Punjab-Haryana High Court
Balbir Singh vs Jagjit Singh And Another on 17 December, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.3965 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3965 of 2012 (O & M)
Reserved on : 24.10.2013
Date of Decision: 17.12.2013
Balbir Singh
....Petitioner
Versus
Jagjit Singh and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Argued by: Mr. R.K.Gupta, Advocate,
for the petitioner.
Mr. Kanwaljit Singh, Sr. Advocate,
with Mr. Siddharth Gupta, Advocate,
for the respondents.
****
PARAMJEET SINGH, J.
Instant civil revision has been filed under Section 115 of the Code of Civil Procedure, 1908 (in short "the Code") for setting aside the order dated 18.05.2012 passed by learned Civil Judge (Jr. Divn.), Rajpura whereby objection petition filed by the petitioner-judgment debtor has been dismissed.
Succinctly, the facts giving rise to the present petition are to the effect that the petitioner is owner in possession of the land in Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 2 dispute measuring 49 bighas 16 biswas situated within the revenue limits of village Kanwarpur, Tehsil Rajpura, District Patiala. The petitioner entered into an agreement to sell the disputed land with the respondents on 06.12.2005 for a sale consideration of Rs.1,16,00,000/- and received Rs.20,00,000/- as earnest money. Since sale deed could not be executed in pursuance to the agreement to sell dated 06.12.2005, respondents filed civil suit No.299 dated 15.05.2006 for possession by way of specific performance of agreement to sell dated 06.12.2005. That suit was decreed by learned Civil Judge (Jr. Divn.), Rajpura vide judgment and decree dated 16.01.2009. Feeling aggrieved, the petitioner preferred an appeal. During the pendency of appeal, the matter was referred to the Lok Adalat as parties showed willingness for settlement. On 04.03.2010, the parties got their statements recorded before the Presiding Officer, Lok Adalat. Copies of statements have been placed on record as Annexures P-2 and P-3. In addition to the statements made by the parties before the Lok Adalat, a fresh agreement to sell in the form of compromise (Ex.C-1) was also reduced into writing and the parties agreed that in continuation of the earlier agreement dated 06.12.2005, a fresh agreement to sell was being executed in respect to the disputed land for a sale consideration of Rs.1,80,00,000/- and date for execution of sale deed was fixed as 01.09.2010. In addition to the amount of Rs.20,00,000/- paid as earnest money earlier, additional earnest money of Rs.20,00,000/- by way of cheque Nos.145061 dated 20.04.2010 and 145062 dated 20.05.2010 amounting to Rs.10,00,000/- each, was paid. Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 3 It was specifically agreed between the parties that time for execution of the sale deed was the essence of the contract and the petitioner-judgment debtor would be bound to execute the sale deed on receipt of balance sale consideration of Rs.1,40,00,000/-. It was also mentioned in the agreement that possession of the land was with a third party; litigation in this regard was pending; it would be the responsibility of the decree holders to get the possession and that sale deed transferring the ownership of disputed land would be executed by the petitioner in favour of the respondents. Copy of compromise dated 04.03.2010 submitted before the Lok Adalat as Ex.C-1 has been annexed with the revision placed as Annexure P-4. The Lok Adalat after recording the statements dismissed the appeal as compromised and made it clear that the parties shall remain bound by the terms and conditions of the compromise and passed the order dated 06.03.2010 (Annexure P-5).
It is the case of the petitioner-judgment debtor that when he presented two cheques amounting to Rs.10,00,000/- each issued by the respondents for encashment, the same were dishonoured for want of "insufficient funds" and the petitioner did not receive any additional amount of Rs.20,00,000/- as earnest money. On account of dishonouring of cheques, the petitioner filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 in the Court of learned Judicial Magistrate Ist Class, Patiala which was later on withdrawn. As per the terms of compromise dated 04.03.2010, the petitioner-judgment debtor remained present during the whole day in the Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 4 office of Sub-Registrar for executing the sale deed and got the affidavit attested in this regard, but the decree holders did not turn up and they failed to perform the contract on their part on the date fixed. After about six months, the respondents allegedly concealing the material facts and mentioning wrong averments filed an execution application for execution of the decree dated 16.01.2009. In the said execution application, the petitioner filed objections alleging that decree dated 16.01.2009 cannot be executed, as it has merged with the Award of the Lok Adalat whereby the parties are bound by the terms and conditions of the compromise dated 04.03.2010. There is a specific direction by the Lok Adalat that parties shall remain bound by the terms and conditions of the compromise dated 04.03.2010. In view of this, application for execution of decree dated 16.01.2009 needs to be dismissed as not maintainable. Executing Court without framing issues and affording opportunity to adduce evidence has dismissed the objections filed by the petitioner vide impugned order dated 18.05.2012. The impugned order has been challenged by the petitioner alleging that it is totally illegal, without jurisdiction, perverse, result of misreading of facts on record and is not sustainable in the eyes of law. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner has vehemently contended that Executing Court while dismissing the objections filed by the petitioner did not follow the procedure prescribed by law. It is the Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 5 requirement of law that Executing Court is bound to frame issues, afford opportunity to lead evidence to the parties and thereafter adjudicate the matter. The learned counsel has further contended that Award passed by the Lok Adalat is in pursuance of subsequent agreement/compromise (Ex.C-1). Its terms are relevant and as such whether there is a compliance of terms of agreement was one of the aspects which was required to be considered by the Executing Court after affording opportunity to the parties to lead evidence. The learned counsel has further contended that since two cheques amounting to Rs.10,00,000/- each were given as additional earnest money, however, the same were dishonoured, its effect was also required to be seen by the Executing Court. The learned counsel has further contended that the decree dated 16.01.2009 cannot be executed in any circumstance as it has merged into the Award dated 06.03.2010 passed by the Lok Adalat. As such, only the Award of the Lok Adalat can be executed, if at all it is to be executed. It will also be subject to affording opportunity to lead evidence to the parties. In support of his contentions, the learned counsel has relied upon Sheo Dayal vs. Om Parkash 1992 (1) R.R.R. 349, M.K.Watts vs. Usha Sharma and another AIR 2004 Punjab and Haryana 295, Prahlad and others vs. Laddevi and others AIR 2007 Rajasthan 166, Smt. Narrasamma vs. Nirannanilatha Mommen John 2007(2) Civil Court Cases 415, M/s. Woolways Shop vs. Central Bank of India and others Vol.XCVI -(1989-2) The Punjab Law Reporter 559, Chhotu vs. Chhotu 1988 Civil Court Cases 501, Novartis AG vs. Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 6 Wander Pvt. Ltd. AIR 2005 Delhi 154, Kutcherlakota Vijayalakshmi vs. Radimeti Rajaratnamba and others AIR 1991 A.P 50 and Vidhyadhar vs. Mankikrao and another AIR 1999 SC 1441.
Per contra, learned senior counsel for the respondents has vehemently contended that decree dated 16.01.2009 is subsisting since the appeal was withdrawn by the petitioner and it can be executed. The learned senior counsel has further contended that it has been specifically mentioned in execution application that the respondents were ready to pay the balance amount as per the compromise after deducting the costs. The Executing Court has proceeded in accordance with law. The objections have been rightly dismissed which were filed only to delay the proceedings. In support of his contentions, the learned senior counsel has relied upon Naresh Kumar vs. Narinder Singh and another 2012 (1) PLR 199, Ellora Chemicals and another vs. Panchavati Cooperative Housing Society Limited 2012 (4) BCR 386, Aklema Bibi vs. Mahuddin Sk. and others 2011 (4) ICC 587, K.N.Govindan Kutty Menon vs. C.D.Shaji 2012 (1) Civil Court Cases 1 (S.C.).
I have considered the rival contentions of learned counsel for the parties.
Admitted facts are to the effect that decree dated 16.01.2009 was passed by the trial Court, appeal preferred by the petitioner was dismissed as withdrawn in view of compromise before the Lok Adalat and the Lok Adalat passed the Award dated 06.03.2010 specifically holding that the parties shall abide by the terms and Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 7 conditions of the compromise. Statements got recorded before the Lok Adalat by the parties as well as compromise dated 04.03.2010 (Ex.C-I) clearly indicate that compromise (Ex.C-1) was in the nature of fresh agreement which is part of the Award dated 06.03.2010. In view of Section 21 of the Legal Services Authorities Act,1987, the award passed by the Lok Adalat shall be deemed to be a decree of civil Court and is final and binding on all the parties.
There is no dispute regarding this proposition of law, but the effect of compromise is to be seen by the parties specifically in view of the fact that the petitioner has alleged violation of the terms of compromise i.e. additional earnest money which was allegedly paid through cheques, but could not be realized, as the cheques were dishonoured and ultimately a complaint under Sections 138/142 of the Negotiable Instruments Act, 1881 was also filed by the petitioner. Since the dispute is with regard to the compliance of terms of compromise (Ex.C-1) which is in the nature of fresh agreement capable of being specifically performed and is in continuation of the earlier existing agreement on the basis of which the decree dated 16.01.2009 was passed, the terms of compromise are required to be examined and this can only be done after framing the issues and affording opportunity to parties to lead evidence. Keeping in view, this Court deems it fit and proper that the Executing Court has not proceeded in accordance with law.
In view of above, the impugned order dated 18.05.2012 is Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document CR No.3965 of 2012 8 set aside. The case is remanded to the Executing Court for framing the necessary issues and to allow the parties to lead evidence and thereafter pass appropriate order in accordance with law. Parties through their counsel are directed to appear before the Executing Court on the date if already fixed or on 20.01.2014.
Anything observed herein will not affect the rights of the parties.
Disposed of in the aforementioned terms.
(Paramjeet Singh) Judge December 17, 2013 parveen kumar Kumar Parveen 2014.01.06 11:40 I attest to the accuracy and integrity of this document