Delhi High Court - Orders
Shaminder Singh Bhatia & Anr vs Mr. Vishnu Bhagwan @ Balwan Singh on 24 August, 2021
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 125/2021 & I.A. 8919/2021 (Section 151 CPC)
SHAMINDER SINGH BHATIA & ANR. ..... Plaintiffs
Through Mr. Vierat K. Anand, Adv.
versus
MR. VISHNU BHAGWAN @ BALWAN SINGH.. Defendant
Through
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 24.08.2021
(Video-Conferencing)
IA 8919/2021 (Section 151 CPC) in CS(COMM) 125/2021
1. The prayer, in this application, preferred by the plaintiffs in the suit, reads thus:
"In the facts and circumstances laid down hereinabove, the plaintiffs/applicant most humbly pray that this Hon'ble Court be pleased to:
a) Allow the present Application and give directions to the Ld. Registrar General to not disburse the Demand Draft bearing number 676566, dated 11.02.2019, drawn on CitiBank amounting to INR. 2,00,00,000/- (Rupees Two Crores Only) Mumbai Branch till the pendency of the captioned matter,
b) Pass any other or further orders, that this Hon'ble Court may deem fit, in facts and circumstances of the present case."
2. The deposit of ₹ 2 crores, to which the afore-extracted prayer of the plaintiffs in the present application alludes, has its genesis in an Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 1 of 7 Signing Date:26.08.2021 21:15:11 order dated 13th March, 2019, passed by a coordinate Single Bench of this Court in FAO 404/2015. The defendant in the present suit was Respondent No. 2 in FAO 404/2015.
3. FAO 404/2015 was settled, between the parties thereto, by way of a Settlement Agreement dated 18th February, 2019, consequent on mediation under the aegis of the Delhi High Court Mediation and Conciliation Centre. An application under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (CPC) was, accordingly, moved and FAO 404/2015 was disposed of, by order dated 13th March, 2019, which reads thus:
"CM APPL. 11725/2019 (O. 23 R. 3 CPC) This application filed under Order 23 Rule 3 CPC seeks disposal of the appeal on the basis of a compromise arrived at between the parties. The application is signed by the counsel for the parties and is supported by affidavits of authorized personnel. The settlement agreement dated 18.02.2019, courtesy Delhi High Court, Mediation & Conciliation Centre, is part of the application.
The learned counsel for the parties submit that the parties shall remain bound by the terms of the settlement and that they also undertake to file an affidavit of undertaking in this regard within two weeks from today. Since the lis has been settled amicably in terms of the compromise deed, the probate petition is disposed of in terms thereof. Since digitized version of the Trial Court record is available for future reference, if any, of this court, let the original Record be returned to the court concerned.
The petition is disposed off in the above terms. The interim orders dated 07.12.2015 & 15.01.2016, stand vacated."
4. The plaintiffs are essentially aggrieved by Clause 6(e) of the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 2 of 7 Signing Date:26.08.2021 21:15:11 Settlement Agreement dated 18th February, 2019, whereby FAO 404/2015 was settled. Para 6 of the Settlement Agreement dealt with the manner in which the sum of ₹ 2 crores, deposited by the appellant in FAO 404/2015 with the Registrar General of this Court, was to be dealt with. The said para 6 of the Settlement Agreement reads thus:
"6. That the parties herein specifically agreed that the sum of Rs. 2,00,00,000/- (Rupees Two Crores Only) deposited with the Registrar General, Delhi High Court shall be disbursed in the following manner:
a) In the event of neither any claimant coming forward nor any litigation being initiated within a period of three years from the date of signing of the present Settlement Agreement, in furtherance to the Second Party having created any right, interest etc. relating to the aforesaid unregistered Will-dated 07.12.2006, the Second Party shall be at liberty to seek withdrawal of the aforesaid amount of Rs.2,00,00,000/- (Rupees Two Crores Only), as deposited with the Registrar General, Delhi High Court, along with interest accrued thereon till that date.
b) In the event of any claimant coming forward or any litigation being initiated within a period of three years from the date of signing of the present Settlement Agreement, in furtherance to the Second Party having created alleged right, interest etc. relating to the aforesaid unregistered Will dated 07.12.2006, thereby impleading the First Party, the First Party shall be entitled towards the litigation cost at the expense of the Second Party however, subject to the maximum amount of Rs.10,00,000/- (Rupees Ten Lakhs Only), from the amount of Rs.2,00,00,000/- (Rupees Two Crores Only), deposited with the Registrar General, Delhi High Court. Out of the said amount of Rs.10,00,000/- (Rupees Ten Lakhs Only), the First Party-shall be at liberty to withdraw a initial sum of Rs.5,00,000/- (Rupees Five Lakhs Only) from the Registrar General, Delhi High Court at the time of the notice/knowledge of the said claim/ litigation. The First Party shall be at liberty to withdraw remaining Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 3 of 7 Signing Date:26.08.2021 21:15:11 sum of Rs.5,00,000/- (Rupees Five Lakhs Only) from the Registrar General, Delhi High Court, if the said claim/litigation is not settled by the Second Party within a period of one year of such notice/knowledge to the First Party.
c) In the event of the aforesaid claimant succeeding in such litigation or such litigation ending in a settlement and the Second Party having to pay such amount/s towards the same, the Second Party shall be entitled to seek release of such amount/s from the remaining amount of Rs.1,90,00,000/- (Rupees One Crore Ninety Lakhs only) out of the above mentioned Rs.2,00,00,000/- (Rupees Two Crores only) deposited with the Registrar General, Delhi High Court, for which the Second Party shall move an appropriate application/s as may be required from time to time.
d) In the event of the claims being over and above the sum of Ra.1,90,00,000/- (Rupees One Qrore Ninety Lakhs only), the same shall be solely dealt and compensated by the Second Party and the First Party shall not be liable for the same in any manner whatsoever.
e) In the event of any balance amount remaining with the Registrar General, Delhi High Court either after satisfaction of all such aforesaid claim or disposal of all the aforesaid such litigation/s and further upon expiration of three years from the date of signing of the present settlement agreement, the Second Party shall be entitled for release of the same along with the interest accrued thereon, upon his undertaking to the Hon'ble Court that there is no claim(s)/litigation(s) of any nature pending against him, in respect of property bearing no. 1/9 Shanti Niketan, New Delhi or in respect of the unregistered WILL dated 07.12.2006."
5. The contention of Mr. Anand, learned counsel for the applicant/plaintiffs in the present application, is that the present suit constitutes a "litigation... pending" against the defendant "in respect Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 4 of 7 Signing Date:26.08.2021 21:15:11 of property bearing No. 1/9, Shanti Niketan, New Delhi or in respect of the unregistered Will dated 7th December, 2006", to which Clause 6(e) of the Settlement Agreement refers. He, therefore, expresses an apprehension that, if the amount of ₹ 2 crores deposited with the Registrar General is released to the defendant, it would prejudice his client.
6. Clause 6(e) of the Settlement Agreement adequately provides for such a contingency, by requiring the furnishing of an undertaking by the defendant, to this Court, that there is no claim or litigation of any nature pending against the defendant, in respect of the property bearing No. 1/9, Shanti Niketan, New Delhi or in respect of Will dated 7th December, 2006 before the amount of ₹ 2 crores, deposited with the Registrar General, could be released to him. In view of this requirement, it is clear that no release of the aforesaid amount of ₹ 2 crores, in favour of the defendant, can take place unless the defendant subscribes to an undertaking as envisaged by Clause 6(e) of the Settlement Agreement.
7. There is no reason for this Court to believe that if, in fact, the present litigation is in the nature of a litigation of the type contemplated by Clause 6(e) of the Settlement Agreement, the defendant would submit a false undertaking, concealing the fact of pendency of the present litigation.
8. Though Mr. Anand, learned counsel for the applicant/plaintiffs, submits that there is every likelihood of the defendant doing so, Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 5 of 7 Signing Date:26.08.2021 21:15:11 especially as the period of three years, for which security had been provided under the settlement is coming to an end, this Court cannot pass any order, protecting the present plaintiffs on a premise that the defendant may possibly submit a false undertaking to the Court.
9. The grant of the prayer, in the present application, would amount, in my view, to a modification of the order dated 13th March, 2019, passed by a coordinate Single Bench of this Court in FAO 404/2015. That order bound the parties to the said appeal, which included the present defendant, only by the terms of the Settlement Agreement. All that was required of the defendant, under the Settlement Agreement, was to furnish an undertaking in terms of Clause 6(e) thereof to this Court before being entitled to the amount deposited with the Registrar General. If I were, today, to direct the Registrar General not to release the aforesaid amount to the defendant, owing to the pendency of the present proceedings, that would tantamount to re-writing the terms of the Settlement Agreement as well as the order dated 13th March, 2019, passed by this Court. The order dated 13th March, 2019 being in the nature of a final order, disposing of the appeal and passed consequent on an application under Order XXIII Rule 3 of the CPC, it is not open for me, in the present application, to tinker with the said order. Possibly, the remedy with the present applicant, if he still considers himself entitled to the prayer in this application, may lie elsewhere, but certainly not before this Court in the present proceedings.
10. In that view of the matter, it is not possible for this Court to Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 6 of 7 Signing Date:26.08.2021 21:15:11 grant the prayers in this application, which is, accordingly, dismissed.
C. HARI SHANKAR, J.
AUGUST 24, 2021 r.bararia Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 125/2021 Page 7 of 7 Signing Date:26.08.2021 21:15:11