Narinder Kumar Malik vs Surinder Kumar Malik

2. Parties to the litigation are real brothers having spent their childhood with cheer and joy in the courtyard, are here, now fighting tooth and nail for theirf respective shares in a piece of plot admeasuring 3149.75 sq. yds. allotted to the partnership firm, viz., M/s. Narinder Kumar Malik & Surinder Kumar Malik at D-2, Udyog Nagar, Rohtak Road, New Delhi.

4. 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 not maintainable and rather a suit for dissolution of partnership firm ought to have been filed.

6. Both the applications came to be considered by the learned trial Judge on 04th November 2004. By the said order, the application filed by the respondent under O.VII R. 11, CPC came to be dismissed. 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 the following terms:-

8. 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.

9. It is pertinent to mention here that this MOU was arrvied at also on account of the strong belief of the Division Bench of the High Court that the parties being real brothers should settle the matter among themselves through mediation. Accordingly, on 17th December 2004 an order was passed, with the consent of the parties, that both the brothers would appear before Mr. M.L. Mehta, Addl. District Judge, Delhi who was requested to be a mediator. On 17th March 2005 it was noted by the High Court that parties have entered into a settlement as MOU was already entered into between the parties on 09th February 2005. However, despite settling the matter outside the Court on their own terms and conditions, it appears that the dispute between them did not come to an end.

12. A registered notice dated 22nd June 2005 was not sent to the appellant by respondent's advocate Mr. Harish Malhotra mentioning therein that his client, viz., the respondent herein is ready with the balance payment as mentioned in the said MOU and despite apporaching the appellant, he has not been honouring the same. Appellant replied to the said notice through his advocate Shri Anuj Sehgal on 30th June 2005 denying the averments made in the notice 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. On payment of the aforesaid amount, it was categorically mentioned by the appellant that necessary transfrer dcouments for transfer of his share of the property in the name of the respondent or his nominee would be executed.

16. 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.

20. Appellant, feeling aggrieved and dissatisfied with the aforesaid direction contained herein, has preferred this appeal.

24. It was also contended by him that the appellant would be required to pay unearned increase of the plot to the Delhi Development Authority and, therefore, he has taken somersault from complying with the directions.

35. Thus, judgment and decree passed by the impugned order are hereby set aside and quashed, but, with no order as to costs.

36. The appeals are allowed accordingly.