Deept Sarup Agarwal vs.s. Randhir Singh Chandhok & Ors - Court Judgment

$~OS-21 * % + CS(OS) 535/2017 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:

29. 11.2018 ..... Plaintiff DEEPT SARUP AGARWAL Through Mr.Vaibhav Sethi and Mr.Rahul Kumar, Advs. versus S. RANDHIR SINGH CHANDHOK & ORS ..... Defendants Through Mr.Tanmaya Mehta, Mr.Anurag Sahay and Mr.Raghav Wadhwa, Advs. for D-1. Mr.Amit Sethi, Adv. for D-2. Mr.P.S.Bindra, Adv. with Ms.Rishika Arora, Adv.for D-3. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.

(ORAL) IA No.14829/2018 and 14830/2018 1. This application IA148292018 is filed by defendant No.2 seeking modification/rectification of the order of this court dated 09.10.2018. IA No.14830/2018 is filed by defendant No.3 with a somewhat similar prayer, namely, to modify the order of this court dated 09.10.2018.

2. The facts of the matter are within a narrow compass. The plaintiff entered into an Agreement to Sell on 06.02.2017 with late Sh. Prehlad Singh Chandhok regarding the suit property. It was agreed that the total consideration would be Rs. 10 crores. Rs. 1 crore was paid at the time of execution of the Agreement to Sell on 06.02.2017. A Supplementary Agreement dated 15.05.2017 was executed extending the time for payment CS(OS) 535/2017 Page 1 of the balance consideration of Rs. 9 cores up to 16.06.2017. It is the case of defendant No.2 that a notice was sent to the plaintiff on 13.06.2017 stating that in case the balance payment is not made by 16.06.2017, the Supplementary Agreement to Sell shall stand terminated and the earnest money would stand forfeited.

3. In the meantime, Sh. Prehlad Singh Chandhok died on 29.06.2017. As the legal heirs as claimed failed to execute the sale deed, the present suit for Specific Performance was filed. The defendants are the legal heirs of late Sh. Prehlad Singh Chandhok.

4. On 09.10.2018, this court passed the following order:-

"“This suit is filed by the plaintiff seeking to specifically enforce the Agreement to Sell dated 6.2.2017 executed between the plaintiff and late Shri Prehlad Singh Chandihok in respect of property bearing Municipal No.5878, built on Plot No.19B Block UA measuring 183.3 sq.yds. situated in the layout plan of Northern City Extension Scheme No.1, Subzi Mandi presently known as Jawahar Nagar, Malka Ganj Road, Delhi. At the time of execution of the Agreement to Sell a sum of Rs.1,00,00,000/- was paid to Shri Prehlad Singh Chandihok. Unfortunately, Shri Prehlad Singh Chandihok died on 29.6.2017. The defendants are children of late Shri Prehlad Singh Chandihok. Learned counsel for the plaintiff submits that he is willing to deposit n court the balance sum of Rs.9,00,00,000/- within three weeks. It appears that there is also a dispute going on between the defendants which is subject matter of CS(OS)693/2017. It is agreed by the defendants that they have no objection to complete the transaction with the plaintiff in case the plaintiff/Authorised Representative deposits the said sum of Rs.9crore within three weeks from today. Ordered accordingly. However, learned counsel for defendant No.1 point out CS(OS) 535/2017 Page 2 that the wives of defendant No.1 and 2 may also have rights in the property and it would be appropriate that they be impleaded as parties. Accordingly, Mrs.Satinder Kaur Chandihok wife of defendant No.1 and Mrs.Rominder Kaur Chandihok, wife of defendant No.2 are impleaded as parties to the present suit. I may add that they are being impleaded without prejudice to the rights and contentions of the defendants in the pending suit inter se. Learned counsel appearing for defendants No.1 and 2 seeks some time to file Vakalatnama on behalf of the newly impleaded defendants. Plaintiff to file amended Memo of Parties. Accordingly, the plaintiff will within three weeks from today deposit with the Registrar General of this court a sum of Rs.9 crores. On deposit of the said amount, the defendants will take steps to have the property transferred in the name of the plaintiff/his representative. The defendants will also on the next date bring in court the original title deeds of the property in question. The question of distribution of the amount to be deposited by the plaintiff shall be subject to order of the Court hearing CS(OS) 693/2017. List on 13.11.2018. OA782018 This appeal is filed by defendant No.3 seeking to impugn the order dated 17.5.2018 whereby the right of defendant No.3 to file written statement was closed. Appeal is not opposed. For the reasons stated in the appeal, same is allowed. Written statement be filed by defendant No.3 is taken on record. The defendants will on the next date bring in court the original title deeds.” 5. Thereafter, on 29.10.2018 IA No.14829/2018 filed by defendant No.2 and IA No.14830/2018 filed by defendant No.3 came up in court. On that date learned counsel appearing for the plaintiff clarified that they would deposit the balance consideration of Rs. 9 crores in court the next date. The plaintiff have pursuant to the order of this court dated 0910.2018 deposited the sum of Rs. 9 cores on 31.10.2018. CS(OS) 535/2017 Page 3 6. The net effect is that the plaintiff has complied with the order of this court dated 09.10.2018 and has also paid the entire balance sale consideration of Rs.9 crores in terms of the Agreement to Sell dated 06.02.2017.

7. Learned counsel for defendant No.2 has submitted that on the said date, namely, 09.10.2018 a proxy counsel had appeared and there were no instructions from the client to complete the transaction. He submits that the proxy counsel was not authorised to make any such concession or enter into a settlement. Hence, the settlement is not binding. Reliance was placed on the judgment of this court in Berjesh Goyal & Anr. Vs. Daily Foods (India), 158(2009) Delhi 33.

8. Learned counsel appearing for defendant No.3 has also pleaded that though in court he himself had appeared but after having discussions with the client, the client had objected to the concession made and hence, he submits that the present application has been filed.

9. Both the learned counsel for defendants No.2 and 3 have also pleaded as follows:-

"(i) They have relied upon the judgment of the Supreme Court in Gurpreet Singh vs. Chatur Bhuj Goel, AIR1988SC400to submit that under Order 23 Rule 3 CPC any lawful agreement between the parties can only be converted to a decree if the same is in writing. They submit that as there is no written agreement between the parties, the statements made in court cannot lead to passing of a decree (ii) Learned counsel have also relied upon the judgment of the Supreme Court in Himalayan Cooperative Group Housing Society vs. Balwant Singh, AIR2015SC2867to submit that the submissions made in court on CS(OS) 535/2017 Page 4 09.10.2018 cannot tantamount to admissions and no decree can also be passed based on the said submission.

10. Factually, it is manifest that the plaintiff has deposited the sum of Rs.9 crores. This is prima facie a clear indication that the plaintiff was ready and willing to complete the transaction as on the date of the filing of the suit and is still willing and ready to complete the transaction.

11. Normally the statements made in court are binding on the parties. Reference may be had to the judgment of this court in the case of Paul Properties Pvt. Ltd. & Anr. v. Estate Officer Life Insurance Corporation of India & Anr., LPA2982010 (MANU/DE/1511/2010), wherein this court held as follows: “33. At this juncture, we think it appropriate to observe that on a keener scrutiny of the order of the proceedings before the learned Single Judge, it is clear that it is an unequivocal concession with regard to a finding of fact which has been arrived at by the Estate Officer. While the learned Singe Judge was going to dismiss the writ petition, time was sought for and thereafter, concession was given. The concession of a counsel in a court of law has its own sacrosanctity. It is not the case where there was no consultation whatsoever. On a scrutiny of the entire gamut of the facts, it emerges with utmost clarity which can be envisioned that a maladroit attempt was made to take a somersault and wriggle out of the same. In case the same, if we allow ourselves to say so, is permitted, it will usher in a state of anarchy in the process of adjudication and the high tradition of the Bar and the acceptance of statements made at the Bar would be in jeopardy. The law does not countenance the same either in the expanse of substantive law or in the expansion of adjective law.” 12. However, in the course of the arguments, learned counsel for the plaintiff, on instructions, submits that keeping in view the multiple CS(OS) 535/2017 Page 5 objections raised by defendant No.2 and 3, it would be in the interest of justice, that the money deposited by him may be refunded to him with costs. He submits that he had agreed to pay the balance sum of Rs.9 crores to bring a quietus to the issue. He submits that he does not wish to further complicate the litigation.

13. There is no dispute that the Agreement to Sell was executed between the parties. Keeping in view the admissions made, before this Court on 9.10.2018, normally, I would have been inclined to pass a decree in favour of the plaintiff. However, keeping in view the nature of the objections raised by defendants No.2 and 3 and the stand of the plaintiff, I allow the present two applications and modify the order dated 09.10.2018 to the extent that the transaction need not be completed in terms of the order of this court dated 09.10.2018. This is however subject to cost of Rs. 8 lakhs imposed on defendants No.2 and 3 to be shared equally in equal proportion by the said defendants. These costs are being imposed keeping in view the costs that the plaintiff would have suffered in depositing the sum of Rs.9 crores in court and keeping the same deposited for one month. These costs are a direct consequence of the casual acts of defendants No.2 and 3. The costs will be paid within six weeks from today.

14. The Registry will release the amount of Rs.9 crores to the entity who had deposited the said amount within one week from today.

15. Learned counsel for defendants No.1, 4 and 5 submits that on 09.10.2018, he had given his consent to the transaction for the purpose of resolving the matter and that as the matter has not been sorted out, his consent would stand withdrawn.

16. In view of the above, the applications stand disposed of. CS(OS) 535/2017 Page 6 OA No.78/2018 This appeal was allowed and the written statement of defendant No.3 was allowed to be taken on record in view of the concession given by the plaintiff keeping in mind the settlement of the matter on 09.10.2018. Learned counsel for the plaintiff submits that this concession may now be treated as withdrawn. Accordingly, the order dated 09.10.2018 allowing OA No.78/2018 is also recalled. This appeal will now be heard on merits. List on 27.02.2019. CS(OS) 535/2017 Learned counsel appearing for Mrs.Satinder Kaur Chandhok, wife of defendant No.1 submits that they adopt the written statement filed by defendants No.1, 4 and 5. List on 27.02.2019. Copy of this order be given dasti under the signatures of the Court Master. JAYANT NATH, J NOVEMBER29 2018 Rb Corrected and released on 3.12.2018 CS(OS) 535/2017 Page 7