Rangaraju vs R.R. Developers and Others

Aravind Kumar, J.—Heard Sri. K.R. Sreenivasa Patavardhan, learned counsel appearing for petitioner and Sri. Manmohan, learned counsel appearing for respondent.

Petitioner who is the Judgment Debtor in Execution No. 509/2014 is seeking for quashing of order dated 19.03.2015 Annexure-L whereunder Executing Court has allowed application filed by Decree Holder under Order 21 Rule 12 and 13 of CPC and flat bearing Nos. 206, 301, 402, 403, 306 situated at Industrial Site No. 37/B, Industrial Suburb, II Stage, Fort Mohalla, Mysuru South, Mysuru belonging to Judgment Debtor has been attached till realization of entire claim amount. 1st respondent/plaintiff had filed a suit against writ petitioner/defendant for specific enforcement of Joint Development Agreement dated 15.11.2007 entered into between them and also sought for recovery of certain amounts and to declare that gift deeds executed by 1st defendant in favour of 3rd defendant dated 13.06.2013 and gift deed executed by 1st defendant in favour of 4th defendant as well as sale deed dated 25.06.2013 executed by 1st defendant in favour of 5th defendant are not binding on the plaintiff. Subsequently parties have entered into compromise petition and accordingly compromise petition under Order XXIII Rule 3 of CPC was filed whereunder terms agreed to between the parties came to be indicated and pursuant to the same decree came to be passed. Plaintiff alleging that terms of compromise decree is not adhered to and also conditions agreed to by defendant initiated execution proceedings in Ex. No. 509/2014. Perusal of Execution petition which is at Annexure-G would indicate that decree holder/plaintiff claimed a sum of Rs. 1,00,33,594/- under various heads. Judgment Debtor on service of notice filed detailed statement of objections contending inter alia that terms agreed to under compromise petition was not strictly adhered to by decree holder himself and as such he is not entitled to decreetal amount or the amount claimed in the execution petition. In this background decree holder filed an application for attaching the properties and flats allotted to Judgment Debtor under the compromise petition by invoking Order XXI Rule 13 of CPC. Said application was resisted by Judgment Debtor and after considering rival contentions Executing Court allowed the application and ordered for attachment of properties indicated in the impugned order. Hence, present writ petition.

Having heard the learned advocates appearing for the parties the undisputed fact which would emerge in the instant case is that 1st defendant/Judgment debtor as agreed to under the compromise petition has paid a sum of Rs. 40,00,000/- to decree holder/plaintiff. Learned advocates are not disputing this fact and Judgment Debtor himself has produced Demand Draft issued in favour of decree holder as per Annexure-E which is also not disputed by Sri. Manmohan, learned counsel appearing for respondent/decree holder. As agreed to under the compromise petition 1st defendant i.e., Judgment Debtor namely writ petitioner was required to pay a total sum of Rs. 91,22,300/- as per clause 2(g) and in the Execution proceedings a sum of Rs. 52,00,000/- has since been deposited.

Rival contentions raised by learned advocates in these proceedings relates to terms of compromise petition not being adhered to by each of them. Judgment debtor contends that decree holder would not be entitled to payment of Rs. 52,00,000/- which amount is in deposit and same is seriously disputed by counsel for decree holder namely 1st respondent herein. This court sitting in writ jurisdiction exercising supervisory jurisdiction would not be in a position to examine the disputed question of fact. Undisputedly as per the terms set out in the compromise petition 1st defendant i.e., Judgment Debtor namely writ petitioner has agreed to pay a sum of Rs. 91,22,300/- out of which Rs. 40,00,000/- had already been paid and balance of Rs. 52,00,000/- has been deposited before Executing Court on 08.10.2015. In view of parties being ad idem with regard to payment of said amount it does not lie in the mouth of Judgment Debtor to contend that said amount is not liable to be disbursed in favour of decree holder. Said contention stands rejected.

At the cost of repetition when the contents of execution petition are perused it would indicate that total amount claimed by decree holder in execution proceedings is Rs. 1,00,33,594/- out of which the above referred Rs. 92,00,000/- has been paid/would be paid to the decree holder. Decree holder has also claimed a sum of Rs. 8,80,000/- as due and payable by Judgment Debtor and by giving a set off Rs. 5,37,000/-, it has claimed still a sum of Rs. 3,43,000/- is due and so also interest thereon. Cost of litigation has also been included in the claim made in execution petition. Thus, total amount excluding Rs. 91,22,300/- claimed by Judgment Debtor is Rs. 9,11,294/-. There is a serious dispute with regard to sum of Rs. 8,80,000/- payable by Judgment Debtor to decree holder. Contention raised by Sri. Patavardhan, learned counsel for petitioner deserves to be accepted for the simple reason that under the compromise petition it is agreed to between the parties that 1st defendant/Judgment debtor would be entitled to receive the said amount only in the event of plaintiff substantiating such advancement. The term of compromise petition in this regard as agreed to between the parties reads thus:

"h) The Plaintiff has further claimed a sum of Rs. 8,80,000/- as loan advanced to the 1st defendant in the form of Cheques drawn from the account of the Plaintiff, in so far as this sum is concerned, both the parties have mutually agreed that in the event of the Plaintiff substantiating such advancement of loan, the 1st defendant shall be liable to repay the above said sum of Rs. 8,80,000/- along with the sum of Rs. 91,22,300/- agreed to herein above."

As to whether plaintiff/decree holder would be entitled to said amount and whether plaintiff has established that there is such advancement of loan to the 1st defendant has to be substantiated. Thus, it is for the parties to establish their claim in pending execution proceedings if they so desire and they would also be at liberty to sit across the table and resolve their dispute with regard to particular clause referred to herein above. Infact it is admitted between the parties that 1st defendant has made payment of tax to the municipal corporation in a sum of Rs. 8,95,000 and share of plaintiff being Rs. 5,37,000/-. This amount will have to be settled by parties upon settlement of clause (h) above referred to in the pending execution proceedings.

In conclusion it can be said that out of total amount claimed in the execution proceedings i.e., Rs. 100,33,594/- a sum of Rs. 92,00,000/- has been paid or has been ordered to be paid. Thus, balance which even according to decree holder would be a sum of Rs. 9,11,924/- for the said sum order attaching the property that too 5 flats which according to both the parties would be to the tune of Rs. 1.50 to 2 crores would not only be harsh but also not tenable. Entire property cannot be attached since it would be deterrent to the interest of parties and particularly Judgment Debtor and it does not appeal to conscience of court. On the other hand to secure interest of Decree holder if Judgment debtor is directed to deposit a sum of Rs. 9,00,000/- before the Executing court and direct the Executing Court to regulate the payment of said amount based on adjudication of rival claims as observed hereinabove, it would meet the ends of justice.

Hence, following:

"ORDER

Writ petition is hereby allowed in part.

Impugned order dated 19.03.2015 Annexure-L is hereby quashed subject to petitioner/Judgment Debtor depositing a sum of Rs. 9,00,000/- before the Executing court within five weeks from today and till such deposit, order of attachment shall be in force and said attachment shall stand dissolved immediately on deposit of Rs. 9,00,000/- before Executing Court.

Executing court shall adjudicate as to whether the parties to compromise petition have adhered to terms as agreed to thereunder and regulate the payment to which parties are entitled to from out of amount in deposit and it would also be at liberty to pass such further orders as it may deem fit.

Amount of Rs. 52,00,000/- which is in deposit before Executing court is hereby ordered to be paid by the registry of Executing Court forthwith to the decree holder on proper identification."

All contentions with regard to terms of compromise petition including entitlement of interest by decree holder is an issue which would be at large and it can be adjudicated before the Executing court and no opinion is expressed in this regard.

Ordered accordingly.