Delhi High Court

Gopal Das Estates & Housing Pvt. ... vs National Insurance Co. Ltd. on 29 April, 2009

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+                     Ex. P. No.59/2008

%                     Judgment reserved on :           24th April, 2009

                      Judgment pronounced on :         29th April, 2009

Gopal Das Estates & Housing Pvt. Ltd.   ..... Decree Holder
                    Through : Mr. V.K. Makhija, Sr. Adv. with
                              Mr. Naresh Thanai, Adv.

                                 versus

National Insurance Com. Ltd.           .... Judgment Debtor
                    Through : Mr. Somesh Arora, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                Yes

2. To be referred to Reporter or not?                             Yes

3. Whether the judgment should be reported                        Yes
   in the Digest?

MANMOHAN SINGH, J.

1. In the present execution petition, the decree-holder prays for

executing the order and decree dated 25 th May, 2000 passed by this

court by attachment of space measuring 1203 sq. ft on 12 th Floor in Dr.

Gopal Das Bhawan, 28, Barakhamba Road, New Delhi by issuance of

warrants of attachment and possession. It is further prayed that the

Executive Officer of the Judgment Debtor be directed to handover

possession to the decree-holder through its Managing Director and to

handover the keys of the premises and to pay mesne profits at the market

rate @ Rs.250 per sq. ft. with effect from 1st January, 2008 till the

Judgment debtor vacates and hands over the possession in terms of the

compromise decree dated 26th May, 2000.

2. During the course of hearing, learned counsel for the decree-

holder has given up the prayer for mesne profits as prayed in the

Execution petition and insists on other reliefs as mentioned in the prayer

clause of the Execution petition.

3. A joint application being I.A.No.5075/2000 was filed by the

parties to record settlement under Order 23 Rule 3 and Section 151 CPC

in the suit. The said application was signed by both the parties as well

as their respective counsel. Affidavits in support of the said application

were also filed. The terms of settlement were mentioned in Para 2 of the

said application. The same are reproduced herein-below:-

―2. That the parties have entered into an Agreement of Settlement and the terms of the settlement are record hereunder :-

i) The Defendant Company would surrender 1800 sq. ft.

carpet area (as shown red in the site plan annexed) which is currently occupied by the Branch Office, Barakhamba Road and would retain 1203 sq. ft. carpet area (shown green in the site plan annexed) which is currently occupied by Direct Agent Branch Office attached to DO-

ii) The time for vacating the 1800 sq. ft. carpet area would be 15 months from the date of recording settlement. It is, however, agreed that in case the defendant company finds a suitable alternative space prior to 15 months, the said premises would be vacated even prior to 15 months and for that the defendant company would make earnest effort to look for an alternative space and as soon as they are able to locate an alternative premises, the premises in question would be vacated. However, on the expiry of 15 months period, the defendant company would handover the peaceful and vacant possession of the said 1800 sq. ft. carpet area to the plaintiff.

iii) For the premises measuring 1800 sq. ft. which the defendants are surrendering, the rate of rent again

would be Rs.30/- per sq. ft. (carpet area) with effect from 01.01.99.

iv) For the premises retained by the defendant company measuring 1203 sq. ft. an Agreement would be executed between the parties within 30 days with effect from 01.01.99 for the exact area initially for a period of three years with the rent of Rs.30/- per sq. ft. (carpet area) per month. The lease would be renewable twice for a period of 3 years each with an escalation in rent by 15% after every three years, i.e. the total period would be for 9 years.

v) The defendant company would pay the arrears of enhanced rent i.e. difference of rent paid and that payable @ Rs.30% per sq. ft. w.e.f. 01.01.99 immediately on recording of the settlement. The rate of rent as stated above would be Rs.30% per sq. ft. of the actual carpet area surrendered and retained by them.

vi) That the plaintiff would not be entitled to any further amount by way of any mesne profit and/or damages as claimed in the suit.

vii) That the parties will bear their own costs.‖

4. On the above said application, the following order was

passed on 26th May, 2000:-

―26.05.2000 Present : Mr. Kishore Rawat for the defendant I.A. No.5075/2000 This is a joint application under Order 23 Rule 3 CPC. Learned counsel for the parties state that they have entered into a settlement and that the parties will be bound by the terms and conditions of the settlement. Possibly a decree cannot be passed as it appears that a fresh tenancy is created in respect of two portions. In view of this learned counsel for the plaintiff states that in view of the compromise arrived at between the parties the suit may be dismissed as withdrawn. This application is allowed to this extent.

Application stands disposed of.

S. No.783/96 Suit of the plaintiff is dismissed as withdrawn leaving the parties to bear their own costs.

               MAY 26, 2000                              J.B. Goel, J.
               ms‖

5. It is the admitted position between the parties that as per

clause (iv), the lease deed has not been executed between the parties.

The present petition has been opposed by the Judgment debtor on

various grounds by filing the reply. One of the grounds raised is that

the present execution petition does not lie as per law as the execution

can only be filed where a decree has been passed by the court. In the

present case the order dated 26th May, 2000 was passed on the basis of

compromise arrived between the parties. However, the suit of the

plaintiff/decree-holder was dismissed as withdrawn by this court which

means that the order passed by this court cannot be termed as an order as

defined under Section 2(14) of the Code of Civil Procedure, 1908. The

decree-holder is seeking execution to take advantage of his own wrong

as according to clauses (i) to (iv) of order dated 26 th May, 2000 it was

incumbent upon the decree-holder to take steps for execution of a fresh

written lease deed with respect to the tenanted premises for a period of

three years with two options of renewal of three years each. Since the

same has not been complied with by the decree-holder till date despite

several requests and reminders of the judgment debtor. Thus, the

decree-holder cannot be benefited for his own wrong and, therefore, the

execution petition filed by the decree-holder is liable to be dismissed.

6. Learned counsel for the judgment debtor has strongly argued

that the reading of the said order dated 26 th May, 2000 makes it clear

that the court was of the view that since the suit was dismissed as

withdrawn and there was no decree in favour of any of the parties,

question of entertaining the execution petition does not arise. Learned

counsel for the judgment debtor has also referred to various provisions

of the Code of Civil Procedure, 1908 i.e. Order 21 Rule 11(2), Section

2(2), (3), (10) and (14) in support of his submission. Lastly the learned

counsel for the judgment debtor states that the judgment debtor even

tendered the rent by way of cheque from the year 2008 and the decree-

holder has accepted the same without any objection.

7. The learned Senior counsel Mr. V.K. Makhija appearing for

the decree-holder has argued that the order dated 26 th May, 2000 is an

executable order under the law on the following reasons:-

i) That the order dated 26th May, 2000 was passed on the

joint application filed by the parties under Order 23

Rule 3 CPC which was duly signed by the parties

supported by their affidavits.

ii) It is also recorded in the said order that the parties have

entered into a settlement and that the parties will be

bound by the terms and conditions of the settlement.

iii) That after recording the above said order, the court has

specifically passed the order to the effect that this

application being I.A.No. 5075/2000 is allowed to that

extent and the said joint application stood disposed of as

per the said order.

8. Learned counsel for the decree holder has argued that the

order dated 26th May, 2000 itself shows that the terms and conditions

mentioned in the joint application have been duly accepted by the court

and by allowing the said application later on, it further shows that the

execution filed by the decree holder is maintainable. It is immaterial

whether the suit has been dismissed as withdrawn as mentioned in the

impugned order.

9. Learned Senior counsel has also referred to the definition of

word ―Decree‖ in Section 2(2) of the Code of Civil Procedure, 1908

which reads as under:-

―2.(2) ―decree‖ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -

               (a)     any adjudication from which an appeal lies as an
               appeal from an order, or
               (b)     any order of dismissal for default.‖

Explanation--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

10. While dealing with the argument of judgment debtor that the

lease deed has not been executed between the parties as mentioned in

Para 2(iv) of the joint application, learned counsel for the decree holder

has blamed the conduct of the judgment debtor in this regard and states

that after passing of the said order there was no serious act on the part of

the judgment debtor to execute the lease deed within 30 days with effect

from 1st January, 1999 nor even subsequently and even otherwise the

period of 9 years mentioned in this clause has already expired, therefore,

question of lease after the expiry of period of 9 years as per clause does

not arise and, therefore, the present execution petition is very much

maintainable and it is covered within the definition of decree as defined

in Section 2(2) of Code of Civil Procedure, 1908.

11. I have heard learned counsel for the parties and have also

gone through the pleadings including the terms of settlement and the

order passed thereon and it appears to me that the order dated 26 th May

2000 is an executable order as this order has been passed on the joint

application filed by the parties under Order 23 Rule 3 CPC. The said

application is signed by the parties and supported by the affidavits.

While passing this order, the court has not only mentioned in the said

order that the parties will be bound by the terms and conditions of

settlement but also mentioned that the joint settlement application is

allowed and disposed of. A bare reading of the provisions of

Section-2(2) makes it clear that the order passed in this matter is

covered under the definition of ―Decree‖ passed by the court.

12. I also agree with the learned counsel for the decree holder

that since the lease deed has not been executed between the parties in

terms of Para 2(iv) of the settlement and the total period of 9 years has

already expired, the question of execution of lease deed after the expiry

of time between the parties is not necessary. As regards the paying of

rent by the judgment debtor from the year 2008 is concerned, it does not

help the case of the judgment debtor. As merely paying of the rent by

the judgment debtor does not tantamount that the decree passed by the

court becomes null and void.

13. A similar question arose in the case of Mohd. Iqbal vs.

Mohd Amin, 2008(146) DLT 521 cited by Mr. V.K.Makhija, learned

Senior counsel for the decree holder in appeal being EFA(OS) 13/2004

by a Division Bench of this court wherein the Division Bench as well as

the Single Judge had taken the view that when an order has been passed

by this court permitting withdrawal of the suit, the court was conscious

of the fact that the suit was being withdrawn in view of the terms which

had been placed on record. Para 3 of the order passed by B.D.Ahmed J.

in the case of Mohd Iqbal (supra) reads as under:-

"3. The present execution petition was filed on the premise that no construction whatsoever had been carried out at the plot in question and in terms of the settlement/agreement and in particular Clause 10 thereof, the property was to revert to the defendant in the suit. On 12.3.2004 after hearing the objections raised by the judgment debtor, this Court was of the view that since the suit was dismissed as withdrawn, there was no decree in favour of any of the parties and consequently the question of entertaining the execution petition on the basis of Clause 10 of the agreement did not arise. The Court was of the view that Clause 10 of the said agreement constituted a new contract between the parties and that no decree had been passed by the Court in terms of Clause 10 against the judgment debtor. As a result of this, the execution petition was found to be not maintainable and was dismissed. Liberty, however, was granted to the decree holder to seek other remedies on the basis of the aforesaid Clause 10 of the agreement in accordance with law. Being aggrieved by the said dismissal of the execution petition, the applicant/decree holder filed an appeal being EFA(OS) 13/2004. That appeal was disposed of by a Division Bench of this Court on 18.11.2005. The Division Bench was of the view that when the order dated 25.2.1991 was passed by this Court permitting withdrawal of the suit, the Court was conscious of the fact that the suit had been withdrawn in view of the compromise which had been placed on record. The Division Bench specifically note that it is because of that that the Court had directed that the parties would be bound by the terms of the compromise. Consequently, the Division Bench concluded that the observation of the Executing Court that Clause 10 of the agreement was a new agreement between the parties, did

not appear to be correct. As a result of this conclusion, the Division Bench set aside the impugned order and remanded the case back to the Executing Court to decide the execution petition afresh in the light of the observations made by the Division Bench.‖

14. The present case is squarely covered by the ratio of the above

said decision. Thus the present execution petition is accepted and the

judgment debtor are directed to handover the space measuring 1203 sq.ft

on the 12th Floor, Dr.Gopal Das Bhawan, 28, Barakhamba Road, New

Delhi along with its keys to the decree-holder through its Managing

Director within a period of 4 weeks from today. In failure to do so, it is

directed that warrants of attachment and possession shall be issued

against the judgment debtor to comply with the above said order

immediately after the expiry of four weeks. In that case, the decree

holder shall also be entitled to take the Police aid, if necessary, from the

PS, Connaught Place, New Delhi. No further orders are required to be

passed. The execution petition is accordingly disposed of in the above