BHAI SARABJIT SINGH Vs. INDU SABHARWAL AND ORS.

JUDGEMENT

(1.) Following settlement agreement was arrived at between the parties in FAO (OS) No.83/2007 when two suits, that is, suit for partition being CS (OS) Nos.1698/2007, suit for injunction CS (OS) No.684/2008 and Testamentary Case No.2/2008 were pending adjudication inter se the parties:

(2.) After the settlement Bhai Sarabjit Singh, the appellant herein filed a suit being CS (OS) No.753/2014 against the three respondents/defendants, that is, Indu Sabharwal, the step mother, Ms.Nisha Singh and Ms.Tara Sabharwal, the two sisters seeking declaration of the settlement agreement dated August 06, 2010 entered into between the parties which culminated into the decree dated November 08, 2013 in CS (OS) No.1698/2007 as null and void on account of fraud and misrepresentation being played upon the plaintiff by the defendants. In the suit Bhai Sarabjit Singh claimed that he and defendant Nos.2 and 3, that is, Ms.Nisha Singh and Ms.Tara Sabharwal are the children of Sardar Tirlochan Singh and Mrs.Manjit H.Singh and defendant No.1 Smt.Indu Sabharwal the second wife of Bhai Tirlochan Singh. In the plaint Bhai Sarabjit Singh pleaded the facts relating to previous litigations inter se the parties and the settlement agreement. It was further pleaded that immediately after the settlement agreement Indu Sabharwal changed and without waiting for the valuation started breaching the settlement by not providing support to the plaintiff in the probate case of his grandmother being Testamentary Case No.108/2008 as agreed and did not permit the plaintiff to withdraw his share of money or quick valuation of property No.9, Amrita Shergill Marg, New Delhi, started pressing for a decree in terms of the settlement agreement without withdrawing the suit and illegally withdrew, misappropriated huge sums of money as were lying in the form of investments, bonds, shares, debentures, mutual funds etc. It was pleaded that it was never the spirit of the settlement agreement to get a decree which would result in heavy taxation on the plaintiff due to the high value of the suit properties. It was pleaded that after the settlement agreement dated August 06, 2010 defendant No.1 filed I.A.No.14651/2013 in CS (OS) No.1698/2007 for sale of all the assets of Bhai Tirlochan Singh which was in negation of the settlement agreement. It was pleaded that the defendant No.1 by deliberate acts of fraud and misrepresentation got the plaintiff to sign the settlement agreement by concealing and suppressing material facts that the defendant No.1 had already withdrawn the entire money from the estate of Bhai Tirlochan Singh and if the plaintiff knew about it, he would have never agreed to settlement and thus the settlement agreement was entered into by playing fraud upon the plaintiff and the plaintiff has a right to get the same declared as null and void. Though no summon was issued in the suit and no caveats were filed however, counsels for defendants appeared before the Court and contended that the suit was not maintainable.

(3.) The learned Single Judge vide the impugned judgment held that the suit was not maintainable in view of the bar under Order XXIII Rule 3 and 3A CPC. The learned Single Judge noted Section 17 of the Indian Contract Act, 1872 and explanation thereto which provides that mere silence as to the fact likely to affect the willingness of a person to enter into a contract is not fraud, unless it is the duty of the person keeping silence to speak or unless silence is in itself equivalent to speech. The learned Single Judge noted that there was no averment in the plaint that the Defendant No.1 represented or suggested to the plaintiff that the movable assets of Bhai Tirlochan Singh were not as described in Annexure-C to the settlement agreement or that she had not withdrawn or encashed the same or that the defendant No.1, had the duty to speak so that her silence in this respect was equivalent to speech.