Himachal Pradesh High Court
Sh. Vikram Kapur vs Sh. Balbir Singh Verma on 21 February, 2022
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF FEBRUARY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
COMMERCIAL SUIT NO.1 OF 2018
Between:
1. SH. VIKRAM KAPUR, S/O SH. MULKH RAJ
KAPUR, R/O DYERTON NO. 1, BELOW
TALLAND, SHIMLA171001 (H.P.) AND 644
FAWN CIRCLE, KING OF PRUSSIA,
PHILADELPHIA, USA
2. SH. VISHAL KAPUR S/O SH. MULKH RAJ
KAPUR,
R/O DYERTON NO. 1, BELOW TALLAND,
SHIMLA171001 (H.P.) AND 552 WALKER RD,
WAYNE, PA 19087, USA
3. SH. GAURAV KAPUR, S/O SH. MULKH RAJ
KAPUR, R/O DYERTON NO. 1, BELOW
TALLAND, SHIMLA171001 (H.P.) AND 1111,
COLEMAN ROAD, CHESHIRE, CT, USA
[PLAINTIFFS NO. 1 TO 3 THROUGH THEIR
DULY APPOINTED AND CONSTITUTED
GENERAL POWER OF ATTORNEY HOLDER
COLONEL MUNISH KAPUR VSM, (R), S/O
LATE SH. WAZIR CHAND KAPUR, R/O
DYERTON VILLA, DYERTON ESTATE, BELOW
TALLAND, SHIMLA171001 (H.P.)
PLAINTIFFS
(BY MR. SUNEET GOEL & MR.VIVEK NEGI,
ADVOCATES).
AND
1.SH. BALBIR SINGH VERMA,
S/O SH. DHARAM DAS VERMA,
KOTHI NO. 4 B, LANE 7, SECTOR 1, NEAR
SHRIRAM HOSPITAL,
NEW SHIMLA171009, SHIMLA (H.P.)
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2.SH. MOHAN VERMA, S/O SH. BELI RAM
VERMA, R/O BARAW, P.O. BAGARI, TEHSIL
THEOG, DISTRICT SHIMLA (H.P.)
.
3. RAMANAND CHAUHAN, SON OF SH. ARSHU
CHAUHAN,R/O VILLAGE SHARMALI, P.O
BHALGAR, TEHSIL THEOG, DISTRICT
SHIMLA,HP.
4. KULDEEP CHAUHAN, SON OF SH. DULCHI
RAM ,R/O VILLAGE MEHA, P.O CHANAIR,
TEHSIL THEOG, DISTRICT SHIMLA,HP.
DEFENDANTS
MR ROMESH VERMA ADVOCATE FOR D-1 TO
D-3
NONE FOR D-4
Whether approved for reporting?
This Suit coming on for orders this day, the Court delivered the following:
JUDGMENT
Plaintiff has filed suit for possession of property known as
"Dyerton" bearing following description:
"a. Building having three habitable floors each
consisting of one three bedroom flat and one two bed
room flat; one parking floor; and an attic built upon
Khewat No.91/80, khatauni No. 162/151, Khasra
No.873, Mohal Kanlog, Tehsil Shimla (Urban), District
Shimla (H.P.), each floor having base area of about
422.71 square meters or 4550.01 square feet.
b. Top floor of the building facing Khalini consisting
two three bedroom flats along with an attic built upon
Khewat No.91/80, khatauni No.162/151, Khasra
No.862/863, Mohal Kanlog, tehsil Shimla (Urban),
District Shimla (HP) and having total built up area of
about 213.67 square meters or 2300 square feet
including staircases".
2. Suit has also been filed for recovery of Rs.39,86,014/(Rupees Thirty
Nine Lakhs Eighty Six Thousand and Fourteen Only) alongwith pendente lite
.
and future interest @ 18% per annum from the date of filing of the suit till the
date of realization along with costs and for recovery of use and occupation charges
@3,000/ (Rupees Three Thousand only) per day with effect from 27.7.2017 till the
date of handing over of the vacant and peaceful possession of the Licensed
Premises by the defendants to the plaintiffs.
3. During pendency of the appeal, matter has been compromised
between the parties. Application OMP No.605 of 2021 has been filed under Order
23 Rule 3 C.P.C to decree the suit in terms of compromise. Terms and conditions
of the compromise have been incorporated in the application.
4. On 7.12.2021, Col. Munish Kapur, Power of Attorney of plaintiffs
and Mr. Balbir Singh Verma, defendant No.1 were present in person. Their
statements have been recorded on oath, wherein they have endorsed the terms of
compromise and have prayed for deciding the suit by passing a decree in terms of
compromise.
5. Undertakings on behalf of defendants No. 2 to 4 by way of
affidavits, in terms of compromise arrived at between the parties, have also been
filed and placed on record admitting the compromise arrived at between the
parties.
6. In his statement made by Col. Munish Kapur as Power of Attorney
of plaintiff, it has been submitted as under:
"I am Power of Attorney holder of plaintiffs
Vikram Kapur,Vishal Kapur and Gaurav Kapur, who
are my nephews. Matter has been settled with
defendant 1, who is licensee in the premises in reference
in the suit and defendants No. 2 to 4 Monan Verma,
Rama Nand Chauhan and Kuldeep Chauhan, are sub
.
lessee under defendant No.1. Defendant No 1 Balbir
Singh Verma, has entered into compromise on behalf of
other defendants also. Terms of compromise have been
incorporated in OMP No 605 of 2021 which has been
filed jointly by me on behalf of plaintiffs and defendant
No 1 on behalf of all defendants. The terms of
compromise have been reproduced in paragraph 2 (a) to
2 (i) of the application. I endorse my signatures on the
application and I have also sworn affidavit in support of
averments made in the application. I have signed the
application and sworn the affidavit after going through
the contents of the application and after understanding
the terms and conditions of the compromise contained
therein. The matter has been settled strictly in terms of
instructions imparted to me by the plaintiffs and
therefore I pray for disposal of the suit by passing a
decree in terms of compromise.
My aforesaid deposition is strictly in
consonance with the instructions imparted to me
by the original plaintiffs. Compromise has been
arrived at between the parties out of their free will,
consent and without any threat, coercion or
external pressure".
As the matter has been settled, therefore, the
defendants shall not create any further third party
right in the suit property in any manner. We have
also agreed that in case of breach, the affected
party shall have right, to take action in accordance
with law including approaching this Court, and
apart from civil remedy to invoke the jurisdiction
of Court for contempt.
My aforesaid deposition is out of my
free will, consent and without threat, coercion or
external pressure''.
7. Defendant No.1 Balbir Singh has deposed as under:
"I have heard statement of Col Munish Kapur,
Power of Attorney of the plaintiffs, recorded in
Court today, on oath. I endorse the same to be true
and correct. I have signed OMP No. 605 of 2021
and sworn affidavit in support thereof on behalf of
all defendants after going through the contents of
.
the application, including terms and conditions of
the compromise arrived at between plaintiffs and
me on behalf of the defendants. I endorse my
signatures on the application as well as on the
affidavit. Mr. Mohan Verma, Mr. Rama Nand
Chauhan and Mr. Kuldeep Chauhan are sub
licensee under me and I have undertaken
compliance of terms and conditions of the
compromise on their behalf also on the basis of
undertaking given by them and they have also filed
personal undertakings separately by filing separate
affidavits in the Registry of this Court. For failure
of performance on behalf of defendants, I shall be
liable in terms of compromise arrived at between
us.
Earlier one Sunil Mohan Verma son of Beli
Ram Verma,r/o Baraw PO Bagari, Tehsil Theog,
District Shimia was sublessee under me but now
he has vacated the premises and Mr. Mohan Verma
son of Kehar Singh, R/o Chowai, PO Basa Dhar
Tehsil Theog, District Shimla, HP is sublesses
under me in his place and therefore instead of
defendant No 2 one Sunil Mohan Verma son of
Sh.Beli Ram Verma referred (supra), Mohan Verma
son of Kehar Singh, has given undertaking by way
of affidavit and as a matter of fact he is required to
be substituted in place of Sunil Mohan Verma son
of Beli Ram Verma. In these circumstances, I
reiterate the prayer made on behalf of the plaintiffs
to decide the Civil Suit by passing a decree in terms
of the compromise arrived at between the parties.
As the matter has been settled with the
plaintiffs, therefore, I shall not create any further
third party right in the suit property in any
manner. We have also agreed that in case of
breach, the affected party shall have right to take
action in accordance with law, including
approaching this Court, and apart from civil
remedy to invoke the jurisdiction of the Court, for
contempt.
My aforesaid deposition is out of my free will,
consent and without threat, coercion or external
pressure and also in consonance with the
.
undertakings given by Mr. Mohan Verma, Mr.
Rama Nand Chauhan and Mr. Kuldeep Chauhan."
8. Terms and conditions of the compromise as stated in the
application and endorsed in the statement of the plaintiffs and defendant No.1 are as
under:
(a) That the plaintiffs have agreed to waive
of the interest and penalty claimed by them in
the Civil Suit and also give rebate of 5% in the
enhancement of license fee payable by the
defendant No. 1 after 1.8.2017.
b) That now the plaintiffs shall be entitled
for and the defendant No. 1 shall be liable to
pay consolidated sum of Rs. 32,28,860/
(Rupees Thirty Two Lakhs Twenty Eight
Thousand Eight Hundred and Sixty Only)
including arrears and negotiated license fee till
31.3.2023 (as per calculation sheet Annexure
A1) in two installments of Rs. 15,00,000/
(Rupees Fifteen Lakhs Only) payable on or
before 15.5.2022 and the other installment of
Rs. 17, 28, 860/ (Rupees Seventeen Lakhs
Twenty Eight Thousand Eight Hundred and
Sixty Only) be payable on or before 15.3.2023.
The aforesaid installments shall be payable
after deducting 10% on account of Tax
Deducted at Source (TDS) on each installment
on pro rata basis.
c) That each installment shall be paid by
the defendant No. 1 by way of demand draft
drawn in favour of plaintiff No. 1. i.e., Sh.
Vikram Kapur after deducting 10% TDS
against his PAN No. HGPPK9328K and
defendant No. 1 shall issue TDS certificate
undertakes to keep the aforesaid PAN No.
operational. The Demand Draft shall be
handed over or tendered to the General Power
of Attorney holder of the plaintiffs i.e., Colonel
Munish Kapur VSM, (R), S/o Late Sh. Wazir
Chand Kapur, R/o Dyerton Villa, Dyerton
.
Estate, Below Talland, Shimla171001 (H.P.).
All the plaintiffs have concurred to such
payment being made by way of demand draft
in favour of plaintiff No. 1. In case of any
default in payment of any of the installment
within time stipulated as above, the same shall
carry interest @ 24% per annum, besides the
defendant No. 1 being liable for contempt of
Court. However, if delay in payment is caused
on account of failure of plaintiff No. 1 to keep
his PAN No. operational, the defendant No.1
shall not be liable for any delay in such
payment.
d) That the defendant No. 1 undertakes to
hand over the vacant and peaceful possession
of the entire building having three habitable
floors each consisting of one three bedroom flat
and one two bed room flat; one parking floor;
and an attic built upon Khewat No. 91/80,
Khatauni No.162/151, Khasra No. 873, Mohal
Kanlog, Tehsil Shimla (Urban), District Shimla
(H.P.), each floor having base area of about
422.71 square meters or 4550.01 square feet
(presently known and identified as Choupal
Sadan) by or before 31.3.2023 to the plaintiffs
through their General Power of Attorney
Holder Colonel Munish Kapur VSM, (R), S/o
Late Sh. Wazir Chand Kapur, R/o Dyerton
Villa, Dyerton Estate, Below Talland, Shimla
171001 (H.P.) in neat and clean condition, after
getting the respective portions under
occupation of the defendants 2 to 4 as sub
licensees vacated before 31.3.2023. Defendants
No. 2 to 4 shall file their respective
undertakings by way affidavits in the Hon'ble
Court undertaking to vacate their respective
portions before 31.3.2023 in order to facilitate
handing over of vacant and peaceful possession
of entire aforesaid building by defendant No. 1
to the plaintiffs through their aforesaid GPA
and it shall be the responsibility of defendant
No. 1 to obtain and file such undertakings by
defendants No. 2 to 4.
e) That the defendants shall not be entitled
.
for any extension beyond 31.3.2023 under any
circumstances whatsoever. In case of any
default on the part of defendants to hand over
the vacant peaceful possession to the plaintiffs
as aforesaid, they shall be jointly and
severally be liable to pay use and occupation
charges at the rate of Rs. 10,000/ per day,
besides being liable for the contempt of Court.
f) Defendant No. 1 shall be liable for and
clear all bills raised by the concerned
authorities towards electricity consumption,
water consumption and property tax, etc. till the
time of handing over of the possession of
building to the GPA holder of the plaintiffs and
submit original bills along with receipt of their
payments to the GPA of the plaintiffs. It is
clarified here that the receipt of payments of
electricity consumption, water consumption and
property tax, etc. till 31.3.2022 shall be handed
over to the GPA holder of the plaintiffs on or
before 1.6.2022 and for subsequent period till
31.3.2023 by or before 1.6.2023;
g) That the defendant No. 1 acknowledges,
admits, accepts and endorses the surrender of
license by Sh. Subash S/o Late Sh. Hari
Krishan Sharma R/o Village Santhokgarh,
District Una (H.P.) qua flat facing Khalini in
the top floor of the building built upon Khewat
No. 91/80, Khatauni No.162/151, Khasra No.
862/863, Mohal Kanlog, Tehsil Shimla (Urban),
District Shimla (H.P.) consisting three
bedrooms, hall kitchen, balconies, bathrooms,
etc. along with an attic in the building known
as Verma Apartments BlockA, Beer Khana,
Khalini, Shimla H.P. having total built up area
of about 213.67 square meters or 2300 square
feet including staircases on 1.5.2019 and by
Sh. Pankaj Sharma, S/o Sh. Naresh Kumar
Sharma, Shop No. 116, Subzi Mandi Shimla
1(H.P.) qua flat facing Kanlog in the top floor of
the building built upon Khewat No. 91/80,
Khatauni No.162/151, Khasra No. 862/863,
Mohal Kanlog, Tehsil Shimla (Urban), District
Shimla (H.P.) consisting three bedrooms, hall
.
kitchen, balconies, bathrooms, etc. along with
an attic in the building known as Verma
Apartments BlockA, Beer Khana, Khalini,
Shimla H.P. having total built up area of about
213.67 square meters or 2300 square feet
including staircases on 1.1.2020 directly in
favour of the plaintiffs and thereafter creation
of limited tenancy in favour of the aforesaid
persons after obtaining the permission of Rent
Controller. The defendant No. 1 shall not have
any liability qua water and electricity charges
with respect to the aforesaid premises also
described in head (b) of the suit property in the
civil suit. However, the liability to pay the
Municipal/Property taxes qua the premises
under occupation of Sh. Subash Sharma till
1.5.2009 and that under occupation of Sh.
Pankaj Sharma till 1.1.2020 shall be of
defendant No.1. The parties also accept and
acknowledge the factum of the setting off the
rent having been received from the aforesaid
two flats while calculating the license fee
payable by defendant No. 1 till 31.3.2023. It is
also clarified and acknowledged that the
defendant No. 1 shall be exclusive owner in
possession of basement of Verma Apartments
BlockA, Beer Khana, Khalini, Shimla H.P. i.e.,
the building built upon Khewat No. 91/80,
Khatauni No.162/151, Khasra No. 862/863,
Mohal Kanlog, Tehsil Shimla (Urban), District
Shimla (H.P.)
h) That failure on the part of the defendants
to abide by any term of this
settlement/compromise shall amount to
contempt of Court, for which the parties shall
be at liberty to approach this Hon'ble Court
and to have the decree executed.
i) Both the parties agree abide by the
terms of this settlement/compromise and the
decree may be passed in terms thereof.
9. In view of above, present suit is decreed in terms of
compromise. Statements of plaintiffs and defendant No.1, undertakings given by
.
defendants No. 2 to 4 as well as terms and conditions of compromise shall form
part of the decree. Court fee be refunded to the plaintiffs, as refundaable under
law/Rules.
10. Pending application(s),if any also stands disposed of.
21st February, 2022
(veena)
r to (Vivek Singh Thakur)
Judge.
.
