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2021 Supreme(Del) 340
IN THE HIGH COURT OF DELHI AT NEW DELHI
ASHA MENON, J.
BDR Builders And Developers Private Limited – Appellant
Versus
Shrichand Bijlani - Respondent
CM (M) 8 of 2021
Decided on : 04-06-2021
For the Appellant :Mr. Ravi Gupta, Senior Advocate with Mr. Akhil Sachar, Ms. Sunanda Tulsyan and Mr. Sachin Jain, Advocates
For the Respondent:Mr. Pradeep Norula and Ms. Ayushi, Advocates
Point of Law: Compromise/Settlement Agreement - Suit for possession, recovery of mesne profit and damages - Direction issued - As per terms of Clause iv of Compromise/Settlement Agreement, respondent was required to pay amount when possession of newly constructed second, third and terrace floors with stilt parking was given to defendants or his nominees.
Headnote:
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Section 47 - Order XXIII - Rule 3 - Civil Suit - Whether or not respondent is entitled to claim penalty and if so, of what amount - Petitioner had filed a suit for possession, recovery of mesne profit and damages against respondent by claiming to be sole and absolute owner of built-up property - Respondent had opposed suit on ground that he in his own right was owner of suit property - At stage of final arguments suit was settled and entered into a compromise, broad contours of which court recorded - On basis of compromise broadly recorded both parties moved an application before Trial Court - Trial Court disposed of suit in terms of Compromise/Settlement Agreement.
Finding of the court: Respondent is seeking to set off this amount against what he claims he is entitled to under as penalty clause. This dispute is yet to be resolved. Further staircase going to the basement is second bone of contention and it is to be determined whether it calls for re-construction in light of compounding allowed by SDMC. In circumstances, complete restraint on petitioner preventing him from disposing of both first floors as well as basement falling into share appears to be unfair. Direction issued to petitioner to complete remaining rectifications in terms of observations made hereinabove on second, third and terrace floors within a period of three months from today. Executing Court is directed to determine afresh the need for modifications of the stairs leading to the basement and the skylights, as provided in the common area for the benefit of the basement.
Result: Petition disposed of
JUDGMENT :
CM (M) 8/2021, CM APPLN. 278/2021 (by the petitioner u/S 151 CPC for stay)
1. This petition has been filed by the petitioner under Article 227 of the Constitution of India with the following prayers:
“a) Allow the present Petition and set aside the order dated 05.09.2020 passed by the Court of Shri Sanjay Sharma-II, Additional District Judge-05 (South East), Saket Courts, New Delhi in Execution Petition No.1352 of 2018 titled as Shrichand Bijlani versus BDR Builders and Developers Private Limited;
b) Pass any other such order as this Hon'ble Court may deem fit in the facts and circumstances of the present case.”
2. The brief facts as are relevant for the disposal of this petition are as follows. The petitioner had filed a suit for possession, recovery of mesne profit and damages against the respondent by claiming to be the sole and absolute owner of the built-up property No.C-11 Nizamuddin East, New Delhi, admeasuring 200 square yards. The respondent had opposed the suit on the ground that he in his own right was the owner of the suit property. At the stage of final arguments, the suit, which was filed in 2016, was settled and the parties entered into a compromise, the broad contours of which the court recorded on 10th November, 2017. On the basis of the said compromise broadly recorded on 10th November, 2017, both the parties moved an application before the learned Trial Court under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (“CPC”, for short) recording in detail the terms and conditions of the Compromise/Settlement Agreement (Annexure B). The learned Trial Court disposed of the suit in terms of the said Compromise/Settlement Agreement on 23rd December, 2017.
3. Subsequent to certain events, the respondent filed an Execution Petition bearing No.1352/2018. The respondent prayed that directions be issued to the petitioner to carry out the construction in strict adherence to the terms and conditions of the Compromise/Settlement Agreement on the basis of which the suit was decreed on 23rd December, 2017. The impugned order dated 5th September, 2020 while disposing of objections filed under Section 47 CPC by the petitioner, has directed it to carry out the necessary repairs/modifications within three months from the date of the order. It also declined to vacate the interim order dated 19th December, 2018 whereby the petitioner has been restrained from creating third party rights or interests of any nature whatsoever in the first floor and basement of the suit property. The present petition has been filed assailing this order on various grounds.
4. It may be noticed here that in the course of hearing of this Execution Petition, the learned Executing Court appointed Shri Ajay Goshwami, Advocate as Local Commissioner on 31st October, 2018. The Local Commissioner inspected the premises on 5th November, 2018 and submitted his report dated 17th November, 2018. The petitioner filed objections under Section 47 CPC to the said report on 17th December, 2018. Despite the objections filed by the petitioner, the learned Executing Court took the report of the learned Local Commissioner, Shri Ajay Goshwami as filed on 30th November, 2018 in order to facilitate the settlement between the parties. On 19th December, 2018, the learned Executing Court directed the parties to maintain status quo qua the suit property till further orders.
5. According to the petitioner, it carried out several changes and rectifications on the basis of the Local Commissioner’s report and filed a list on 17th January, 2019. However, these were disputed by the respondent. As a result, another Local Commissioner, Shri Sachin Aneja, Advocate was appointed to carry out further inspection of the suit property. Shri Sachin Aneja, Local Commissioner inspected the suit property on 18th February, 2019 and submitted his report on 2nd March, 2019 to which the objections/clarifications were filed by the petitioner on 20th March, 2019. These objections were considere
