I.C Khurana & Anr v. Harish Ahuja & Ors

1. Mr. I.C. Khurana and Mr. Ashwani Khurana joining together as plaintiffs (hereinafter referred to as the first party) had instituted civil suit, being CS (OS) 2171/2010 (the first suit) impleading Sanjay Passi, Harish Ahuja and HAP Apparel (P) Ltd. as defendant no.l, 2 and 3, prayingfor the following reliefs:- "(a). Pass a decree in favour of the-plaintiffs and against defendant no.2 and 3 for cancellation ofthe sale deed dated 26.05.2009 executed between the plaintiffs and defendant CS(OS) 2171/2010 &927/2014 page i of[6] 2016:DHC:9355 no.3 in respect of the suit property bearing number 56, Golf Link, New Delhi. (b). In the alternate pass a decree for damages to the tune of ?44 Crores alongwith interest @ 24% p.a. in favour of the plaintiff and against the defendants who are jointly and severally liable. (c). Award cost of proceedingsto the plaintiff."

2. Mr. I.e. Khurana, the first plaintiff in the first suit died during the pendency of the case and upon his legal heirs Kailash Rani Khurana and Anu Khurana (wife and daughter respectively of the deceased plaintiff) submitting no objection in favour of Ashwani Khurana (son of the said deceased plaintiff) he was treated by order dated 02.11.2015 as the sole plaintiff ofthe first suit.

3. On 10.04.2012 on the submission of the plaintiffs about they having entered into a settlement with Mr. Sanjay Passi (defendant no.l) in another suit i.e. CS (OS) 1001/2009, his name was deleted from the array.

4. HAP Apparel (P) Ltd. and Harish Ahuja joined B. Parameswaran as co-plaintiffin suit CS (OS) 927/2014 (second suit) impleading Ashwani Khurana, Kailash Rani Khurana and Anu Khurana as defendant nos.l, 2 and 3 praying for the following reliefs "(i). Pass a decree in favour of the plaintiffs and against the defendants jointly and / or severally for recovery of damages of ?24,32,50,000/- (Rupees Twenty Four Crores Thirty Two Lakhs and Fifty Thousand only) alongwith interest @ 18% per annum from the date of filing the suit till actual payment. (ii). Award cost of proceedings and exemplary costs under section 35A in favour of the plaintiffs and against thedefendants jointly and / orseverally apart from payments towards court fees." CS(OS) 2171/2010 &927/2014 page 2 of[6]

5. The learned counsel on both sides submit that Kailash Rani Khurana and Anu Khurana (second and third defendants in the second suit) have given proper authorization in favour of Ashwani Khurana (first defendant) who has joined the proceedings before the mediation centre accordingly on behalf ofthe defendants including himself.

6. The parties have entered into a settlement agreement dated 08.07.2016 in Delhi High Court Mediation and Conciliation Centre which settlement governs both the above-mentioned suits. The settlement agreement has been filed with applications moved in both these cases seeking appropriate final orders to be passed in their terms.

6. It appears from the settlement agreement and the submission of the parties through counsel at the hearing that FIR bearing no.234/2014 had been registered by Economic Offences Wing of Delhi Police on the complaint of Ashwani Khurana. While resolving the dispute which is subject matter of these two suits, the parties had also resolved to have the proceedings arising out of the said FIR closed. It appears the Economic Offence Wing having investigated into the said FIR which involved offences punishable under Section 420, 120 B of the Indian Penal Code, 1860 had filed an untraced report of which notice was given to the complainant (Ashwani Khurana). Certified copy of order dated 29.08.2016 passed by the Chief Metropolitan Magistrate, New Delhi at Patiala House on the report of police under Section 173 ofthe Code of Criminal Procedure, 1973 has been submitted during hearing confirming that with the complainant of the said case having submitted no objection through counsel, the proceedings arisingout of the said FIR have been brought to an end, the untracedreport of the police having been accepted. The CS(OS) 2171/2010 «& 927/2014 certified copy of the said order has been taken on record of CS (OS) 2171/2010.

7. During the course of hearing, affidavits of Mr. Ashwani Khurana and B. Parameswaran have been submitted in support of the prayer made in the joint application under Order 23 Rule 3 Code of Civl Procedure, 1908 (CPC) which are taken on record of CS (OS) 2171/2010. A similar affidavit of Mr. B. Parameswaran has been submittedwhich is taken on record of CS (OS) 927/2014.

8. As per the settlement agreement, the parties resolved to settle the dispute on the following terms " (a). The second party had agreed to pay the first party a sum of ?1,75,00,000/- (Rupees One Crore Seventy Five Lakhs). (b). It is agreed between the parties that the second party shall not pursue his claim in CS (OS) 927/2014. (c). That it is agreed between the parties that the second party shall pay the aforesaid amount of ?1,75,00,000/- (Rupees One Crore Seventy Five Lakhs) before the Flon'ble Court in civil suit no.927/2014 at the time as stated in clause 10(f) below. (d). That it is agreed between the parties that the first l|^ party shall not file his protest petition to the closure report filed by the investigating officer in FIR no.234/2014 PS Economic Offences Wing in the court of Ld. CMM, Patiala House Courts, New Delhi, should the Court concerned not accept the closure report, it shall be open to the second party to initiate appropriate legal proceedings for quashing the said FIR no.234/2014 and the first party shall have no objection to the same and shall provide full co-operation and assistance to the second party in this regard. (e). It is further agreed between the parties that the first party shall make a statement before the court ofLd. CMM, Patiala House Courts, New Delhi thereby bringing on record the instant settlement between the parties. (f). That immediately after the order ofHon'ble CMM, CS(OS) 2171/2010 &927/2014 page 4of[6] Patiala House Courts, closing the proceedings in FIR NO. 234/2014 in terms of closure report or immediately after the quashing order by the Hon'ble High Court, as the case may be, a joint application shall be moved by the parties herein Civil Suit No.2171/2010 and civil suit CS(OS) No.927/2014 thereby praying before the Hon'ble Court for a early hearing in the instant suits to take the instant settlement on record and dispose offthe suit in terms ofthe settlement. The parties shall make a further request before the Hon'ble Court that the Hon'ble Court be pleased to direct refund of court fee paid by the first party and second \ party in their respective suits."

9. Having perused the record, it is found that the parties have entered into this settlement voluntarily, out of their own free will and volition.

10. In view of the above, the second suit (i.e. CS (OS) 927/2014) is dismissed as withdrawn. The first suit is decreed in terms of the above noted settlement as per which the second party (i.e. HAP Apparel (P) Ltd.), Mr. B. Parameswaran and Mr. Harish Ahuja shall pay to the first party (Ashwani Khurana, 5, Green Avenue, Vasant Kunj, New Delhi-110 070), an amount of ?1,75,00,000/- (One crore Seventy Five Lakhs only).

11. The learned counsel for the second party has tendered and the learned counsel for the first party accepts, on instructions, a cheque bearing no.567924 dated 03.10.2016 in the sum of ?1,73,25,000/drawn on Canara Bank in favour ofAshwani Khurana (first party). The learned counsel for the first party (Ashwani Khurana) submits that he is accepting this cheque as the full and final payment in satisfaction of the decree as per above mentioned settlement between the parties, the amount of^1,75,000/- having been withheld towards CS(OS) 2171/2010 927/2014 page 5of[6] tax deduction at source (TDS) inwhich regard proper certificate shall be issued in due course in accordance with law.

12. The parties shall remain bound by their respective undertakings and are left to bear their own costs.

13. Since the suits are being disposed of on settlement arrived through mediation, it is directed that both parties - thatistheplaintiffs of the respective cases - shall be entitled to refund of the court fee. Decree sheet be drawn up accordingly in each case.

14. Resultantly, allthepending applications also stand disposed of.