the registration thereof on a date to be fixed by the JDs. The Court further directed the JDs to collect the original relinquishment deed after registration and deposit it with the Registrar General within three days. It was also directed that the release of the relinquishment deed in favour of the JDs would be considered by the Court after hearing both parties. Subsequently, when the DH was unable to appear before the Sub-Registrar on the date fixed by the JD owing to his ill health, this Court, on 02.12.2019, directed the DH No. 1 to get the same registered by visiting the Office of the Sub Registrar on 16.12.2019 with directions to the Sub Registrar to ensure that the DH is not made to wait. It is the common case of the parties that the relinquishment deed was duly registered and has been deposited with the Registrar General of this Court.

10. At this stage it may be noted, that while the inter-se disputes between DHs and JDs were still pending, Bhai Sardar Singh, one of the brothers of DH No. 1, had filed a suit against his siblings and other family members in the year 1984, seeking partition of various joint family properties. Though this suit, which was registered as CS OS No. 1877/1984, now being CS OS No. 5820/2018, and has remained pending ever since, was initially dismissed in default on two occasions,

it was subsequently restored on 08.08.2018. Thereafter, the JDs entered into a settlement on 14.05.2019 with the LRs of the late Bhai Sardar Singh, who had instituted the suit.

11. Aggrieved by this settlement, the DH, on 22.11.2019, moved EA 922/2019, praying inter alia that the registered relinquishment deed ought not to be released in favour of the JDs as they had entered into a settlement agreement with the legal heirs of Bhai Sardar Singh (the plaintiff in CS OS No. 1877/1984), thereby making certain concessions which would operate directly against the interest of the DHs and dilute their exclusive ownership to Property No. 9-A.

12. As the relinquishment deed executed by DH No. 1 finally came to be registered on 16.12.2019 and deposited with the Registrar General, in compliance with the orders passed by this court, an application being EA NO. 24/2020 came to be filed by JD 3B, seeking early release of the original relinquishment deed executed by the DH No.1.

13. I have heard both sides at great length, and with their assistance, perused the record.

14. In the backdrop of the facts noted herein above, the foremost fact which emerges from the record is that the JDs have fully complied with the obligations imposed on them under the arbitral award, as also the directions issued by the Court from time to time, and have handed over vacant possession of the 337 sq. yards of land to DH No. 1 after demolishing the structure existing thereon. In fact, the DH No. 1 has also executed the requisite relinquishment deed in favour of the JDs and the same already stands registered, pursuant to directions passed by this court.

15. The only issue which survives for consideration of this Court is whether the relinquishment deed ought to be released in favour of the JDs to ensure full compliance with the arbitral award, or the same ought to be withheld, as contended by the DH by way of EA No. 992/2019.

16. Ms. Mohini Narain, learned counsel for the DH, does not dispute that the arbitral award required the DH No. 1 to execute a relinquishment deed in respect of Property No. 9 in favour of the JDs. She also does not dispute that the JDs have, in terms of the arbitral award, already surrendered possession of the entire 337 sq. yards of land which was protruding in Property No. 9-A before this Court on 22.10.2019. She, however, vehemently contends that while the JDs had admitted throughout that the DHs were the exclusive owners of Property No. 9-A, which position was also correctly reflected in the written statements filed by them in CS OS No. 1877/1984; they have now clandestinely entered into a settlement with the legal heirs of Late Bhai Sardar Singh on 14.05.2019, wherein they have made statements which dilute the absolute and exclusive ownership of the DH No. 1 with respect to Property No. 9-A. By drawing my attention to Clauses 1.2, 1.7, 8.1 and 8.9-B of the said settlement agreement, Ms. Narain vehemently urges that the JDs have taken a stand contrary to their original stand in the written statement filed in the aforesaid suit, by now admitting in the settlement agreement that late Shri Sardar Singh had not given up his share in the property. Her contention is that by entering into the said settlement, the JDs have attempted to deprive the DH No. 1 of its absolute ownership in Property No. 9-A, which act is not only contrary to the assurances given to this Court on 22.10.2019,

making them liable under the Contempt of Courts Act, 1971, but also casts a shadow on the exclusive ownership rights of DH No. 1. She thus contends that the JDs, after having themselves violated the terms of the award, cannot seek execution of the very same award.

17. On the other hand, Mr. Gaurav Duggal, Mr. Sanjeev Mahajan, and Mr. Sujoy Chatterjee, Advocates appearing on behalf of JDs, vehemently oppose the DHs application and submit that the DH No. 1, after receiving vacant possession of the land admeasuring 337 sq. yds. (the building existing thereon was demolished during the pendency of the execution petition by the JDs), is now merely trying to deprive the JDs of their rightful dues by delaying implementation of the award. They submit that the JDs have fully discharged their obligations under the award and are entitled to forthwith receive the relinquishment deed qua Property No. 9, of which they are the exclusive owners. Even the DH's plea that the JDs have taken a stand which is prejudicial to the interest of DH is wholly incorrect. They further submit that the judgment debtors' specific undertaking before this Court to refrain from any act which would be detrimental to the interest of DHs, is not in conflict with their decision to settle their disputes with the legal heirs of Late Bhai Sardar Singh and seek deletion of their names in the pending suits; the settlement of the civil suit cannot ipso facto imply that they have acted in a manner which is prejudicial to the interest of the DH No. 1 qua its rights in Property No. 9-A. Without prejudice to their aforesaid submission that the JDs have not acted in a manner violating the interest of the DHs, they submit that, in any event, the DHs, have already been granted a clarification by way of orders dated 18.11.2019 and 27.11.2019, passed by a Co-ordinate Bench of this

Court in CM (M.) No.1086/2018 filed by DH No. 1, clarifying that the settlement dated 14.05.2019 will not be used by any of the parties to the CS OS No. 1877/1984, including the legal heirs of Late Bhai Sardar Singh. Therefore, the DH's objection to the release of the registered deed in favour of the JDs in wholly misplaced and ought to be rejected with costs. Thus, they pray that the relinquishment deed be released in favour of the JDs without any further delay.

18. Having given my thoughtful consideration to the submissions of the learned counsel for the parties, I find absolutely no merit in the DH's application or their plea that the JDs have acted in contravention to the terms of the award. The DHs do not deny that the JDs had delivered possession of the entire 337 sq. yards of land, as recorded by this Court in its order dated 22.10.2019, thereby showing that they have fully discharged their obligations under the award as also the consequential orders of this Court. The entire basis of the DH's objection to the release of the relinquishment deed in favour of the JD is premised on their action of entering into a settlement with the legal heirs of Late Bhai Sardar Singh on 14.05.2019, which, according to the DH No. 1, will jeopardize its exclusive claim to Property No. 9-A. The DH's plea is that once the JDs have in the aforesaid settlement conceded that Late Bhai Sardar Singh had not relinquished his shares in both Property No. 9 and Property No. 9-A; the legal heirs of Late Bhai Sardar Singh are bound to take benefit of the said concession and thereby compel the DH No. 1 to contest the pending suit to defend his title to Property No. 9-A. In my view, this apprehension of the decree holder is without any basis as the settlement cannot be read in isolation and ought to be read in consonance with the order dated 27.11.2019

passed by a Coordinate Bench of this Court, wherein it has been specifically clarified that the terms of this settlement will not have any effect on the right, title or interest of the decree holder (who is defendant no.3 in this suit) with respect to Property No. 9-A. The relevant extract of the order dated 27.11.2019 reads as under:

"5. After hearing Ld. Counsel for the parties, paragraph No.11 (c) corrected as under:-

"c) The Defendants except Defendant No.3, i.e. the Petitioner herein, submit that they would be seeking deletion in the suit in view of the settlement which has been entered into. The Trial Court shall take the settlement on record subject to recording the statements of all the parties of their authorized persons, in accordance with law. It is made clear that the terms recorded in the said settlement qua property bearing No.9, Amrita Shergil Marg, New Delhi would not have a binding effect on the right, title or interest of Defendant No.3, whose claims qua No.9A, Amrita Shergil Marg, New Delhi, insofar as they have been challenged by the Plaintiff shall be adjudicated in the suit in accordance with law. All parties agree to not rely on the settlement, insofar as the rights of Defendant No.3 are concerned."

19. In the light of the specific directions passed by the Coordinate Bench that the terms of the settlement dated 14.05.2019 cannot be used by any of the parties including the legal heirs of Late Bhai Sardar Singh; the plea of the DH No. 1 that the JDs have compromised with the interest of DH No. 1 and committed an act which would prejudice the exclusive ownership right of DH No. 1 qua Property No. 9-A, is wholly misplaced. The aforesaid order dated 27.11.2019 clearly stipulated that the terms of the settlement dated 14.05.2019 will not

have a binding effect on the rights, title or interest of the DH No. 1 (who is Defendant No. 3 in the said suit) qua Property No. 9-A. Even before this Court, learned counsel for the JDs have reiterated, on instructions, that the JDs will not act in contravention to their undertaking as recorded in the order dated 22.10.2019, and will never act against the interest of DH No. 1 with respect to its claim of exclusive ownership over Property No. 9-A. Therefore, in view of the JDs disciplined compliance with their obligations as also their specific statement before this Court to adhere to the undertaking recorded in the order dated 22.10.2019, I find no reason to continue depriving the JDs of their rightful dues under the award.

20. Accordingly, for the aforesaid reasons, the DH's application, being E.A. No. 922 of 2019, and I.A. No. 923/2019 are dismissed. However, the JD's EB application, being EX. APPL. (O.S.) No. 24 of 2020, is allowed.

21. At this stage, learned counsel for JD Nos.1, 2A, 2B, 2C and 2D submit in unison that the original relinquishment deed may be handed over to JD 3B, subject to his filing an undertaking that this deed will not be misused to deprive the ownership rights of the other JDs. The Registry is directed to hand over the original relinquishment deed with respect to Property No. 9 to JD 3B, for which purpose the JD 3B will be at liberty to approach the Registrar General, on a date determined by the Registrar General. Needless to say, merely because the original relinquishment deed is being released in favour of JD 3B, no special rights will be created in its favour and JD 3B will remain liable to grant inspection and copies thereof to the other JDs, as and when required.

22. The petition is disposed of in the aforesaid terms along with the pending applications.

REKHA PALLI, J

AUGUST 11, 2020/gm/sdp