Tariq Iftikhar vs Charanjit Lal
2002 Latest Caselaw 302 Del

JUDGMENT

Mukundakam Sharma, J.

1. As the facts and the issues arising for consideration in both these execution petitions are similar, I propose to dispose of both the petitions by this common judgment and order. The decree holder-petitioner herein filed the present execution petitions by this common judgment and order. The decree holders-petitioners herein filed the present execution petitioners for execution of the judgments and decrees dated 24.3.1993 passed in Suit No. 325/93 and Suit No. 324/93.

2. The decree holder-petitioners filed two separate suits in this Court seeking for a decree for specific performance of agreements to sell dated 6.3.1992 read with supplemental dated 27.7.1992. The said suits were registered as Suit No. 325/93 & Suit No. 324/93 respectively. In the said suits a direction was also sought for directing the defendant to register the sale deeds in terms of the agreement to sell in respect of the suit properties and to put both the plaintiffs in actual physical peaceful possession of the said suit properties in due performance of the specific part of the contracts. During the pendency of the suits the parties mutually arrived at settlement and in terms thereof compromise deeds were executed on 23.3.1993 between the decree holder-petitioners and the judgment debtor-respondent. In terms of the said compromise deeds, statements of the judgment debtor-respondent were also recorded and in the said statements he had specifically stated that he has no objection if the decrees are passed in terms of the compromise applications Ex. C-1. He had also stated that the keys of the suit premises had been handed over to the plaintiffs-decree holders in Court. The statement of the attorney of the plaintiffs were also recorded who stated in his statement that the suits be decreed in terms of the compromise applications Ex. C-1.

3. By orders dated 24.3.1993 this Court disposed of the suits recording the statements of the parties. It was recorded in the said orders that joint applications had been moved under Order 23 Rule 3 of the code of Civil Procedure and in the said applications it was mentioned that the parties have amicably settled their disputes with a prayer that the suits be decreed in terms of the compromise deeds Ex.C-1. This Court also recorded that the plaintiff had handed over cheques in the Court favoring the respondent-defendant and the keys of the premises had also been handed over to the petitions - plaintiffs. In terms thereof the suits were decreed in terms of the compromise and the Registry was directed to prepare decrees in terms of the compromise deeds Ex.C-1 with a further order that the compromise deeds shall form part of the decrees.

4. For execution of the aforesaid judgments and decrees passed by this Court on 24.3.1993 the present execution petitioners are filed contending, inter alia, that the judgment debtor-respondent has failed and/or neglected to registered the sale deeds in respect of the suit properties despite the decrees. A direction is sought for to the judgment debtor to execute and present for registration of the sale deeds in favor of the decree holders.

5. I have heard the learned counsel appearing for the parties. Counsel for the petitioners submitted that in spite of the aforesaid decrees passed by this Court, the judgment debtor-respondent has failed and/or neglected to register the sale deeds and, therefore, such an order is required to be passed for execution of the decrees. He had also drawn my attention to the contents of the application under Order 23 Rule 3 of the code of Civil Procedure as also to the compromise deeds marked Ex. C-1. It is stated in the said compromise deeds that the parties have mutually agreed upon to settle the disputes between themselves without any threat, pressure or inducement from any corner. The same also recorded the agreement of the parties to purchase the properties offered by the respondent to the petitioner and the agreement to seel dated 6.3.1992 and also the fact that the other terms and conditions of the agreement to sell would also stand and govern the parties apart from the terms of settlement as recorded in the said compromise deed. Relying on the same he submitted that under the compromise decree the respondent was bound to execute the sale deed which they have not done and accordingly the decrees are required to be executed to the aforesaid extent directing the respondent to execute the sale deeds are favor of the plaintiffs.

6. Counsel appearing for the respondent, however, submitted that no such sale deeds could be executed since the same was not a part of the decrees and, therefore,e no such order as sought by the petitioners could be passed. He further submitted that the parties did not at all agreed to the execution of the sale deeds and what was agreed between the parties and what the obligation of the judgment debtor has been fulfillled by him and nothing further has to be done by the judgment debtor. He vehemently submitted that the judgment debtor did not at all agreed for the execution of the sale deeds in favor of the decree holders and that the judgment debtor has fully complied with the terms of the decrees.

7. In the light of the aforesaid submissions, I have considered the submissions of the learned counsel appearing for the parties.

8. The suits were filed by the decree holders seeking for specific performance of the agreements to sell entered into between the parties. Copies of the said agreements to sell and supplemental agreement to sell have been placed on record and I have perused the same. By the said agreement to sell the judgment debtor agreed to sell the suit property in favor of the petitioners on receipt of sale consideration. As mentioned in the said document the said agreements to sell recorded receipt of part payment with a condition that the remaining balance amount would be paid by the decree holders before the unit flats are ready and complete in all respects for being handed over with simultaneous registration of sale deeds on production of Form-34-A of Income-tax Act and other requisite documents by the vendor before the appointed day on 30th July, 1992.

9. On a bare perusal of the said terms it is crystal clear that the judgment debtor on receipt of the balance consideration of the sale price was obliged to register the sale deeds on production of Form 34-A under the Income-tax Act, 1961. The balance sale consideration as on the date of the judgments and decrees by this court stood paid and that is so recorded in the compromise deeds executed by t he parties and filed in the suits. It is recorded in the said compromise deeds that the decree holders have made payment of the balance sum by cheque and that the decree holders have agreed not to demand from the judgment debtor From 34-A from the Income-tax Department which were to be obtained under the previous agreement by the judgment debtor. It was also mentioned in the said compromise deeds that the other terms and conditions of the agreements to sell stand and govern the parties. In terms of the aforesaid compromise deeds the suits were disposed and decrees to the extent mentioned in the judgments and decrees were passed y this Court on 24.3.1993. Therefore, the terms and conditions of the agreement to sell are also a part of the comprise deed. As the compromise deeds refer to the terms and conditions of agreements to sell, it is proved and established that the parties intended to incorporate the terms of the agreements to sell in the compromise deeds. Therefore, those terms and conditions of agreements to sell which are not in consistent with the recitals of the compromise deeds got incorporated in the compromise deeds by the principle of incorporation of reference as held by the Supreme Court in the decision in Alimentea S.A. v. National Agricultural Co-operative Marketing Federation, . In my considered opinion, therefore, the clause of execution of the sale deed also became a clause of the compromise deeds and therefore, the judgment debtor is obliged to execute the sale deeds in favor of petitioners.

10. It is an admitted position that in terms of the settlement arrived at between the parties possession of the suit property has been handed over to the decree holders. Therefore, the judgment debtor is obliged to execute the sale deeds in respect of the suit property in favor of the decree holders in terms of the compromise decrees passed by this Court.

11. It is contended by the counsel appearing for the judgment debtor that as of present there is no requirement of obtaining any permission from the Income-tax Authorities nor is there any requirement for obtaining Form-34-A from the Income-tax Department. If that be the position, I do not see any reason or ground for the judgment debtor not to execute the sale deeds in favor of the decree holders. Accordingly, a direction is issued to the judgment debtor to execute the sale deeds in favor of the decree holders within two months from today, failing which the Registrar of this Court shall take necessary steps to get the aforesaid sale deeds executed and registered in favor of the decree holders. It is the contention that no permission from the Income-tax Authority is necessary but in case such permission is necessary the same shall be obtained by the judgment debtor in accordance with law and upon receipt of the said clearance from the Income-tax Department and/or Form 34-A from the Income Tax Department, sale deeds shall be executed in favor of the decree holders by the judgment debtor. In case the judgment debtor fails and/ or neglects to execute the said sale deeds in terms of the order it will be the responsibility of the Registrar of this Court to arrange for execution of the sale deeds and in case permission from the Income-tax Authority is necessary and is not obtained by the judgment debtor, he shall compel the judgment debtor to obtain the same and also take all steps to get the said decrees executed. In terms of the aforesaid order both the petitioners are disposed of.