Delhi High Court
Tarmohan Singh & Ors. vs Balwinder Singh Lamba & Anr. on 15 July, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 15, 2016
+ EX.F.A. 10/2015 & C.M.No. 13115/2015
TARMOHAN SINGH & ORS .....Appellants
Through: Mr. Manu Nayar, Ms. Meenakshi
Chopra and Ms. Nisha Rawat,
Advocates
versus
BALWINDER SINGH LAMBA & ANR .....Respondents
Through: Mr. Vipin Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned order of 1st June, 2015 directs auction sale of the suit
property in execution proceedings. It is noted in the impugned order that
upon part payment of `15 lacs appellants/judgment debtors had
undertaken to pay the balance amount of `60 lacs on or before 31st May,
2015 and it was also undertaken by appellants/judgment debtors that in
case they default in paying the balance amount of `60 lacs, then in such a
situation, the part payment of `15 lacs shall stand forfeited.
In this regard, appellants/judgment debtors had given an
undertaking. Appellants had defaulted in paying the balance amount of
`60 lacs and so the executing court vide impugned order had directed that
the part payment of `15 lacs shall stand forfeited to the respondents-
decree holders.
At the time of hearing of this appeal, appellants had undertaken
that they would deposit a sum of `60 lacs within four days and it has been
done.
Now the question remains as to whether the part payment of `15
lacs which already stands forfeited is to be adjusted towards the decretal
amount or not.
During the course of the hearing, learned counsel for appellants
had submitted that order of 29th April, 2015 is not only onerous but
unduly harsh as now appellants have deposited the balance amount of `60
lacs and for the period of delay of few months, appellants are ready to
pay the interest on account of the default. This is not acceptable to
learned counsel for respondents/decree holders and rightly so, because the
execution sought is of a Mediated Settlement of 21st May, 2012. Needless
to say, a party who tries to wriggle out of a Mediated Settlement without
any justification is to be dealt with a heavy hand.
The contention of learned counsel for appellants that
respondents/decree holders have already filed a suit for recovery of the
interest amount would be an estoppel for them to pursue the execution
proceedings, is sought to be fortified by a Single Bench decision of this
Court in Novartis A.G. v. Wander Pvt. Ltd. 2009 161 DLT 598.
After having heard learned counsel for the parties and on perusal of
the impugned order, the material on record and the decision cited, I find
that reliance placed by appellants' counsel upon decision in Novartis A.G.
(supra) is of no avail for the reason that in the said case the decree was
unexecutable whereas it is not so in the instant case. On merits also, there
is no justification for appellants defaulting in paying the balance amount
of `60 lacs since June, 2012. It is simply said by the appellants that due to
unavoidable circumstances, the balance amount could not be arranged,
but what were those unavoidable circumstances, has not been spelt out.
The impugned order upholding the forfeiture of deposit of `15 lacs
appears to be justified for the reason that execution of a Mediated
Settlement taken place way back in the year 2012 has been stalled by the
appellants for more than three years and if interest for this period on the
default payment is calculated @ 9% per annum, then it would be much
more than `15 lacs. However, since the appellants have already deposited
`60 lacs out of the total amount of `75 lacs, excluding the forfeited
amount of `15 lacs, therefore, the impugned order is modified to the
extent that for recovery of `15 lacs, the learned Executing Court shall
proceed against the appellants in the execution proceedings.
With aforesaid directions, this appeal and the pending application
are disposed of.
(SUNIL GAUR)
JUDGE
JULY 15, 2016
s
