Interim Order 1

Order Details: Other
Pdf Text: 1 SC1540.15
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Execution Application No.82 of 2019
@
Chamber Summons No.1507 of 2019
In
S.C. Suit No.1540 of 2015
Smt.Premlata Stanley Palanna ..Plaintiff
V/s.
Smt.Rajana Ramchandra Mali ..Defendant
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 10th October,2019
(C.R.No.19)
Advocate Mr.Viraj Kandpile for applicant/defendant.
Advocate Ms.Martina Sapkal for respondent/plaintiff.
O R A L O R D E R
S.C. Suit No.1540/15 was filed by the judgment debtor herein
for declaration and injunction against the decree holder herein in respect
of commercial premises situate at Mumbai. Eventually, both the parties
compromised the suit by reducing into writing the consent terms viz. Exh.5
annexed to the present Execution Application.
2 On going through the Execution Application, it is seen that the
plaintiff had agreed to pay balance consideration of Rs.61,50,000/
towards sale of said commercial premises, subject matter of suit, on or
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before 30th April,2018 and since no such amount was paid till the time of
filing of Execution Application, the decree holder has filed the present
application.
3 As against above, the judgment debtor has also taken out
Chamber Summons contending that the present Execution Application is
not maintainable as per Clause 8 of the Consent Terms dated 2nd
February,2018. According to her, she has paid the entire interest as per
Clause 8 of the Consent Terms and the same has been accepted by the
decree holder without any protest. Thus, the parties to the Consent Terms
have given a goby and/or waived their rights made by them in the
Consent Terms dated 2nd February,2018. Therefore, the Execution
Application needs to be dismissed with costs.
4 Mr.Viraj Kandpile, learned counsel for decree holder, invited
my attention to the Consent Terms and contended that since the judgment
debtor has failed to comply the Consent Terms, the decree holder is within
his right to take out the proceedings.
5 Ms.Martina Sapkal, learned counsel for respondent/judgment
holder, on the other hand, contended that the judgment holder has
regularly paid the interest which has been duly accepted by the decree
holder. Moreover, according to learned counsel, initially suit was filed for
declaration and injunction which was converted into money decree without
paying the court fees. Thus, according to her decree being nullity cannot
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be executed.
6 First of all, the contention of the learned counsel for judgment
debtor that the execution proceedings is nullity is beyond acceptance. In
the said suit, the parties themselves arrived at compromise which was
essentially in respect of commercial premises for which the judgment
debtor had filed a suit. Moreover, the transaction had already taken place
between them and the judgment debtor herein was required to discharge
her obligation. Apart from this, the consent decree till date is not
challenged before the appropriate forum and, therefore, to say that consent
decree is a nullity is for fetched. The submissions putforth by learned
counsel is nothing but a self serving explanation and, therefore, needs to
be rejected outrightly.
7 Coming to the Consent Terms, there is no dispute as to the
contents of Consent Terms. The judgment debtor has heavily relied on
Clause no.8 of Consent Terms to further her case which reads as under:
“Defendant agrees and undertakes to execute
the Sale Deed within one week after receipt of full and
final balance consideration amount as per clause no.1
herein i.e. the entire amount of Rs.61,50,000/ (Rupees
Sixty one lakhs fifty thousand only). If in case, the plaintiff
upon failing to perform with her said obligation i.e. to pay
the balance consideration amount of Rs.61,50,000/
(Rupees Sixty one lakhs fifty thousand only) on or before
30th April,2018 as mentioned herein above, the Plaintiff
shall be liable to pay Rs.25,000/ p.m. compensation
towards the same until compliance of the terms as
mentioned herein above in clause no.1.”
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8 The above noted Consent Terms read is to be in conjunction
with Clause no.2 wherein judgment debtor agreed to pay balance
consideration of Rs.63,00,000/ as full and final payment towards the sale
of commercial premises in question on or before 30th April,2018. It is also
pertinent to note here that out of said amount, an amount of Rs.1,50,000/
was already received by the decree holder by cheque no.215412 dated 15th
January,2018 and the balance consideration amount of Rs.61,50,000/ as
per Clause no.8 of the Consent Terms was required to be paid on or before
30th April,2018.
9 From Clause no.8 of the Consent Terms, it is very much clear
that the decree holder was required to pay Rs.61,50,000/ on or before 30 th
April,2018 and in case of her failure to pay the said amount by 30th
April,2018, she was also liable to pay Rs.25,000/ per month as
compensation until compliance of the terms. It appears that the judgment
debtor is taking advantage of the fact that since she has paid the interest
amount, she has not in any manner breached the terms and conditions of
the Consent Terms, which is far from truth. The compensation amount
was payable only on the failure of judgment debtor to pay the balance
consideration of Rs.61,50,000/ on or before 30 th April,2018. Merely
because she has paid the interest or paying the interest will not absolve
her from the responsibility of paying the balance consideration amount of
Rs.61,50,000/. Essentially, the compensation so paid by her is for want of
her failure to pay the balance consideration of Rs.61,50,000/ on or before
30th April,2018.
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10 The decree holder, in my considered opinion, is perfectly
justified in taking out the present Execution Application inasmuch as the
balance consideration amount of Rs.61,50,000/ was not paid by judgment
debtor on or before 30th April,2018.
11 For the aforesaid reasons, I do not find any merit in the
Chamber Summons and the same is liable to be dismissed. Hence, the
following order:
O R D E R
Chamber Summons No.1507/19 stands dismissed.
The judgment debtor viz. Smt.Premlata Stanley Palanna who
was plaintiff in S.C. Suit No.1540/15 is hereby directed to comply the
Consent Terms and pay the balance consideration amount of
Rs.61,50,000/ within one month from today failing which the Execution
Application shall be proceeded in accordance with law.
10 /10/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 10/10/2019
Transcribed on : 10/10/2019
Signed by HHJ on : 11/10/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 14/10/2019 (2.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 11th October,2019
Order signed by P.O. on 11th October,2019
Order uploaded on 14th October,2019
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