S. Ravindra Bhat, J.
I.A. No. 1086/2010
1. This is a joint application between the Plaintiffs and the first four Defendants requesting the Court to take on record the mediation settlement dated 21.12.2009 and pass a decree in its terms.
2. The Plaintiffs had sued the Defendants for permanent injunction to restrain them from forcibly dispossessing the Plaintiffs or interfering with their peaceful enjoyment of House No. 5/11, Punjabi Bagh Extension, New Delhi ("the suit property"). The suit alleges that the original owner of the property was Smt. Prakashwati, the Plaintiff''s mother and the mother in law of the first Defendant. Defendant Nos. 3&4 are concededly the children of the first Defendant. It was alleged that the Plaintiffs owned 3/4th share in the property whereas the first four Defendants had the rest of the 1/4th share.
3. The suit had impeded the fifth Defendant alleging that he had entered into an agreement to purchase the property with the first four Defendants. During the course of the hearing, the said Defendant Nos. 1-5 entered appearance. It was contended by the fifth Defendant, inter alias, that the Plaintiffs too were parties to the agreement to sell the property. The fifth Defendant had contended inter alias that the Plaintiffs'' earlier agreement with him was destroyed and subsequently another agreement was entered into. On the basis of these allegations, the fifth Defendant filed the Counter Claim.
4. During the course of the proceedings in the suit, the parties, i.e., the Plaintiffs and first four Defendants referred their disputes for possible settlement through mediation. The fifth Defendant also joined the said mediation proceedings. The Plaintiff and the first four Defendants were able to resolve their inter se disputes and arrive at a settlement which was recorded in writing through an agreement dated 21.12.2009. That agreement has been enclosed as Annexure-A to the application.
5. A reading of the report filed along with an agreement would disclose that the mediator was conscious of the fifth Defendant''s claim and scheduled the mediation proceedings in respect of the fifth Defendant''s claim on 18.1.2010. It is stated in this joint application that the Plaintiff and the first four Defendants have arrived at a lawful settlement which is embodied in the terms outlined in the settlement agreement of 21.12.2009. The material terms of settlement, contained in paragraph-6&7 read as follows:
6. The parties to the agreement have arrived at a settlement on following terms-
i. That the property bearing No. 5/11, Punjabi Bagh Extension (herein after referred to as ''the property'') which stands recorded in the name of fourth party shall be divided into four equal parts and each of the parties to this agreement shall have equal 1/4th ownership rights in the property. The parties will cooperate with each other in jointly applying to the concerned authorities to make the required changes in their record. All the relevant authorities will be bound by this Hon''ble Court decision to make the amendments to give effect to the ownership to the parties.
ii. As regards the existing superstructure portion jointly falling in the shares of first, second and third party has been marked specifically in red colour in the attached site plan and the portion failing in the share of fourth party has been specifically marked in yellow colour in the site plan. The fourth party will be put in possession of the portion falling in their portion which is mark ''A''/ shown in the green colour within the yellow shaded portion in the attached site plan immediately after signing of this agreement. The fourth party shall not induct any person/s in their share which may cause disturbance or nuisance to the peaceful use and occupation of the portion falling in the share of the first, second & third parties. The attached site plan to be treated as part of this settlement.
iii. The interest free loan of Rs. 66 lakhs (Rupees Sixty six lakhs only) taken in the ratio of 22 lakhs (twenty two lakhs only) by Sudha Sharma, 22 lakhs (twenty two lakhs only) by Seema Sharma on behalf of prerna and Bhawna, 22 lakhs (twenty two lakhs only) by Seema Sharma on behalf of herself taken from the fourth party shall either be adjusted upon the receipt of total sale consideration in respect of the property or in case Hon''ble high court of Delhi directs the fourth party to refund of the amount to the counter claimant then the first, second & third party undertake to return the amount of Rs. 66 lakhs (Rupees Sixty six lakhs only) to the fourth party and on such assurance this agreement is being signed and executed. Any penalty or interest if any is awarded by the court shall be shared in equal ratio by all the parties in this agreement.
iv. That the fourth party has spent as amount of Rs. 2,50,000 (Rupees two lakhs and fifty thousand only) towards the expenses incurred in the mutation etc., in respect of the property. This amount shall be shared in equal ratio by all the parties to this agreement and shall be adjusted by the parties upon the receipt of the total sale consideration in respect of the property. In case the first, second and third parties incurs expenses is completing the formalities in respect of the 3/4th share of the property then such expenses shall be borne out only by first, second & third parties. The liabilities to clear electricity, water charges and house tax in respect of the property unto the date of signing of this agreement shall be of first, second and third parties and subsequently all the parties to this agreement shall bear the liabilities of house tax as per their share.
v. That it is clarified that whatever amount which would be fetched by selling the property shall be divided equally by all the four parties to this agreement.
vi. That in addition to the above property there are two other properties i.e. property bearing No. 2/373, Kailash Nagar, Fazilka, in Punjab and the other property is a DCM, showroom in the woolen market in Fazilka (both the properties shall herein after jointly shall be referred to as "Fazilka properties''). It has been agreed that the share of the fourth party in respect of Fazilka properties has been assessed at Rs. 15 lakhs (Rupees fifteen Lakhs). The first, second and third parties are jointly paying an amount of Rs. 15 lakhs (Rupees fifteen lakhs) to the fourth party in the form of pay order details of which are given below:
a. Pay order/DD bearing No. 128160 dated 19.12.09 drawn on standard Chartered Bank for Rs. 3,75,000/- (Rs. Three lakhs seventy five thousand only) in the name of Ms. Manisha Narang.
b. Pay order/DD bearing No. 128159 dated 19.12.09 drawn on Standard Chartered Bank the Rs. 3,75,000/- (Rs. Three lakhs Seventy five thousand only in the name of Deepika Bhaskar
c. Pay order/DD bearing No. 227995 dated 17.12.09 drawn on OBC, West Punjabi Bagh, New Delhi Rs. 3,75,000/- (Rs. Three lakhs seventy five thousand only) in the name of Mrs. Sudhesh Bhaskar
d. Pay order/DD bearing No. 227994 dated 17.12.09 for Rs. 3,75,000/- (Three lakhs seventy five thousand only) in the name of Mrs. Mishu Arora.
The fourth party hereby confirms the receipt of Rs. 15 lakhs (Rupees fifteen lakhs) in the form of demand drafts as mentioned above and now the fourth party shall not have any claims, rights title or interest in respect of Fazilka Properties. The fourth party shall cooperate with the first party in executing/registering any document required by law in this regard.
7. By signing this agreement the parties hereto state that they have no further claims or demands against each other with respect to the CS (OS) No. 1556/2008 and all the disputes and differences in this regard have been amicably settled by the parties hereto through the process of conciliation/ medication.
6. The joint applicants (i.e. the Plaintiffs and Defendant Nos. 1-4) submit that the above terms constitute a valid and binding compromise which should be embodied in the decree. They request the Court to draw a decree in such terms. All the said applicants have filed their affidavit in support of the application; their counsel are present in the Court.
7. Notice on the application was first issued on 29.1.2010; the matter was thereafter fixed on 6.8.2010. Apparently, an attempt was made to settle the disputes and arrive at a comprehensive overall settlement as between the Plaintiff and Defendant Nos. 1-4 on the one hand and the fifth Defendant on the other. This attempt has not succeeded.
8. The fifth Defendant/counter claimant has not filed any formal objection to the application. His Counsel Mr. Mittal, however, contends that the Court ought not to decree the suit in terms of the application since the said counter claimant/fifth Defendant''s rights and interest is vitally affected. It is submitted that the property in question was agreed to be sold to the fifth Defendant and that any decree made in the inter se suit as between the Plaintiff and the contesting Defendant Nos. 1-4 would adversely impact the fifth Defendant''s claim. This submission is repelled by the joint applicants through their counsel who state that the fifth Defendant''s counter claim can be proceeded separately in terms of the provisions of CPC and treated as a separate suit. It is stated that the fifth Defendant/counter claimant''s right as a potential purchaser who claims to have entered into an agreement to purchase the property with the Defendants or some of them would remain un-effected, and he would not be prejudiced if the inter se compromise between the Plaintiffs and first four Defendants is recorded.
9. The Court has carefully considered the submissions. While it is true that the Court has to sanction only lawful compromises and settlements in terms of Order-XXIII, Rule-3, CPC, by virtue of the mandate of Section 23 of the Contract Act and the Court has to be sensitive to the rights of the third party who might be or is likely to be effected by such inter se agreements, yet there cannot be a blanket assumption that every case involving the claim for specific performance in which the vendor''s inter se disputes are sought to be embodied in a settlement decree would invariably affect third party rights or interest. The third party here i.e. fifth Defendant/counter claimant''s rights to claim a decree for specific performance or other equitable relief is in no manner affected. This is because the property which is the subject matter of such claim is known; the Court is not sanctioning its sale or disposition or dispossession of the parties in any manner. Further, the law governing such disputes is embodied in the provision i.e. Section 19 of the Specific Relief Act, which enables the Plaintiff/vendor to insist that a decree be executed as against the third party purchaser who acquires title to the property through a subsequent transaction. In this case, the Plaintiffs and Defendant Nos. 1-4 are family members, their right, title and entitlement was in dispute and subject matter of suit No. 1556/2008. That dispute has been resolved. The dispute as between them (or some of them) and the fifth Defendant which is subject matter of CS (OS) 1556/2008, as far as the relief towards specific performance of the agreement claimed by the said counter claimant is concerned, have not been settled. The terms of the settlement nowhere also reflect any intention to take away the said fifth Defendant/counter claimant''s rights. The said party has an entitlement to claim his rights or interests in the suit in his position as counter-claimant and proceed with it regardless of the settlement of the suit as between the Plaintiffs and the first four Defendants.
10. In view of the above discussion, the Court is satisfied that the settlement indicated in the compromise agreement dated 21.12.2009 cannot be termed as unlawful and have to be recorded as lawful and binding. The said compromise however does not bind the fifth Defendant/counter claimant.
11. I.A. No. 1086/2010 is, therefore, allowed.
CS (OS) 1556/2008
In view of the order made in I.A. No. 1086/2010, the suit is decreed in terms of paragraph-6 and 7 of the settlement dated 21.12.2009 as between the Plaintiffs and the first four Defendants. The fifth Defendant''s rights are, however, unaffected. The counter claim preferred by him shall remain on the record and be tried independently. In the circumstances, there shall be no order as to costs.
I.A. No. 1086/2010 is directed to be treated as part of the decree.
CS (OS) 1556/2008 is decreed in such terms.
CC No. 62/2008 Today, CS (OS) 1556/2008 has been decreed as between the Plaintiffs and the first four Defendants; it is, therefore, clarified that the counter claim is not bound by the said decree and is entitled to proceed with the present suit. In view of the order made in CS (OS) 1556/2008, the parties to the counter claim are hereby restrained from disposing of the property, giving possession to any third party or creating any encumbrances or third party interest in it till disposal of the Counter Claim.
List the Counter Claim before the Joint Registrar on 15th February, 2011, to record evidence in respect of the surviving issues i.e. Nos. 3, 4, 5 & 7 in terms of the order in CS (OS) 1556/2008 dated 6.1.2009.
List before the Court on 12th September, 2011.
