GOPAL KRISHAN KAPOOR Vs. R S CHHABRA

JUDGEMENT

(1.) THIS order shall dispose of I. A. No. 14573/2007 moved by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil procedure (in short CPC) and I. A. no. 5519/2008 filed by defendant no. 2 also under Order XXXIX Rules 1 and 2 CPC alongwith his counter-claim.

(2.) BRIEF facts relevant for disposal of these applications need to be noted at the very outset. The plaintiffs alongwith Smt. Sanjogta Kapoor (since deceased), who was the mother of defendants nos. 3-6 and sister-in-law (bhabhi) of the plaintiffs, jointly owned property bearing no. 14-B (also known as 14-C) Bazaar Marg, Old Rajinder Nagar, delhi-110060 (hereinafter referred to as the suit property ). As per the averments made in the plaint, the suit property was agreed to be sold to defendant no. 2 vide Memorandum of Understanding (Mou)dated 28. 2. 2005 executed between the plaintiffs and late Sanjogta kapoor on one side and defendant no. 2 Rajesh Kumar on the other for a total sale consideration of Rs. 5. 2 crores. After having paid rs. 1 crore only towards the sale consideration the defendant no. 2 entered into another Mou dated 20. 4. 2005 with defendant no. 1 r. S. Chhabra assigning his rights in the suit property, which is a lease-hold property, under the said Mou dated 28/02/05. The plaintiffs and smt. Sanjogta Kapoor applied for conversion of the suit property from lease-hold to free-hold in November,2005 but while the process for conversion of the suit property from lease-hold to free-hold was pending in the office of Landd. O. the defendant no. 1 allegedly wrote a letter/complaint dated 01/03/06 to Landd. O. for stopping the conversion process. Then on 24th February, 2006 he filed a suit for Specific performance of Contract ( being CS (OS) 353 of 2006) in this Court against the plaintiffs herein and late Mrs Sanjogta Kapoor, as an assignee of defendant no. 2 by virtue of the Mou dated 20/04/05 which assignment appears to have been recognized by the plaintiffs and Smt. Sanjogta Kapoor, the vendors of the suit property. It appears that in that suit the plaintiffs herein and Smt. Sanjogta Kapoor entered appearance and then without filing any written statement entered into a compromise with the plaintiff of that suit R. S. Chhabra consequent upon which defendant no. 1 herein withdrew his aforesaid letter/complaint dated 01/03/06 to Landdo vide his letter dated 10/03/06. A joint application under Order XXIII Rule 3 CPC dated 17/03/06 was then moved by defendant no. 1 herein and the plaintiffs herein and Smt. Sanjogta Kapoor wherein it was agreed that the defendants 1-5 in that suit would execute a sale deed in favour of r. S. Chhabra and also hand over the possession of the suit property to him on payment of the balance sale consideration amount of Rs. 4,17,00,000/- by him to the said vendors. A compromise decree was then passed on 20. 3. 2006.

(3.) IT is the case of the plaintiffs that after the disposal of the aforesaid suit of R. S. Chhabra defendant no. 2 herein Rajesh Kumar, the original purchaser of the suit property under the Mou dated 28/02/05, who had not entered appearance in that suit by 20th march,2006 when the suit stood disposed of, filed an application dated 18. 5. 2006 (being IA No. 6399/06) in CS (OS) 353/2006 seeking setting aside of the consent decree dated 20/03/06 alleging that no assignment of his rights under the MOU between him and the plaintiffs herein and late Sanjogta Kapoor had taken place in favour of defendant no. 1 herein (Rajesh Kumar ). It appears that by that time some disputes had arisen between defendants 1 and 2 herein in respect of the Memorandum of Understanding dated 20/04/05 executed between them. The said application of R. S. Chhabra was, however, dismissed vide order dated 05. 02. 08. That stand of defendant no. 2 herein appears to have led the plaintiffs to file this suit seeking a declaration to the effect that the compromise agreement dated 17. 3. 2006 in CS (OS) 353/2006 in the case titled as "r. S. Chhabra v. Gopal Krishan Kapoor" was void and for setting aside the compromise decree dated 20. 3. 2006. It has been alleged by the plaintiffs that the defendant nos. 1and 2 in connivance and collusion with each other are depriving the plaintiffs from the full enjoyment of the property. The grounds put forth in the plaint for setting aside of the consent decree dated 20/03/06 are that the defendant no. 1 had fraudulently concealed in the plaint in the suit filed by him that the alleged assignment of the MOU dated 28/02/02 in his favour by defendant no. 2 had not in fact taken place. It is further alleged that defendant no. 1 had in fact no financial capacity also to pay the sale consideration to the plaintiffs herein and late/ Sanjogta Kapoor, the vendors, and that is why he had been putting obstacles in the conversion of the suit property from lease-hold to free-hold since on that being done he would have become liable to pay the entire unpaid sale consideration. It was also claimed that defendant no. 1 herein had played fraud not only on the plaintiffs but also on the Court in obtaining a compromise decree in the suit filed by him. The plaintiffs have also pleaded that they always had the intentions to honour their commitment under the Mou dated 28/02/05 and to show their bona fides in this regard the following averments were made in para no. 40 of their plaint: "40. That in the facts and circumstances set out herein above, it would be just, proper and equitable in case this Honble Court were to direct the Defendant No. 1 and/or Defendant no. 2 to make the outstanding payments in respect of the suit property forthwith, on the assurances of the plaintiffs that as and when the conversion process is complete, the required documentation such as the Deed of Sale etc. would be executed in favour of Defendant no. 1/defendant No. 2. It is submitted that such a process would not only be equitable, but also test the bona-fides of the Defendant No. 1 and defendant No. 2. In the alternative it is suggested that this Court sets aside the MOU-1 and MOU-2 and the compromise decree dated 20. 03. 2006. " on the aforesaid averments this suit was filed. In the prayer paragraph of the plaint the prayers made by the plaintiffs were for a decree of declaration declaring the compromise agreement dated 17. 3. 2006, based on which the compromise decree was passed in Suit no. 353/2006, as unenforceable and void and also for setting aside compromise decree dated 20. 3. 2006 in that suit. It was also prayed that all the agreements between the plaintiffs and defendants be declared as void.