Rajasthan High Court - Jodhpur
Narayan Prakash vs Surendra Kumar & Anr on 4 January, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 3 / 2015
Narayan Prakash S/o Late Shri Ummed Raj, by caste Sunar, R/o
Killi Khana, Naya Bass, Jodhpur.
----Petitioner
Versus
1. Surendra Kumar S/o Shri Goru Ram, by caste Prajapat, r/o
Killi Khana, Naya Bass, Jodhpur.
2. The Citi Finance Consumer Finance India Limited, Branch
Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Rameshwar Hedau
For Respondent(s) : Mr. O.P. Boob
Mr. Dinesh Jyani for
Mr. Devendra Malhana
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 04/01/2018 This revision petition under Section 115 CPC is directed against order dated 11.12.2014 passed by Additional District Judge No.1, Jodhpur Metro, whereby, the application filed by the petitioner under Section 151 CPC has been rejected.
A suit filed by respondent No. 1 - Narayan Prakash, seeking specific performance of contract, came to be decreed by the trial court by its judgment and decree dated 26.09.2012. The decree- holder initiated proceedings for execution of the decree dated 26.09.2012.
During pendency of the execution proceedings, the present application under Section 151 CPC read with Section 141 CPC was filed by the judgment-debtor on 24.09.2014, inter alia, with the (2 of 15) contention that as per the terms of the decree, the plaintiff was required to make payment of Rs. 16,20,000/- to him within a period of one month, which was required to be deposited with defendant No. 2 - the Financier and the balance amount was to be paid to the judgment-debtor; the amount was to be paid by 25.10.2012 with defendant No. 2 in cash and thereafter the balance amount was to be paid to him; the terms of the decree have been violated, inasmuch as, the plaintiff alongwith the execution application filed Form No. 3 and produced a cheque in the name of judgment-debtor for a sum of Rs. 16,20,000/- requesting that the original cheque be placed in safe custody; the notice of the execution application was not received by the judgment-debtor till 17.11.2012 and the amount was not deposited with the Bank prior to 25.10.2012 and, therefore, the terms of the decree were not fulfilled. Further submissions were made that in fact the decree-holder was not even having Rs. 16,20,000/- in his bank account and, therefore, the execution proceedings deserve to be quashed and set aside.
A reply to the application was filed by the decree-holder respondent No. 1, inter alia, indicating that the cheque was deposited with the Court within one month, the property is still encumbered and that no willingness has been shown regarding execution of the sale deed, the decree-holder had made arrangement for payment of Rs. 16,20,000/- to the judgment- debtor, honouring of the cheque was decree-holder's responsibility, however, the judgment-debtor was not willing to honour the (3 of 15) decree. The High Court passed stay order in favour of the judgment debtor on 24.02.2014, which was extended till 02.04.2014; whereafter the same has not been extended. It was submitted that the entire attempt on part of the judgment-debtor- petitioner is to delay the execution proceedings and, therefore, the application deserves to be dismissed.
The trial court after hearing the parties by its impugned judgment came to the conclusion that as per the decree, the decree-holder was required to pay a sum of Rs. 16,20,000/- to the judgment-debtor by 25.10.2012, the execution application was filed on 20.10.2012, from which, it is clear that the decree-holder was willing to execute the decree within the time fixed. The decree-holder not only filed execution application on 20.10.2012, a cheque of Rs. 16,20,000/- was also produced before the Court. Though the notices of the execution were served on the judgment- debtor on 18.12.2012, however, the decree-holder cannot be punished for the same. The Court also came to the conclusion that on service of the notices of execution, the judgment-debtor could have approached the Court and accept the cheque or could have asked for the amount in cash, however, the same was not done. The request made in the execution application for keeping the cheque in safe custody cannot be taken as any intention not to pay the same to the judgment-debtor.
The executing court also was of the opinion that the allegations about the decree-holder not being in possession of sufficient amount in his bank account also cannot be (4 of 15) countenanced unless the cheque was received by the judgment- debtor and the same was dis-honoured.
Based on the said aspects, the executing court came to the conclusion that the decree-holder has shown his readiness and willingness, whereas, the judgment-debtor by his conduct has tried to avoid the same and, therefore, the amount deposited by cheque by the decree-holder was treated as a valid tender and, consequently, dismissed the application.
It is submitted by learned counsel for the petitioner that a bare look at the decree indicates that the decree-holder was required to make payment of balance consideration of Rs. 15,20,000/- + Rs. 1,00,000/- additional amount, in total a sum of Rs. 16,20,000/- to defendant No. 1 within one month and whereafter the judgment-debtor was required to execute registered sale deed. The amount of consideration was to be deposited with defendant No. 2 - Financier and rest of the amount was to be paid to the judgment-debtor. The amount of Rs. 16,20,000/- was never offered to the petitioner and an application for execution was filed alongwith a cheque of Rs. 16,20,000/- on 20.10.2012 alongwith stipulation that the cheque be placed in safe custody. It was submitted that the terms of the decree were violated by the decree-holder in first not making any offer/payment to the petitioner and then depositing the cheque with the Court with the prayer not to make payment to the judgment-debtor but to keep the cheque in the safe custody. The notices of the execution were served on the petitioner on (5 of 15) 18.12.2012 for the date 03.01.2013 by then the period as stipulated in the decree was already over.
With reference to provisions of Section 28 of the Specific Relief Act, 1963 ('the Act') it was submitted that as the decree- holder has not, within the period allowed by the decree, paid the balance consideration, which the Court had ordered him to pay, the contract stood rescinded and, therefore, the executing court should have dismissed the application for execution. It was submitted that at no stage any application was filed seeking extension of time for payment of the balance consideration as ordered by the decree and there is no extension available on record and, therefore, in absence of such an extension the decree as passed by the trial court on 26.09.2012 is rendered in- executable and, therefore, the execution proceedings cannot proceed further. It was prayed that the revision petition be allowed and the execution proceedings be dismissed.
Reliance was placed on Radhey Shyam & Ors. v. Harendra Pal Rathi : AIR 2015 Allahbad 180, P.R. Yelumalai v. N.M. Ravi :
2015 DNJ (SC) 628, Akeel Ahmed v. Bachchu : (2015) 1 RLW 13 and His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar : (1996) 4 SCC 526.
Vehemently opposing the submissions, learned counsel for decree-holder submitted that the submissions made on behalf of the petitioner-judgment-debtor are ex facie baseless and the revision petition deserves to be dismissed with heavy costs. It was submitted that the decree was passed by the trial court and (6 of 15) direction was given for payment of balance consideration of Rs. 15,20,000/- and Rs. 1,00,000/- in all a sum of Rs. 16,20,000/- to the judgment-debtor.
Admittedly, the property in question was mortgaged with respondent No. 2 institution/bank and the bank had initiated proceedings for recovery of the said amount by way of initiating proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act'), therefore, a direction was given by the trial court to the parties to deposit the outstanding of the bank and the balance amount was payable to the judgment-debtor-petitioner. The readiness and willingness of the respondent-decree-holder was apparent as even before the one month time was over, the application was filed for execution on 20.10.2012 alongwith cheque for the balance consideration as per the decree. The notices were ordered to be issued by the executing court, returnable on 25.10.2012, however, the office did not issue the notices and after the fresh notices were ordered to be issued, they were served on the judgment-debtor on 18.12.2012.
It was submitted that the deposit of the amount with the executing court was in consonance with provisions of Order XXI, Rule 1 CPC and no exception can be taken to such deposit of cheque. Submissions were also made that merely because office of the executing court did not issue notices, which were returnable on 25.10.2012 i.e. within the period stipulated in the decree, the decree-holder cannot be punished for the said act of the Court.
(7 of 15) Further submissions were made that important subsequent events have also taken place during pendency of the present revision petition, inasmuch as, the petitioner earlier filed appeal against the impugned decree, claiming himself to be a pauper whereafter the said application was not pressed and during pendency of the pauper application, the High Court stayed the execution, which on account of conduct of the applicant was vacated and no injunction is in force.
In the meanwhile as no amount was deposited with the respondent No.2 institution/bank, the proceedings under the SARFAESI Act was pressed by the Bank forcing the respondent to file S.B.C.W.P. No. 10160/2016 during pendency whereof as per the interim directions issued by the Court in the said proceedings the respondent has deposited a sum of Rs. 47,00,000/- and based on the said payment, the respondent Bank has been directed to hand over the vacant possession of the property to the decree- holder.
It was submitted that instead of a sum of Rs. 16,20,000/- as directed by the decree, the respondent has already paid a sum of Rs. 47,00,000/- and, in those circumstances, it cannot be said that there was any lack of readiness and willingness on part of the respondent in making payment of the amount of consideration. On the other hand it is the petitioner, who on account of various tactics adopted by him, has delayed the execution proceedings and payment of outstanding of the bank, resulting in such a huge (8 of 15) amount required to be paid by the decree-holder. It was prayed that the revision petition be dismissed with heavy costs.
Reliance was placed on Sardar Mohar Singh v. Mangilal alias Mangtya : (1997) 9 SCC 217, Pukhraj v. Kunji & Ors. : 1998 (2) CCC 360 (Raj.), K.R. Shankar Raj v. State Bank of India : AIR 1989 Madras 255 and Mohinder Singh & Anr. V. Satpal Singh & Ors. : 2010 (4) CCC 547.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record and made available by learned counsel for the petitioner during the course of submissions.
At the outset, it would be appropriate to notice the decree passed by the trial court on 26.09.2012, which reads as under:-
"oknh dk nkok ckcr~ rdehy eqvk;nk o dCtk izkfIr dk okn fo:) izfroknh la[;k 1 bl izdkj fMØh fd;k tkdj vkKk nh tkrh gS fd oknh] izfroknh la[;k 1 dks bdjkjukek esa of.kZr 'ks"k izfrQy jkf'k :i;s 15]20]000@& o 1]00]000@& :i;s vfrfjDr tks izfroknh la[;k 2 ds ;gka ls _.k fy;k gqvk gS mlesa C;kt esa c<+ksrjh gqbZ mlds fy;s dqy 16]20]000@& :i;s izfroknh la[;k 1 dks ,d ekg ds Hkhrj vnk djsxk rFkk mDr jkf'k vnk djus ij izfroknh la[;k 1 oknh ds i{k esa iathd`r c;ukek dk fu"iknu djsxk rFkk ;g izfrQy jkf'k nksuksa i{k izfroknh la[;k 2 ds ;gka tkdj _.k isVs ftruh jkf'k ns; gS og vnk djrs gq, 'ks"k jkf'k izfroknh la[;k 1 dks vnk dh tk;sxh rFkk iz'uxr ifjlj dk vkf/kiR; izfroknh la[;k 1 oknh dks lkSaisxk rFkk tks fdjk;snkj ds ikl ifjlj gS mldk flacksfyd its'ku oknh dk ekuk tk;sxk rFkk ekeysa ds rF; ,oa ifjfLFkfr esa i{kdkjku [kpkZ viuk viuk ogu djsaxsA** It would be important to notice that the decree dated 26.09.2012 was passed in the circumstances, wherein, the mortgagee of the subject property was also impleaded as party to the suit, certain amount of the said mortgagee bank was due in the transferor-judgment-debtor and, therefore, the Court required (9 of 15) that the amount of Rs. 16,20,000/- (balance consideration + certain amount towards interest) be paid to the judgment-debtor and on payment of said amount, he would execute the registered sale deed in favour of the plaintiff. The Court also directed that both the parties would approach the bank and after making payment of the outstanding amount towards loan, rest of the amount would be paid to the judgment-debtor-transferor and the possession of the suit property would be handed over to the plaintiff and for the property in possession of the tenant, symbolic possession whereof, would be given.
The terms of the decree reflect that while passing the decree, the trial court with an intention to ensure that decree in terms of Order XX, Rule 12A CPC is passed ordered for making payment to the judgment-debtor but it also wanted to ensure that appropriate direction in terms of Section 13(1)(c) of the Act is also passed.
The direction as given in the decree were apparently with an intention to ensure that first the outstanding amount of the Bank is paid and the balance amount be paid to the judgment-debtor- transferor. The decree-holder filed execution proceedings and attached a cheque of Rs. 16,20,000/- and produced the same before the trial court within a period of one month as stipulated in the decree on 20.10.2012. As noticed, the executing court ordered issuance of notice to the judgment-debtor, returnable on 25.10.2012 i.e. within the stipulated period of one month, however, the office did not issue the notices, which were (10 of 15) subsequently issued and ultimately served on the judgment- debtor on 18.12.2012.
The issue, which arise for consideration is as to whether the deposit of cheque by the decree-holder on 20.10.2012 with the executing court was in compliance of the decree dated 26.09.2012 passed by the trial court.
Provisions of Order XXI, Rule 1 CPC, which deal with modes of paying money under decree, in so far as relevant, read as under:-
"1. Modes of paying money under decree - (1) All money, payable under a decree shall be paid as follows, namely : -
(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
(b) out of Court, to the decree-holder by postal money order of through a bank or by any other mode wherein payment is evidenced in writing; or
(c) otherwise, as the Court which made the decree, directs.
(2) Where any payment is made under clause (a) or clause
(c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due."
A bare look at the above provisions reveals that the money payable under a decree can be paid by deposit into the Court, sent to the Court by postal money order or through a Bank and where any payment is made, the judgment-debtor is required to give notice to the decree-holder either through the Court or directly to him.
As noticed hereinbefore, the amount of Rs. 16,20,000/- payable under the decree was paid by the decree-holder through (11 of 15) bank and the notice whereof was given to the decree-holder through the Court.
Hon'ble Supreme Court in K. Saraswathy alias K. Kalpana v. P.S.S. Somasundaram Chettiar : (1989) 4 SCC 527, inter alia, laid down as under:-
"5. .........Payment by cheque is an ordinary incident of present- day life, whether commercial or private, and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course. There is nothing in the order of this Court providing that the deposit by the appellant was to be in cash. The terms of the order dated 29 November,1979 are conclusive in this respect and it is the intent of that order which will determine whether payment by cheque within the period stipulated in that order was excluded as a mode in satisfaction of the terms of Hint order. The time for payment is governed by the order of this Court.
6. It is alleged on behalf of the respondent that there was no money on the date delivery of the cheque to support payment of it and that it was subsequently when arrangements were made that the cheque was realised. Now, the High Court has not found that if the cheque was presented for encashment on the date it was delivered the cheque would not have been encashed. There is nothing to suggest also that the cheque was not honoured in due course and that the Bank had at any time declined to suggest that, under the arrangements made for payment of the cheque, even if it had been encashed on the date it was delivered the cheque would not have been encashed.............."
Though in the present case, the cheque as deposited by the decree-holder was never sought to be realized, apparently, on account of the fact that the judgment-debtor had already filed appeal before the High Court and for a brief period where was also a stay order in his favour, however, the said aspect by itself would not make the payment made by cheque by the judgment-debtor as contrary to the terms of decree as there is nothing in the decree to indicate that the payment was required to be made by the decree-holder to judgment-debtor in cash.
(12 of 15) So far as the compliance of provisions of Order XXI, Rule 1(2) CPC requiring issuance of notice to the judgment-debtor is concerned, as already noticed hereinbefore, the notices were ordered to be issued by the Court, returnable on 25.10.2012, however, for the default on part of office of the Court, the notices were not issued, for the said default on part of the office of the Court, the decree-holder cannot be made to suffer.
Further, the effect of the above Sub-Rule (2) of Rule 1 of Order XXI CPC is not that any deposit made in the Court becomes nullity or non-existent in the absence of any notice. This is besides the fact that the judgment-debtor in fact received the notice of the deposit on 18.12.2012.
In view of the above state of affairs, it is apparent that the deposit made by the respondent-judgment-debtor in the Court by a cheque was a valid deposit and contentions raised to the contrary have no substance.
So far as the submissions made by learned counsel for the petitioner based on Section 28 of the Act are concerned, the said provisions provide for deposit of the purchase money within the time stipulated by the Court and also allows for grant of further time by the Court and on failure to pay the amount within the time stipulated in the decree or further time granted by the Court, the judgment-debtor can rescind the contract.
Though the petitioner, did not make any prayer in the application before the executing court for rescinding the contract, the objections pertaining to executability of the decree on account (13 of 15) of alleged non-payment as stipulated in the decree can always be taken as such objection in terms of Section 28 of the Act, however, as already determined hereinbefore, as the deposit made by the respondent is in consonance with the provisions of CPC, the said provisions of Section 28 of the Act would have no application whatsoever.
So far as the judgments cited by learned counsel for the petitioner are concerned, in the case of Radhey Shyam (supra), Allahabad High Court came to the conclusion that as the decree- holder did not offer balance consideration within the time stipulated in the decree nor prayed for extension of time to make deposits and found that there was no explanation for delay by the decree-holder, it refused to accept the deposit made beyond the period of four years, the said judgment has no application to the facts of the present case, wherein, the amount has been deposited in terms of provisions of Order XXI, Rule 1 CPC within the stipulated time.
In the case of P.R. Yelumalai (supra), the decree passed by the Court therein specifically stipulated that the buyer was required to deposit the balance consideration by way of demand draft in Court within one month from the date of decree and it was further stipulated in the decree itself that if the balance consideration was not deposited within one month from the date of decree, the suit shall be deemed to have been dismissed and as the amount was not deposited even within the extended period, Hon'ble Supreme Court held that the dismissal was automatic.
(14 of 15) The said judgment also has no application to the facts of the present case as neither there is any stipulation regarding the mode of payment in the decree in question nor there is any default clause indicated in the decree regarding dismissal of suit on non-payment of the balance consideration.
Similarly in the case of Akeel Ahmed (supra) it was found that the application seeking extension of time was filed after eight years of passing of the decree and, therefore, the rescission of the contract under Section 28 of the Act was upheld, which aspect also has no application to the facts of the present case.
The judgment in the case of His Holiness Acharya Swami Ganesh Dassji (supra) pertained to a decree for specific performance, wherein, the distinction between readiness to perform the contract and willingness to perform the contract was discussed, which also has no application to the facts of the present case.
The subsequent events as noticed hereinbefore, wherein on account of the respondent bank proceeding under the provisions of SARFAESI Act against the judgment-debtor and the proceedings for auction of the property were initiated by the bank, wherein, the decree-holder questioned the said proceedings and during pendency of those proceedings under the orders of this court, a sum of Rs. 47,00,000/- has been deposited by the decree-holder with the respondent bank, though this Court in the order passed in the writ petition directing handing over of possession of the property to the decree-holder, has directed that the said order (15 of 15) would be subject to final decision of the writ petition as well as decision in the pending first appeal as well as the revision petition, the said aspect of payment of Rs. 47,00,000/- by the respondent No.1 cannot be lost sight off.
The very fact that the property was put to auction, even if, the petitioner herein alleges that the said situation occurred on account of alleged non-payment of decreetal amount by respondent No.1 in time, the petitioner opposed making payment of the amount by the judgment-debtor to the bank and on the other hand himself filed application under provisions of Order XLIV, Rule 1 CPC claiming himself to be pauper, the entire effort on part of the petitioner appears to be somehow frustrate the decree passed by the trial court and to ensure that the decree- holder does not get the fruits of the decree. Such conduct of the petitioner, which is apparent from the record, cannot be countenanced.
In view of the above discussion, the order passed by the executing court, rejecting the application filed by the petitioner, cannot be faulted.
Consequently, the revision petition filed by the petitioner has no substance and the same is, therefore, dismissed. No order as to costs.
(ARUN BHANSALI)J. A.K. Chouhan/-