M/S BANWARI LAL CHARITABLE TRUST & ANR. v. VIRESHWAR PRASAD JAIN & ANR.

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‟) are aggrieved by the order dated 3rd 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.

3. Briefly stated, the parties entered into a settlement dated 17th 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 2019:DHC:4481 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 The Executing Court observes that it is not the case of the Judgment Debtors that the suit has not been withdrawn due to the Decree Holders’ failure to remove the lawn.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 the General Power of Attorney dated 9th April, 1979 (hereinafter „GPA‟) and sale deed dated 30th 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 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 judgment is set out herein below:

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