GOPAL KRISHNA KAPOOR Vs. R S CHHABRA

JUDGEMENT

(1.) THIS is an Appeal against the Order passed by the learned Single Judge on 9. 4. 2009 in CS (OS) No. 691/2007, whereby he dismissed the application filed by the plaintiffs/appellants under Order XXXIX Rules 1 and 2 of the code of Civil Procedure, seeking injunction against execution of the decree passed in CS (OS) No. 353/2006, in favour of respondent No. 1 and against them. The brief facts giving rise to this Appeal are as under:-

(2.) THE Appellant along with one Ms. Sanjogta Kapoor (since deceased), who is the mother of Respondents No. 3 to 6, jointly owned property No. 14-C, Bazar Marg, Old Rajinder Nagar, Delhi. They entered into a memorandum of Understanding with Shri Rajesh Kumar, respondent No. 2, whereby they agreed to sell the aforesaid property to him, for a total consideration of Rs. 5. 2 crores. They also received earnest money amounting to Rs. 1 crore, in three instalments. On 20. 4. 2005, Shri Rajesh Kumar entered into a Memorandum of Understanding with Shri R. S. Chhabra, respondent No. 1, agreeing to sell, transfer, convey and assign the aforesaid property to Shri R. S. Chhabra for a consideration of Rs. 5. 2 crores, on the terms and conditions as contained in the Memorandum of Understanding dated 20. 4. 2005 executed between the Appellants, and late Smt. Sanjogta kapoor on the one hand and Respondent No. 2, Shri Rajesh Kumar, on the other hand. A sum of Rs. 80 lakhs was paid by Respondent No. 1, Shri r. S. Chhabra to Respondent No. 2, Shri Rajesh Kumar.

(3.) SINCE the property in question was a leasehold property, the appellants and deceased Smt. Sanjogta Kapoor applied for its conversion into freehold property in November, 2005. When the matter relating to conversion of the suit property from leasehold to free hold-was being processed in the office of Landd. O. , respondent No. 1 made a complaint to landd. O. in an effort to stop the conversion. He also filed a Civil Suit being cs (OS) No. 353/2006 on 24. 2. 2006 against the appellants and late Smt. Sanjogta Kapoor as well as against Respondent No. 2, Shri Rajesh Kumar, seeking specific performance of the contract, being assignee of respondent no. 2, Shri Rajesh Kumar under the Memorandum of Understanding dated 20. 4. 2005. The Appellants and Smt. Sanjogta Kapoor entered appearance in that Civil Suit without filing a Written Statement and compromised the matter with Respondent No. 1, Shri R. S. Chhabra. A joint application under order XXIII Rule 3 of Code of Civil Procedure was filed by the Appellants, smt. Sanjogta Kapoor and Respondent No. 1 which was followed by a decree in terms of the compromise on 20. 3. 2006. Under the Compromise decree, it was agreed that the Appellants and late Smt. Sanjogta Kapoor would execute a sale deed of the suit property in favour of Respondent No. 1 Shri r. S. Chhabra and also hand over possession of the same to him on payment of balance consideration of Rs. 4,17,00,000/- to the vendors. The appellants/plaintiffs thereafter filed Civil Suit bearing No. 691 /2007 seeking a declaration to the fact that the compromise Agreement dated 17. 3. 2006 in CS (OS) No. 353/2006 was void and for setting aside the decree dated 20. 3. 2006. They claimed that Shri R. S. Chhabra and Shri Rajesh kumar were in connivance and in collusion with each other so as to deprive them from full enjoyment of the property. It was alleged in the Plaint that in CS (OS) No. 353/2006, filed by him, Respondent No. 1 Shri R. S. Chhabra had concealed that the alleged assignment of M. O. U. dated 28. 2. 2002 in his favour had in fact not taken place. It was further alleged that Defendant No. 1, Shri R. S. Chhabra, in fact did not have financial capacity to pay the sale consideration. Respondent No. 2, Shri Rajesh Kumar, on the receipt of said summons in Civil Suit No. 353/2006 filed an application for setting aside the compromise decree dated 20. 3. 2006. His application was disposed of vide order dated 5. 2. 2008 holding that since he was also a party in CS (OS) No. 691/2007, the application did not survive for any order.