Gurdayal Singh & Ors vs Triyambkam Sales Pvt Ltd
2014 Latest Caselaw 5543 Del

$~ 19.
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        EX.P. 165/2014

%                                        Date of decision :7th November, 2014

         GURDAYAL SINGH & ORS               ..... Decree Holders
                Through : Mr.Rajat Aneja, Adv.

                            versus

         TRIYAMBKAM SALES PVT LTD                ..... Judgement Debtor
                 Through : Mr.R.S. Chaggar, Adv.

         CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)

E.A.(OS)786/2014

    1.

Present execution petition has been filed by decree holders seeking execution of the judgment and decree dated 5.10.2012 passed by this Court in CS(OS)1722/2010. Objections have been filed by the judgement debtor.

2. Learned counsel for the judgment debtor submits that the judgment & decree dated 5.10.2012 is null and void in view of the fact that the same was obtained by the plaintiff by misrepresentation, fraud and suppression of material facts. It is also submitted by the counsel for the Judgment Debtor that the judgment debtor reserves his right to file appropriate proceedings including a suit for cancellation of the decree dated 5.10.2012. It is further submitted that at the time of the sale of the suit property the judgment debtor was informed that the property measures

333 sq. yards whereas the suit property is of lesser area i.e. 320 sq. yards. Counsel for the Judgment Debtor also contends that the decree holder did not have the relevant documents and did not have a marketable title, and, thus, the property could not have been sold by the decree holder to the judgment debtor. It is, thus, prayed that the matter should be adjourned to enable the judgment debtor to file necessary suit in the appropriate court of jurisdiction.

3. Mr.Aneja, learned counsel for the decree holders, submits that the Judgment Debtor herein had filed a suit for mandatory and permanent injunction against the Decree Holder here (defendant in the suit). During the pendency of the suit, parties arrived at an amicable settlement and as per the terms of the settlement, more particularly paras 7(e) and (f) of the application filed under Order XXIII Rule 3 CPC, it was agreed that the judgment debtor would pay the balance sale consideration in the sum of Rs.9.37 crores within three and a half months from the date of conversion of the property from leasehold to freehold and in case the property was not converted, the amount would still be payable by the judgment debtor. In case, this amount was not paid the decree holder herein (defendant in the suit) was to refund the earnest money in the sum of Rs.1.43 crores with interest compounded at Rs.80.00 lakhs to be paid within one month thereafter.

4. Mr.Aneja, learned counsel for the decree holders, submits that after passing of the decree, the judgment debtor has filed various applications to wriggle out of the terms of settlement including I.A.5460/2013 and I.A.5461/2013, I.A.8323 to 8325/2013, I.A.12666/2013, I.A.14665/2013 and Review Application 452/2013. All the applications have been dismissed.

5. Learned counsel for the decree holders further submits that the decree

holder has already entered into a transaction for sale of the property and any delay on the part of the judgment debtor would seriously prejudice the rights of the decree holders.

6. Heard counsel for the parties. In this case, a consent decree was passed as far back as in the year 2012. Paras 7(e) and (f) of the settlement read as under:

"e. That total amount of Rs.9.37 crores will be paid by the plaintiff to the defendants within three and half months from the date of the conversion of suit property from leasehold to freehold. Even if the suit property is not converted from leasehold to freehold, the plaintiff would in any case pay the balance sales consideration of Rs.9.37 crores within Six and Half months from the date this compromise settlement.

f. That if the plaintiff fails to pay to the defendants the balance sale amount of Rs.9.37 crores within a period of Three and Half months from the date of the suit property being converted into freehold or Six and Half months from the date of this compromise settlement (i.e. upto 19.4.2013), whichever is earlier, the defendants shall be free to deal with the suit property in the manner they choose and the plaintiff would have no further right or claim, except the refund of earnest money along with a full and final interest compensation, settled at Rs.80 Lakhs only, which shall be paid by the defendants to Plaintiff, within one month, thereafter. The plaintiff shall return forthwith all agreements, abstracts and other papers and writing in his possession belonging to the Defendants or related to the suit premises and shall not enter into a litigation or make any further claim on the defendants for costs, compensation or otherwise."

7. Thereafter six applications and a review petition was filed by the judgment debtor, appeals were filed, matter was also taken upto the Supreme Court by the judgment debtor. All the applications/review petition/appeal stand dismissed.

8. The present decree arises out of a settlement arrived at between the parties. A joint application under Order XXIII Rule 3 CPC was filed. The

objections filed by the Judgment Debtor, in my view, are without any merit as repeated applications filed by the Judgment Debtor stand dismissed. The terms of settlement show that Judgment Debtor/plaintiff in the suit was required to pay Rs.9.37 crores to the Decree Holder/defendant and in case this amount was not paid the defendant was to refund the earnest money along with full and final interest compensation which was settled as Rs.80 lacs. Since the Judgment Debtor did not pay Rs.9.37 crores within the time allowed, with the leave of the court, the Decree Holder has deposited Rs.2.23 crores with the Registrar General of this court. The Judgment Debtor, if he so desires, may approach the Registrar General for release of the amount so deposited. As per the settlement, the original Agreement to Sell and receipt was to be handed over to the Decree Holder. Learned counsel for the judgment debtor submits that none of the documents are in the possession and power of the judgment debtor. The said documents i.e., Agreement to Sell, receipt etc. are deemed to be cancelled as null and void.

9. The objections are without any merit. Accordingly, no further orders are required to be passed in the present execution petition and the same is disposed of.

G.S.SISTANI, J NOVEMBER 07, 2014 msr