Delhi High Court
The Engineering And Industrial ... vs Sh. C.M. Sharma And Ors. on 16 February, 2016
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 16.02.2016
+ EFA(OS) 6/2014, C.M. APPL.6526/2014
THE ENGINEERING AND INDUSTRIAL CORPORATION (P)
LTD ..... Appellant
Through : Sh. Vijay Kishan Jetly and Sh. Rajneesh
Vats, Advocates.
versus
SH C.M. SHARMA & ORS. ..... Respondents
Through : Sh. Sunil Magon, Advocate, for
Respondent No.1.
Sh. Arjun Mitra, Advocate, for GNCTD.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The present appeal questions the judgment and order of the learned
Single Judge, dismissing application E.A. No.1996/2014 in the course of
execution proceedings. The application moved by the Judgement Debtor
(appellant) [and referred to hereafter as such] had called into question the
previous order requiring deposit of `11,28,300/- as well as the charges
payable to the Local Commissioner for execution of the sale deed.
2. The facts necessary for deciding the appeal are that the plaintiff
(hereafter referred to as "Decree Holder") entered into an Agreement to
EFA (OS) 6/2014 Page 1
purchase the property, i.e. a shop at Inderpuri, New Delhi on 25.05.1951.
The entire consideration - of `1375/- was paid by him in 1952. On
14.03.1961, the appellant/Judgement Debtor sought deposit of registration
charges which at that time was `131/-, a fact produced on the record by
documentary evidence (Ex.P-7). The Decree Holder/plaintiff complied with
this payment and paid the said amount on 30.03.1961. The original
plaintiff/Decree Holder's predecessor-in-interest died and his legal
representatives/heirs instituted a suit for specific performance and also
sought a decree for possession because the shop had been trespassed. The
suit was contested by the third parties/alleged trespassers as well as the
present appellant/Judgement Debtor. On 13.03.1996, Suit No. 632/1988 was
decreed. The Judgement Debtor/appellant's appeal, being RFA (OS) 23/1996
was rejected. This order was affirmed by the Supreme Court which declined
to grant substantial leave.
3. Alleging that the Judgement Debtor did not comply with the terms of
the decree, the Decree Holder approached the Court in execution
proceedings [Exec. Pet. 151/2013]. Learned Single Judge, by an order dated
21.11.2013 issued directions to the Decree Holder to bear the charges for
Stamp duty and registration and at the same time clarified,
"The decree holder shall, for the time being, pay the charges to
the authorised officer in this respect, which are quantified at
Rs.20,000/-. The decree holder shall bear all the charges
incurred towards the stamp duty and registration of the sale deed.
The decree holder shall be entitled to recover the said amounts
from the judgment debtors.
4. This latter sentence, i.e. to reimburse the amounts to the Decree
Holder, on the part of the Judgement Debtor, became the bone of contention.
EFA (OS) 6/2014 Page 2
The Judgement Debtor moved E.A. 131/2014, urging several contentions.
This included the submission that the differences between the parties which
were substantially settled in CS (OS) 632/1988, never struck an issue with
respect to the liability to pay registration and stamp duty charges, i.e. that the
decree did not direct the Judgment Debtor to bear such liability; that the
liability to bear such charges was upon the plaintiff/Decree Holder by virtue
of Section 29 of the Indian Stamp Act, 1899 and that in any case, the
executing Court had to confine its direction to what was sought and more
importantly, granted in the decree and not exceed it. A large number of
authorities were cited in support of the Judgement Debtor's submissions. The
execution proceedings spanned several hearings.
5. The Judgement Debtor's contentions were overruled and the
application for variation of the previous order dated 21.11.2013 was
dismissed. Learned Single Judge, by a reasoned order, considered the
findings recorded in the Civil Suit as well as the Division Bench judgment in
appeal and was of the opinion that the directions complained of were not in
excess of the decree but rather confined to it.
6. Sh. Vijay Kishan Jetly, learned counsel for the Judgement Debtor
urged that the impugned order is clearly in error of law. He submitted firstly
that the judgment of the Division Bench had recorded that in terms of the
contract between the parties, the responsibility to pay the requisite charges
was that of the Decree Holder. He relied upon the circumstance that the
Judgement Debtor never refused to comply with the payment for execution
of the documents and that the suit was filed almost four decades after the
initial agreement to sell was entered into. It was urged in this context that
such being the case, and there being no specific direction in the decree as
EFA (OS) 6/2014 Page 3
well as no finding or issue in respect of the controversy, the learned Single
Judge should not have directed reimbursement of the payment of
`11,28,300/- in regard to payment of stamp duty and registration of the sale
deed.
7. Learned counsel relied upon several authorities for the proposition that
the reliefs never sought should not be granted much less added by excluding
the decree. He relied upon the decisions of the Supreme Court in Pyare
Mohan Lal v. State of Jharkhand and Ors. AIR 2010 SC 3792; Bachhaj
Nahar vs Nilima Mandal & Ors 2008 (17) SCC 491 and Krishna Priya
Ganguly v. University of Lucknow AIR 1984 SC 186 in support of the
proposition that reliefs not sought cannot be read into the judgment or
decree.
8. Highlighting that the executing Court exercises extremely limited
jurisdiction, it was urged by placing reliance on ONGC Ltd. v. Modern
Construction & Co. 2014 (1) SCC 648 that the Court has to implement or
execute the decree strictly in terms of what is contained in it and should not
in any manner vary its terms. Reliance was also placed upon Haryana Vidyut
Prasaran Nigam Ltd. & Anr. v. Gulshan Lal & Ors. 2009 (13) SCC 354.
9. Learned counsel submitted that the learned Single Judge in the present
case went beyond the limits of his jurisdiction in observing as he did that
justice demanded reimbursement of this specific kind. He submitted that the
Court cannot import its notions of justice while exercising its jurisdiction in
execution of a decree. Learned counsel relied upon the judgement in FCI
Union v. Food Corporation of India AIR 1990 SC 2178. It was lastly urged
that the terms of the decree are to be construed and the executing Court
cannot go into the controversy - the only exception being where ambiguity
EFA (OS) 6/2014 Page 4
exists. Here, reliance was placed upon Ghaziabad Development Authority v.
Urmila (Smt) and Anr. 2004 (13) SCC 489. Learned counsel stressed that in
the present case, the judgement and decree was silent and did not require the
Judgement Debtor/appellant to bear the charges - it is not clearly showing
that there was no ambiguity in the first instance which required to be fulfilled
by construction of decree as sought.
10. Sh. Sunil Magon, learned counsel for the Decree Holder took this
Court through the record and urged that as against total consideration of
`1375/-, as far back as in 1952, whenever the registration and stamp duty
charges were demanded, the Decree Holder complied with it and deposited it
on 30.03.1961. Learned counsel relied upon the observations of the learned
Single Judge in the course of judgment, the findings on such aspect, as well
as the findings of the Division Bench, and submitted that since there was no
controversy as to the payment, requiring the Decree Holder to bear such
charges all over again merely because the rates have gone up is not
warranted. Having once paid the amounts, it was not only just and equitable
but the necessary consequence of the decree which stood confirmed by the
highest Court of the land, that the other amounts which were to be paid were
to be borne by the Judgement Debtor. Learned counsel highlighted the
findings of the Division Bench to the effect that the Judgement Debtor had
colluded with third party trespassers to deny the Decree Holder possession of
the property which compelled the filing of the suit.
11. As is evident, the controversy which is sought to be urged in the
present appeal is as to the liability of the Judgment Debtor to bear the
charges; it complains by citing Section 29 of the Indian Stamp Act, 1899 and
the absence of any term in the agreement to sell, that it cannot be saddled
EFA (OS) 6/2014 Page 5
with the responsibility of bearing the expenses for conveyance and that
rather the primary liability is that of the Decree Holder/vendee.
12. This Court notices that the impugned order clearly took note of the
findings rendered in the suit substantially. In the course of its judgment dated
23.05.1996, this Court clearly stated as follows:
"When the first defendant had called the plaintiffs to give and
take the sale deed in the normal course of human conduct, there
would have been no hesitation on their part to take the sale deed
because there was nothing further to be done by then. Shri
Bhagat Ram had paid the full consideration and also Rs.131/-
required for the registration and for stamp papers. The first
defendant having failed to execute the sale deed is now trying to
take advantage of its own wrongs. In law that can never be
permitted."
13. These findings were confirmed by the Division Bench. It held as
follows:
"75. In the present case, we are of the view that equity is entirely
in favour of the plaintiffs and against the appellant EICPL. The
plaintiff‟s predecessor-in-interest Late Sh. Bhagat Ram paid the
entire consideration including the registration charges to the
appellant EICPL and there was no other financial obligation left
for him to discharge qua the appellant. He had even been put in
possession of the suit plot. It is not that the appellants were put to
any prejudice on account of the non-registration of the sale deed
since they had already pocketed the entire consideration with
charges."
14. This judgment of the Division Bench - dated 28.02.2013 (in RFA
23/1996 filed by the Judgment Debtor became final. The Supreme Court too
declined to entertain the Special Leave Petition and dismissed it in limini.
15. It is quite evident from the above findings and observations that the
Judgment Debtor never disputed receiving the charges which constituted
EFA (OS) 6/2014 Page 6
10% over and above the sale consideration at the relevant time. Quite
pertinently, the Division Bench which ruled against the appellant was
constrained to remark that it had even pocketed all the charges over and
above the relevant consideration in 1961. In these circumstances, the
question of the executing court adding to, varying or straying from the
decree, in the opinion of the Court, does not arise at all. What the appellant
Judgement Debtor is attempting to do as it is, through its application, is that
it should be paid twice over for the deliberate and conscious omission in not
fulfilling the terms of the contract and conveying the property to the Decree
Holder. The original vendee could not, during his lifetime, secure the
enjoyment of property he had fully paid for. Findings were recorded not only
against the Judgement Debtor vis-a-vis the questions sought to be urged but
also with regard to its conduct in as much as it apparently had colluded with
third parties to fraud the vendee/deceased predecessor-in-interest's right to
the property for which full consideration was paid in 1952 itself. The entire
picture which emerges is not only dismal but abysmally shocking that a
litigant has been able to successfully stall the judicial process for the last six
decades and ensure that the binding contract under whose obligations it was
bound to discharge were not enforced. To cap it all, it is urged that although
the appellant Judgement Debtor received the entire amount towards
registration and other charges, defaulted for more than 40 years so that it
may be paid all over again. There can be no quarrel with the proposition
urged by Sh. Vijay Kishan Jetly, learned counsel, as to the powers of the
executing Court. This Court is conscious of what are the limitations of an
executing Court. However, the question is the relevance of its submissions.
16. In the present case, after having once paid the requisite charges which
EFA (OS) 6/2014 Page 7
were to be recovered at the relevant time, the Judgment Debtor cannot now
contend by relying upon authorities that the executing Court had exceeded its
powers either by adding to, varying the decree. That the Court did not do so
is something we are certain about. For the above reasons, we are of the
opinion that the appeal has no merit. We notice that the appellant's
applications were considered by the executing Court on sufficient occasions.
This is the 14th hearing of the present appeal. In the circumstances, we are of
the opinion that it would be appropriate that the appellant pays the
respondent/Decree Holder a sum of `2 lakhs as costs. The appeal is
dismissed with the direction to be complied with within four weeks from
today.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
FEBRUARY 16, 2016
ajk
EFA (OS) 6/2014 Page 8
