PAWAN KUMAR ARYA AND OTHERS versus RAVI KUMAR ARYA AND OTHERS on 2 March 2020

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SUPREME COURT REPORTS

[2020] 4 S.C.R.

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PAWAN KUMAR ARYA AND OTHERS

v.

RAVI KUMAR ARYA AND OTHERS

(Civil Appeal Nos. 945-946 of 2020)

BMARCH 02, 2020

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Suit – Relief against the transfer of property – Execution ofconsent decree – The dispute was with respect to a property – Thedispute was between the appellants- original plaintiffs (PA Group)Cand respondent nos. 1 to 6-original defendant nos. 1 to 6 (RA Group)and also between original defendant no. 10-Developer/Builder –The disputed property was of K.F. Pvt. Ltd. – In the said Company,25% of the shareholding was with M.P. Recycling Company (Jointlyheld by plaintiffs and defendants nos. 1 to 6) and the remainingD75% of the shareholding with defendants nos. 1 to 6 in theirindividual capacities – According to the plaintiffs, defendants nos.1 to 6 entered into a purported Development Agreement withdefendant no. 10, to develop the disputed property behind the backof plaintiffs – As per plaintiffs, the defendants nos. 1 to 6 receivedRs. 45 crores from the developer and 15 flats & 72 car parkingEspaces under the development agreement – According to theplaintiffs, the defendant nos. 1 to 6 did not give any rights/ benefitsin the said property to them – This led to the filing of the suit –During the pendency of the suit, the suit came to be settled and itwas disposed of in accordance of the consent terms – As perFplaintiffs, the developer had in accordance with the consent termsexecuted the letter of allotment in ‘Annexure E’ in respect of the 8apartments, which were to fall in the share of the plaintiffs, butdefendant nos. 1 to 6 refused to abide by the consent terms andcounter-sign the letter of allotment as per ‘Annexure E’ – The plaintiffinitiated proceedings for the execution of the consent decree viz.Gfor execution of the document at ‘Annexure E’ – The executionapplication was rejected by the Single Judge of the High court andit was observed that unless and until the supplementary consentterms are entered into between the parties, there is no obligation onthe part of defendant nos. 1 to 6 to execute the letter of allotment inHthe form of ‘Annexure E’ – The Division Bench of the High Court confirmed the judgment and order passed by the Single Judge ofthe High Court – On appeal, held: From the consent terms, it appearsthat both the parties – PA Group and RA Group decided to resolveand settle the other disputes also i.e. the other larger companiesand its constituents – The entire consent terms/ consent decree isrequired to be acted upon and/ or implemented by both the partiesotherwise, the object and purpose to resolve all the disputes will befrustrated – Thus, there cannot be any execution of partial consentterms/ consent decree – Also, the further execution of supplementalconsent terms/ family arrangement is required to be executed betweenthe parties, considering the relevant terms of settlement – The bothSingle Judge as well the Division Bench were justified in holdingthat the execution of the further supplemental consent terms/ familyarrangement is must – Therefore, both the parties directed to fullycomply with the consent terms/ consent decree and enter into thefurther supplemental consent terms/ family arrangement afterfollowing the modalities with respect to valuation, bidding etc. –Also, RA Group to counter-sign ‘Annexure E’ letter with respect to 8flats as per list at ‘Annexure A’ to the consent terms for which thedeveloper had issued letter – However, it is further directed that tillthe consent terms/consent decree is fully implemented by both theparties and the supplemental consent terms/family arrangement isentered into/executed, the PA Group shall not alienate in any mannerthe said 8 flats.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1. Having heard the respective parties andconsidering the relevant terms of the settlement, this Court is ofthe opinion that further execution of supplemental consent terms/family arrangement is required to be executed between theparties. For whatever reasons, the further supplemental consentterms have not been entered into between the parties. Therefore,as such, considering the fact that the parties entered into theconsent terms/settlement for a complete parting of ways betweenthe parties and so aimed at bringing about an eventual completequietus to the disputes between the parties and even partiesentered into the consent terms/settlement to resolve and settlethe disputes in relation to the subject matter of AISCO, IMTC,Kash Foods, Orbit Arya Commercial Premises and the disputes ABC

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Ain relation to the larger Arya Group of Companies and itsconstituents, which were beyond the dispute in the civil suit,the entire consent terms/consent decree is required to be actedupon and/or implemented by both the parties. There cannot beany execution of partial consent terms/consent decree. If thesubmission on behalf of the plaintiffs is accepted and the 8 flatsBas per list at ‘Annexure A’ are transferred absolutely and withoutany condition in favour of PA Group without there being any furthersupplemental consent terms/family arrangement, in that case, theentire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will beCfrustrated. Both the parties to the consent terms/consent decreeare required to fully comply with the terms of settlement/theconsent terms and the consent decree. One party cannot bepermitted to say that that portion of the settlement which is intheir favour be executed and/or complied with and not the otherterms of the settlement/consent terms/consent decree. UnderDthe circumstances, as such, both, the Single Judge as well as theDivision Bench of the High Court are justified in holding that theexecution of the further supplemental consent terms/familyarrangement is must and there cannot be any partial execution ofthe consent terms/consent decree.[Para 6][789 G-H; 790 A-F]

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2. Even in the case of Hari Shankar Singhania, the decisionwhich has been relied upon by the appellants, this Court hasobserved that a family settlement is treated differently from anyother formal commercial settlement as such settlement in theeye of the law ensures peace and goodwill among the familyFmembers. It is further observed that technicalities should not beput at risk of the implementation of a settlement drawn by a family,which is essential for maintaining peace and harmony in a family.It is further observed that it is the duty of the court that such anarrangement and the terms thereof should be given effect to inletter and spirit. [Para 7][790 F-H]G

3. On a conjoint reading of all the terms of the settlement,it can be said that there is an implied term that both the partieshave intended that on one hand as agreed between the partiesfurther supplemental consent terms/family arrangement is to be H

entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at ‘Annexure A’ in favour of PAGroup. Any other interpretation would lead to unworking of theconsent terms/consent decree. As observed hereinabove, if theconsent decree is partially executed and the other parts of theconsent terms are not implemented and/or acted upon, the objectand purpose to resolve all the disputes amicably between theparties and to put an end to all the disputes between the partieswill be frustrated. [Para 8.1][791 D-F]

4. However, at the same time, one cannot lose sight of thefact that the 8 flats as per list at ‘Annexure A’ are allotted infavour of PA Group and rest of the 7 flats as per list at ‘AnnexureB’ are allotted in favour of RA Group. At present, the RA Groupis in possession of all the 15 flats. The RA Group is also thebeneficiary of Rs.45 crores. Therefore, to strike the balancebetween the parties, the RA Group can be directed to counter-sign ‘Annexure E’ letter issued by the Builders with respect to 8flats as per list at ‘Annexure A’ which are allotted in favour of PAGroup. However, with a caveat that till the further supplementalconsent terms/family arrangement as agreed between the partiesunder the consent terms/consent decree is not executed, PAGroup may not be permitted to sell, transfer and/or deal with thesaid flats till the consent terms/consent decree is fully acted uponand implemented between the parties. At the same time, boththe parties are required to be directed to fully implement theconsent terms/consent decree and to enter into furthersupplemental consent terms/family arrangement, the modalitiesof which are mentioned in the consent terms itself, at the earliestand within a reasonable time. Until then, both the parties to abideas per the Restraint order as per clause 22 of the consent terms,except the 7 flats as per list at ‘Annexure B’, which are allottedin favour of RA Group. [Para 9][791-F-H; 792-A-C]

5. The impugned judgment and order passed by the DivisionBench of the High Court and that of the Single Judge are herebymodified as under: i) Both the parties – PA Group & RA Groupare directed to fully comply with the consent terms/consent decree AB

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Aand enter into the further supplemental consent terms/familyarrangement after following the modalities to be worked out withrespect to valuation, bidding etc. as mentioned in the consentterms itself. Both the parties are directed to cooperate to fullycomply with the consent terms/consent decree and fulfil theirrespective part of obligation under the consent terms/consentBdecree; ii) that the RA Group shall counter-sign ‘Annexure E’letter with respect to 8 flats as per list at ‘Annexure A’ to theconsent terms for which the original defendant no.10 – Builderhad already issued a letter. However, it is directed that till theconsent terms/consent decree is fully implemented by both theCparties and further supplemental consent terms/familyarrangement, as ordered hereinabove, is entered into/executed,the PA Group shall not alienate and/or transfer in any mannerwhatsoever the said 8 flats. At the same time, it will be open fororiginal 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 theDsame time, both the parties to act as per the Restraint order asper clause 22 of the consent terms. The original injunction grantedby the Single Judge which has been continued till date is directedto be continued till the execution of the further supplementalconsent terms/family arrangement except the 7 flats as per theElist at ‘Annexure B’ which are allotted in favour of RA Group.[Para 10][792 B-H]

Saradamani Kandappan v. S. Rajalakshmi & Ors.(2011) 12 SCC 18 : [2011] 8 SCR 874 – not applicable.

Manish Mohan Sharma & Ors. v. Ram Bahadur ThakurFLtd. & Ors (2006) 4 SCC 416 : [2006] 3 SCR 97 ; Kale& Ors. v. Deputy Director of Consolidation & Ors.(1976) 3 SCC 119 : [1976] 3 SCR 202 ; Satya Jain &Ors. v. Anis Ahmed Rushdie & Ors. (2013) 8 SCC 131:[2013] 3 SCR 319 ; Hari Shankar Singhania & Ors. v.GGaur Hari Singhania & Ors. (2006) 4 SCC 658 : [2006]3 SCR 726 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 945-946 of 2020.

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From the Judgment and Order dated 21.12.2017 of the High Courtof Judicature at Bombay in Appeal (L) No. 447 of 2017 with Notice ofMotion (L) No. 2541 of 2017 in Appeal (L) No. 447 of 2017.

Dr. A.M. Singhvi, Mr. Dhruv Mehta, Sr. Advs., Ms. Alya Khan,Vivek A. Vashi, Advs. for the Appellants.

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Shyam Divan, Haresh M. Jagtiani, Sr. Advs., Bhargava V. Desai,Ms. Apurva Manwani, Rahul Gupta, Advs. for the Respondents.

The Judgment of the Court was delivered by:

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 21.12.2017 passed by the High Court of Judicature atBombay in Appeal (L) No. 447 of 2017 with Notice of Motion (L) No.2541 of 2017 in Appeal (L) No. 447 of 2017, by which the DivisionBench of the High Court has dismissed the said intra court appealpreferred by the appellants herein – original plaintiffs and has confirmedthe judgment and order passed by the learned Single Judge dated30.11.2017 dismissing the execution petition, the original plaintiffs – decreeholders have preferred the present appeals.

2. The dispute is between the appellants herein – original plaintiffs(hereinafter referred to as ‘PAGroup’) and respondent nos. 1 to 6 herein– original defendant nos. 1 to 6 (hereinafter referred to as ‘RAGroup’)and also between original defendant no. 10 – Omkar Realtors andDevelopers Private Limited (hereinafter referred to as ‘Omkar Builders’).The dispute was with respect to the asset of Kash Foods Private Limitedadmeasuring 4134 square meters plot at Worli, Mumbai.

2.1 That the appellants herein – original plaintiffs filed a Suit (L)No. 194 of 2015 against the respondents herein/original defendantsseeking the relief against the transfer of the property of Kash FoodsPrivate Limited in favour of respondent no.10 herein – defendant no. 10

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A- Omkar Developers. As observed hereinabove, the original plaintiffsPawan Kumar Arya and others belong to PA Group and originaldefendant nos. 1 to 6 belong to RA Group, the brother of Pawan KumarArya. According to the original plaintiffs, original defendant no.7 – M.P.Recycling Company was jointly held by PA Group and RA Group witheach credit or holding 50% of its shareholding. That M.P. RecyclingBheld 25% of shareholding in Kash Foods. That Kash Foods owned a plotof land at Worli admeasuring about 4134.27 sq, meters. That 25% of theshareholding in Kash Foods was purchased by M.P. Recycling and theremaining 75% of the shareholding in Kash Foods was bought byRAGroup in 2011 in their individual capacities.

C2.2 That by conveyance deed dated 22.12.2012, a portion of theassets of Kash Foods was transferred to original defendant nos. 3 & 4that are the members of the RA Group. A development agreement wasexecuted between Omkar Builders – original defendant no.10, KashFoods, original defendant no. 8 and defendant nos. 3 and 4, which was Dsubjected to challenge by the plaintiffs in the suit. According to the originalplaintiffs, original defendant nos. 1 to 6 in violation of the Right of Firstrefusal clause in favour of M.P. Recycling to buy shares of Kash Foodsas contained in the Articles of Association of Kash Foods, surreptitiouslyand behind the back of the plaintiffs bought 75% outsiders’ shareholdingin the names of defendant no.1’s family. According to the plaintiffs,Edefendant nos. 1 to 6 entered into a purported Development Agreementdated 10.04.2013 with Omkar Builders, a third party developer, to developthe Worli property behind the back of M.P. Recycling and the plaintiffs.According to the plaintiffs, under the purported Development Agreementwith Omkar Builders, defendant nos. 1 to 6 and Kash Foods received

FRs. 25 crores from Omkar Builders and an additional Rs. 20 crores assecurity. That as per the case of the plaintiffs, defendant nos. 1 to 6 andKash Foods also received 79,000 sq. ft. carpet area, i.e., 15 flats and 72car parking spaces from Omkar Builders under the DevelopmentAgreement. According to the plaintiffs, 15 agreements for sale wereregistered and executed in favour of defendant nos. 1 to 6 and KashGFoods.

2.3 According to the plaintiffs, defendant nos. 1 to 6 did not giveany rights/benefits in the said consideration/carpet area received fromOmkar Builders either to the plaintiffs and/or to M.P. Recycling. Theaforesaid led to the filing of the suit by the plaintiffs against originalH

defendant nos. 1 to 6 seeking a 50-50 division of the benefits receivedby Kash Foods under the Development Agreement with Omkar Builders.That during the pendency of the suit, the suit came to be settled and theaforesaid suit came to be disposed of in accordance of the consent terms.As per the consent terms, out of 15 apartments that were to come up onthe Worli land, 8 apartments admeasuring 27000 sq. meters in all wereto fall to the share of the plaintiffs– PAGroup and 7 apartments with atotal area of 52000 sq. meters were to go to defendant nos. 1 to 6– RAGroup. According to the plaintiffs, as per the consent terms, the letter ofallotment of their 8 apartments was liable to be executed by defendantno. 10 – Omkar Builders and the same was liable to be counter-signedby defendant nos. 1 to 6– RAGroup. According to the plaintiffs, defendantno. 10 – Omkar Builders had in accordance with the consent termsexecuted the letter of allotment in ‘Annexure E’ in respect of the 8apartments, but defendant nos. 1 to 6 refused to abide by the consentterms and counter-sign the letter of allotment as per ‘Annexure E’.

2.4 Therefore, in view of the refusal on the part of defendant nos.1 to 6 – RA Group to abide by the consent terms and counter-sign theletter of allotment as per ‘Annexure E’, the plaintiffs initiated theproceedings under Order 21 Rule 34 of the Code of Civil Procedure forthe execution of the consent decree viz. for execution of the documentat ‘Annexure E’ to decree dated 14.08.2015, by defendant nos. 1 to 6 –RA Group and defendant no. 10 – Omkar Builders jointly and/or severally.The execution application came to be rejected by the learned SingleJudge by the judgment and order dated 30.11.2017 by holding that neitherOmkar Builders nor defendant nos. 1 to 6 – RA Group could have beendirected at this stage to execute ‘Annexure E’ to the consent terms norcould the RA Group be restrained from dealing with the properties thatform the subject matter of Kash Foods property. The learned SingleJudge also observed that unless and until the supplementary consentterms are entered into between the parties, there is no obligation on thepart of defendant nos. 1 to 6 to execute the letter of allotment in theform of ‘Annexure E’.

2.5 Feeling aggrieved by the dismissal of the Chamber Summons/Execution Petition, the appellants herein preferred appeal before theDivision Bench. That by the impugned judgment and order, the DivisionBench of the High Court has dismissed the said appeal and has confirmedthe judgment and order passed by the learned Single Judge dated AB

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A30.11.2017 dismissing the chamber summons/execution petition. Thatwhile dismissing the chamber summons, the learned Single Judge aswell as while dismissing the appeal, the Division Bench has observedthat no direction against the RA Group to execute the letter of allotmentin the form of ‘Annexure E’ can be issued on the basis of clause 28 ofthe consent terms relied upon by the plaintiffs as there is nothing inBclause 28 of the consent terms that casts an obligation upon defendantnos. 1 to 6 – RA Group to execute the letter of allotment in the form of‘Annexure E’.

2.6 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court dismissingCthe appeal, confirming the judgment and order passed by the learnedSingle Judge dismissing the chamber summons/execution petition andrefusing to issue any direction against defendant nos. 1 to 6 – RA Groupto execute the letter of allotment in the form of ‘Annexure E’ with respectto 8 apartments, the original plaintiffs have preferred the present appeals.

D3. Dr. Abhishek Manu Singhvi and Shri Dhruv Mehta, learnedSenior Advocates have appeared on behalf of the appellants herein –original plaintiffs and Shri Shyam Divan and Shri Haresh Jagtiani, learnedSenior Advocates have appeared on behalf of the respondents herein –original defendants.E

3.1 Dr.Singhvi, learned Senior Advocate appearing on behalf ofthe appellants – original plaintiffs has vehemently submitted that in thefacts and circumstances of the case, both, the learned Single Judge aswell as the Division Bench have materially erred in dismissing the noticeof motion and not issuing the directions as prayed against originalFdefendant nos. 1 to 6 and defendant no. 10. It is vehemently submittedthat by not issuing the directions as prayed in the notice of motion, both,the learned Single Judge as well as the Division Bench have virtuallynullified the consent terms and the consent decree.

3.2 It is further submitted by the learned Senior Advocate appearingGon behalf of the appellants – original plaintiffs that the absurd consequenceof the impugned order is that though in terms of the consent terms/decree flats were allotted to both, the appellants and respondent nos. 1to 6, the appellants have got nothing under the consent decree till date.It is submitted that on the other hand respondent nos. 1 to 6 have got notonly 7 flats of double the area of the PA Kash Foods Property, but alsoH

Rs. 45 crores and are enjoying the above since about 2015 by mortgagingand dealing with their flats by raising large finances. It is submitted thatas held by this Court in the case of Manish Mohan Sharma and othersv. Ram Bahadur Thakur Ltd. and others (2006) 4 SCC 416(paragraphs 31 & 32), the effort of the executing court must be to seethat the parties are given the fruits of the decree. It is submitted that it isfurther observed in the said decision that the mandate is reinforced whenit is a consent decree and doubly reinforced when the consent decree isa family settlement. It is submitted that it is further observed in theaforesaid decision that family settlements are governed by a specialequity and are to be enforced if honestly made. Reliance is also placedupon the decision of this Court in the case of Kale and others v. DeputyDirector of Consolidation and others (1976) 3 SCC 119.

3.3 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants – original plaintiffs that the net result as oftoday is that both the consent terms and the consent decree in effectresult in a zero-sum game with no transaction accruing to the benefit ofthe appellants. It is submitted that if that was so, there was no purposeto enter into the consent terms at all.

3.4 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants – original plaintiffs that there is no basis, inany event, for the Division Bench to ignore the clear recognition of theappellants’ entitlement under the consent terms/consent decree.

3.5 Now so far as the observations made by the learned SingleJudge on the necessity to have supplementary consent terms, before theother terms of the consent decree are acted upon is concerned, it isvehemently submitted that the same is erroneous. It is submitted that thereliance placed upon clauses 13, 22, 23 and 27 of the consent terms bythe learned Single Judge is absolutely misplaced. It is submitted thatthere is not a single clause in the entire consent terms and/or the consentdecree which either expressly or impliedly postpones or in any mannermakes the appellants’ entitlement to get ‘Annexure E’ letter contingentupon respondent nos. 1 to 6’s specious plea of simultaneity with thesupplementary consent terms.

3.6 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants – original plaintiffs that the learned SingleJudge ought not to have read an implied term into the consent decree AB

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Aand/or consent terms which was never intended by the parties and therebymaking the issuance of ‘Annexure E’ letter to the appellants conditionaland/or subject to the happening of an event, i.e., filing of thesupplementary consent terms, when no such clause finds place either inthe consent decree or consent terms. It is submitted that it is a settledlaw that an implied term can be read into a contract only when it is soBobvious that the parties intended something but inadvertently the samewas left out. In support, reliance is placed upon the decision of thisCourt in the case of Satya Jain and others v. Anis Ahmed Rushdieand others (2013) 8 SCC 131 (paragraphs 32 to 35).

3.7 It is further submitted by the learned Senior Advocate appearingCon behalf of the appellants – original plaintiffs that as such there is nosuch contingency supplied anywhere in the consent terms and/or consentdecree and in fact clause 28 of the consent terms read with paragraphs2, 3 and 6 of the consent decree is an antithesis of the finding that‘Annexure E’ is contingent upon the supplementary consent terms. It isDsubmitted that ‘Annexure E’ shall not depend upon the supplementaryconsent terms to be executed/entered into as observed by the learnedSingle Judge. It is submitted that clause 28 of the consent terms readwith paragraphs 2, 3 and 6 of the consent decree unambiguously andunequivocally makes it clear that respondent no. 10 and respondent nos.1 to 6 were to provide ‘Annexure E’ letter immediately and not at theERA Group’s convenience and/or at a later date, as per the whims andfancies of respondent nos. 1 to 6 or contingent upon the supplementaryconsent terms.

3.8 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants – original plaintiffs that none of the clauses inFthe consent terms and/or the consent decree provides the supplementaryconsent terms contingent upon ‘Annexure E’ letter and/or vice versa. Itis submitted that as held by this Court in the case of SaradamaniKandappan v. S. Rajalakshmi and others (2011) 12 SCC 18, theorder of performance should be expressly stated or provided, i.e., theGagreement should say that only after performance of obligations of thevendors, the purchaser will have to perform her obligations.

3.9 It is further submitted by the learned Senior Advocate appearingon behalf of the appellants – original plaintiffs that even otherwisebecause of the total non-cooperation on the part of respondent nos. 1 toH6 and with a malafide intention respondent nos. 1 to 6 are not co-operating

in execution of supplementary consent terms. It is submitted that out ofthe 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 theshareholding 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 held50:50 by both brothers; item no. (d) is the PA Kash Foods Propertywhich was to be valued for the purposes of adjustment. It is submittedthat the valuation was not done despite numerous reminders by theappellants. It is submitted that several without prejudice emails wereaddressed to respondent nos. 1 to 6 calling upon them to execute andagree to the draft of the supplementary consent terms, which has notbeen done till date.

3.10 It is further submitted by the learned Senior Advocateappearing on behalf of the appellants – original plaintiffs that as such theplaintiffs entered into the consent terms to buy peace and to resolve theoverall family dispute between the parties. It is submitted that as held bythis Court in the case of Hari Shankar Singhania and others v. GaurHari Singhania and others (2006) 4 SCC 658 (para 42 and 43), afamily settlement is treated differently from any other formal commercialsettlement as such settlement in the eye of the law ensures peace andgoodwill among the family members. It is submitted that it is furtherobserved in the said decision that even technicalities of limitation, etc.should not be put at risk of the implementation of a settlement drawn bya family, which is essential for maintaining peace and harmony in a family.

3.11 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to allow the present appeals.

4. Shri Shyam Divan, learned Senior Advocate appearing on behalfof respondent nos. 1 to 6 and 8 & 9 has vehemently submitted that assuch the notice of motion/execution proceedings by the appellants hereinitself was premature and was for execution of only part of the consentdecree dated 14.08.2015 and therefore the same was not maintainableat all being premature execution proceedings.

4.1 It is further submitted that the appellants are seeking to executea particular clause of consent terms dated 14.08.2015, which under thesaid consent terms itself is required to be implemented after the partiesthereto arrived at a supplementary agreement which till date has notbeen arrived at or entered into. It is submitted that therefore the learned AB

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ASingle Judge rightly dismissed the said execution petition. It is submittedthat by these proceedings the appellants are seeking to execute a part ofthe consent decree without entering into the supplementary agreement.

4.2 It is further submitted that the orders interpreting the consentdecree are per se reasonable and based on sound reasoning taking intoBaccount all relevant facts and material and submissions advanced byboth the sides and therefore does not warrant any interference by thisCourt.

4.3 It is further submitted that as such the consent terms wentwell beyond the dispute raised in Civil Suit No. 191/2015 and seeks toCcomprehensively resolve all disputes such as those pertaining to thefactories owned by the parties, namely, AISCO, IMTC, Orbit AryaCommercial Premises and overall family settlement.

4.4 It is further submitted that parties entered into the consentterms and the consideration for the RAGroup agreeing to allot 8 flatsD(‘Annexure A’ properties) in favour of the PA Group was that the RAGroup would be rid of the minority status of AISCO – one of the groupcompanies of both the groups wherein RA Group was in a minority andwhose rights were being oppressed in the said company and the disputesqua all the other group companies would also achieve quietus. It issubmitted that in fact the 8 flats (‘Annexure A’ properties) were as suchEbelonged to RA Group. It is submitted that by the present executionproceedings the appellants want to execute that part of the consentdecree which favours them – allotment of 8 flats (‘Annexure A’properties), but without in any manner complying with their obligationsunder the consent terms/consent decree, i.e., the execution ofFsupplementary consent terms, as defined in clause 13. It is submittedthat the appellants cannot be permitted to get the consent decree executedin part and which is in their favour and without in any way complyingwith their obligations under the consent decree.

4.5 It is further submitted that neither under the consent termsGnor under the consent decree, there is an obligation on the part of theRA Group to issue ‘Annexure E’ forthwith upon signing of the consentterms. It is submitted that if the submission on behalf of the appellantsthat ‘Annexure E’ is to be executed forthwith and that vesting/allotmentof PA Kash Foods Property immediately upon signing of the consentterms is accepted, in that case, it would defeat the plain language ofH

clauses 9, 13, 14, 17 and 18, all of which mandate that matters relating toPA Kash Foods Property are to be contained in the supplemental consentterms. It is submitted that the settlement between the parties in allrespects was to be crystallized in the supplemental consent terms. It issubmitted that therefore the present consent terms/consent decree canbe described only as a “framework” in clauses 2, 3 and 30.

4.6 Now so far as reliance placed upon clause 28 of the consentterms by the appellants is concerned, it is vehemently submitted thatclause 28 provides for no direction to RA Group to sign ‘Annexure E’ onexecution of the consent terms. It is submitted that in the absence of adirection in a clause dealing with a “direction/request” to Omkar Buildersregarding ‘Annexure E’ completely militates against PA Group’ssubmission and their interpretation. It is submitted that if the intentionwas for ‘Annexure E’ to be issued by the RA Group “forthwith”, clause28 would have been the obvious and natural pace to provide for it. It issubmitted that even the Omkar Builders was not a party to the consentterms/decree and therefore the contents of clause 28 would not bind it.It is submitted that it is only with a view for securing compliance ofOmkar Builders that the High Court passed an order on the same dayenabling Omkar Builders to issue ‘Annexure E’.

4.7 Now so far as the reliance placed upon clause 22 of theconsent terms by the appellants, it is vehemently submitted that as perclause 22 RA Group will be free to deal with PA Kash Foods Propertyas their exclusive and absolute owners thereof with effect from thefiling of the consent terms and the PA Group does not have any claimdirect, derivative or otherwise of whatsoever nature upon the same. It issubmitted that therefore there may not be any restrain against RA Groupfrom dealing with the properties that form the subject matter of KashFoods Property.

4.8 It is further submitted that as both the learned Single Judge aswell as the Division Bench have succinctly interpreted the consent terms/consent decree and upon understanding and comprehending the intentionof the parties have held that RA Group was not obligated to execute‘Annexure E’ at this stage and that independently there was no fetter onthe RA Group from dealing with its properties.

4.9 Making the above submissions, it is prayed to dismiss thepresent appeals.

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A5. We have heard the learned Senior Advocates for the respectiveparties at length.

5.1 At the outset, it is required to be noted that as such the presentproceedings arise out of the execution proceedings initiated by theappellants herein, who were also parties to the consent terms/consentBdecree. The consent decree came to be passed in Suit No. 194/2015filed by the PA Group. It is also required to be noted that the dispute inCivil Suit No. 194/2015 filed by the appellants/PAGroup was for seeking50:50 division of the benefits received by Kash Foods under thedevelopment agreement with Omkar Builders. However, from theconsent terms dated 14.08.2015, it appears that both the parties – PACGroup and RA Group decided to resolve and settle the other disputesalso, i.e., over and above the dispute in the suit. From the consent terms,it appears that both the parties unconditionally and unequivocallyamicably resolved and settled the disputes in relation to the subject matterof Arya Iron and Steel Company Private Limited (“AISCO”);DInternational Minerals Trading Company Private Limited (“IMTC”); KashFoods Private Limited’s premises in the Omkar 1973 Project at Worli(“Kash Foods”), which forms the subject matter of the present Suit;Orbit Arya Commercial Premises (“Orbit Arya Commercial Premises”);and Disputes in relation to the larger Arya Group of Companies and itsconstituents (collectively “the Dispute”). Further, in the consent terms inEpara 2, it has been specifically mentioned that the said consent terms arean identified and mutually agreed framework for a complete parting ofways between the parties and is aimed at bringing about an eventualcomplete quietus to the disputes. Clause 3 of the consent terms furtherprovides that the parties shall execute a definitive “Family ArrangementFand Settlement” and/or writings as may be required and/or as may beadvised for a complete parting of ways, which shall work on the basis ofthe said mutually agreed framework (“Family Arrangement andSettlement”). Other terms and conditions provide for modalities to beworked out to enter into a further “Family Arrangement and Settlement”.

Clause 13 also provides for execution of supplemental consent terms.GClause 21 also further provides that until conclusion of the transfer, theparties shall not affect each other’s rights, in any way in AISCO and/orIMTC. As per clause 22 of the consent terms, RA Group and/or KashFoods shall not in any manner directly and/or indirectly or derivativelybe entitled to sell and/or transfer, and/or dispose of and/or encumberHand/or otherwise deal with the PA Kash Foods Property. It further

provides that the modification, if any, of the Restraint, shall be identifiedin the supplementary consent terms. Clause 23 of the consent termsfurther provides that the RA Group and/or Kash Foods shall publish aPublic Notice within 3 days of filing of the supplemental consent terms,withdrawing their claims in relation to PA Kash Foods Property (moreparticularly described at ‘Annexure C’). Clause 25 also further providesthat similarly the PA Group shall publish a Public Notice within 3 days offiling of the supplemental consent terms, as more particularly describedat ‘Annexure D’. Clause 28 of the consent terms further provides thatOmkar Builders be directed/requested to issue a separate letter in relationto the PA Group’s entitlement to the PA Kash Foods Property in Omkar1973 Project (more particularly ‘Annexure A’) as per draft at ‘AnnexureE’. Under the said clause, Omkar Builders was also further directed tostrictly abide by the Restraint in relation to the PA Kash Foods property.The relevant terms of the settlement are as under:

“The parties have unconditionally and unequivocally amicablyresolved and settled the disputes in relation to the subject matterof:

a. Arya Iron and Steel Company Private Limited (“AISCO”);

b. International Minerals Trading Company Private Limited(“IMTC”)

c. Kash Foods Private Limited’s premises in the Omkar 1973Project at Worli (“Kash Foods”), which forms the subject matterof the present Suit;

d. Orbit Arya Commercial Premises (“Orbit Arya CommercialPremises”); and

e. Disputes in relation to the larger Arya Group of Companies andits constituents (collectively “the Dispute”)

2. The present Consent Terms is an identified and mutually agreedframework for a complete parting of ways between the Partiesand is aimed at bringing about an eventual complete quietus to theDisputes.

3. The Parties shall on or before November 1, 2015 (or such dateas may be mutually extended in writing by the Parties) execute adefinitive Family Arrangement and Settlement and/or writings(including such documents, writings, undertakings and agreements)

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as may be required and/or as may be advised for a completeparting of ways, which shall work on the basis of the said mutuallyagreed framework (“Family Arrangement and Settlement”).

13. As to the (i) PA Kash Foods Property and (ii) Orbit AryaCommercial Premises the Parties have agreed that they wouldmutually decide the modalities of brief to the Valuers and the ThirdValuer and mode of adjustment/payment on or before August 29,2015; and Supplemental Consent Terms recording the same(“Supplemental Consent Terms”) shall be filed in this Court onAugust 30, 2015.

14. On arriving at a final valuation for the Orbit Arya CommercialPremises the PA Group agrees to take over the RA Group’s 50%share in the Orbit Arya Commercial Shop as per the modalityidentified in the Supplementary Consent Terms.

18. The Parties further agree that if there is any dispute ordifference of opinion with respect to modalities for valuation,method of adjustment/payment, Bidding Process and subsequentTransfer Process, modalities for consummation of transaction and/or guidelines for Valuers then the Parties have agreed that theirrespective nominated Attorneys will be authorized to respectiveParties to resolve such dispute/difference of opinion. The Partiesundertake not to, at any stage, raise any objection relating to conflictof Interest against the said Attorneys for assisting in resolvingsuch matters.

21. Until conclusion of the transfer the Parties shall not affecteach other’s rights in any way in AISCO and/or IMTC.

22. RA Group and/or Kash Foods shall not in any manner, directlyand/or indirectly or derivatively, be entitled to sell and/or transferand/or dispose of and/or encumber and/or otherwise deal withthe PA Kash Foods Property (more particularly defined in theschedule of Annexure A) (the “Restraint”). The modification, ifany, of the Restraint, shall be identified in the SupplementaryConsent Terms. It is expressly agreed and understood betweenthe Parties that the RA Group is free to deal with RA Kash FoodsProperty (as more particularly defined in Annexure B) as theirexclusive and absolute owners thereof with effect from the filingof these consent terms and the PA Group does not have any claim direct, derivative or otherwise of whatsoever nature upon thesame.

23. The RA Group and/or Kash Foods shall publish a Public Noticewithin 3 days of filing of the Supplemental Consent Terms,withdrawing their claims in relation to PA Kash Foods Property(as more particularly described at Annexure C).

24. The PA Group withdraws all allegations against the Defendantsin the captioned Suit and confirms that the PA Group does nothave any further interest in Kash Foods Pvt. Ltd or any of itsproperties save and except properties described in PA Kash FoodsPortion, more particularly described at Annexure A herein.

25. The PA Group shall publish a Public Notice within 3 days offiling of the Supplemental Consent Terms, as more particularlydescribed at Annexure D.

26. In so far as the eventual and complete parting of ways betweenthe Parties, the Parties agree that the larger group matters, whichshall be mutually identified in the Supplementary Consent Terms,shall be finally determined, decided and settled by 4 Mediators –2 appointed by PA Group and 2 appointed by RA Group. TheMediators shall be appointed on or before August 29, 2015.

27. The Parties hereto agree that for the purpose of giving effectto and/or implementing these Consent Terms, each partyunconditionally irrevocably undertakes that it shall, from time totime and at all times at the request of the other party provide fulland complete co-operation and do all such further acts, matters,debts and/or things that are in any manner required and/ornecessary, and/or may be necessary and/or as may be and/or arereasonably required by the other Party including executingSupplementary Consent Terms hereto.

28. Omkar Realtors and Developers Private Limited (“Omkar”or “Defendant No. 10”) is hereby directed /requested to issue aseparate letter in relation to the PA Group’s entitlement to the PAKash Foods Property in Omkar 1973 Project (more particularlyannexed at Annexure A hereto) as per draft at Annexure E hereto.Omkar is hereby further directed to strictly abide by the Restrainin relation to the PA Kash Foods Property.

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A30. The present Consent Terms provide a frame work for resolutionof all matters. The Parties are at liberty to suitably amend and/ormodify the frame work by mutual consent for the purpose of moreeffectively dealing with modalities as may be required from timeto time.”

BFrom the aforesaid terms of settlement, it can be seen that it wasan overall settlement of all the disputes between the parties in relation tothe subject matter of AISCO, IMTC, Kash Foods, Orbit Arya CommercialPremises and the disputes in relation to the larger Arya Group ofCompanies and its constituents. As observed hereinabove and so statedin clause 2 of the terms of settlement, the consent terms is an identifiedCand mutually agreed framework for a complete parting of ways betweenthe Parties and is aimed at bringing about an eventual complete quietusto the Disputes Considering the aforesaid terms of the settlement whichsubsequently became part of the consent decree, further entering intothe family arrangement/supplemental consent terms was required to beDentered into between the parties and the modalities to be worked outwith respect to the valuation, bidding etc. are also mentioned in theconsent terms. At the same time, under the consent terms/consent decreeand as agreed between the parties, 8 flats as mentioned in the list at‘Annexure A’ to the consent terms are agreed to be allotted under there-developed building to the PA Group and the flats mentioned in the listEat ‘Annexure B’ to the consent terms are agreed to be allotted to RAGroup. For the 8 flats allotted to PA Group, Omkar Builders – originaldefendant no.10 was required to issue a separate letter in relation to thePA Group’s entitlement to the PA Kash Foods Property in Omkar 1973project as per draft at ‘Annexure E’ to the consent terms. Allotment of Fthe 8 flats as per list at ‘Annexure A’ to the consent terms in favour ofPA Group is not disputed and cannot be disputed. Even in paragraph 3of the consent decree, the submissions of the learned counsel appearingon behalf of the respective parties have been recorded and as per thesubmissions made by the learned counsel appearing on behalf of both the parties – PAGroup & RA Group, the division in ‘Annexure A andGAnnexure B’ is final, viz-a-viz defendant no.10 – Omkar Builders. Para3 of the consent decree reads as under:

“3. Mr. Samdani, learned Senior Advocate on behalf of DefendantNo. 10, the developer, states that this division of flats in Annexures“A” and “B” is between the two Arya groups inter se. For their H

part, Mr. Dwarkadas, learned Senior Advocate for the Plaintiffs,and Mr. Jagtiani, learned Senior Advocate for Ravi Arya Group,agree that the division in Annexures “A” and “B” is final vis-a’-vis Defendant No. 10. They also agree that allotments made andpossession given in terms of Annexure “A” and Annexure “B”would constitute a full, sufficient and complete discharge of the10[th] Defendant’s obligations under the Development Agreement,as also the individual flat agreements already executed in favourof the parties. In view of these statements made by Mr. Dwarkadasand Mr. Jagtiani, which are on instructions, Mr. Samdani states,on instructions, that his clients, Defendant No. 10, will issue theletter a proforma of which is at Exhibit “E” to the consent terms.”

It appears that as such original defendant no.10 – Omkar Buildershad already issued the letter in the proforma as per ‘Annexure E’ to theconsent terms in favour of PA Group with respect to 8 flats allotted toPA Group. Therefore, it appears that so far as original defendant no. 10is concerned, original defendant no.10 has already complied with itsobligation under the consent decree. However, RA Group is not counter-signing the said ‘Annexure E’ and therefore there is not complete transferof 8 flats in favour of PA Group which as such are allotted to them.Therefore, making a grievance by not counter-signing the letter ofallotment as per ‘Annexure E’, the original defendant nos. 1 to 6 – RAGroup have refused to abide by the consent terms/consent decree. It isthe case on behalf of original defendant nos. 1 to 6 – RA Group thatunless and until there is a total compliance of the consent terms/consentdecree including entering into or execution of the supplemental consentterms/family arrangement as agreed between the parties as per theconsent terms/consent decree the defendant nos. 1 to 6 – RA Group arejustified in not counter-signing the letter of allotment as per ‘AnnexureE’. On the other hand, it is the case on behalf of the appellants – plaintiffsthat further execution of supplemental consent terms/family arrangementhas nothing to do with the allotment of 8 flats in favour of PA Group.

6. Having heard the learned Senior Advocates for the respectiveparties and considering the relevant terms of the settlement, reproducedhereinabove, we are of the opinion that further execution of supplementalconsent terms/family arrangement is required to be executed betweenthe parties. For whatever reasons, the further supplemental consent termshave not been entered into between the parties. Therefore, as such, AB

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Aconsidering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and soaimed at bringing about an eventual complete quietus to the disputesbetween the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subjectmatter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial PremisesBand the disputes in relation to the larger Arya Group of Companies andits constituents, which were beyond the dispute in the civil suit, the entireconsent terms/consent decree is required to be acted upon and/orimplemented by both the parties. There cannot be any execution of partialconsent terms/consent decree. If the submission on behalf of the plaintiffsCis accepted and the 8 flats as per list at ‘Annexure A’ are transferredabsolutely and without any condition in favour of PA Group without therebeing any further supplemental consent terms/family arrangement, inthat case, the entire object and purpose of entering into the consentterms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree areDrequired to fully comply with the terms of settlement/the consent termsand the consent decree. One party cannot be permitted to say that thatportion of the settlement which is in their favour be executed and/orcomplied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learnedESingle Judge as well as the Division Bench are justified in holding thatthe execution of the further supplemental consent terms/familyarrangement is must and there cannot be any partial execution of theconsent terms/consent decree.

7. Even in the case of Hari Shankar Singhania (supra), theFdecision which has been relied upon by the learned senior counselappearing on behalf of the appellants, this Court has observed that afamily settlement is treated differently from any other formal commercialsettlement as such settlement in the eye of the law ensures peace andgoodwill among the family members. It is further observed that

technicalities should not be put at risk of the implementation of aGsettlement drawn by a family, which is essential for maintaining peaceand harmony in a family. It is further observed that it is the duty of thecourt that such an arrangement and the terms thereof should be giveneffect to in letter and spirit.

7.1 In the case of Manish Mohan Sharma (supra), this Courthas observed and held that effort of the executing court must be to seethat the parties are given the fruits of the decree. It is further observedthat mandate is reinforced when it is a consent decree and doublyreinforced when the consent decree is a family settlement.

8. Now so far as the relied placed upon the decision of this Courtin the case of Saradamani Kandappan (supra), relied upon by thelearned Senior Advocate appearing on behalf of the appellants – plaintiffs,more particularly reliance placed upon paragraph 54 of the said judgmentin support of his submission that in the consent terms/consent decree, itis expressly stated or provided the order of performance, namely, thatthe further supplementary settlement is to be executed and only aftersuch execution the 8 flats as per list at ‘Annexure A’ to the consentterms shall be allotted in favour of PA Group is concerned, on consideringconjoint reading of the terms of the settlement, the said decision shall notbe applicable to the facts of the case on hand.

8.1 Even on conjoint reading of all the terms of the settlement,more particularly the clauses referred to hereinabove, it can be said thatthere is an implied term that both the parties have intended that on onehand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand thereshall be transfer/allotment of 8 flats as per list at ‘Annexure A’ in favourof PA Group. Any other interpretation would lead to unworking of theconsent terms/consent decree. As observed hereinabove, if the consentdecree is partially executed and the other parts of the consent terms arenot implemented and/or acted upon, the object and purpose to resolve allthe disputes amicably between the parties and to put an end to all thedisputes between the parties will be frustrated.

9. However, at the same time, one cannot lose sight of the factthat the 8 flats as per list at ‘Annexure A’ are allotted in favour of PAGroup and rest of the 7 flats as per list at ‘Annexure B’ are allotted infavour of RA Group. At present, the RA Group is in possession of all the15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore,to strike the balance between the parties, the RA Group can be directedto counter-sign ‘Annexure E’ letter issued by Omkar Builders with respectto 8 flats as per list at ‘Annexure A’ which are allotted in favour of PAGroup. However, with a caveat that till the further supplemental consentterms/family arrangement as agreed between the parties under the A

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Aconsent terms/consent decree is not executed, PA Groupmay not bepermitted to sell, transfer and/or deal with the said flats till the consentterms/consent decree is fully acted upon and implemented between theparties. At the same time, both the parties are required to be directed tofully implement the consent terms/consent decree and to enter into furthersupplemental consent terms/family arrangement, the modalities of whichBare mentioned in the consent terms itself, at the earliest and within areasonable time. Until then, both the parties to abide as per the Restraintorder as per clause 22 of the consent terms, except the 7 flats as per listat ‘Annexure B’, which are allotted in favour of RA Group.

10. In view of the above and for the reasons stated above, theCimpugned judgment and order passed by the Division Bench of the HighCourt and that of the learned Single Judge are hereby modified as under:

i) Both the parties – PA Group & RA Group are directed to fullycomply with the consent terms/consent decree and enter into the furthersupplemental consent terms/family arrangement after following theDmodalities to be worked out with respect to valuation, bidding etc. asmentioned in the consent terms itself, within a period of four monthsfrom today. Both the parties are directed to cooperate to fully complywith the consent terms/consent decree and fulfil their respective part ofobligation under the consent terms/consent decree; Eii) that the RA Group shall counter-sign ‘Annexure E’ letter withrespect to 8 flats as per list at ‘Annexure A’ to the consent terms forwhich the original defendant no.10 – Omkar Builders had already issueda letter, within a period of two weeks. However, it is directed that till theconsent terms/consent decree is fully implemented by both the partiesFand further supplemental consent terms/family arrangement, as orderedhereinabove, is entered into/executed, the PA Group shall not alienateand/or transfer in any manner whatsoever the said 8 flats. At the sametime, it will be open for original defendant nos. 1 to 6 – RAGroup to dealwith 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 asGper clause 22 of the consent terms. The original injunction granted bythe learned Single Judge which has been continued till date is directed tobe continued till the execution of the further supplemental consent terms/family arrangement except the 7 flats as per the list at ‘Annexure B’which are allotted in favour of RA Group.

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11. With the aforesaid observations and directions, both theseappeals stand disposed of. However, in the facts and circumstances ofthe case, there shall be no order as to costs.

Ankit Gyan

Appeals disposed of.

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