Delhi High Court
Gopal Das Estates & Housing Pvt. Ltd. vs National Insurance Co. Ltd. on 29 April, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ Ex. P. No.59/2008
% Judgment reserved on : 24th April, 2009
Judgment pronounced on : 29th April, 2009
Gopal Das Estates & Housing Pvt. Ltd. ..... Decree Holder
Through : Mr. V.K. Makhija, Sr. Adv. with
Mr. Naresh Thanai, Adv.
versus
National Insurance Com. Ltd. .... Judgment Debtor
Through : Mr. Somesh Arora, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. In the present execution petition, the decree-holder prays for executing the order and decree dated 25 th May, 2000 passed by this court by attachment of space measuring 1203 sq. ft on 12 th Floor in Dr. Gopal Das Bhawan, 28, Barakhamba Road, New Delhi by issuance of warrants of attachment and possession. It is further prayed that the Executive Officer of the Judgment Debtor be directed to handover possession to the decree-holder through its Managing Director and to handover the keys of the premises and to pay mesne profits at the market rate @ Rs.250 per sq. ft. with effect from 1st January, 2008 till the Ex. P. No.59/2008 Page 1 of 9 Judgment debtor vacates and hands over the possession in terms of the compromise decree dated 26th May, 2000.
2. During the course of hearing, learned counsel for the decree- holder has given up the prayer for mesne profits as prayed in the Execution petition and insists on other reliefs as mentioned in the prayer clause of the Execution petition.
3. A joint application being I.A.No.5075/2000 was filed by the parties to record settlement under Order 23 Rule 3 and Section 151 CPC in the suit. The said application was signed by both the parties as well as their respective counsel. Affidavits in support of the said application were also filed. The terms of settlement were mentioned in Para 2 of the said application. The same are reproduced herein-below:-
―2. That the parties have entered into an Agreement of Settlement and the terms of the settlement are record hereunder :-
i) The Defendant Company would surrender 1800 sq. ft.
carpet area (as shown red in the site plan annexed) which is currently occupied by the Branch Office, Barakhamba Road and would retain 1203 sq. ft. carpet area (shown green in the site plan annexed) which is currently occupied by Direct Agent Branch Office attached to DO- 4.
ii) The time for vacating the 1800 sq. ft. carpet area would be 15 months from the date of recording settlement. It is, however, agreed that in case the defendant company finds a suitable alternative space prior to 15 months, the said premises would be vacated even prior to 15 months and for that the defendant company would make earnest effort to look for an alternative space and as soon as they are able to locate an alternative premises, the premises in question would be vacated. However, on the expiry of 15 months period, the defendant company would handover the peaceful and vacant possession of the said 1800 sq. ft. carpet area to the plaintiff.
iii) For the premises measuring 1800 sq. ft. which the defendants are surrendering, the rate of rent again Ex. P. No.59/2008 Page 2 of 9 would be Rs.30/- per sq. ft. (carpet area) with effect from 01.01.99.
iv) For the premises retained by the defendant company measuring 1203 sq. ft. an Agreement would be executed between the parties within 30 days with effect from 01.01.99 for the exact area initially for a period of three years with the rent of Rs.30/- per sq. ft. (carpet area) per month. The lease would be renewable twice for a period of 3 years each with an escalation in rent by 15% after every three years, i.e. the total period would be for 9 years.
v) The defendant company would pay the arrears of enhanced rent i.e. difference of rent paid and that payable @ Rs.30% per sq. ft. w.e.f. 01.01.99 immediately on recording of the settlement. The rate of rent as stated above would be Rs.30% per sq. ft. of the actual carpet area surrendered and retained by them.
vi) That the plaintiff would not be entitled to any further amount by way of any mesne profit and/or damages as claimed in the suit.
vii) That the parties will bear their own costs.‖
4. On the above said application, the following order was passed on 26th May, 2000:-
―26.05.2000 Present : Mr. Kishore Rawat for the defendant I.A. No.5075/2000 This is a joint application under Order 23 Rule 3 CPC. Learned counsel for the parties state that they have entered into a settlement and that the parties will be bound by the terms and conditions of the settlement. Possibly a decree cannot be passed as it appears that a fresh tenancy is created in respect of two portions. In view of this learned counsel for the plaintiff states that in view of the compromise arrived at between the parties the suit may be dismissed as withdrawn. This application is allowed to this extent.
Application stands disposed of.S. No.783/96
Suit of the plaintiff is dismissed as withdrawn leaving the parties to bear their own costs.
MAY 26, 2000 J.B. Goel, J.
ms‖
Ex. P. No.59/2008 Page 3 of 9
5. It is the admitted position between the parties that as per clause (iv), the lease deed has not been executed between the parties.
The present petition has been opposed by the Judgment debtor on various grounds by filing the reply. One of the grounds raised is that the present execution petition does not lie as per law as the execution can only be filed where a decree has been passed by the court. In the present case the order dated 26th May, 2000 was passed on the basis of compromise arrived between the parties. However, the suit of the plaintiff/decree-holder was dismissed as withdrawn by this court which means that the order passed by this court cannot be termed as an order as defined under Section 2(14) of the Code of Civil Procedure, 1908. The decree-holder is seeking execution to take advantage of his own wrong as according to clauses (i) to (iv) of order dated 26 th May, 2000 it was incumbent upon the decree-holder to take steps for execution of a fresh written lease deed with respect to the tenanted premises for a period of three years with two options of renewal of three years each. Since the same has not been complied with by the decree-holder till date despite several requests and reminders of the judgment debtor. Thus, the decree-holder cannot be benefited for his own wrong and, therefore, the execution petition filed by the decree-holder is liable to be dismissed.
6. Learned counsel for the judgment debtor has strongly argued that the reading of the said order dated 26 th May, 2000 makes it clear that the court was of the view that since the suit was dismissed as withdrawn and there was no decree in favour of any of the parties, question of entertaining the execution petition does not arise. Learned Ex. P. No.59/2008 Page 4 of 9 counsel for the judgment debtor has also referred to various provisions of the Code of Civil Procedure, 1908 i.e. Order 21 Rule 11(2), Section 2(2), (3), (10) and (14) in support of his submission. Lastly the learned counsel for the judgment debtor states that the judgment debtor even tendered the rent by way of cheque from the year 2008 and the decree- holder has accepted the same without any objection.
7. The learned Senior counsel Mr. V.K. Makhija appearing for the decree-holder has argued that the order dated 26 th May, 2000 is an executable order under the law on the following reasons:-
i) That the order dated 26th May, 2000 was passed on the joint application filed by the parties under Order 23 Rule 3 CPC which was duly signed by the parties supported by their affidavits.
ii) It is also recorded in the said order that the parties have entered into a settlement and that the parties will be bound by the terms and conditions of the settlement.
iii) That after recording the above said order, the court has specifically passed the order to the effect that this application being I.A.No. 5075/2000 is allowed to that extent and the said joint application stood disposed of as per the said order.
8. Learned counsel for the decree holder has argued that the order dated 26th May, 2000 itself shows that the terms and conditions mentioned in the joint application have been duly accepted by the court and by allowing the said application later on, it further shows that the Ex. P. No.59/2008 Page 5 of 9 execution filed by the decree holder is maintainable. It is immaterial whether the suit has been dismissed as withdrawn as mentioned in the impugned order.
9. Learned Senior counsel has also referred to the definition of word ―Decree‖ in Section 2(2) of the Code of Civil Procedure, 1908 which reads as under:-
―2.(2) ―decree‖ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.‖ Explanation--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
10. While dealing with the argument of judgment debtor that the lease deed has not been executed between the parties as mentioned in Para 2(iv) of the joint application, learned counsel for the decree holder has blamed the conduct of the judgment debtor in this regard and states that after passing of the said order there was no serious act on the part of the judgment debtor to execute the lease deed within 30 days with effect from 1st January, 1999 nor even subsequently and even otherwise the period of 9 years mentioned in this clause has already expired, therefore, question of lease after the expiry of period of 9 years as per clause does not arise and, therefore, the present execution petition is very much Ex. P. No.59/2008 Page 6 of 9 maintainable and it is covered within the definition of decree as defined in Section 2(2) of Code of Civil Procedure, 1908.
11. I have heard learned counsel for the parties and have also gone through the pleadings including the terms of settlement and the order passed thereon and it appears to me that the order dated 26 th May 2000 is an executable order as this order has been passed on the joint application filed by the parties under Order 23 Rule 3 CPC. The said application is signed by the parties and supported by the affidavits. While passing this order, the court has not only mentioned in the said order that the parties will be bound by the terms and conditions of settlement but also mentioned that the joint settlement application is allowed and disposed of. A bare reading of the provisions of Section-2(2) makes it clear that the order passed in this matter is covered under the definition of ―Decree‖ passed by the court.
12. I also agree with the learned counsel for the decree holder that since the lease deed has not been executed between the parties in terms of Para 2(iv) of the settlement and the total period of 9 years has already expired, the question of execution of lease deed after the expiry of time between the parties is not necessary. As regards the paying of rent by the judgment debtor from the year 2008 is concerned, it does not help the case of the judgment debtor. As merely paying of the rent by the judgment debtor does not tantamount that the decree passed by the court becomes null and void.
13. A similar question arose in the case of Mohd. Iqbal vs. Mohd Amin, 2008(146) DLT 521 cited by Mr. V.K.Makhija, learned Ex. P. No.59/2008 Page 7 of 9 Senior counsel for the decree holder in appeal being EFA(OS) 13/2004 by a Division Bench of this court wherein the Division Bench as well as the Single Judge had taken the view that when an order has been passed by this court permitting withdrawal of the suit, the court was conscious of the fact that the suit was being withdrawn in view of the terms which had been placed on record. Para 3 of the order passed by B.D.Ahmed J. in the case of Mohd Iqbal (supra) reads as under:-
"3. The present execution petition was filed on the premise that no construction whatsoever had been carried out at the plot in question and in terms of the settlement/agreement and in particular Clause 10 thereof, the property was to revert to the defendant in the suit. On 12.3.2004 after hearing the objections raised by the judgment debtor, this Court was of the view that since the suit was dismissed as withdrawn, there was no decree in favour of any of the parties and consequently the question of entertaining the execution petition on the basis of Clause 10 of the agreement did not arise. The Court was of the view that Clause 10 of the said agreement constituted a new contract between the parties and that no decree had been passed by the Court in terms of Clause 10 against the judgment debtor. As a result of this, the execution petition was found to be not maintainable and was dismissed. Liberty, however, was granted to the decree holder to seek other remedies on the basis of the aforesaid Clause 10 of the agreement in accordance with law. Being aggrieved by the said dismissal of the execution petition, the applicant/decree holder filed an appeal being EFA(OS) 13/2004. That appeal was disposed of by a Division Bench of this Court on 18.11.2005. The Division Bench was of the view that when the order dated 25.2.1991 was passed by this Court permitting withdrawal of the suit, the Court was conscious of the fact that the suit had been withdrawn in view of the compromise which had been placed on record. The Division Bench specifically note that it is because of that that the Court had directed that the parties would be bound by the terms of the compromise. Consequently, the Division Bench concluded that the observation of the Executing Court that Clause 10 of the agreement was a new agreement between the parties, did Ex. P. No.59/2008 Page 8 of 9 not appear to be correct. As a result of this conclusion, the Division Bench set aside the impugned order and remanded the case back to the Executing Court to decide the execution petition afresh in the light of the observations made by the Division Bench.‖
14. The present case is squarely covered by the ratio of the above said decision. Thus the present execution petition is accepted and the judgment debtor are directed to handover the space measuring 1203 sq.ft on the 12th Floor, Dr.Gopal Das Bhawan, 28, Barakhamba Road, New Delhi along with its keys to the decree-holder through its Managing Director within a period of 4 weeks from today. In failure to do so, it is directed that warrants of attachment and possession shall be issued against the judgment debtor to comply with the above said order immediately after the expiry of four weeks. In that case, the decree holder shall also be entitled to take the Police aid, if necessary, from the PS, Connaught Place, New Delhi. No further orders are required to be passed. The execution petition is accordingly disposed of in the above terms. The judgment debtor is burdened with costs of Rs.50,000/- to be paid to the decree-holder within four weeks from today.
MANMOHAN SINGH, J APRIL 29, 2009 SD Ex. P. No.59/2008 Page 9 of 9