PREM CHAND GADDODIA Vs. JASWANT RAI

JUDGEMENT

(1.) I propose to dispose of this application preferred by the defendant under the provisions of Order VII Rule 11 readwith Section 151 CIVIL PROCEDURE CODE as well as Order XIV Rule 2 and Order XXIII Rule 1 CIVIL PROCEDURE CODE. This application is filed by the defendant without filing the written statement. The suit is filed by the plaintiff for recovery of Rs. 15 lacs which amount plaintiff is claiming from the defendant as damages for using scurrilous remarks against him thereby defaming the plaintiff. It would be appropriate to first take stock of the averments made in the plaint on the basis of which present suit is filed by the plaintiff. Plaintiff who claims to be well-known person enjoying respect in the echelons of the society and belonging to a respectable family is also an honorary president of the Rajasthan Co-operative Group Housing Society Ltd. (for short 'society'). The defendant was also a member in this society who happens to be Architect by profession doing the business under the banner of M/s Architectural Innovations. He entered into agreement dated 16/5/1996 with the society as per which he was appointed as an Architect for the society for construction of dwelling units/flats over the land allotted to the society by DDA, i.e., Plot No.36, Sector-4, Dwarka, New Delhi. He prepared the plans. Society thereafter engaged M/s Associated Builders and Contractors for the construction of the dwelling units and agreement with the said contractor was entered under the profession recommendation and guidance of the defendant. Without going into detailed averments made in the plaint alleging poor performance of the defendant as Architect, suffice is to state that as per the plaint, when the irregularities, manipulation and misdeeds of the defendant were exposed by the plaintiff who happened to be the president of the society and in that capacity looking after the day to day affairs of the society, the defendant turned offensive and stand misbehaving in a most mischievous and unbecoming manner. He by his words spoken 01, various occasions, imputations made, deliberately used totally false, baseless, derogatory and defamatory remarks/ allegations against the plaintiff etc. with specific intention to cause harm and injury of the reputation of the plaintiff to browbeat him so that he could continue his activities of causing financial loss to the society. Specific instance is given in para 11 of the plaint when in the meeting of the managing committee held on 11/7/1998 defendant insulted and abuse the plaintiff and other persons present there and also made derogatory and defamatory allegations including the following:

(2.) He allegedly made such defamatory accusations on other occasions also. Based on these allegations present suit is filed claiming damages to the extent of Rs. 15 lacs. That being the background in which the present suit is filed, let us now advert to the averments made by the defendant in this IA No.7217/99 as per which defendant is praying for rejection of the plaint as not maintainable. The genesis of the application is settlement between the parties. According to the defendant Memorandum of Settlement dated 14/5/1999 was entered into between the defendant and the society which was signed by the plaintiff also as confirming party and as per this settlement, plaintiff agreed to withdraw the present suit in view of their being settlement between the parties. The application discloses that as certain disputes have arisen between the defendant and the society, the defendant file Suit No. 1661/98 in this court which was disposed of by this court vide order dated 14/1/1999. It is stated that the present suit filed by the plaintiff and also another suit filed by one Mr.Lalit Gupta(Suit No.20/99) in the court of Sh.Vinod Goel, Additional District Judge, Tis Hazari, Delhi were counter blasts to the suit No.1661/98 filed by the defendant. However, during the end-of February and the beginning of March, 1999 the parties entered into negotiations for settling all pending disputes between the parties which resulted into purported memorandum of Settlement dated 15/4/1999. As per this settlement, it is, inter alia, agreed that parties shall withdraw the suits filed against each other.

(3.) Taking Support of this Memorandum of Settlement, the defendant submits that the plaintiff is under obligation to withdraw the instant suit which is not done inspite of assurance given even subsequently. He submits that because of this settlement, the defendant did not take steps for getting third arbitrator appointed in Suit No. 1661/98. According to him, provisions of Order XXIII Rule 1 CIVIL PROCEDURE CODE clearly applied and the suit is not maintainable at all.