Ram Gopal & Ors. vs Ram Charan Aggarwal
2012 Latest Caselaw 4589 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             EFA(OS) 23 and 24 of 2010

                                         Reserved on: 27th July, 2012
                                      Date of decision: 3rd August, 2012

         RAM GOPAL & ORS.                    ..... Appellants
                      Through Mr. Aly Mirza & Mr. Sindhu Sinha,
                      Advocates.

                     versus

         RAM CHARAN AGGARWAL                ..... Respondent

Through Mr. Sudhir Nandrajog, Sr. Advocate with Mr. L.K. Singh, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. :

The present intra court appeal impugns order dated 30th August,

2010 passed by the learned single Judge in Execution Petition No.

227/2010. The impugned order allows the execution petition, which

was filed by the respondent herein Ram Charan Aggarwal and directs

the appellants herein Ram Gopal, Prem Lata and Ram Kishan to

execute a conveyance deed in favour of the Respondents in respect of

property bearing No.1375, Katra Lehswan, Chandni Chowk, Delhi.

Some directions have also been given to ensure compliance of the said

order.

2. Ram Gopal and Ram Charan Aggarwal are brothers being sons

of late Ganeshi Lal and Kasturi Devi. The father and the two sons on

or about in 1962 had commenced business in partnership under the

name and style of Lalji Mal Tika Ram with all the three having equal

share. Ganeshi Lal passed away in 1981. Disputes arose between the

two sons and their families, resulting in multifarious litigation.

Reference, for the purpose of decision of the present appeal, is required

to be made to some of the litigations. Ram Gopal had filed a suit for

dissolution of partnership and rendition of accounts being Suit No.

737/1984. Ram Charan had also filed a suit for partition and rendition

of account being Suit No. 1867/1984. Ram Gopal had filed a suit for

recovery of Rs.17 lacs against Shanti Devi wife of Ganeshi Lal. Prem

Lata, Ram Kishan, Sangeeta and Kumud, the first being the wife and

the others being the children of Ram Gopal had initiated arbitration

proceedings. Interim awards were passed in their favour. Applications

for making the said awards, the rule of the court were pending in the

High Court in Suit Nos. 1983-A/1995 to 1986-A/1995.

3. During the pendency of the said suits, by the intervention of the

Court, parties agreed to compromise. The terms of the compromise

were recorded in the order dated 23rd October, 2007. The said order is

relevant but we will be reproducing and examining the said order

subsequently. At this stage, we note that it was decided that the

immovable properties were to be divided equally between Ram Gopal

and Ram Charan. It was decided that the two brothers shall bid for

immovable properties in three separate lots, i.e., properties at Mumbai,

Delhi and Hathras. The higher bidder will take the property by paying

50% of the bid amount to the other side within three months. In case

of failure to pay the bid amount, the other side would be entitled to the

properties in the lot on payment of 50% of the lower bidder's bid.

4. Pursuant to the said order, bids were given by Ram Gopal and

Ram Charan Aggarwal. The order dated 14th February, 2008 records

and gives details of the said bids, which are as under:-

"

Lots                     Ram            Gopal Ram           Charan
                         Aggarwal's bid (Rs)  Aggarwal's bid (Rs)
Delhi                    4 crores             7.10 crores

Mumbai                   3 crores                 3.25 crores

Hathras                  1 crore                  1.5 crores

                                                                     "

5. Ram Charan Aggarwal was, therefore, the highest bidder in

respect of each of the three lots at Delhi, Mumbai and Hathras and his

bids were accepted. Before passing the said order, the learned single

Judge took care to record the statements of the Ram Bhakt Aggarwal,

attorney and son of Ram Charan as well as statement of Ram Gopal

and his wife Prem Lata.

6. The total bid amount payable by Ram Charan was Rs.11.85

crores. 50% of the said amount came to Rs.5.925 crores. This

payment was to be made within three months. Ram Charan made

payment of the bid amount for Delhi and Mumbai lots but did not

make payment for the immovable properties included in Hathras lot.

In respect of Hathras properties, bid given by Ram Gopal became

operative and binding by default.

7. We are not concerned with the properties at Hathras or Mumbai

lots in the present appeal and are only concerned with one of the

properties at Delhi, namely, 1375, Lheswan Katra, Chandni Chowk,

Delhi (the property, for short).

8. The partnership firm Lalji Mal Tika Ram had tenancy rights in

the property. In the two civil suits filed for partition and rendition of

accounts being suit Nos. 737/1984, Ram Gopal versus Ram Charan

and Another and Suit No. 1867/1984, Ram Charan versus Ram

Gopal and others, the property was shown as one of the partnership

properties but the partnership firm had the interest in the property not

as the owner but as the tenant. Neither the partnership firm nor any of

two brothers in the two cross suits had claimed that the partnership

firm or otherwise the two brothers were joint owners.

9. By a sale deed dated 25th May, 1998, Prem Lata and Ram

Kishan, wife and son of Ram Gopal purchased the property from the

erstwhile owner Shree Mahalakshmi Investment and Property

Company Limited. The sale deed is duly registered and the

consideration mentioned therein is Rs.4,50,000/-. It is also stated that

ground floor of the property is in occupation of Lalji Mal Tika Ram on

a monthly rent of Rs.372/- and they had been accordingly advised to

attorn to the new owners. Symbolic and proprietory possession was

handed over/delivered to the new owners.

10. In 1999 Ram Charan had filed a civil suit for prohibitory

injunction against Ram Gopal, Prem Lata and Ram Kishan praying,

inter alia, that the said persons should be restrained from making

additions/alterations or structural changes to the ground floor. The

plea taken was that the tenancy rights in the property on the ground

floor belong to Lalji Mal Tika Ram and even if Prem Lata and Ram

Kishan had become owners, they had no right to make

additions/alterations in connivance with Ram Gopal, partner of Lalji

Mal Tika Ram.

11. Thus, the parties were aware and knew the fact that wife and one

son of Ram Gopal, namely, Prem Lata and Ram Kishan had acquired

ownership of the property while the tenancy was in the name of the

partnership firm.

12. The question and issue raised is whether as per the compromise

terms between the parties and the compromise decree passed the

ownership rights in the property stand transferred to the highest bidder,

i.e., the respondent herein. The learned single Judge has accepted the

contention of the respondent and has directed the appellants, namely,

Ram Gopal, Prem Lata and Ram Kishan to execute a conveyance deed

in favour of the respondent.

13. In order to decide the said issue, we will have to examine and

interpret the compromise order, statements made by the parties and the

decree. For the sake of completeness, we are reproducing the relevant

orders:

"23.10.2007 Present: Plaintiff-in-person.

Mr. Aly Mirza for the Defendant. CS(OS) 737/1984, 1723/1984, 1724/1984, 1983A/1995, 1984A/1995, 1985A/1995, 1986A/1995, 1867/1984 & OMP 177/1998

The parties have agreed that the immovable properties have to be divided half and half between Ram Gopal and Ram charan. The immovable properties are at Mumbai, Delhi and Hathras, U.P. It has been decided that the parties shall bid for the immovable properties in three separate lots. The lots being the properties at Mumbai, the properties at Delhi and the properties at Hathras. The party having the highest bid shall take the properties and pay the other party 50% of the bid amount. The

payments shall be made within three months. In case the party making the highest bid is unable to pay the entire sum in respect of any lot within the said period of three months, then the other party would be entitled to the properties in question on payment of 50% of that party's (the lower bidder's) bid. This amount shall also be paid within three months.

As regards the amounts awarded under four interim Awards made by Justice N.N. Goswami (Retd.) in 1995, Sh. Ram Charan shall despoit a sum of Rs.1.75 crores in this Court and shall await further orders from this Court with regard to its payment to the parties. In addition, a further sum of Rs.17 lacs shall also be deposited by Mr. Ram Charan in this Court to await further orders. This amount of Rs.17 lacs is in respect of Mr. Ram Gopal's claim against late Smt. Shanti Devi for Rs.99,704.97 along with 15% compound interest from 14.10.1985. Insofar as the tenancy rights in respect of 1375, Lhtswa Katra, Chandni Chowk, Delhi-6 are concerned, they are also the subject matter of the bid in respect of the Delhi properties. It is stated by the parties that the ownership of the said property belongs to the wife of Ram Gopal and his son. It is made clear that whoever succeeds to this property consequent to the bid would not be hindered in the enjoyment of the same.

The bids would be submitted by the parties in a sealed cover by the parties on or before 26.11.2007. Three separate bids would be made for the Mumbai properties, Delhi properties and Hathras properties by each party.

Dasti to both the parties.

14.02.2008

Present: Mr. Dheeraj Malhotra with Mr. Mritunjay Kumar Singh for the Plaintiff.

Mr Aly Mirza for the Defendant.

+ CS(OS) 737/1984, 1723/1984, 1724/1984, 1983A/1995, 1984A/1995, 1985A/1995, 1986A/1995, 1867/1984 & OMP 177/1998

The statement of Shri Ram Bhakt Aggarwal who is the attorney of Shri Ram Charan as well as the Statements of Shir Ram Gopal Aggarwal and his wife Smt. Prem Lata have also been recorded. As per the agreement between the parties and the bids made pursuant to the agreement and as recorded in the order dated 23.10.2007, the sealed bids were opened in court. The bid made by Mr. Ram Charan has been marked as Exhibit C-2 and it has been signed by his son Mr. Ram Bhakt Aggarwal as his constituted attorney. The bid furnished by Mr. Ram Gopal has been marked as Exhibit C-3 and the same is signed by him. On considering the bids, the following picture emerges:

               Lots    Ram            Gopal Ram Charan
                       Aggarwal's bid (Rs)  Aggarwal's
                                            bid (Rs)
               Delhi   4 crores             7.10 crores
               Mumbai 3 crores              3.25 crores
               Hathras 1 crore              1.5 crores

The aforesaid table clearly indicates that Shri Ram Charan is the highest bidder in respect of each of the three lots i.e. Delhi, Mumbai and Hathras. Therefore, his bids are accepted. As pr the agreement between the parties, as indicated in their statements and the order dated 23.10.2007, the highest bidder would be required to make payment of 50% of the bid amount. The total of the bid amounts comes to Rs.11.85 crores. Consequently, 50% of this amount comes to Rs.5.925 cores in respect of all the three lots. Additionally, he shall make a payment of Rs.90 lacs as per the statements recorded in court today as well as a sum of Rs.17 lacs totaling Rs.6.995 crores. The said sum of Rs.6.995 crores shall be paid within three months

in terms of the order dated 23.10.2007 and as per the agreement between the parties.

Simultaneously, upon making the payments, the possession of the properties comprised in the said lots will either be retained by Mr. Ram Charan or where he is not in possession would be handed over by Mr. Ram Gopal and/or his family members.

It has also been agreed between the parties, as indicated in the order dated 23.10.2007, that, in case, the party making the highest bid is unable to pay the entire sum in respect of any lot within the said period of three months, then the other party would be entitled to the properties in the lot in question on payment of 50% of that party's (the lower bidder's bid. This amount shall also be paid within three months. In this eventuality, the stamp duty would be payable on the lower bid and not on the higher bid as per law.

The parties have arrived at a settlement of all their disputes. Essentially, the disputes were between the two brothers. Mr. Ram Gopal and Mr. Ram Charan. Their family members have also filed suits against each other. The parties have settled all the disputes not only between the said two brothers but also between the family members of the said two brothers. Even the disputes pertaining to the said two branches in respect of their individual HUFs stand settled. The present batch comprises of ten matters. However, it is clearly understood and agreed between the parties that the other matters not included in the present batch also stand settled. The matter pending before the Supreme Court has also been agreed to be withdrawn by Mr. Ram Gopal Aggarwal on a joint statement being made by mr. Ram Gopal Aggarwal and by Mr. Ram Bhakt Aggarwal before the Supreme Court. The parties agree that the matters pending before other courts also stand settled and shall be withdrawn by the respective

plaintiffs/appellants /petitioner. It has also been agreed by and between the parties that they shall cooperate with each other in effectuating the settlement and they shall execute all documents which are necessary. All the suits mentioned in this batch stand decreed accordingly. The OMP stands disposed of. The formal decree be drawn up. The statements and the Exhibits C-1, C-2 and C-3 shall form part of the decree.

The cheque of Rs.17 lacs mentioned in the order dated 13.02.2008 shall be retained in the file. Mr. Ram Bhakt states that he shall replace the said cheque by a cheque issued by him within a week. On the said cheque being submitted by Mr. Ram Bhakt Aggarwal, this cheque which has been issued by the learned counsel for Mr. Ram Bhakt, shall be returned to the learned counsel.

All the suits, the OMP and pending applications stand disposed of.

Dasti under signatures of the Court Master.

14.02.2008

CS(OS) 737/1984, 1723/1984, 1724/1984, 1983A/1995, 1984A/1995, 1985A/1995, 1986A/1995, 1867/1984 & OMP 177/1998

Statement of MR. Ram Bhakt Aggarwal S/o Shri Ram Charan, Age 35 years, R/o Flat No. 19, Neelam, 80, Marine Drive, Bombay-400002

On oath.

My father Mr. Ram Charan Aggarwal has authorized me to represent him in these proceedings. I have brought the special power of attorney with me which is notarized at Mumbai. (The special power of attorney has been handed over to the court. The same is marked as Exhibit C-1). The figure of Rs.1.75 crores, mentioned in

the order of this court on 23.10.2007, has now become Rs.1.80 crores due to accrual of interest between that date and today. I have instructions to state on behalf of my father that my father's liabilities would be to the extent of 50% of the said sum of Rs.1.80 crores which would amount to Rs.90 lacs. This is due to the fact that my father has a 50% share in the partnership firm and this is the liability of the firm. It has also been agreed between me (representing my father) and my uncle Mr. Ram Gopal Aggarwal that we shall have a half share in the firm's assets (M/s Lalji Mal Tika Ram). In order to bring about a settlement between the parties, it has been agreed between me (on behalf of my father) and my uncle Mr. Ram Gopal that despite the Will dated 05.10.1981 of Shri Ganeshi Lal bequeathing his share in the properties to my father, the said properties shall be shared between my father and Shri Ram Gopal equally i.e., 50% each.

We have agreed that the immovable properties shall be divided half and half between my father (Shri Ram Charan Aggarwal) and my uncle Shri Ram Gopal Aggarwal individually as well as in their capacity as kartas of their respective HUFs. We shall abide by the terms of the bidding which have been set out in the order dated 23.10.2007. It has also been agreed that the sum of Rs.17 lacs which has been mentioned in the order dated 23.10.2007 shall be paid by my father and the same shall be adjusted in or added to in the amounts that may be payable to him or by him, as the case may be, after the bidding. It has also been agreed between us that the vacant, peaceful and unencumbered possession of the properties consequent upon the bidding being finalized would be handed over immediately upon the receipt of the payments. This settlement which has been arrived at between us shall entirely take care of all the claims and disputes in all the matters that are pending before this court or any other court and no

further claim shall be raised in all these matters. I have the authority to make this statement on behalf of my family members and the statement that is being made by me is binding on all of us including the LRs.

14.02.2008

CS(OS) 737/1984, 1723/1984, 1724/1984, 1983A/1995, 1984A/1995, 1985A/1995, 1986A/1995, 1867/1984 & OMP 177/1998

Statement of Mr. Ram Gopal S/o Shri Ganeshi Lal, R/o 1287, Kashmeri Gate, Delhi.

On oath.

I have had discussions with my nephew Mr. Ram Bhakt Aggarwal who has been authorized by my brother Mr. Ram Charan Aggarwal to have discussions on his behalf with me. We have arrived at a settlement as has been recorded in the order dated 23.10.2007. However, with regard to the amount of Rs.1.75 crores mentioned in that order, the figure has now become Rs.1.80 crores due to accrual of interest. Insofar as that sum of money is concerned, it has been agreed between me and my brother that since the same has to come out of the partnership firm, my brother shall bear the liability to the extent of Rs.90 lacs i.e., 50% of the said amount. The said amount shall be adjusted or become payable as pr the finalization of the bids. It has also been agreed between us that the sum of Rs.17 lacs which has been mentioned in the order dated 23.10.2007 shall be the liability of my brother towards me. I shall abide by the terms of the bid that have been set out in the order dated 23.10.2007 and I also undertake that vacant, peaceful and unencumbered possession of the properties shall be handed over/taken over simultaneously with the payment/receipt of the sums of money as per the bids. I have the

authority to make this statement on behalf of my family members and the statement that is being made by me is also binding on them. We have fully and finally settled all our disputes between me and my brother as well as between my family and his family and it has also been agreed by my brother Mr. Ram Charan that despite the Will dated 05.10.1981 of late Shri Lala GAneshi Lal, his properties, including his share in the partnership (M/s Lalji Mal Tika Ram) shall be distributed between the two brothers equally i.e., 50% each. In view of this settlement that has been arrived at between the parties, I undertake to withdraw the Special Leave Petition which has been filed before the Supreme Court and it has been agreed that both me and my nephew shall make a joint statement before the Supreme Court on the next date of hearing. No further claim shall be made by me or my family members including my LRs against my brother Shri Ram Charan and/or his family members in respect of the said partnership firm as also the properties which form the subject matter of the disputes in these matters.

14.02.2008

CS(OS) 737/1984, 1723/1984, 1724/1984, 1983A/1995, 1984A/1995, 1985A/1995, 1986A/1995, 1867/1984 & OMP 177/1998

Statement of Smt. Prem Lata w/o Mr. Ram Gopal, R/o 1287, Kashmeri Gate, Delhi.

On oath.

I have authorized my husband to make the statement on my behalf."

(emphasis supplied)

14. Pursuant to the said compromise in Suit No. 737/1984 and other

suits, decree sheet was prepared and the relevant portion thereof

records as under:-

"These suits coming on this day for final disposal before this Court in the presence of counsel for the parties as aforesaid, upon the parties having arrived at an agreement vide order dated 23/10/2007 and upon the Court having accepted the bid made by Sh. Ram Charan in respect of properties situated at Delhi and Mumbai, marked as Ex. C-2 and the bid made by Sh. Ram Gopal in respect of Hathras properties marked as Ex. C- 3, pursuant to the agreement, it is ordered that a decree of partition be and the same is hereby passed declaring that:

Sh. Ram Charan shall be exclusively entitled to:

I Suit properties in Delhi Lot :

1. Ownership of House NO. 1287, Sultansingh Estate, Kashmere Gate, Delhi 110 006.

2. Tenancy rights of 1375, Katra Lewswan, Chandni Chowk, Delhi 110006.

3. Tenancy rights of 1304, Katra Dhulia, Chandni Chowk, Delhi 110006.

II Suit properties in Mumbai Lot:

1. Ownership of flat 19, Neelam, 80 Marine Drive, Mumbai 400002.

2. Tenancy rights of 96, Mangaldas Market, Mumbai 400002

3. Tenancy rights of 329, Swadesh Market, Mumbai 400002.

4. Tenancy rights of Godown No. 2, 3368, Kalbadevi Road, Mumbai 400002.

5. Tenancy rights of Godown No. 3, Kalbadevi Road, Mumbai 400002.

and Mr. Ramgopal shall be exclusively entitled to:

III Suit properties in Hathras Lot:

1. Plot 202 Sadabad Ward, Gali Dibba, Hathras.

2. House at 203, Sadabad Ward, Gali Dibba Hathras.

It is further ordered that upon making the payments by Sh. Ram Charan to Sh. Ram Gopal the possession of the properties comprised in the said lots will either be retained by Mr. Ram Charan or where he is not in possession shall be handed over by Mr. Ram Gopal and/or his family members to Sh. Ram Charan.

It is further ordered that the parties shall co-operate with each other effectuating the settlement and shall execute the necessary documents.

It is further ordered that statements and Ex. C-1 (Special Power of Attorney), C-2 and C- 3 shall form parts of the decree."

15. The contention of the appellant is that the decree sheet clearly

states that Ram Gopal shall have exclusive tenancy right in the

property and this was the intent of the court orders dated 23 rd October,

2007, 14th February, 2008 and the statement of the parties. The

language and words of the court orders accord and affirm the said

contention.

16. The submission of the respondent is that the order dated 23 rd

October, 2007, records that the ownership of the property belongs to

wife of Ram Gopal and whoever succeeds consequent to the bid would

not be hindered of the enjoyment of the same. It is stated that the

statement made by Ram Gopal refers to the properties which forms

subject matter of the dispute in the matters and therefore, for all intents

and purposes, the ownership right was to be transferred to the highest

bidder.

17. We have considered the submissions made by the parties and

accept the plea raised by the appellants. There are several reasons and

grounds for the same. These are recorded below.

18. Ownership of the property was not a subject matter of dispute in

any of the proceedings or the suits which were pending before the

Court. In these circumstances, in case the ownership of the property

was to be transferred to Ram Charan if he was to be the highest bidder,

a specific noting to this effect was required and necessary. There is no

specific noting in the order dated 23rd October, 2007. The two

brothers were to give bids to acquire the same right, i.e., the tenancy

right. It is not recorded or stated that the bid given by Ram Gopal

would be for the tenancy right, while the bid offered by Ram Charan

would be both for the tenancy and ownership rights, which would be

transferred by Prem Lata and Ram Kishan, wife and son of Ram

Gopal.

19. The relevant portion of the order dated 23 rd October, 2007,

which has been underlined for the purposes of emphasis, states,

clarifies and supports the said position. It states that wife of Ram

Gopal and his son are owners of the property. It records that the

tenancy rights of the property shall be the subject matter of the bid in

respect of Delhi properties. In case the ownership rights of the

property were also to be made subject matter of the bid, it would have

been so indicated and stated. The last sentence does not cause any

confusion and is not ambiguous as suggested by the respondent. It

records and states that whoever succeeds and gives the highest bid

would have unhindered enjoyment of the said. "Enjoyment of the

same" only means right to enjoy the tenancy rights. In other words, in

case Ram Gopal gives the higher bid, he would become the exclusive

tenant and enjoy the tenancy rights and in case Ram Charan gives the

higher bid and succeeds, he shall have unhindered right to enjoy the

tenancy rights. The order also reveals that the parties were conscious

about the difference between the ownership and tenancy right. What

was made subject matter of the bidding process was the tenancy rights

in the property.

20. Learned counsel for the respondent has submitted that there was

substantial difference between the bid of Rs.4 cores and Rs.7.10 crores

given by Ram Gopal and Ram Charan, respectively and, therefore, it

should be accepted that Ram Charan has given a bid for the ownership

rights as well as for tenancy rights. The argument cannot be accepted

and is fallacious. Both the parties had and were required to give their

bid and quote a figure. The bid as noted above was to acquire the same

right and interest in the property. The difference in the bid amounts

depends and reflects commercial wisdom and understanding. It was a

matter of choice. No inference can be drawn from the bid amounts that

the respondent had understood and offered bid for the ownership rights

also. In respect of Hathras property, the bid of Ram Charan was Rs.1.5

crores and bid given by Ram Gopal was only Rs.1 crore. The

difference was again substantial. Therefore, the difference in the bid

amount for the Delhi properties does not show that Ram Charan has

given bid for the ownership rights. Further, the bid paper of Ram

Charan does not record the said factum. In the bid which was given

by the Ram Charan, he had given a break-up of the bid amount of

Rs.11.85 crores and had attributed Rs. 7.10 crores towards the Delhi

properties. He did not mention that it includes the value of ownership

rights.

21. We do not accept the contention of the respondent that the

respondent had understood that the bid amount included the ownership

right and required transfer of the ownership right. We have quoted the

decree sheet which was prepared subsequently after the passing of the

order dated 14th February, 2008. The decree sheet specifically records

that Ram Charan shall be exclusively entitled to tenancy right of the

property. In respect of the Kashmere Gate property ownership right

was transferred. Similarly ownership rights of flat at Marine Drive,

Mumbai was to be transferred to Ram Charan and tenancy rights of

some other properties at Mumbai were to be exclusively enjoyed by

Ram Charan. In the decree sheet itself, difference is drawn between

the ownership rights and the tenancy rights. This decree-sheet was

prepared and Ram Charan had submitted stamp papers. Ram Charan

had got the decree-sheet registered. In case there was a defect or

mistake in the decree-sheet and the ownership rights were to be

transferred and conveyed to Ram Charan, he would have moved an

application or asked for modification or clarification. Order sheets

reveal, and it is the accepted position that this has not happened and no

such steps were taken. In view of dispute inter se parties,

implementation of the order dated 14th February, 2008 was done

through court proceedings and monitored by the Court. On 28 th May,

2008, the respondent paid bank drafts towards properties in Delhi and

Mumbai lots and gave up the bid/right in respect of Hathras property.

Mr. P. Nagesh, Advocate was appointed as the Court Commissioner.

He was asked to lock the property in question and bring the keys of the

property in Court. It was also directed that the possession was to be

handed over to Ram Bhakt appearing on behalf of Ram Charan.

Simultaneously payments will be made in respect of Bombay and

Delhi lots. Parties thereafter appeared before the Court on 14 th

August, 2008 and an order was passed making some adjustment in

view of the fact that the Hathras properties had to go to Ram Gopal and

he had to make payment to Ram Charan for the same. Ram Bhakt,

son of Ram Charan, had filed IA No. 4476/2008 asking for

clarification of the order dated 14th February, 2008. This application

was filed on the ground that some of the properties were tenanted and,

in view of the bid given by Ram Charan, they were exclusively entitled

to the said tenancy rights. It was averred in the application that the

order dated 14th February, 2008 did not mention identifying details of

the properties of the firm and details of the properties of Ram Gopal

Aggarwal HUF etc. In this application, the properties in Mumbai lot

and Delhi lot were specifically stated. In respect of the Delhi lot and

the property in question, it was stated as under:-

"B) Delhi Lot

i) Shop at 1375, Katra Lheswan, Delhi 110 006.

Direction to : Smt. Premlata Ramgopal and Ramkrishna Ramgopal regarding tenancy and rent receipt."

22. Thus contrary to what is urged before us, the respondent in

April, 2008 had stated and accepted that the bid given by the parties as

recorded in the order dated 14th February, 2008, was for the tenancy

rights.

23. Learned counsel for the respondent submitted that till that date

payment had not been made by Ram Charan and the aforesaid

statement made in the application is not an admission and should be

ignored. The contention is fallacious and wrong. The stand taken by

the respondent is clearly an afterthought, if not dishonest. The bid

given by the respondent was accepted by the court on 14th February,

2008. The question is whether the respondent had given bid for the

tenancy right or for tenancy right plus the ownership rights of the wife

and son of Ram Gopal. It is clear, from what was stated by the

respondent in the application, that the respondent had given bid only

for tenancy rights and not for the ownership rights that belonged to

Prem Lata and Ram Krishna.

24. There is evidence that even after the 28th May, 2008, the

respondent did not claim ownership right in the property. We would

like to reproduce letter dated 9th February, 2008, written by Ram Bhakt

Aggarwal and Ram Charan to Prem Lata Aggarwal. The said letter

read as under:-

"Madam,

I attempted to contact you at the address A-2, Bhamashah Marg, Opp. Guru Harkishan Public School, Delhi - 110 033; to offer you rent for the premises at 1375, Katra Lheswan, Chandni Chowk, Delhi - 110 006. However, I was not able to locate your address. Kindly let me know the place, time and mode of payment desired by you to enable me to tender the rent.

Kindly communicate the required information at my address mentioned above.

Yours truly, Sd/-

(Ram Charan Agrawal) Sd/-

(Rambhakt Agrawal)"

25. The respondent accepts and admits that the said letter was written

but claims and submits that this letter states that the amounts due

towards rent should be settled as rent had not been paid for a long time.

The contention is again false and incorrect. The letter states that the

respondent wanted to tender and pay rent for the property to Prem

Lata. It states that they had offered to pay rent but they had not been

able to locate the address of Prem Lata. Respondent could not have in

more clear and categorical words accepted the position that the

appellant Prem Lata was the owner of the property and that they

enjoyed tenancy rights.

26. Learned counsel for the respondent submitted that reading of the

order dated 14th February, 2008 and the statement of parties recorded

on the same date show that the parties were entitled to possession and

enjoy properties without any obstruction. It was highlighted by the

respondent that the statement made by Ram Gopal was on behalf of his

wife Prem Lata and even the arbitration proceedings to which Prem

Lata and Ram Kishan were parties were to be settled. The contentions

do not have any merit. The order and the statements of the parties

show what was to be transferred and handed over was the possession

of the properties. The tenancy rights of the property were earlier in

favour of partnership firm of which both Ram Gopal and Ram Charan

were partners. In view of the aforesaid orders and payment made,

Ram Charan became the sole tenant and entitled to tenancy rights in

the property to the exclusion of Ram Gopal. It was to this extent and

reason that the possession was to be transferred. In none of the orders,

it is recorded that "ownership" of the property was to be transferred.

In terms of the interim arbitration awards, payments were to be made

to Prem Lata, Ram Kishan, Surjeet and Kumud, wife and children of

Ram Gopal. The total amount due and payable to the said persons

under the interim awards as recorded in the order dated 14th February,

2008 and the statement of Ram Bhakt of the same date, was Rs.1.80

crores. It was stated that this amount was payable by the partnership

firm and accordingly Ram Charan's 50% liability was Rs.90 lakhs. In

addition, another sum of Rs.17 lakhs was to be paid. The said sums

were added to the bid amount. The order and the statements also refer

to the properties which were joint properties or HUF properties. This

was necessary and required to be stated as what was subject matter of

the suit were not only partnership properties but were also joint

properties which were owned by Ram Gopal and Ram Charan. There

was no dispute and it is not reflected in any of the orders quoted above

or subsequent orders wherein directions were given for

implementation, that the ownership rights of the property were in

question. There is no averment or statement that the respondent and

the appellants were joint owners. On the other hand, there are ample

evidence and in fact repeated admissions by the respondent that the

ownership right in the property was not treated as joint. Prem Lata and

Ram Kishan had purchased the property way back vide conveyance

deed dated 28th May, 1998. In the suits for partition and rendition of

accounts which were filed in the year 1984, the reference was made to

the tenancy right in the property. The ownership of the property was

not subject matter of the compromise.

27. The problem in the present case has arisen because of the

decision of the Supreme Court dated 16th April, 2008 in Satywati

Sharma vs. Union of India (2008) 5 SCC 287. As per the said

decision protected commercial tenants can be evicted on the ground of

bonafide requirement of the owner-landlord. This brought about a

substantial change and effectively reduced the market value of the

tenancy rights. The said decision of the Supreme Court was rendered

on 16th April, 2008 which is after 14th February, 2008. The question

raised is whether the appellant should be allowed and can be allowed

to take benefit of the said decision or the respondent can and should be

made owner of the property as at the time when the bid was given, the

respondent had not visualized or imagined that the landlord-owner

would be able to evict a protected commercial tenant. Learned

counsel for the respondent has pleaded equity and submitted that

the disputes being a family matter, a holistic and broader view is

required to be taken and in this regard has relied upon

decisions of the Supreme Court in Bhavan Vaja and Ors. v. Solanki

Hanuji Khodaji Mansang and Anr. 1973 (2) SCC 40, Parayya

Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari 2007 (14)

SCC 318, Manish Mohan Sharma v. Ram Bahadur Thakur Ltd.

2006 (4) SCC 416. Learned counsel for the appellant on the other

hand has relied upon Deepa Bhargava v. Mahesh Bhargava (2009) 2

SCC 294, Topanmal Chhotamal v. Kundomal Gangaram AIR 1960

SC 388, State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd.

(2006) 6 SCC 293, Godhra Electricity Co. Ltd. v. State of Gujarat

(1975) 1 SCC 199.

28. In Bhavan Vaja (supra), the Supreme Court held that the

executing court cannot go behind the decree, but it is the duty of the

executing court to find out the true effect of the decree and in

appropriate cases it ought to take into consideration the pleadings as

well as the proceedings leading to the decree. This is precisely what

we have done. We have construed the decree as well as the

proceeding, i.e., orders, statement of parties, etc. In Parayya Allayya

Hittalamani (supra), same observations have been made. It has been

also held that where "a document is ambiguous" the same can be

construed having regard to surrounding and attending circumstances.

The said decision does not help or assist the respondent. The decree in

the present case is not vague. We to satisfy ourselves, have examined the

surrounding and attending circumstances. In Manish Mohan Sharma

(supra), the Supreme Court emphasized that family settlements are

governed by special equity and are to be enforced if honestly made,

though sometimes the terms agreed may have their origin in a mistake

or founded on ignorance of fact as to what the rights of parties actually

are. The said observations have been made with the object that family

settlements are to protect the family from long drawn litigation and

they bring harmony and good will in the family. The courts, therefore,

lean in favour of family settlements and accept the same even if the

similar defects or faults may not be accepted, if the transaction was

between strangers. The said decision does not support the respondent

but supports the plea and contention raised by the appellants. The

compromise decree has to be executed and implemented even if it is

alleged and contended that the respondent did not fully appreciate the

consequence and implication of acquiring tenancy rights and had not

visualized that the Supreme Court by a judicial decision would permit

and enable an owner-landlord to sue for eviction in commercial

tenancies on the ground of bona fide requirement.

29. We have considered the said contentions raised by the

respondent but they are without merit. The respondent was aware that

it was giving a bid for the tenancy right and not the ownership rights.

The judgment of the Supreme Court in Satyawati Sharma (supra) was

decided prior to 28th May, 2008 which is when the money was paid by

the respondent. The decision of the Supreme Court does not justify

and cannot become the reason or ground for the executing court to

modify and amend the compromise or the compromise decree. The

parties are bound by the terms of the settlement and cannot wriggle out

of the same. The compromise decree shows that the parties had given

bid for the tenancy rights in properties in Delhi & Mumbai. When the

bids were given, they also took the inherent risks involved when a

person takes or requires tenancy rights, which are protected in law. In

the present case the family members of Ram Gopal namely his wife

and son happened to be the owners of the property of which tenancy

rights have been acquired by Ram Charan. However, any other person

or third person could have also been landlord or owner of the property.

Similar right to seek eviction would have accrued to the benefit of the

said owner/landlord. The respondent could not have asked for

modification and amendment of the decree for this reason or ground.

We record that the respondent has not asked for amendment or

modification of the decree but had filed an execution petition stating

that the decree itself postulates execution of the conveyance deed by

Prem Lata and Ram Kishan. The decree, as discussed above, does not

stipulate or say so and is to the contrary. It is well settled that the

executing court can interpret the decree and accordingly implement or

execute the same. Executing court cannot modify or amend the

decree. Compromise between the parties requires consent of the

parties and no amendment or change of the terms can be made except

with the consent of the parties. Parties when they give bid took the risk

involved. It was equally possible that the value of the tenancy rights

may have gone up or increased and in that event the appellants herein

would have been the loser.

30. In view of the aforesaid position, we accept the present appeal

and set aside the impugned order dated 30 th August, 2010. The

execution petition 227/2010 is dismissed. There will be no order as to

costs.

(SANJIV KHANNA) JUDGE

(S.P. GARG) JUDGE AUGUST 3, 2012 KKB/VKRS