SURUCHI BHASIN @ SURUCHI BAJAJ & ANR. vs RAJIV BAJAJ & ANR.

2024-04-24 Information

$~18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 24th April, 2024
+ CS(OS) 527/2019, CCP(O) 11/2023, CCP(O) 64/2023, I.A.14309/2019, I.A. 8088/2023, I.A. 11408/2023,
I.A. 2692/2024, I.A. 6514/2024, I.A. 8890/2024, O.A. 76/2024

SURUCHI BHASIN @ SURUCHI BAJAJ & ANR. ….. Plaintiffs
Through: Mr. Saurabh Bhargavan, Mr. Nishil S Nair, Mr. Chinju Saurabh andf Mr. Christopher,Advocates
versus

RAJIV BAJAJ & ANR. ….. Defendants
Through: Mr. Aaditya Vijay Kumar and Mr. Divyanshu Bhandari, Advocates
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)

1. The present suit for Partition was settled inter-se the parties vide Settlement Agreement dated 30.11.2022. However, the defendant is now opposing a Decree in terms of the Settlement on the ground that the terms in respect of one property which has gone to the share of the plaintiff under the Settlement, is onerous for the defendant.
2. Submissions heard and record perused.
3. The suit for Preliminary Decree for Partition of suit properties was filed on behalf of the plaintiffs. The plaintiffs (daughters) and defendants (sons) were the children of Late Shri Madhusudhan Bajaj and Late Smt. Mamta Bajaj. It was asserted that at the time of demise of Late Shri Madhusudhan Bajaj, he was the owner of following assets :
(a) Free hold built-up residential property bearing Municipal No. D-35 situated in Amar Colony, Lajpat Nagar-IV, New Delhi-110024 consisting of Ground Floor, First floor and Second Floor;
(b) Sole Proprietorship concern in the name and style of M/s. M.M. Lal & Sons, doing business of ready-made garments running from Shop bearing No. 1274/3 in Laxmi Market, Subhash Road, Gandhi Nagar, Delhi-110031; and
(c) Commercial property/Shop bearing No. 1274/3 in Laxmi Market, Subhash Road, Gandhi Nagar, Delhi-110031 consisting of ground floor and first floor.

4. The mother Late Smt. Mamta Bajaj owned the following properties :
(A) Commercial property/Shop bearing No.99 Banarasi Dass Building, Subhash Road, Gandhi Nagar, New Delhi-110032.

5. Inter-se disputes had arisen and partition was sought by the parties. During the pendency of the present suit, the parties arrived at a Settlement dated 30.11.2022 in Delhi High Court Mediation & Conciliation Centre, wherein they all agreed in detail to partition the properties in the manner stated therein. The Settlement was signed by all the parties and was counter-signed by their counsels.
6. The learned counsel on behalf of the defendant admitted that pursuant to this Settlement, property no. 99, Banarasi Das Building, Subhash Road, Gandhi Nagar, New Delhi-110032 was admittedly sold and the sale proceeds divided amongst the parties in accordance with the shares agreed in the Settlement Deed. The Settlement was executed in part by the parties.
7. The defendant is now opposing the Decree of the Suit in terms of the Settlement on the ground that the terms of settlement in respect of residential property bearing Municipal No. D-35 situated in Amar Colony, Lajpat Nagar-IV which has gone to the plaintiff is onerous and, therefore, he does not want to abide by the terms of the Settlement.
8. Clause 29 & 30 of the Settlement Agreement read as under :
(29.) It is further agreed between the parties that if in case any party to this settlement commits any breach or deviates tram any of the terms and conditions mentioned hereinabove then in that case the complete share of the defaulting party shall be forfeited in full forthwith and his/her share shall be shared equally among other siblings. Additionally, the defaulting party would be liable to pay a sum of Rs.25,00,000/- each to the other siblings towards penalty/compensation. It is mutually agreed among the parties that upon receipt of breach notice by the defaulting party, he/she or they shall promptly within 10 days from the receipt of the breach notice shall cure the notified breach.
(30.) It is further specifically agreed between the parties that if due to the fault of Defendants or due to the involvement of a third party (who is directly or indirectly related to Defendants) causing the right/share of Plaintiffs to frustrate then in that event the Plaintiffs would have every right to claim their right/share from the Laxmi Market Shop and Defendants would not object to the same.

9. From the perusal of these two Clauses to which the parties had agreed before the learned Mediator, only reflects that these conditions have been imposed to ensure that there is proper compliance of the terms of the Settlement in a timely manner. These Clauses per se cannot be considered as onerous either for the plaintiff or defendant. Rather, the reservation of the defendant to now abide by the terms of the Settlement, in fact reflects his reluctance to abide by the terms of the Settlement and cannot be any ground to resist the Decree in terms of the Settlement.
10. Similar situation came up for consideration in the case of Teena M. Ansari vs. Rinoj Eappen. 2019 SCC OnLIne Ker 2828, wherein the parties in a matrimonial dispute had arrived at a settlement and a Memorandum of Settlement was duly executed by them during the process of mediation. However, the petitioner subsequently wanted to withdraw the Agreement of Settlement. It was held by Kerala High Court that after entering into a Settlement through the process of mediation and after the Court as well as the parties have acted upon the Settlement, one of the parties cannot be permitted to unilaterally withdraw for the same. Granting permission for withdrawing from the Settlement Agreement which was voluntarily signed by the parties, would destroy the sanctity of the whole process of mediation. The Settlement Agreement entered into between the parties through mediation conducted by the High Court Mediation Centre and after getting the imprimatur of the Court has got a certain solemnity attached to it.
11. Similar observations were made by the Kerala High Court in Mohanan vs. Suakshina Ramakrishnan 2017 (3) KLT 254, wherein the Kerala High Court held that when the parties settle their disputes by signing an agreement, it would have all the characteristics of compromise in terms of Order XXIII Rule 3 of CPC and no party can withdraw from it unilaterally.
12. The Bombay High Court in Bajranglal Gangadhar Khemka v. Kapurchand Ltd., 1950 SCC OnLine Bom 12, has observed that a consent decree is a contract with the imprimatur of the court. Therefore, by passing a decree in terms of a consent order, the court authorises and approves the course of action consented to by the parties. Moreover, the provisions of Order 23 Rule 3 of the Code of Civil Procedure require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement.
13. Further, the Hon’ble Supreme Court has observed in Pushpa Devi Bhagat vs Rajinder Singh, (2006) 5 SCC 566 that Rule 3 of Order XXIII consists of two parts. The first part provides that where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. The second part provides that once such agreement or compromise is recorded, the court shall pass a decree in accordance therewith.
14. In the present case, after the Settlement was arrived at between the parties, they all appeared in the Court on various dates. Thereafter, on 05.08.2023 it was submitted that defendant has not fully complied with Clause 15 of the Settlement Agreement as much as the requisite documents including Relinquishment Deed had not been provided to the plaintiffs and an adjournment was sought on behalf of the defendants. The defendants were directed to appear in the Court in person. Thereafter, vide Order dated 02.06.2023 the parties sought permission for sale of Shop No.99 and distribution of the sale proceeds amongst the parties, which was duly considered and allowed by the Court. This implies that the parties had fully endorsed the Settlement and had also partly acted upon it.
15. Now, when the defendant is expected to honour his part of the Agreement, it is quite apparent that he wants to backtrack after having availed partial benefit under the Settlement. The conduct of the defendant is purely malafide as there is no reason shown for retraction of the Settlement. Moreover, once a Settlement has been endorsed and acted upon, the necessary corollary is passing of a Decree in terms of the Settlement. Therefore, the reluctance of the defendant to perform his part of the Settlement, cannot be any basis for not passing a Decree in terms of the mediated Settlement dated 30.11.2022 which had been duly accepted and partly acted upon by the parties.
16. Therefore, the suit is hereby decreed in terms of the Settlement dated 30.11.2022. Decree sheet be drawn accordingly with the Settlement dated 30.11.2022 being the part of the Decree.
17. Pending applications are hereby disposed.
CCP(O) 11/2023 (Contempt petition filed by defendant) and CCP(O) 64/2023 (Contempt petition filed by plaintiffs).
18. List on 15.05.2024.
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 24, 2024
va

CS(OS) 527/2019 Page 1 of 6