TMI Blog2019 (6) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this suit against the two defendants namely Tushar Patni and Prashant Mamgain, for (i) declaration as null and void of the Compromise Deed dated 15th November, 2008 obtained dishonestly and fraudulently from the plaintiff; and, (ii) cancellation of the Compromise Deed dated 15th November, 2008. 2. It is the case of the plaintiff in the amended plaint, (a) that the plaintiff on 12th March, 2010 first learnt that a Non-Bailable Warrant (NBW) had been issued against her for 18th March, 2010 in a Criminal Complaint No.21/1/10 filed by defendant no.2 Prashant Mamgain on behalf of defendant no.1 Tushar Patni, of offence under Section 138 of the Negotiable Instruments (NI) Act, 1881 by the Court of Sh. N.K. Laka, Metropolitan Magistrate, Dwarka Courts, New Delhi, for dishonour of a cheque dated 1st December, 2009 for an amount of ₹ 75 lacs against the alleged liability of ₹ 3 crores; (b) that the plaintiff appeared before the Court on 18th March, 2010 and the NBW was cancelled and the plaintiff granted bail; (c) that from a perusal of the complaint filed by defendant No.2 Prashant Mamgain on behalf of the defendant No.1 Tushar Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zes that the said papers have been used for making an application for exemption for appearance of the plaintiff in the previous complaint case and for use as a Vakalatnama; (m) that a perusal of the file of the previous complaint case shows that the application for withdrawal of that complaint case was filed with great urgency on 15th October, 2009; (n) that fraud is evident from the fact that the application for withdrawal of the complaint case was filed on 15th October, 2009 on the basis of an alleged compromise of 15th November, 2008; (o) that no mention was made of the compromise on any of the earlier dates in the previous complaint case; (p) that the stamp paper for the Compromise Deed dated 15th November, 2008 was purchased in the name of the plaintiff on 31st October, 2008 but the plaintiff never instructed anyone to purchase any stamp paper; (q) that it is quite evident that the signatures of the witnesses on the Compromise Deed dated 15th November, 2008 have been obtained subsequently; (r) that the daughter of the plaintiff has also confirmed that her signatures were taken on some papers by the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing whereof the plaintiff claims to have unearthed the story as set out hereinabove, are all issued from the account of the plaintiff. 7. Finding that the Compromise Deed dated 15th November, 2008, cancellation whereof was sought in this suit, was admittedly placed before the Court seized of the complaint of offence under Section 138 of the NI Act, it was enquired from the counsel for the plaintiff on 30th November, 2018, whether the civil suit under Section 31 of the Specific Relief Act, 1963 is maintainable with respect to a compromise deed forming part of judicial proceedings, or the challenge to the said compromise has to be made in that judicial proceeding only. On request, the hearing on the said aspect was adjourned. 8. On the next date of hearing i.e. 26th February, 2019, the counsel for the plaintiff stated that the file in which the Compromise Deed dated 15th November, 2008 had been filed was not found inspite of best efforts. On request of the counsels, the hearing on the legal question enquired on 30th November, 2018 was adjourned to today. 9. Before proceedings to record the contentions of the counsels, it is deemed appropriate to record the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deed was produced has neither scrutinized the terms of the purported Compromise Deed nor has recorded satisfaction in regards to the same; (iii) that neither the plaintiff nor the defendants were present in the Court; (iv) that a perusal of the Compromise Deed dated 15th November, 2008 shows that none of the terms thereof have been followed / adhered to by the defendants; (v) that the defendants have not revived the original complaint of dishonour of the cheque of ₹ 2 crores, as was provided in the Compromise Deed; instead the defendants have filed three fresh criminal complaints on the basis of the cheques issued for ₹ 75 lacs each in payment of total outstanding of ₹ 3 crores; (vi) that though the plaintiff filed a petition in this Court for quashing of one of the said complaint case and this Court vide judgment dated 22nd January, 2015 has quashed the said criminal complaint and the said order has attained finality; however, two other complaints are pending; (vii) that Order XXIII Rule 3 of the CPC requires an application in terms thereof to be filed and whereupon only a decree in terms thereof is pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has referred to R. Rajanna Vs. S.R. Venkataswamy (2014) 15 SCC 471, concerned with the question can the validity of a decree passed on a compromise be challenged in a separate suit? and holding that Order XXIII Rule 3A of the CPC clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful and that this implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question and the Court cannot direct the parties to file a separate suit. 13. The counsel for the defendants has also referred to the dicta of the Division Bench of this Court in Dayawati Vs. Yogesh Kumar Gosain 243 (2017) DLT 117. The Division Bench was concerned with the legal permissibility of referring a complaint case under Section 138 of the NI Act for amicable settlement through mediation, the procedure to be followed upon settlement and the legal implications of breach of the mediation settlement. It was held: (a) that proceedings u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties or their authorized agents affirming the settlement, its voluntariness and their undertaking to abide by it in the manner followed by the Civil Court when considering a settlement placed before it under Order XXIII Rule 3 of the CPC- the Court would thereafter pass an appropriate order accepting the agreement, incorporating the terms of the settlement regarding payment under Section 147 of the NI Act and the undertakings of the parties; (j) that the Court taking on record the settlement stands empowered to make the consequential and further direction to the respondent to pay the money in terms of the mediated settlement and also direct that the parties would remain bound by the terms thereof; (k) that so far as the disputes beyond the subject matter of the litigation is concerned, upon the settlement receiving imprimatur of the Court, such settlement would remain binding upon the parties and if so ordered, would be subject to the orders of the Court; (l) that there can be no manner of doubt that once a settlement is reported to the Court and made the basis of seeking the Court s indulgence, the parties ought not to be able to resile fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tushar Patni Vs. Sushila Badola 15.10.2009 Statement of Shri Prashant Mamgain, AR of complainant On SA I have settled the present case with the accused persons. In this respect, a compromise deed bearing signatures and thumb impression of the parties have also been recorded. True copies of the same is filed on record. In respect of compromise, I have received four cheques no.200452, 200453, 200451 and 200454 dated 01.03.2010, 01.06.2010, 01.12.2009 and 01.09.2010 all for ₹ 75.00 lacs each drawn on Nainital Bank Limited, Patparganj, Delhi in favour of complainant respectively towards full and final satisfaction of the present complaint. The complaint may be allowed to be withdrawn as compromised. RO AC (Naresh Kumar Laka) 1st LMM/Dwarka Courts Delhi/15.10.2009 Statement of Shri Vijay Nath, Counsel for accused WO I have filed an application on behalf of accused for personal exemption along with Vakalatnama. The matter has been settled between the parties as per compromise deed bearing signatures of both the parties. In view of the compromise, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second Party under Section 138 of the NI Act being Complaint Case No. 2675/01/07 and the same is pending adjudication before the Court of ____________Ld. MM, New Delhi and is fixed for hearing on 24.11.2008. WHEREAS both the parties have old family and friendly terms, have decided to settle the issue amicably outside the Court on the following terms and conditions:- NOW THIS COMPROMISE DEED WITNESSETH AS FOLLOWS 1. That the Second Party has agreed to pay an amount of ₹ 3 Crores to the First Party as full and final settlement of the aforesaid Cheque amount within one year on the condition that the First Party will withdraw the Complaint Case in respect of the aforesaid Cheque Amount. 2. That the First Party undertakes to withdraw the Complaint Case No.2675/01/07 in respect of the aforesaid Cheque Amount on receipt of the entire Amount of ₹ 3 Crores within the period of one year. 3. That both the parties undertake not to file/institute any proceedings [civil as well as criminal] against each other pertaining to the present Cheque Amount. 4. That both the parties further undertake not to defame or propa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vi) by the advocate for the plaintiff also stating before the Complaint Court that the matter had been settled as per the Compromise Deed bearing the signatures of both the parties and in view of the compromise, the complaint case may be disposed of. The Complaint Court also did not dismiss the complaint as withdrawn simpliciter but recorded that the Compromise Deed had been placed on record and the statements of the parties in support thereof had been recorded and in view of the statements . B. I have wondered the effect in law, if instead of the complaint case the aforesaid proceedings had been a civil suit i.e. if a civil suit was disposed of as withdrawn in view of a compromise placed before the Court. C. It has been held in Kerala State Coir Corporation Ltd. Vs. Delhi Intercontinental (Hotels) Pvt. Ltd. (1993) 51 DLT 676, Hardit Singh Obra Vs. Daljit Singh (1975) 11 DLT 289 (DB), Vishwa Mitter Vs. Jit Singh MANU/PH/1199/1992 and Gopinathan Nair Vs. Sankaran Madhavan MANU/KE/0183/1983 that though the final order is of dismissal of the suit as withdrawn but owing to the said dismissal being in lieu of the compromise, the compromise remains enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compromise, being the Court of the Link Magistrate being not competent to record the compromise; (ii) the defendants having chosen the day when the Link Court was seized of the matter to have the compromise recorded and having avoided having the compromise recorded before the Magistrate which was seized of the complaint case; and, (iii) the advocate who appeared for the plaintiff having not been authorized by the plaintiff. G. It would be unfair of another Court to, in exercise of parallel jurisdiction, sit over judgment in a proceeding in another Court. Thus the jurisdiction to enter into the legality of the proceedings before it would be of the same Court in which the compromise under challenge was filed and only, if any remedy is preferred against the order of that Court would this Court as an Appellate/Revisional or Writ Court have jurisdiction to go into the merits of the judgment or findings of that Court. H. The reasoning and logic which prevailed with the legislature in inserting Rule 3A in Order XXIII by an amendment of the year 1976 equally applies to a compromise arrived at in a proceeding under Section 138 of the NI Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judgment or decree of the Court, there is no reason why where the parties instead of having detailed terms of settlement recorded in the Court and which may not only waste the time of the Court but may also result in errors, draw up a settlement and place the same before the Court and make statements in terms thereof before the Court, should be treated differently. L. Per Section 257 of the CrPC, a complainant is entitled to withdraw the complaint only if satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused and such an order permitting withdrawal of complaint is not an order of withdrawal of complaints simpliciter but also an order of acquittal of the accused against whom the complaint is so withdrawn. Reference in this regard may be made to Sheonandan Paswan Vs. State of Bihar (1987) 1 SCC 288, Satish Dayal Mathur Vs. M/s Mackinnan Mackenzie Company 1986 SCC OnLine Del 128 and Provident Fund Inspector, Tirupati Vs. Madhusudana Chaudhary (2009) 9 SCC 506. Thus, the order of withdrawal of the complaint is not an order of withdrawal simpliciter but also an order of acquittal. The remedy available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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