Delhi High Court
Shri Puneet Prakash vs Shri Jai Prakash & Ors. on 30 November, 2010
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI + IA No. 14711-12/2009 in CS(OS) NO. 189/2009 Date of Decision : 30.11.2010 Shri Puneet Prakash ...... Plaintiff Through: Mr. H. L. Tiku, Sr. Adv. with Mr. Thakur Sumit, Adv. Versus Shri Jai Prakash & Ors. ...... Defendants Through: Mr. M. Singh, Adv. CORAM : HON'BLE MR. JUSTICE V.K. SHALI 1. Whether Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES V.K. SHALI, J.
1. This order shall dispose of the application bearing no. 14711/2009 under Section 151 CPC on behalf of the defendant no.1 seeking directions as under:-
(a) Restrain the plaintiff in interfering from discharging the duties of the bank officials from sanctioning the loan amount of Rs.3 crores as per clause 6(1)(J) spelt out in the family settlement dated 15.04.2009 after censuring him and mulcting him with costs obstructing the settlement to operative as per the terms.
(b) In the alternative direct cancellation of settlement dated 15.04.2009 so that the parties will agitate their rights as per the pleadings de hors the settlement terms according to the pre-settlement position of pleadings.
2. Briefly stated the facts of the case are that the plaintiff filed a suit for partition, rendition of accounts and injunction claiming that he has 1/4th share in respect of the following four properties:
(i) M-56, Greater Kailash, Part-I, New Delhi.
(ii) Property at village Salempur, Bulandshahar, U.P.
(iii) Two residential plots at Pune.
(iv) Business in the name and style of M/s. V. P. Trading Co. Pvt. Ltd. and M/s Ganga Enterprises.
3. Since the suit was amongst the members of the same family, this Court referred the matter to the Delhi High Court Mediation and Conciliation Cell vide its order dated 05.03.2009. The parties compromised the matter in terms of the family settlement dated 15.04.2009, pursuant to which a joint application bearing no. 4985/2009 was filed by the parties. On 17.04.2009, the Court decreed the suit in terms of the said family settlement dated 15.04.2009 and it was specifically directed that the family settlement shall form part of the decree except paragraph five. It was also recorded that all the parties shall remain bound by the terms and conditions of the family settlement.
4. The case of the applicant/defendant no. 1 is that one of the terms and conditions of settlement is contained in Clause 6(1)(J) of the settlement which reads as under:
"6(1)(J) This property is presently stated by Shri Jai Prakash to have been mortgaged with Indian Bank and Shri Jai Prakash has taken certain other financial accommodation to purchase plots in Pune. The total liability is approx. Rs.3 crores out of which Rs. 1.12 crores approx. is towards bank loan and Rs.1.88 cores approx. from other sources. This liability from the credit card. Shri Jai Parkash will be entitled to take further loan from the bank and pay off all the said liability of Rs.1.88 crores taken from other sources. The monthly EMI of the bank and other outgoing such as property tax and other dues shall be paid out of the rental of the said property first and and the balance to the shared equally by Shri Jai Parkash, Smt. Uma Sharma, Puneet And Varun till repayment of the entire loan. The parties agree that EMI will be planned in such manner that each party gets net amount of at least Rs.75,000/- per month. Simultaneously with commencement of lease with Adi Sports Pvt. Ltd. The increment in monthly rental paid by tenant after every three years will be distributed to all four parties and added in said amount of Rs.75,000/-."
5. It is alleged by the applicant/defendant no. 1 that as a matter of fact all the properties forming the subject matter of the suit are self-acquired properties of the defendant no. 1, and therefore, the plaintiff has no right in the same. It is stated that it was only with a view to purchase peace that he had entered into a settlement conceding the right of the plaintiff in the suit properties by virtue of which the applicant/defendant no.1 was to pay an amount of Rs.75,000/- to the plaintiff which he has been paying without any default till the time of filing of the application. It is alleged that according to Clause 6(1)(J) the plaintiff in terms of the settlement had given a consent that Sh. Jai Parkash who is the applicant/defendant no. 1 is entitled to take further loan from the bank and pay off all the liabilities of Rs.1.88 cores taken from other sources. In order to discharge the admitted liability of the family to the tune of Rs.3 by cores taking the loan and discharging the liability, the applicant/defendant no.1 need not get the consent of the sons and wife as the said consent is built and implied in this very clause itself.
6. In the background of these terms and conditions of the family settlement, the applicant/defendant no.1 contended that he had approached the Manager of the Deutsche Bank, Safdarjang Area, New Delhi and Central Bank of India, Defence Colony, New Delhi, ICICI Bank, Indian Overseas Bank, Greater Kailash Branch, New Delhi on different dates for the purpose of raising loan so that the applicant/defendant no.1 could discharge his part of the obligation in terms of the settlement, but all these loans could not be taken by the applicant/defendant no.1 on account of various acts of omission and commission attributable to the plaintiff. The various acts of omission or commission which were attributed to the plaintiff were that either he would approach the banker and state that he has not given the consent for loan or raise the issue of the property being a disputed property or withdraw the consent after having initially given the same. It is alleged that since these acts on the part of the plaintiff have resulted in creating an obstruction in obtaining of the loan by the applicant/defendant no.1 in terms of clause 6(1)(J) of the family settlement dated 15.04.2009, therefore, he be restrained from creating any obstruction in raising of the loan, failing which, the settlement dated 15.04.2009 itself be treated as cancelled.
7. The plaintiff has filed the reply to the application and contested the claim of the applicant/defendant no. 1 for the restraint order or the cancellation of the settlement agreement by the defendant. It has been stated that the application itself is not maintainable as the decree has been passed in terms of the family settlement on 17.04.2009 and therefore, the case having been finally disposed of, no interim application, is maintainable. With regard to the merits of the application so far as the allegations of the plaintiff having created obstruction in the way of the applicant/defendant no. 1 in obtaining the loan is concerned, the same has been denied. On the contrary, counter allegations have been leveled against the applicant/defendant no.1 having indulged in various acts which were in violation of the terms and conditions of the settlement. To illustrate her point it has been stated that M-56, Greater Kailash, Part-I, New Delhi is essentially a property in which the plaintiff has 1/4th share in terms of the compromise decree dated 17.04.2009 but despite this the applicant/defendant no. 1 has entered into an agreement for lease dated 21.05.2009 in favour of one R.D. Sports India Pvt. Ltd. and Adiddas India Marketing Pvt. Ltd. in respect of certain portions of the said property showing himself falsely as the absolute owner of the said property. Various other similar acts and omissions have been referred to in the reply for the purpose of contesting the bonafides of the applicant/defendant no. 1 in filing the present application. Therefore, it has been prayed that the application be dismissed.
8. I have heard the learned senior counsel Mr. H. L. Tikku on behalf of the plaintiff and Mr. M. Singh, the learned counsel on behalf of the applicant/defendant no. 1.
9. The main contention of the learned senior counsel for the plaintiff has been that once a compromise has been arrived at by the parties and a compromise decree is passed by the Court, it is not open to the applicant/defendant no. 1 to wriggle out of the said compromise decree by making false accusations, that the plaintiff is trying to create hurdles in the implementation of the compromise decree or the reciprocal obligations which are expected to be discharged by the respective parties. It was contended that the application which has been filed by the applicant/defendant no. 1 is actuated with ulterior motive to deprive the plaintiff of her legitimate share not only in the suit property but also to deprive her of earning an income of Rs.75,000/- which she is supposed to get in terms of the settlement having been arrived at.
10. The learned counsel for the applicant/defendant no. 1 on the contrary contended that since the plaintiff by her own acts of omission and commission was not permitting the applicant/defendant no. 1 to raise the loan in terms of Clause 6(1) (J) of the family settlement, therefore, either she be restrained from creating such obstructions or hindrances as was being done by her on different occasions when the applicant/defendant no. 1 tried to obtain loan from different banks or alternatively the settlement which is the basis of the compromise decree having been passed should itself be recalled and the suit of the parties be decided on merits because the stand of the applicant/defendant no. 1 is that the suit properties are self-acquired properties of the applicant/defendant no. 1 and not of the plaintiff.
11. I have considered the respective submissions of the parties and have gone through the record carefully.
12. At the outset, it must be mentioned that there is no dispute about the suit having been decreed on 17.04.2009 in terms of the family settlement having been arrived at between the parties on 15.04.2009 which was placed on record by a joint application under Order XXIII Rule 3 CPC. It is not the case of the applicant/defendant no. 1 that he had signed the compromise or the application under force, coercion, mis-representation or undue influence. In the absence of any such plea, I do not think that this Court can concede to the prayer of the applicant/defendant no.1 of setting aside the compromise decree which has been passed by this Court on 17.04.2009. As a matter of fact, in family matters, where the family settlement is arrived at and it is essentially approved by the Court, it should be loath to interfere with the same in order to not only maintain the peace and tranquility in the family but also to maintain cordiality. The family settlement ought not be disturbed only because one of the party is defaulting in discharging its obligation or any party is trying to retract its statement. If this is permitted to be done it will completely take away the sanctity and the efficacy of the family settlement which have been given the seal of the approval by the Court by passing a compromise decree as has been done in the instant case.
13. In Hari Shankar Singhania Vs. Gaur Hari Singhania 2006(4) SCC 658, it was observed by the Apex Court as under:-
"A family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bonafides, taking into account the well-being of a family.
Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. In the present case, even though the parties with a good intention have entered into the deed of dissolution and to divide the properties in equal measure in 1987, the attitude and conduct of the parties has changed, unfortunately in a different direction. Therefore, it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. The appellants and the respondents are the members of the family descending from a common ancestor. At least now, they must sink their disputes and differences, settle and resolve their conflicting claims once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family."
14. Moreover, the present application has been filed under Section 151 CPC. Inherent powers cannot be used for the purpose of vacating or modifying or recording the final order/judgment which has been passed by the Courts on the basis of the compromise arrived at by the parties. Reliance in this regard is placed on Dadu Dayal Mahasabha Vs. Sukhdev Arya 1990 (1) SCC 189.
15. The question which would next arise is that if family settlement is arrived at by the parties and a compromise decree is passed in terms of the said family settlement and one of the party does not adhere to fulfill its obligation in terms of the settlement is it open to the other side to challenge the settlement itself or what is the method of obtaining the compliance. The answer to this question has been given in number of judgments both by the Apex Court as well as our own High Court, where they have observed if a family settlement is arrived at and a compromise decree is passed on the basis of the said settlement the proper method for implementation of the terms and conditions of the said settlement is to file the execution petition. Reliance is placed on Arjan Singh Vs. Punit Ahluwalia AIR 2008 (SC) 2718, Amarjit Singh Vs. Inderpreet Singh Monga 1992 (47) DLT 587, Gyan Devi Vs. Leela Devi 2007 (8) AD (Delhi) 306. It cannot be implemented by either filing a contempt petition or challenging the very existence of the settlement itself. Unless and until, it is alleged and prima facie established that the settlement itself was obtained by forgery, coercion, threat or inducement in which even the decree may perhaps be liable to be set aside after holding necessary inquiry into this. Reliance in this regard is placed on the following judgments. Preetinder Singh Vs. Gursharan Singh 2010 (1) AD (Delhi) 657 and Gopal Mohan Vadhera Vs. Jagdish Rai Vadhera 2008(100) DRJ 371.
16. In the instant case, it has been stated hereinabove that there is no allegation much less a prima facie proof, that the settlement having been arrived at, by coercion and threat etc. therefore the compromise decree which is passed on the basis of the settlement cannot be permitted to be withdrawn or retracted so as to decide the suit on merits.
17. The next question which would arise is as to whether the Court can, as is alleged by the applicant/defendant no.1, restraint the plaintiff from creating hurdles or interference in the obtaining of loan by the applicant/defendant no. 1 in terms of a particular clause of the settlement is concerned, I am of the view that even such a restraint order cannot be passed by this Court as the Court after passing of the compromise decree has become 'functus officio' and such a restraint order cannot be passed and the only method which may be perhaps open to the applicant/defendant no. 1 is to seek execution of the compromise deed. Although as observed in Hansa Industries Pvt. Ltd. Vs. Kidarsons Industries JT 2006 (9) SC 100, Court cannot provide solution nor advise as to how the parties should arrange their affairs.
17. For the reasons, mentioned above I feel that the application of defendant no. 1 is totally misconceived, and accordingly, the same is dismissed.
18. So far as the IA bearing no. 14712/2009 is concerned, this is an application seeking exemption from filing certain copies of the documents relied upon in the above-mentioned IA, the same has also become infructuous as on date, and accordingly, dismissed.
V.K. SHALI, J.
November 30, 2010 KP CS(OS) No. 189/2009 Page 10 of 10