CM APPL. 2350/2020 (exemption)
1. Allowed, subject to all just exceptions. Application is disposed of.
CM (M) 54/2020
2. The name of ld. counsel for the Respondent has been mentioned in the memo of parties. Ld. counsel for the Petitioner agrees to delete his name and file the amended memo of parties within one week.
3. Suit for recovery under Order XXXVII CPC was filed by the Plaintiff - M/s. Pradyuman Overseas Ltd. (hereinafter, “Decree Holder”) against Mr. Sanjeev Jindal (hereinafter, “Judgment Debtor”). Vide judgment dated 23rd May, 2013, the suit was decreed in favour of the Plaintiff. The operative portion of the judgment reads as under:
“23. The defence raised in the leave to defend application is indeed a moonshine and vexatious. The defendant is thus not entitled to leave to defend and his application therefor is dismissed.
24. Though the defendant had in the document dated 25th June, 2010 acknowledging liability agreed to pay interest @ 18% per annum but still I am not inclined to grant interest on the said rate for the period during the pendency of the suit.
25. Axiomatically, a decree is passed in favour of the plaintiff and against the defendant for recovery of Rs.44,31,978.02 together with interest on the principal amount of Rs.41,66,895/-@ 9% per annum being the average rate at which interest is paid by Nationalized Banks on fixed deposits, from the date of institution of the suit and till three months after the date of this decree and with future interest thereafter @ 18% per annum.
26. The plaintiff shall also be entitled to costs of this suit as per schedule. Decree sheet be drawn up.”
4. The Decree Holder, thereafter, filed the execution petition in the year 2015. The same is pending before the Executing Court. In the execution proceedings, after a lapse of a considerable period, the Judgment Debtor filed an application under Order XXI CPC claiming that a settlement has been entered into by which the decree has been satisfied. In the said application, the Executing Court passed an order directing framing of an issue and listed the matter for recording the evidence of the parties. The operative portion of the impugned order dated 2nd November, 2019 is set out herein below:
“3. Counsel for DH has argued that the present application u/O 21 CPC is not maintainable at this stage of the matter since firstly it is not within the limitation period as prescribed under Article 125 of the Limitation Act which stipulates that any adjustment or satisfaction of the decree has to be recorded by the court within 30 days from the date of payment. Secondly, he has argued on the maintainability of this application on the ground that the JD has not made the payment as per mandate of Order 21 Rule 1 CPC as he has neither deposited the payment in the court nor he has sent any money order or bank draft to the DH. This court does not agree with the contention of the DH regarding payment as per mandate of Order 21 Rule 1 CPC, as pointed out by the counsel for DH since as per Order 21 Rule 1 (b) CPC, the payment could have been made by the JD “by any other mode wherein payment is evidenced in writing". The JD alongwith the present application has placed on record the photocopy of the settlement allegedly reached between the parties, which is disputed by the DH. But, the perusal of the settlement deed dated 06.06.2016, shows the signatures of the Directors of the DH company on the said settlement, hence, in this background of the case, the court deem it appropriate to invoke its powers u/s 47 CPC which envisages that any question relating to discharge or satisfaction of the decree shall be determined by the executing court. The issue of execution of compromise deed dated 06.06.2016, between the parties cannot be decided without leading evidence by the parties to this effect. Similarly, the issue of limitation raised by the DH shall also be decided after the evidence of both the parties on the compromise deed dated 06.06.2016.
4. In view of aforesaid discussion, the following issue is hereby framed: -
“Whether the parties have entered into the compromise by virtue of settlement deed dated 06.06.2016? OPJD
5. Put up for evidence of the JD, on 17.01.2020.”
5. The matter is stated to be now adjourned to 20th March, 2020. The contention of ld. counsel for the Decree Holder is that the Judgment Debtor has chosen to move this application and rely upon the alleged settlement agreement dated 6th June, 2016 only on 7th December, 2018, by means of the application. For more than 2 years, the Judgment Debtor did not seek to place the alleged settlement on record and the original settlement is also stated to not be available with the Judgment Debtor. It is, thus, prayed that the entire intention of the Judgment Debtor, in relying upon the settlement dated 6th June, 2016, is merely to delay the execution and nothing more. It is further apprehended that the framing of issues and recording of evidence would delay the execution proceedings further, especially when the said application is time-barred.
6. On the other hand, ld. counsel for the Judgment Debtor submits that the settlement agreement has been signed by the same person i.e., Mr. Bhaskar Kedia, who is a signatory in the execution petition, as also in the suit. It is therefore argued that this settlement was well within the knowledge of Mr. Bhaskar Kedia. The original settlement agreement was misplaced by the Judgment Debtor and hence, there was delay in placing the same on record. In any event, the original settlement is not traceable so he will be leading secondary evidence to prove the settlement.
7. The first and foremost question is whether the settlement agreement has to be proved on record by the Judgment Debtor and if so, in what manner. In the execution petition, if the decree/judgment has been partly or wholly satisfied, the Judgment Debtor would be entitled to rely upon such settlement, in accordance with law. Usually, it is expected that the Judgment Debtor would, upon receipt of the execution petition, respond by contending that either the whole or part of the decree has been satisfied. In this case the Judgment Debtor, certainly delayed the filing of the application under Order XXI CPC. The further question as to whether the application is barred by limitation would have to be considered and adjudicated by the Executing Court.
8. Insofar as the recording of evidence is concerned, the case of the Judgment Debtor is that the original agreement has been misplaced and is not available with the Judgment Debtor. The Judgment Debtor therefore wishes to lead secondary evidence. As the decree of May, 2013 is yet to be executed, it is directed that the Judgement Debtor shall lead evidence on the next date fixed by the Executing Court i.e., 20th March, 2020.
9. If the Judgment Debtor wishes to file the affidavit/s of any person for proving the settlement agreement, the same shall be placed on record on or before 11th March, 2
Please Login To View The Full Judgment!
020. The witness/es shall be produced before the Executing Court on 20th March, 2020 and their oral statement shall be recorded expeditiously. 10. The next grievance of the Decree Holder is that despite specific directions on 17th January, 2020 to the Judgment Debtor to file the list of movable and immovable assets, the same has not yet been done. It is made clear that prior to the next date before the Executing Court i.e., 20th March, 2020, the Judgment Debtor shall disclose his complete list of movable and immovable assets. It is directed that the execution petition be disposed of as expeditiously as possible. 11. Parties shall appear before the Executing Court on 20th March, 2020. With these observations, the petition and all pending applications are disposed of.<