Karnataka High Court
Gold Coins Hotels And Resorts Ltd. vs Sri . Mohammed Nissar on 12 February, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
W.P.No.51587/2012 & W.P.No.51663/2012 (GM-CPC)
BETWEEN :
GOLD COINS HOTELS & RESORTS LTD.
NOW KNOWN AS
M/s.RENOWN HOTELS AND RESORTS PVT. LTD.,
HAVING ITS REGD. OFFICE AT
NO.50, GOLD TOWER, RESIDENCY ROAD,
BANGALORE-560 025.
REP. BY ITS DIRECTOR
MR.CHETAN P TAYAL ... PETITIONER
(BY SRI V LAKSHMINARAYANA, ADV.)
AND :
1. SRI. MOHAMMED NISSAR, 57 YEARS
S/O LATE MOHAMMED KHALLEL
2. SMT ABIDA NAHID, 55 YEARS
W/O MOHAMMED NISSAR
BOTH ARE R/AT FLAT NO.G-3
GARDEN APARTMENTS
VITTAL MALYA ROAD
BANGALORE 560 001
3. SRI L CHATURBHUJ, 63 YEARS
S/O LATE LUNIDARAM
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4. SMT C MAYA, 58 YERS
W/O L CHATURBHUJ
BOTH ARE R/AT NO.22
1ST FLOOR, 2ND MAIN,
SRINARAYAN CHAMBERS
SUDHAMNAGAR
BANGALORE 560 027. ... RESPONDENTS
(BY SRI NANJUNDA REDDY, SENIOR ADVOCATE FOR SRI
ZULFIKIR KUMAR SHAFI, ADV. FOR C/R1 & R2; SRI B M ARUN,
ADV. FOR R3 & R4)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
PROCEEDINGS AT ANNXURE-T & ETC.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.01.2013, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
The petitioner is the Judgment debtor no.1 in Ex.No.1566/2012 and respondents are the Decree holders (hereinafter they are referred to as such).
2. The Decree holders had filed Ex.No.1566/2012 for execution of compromise decree made by this court in RFA No.2110/2006 c/w RFA Nos.2027/2006 & 2028/2006 dated 13.04.2010. The execution petition was filed for 3 execution of registered sale deed in respect of premises bearing no.6, old No.3, situated at Leonard Lane, Richmond Town and property known as Radhakrishna Complex bearing No.1/1, situated at K.B.Temple Street, 6th Block, Rajajinagar, Bangalore and office No.204 and 205, having super built up area of 2000 Sq.ft., situated at 2nd floor of Radhakrishna Complex. The decree holders have also sought for possession of aforestated property.
After entering appearance, judgment debtor no.1 has filed several objections on different occasions by contending that in terms of compromise decree, the decree holders have not handed over vacant possession of premises no.64 of the first floor in the building known as Gold Tower and they have not withdrawn the criminal case and they have not returned the cheque for Rs.90,00,000/-to the judgment debtor no.1.
3. The judgment debtor no.1 has filed second statement of objection contending that decree holders had 4 collected 590 On Demand Promissory Notes valued at Rs.208.85 Lakhs and other share certificates however, the decree holders have produced only 35 original pronotes and photostat copies of 3 share certificates for being returned to the judgment debtor no.1.
4. In the third statement of objection filed by judgment debtor no.1, he has taken similar contention and alleged that decree holders and defendants no.2 and 3 have played fraud on judgment debtor no.1 and have obtained blank On Demand Promissory Notes from judgment debtor no.1 for Rs.3 Crores, unless the decree holders return said documents; withdraw criminal cases and execute sale deed in respect of property no.64, the decree holders are not entitled to execute the compromise decree. The judgment debtor no.1 has also filed Execution Petition No.2565/2012 for performance of aforestated acts by the decree holders.
5. The decree holders have contended that, in order to discharge their obligation in terms of compromise decree, 5 decree holders have produced 35 On Demand Promissory Notes and 3 share certificates, which are kept in safe custody of the Execution Court. The decree holders have withdrawn O.S.No.15859/2006 and Writ Appeal No.226/2008. They have filed application to withdraw C.C.No.30960/2006 pending on the file of 4th ACMM, Mayo Hall, Bangalore in respect of cheque bounce case and they have also filed memo of undertaking to the effect that decree holders are ready to indemnify judgment debtor no.1 against all consequences arising out of the above criminal case. The decree holders have contended that other than 35 On Demand Promissory Notes and 3 share certificates which they have produced before the court and kept in the safe custody, they are not in possession of any other Promissory Note/Notes executed by judgment debtor no.1. The decree holders in order to comply with the terms of compromise decree have delivered vacant possession of basement floor of property bearing No.64 to judgment debtor no.1 and the decree holders have also produced acknowledgement of 6 judgment debtor no.1 for having received vacant possession of basement floor of property bearing No.64. The decree holders have handed over the key of the first floor of the premises to the Execution Court. The key is kept in safe custody of the Execution Court. The decree holders have no objection to hand over the key to judgment debtor no.1 after execution of sale deed in their favour.
The decree holders have contended that they have discharged their obligations in terms of compromise decree. The judgment debtor no.1 has received Pay Order for a sum of Rs.10,00,000/- towards purchase of machineries in property no.64. The decree holders have produced the acknowledgement issued by judgment debtor no.1 before the Execution Court. In the circumstances, the decree holders have contended that judgment debtor no.1 cannot resist execution of sale deed by making unnecessary allegations against decree holders.
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6. The learned judge of the Execution Court has held that there is no prima-facie material to hold that judgment debtor no.1 had issued 590 blank pronotes and 5 share certificates worth Rs.3 Crores to decree holders and there is no reference to these documents in the compromise petition or in the compromise decree.
The judgment debtors have produced copies of blank pronotes for different amounts said to have been signed by judgment debtor no.1. These documents do not bear any date or names of persons in whose favour pronotes are executed. The judgment debtor no.1 appears to have created photostat copies of On Demand Promissory Notes to make a false claim with the sole intention to drag on execution proceedings.
7. In Para 5 of the compromise decree made by this court in RFA No.2110/2006 c/w RFA Nos.2027/2006 & 2028/2006 on 13.04.2010 it is stated thus: 8
"In the event of either party failing to fulfill their obligations in terms of the agreement as contained in pars 2, 3 & 4 above, this compromise can be enforced against the defaulting party in respect of those obligations without need of further declaration of right by any court of law and it shall be executable decree."
In view of what has been stated in the compromise petition, the judgment debtor no.1 is at liberty to enforce the terms of compromise decree against the decree holders if they have committed any default or if they have failed to perform any acts which they are bound to perform in terms of compromise decree.
8. The learned judge of the Execution Court has held that judgment debtor no.1 has been in occupation of premises and getting huge rents form the tenants and he is protracting the execution proceedings without any valid cause or reason. The Execution Court has rejected the objections filed by judgment debtor no.1. Therefore, the 9 judgment debtor no.1 is before this court seeking writ of certiorari to quash Annexure-'T' viz., order made in Ex.No.1566/2012 dated 12.12.2012. The judgment debtor no.1 has also sought for writ of prohibition to restrain the Execution Court from executing the decree for the failure of decree holders to discharge their obligations in terms of compromise decree. The judgment debtor no.1 has also sought for alternate remedy of direction to the Execution Court to decide Ex.P.No.1566/2012 (filed by decree holders) along with Ex.P.No.2565/2012 (filed by judgment debtor no.1).
9. I have heard Sri.V.Lakshminarayana, learned counsel for judgment debtor and Sri.Nanjuda Reddy, learned Senior Counsel and Sri.B.M.Arun, learned counsel for decree holders.
10. Before adverting to submissions made by learned counsel for parties, it is necessary to refer to the judgment of Supreme Court reported in (2010) 1 SCC 217 (in the case 10 of Celina Coelho Pereira (Ms) and Others -vs- Ulhas Mahabaleshwar Kholkar and Others) to understand the scope of jurisdiction of this court in a writ petition filed under Article 227 of the Constitution of India.
In the aforestated judgment, the Supreme Court has held:
"30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta18, this Court held : (SCC p.865, para 7) "7. ... The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
31. In State Vs. Navjot Sandhu19 this Court explained the power of the High Court under Article 227 thus : (SCC pp. 656-57, para
28) "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the 11 power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the 12 power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'."
32. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram20, State of Maharashtra v. Milind21 and Ranjeet Singh v. Ravi Prakash22, came to be considered by this Court in Shamshad Ahmad v. Tilak Raj Bajaj23 and this Court held : (Tilak Raj case23, SCC pp.10-11, para 38) "38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of 13 law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."
Therefore, it is necessary for this court to consider contentions of parties bearing in mind the law laid down by the Supreme Court in the aforestated decision.
11. The learned counsel for judgment debtor has relied on a judgment of Supreme Court reported in (2006) 5 SCC 566 (in the case of Pushpa Devi Bhagat -vs- Rajinder Singh and Others) to contend that unless there is lawful agreement or compromise in writing, the decree cannot be executed by the Execution Court.
12. The learned counsel for judgment debtor has relied on a judgment of Supreme Court reported in (1977) 3 SCC 347 (in the case of Girdhari Lal (Dead) by LR's -vs- 14 Hukam Singh and Others) to contend that unless the compromise decree is registered, it cannot be executed.
13. The learned counsel for judgment debtor has also relied on the judgment of Supreme Court reported in AIR 1941 BOMBAY 71 (in the case of Raychad Jivaji -vs- Basappa Virappa Bellary) to contend that in all, Section 17 (1) (e) of the Registration Act is wide enough to cover all the decrees whether made prior to or simultaneously with assignment.
14. The learned counsel for judgment debtor has relied on the judgment of Supreme Court reported in 1995 AIR SCW 3927 (in the case of Bhoop Singh -vs- Ram Singh Major and others) to contend that compromise decree creates rights for the first time. It shall be registered in terms of Section 17 (2) of the Act.
15. The learned counsel for judgment debtor would submit that, for the failure of decree holders to discharge their obligations in terms of compromise decree, the 15 judgment debtor is not liable to execute the sale deed in terms of compromise petition.
16. The learned counsel for decree holders would submit that decree holders have discharged their obligations in terms of compromise decree. The allegations made by judgment debtor no.1 that decree holders have failed to discharge their obligations in terms of compromise decree are baseless. The judgment debtor has superimposed the terms which are not found in the compromise petition/compromise decree. Therefore, the learned trial judge has rightly dismissed the application.
17. In a decision reported in AIR 1972 SC 1371 (in the case of Bhavan Vaja and Others -vs- Solanki Hanuji Khodaji Mansang and another) the Supreme Court has held:
"19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree 16 it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction began and ended with merely looking at the decree as it was finally drafted.
18. In the case on hand, the learned judge of the Execution Court has taken into consideration the circumstances under which the compromise petition was filed in RFA No.2110/2006 c/w RFA Nos.2027/2006 & 2028/2006. The learned judge of the Execution Court has considered materials relied upon by decree holders to come to the conclusion that decree holders have discharged their obligations in terms of compromise decree. The learned judge of the Execution Court has held, in order to dispel the apprehension, the decree holders have executed indemnity 17 bond wherein, the decree holders have declared that, except the pronotes which they have produced before the court, the decree holders are not in possession of any other pronotes as contended by the judgment debtor no.1 and without prejudice to aforestated declaration they would indemnify judgment debtor if any action is instituted on the basis of pronotes referred to by judgment debtor no.1.
19. In the first objection statement filed by the judgment debtor no.1 on 09.10.2012, the judgment debtor no.1 has contended that decree holder has not withdrawn the case in C.C.No.30960/2006 and also not returned the original cheques for Rs.90 Lakhs inspite of several requests. Further, the decree holders have not returned all original pronotes, share certificates and signed cheques by Chetan P Tayal and Kusum Tayal in their individual capacity and on behalf of the companies. The decree holders have not handed over the vacant possession of premises no.64, the first floor in the building known as Gold Tower, No.50, Residency Road, Bangalore.
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20. In the second objection statement filed by the judgment debtor no.1 dated 24.11.2012, the judgment debtor no.1 has contended that decree holders are in possession of 590 On Demand Promissory Notes valued at Rs.208.85 Lakhs. They are already holding about 60 original On Demand Promissory Notes.
The judgment debtor on receipt of cause notice of execution petition was expected to file statement of objections raising all pleas available to him to resist the execution petition. The judgment debtor no.1 should not have reserved pleas to raise them by filing second statement of objection and third statement of objection as the law does not give right to judgment debtor to file statement of objections on installment basis raising different pleas at different stages.
21. The learned judge of the Execution Court has verified the objection statements filed by judgment debtor no.1 and various pleas raised therein with reference to terms 19 of compromise decree and documents relied upon by both parties to arrive at a conclusion that decree holders have discharged their obligations in terms of compromise decree. The learned judge of the Execution Court has held that demand made by judgment debtor no.1 for return of 590 On Demand Promissory Notes is not one of the terms of the compromise decree.
22. At this juncture, it is necessary to refer to relevant clause of the compromise decree.
Clause 4 (a) of the compromise petition reads thus:
"4 (a) The respondent further represents that they are the owner of Apartments in Saleh Arcadia, Richmond Town, Bangalore and the Respondent Company and the Directors hereby undertake to transfer absolutely clear ownership free of all encumbrance by registering Sale Deeds at appellant cost in respect of Flat No.201 & 205 given on rent each measuring 1702 Sq.ft., situated at Saleh Arcadia Apartments, Richmond Town, Bangalore fully furnished as per 20 settlement and deliver possession by allotment of tenants and simultaneously the appellant will return all pronotes in totality singed by Mr.Chetan P. Tayal & Mrs.Kusum Tayal and his family members and his companies including the cheques in possession of the appellant and respondent no.3 and 4 and their Associates/Alliances in totality."
In terms of Clause 4 (a) of the compromise petition, the decree holders are required to return all the pronotes in totality signed by Sri.Chetan P.Tayal and Smt.Kusum Tayal and also family members including the cheques in their possession. If the judgment debtor no.1 was in possession of Photostat copies of 590 On Demand Promissory Notes, there was no impediment for judgment debtor no.1 to state the same in the compromise petition. Therefore, the learned trial judge has rightly held that this objection raised by judgment debtor no.1 is an afterthought and it is not one of the terms of compromise decree.
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23. The judgment debtor no.1 has contended that compromise decree is not executable for want of registration.
In order to appreciate this contention, it is necessary to state that the parties have agreed to execute registered documents pursuant to the compromise decree. The compromise decree by itself does not operate, create, extinguish or relinquish the rights of immovable property. Therefore, the contention of judgment debtor no.1 that compromise decree is not executable for want of registration cannot be accepted. Even otherwise, the Execution Court cannot refuse to execute the decree for want of registration more particularly when it is stated in the compromise decree that it shall be registered.
24. The learned counsel for judgment debtor no.1 would submit that compromise decree apparently does not reveal that judgment debtor no.1 had derived any benefit under the compromise decree. The Execution Court cannot go beyond the terms of compromise decree. The Execution Court is not competent to decide the plea raised by judgment 22 debtor no.1 that compromise decree apparently does not reveal that judgment debtor no.1 had derived any benefit under the compromise decree.
25. The learned counsel for judgment debtor would submit that judgment debtor has filed Ex.No.2565/2012 to direct the decree holders to perform their obligation in terms of the compromise decree. If that is so, judgment debtor is at liberty to establish in Ex.No.2565/2012 the obligations which the decree holders have to perform in terms of compromise decree made in RFA No.2110/2006 c/w RFA Nos.2027/2006 & 2028/2006 dated 13.04.2010 to realise the benefits of decree.
At this juncture, it is worthwhile to notice, at one stretch, the judgment debtor has contended that compromise decree apparently does not reveal that judgment debtor no.1 had not derived any benefit under the compromise decree. In the next stretch, the judgment debtor has contended that there are several obligations 23 which the decree holders have failed to perform in favour of judgment debtor as per the terms of compromise decree made in RFA No.2110/2006 c/w RFA Nos.2027/2006 & 2028/2006 dated 13.04.2010.
26. In view of limited scope available to this court under Article 227 of the Constitution of India, this court can reappreciate facts. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.
27. On hearing the learned counsel for parties and on going through the impugned order, I find that the impugned order is within the limits of law and learned judge of the Execution Court has not transgressed the provisions of law. Therefore, there are no grounds to interfere with the impugned order. The petitions are accordingly dismissed.
Sd/-
Np/- JUDGE