Delhi District Court
Cico Technologies Limited vs M/S D.S.C. Limited on 29 May, 2024
IN THE COURT OF DISTRICT JUDGE-01
SOUTH-EAST DISTRICT, SAKET COURTS: NEW DELHI
Misc DJ 22-21
CICO TECHNOLOGIES LIMITED
... Plaintiff
Versus
M/S D.S.C. LIMITED
.... Defendant
29.05.2024
ORDER
1. The present application has been filed for the revival of the execution petition no. 78/2017 which was disposed of vide order dated 02.12.2019 with a liberty to decree holder to revive the execution proceedings in case the settlement arrived at between the parties was not complied with.
2. The above-mentioned petition was filed by the decree holder for the execution of the decree dated 30.07.2013 passed by the Hon'ble High Court of Delhi in civil suit no. 56/2011. The execution petition was initially filed in 2014 as execution no. 46/2014 before the Hon'ble High Court of Delhi. But after the change in pecuniary jurisdiction, the matter was transferred to the District Courts and was assigned by the Ld. Principal District and Sessions Judge, New Delhi to the predecessor of this Court. The execution petition was settled between the parties and application under Order XXXIII C.P.C. came to be moved which was allowed vide order dated 02.12.2019, after recording statement of the parties. As per the said order, the JD was to make a payment of Rs. 37 lakhs as full and final payment of MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 1 of 9 the execution petition in 9 cheques of different amount. The petition was disposed of with the liberty to the JD to revive the execution proceedings in case of non- compliance of the settlement arrived between the parties. It is the case of the applicant that the JD has made part payment of his liability of the settlement but has not paid an amount of Rs. 13 lakhs which was supposed to be paid in two installments of Rs. 4 lakhs each on 23.03.2020 and 23.04.2020 and Rs. 5 lakhs on 23.05.2020. As these amounts have not been paid, the DH/applicant has moved the present application for revival of the execution petition. It is stated by the applicant that the above said three cheques were presented on the due dates and all three of them got returned vide return memo dated 24.05.2020, 15.05.2020 and 12.06.2020. It is further stated that taking the ground of Covid-19 pandemic and to avoid legal consequences, the JD sent a letter requesting the DH to delay the presentation of the above-mentioned three cheques vide email dated 15.04.2020. The DH sent an email to the JD stating that cheque no. 006554 dated 23.03.2020 for an amount of Rs. 4 lakhs has been dishonored. Thereafter, the JD replied vide letter dated 23.04.2019 requesting to present the three cheques. The JD again sent a letter dated 11.06.2020 requesting that the cheques may not be presented and the letters dated 07.04.2020 and 24.04.2020 be accepted by the DH. It is stated that the JD had willfully neglected his own statement and order dated 02.12.2019 and is trying to shy away from his responsibility of making the payment at the correct time. It is further stated that on 11.06.2020, the JD through a letter offered 5 postdated cheques of different MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 2 of 9 amounts from 10.07.2020 to 10.03.2021. It is stated that the said request of the JD was completely beyond the terms of the order dated 02.12.2019 and the JD by his unilateral decision tried to alter the agreement between the parties. It is stated that in reply to letter dated 15.06.2020, the DH replied to the above-mentioned letter stating that the dishonoring of cheques was a complete and clear violation of the order of the court and the JD refused to accept the said cheques and has filed the present application for revival of the execution petition.
3. Notice was issued on the application and non applicant had appeared. Vide order dated 16.09.2022, counsel for non- applicant stated that they do not wish to file any reply to the present application and wanted to argue the matter straightaway. Thereafter, efforts of settlement were made but the matter could not be settled. Both the parties filed their written arguments and the arguments were heard at length.
4. Ld. Counsel for applicant has submitted that both the parties were bound by the order of this court dated 02.12.2019 and the non-applicant has willfully and without any cause or reason diverted from the terms of the settlement and has not complied with the terms of the settlement and as such, based upon the liberty given to the DH, the present application needs to be allowed. He has submitted that the ground taken by the non-applicant that the covid-19 pandemic was a major effect which precluded him from fulfilling his obligations in the settlement arrived between the parties is not made out as per law. It is submitted that in Delta Corporation Limited Vs. State of Goa 2023 SCC Online MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 3 of 9 BOM 781, it has been held in absence of a force majeure clause in the contract, justification of covid-19 cannot be taken by the defaulting party. Further, Ld. Counsel for applicant has relied upon judgment of Ramanand Vs. Girish Sons 2020 SCC Online DEL 635 to substantiate the claim that the arguments of the JD regarding covid-19 pandemic is not borne out of law. It is further submitted by Ld. Counsel for applicant that the settlement arrived vide order dated 02.12.2019 was a settlement which was beneficial to the JD as the DH has forgone the interest on the decreetal amount. No cause is shown by the JD/non-applicant as to the delayed payment, and as such, the present application needs to be allowed and the execution petition needs to be revived so that the applicant can get the fruits of the decree which he has been passed in his favour in the year 2013.
5. Per contra, Ld. Counsel for non-applicant/JD has submitted that as per the settlement, DH has received a substantial amount of the settlement and only part payment is left. It is stated that the same could not be paid because of the covid- 19 pandemic and the countrywide lockdown imposed in March, 2020. Ld. Counsel for non-applicant has relied upon certain circulars of Union of India issued in the month of February to June 2020 to substantiate the claim that the covid-19 pandemic will be considered as force majeure situation. He has also relied upon circular dated 23.05.2020 issued by RBI, according by way of banks were asked to reschedule loan and working capital facilities and directed the bank and other financial institutions to repayment of such loans so that the reschedule tenor of the loans begins MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 4 of 9 by three months after the moratorium period granted therein. Further, Ld. Counsel has relied upon the gazette notification dated 24.04.2020 issued byy the Ministry of Corporate Affairs which increased the limit under Section 4 of the Insolvency and Bankruptcy Code, 2016 to Rs. 1 crore for filing of matters before the Hon'ble National Company Law Tribunal. He has further relied upon various circulars issued by the District Courts, Saket whereby, cases were enmassed adjourned. He has also relied upon the following judgments:-
(i) Tuticorin Stevedores Association Vs. The Government of India & Ors MD 6818/2020.
(ii) Confederation for Concessionaire Welfare & Ors Vs. Airports Authority of India & Anr No. 2204/2021.
(iii) Small Scale Industrial Manufactures Association Vs. Union of India SCC 476/2021.
6. Ld. counsel for non-applicant has submitted that there was no mala fide intention on behalf of the JD and the amount could not be paid only on the account of covid-19 pandemic and the JD had timely requested the DH/applicant to enlarge the schedule for the same and in fact, he had offered further postdated cheques according to the liability affixed on him. In view of the above arguments, Ld. Counsel for JD has submitted that the application deserves to e dismissed as the DH himself has not taken the cheques offered by the JD for the payment which had already agreed between the parties.
7. Heard the parties. Perused the court record.
8. It is clear from the order dated 02.12.2019 that as per settlement arrived at by the parties as per the statement MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 5 of 9 schedule of payment was agreed upon between the parties. It was further agreed between the parties that the cheques were given along with the settlement would be honoured timely and in case of any default by the JD, the DH would be at liberty to revive the underlying execution petition. It is not in dispute that three cheques as mentioned herein above were not honoured. In fact, vide letter dated 07.04.2020, the non-applicant had requested for deferment of presentation of the three cheques and had requested that the three cheques be presented on 12.06.2020, 12.07.2020 and 12.08.2020. Thereafter, on 15.04.2020, the applicant apprised the JD of the dishonour of cheque no. 0065514 dated 23.03.2020 for an amount of Rs. 4 lakhs vide return memo dated 24.03.2020. On 23.04.2020, non-applicant again requested the DH to postpone the presentation of the said cheques as per the revised schedule suggested by the non-applicant in his letter dated 07.04.2020. The said request was again made vide letter dated 11.06.2020 and new schedule proposed along with five cheques from 10.07.2020 till 10.03.2021. Thereafter, the applicant vide legal notice dated 15.06.2020 refused to accept the said cheques and demanded his decreetal amount as per the decree to be paid within 15 days, failing which the DH reserved his right to revive the underlying execution petition.
9. Thus, it is clear from the above factual position that the matter was initially settled vide order dated 02.12.2019 and certain terms were agreed upon by the parties. The non- applicant has voluntarily and without the consent of the applicant sought to give new time frame for his liability and MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 6 of 9 has repeatedly given fresh time-lines for the presentation of the said cheques. However, the applicant had refused the said request of the non-applicant and had demanded that as the settlement agreement between the parties has been breached, the execution petition needs to be restored, so that he can get the decree executed. The circulars relied upon by the Ld. Counsel for non-applicant by the Reserve Bank of India have no effect in the present case as the said were issued to banks by the rules of the Reserve Bank of India. The judgments relied upon by the non-applicant, also do not come to the aid of the non-applicant. In Tuticorn Association, Madurai Bench of the Hon'ble High Court of Madras (supra) does not act to the aid of the non-applicant as the decision of the said case was based upon the facts of the case and liberty was given to the petitioners was that they could file representation for certain reliefs for covid-19 pandemic. Further, no relief was granted regarding the non- payment of the dues of the petitioner.
10.The Hon'ble High Court of Delhi Confederation for Concessionaire Welfare & Ors Vs. Airports Authority of India & Anr (supra) was seized over a dispute where a force majeure clause was present in the agreement between the parties and Hon'ble High Court of Delhi based upon the said clause decided the case. Admittedly, there is no force majeure clause in the present case and as such, the said judgment is of no use to the applicant.
11.The Hon'ble Supreme Court of India in Small Scale Industrial Manufactures Association Vs. Union of India (supra) was discussing about the moratorium on the interest MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 7 of 9 being charged by the banks on various small scale industries and does not in any way absolve the liability of the applicant due to covid-19 pandemic. Thus, the said judgment will also be of no effect in the present case.
12.The dispute was arisen as the non-applicant has not fulfilled his obligations given to this court by way of statement and order dated 02.12.2019. The said order was based upon the submissions and agreement between the parties and the same was recorded by the Ld. Predecessor court. Since, the said order was a consent order based upon the agreement between the parties, any variation of the same can be done by the mutual consent of both the parties. As it is evident from the record of the case that non-applicant had required for rescheduling of the payment but the same was not accepted by he applicant. As the parties had agreed to comply with the agreement between the parties, the said terms of the said agreement cannot be varied without the consent of both the parties. The applicant has not agreed to the change in schedule suggested by the non-applicant. What remains is that the order dated 02.12.2019 has not complied and the DH has not been able to enjoy the fruits of the decree, despite passing of over 11 years from the date of decree. Further, no ground has been shown by the non- applicant/JD as to how he could unilaterally alter the terms of the agreement, and as such, the contentions of the non- applicant cannot be accepted.
13.In terms of order dated 02.12.2019, express liberty was granted to the applicant to revive the underlying execution petition in case the terms of the settlement are not complied MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 8 of 9 with. It is clear that if terms of the agreement have not been complied with, and the applicant is within his right to get the underlying execution petition revived.
14.In view of the above discussion, the present application is allowed and Ex no. 78/17 is restored and put to its original number and position.
15.The present miscellaneous petition is disposed of in above terms.
16.File be consigned to record room after due compliance.
17.List Ex No. 78/17 on 26.07.2024.
Announced in the open
Court on 29.05.2024 (RAHUL BHATIA)
District Judge 01(SE)
Saket Courts, New Delhi
MISC DJ 22/2021 Cico Technologies Ltd. Vs. M/s D.S.C. Ltd Page No. 9 of 9