NARENDER KUMAR AGARWAL & ORS. vs. PARDEEP GUPTA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : February 02, 2016
% Judgment Delivered on : February 04, 2016
+ FAO(OS) 77/2015
NARENDER KUMAR AGARWAL & ORS ..... Appellants
Represented by: Mr.Shesh Datt Sharma, Advocate

versus

PARDEEP GUPTA & ORS ..... Respondents
Represented by: Mr.B.S.Mathur, Advocate with
Mr.Rajat Mathur, Advocate for R-1

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. The five sons of late Radhey Lal Gupta : (i) Narender Kumar
Agrawal, (ii) Ravi Kumar, (iii) Amrish Kumar, (iv) Mahesh Kumar Gupta
and (v) Sushil Gupta joined as co-plaintiffs and filed a suit for declaration,
partition and rendition of accounts. Pradeep Gupta and Hari Gupta, sons of
Vishnu Kumar Gupta were impleaded as defendants No.1 and 2. Vishnu
Kumar Gupta and Suresh Kumar Gupta, sons of Radhey Lal Gupta were
impleaded as defendants No.3 and 4. Laxmi Devi, Brijbala and Usha Rani,
daughters of Radhey Lal Gupta were impleaded as defendants No.5 to 7.
Plaintiff No.5 : Sushil Gupta instituted the plaint and he signed and verified
the pleadings claiming that he had been authorized by his other four brothers
to represent them.
2. It is apparent that the siblings, being the sons and daughters of
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Radhey Lal Gupta were litigating. Pradeep Gupta and Hari Gupta had been
impleaded because they are the sons of Vishnu Kumar S/o Radhey Lal.
3. As per the plaint, the joint family came into being from the era of late
Shri Anant Ram, father of late Shri Radhey Lal Gupta. As per the plaint the
estate of the HUF comprised a property 188, Katra Bariyan, Fatehpuri, Delhi
wherefrom transport business under the name M/s.Anant Ram Radhey Lal
was conducted. It was pleaded that on December 03, 2001, a family
settlement had been arrived at as per which 71% of the space in the building
at Fatehpuri was allotted to the plaintiffs. In the plaint a right to property
No.AG-63, Sanjay Gandhi Transport Nagar, New Delhi was made on the
pleading that the same had been allotted in the names of seven sons of
Radhey Lal, out of which five were the plaintiffs.
4. Defendant No.1 : Pradeep Gupta son of Vishnu Kumar Gupta filed a
written statement pleading that the suit property had been taken on rent by
Anant Ram and on his death Radhey Lal inherited the tenancy. In the year
1970 Radhey Lal surrendered the tenancy in favour of defendant No.1 and
since then he had been paying rent of the property to the landlord. On
October 29, 2001 he purchased the property, in which the seller had made a
reference to the fact that as landlord he had accepted him as the tenant and
now as the purchaser of the property. He pleaded that the firm Anant Ram
Radhey Lal was his sole proprietary firm.
5. The suit meandered. Filed in the year 2001, even issues were not
settled. Applications after applications were filed and hearing was deferred
for one reason or the other till when IA No.10515/2006 (wrongly mentioned
as IA No.10575/2006 in the order dated September 19, 2006) was filed
under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure.
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6. The application bears the signatures of Shri Sushil Kumar as also
those of Pradeep Gupta - defendant No.1. Sharad Kumar Agrawal and
Sangeeta Grover have also signed the application as counsels for the
plaintiffs. One Sanjeev Srivastava has signed the application as the counsel
for defendant No.1.
7. A compromise therein is recorded as per which the five plaintiffs
were to receive 1 lakh, 50 thousand, 1.50 lakhs, 2 lakhs and 2 lakhs to
` ` ` ` `
give up their right in the property at Fatehpuri as also Sanjay Gandhi
Transport Nagar simultaneously recognizing defendant No.1 to be the full
owner thereof. Affidavit in support of the application was deposed to by
Sushil Kumar.
8. Listed before the Court on September 19, 2006, the application was
accepted and in terms thereof the suit was disposed of. We only wish that
the learned Single Judge had required the presence of the parties. One Atul
Kumar Gupta appeared in the Court claiming to be the special attorney
constituted by plaintiff No.5. He took the bank drafts in the names of the
plaintiffs.
9. It so transpired that Atul Kumar Gupta, who took the bank drafts, is
an advocate and is the son of Mahesh Kumar Gupta : plaintiff No.4. He was
an associate advocate of Sharad Kumar Agrawal.
10. Sushil Gupta, the person who was authorized by the other four
plaintiffs to represent them, thereafter filed IA No.507/2007 pointing out
that he had never executed any special power of attorney dated June 16,
2006 in favour of Atul Kumar Gupta, on the strength of which Atul Kumar
Gupta represented the plaintiffs at the compromise and received the bank
drafts. He pleaded that Atul Kumar Gupta was an associate of Sharad
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Kumar Agrawal. He pleaded that he was the son of his brother Mahesh
Gupta. He pleaded that a fraud had been perpetuated. He denied his
signatures on IA No.10515/2006.
11. Taking cognizance of the application, notice was issued and
thereupon commenced a journey of investigation. On January 24, 2007 the
Court directed Economic Offences Wing of Delhi Police to conduct an
investigation and submit a report. The compromise application, the affidavit
in support thereof, the power of attorney relied upon by Atul Kumar Gupta
as being executed in his favour by Sushil Kumar were directed to be handed
over to the Investigating Officer.
12. Rather than await the report by the Investigating Officer, the counsel
for the plaintiffs thought that he could milk the plaintiff. He filed a spate of
applications; all gibberish, pleading nonsense and the result was the
proceedings getting unnecessarily delayed. The applications filed would be:

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13. We are highlighting said fact to bring to notice a very disturbing trend
which this Court is seeing. Some counsels have taken upon themselves the
duty to choke the courts and milk their clients. They simply file applications
out of the hat unconcerned with the nature of dispute. This has happened in
the instant case.
14. Reverting to the facts, a report was submitted by the Investigating
Officer, and concerning the signatures on IA No.10515/2006, affidavit in
support of the application, terms and conditions of the settlement and a
special power of attorney executed by Sushil Kumar in favour of Atul
Gupta, the report of the Directorate of Forensic Science, Chandigarh dated
August 16, 2007 gave an opinion that the signatures were those of Sushil
Kumar. But it surfaced that Sharad Kumar Agrawal and Atul Kumar Gupta
opened fictitious accounts in the name of the plaintiffs and siphoned away
the money.
15. This necessitated the recording of evidence for the reason after all
what the Court got from the Investigating Officer was the report of
investigation and material gathered. Sharad Agrawal Advocate, Atul Kumar
Gupta Advocate etc. had to be examined. The bank officials in which
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accounts were opened and cheques deposited had to be examined. It
surfaced that the bank draft in the name of Sushil Gupta was deposited in
Saving Account No.11505 with Mahamedha Urban Cooperative Bank Ltd.,
Ghaziabad, the bank draft in the name of Ravi Kumar was deposited in SB
Account No.50504 with UCO Bank, Delhi High Court, the draft in the name
of Narender Gupta was deposited in Account No.628601517137 ICICI
Bank, Raj Nagar, Ghaziabad and in the name of Amrish Kumar in Account
No.508010084552 Vysya Bank, Navyug Market, Ghaziabad and a bank
draft in sum of ` 3 lakhs was admittedly deposited in SB Account No.39802
in the joint names of Atul Gupta and Sharad K.Agrawal with UCO Bank,
Delhi High Court. The managers of said bank were summoned the record
for their statements to be recorded. But unfortunately the directions issued
for their statements to be recorded were not taken to the logical conclusion
and the record of the suit would show that the statements of the managers of
aforenoted banks were not recorded.
16. Proceedings lingered on and on and on. To a large extent counsel for
the plaintiffs was responsible who repeatedly bombarded the court with
applications.
17. On September 22, 2011 it was directed that the matter would be taken
up in the category of ‘Final Hearing Matters’ when all applications would be
decided.
18. On November 29, 2011, listed in the category of ‘Final Hearing
Matters’, the matter was called up. Learned Single Judge noted that in view
of the material before the Court some clarification was required from the
Manager of Mahamedha Urban Co-operative Bank for the reason recorded
in the said order. The matter remained in the list of ‘Final Hearing Matters’
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but unfortunately could not be taken up for hearing. It reached for hearing
on January 08, 2013 but on account of nobody appearing for the plaintiff
and counsel for defendant No.1 being not available it was directed that the
matter should remain on board.
19. On January 10, 2013 in the absence of representation from the side of
the plaintiff IA No.507/2007 was dismissed in default.
20. IA No.920/2013 was thereafter filed praying that IA No.507/2007 be
recalled. Said application has been dismissed by the learned Single Judge
vide impugned order dated November 13, 2014. Learned Single Judge has
noted that the application was signed by one Shivam claiming to be a
Parokar of the plaintiffs and son of plaintiff No.5. Learned Single Judge
noted that no power of attorney had been executed by any of the plaintiffs in
favour of Shivam. Noting that affidavits of Narender Kumar plaintiff No.1
and Sushil plaintiff No.5 were filed in support of the application seeking
restoration of IA No.507/2007 the learned Single Judge has ignored them on
the reason that they were filed after an objection was taken by the defendant
No.1 concerning Shivam having filed IA No.920/2013 for restoration of IA
No.507/2007. Accordingly, learned Single Judge has held that he did not
find any sufficient cause to restore IA No.920/2013.
21. Now, concerning Shivam being the signatory to IA No.920/2013,
relevant would it be to note that it was filed around the time when Sushil
Kumar was unwell and we note that Sushil Kumar died on April 04, 2013.
Shivam was thereafter sought to be got impleaded when he filed IA
No.998/2014 under Order 22 Rule 3 of the Code of Civil Procedure
regretfully, no orders have been passed till date in the said application and
we find that on November 13, 2014, IA No.920/2013 which prayed for
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restoration of IA No.507/2007 was dismissed for the reasons recorded in the
order.
22. Since we are setting aside the impugned order and restoring IA
No.507/2007, we do not wish to comment upon the evidence recorded till
date but would highlight that in terms of the orders passed in the suit the
Managers of Mahamedha Urban Cooperative Bank Ltd., Ghaziabad, UCO
Bank, Delhi High Court, ICICI Bank, Raj Nagar, Ghaziabad and Vysya
Bank, Navyug Market, Ghaziabad had yet to be examined.

23. Nobody disputing Sushil Kumar having died, if Shivam was brought
on record the defect in Shivam being the signatory to IA No.920/2013 could
have been rectified. It is trite that ministerial acts are capable of being
rectified.
24. If what is pleaded in IA No.507/2007 is established, it would be
certainly a lamentable miscarriage of justice if the case is allowed to rest as
has been allowed to be done by the learned Single Judge.
25. It is not a simple matter between two litigating parties with the Court
having no concern in the matter beyond the duty of exercising its judicial
function to decide a lis between two parties. In the peculiar facts of this case
we find that over and above the duty of exercising its judicial functions there
is involved in the instant case a principle of supreme importance, which the
learned Single Judge has disregarded.
26. It is incumbent on the Court to be scrupulous in the extreme and very
serious to see that no taint or touch of fraud or deception or
misrepresentation is found in the conduct of its ministers; and lawyers have
always been treated as officers of the Court. A Court has a duty to ensure
that proceedings before it do not fall below the standard of honesty and the
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slightest suspicion of trickery affects the honour of the Court and impairs its
usefulness. It would be disastrous, it would be absolutely shocking, if the
Court were to enforce a fraudulent compromise.
27. We therefore dispose of the appeal setting aside the impugned order
dated November 13, 2014. IA No.920/2013 is allowed. Order dated
November 10, 2013 dismissing IA No.507/2007 is set aside. Said
application is restored for adjudication on merits. As noted above large
number of applications including substitution of the legal heir of Sushil
Kumar are pending and no orders qua them dismissing the same have been
passed. All pending applications would be decided by the learned Single
Judge.
28. As regards IA No.507/2007, as we have noted above pursuant to
orders passed Managers of Mahamedha Urban Cooperative Bank Ltd.,
Ghaziabad, UCO Bank, Delhi High Court, ICICI Bank, Raj Nagar,
Ghaziabad and Vysya Bank, Navyug Market, Ghaziabad require to be
examined, for which the learned Single Judge would pass appropriate
orders.
29. The Registry would list the pending applications in the suit for
directions before the learned Single Judge on February 08, 2016 who shall
pass the necessary order in the suit for its onward march.

(PRADEEP NANDRAJOG)
JUDGE



(MUKTA GUPTA)
JUDGE
FEBRUARY 04, 2016/rk
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