Virender Kumar Jain@Bobby v. Ravinder Kumar Jain & Ors

1. The suit for partition and rendition of accounts at hand was filed in 2010impleading eleven defendants.The plaintiffis the brother ofdefendants no.l to 4. Defendants no.5 to 8 are the wives of defendants no.l to 4. Defendant no.9 is the wife ofthe plaintiffwhile defendants no.10 and 11 are the legal heirs ofthe two deceased sisters ofthe plaintiffand defendants NO. 1 to 4. CS(OS)185/2010&EX.P.119/2016 ^"8^^ 2016:DHC:8521

2. In the course of proceedings, on 21.05.2012 efforts then underway between the parties to resolve the dispute amicably were noted. On 26.07.2012,the court was informed by the counsel for defendants no.l to 4 that their dispute with regard to the suit properties had been fully and finally 'settled between the parties for the reason that the plaintiff had accepted to take a specific share (described as basket no.4) from the estate of the s predecessor-in-interest of the parties, leaving the balance (out of the five baskets in all) to the shares of defendants no.l to 4. It appears from the proceedings recorded on the said date(26.07.2012)that the terms on which the parties were agreeable to settle the dispute fully and finally had not yet properly crystallized.

3. Against the above backdrop, when the matter came up on 19.03.2015 it was submitted before the court that a settlement had been arrived at between the parties whereunder, besides taking up the shares as mentioned above, the plaintiff and defendants no.l to 4 had agreed to pay certain amounts ofmoney to the legal heirs oftheir deceased sisters represented by defendants no.10 and 11 in these proceedings. To put it clearly, the defendants no.l to 4informed the courtthatthey had agreed tojointly pay an amount of crores, i.e. ?4 crores each, to defendants no.10 and 11, by pooling together an amount of?2 crores each,to satisfy the claims ofsaid legal heirs oftheir deceased sisters inthe estate ofthe predecessor-in-interest ofthe parties. The said paymentby defendants no.l to 4 wasto be made to the defendants no.10 and 11 within the outer,limits oftwelve months ofthe said order. Similarly,the plaintiffalso submitted that since he did not have any liquidity as on date, his entire business having been earlier run by his siblings(defendants no.l to 4), he was undertaking a responsibility to pay cumulative amount of ?1 crore to defendants no.10 and 11 {i.e. ?50 lacs CS(OS)185/2010&EX.P.119/2016 ^ 4.-. each) within outer limits of eighteen months of the said order, that too conditional upon his share(basket no.4)falling into his hands. The parties further informed the court that the general terms and conditions attached to the properties as on 21.05.2012(date ofdrawing ofthe baskets wherein the cash and jewellery is excluded) would inure. At the same time, it was brought to the notice ofthe court that concerning a petrol pump at Rohtak Road, New Delhi in which respect the Indian Oil Corporation had granted license in favour ofthe predecessor-in-interest ofthe parties and which, in terms ofthe said settlement, were to fall in the share ofdefendants no.l to 4 having been taken over by Indian Oil Corporation on account of certain defaults attributableto the plaintiffand his wife,someformalities required to be undertaken to secure re-allotment of the license from Indian Oil Corporation, the plaintiff and his wife (defendant no.9) having undertaken the responsibility to co-operate in requisite steps to be taken by defendants no.l to 4.

4. The above noted submissions having been recorded,the learned Single Judge then dealing with the matter also accepted the submissions of the parties that there would be a need to appoint a facilitator/overseer "to oversee the modalities to be worked out for the implementation ofthe aforenoted settlement and the exchange of properties including preparation of documents in terms ofthe baskets allotted to each ofthe parties". Thus,Mr. Ravi Gupta,Senior Advocate was appointed as the facilitator/overseer. The parties were directed to appear before him forfurther proceedings.

5. The subsequent proceedings make it clear that the terms on which the parties were ready to resolve the dispute as noted in the order dated 19.03.2015 could not be acted upon. Some further disputes seem to have arisen rendering it a case of compromise which was,to say the least, still- CS(OS)185/2010&EX.P. 119/2016 Page 3of[6] ♦born. So much so, that the directions of the court for the parties to appear before the facilitator/overseer (described in the order dated 14.09.2015 as mediator) also couldnot result inany meaningfulprogress.

6. On 15.01.2016, the court was informed that "four out of five brothers being plaintiff and defendants no.l to 4" were agreeable to "in-principle" settlement of 1/5 share ofeach ofthebrothers, this being withrespect to the properties "which could really be divided being either of the parents or purchased from the properties of the parents which were sold". The order does not clearly indicate if the fifthbrother (it is not even clear who the said fifth brother was) also in agreement with the said "in-principle settlement". Learned counsel ShriLalit Gupta, Advocate for defendants no.l to 4 submits that though order dated 15.01.2016 is not so specific, since he represents all the four defendants (defendants no.l to 4), he would like to clarify that the said settlement was acceptable to all the five brothers including theplaintiff.

7. Be that as it may in the proceedings dated 15.01.2016, the learned Single Judge then seized of the matter further noted that "some differences for actual division" had to be sorted out. It was also noted that the rights of defendants no.10 and 11 {i.e. legal heirs of deceased sisters) would "also be adequately safeguarded if any final compromise is arrived at between the brothers in the spirit of give and take". The court also noted in the said very order of 15.01.2016 that any affected parties to the present litigation on account of inclusion of their properties would also have "notice ofhearing at the stage of fmalization of compromise and disposal of the suit".

8. Subsequent proceedings indicate that parties informed (on 29.02.2016) that settlement was not possible and "the matter will have to be decided on merits". At the same time, defendants no.l to 8 raised the issue of maintainability of the suit itself. CS(OS) 185/2010 & EX.P. 119/2016 Page 4 of[6] i i f. ■ V /

9. The execution petition (Ex.P.119/2016) has been preferred by defendants no.10 and 11 seeking execution of the order dated 19.03.2015 whereunder the plaintiffon one hand and defendants no.l to 4 on the other, had given an undertaking and agreed to pay the amounts of money as specified above.

10. Having regard to the proceedings of 19.03.2015 and what was submitted in its wake on the subsequent dates, particularly the submissions made on 29.02.2016 wherein the partiesjointly submitted that the settlement was not possible and the matter would have to be decided on merits, in which submissions even defendants no.10 and 11 were clearly a party, they being duly represented by counsel onthe said date and they not having taken any exception thereto, it is clear that no executable compromise, much less an executable decree came to be recorded or passed by the proceedings of 19.03.2015. Atthe most, borrowing the expression from the proceedings of 15.01.2016,it was"in-principle settlement"to which some more flesh had to be added. The terms were still not clear and/or crystallized which is why a facilitator/overseer had also to be appointed. In a case ofthis nature where the estate of the deceased predecessor-in-interest of the parties is vast and includes/involves a number ofproperties,modalities had to be worked out in clear terms for partition and vesting of clear title in the names of rightful claimants. Since no such modalities could be worked out or put on paper in the form of a formal family settlement, the submissions made to, or observations recorded by, the court in the proceedings of 19.03.2015 can hardly be said to be ajudgmentor a decree which could be putto execution.

11. With the above position vis-a-vis the order of19.03.2015 having been clarified for removal of all doubts, the execution petition being Ex.P.119/2010[6] cannotbe proceeded further. Itis consequently dismissed. CS(OS)185/2010&EX.P.119/2016 ^

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12. A copy ofthis order passed on the file ofCS(OS)185/2010 shall be placed on the file ofEx.P.l19/2016. lA No.8328/2013 Cbv the plaintiff): lA No.10003/2015 tbv defendants no.l to 8for clarification^ lA No.14747/2015 /by the plaintifffor amendment ofbaskets!: lA No.17683/2015(by defendant no.10 for modification^ lA No.23124/2015 Cby defendants n.l to 8for directions!:and lA No.23288/2015 thv the plaintiff)in CSfOS)185/2010

13. From the submissions ofthe parties atthe hearing,it is clear thatthese interim applications, i.e. lA No.8328/2013 lA No.10003/2015, lA No.14747/2015, lA No.17683/2015, lA No.23124/2015 and lA No.23288/2015 relate or arise out of the observations made in the order dated 19.03.2015 whieh, as has been clarified above, is not executable settlement or decree. In these circumstanees, these applieations cannot survive. They are disposed ofaecordingly. CSrOS)185/2010

14. There are a number ofother interim applications pending. The learned counsel on both sides seems to be clueless about said applications or their import. The plaintiff shall come with a short synopsis of all the pending applications intimating the priority in which the said applications need to be taken up for consideration and disposal. Ifany other interim application has remained pending which also requires to be disposed ofin the light ofabove observations/directions respecting the order dated 19.03.2015, it shall be so clearly indicated in the synopsis.