Gujarat High Court
Vijaykumar Vithalbhai Patel vs Hasmukhbhai Dhulabhai Patel on 23 November, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/11772/2014 ORDER DATED: 23/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11772 of 2014
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VIJAYKUMAR VITHALBHAI PATEL
Versus
HASMUKHBHAI DHULABHAI PATEL
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Appearance:
MANAN K PANERI(7959) for the Petitioner(s) No. 1
MR UDIT D MEHTA(6654) for the Petitioner(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/11/2021
ORAL ORDER
1. By way of this writ application under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 24.03.2014 passed by the learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara below Exh.1 and Exh.52 rejecting the Special Execution Petition No.53 of 1995, filed by the petitioner to execute the compromise decree dated 17.02.1992 passed in Special Civil Suit No.16 of 1992,filed by the petitioner/original plaintiff in the Court of learned Civil Judge (S.D), Anand, for recovery of Rs.4,19,965.85 paisa along with interest at the rate of 18% per annum against the respondent - judgment debtor/ original defendant.
2. The facts giving rise to filing of the the present petition may be summarized as under:
2.1 The petitioner - original plaintiff filed the Special Civil Suit No.16 of 1992 in the Court of learned Civil Judge (S.D.), Anand Page 1 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 claiming Rs.5,50,000/- from the respondent - original defendant on the ground that the petitioner had advanced Rs.2,50,000/- to the respondent on 05.08.1991 at the interest rate of 18% per annum. The respondent - original defendant was a share broker and the petitioner had given him shares of various companies of market value at the relevant point of time of Rs.2,88,000/-.
2.2 It is the case of the petitioner that the petitioner was entitled to get Rs.5,38,000/- from the respondent. The respondent gave two cheques of Anand Peoples' Cooperative Bank Limited (one for Rs.3,50,000/- No.33850 dated 21.01.1992 and second one of Rs.1,50,000/- No.47066 dated 30.01.1992) drawn on Baroda Central Cooperative Bank. It is the case of the petitioner that the cheque of Rs.2,50,000/- was dishonored and therefore, the petitioner filed the Suit for recovery of Rs.5,50,000/- (Rs.5,38,000/- + interest of Rs.12,000/-) with running interest rate of 18% per annum on 24.01.1992.
2.3 The petitioner and the respondent arrived at a compromise by way of settlement which came to be reduced into writing on 17.02.1992, which was duly produced at Exh.14 in the Special Civil Suit No.16 of 1992. The learned Civil Judge (S.D), Anand by judgment and decree dated 17.02.1992 passed a decree in favour of the petitioner on the basis of the compromise to the effect that the share of 10 companies referred to in the compromise were to be returned to the petitioner by the respondent and till that point of time, the amount accrued on such shares like dividend etc. were to be given to the petitioner. It was also agreed that after deducting Page 2 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 market value of the shares referred to in the paragraph 2 of the compromise, the outstanding amount of Rs.3,15,000/- was agreed to be paid by the respondent to the petitioner on or before 31.12.1992 with interest at the rate of 18% per annum.
It was also agreed between the parties that till the respondent would make payment of the amount due and payable, the respondent would not alienate, transfer or exchange the self acquired property of the respondent and the membership Card of the Baroda Stock Exchange.
2.4 The petitioner filed Execution Petition No.53 of 1995 before the Court of learned Civil Judge (S.D.), Vadodara on 17.02.1995 for recovery of Rs.4,19,965.85 paisa on the ground that the respondent failed to adhere to the terms and conditions as stated in the deed of compromise dated 17.02.1992. It is the case of the petitioner, the petitioner was entitled to recover an amount of Rs.8,49,965.85 paisa, out of which, a sum of Rs.4,30,000/- was paid by the respondent and therefore, for the balance amount of Rs.4,19,965.85 paisa, the petition being Execution Petition No.53 of 1995 was filed.
2.5 The petitioner thereafter, filed Execution Petition No.27 of 1995 on 29.11.1995 for execution of the aforesaid compromise decree against the respondent in the Court of learned Civil Judge (S.D.), Anand for taking action against the respondent for committing breach of the condition of the compromise as the respondent had transferred the membership card of the Baroda Stock Exchange before making payment and returning the shares to the petitioner as agreed in the compromise. The respondent had filed an application below Exh.14 for stay of the Special Execution Petition No.27 of 1995 before the Page 3 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 learned Civil Judge (S.D.), Anand on the ground that the respondent - defendant has paid the decreetal amount to the petitioner - plaintiff before sale of the membership card of the Baroda Stock Exchange as per the Special Execution Petition No.53 of 1995, which came to be rejected by the Court below.
2.6 The learned Civil Judge (S.D.), Anand by order dated 03.05.2001 rejected the Execution Petition No.27 of 1995 and held that the petitioner - plaintiff failed to prove that the defendant had committed contempt of Court by committing any breach of injunction as per judgment and decree. It was further held that the petitioner- plaintiff failed to prove that the defendant did not pay the decreetal amount. It was held by the Courts below that the respondent had paid an amount of Rs.4,50,000/- by cheque on 29.07.1990 to the petitioner - plaintiff and the respondent - defendant has paid the value of shares which was to be returned to the plaintiff. The learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara by order dated 24.03.2014 dismissed the Special Execution Petition No.53 of 1995 by a common order passed below Exh.1 and Exh.52. Being aggrieved by the said order, the petitioner is here before this Court with the present petition.
3. Heard Mr. Manan K. Paneri, the learned counsel appearing for the petitioner and Mr. Harshadray A. Dave, the learned counsel appearing for the respondent.
4. Mr. Manan Paneri, the learned counsel appearing for the petitioner submitted that the order passed by the Court below in the Special Execution Petition No.53 of 1995 dismissing the Execution Petition is erroneous and the same is required to be Page 4 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 quashed and set aside. Mr. Paneri, submitted that the Court below has erred in relying upon the order dated 03.05.2001 whereby the learned Senior Civil Judge, Anand had dismissed the petition relying upon Section 11 explanation 7 of the Code of Civil Procedure, 1908 invoking principles of res judicata. Mr. Paneri, submitted that the present writ application would not suffer from the principle of res judicata and that Special Execution Petition No.53 of 1995 could not have been dismissed on the ground of res judicata.
5. Mr. Harshadray Dave, the learned counsel appearing for the respondent submitted that the Court below has committed no error in dismissing the impugned application. Mr. Dave, submitted that there was no breach committed by the respondent. The respondent had honoured the compromise decree and paid Rs.4,50,000/- in compliance with the compromise/settlement dated 17.02.1992.
Analysis:
6. The Court below recorded compromise decree executed between the parties below Exh.14 and a decree to that effect also came to be passed by the Court below in terms of the settlement dated 17.02.1992. The settlement arrived at between the parties reads thus: (true translation) "Annexure - B Exhibit - 14.
In the Court of Ld. Civil Judge (Senior Division), Anand.
Spc. Suit No - 16/92.
Plaintiff : Vijaybhai Viththtalbhai Patel Vs. Respondent : Hasmukhbhai Dhulabhai Patel Page 5 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 We, the parties, state to the Hon'ble Court by submitting the following compromise pursish that;
(1) Since the suit of the plaintiff is true, the respondent accepts it.
(2) The shares given by the plaintiff to the respondent shall be returned to the plaintiff by the respondent in the following manner.
Sr. Name of Company Number Date of
No of Return
Shares
1 Nahar Spinning 100 15/03/92
2 Bodhgaya Ceramic 1000 March - 92
3 Super House 200 April - 92
4 Hind Fluoro Carbon 300 ''
5 Neera Pulp 500 ''
6 Reliance 50 May - 92
7 Kirloskar Warner 200 June - 92
8 Nivas Spinning 500 ''
9 Richiman Silk 400 ''
10 B and A Shakes 500 ''
(3) Since the plaintiff is rightful to get all the amounts
such as dividend, bonus rights etc. admissible on the shares from the companies of the said shares until i.e. during the time when the respondent return the shares mentioned in Para - 2 to the plaintiff, the same shall be given to the plaintiff by the respondent within 10 days of their receipt.
(4) After deducting the total price of the shares mentioned on para - 2, which are to be returned, from the total suit amount Rs. 5,50,000/-, the respondent shall pay to the plaintiff by 31/12/92 the remaining amount of Rs. 3,15,000/- and the interest at the rate of 18% on the said Rs. 3,15,000/- calculating from 17/02/92 to the date of return.
(5) If the respondent does not act as stated above i.e. breaches it, the plaintiff shall recover the total remaining price of the shares to be returned and remaining amount out of Rs. 3,15,000/-, including the interest at the rate of 18% on the same, by selling the property with the independent ownership of the respondent mentioned in the suit or by filing the execution against the respondent after deducting the price of the shares returned to the plaintiff by the respondent and the amount paid to the plaintiff.
(6) A permanent injunction order shall remain in existence till the time the respondent returns and pay the above mentioned shares and amount to the plaintiff, the respondent shall not transfer or get transferred, sell or get sold, mortgage, gift, charge, lien etc. the house of the independent ownership of Page 6 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 the respondent and the member card of the Baroda Stock Exchange, and also the same shall not be disposed of through will.
(7) The respondent shall give a written statement to the plaintiff mentioning the detail of the shares returned by the respondent to the plaintiff and the detail of the cash payment of Rs.3,15,000/- and the interest thereupon at the above mentioned rate. The transaction shall be considered to be taken place through a written statement only.
(8) At the time when the respondent returns 1000 shares of Bodhgaya to the plaintiff, the plaintiff shall give back the stamp of (illegible) 100, the stamp of Rs. 10 and 1 cheque to the respondent which have been given by the respondent to him.
(9) It is prayed that, since the said compromise has been arrived at before the respondent gave his statement, an order for the refund of 2/3 court fee be passed in the interest of justice and a certificate in that regard be issued in the name of the advocate for plaintiff, Mr. M.J. Thakkar.
As the plaintiff and the respondent made the above mentioned compromise with full consciousness after reading and understanding, it is acceptable to the parties and the signatures of the same have been put below it. It is requested that a decree be passed in this regard.
Date: 17/02/92. Signature (Illegible) Signature (Illegible)"
7. The Execution Court in Special Execution Petition No.27 of 1995 framed the following issues:
"1. Whether the plaintiff proves that the defendant has committed contempt of Court by making breach of injunction as per judgment and decree?
2. Whether the plaintiff proves that, the defendant has not paid the decretal amount to the plaintiff?
3. Whether the defendant proves that he has given a cheque of Rs.4,50,000/- dated 29.07.93 to the plaintiff?
4. Whether the defendant proves that he has also paid the value of shares, which were to be returned to the plaintiff?
5. Whether the defendant is entitled to get Rs.25,000/- towards the special compensatory cost from the plaintiff?
6. What Order?"Page 7 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022
C/SCA/11772/2014 ORDER DATED: 23/11/2021
8. While dealing with the said issues, more particularly, issue nos.1 to 4 the Court below recorded/held that the plaintiff could have asked this relief of contempt of Court in the previous Execution Petition No.53 of 1995 at Vadodara but instead of moving the Vadodara Court, the plaintiff has filed this subsequent execution petition and prayed for legal actions against the defendant for contempt of Court and therefore, in view of the above discussion, and looking to the facts and circumstances of this Execution Petition, the plaintiff has failed to prove that defendant has not paid the decreetal amount before the transfer of membership card and therefore, the plaintiff has also failed to prove that the defendant has committed breach of injunction as per judgment and decree and from the evidence on record, it is proved that the defendant has paid Rs.4,50,000/- and it is also proved that the defendant has given back shares of the plaintiff as per the agreement at Exh.61 and thereby, answered issue nos.1 and 2 in the negative and issue nos.3 and 4 in the affirmative.
9. In the impugned order in Sp.D.No.53/1995, the Court recorded the findings considering the issues as recorded in the impugned order passed below Exh.1 in the Special Execution Petition No.27 of 1995 rejected the said application on 24.03.2014. In view of this Court, the parties arrived at an amicable settlement and entered into a settlement/compromise deed duly reduced into writing on 17.02.1992 and a decree came to be passed based on the said compromise deed on the even date in Sp.C.S. No.16 of 1992. The respondent honoured the compromise and accordingly paid Rs.4,50,000/- to the petitioner - plaintiff. The Court below in the Special Execution Petition No.27 of 1995 rejected the Page 8 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 application filed by the petitioner and held that the respondent had honoured the settlement deed dated 17.02.1992 and therefore, the said application came to be dismissed. The said application has attained finality. The petitioner choose not to challenge the order passed by the Executing Court in Execution Petition No.27 of 1995 and the same has attained finality. In view of this Court, the petitioner is estopped from filing the second application seeking recovery of Rs.11,33,045/-till 18.09.2010. The Court below rejected the Execution application on the ground that the second application being No.53 of 1995 is barred by the principle of res judicata in view of the fact that the order passed in Execution Petition No.27 of 1995 remained unchallenged and relying on the decree passed in Special Civil Suit No.16 of 1992, the decree holder is barred by the principle of constructive res judicata under Section 11, Explanation 7 of the Code of Civil Procedure, 1908.
9.1 In view this Court, the decree passed in Special Civil Suit No.16 of 1992 was a compromise decree. The compromise decree would not bar filing of the second application in view of the fact that it is not a decision of the Court and the principle of res judicata would not be applicable. However, in view of this Court, as discussed earlier the compromise decree dated 17.02.1992 in Sp.C.S. 16 of 1992 creates an estoppel by the conduct of the parties as also the Ex. Petition No.27 of 1995 having attained finality and under such circumstances, the petitioner was estopped from initiating subsequent application i.e. impugned Execution Petition No.53 of 1995.
9.2 The Supreme Court in case of The Jamia Masjid vs. K.V. Page 9 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022 C/SCA/11772/2014 ORDER DATED: 23/11/2021 Rudrappa (Since Dead) by L.Rs. and Ors. reported in AIR 2021 SC 4523, in paragraph 46 held as under:
"46. It is contended by the counsel for the appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao30 and Sunderabai v. Devaji Shankar Deshpande31, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:
"12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the CPC would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the CPC at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:
"The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum."
10. In view of the aforesaid discussion, this Court is not inclined to entertain the present writ application and exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. In the result, this writ application fails and is hereby dismissed.
(VAIBHAVI D. NANAVATI,J) NEHA Page 10 of 10 Downloaded on : Wed Jan 12 03:46:34 IST 2022