Delhi District Court
Mukesh Kumar vs Puneeta on 11 September, 2024
DLSE010098042021
IN THE COURT OF SH. LOVLEEN ADDL. SESSIONS
JUDGE-03 SAKET COURTS, NEW DELHI
Criminal Appeal No. 113/2021
MUKESH KUMAR (aged about 54 years)
S/O Sh. The Chand
R/o H. NO. A-79, Ground Floor,
East of Kailash, New Delhi-110065
Email Id: [email protected]
Appellant
VERSUS
PUNEETA (Aged about 47 years)
Ex. W/o Sh. Mukesh Kumar
D/o Late Sh. Jogender Lal Juneja,
R/o D-112, 3rd Floor, East of Kailash,
New Delhi-110065
Mobile - 9910632127
.... Respondent
Digitally
signed by
LOVLEEN Date of institution : 15.11.2021
LOVLEEN Date:
2024.09.11
15:45:48 Date of reserving the order : 03.09.2024
+0530
Date of pronouncement : 11.09.2024
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.1 of 34
JUDGMENT
1. This is an appeal u/s 29 of Domestic Violence Act against the order dated 09.10.2021 (hereinafter referred to as impugned order) passed by the Court of Ld. Metropolitan Magistrate (Mahila Court-
02)/South East/Saket Courts, in an Ex. No. 269/2019 titled as Puneeta Vs. Mukesh Kumar. The said application was filed by the respondent against the appellant, appellant being the ex-husband of the respondent. Vide the impugned order, Ld. Magistrate held the said Execution Application to be maintainable and that the JD is liable to pay Rs. 1.5 crore as compensation. For the sake of convenience, the appellant herein shall be referred to as JD-(Judgment Debtor) and the respondnet shall be referred to as DH-(Decree Holder).
ARGUMENTS OF APPELLANT
2. The arguments of the appellant are reproduced below:-
1. That the Appellant is forced to file the present Appeal against the impugned order dated 09.10.2021 passed by the Ld. Metropolitan Magistrate-02, Mahila Courts, New Delhi (for short "Ld. M.M."). The said order is illegal and liable to be set- aside and quashed by this LOVLEEN Hon'ble Court.Digitally signed by LOVLEEN
Date: 2024.09.11 2. It is a settled law that a person who does not come 15:50:26 +0530 CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.2 of 34 before this Hon'ble Court with clean hands is not entitled to any relief from the Court. It is submitted that the Execution Petition filed before the Ld. M.M. is not maintainable as the Respondent has not stated true and correct facts. The Respondent, who had filed the Execution Petition before the Ld. M.M., has never mentioned in the said Execution Petition that the Respondent has also filed another Execution Petition in respect of the same very compromise in the Family Court. Execution Petition filed before the Ld. M.M. is dated 16.08.2019. In Column 6 of the said Execution petition, the Respondent has malafidely stated No in response to whether any application was made previous to this, if so, their details, whereas the Respondent has already filed another Execution Petition against the same compromise before the Ld. Family Court, which is dated 06.08.2019 i.e. 10 days prior to the filing of the Execution Petition before the Ld. M.M. In other words, LOVLEEN Execution Petition filed before the Ld. Family Court is dated 06.08.22019 and the Execution Petition filed before Digitally signed the Ld. M.M. is dated 16.08.2019. A copy of the by LOVLEEN Date:
2024.09.11 Execution Petition filed by the Respondent before the Ld. 15:45:53 +0530 Family Court has already been filed before this Hon'ble Court.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.3 of 34
3. That a perusal of both the Execution Petitions would clearly indicate that the Execution Petition dated 16.08.2019 and Execution Petition dated 06.08.2019 is one and the same as similar relief has been claimed in both the Execution Petitions, which is not tenable in the eyes of law.
4. That the Appellant herein has already filed Objections to the Execution Petition filed before the Ld. Family Court and the Ld. Family Court after hearing detailed arguments of the parties was pleased to frame several issues in the said Execution Petition vide order dated 20.07.2024. The issues framed by the Ld, Family Court are as under:-
(i) Whether total worth of J.D. (purchases/investments/ returns thereon) in the said Dhingra Group on the date of execution of addendum dated 05.08.2017 was to the extent of Rs. 13,97,50,000/-?ODH LOVLEEN
(ii) Whether the claim of D.H. per serial No.4 to 7 in the Digitally signed by LOVLEEN above mentioned table stands satisfied?Date: 2024.09.11 15:46:04 +0530
(iii) Whether DH is entitled for any relief, if so, what relief?
5. That substantive objections have been taken under CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.4 of 34 Order 47 of C.P.C. in the Execution petition filed before the Ld. Family Court and the Ld. Family Court is seized of the matter and the matter is listed for evidence and therefore, at this stage, the Respondent is not entitled to any relief in the Execution Petition dated 16.08.2019. The Ld. M.M. has wrongly observed that it is the Appellant, who had defaulted, whereas it is other way round. In fact, it is the Respondent, who has not complied with the terms and conditions of the Compromise and for which the Appellant is filing a separate Execution Petition and it is the Respondent who is liable to pay a sum of Rs. 1,50,00,000/- to the Appellant because of non- compliance. It is submitted that as per the Memorandum of Family Settlement dated 07.03.2017 (for short "MOFS") and Addendum to MOFS dated 05.08.2017 (for short "Addendum"), the Respondent was legally bound to give NOC for quashing of F.I.R. No.636 of 2016 registered with Police Station Amar Colony, New Delhi.
LOVLEEN 6. That as per clause 4 of MOFS, it was agreed that Digitally signed by the Appellant would pay a sum of Rs.74,15,040/- and out LOVLEEN Date: 2024.09.11 15:45:59 +0530 of the said amount, a sum of Rs.8,00,000/- was paid to the Respondent by the Appellant at the time of 1 Motion; an amount of Rs.42,15,000/- was paid at the time of CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.5 of 34 Appeal case; a sum of Rs.10,00,000/- was paid by the Appellant to the Respondent in the Court in cash; and remaining amount of Rs.14,00,000/- shall be paid by the Appellant to the Respondent at the time of filing quashing Petition of F.I.R. No.636 of 2016 before the Hon'ble High Court of Delhi at New Delhi. It is submitted that at the time of recording of statement in the Second Motion on 02.01.2018, the Respondent had also admitted clearly "the properties mentioned in the Memorandum of Family Settlement dated 07.03.2017 and Addendum to the MOFS dated 05.08.2017 stands transferred by the Petitioner No.1 (Appellant herein) in favour of Petitioner No.2 (Respondent herein) and children.
7. That though the Appellant had sent a photocopy of the demand draft of Rs.14,00,000/- to the Respondent so that necessary affidavit can be prepared for filing quashing petition but the Respondent had not given any NOC in this regard and has not complied with the terms LOVLEEN and conditions of the NOC, therefore, it is the Digitally signed Respondent, who is liable to pay not only by LOVLEEN Date: 2024.09.11 15:46:11 +0530 Rs.1,50,00,000/- but also liable to comply with remaining terms and conditions of the said MOFS and Addendum.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.6 of 34
8. That because of the conduct of the Respondent, it is the Appellant who had to file several cases alone against Dhingra group and the said Suits are pending adjudication before Saket Courts as well as before the Hon'ble High Court.
9. That because of the conduct of the Respondent as the Respondent on the one hand has not given any NOC and on the other hand has filed further complaint to the Police, the Appellant was arrested and is languishing in jail since 06.06.2022. Despite the fact that the Appellant had given substantial money and properties to the Respondent, as mentioned in the MOFS and Addendum, the greed of the Respondent was not fulfilled and each and every bail application was objected to by the Respondent on false and frivolous grounds.
10. That the Execution Petition filed before the Ld. M.M. is a malafide action on the part of the Respondent in view of the fact that the Respondent has already filed LOVLEEN an Execution Petition before the Ld. Family Court and in Digitally signed the said Execution Petition, the Respondent has to prove by LOVLEEN Date: 2024.09.11 15:46:17 +0530 the issues framed by the Ld. Family Court. Moreover, the Respondent cannot be permitted to bifurcate the decree CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.7 of 34 and file different execution petitions in two different Courts, which amount to forum shopping, which is not tenable in the eyes of law. It is a settled law that no party can be permitted to file different execution petitions before different Courts.
In view of the aforesaid submissions, it is, therefore, most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to allow the Appeal of the Appellant and quash the impugned order passed by the Ld. M.M., in the interest of justice and dismiss the execution petition.
ARGUMENTS OF RESPONDENT
3. The arguments of the respondent are reproduced below:-
1. A preliminary objection was raised by Appellant/Judgement Debtor about the maintainability of Execution Petition, both before the Court of Ld JM1C wherein the award dated 10.07.2017 was passed as well as the Ld Family Court wherein Second Motion of Divorce by Mutual Consent was passed vide order dated LOVLEEN 02.01.2018. The said objection is without merits as this Digitally signed by LOVLEEN Execution Petition is maintainable as an award of Lok Date: 2024.09.11 15:46:23 +0530 Adalat on the basis of which complaint bearing no CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.8 of 34 92/3/14 under section 12 of the Protection of Women from Domestic Violence Act was disposed off, is executable as a decree for all purposes. The Appellant/Judgement Debtor cannot escape the consequences of violating the said decree dated 10.07.2017 on the baseless argument that since the Respondent/Decree Holder has filed execution petition qua order dated 02.01.2018, she cannot file execution petition for execution of order dated 10.07.2017. This contention is succinctly dealt with by the Executing Court. Reliance placed on Misc Order dated 20.07.2024 in the Execution Petition before the Ld Family Court is misplaced as the same not being a final order, does not determine the rights of parties and even otherwise does not deal with execution of Award/Decree dated 10.07.2017.
2. The marriage between the Appellant/Judgement Debtor (Mukesh) and Respondent/Decree Holder (Puneeta) was solemnised on 12.10.1994. Two children Digitally signed by namely Ms Gauri born on 04.09.1995 presently 29 years LOVLEEN LOVLEEN Date: of age and Master Madhav born on 24.08.1998 presently 2024.09.11 15:46:27 +0530 26 years of age were born out of the wedlock.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.9 of 34
3. The Respondent/Decree Holder was thrown out of the Matrimonial House on 31.12.2012. A Complaint bearing no 92/3/14 was filed by Respondent/Decree Holder under Protection of Women from Domestic Violence Act before the Ld JM1C (Mahila Courts) in May 2014 besides various other complaints to the police prior to this.
4. Interim Maintenance @ Rs 3,00,000/- per month along with Educational Expenses of children was granted in Protection of Women from Domestic Violence Act Case in October 2016.
5. Appellant/Judgement Debtor offered settlement and a Memorandum of Family Settlement dated 07.03.2017 was executed between Mukesh Kumar (Appellant/Judgement Debtor herein), Puneeta (Respondent/Decree Holder herein) and the 2 children.
6. The above said complaint bearing no 92/3/14 LOVLEEN under the Protection Of Women from Domestic Violence Digitally signed Act and the Execution Petitions bearing Nos 110/2016 by LOVLEEN Date: 2024.09.11 and 62/2017 for payment of Interim Maintenance were 15:46:31 +0530 settled in Pre Lok Adalat sitting on 23.05.2017 where CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.10 of 34 statements of both the Respondent/Decree Holder and the Appellant/Judgement Debtor were duly recorded. The case was then referred to Lok Adalat where it was duly settled on 08.07.2017 and ultimately disposed off on 10.07.2017.
7. That in terms of Memorandum of Family Settlement dt 07.03.2017, a petition was filed U/s 13(B)1 of Hindu Marriage Act being HMA No 351/2017 before the Learned Principal Judge, Family Court, South East District, Delhi where the First Motion of Divorce by Mutual Consent was allowed on 16.05.2017.
8. As per Clause 5 and 20(b) of the Memorandum of Family Settlement dt 07.03. 2017, the Appellant/Judgement Debtor vide a Relinquishment Deed, had given a property bearing no B-159, Ground Floor, Greater Kailash I, New Delhi (hereinafter referred to as the Said Property) to the Respondent/Decree Holder LOVLEEN and the 2 children at the time of First Motion of Divorce by Mutual Consent.Digitally signed by LOVLEEN Date: 2024.09.11
15:46:34 +0530 9. However, the Appellant/Judgement Debtor in the mean time before the First Motion of Divorce by Mutual CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.11 of 34 Consent could be passed got the Said Property sold off in favour of Third Party on 26.04.2017 l.e. after the execution of Memorandum of Family Settlement l.e. 07.03.2017 and before the First Motion of Divorce by Mutual Consent was passed l.e. 16.05.2017.
10. The Appellant/Judgement Debtor thereafter supressing facts as stated in Para 9 hereinabove executed a Relinquishment Deed in favour of Respondent/Decree Holder and the 2 children for the Said Property at the time of First Motion of Divorce by Mutual Consent on 16.05.2017 which he had already got sold off.
11. It was clearly mentioned in this Relinquishment Deed dated 12.05.2017 that:-
a. Whereas Mr. Mukesh Kumar (Appellant/Judgement Debtor herein) is the sole and absolute owner of the Ground Floor and Basement of the property bearing no 8-159, Ground Floor, Greater LOVLEEN Kailash I, New Delhi built over an area of 515-4/10 sq Digitally signed yds by LOVLEEN Date: 2024.09.11 15:46:38 +0530 I. The possession of the above mentioned property shall exclusively vest with the Respondent/Decree Holder and the 2 children and they are entitled to continue the same.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.12 of 34 II. The Respondent/Decree Holder and the 2 children shall be fully entitled to get the above mentioned property mutated and transferred in their names on the basis of the Deed of Relinquishment.
12. The Respondent/Decree Holder and the 2 children were also given keys of the Said Property before the Court at the time of recording of statement in First Motion of Divorce by Mutual Consent on 16.05.2017. The same was also duly recorded in the order sheet for First Motion of Divorce by Mutual Consent on 16.05.2017.
When the Respondent/Decree Holder and the 2 children went to take possession of the Said Property, it came to their knowledge that Appellant/Judgement Debtor had already got the Said Property sold off in favour of Third Party on 26.04.2017 as stated in Para 9 hereinabove.
13. Thus the Executing Court in Para 19 of the Order has rightly held that :-
LOVLEEN "The relinquishment deed is unregistered and it appears Digitally signed that the JD cleverly chose to execute an unregistered by LOVLEEN Date:
2024.09.11 15:46:43 +0530 document as this property was already sold by M/s Dhingra Projects Pvt Ltd to a third person named Anil CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.13 of 34 Sobti, through a registered sale deed on 26.04.2017........ .........This observation leads to the conclusion that the JD, since the inception of the settlement agreement, wanted to breach the terms in collusion with Dhingra Group. Conveniently, the JD chose to relinquish his share in property bearing no. B-159, Ground Floor, GK-I, New Delhi, through an unregistered document, in favour of DH and he was hand in glove with M/s Dhingra Projects Pvt Ltd and knew that by this relinquishment deed he is not creating any right in favour of the DH".
14. The facts stated hereinabove clearly establishes that the Appellant/Judgement Debtor had committed a default of Memorandum of Family Settlement dt 07.03.2017 which would automatically invite invocation of the Default Clause of Memorandum of Family Settlement dt - 07.03.2017.
15. The Appellant/Judgement Debtor again misled the Respondent/Decree Holder and the 2 children to enter LOVLEEN into an Addendum to Memorandum of Family Settlement Digitally signed which was duly executed on 05.08.2017 alongwith a by LOVLEEN Date:
2024.09.11 Memorandum of Understanding on the same date i.e 15:46:46 +0530 05.08.2017 explaining the terms of Addendum to CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.14 of 34 Memorandum of Family Settlement with regard to the investments/purchases in Chingra Group. The terms of which have not been fully complied by the Appellant/Judgement Debtor till date.
16. It is pertinent to point out that Addendum to Memorandum of Family Settlement dt 05.08.2017 is a continuation/extension of Memorandum to Family Settlement dt - 07.03.2017 and had merged into the same. Both have to be read as a single document in order to ascertain and establish the Appellant/Judgement Debtor's default.
17. From the language of the addendum wherein It is stated that "Rest of the terms of the Memorandum of Family Settlement dated 07th March 2017 shall remain the same and enforceable", it is clear that the amended clause became an integral part of the original settlement. It is also proper to mention, that the addendum is maintaining the rights and responsibilities of the parties LOVLEEN and consequently there has been no novation of the Digitally signed settlement. Thus the Executing Court has rightly held in by LOVLEEN Date: 2024.09.11 15:46:50 +0530 Para 15 of the Order that "..yet the addendum was only a part and an extension of the MoFS and has no separate CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.15 of 34 identity" and in Para 18 that "The addendum came in life because the JD failed to perform the terms of original MoFs and eventually even failed to perform the terms of the addendum to MoFs. Thus, breach of addendum ultimately resulted in breach of MoFs.."
18. The Executing Court while ensuring execution of the Memorandum of Family Settlement dt 07.03.2017 is entitled in law to examine all supporting documents including the Addendum to Memorandum of Family Settlement dt 05.08.2017 and Memorandum of Understanding dt 05.08.2017 in order to ascertain the real intent of parties and to determine the violation of its terms.
19. That on 02.01.2018 the Second Motion for Divorce by Mutual Consent was allowed, wherein the Appellant/Judgement Debtor and Respondent/Decree Holder undertook to abide by the terms and conditions envisaged in the Second Motion Divorce By Mutual LOVLEEN Consent Petition, Memorandum of Family Settlement dt 07.03.2017 and Addendum to Memorandum of Family Digitally signed by LOVLEEN Date: 2024.09.11 Settlement dt 05.08.2017 which were duly marked as 15:46:54 +0530 Exhibits.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.16 of 34
20. Another contention of the Appellant/Judgement Debtor is that he only learnt about the Sale Deed dt 26.04.2017 in relation to Said Property referred to in Para 9 hereinabove in March 2018. This defeats his other stand that he offered to substitute the Said Property by virtue of Addendum to Memorandum of Family Settlement dt - 05.08.2017.
The said argument is also contrary to the recitals of Addendum to Memorandum of Family Settlement dt 05.08.2017 which records that 62% share of Purchases/Investments in Dhingra Group was offered as one of the alternatives to B-159, Ground Floor, Greater Kailash I, New Delhi property. Appellant/Judgement Debtor would not have offered an alternative to the Said Property on 05.08.2017 if he claims to have learnt about the sale deed only in March 2018.
21. As far as the Memorandum of Understanding dt LOVLEEN 05.08.2017 is concerned, the same was duly executed by Digitally signed the Appellant/Judgement Debtor along with Addendum to by LOVLEEN Date: 2024.09.11 15:47:00 +0530 Memorandum of Family Settlement dt - 05.08.2017.
The Hon'ble High Court of Delhi in Bail Petition No CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.17 of 34 308/2021 of the Appellant/Judgement Debtor directed the investigating agency to Investigate, verify and report with regard to execution of Memorandum of Understanding dt
- 05.08.2017. The Investigating agency through DCP concerned filed a status report along with report of Notary Public with a finding that the Memorandum of Understanding dt 05.08.2017 was duly executed.
22. That it was post this status report that the Appellant/Judgement Debtor started admitting the execution of Memorandum of Understanding dt 05.08.2017. Thus the Memorandum of Understanding dt 05.08.2017 is admitted in the present appeal which was filed in November 2021 as well as in various subsequent Bail Applications.
23. The Memorandum of Understanding dt 05.08.2017 never had any additional terms but was only an explanation to the purchases/investments in Dhingra Group wherein it was clearly stated that :-
Digitally That the Second Party (Respondent/Decree Holder signed by LOVLEEN LOVLEEN Date:
herein) at the time of execution of this Memorandum of 2024.09.11 15:47:04 +0530 Understanding is now made aware that there has been a dispute with the Dhingra Group with regard to B-159, G CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.18 of 34 round Floor, Greater Kailash I, New Delhi property and certain negotiations were held to resolve the dispute with the Dhingra Group. The cumulative purchases/investments in the Dhingra Group by the First Party (Appellant/Judgement Debtor herein) is now settled at Rs 8,20,00,000/- (Rupees Eight Crore and Twenty Lac Only).
That the amount(s)/Properties received by way of Settlement from the Dhingra Group shall be divided between the First Party (Appellant/Judgement Debtor herein) and Second Party (Respondent/Decree Holder herein) in the ratio of 38:62 respectively.
24. The Appellant/Judgement Debtor deceitfully induced and misled the Respondent/Decree Holder to believe that she will get her share as agreed in the terms of settlement.
It was later discovered on the basis of documents filed by Respondent/Decree Holder that the Appellant/Judgement LOVLEEN Debtor has already taken away all the monies from Digitally signed by LOVLEEN various purchases/investments in Dhingra Group by Date: 2024.09.11 15:47:08 +0530 virtue of Buy Back Agreements.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.19 of 34 It was also found that the Appellant/Judgement Debtor had fabricated documents to make the Respondent/Decree Holder believe that the said documents are legally enforceable.
However, in order to avoid his legal liability in terms of settlement, he today claims that he is yet to receive the amount invested with the Dhingra Group and alternately and inconsistently he claims that there is no Dhingra Group.
Thus, the malafide intentions of breaching the Family Settlements was there in the mind of the Appellant/Judgement Debtor since the beginning.
62 % of Purchases / Investments in Dhingra Group Cl-5 (d); Pg 95-96 Cl-20 (b) (iv); Pg 97-98 Total investment of Mukesh Kumar in Dhingra Group - Rs 13,97,50,000/- 62 % of Investments in Dhingra Group - Rs. 8,66,45,000/- Settlement with Dhingra Group by Mukesh as per MoU- Rs 8,20,00,000/- 62% of Settlement Amount - Rs. 5,08,40,000/-
S.No Agreement Investments Cheque Cash Amt. Total Page No.
. Date amount
1 18th Nov 2013 D-1901/D-1902 Cal. Rs Rs Rs. 136-139
LOVLEEN Country, FBD 27,00,000/- 4,03,00,000/- 4,30,00,000/-
2. 28th July 2014 B-159 (GF) GK I Rs. Rs. Rs. 111-121
97,00,000/- 7,03,00,000/- 8,00,00,000/-
Digitally signed
by LOVLEEN 3. 30th July 2014 Buy Back MOU for Above Mentioned Both the properties 53-61 of Addl
Date: Docs.
2024.09.11 19/05/2023
15:47:12 +0530
4. 9th March B-159, (LGF) GK-I Rs. Rs. Rs. 122-135
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.20 of 34
2015 50,00,000/- 62,50,500/- 1,12,50,000/-
th
5. 12 March Buy Back MOU for Above Mentioned property 9094 of Addl.
2015 Docs
19/05/2023
6. 18th June B-7 Extn / 119 Rs - Rs. 140-144
2016 Sardarjung Enclave 55,00,000/- 55,00,000/-
7. 22nd June Settled Towards Other Loans From Dhingra Group
2016 & Later
Total Rs.2,29,00,00 Rs. Rs.
0/- 11,68,50,000/- 13,97,50,000/-
25. The benefits drawn by Appellant/Judgement Debtor by virtue of the aforesaid Family Settlements are:-
i. Appellant/Judgement Debtor had taken divorce as per Clause 18 & 19 of the Memorandum of Family Settlement dt 07.03.2017.
ii. Appellant/Judgement Debtor has settled the rights/claims of daughter Gauri in the claims of the Respondent/Decree Holder as per Clause 13 of Memorandum of Family Settlement dt 07.03.2017.
iii. Respondent/Decree Holder has relinquished her rights, title and interest in 15/A, Third Floor with LOVLEEN Terrace, Jungpura Extension, New Delhi Property as per Digitally signed by LOVLEEN Clause 7 at Page 79 & Clause 20(d) of Memorandum of Date: 2024.09.11 15:47:16 +0530 Family Settlement dt 07.03.2017.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.21 of 34 iv. Respondent/Decree Holder has withdrawn Protection of Women from Domestic Violence Act case titled as "Puneeta vs Mukesh Kumar" bearing CC No 92/3/2014 as per Clause 21(a) of Memorandum of Family Settlement dt 07.03.2017.
v. Respondent/Decree Holder has withdrawn Execution Petition titled as "Puneeta vs Mukesh"
bearing Ex. P. No. 110/2016 as per Clause 21(b) of Memorandum of Family Settlement dt 07.03.2017.
vi. Respondent/Decree Holder has withdrawn Execution Petition titled as "Puneeta vs Mukesh"
bearing Ex. P. No. 62/2017 as per Clause 21(b) of Memorandum of Family Settlement dt 07.03.2017.
DISCUSSION
4. This Court has considered the rival submissions and has considered the records as well.
5. A bare perusal of the impugned order reflects that between LOVLEEN Paras 2 to 6 the Ld. Magistrate has correctly narrated the facts of the Digitally signed case leading up to the filing of the said Execution Application. by LOVLEEN Date: 2024.09.11 15:47:19 +0530 Thereafter, the Ld. Magistrate records the submissions of the DH CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.22 of 34 between Paras 8 to 10. Ld. Magistrate then proceeds to record the objections raised by the DH. Afterwards, beginning from para 14 of the impugned order, the Ld. Magistrate proceeds to address the submissions of the parties with respect to the maintainability of the said Execution Application in the following fashion:-
"14. After perusal, it has come to the notice of this Court that the main contention between the parties is that if the execution petition is maintainable or not. As per the Ld. Counsel for the DH, the execution petition is maintainable as the matter was settled before the Lok Adalat and since the award passed by Lok Adalat is a decree, the execution petition can be filed before this Court. Per contra, the Ld. Counsel for the JD submits that since another execution petition has been filed before the Ld. Family Court Judge, before filing of this petition and also because the DH has breached the terms of settlement, the petition is not maintainable.
15. The first plank of JD's arguments that since the matter was withdrawn from this Court and addendum was executed later, therefore execution is not maintainable cannot sustain as the JD himself admits the execution of addendum to MoFs in his reply. Indeed the addendum LOVLEEN was executed after the matter was withdrawn as settled Digitally signed by LOVLEEN from this Lok Adalat, yet the addendum was only a part Date: 2024.09.11 15:47:23 +0530 CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.23 of 34 and an extension of the MoFs and had no separate identity. It is a settled principle of law that an award passed by the Lok Adalat is like a decree which can be executed by the Court and the addendum having seen life due to the execution of MoFs, its breach would ultimately result in breach of MoFs. It is also apposite to mention the statement of parties recorded towards the settlement dated 07.03.2017 and the admission of the JD in his reply that the Mors and addendum to MoFs was executed, though as per the JD, the same was executed at the insistence of the DH. The JD has thus blown hot and cold in his written submissions as at one place, he admits the execution of this addendum and later, denies having knowledge about it. Further, the execution of this addendum is also admitted by the parties before the Ld. Family Judge in the second motion of divorce and on their joint petition, the marriage was dissolved. Also, the JD himself submits that he filed civil suit for recovery of property transferred to the DH through the addendum. LOVLEEN Since the JD admits the execution of this addendum, transfer of share of JD in Dhingra group being one of the Digitally signed by LOVLEEN term of addendum cannot be said to be not in the Date: 2024.09.11 15:48:54 +0530 knowledge of JD.
16. The contention of the JD that there was no such entity CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.24 of 34 name Dhingra Group, is also not tenable as the Ld. Counsel for the DH has collectively named the entities where the JD has invested as Dhingra Group but even he has the knowledge that the entities are M/s Dhingra Projects Pvt. Ltd. and M/s Dhingra Jardine Infrastructure Pvt. Ltd. as he has filed the documents executed between the JD and Dhingra Group in order to show the investments made by him. The documents filed by the Ld. Counsel for the DH are:-
i. General agreement dated 13.08.2013, executed on a Rs. 100/- stamp paper between M/s Dhingra Jardine Infrastructure Pvt. Ltd. and the JD, wherein the JD has lent Rs. 4,30,00,000/- to M/s Dhingra Jardine Infrastructure Pvt. Ltd for making/developing multi storied buildings at California Country, sector 80 Faridabad. Out of this amount, Rs. 4,03,00,000/- was paid by the JD in cash.
ii. Agreement to sell dated 28.07.2014 for property bearing no. B-159, Ground floor, GK-1, New Delhi, executed by M/s Dhingra Projects Pvt Ltd. in favor of the JD for a sum of Rs. 8,00,00,000/-, duly acknowledged by Digitally signed by M/s Dhingra Projects Pvt Ltd. It is laid down in the LOVLEEN LOVLEEN Date:
2024.09.11 agreement to sell that out of the total sale consideration, 15:48:57 +0530 the JD paid a sum of Rs. 7,30,00,000/- to M/s Dhingra CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.25 of 34 Projects Pvt Ltd. in cash and the vacant physical possession was handed over to the JD. iii. GPA and Agreement to sell dated 28.07.2014 executed by M/s Dhingra Projects Pvt Ltd in favor of JD for property bearing no. B-159, Ground floor, GK-1, New Delhi.
iv. Sale agreement dated 09.03.2015 executed between M/s Dhingra Projects Pvt Ltd Wherein property bearing no. B-159, basement, GK-1, New Delhi, is sold to JD for a sum of Rs. 1,12,50,000/-, out of which Rs. 62,50,000/- was paid by the JD in cash and the remaining amount through cheque.
v. Agreement dated 22.06.2016, executed on Rs. 100/- stamp paper between M/s Dhingra Projects Pvt Ltd. through their attorney Virender Kumar Dhingra, qua the property bearing no. B-7 Extn/119, Safdarjung Enclave, basement, ground floor, 1/4 portion of stilt and 32.5% undivided share of the land, in favor of JD and payment of Rs. 55,00,000/-made by the JD is acknowledged by them.
vi. The DH has also filed certain receipts, vouchers, LOVLEEN demand drafts, cheques, loan agreement, Digitally signed by LOVLEEN acknowledgments and calculations of payment to show Date: 2024.09.11 15:49:01 +0530 the transactions between the JD and M/s Dhingra Group.
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17. The above mentioned documents make it clear that the Ld. Counsel for the DH knew the investments made by the JD due to which the DH consented in the first place to accept his share of investment in lieu of property bearing no. B-159, Ground floor, GK-1, New Delhi.
18. The second plank of the argument addressed on behalf of JD that since an execution petition has already been filed by the DH before the Ld. Family Judge, prior in time, this execution petition is not maintainable, is also dismissed as it is a well settled law that a woman who is subjected to violence by her husband or in laws, has various remedies, which sometimes run parallel to each other. One such remedy is before the DV Court and one is before the Family Court.
It is also well settled by plethora of judgments that relief provided under DV Act are in addition to any relief which could be granted by any Court of law, in any forum and is independent to the reliefs available in different forums. Though there is a slight overlap but for that eventuality, the relief granted by one Court can be Digitally signed by LOVLEEN considered by the other while awarding relief in their LOVLEEN Date:
2024.09.11 15:49:05 Court Thus, applying this logic, the filing of execution +0530 petition by the DH before the Family Court does not create a bar on her to file the execution petition before CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.27 of 34 this Court as both these Courts have concurrent jurisdiction and in case an order is passed by one Court, the other Court will always consider the same before passing its order. Therefore, as the main settlement agreement i.e MoFs was filed before this Court on the basis of which Lok Adalat Award was passed and addendum only being a specie of this MoFs, executed later in time, cannot create a bar on filing of execution petition before this Court The addendum came to life because the JD failed to perform the terms of original Mofs and eventually even failed to perform the terms of the addendum to Mof's. Thus, breach of addendum ultimately resulted in breach of MoFs, and since a Lok Adalat award was passed on the basis of this MoFs, it can always be executed by this Court as a decree.
19. Next, if the conduct of the JD is discussed, even that would clear the haze which the JD was trying to create in this case. The JD first agreed to transfer property bearing no. B-159, Ground Floor, GK-1, New Delhi, in favor of the DH and admits the relinquishment LOVLEEN deed dated 12.05.2017 executed between the parties qua Digitally signed by LOVLEEN this property, in his joint statement made during the first Date: 2024.09.11 15:49:09 +0530 motion of divorce. The relinquishment deed is unregistered and it appears that the JD cleverly chose to CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.28 of 34 execute an unregistered document as this property was already sold by M/s Dhingra Projects Pvt. Ltd. to a third person named Anil Sobti, through a registered sale deed on 26.04.2017. Surprisingly, even after this conduct, the JD submits that he was forced to execute the addendum to MoFs. The addendum was executed in lieu of property bearing no. B-159, Ground Floor, GK-1, New Delhi, as the same had been sold to a third party. To rectify this wrong, the JD willingly chose to execute the addendum wherein one of the term was to transfer 62% of his investment in Dhingra Group to the DH. Even this term was not performed by the JD and the defence taken by him was that Dhingra Group had in fact perpetuated fraud upon investors, including him and therefore his investments in the company have been misappropriated by them. However, the documents filed by the DH to show the transactions between Dhingra Group and JD speaks otherwise as the JD had been buying and selling properties with Dhingra group and 90% of the amount is LOVLEEN paid by him in cash. It appears that even the DH was in Digitally signed knowledge about these transactions and the investments by LOVLEEN Date: 2024.09.11 15:49:13 +0530 made by the JD which is why she agreed to accept the share of the JD in Dhingra Group. This observation leads to the conclusion that the JD, since the inception of the CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.29 of 34 settlement agreement, wanted to breach the terms in collusion with Dhingra Group. Conveniently, the JD chose to relinquish his share in property bearing no. B-
159, Ground Floor, GK-1, New Delhi, through an unregistered document, in favor of DH as he was hand in glove with M's Dhingra Projects Pvt. Ltd. and knew that by Di relinquishment deed he is not creating any right in favor of the DH.
20. Even otherwise, if this Court believes the version of the JD that even he was cheated by the Dhingra Group, yet that doesn't absolve him from performing his part of contract with the DH. It was still his responsibility to ensure that the DH receives what was promised to her and if due to any unforeseen circumstance, those terms couldn't be executed, he could have always offered some other goods/property in lieu of these terms. However, the JD conveniently chose to deny the execution of addendum and alleges that since the statement was LOVLEEN recorded before the Court and the matter was withdrawn, Digitally signed the DH cannot file execution of these terms.
by LOVLEEN Date:2024.09.11 21. Thus, considering the above discussion, it leads to 15:49:16 +0530 the conclusion that MoFs and the addendum to MoFS have been willingly breached by the JD but since the settlement was drawn before this Court only towards the CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.30 of 34 original MoFs, on the basis of which Lok Adalat Award was passed, only the terms of MoFs can be executed by this Court and not the terms of addendum. The MoFs includes the penalty in case of breach which is to be paid by the JD.
22. Therefore, this Court is of the considered opinion that the JD having deliberately and with a mala fide intention, breached the MoFs and lured the DH into withdrawing the matter from Court and eventually dissolving the marriage on the pretext of performing the terms of settlement. Since partially the terms were being performed by the JD and time period for performing these terms was also laid, the DH was in the hope that the remaining terms will also be performed during the course of time, however she was unaware that since inception, the DH had only intended to deprive her of her rights. The JD is thus liable to pay Rs. 1,50,00,000/- as compensation to the DH within 15 days from today, he shall also forfeit the benefits accrued to him through this settlement, which includes the properties relinquished by DH in his name, provided bona fide third party rights have not been created and the DH is also at liberty to LOVLEEN revive the litigation against the JD as permissible under Digitally signed by LOVLEEN law. The breach of addendum to MoFs can be contested Date: 2024.09.11 15:49:19 +0530 CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.31 of 34 by the DH before the Ld. Family Court where the terms have been recorded."
6. The above observations made by the Ld. Magistrate reflect that she has duly considered the plea of the JD regarding the legal status of the addendum to the MoFS and has noted its potential to create legal liability against the JD and in favour of the DH. The Ld. Magistrate has also observed that JD has been blowing hot and cold as to the execution of said addendum, despite him having secured 2 nd motion of divorce on the basis of said addendum. Ld. Magistrate has also dealt with the contention of JD whereby JD has declined to acknowledge the existence of 'Dhingra Group'. Ld. Magistrate has also considered the overlapping of jurisdictions of different Courts in family disputes. Ld. Magistrate has then proceeded to hold that MoFS is a part of Lok Adalat Award, therefore, it has the effect of a decree. Ld. Magistrate further holds that the addendum to MoFS could not be ignored in view of the settled position of law in this regard. Ld. Magistrate then holds that JD has deliberately breached the terms and conditions of MoFS and therefore, held in liable to pay a sum of Rs. 1.5 crore as compensation to the DH.
LOVLEEN
7. In the considered opinion of this Court, the Ld. Magistrate Digitally signed by LOVLEEN has correctly appreciated the facts and has correctly applied the Date: 2024.09.11 15:49:22 +0530 prevalent law to the present facts. There is no denial of the fact that CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.32 of 34 the JD was able to secure the 'first motion' on the basis of MoFS. Thereafter, the addendum was executed between the parties and on the basis of the said MoFS as well as the addendum, 'second motion' was allowed. Admittedly, an addendum becomes a part and parcel of the main contract and therefore breach of the terms and conditions of the same amount to a breach of the main contract itself. Given the detailed nature of the MoFS as well as the addendum, breach of the terms and conditions of the same is apparent on the face of it. The same would also entail consequences as enumerated therein. As such the Ld. Magistrate was correct in holding the JD liable on the basis of 'default clause'. It is no longer disputed that multiple jurisdictions are frequently overlapping in a matrimonial dispute. The same does not prevent an aggrieved party from pursuing relief in either of the relevant forums. The Law in this regard is well settled by the observations made by Hon'ble Supreme Court in Rajnesh Vs. Neha (2021) 2 SCC 32. This Court does not find any infirmity in the impugned order. The arguments of JD are unsustainable in the facts and circumstances of this case.
8. The order passed by Ld. Magistrate does not seem to be arbitrary, perverse or irrational nor does it reflect any jurisdictional LOVLEEN error which occasioned any injustice in the matter. The present Digitally signed petition is devoid of any merits and is hereby dismissed. by LOVLEEN Date: 2024.09.11 15:49:25 +0530 9. Trial court record be sent back along with the copy of this judgment.
CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.33 of 34 LOVLEEN Digitally signed
10. Appeal file be consigned to Record Room. by LOVLEEN Date: 2024.09.11 15:49:31 +0530 Dictated and Announced (Lovleen) in the open court ASJ-03 (South-East), on 11.09.2024 Saket Courts, Delhi CA No. 113/2021 Mukesh Kumar Vs. Puneeta Page no.34 of 34