Full Text
OMP (ENF.) (COMM.) 250/2022
FREECHARGE PAYMENT TECHNOLOGIES PVT LTD .....Decree Holder
Through: Mr. Siddharth Dutta, Mr. Ait Kumar Mishra, Ms. Mutakshara Goyal, Mr. Shivam Singh and Mr. Anunay Kumar, Advocates
JUDGMENT
Through: Mr. Nishant Mittal, Mr. Sanyam Rastogi and Mr. Harshit Singh, Advocates
06.09.2024
1. This Execution Petition seeks execution of order dated 24 August 2022 passed by this Court in Arb. P. 541/2022. The said order disposed of the arbitration petition on the basis of IA 13276/2022 jointly moved by the petitioner and the respondent under Order XXIII Rule 3 CPC, consequent on their having arrived at a settlement with the intervention of the Delhi High Court Mediation and Conciliation Centre. The relevant terms of the Settlement Agreement dated 28 June 2022 read thus:
2. Both the Parties have agreed and accepted that out of the AN HARI SHANKAR 21:40 Signing Date:08.09.2024 21:43 said payable amount of Rs. 2,65,00,000/-, Party 2 has already paid an amount of Rs. 5,00,000/- (Rupees five lakhs) vide online bank wire transfer dated 26.05.2022, bearing transaction reference ID
821405492.
3. Both the Parties have agreed and accepted that the balance amount of Rs. 2,60,00,000/- (two crore sixty lakhs) shall be paid in 13 equal installments of Rs. 20,00,000/- (twenty lakhs) each, as per following details: INSTALLMENT NO.
DUE DATE AMOUNT Instalment no.1 30.06.2022 Rs.20,00,000/- Instalment no.2 31.07.2022 Rs.20,00,000/- Instalment no.3 31.08.2022 Rs.20,00,000/- Instalment no.4 30.09.2022 Rs.20,00,000/- Instalment no.5 31.10.2022 Rs.20,00,000/- Instalment no.6 30.11.2022 Rs.20,00,000/- Instalment no.7 31.12.2022 Rs.20,00,000/- Instalment no.8 31.01.2023 Rs.20,00,000/- Instalment no.9 28.02.2023 Rs.20,00,000/- Instalment no.10 31.03.2023 Rs.20,00,000/- Instalment no.11 30.04.2023 Rs.20,00,000/- Instalment no.12 31.05.2023 Rs.20,00,000/- Instalment no.13 30.06.2023 Rs.20,00,000/-
4. Party 1 acknowledges that Party 2 has handed over 13 post dated cheques, hereinafter collectively referred to as 'PDC's', from the bank account in the name of Party 2 (Frederica Marketing Private Limited), bearing ICICI Bank account no. 333205500319, as security towards the aforementioned 13 installments, following are the details of the PDC's on 17 June 2022: Towards Instalment No.
POST DATE CHEQUE NO.
DATED AMOUNT Instalment no.1 000228 30.06.2022 Rs.20,00,000/no.2 000229 31.07.2022 Rs.20,00,000/no.3 000230 31.08.2022 Rs.20,00,000/no.4 000231 30.09.2022 Rs.20,00,000/no.5 000232 31.10.2022 Rs.20,00,000/- 21:40 Signing no.6 000233 30.11.2022 Rs.20,00,000/no.7 000234 31.12.2022 Rs.20,00,000/no.8 000235 31.01.2023 Rs.20,00,000/no.9 000236 28.02.2023 Rs.20,00,000/no.10 000237 31.03.2023 Rs.20,00,000/no.11 000238 30.04.2023 Rs.20,00,000/no.12 000239 31.05.2023 Rs.20,00,000/no.13 000240 30.06.2023 Rs.20,00,000/-
5. Party 2 may transfer funds towards aforementioned installments (as per schedule mentioned in para 'c') directly via online bank wire transfer from any of its related accounts one day prior to the due date of the installment as provided in the schedule of clause (d), in which case Party I shall return the unused PDC's towards such installment back to Party 2 as per demand from Party 2 without any delay, as long as the payment towards the said installment has been made as per intimation from Party 2 to Party
1.
6. Both the parties agreed that in an event that any of the aforesaid installments are not paid as per its due date by Party 2 to Party 1, a provided in the schedule of clause (d), Party 2 shall be liable to pay an interest on the said unpaid amount at the rate of 1.5% per month (ie 18% annually), calculated from the due date till the date of repayment
7. Both the Parties mutually agree that through this settlement agreement deed both the Parties agree to settle any and all of their disputes and differences which are subject matter of the mediation and make representations to withdraw/seek closure of all civil and criminal proceedings, namely, O.M.P. (I) (Comm.) 99/2022, Arb.
8. Both the Parties mutually agree that Party 1 shall file a request to the Economic Offences Wing (EOW) as a representation 21:40 Signing to withdraw/request closure of the aforementioned complaint bearing no. C 620/2022/DCP/EOW against Party 2, in light of the present settlement agreement. A copy of the draft of the request is herein annexed as ANNEXURE C. Party 2 acknowledges that the signed and stamped copy of Annexure C has been handed over by Party 1
9. Both the Parties mutually agree that the terms of the present settlement deed shall be binding on both the Parties and that neither of the Parties shall be able to revoke the settlement deed, hence this is an irrevocable settlement, to extent each party fulfil its obligation under this agreement, of any matters pending adjudication and otherwise as per the terms and conditions agreed upon by the Parties in the present Settlement Agreement.
10. Both Parties mutually agree that the present settlement/agreement/compromise shall be recorded by the Hon'ble High Court of Delhi as per Order XXIII Rule 3 of CPC and that the Parties shall remain bound by the terms.
11. Both Parties mutually agree that they have arrived and agreed to the contents of this settlement deed as per their freewill, without undue influence and coercion and with full knowledge of all pertinent facts and details.
12. By signing this agreement, the Parties hereto state that they have no further claims or demands against each other in relation to the subject matter of the present suits and all the disputes and differences in the aforementioned matters have been amicably settled by the parties hereto through the process of mediation.
13. The Parties undertake before this Hon'ble Court to abide by the terms and conditions as set out in this Settlement Agreement and not to dispute the same hereinafter in future.”
2. Mr. Shivam Singh, learned counsel for the petitioner informs that, of the 13 post dated cheques[1] furnished by the respondent/judgment debtor towards payment of the instalments in fulfilment of the settlement agreement, 11 were dishonored.
3. In the present Enforcement Petition, the respondent / judgment “PDCs” hereinafter 21:40 Signing debtor was directed to file his affidavit of assets on 18 April 2023. Nearly a year and two months have elapsed since then and the affidavit of assets is not forthcoming. Further time is being sought by the respondent, who appears in person, to file the affidavit of assets. Between 18 April 2023 and today, the matter has been listed eight times.
4. Even to secure the presence of the respondent/judgment debtor, this Court has had to issue bailable warrants.
5. The Court has lost all confidence in the respondent. Prima facie, it appears that the respondent/judgment debtor is seeking to protract these proceedings with an intent to defeat the decree in favour of the petitioner.
6. The Court is not inclined to grant any further time to the respondent/judgment debtor to file the affidavit of assets.
7. In the circumstances, the respondent/judgment debtor is directed to deposit, with the Registry of this Court, the entire decretal amount, including interest, within three weeks from today. The respondent/judgment debtor shall remain personally present on the next date of hearing as well. In the event the deposit is not made, the respondent/judgment debtor has been informed that the Court would be constrained to take coercive steps against him as permissible under Order XXI CPC.
8. It is perfectly made clear that no extension of time for making 21:40 Signing deposit on any ground whatsoever would be granted.
9. Renotify on 30 September 2024.