Delhi High Court

Krishan Kumar Nath vs Sohan Brahm Nath on 26 April, 2013

Author: Rajiv Sahai Endlaw

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 26th April, 2013

+           EX.P. 303/2010 & Ex. App. 309/2012 (of the judgment debtor)

       KRISHAN KUMAR NATH                     ..... Decree Holder
                   Through: Mr. Rajat Navet, Advocate.

                                 Versus

       SOHAN BRAHM NATH                   ..... Judgment Debtor
                    Through: Mr. Harsh Kaushik, Advocate.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                              JUDGMENT

% 26.04.2013

1. Execution is sought of a compromise decree dated 28th May, 2009 in

CS(OS) No.1567/2008 for partition of portion of property No.16/273, Joshi

Gali No.9, Joshi Road, Karol Bagh, New Delhi.

2. Notice of the execution petition was issued and objections in the form

of E.A. No.309/2012 have been filed by the Judgment Debtor (JD) in which

pleadings have been completed. The counsels were heard on 18th April,

2013, to a little extent yesterday, and have been heard further today.

3. For appreciating the controversy in objections under adjudication,

suffice it is to state:

(i) that the defendant No.1 in the suit namely Smt. Tripta Nath

supported the suit of the plaintiff (Decree Holder (DH) herein) for

partition;

(ii) that the JD who was the defendant No.2 in the suit, in his

written statement admitted the share of the plaintiff DH and the two

defendants in the property, as pleaded by the plaintiff DH;

(iii) that accordingly vide order dated 30 th September, 2008 in the

suit, a preliminary decree was passed, declaring the plaintiff DH,

defendant No.1, and the defendant No.2 JD to be entitled to 1/3 rd

share each in the said property;

(iv) that the parties were thereafter referred to mediation, which was

unsuccessful;

(v) that a Local Commissioner was appointed to suggest the mode

of partition and who submitted his report;

(vi) that however, when the suit was listed on 15th May, 2009, i.e.

after the Local Commissioner had filed his report, the counsel for the

plaintiff DH, the counsel for the defendant No.1 as well as the

counsel for the defendant No.2 JD informed that the parties had

agreed for an amicable settlement for partitioning the property by

metes and bounds and sought time for filing the compromise

application. The suit was accordingly adjourned to 22 nd May, 2009;

(vii) that on 22nd May, 2009, again time was sought by the counsels

for all the three parties for filing a joint application setting out the

terms of Settlement. The suit was accordingly adjourned to 28 th

May, 2009;

(viii) that the parties filed I.A. No.7401/2009 under Order XXIII

Rule 3 of CPC in which the terms between plaintiff DH and

defendant No.2 JD were set out as under:

"(i) Defendant No.2 has agreed to sell his 1/3 rd share in the suit property to the plaintiff at a total price of Rs.22,50,000/- (rupees twenty two lacs fifty thousands only).

(ii) The plaintiff has agreed to pay Rs.22,50,000/- to defendant No.2 towards full and final consideration for 1/3rd share of defendant No.2 in the suit property.

(iii) Defendant No.2 agrees and confirms that on receipt of Rs.22,50,000/- (rupees twenty two lacs fifty thousands only) from plaintiff, the defendant No.2 shall be left with no right, title and/or interest in the suit property, and he shall simultaneously on receipt of banker‟s cheque/draft for Rs.22,50,000/- hand over peaceful and vacant possession of part of suit property occupied by him to the plaintiff or to plaintiff‟s nominated representative.

(iv) Defendant No.2 has sought three months and fifteen days to enable him to arrange an alternative accommodation so as to vacate the portion of suit property under his occupation. Therefore, it is agreed between the parties that plaintiff would make a payment of Rs.22,50,000/- to defendant No.2 within three months and fifteen days from the date of recording compromise in the Hon‟ble Court, and simultaneously on receipt of bank draft/banker‟s cheque from plaintiff for Rs.22,50,000/-, the defendant No.2 shall hand over vacant and peaceful possession of the suit property to the plaintiff or to plaintiff‟s representative.

(v) On the receipt of Rs.22,50,000/- defendant No.2 shall execute all necessary sale documents in respect of sale of his 1/3rd share in the suit property in favour of the plaintiff or his nominee. The defendant No.2 also confirm and acknowledge that he shall duly cooperate and shall always be ready and willing to execute any further documents that may be required in future for transfer of his share in the suit property in favour of plaintiff.

(vi) Defendant No.2 undertakes and binds himself not to damage and/or cause any loss to the portion of suit property in his occupation while vacating the premise and/or while taking out his articles, luggage and belongings. Defendant No.2 further undertakes to hand over the portion of the suit property in habitable condition."

(ix) that as far as the defendant No.1 Smt. Tripta Nath was

concerned, she agreed to jointly occupying the property with the

plaintiff DH and consented to the terms between the plaintiff DH and

the defendant No.2 JD;

(x) that the aforesaid compromise was allowed and the suit, on 28th

May, 2009, was decreed in terms of the compromise application;

(xi) that the defendant No.2 JD filed Review Petition No.357/2009

seeking review of the compromise decree dated 28th May, 2009.

Since the same was not found on record, the suit file has been

requisitioned and the review application perused. It was inter alia the

case of the defendant No.2 JD in the review petition dated 1 st

September, 2009 that he signed the compromise application under

threat, coercion, undue influence and pressure of the plaintiff DH and

he was not willing to dispose of his share in the property to the

plaintiff DH for Rs.22,50,000/- and more so when the value of his

share was more than Rs.35 lakhs;

(xii) that the said review application came up before the suit Court

on 11th September, 2009 when finding no merit therein, the same was

dismissed;

(xiii) that the defendant No.2 JD filed FAO(OS) No.171/2010 against

the dismissal of his review application and which was also dismissed

vide order dated 22 nd April, 2010 and which order had attained

finality;

(xiv) that the plaintiff DH filed an application dated 10th March, 2010

being I.A No.3333/2010 in the suit pleading that the plaintiff who is

otherwise a permanent resident of United Kingdom (UK), to fulfill his

obligations under the compromise, came to India in the second week

of September, 2009 and approached the defendant No.2 JD to honour

his obligations under the compromise but the defendant No.2 JD

informed that he would wait for the decision on his review application

and the defendant No.2 JD inspite of dismissal of the review

application had not fulfilled his part of the compromise and seeking a

direction to the defendant No.2 JD to execute sale documents against

receipt of Rs.22,50,000/- from the plaintiff DH;

(xv) Notice of the said application being I.A No.3333/2010 was

issued to the defendant No.2 JD on 16th March, 2010 for 3rd May,

2010;

(xvi) that on 3rd May, 2010, the application was adjourned to 19th

July, 2010 on joint request of the parties;

(xvii) that on 19th July, 2010, the defendant No.2 JD was directed to

comply with the terms of the compromise within ten days.

(xviii) that on 17th August, 2010, the defendant No.2 JD stated that he

was intending to file a Special Leave Petition in the Supreme Court;

vide order of the said date, the defendant No.2 JD was again directed

to perform his part of the compromise within fifteen days;

(xix) that the defendant No.2 JD filed I.A. No.12977/2010 seeking

modification of the compromise in the form of alternative settlement

as proposed by him. This application was dismissed on 24 th

September, 2010 and as far as the application being I.A.

No.3333/2010 filed by the plaintiff DH was concerned, the same was

also disposed of vide order dated 17th August, 2010 granting liberty to

the plaintiff DH to execute the decree;

(xx) that thereafter this execution petition was filed.

4. The defendant No.2 JD in his objections has pleaded:

(a) that the DH has failed to make and tender payment of

Rs.22,50,000/- to the JD by means of bank draft or banker‟s cheque

on or before 10th September, 2009 i.e. when the period of three

months and fifteen days expired, as stipulated in the compromise

decree dated 28th May, 2009;

(b) that time bound payment on or before 10 th September, 2009 by

the DH was a condition precedent for the JD to perform his

obligations under the compromise decree;

(c) that thus the JD stands excused and discharged from performing

his obligations under the compromise decree and the compromise

decree now stands vitiated and cannot be executed;

(d) that the payment sought to be made by the DH through the

execution petition amounts to alteration of the compromise decree

which is not permissible in law;

(e) that the execution petition has not been instituted by a duly

authorized person.

5. In the aforesaid state of affairs, being prima facie of the opinion that

the objections by the JD are in abuse of the process of the Court, the counsel

for the JD was at the beginning of the hearing cautioned that in the event of

the objections being dismissed, this Court would also consider whether the

JD, in addition to being liable under the compromise decree to be

dispossessed from the portion of the property in his possession and to

compulsorily convey his 1/3 rd share therein to the DH, would also not forfeit

his right to recover Rs.22,50,000/- from the DH. The counsel for the JD was

asked to inform the JD present in Court of the said fact. The counsel, in the

presence of the Court, informed the JD of the said risk and the JD gave his

consent to pursue the objections subject to the said risk.

6. The counsel for the JD has argued that the DH did not tender the sum

of Rs.22,50,000/- within the period of "three months and fifteen days" of the

recording of the compromise on 26 th May, 2009 and which period expired on

10th September, 2009. Referring to Section 67 of the Indian Contract Act,

1872, it is further argued, that upon the DH neglecting to perform his part of

tendering Rs.22,50,000/- by bank draft / banker‟s cheque on or before 10 th

September, 2009 and which admittedly was not got prepared, has refused to

afford to the JD reasonable facility for the performance by the JD of his part

of the compromise which is but a contract and the JD is thus excused by

such neglect of DH of the consequence of non-performance on his part; that

the execution petition also has been filed on 7 th September, 2010 i.e. after

nearly one year of the date of 10 th September, 2009 for performance; that

under the compromise, the JD was to receive the payment of Rs.22,50,000/-

and utilize the same for making alternate arrangement for shifting out from

the suit property and because the DH did not make the said payment, the JD

could not make alternative arrangement; it is not the contention of the JD

that the suit should be dismissed but it is the contention that upon such

failure of the DH, the parties stand reverted to the stage of preliminary

decree.

7. The counsel for the JD has relied on/referred to the following

judgments:

(i) Pioneer Engineering Co. Vs. D.H. Machine Tools AIR 1986

Delhi 165 (1);

(ii) Creative Travels Pvt. Ltd. Vs. Joginder Singh Palta 52 (1993)

DLT 371 (DB);

(iii) Novartis AG Vs. Wander Pvt. Ltd. AIR 2005 Delhi 154;

       (iv)    Hukumchand Vs. Bansilal AIR 1968 SC 86;

       (v)     K.C. Reddy Vs. Batcha Vasudeva Naidu 1999 AIHC 4540;

       (vi)    J&K Bank Ltd. Vs. Jagdish C. Gupta (2004) 10 SCC 568;

(vii) State of Punjab Vs. Krishan Dayal Sharma (2011) 11 SCC

212; and,

(viii) Judgment dated 19th January, 1961 of the Madras High Court in

C.R.P. No.1868/1959 titled Bethanna Nadar Vs. M. Srinivasan.

all to the effect that the time agreed by the parties in a compromise

cannot be extended by the Court under Section 148 of CPC and has

contended that howsoever deplorable the conduct of the JD may be, the

plaintiff DH having not got a bank draft/banker‟s cheque prepared before

10th September, 2009, is not entitled to execute the compromise decree.

8. It is also argued that though the Power of Attorney filed along with

the execution petition is in favour of one Mr. Rahul Sikri but the affidavit

accompanying the execution petition is of one Mr. Arjun Sikri.

9. It is yet further contended that though the DH relies on a letter dated

14th September, 2009 tendering the payment to the JD but neither is there

any proof of dispatch or delivery of the said letter on the JD and in any case

the said letter is also of after the time of three months and fifteen days

agreed under the compromise and which expired on 10th September, 2009.

It is further contended that even on that date, the bank draft / banker‟s

cheque was not ready. It is also argued that in fact there was no money also

with the plaintiff DH till the pay order was got prepared on 4 th March, 2010.

10. Per contra, the counsel for the DH has contended that the liability

under the compromise decree of the DH to make the payment was

simultaneous with the delivery by the JD of possession of the portion of the

property in his occupation and to execute the sale documents in favour of the

DH; that however the JD within the time stipulated of three months and

fifteen days sought review of the compromise decree and thereafter pursued

an appeal against the dismissal of the review application and from such

conduct of the JD, the unwillingness of the JD to deliver possession or to

execute the Sale Deed in favour of the DH was obvious and thus there was

no occasion for the DH to pay Rs.22,50,000/-. It is further contended that

the judgments cited by the counsel for the JD are not relevant as the DH is

not seeking any extension of time. Reliance is placed on M.R. Malhotra

Vs. Competent Builders Pvt. Ltd. 192 (2012) DLT 295 (DB).

11. The counsel for the JD in rejoinder has contended that the obligation

of the DH under the compromise decree to tender the payment to the JD by

bank draft/banker‟s cheque was de hors the challenge by the JD to the

compromise decree and such challenge did not stop the DH from performing

his part of the compromise and the DH having not performed his part of the

compromise is not entitled to execution.

12. The counsel for the JD upon being asked to address on the aspect on

which the JD was cautioned, has contended that no relief of forfeiture in

execution can be granted as the same will be contrary to the compromise

decree.

13. The counsel for the DH also has not made any arguments on the

aspect of forfeiture and has left it to the decision of this Court.

14. I have considered the rival submissions. As far as objection, of the

execution petition having not been instituted by a duly authorized person, is

concerned, the execution petition is purported to be filed by the DH though

his Attorney "Mr. Arjun Sikri son of Mr. R.L. Sikri" and is accompanied

with a Power of Attorney in favour of the Attorney. However, the said

Attorney is in favour of Mr. Rahul Sikri son of Mr. Roshan Lal Sikri. The

signatures on the execution petition as well as on the affidavit accompanying

the same are however as "Rahul" and the same as appearing of the Attorney

on the Power of Attorney. It thus transpires that the execution petition and

the affidavit accompanying the same are signed by the Attorney Mr. Rahul

Sikri only in whose favour the Power of Attorney is. What appears to have

happened is that the Typist/Computer Operator in the office of the counsel

for the DH, while feeding the name of the Attorney in the title of the

execution petition and in the affidavit accompanying the same erroneously

fed the first name as "Arjun" instead of "Rahul", though the name of the

father of the Attorney is correctly recorded. Once, it is found that the

execution petition is filed by the person in whose favour Power of Attorney

is given, the error in the title of the execution petition and in the affidavit

accompanying the execution petition in describing the name of the Attorney

is but a mere curable irregularity and not fatal to the execution. It is even

otherwise not the case of the JD that somebody other than the DH is

pursuing the execution. There is thus no merit in the said objection.

15. As far as other objection is concerned, the same I reiterate is not only

thoroughly misconceived but an abuse of the process of this Court. Under

the compromise decree:

(i) The JD had agreed to sell his 1/3 rd share in the property to the

DH for total price of Rs.22,50,000/-;

(ii) The JD had agreed to simultaneously on receipt of bank

draft/banker‟s cheque for Rs.22,50,000/- hand over peaceful and

vacant possession of part of the property in his occupation to the DH;

(iii) No time for the aforesaid was provided or agreed upon meaning

thereby that it could be immediately on passing of the compromise

decree;

(iv) It was the JD who had sought three months and fifteen days

time to enable himself to arrange alternative accommodation;

(v) The DH had agreed to "within" the said three months and

fifteen days pay the said amount to the JD and the JD had agreed to

simultaneously on receipt thereof by bank draft/banker‟s cheque hand

over vacant and peaceful possession to the DH and to execute sale

document in favour of the DH.

16. It would thus be seen that under the compromise decree, there is no

obligation on the DH to tender the bank draft/banker‟s cheque for

Rs.22,50,000/- to the JD till the JD was in a position to or willing to,

simultaneously on receipt thereof deliver vacant possession of the portion of

the property in his occupation and to execute the sale documents of his 1/3 rd

share in the property in favour of the DH.

17. The compromise decree was passed on 28th May, 2009. The period of

three months and fifteen days therefrom would expire on 12 th September,

2009 (counting three months to expire on 28 th August, 2008 and fifteen days

thereafter from 29th August, 2009 to 12th September, 2009). It is not the case

of the JD that the JD at any time prior to 1 st September, 2009 was ready to

vacate his portion and execute transfer documents of his share in favour of

the DH or called upon the DH to pay the said sum of Rs.22,50,000/-. On 1st

September, 2009 the JD filed the review petition challenging the

compromise. The said challenge as aforesaid continued till 22nd April, 2010

when the application of the JD seeking modification of the compromise was

dismissed.

18. There was thus no occasion for the DH to, within three months and

fifteen days of the compromise decree pay the sum of Rs.22,50,000/- to the

JD as the JD then was not willing to simultaneously on receipt thereof

deliver possession of the portion of the property in his occupation to or

execute sale documents in favour of, DH. The promise, in the compromise

decree, of the DH to pay Rs.22,50,000/- to the JD was reciprocal to the

promise of the JD to upon receipt of the said amount deliver vacant

possession to and execute sale document in favour of, the DH. Section 51 of

the Contract Act provides that when contract consists of reciprocal promises

to be simultaneously performed, no promisor need perform his promise

unless the promisee is ready and willing to perform his reciprocal promise.

The JD, as aforesaid, was/is clearly not ready to deliver possession or

execute sale documents. The DH thus cannot be said to be in default.

19. The entire objections of the JD are premised on it being the liability of

the DH to tender Rs.22,50,000/- to the JD by bank draft/banker‟s cheque

before expiry of three months and fifteen days irrespective of whether the JD

was willing to deliver possession and execute sale documents and which

premise as aforesaid is erroneous.

20. Not only are the objections misconceived but also an afterthought, to

frustrate the compromise decree. As aforesaid, the DH had first approached

the suit Court. The JD then did not state that the DH was in default, as is

now being said. Rather then, the plea was that the JD was intending to file

an SLP against the order of dismissal of his application. Thereafter,

application proposing alternate compromise was filed. Only when the said

pleas did not succeed, the plea as in the objections to the execution has been

taken.

21. It is for this reason that the objections were/are found to be in abuse of

process of this Court and the JD cautioned as above.

22. The judgments cited by counsel for JD have no applicability in the

aforesaid light. It may however be observed that the Division Bench of this

Court recently in judgment dated 25th July, 2012 in EFA(OS) No.38/2009

titled Sh. M.R. Malhotra Vs. Competent Builders Ltd. had occasion to deal

with a similar controversy and held, (a) that by mere specification of time in

the compromise, it cannot be assumed that the plaintiffs agreed and intended

to have time as essence; (b) the subsequent conduct of the plaintiffs after the

passing of decree can show whether plaintiffs intended time to be of

essence; (c) even where time is of essence, it can be waived by subsequent

conduct; (d) that the Executing Court can, to avoid injustice, extend the time

fixed in the compromise decree.

23. The present, in the facts aforesaid is indeed a case of the conduct of

the JD being manifestly injust. The JD was vide orders dated 19th July, 2010

and 17th August, 2010 supra in the suit directed to perform his part of the

compromise within ten days and fifteen days respectively. The said orders

also have attained finality. The JD is in violation of the directions of this

Court also, besides being liable under the compromise decree. Such

violations of directions of Court do not even deserve to be heard.

24. The objections of the JD in the form of EA No.309/2012 are

accordingly dismissed.

25. I have considered the aspect whether the Executing Court can for the

reason aforesaid forfeit the amount of Rs.22,50,000/- or any part thereof

receivable by the JD from the DH. I have however not been able to find any

support therefor, though feel an urgent need therefor to stop the trend which

is gaining roots, of using litigation in abuse of the process of the Court as a

tool of oppression. The provisions of law however appear to suggest that the

Executing Court cannot go behind or alter the decree. Thus, notwithstanding

the JD having abused the process of this Court, there being no provision in

the decree permitting forfeiture of the sale consideration to which the JD is

entitled from the DH, the Executing Court cannot order the same.

26. However, combing through the provisions of the CPC in this regard, I

find the Code to have provided a remedy under Section 74 thereof. The

same permits the Court, if satisfied that the holder of a decree for possession

of immovable property or the purchaser of immovable property sold in

execution of a decree, has been resisted or obstructed in obtaining

possession of the property by the JD and that such resistance or obstruction

are without any just cause, to order the JD to be detained in civil prison for a

term extending to thirty days, in addition to putting the DH/purchaser into

possession of the property.

27. The compromise decree in the present case is both, for putting the DH

into possession of the portion of the property in occupation of the JD as well

as for sale of the property of the JD to the DH in execution of the decree for

partition. The JD has undoubtedly resisted or obstructed delivery of

possession to the DH and which resistance/obstruction is found to be without

any just cause.

28. However, since the JD was not cautioned on the aforesaid aspect, it is

deemed appropriate to issue show cause notice to the JD as to why he should

not be proceeded under Section 74 of CPC, rather than immediately passing

an order for imprisonment.

29. Accordingly, the execution petition is disposed of with the following

directions:

(i) The DH to deposit the sum of Rs.22,50,000/- in this Court on or

before 28th May, 2013;

(ii) Subject to the deposit of the aforesaid amount by the DH, issue

warrants of possession of the entire portion of property No.16/273,

Joshi Gali No.9, Joshi Road, Karol Bagh, New Delhi in occupation of

the JD returnable before the Joint Registrar on 29 th May, 2013. The

said warrants shall be executable by taking police assistance, if

deemed necessary and the Station House Officer (SHO) of the

concerned Police Station is directed to render necessary assistance for

execution of the warrants by removing the JD and his family members

or anyone else from property No.16/273, Joshi Gali No.9, Joshi Road,

Karol Bagh, New Delhi;

(iii) Mr. Javed Ahmed Khan, Court Master (Mob.9958125170) is

appointed as the Court Commissioner to execute the document of sale

of 1/3rd share of the JD in the aforesaid property in favour of the DH.

The DH to have the said document executed and registered on or

before 10th June, 2013. The fee of the Court Commissioner is fixed at

Rs.20,000/- besides out of pocket expenses, to be paid by the DH;

(iv) The DH to prepare a draft Sale Deed for execution by the Court

Commissioner and to place the same for approval of the Joint

Registrar and for which purpose the matter is posted before the Joint

Registrar on 29th May, 2013;