CS(OS)/927/2014 of HAP APPAREL(P) LTD & ORS Vs ASHWANI KHURANA & ORS

$-29 & 30

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CS(OS) 2171/2010 and lA 14309/2010 and 12400/2016

I.C KHURANA & ANRPlaintiffs

Through: Mr. Rohit Puri, Advocate

versus

HARISH AHUJA AND ANR.DefendantsThrough: Ms. Neelima Tripathi and Ms. D.D.Majumdar, Advocates

+CS(OS) 927/2014 and lA 5984/2014, 23159/2014, 23160/2014 and12142/2016

HAP APPAREL(P) LTD & ORSPlaintiffs

Through: Ms. Neelima Tripathi and Ms. D.D.Majumdar, Advocates

versus

ASHWANIKPIURANA & ORSDefendantsThrough: Mr. Rohit Puri, Adv. for D-1

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBAORDER%05.10.2016

1.Mr. I.C. Khuranaand Mr. AshwaniKhuranajoiningtogetherasplaintiffs(hereinafterreferredto as the first party)had institutedcivilsuit,beingCS (OS)2171/2010(thefirstsuit)impleadingSanjayPassi,HarishAhuja and HAP Apparel(P) Ltd. as defendantno.l, 2 and 3,prayingfor the followingreliefs :-

"(a). Pass decree in favour of the-plaintiffsand againstdefendantno.2 and 3 for cancellationofthe sale deed dated26.05.2009executedbetweenthe plaintiffsand defendant&927/2014927/2014 i of6page

CS(OS)2171/2010&927/2014927/2014

no.3 in respect of the suit property bearing number 56, GolfLink, New Delhi.

(b).In the alternate pass decree for damages to the tuneof ?44 Crores alongwith interest @ 24% p.a. in favour ofthe plaintiff and against the defendants who are jointly andseverally liable.

(c).Award cost of proceedingsto the plaintiff."

2.Mr. I.e. Khurana, the first plaintiff in the first suit died duringthe pendency of the case and upon his legal heirs Kailash RaniKhurana and Anu Khurana (wife and daughter respectively of thedeceased plaintiff) submitting no objection in favour of AshwaniKhurana (son of the said deceased plaintiff) he was treated by orderdated 02.11.2015 as the sole plaintiff of the first suit.

3.On 10.04.2012 on the submission of the plaintiffs about theyhaving entered into settlement with Mr. Sanjay Passi (defendantno.l) in another suit i.e. CS (OS) 1001/2009, his name was deletedfrom the array.

4.HAPApparel(P)Ltd.andHarishAhuja joinedB.Parameswaranas co-plaintiffin suit CS (OS) 927/2014(secondsuit)impleadingAshwaniKhurana,KailashRaniKhuranaand AnuKhurana as defendant nos.l, 2 and 3 praying for the followingreliefs

"(i). Pass decree in favour of the plaintiffsand againstthe defendantsjointly and / or severally for recovery ofdamages of ?24,32,50,000/-(Rupees Twenty Four CroresThirty Two Lakhs and Fifty Thousand only) alongwithinterest@ 18% annum from the date of the suit per filingtill actual payment.

(ii).Award cost of proceedings and exemplary costsunder section 35A in favour of the plaintiffsand againstthe defendantsjointlyand / orseverallyapartfrompayments towards court fees."

CS(OS)2171/2010&927/2014

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5.The learnedcounselon both sidessubmitthat KailashRaniKhurana and Anu Khurana (second and third defendants in the secondsuit) have given proper authorization in favour of Ashwani Khurana(first defendant) who has joined the proceedings before the mediationcentre accordingly on behalf of the defendants including himself.

6.The parties have entered into settlementagreement dated08.07.2016 in Delhi High Court Mediation and Conciliation Centrewhichsettlementgovernsboth the above-mentionedsuits.Thesettlement agreement has been filed with applications moved in boththese cases seeking appropriate final orders to be passed in their terms.6.It appears from the settlement agreement and the submission ofthepartiesthroughcounselatthehearingthatFIRbearingno.234/2014had been registered by EconomicOffences Wing ofDelhi Police on the complaint of Ashwani Khurana. While resolvingthe dispute which is subject matter of these two suits, the parties hadalso resolved to have the proceedings arising out of the said FIRclosed. It appears the Economic Offence Wing having investigatedinto the said FIR which involved offences punishable under Section420, 120 of the Indian Penal Code, 1860 had filed an untracedreport of which notice was given to the complainant (AshwaniKhurana).Certified copy of order dated 29.08.2016 passed by theChief Metropolitan Magistrate, New Delhi at Patiala House on thereport of police under Section 173 of the Code of Criminal Procedure,1973 has been submitted during hearing confirming that with thecomplainant of the said case having submitted no objection throughcounsel,the proceedingsarisingout of the said FIR have been broughtto an end, the untracedreport of the police having been accepted. TheCS(OS)2171/2010«& 927/2014page 3 of 6

certifiedcopy of the said order has been taken on record of CS (OS)2171/2010.

7.During the course of hearing, affidavits of Mr. AshwaniKhuranaand B. Parameswaranhave been submittedin supportof theprayer made in the joint application under Order 23 Rule 3 Code ofCivl Procedure, 1908 (CPC) which are taken on record of CS (OS)2171/2010.A similar affidavit of Mr. B. Parameswaranhas beensubmittedwhich is taken on record of CS (OS) 927/2014.

8.As per the settlement agreement, the parties resolved to settlethe dispute on the followingterms

" (a). The secondparty had agreedto pay the first partyasum of ?1,75,00,000/- (Rupees One Crore Seventy FiveLakhs).

(b).It is agreedbetweenthe partiesthat the secondpartyshall not pursue his claim in CS (OS) 927/2014.

(c).That it is agreed between the parties that the secondparty shall pay the aforesaid amount of ?1,75,00,000/-(Rupees One Crore Seventy Five Lakhs) before theFlon'bleCourtin civilsuit no.927/2014at the time asstated in clause 10(f) below.

(d).That it is agreed between the parties that the firstparty shallnot file his protestpetitionto the closurereportfiled by the investigating officer in FIR no.234/2014 PSEconomic Offences Wing in the court of Ld. CMM,Patiala House Courts, New Delhi, should the Courtconcernednot acceptthe closurereport, it shallbe open tothe second party to initiateappropriatelegal proceedingsfor quashingthe said FIR no.234/2014and the first partyshall have no objectionto the same and shall providefullco-operationand assistance to the second party in thisregard.

(e).It is furtheragreed betweenthe partiesthat the firstpartyshallmake statementbeforethe courtofLd. CMM,Patiala House Courts, New Delhi thereby bringing onrecordthe instantsettlementbetweenthe parties.(f).Thatimmediatelyafterthe orderofHon'bleCMM,CS(OS)2171/2010&927/2014page4of6

Patiala House Courts, closing the proceedings in FIR No.234/2014 in terms of closure report or immediately afterthe quashing order by the Hon'ble High Court, as the casemay be, joint application shall be moved by the partiesherein Civil Suit No.2171/2010 and civil suit CS(OS)No.927/2014 thereby praying before the Hon'ble Court fora early hearing in the instant suits to take the instantsettlement on record and dispose off the suit in terms of thesettlement. The parties shall make further request beforethe Hon'ble Court that the Hon'ble Court be pleased todirect refund of court fee paid by the first party and secondparty in their respective suits."

9.Having perused the record, it is found that the parties haveentered into this settlement voluntarily, out of their own free will andvolition.

10.In view of the above, the second suit (i.e. CS (OS) 927/2014) isdismissed as withdrawn.The first suit is decreed in terms of the abovenoted settlement as per which the second party (i.e. HAP Apparel (P)Ltd.), Mr. B. Parameswaranand Mr. Harish Ahuja shall pay to thefirst party (Ashwani Khurana, 5, Green Avenue, Vasant Kunj, NewDelhi-110070), an amountof ?1,75,00,000/-(One crore SeventyFiveLakhs only).

11.The learned counsel for the second party has tendered and thelearned counsel for the first party accepts, on instructions,a chequebearing no.567924 dated 03.10.2016 in the sum of ?1,73,25,000/-drawn on Canara Bank in favour of Ashwani Khurana (firstparty).The learned counsel for the first party (Ashwani Khurana) submitsthat he is accepting this cheque as the full and final payment insatisfactionof the decree as above mentionedsettlementbetween perthe parties,the amountof^1,75,000/-havingbeenwithheldtowardsCS(OS)2171/2010927/2014page5of6

tax deductionat source(TDS) inwhichregardpropercertificateshallbe issued in due course in accordance with law.

12.The partiesshall remainbound by theirrespectiveundertakingsand are left to bear their own costs.

13.Since the suits are being disposed of on settlement arrivedthroughmediation,it is directedthatbothparties- thatistheplaintiffsof the respective cases - shall be entitled to refund of the court fee.Decree sheet be drawn up accordinglyin each case.

14.Resultantly,allthependingapplicationsalso standdisposedof.15.A copy of this order passed on the file of CS (OS) 2171/2010shall be placed on the file of connectedCS (OS) 927/2014.

OCTOBER 05, 2016YgCS(OS)2171/2010& 927/2014

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