Bombay High Court
Rajendra Gajanan Nagvekar vs Arun Baburao Velankar And Anr on 26 August, 2021
Bench: Nitin W. Sambre
Digitally signed
IRESH by IRESH
SIDDHARAM
SIDDHARAM MASHAL
MASHAL Date: 2021.08.30
16:59:06 +0530
19.1587.18 wp.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1587 OF 2018
RAJENDRA GAJANAN NAGVEKAR ....PETITIONER
V/s.
ARUN BABURAO VELANKAR AND ANR .....RESPONDENTS
Mr. Bhavesh Parmar a/w Mr. Devmani Shukla a/w Mr. Rajesh
Sahani & Vivekanand Akshali for the Petitioner
Mr. Sanjiv A. Sawant a/w Mr. Abhishek Matkar for Respondent nos. 1
&2
CORAM : NITIN W. SAMBRE, J.
DATE: AUGUST 26, 2021.
P.C.:
1] In a suit for specifc performance of a registered agreement
dated 27/11/1995, a consent decree came to be passed pursuant t o
the consent terms signed and tendered by the parties on
19/09/2009. Said consent terms provides for corresponding
responsibility to be complied by each of the parties i.e. Judgment
Debtor and Decree Holder.
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2] Assurance for the payment of consideration within the
prescribed time was not honoured by the petitioner, which has
resulted into initiation of Special Darkhast No. 25/2010 by the
respondent-decree holders.
3] Vide impugned order dated 11/01/2018 passed below Exh. 135,
sale of the suit property under Order 21 Rule 64 of the Code of Civil
Procedure, 1908 (Hereinafter referred to as 'CPC' for the sake of
brevity) was ordered. As such, this petition.
4] Submissions of the learned counsel for the petitioner are, the
consent terms based on which compromise decree passed under
Order 23 of the CPC speaks of corresponding liability/responsibility
to be discharged by the respondent-decree holder. According to him,
apart from not settling the objection of third party who has claimed
right in the suit property, the consideration which was due and
payable, in fact, was duly paid. In view of non-compliance of the
corresponding responsibility by the respondent, amount was
withheld. Learned counsel would invite attention of this Court to
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clause 5 of the consent terms which speaks of responsibility of the
respondent-decree holder to neutralize the claim of third party,
clause 11 measurement of the land and in case if any shortfall,
compensate the petitioner at the rate of Rs. 25,000/- per Guntha.
5] According to learned counsel for the petitioner, Order 21 Rule
64 of CPC contemplates attachment of the property before ordering
auction. In view of order dated 24/02/2015 passed below Exhibit
120, attachment ordered was set aside. That being so, necessary
requirement under Order 21 Rule 64 of CPC is not complied with
before ordering sale of the property.
6] One more contention of the learned counsel for the petitioner is,
while passing the order impugned in exercise of powers under Order
21 Rule 64 of the CPC, court has not fxed the fnancial liability of the
petitioner to be discharged and by vague observations has passed the
order impugned. He would as such claim that executing court has
read the decree in part and not as a whole.
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7] Counsel for respondent would urge that petitioner-judgment
debtor, from day one failed to discharge his responsibility as was
agreed in the compromise decree and consent terms. The cheque
issued for amount of Rs. 30 Lakhs issued immediately thereafter was
dishonoured in 2009 and since then a demand about payment of
consideration are not honoured. He would further claim that order of
attachment still holds the feld and same was never set aside in
express terms by the executing court. Learned counsel then would
urge that in case the land fall short of to which he has agreed, same
could be looked into after the petitioner pays entire consideration. As
such, according to him, petitioner is enjoying the property without
parting entire consideration and that being so, petition is liable to be
dismissed.
8] With the assistance of respective counsel, I have perused each
of the terms of the consent terms dated 19/09/2009. Admittedly,
said consent terms cast responsibility to be complied with by each of
the party to the same. If consent terms is read minutely, burden is
casted on the petitioner-judgment debtor to pay consideration and as
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such, title stood vested in him. Admittedly petitioner-judgment debtor
has failed to pay entire consideration as was agreed to as could be
inferred from the record. Rather the cheque towards payment of
consideration was dishonoured. Neither the amount of interest @
18% is paid nor the balance consideration.
9] Though learned counsel for the petitioner has claimed that
there is third party objection to the property in question, however, the
fact remains that said objector's claim can be looked into at
appropriate stage of the proceedings, however, same cannot act as
rider on the right of the respondent-seller from receiving
consideration from the petitioner. Petitioner-judgment debtor cannot
take shelter of said development to frustrate the decree. The claim of
the objector is not for entire suit property.
10] Apart from above, perusal of order dated 24/02/2015 passed
below Exh. 120 wherein attachment was challenged, does not speak
of setting aside of the order of attachment. Rather order of
attachment still holds good. Contention that the order of attachment
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was set aside was never canvassed before the court below i.e.
executing court when the order impugned was passed. Petitioner for
the frst time has raised such contention before this Court. This
Court from the order dated 24/02/2015 cannot infer that such order
of attachment was set aside.
11] In the aforesaid background, it can be inferred that the very
requirement under Order 21 Rule 64 of the CPC is very much
satisfed as property stood attached and same continued till this date
of proceedings.
12] This takes me to the last contention of the petitioner i.e.
fndings recorded by the court below are without any proper
reasoning. The court was conscious to the fact that petitioner has not
paid entire amount of consideration which has prompted the
respondent to proceed ahead with the execution of the decree by
invoking provisions of Order 21 Rule 64 of the CPC. The Decree
speaks time bound responsibility of the petitioner-judgment debtor of
payment of consideration to be completed by 30/10/2009. Failure to
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pay consideration attracts interest at 18% per annum. As observed
herein above, petitioner till this date has neither paid entire
consideration nor the amount of interest as could be gathered from
the observations made by the court below. Court below has worked
out the liability of the petitioner on the date of the passing of the
order i.e. on 11/01/2018 to be around Rs. 50,35,711/-.
13] As such, it could be inferred that court below while directing
the sale of the property was conscious to the liability of the petitioner.
14] In the aforesaid background, I hardly see any illegality which
warrants interference in extraordinary jurisdiction. Petition as such
fails, stands dismissed.
[NITIN W. SAMBRE, J.]
