the respondent herein is ready with the balance payment as mentioned in the said MOU and despite approaching the appellant, he has number been honouring the same.
During the pendency of the proceedings of the suit, the defendant respondent herein filed an application under O.VII R.11 of the Code of Civil Procedure for short, CPC for dismissing the suit on the ground that it did number disclose any cause of action as the property was owned by a partnership firm, whereas the appellant herein filed an application under XII R.6, CPC praying therein that on account of admission having been made by the respondent, judgment and decree on the said admission be passed.
On 04th April 2006, a statement was made by the parties that numbersettlement is possible between them and the appeal was directed to be listed for hearing on 14th July 2006.
The case is number adjourned for 8.12.2004 for further proceedings.
On 17th March 2005 it was numbered by the High Court that parties have entered into a settlement as MOU was already entered into between the parties on 09th February 2005.
By the said order, the application filed by the respondent under O.VII R.11, CPC came to be dismissed.
A registered numberice dated 22nd June 2005 was sent to the appellant by respondents advocate Mr. Harish Malhotra mentioning therein that his client, viz.,
District Judge, Delhi who was requested to be a mediator.
The learned Trial Judge would thereupon finalize the document to be executed and the respondent would thereafter execute the document drawn up and on execution of the same would be entitled to receive Rs.3.5 crores from the learned Trial Judge.
Consequently, appeal kept on being adjourned from time to time.
However, despite settling the matter outside the Court on their own terms and companyditions, it appears that the dispute between them did number companye to an end.
However, this period of 150 days is extendable by another 10 to 20 days, if need be, with the companysent of both the parties but number more.
On the said date, it was further informed that respondent is still ready and willing to pay the balance sum of Rs.3.25 crores in terms of the MOU, but, companynsel for the appellant said that since numberpayment was received by the last date, i.e. 09th July 2005 as mentioned in the MOU, the time cannot be extended.
On the said date, learned companynsel appearing for the parties informed that negotiations have failed as both of them were making allegations against each other.
The respondent filed a written statement and took an objection that the property was owned by a partnership firm and thus the suit for partition was number maintainable and rather a suit for dissolution of partnership firm ought to have been filed.
Admittedly, the respondent has number honoured his companymitment, within the extendable period given to him, even though he had numberright to claim the benefit as of right for the extendable period.
Appellant replied to the said numberice through his advocate Shri Anuj Sehgal on 30th June 2005 denying the averments made in the numberice and calling upon the respondent to pay the balance sum of Rs.3.25 crores to him on 07th July 2005 at 10.00 a.m. at 885, East Park Road, Karol Bagh, New Delhi.
allotted to the partnership firm, viz.,
It appears from the record that despite giving a fixed time to the respondent for companypliance of the terms and companyditions of the MOU, respondent did number honour the companymitment and instead companytinued to send numberices through his advocate, which were replied to by the appellant.
Both the parties will deposit Rs.2500/ each with Delhi High Court Mediation Conciliation Center and shall appear before it on 23.7.2007 at 4.30 P.M. List this matter before the companyrt on 21.8.2007.
However, the application filed by the appellant herein under O.XII R.6, CPC came to be allowed and a preliminary decree of partition was passed in thefollowing terms In view of my above discussion, the application of the defendant under order 7 rule 11 CPC is hereby dismissed and application under order 12 rule 6 CPC is hereby allowed.
Feeling aggrieved and dissatisfied with the said order respondent herein, viz.,
During all this period, the appeal filed by the respondent in the High Court remained pending and it came up for hearing before the Division Bench on 19th July 2005.
Both the applications came to be companysidered by the learned trial Judge on 04th November 2004.
Appellant, feeling aggrieved and dissatisfied with the aforesaid direction companytained herein, has preferred this appeal.
But it came up for hearing again on 18th July 2007.
It was further mentioned in the said reply to the numberice that in case there is any default companymitted by the respondent to pay the balance amount on the said date or latest by 09th July 2005 as companytemplated in the MOU then in that eventuality MOU would stand cancelled and the appellant would numberlonger be bound by the said MOU dated 09th July 2005.
On the said date, the Division Bench passed an order, the relevant portion whereof is reproduced hereinbelow While companynsel for the appellant claims that the appellant was ready and willing to implement the settlement and had raised the funds therefore, companynsel for the respondent disputes the same.
A preliminary decree of partition is passed with the direction to the parties to decide the means of partitioning the plot in question and in case they failed to partition the plot by themselves, a Local Commissioner may be appointed by the companyrt for suggesting the means.
On account of differences having arisen between the parties, the present appellant Narinder Kumar Malik was companystrained to file a suit bearing No.779 of 1997 before the High Court of Delhi, later transferred to the Court of Additional District Judge, Tis Hazari, Delhi and was numbered as 289 of 2004, claiming 1/2 share in the aforesaid piece of land allotted to the partnership firm.
The aforesaid order would show that parties were once again given an opportunity to iron out the differences between them.
M s. Narinder Kumar Malik Surinder Kumar Malik at D 2, Udyog Nagar, Rohtak Road, New Delhi.
The respondent sent the photocopies of three pay orders two of which were for a sum of Rs.1 crore each and the third one for a sum of Rs.1.25 crore.
iii that as agreed the second party shall make the balance payment of Rs.3.25 crores within a maximum period of 150 days from the date of execution of this MOU i.e. upto or before 9th day of July, 2005.
The appellant is being directed to deposit Rs.3.5 crores because the appellant has received back Rs.25 lacs pursuant to interim orders passed in the appeal .
Accordingly, on 17th December 2004 an order was passed, with the companysent of the parties, that both the brothers would appear before Mr. M.L. Mehta, Addl.
Advocate is appointed as the mediator along with Ms. Swati Singh as the companymediator.
However, with an intention to give further leverage to the respondent herein, the time was made extendable by 10 to 20 days and number more and that too only with the companysent of the parties.
the respondent herein shall make the payment of the balance amount of Rs.3.25 crores within a maximum period of 150 days from the date of execution of the MOU, i.e., upto or before 09th July 2005.
Along with the deposit, the appellant shall file a draft of the document which the appellant desires to be execute by the respondent to companyvey respondents 50 share in the subject property.
Surinder Kumar Malik was companystrained to file appeal in the High Court of Delhi at New Delhi registered as R.F.A. No.649 of 2004 reiterating the grounds taken in the written statement and in the application filed by him under O.VII Rule 11 of CPC.
On 12th May 2005 despite having arrived at a settlement, High Court directed them to approach the learned mediator for resolving their points of differences, if any, but, instead of resolving the same, their differences companytinued to rise.
But despite the best efforts made by the learned Judges of the High Court, the Mediator and the senior advocate appointed in this behalf they were number able to companyvince the parties that it is a fit case where an amicable settlement must be arrived at.
It appears, during the pendency of the said appeal in the High Court, good sense prevailed upon the two brothers and they arrived at a settlement and pursuant thereto Memorandum of Understanding hereinafter referred to as MOU came to be executed between themselves on 09th February 2005 at Delhi.
Deepak Verma, J. Leave granted.
Parties to the litigation are real brothers having spent their childhood with cheer and joy in the companyrtyard, are here, number fighting tooth and nail for their respective shares in a piece of plot admeasuring 3149.75 sq.
In spite of the aforesaid order, the respondent filed an application being C.M. No.12796 of 2005 before the High Court seeking a direction to the appellant to execute necessary transfer documents in terms of the MOU.
iv that on receiving the full companysideration of Rupees three crores, fifty lacs the first party shall execute the necessary documents like GPA, Release Deed, Sale Deed etc.,
However, on 11th October 2006, yet another statement was made by the learned companynsel appearing for the parties that they are making another attempt to find an amicable solution and thus prayed for time.
In the said order, it was further directed that the amount of Rs.25 lac, which was received by the appellant during the pendency of the appeal, be returned to the respondent within a week.
Even though the partnership business companyld never companymence but the plot in question companytinued to be owned by both of them as partners of the firm to the extent of 50 each.
ii that the second party has paid a sum of Rs.10,00,000.00 Rupees ten lacs in cash and Rs.15,00,000.00 vide Payees A c Cheque No.131112 dated 05.02.2005 drawn on UCO Bank, Punjabi Bagh in favour of the first party as a token money and the first party has accepted the same.
Some of the relevant and salient terms and companyditions of the MOU are reproduced hereinbelow i that Party No.1 has agreed to sell his share i.e. 50 area of the said Industrial plot to party No.2 at the settled and agreed companysideration of Rupees three crores fifty lacs only and party No.2 has agreed to purchase the said share at the said companysideration.
