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Judgment
S. Ravindra Bhat, J.
I.A. Nos. 2995/2010 and 2996/2010 & CCP 68/2010
The present common order will dispose of I.A. Nos. 2995/2010, 2996/2010 and CCP 68/2010. I.A. No. 2995/2010 is preferred by Defendant No. 2 seeking extension of time to deposit Rs. 10 lakhs directed by the Court in its order dated 10.11.2009 (while disposing of an earlier application for recall of orders, being I.A. No. 4552/2008 and other connected applications). I.A. No. 2996/2010 seeks, in turn, recall of the order of the Court dated 10.11.2009; CCP 68/2010 is somewhat connected, in the sense that the applicant, Sh. Y.S. Manchanda alleges that the second defendant, Ms. Madhuri Singh had defied the Court''s order, by not depositing the said amount of Rs. 10 lakhs.
I.A. No. 2995/2010 is really a replay of the previous application, I.A. No. 4552/2008. The detailed facts are not being adverted as they have been recounted in the Court''s order dated 10.11.2009. It would be sufficient for the present purpose to notice that the plaintiff in the suit had claimed partition. By relying on a General Power of Attorney and certain other documents said to have been executed by the defendant, his late brother, the predecessor-in-interest and husband of second defendant had filed a separate suit, being CS 304/1994, challenging the veracity and correctness of documents, based upon which the plaintiff had sought relief. The Court had decreed the present suit on 19.12.1997, holding that the plaintiff and defendants respectfully were entitled to one-fourth share by entitlement in the suit property. The first defendant, Sh. Bikramjeet Singh had appealed to the Division Bench by filing RFA 1/1999. In the course of Appellate proceedings, the Division Bench on 12.08.2002 recorded a subsequent development whereby the deceased second defendant''s widow, Smt. Madhuri Singh, who is the present applicant, accepted the correctness, legality and validity of the Relinquishment Deed dated 28.11.1988 and further recorded that the appeal could be appropriately disposed of and that the parties would take appropriate steps to get the shares modified.
This order - settling the rights of the applicant, Smt. Madhuri Singh, was sought to be given effect to by the Single Judge, who modified the decree on 19.02.2003, in terms of the application moved, I.A. No. 11314/2004. The applicant thereafter moved an application, I.A. No. 4552/2008, alleging that fraud had been played upon her, as the other parties to the suit, who had assured to pay her certain amounts in the year 2002 had not honored their commitments. During the pendency of that application, and during the hearing of the application along with other applications, another application, being I.A. No. 12781/2009 was moved by Ms. Madhuri Singh. It would be necessary to extract the material averments in that application, which are in the following terms:
XXXXXX XXXXXX XXXXXXX 8. That Defendant No. 2, Smt. Madhuri Singh was in Delhi at the time of the hearing and had discussions with the Defendants No. 1B and 1D and during the course of discussions the parties arrived at a mutual settlement wherein Smt. Madhuri Singh agreed to receive a further sum of Rs. 75 Lacs (Rupees Seventy Five Lacs only) in full and final settlement of her claims under the alleged Memorandum of Family Settlement in addition to the share in the properties in Rajasthan earlier relinquished in her favour by the late father of the Defendants 1B to 1D. In view of the aforesaid the said Smt. Madhuri Singh admits and reiterates the correctness, legality and validity of the Power of Attorney dated 16th April, 1977 and the Relinquishment Deed dated 28th November, 1988 as also her statement before the Division Bench on 12th August, 2002 as also withdrawal of her Suit No. 309 of 1994 to maintain cordial family relations. The said Smt. Madhuri Singh has also agreed and undertaken to withdraw I.A. No. 4552 of 2008 and to record that she has received all amounts due under the Memorandum of Understanding and further that all litigation and disputes between her and the heirs of Defendant No. 1 with regard to the Suit property as also all properties in Rajasthan which were given over to her would stand resolved and never be raised in future.
That the sum of Rs. 75 Lacs (Rupees Seventy Five lacs only) has been paid over to the said Smt. Madhuri Singh vide cheque No. 825502 dated 3rd October, 2009 drawn on Central Bank of India, New Delhi South Extension, New Delhi - 110 049 in full and final settlement of all her claims to the suit property including under the said alleged Memorandum of Family Settlement and she agrees and undertakes to withdraw the said I.A. No. 4552 of 2008 and all claims whatsoever against Defendants 1B to 1D, agreeing and undertaking not to raise any dispute regarding the Relinquishment Deed dated 28th November, 1988 or to make any claim with regard to the suit property i.e. 54 Friends Colony, East, New Delhi in future.
In view of the aforesaid, it is submitted by the parties that the above compromise be taken on record and I.A. No. 4554 of 2008 be dismissed as withdrawn since Smt. Madhuri Singh, Defendant No. 2 confirms and abides by her statement dated 12th August, 2002 before the Division Bench and accepts the legality, validity and correctness of the Relinquishment Deed dated 28th November, 1988 and satisfaction of all claims under the Memorandum of Family Settlement and that she confirms and declares that she has no share, right, title or interest in the Suit property i.e. 54, Friends Colony, East, New Delhi.
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The applicant, Smt. Madhuri Singh, therefore, requested the Court to take on record the said application and dismiss I.A. No. 4552/2008 as withdrawn in view of the settlement disclosed by her, said to have been arrived at with other parties. Since hearing on I.A. No. 4552/2008 and related applications had been concluded, the Court reserved the matter and thereafter proceeded to pass orders on 10.11.2009. It would be useful and instructive to notice at this stage the discussion pertaining to the applicant, Smt. Madhuri Singh''s contentions regarding the claim for recall of the earlier orders of Court, which had modified the decree. They are to be found in para 12 of the judgment, which reads as follows:
XXXXXX XXXXXX XXXXXX 12. The Court has carefully considered the submissions of all the parties. What Ms. Madhuri Singh alleged initially in I.A.-4552/2008 was not so much that the orders of this Court were tainted by fraud, as much as the emphasis that she was not paid the amounts agreed to by the first defendant in terms of the family settlement dated 08.04.2002. Significantly, I.A.-4552/2008 does not say that Suit No. 309/1994 which was withdrawn on 10.04.2002 was done incorrectly or that it was tainted by fraud. Though general allegations of mis-representation or fraud are made, the tenor of the averments is such that Ms. Madhuri Singh was aggrieved because the amounts that were to be received by her were not paid. This grievance, to an extent, was understandable - even though the language used could not be justified. If one sees the entirety of circumstances from this perspective, the agreement arrived at by the parties during the pendency of the hearing on I.A.-4552/2008 appears to be logical. The legal heirs (of defendant No. 1) - who had died during the interregnum after 2002 - agreed to pay the amounts to Ms. Madhuri Singh and in fact did so as recorded in I.A.-12781/2009. Having regard to these facts and further that Ms. Madhuri Singh was present in the Court and affirmed statements made in the application after duly identifying her signatures on the application and the affidavit, the Court is satisfied that the claim in I.A.-12781/2009 is justified. Accordingly, I.A.-12781/2009 has to be allowed; I.A.-4552/2008 is, therefore, to be dismissed as withdrawn.
XXXXXX XXXXXX XXXXXX
The Court had been informed, in the meanwhile, that Smt. Madhuri Singh had sought to create third-party rights and agreed to sell her �th share or interest for a total consideration of Rs. 2.25 lakhs to Sh. Manchanda for which she received an advance of Rs. 10 lakhs.
Having regard to the totality of the circumstances, the Court disposed of the applications in the following terms:
XXXXXX XXXXXX XXXXXX 15. This Court has carefully considered the submissions. Apart from the fact that there was no attachment of the property, the third party/vendee was aware of the status of the property - he most certainly was aware that it is family property in respect of which even if the vendee conveyed a fractional or undivided but determined share and had clear title, he could nevertheless not be compelled to handover possession, for which independent litigation had to be pursued. Besides the third party was aware of the present litigation and nowhere disputes this as he sought for impleadment in this case. The record would establish that at least after 19.02.2003, Ms. Madhuri Singh ceased to have any share as the decree was amended conferring 50% share upon the first defendant. All these circumstances would show that the transaction whereby the vendee (Mr. Manchanda) agreed to purchase 1/4th share was purely speculative and perhaps premised upon a contingency of this Court recalling its previous order dated 19.02.2003. These facts would ordinarily have been sufficient for the Court to decline passing any orders and straightaway rejecting the said third party''s applications. However, the Court is mindful of the fact that Ms. Madhuri Singh did receive some amounts and that the third party to that extent requires to be restituted by an appropriate order. Furthermore, Ms. Madhuri Singh along with legal representatives of defendant No. 1 has applied to the Court for withdrawal of her application which had in the first instance resulted in hearings. In these circumstances, Ms. Madhuri Singh is directed to return the said amount of Rs. 10,000,00/- (Rs. Ten lakhs) to the applicant in I.A. Nos. 6732/2009, 6733/2009 and 12822/2009 (Mr. Manchanda) together with interest @ 9% per annum till 31.10.2009. The said amount shall be paid within six weeks from today and a suitable affidavit agreeing to it shall filed by Ms. Madhuri Singh in this regard within two weeks from today.
XXXXXX XXXXXX XXXXXX
The applicant contends in I.A. No. 2995/2010 that the conduct of the legal representatives of the first defendant, i.e. Defendant Nos. 1(b) to 1(d) is such that they have continuously played a fraud on her. It is pointed-out by the Learned Senior Counsel that the parties had entered into a compromise as far back as 08.04.2002. He relies upon the terms of the said document, which is part of the record, being an Annexure to I.A. No. 4552/2008, and submits that Smt. Madhuri Singh was in its terms entitled to Rs. 1 crore. He also pointed to a document (a memorandum of understanding) said to have been entered into with the first defendant and a third-party whereby the amount of Rs. 2.5 crores was agreed to be paid to her. This document has not been produced either along with I.A. No. 12781/2009 or even with the present application, I.A. No. 2995/2010. In fact, it finds mention only in a rejoinder to the reply to the non-applicant first defendant.
It is submitted that Smt. Madhuri Singh was misled into withdrawing I.A. No. 4552/2008 for the original amount agreed to by her, i.e. Rs. 75 lakhs. Learned Counsel relied upon the orders of the Court to say that the valuation for the purpose of final decree settled by the existing parties to the suit is to the tune of Rs. 81 crores. It is submitted that in these circumstances, the dishonor of the cheque furnished by the Defendant Nos. 1(b) to 1(d) to her confirms an existing reality that she was victim of fraud and that the previous order has to be recalled and her one-fourth entitlement to the suit property restored.
The non-applicant, the first defendant''s legal representatives presses the application, pointing-out that Smt. Madhuri Singh had voluntarily signed I.A. No. 12781/2009 and had appeared in Court which had recorded her statement. It is submitted that soon after becoming aware of the dishonor of the cheque for Rs. 75 lakhs, an application was moved, I.A. No. 3899/2010, for permission to pay the said amount through a Demand Draft, which was not accepted by Smt. Madhuri Singh. It is submitted that the orders of the Division Bench dated 12.08.2002, having become conclusive and in view of the further order of this Court permitting withdrawal of I.A. No. 4552/2008, the present application by Smt. Madhuri Singh is not tenable.
The petitioner in CCP 68/2010, Sh. Y.S. Manchanda is aggrieved by Smt. Madhuri Singh''s default in depositing the amount and states that even though an independent suit has been filed for specific performance, the same does not absolve Smt. Madhuri Singh from her obligation to pay the amount which had been collected by her.
The above discussion would reveal that Smt. Madhuri Singh had appeared before the Division Bench on 12.08.2002, which led to the Court recording that she had accepted the legality of relinquishment deed. Subsequent to this, the Court also amended the decree on 19.02.2003. On both the occasions, Smt. Madhuri Singh was represented by counsel. In fact, the order of 12.08.2002 of the Division Bench records that she was present in Court. The order of this Court dated 10.11.2009 notes an additional fact, i.e. withdrawal of CS (OS) 309/1994 filed by Smt. Madhuri Singh. No attempt was made in any proceedings to challenge that withdrawal.
In the opinion of the Court, the attempt of Smt. Madhuri Singh to get the order dated 10.11.2009 recalled is not tenable. On at least two occasions, she appeared before the Court and submitted that a settlement, where she was to be paid Rs. 75 lakhs, had been voluntarily entered into by her. The averments made in that application have been extracted in the previous part of this order; they also find place in the order of 10.11.2009. That the cheque presented to her by the first defendant was not honored is her principle grievance, for which she can seek recourse through remedies available in law. However, that aspect cannot lead the Court to conclude that fraud was played upon by the defendants and that they never intended to honor their commitments. In the circumstances, the Court is satisfied that the application, I.A. No. 2995/2010 is not justified. In parting, the Court also notices that the attempt by Smt. Madhuri Singh to mention about a Memorandum of Understanding, which entitled her to Rs. 2.5 crores (is said to have been entered into with the first defendant sometime before 10.11.2009). However, the application, I.A. No. 12781/2009 is significantly enough silent on this. Furthermore, no such document was ever presented or shown to Court. Even no documents have been supplied in support of I.A. No. 2995/2010 - it has been supplied only as an annexure to the rejoinder. In the circumstances, the Court is satisfied that I.A. No. 2995/2010 cannot be accepted.
The above observations would have been dispositive of the proceedings. However, this Court was of the opinion that even though the time sought by Smt. Madhuri Singh to previous order''s recall cannot be countenanced in law, there is some merit in her approaching the Court as originally as in 2002, when she was promised the sum of Rs. 1 crore. Subsequently, in the year 2009, she was promised a sum of Rs. 75 lakhs. It is not disputed by any party that what has been paid to her is Rs. 10 lakhs in 2002. In the circumstances, the Court expressed during the hearing that the first defendant ought to make payment of amounts having regard to the passage of time. At this, the Learned Counsel for the first defendant submitted that the further amount of Rs. 25 lakhs would be paid to the applicant, Smt. Madhuri Singh within two weeks, by Demand Draft No. 016848 797211002 for Rs. 75 lakhs dated 18.03.2010 drawn on Axis Bank Ltd., Service Branch, New Delhi as tendered by Sh. Janendra Lal, learned counsel. Ms. Amrit Kaur Oberoi, Learned Counsel states that she has no instructions to accept the same. In the circumstances, the first defendant is deemed to have complied with the Court''s order so far as payment of Rs. 75 lakhs is concerned. It is open to the applicant, Smt. Madhuri Singh to accept the same at a later date, however, notifying Sh. Janendra Lal, Learned Counsel in this regard. The balance amount of Rs. 25 lakhs, further to this Court''s directions shall be paid by the first defendant, to Smt. Madhuri Singh, within two weeks, through Demand Draft to be handed-over, to her counsel. Having regard to the previous discussion in I.A. No. 2995/2010, the applicant, Smt. Madhuri Singh is granted four weeks'' time to comply with the Court''s directions and deposit the sum of Rs. 10 lakhs with interest @ 9% for period 01.01.2010 till deposit. I.A. Nos. 2995/2010 and 2996/2010 are disposed of in the above terms.
CCP 68/2010
In view of the orders made today in I.A. Nos. 2995/2010 and 2996/2010, the Court is not inclined to entertain the contempt proceedings. The same is accordingly disposed of.
CS(OS) 3235/1988
List on 20.08.2010.