J.N.Uppal vs Dr.Harish Uppal & Ors.
2011 Latest Caselaw 5139 Del

        *              IN THE HIGH COURT OF DELHI AT NEW DELHI



                                           Reserved on : 27.09.2011
        %                               Date of decision : 19.10.2011

        +                        EFA (OS) No.27/2010


        J.N.UPPAL                   ...      ...    ...      ...APPELLANT


                      Through :      Mr.Suchinto Chatterji, Advocate.


                                    -VERSUS-


        DR.HARISH UPPAL & ORS.             .. ... ...    RESPONDENTS


                     Through :      Respondent No.1 in person.

                                    None for Respondent Nos.2 to 5.

        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MS. JUSTICE RAJIV SHAKDHER


        Whether the Reporters of local papers
        may be allowed to see the judgment?                NO

        To be referred to Reporter or not?                 NO

        Whether the judgment should be                     NO
        reported in the Digest?

        SANJAY KISHAN KAUL, J.

1. The propensity of real brothers to fight over trifle

amounts, keeping in mind the value of the properties

in question, has given rise to this first appeal arising

from an order dated 10.09.2010 in execution

proceedings.

2. The parties to the present appeal are progenies of

late Dr.D.R.Uppal and Late Smt. Padmavati. A suit

No.146/1994 was filed by R-2, daughter, seeking

partition of two properties namely 20, Todarmal

Road, New Delhi - 110 001 and 9A/50, WEA, Karol

Bagh, New Delhi - 110005.

3. The appellant, the son, also filed a Suit No.528/1994

for partition of the properties, stated to be acquired

and purchased by R-1, R-2 and R-5 (son of the pre-

deceased daughter) at Delhi, Jaipur and Shimla out

of the income accruing from the aforesaid properties.

It is the claim of the appellant that a memorandum

of family settlement in the hand writing of R-1 was

signed on 29.03.1989 recording the factum of an oral

partition of the two ancestral properties. That

information being conveyed to income tax

authorities, the appellant shifted in a portion of the

property located at 20, Todarmal Road, New Delhi -

110 001 in September, 1990. R-1 is also stated to

have filed a suit no.12/1994 against the appellant in

the court of Sub Judge for permanent injunction,

restraining the appellant from selling his portion of

the property at 20, Todarmal Road, New Delhi - 110

001. The earlier partition was, however, challenged

by R-2 in a suit. R-1 is stated to have withdrawn his

suit filed before the Sub Judge. The two suits filed in

the High Court were consolidated.

4. It appears that better sense prevailed over the

parties and to resolve the disputes, the matter was

referred to the arbitration of one Mr.A.P.Malik,

husband of one of the sisters of the parties and an

award is stated to have been passed by the

arbitrator on 25.11.2001. One of the stipulations in

the award was for R-1 to pay amount of Rs. 14 lakhs

to the appellant as per a procedure laid down in a

note dated 07.10.2001. This amount was deposited

by R-1 with sole arbitrator on 03.12.2001.

5. The appellant filed an application for withdrawal of

Suit No.528/1994 on 11.12.2001 to facilitate release

of money as the note dated 07.10.2001 envisaged

the handing over the money to the appellant on the

appellant informing the Delhi High Court suitably to

withdraw Suit No.528/1994. It may also be noticed

that the sole arbitrator vide letter dated 04.12.2001

had informed the appellant to proceed in the matter

by withdrawing Suit No.528/1994 by making an

appropriate application and "thereafter you may

collect the money from the undersigned."

6. R-1 was, however, aggrieved by certain averments

made in the application for withdrawal and filed a

reply. This resulted in a rejoinder being filed by the

appellant disputing the averments made in the reply

and a prayer being made by the appellant that he

may be permitted to withdraw IA No.11644/2001

filed on 11.12.2001 for withdrawal of Suit

No.528/1994. It may be noticed that the suits in the

meantime came to be transferred to the District

Courts and Suit No.528/1994 with its new number

was listed before the learned ADJ on 15.05.2004 for

arguments on preliminary issue framed on

27.03.2004 when the statements of parties were

recorded in terms whereof the suit was dismissed as

withdrawn. The order, however, simultaneously

observed that the existence or validity of any

arbitration award between the parties can be looked

into in a separate case which was filed by the

plaintiff therein for executing the alleged award

bearing Execution Case No.12/2004. (transferred to

the High Court and numbered as Execution Petition

No.74/2005)

7. Various proceedings inter se the parties have been

withdrawn since then albeit belatedly and the

matter compromised, but the execution petitions

were pending before the learned Single Judge on the

original side. One of the issues cropped up was the

claim of the appellant that on account of delay in

release of the sum of Rs.14 lakhs to him by R-1 (in

view of the inter se dispute the arbitrator had, in the

mean time on 21.08.2002, returned back the money

to R-1), the appellant is entitled to interest at the

rate of 18 per cent per annum. The various

objections of the parties in the execution petitions

were dealt with and all the matters were disposed of

vide an order dated 02.05.2008. One of the matters

discussed in the order dated 02.05.2008 was

Execution Petition No.74/2005 where the appellant

had prayed for payment of Rs.14 lakhs along with

interest at the rate of 18 per cent per annum. This

amount had been deposited by R-1 in court during

the proceedings which was permitted to be

withdrawn by the appellant. The claim of interest has

been discussed by the learned Single Judge in the

following terms:

" Insofar as the question of payment of interest is concerned, in view of my discussion above, I am of the opinion that fault lies with both the parties and some equitable solution is to be found out. Dr. Harish Uppal had deposited this amount with Mr.A.P.Malik immediately after the award, i.e. on 03.12.2001. Had Mr.J.N.Uppal withdrawn his suit immediately, he would have got this amount from Mr.Malik. Therefore, Mr.J.N.Uppal would not be entitled to any interest for the period this money remained with Mr.Malik.

Dr.Harish Uppal, however, was given back this money by Mr.Malik on 21.08.2002. Thereafter this money remained with Dr.Harish Uppal till he deposited the same in the Court. Therefore, I am of the opinion that Dr. Harish Uppal should pay interest to Mr.J.N.Uppal for this period @ 6% p.a. Actual interest shall be calculated and paid to Mr.J.N.Uppal within two months from today. On payment of this

amount, this execution shall stand fully satisfied.

This execution is, thus, disposed of with liberty to Mr.J.N.Uppal to seek revival in case the amount, as aforesaid, is not paid to Dr.Harish Uppal."

8. The effect of the aforesaid is that the appellant has

been held dis-entitled to interest for the initial period

when the suit had not been withdrawn but the fact

that R-1 was returned back the money by the sole

arbitrator and enjoyed the same till deposit of the

same with the Court was a factor which was taken

into account while awarding 6 per cent per annum

simple interest for that period.

9. R-1 vide a letter dated 23.06.2008 sought to tender

the amount in pursuance to the order dated

02.05.2008. R-1 stated in the letter that as per the

note dated 07.10.2001, the amount was liable to be

handed over to the appellant by the sole arbitrator

Sh.A.P.Malik after Suit No.528/1994 was withdrawn.

The suit was withdrawn only on 15.05.2004 and thus

R-1 stated in the letter that the appellant was not

entitled to receive the award amount before

15.05.2004. The interest at the rate of 6 per cent

per annum was thus payable only from 15.05.2004

to 10.05.2007 i.e. for a period of about 3 years. The

pay order dated 10.05.2007 for Rs.14 lakhs had

already been deposited in the court and a banker's

cheque towards the interest element for 3 years at

the rate of 6% per annum on the sum of Rs.14 lakhs

amounting to Rs.2,52,000/- was enclosed with the

letter. Thus, R-1 refused to pay interest from

21.08.2002 to 15.05.2004 which at the rate of

6% per annum on Rs.14 lakhs amounted to

Rs.1,44,000/-.

10. The appellant continued to remain aggrieved

about non-payment of this Rs.1,44,000/- and thus

filed EA No.354/2009 qua this amount to revive the

execution petition in view of the leave granted vide

order dated 02.05.2008. The application has,

however, been dismissed vide impugned order dated

10.09.2010. It is this order which is sought to be

assailed in the present appeal by the appellant.

11. A perusal of the impugned order shows that

the learned Single Judge recorded the history of the

case and also took note of the order passed on

02.05.2008 on account of non-payment of amount of

Rs.1,44,000/-. R-1 opposed this application and

pointed out that the decree holder had carried the

matter in appeal in EFA(OS) No.1/2009 which was

rejected on 30.03.2009 and thereafter the Supreme

Court dismissed the SLP No.5510/2010 on

16.08.2010.

12. Thus, the undisputed position which is

apparent is that the order dated 02.05.2008 has

become binding on the parties. R-1 pleaded that he

had complied with the order of the arbitrator and

deposited the amounts as directed within time. The

conduct of the appellant in seeking to challenge the

award was called into question but despite recording

all these facts, the order dated 02.05.2008 had

directed payment of interest at the rate of 6 % per

annum from 2002 onwards. Even that part of the

order stood complied with post the withdrawal of the

suit on 15.05.2004.

13. The learned Single Judge thereafter took into

consideration the note dated 07.10.2001 prescribing

the mode of deposit and release of the amount in

favour of the appellant. The amount was deposited

by R-1, but since suit was not withdrawn (the

application filed for withdrawal having been

contested and the appellant seeking to withdraw the

same), the amount was taken back by R-1 which had

been deposited with the sole arbitrator, on the

ground that the appellant had not complied with the

terms.

14. Learned Single Judge has taken a view that the

exact procedure agreed to by the parties for the

withdrawal of sum of Rs.14 lakhs was not brought to

the notice of the Court while passing the order dated

02.05.2008 and thus having regard to the facts of

the case even though the order dated 02.05.2008

directed payment of interest from 21.08.2002, it was

held that the appellant could not legitimately claim

the sum at least till 15.05.2004 and thus no further

grievance can be raised qua the non-payment of

Rs.1,44,000/-.

15. The sole plea advanced before us revolved

around the effect of the order dated 02.05.2008

which undisputedly required R-1 to pay the amount

to the appellant along with interest for certain period

and that period included the period in question on

the basis of which the amount of Rs.1,44,000/- has

been quantified. It was the plea of the learned

counsel for the appellant that the impugned order

dated 10.09.2010 amounted to going behind and

reviewing the order dated 02.05.2008 as there was

no doubt about the interpretation or effect of the

order dated 02.05.2008 which had received the

imprimatur even of the Supreme Court. The order,

thus, became final and binding between the parties.

However, the plea of R-1, appearing in person, was

that the order dated 02.05.2008 amounted to a

direction de hors the award qua the issue of interest

and, in fact, went behind the award which had been

binding inter se the parties, which was not

permissible. It was thus submitted that even if the

order dated 02.05.2008 had attained finality, the

direction qua payment of interest was without

jurisdiction and R-1 could not be compelled to pay

the amount.

16. On examination of the controversy in question,

we find that there can be no doubt about the fact

that the award is binding inter se the parties as

directed by the arbitrator. The Executing Court

cannot not go beyond the decree. The facts in this

case were, however, peculiar on account of the

nature and conduct of parties and the learned Single

Judge while passing the order dated 02.05.2008

recorded the complete historical aspect of the

dispute and finally came to the conclusion that R-1

should pay interest to the appellant at 6% per

annum for a specified period within two months of

the date of the order. It is not in dispute that R-1 did

pay interest in compliance of that order albeit for a

shorter period. R-1 took upon himself the authority

to decide as to for which period he would pay

interest and for which period he would not pay

interest. He, thus, decided not to pay interest for the

period prior to date of withdrawal of the suit

i.e.15.05.2004, which has been upheld by the

learned Single Judge.

17. We are of the view that if the principle that an

Executing Court cannot go behind a decree is well

accepted, it can also not be disputed that once the

order is passed by the Executing Court and is not

challenged by the parties or is confirmed by the

appellate court and even by the Supreme Court, the

matter cannot be looked into again as that would

imply that there can be no end to a lis inter se the

parties. While objection to jurisdiction can be raised

at any stage and even in collateral proceedings but it

is, in manner of speaking, a bullet which can be fired

once. Being spent cannot be utilized once again;

since one of the principal attributes of litigation is

finality. Once the order dated 02.05.2008 became

final, it became final in all aspects which inter alia

included the amount on which interest was to be

paid, the rate of interest and the period for which

interest had to be paid. There cannot be partial

compliance of the order. Learned Single Judge had

specifically granted liberty to the appellant to seek

revival in case the amount was not paid by R-1 as

directed in the order. It cannot be disputed that R-1

has not paid the amount as directed since interest

for certain period has not been paid which amounts

to Rs.1,44,000/- calculated on the sum of Rs.14 lakhs

at the rate of 6% per annum from 21.08.2002 to

15.05.2004.

18. We are of the considered view that the learned

Single Judge vide the impugned order dated

10.09.2010 could not have gone behind or reviewed

the order passed by the coordinate Bench presided

by a learned Single Judge who was then dealing with

the execution case while passing the order dated

02.05.2008. It cannot be said that certain aspects

were not brought to the notice of the Executing

Court while passing the order dated 02.05.2008

(which stands confirmed in appeal and by the

Supreme Court) and thus there has to be re-

examination of the controversy qua the period for

which interest stood paid. This is exactly what the

learned Single Judge seeks to do vide the impugned

order dated 10.09.2010.

19. We are fortified in our view by the observations

in Sundarjas Kanyalal Bhatija and Ors. v. Collector,

Thane, Maharashtra and Ors.; (1989) 3 SCC 396

where it has been held that a binding decision of a

coordinate bench of the same court cannot be

ignored. The exercise of discretion can only be when

there is no declared principle to be found, no rule

and no authority and in case of disagreement in

views, the matter has to be referred to a larger

bench.

20. We, thus, conclude that the impugned order

dated 10.09.2010 is not sustainable and R-1 is liable

to pay amount as per the order passed earlier on

02.05.2008.

21. The result of the aforesaid is that EA

No.354/2009 stands allowed and the Execution

Petition No.74/2005 is liable to be proceeded with for

recovery of a sum of Rs.1,44,000/- by the appellant

against R-1. However, in case R-1 pays this amount

to the appellant within one month from today, the

occasion to further proceed with the execution

petition would not arise and the order dated

02.05.2008 would stand complied with and the

decree satisfied.

22. We, in the end, express our dismay and regret

at the way the two parties are continuing to litigate,

with litigation fatigue not having set in, even over a

period of 17 years. Having re-conciled their

differences, they continue to nurture ill-will towards

each other resulting in continuous pin pricks to each

other. The value of the asset is such that it really

made no difference to either of the parties keeping

in mind the amount involved in the present dispute,

yet these proceedings are continuing on account of

obdurate stand of the parties who seem to have

developed a hobby for litigation, wasting precious

judicial time.

23. The appeal is accordingly allowed leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        OCTOBER 19, 2011                           RAJIV SHAKDHER, J.
        dm