Delhi District Court
M/S. Ishwar Industries Ltd vs M/S. Colorado Chattles Pvt Ltd & Ors on 5 March, 2020
IN THE COURT OF SH. VIPIN KHARB
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
CS No. 94188/16
M/s. Ishwar Industries Ltd.
Tribhuvan Complex,
Ishwar Nagar, Delhi - Mathura Road,
New Delhi110065 through its
Directorincharge Sh. Bharat Bhasker ..... Plaintiff
Vs.
1. M/s. Colorado Chattles Pvt Ltd & ors.
Having its office at Nulon House,
Ishwar Nagar, Tribhuvan Complex,
DelhiMathura Road, New Delhi - 110065
Through its Director Sh. M. P. Golyan
2. M/s. Growth Techno Projects Ltd.
(previously known as B. D. Developers ProjectI)
having its office at 7, Doctor's Lane, Gole Market,
New Delhi110001 through its Director
Acharya Arun Dev / Sh. Ashok Parwal. ..... Defendants
Date of Institution : 29.10.2005
Date of reserving Judgment : 05.03.2020
Date of pronouncement : 05.03.2020
JUDGMENT
1. Plaintiff filed present suit for rectification of sale deed dated 26.12.2000 entered into between the plaintiff and defendant no.1 and 2 and for further relief of injunction. Brief facts as stated in the plaint are that the plaintiff was carrying on the development of its property situated in Ishwar Nagar, New Delhi. Pursuant to a collaboration agreement CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 1 of 15 dated 04.02.1986 entered into between the plaintiff and defendant no.2 construction were to be raised as per the sanctioned plan on the land belonging to the plaintiff at 10th Milestone, Main Mathura Road, New Delhi. An agreement to sell dated 19.11.1987 was entered into between defendant no.2 and defendant no.1 to which plaintiff had been a confirming party. By way of the said agreement to sell the defendant no.1 had agreed to purchase from defendant no.2 as per schedule of the built up portion of the ground floor bearing Unit No.62 portion of Block No.5 in Tribhuvan Complex built up area measuring 890 sq ft. approx comprising one Hall situated at Ishwar Nagar, Mathura Road, New Delhi. The said agreement to sell contained a site plan duly signed by the parties. And, it is the case of the plaintiff that the said agreement to sell did not contain any specified and reserved car parking area. It is also averred that the defendant no.1 pursuant to the agreement to said sale took possession of the Unit No.62.
Defendant no.1 filed the suit bearing no. 3662/91 against the defendant no.2 and the plaintiff seeking specific performance of agreement to sell dated 19.11.1987 read with letter dated 03.12.1987 and 04.12.1987. Pursuant to the judgment and decree passed in Suit No. 286/05, an execution petition bearing no. 148/97 was filed. It is the grievance of the plaintiff that taking advantage of the fact that the plaintiff had been proceeded ex parte in the suit, defendant no.1 got defendant no.3 appointed as nominee of the court and the defendant no.2 for and on behalf of the plaintiff executed a sale deed dated 26.12.2000 in favour of the defendant no.1, which was also duly registered on 20.07.2005.
CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 2 of 15 It was further averred that the nidus of dispute between the plaintiff and the defendants is that according to the plaintiff perusal of the agreement to sell read with judgment and decree obtained by the defendant no.1 shows that in the sale deed which was registered on 20.07.2005, the defendant no.1 fraudulently added clause 11 read with schedule and layout plan of transfer of the specified parking area for three cars for which no further payments were made and there was no stipulation that no construction would be raised in the space allotted for parking of cars and near the adjacent to the said area. Addition of the clause 11 in the sale deed dated 26.12.2000 as per the case of the plaintiff caused injury to the rights of the plaintiff with respect to the property which belonged to the plaintiff. And according to the plaintiff as the sale deed was executed in violation of the terms and conditions of the agreement to sell and decree passed by the concerned court because of which to the extent the sale deed is not in conformity with the agreement to sell. The same is illegal and void.
Defendant no.1 does not have any legal right to insist parking of their vehicles / vehicles of visitors / tenants in the specified three parking lots on the basis of registered sale deed dated 26.12.2000 and it may create law and order problem and threat and injury to the property / security staff of the plaintiff, when security staff of plaintiff will not allow petitioner no. 1 to use parking space. It is further the case of the plaintiff that in September 2005 upon being served with the summons of the suit bearing no. 286/05 filed by defendant no.1 against the plaintiff for the first time, the plaintiff came to know about the existence of the registered sale deed dated 26.12.2000. In these facts and circumstances, CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 3 of 15 plaintiff filed present suit seeking following reliefs :
(i) A decree declaring the sale deed dated 26.12.2000 bearing registration no. 5437 dated 20.07.2005 in respect of Unit no. 62 portion of block No.5 admeasuring 890 sq ft in Tribhuvan Complex, 10 th Milestone, Delhi - Mathura Road, Ishwar Nagar, New Delhi - 110065 got executed and registered before SubRegistrar, Mehrauli, New Delhi, in so far as it purports to transfer / allot specific parking area for three cars as per layout plan without any further payments and that no construction shall be raised in the space allocated for parking of cars and near and adjacent to the same, read with schedule and shown in the layout plan annexed thereto to the aforesaid extent is illegal and null and void and defendant no.1 be directed to deliver up the said sale deed and Clause 11 read with schedule and shown in layout plan and wheresoever mentioned be rectified / cancelled in part to the aforesaid extent without the defendant no.1 entitled to the benefit to the aforesaid extent.
(ii) A perpetual injunction restraining the defendant no.1, its agent, servants, tenants or any other person from asserting or claiming any right, use or occupation whatsoever pursuant to the aforesaid sale deed dated 26.12.2000 in the purported specific parking area for three car parking as per layout plan mentioned therein.
(iii) Costs of the suit be awarded in favour of plaintiff.
2. Defendant no.1 who is contesting the suit of the plaintiff has filed written statement in which it took preliminary objection that there is no cause of action. On merits, it is submitted that as admitted by the plaintiff in para 2 of the suit, a collaboration agreement dated 04.02.1986 CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 4 of 15 was executed between the plaintiff and defendant no. 2 whereby block no. 5 of Tribhuvan Complex fell to the share of defendant no. 2 who became entitled and competent to sell the said block no. 5 and defendant no. 2 as vendor agreed to sell the same to the defendant no. 1 as per agreement to sell dated 19.11.1987 coupled with letters dated 03.12.1987 and 04.12.1987 which proposed sale was confirmed by the plaintiff and the agreement dated 19.11.1987 was also signed by the plaintiff as confirming party and later on the plaintiff and the defendant no. 2 failed to execute the sale deed which made the defendant no. 1 to file a suit for specific performance in the Hon'ble High Court of Delhi and during the pendency of the suit, parties compromised and an application under Order 23 Rule 1 & 3 CPC supported by the affidavits was filed which was allowed and the plaintiff and the defendant no. 2 were ordered and directed to execute the sale deed and hence, the defendant no. 1 purchased stamp papers for the purposes of execution of sale deed which was prepared and was executed by and between the defendant no. 1 and 2 but the plaintiff did not cooperate and hence, the defendant no. 1 was constrained to file an execution petition and an application for appointment of a local commissioner to execute the sale deed on behalf of the plaintiff and to present the same for registration which application was allowed and defendant no. 3 was appointed as a local commissioner to do the needful who executed the sale deed and presented the same for registration which was duly registered by the defendant no. 4. In this regard, it is relevant to note that copy of sale deed duly signed by the defendant no. 1 and 2 was filed in the execution proceedings which was perused by Hon'ble Court of Delhi and the same was handed over to the CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 5 of 15 local commissioner who matched the same with the agreement to sell dated 19.11.1987, letter dated 03.12.1987 and 04.12.1987 and original sale deed which was duly executed between the defendant no. 1 and 2 and then signed and presented the same for registration which was registered as mentioned above and hence no illegality or irregularity can be found in the same case of plaintiff was refuted and reference was made to the aforesaid preliminary objections.
3. After completion of pleadings, following issues were settled by the court on 07.03.2006 :
(i) Whether plaintiff is entitled for declaration as sought ? OPP
(ii) Whether plaintiff is entitled for rectification and cancellation of sale deed dated 26.12.2000 as sought ? OPP
(iii) Whether plaintiff is entitled for perpetual injunction as sought? OPP
(iv) Whether there is no cause of action in favour of plaintiff and against the defendant? OPD
(v) Whether suit is not properly signed, verified and instituted ? OPD
(vi) Whether suit is barred by time ? OPD
(vii) Whether suit is not properly valued for the purpose of court fee and jurisdiction ? OPD
(viii) Whether suit is not maintainable in its present form ? OPD
(ix) Relief.
4. Defendant no.2 was proceeded exparte on 20.04.2017 and defendant no. 3 & 4 were deleted from the array of parties vide order CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 6 of 15 dated 02.12.2009.
5. In response to the written statements of defendants, plaintiff filed replication in which it refuted the version of defendants and reiterated his version as mentioned in plaint. Contents of same are not repeated here for the sake of brevity.
6. Matter was then fixed for plaintiff's evidence.
7. Plaintiff examined Sh. Bharat Bhasker as PW1 who tendered in evidence his affidavit Ex.PW1/A reiterating the facts as mentioned in the plaint which needs no repetition. He relied upon documents Ex.PW 1/1 to Ex.PW1/4 and Mark A.
8. PW2 Sh. Ashwani Gupta, JJA from the court of Sh. Mayank Mittal, Ld. Civil Judge08, Central District, Tis Hazari Courts, Delhi. He brought the summoned record and exhibited the certified copy of the summons as Ex. PW2/1 and Ex.PW2/2.
9. PW3 Sh. Jitender Kumar, JJA, Record Room (Civil), Tis Hazari Courts, Delhi brought the summoned record of case file bearing no. 93490/16 and exhibited the certified copy of the summons as Ex.PW3/1.
10. PW4 Sh. Mahesh Sikka, Record Keeper, Building Head Quarters, Civil Centre, SDMC, Minto Road, Delhi. He brought the summoned record i.e. layout plan of Ishwar Nagar, Mathura Road, New Delhi for Ishwar Industries Ltd. Ex.PW4/1. He also brought the original sanction CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 7 of 15 plan of Block No.4 and block No.5, Ishwar Nagar, Mathura Road, New Delhi, copies of which were exhibited as Ex.PW4/2 and Ex.PW4/3. After examining these witnesses, plaintiff's evidence was closed on 22.02.2018 vide separate statement of counsel for plaintiff. Matter was then fixed for defendant's evidence.
11. Defendant no.1 examined Sh. G. P. Chobey as DW1 who tendered in evidence his affidavit Ex.DW1/A in which he reiterated the facts as stated in written statement. Same needs no repetition. After examining DW1, defendant's evidence was closed on 21.04.2018 upon separate statement of counsel for defendant and matter was then fixed for final arguments.
12. After hearing final arguments, matter was fixed for judgment.
ISSUE WISE FINDINGS Issue No.1 : Whether plaintiff is entitled for declaration as sought ?
OPP AND Issue No.2 : Whether plaintiff is entitled for rectification and cancellation of sale deed dated 26.12.2000 as sought ? OPP AND Issue No.3 : Whether plaintiff is entitled for perpetual injunction as sought ? OPP
13. All these issues are interrelated and therefore they are decided by me by common appreciation of record of this case. The onus to prove these issues is on plaintiff. As per the plaintiff, plaintiff was the owner of a parcel of the land and he entered into an collaboration CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 8 of 15 agreement for its development with defendant no. 2. In terms of the collaboration agreement, defendant no. 2 raised construction on the parcel of the land owned by plaintiff. Defendant no. 2 also entered into an agreement to sell with defendant no. 1 regarding sale of buildup portion of the ground floor bearing unit no. 63, portion of Block no. 5 of area 700 Sq. Ft., which was constructed over the parcel of the land owned by the plaintiff and the plaintiff also gave its consent to the agreement to sell. Later on both plaintiff and defendant no.2 refused to execute sale deed, therefore, defendant no. 1 filed a suit bearing no. 596/93, for specific performance of agreement to sell against both plaintiff and defendant no. 2 in which all three i.e. plaintiff, defendant no. 1 and defendant no. 2 entered into a compromise and gave their statement before the Hon'ble High Court of Delhi and on the basis of their settlement and statement, a consent decree was passed in the abovementioned suit. But even after passing of the consent decree, plaintiff failed to execute the sale deed, therefore, defendant no.1 filed the execution petition in which plaintiff did not appear and court appointed a local commissioner, who on behalf of the plaintiff, executed the sale deed and after that the sale deed was registered by the sub registrar in the execution proceeding.
As per the plaintiff, the registered sale deed contains a clause no.11 regarding exclusive parking of three cars given to the defendant no.1, which was not contained in the agreement to sell, therefore, he has sought cancellation of above mentioned clause.
CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 9 of 15
14. The words 'in writing and signed by the parties', inserted in O.23, R.3 by (Amendment) Act, 1976, necessarily mean and include duly authorised representative and counsel. Thus a compromise in writing and signed by Counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. Reliance is placed upon AIR 1991 SC 2234 : 1991 AIR SCW 2567.
Sh. N. K. Kantawala, Ld. Counsel for the plaintiff gave his statement in writing on 31.7.1996 before the Hon'ble High Court of Delhi, on basis of which decree dated 31.07.1996 was passed, therefore, decree dated 31.7.1996 is binding on the plaintiff. It is a settled law that once a consent decree is drawn up on the basis of the agreement between the parties, then the agreement merges in the decree. In the present case also, once the consent decree of specific performance was drawn up, the agreement to sell dated 19.11.1987 merges in it and came to an end. After 31.7.1996 agreement to sell dated 19.11.1987 no longer exists, therefore, plaintiff cannot seeks its cancellation and only remedy which plaintiff had was to challenged the decree dated 31.7.1996.
15. Order 23 Rule 3 CPC regulates the consent decree and Order 23 Rule 3A bars the filing of any suit to challenge the consent decree and the relevant portion of both the Rules are reproduced herein below :
CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 10 of 15 "Order 23 Rule 3 CPC ...........
Explanation : An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 is only way to challenge compromise decree shall not be deemed to be lawful within the meaning of this rule.
Order 23 Rule 3A.
Bar to suit - No Suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
Further, in Gopal Lal Vs. Babu Lal, AIR 2004 Raj. 264, it was held that a suit challenging the compromise decree is completely barred under Order XXIII, rule 3A, read with Explanation to Order XXIII, rule 3, CPC. The law, however, provides two modes to challenge a compromise decree to a party to the compromise. The first remedy is under proviso to rule 3 of Order XXIII of the Code of Civil Procedure. According to the proviso, a party can question the compromise before the court, which has recorded the same and has passed the decree in accordance therewith. The second remedy lies in filing an appeal under Section 96(1) of the Code of Civil Procedure against the compromise decree.
Another ground on which compromise decree could be challenged is provided by explanation to order 23 Rule 3 CPC as per which if the agreement or compromise on the basis of which consent decree was passed was void or voidable.
16. So, the plaintiff could challenge the compromise on the basis of which decree was drawn up before the court where it was recorded i.e. Hon'ble High Court of Delhi or it could have file an appeal against the CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 11 of 15 compromise decree but plaintiff has not challenged compromise before Hon'ble High Court of Delhi and also not preferred any appeal against the consent decree. Further, the compromise entered into between the parties is not challenged by the plaintiff on the ground that it is either obtained by coercion, undue influence, fraud or misrepresentation and, therefore, it is void or voidable. In the present case, plaintiff has challenged the compromise decree on the ground that it contains an extra clause or term which was not present in the original agreement and same is no ground to challenge the consent decree.
In view of the above discussion, in the considered opinion of the court, by way of the present suit, the plaintiff has challenged the compromise decree which is barred by law i.e. order 23 Rule 3A, therefore, the present suit is not maintainable and liable to be dismissed.
17. There is another angel to examine the present case and it is that the consent decree was drawn up on 31.7.1996 and after that defendant no.1 filed execution petition for executing the consent decree in which sale deed was to be registered. Now, by way of present suit, plaintiff wants to challenge the clause 11 of Registered Sale Deed and as discussed above it is a settled law that once a consent decree is drawn up on the basis of the agreement between the parties, then the agreement merges in the decree, so, in a way plaintiff wants to challenge the registration of sale deed i.e. execution of the decree. As per Section 47 of CPC any dispute or question regarding the execution, discharge or satisfaction of the decree shall be determined by the executing court and CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 12 of 15 not by a separate suit and same is reproduced herein below : "Sec. 47 All questioned arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit".
Plaintiff wants to challenge the part of registered sale deed, whose registration was done in the execution proceeding, therefore, he wants to challenge the execution or satisfaction of the decree, therefore, he had the opportunity to raise his objections during the execution proceeding but plaintiff choses not to contest the execution proceeding and was proceeded ex parte. Now plaintiff cannot challenge the execution of the decree by way of separate suit as it is barred by Sec. 47 of the CPC. Therefore, the present suit is not maintainable and liable to be dismissed.
Issue No. 6 : Whether suit is barred by time ? OPD
18. The onus to prove this issue was on defendant. The present suit for seeking rectification of sale deed was filed on 16.11.2005 and the compromise decree was passed on 31.7.1996. As per the Article 59 of the Limitation Act 1963, the period of limitation to seeks cancel or set aside an instrument or decree or for the rescission of a contract is 3 years from the day when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
In the present case, the Counsel Sh. N.K. Kantawala, who was representing the plaintiff before the Hon'ble High Court of Delhi gave CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 13 of 15 his statement on 31.7.1996 and on the same day, compromise decree was passed, therefore, it is proved that on the same day i.e. on 31.7.1996, plaintiff had the knowledge that compromise decree has been passed.
19. The defence taken by the plaintiff that he came to know about the compromise decree and registered sale deed for the first time in September 2005 upon being served with the summons of the suit bearing no. 286/05 filed by defendant no.1 against the plaintiff is a sham and moonshine defence which needs to be rejected outrightly.
Therefore, the present suit filed by the plaintiff is also barred by law of limitation as it is filed beyond the prescribed period of limitation and is liable to be dismissed as nonmaintainable.
Issue No. 4 : Whether there is no cause of action in favour of plaintiff and against the defendant? OPD AND Issue No. 5 : Whether suit is not properly signed, verified and instituted ? OPD AND Issue No. 7: Whether suit is not properly valued for the purpose of court fee and jurisdiction ? OPD AND Issue No. 8 : Whether suit is not maintainable in its present form ? OPD
20. The burden to prove these issues is on defendant. However, no evidence has been led on behalf of defendant to discharge the burden. Hence, in the absence of any evidence, these issues are decided against the defendant and in favor of plaintiff.
CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 14 of 15 Relief :
21. Based on aforesaid appreciation and conclusions, suit stands dismissed. No order as to cost. DecreeSheet be prepared, accordingly.
22. File be consigned to Record Room after due compliance.
Announced in the open court (Vipin Kharb)
on 05th March, 2020 SCJcumRC:Central District
Tis Hazari Courts, Delhi
CS 94188/16 M/s. Ishwar Industries Ltd Vs M/s. Colorado Chattles Pvt Ltd. Page No. 15 of 15