Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of Decision: 11 September, 2019
+ CM (M) 1337/2019
M/S BANWARI LAL CHARITABLE
TRUST & ANR. ..... Petitioners
Through: Mr. Siddharth Sharma and Mr. Ambuj
Tiwari, Advocates. (M:8954594279)
versus
VIRESHWAR PRASAD JAIN & ANR. ..... Respondents
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
CM APPL. 40402/2019 (exemption)
1. Allowed, subject to all just exceptions. Application is disposed of.
CM (M) 1337/2019 & CM APPL. 40403/2019 (stay)
2. The Petitioners/Judgment Debtors ( hereinafter „Judgment Debtors‟ )
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are aggrieved by the order dated 3 May, 2019 passed by Sh. Arun Sukhija,
ADJ-07 (Central), Tis Hazari Courts, Delhi, by which the objections filed by
them to the execution of the settlement decree were dismissed.
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3. Briefly stated, the parties entered into a settlement dated 17
September, 2007 in respect of properties bearing Nos.1/15 to 1/17, Rani
Jhansi Road, New Delhi ( `suit properties‟ ). There were several obligations
agreed to by the parties as per the settlement. Two clauses of the settlement
i.e., clauses 6 & 7 are in contention. The contention of the Judgment Debtors
is that since the Respondents/Decree Holders ( hereinafter „Decree Holders‟ )
did not comply with their obligation under clause 6, the Judgment Debtors
CM (M) 1337/2019 Page 1 of 5
are no longer obligated to comply with clause 7.
4. The Executing Court, after considering the two clauses, has held that
the various obligations under clauses 6 & 7 are independent of each other
and clause 7 has certain pre-conditions, which have been complied with by
the Decree Holders. In fact, the Executing Court notes that under clause 9,
the Judgment Debtor was required to withdraw the suit for permanent and
mandatory injunction after the removal of the lawn by the Decree Holders,
as referred to in clause 6. The Executing Court observes that it is not the
case of the Judgment Debtors that the suit has not been withdrawn due to the
Decree Holders’ failure to remove the lawn. Accordingly, the objections
have been dismissed by observing that if the Judgment Debtors have any
grievances remaining in respect of the obligations under clause 6, they can
avail their remedies, however, they cannot escape their obligation to ratify
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the General Power of Attorney dated 9 April, 1979 (hereinafter „GPA‟) and
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sale deed dated 30 September, 1995. The relevant portion of the impugned
order is as under:
“ The clause no. 6 is totally independent and for the
enforcement of clause no. 7, there was no requirement
of fulfilment of clause no. 6. Moreover, there is no
dispute between the parties that the agreement dated
18/3/2009 was executed between the parties. In this
case, this court is not looking into the fact that whether
the said agreement is voidable or not but there is no
dispute that the said agreement was executed between
the parties and as per the said agreement, the judgment
debtors appears to have waived their rights in the
clause no. 6 of the Settlement dated 17/09/2007.
Moreover, it is also worthwhile to note that in terms of
Clause no. 9 of Agreement dated 17/09/2007, the
judgment debtor no.1 was required to withdraw the
CM (M) 1337/2019 Page 2 of 5
another suit for permanent & mandatory injunction,
which was pending in the Court of Ms. Kiran Gupta,
the then Ld. Civil Judge, Delhi after the removal of
lawn (referred to in Clause no. 6) by the decree
holders. It is not the case of the judgment debtors that
the said suit has not been withdrawn as the defendants
have not removed the lawn.
The judgment debtors/ objectors can take their
separate remedies under the law for non-compliance, if
any, of Clause no. 6 of the Settlement dated 17/09/2007
but on the shoulder of the Clause no. 6, the judgment
debtors cannot be allowed to stall the proceedings of
the present case. The Clause No. 6 is totally an
independent Clause and at the cost of repetition, it is
reiterated that the decree holders have already
complied all the terms & conditions for enforcement of
Clause no. 7.
Considered from any view point, the objection filed
by the judgment debtors is devoid of any merits and the
same is hereby dismissed.”
5. Ld. counsel for the Judgment Debtors has vehemently contended that
the Executing Court has failed to appreciate that all the obligations need to
be complied with and that if the obligations under clause 6 are not complied
with, the Judgment Debtors are not liable to execute the sale deed and the
GPA under clause 7. He relies upon the judgment of the Hon’ble Supreme
Court in Latim Lifestyle & Resorts Ltd. & Anr. v. Saj Hotels (P) Ltd. &
Ors., (2003) 10 SCC 189 to argue that corresponding reciprocal obligations,
if any, need to be fulfilled.
6. A perusal of the said judgment, in fact, goes to show that in a
compromise decree, none of the promises are interdependent and each of the
obligations is separate and independent of each other, which is exactly what
the Executing Court has held. The relevant portion of the Supreme Court
CM (M) 1337/2019 Page 3 of 5
judgment is set out herein below:
“9. …
In our opinion, it would suffice to state that the
obligations incurred by the parties under the
compromise decree cannot be termed “reciprocal
compromises”, interdependent on each other for
performance. All the obligations incurred by the
parties under the compromise decree are independent
obligations and each party must perform its own
obligations directed towards fulfilment and consequent
discharge and satisfaction of the decree. To the extent
to which any controversy survives for adjudication, the
same can be taken care of by the executing court which
can still compel fulfilment of obligations respectively to
the extent to which either party is obliged to do but has
failed in discharging the same. The executing court
may issue the necessary process, appoint a
Commissioner or direct detention in civil imprisonment
of the party found in breach and thus execute the
decree.
…
13. Having heard the learned counsel for the parties
and having noted their respective contentions we are of
the opinion that the adjudication as to the several
controversies raised between the parties should be left
to the executing court which is still seized of them and
we do not deem it proper if any final opinion thereon is
expressed either by the High Court or by this Court
since it would be premature to do so. It is therefore
directed as under:
(1) The executing court shall secure compliance with
the obligations spelled out by the compromise decree
on each of the parties and none of the parties shall be
entitled to contend that the obligations are reciprocal
promises and one party cannot be compelled to
discharge its obligations unless the other party has
discharged its obligations. …”
CM (M) 1337/2019 Page 4 of 5
7. The legal position is, thus, clear that the obligations of each of the
parties are independent of each other and not inter-dependent on each other.
For the reasons stated hereinabove, the impugned order does not warrant any
interference. However, the liberty given to the Judgment Debtors to avail of
their remedies with respect to clause 6, if there is any non-compliance, is left
open, as stated in the impugned order.
8. The petition and pending application are disposed of in the above
terms.
PRATHIBA M. SINGH
JUDGE
SEPTEMBER 11, 2019/ dk
CM (M) 1337/2019 Page 5 of 5