Delhi High Court
Mf Buildcon Pvt. Ltd. vs Anjali on 2 May, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd May, 2019.
+ EX.P. 3/2019 & EA No.10/2019 (for interim stay)
MF BUILDCON PVT. LTD. ..... Decree Holder
Through: Mr. Sanjay Agnihotri and Mr. Z.A.
Siddiqui, Advs.
Versus
ANJALI ..... Judgement Debtor
Through: Mr. Sumit R. Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The decree holder has applied for execution of a decree dated 15 th
May, 2018 in CS(OS) No.603/2017 filed by the decree holder against the
judgment debtor for specific performance of an Agreement of Sale of
immovable property.
2. Notice of the Execution Petition was ordered to be issued and on 7 th
February, 2019 the counsel for the judgment debtor appeared and was
granted time to file reply and the matter posted on 30 th April, 2019 for
hearing.
3. The judgment debtor did not file any reply and the counsel for the
judgment debtor on 30th April, 2019 again sought time for filing reply. Upon
being asked to argue, he was unable to make any legal arguments and was
only knowing what is written on the papers. Accordingly, the hearing was
posted for today and presence of the Director of the decree holder as well as
the judgment debtor before this Court directed.
4. The counsel for the judgment debtor and the counsel for the decree
holder have been heard.
5. The parties to the suit for specific performance, of decree wherein
execution is sought, were referred to the Mediation Cell of this Court. A
Settlement Agreement dated 3rd May, 2018 as under was executed by the
parties:-
―Date:03.05.2018
SETTLEMENT AGREEMNT
This SETTLEMENT AGREEMENT is entered into on
03.05.2018.
BETWEEN
MF BUILDCON PRIVATE LIMITED, HAVING ITS OFFICE AT
8940, NAYA MOHALLA, PUL BANGASH, DELHI THROUGH
ITS MANAGING DIRECTOR MOHD. FARMAN QURESHI S/O
LATE SH. ABDUL SALAM R/O 8898, NAYA MOHALLA, PUL
BANGASH, DELHI, ON THE FIRST PART, HEREINAFTER
CALLED THE FIRST PARTY, AUTHORISED VIDE BOARD
RESOLUTION DATED 04.05.2016. COPY OF THE SAME IS
ANNEXED HEREWITH AS ANNEXURE-A.
AND
SMT. ANJALI W/O LATE SH. HANS RAJ R/O A/57,
MALKAGANJ, DELHI - 110 006, OF THE SECOND PART,
HEREINAFTER CALLED THE SECOND PARTY.
(The expression and words of the first party and the second party
shall mean and include their legal heirs, nominees, executors,
successors, assignees, administrators and legal representatives
respectively).
WHEREAS the Second Party is the owner and in possession of
Ground Floor of Property bearing No.8980, Naya Mohalla, Pul
Bangash, Delhi and First Floor, Second floor and Third Floor of
Property bearing No.8981, Naya Mohalla, Pul Bangash, Delhi
and is owner of ground floor of Property bearing No.8981, Naya
Mohalla, Pul Bangash, Delhi (hereinafter called the ―said
Properties‖).
AND WHEREAS an Agreement to Sell dated 09.06.2014 was
executed between the First Party and Second Party to sell the
said properties. The aforesaid Agreement to Sell set forth the
entire terms and conditions in relation to sale of the above said
properties as well as the consideration of the sale.
AND WHEREAS some disputes arose between the First Party
and Second Party in relation to execution of the Sale Deed of the
said properties as well as the payment of the sale consideration.
Consequently, the First Party filed a Suit for specific
performance bearing CS(OS) No.603/2017 titled as MF Buildcon
Private Limited Vs. Smt. Anjali in the Hon'ble High Court of
Delhi at New Delhi.
AND WHEREAS the present matter was referred to Samadhan
(Delhi High Court Mediation and Conciliation Centre) vide
order dated 02.05.2018, passed by Hon'ble Mr. Justice Rajiv
Sahai Endlaw.
AND WHEREAS the parties agreed that Ms. Sumati Anand,
Advocate would act as their Mediator in the matter of mediation
proceedings.
AND WHEREAS mediation session was held with the mediator
on 03.05.2018 and the parties have, with the assistance of the
Mediator and their respective counsels, voluntarily arrived at an
amicable solution resolving the above mentioned disputes and
differences.
AND WHEREAS the parties hereto confirm and declare that
they have voluntarily and of their own free will without any force
or coercion etc. arrived at this Settlement Agreement in the
presence of the Mediator.
AND WHEREAS the following settlement has been arrived at
between the Parties hereto:
1. That it is agreed by both the parties that the total sale
consideration of properties will be Rs.130 Lakhs. The First
Party has already paid a sum of Rs.50 Lakhs to the Second
Party which was duly acknowledged and received by her.
2. That the First Party has paid a further amount of Rs.17
Lakhs on 03rd May 2018 to the Second Party vide Cheque
No.000020 dated 02.05.2018 drawn on HDFC Bank, Sadar
Bazar, Delhi.
3. That the balance amount of Rs.63 Lakhs shall be paid by
the First Party to the Second Party on or before 30th June,
2018 i.e. the last date agreed for execution of Sale Deed.
4. That the Second Party will execute the Sale Deed in favour
of the First Party and the registration of the same will be
carried out before the concerned Sub-Registrar. The Second
Party will hand over possession of the said properties to the
First Party on ―as is where is basis‖ and simultaneously
receive the remaining sale consideration for the said
properties.
5. That upon fulfilment of all terms and conditions as
interpolated in the present agreement, none of the parties
shall be left with any claim of whatsoever kind against each
other qua the said properties.
6. That the terms and conditions of this Settlement Agreement
stated above shall be binding on both parties i.e. terms of
this Settlement Agreement are final.
7. The parties pray that the Hon'ble Court may pass consent
decree in terms of the present Settlement Agreement
including refund of court fee under section 16 of the Court
Fees Act, 1870.
By signing this Agreement the parties hereto state that they have
no further claims or demands against each other and have settled
their disputes and differences through the process of Mediation.
That the parties undertake that they are bound by this Settlement
Agreement and further undertake to abide by the terms and
conditions set out in the agreement and not to dispute the same
hereinafter in future.
That the contents of the present settlement agreement have been
read over and explain to the parties by the mediator and his
counsel in vernacular and the parties have agreed and
understood the same.‖
6. The said Settlement Agreement came before the Suit Court on 15th
May, 2018 when the following order was passed:-
1. The parties in this suit for specific performance of an
agreement of sale of immovable property, vide order dated 2nd
May, 2018, were referred to the Mediation Cell of this Court.
2. Mediation is reported to have been successful with the
efforts of Ms. Sumati Anand, Advocate/Mediator and a settlement
agreement dated 3rd May, 2018 purported to be executed by the
parties and their advocates and the Mediator has been received
and the counsel for the plaintiff and the counsel for the defendants
support the settlement and seek disposal of this suit in terms of the
settlement.
3. A perusal of the settlement arrived at between the parties
shows the total sale consideration to have been agreed at Rs. 130
lacs instead of Rs. 4.5 crores as plead to be agreed earlier and the
remaining sale consideration of Rs. 63 lacs to have been agreed
to be paid on or before 30th June, 2018, that is, the last date
agreed for execution of the sale deed and for delivery of vacant,
peaceful, physical possession on ―as is where is basis‖.
4. I have enquired from the counsel for the parties, that if a
decree in terms thereof is passed, what would be the consequence
in the event of the balance sale consideration being not paid.
5. The counsels are unable to inform.
6. IA No. 3045/2018 has been filed by Ms. Nargish Bano wife
of Mohd. Anis, resident of H. No. 8980, first floor and second
floor, Naya Mohalla, Pul-Banghash Azad Market, Delhi for
impleadment as a party in the present suit. The counsel for Ms.
Nargish Bano states that the parties in the Agreement to Sell, of
which specific performance is sought, besides the property of the
defendant, have also included the property of Ms. Nargish Bano.
It is further stated that the plaintiff had earlier filed a suit in the
District Court and the applicant Ms. Nargish Bano had applied
for impleadment in that suit also and whereupon the plaintiff
withdrew the suit with liberty to file before a Court of appropriate
jurisdiction and though filed the suit in this Court but did not
make the applicant Ms. Nargish Bano a party.
7. The claim of applicant is not to be decided in this lis and is
alien to the controversy in this suit. The applicant Ms. Nargish
Bano is not found to be a necessary or property party to the suit.
The applicant, if has any grievance, may take appropriate
remedies with respect thereto.
8. IA No. 3045/2018 is dismissed.
9. A decree in terms of the settlement, if passed, is bound to
pose difficulties in the event of either of the parties not complying
with the terms and there is no clarity in the Settlement Agreement
that on default by the plaintiff in payment of balance sale
consideration, whether the defendant would be free from the
obligations under the Agreement to Sell and what would be the
fate of the monies received by the defendant. The counsel for the
defendant however, in spite of being cautioned, is not willing to
take any remedial steps. Thus, at the risk of the defendant, the
settlement is accepted and a decree is passed in terms of the
Settlement Agreement which shall form part of the decree sheet,
leaving the parties to bear their own costs.
10. However, a copy of this order be forwarded to the
Mediation Cell of this Court with a request to the Honorary
Secretary, Mediation Cell to look into the matter and to ensure
that such settlement agreements are not sanctioned in future.
11. Decree sheet be drawn up.‖
7. The decree holder filed this Execution Petition on 15th January, 2019
and the same came up before this Court on 17th January, 2019 when the
following order was passed:-
"EX.P. 3/2019 & EA No.10/2019 (for stay)
3. Execution is sought of a decree in terms of Settlement
Agreement arrived at before the Mediation Cell of this Court in a
suit for specific performance of an agreement of sale of
immoveable property.
4. I have enquired from the senior counsel for the decree
holder, the status with respect to the balance sale consideration
of Rs.63 lakhs which was to be paid by the decree holder to the
judgment debtor on or before 30th June, 2018.
5. The senior counsel for the decree holder states that an
amount of Rs.30 lakhs has been paid on 5th June, 2018 and only
the balance Rs.33 lakhs remains. However save for a plea in this
respect, there is no proof of such payment.
6. The senior counsel for the decree holder also seeks interim
order of stay of dispossession of the decree holder from the
property, again contending that the factum of the decree holder
being in possession is pleaded in the Execution Petition.
7. However, a perusal of the Settlement Agreement in terms
whereof the decree was passed shows the same to be recording
in Clause 4 thereof that the possession was still to be delivered
by the judgment debtor on ―as is where is basis‖, simultaneously
with the receipt of the remaining sale consideration. Admittedly,
the remaining sale consideration of Rs.33 lakhs has not been
paid. Thus, the plea of possession does not inspire confidence.
8. Subject to the decree holder depositing the admitted
balance sale consideration of Rs.33 lakhs in this Court within
one week as sought, issue notice to the judgment debtor by all
modes including dasti and electronic returnable on 28th March,
2019.‖
8. The decree holder, without serving the judgment debtor, filed EA
No.25/2019 which came up before this Court on 24th January, 2019 when
the following order was passed:-
"IA No.25/2019 (of the decree holder for stay).
1. Inspite of the earlier order dated 17th January, 2019
declining the same relief for the reasons given, this second
application has been filed.
2. The counsel for the decree holder/applicant now states that
this application has been filed because the Managing Director of
the decree holder/applicant is being called to the Police station
every day and asked to deliver possession.
3. If the decree holder/applicant or its Managing Director has
any grievance with respect to the conduct of the Police, the decree
holder/applicant has to take appropriate remedy therefor.
4. Dismissed.
EX.P. 3/2019 & EA No.10/2019 (for stay).
5. On request of the counsel for the decree holder, the date is
preponed from 28th March, 2019 to 7th February, 2019.‖
9. The counsel for the judgment debtor, when appeared on 7 th February,
2019 on enquiry informed that though the judgment debtor was in
possession of the property but the decree holder, in the end of December,
2018 forcibly took possession of part of the property and of which a Police
complaint had been filed by the judgment debtor but the Police was not
taking any action on the complaint of the judgment debtor owing to the
pendency of the present proceedings. It was further stated that the decree
holder had also failed to pay the entire balance sale consideration by 30th
June, 2018 and was thus not entitled to the benefit of the settlement.
10. The counsel for the decree holder, on 7th February, 2019 on enquiry
whether there was any proof of part payment of Rs.30 lacs as claimed and of
delivery of possession, stated that the decree holder had along with the
Execution Application No.25/2019 filed its bank statement showing transfer
of Rs.30 lacs to the judgment debtor on 5th June, 2018 and that possession of
part of the property was given by the judgment debtor to the decree holder at
the time of said part payment, though there was nothing in writing in this
regard.
11. The counsel for the judgement debtor, on enquiry on 7th February,
2019 however admitted receipt of Rs.30 lacs but denied delivery of
possession.
12. The counsel for the judgment debtor has today drawn attention to
Section 28 of the Specific Relief Act, 1963, which is as under:-
"28. Rescission in certain circumstances of contracts for the
sale or lease of immovable property, the specific performance
of which has been decreed.--(1) Where in any suit a decree for
specific performance of a contract for the sale or lease of
immovable property has been made and the purchaser or lessee
does not, within the period allowed by the decree or such further
period as the court may allow, pay the purchase money or other
sum which the court has ordered him to pay, the vendor or lessor
may apply in the same suit in which the decree is made, to have
the contract rescinded and on such application the court may, by
order, rescind the contract either so far as regards the party in
default or altogether, as the justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the
court--
(a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the contract, to
restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the
rents and profits which have accrued in respect of the
property from the date on which possession was so
obtained by the purchaser or lessee until restoration of
possession to the vendor or lessor, and if the justice of
the case so requires, the refund of any sum paid by the
vendee or the lessee as earnest money or deposit in
connection with the contract.
(3) If the purchaser or lessee pays the purchase money or
other sum which he is ordered to pay under the decree within
the period referred to in sub-section (1), the court may, on
application made in the same suit, award the purchaser or
lessee such further relief as he may be entitled to, including in
appropriate cases all or any of the following reliefs, namely:--
(a) the execution of a proper conveyance or lease by the
vendor or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such
conveyance or lease.
(4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a vendor,
purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in
the discretion of the court.‖
13. The counsel for the judgment debtor also refers to Chanda Vs. Rattni
(2007) 14 SCC 26 laying down that when after the suit for specific
performance is decreed, the plaintiff fails to pay the purchase money within
the period fixed, Section 28 enables rescission of the contract of which
specific performance was sought in the same suit, without compelling the
parties to another litigation. It was further held that a suit for specific
performance does not come to an end by passing of a decree and the Court
which has passed the decree for specific performance retains the control
over the decree, even after the decree has been passed. It was held that a
decree for specific performance is in the nature of a preliminary decree.
14. I may at this stage state that what has been held in Chanda supra, has
been the consistent view of the Courts. Reference in this regard may be
made to Hungerford Investment Trust Limited (In Voluntary Liquidation)
Vs. Haridas Mundhra (1972) 3 SCC 684.
15. I have enquired from the counsel for the judgment debtor, the effect
of the judgment debtor not applying for rescission of the contract under
Section 28.
16. The counsel for the judgment debtor, chastised about his non-
preparedness on 30th April, 2019, has today in this context drawn attention
to Sohan Lal Vs. Surinder Pal Soni MANU/PH/0447/2018 where a Single
Judge of the High Court of Punjab & Haryana, in the absence of any
application for rescission of the contract under Section 28 also, in execution,
accepting the objection of the judgment debtor, dismissed the Execution
Petition.
17. The counsel for the judgment debtor has also stated (i) that in
accordance with the Settlement Agreement and in terms whereof decree was
passed, the decree holder was to on or before 30th June, 2018 pay a total sum
of Rs.80 lacs to the judgment debtor but the decree holder, out of the said
Rs.80 lacs, paid only a sum of Rs.17 lacs on 3rd May, 2018 i.e. at the time of
signing of the Settlement Agreement and Rs.30 lacs by bank transfer as
aforesaid on 5th June, 2018, leaving a balance of Rs.33 lacs which has not
been received by the judgment debtor till date; it is stated that Rs.33 lacs
was deposited in this Court on 22nd January, 2019, only in pursuance to the
order dated 17th January, 2019 and remains deposited in the Court; and, (ii)
that though the decree holder along with the Execution Petition has filed
print outs of some SMS exchanged but the first SMS also is dated 4 th
August, 2018.
18. The counsel for the decree holder has sought to commence his
arguments by referring to the conduct of the judgment debtor of prior to the
Settlement Agreement but upon my enquiry as to how the same is relevant
and whether not this Court as an Executing Court is to be guided by the
decree only, the counsel for the decree holder has not pursued the said line
of arguments. It has been held in Vasudev Dhanjibhai Modi Vs. Rajabhai
Abdul Rehman (1970) 1 SCC 670 that a Court executing a decree cannot go
behind the decree. Reference in this regard may further be made to Deepa
Bhargava Vs. Mahesh Bhargava (2009) 2 SCC 294, Brakewel Automotive
Components (India) Private Limited Vs. P.R. Selvam Alagappam (2017) 5
SCC 371 and Morgan Securities & Credits Pvt. Ltd. Vs. Morepen
Laboratories Ltd. 2006 SCC OnLine Del 774 (EFA(OS) No.19-21/2006
preferred whereagainst was dismissed on 14th August, 2008).
19. The counsel for the decree holder has otherwise (i) argued that the
decree holder, on 1st June, 2018 purchased stamp duty of Rs.5,28,000/- and
Rs.3,45,000/- for execution of the sale deeds, showing the readiness and
willingness of the decree holder (since only photocopies have been filed I
have enquired whether the original stamp duty paid is still with the decree
holder and the answer is in the positive); on further enquiry as to why
separate stamp duties were purchased when the Settlement Agreement does
not provide for execution of two sale deeds, it is stated that since the
Agreement to Sell and Settlement Agreement is with respect to ground floor
of Property No.8980, Naya Mohalla, Pul Bangash, Delhi and first floor,
second floor and third floor of another property being Property No.8981,
Naya Mohalla, Pul Bangash, Delhi, it was deemed appropriate to have
separate sale deeds executed (it is also stated that the Settlement Agreement
was also with respect to ground floor of Property No.8981 though the
judgment debtor was not in possession of the said ground floor); (ii) drawn
attention to SMS at page 36 of the paper book sent on 10 th August, 2018 by
Zia-Ur-Rehman nephew of the Director of the decree holder to the son-in-
law of the judgment debtor asking for a suitable time and place for meeting
so that the appointment time of Sub Registrar could be sought; and, (iii)
invited attention to SMS at page 41 of the paper book, sent again by the
same person to the son-in-law of the judgment debtor, asking him to ask the
judgment debtor to do the needful and in response whereto the son-in-law of
the judgment debtor informed that the judgment debtor was in America. It is
argued that the balance payment could not be made and the sale deed could
not be executed owing to default of the judgment debtor and not on account
of the default of the decree holder.
20. I have enquired from the counsel for the decree holder as to when the
judgment debtor went to America i.e. whether after 30th June, 2018 or before
30th June, 2018.
21. The counsel for the decree holder states "We do not know when she
went to America and we were never informed", indicating that going to
America of the judgment debtor was not a reason.
22. I have again enquired from the counsel for the decree holder, whether
there is anything at all of prior to 10th August, 2018 and of prior to 30th June,
2018 to show that the decree holder had approached the judgment debtor to
take the balance payment and to execute the sale deed and it was the
judgment debtor who failed to do the same.
23. The counsel for the decree holder has fairly admitted that there is
none though states that the decree holder had been pursuing the judgment
debtor.
24. The counsel for the judgment debtor has also contended that a perusal
of the transaction sheet of the bank account filed by the decree holder before
this Court, to show transfer of Rs.30 lacs on 5th June, 2018, does not show
that the decree holder was at any point of time before 30 th June, 2018
possessed of the balance consideration.
25. I have enquired from the counsel for the decree holder, whether there
is anything on record to show that the decree holder was possessed of the
sale consideration of Rs.30 lacs and had tendered the same before 30 th June,
2018.
26. The counsel for the decree holder again fairly states that there is none.
27. The counsel for the decree holder has also contended, (i) that the
delay on the part of the decree holder in payment of the balance sale
consideration of Rs.33 lacs has been condoned by the judgment debtor
owing to the SMSs aforesaid; (ii) that the judgment debtor has not applied
for rescission of the agreement to sell under Section 28; however on enquiry
whether he has brought any judgment to show that it is mandatory to so
apply, the counsel for the decree holder states that he has not; and, (iii) that
owing to this Court, while passing a decree on 15th May 2018 observing that
the execution was bound to pose problems and having passed the decree at
the risk of the defendant/judgment debtor, the judgment debtor is not
entitled to the benefit of Section 28.
28. I am unable to find any condonation by the judgment debtor of the
admitted delay on the part of the decree holder in the payment of the entire
amount as per the Settlement Agreement. The parties were in litigation and
there was no respect or faith or trust. The plea of condonation of delay is
raised off the cuff. No such plea is found in the Execution Petition. On the
contrary it is pleaded in para 9 thereof that "inspite of repeated requests
from the Decree holder to the Judgment Debtor, the Judgment Debtor is not
coming forward to either receive the balance amount or to execute the
registered sale documents in favour of Decree holder."
29. Similarly, besides the dicta aforesaid of the High Court of Punjab &
Haryana, I otherwise also am of the view that it always remains open to a
judgment debtor in such a situation to oppose the execution on the ground of
the decree holder being in breach of the conditions subject to which the
decree was passed and it is not mandatory for the judgment debtor to apply
for rescission of the contract. If the Court finds the decree holder to be in
breach of the said conditions, it follows in law that the decree holder is not
entitled to execution. The question is otherwise also not res integra. In
Prem Jeevan Vs. K.S. Venkata Raman (2017) 11 SCC 57, contention that,
unless the judgment debtor seeks rescission of the contract in terms of
Section 28, the decree remains executable inspite of expiry of the period of
deposit, with the only obligation on the part of the decree holder to pay
interest, was rejected. It was held that merely because rescission of contract
was not sought by the judgment debtor does not automatically result in
extension of time.
30. There is another aspect. The Settlement Agreement stipulating the
time for payment, though essentially a contract, on the imprimatur of Court
being put on it and a decree in terms thereof being drawn up, did not remain
a contract simplicitor and the decree would not stand modified or time
stipulated therein extended, without modification of the decree being sought
and allowed.
31. As far as the only other argument of the counsel for the decree holder,
of the judgment debtor being deprived of the benefit of Section 28 owing to
the order dated 15th May, 2018, again no case therefor is made out. It was
equally necessary for the counsel for the decree holder also to while drawing
up the Settlement Agreement, ensure that the same does not result in further
litigation as indeed it has, as the present proceedings would show. The
parties, after litigating, when settle their disputes including by way of
mediation, should ensure that the settlement provides for consequences of
all eventualities and does not leave the parties in a vacuum. Even otherwise
statutory rights vested by Section 28 in a judgement debtor in a decree for
specific performance cannot be held to be waived by the observations in the
order dated 15th May, 2018. As aforesaid, it was equally the responsibility of
the decree holder.
32. Though Section 28 also vests the discretion in the Court to extend the
time but in my view the said discretion is not to be exercised in the facts of
the present case in favour of the decree holder. My reasons for concluding
so are as under:-
A. The decree holder in the Execution Petition in paras 7 to 10
pleaded as under:-
―7. That when the Decree holder paid Rs.30.00 Lakhs
to the Judgment Debtor on or about 05.06.2018
the Judgment Debtor handed over part possession
of the property in question i.e. First Floor, Second
Floor and Third Floor of Property bearing
No.8981, NayaMohalla, PulBangash, Delhi.
8. That since the said time when part possession was
handed over by the Judgment Debtor to the
Decree holder, the Decree Holder has been in
possession thereof to the exclusion of the
Judgment Debtor or anyone claiming through
her.
9. That inspite of repeated requests from the Decree
holder to the Judgment Debtor, the Judgment
Debtor is not coming forward to either receive the
balance amount or to execute the registered sale
documents in favour of the Decree holder. Hence
the present execution petition.
10. That the Decree holder is ever ready and willing
to pay the balance sale consideration of Rs.33.00
Lakhs and get the registered sale documents
executed in its favour.‖
B. Significantly, the decree holder in the execution filed on 17th
January, 2019 did not offer to deposit the balance amount of
Rs.33 lacs and it was only on the order of this Court that the
amount was so deposited.
C. The decree holder, though on the one hand took recourse to
proceeding established by law by seeking specific performance,
on the other hand took the law into his own hands by taking
forcible possession of the property and to which the decree
holder was not entitled to under the Settlement Agreement till
paid the entire balance amount. Thereafter, an ex parte ad
interim order was sought from this Court on 17th January, 2019
to protect such unauthorised possession. Another attempt in this
regard was made by filing EA No.25/2019 which came up
before the Court on 24th January, 2019.
D. Such conduct of a litigant, on the one hand taking recourse to
the assistance of the Court and on the other hand taking the law
in own hands, disentitles such litigant to any discretion or
equity from the Court.
E. If the Courts, inspite of such conduct of the litigant, continue to
also exercise discretion in favour of such litigant, the same will
send a message that simultaneously with taking recourse to law,
illegality can also be indulged in and the same will result in
chaos in the society and against which the Supreme Court has
repeatedly warned by holding in S.P. Chengalvaraya Naidu
Vs. Jagannath AIR 1994 SC 853, Dalip Singh Vs. State of U.P.
(2010) 2 SCC 114 and Bandhua Mukti Morcha Vs. Union of
India (1984) 3 SCC 161 that the Courts should not lend their
assistance to landgrabbers. The action of the decree holder is
nothing less than land grabbing. Reference in this regard may
further be made to Ashok Kapoor Vs. Municipal Corporation
of Delhi 2014 SCC OnLine Del 2523 and New Era Impex
(India) Pvt. Ltd. Vs. Oriole Exports Private Ltd. 234 (2016)
DLT 615.
F. There is merit also in the contention of the counsel for the
judgment debtor that there is absolutely nothing on record to
show that the decree holder was even possessed of the balance
amount of Rs.33 lacs before the stipulated date for payment.
G. The decree holder, even when came for execution, did not
apply for extension of time for payment of the balance sale
consideration. On the contrary, the decree holder took it as a
right, that even without complying with the terms of its
obligations under the Settlement Agreement, the decree holder
was entitled to execute the same. Absolutely nothing has come
before the Court about the reasons if any for such default of the
decree holder and no application for extension of time or prayer
in this regard was made in the execution.
H. The decree holder being itself in violation and breach of terms
and conditions of the decree sheet, is not found entitled to
execution.
33. Accordingly, the Execution Petition is dismissed.
34. The suit file be called for and the decree under execution is ordered to
stand modified, by rescinding the Agreement to Sell of which specific
performance was sought as well as the Settlement Agreement dated 3rd May,
2018 and the decree for specific performance is substituted by a decree of:-
(i) rescission of the Settlement Agreement dated 3rd May, 2018
and the Agreement to Sell dated 9th June, 2014 of which
specific performance was sought;
(ii) mandatory injunction directing the decree holder to put the
judgment debtor into vacant peaceful physical possession of the
first, second and third floors of Property No.8981, Naya
Mohalla, Pul Bangash, Delhi; and,
(iii) mandatory injunction directing the judgment debtor to, at the
time of delivery of possession by the decree holder of the first,
second and third floors of Property No.8981, Naya Mohalla,
Pul Bangash, Delhi, out of the total consideration received till
now of Rs.97 lacs, refund a sum of Rs.87 lacs, with Rs.10 lacs
being deducted towards forfeiture for breach of contract and
costs of litigation.
35. A decree in terms of above be drawn up.
36. A copy of this order be also placed on the file of CS(OS)
No.603/2017.
RAJIV SAHAI ENDLAW, J.
MAY 02, 2019
„pp‟
(corrected & released on 18th May, 2019)
