Gold Coins Hotels And Resorts ... vs Sri Mohammed Nissar
2023 Latest Caselaw 35 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 2ND DAY OF JANUARY, 2023

                         BEFORE

         THE HON'BLE MR. JUSTICE R.NATARAJ

     WRIT PETITION NO.12630 OF 2013 (GM-CPC)
                      C/W
     WRIT PETITION NO.12864 OF 2013 (GM-CPC)

BETWEEN:

GOLD COINS HOTELS AND RESORTS LIMITED
NOW KNOWN AS
M/S RENOWN HOTELS AND RESORTS PVT. LTD.,
HAVING ITS REGISTERED OFFICE,
AT NO.50, GOLD TOWER,
RESIDENCY ROAD,
BANGALORE-560025.
REPRESENTED BY ITS DIRECTOR,
MR. CHETAN P.TAYAL.
AGE: 59 YEARS
                                           ...PETITIONER
                                               (COMMON)

(BY SRI. V. LAKSHMINARYANA, SENIOR ADVOCATE FOR
    SMT. ANUSHA L., ADVOCATE)

AND:

1.     SRI. MOHAMMED NISSAR
       S/O LATE MOHAMMED KHALLEL,
       AGED ABOUT 57 YEARS,

2.     SMT. ABIDA NAHID
       W/O MOHAMMED NISSAR,
       AGED ABOUT 55 YEARS,

       BOTH ARE R/A FLAT NO.G-3,
                             2


     GARDEN APARTMENTS,
     VITTAL MALYA ROAD,
     BANGALORE-560001

3.   SRI. L. CHATURBHUJ
     S/O LATE LUNIDARAM,
     AGED ABOUT 63 YEARS,

4.   SMT. C. MAYA
     W/O L. CHATURBHUJ,
     AGED ABOUT 58 YEARS,

     BOTH ARE R/A NO.22,
     1ST FLOOR, 2ND MAIN,
     SRINARAYAN CHAMBERS,
     SUDHAMNAGAR,
     BANGALORE-560027.
                                         ...RESPONDENTS
                                             (COMMON)

(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR RESPONDENT
NOS.1 AND 2;
SRI. B.M.ARUN, ADVOCATE FOR RESPONDENT NO.3 AND 4)


IN W.P.NO.12630/2013:

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 08.03.2013, IN E.P.NO.1566/12, A COPY OF
WHICH IS PRODUCED AT ANNEXURE-J, APPLICATION FILED BY
THE PETITIONER TO DISMISS THE EXECUTION PETITION AS
PREMATURE BE ALLOWED AS PRAYED FOR AND QUASH ALL
FURTHER PROCEEDINGS IN E.P.NO.1566/12 ON THE FILE OF X
ADDL. CITY CIVIL JUDGE, (CCH NO.26) BANGALORE OR
ALTERNATIVELY DIRECT THE EXECUTING COURT TO CONSIDER
AND DISPOSE OF THE THREE APPLICATIONS FILED BY THE
PETITIONER, COPIES OF WHICH ARE PRODUCED AT
ANNEXURES-D, E AND F RESPECTIVELY, IN ACCORDANCE WITH
LAW.
                                3


IN W.P.NO.12864/2013:

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 13.03.2013, IN E.P.NO.1566/12, ON THE
FILE OF THE X ADDL. CITY CIVIL JUDGE, (CCH NO.26)
BANGALORE PRODUCED AT ANNEXURE-C AND ALLOW THE
APPLICATION FILED BY THE PETITIONER UNDER ORDER 21
RULE 15 READ WITH SECTION 151 CPC.

     THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 30.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-

                          ORDER

The learned Senior counsel appearing for the

petitioner and the learned counsel for the respondents

were informed that I had a faint memory of having

appeared for either of the parties and requested both of

them to ascertain the same from the record. However,

both of them after obtaining instructions from their clients

submitted that they had never engaged me as their

counsel. Since both the learned counsel reposed faith in

the Court and submitted that the petitions may be taken

up for consideration, these petitions are taken up for final

disposal.

2. W.P.No.12630/2013 is filed by the judgment

debtor in E.P.No.1566/2012 on the file of the X Addl.City

Civil and Sessions Judge, Bengaluru (CCH-26), challenging

the order dated 08.03.2013 by which, an application filed

by the judgment debtor to dismiss the execution petition

was rejected with cost of Rs.2,000/-.

3. W.P.No.12864/2013 is filed by the judgment

debtor in E.P.No.1566/2012 challenging the order dated

13.03.2013 passed by the X Addl. City Civil Judge,

Bengaluru, by which, despite an application filed by it

under Order XXI Rule 45 of the Code of Civil Procedure,

1908 (henceforth referred to as 'CPC' for short), the

executing Court directed execution of the sale deed in

favour of the decree holder.

4. The petitioner in these petitions filed a suit in

O.S.No.6664/2004 before the X Addl. City Civil and

Sessions Judge, Bengaluru, for eviction of the respondents.

The said suit was decreed and was challenged by the

respondents in RFA Nos.2110/2006, 2027/2006 and

2028/2006. A settlement was entered into before this

Court. The respondent Nos.1 and 2 contended that the

petitioner did not comply with their obligations as per

settlement, which forced them to seek execution of the

decree in E.P.No.1566/2012. The petitioner objected to the

enforcement of the settlement, which was rejected by the

Executing Court in terms of the order dated 12.12.2012.

This was challenged before this Court in

W.P.No.51587/2012 and W.P.No.51663/2012. This Court

dismissed the said writ petitions in terms of the order

dated 12.02.2013 and it was thereafter challenged

unsuccessfully before the Hon'ble Apex Court in SLP

Nos.10049-50/2013. In the meanwhile, the petitioner filed

an application to recall the order dated 13.04.2010

accepting the compromise in RFA Nos.2110/2006,

2027/2006 and 2028/2006. Later, the petitioner filed three

applications in the execution petition, one of which was

filed to club E.P.Nos.1566/2012 and 2565/2012 and the

second was to adjourn E.P.No.1566/2012 to await

outcome of SLP Nos.10049-50/2013 and to await the order

passed on the application filed in RFA No.2110/2006 and

other appeals. The petitioner alleged that the applications

are not disposed off. Later, the petitioner filed another

application to dismiss the execution as premature, which

was rejected in terms of the order dated 08.03.2013,

which is the subject matter of W.P.No.12630/2013.

5. Thereafter, the petitioner again another

application under Order XXI Rule 45 read with Section 151

of CPC to "to drop the proceedings in the execution

petition or in the alternative to direct the decree holders to

serve the draft sale deed on the judgment debtors so that

the judgment debtors can file objections". The executing

Court took this application on record and held that the

Court had already passed an order directing execution of

the sale deed. This order is challenged in

W.P.No.12864/2013.

6. The Learned Senior counsel representing the

petitioner submitted that the respondent No.1 did not

perform his part of the contract and therefore, the

compromise decree was inexecutable. He contended that

the executing Court committed an error in rejecting the

application. He also submitted that the Special Leave

Petition filed before the Hon'ble Apex Court was disposed

off.

7. Per contra, learned counsel for the respondent

Nos.1 and 2 submitted that the petitioner is in the habit of

keeping the litigation alive. She submitted that the

application filed by the petitioner in RFA No.2110/2006 and

other appeals, was rejected by this Court in terms of the

order dated 13.03.2013. She submitted that in compliance

with the compromise entered into, the respondent Nos.1

and 2 have complied with their part of the obligation by

executing appropriate documents and surrendering vacant

possession of the premises Nos.1, 2 and 3. Learned

counsel invited the attention of the Court to a memo filed

before the executing Court in E.P.No.1566/2012 handing

over two keys of the first floor premises. She has also

placed on record an indemnity bond executed in

compliance with their obligations and the compromise.

Hence, she submitted that the present petitions are

another exercise by the petitioner to keep the issue

pending. In the meanwhile, she submitted that the

Director of the petitioner, his wife and son have executed a

deed of release in respect of the property in question on

06.04.2013 and therefore, the conduct of the petitioner is

clearly contumacious.

8. I have considered the submissions made by

the learned Senior counsel representing the petitioner and

the learned counsel for the respondents.

9. It is evident from the records placed before

this Court that O.S.No.6664/2004 was filed by the

petitioner herein against the respondents for the relief of

ejectment, while O.S.Nos.7199/2003 and 7200/2003 were

filed by the petitioner for ejectment of the other

respondents. The suits after contest were decreed

following which RFA Nos.2027/2006, 2028/2006 and

2110/2006 were filed before this Court. Later, the parties

entered into a compromise in terms of which, the

respondent Nos.1 and 2 acknowledged that the petitioner

is the absolute owner of the property known as

'Radhakrishna Complex' and it agreed to convey 2,000

sq.ft. in the second floor of the said complex to the

respondent Nos.1 and 2. The respondent Nos.1 and 2 were

required to deliver the possession of the basement and

first floor offices in the building known as 'Gold Tower' at

Residential Road, Bengaluru. Likewise, the petitioner had

agreed to transfer the property bearing Flat Nos.201 and

205 at Saleh Arcadia, Richmond Town, Bengaluru. The

respondent Nos.1 and 2 agreed to return all the pronotes,

cheques etc., It was specifically agreed that the

compromise terms would be performed within a week from

the date of the compromise, failing which, either party

were entitled to enforce the compromise. The respondents

stated that they had no objection for the petitioner to take

possession of the premises on the 3rd floor. Likewise, all

criminal cases filed against each other would be settled

unconditionally. The petitioner also undertook to withdraw

all cases against each other. Likewise, certain

understandings were entered into in terms of which some

of the respondents transferred their shareholdings in the

petitioner. RFA Nos.2027/2006, 2028/2006 and

2110/2006 were disposed off in terms of this compromise.

10. The respondent Nos.1 and 2 filed

E.P.No.1566/2012 to enforce the said compromise decree,

which was objected by the petitioner herein contending

that the respondents failed to perform their part of the

contract. The petitioner herein repeatedly filed objections

to the execution petition. The executing Court rejected the

objections of the petitioner, which was challenged before

this Court in W.P.Nos.51587/2012 and 51663/2012. This

Court in terms of the order dated 12.02.2013 dismissed

the writ petitions holding that the executing court had not

transgressed any provision of law. The petitioner has

thereafter unsuccessfully challenged this order before the

Hon'ble Apex Court in SLP Nos.10049-50/2013. The

petitioner thereafter filed an application in RFA

No.2110/2006 to recall the compromise, which too was

dismissed on 13.03.2013. The petitioner challenged this

order before the Hon'ble Apex Court in SLP

No.13655/2013, which also came to be dismissed. In the

meanwhile, the petitioner represented by its Director

executed a deed of release dated 06.04.2013 in respect of

two flats bearing Nos.201 and 205 at Saleh Arcadia

Apartments in favour of his son and daughter. Even after

exhausting all the remedies, the petitioner filed an

application under Section 151 of CPC contending that the

execution petition was pre-mature and not maintainable in

law on the ground that the compromise decree was not in

respect of the suit property but was in respect of a

different property. It was also contended that since the

compromise decree envisaged creation of a new title, it

had to be compulsorily registered. Further, it was claimed

that the respondents did not perform their part of the

contract. The executing Court held that a similar question

was raised by the petitioner and that the same was

rejected by an order dated 12.12.2012, which was

challenged before this Court in W.P.Nos.51587/2012 and

51663/2012 and the said writ petitions were dismissed by

this Court. The executing Court held that the decree holder

had complied most of the obligations and it was due to the

obstruction caused by the petitioner that some of the

obligations were yet to be performed. The executing Court

therefore held that the petitioner was protracting the

execution petition on one or other ground and hence,

rejected the application in terms of the order dated

08.03.2013. Later, the executing Court directed the

execution of the sale deed in favour of the respondent

Nos.1 and 2. Thereafter, the petitioner again another

application under Order XXI Rule 45 read with Section 151

of CPC to "to drop the proceedings in the execution

petition or in the alternative to direct the decree holders to

serve the draft sale deed on the judgment debtors so that

the judgment debtors can file objections". The executing

Court took this application on record and held that the

Court had already passed an order directing execution of

the sale deed. These two orders are challenged in these

two writ petitions.

11. Though the learned Senior counsel appearing

for the petitioner proposed to address the Court on various

questions of law, he did not dispute the fact that the

Director of the petitioner had released the flats bearing

Nos.201 and 205 in favour of his son and daughter in

absolute violation of the compromise which warranted the

petitioner to convey them to the respondent Nos.1 and 2.

He also did not dispute the fact that C.C.No.24897/2003

and C.C.No.2381/2004 were disposed off as agreed under

the compromise. Likewise, the learned Senior counsel did

not dispute the fact that the respondent Nos.1 and 2 had

delivered possession of the basement and first floor

against receipt of a sum of Rs.10,00,000/- by demand

draft dated 24.07.2010. He also did not dispute the fact

that 35 pronotes were delivered up by the respondents for

safe custody of the Trial Court and the respondent No.1

had indemnified the petitioner against all consequences in

respect of a cheque bearing No.494416 for a sum of

Rs.90,00,000/-. Further, the suit filed in

O.S.No.15859/2006 before the City Civil Judge, Mayo Hall

Unit was withdrawn by the respondent No.1 and

C.C.No.30960/2006 was withdrawn and W.A.No.226/2008

filed by the respondent No.1 was dismissed. The

respondent No.1 also withdrew all allegations in contempt

proceedings before this Court in C.C.C.No.1/2007, which

was dropped in terms of the order dated 23.03.2010 and

the criminal proceedings were quashed by this Court in

Crl.P.Nos.3111/2010 and 3112/2010. Likewise, the

shareholdings in the petitioner - company were transferred

in favour of one of the Directors of the petitioner -

Company.

12. The above facts demonstrably indicate that the

respondent Nos.1 and 2 have complied their part of the

compromise and it is for the petitioner to comply its part of

the obligation. The fact that the Director of the petitioner

have released the two flats in favour of his daughter and

son, has proved beyond doubt the oblique intent of the

petitioner to avoid performance of its obligations.

13. In that view of the matter, no indulgence need

be shown to the petitioner in these writ petitions.

Hence, these writ petitions are dismissed.

Sd/-

JUDGE

PMR