Delhi High Court
Shri R.S. Chhabra vs Shri Gopal Krishan Kapoor And Others on 28 June, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 4th April, 2024
Pronounced on: 28th June, 2024
+ EX.P. 232/2007 & EX.APPL.(OS) 436/2024
SHRI R.S. CHHABRA ..... Decree Holder
Through: Ms. Ananya Basudha, Advocate.
versus
SHRI GOPAL KRISHAN KAPOOR AND OTHERS .....Judgement Debtors
Through: Ms. Sheena Taqui, Ms. Akansha Saini and
Ms. Bina Gupta, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
EX.APPL.(OS) 540/2024 (application/objections under Section 47 CPC read with Section 151 CPC on behalf of the applicants/objectors Shri P.S. Ravindran, Smt. V Kasthuri, Shri Arjun Ravindran and Shri Vashishta Gakhar)
1. The Objections under Section 47 of the Code of Civil Procedure, 1908 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as „CPC‟) have been filed on behalf of the Objectors, namely, Sh. P.S. Ravindran, Smt. V Kasthuri, Sh. Arjun Ravindran and Sh. Vashishta Gakhar.
2. Briefly stated, the Judgment Debtors Nos. 1 to 5, who were the owners of the Property bearing No. 14B, (also known as 14-C), Bazar Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 1 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55 Marg, Old Rajinder Nagar, Delhi (hereinafter referred to as 'the suit property'), entered into an Agreement to Sell with one Sh. Rajesh Kumar vide Memorandum of Understanding (MOU) dated 28.02.2005. Subsequently, Sh. Rajesh Kumar assigned his rights to Sh. R.S. Chhabra (the Decree Holder) vide Memorandum of Understanding dated 20.04.2005, which apparently was also acknowledged by the Judgment Debtors.
3. Thereafter, Sh. R.S. Chhabra filed a Civil Suit bearing CS(OS) No. 353/2006 against the Judgment Debtors, for Specific Performance in respect of the Memorandum of Understanding dated 20.04.2005. At the initial stage itself, the parties arrived at a compromise and the joint Application under Order 23 Rule 3 CPC dated 17.03.2006, was moved by Sh. R.S. Chhabra and the Judgment Debtors herein and Smt. Sanjogta Kapoor (who is now represented by her legal heirs i.e. Sh. Sanjay Kumar Kapoor, Ms. Renu Malhotra, Mrs. Neelam Juneja and Mrs. Madhu Sharma Kapoor) and it was agreed that the Judgment Debtors herein would execute a Sale Deed in favour of Sh. R.S. Chhabra, on payment of balance sale consideration of Rs.4,17,00,000/- by Sh. R.S. Chhabra to the Judgment Debtors.
4. After the Suit was disposed of, Sh. Rajesh Kumar, the original party in whose favour the Memorandum of Understanding dated 28.02.2005 was initially executed, filed an Application bearing I.A. No. 6399/2006 in Suit No. 353/2006, for setting-aside the consent decree dated 20.03.2006, but it was dismissed vide Order dated 05.02.2008.
5. The Judgment Debtors herein also filed a Civil Suit bearing CS(OS) No. 691/2007, wherein they also challenged the Compromise Decree dated 20.03.2006 in which Interim Injunction Application under Order 39 Rules 1 and 2 CPC, had been filed on their behalf but the same, after considering all Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 2 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55 the facts, was dismissed vide Order dated 29.04.2009 and thereafter, the Suit has not been pursued.
6. The Decree holder, Sh. R.S. Chhabra, has now filed the present Execution Petition seeking execution of the Compromise Decree dated 20.03.2006 for execution of the Sale Deed in his favour by the Judgment Debtors. Various grounds of litigations at various levels had taken place and all the challenges to the Compromise Decree, have been adjudicated.
7. At this stage, the Objectors, namely, Sh. P.S. Ravindran, Smt. V Kasthuri, Sh. Arjun Ravindran and Sh. Vashishta Gakhar as third parties, have filed their Objections under Section 47 CPC, wherein it is their claim that they had entered into an Agreement to Sell dated 07.11.2009, with the Decree Holder, Sh. R.S. Chhabra, wherein he had agreed to sell the Suit Property to them. However, on account of the pending litigation, they entered into an Addendum dated 09.12.2010, wherein they agreed that the Sale Deed shall be executed in their favour by the Decree Holder after it is executed in his favour.
8. The Objectors have submitted that the Decree Holder has deposited the balance sale consideration of Rs.10,00,00,000/- before this Court on 18.03.2024 and has submitted a draft Sale Deed, to get the Sale Deed executed in the name of his son or his grandson since he is 90 years old. On an objection being taken that the Sale Deed cannot be executed in the name of any person other than the Decree holder, this Court has directed the Decree Holder to submit a fresh draft Sale Deed, to be executed in the name of the Decree Holder himself.
9. The applicants herein have submitted that the Decree Holder had entered into an Agreement to Sell dated 07.11.2009, to sell the suit property Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 3 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55 to them for a total sale consideration of Rs.18,11,00,000/-. The advance payment of Rs.2,00,00,000/- was made. The details of the payment schedule, as agreed by the parties, are as under:-
"2. That the buyers have already paid the seller a sum of Rs.1,02,50,000/- (Rupees One Crore Two Lakh and Fifty Thousand Only) in the following manner:
(i) Rupees 1,00,00,000/- (Rupees One Crore Only) vide Cheque No.025876 dated 06.11.2009 drawn on the Federal Bank, Karol Bagh, New Delhi.
(ii) Rs.2,50,000/- (Rupees two Lakh Fifty thousand only) in cash against receipt.
3. That the Buyer has paid another sum of Rs.97,50,000/- (Rupees Ninety-seven Lakhs and fifty thousand only) with the signing of the present agreement in the following manner:
(i) Rs.40,00,000/- vide cheque No.400164 dated 06.11.2009 drawn on Axis Bank, Rajinder Nagar, New Delhi.
(ii) Rs.5,00,000/- vide cheque No.185520 dated 07.11.2009 drawn on the Axis Bank, Rajinder Nagar, New Delhi.
(iii) Rs.5,00,000/- vide cheque No.110172 dated 07.11.2009 drawn on the Axis Bank, Rajinder Nagar, New Delhi.
(iv) Rs.35,00,000/- vide cheque No.157182 dated 07.11.2009 drawn on the Axis Bank, Rajinder Nagar, New Delhi.
(v) Rs.12,50,000/- (Rupees twelve Lakh fifty thousand only) in cash."
10. The applicants have further explained that because of the pending litigation in respect of the Suit Property, they had entered into the Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 4 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55 Addendum dated 09.12.2010, wherein the Paragraph 4 of the Agreement was replaced as under:-
"Para 4" "Notwithstanding anything contained in the agreement dated 7.11.2009, we both parties of the abovesaid agreement, have agreed to amend/extend the time of payment of balance sale consideration and execution of the sale deed, consequently paragraph 4 of the said agreement is to be replaced with the following amended paragraph:
(i) The purchasers have paid a sum of Rs.1,00,00,000/-
(Rupees one crore only) through cheque bearing No. 043890 dated 08.12.2012, drawn on HDFC Bank, Kohat Enclave, New Delhi to the seller on 09" December 2010 against receipt, at the time of execution of these amended terms of Agreement, therefore, the seller acknowledge shaving received a sum of Rs. 3,00,00,000/- (Rupees three crore only) in total till date, considering the payment already received.
(ii) The sale deed in respect of property in the sale shall be executed by the seller in favour of purchasers within 30 days after removal of legal hurdles and execution of order dated 31.08.2009 of Hon'ble High Court of Delhi, which will be intimated by the seller to the purchasers and on payment of the balance sale consideration.
(iii) The balance sale consideration of Rs.15,11,00,000/-
(Rupees fifteen Crore eleven lac only) shall be paid by the purchasers to the seller at the time of execution of the sale deed as agreed between the parties and no further payment is to be demanded by the seller until the time of execution of sale deed in favour of the purchasers or their nominee(s). However, in case the Seller has to deposit any amount in court or has to pay the same to the judgment debtor for the execution of Sale Deed in his favour, the said amount shall be paid by the Purchasers for the said purpose".
Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 5 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:5511. The applicants have submitted that in the second week of March, 2024, they have come to know that all the Objections to the Compromise Decree, have been settled. The Hon'ble Supreme Court of India while disposing of Civil Appeal Nos. 7955-7956/2019 vide its Order dated 21.02.2024, has held as under:-
"We do not notice any perversity in the concurrent findings of fact as recorded by learned Single Judge of the High Court and the learned Division Bench of the High Court.
5. However, taking into consideration that the Memorandum of Understanding (MOU) dated 28th February 2005 was executed almost a period of two decades earlier, wherein the price of the property was determined at 5.2 crores and that the market price of the property in question would not be less than around 50 crores at the present time as the valuation of the properties have risen exponentially, we are inclined to exercise the Jurisdiction under Section 30 of the Specific Relief Act, 1963 read with Article 142 of the Constitution of India for balancing the equities and to do complete justice to the parties.
6. In the peculiar facts and circumstances of the present case, we direct respondent No.1 to pay an additional consideration of Rs. 10 crores towards the full and final settlement of all the dues of the appellants. The said amount shall be deposited in the High Court within a period of one month from today.
7. The appellants shall file an undertaking that they shall vacate the premises and hand over the peaceful possession of the property to respondent No.1 within one month from today and also to the effect that they shall not create any third-party rights and interest in the property in question."Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 6 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55
12. The applicants thus, sent a Letter dated 15.03.2024, to the Decree Holder to comply with the Addendum dated 09.12.2010 to Agreement to Sell dated 07.11.2009. They are ready and willing to deposit the additional consideration of Rs.10,00,00,000/- in the Court, within the stipulated time and thus, the Decree Holder is liable to execute the Sale Deed in his favour. It is submitted that the Decree Holder is now avoiding to respond to the Letters of the applicants. It is, therefore, submitted that the Sale Deed be now directly executed in name of the applicants, in view of the Agreement to Sell dated 07.11.2009/09.12.2010 between the Decree Holder and the applicants and that the Decree Holder be directed to accept the balance sale consideration or they may be allowed to deposit the balance sale consideration in the Court. Further, the Decree Holder may be directed to hand-over the vacant and peaceful possession of the Suit Property to the applicants for which, a Local Commissioner may also be appointed.
13. Submissions have been addressed on behalf of the Decree Holder, as well, as the Objectors.
14. Submissions heard.
15. It is a litigation wherein after the filing of the Suit, better sense prevailed inter se the parties and they immediately compromised the Suit, leading to a Compromise Decree dated 20.03.2006. However, hindsight wisdom seems to have prevailed upon Sh. Rajesh Kumar, (the original party to Agreement to sell who had subsequently assigned it to the Decree Holder), who on the passing of the Compromise Decree sought to unsettle the Decree by filing his Objections to the Compromise Decree though without any success.
Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 7 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:5516. The litigation initiated by Sh. Rajesh Kumar against the Compromise Decree apparently also motivated the Judgment /Debtors, to try getting upset the Compromise Decree, which they attempted by filing a Civil Suit bearing CS(OS) 691/2007, which also unfortunately did not meet any success.
17. These multiple challenges have got stretched over a period of about eighteen years till February, 2024, when all the challenges have been put to a quietus by the Order of the Apex Court in Civil Appeal Nos. 7955- 7956/2019. The Decree Holder, who in this long litigation has now turned 90, is seeking the execution of the Compromise Decree dated 20.03.2006. He in his own futuristic wisdom, had sought the execution of the Sale Deed in the name of his son or grandson but going by the terms of the Compromise Decree, he has been asked to file a fresh draft Sale Deed with in his name.
18. At this stage, when the Decree holder thought he had reached the final destination, so was not to be as now the applicants (who are the third parties) have come up with another Agreement to Sell dated 07.11.2009 as amended vide Addendum dated 09.12.2010, which according to them, had been executed in their favour by the Decree Holder. The applicants are now seeking the Specific Performance of the said Agreement to Sell/Addendum against the Decree Holder, by way of this present Application.
19. It is quite evident that whatever be the rights of the applicants viz-a- viz the Decree Holder, they find their basis in a subsequently executed Agreement to Sell, which needs to be agitated separately by the applicants. They cannot be permitted to convert the simplicitor Execution Petition into another round of litigation in regard to Specific Performance of an Agreement to Sell dated 07.11.2009 as amended vide Addendum dated Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 8 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55 09.12.2010, to take up the issues which have not germane to this litigation between the Decree Holder and the Judgment Debtors. The Compromise Decree has seen the light of execution after long and arduous journey of more than eighteen years.
20. Whatever be the rights of the applicants under the Agreement to Sell, allegedly executed between them and the Decree Holder, have been acquired subsequent to the Compromise Decree, are absolutely independent and needs proper adjudication to ascertain if the third parties/ objectors have acquired any right under the Agreement to Sell/ Adendum relied upon by them and are entitled to Specific Performance. The third parties/ Objectors may agitate their independent rights in respect of the alleged Agreement to Sell with the decree holders by filing an independent Suit, but the same cannot be agitated in the present Execution Petition. The present Objections are, therefore, without merits and are hereby rejected.
EX.P. 232/200721. Be put up for consideration of the draft Sale Deed to be filed by the Decree Holder on 15.07.2024, the date already fixed.
(NEENA BANSAL KRISHNA) JUDGE JUNE 28, 2024 RS Signature Not Verified Digitally Signed Ex. P. 232/2007 Page 9 of 9 By:VIKAS ARORA Signing Date:01.07.2024 16:37:55