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CS (OS) No. 1070 of 2011 AMIT JAIN Plaintiff
Through: Mr. Subhash C. Jindal, Advocate.
Through: Mr. Mukti Bodh, Advocate.
And Ex. P. No. 334 of 2011 AMIT JAIN Decree Holder
Through: Mr. Subhash C. Jindal, Advocate.
JUDGMENT
Through: Mr. Mukti Bodh, Advocate.
1. This is an application under Section 151 CPC filed by the Defendant for hearing oflA No. 17301 of2011. CS (OS) No. 1070of2011 &Ex. P.No. 334 of2011 Page 1of[4] 2013:DHC:7994
2. For the reasons stated therein, this application is allowed and lA No.17301 of2011 is taken up for final hearing today itself.
3. The application is disposed of. lAs 17302 and 17303 of 2011 (for exemptions! in CS (OSl 1070 of 2011
4. Exemptions allowed subject to alljust exceptions.
5. The applications are disposed of. lA 17301 of 2011 (u/O XXXVII Rule 4 CPO in CS (OSl 1070 of 2011
6. This is an application filed by the Defendant pointing out that underdiary No. 95652 the memo of appearance of the Defendant was filed in the Registry on July 2011.
7. Learned counsel for the Plaintiff does not dispute the fact. However, he points out that in terms of Order XXXVII Rule 3 CPC the Defendant was expected to serve notice of the appearance to the counsel for the Plaintiff and not to the Plaintiffas was done in the present case.
8. It is seen from the courier receipt placed on record that the consignee of the notice was the Plaintiff. However, this Court is prepared to accept the explanation offered by theDefendant that this isonly atechnical objection. CS(OS) No. 1070 of2011 £ Ex. P. No. 334 of2011 Page2of[4] \ Given the object of the provisioii., it would not be justified to decline to accept notice of the Defendant having entered appearance and merely because the notice was not sent to the Plaintiffs counsel. The fact of the Defendant having entered appearance isnotdisputed.
9. While passing the order dated September 2011 the attention ofthe Court was not drawn to the above fact. Moreover, none appeared for the Defendant. Since, in fact, the Defendant entered appearance within time in the manner aforesaid, the Court hereby recalls and sets aside the order dated 1®^ September 2011 decreeing thesuitexparte.
10. The application is disposed of. Ex. P. No. 334 of 2011
11. ExecutionPetitionNo. 334 of 2011 has been filed by the Decree holder, i.e.. Plaintiff in CS (OS) No. 1070 of 2011 requiring the Judgment Debtor ('JD'), i.e.. Defendant in CS (OS) No. 1070 of 2011 to deposit the entire decretal amount in Court. It is stated that the decretal amount has since been deposited.
12. Considering that the decree itselfhas been recalled and setaside today, this execution petition does notsurvive. It is disposed of. CS (OS) No. 1070 of2011 &Ex. P.No. 334 of2011 Page 3of[4] CS (OS) No. 1070 of 2011
13. The amount deposited in the Court will be treated as a condition on which the leave to defend is granted to the Defendant and the suit will be treated as a regular suit.
14. The amount deposited in the Execution Petition No. 334 of 2011 will continue to be deposited in the present proceeding. It will be kept by the Registry ina fixed deposit for a period ofone year and kept renewed during the pendency ofthe suit.
15. Written statementbe filed within four weeks. Replication thereto, if any, be filed within four weeks thereafter.
16. List before the Joint Registrar on 18*^ February 2014 for admission/ denial of the documents. By that date, the parties will file their affidavits of admission/denial andproduce the originals of the documents relied upon by them respectively.
17. List before the Court for framing ofissues on 22"^ April 2014.
S.MURALIDHAR, J OCTOBER 04,2013/M CS(OS) No. 1070of2011 &Ex.P. No. 334of2011 Page[4] of[4] $~ + EX.P. 334/2011, AMIT JAIN DecreeHolder Thi-ough: Mr. A.K. Sharma, Advocate.
VERSUS
JUSTICE MANMOHAN ORDER % 03.02.2015 Ex. Appl. (OSI112/2015 (exemption) in Ex.P. 334/2011 Allowed, subject to just exceptions. Accordingly, present application stands disposed of. Ex. Add[1].(OS[1] 111/2015 in Ex.P. 334/2011 Present application has been filed for release of an amount of Rs.25,05,024/- in accordance with the terms of the. Settlement dated 13'^ October, 2014 arrived at before the Delhi High Court Mediation and Conciliation Centre in CS(OS) 1070/2011. It is pertinent to mention that the present execution petition was disposed of on 04^'' October, 2013 and the civil suit being CS(OS) 1070/2011 was revived. Subsequently, the suit was settled before the Mediation Centre and the suit was dismissed as withdrawn on 12"^ November, 2014. The relevant term of the Settlement Agreement dated 13'*^ October, 2014 is reproduced f r hereinbelow:-
the present application being allowed. Consequently, the Registry is directed to release the amount of Rs.22,07,150/- along with 48% amount of the accrued interest thereon in accordance with the terms and conditions of the Settlement Agreement dated 13"^ October, 2014 to the decree holder-plaintiffwithin a period oftwo weeks. With the aforesaid observations, present application stands disposed of. Order dasti. ii MANMOHAN, J FEBRUARY 03,2015 + EX.P. 334/2011 AMIT JAIN DecreeHolder Through: Mr. A.K. Sharma, Advocate.
VERSUS
JUSTICE MANMOHAN ORDER % 24.04.2015 Ex.AddLIOSJ 354/2015 Allowed, subjeet to just exceptions. Ex.App[1].(OS) 353/2015 in Ex.Pet. 334/2011 Present application has been filed for modification/clarification of the order dated 03'^'^ February, 2015 passed bythis Court. Itis pertinent to mention that present exeeution petition was disposed ofin accordance with the Settlement Agreement dated 13"' Getober, 2014 executed between the parties before the Delhi High Court Mediation and Coneiliation Centre. Learned, counsel for judgment debtor has no objection to the present clarification/modifieation beingsought by the decree holder. Consequently, with consent ofthe parties, the order dated 03' FebrUcuy, • 2015 shall now read as under:- "Present application has been filedfor release ofan amount of Rs.25,05,024/- in accordance with the terms of the Settlement dated 13'^ October, 2014 arrived at before the Delhi High Court Mediation and Conciliation Centre in CS(OS) 1070/2011. It ispertinent to mention that the present execution petition was disposed of on 04'^^ October, 2013 and the civil suit being CS(OS) 1070/2011 was revived. Subsequently, the suit was settled before the Mediation Centre and the suit was dismissed as withdrawn on if^ November,
2014. The relevant term of the Settlement Agreement dated 13"' October, 2014 is reproduced hereinbelow;- "7. The following settlement has been arrived at between the parties hereto: a) That it is agj-eed between the parties that the above mentioned deposited amount ofRs.25,05,0247- alongwith the accrued interest (till the date of its release) shall be released in thefollowing manner to theparties:i) The first party shall get the principal amount of Rs.22,07,150/-. a) The balance amount (total interest) shall be distributed between thefirstpartyandsecondparty in the ratio of48:52 respectively i.e. thefirst party shall get 48% and the second party shall get 52% ofthe interest amount. " Learned counsel for judgment debtor states that he has no objection to the present application being allowed. Consequently, the Registry is directed to release the amount of Rs.22,07,150/- along with 48% of the total balance amount in accordance the terms and conditions of the Settlement Agreement dated 13"' October, 2014 to the decree holder-plaintiff within a period oftwo weeks. The Registry is also directed to release the amount in accordance with the Settlement Agreement dated 13"' October, 2014 to thejudgment debtor. With the aforesaid observations, present application stands disposed of. Order dasti." With the aforesaid direction, present application stands disposed of. Order dasti. u MANMOHAN, J APRIL 24, 2015 js