Delhi High Court
Shyam Shankar Goela Through Rajiv ... vs Uday Shanker Goela on 13 April, 2018
$~2 & 3
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 13th April, 2018
+ C.R.P. 122/2012 & CM No. 5125/2014
SHYAM SHANKAR GOELA THROUGH RAJIV GOELA
..... Petitioner
Through: Mr. Anish Dayal, Ms. Anjali
Agarwal & Ms. Rupam Sharma,
Advs.
versus
UDAY SHANKER GOELA ..... Respondent
Through: Mr. S.K. Gupta, Adv.
+ C.R.P. 150/2012 & CM N. 8981/2013
UDAY SHANKER GOELA ..... Petitioner
Through: Mr. S.K. Gupta, Adv.
versus
SHYAM SHANKER GOELA THROUGH LRs.... Respondents
Through: Mr. Anish Dayal, Ms. Anjali
Agarwal & Ms. Rupam Sharma,
Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. These two revision petitions relate to the order dated 01.06.2012
passed by the Additional District Judge, as the executing court in
execution proceedings registered as execution case no. 47/2010. The
first captioned petition was filed by the party which was entitled under
a compromise decree recorded on 26.03.2010 to purchase 50% share
in the subject property i.e. property bearing no. 100, Ward no.3, Gali
Gandhi, Tilak Bazar, Delhi - 110006, the petitioner of the second
captioned petition being the party bound by the said compromise
decree to execute the sale deed in favour of the former. As per the
terms of settlement which was accepted as the compromise decree, the
consideration payable in the sum of Rs. 14 lakhs out of which the
latter had concededly received an advance of 10% to the extent of Rs.
1,40,000/- by cheque dated 22.03.2010. The sale deed was to be
executed by 21.04.2010 when the balance amount of consideration of
Rs.12,60,000/- was to be paid.
2. It is clear that sale deed was not executed on 21.04.2010. The
petitioner of the first captioned petition, thus, took out execution
proceedings (execution case no. 47/2010). It is after hearing the
opposite party i.e. the petitioner of the second captioned petition, that
the executing court, by order dated 01.06.2012, directed the first
captioned petitioner to deposit an amount of Rs. 12,60,000/- with
interest @ 12% per annum w.e.f. 22.04.2010 till the date of the said
order by bank draft/pay order in favour of the opposite party within
one month of the said order, such amount to be released to the
opposite party which was directed, in turn, to execute the sale deed in
favour of the former in terms of the agreement dated 05.03.2010
within 15 days of such deposit.
3. The first captioned petition was brought to raise the grievance
with regard to the levy of interest @ 12 % per annum over and above
the balance sale consideration, the prime submission of the petitioner
being that the executing court had gone beyond the decree and,
therefore, such part of the directions could not be enforced. Though
the petition would not say so, it has come out at the hearing that the
petitioner of the first captioned case had filed an application for
review, inter alia, on the grounds that there was no default on his part,
there having been exchange of two communications, they being dated
20.05.2010 and 25.05.2010 which, per the submissions, would
indicate the said petitioner had always been ready and willing to
proceed ahead with the execution of the sale deed by tendering the
balance consideration which had been duly arranged within time. The
review petition, however, was rejected by order dated 03.08.2012
primarily on the ground that there was no error apparent on the face of
the record.
4. During the pendency of the first captioned petition, the opposite
party brought the second captioned petition, the prime argument raised
being that since the sale deed was to be executed on 21.04.2010, it was
not within the jurisdiction of the executing court to allow enlargement
of time and issue directions by the impugned order for sale deed to be
executed even though with the revised terms of the interest having
been levied. In the submission of the second captioned petitioner, the
execution proceedings themselves were not maintainable against the
above backdrop, the deal represented by settlement which was made
rule of the Court on 26.03.2010 having fallen through.
5. During the pendency of these proceedings before this Court, the
petitioner of the second captioned petition died on 14.03.2013. It is on
account of the said event that application (CM No. 8981/2013) was
filed invoking the provision contained in Order XXII Rule 3 of the
Code of Civil Procedure, 1908 to bring on record his legal
representatives. The petitioner of the first captioned matter did not
file such an application immediately. An application (CM No.
5125/2014), however, was filed with a delay of 104 days, invoking the
provision contained in Order 22 Rule 4 CPC read with Section 5 of
Limitation Act, by the prayer made in the said application, the first
petitioner having joined the prayer for substitution of the opposite
party by his legal representatives.
6. It is the contention of the learned counsel representing the legal
heirs of deceased Uday Shanker Goela, the respondent in first
captioned petition, that the proceedings in the first matter have abated.
It has to be borne in mind that these petitions have been filed in the
context of an order which was filed in execution proceedings. Having
regard to the overall facts and circumstances of the case, the delay is
condoned. The legal representative of Uday Shankar Goela, is
substituted in his place in both the matters. The amended memo of
parties which have been filed shall be taken on record. This disposes
of the pending applications (CM No. 5125/2014 in C.R.P. 122/2012
and CM No. 8981/2013) in C.R.P. 150/2012.
7. After some hearing, the learned counsel for the petitioner in
C.R.P. 122/2012 submitted, on instructions, that he may be allowed to
withdraw the revision petition as the petitioner is now ready and
willing to abide by the directions of the executing court in the order
dated 01.06.2012. He further conceded that since almost six years
have lapsed, the matter having remained pending in this Court in these
proceedings, the liability of the petitioners who are to purchase half of
the interest in the subject property from the opposite party, would
include the responsibility to bear the liability towards interest till the
date of due compliance and consequently they are ready and willing to
bear interest @ 12% per annum w.e.f. 22.04.2010 till the date of
deposit of such amount with the executing court so that it becomes
available to be released to the opposite party to require it to abide by
the obligation placed at their door by the said order dated 01.06.2012.
8. Having heard the learned counsel for the petitioner in the
second matter, this Court finds no merit in the contentions raised
before this Court. The issue as to whether time was of the essence of
the terms of settlement leading to the compromise decree, or as to
whether the execution proceedings were not maintainable against the
above backdrop of facts, was never raised before the executing court
and it cannot be allowed to be raised in the manner sought to be done
for the first time before this court. The petition, i.e., CRP. 150/2012
is thus, dismissed.
9. The first captioned petition i.e. C.R.P. 122/2012 is dismissed as
withdrawn. The petitioners of the said matter are bound by the
undertaking with regard to responsibility to bear the liability towards
interest upto the date of deposit of the principal amount as determined
in the impugned order, it having been voluntarily undertaken by the
said petitioners, and, being fair, just and equitable.
10. The net result of the above conclusion of the two revision
petitions, is that the order dated 01.06.2012 (as partially modified
above) will have to be taken to the logical end by the executing court
in letter and spirit.
11. As jointly requested by both sides, it is directed that the parties
shall appear before the executing court on 15th May, 2018.
12. Both petitions and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
APRIL 13, 2018
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