Bombay High Court
Tulsiram S/O Anandrao More vs Nathuram S/O Ramgopal Punjabi, ... on 14 December, 2017
Bench: A. D. Upadhye
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.75/2017
APPLICANT : Tulsiram s/o Anandrao More
(PETITIONER) Aged about 80 years, Occ. Retired,
(Ori. Defendant) R/o Mudte Layout, Buldhana, Tehsil
(On R.A.) and Dist. Buldhana.
...V E R S U S...
RESPONDENTS : 1) Nathuram s/o Ramgopal Punjabi
(Ori. Plaintiffs) Since deceased through his legal heirs
(On R.A.)
1A) Smt. Kamleshbhai Nathuram Punjabi,
Deleted as per Court's
order dt.30/1/17.
Aged about 55 years, Occ. Household.
1B) Ajay Nathuram Punjabi, Aged about
35 years, Occ. Business.
Legal Heirs of Respondent No.1 (B)
Amendment carried 1B(i) Rashmi wd/o Ajay Punjabi,
out as per court's order Aged about 36 years.
dt.30.1.17
1B(ii) Nirmal s/o Ajay Punjabi,
Aged about 14 years, Minor,
Through natural guardian Mother of
Respondent No.1B(i)
1B(iii) Raunak s/o Ajay Punjabi
Aged about 10 years,
Minor, through natural guardian
Mother of Respondent No.1B(i)
All r/o Near Sangam Square,
Buldhana, Tah. and Dist. Buldhana.
1C) Sachin Nathuram Punjabi,
Aged about 30 years, Occ. Business.
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2
1D) Bharti Nathuram Punjabi,
aged about 32 years, Occ. Household.
Respondent No.1 to 4 R/o Near Sangam
Square, Buldhana, Tehsil and Dist.
Buldhana.
1E) Sau. Neelam Yogesh Chawla,
Aged about 33 years, Occ. Household,
R/o Laxmi Sports Plot, G-9 Chikhalthana,
MIDC Aurangabad, Tehsil and Dist.
Aurangabad.
2) Narayan Ramgopal Punjabi,
Aged about 55 years, Occ. Business
R/o Buldhana, Tehsil and Dist.
Buldhana.
--------------------------------------------------------------------------------------------------
Shri S.O. Ahmed, Advocate for applicant
Shri K.V. Bhoskar, Advocate for respondent nos.1(B)(i) to 1B(iii), 1C to 1E & 2
---------------------------------------------------------------------------------------------------------------------
CORAM : ARUN D. UPADHYE, J.
Date of reserving the judgment : 11/12/2017
Date of pronouncing the judgment : 14/12/2017
J U D G M E N T
1. Rule. Rule made returnable forthwith. The civil revision
application is heard finally with the consent of the learned Counsel for the
parties.
2. By this civil revision application, the applicant has prayed to
quash and set aside the order dated 7/10/2015 passed below Exh.119
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and 201 by the Civil Judge (Senior Division), Buldhana in Special
Darkhast No.118/1996.
3. The brief facts of the case are as under : -
The original plaintiffs had filed Special Civil Suit
No.95/1996 for specific performance of contract. During the pendency of
the suit, compromise pursis was filed before the learned trial Court on
3/10/1996. On the basis of the said compromise pursis, the decree was
passed on the same day i.e. on 3/10/1996. As per the terms and
conditions of the compromise decree, the original defendant was to
execute the sale-deed of the suit property before the Sub-Registrar at
Buldhana in favour of the plaintiffs within 45 days from the date of
compromise decree, dated 3/10/1996. The defendant was entitled to
receive the cheque of an amount of Rs.6,00,000/- deposited by the
plaintiffs in the Court and it was further agreed that the remaining
amount of Rs.25,000/- shall be paid by the plaintiffs to the defendant at
the time of execution and registration of the sale-deed before the
Sub-Registrar, Buldhana. As per the said terms, if the sale-deed is not
executed within 45 days, liberty was given to the plaintiffs to get it
executed through Court.
4. It is submitted that the plaintiff had filed execution
proceedings bearing Special Darkhast No.118/1996 before the Civil Judge
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(Senior Division), Buldhana and the applicant has filed objection in the
said execution proceedings vide application (Exh.119) and objected the
claim of the plaintiff. The applicant has contended that the non-applicant
has deposited the amount of Rs.25,000/- vide C.C.D. No.176/2000 on
4/9/2000 and therefore, the sale-deed was executed in favour of the
decree-holder. According to the applicant, though it is mentioned in the
sale-deed that the plaintiff has deposited the cheque of Rs.6,00,000/- in
the Court, however, the said amount was not paid to the applicant
(judgment-debtor). The decree-holder has fraudulently mentioned in the
draft sale-deed that the cheque is deposited in the Court. According to the
judgment-debtor, there is no record showing that cheque is deposited as
no C.C.D. number of the said amount is mentioned. The applicant/
judgment-debtor therefore contended that the decree-holder has obtained
the sale-deed by playing fraud on the Court. The decree-holder has not
acted as per the terms and conditions of the compromise decree. It is also
contended that the cheque is valid up to six months only and thereafter
the same cannot be encashed. According to him, the Court has executed
sale-deed without verifying the above facts and therefore, the sale-deed
executed in favour of the decree-holder is illegal. Hence, this application.
5. The applicant/judgment-debtor has also filed application
(Exh.201) and prayed that Special Darkhast filed by the decree-holder be
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dismissed. In the said application, similar contentions are made as are
made in application (Exh.119).
6. The decree-holder has filed say to this application and
objected the same vide Exh.120. The decree-holder has denied all adverse
allegations made in the applications. According to the decree-holder, as
per the terms and conditions of the compromise, the banker's cheque of
Rs.6,00,000/- was deposited in the Court on 3/10/1996. The judgment-
debtor has to execute the sale-deed within 45 days from the said date,
however, he failed to execute the sale-deed within stipulated time. The
decree-holder therefore was constrained to file the Special Darkhast on
5/12/1996 for obtaining sale-deed through Court. The judgment-debtor
has given no objection vide application Exh.31 filed on 28/5/2000 by
him. It is submitted that the decree-holder has complied with the
conditions mentioned in the compromise decree, however, the judgment-
debtor has obstructed to execute the decree and handing over the
possession. Lastly, it is submitted that the application filed by the
judgment-debtor be rejected.
7. After hearing both sides, the learned Civil Judge (Senior
Division), Buldhana has rejected the objection applications as per
Exhs.119 and 201 by its order dated 7/10/2015 passed in Special
Darkhast No.118/1996. The said order is assailed by the judgment-debtor
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by way of filing the present civil revision application.
8. I have heard the learned Counsel for the parties at length.
Shri Ahmed, the learned Counsel for the applicant, has submitted that the
agreement of sale took place between the parties on 4/4/1996 and as per
the agreement, the price of the property was fixed at Rs.7,25,000/- and
an amount of Rs.1,00,000/- was given as an earnest money and balance
amount of Rs.6,25,000/- was to be given at the time of registration of
sale-deed. He further submitted that the decree-holder has filed Special
Civil Suit on 23/7/1996 and the compromise decree was passed on
3/10/1996. He further submitted that as per the terms and conditions of
the compromise, the sale-deed was to be executed within 45 days,
however, the same was not executed within the stipulated time.
Therefore, the decree-holder has filed execution proceedings before the
Court. During the pendency of the execution proceedings, the judgment-
debtor has filed applications (Exh.119 and 201) and objected the decree,
however, the learned Civil Judge (Senior Division), Buldhana has wrongly
rejected both the applications. He further submitted that the learned trial
Court has not considered the fact that the decree-holder has failed to
deposit the amount at the time of execution of sale-deed through Court.
Therefore, the execution of sale-deed is illegal and liable to be set aside.
He further submitted that in this case the affidavits of Nazir of the Court
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and Bank Manager are filed on record which show that the cheque in
question could not be encashed as validity of cheque is only for six
months. The Nazir of the Court has also stated that there is no
endorsement showing when the cheque is deposited in the Court. He
submitted that the decree-holder has played fraud on the Court and
obtained the sale-deed. He further submitted that the consent given by
the judgment-debtor vide application (Exh.31) is of no use as no amount
is paid by the decree-holder before execution of the decree as per the
terms and conditions of the compromise. The learned trial Court,
therefore, committed an error while rejecting the applications (Exh.119
and 201) filed by the judgment- debtor. The decree is not executable. The
civil revision application filed by the applicant/judgment-debtor therefore
be allowed by setting aside the impugned order.
9. Shri Bhoskar, the learned Counsel for the respondents has
submitted that the judgment-debtor has given no objection to execute the
sale-deed vide Exh.31. The banker's cheque of Rs.6,00,000/- was
deposited on the day of compromise decree, i.e., on 3/10/1996. The
decree-holder has also deposited an amount of Rs.25,000/- in the Court.
The applicant has already received an amount of Rs.1,00,000/-. The
learned trial Court has considered all the material placed on record and
rightly rejected both the applications (Exhs.119 and 201). He further
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submitted that the applicant/judgment-debtor has not complied with the
terms and conditions of the compromise decree and failed to execute the
sale-deed within 45 days. Therefore, the Special Darkhast for execution of
decree was filed in the Court. He further submitted that the judgment-
debtor has not withdrawn the amount of banker's cheque though
deposited before the Court. He himself has avoided to withdraw the
amount and therefore, he cannot take the benefit of his own wrong. The
civil revision application, therefore, be dismissed.
10. Considering the submission of both sides and having gone
through the impugned order as well as material placed on record, I am of
the view that no interference of this Court is called for in the impugned
order. Admittedly, the compromise decree was passed on 3/10/1996. As
per the terms and conditions of the said compromise decree, the sale-deed
should be executed within 45 days from the date of decree. The plaintiff
has deposited amount of Rs.6,00,000/- in the Court vide cheque
No.903631, dated 3/10/1996 of State Bank of India. It appears that vide
Pursis Exh.37, the judgment-debtor has given no objection to the draft
sale-deed filed by the decree-holder. It further appears that the judgment-
debtor has filed application Exh.31 and has given consent to execute the
sale-deed through Court. All these facts are considered by the trial Court
and observed that there is no force in the objection raised by the
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judgment-debtor for execution of the decree. The banker's cheque of
Rs.6,00,000/- was given in the custody of Nazir as per the order passed in
Special Civil Suit No.95/1996 on 3/10/1996. The judgment-debtor,
however, failed to obtain the said cheque and encash the same. The
contention of the judgment-debtor that he has not received the balance
consideration as per the compromise decree and therefore sale-deed
executed through Court is illegal, cannot be accepted. It appears that the
judgment-debtor has filed application Exh.86 in which it is mentioned
that an amount of Rs.6,25,000/- has been deposited in the Court and also
by filing pursis has given no objection for taking possession of the suit
property. The judgment-debtor therefore cannot be permitted to object
the execution of the sale-deed by filing objection. The learned trial Court
has considered the fact that the said objection filed by the judgment-
debtor is with an intention to frustrate the execution of decree. It is also
observed that all objections raised by the judgment-debtor were also
dismissed being unsustainable and the present application filed by him is
nothing but an abuse of legal process.
11. Considering all facts and circumstances of the case, I am of
the considered view that the learned executing Court was justified in
rejecting applications (Exh.119 and 201) filed by the judgment-debtor.
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12. The learned Counsel for the applicant has relied on the
ruling, reported in AIR 1954 Supreme Court 50 (Naguba
Appa...Versus...Namdev). In the said ruling, the Hon'ble Apex Court has
held that the dismissal of the suit on default in paying the purchase
money within the time allowed is as a result of the mandatory provisions
of Order 20 Rule14 and not by reason of any decision of the Court. It is
also held that if the deposit was not made within the time fixed the suit
will stand dismissed.
13. The learned Counsel has further relied on the ruling,
reported in (1975) 2 Supreme Court Cases 505 (Sulleh Singh and
others...Versus...Sohan Lal and another). In the said ruling, the Hon'ble
Apex Court has held that the decree was passed in pre-emption suit. Time
was given by the trial Court for deposit of decretal amount but there was
no compliance. It is further held that directions given by the trial Court
are mandatory under Order 20 Rule, 14 of the Code of Civil Procedure.
Obligation is imposed on both sides and they are so conditioned that
performance by one is conditional on performance by other. It is also held
that the appellate Court cannot extend the time for payment.
14. The learned Counsel further relied on the ruling, reported in
2016 (5) Mh.L.J. (Cri.) 390 (Aditya Developers,
Nagpur...Versus...Manish Ranganath Thorat). In the said ruling, this
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Court has held that conditional decree was passed by Court directing
petitioner to execute sale-deed of flat on paying balance consideration by
respondent. As the sale-deed was not executed within 30 days from the
date of decree, nor amount of balance consideration was paid within that
period of time, decree was rendered inexecutable.
15. The learned Counsel further relied on the ruling, reported in
2016 (2) Mh.L.J. 483 (P.R. Yelumalai...Versus...N.M. Ravi). In the said
ruling, the Hon'ble Apex Court has held that the conditional decree was
passed in suit for specific performance of agreement of sale of suit
property. One month's time was granted to the buyer for depositing
amount of balance consideration, but the buyer failed to make balance
payment in said period and even in extended period. The deposit of
balance amount on the next day of stipulated time without obtaining
extension of time from the Court is inconsequential. It is held that the
decree was self-operative and suit stood dismissed for non-compliance
with decree.
In the facts and circumstances, the above rulings are not
made applicable to the case in hand.
16. After considering the submissions of both sides and after
considering the material placed on record and legal position, I am of the
view that the impugned order does not require any interference of this
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Court. The civil revision application filed by the applicant/judgment-
debtor is devoid of any merit and is liable to be rejected and accordingly
the same is rejected. Rule stands discharged. No costs.
JUDGE
Wadkar
