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Till the consent terms are fully implemented by both the parties and further supplemental consent te

Pawan Kumar Arya and others VersusRavi Kumar Arya and others, CIVIL APPEAL NOS. 945-946 OF 2020 Arising from SLP(C) Nos. 9971-72/2018)

The 8 flats as per list at ‘Annexure A’ are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree.

It is vehemently submitted that by not issuing the directions as prayed in the notice of motion, both, the learned Single Judge as well as the Division Bench have virtually nullified the consent terms and the consent decree. The absurd consequence of the impugned order is that though in terms of the consent terms/decree flats were allotted to both, the appellants and respondent nos. 1 to 6, the appellants have got nothing under the consent decree till date. on the other hand respondent nos. 1 to 6 have got not only 7 flats of double the area of the PA Kash Foods Property, but also Rs. 45 crores and are enjoying the above since about 2015 by mortgaging and dealing with their flats by raising large finances.

As held by this Court in the case of Manish Mohan Sharma and others v. Ram Bahadur Thakur Ltd. and others (2006) 4 SCC 416

“the effort of the executing court must be to see that the parties are given the fruits of the decree. It is submitted that it is further observed in the said decision that the mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement.”

Reliance is also placed upon the decision of this Court in the case of Kale and others v. Deputy Director of Consolidation and others (1976) 3.The net result as of today is that both the consent terms and the consent decree in effect result in a zero-sum game with no transaction accruing to the benefit of the appellants. if that was so, there was no purpose to enter into the consent terms at all. There is no basis, in any event, for the Division Bench to ignore the clear recognition of the appellants’ entitlement under the consent terms/consent decree.

As such there is no such contingency supplied anywhere in the consent terms and/or consent decree and in fact clause 28 of the consent terms read with paragraphs 2, 3 and 6 of the consent decree is an antithesis of the finding that ‘Annexure E’ is contingent upon the supplementary consent terms. ‘Annexure E’ shall not depend upon the supplementary consent terms to be executed/entered into as observed by the learned Single Judge. clause 28 of the consent terms read with paragraphs 2, 3 and 6 of the consent decree unambiguously and unequivocally makes it clear that respondent no. 10 and respondent nos. 1 to 6 were to provide ‘Annexure E’ letter immediately and not at the RA Group’s convenience and/or at a later date, as per the whims and fancies of respondent nos. 1 to 6 or contingent upon the supplementary consent terms.

None of the clauses in the consent terms and/or the consent decree provides the supplementary consent terms contingent upon ‘Annexure E’ letter and/or vice versa.  Even otherwise because of the total non-cooperation on the part of respondent nos. 1 to 6 and with a malafide intention respondent nos. 1 to 6 are not co-operating in execution of supplementary consent terms. Out of the four items listed for valuation at clause D9(d) of the consent terms, item no. (a) is a company in which both brothers hold 25.5% of the shareholding each and the balance 49% is held by a third party; item no. (b) and (c) is a company and a property respectively which are held 50:50 by both brothers; item no. (d) is the PA Kash Foods Property which was to be valued for the purposes of adjustment. The valuation was not done despite numerous reminders by the appellants. several without prejudice emails were addressed to respondent nos. 1 to 6 calling upon them to execute and agree to the draft of the supplementary consent terms, which has not been done till date. as such the plaintiffs entered into the consent terms to buy peace and to resolve the overall family dispute between the parties that it is further observed in the said decision that even technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. 3.11 Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to allow the present appeals.

Shri Shyam Divan, learned Senior Advocate appearing on behalf of respondent nos. 1 to 6 and 8 & 9 has vehemently submitted that as such the notice of motion/execution proceedings by the appellants herein itself was premature and was for execution of only part of the consent decree dated 14.08.2015 and therefore the same was not maintainable at all being premature execution proceedings. + the appellants are seeking to execute a particular clause of consent terms dated 14.08.2015, which under the said consent terms itself is required to be implemented after the parties thereto arrived at a supplementary agreement which till date has not been arrived at or entered into.

The appellants cannot be permitted to get the consent decree executed in part and which is in their favour and without in any way complying with their obligations under the consent decree.  neither under the consent terms nor under the consent decree, there is an obligation on the part of the RA Group to issue ‘Annexure E’ forthwith upon signing of the consent terms. if the submission on behalf of the appellants that ‘Annexure E’ is to be executed forthwith and that vesting/allotment of PA Kash Foods Property immediately upon signing of the consent terms is accepted, in that case, it would defeat the plain language of clauses 9, 13, 14, 17 and 18, all of which mandate that matters relating to PA Kash Foods Property are to be contained in the supplemental consent terms. the settlement between the parties in all respects was to be crystallized in the supplemental consent terms. therefore the present consent terms/consent decree can be described only as a “framework” in clauses 2, 3 and 30. even the Omkar Builders was not a party to the consent terms/decree and therefore the contents of clause 28 would notbind it. it is only with a view for securing compliance of Omkar Builders that the High Court passed an order on the same day enabling Omkar Builders to issue ‘Annexure E’.

Having heard the learned Senior Advocates for the respective parties and considering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental consent terms/family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental consent terms have not been entered into between the parties.

Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree.

If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at ‘Annexure A’ are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree.

With the aforesaid observations and directions, the court held that both these appeals stand disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.

“However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, it will be open for original defendant nos. 1 to 6 – RA Group to deal with the 7 flats as per list at ‘Annexure B’ which are allotted to them. At the same time, both the parties to act as per the Restraint order as per clause 22 of the consent terms.”

– Karthik K.P

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