Delhi District Court
Sh. Deepak Anand & Anr. vs . Smt. Neena Aggarwal & Anr. on 10 January, 2013
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IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 158/12
In the matter of :
Sh. Deepak Anand & Anr. Vs. Smt. Neena Aggarwal & Anr.
10.01.2013
ORDER :
Vide this order, I shall dispose off the application of the defendant filed u/o 7 Rule 11 CPC.
Brief facts of the case are: 2 Plaintiffs have filed the present suit against defendants for possession, permanent injunction and mesne profit.
3 Defendant has submitted that the present suit is liable to be dismissed as the same is barred by law of resjudicata and the plaint filed by plaintiff failed to show any cause of action in favour of plaintiff and against the defendants.
4 Defendants have submitted that in 2009, the plaintiff filed a suit, bearing no.1198/09, against defendants for permanent injunction, declaration and Suit No. 158/12 Contd....P..1 of 10 : 2 : mandatory injunction in relation to the suit property. On 17.03.2010, the plaintiff no.1, made a statement on behalf of plaintiff no.1 and 2, that the plaintiff no.1 will execute an indemnity bond in respect of suit property within one month and the defendants are ready to accept the same. The plaintiff further undertook to execute the registered Sale Deed, GPA, Affidavit etc. in respect of suit property in favour of defendant no.1. The defendant no.2 also made a statement before the Hon'ble Court that the balance amount of Rs.10,00,000/ (Rupees Ten Lakhs only) shall be paid by the defendants to plaintiffs at the time of execution of registered Sale Deed, GPA, Affidavit etc. in respect of suit property in favour of defendant. Thus, the defendants and plaintiffs mutually agreed to settle the dispute by paying Rs.10,00,000/ (Rupees Ten Lakhs only) by defendants to plaintiffs, upon executing of registered Sale Deed by plaintiffs, in favour of defendant no.1.
5 The court in the said matter vide order dated 17.03.2010, upon recording the separate statement of defendant no.2 and plaintiff no.1 disposed of the said suit as dismissed as withdrawn in terms of the settlement of the parties. The order dated 17.03.2010, was modified by order dated 06.07.2010. Thus, in terms of the statements of parties, the suit no.1198/2009 was disposed of by Ld. Judge Ravinder Bedi, ASCJ / JSCC vide orders, dated 17.03.2010 and 06.07.2010. Defendants have submitted that a consent order dated 17.03.2010 and 06.07.2010, operates as an estoppel and is valid and binding between the Suit No. 158/12 Contd....P..2 of 10 : 3 : plaintiffs and defendants.
6 Defendants have submitted that despite statements made before the Court, the plaintiffs failed to perform as per the consent orders, dated 17.03.2010 and 06.07.2010. The plaintiffs failed to execute registered Sale Deed in favour of defendant no.1 for the suit property. The defendants have requested plaintiffs several time to execute registered Sale Deed in favour of defendant no.1 and take the balance amount of Rs.10,00,000/ (Rupees Ten Lakhs Only), however, plaintiffs in lust for earning huge money and enjoying the increased value for the suit property, have never came forward and executed the registered Sale Deed in favour of the defendants.
7 Defendants have further submitted that the defendants were always ready and willingly to perform as per the statement given before the Hon'ble Court on 17.03.2010 and have also requested plaintiffs several times to execute registered Sale Deed in favour of defendant no.1 for the suit property and take the balance amount of Rs.10,00,000/. Defendants have also submitted that the defendants are still ready and willingly to perform as per the statements given before the Hon'ble Court on 17.03.2010 in Suit No. 1198/2009. 8 Defendants have submitted that the defendants are in possession of the suit property for a valuable consideration and subsequent to taking possession of suit property, they installed electricity meters in the suit property Suit No. 158/12 Contd....P..3 of 10 : 4 : and regularly paying the electricity bills for the suit property. Defendants have also paid the conversion charges and parking charges for the suit property and have also paid the Property Tax for the yea 20102011. Defendant no.1 have got the suit property mutated in her name in the records of Municipal Corporation of Delhi vide Certificate of Mutation issued by Municipal Corporation of Delhi on 20.03.2010.
9 Defendants have submitted that as an afterthought, after nearly two years, the plaintiffs have filed the present suit against the defendants for possession, permanent injunction and mesne profit in order to unnecessary harass and to meet their personal vendetta against defendants. 10 Defendants have submitted that plaintiffs, being illmotivated by the increased in the market value of suit property and in order to extract had earned money of defendants, never executed the conveyance documents for the transfer of title of the suit property in favour of defendant no.1. 11 Defendants have submitted that plaintiffs by filing the captioned suit seeks to set aside the consent orders, dated 17.03.2010 and 06.07.2010, as well as the compromise / settlement arrived between the plaintiffs and defendants. It is well established law that the compromise / settlement arrived between the parties, once closed has the force of law and is binding upon the parties. It is Suit No. 158/12 Contd....P..4 of 10 : 5 : further submitted that the parties are not free to resile from the terms of the compromise / settlement.
12 Defendants have raised objection of resjudicata, however the previous suit was not disposed off on merits. Accordingly, the objection of resjudicata is not maintainable.
13 Defendants have submitted that there is no cause of action against them and the present suit is accordingly barred u/o 7 Rule 11 CPC. Ld. Counsel for plaintiff has submitted that despite statement of defendant no.2 before Ms. Ravinder Bedi, Ld. JSCC / ASCJ / Guardian Judge that he will pay the balance amount of Rs.10 lakhs to plaintiff no.1 within 10 months from 17.03.10, he did not pay and accordingly plaintiffs had no option but to file a fresh suit for getting back the possession of suit property and mesne profits. Ld. Counsel for defendants argued that defendants were always ready and willing to pay the balance amount. It was also submitted by Ld. Counsel for defendant that plaintiff no.1 refused to execute the documents as it was stated by him time and again that husband of plaintiff no.2 is not available for executing the documents. Ld. Counsel for defendants invited attention to statement of defendant no.1 recorded on 17.03.2010 whereby it is stated that simultaneously with the receipt of the payment all the documents and due registration by the plaintiff no.1 shall be handed over to him before the office of the SubRegistrar.
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14 Further a perusal of the statement of plaintiff no.1 reveals that he
specifically stated on oath that he will execute an indemnity bond in respect of ground floor of shop 220B/1, Savitri Nagar, New Delhi (suit property herein) which defendant no.1 is ready to accept. Plaintiff no.1 had also agreed by stating that the balance amount of Rs.10 lakhs shall be paid at the time of execution of documents i.e. GPA, affidavit etc. The said statement was made by plaintiff no.1 by specifically stating that he has been fully authorized on behalf of plaintiff no.2 to execute all the documents. Plaintiff no.1 had specifically stated on oath on 17.03.2010 that he had settled all the disputes with respect to suit property and he shall not claim in respect of the same in future.
15 Statement of plaintiff no.2 was again recorded on 06.07.2010 whereby she had confirmed the authority of plaintiff no.1 with respect to the execution of the documents pertaining to the transaction as well as settling of all the disputes and not to claim anything in future in respect of suit property and also the whole statement of plaintiff no.1 recorded on 17.03.2010 and she further stated on oath that she is duly authorized to sign the documents pertaining to the transaction on behalf of her husband who had been untraceable since 2007. She had also stated that none of her legal heirs shall have any claim in the suit property.
16 In view of these statements of plaintiffs, it is established that plaintiff
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no.2 had the authority to sign the documents pertaining to the transaction of sale of suit property on behalf of her husband and none of her legal heirs had any claim over the suit property. It is further established that plaintiff no.1 had the authority to sign the documents pertaining to the transaction sale of suit property on behalf of plaintiff no.2. It is also established that defendant no.2 had undertaken to pay the balance amount of Rs.10 lakhs to plaintiff no.1 within 2 months from 17.03.2010 and simultaneously all the documents after execution and due registration by plaintiff no.1 had to be handed over to him before the office of the SubRegistrar. Statement of plaintiff no.2 as well as defendant no.2 clearly establishes that the occasion to pay balance amount of Rs.10 lakhs was to arise after execution and due registration of documents of sale. Statement of plaintiff no.2 has been recorded after about 3 ½ month of 17.03.2010 i.e. on 06.07.2010 and she had affirmed the statements of plaintiff no.1 and her statement was recorded as a sequel to statement of plaintiff no.2. Despite the expiry of period of two months i.e. the time for execution of the documents and handing over the balance amount of Rs.10 lakhs, plaintiff no.2 had not whispered a word about the defendants resiling from their undertaking before the court. 17 Plaintiff no.1 had specifically stated on oath that he shall not claim in respect of suit property in future and he had settled all the disputes with respect to the suit property. Ms. Ravinder Bedi, Ld. ASCJ / JSCC / Guardian Judge vide order dated 06.07.2010 disposed off the suit in terms of the statements of the Suit No. 158/12 Contd....P..7 of 10 : 8 : parties. In view of these observations, the present suit is barred as the parties had voluntarily settled their disputes and plaintiffs had specifically stated that they would not raise any claim in respect of suit property in future. In case they are aggrieved by non compliance or non abiding of statements made by the defendants on 17.03.2010, they have to pursue their remedy before the same court where the statements of the parties was recorded and the suit was disposed off as settled in terms of the statements of the parties. The parties cannot be allowed to set aside the consent order or to resile from the compromise / settlement arrived between them. No fresh cause of action has arisen against the defendants and grievance, if any, with respect to execution, discharge or satisfaction of such order disposing off the suit can only be decided by the court executing such order or decree and not by way of a separate suit. Plaintiffs have slept over their rights flowing from the settlement arrived between the parties as is apparent that the statements were recorded on 17.03.10, the suit was disposed off on 06.07.10 but the present suit has been filed on 22.03.2012. In the matter of Santosh Tuli Vs Ram Nath Passi (62 (1996 DLT 151) it was observed "A short question which arises for consideration before the court is, whether after a lapse of such a long time whether, this court should recall the order by which the compromise was entered into between the parties? The order was passed on 07.11.1989, more than six years ago, particularly, when the appellant has derived the benefit and received money in accordance with the terms and conditions of the compromise.
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"We have heard the Ld. Counsel for the parties, examined documents on record. In the facts and circumstances of this case, the appellant ought not to be permitted to reopen the compromise arrived at in the year 1989 after almost 6 years. In a case where the compromise has been arrived at between the parties after following the entire procedure. The court did not permit compromise only on the submissions of the Ld. Counsel but the statements of the appellant and respondents were also recored by the Ld. Judge. Not only this, the appellant has admittedly received the entire consideration. Therefore, now to permit the appellant to resile from the terms of the compromise would certainly lead to grave injustice and encourage honest people to turn dishonest because of appreciation in the value of the properties leading to tremendous conflict and disharmony in society. There has to be sanctity and finality of the court order. If compromises arrived at amongst the parties in court after following elaborate procedure and recording of the statements of the parties ar recalled, then not only that no court order / judgment would acquire finality and certainty but eventually lead to miscarriage of justice".
In another matter of Shankar Sitaram Sontakke and Anr. Vs. Balkrishna Sitaram Sontakke and Ors. (AIR 1954 SC 352) it was held "It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business had sustained any. We hold, therefore, that the compromise closed once for all the controversy about taking any account of the Suit No. 158/12 Contd....P..9 of 10 : 10 : joint family businesses including the motor business after the 31st March, 1946, and the plaintiff is bound by the terms of the compromise and the consent decree following upon it.
The obvious effect of this finding is that the plaintiff is barred by the principle of resjudicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of resjudicata.
18 In view of the observations made herein read with the law laid down in quoted judgments, the application of the defendant u/o 7 Rule 11 CPC is allowed and suit is dismissed.
19 File be consigned to Record Room after necessary compliance. Dictated and announced in the open court on 10.01.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 10.01.2013 Suit No. 158/12 Contd....P..10 of 10