Full Text
HIGH COURT OF DELHI
Date of Decision: 14th May, 2018
ARIHANT JAIN ..... Appellant
Through: Mr. H.S. Sharma, Advocate (M-
JUDGMENT
9910384647) along with Appellant in person.
VERSUS
BHANWAR LAL SHARMA & ORS..... Respondents Through: Mr. Manish Gandhi, Mr. Alok Kothari & Mr. Ravi Kumar, Advocates (M-9811023331) along with R-1 in person. Mr. Dhanesh Relan, Standing counsel for DDA Mr. Gauri Chaturvedi, Advocate (M- 9810272270). CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) CM APPL. 12566/2017 (delay)
1. The delay in filing of the application for restoration of appeal is condoned. The appeal is restored. Application is disposed of. RFA 343/2012 & CM APPL.12565/2017
2. The present appeal arises out of the impugned judgment and decree dated 17th September, 2011 by which the Plaintiff/Appellant’s (hereinafter, 2018:DHC:3156 ‘Plaintiff’) suit for declaration, confirmation of possession and injunction was dismissed by the Trial Court.
3. The brief facts are that the Respondents No.1 and 2- Sh. Bhanwar Lal Sharma (hereinafter, ‘D1’) and Smt. Shakuntla Sharma (hereinafter, ‘D2’) were allotted plot no.113, Pocket-A, Sector-29, Rohini, Delhi by the DDA (hereinafter ‘plot’). Subsequent to the said allotment, three Bayana receipts have been executed seeking to transfer rights in the plot.
4. Bayana receipt no.1 dated 21st September, 2004 was executed between D-1 and Sh. Harish Kumar (hereinafter „D-3‟) whereby D-1 accepted Bayana amount of Rs.75,000/- towards sale of the plot for a total consideration of Rs.3,50,000/-.
5. The second Bayana receipt dated 24th September, 2004 was executed between D-3 and Sh. Chander Mohan Sharma (hereinafter „D-4‟) whereby D-3 agreed to sell the suit property for a consideration of Rs.3,60,000/- with advance payment of Rs.75,000/-.
6. Bayana receipt no.3 was executed between D-4 and Sh. Ajit Arora (hereinafter „D-5‟). D-4 agreed to sell the suit property for a consideration of Rs.3,80,000/- with Bayana payment of Rs.75,000/- having been made.
7. Bayana receipt no.4 dated 20th November, 2004 is executed between the D-5 and the Plaintiff- Sh. Arihant Jain. D-5 agreed to sell the suit property for a sum of Rs.7,51,000/- with the Bayana advance of Rs.2,00,000/-. All these four Bayana receipts have exhibited as PW-1/1, PW-1/16, PW-1/17 and PW-1/18 in the suit record.
8. The Plaintiff claimed that D-5 made the payment of two instalments to DDA and the final instalment was paid by him. Accordingly, he sought the following reliefs: “(i) pass a decree of declaration in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is the purchaser of the, suit Plot No.113, Pocket A-1, measuring 60 Sq. Meters, Sector- 29, Rohini, Delhi, as shown in colour red in the site plan attached herewith:
(ii) pass a decree of confirmation of possession in favour of the plaintiff and against the defendants thereby confirming that the plaintiff is in possession of Plot No.113, Pocket A-1, measuring 60 Sq. Meters, Sector-29, Rohini, Delhi, as shown in colour red in the site plan attached herewith;
(iii) pass a decree of mandatory injunction in thereby directing the defendant no.6 to execute Lease Deed or any other document pertaining to the suit Plot No. 113, Pocket A-1, measuring 60 Sq. Meters, Sector- 29, Rohini, Delhi, as shown in colour red in the site plan attached herewith, in favour of the plaintiff;
(iv) pass a decree of permanent injunction in thereby restraining the defendants no.1 and 2, their agents, servants, associates, legal heirs, assigns, nominees and whosoever on their behalf from dispossessing the plaintiff from the suit Plot No.113, Pocket A-1, measuring 60 Sq. Meters, Sector-29, Rohini, Delhi, as shown in colour red in the site plan attached herewith, either forcibly or illegally;
(v) pass a decree of permanent injunction in thereby restraining the defendant no.6 its officials, employees, etc. from executing Lease Deed or any other document pertaining to the suit Plot No. 113, Pocket A-1, measuring 60 Sq. Meters, Sector-29, Rohini, Delhi, as shown in colour red in the site plan attached herewith, in favour of the defendants no.1 and 2 or any other person, except the plaintiff;
(vi) award costs of the present suit in favour of the plaintiff and against the defendants; and
(vii) pass any other or further orders as this
Hon'ble Court deems fit and proper in the facts and circumstances of the case, in favour of the plaintiff and against the defendants.”
9. The DDA filed its Written Statement and submitted and confirmed that the allotment had been made in favour of D-1 vide allotment letter dated 2nd August, 2004 – 6th August, 2004. The possession was also handed by the DDA to D-1 and D-2 on 4th August, 2005 vide possession letter dated 23rd March, 2005. The final conveyance deed i.e. lease deed is yet to be handed over to D-1, though the same has been executed on 14th October, 2005.
10. D[3], D[4] and D[5] have filed their Written Statements supporting the stand of the Plaintiff.
11. Challenging the dismissal of the suit by the Trial Court, the present appeal was filed and notice was issued on 14th August, 2012. D-3 to D-5 did not appear despite service and were proceeded ex-parte vide order dated 14th August, 2013. The present appeal got dismissed on 8th September, 2016 due to non-appearance of the Plaintiff. An application for restoration was filed along with an application for condonation of delay in seeking the restoration being CM APPL. 12565/2017 and 12566/2017.
12. The applications along with the appeal are listed today. Plaintiff and D-1, D-2 and D-6 - DDA addressed their respective submissions. During the course of arguments, the Plaintiff and the contesting Defendants D-1 and D- 2 agreed to settle their disputes on the following terms and conditions: a) It is agreed that the appeal may be restored and the delay may be condoned; b) D-1/D-2 agree to pay a sum of Rs.10 lakhs to the Plaintiff for giving up all the claims in respect of the suit property. The payment shall be made in the form of Demand Draft in favour of Mr. Arihant Jain. Upon receipt of Rs.10 lakhs, the Plaintiff shall have no right or claims in respect of the suit property; c) The Plaintiff is agreeable that the said amount can be paid by D-1 and D-2 on or before 14th August, 2018; d) Upon the receipt of the said payment, all representations made by the Plaintiff shall stand automatically withdrawn.
13. In view of the above settlement, it is directed that upon D1- and D-2 furnishing proof of payment of the sum of Rs.10 lakhs to the Plaintiff, D6- DDA shall issue the lease deed/conveyance deed in favour of D-1/D-2 without any delay and within a period of four weeks upon receiving of the said documents of confirmation. Counsel for the DDA agrees that she has no objection to this course of action. D-3, D-4, and D-5 who are ex-parte in this appeal, shall have no right, title and interest in the suit property and no claims against D-1 and D-2 in respect of the suit property or in respect of any of the payments reflected in the Bayana receipts.
14. The above settlement shall be full and final in respect of the suit property between the Plaintiff and inter-se between the Plaintiff, D-3, D-4 and D-5 on the one hand and D-1/D-2 on the other. The original documents relating to the suit property are on the record of the Trial Court which is tagged with the present Appeal.
15. Upon the payment being made to the Plaintiff, the Registrar General of this Court shall release all the original documents in favour of D[1] and D[2]. The impugned judgment/decree stands modified. The suit stands decreed as per the settlement herein above. The appeal and all pending applications are disposed of as settled.
16. List before Court on 20th August, 2018 for reporting compliance. Thereafter, the matter shall be listed before Registrar General for return of the original documents. Documents liable to be returned: a) Allotment-cum-demand letter dated 2nd August, 2004- 6th August, 2004; b) Letter for taking possession dated 23rd March, 2005; c) Possession letter dated 4th August, 2005; d) 3 Receipts/challans regarding payment of instalments to DDA dated 04th October, 2004, 4th December, 2004 and 10th February, 2005; e) Receipt/challan no.344127 dated 22nd July, 2005 of payment of penalty.
17. If the amounts are paid before 14th August, 2018, parties are given liberty to move an application before the court.
18. The Trial Court record shall be retained till the final compliance takes place.
19. Mr. Arihant Jain and Mr. Bhanwar Lal Sharma are present in court and the settlement terms were dictated in their presence. Mr. Bhanwar Lal Sharma confirms that he is authorised to agree to the terms and conditions on behalf of his wife Defendant no.2. They have appended their signatures below depicting their consent to the terms and conditions set out above. Photocopies of their ID proofs have been retained on record.
20. A copy of this order be given dasti under signature of the Court Master.
PRATHIBA M. SINGH JUDGE MAY 14, 2018