DALJEET SINGH vs M/S JOHAR TOWERS PVT.LTD.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13thNovember, 2024
+ RFA 263/2003
DALJEET SINGH …..Appellant
Through: Mr. Sangram Jai Singh, Advocate with appellant in-person.
versus
M/S JOHAR TOWERS PVT.LTD. …..Respondent
Through: Mr. Ajay Verma, Senior Advocate with Mr. Vishesh Wadhwa and Ms. Swadha Gupta, Advocates.

HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
CM APPL. 47591/2022
CM APPL. 34855/2023
By way of CM APPL. No. 47591/2022 filed under Order XLIII Rule 1A(2) of the Code of Civil Procedure 1908 (‘CPC’), the appellant seeks recall of order dated 24.05.2012 made in the present proceedings, whereby the present regular first appeal alongwith RFA No.193/2003, were disposed-of as settled and satisfied in terms of the observations in that order; or, in the alternate, for modification of that order and a direction to the respondent to obtain a sanctioned building plan from the Municipal Corporation of Delhi (‘MCD’) alongwith the structural building certificate to comply with that order. By way of CM APPL. No. 34855/2023 filed under section 151 CPC, the respondent seeks dismissal of CM APPL. No. 47591/2022 and modification of order dated 31.01.2023 passed by this court, whereby the respondent was directed to take steps for regularisation of property being the Third Floor of property bearing No. B-2/88, Safdarjung Enclave, New Delhi (‘suit property’).
2. Notice on CM APPL. No. 47591/2022 was issued on 09.11.2022. No formal notice was issued on CM APPL. No. 34855/2023 and vide order dated 12.07.2023, it was observed that this application would be considered alongwith CM APPL No. 47591/2022.
3. The record shows that vide order dated 12.07.2023, the delay of about 3717 days in filing CM APPL. No. 47591/2022 was condoned and further proceedings in the execution petition pending before the learned Additional District Judge, Saket District Court, New Delhi (‘ADJ’), arising from compromise order dated 24.05.2012, were stayed by this court, until further orders.
BRIEF BACKGROUND
4. The matter arises from 02 suits decided by the learned Trial Court. Suit No. 374/98 was filed by the respondent/M/s Johar Towers Pvt. Ltd. inter-alia seeking declaration, possession and mesne profit against the appellant in respect of the suit property; and Suit No.25/2000 was filed by the appellant/Daljeet Singh seeking specific performance of agreement to sell dated 22.03.1997. Both suits were dismissed vide common judgment dated 21.11.2002 and the connected appeals arising from that judgment were disposed-of by this court vide compromise order dated 24.05.2012.
5. A perusal of compromise order dated 24.05.2012 shows that it proceeded on an agreement between the parties that the appellant would pay to the respondent an additional sum of Rs. 59 lacs, in consideration whereof the respondent was required to execute in favour of the appellant a sale deed in respect of the suit property and to have the sale deed registered in accordance with law. Order dated 24.05.2012 is reproduced below :
“1. During the course of hearing, it is agreed that M/s. Johar Towers Pvt. Ltd./appellant will receive a total sum of Rs.59,00,000/- from Sh. Daljeet Singh/respondent in full and final settlement of all the claims of M/s. Johar Towers Pvt. Ltd./appellant against Sh.Daljeet Singh/respondent. This payment shall be made on or before 31.10.2012. The payment of this amount will be made simultaneous to the execution of the sale deed by M/s. Johar Towers Pvt. Ltd./appellant in favour of Sh.Daljeet Singh/respondent qua the suit property namely the third floor of B-2/88, Safdarjung Enclave, New Delhi. In case the amount of Rs.59,00,000/- is not paid on or before 31.10.2012, then, from 1.11.2012 this amount of Rs.59,00,000/- will carry interest at 18% per annum simple, and the total amount then payable will be a charge in favour of M/s. Johar Towers Pvt. Ltd./appellant against the suit property.
2. The expenses of the stamp duty and the registration charges with respect to the sale deed will be borne by Sh.Daljeet Singh.
3. The amount which has to be paid by Sh.Daljeet Singh/respondent to M/s. Johar Towers Pvt. Ltd./appellant can be paid either directly to M/s. Johar Towers Pvt. Ltd./appellant or through their Advocate Sh. Vijay Kishan or the same can be deposited in the Court.
4. As already stated above, on the amount being paid or deposited in this Court, Sh.Daljeet Singh/respondent will be entitled to execution of the sale deed of the suit property in his favour or in the name of his wife, i.e. Mrs. Dagmar Iris Hiemer.
5. With the disposal of these appeals in terms aforesaid no disputes will remain between the parties of any nature whatsoever qua the suit property and all the disputes will stand settled and satisfied. It is further clarified that the amount of ?59,00,000/- which is payable by Sh.Daljeet Singh/respondent to M/s. Johar Towers Pvt. Ltd./appellant will be an additional amount to all the amounts which have already been paid to M/s. Johar Towers Pvt. Ltd/appellant including an amount of ?4.5 lacs paid pursuant to the order dated 20.2.2009 of ASJ, Delhi.
6. After the sale deed is executed in favour of Sh. Daljeet Singh/respondent on his making payment of the aforesaid amount, Sh.Daljeet Singh/respondent will take steps to withdraw the criminal complaints filed by him, of course, in accordance with law. Parties will also take steps to amicably compound the offence under Section 138 of the Negotiable Instruments Act, 1881 being the subject matter of Crl.R.P. 334/2009.
7. Parties are left to bear their own costs. Appeals are disposed of as settled and satisfied in terms of the above said observations. Trial Court records be sent back.”
(emphasis supplied)
6. A decree-sheet was also drawn-up in the terms of the compromise contained in order dated 24.05.2012.
7. The court has heard Mr. Sangram Jai Singh, learned counsel representing the appellant and Mr. Ajay Verma, learned senior counsel appearing on behalf of the respondent.
APPELLANT’S SUBMISSIONS
8. Mr. Singh has argued that the appellant had reluctantly agreed to the terms of compromise which were recorded in the course of hearing vide order dated 24.05.2012 with the only intent and purpose that he would get a clear title to the suit property without having to go through prolonged litigation. Counsel submits, that in fact the appellant tendered to the respondent a banker’s cheque dated 08.02.2013 for Rs.61,59,000/- (i.e. Rs. 59 lacs alongwith interest) in compliance with the terms of the compromise between the parties and as per the directions and observations contained in orders dated 29.01.2013 and 25.02.2013 passed in CRL.REV.P. No.334/2009 (as extracted below).
9. However Mr. Singh has pointed-out, that surprisingly, on 04.05.2013 the respondent, through its Director Mr. Pritam Johar, proposed a draft sale deed which recited that the subject floor does not have a sanctioned plan; that the sale deed would be executed in relation only to a part of the subject floor comprising 550 sq. ft. (as against the 1550 sq. ft. claimed by the appellant) with only a 9% undivided share in land; and that the respondent would reserve the right to construct another floor on top of the subject floor subsequently.
10. Mr. Singh has further submitted, that vide order dated 31.01.2023 the MCD was directed to inspect the suit property and to file a status report indicating whether the construction in the property is in accordance with a sanctioned plan or whether it was unauthorised construction. Counsel has pointed-out, that vide status report dated 10.07.2023 filed by the MCD, they stated that the suit property is ‘regularisable’ – meaning that the construction had been raised without a sanctioned building plan and was therefore unauthorised in the first place – but could be regularised in light of the floor-wise policy of the MCD. The relevant portion of the status report reads thus :
“7. That it is also submitted that as regard Third floor of the suit property which is though without Sanction Building Plan, but the same can also be regularized in light of the prevailing floor wise policy of answering Respondent — MCD, however, the owner / applicant is required to comply with the requisite conditions as mentioned in the policy.… …”
(emphasis supplied)
11. In the circumstances, it was argued that for the reasons summarised above, the respondent has defaulted in complying with the terms of the ‘compromise’ between the parties that had materialised in the course of the hearing on 24.05.2012 despite the appellant having complied with the terms of the compromise on his part; and that therefore the appellant seeks recall of order dated 24.05.2012;or alternatively, for a direction modifying that order, directing the respondent to get a sanctioned plan from the MCD alongwith the structural building certificate, so as to comply with that order.
12. In support of his contentions, in particular to assert the maintainability of his application to set-aside the compromise, Mr. Singh has relied upon the decision in Triloki Nath Singh vs. Anirudh Singh (D) Thr. LRs & Ors.1, to submit that Order XXIII Rule 3-A CPC puts a specific bar that no separate suit shall lie to set-aside a decree on the ground that the compromise on which the decree is based was not lawful. It was argued that the underlying scheme of Order XXIII Rule 3 CPC is to avoid multiplicity of litigation and the court must never be a party to imposing a compromise upon an unwilling party, stating that the appellant was in a sense coerced into agreeing to the terms of the compromise, and it now transpires that the respondent itself has not complied with those compromise terms, which entitles the appellant to seek recall of the compromise order.
13. Mr. Singh has also cited the decision in Pushpa Devi Bhagat vs. Rajinder Singh & Ors.2, to submit that the only remedy available to a person to avoid a consent decree, to which he is a party, is to approach the court which recorded the compromise and establish that there was no valid compromise. It was argued that a consent decree is nothing but a contract between the parties, superimposed with the seal of approval of the court; and its validity depends on the validity of the agreement or the compromise based on which it is made.
RESPONDENT’S SUBMISSIONS
14. To begin with, Mr. Ajay Verma, learned senior counsel appearing for the respondent has raised the following two preliminary objections against the relief sought by the appellant in the present proceedings :
14.1. Learned senior counsel has argued that Order XLIII Rule 1A(2) CPC provides the right to challenge a compromise decree, resulting from an otherwise non-appealable order, by filing an appeal and not by way of an application before the same court which passed the decree. Moreover, Mr. Verma contends that in the present case the appellant has not even assailed the consent decree dated 24.05.2012 but has only challenged the order recording the compromise between the parties, which challenge is not maintainable in law;
14.2. Mr. Verma has further argued that since the appellant has filed an application under Order XLIII Rule 1A CPC against compromise order dated 24.05.2012 only in RFA No.263/2003, and not in the connected RFA No. 193/2003, the decree passed in the connected appeal will continue to operate as res judicata, even if the court were to set-aside the compromise order in the present RFA No. 263/2003. In support of this contention, Mr Verma has placed reliance upon a decision of the Supreme Court in Sri GangaiVinayagar Temple & Anr. vs. Meenakshi Ammal & Ors.3, the relevant extract of which reads as follows :
“27. Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by Section 151 CPC, as clarified by this Court in Chitivalasa Jute Mills v. Jaypee Rewa Cement [(2004) 3 SCC 85]. In the instance of suits in which common issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that the appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a “former suit”. If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the processual law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.”
(emphasis supplied)
15. Mr. Verma has further contended that even if the application is treated to be one under Order XXIII Rule 3 CPC, the relief being sought by way of the application must fail for the following reasons :
15.1. Relying on R. Janakiammal vs. S.K. Kumarasamy & Ors. and connected matter,4 Mr. Verma has argued, that reading Order XXIII Rule 3 CPC with its Proviso and the Explanation, it is clear that an agreement or compromise, which is void or voidable under the Indian Contract Act 1872, cannot be recorded by the courts and even if it is recorded, on challenge, the court that made such recording can decide the question of its validity. Senior counsel has thereby argued that the court could never have recorded the compromise in order dated 24.05.2012 had there been any element of coercion upon the appellant, which belies the appellant’s allegation that he was coerced into agreeing to the terms of the compromise;
15.2. Senior counsel has also submitted, that there is no dispute that the agreement recorded in compromise order dated 24.05.2012 was ‘arrived at’ between the parties. Mr. Verma has pointed-out that order dated 24.05.2012 has in fact been signed by the parties; and thereafter, for about 10 years the appellant never alleged that the agreement was reached by any coercion, fraud or misrepresentation. It has therefore been submitted, that the compromise order is a ‘lawful agreement’ which was ‘arrived at’ in open court and cannot be termed as void or voidable under the Contract Act.
16. On the aspect of the suit property being unauthorised construction, Mr. Verma has submitted, that even before entering into the compromise, the appellant was well-aware that the suit property was not regularised. Senior counsel has drawn attention to the following portion of W.P.(C) No. 3871/2008 titled Shri Daljeet Singh vs. Municipal Corporation of Delhi & Ors., filed by the appellant inter-alia seeking orders restraining the demolition of the suit property, that was proposed at that time :
“9. That the petitioner received a letter from respondent No.2 regarding the unauthorised construction from basement to third floor. In response to the same the petitioner gave the representation informing them that since the matter pertaining to the said property is pending in the Delhi High Court, therefore he may be given time so that he get the sale deed registered in his favour as well as get the said unauthorised construction regularised. … …
* * * * * *
“11. That the petitioner if the matter which is subjudice in the High Court is held in his favour, in that case the respondent No.3 would have to execute the sale deed in favour of the petitioner and then petitioner would be able to get the said construction on the terrace floor/third floor regularised on the payment of regularisation charges and in fact the petitioner is ready and willing to do so even now and he undertakes not to claim any interest on his payment on the said charges in case the appeal pending adjudication is decided against him.
* * * * * *
“PRAYER
a) … … …
b) In the alternative direct the respondent No.3 or allow the petitioner himself to get the regularisation of the aforesaid property on the payment of regularisation charge and the petitioner undertakes not to claim the said amount or the interest accrued thereon on the said amount in case the aforesaid appeal is decided against the petitioner.
c) … … … ”
(emphasis supplied)
17. Mr. Verma has further submitted, that the appellant’s conduct after compromise order dated 24.05.2012 was passed also shows acceptance and acquiescence on his part; and the appellant is accordingly estopped by his own conduct from challenging the compromise order.
18. Senior counsel has also drawn attention to the following orders passed in CRL.REV.P. No. 334/2009 titled Daljit Singh vs. Johar Tower Pvt. Ltd., to demonstrate that the appellant had in fact taken steps to comply with compromise order dated 24.05.2012 :
Order dated 07.01.2013
“Petitioner who is present in person states that he has always been ready and willing to pay the amount of Rs.59 lacs in terms of the order dated 24th May, 2012 passed by the Court of Hon’ble Mr. Justice Valmiki J. Mehta. He further submits that he had personally spoken to Mr. Pritam Jauhar, Director of the Respondent-company on his mobile and had been informed that he is in London.”
(emphasis supplied)
Order dated 29.01.2013
“Counsel for the petitioner states that petitioner has brought a pay order for a sum of Rs.50 lacs drawn in the name of Registrar General of this court. Counsel also submits that it is likely to take three days time to prepare draft for the remaining amount of Rs.11,59,000/-.
Let the petitioner bring the entire amount of Rs.61,59,000/- by way of pay order or bank draft in the name of M/s Johar Tower Pvt. Ltd. on the next date. In the meanwhile both the parties shall finalise the draft for the Sale Deed to be executed by the said company in favour of the wife of the petitioner. Copy of the draft Sale Deed shall also be produced by both the parties on the next date. Both the parties shall remain present in court on the next date.”
(emphasis supplied)
Order dated 25.02.2013
“Counsel for the petitioner submits that the petitioner has brought a bankers cheque for 61,59,000/- in the name of Johar Tower Pvt. Ltd. dated 8th February, 2013 in compliance with the order dated 29.1.2013. Counsel also submits that both the parties have also exchanged the draft sale deed. Counsel also submits that delay has taken place in the preparation of the final sale deed because the parties have yet to obtain certified copy of the site plan, Exhibit PW1/2 filed in Suit No. 374/98.”
19. Mr. Verma has also argued that a ‘consent decree’ is intended to put a stop to litigation quite in the same way as a judgment delivered by a court on the merits of a case; and a consent decree therefore creates ‘estoppel by judgment’. In support of this contention, senior counsel has relied upon the following judicial precedents :
19.1. Raja Sri Sailendra Narayan Bhanja Deo vs. State of Orissa5 :
“8. The plea of estoppel is sought to be founded on the compromise decree, Ex. ‘O’ passed by the Patna High Court on 2nd May, 1945 in FA, No. 15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In In re, South American and Mexican Company, Ex parte Bank of England [LR (1895) 1 Ch. 37] it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at p. 50—
“The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.”
To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott [LR 1929 AC 482, 493] :
“First of all Their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the court made otherwise than by consent and not discharged on appeal.”
The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the case of Secretary of State for India-in-Council v. Ateendranath Das [(1935) ILR 63 Cal. 550, 558] , BhaishankerNanabhai v. Morarji KeKeshavji and Co. [(1911) ILR 36 Bom 283] and Raja Kumara Venkata Perumal Raja Bahadur, Minor by guardian Mr W.A. VaradachariarBhanja v. Thatha Ramasamy Chetty [(1911) ILR 35 Mad 75]. In the Calcutta case after referring to the English decisions the High Court observed as follows:
“On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say “every step in the reasoning” we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment.”
The correctness of these principles laid down in these decisions is not disputed by Mr P.R. Das. Proceeding on the basis that there is such a principle of estoppel by judgment, he contends that the test laid down in the decisions referred to above is whether the judgment in the previous case could have been passed without the determination of the question which was put in issue in the subsequent case, where the plea of estoppel by the previous judgment is raised. … …”
(emphasis supplied)
19.2. K. Gnanasekaran vs. D. Neelavathi6 :
“11. From the above, it is crystal clear that in the said judgment also, the Honourable Supreme Court has only reiterated that in the subsequent suit, the effect of the consent decree could not have been ignored. In paragraph No.14 of the judgment, the Honourable Supreme Court has only extracted the observations made by the Supreme Court in Venkata Reddy and others Vs. Pethi Reddy reported in AIR 1963 SC 992. At any rate, in all these judgments the consistent view is that the decree obtained by means of consent in the earlier suit though stricto sensu will not act as res judicata, but still it will have the effect of res judicata. In other words, as I have already pointed out that the estoppel founded on the compromise decree and the res judicata founded on a contested decree serve more or less the same purpose viz., to put an end to the litigation and to avoid any further litigation.”
(emphasis supplied; bold in original)
REJOINDER SUBMISSIONS
20. Rebutting the preliminary objection raised on behalf of the respondent, Mr. Singh has placed reliance on Nitish Arora vs. State of Delhi & Ors.,7 and has argued that it is settled law, that merely quoting a wrong statutory provision does not create a bar nor does it stand in the way of considering an application as if it were made under the correct provision; and accordingly, in the present case, the only recourse available to the appellant was to challenge compromise order dated 24.05.2012 by way of an application under Order XXIII Rule 3 CPC in the suit in which the decree was passed.
21. In relation to the contention raised on behalf of the respondent, that since the appellant has filed an application under Order XLIII Rule 1A CPC against compromise order dated 24.05.2012 only in RFA No. 263/2003, even if the court sets-aside the compromise order in the present RFA No.263/2003, the decree passed in the connected RFA No. 193/2003 will continue to operate as res judicata, Mr Singh has submitted, that a compromise decree is not a decision of the court and merely records a contract between the parties; and that therefore, setting-aside that contract between the appellant and the respondent in one appeal would automatically result in setting that same contract aside in the second appeal as well. To support this submission, counsel has placed reliance on the following judicial precedents :
21.1. Pulavarthi Venkata Subba Rao & Ors. vs. Valluri Jagannadha Rao & Ors.8:
“10. … … No doubt the conduct of the respondents in omitting to press the claim for reduction of the amount of the claim on the first occasion is significant, but this did not constitute res judicata, either statutory or constructive. The compromise decree was not a decision by the court. It was the acceptance by the court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. … …”
(emphasis supplied)
21.2. Baldevdas Shivlal & Anr. vs. Filmistan Distributors (India) (P) Ltd. & Ors.9 :
“9. … … A consent decree, according to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court: the terms of Section 11 of the Code leave no scope for a contrary view. … …”
(emphasis supplied)
DISCUSSION & CONCLUSIONS
22. Considering the long-standing dispute between the parties and since the applications under consideration were seriously contested by both sides, this court has granted to the parties a long and full-dressed hearing, lest either of the parties should feel dissatisfied that they were not fully heard in the matter.
23. That said however, in the opinion of the court, the gravamen of the dispute arising from consent order dated 24.05.2012, is really quite straightforward.
24. After 12 years of compromise order dated 24.05.2012 having been recorded, and the order also having been signed by the parties, it is not possible for this court to delve into whether the compromise was voluntary, or whether any one of the parties was coerced into settling the matter, especially since there is no material on record to suggest that the compromise was not voluntary. Furthermore, in subsequent connected legal proceedings, including in CRL.REV.P. No. 334/2009, the appellant has expressly shown his willingness to comply with the terms of the compromise. This court is accordingly not persuaded to hold that compromise order dated 24.05.2012 deserves to be set-aside on the ground that the appellant was coerced into settling the matter in the terms recorded in that order.
25. Coming now to the terms of the settlement, it is clear that the salient terms of the compromise as contained in order dated 24.05.2012 are the following:
25.1. One, that in addition to the amounts that stood paid by the appellant to the respondent, the appellant was to pay to the respondent an additional amount to Rs. 59 lacs on before 31.10.2012, and if there was any delay in making that payment by the due date, the appellant was to be liable to pay interest on the said sum of Rs. 59 lacs at the rate of 18% per annum (simple) from 01.11.2012 till the date the additional payment was made. Accordingly, delay in making the additional payment was not to vitiate the terms of the settlement, but was only to entail payment of interest to the respondent for the delay. Furthermore, the said additional sum could either be paid by the appellant to the respondent (either directly or through their Advocate) or be deposited in court;
25.2. Two, with the payment of the additional sum of Rs. 59 lacs (with or without interest, if payable) by the appellant to the respondent, the respondent was under obligation to simultaneously execute in favour of the appellant or in favour of the appellant’s wife, a sale deed in respect of the suit property. It is important to note that the suit property was described in compromise order dated 24.05.2012 as : the “third floor of B-2/88, Safdarjung Enclave, New Delhi”;
25.3. Three, the compromise order also recorded, in so many words, that “[w]ith the disposal of these appeals in terms aforesaid no disputes will remain between the parties of any nature whatsoever qua the suit property and all the disputes will stand settled and satisfied… …”. It is clear therefore that what was being brought to a close on recording of the compromise order were all disputes between the parties of any nature whatsoeverqua the suit property; and what was being disposed of by that order were “these appeals”.
26. This therefore, was the long and short of the compromise between the parties as enunciated in compromise order dated 24.05.2012.
27. The uncontested position between the parties today, is therefore as follows :
27.1. One, it stands recorded in orders dated 29.01.2013 and 25.02.2013 passed in CRL.REV.P. No. 334/2009, that the appellant had tendered to the respondent a banker’s cheque dated 08.02.2013 for Rs. 61,59,000/- (being Rs. 59 lacs alongwith interest due for the delay in making payment) in terms of the compromise order. However, as of 08.02.2013 the respondent was not ready or in a position to execute a sale deed in favour of the appellant simultaneously with the appellant tendering the said sum, and the draft proposed sale deed was forwarded by the respondent to the appellant only on 04.05.2013;
27.2. Two, it is also the uncontested position that the suit property, viz. the Third Floor built on property bearing No. B-2/88, Safdarjung Enclave, New Delhi was not constructed in accordance with any building plan sanctioned by the MCD, even though after inspecting the suit property, the MCD has stated on record vide status report dated 10.07.2013 that though the third floor was constructed without a sanctioned building plan, however the construction thereon could be regularized under the floor-wise policy of the MCD, subject to the owner complying with the requisite conditions;
27.3. Three, it is also a matter of record that by way of a document dated 04.05.2013, the respondent had sent to the appellant a proposed draft sale deed in respect of the suit property, in which the respondent had admitted that the suit property did not have a sanctioned building plan; and that a sale deed for the suit property would be executed in relation to only a part of the suit property comprising 550 sq. ft. (as against the appellant’s claim of 1550 sq. ft.); and furthermore, that the sale deed would only recite that the purchaser of the suit property, namely the appellant, would be entitled to a 9% undivided share in the land beneath, with a further qualification that the respondent would reserve the right to construct another floor on top of the suit property.
28. It is noteworthy that the proposed draft sale deed was forwarded by the respondent to the appellant on 04.05.2013, that is some 12 months after the compromise was recorded on 24.05.2012.
29. Now, nothing in order dated 24.05.2012 in any manner suggests that any of the foregoing terms or conditions communicated by the respondent to the appellant on 04.05.2013 in its draft proposed sale deed were ever raised at the time the compromise was recorded in the course of hearing on 24.05.2012. Most certainly, there is no reference to any such terms or conditions in compromise order dated 24.05.2012, which was signed by the parties, apart from having been signed by the Presiding Judge.
30. It is in fact these conditions contained in the proposed draft sale deed that have led to the reopening of all controversies and disputes between the parties.
31. The question therefore boils down to whether, by proposing a draft sale deed with the above-mentioned conditions on 04.05.2013, the respondent acted contrary to the terms of the compromise as recorded in order dated 24.05.2012.
32. Depending on the answer to the above, the court would decide the fate of the two applications under consideration; and as to what would be the fair and just directions to be passed thereon.
33. Answering the foregoing question presents no difficulty. It would strain credulity to accept an argument that compromise order dated 24.05.2012 envisaged that the respondent was to execute in favour of the appellant a sale deed that conveyed rights, title, and interests in favour of the appellant to anything less than the entire suit property which was specifically defined in the order as the Third floor of B-2/88, Safdarjung Enclave, New Delhi. Accordingly, the proposed draft sale deed communicated by the respondent to the appellant on 04.05.2013 proposing to convey only a part of the suit property comprising 550 sq. ft. with only 9% undivided land share instead of a proportionate, undivided, indivisible land share appertaining to the third floor, can, by no stretch be considered as a draft sale deed in terms of compromise order dated 24.05.2012.
34. In the opinion of the court therefore, compromise order dated 24.05.2012 signed by the parties, casts an obligation on the respondent to sell, transfer and convey in favour of the appellant, the entire third floor of property bearing No. B-2/88, Safdarjung Enclave, New Delhi, alongwith all construction made on the third floor with proportionate, undivided, indivisible, impartible share in the land beneath as would appertain to the third floor; without however the appellant being entitled to roof rights above the third floor.
35. Also, based on the categorical stand taken by the MCD in its status report dated 10.07.2013, that the suit property has been constructed without any sanctioned building plan, but that it was regularisable at the instance of the owner/applicant, it is also clear that the respondent ought to have got the suit property regularised, since it was only then that a sale deed as contemplated in the compromise order could have been executed in favour of the appellant.
36. Furthermore, since order 24.05.2012 records in so many words, that “[w]ith the disposal of these appeals in terms aforesaid no disputes will remain between the parties of any nature whatsoever qua the suit property. … …”, the inevitable inference is that it was not just RFA No. 263/2003 that was being disposed-of by way of the compromise order, but also RFA No. 193/2003. To say that the intent and purpose of the compromise order was only to close one of the appeals and to leave the other appeal open, would be to render the compromise order purposeless, which argument simply cannot be countenanced.
37. As for the respondent’s contention that even before entering into the compromise, the appellant was aware that the suit property was not regularised, that submission is neither here nor there, inasmuch as the obligation cast on the respondent in the compromise arrived at between the parties vide order dated 24.05.2012, namely that the respondent would execute and get a sale deed registered in favour of the appellant in respect to the suit property, subsumed within it an obligation that the respondent would take all steps and actions as are necessary to get a sale deed executed and registered. Moreover, status report dated 10.07.2023 filed by the MCD also says that the construction on the suit property is regularisable on an application made by the ‘owner’, which as of date, is the respondent. If any doubt was to remain in this regard, by order dated 31.01.2023 the respondent had specifically been directed to take steps for regularisation of the suit property.
38. Considering the factual position obtaining in the matter, having given due thought to the submissions made by both sides, and after all the dust has settled, in the opinion of this court the correct course of action for the court in the present case would be one that fully-and-finally resolves and closes the disputes between the parties, which was also the intent and purpose of order dated 24.05.2012.
39. As a sequitur to the above, this court is of the view that the following directions would serve the above purpose:
39.1. CM APPL. No. 47591/2022 filed by the appellant is partially allowed, upholding order dated 24.05.2012 whereby a compromise was arrived at between the parties in relation to the suit property in RFA No. 263/2003 and RFA No. 193/2003; and directing the respondent to fulfil its obligations under that compromise by executing and getting a sale registered in respect of the – Entire Third Floor of property bearing No. B-2/88, Safdarjung Enclave, New Delhi including terrace on the third floor and along with proportionate, undivided, indivisible ownership rights in the land beneath – in favour of the appellant, after getting the construction in that property regularised, by making the requisite application before the MCD. Simultaneously with the execution and registration of the sale deed, the appellant shall pay to the respondent the sum of Rs. 61,59,000/- by way of a demand draft/pay order towards the balance sale consideration as per compromise order dated 24.05.2012.
39.2. CM APPL. No. 34855/2023 filed by the respondent is also partially allowed, inasmuch as the first prayer in CM APPL. No. 47591/2022 has been dismissed. The prayer in CM APPL. No. 34855/2023 for modification of order dated 31.01.2023 is however dismissed.
39.3. It is clarified that the respondent would get the suit property regularised at its own cost and expenses, by paying the requisite regularisation charges, compounding fees and other incidental expenses for such regularisation.
39.4. It is also clarified that by way of the sale deed to be executed by the respondent in his favour, the appellant would not acquire any roof rights above the third floor of property bearing No. B-2/88, Safdarjung Enclave, New Delhi, which will be available to the respondent or other person who owns such roof rights.
40. CM APPL. No. 47591/2022 and CM APPL. No. 34855/2023 are disposed-of in the above terms.
41. Decree Sheet dated 24.05.2012 (drawn on 27.04.2013) shall stand modified in terms of the directions contained in para 39 above. Let a modified decree sheet be drawn-up.
42. The stay of execution proceedings in Ex. No. 881/2018 pending before the learned Additional District Judge, Saket Courts, New Delhi granted vide order dated 12.07.2023 stands vacated.
43. Pending applications, if any, also stand disposed-of.

ANUP JAIRAM BHAMBHANI, J.
NOVEMBER 13, 2024
HJ/ds
1 (2020) 6 SCC 629 at para 17
2 (2006) 5 SCC 566 at para 17
3 (2015) 3 SCC 624
4 (2021) 9 SCC 114 at para 44
5 AIR 1956 SC 346
6 Decision dated 18.12.2015 in S.A. No. 1164/2008 (Madras High Court)
7 2007 SCC OnLine Del 142
8 1963 SCC OnLine SC 144
9 (1969) 2 SCC 201
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