Full Text
HIGH COURT OF DELHI
Date of order: 18th January 2023
15446/2021 & I.A. 675/2022 & I.A. 13488/2022 & I.A. 20911/2022
& I.A. 21636/2022 SANJAY KALRA ..... Petitioner
Through: Ms.Kajal Chandra, Ms.Prerna Chopra, Mr.Divye Puri and
Ms.Sakshi Anand, Advocates For petitioner.
Through: Mr.Sandeep Sethi, Senior Advocate with Ms.Ruby Singh Ahuja, Mr.Varun Khanna, Mr.Akshay
Agrawal and Mr.Vasu Singh Advocate for LR No. 1 and 4
Mr.Vinay Garg, Senior Advocate with Ms. Snehpreet Kaur, Advocate for LR No.3/applicant in I.A. NO. 21636/2022 Mr.Harish Malhotra, Senior Advocate with Mr.Rajiv Bahl and Mr.Vikas
Tomar, Advocates for LR No.5 Ms.Mansi Pankaj Jain in person/applicant in I.A. NO. 13488/2022
CHANDRA DHARI SINGH, J. (Oral)
I.A. No. 21636/2022 (u/S 151 CPC by LR No.3 Pankaj Jain)
ORDER
1. The instant application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") has been filed on behalf of the applicant seeking the following reliefs: “a) Recall and set aside the order dated 22.11.2016 passed in Test. Case No. 54/2014 and relieve the Applicant from the undertaking given therein, Or, b)Direct Respondent No. 2 to come up with an alternative payout plan for the unfulfilled commitment as per the MOFS dated 17.11.2016, and more particularly, direct Respondent No 2 to pay the balance of 23,00,00,000 (Twenty Three Crores) immediately along with interest accrued since the date of signing of MoFS, or, c) to transfer in the name of the Applicant such other properties which are registered in the Respondent No 2’s name in order to compensate for the promise of payment of Rs. 23,00,00,000 (Rupees twenty-three crores Only,Or d) Directs Respondent No. 2 to provide the Applicant with an alternate payment schedule, i.e. the date and time of transfer of such monies as mentioned in clause 4(iv)(a) and clause 4(iv)(a) and abide by the same in letter and spirit. OR e) To Restore the earlier arrangement of monthly payment revised to Rs Six Lakhs per month along with other expenses to the Applicant, which was prevalent at the time when his father was alive.”
2. Learned counsel for the applicant/petitioner submitted that the applicant had filed an application bearing number IA No. 10722/2019 with similar reliefs before this Court, but the same was withdrawn with liberty to take appropriate steps with respect to the family settlement if the need arises vide order of this Court dated 19th December 2019.
3. Learned counsel for the applicant submitted that despite the applicant’s total compliance of the obligations enumerated in the agreement, the mother has failed to fulfil her obligations substantially. It is stated that it has become crystal clear that the mother/the LR 1 does not wish to fulfil her commitment given to the applicant in the Family Settlement filed before this Court, contingent upon which the applicant had granted his NOC in the present proceedings and impressed upon the Executor to withdraw the other case bearing TEST. Case No. 05/2015 where the applicant was the major beneficiary of the last Will of his father, late Shri Davinder Kumar Jain.
4. It is further submitted that after withdrawal of the legal cases instituted by the applicant against respondent No. 2 and compliance of all the conditions by the applicant, the respondent no. 2 breached the Family Settlement in its entirety by not just delaying the payments and transfer of properties but also by amending the Family Settlement dated 17th November, 2016 multiple times as per her own convenience but whenever the applicant would remind and demand the fulfilment of her obligations as per clause 4 (IV) of the Family Settlement, she would curtly reply that the Family Settlement is “sacrosanct” and she will strictly go by the terms as mentioned therein.
5. It is thus prayed that the old arrangement which was prevalent during the lifetime of his father, Late Sh. D.K Jain, wherein the applicant was paid a monthly salary of Rs.3,00,000/- per month, be restored and revised to Rs.6,00,000/- per month in tune with the inflation, rising cost and having regard to the fact that now the applicant is not staying in the family home anymore. It is further submitted that if the order is recalled and set aside and the Applicant is relieved from the undertaking, no prejudice would be caused to any of the parties as the LR 5’s evidence in terms of her objections raised against the present petition is still continuing.
6. It is submitted that in view of the aforesaid facts and circumstances, the applicant herein presents this application before this Court to recall and set aside the order dated 22nd November, 2016 and relieve the applicant from the undertaking on such terms as this Court may deem it fit and proper.
7. Per Contra, learned counsel for the respondent vehemently opposed the prayers made in the instant application and submitted that the applicant had filed IA No. 10722/2019 with similar reliefs before this Court, which was withdrawn with liberty to take appropriate remedies vide order dated 19 December, 2019.
8. Therefore, it is submitted that there is no doubt that the instant application is nothing but an abuse of process. The instant application accordingly merits to be dismissed.
9. Heard learned counsel for the parties and perused the record as well as the impugned order that is sought to be recalled.
10. The applicant has prayed for an order for recall and setting aside the order dated 22nd November, 2016 passed in Test. Case No. 54/2014 and to relieve the applicant from the undertaking given therein.
11. The relevant portion of the impugned order dated 22nd November, 2016 passed in Test. Case No. 54/2014 is reproduced hereunder: “Mr. Pankaj Jain is one of the legal heirs of the deceased Sh. Davinder Kumar Jain respecting whose estate the present petition was filed and has been pending. The applicant/Pankaj Jain had earlier filed some objections and had moved an application under Section 151 CPC which was registered as IA 9078/2015. By the fresh application, IA 14437/2016, the applicant informs that he has entered into a family settlement with his mother Smt. Usha Jain, which oral settlement was reduced into writing on 17.11.2016, copy of which document duly notarized has been filed with the application, it having been attested as a witness by Smt. Pooja Jain, both the said Smt. Usha Jain and Smt. Pooja Jain having been shown amongst the legal heirs in the petition (para 11). In view of the above said family settlement between the afore-said set of parties, Mr. Pankaj Jain /applicant does not press his objections to the probate petition and also withdraws the application IA 9078/2015. The learned counsel submits that Mr. Pankaj Jain and Smt. Usha Jain are present in person in the court. The application IA 14437/2016 is supported by affidavit of Mr. Pankaj Jain. Mr. Sandeep Sethi, learned senior counsel representing Smt. Usha Jain submits that his client stands by the family settlement, on the basis of which IA 14437/2016 has been filed and undertakes to remain bound by the commitments made therein. The applicant Mr. Pankaj Jain also submits similar undertaking to remain bound by the commitments made in the family settlement which is the basis of the application at hand. Thus, the application IA 14437/2016 is allowed. The objections shall stand disposed of as withdrawn. Application (IA 9078/2015) is also dismissed as withdrawn. The above-mentioned parties shall remain bound by their respective undertakings. Learned counsel on all sides clarify that the contest survives only by Smt. Payal Kapoor and Smt. Priya Jain.”
12. A bare perusal of the order makes it evident that the said order has been passed in view of the submissions made by the parties including the applicant. The applicant on the said date had informed this Court that he had entered into a family settlement with his mother Smt. Usha Jain, which oral settlement was reduced into writing on 17th November, 2016. The applicant/Mr. Pankaj Jain also submitted an undertaking to remain bound by the commitments made in the family settlement which is the basis of the application at hand.
13. Before delving into the matter, it is pertinent to peruse the law on recall of its order by a Court.
14. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice or to prevent abuse of process. Although the provision is broadly worded, the said provision has been interpreted to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far as back in 1961, the Hon’ble Supreme Court in Padam Sen v. State of U.P., AIR 1961 SC 218, observed as under:
15. In the case of Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, the Hon’ble Supreme Court held as under:
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.”
16. The judgment of the Hon’ble Supreme Court in Ram Prakash Agarwal v. Gopi Krishan, (2013) 11 SCC 296 further clarifies the law on the use of the power under Section 151 of the CPC by the Court and holds as follows:
17. Recently, in the case of My Palace Mutually Aided Coop. Society v.
18. In view of the aforesaid, it is evident that the scope of Section 151 of the CPC is limited and the inherent powers enshrined therein can be exercised only where no remedy has been provided for in any other provision of law. The exceptions carved out where recall of order can be permitted, as outlined in the aforementioned judgments, have not been satisfied by the applicant.
19. It is also a matter of record that the applicant had filed an application bearing number IA No. 10722/2019 with similar reliefs as being contested in the instant application before this Court. While assailing the merits and fairness of the Family Settlement, and claiming it to be one-sided, it was submitted therein that the consent of Mr. Pankaj Jain was not a free consent and that he was under coercion. It was further submitted therein that the applicant was made to give the said undertaking without understanding the matter and by emotionally blackmailing and also by playing fraud and under duress.
20. The said application, however, was dismissed as withdrawn with the liberty to take appropriate remedies with respect to family settlement if the need arises vide order dated 19th December 2019. The relevant portion of the said Order is reproduced hereunder:
21. The prayers in the instant application, in its sum and substance, are substantially similar to those mentioned in IA No. 10722/2019. Filing the same application with similar reliefs under the same provision after withdrawing it on an earlier occasion in the same proceedings with the same subject matter, is nothing but an abuse of process.
22. In any case, it is an established position of law that settled things cannot be permitted to be unsettled at the behest of a party unless the exceptions delineated in the judgments cited hereinabove are met. Merely on the basis of the submission that the mother/the LR 1 does not wish to fulfil her commitment given to the applicant in the Family Settlement filed before this Court, contingent upon which the applicant had granted his NOC in the present proceedings, the order cannot be recalled.
23. In the instant case, there is no iota of doubt that the order sought to be recalled was based on party’s own consent and in view of the fact that no exceptional circumstances, as outlined hereinabove are being met, no case is made out to entertain the aforesaid application.
24. In light of the above, the instant application being devoid of merits stands dismissed. CCP(O) 11/2022
1. The present petition for contempt under Section 10 and 12 of the Contempt of Courts Act, 1971, read with Order XXXIX Rules 2A has been filed by the petitioner seeking following prayers: a) punish respondents/contemners for willful disobedience of the order dated 14.11.2014 passed by this Hon'ble Court in Test. Cas.54 of 2014 by putting them in civil imprisonment and attaching their properties; and b) direct the Contemnors to purge the contempt by restoring status quo ante in respect of the charge on the subject properties, i.e., F- 89, Okhla Industrial Estate, Phase III, New Delhi, and 229, Okhla Industrial Estate Phase III, New Delhi; and/or c) pass any such other or further orders' as deem fit and proper in the interest of justice;”
2. Issue notice to the alleged contemnor.
3. Ms.Ruby Singh Ahuja, learned counsel appearing for the LR No.1 accepts notice and seeks two weeks’ time to file reply to the present contempt petition.
4. Let the reply to the application be filed within a period of two weeks. The rejoinder, if any, thereto, be filed within a period of two weeks thereafter.
5. List on 17th May, 2023. The order be uploaded on the website forthwith.
JUDGE JANUARY 18, 2023 SV/@dityak. Click here to check corrigendum, if any