HARI MOHAN SHARMA & ORS. vs C.S.R POULTRY RESEARCH & BREEDING FARMS & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd November, 2023
Pronounced on:05th January , 2024
CS(OS) 1511/1991 & I.As. 11468/2023, 2421/2023, 1758/2022
HARI MOHAN SHARMA & ORS. ….. Plaintiffs
Through: Ms. Neelima Tripathi, Sr. Advocate with Mr. Apoorv P. Tripathi, Mr. Dheeresh K. Dwivedi & Mr. Apaan Mittal, Advocates for P-1 & 3.
Ms. Ekta Mehta & Ms. Zainab Khan, Advocates for P-5.
Mr. Rajesh Yadav, Sr. Advocate with Ms. Ruchira V. Arora, Advocate for P-6.
versus
C.S.R POULTRY RESEARCH & BREEDING FARMS & ORS.
….. Defendants
Through: Ms. Neelima Tripathi, Sr. Advocate with Mr. Apoorv P. Tripathi, Mr. Dheeresh K. Dwivedi & Mr. Apaan Mittal, Advocates for D-5.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 1757/2022 (u/O XXIII Rule 3 r/w Section 151 of CPC by the Plaintiff No. 6 for setting aside Compromise Deed dated 25.01.2019)
I.A. 2420/2023 (u/O XXIII Rule 3 r/w Section 151 of CPC by the Plaintiff Nos.5 & 4(vi) for setting aside Compromise Deed dated 25.01.2019)
1. The present Applications under Proviso to Order XXIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908) have been filed on behalf of the applicant/plaintiff No. 6/ Sh. Inder Pratap Singh Akoi and applicant/plaintiff No. 5/ Smt. Manju Mishra respectively, to set aside the Compromise Decree dated 25.01.2019 in the present Suit.
2. The plaintiffs, including the present applicants who are plaintiff No.6/Inder Pratap Singh Akoi in I.A. 1757/2022 and plaintiff No.5/ Smt. Manju Mishra in I.A. 2420/2022 respectively, had filed the Suit for Specific Performance with the following prayers: –
(i) A decree for specific performance be passed in favour of the plaintiffs and against the defendants 1-3, directing them to specifically perform the agreement dated 14.9.1990 and transfer possession of the property at Village Ghitorni (New Delhi) and Village Narsinghpur (Haryana) to the plaintiffs along with title by means of a sufficient instrument.
(ii) Such interim or other and further relief and in such form as the Court deems proper, be also granted.
(iii) A decree for recovery of Rupees ten lakhs for damages be passed and pendente lite damages/mesne profits @ Rupees three lakhs per month plus interest at bank rate be also passed in favour of the plaintiff and against Defendants 1 to 3.
(iv) Such orders as the Court deems proper be also passed against Defendant No. 4 Punjab & Sind Bank. The Bank be directed to hand over the title deeds to the plaintiffs.
(v) Cost of the suit and such other and further relief as the Court deems proper be also awarded.
3. The matter was eventually compromised between the plaintiffs and defendants and the Application bearing I.A. No. 1452/1994 was filed by all the six plaintiffs under Order XXIII Rule 3 C.P.C. for recording of the compromise. As the suit lingered on; another I.A. No. 10905/2010 was filed on behalf of plaintiff No. 1, 3 and Harish Ahuja under Order XXIII Rules 1 and 3 which again remained pending till 2019 when the present Suit for Specific Performance of Agreement to Sell was decreed in terms of these two applications vide Order dated 25.01.2019.
4. At the time of passing the Compromise Decree on 25.01.2019, the plaintiff No. 6/Inder Pratap Singh Akoi opposed the Compromise Decree in terms of the pending application bearing No. I.A. 1452/1994 wherein he had asserted that the signatures of the plaintiff No. 6/Inder Pratap Singh had been forged on the Compromise Application. The plaintiff No.6 had preferred an Application Crl.M.A. 4769/2013 under Section 340 of the Code of Criminal Procedure, 1973 which was pending. An Application bearing I.A. No. 7176/2013 under Order I Rule 10(2) of CPC, 1908 for deletion of plaintiff No. 2/M/s Moti Board Industries Pvt. Ltd. filed by the plaintiff No. 6/Inder Pratap Singh Akoi, was also pending.
5. The contentions on behalf of the plaintiff No. 6/Inder Pratap Singh Akoi were recorded by the predecessor Judge of this Court and the application was disposed of with the observations that plaintiff No. 6/Inder Pratap Singh Akoi was agitating interests, adverse to plaintiff No. 1/Harimohan Sharma and plaintiff No. 3/Gajender Singh. The inter se disputes between the Agreement Purchasers cannot come in the way of Decree of Specific Performance of Agreement to Sell in terms of the I.A. No. 1452/1994 inter se the plaintiffs and the defendants and that the Decree passed in the present Suit was held not to affect any claims of plaintiff No. 6/Inder Pratap Singh Akoi against the co-plaintiffs. A Compromise Decree was thus, passed and the money deposited in the Court was directed to be released in terms of I.A. 1452/1994 and I.A. 10905/2010. All the applications were also accordingly disposed of.
I.A. 1757/2022 Application by plaintiff No. 6/ Inder Pratap Singh Akoi for setting aside the Compromise Decree under Proviso to Rule 3 of Order 23 CPC:
6. The plaintiff No. 6/ Inder Pratap Singh Akoi/ applicant has filed the present application to set aside the Compromise Deed dated 25.01.2019 on the following grounds: –
i. There was no determination whether the compromise was lawful, before the Compromise Decree was passed.
ii. The Order XXIII Rule 3 of CPC, 1908 requires the Compromise Agreement to be in writing and signed by the parties. The signature of plaintiff No. 6/Inder Pratap Singh Akoi on the compromise application bearing I.A. No. 1452/1994 was forged as is evident even to the naked eye when the admitted signatures are compared to the alleged signatures on the application.
iii. The relief in the suit was sought by all the plaintiffs whereas in the Application bearing No. 1452/1994, the relief was sought only for the plaintiff Nos. 1 to 5 thereby deliberately excluding the plaintiff No. 6/Inder Pratap Singh Akoi.
iv. Legality and validity of the alleged Nomination dated 05.01.1991 and its effect were never examined or determined. The alleged nomination was not an assignment of rights in immoveable property. Moreover, the alleged nomination was without consideration and was not a concluded Contract. No further contract finalizing the terms of transfer of rights of the applicant/plaintiff No. 6/Inder Pratap Singh Akoi under the Agreement dated 14.09.1990 was ever made.
v. The Nomination dated 05.01.1991 was neither registered nor written on Stamp Papers of proper denomination. It is a void document and not enforceable under Section 23 of the Indian Contract Act.
vi. Since the rights were sought to be released/relinquished/transferred/assigned under the Agreement in respect of immoveable property, the payment of consideration was mandatory without which it cannot be a legal, valid or enforceable Contract. The bare perusal of alleged nomination would show that it was never accepted by the plaintiff No. 2 as it did not bear his signatures. The assignment of right could have been only by a bilateral Contract which the alleged Nomination dated 05.01.1991 was not.
vii. No consent to this changed situation was ever given by plaintiff No. 6/Inder Pratap Singh Akoi. He never rescinded/abandoned/waived off his rights under the Agreement to Sell which continue to exist even today.
viii. When the applicant/plaintiff No. 6/Inder Pratap Singh Akoi made payment of Rs. 8,00,000/- under the Agreement to Sell dated 14.09.1990 which was the subject matter of the Suit, it is unbelievable that the plaintiff No. 6/Inder Pratap Singh Akoi would abandon or transfer his rights for free.
ix. The rights of the plaintiff No. 6/Inder Pratap Singh Akoi have not been adjudicated/determined in this Suit arising from the Agreement to Sell dated 14.09.1990 and his exclusion from the litigation was mala fide and fraudulent. The plaintiff No. 6/Inder Pratap Singh Akoi cannot be deprived of his legitimate 1/5th share in the suit land.
x. Further, the Application bearing No. 1452/1994 does not bear his signatures and it cannot bind him.
xi. Furthermore, the plaintiff Nos. 1 and 3 in their Reply to the application of plaintiff No. 6/Inder Pratap Singh Akoi have mentioned that the plaintiff No. 2 has received all the money from the plaintiff No. 3 while the plaintiff No. 4 has received the money from plaintiff No. 1, while assigning their rights under the Agreement to Sell. When everybody else received consideration and the benefits under the Agreement to Sell, the deliberate exclusion of the plaintiff No. 6/Inder Pratap Singh Akoi without payment of consideration, is a preconceived mala fide design of plaintiff Nos. 1 to 3 and defendant No. 5.
xii. The plaintiff No. 6/Inder Pratap Singh Akoi has claimed that he had terminated/withdrawn Nomination dated 05.01.1991 made by him in favour of the plaintiff No. 2 by Notice dated 01.05.2013 which was filed by him with I.A. No. 7176/2013, but the same was not considered at the time of passing the impugned Compromise Decree. Even if it is assumed for the sake of arguments that there was a Nomination dated 05.01.1991, but it came to an end on 01.05.2013 i.e., much prior to the consideration of the compromise. The termination/withdrawal was never challenged by the plaintiff No. 2 or the plaintiffs and thus, all the rights of plaintiff No. 6/Inder Pratap Singh Akoi under the Agreement remained intact. The Court did not consider the issue of fraud, forgery and fabrication of compromise application which is apparent and evident from the record of the Court despite a specific plea being taken by the plaintiff No. 6/Inder Pratap Singh Akoi which were imperatively required to be considered before passing the impugned Compromise Decree.
xiii. Moreover, had the rights of plaintiff No. 6/Inder Pratap Singh Akoi been terminated, there was no reason why his name shouldnt have been dropped/deleted from the array of plaintiffs. The Compromise Application has been deliberately given a colour of genuineness by appending forged signatures of plaintiff No. 6/Inder Pratap Singh Akoi. He has been deprived of immoveable property in which he also had a share.
7. It is thus, submitted that for the aforesaid reasons, the Compromise Decree 25.01.2019 is liable to be set aside.
8. The plaintiff No. 1/Harimohan Singh vide his detailed Reply has taken the preliminary objection that the contentions raised in the present application for Review of Judgment/Compromise Decree dated 25.01.2019 were duly considered by the learned predecessor of this Court while passing the Decree. The only remedy available to the plaintiff No. 6/Inder Pratap Singh Akoi was to either file a Review or an Appeal against the Judgment dated 25.01.2019 and not by way of present application.
9. Furthermore, the facts on which the fraud is alleged by the plaintiff No. 6/Inder Pratap Singh Akoi was already within his knowledge at the time of passing the final Decree. Proviso to Order XXIII Rule 3 of CPC, 1908 cannot be invoked at this belated stage, when as per his own application, he had found out about the alleged fraud in 2013. The application has been filed only by 22.01.2022 which is not only barred by limitation but also by laches having been filed after more than eight years. Clearly, these averments of fraud are an afterthought and have been made solely to delay the execution of the Decree.
10. Also, the allegations of the plaintiff No. 6/Inder Pratap Singh Akoi that the plaintiff No. 1/Harimohan and plaintiff No. 3/Gajender Singh had committed a fraud by forging the signatures of plaintiff No. 6/Inder Pratap Singh Akoi on the I.A. 1452/1994 and that the plaintiff No. 6/Inder Pratap Singh Akoi had not assigned his right in the two properties, namely, agricultural land measuring 20 bighas situated in Village Ghitorni, Mehrauli and the agricultural land measuring 62 kanals 19 Marlas on the main NH-8 at 41 km. stone in Village Narsinghpur, District Gurgaon, Haryana, together known as suit properties, in favour of the plaintiff No. 2 is barred on account of constructive res judicata and the principle of estoppel.
11. Moreover, the said allegations were raised by the plaintiff No. 6/Inder Pratap Singh Akoi in Application bearing I.A. 7176/2013, CRL.M.A. No. 4769/2013 and I.A. 16419/2013 which applications have been disposed of in terms of the impugned Compromise Decree dated 25.01.2019. The plaintiff No. 6/Inder Pratap Singh Akoi after a lapse of almost 30 years of having assigned his rights in the suit properties in favour of the plaintiff No. 2, cannot re-agitate the issue which has attained finality. No specific allegation of fraud has been spelled out by the plaintiff No. 6/Inder Pratap Singh Akoi. Furthermore, the share of the plaintiff No. 1/Hari Mohan Sharma is separate and distinct to the share of the plaintiff No. 3 in whose favour the interest of the plaintiff No. 6/Inder Pratap Singh was finally assigned. The present application is, therefore, not maintainable.
12. It is further explained that the plaintiff No. 6/Inder Pratap Singh Akoi admittedly nominated and constituted the plaintiff No. 2 as his assignee on 05.01.1991 in respect of all his rights and interest under the Agreement to Sell dated 14.09.1990 which has been acknowledged by the plaintiff No. 6/Inder Pratap Singh Akoi in his Plaint and in the Assignment Document dated 05.01.1991 which records that the applicant/plaintiff No. 6/Inder Pratap Singh Akoi had nominated the plaintiff No. 2 as the purchaser. Consequent to the assignment, plaintiff No. 2 had stepped into his shoes. The nomination document also records that the execution of the Sale Deeds by the defendants in favour of the plaintiff No. 2 will discharge them of all their obligations towards the plaintiff No. 6/Inder Pratap Singh Akoi, he is now estopped from taking a contrary stand. The plaintiff No. 2 had further assigned all his rights and interest under the Agreement to Sell dated 14.09.1990 in favour of the plaintiff No. 3 by Agreement dated 24.04.1993 for a consideration of Rs. 50,00,000/- which was paid through cheques, details of which are mentioned in the Agreement itself. Therefore, neither the plaintiff No. 6/Inder Pratap Singh Akoi nor plaintiff No. 2 were left with any right or interest in the suit properties.
13. It is further submitted that in the Agreement to Sell dated 14.09.1990 which was signed by the plaintiff No. 6/Inder Pratap Singh Akoi, he never stated that any money was paid by him. In fact, it is only in the application under consideration that the plaintiff No. 6/Inder Pratap Singh has alleged for the first time that he had paid the money under the Agreement to Sell. On the contrary, both plaintiff Nos. 2 and 3 had paid substantial money for acquiring the suit properties which position was clarified by the plaintiff Nos. 1 and 3 in their Reply to I.A. 16419/2013. It was explained that though the plaintiff No. 6/Inder Pratap Singh Akoi was the signatory to the Agreement to Sell, but he had not paid any consideration towards the Agreement. Moreover, no details of the amounts paid by the plaintiff No. 6/Inder Pratap Singh Akoi are mentioned anywhere. The fact that the plaintiff No. 6/Inder Pratap Singh Akoi had nominated the plaintiff No. 2 as the purchaser and unequivocally assigned his rights in the suit properties is also fortified by the fact that no steps were taken by him from 1994 to 2013 in respect of the document of nomination.
14. It is asserted that contradictory stands have been taken by the plaintiff No. 6/Inder Pratap Singh Akoi in the present application and in I.A.7176/2013 wherein he had claimed that he had assigned his interest to the plaintiff No. 2 upon an understanding that the said assignment was tentative in nature and when a formal Agreement is executed, later, the plaintiff No. 6/Inder Pratap Singh shall share the interest in the suit properties with the plaintiff No. 2. However, now, the plaintiff No. 6/Inder Pratap Singh is claiming that the effect of assignment was that each of the plaintiffs share in the three properties was to be reduced from 1/5th to 1/6th.
15. On merits, all the contentions made in the present application have been denied and it is submitted that the present application is without merit and is liable to be set aside.
16. The Plaintiff No.3/Gajendra has filed a separate Reply taking similar defence as has been taken by the plaintiff No. 1.
17. The defendant No. 5/Harish Ahuja has stated in his Reply that on or about 31.01.1994, a compromise was apparently entered between the plaintiffs in the present Suit with defendant Nos. 1, 2 and 3. Accordingly, I.A. 1452/1994 was filed under Order XXIII Rules 1 and 2 of CPC, 1908 praying for a Decree of Specific Performance in favour of the plaintiff Nos. 1 to 5 in terms of the compromise entered between them, whereby it was agreed that Conveyance Deed for a total consideration of Rs. 1.08 crores instead of previously decided amount Rs. 1.01 crores shall be executed. The payment of Rs. 7,00,000/- was agreed to be made by the plaintiffs to the defendant Nos. 1, 2 and 3, in addition to Rs. 98,00,000/- which was already deposited with defendant No. 4/Punjab & Sind Bank and Rs. 3,00,000/- which was paid to defendant Nos. 1, 2 and 3. It was only due to objections filed by Defendant No.5, that I.A. 1452/1994 was kept pending.
18. A suit bearing CS(OS) 2278/1992 was filed by Defendant No. 5, which was consolidated with the present suit on 15.05.1998.
19. On 09.08.2010, a joint application was filed by Plaintiff No. 1and 3 and Defendant No. 5, being I.A. 10905/2010. Accordingly, the Suit was decreed in terms of their compromise.
20. It is submitted that the present application is mala fide and is not maintainable. The grounds of challenge to the application are similar to those which have been raised by Plaintiff Nos. 1 and 3.
Application I.A. 2420/2023 by the plaintiff No. 5/ Manju Mishra/ applicant to set aside the Compromise Deed dated 25.01.2019
21. The plaintiff No. 5/ Manju Mishra/ applicant has filed the present to set aside the Compromise Deed dated 25.01.2019 on the following grounds:-
i. Taking advantage of demise of plaintiff no.4 and husband of plaintiff no.5, and the fact that matter was being pursued by plaintiff no. 1 for all the plaintiffs , plaintiff No. 1, 3 and Harish Ahuja, connived amongst themselves to usurp the suit properties, alleging assignment/transfer of interests by plaintiff no. 4 to plaintiff no.1 vide Agreement to Sell dated 15.11.1994 and plaintiff no. 5 to plaintiff no. 3 vide Agreement to Sell dated 20.02.1992, and filed I.A. 10905/2010, in terms of which the suit was decreed, leaving them with no interests in the suit property.
ii. Application for bringing the LRs of deceased plaintiff no. 4 on record vide I.A. No. 16671/2011 was allowed by the Order dated 05.03.2013, which also decided upon several other applications. The Order records the specific objection of plaintiff no. 5 and the LRs of plaintiff no.4 to the purported compromise application.
iii. On 27.09.2013, on repeated failure of plaintiff no. 1 and 3 to supply alleged documents relied upon by them, alleging assignment of rights in the suit properties by plaintiff no. 5, I.A. No. 16399/2013 was filed under O. XII Rule 8 C.P.C. to produce original documents. A similar application was filed bearing I.A. No. 12253/2013, which remained pending and were not adjudicated upon before passing compromise decree dated 25.01.2019.
iv. From December, 2014 to 2018, the present suit did not proceed and adjournments were granted in view of the stay orders passed by Honble Supreme Court in a challenge to an Order of the Division Bench of this Court arising from the present suit. The stay order was apparently vacated on 16.11.2018 by passing of the final judgement.
v. The plaintiff no. 5 was oblivious to the vacation of stay order and had no knowledge of the Order dated 25.01.2019 decreeing the suit in terms of the compromise until she received notice of this Court in November 2022 in I.A. 1757/2022 and others, filed by plaintiff no.6 seeking setting aside of the Order dated 25.01.2019.
22. It is submitted that plaintiffs Nos 1, 3 and defendant no.5 deliberately misled and projected to this Court that compromise being entered into in terms of applications bearing I.A. No. 1452/1994 and I.A. No. 10905/2010 is lawful, even though the same had been effected in a clandestine manner without making Plaintiff No. 5 a party and signatory to the application bearing I.A. No. 10905/2010 in violation of Order XXIII Rule 3.
23. The plaintiff Nos 1 and 3 and defendant no. 5 vide their detailed Reply have vehemently opposed the application filed by plaintiff no.5 respectively on the following grounds:
i. The judgement and Decree dated 25.01.2019, is not a consent decree as far as plaintiff no. 5/ 4(vi) is concerned and therefore the present applications are not maintainable under Order XXIII Rule 3 of C.P.C. The enquiry that is to be made under the Order XXIII Rule 3 (proviso) has already been made, pursuant to which the compromise decree has been passed. Therefore, the only remedy available to the Applicants is to file a Review or an Appeal against the Decree dated 25.01.2019.
ii. It is a matter of record that by an Agreement dated 15.11.1994, plaintiff no. 4 assigned/ transferred his rights in favour of plaintiff no.1 for a consideration of Rs. 5,00,000/-. Likewise, by an Agreement dated 20.02.1992, plaintiff no. 5 transferred her rights in favour of plaintiff no. 3 for a consideration of Rs. 8,00,000/-. The receipt of the consideration has also been mentioned therein. Further, despite having executed the above documents, neither the applicant nor the legal heirs of plaintiff no. 4 took any steps for cancellation of the same.
iii. The present application has been filed seeking setting aside of the Judgement and Decree dated 25.01.2019, alleging that decree is vitiated by fraud and forgery. These allegations were also made by the applicant by way of filing several IAs viz. I.A. No. 16671/2011, I.A. No. 12253/2013 and I.A. no. 16399/2013 indicating that such fraud was in the knowledge of the applicant since 2013, and therefore re-agitating the same issues is barred by limitation.
iv. The contentions of the applicant that no documents indicating assignment by the applicant and late plaintiff no. 4 to plaintiff no. 1 and 3 have been brought on record; that plaintiff no.1 undertook to represent case of the applicant before this Court or that plaintiff no. 1 had taken signatures of the late plaintiff no. 4 on certain documents and misused the same, have been previously agitated by filing applications including IA. No. 16399/2013 and is barred on account of res judicata and principles of estoppel.
24. Submissions heard.
25. The first ground which is agitated on behalf of the plaintiff No. 6/Inder Pratap Singh is that since it was a consent Decree, no appeal or review was maintainable and it is only by way of application under Order XXIII Rule 3 of CPC, 1908 that the consent Decree can be challenged. In support of his application, plaintiff No. 6/Inder Pratap Singh has relied upon R.Janakiammal vs. S.K. Kumarasamy (Deceased) through Legal Representatives and Others (2021) 9 SCC 114.
26. Since the plaintiff No. 6/Inder Pratap Singh Akoi is claiming that he had not signed I.A. 1452/1994, it implies that he was not signatory to the compromise that was allegedly arrived at between the plaintiff Nos. 1 to 5. If this is the stand and contention of the plaintiff No. 6/Inder Pratap Singh Akoi, he was at liberty to file application under Order XXIII Rule 3 of CPC, 1908 which he has failed to do.
27. Furthermore, in the impugned Compromise Decree, it had been categorically observed that the Agreement to Sell between the plaintiffs and the defendants was not disputed and there was no purpose in keeping the Suit for Specific Performance pending when the defendants had no objection to the execution of the Decree of the Specific Performance in respect of the suit properties. The disputes inter se the plaintiffs and the defendants are, therefore, only in respect of the execution of the Sale Deed which in view of the defendants agreeing to execute the Sale Deed, the Suit for Specific Performance had been rightly decreed vide Compromise Decree dated 25.01.2019.
28. It is significant to note that I.A. 1452/1994 filed by the plaintiff No. 1-6 and Defendants 1-3 and I.A. 10905/2010 filed by the plaintiff No. 1, 3 and Harish Ahuja were duly considered in the Compromise Decree dated 25.01.2019 and the right of the applicants to claim a share in the suit properties inter se the plaintiffs was reserved and it was observed that the rights of plaintiff No. 6/Inder Pratap Singh Akoi and plaintiff No. 5/ Manju Mishra against plaintiff No. 1/Hari Mohan Sharma and plaintiff No. 3/Gajender shall not be affected. The applicants were therefore, at liberty to claim their share in the suit properties from the plaintiffs as per their own claims and assertions. The rights of the plaintiff No. 6/Inder Pratap Singh Akoi and plaintiff No.5/ Manju Mishra to assert their rights in the suit properties from the other plaintiffs was, therefore, preserved which the applicants have chosen not to exercise, but have filed the present applications under Order XXIII Rule 3 of CPC, 1908 in the year 2022 and 2023 respectively.
29. The plaintiff No. 6/Inder Pratap Singh Akoi has contended that a fraud has been played upon him by the other plaintiffs who had allegedly put his forged signatures on the Application bearing No. 1452/1994. Similarly, plaintiff no. 5/ Manju Mishra has contended that I.A. 10905/2010 was entered into behind her back, in a clandestine manner between plaintiffs no.1,3 and defendant no. 5.
30. It is a case where the six plaintiffs had filed the Suit in the year 1999 against the defendants seeking Specific Performance of Agreement to Sell in their favour. First application for Compromise was filed in 1994 and second in 2010 and both applications remained pending till 2019 when the suit was finally decreed as the defendants agreed to execute the Sale Deed in favour of the plaintiffs. The defendants therefore discharged their obligation and there is no fraud pleaded inter se the plaintiffs and the defendants.
31. The second aspect is the inter se disputes between the plaintiffs as to who gets what share. It is on record that the plaintiff No. 6/Inder Pratap Singh Akoi had nominated plaintiff No. 2 M/s Moti Board Industries Pvt. Ltd. as the purchaser/ his nominee as is evident from the Letter dated 05.01.1991 addressed by him to Shri Charanjit Singh Lekhi, Smt. Manjeet Kaur Rekhi and Shri Jasjit Singh and others with regard to the agricultural land in Village Ghitorni, Mehrauli and Village Narsinghpur, Haryana asking them for execution of the Sale Deed by the aforesaid three Addressees in favour of the plaintiff No. 2/M/s. Moti Board Industries Pvt. Ltd. which shall discharge the three addressees of their obligations towards him. From this Letter, it is apparent that the plaintiff No. 6/Inder Pratap Singh Akoi had entered into some Sale Agreement with the three addressees and had consented that the execution of the Sale Deed in favour of the plaintiff No. 2/M/s. Moti Board Industries Pvt. Ltd. would discharge the three addressees. Apparently, the plaintiff No. 6/Inder Pratap Singh Akoi had agreed to sell his share in suit properties to the plaintiff No. 2/M/s. Moti Board Industries Pvt. Ltd. vide nomination dated 05.01.1991for which he had already taken the sale consideration. Plaintiff No.2 thus, stepped into the shoes of Plaintiff No.6 bringing an end to the role of Plaintiff no.6 in the entire transaction.
32. The plaintiff No. 2 has thereafter entered into the Agreement to Sell dated 24.04 1993 with plaintiff No. 3/Gajendra for a Sale consideration of Rs. 50,000,00(fifty lacs). These facts are reflected in the I.A. 1452/1994 under Order XXIII Rules 1 and 2 read with Section 151 of CPC, 1908 which was filed on behalf of the six plaintiffs and the defendant Nos. 1 to 3 jointly wherein it specifically recorded that the plaintiff No. 2 has been nominated as the purchaser by plaintiff No. 6/ Inder Pratap Singh Akoi. This fact is fully corroborated by the Letter dated 05.01.1991. Whether this nomination entitled the plaintiff No. 2 to further agree to sell the properties or not is an inter se dispute of plaintiff No. 6/Inder Pratap Singh Akoi and plaintiff No. 2 with which the defendants had no concern.
33. Likewise, though the plaintiff No. 5/ Manju Mishra has claimed that the Agreement was entered into in a clandestine manner behind her back, but she herself entered into Agreement to Sell dated 20.02.1992 and had nominated plaintiff No. 3 as her nominee for a consideration of Rs. 8,00,000/- in respect of her 7% share in the land situated at Village Ghitorni. Similarly, her father plaintiff No. 4/ Om Prakash Sharma had entered into Agreement to Sell dated 15.11.1994 and had nominated plaintiff No. 1/ Hari Mohan Sharma for a consideration of Rs. 5,00,000/- in respect of his share in the land admeasuring 20 bighas in Village Ghitorni and 62 Kanals 19 Marlas in Village Narsinghpur, Haryana.
34. Significantly, even though there was some settlement between the plaintiffs and the defendants way back in 1994, but because the matter remained pending an I.A. 10905/2010 under Order XXIII Rules 1 and 3 read with Section 151 of CPC, 1908 was filed by the plaintiff Nos. 1 and 3 and the defendant No. 5, in view of further changes and compromise whereby the plaintiff No. 2/M/s. Moti Board Industries Pvt. Ltd. assigned its shares to the plaintiff No. 3/Gajender, the plaintiff No. 4 assigned his share to the plaintiff No. 1 and similarly plaintiff No. 5 assigned his share to the plaintiff No. 3 vide Agreement to Sell dated 15.11.1994 and 20.02.1992 respectively. Consequently, the interest in the properties survived in favour of the plaintiff Nos. 1/Hari Mohan Sharma and 3/Gajender along with Defendant no.5 in whose favour the Compromise Decree was made.
35. Whether the applications bearing I.A. No.s 1452/1994 and I.A. 10905/2010 had the signatures of the plaintiff No. 6/Inder Pratap Singh Akoi and plaintiff No. 5/ Manju Mishra respectively is also not relevant for determination of inter se controversy among the plaintiffs and the defendants as has been observed in the Consent Decree. There are preceding documents prima facie showing nomination and these facts have been brought on record. Further, it is only in the year 2013, when the plaintiff No. 6/Inder Pratap Singh Akoi, for the first time, started agitating the claim of his signatures on the I.A. 1452/1994 under Order XXIII Rules 1 and 2 read with Section 151 of CPC, 1908 to be forged. Likewise, applicant/ plaintiff No. 5 was aware of IA No. 1452/1994 and IA No. 10905/2010 in 2011, when an application bearing IA No. 16671/2011 for impleadment by LRs for Om Prakash Sharma, the deceased plaintiff no. 4 was filed.
36. Be that as it may, right of plaintiff No. 5/ Manju Mishra and plaintiff No. 6/Inder Pratap Singh Akoi to set-up their independent claim against the plaintiffs, was preserved by the impugned Consent Decree wherein it has been rightly observed that rights of any of the plaintiffs, including the applicant/plaintiff No. 6/Inder Pratap Singh Akoi in I.A. 1757/2022 and applicant/ Plaintiff No. 5 in I.A. 2420/2023 against plaintiff No. 1/Hari Mohan Sharma and plaintiff No. 3/Gajender and Harish Ahuja would not be affected by this Consent Decree.
37. The inter se controversy of alleged fraud having been committed by one plaintiff against the other, would entail different pleadings. Moreover, each plaintiff had a different ground of challenge against the co-plaintiff. Even if the suit was continued, they would not have been able to introduce absolutely new cause of action with which defendants had no concern; it would have led to multiple distinct cause of actions being rolled into one suit, making this suit bad for misjoinder of various unconnected cause of action and the parties too.
38. Accordingly, the application of the plaintiff No. 6/Inder Pratap Singh Akoi and the application of the plaintiff Nos.5 & 4(vi) seeking to set aside the Compromise Decree dated 25.01.2019 are without merit and are hereby dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 05, 2024/S.Sharma
CS(OS) 1511/1991 Page 19 of 19