Full Text
HIGH COURT OF DELHI
Date of Decision: 30th May, 2018
SATTO DEVI ..... Appellant
Through: Mr. Maninder Singh, Senior Advocate with Mr. Vivek Kr.
Chaudhary & Ms. Aekta Vats, Advocates (M-9810157461).
Through: Mr. N.K. Kantawala, Senior Advocate with Mr. Kuldeep Parihar
& Ms. Akansha Jain, Advocate (M- 9810069100).
JUDGMENT
1. This is an application filed by the Appellant seeking extension of time for implementing the settlement agreement dated 28th March, 2017. The prayer sought in the application is as under: “It is therefore Most Respectfully Prayed that consider the totality of facts and circumstances of the case as well as efforts of the applicant for conversion of the suit property, kindly enlarge/extent the time upto 31.03.18 on the same terms & conditions of settlement agreement dated 28.03.17 or Pass any other Order/orders this Hon’ble Court may deem fit and proper in the facts and Circumstance of the Present case. 2018:DHC:3612 It is Prayed Accordingly”
2. The present appeal was filed impugning order dated 29th July 2016 passed by the Trial Court by which the suit filed by the Respondent/Plaintiff Smt. Neelu Khattar was decreed and the Appellant/Defendant Smt. Satto Devi was directed to perform the agreement dated 13th December 2004 and transfer the suit property admeasuring 325 sq. yards bearing Plot no.71, Sector-29, Pocket-I, Block-A, Rohini, Delhi (`suit property').
3. During the pendency of the present appeal, parties had entered into a Settlement Agreement dated 28th March 2017. The terms and conditions of the said settlement are as under: i. Both the parties have arrived at a settlement on and for Rs.1,58,00,000/- (Rupees One Crore Fifty Eight Lakhs only). The first party Satto Devi will make the payment to the second party Neelu Khattar. ii. That the first party shall get the property bearing Plot No. 71, Pocket A[1], Sector -29, Block A, Rohini, Delhi converted from leasehold to freehold with the DDA at her own cost and expense and the second party has no objection for such conversion. iii. That the first party shall obtain all the original papers in respect of property bearing Plot No. 71, Pocket A[1], Sector -29, Block A, Rohini, Delhi from the judicial file lying before the Ld. Trial court in Rohini, Courts, Delhi and the second party has no objection for the release of the entire papers in favour of the first party. iv. That the first party may enter into an Agreement to Sell, for the sale of the above said property but will not get the Sale Deed executed in favour of the prospective buyer unless or until the entire settlement payment is made to the second party by the first party before 30.11.2017 in terms of this settlement. v. That the first party has paid to the second party a sum of Rs.8,00,000/- (Rupees Eight Lakhs only) as part payment in terms of the present settlement agreement and the second party has acknowledged the same. vi. That the first party shall make another part payment of Rs.5,00,000/- (Rs. Five Lakhs only) to the second party in the Hon'ble Court on the next date of hearing i.e. 19.04.2017 by way of demand draft /cheque. vii. That the balance amount of Rs. 1,45,00,000/- (Rupees One Crore Forty Five Lakhs only) will be paid by the first party to the second party on or before 30.11.2017. viii. That in case of default by the first party in making the payment by the due date i.e. 30.11.2017, the second party shall forfeit the amount of Rs. 13,00,000/- (Rupees Thirteen Lakhs only) which has been made towards part payment. ix. That in case of default by the first party as stated in the preceding para, the first party shall not pursue the appeal preferred by her and the same would stand dismissed and the second party shall be at liberty to execute the decree. x. That upon the making of the entire settlement amount of Rs. 1,58,00,000/- ((Rupees One Crore Fifty Eight Lakhs only)) by the first party to the second party, then the second party shall be left with no claim whatsoever as against the first party in respect of the property in dispute.”
4. Thus, as per the settlement agreement, the Appellant was to pay a sum of Rs. 1.45 crores to the Respondent on or before 30th November 2017. It is the submission of the counsel for the Appellant that there has been a delay in implementing the settlement and paying the amount of Rs.1.45 crores to the Respondent. The delay was caused due to various reasons including: a) Delay of processing the papers before the DDA. b) The Respondent not giving No-Objection for release of original documents which were on the judicial file of the Trial Court. c) Delay in conversion of the property from leasehold to freehold and the execution of the conveyance deed.
5. The counsel for the Appellant has taken the court through the various documents and the correspondence with the DDA in order to justify the delay in the payment of Rs.1.45 crores. He submits that the delay was completely unintentional and the Appellant had taken all steps possible to implement the settlement in right earnest. It is further submitted that the bona fides of the Appellant are as established by the fact that the conveyance deed was obtained from the DDA on 22nd November, 2017 and then present application CM 43462/2017. was moved on the same day. Along with the application, various documents have also been placed on record including correspondence with the DDA, deposit challan and payments made to DDA.
6. In reply, it is submitted by the Ld. counsel for the Respondent that the present settlement cannot be interfered with by the court inasmuch as the settlement provides the consequence for non-payment within the prescribed time. When the settlement agreement itself provides the consequence for the non-payment, the court cannot be substitute its opinion and give an extension to the Appellant. The Ld.counsel for the Respondent further submits that the Appellant has made a blatantly incorrect statement in the application inasmuch has the settlement agreement itself recorded the no objection of the Respondent for the release of original documents which were on the Trial Court record. It is further submitted that the Appellant has been dragging her feet on making the payment of the money and this has led to huge loss to the Respondent. She has been unfairly deprived of the amount. The Respondent further submits that the same ought to have been made by 30th November, 2017 failing which the consequence in the settlement deed would be triggered. Moreover, according to the Respondent, the Appellant has already sold the property and hence the intention of the Appellant is not bona fide.
7. This court has heard the submissions of both the parties. The first and foremost question is as to whether the Respondent failed to give the no objection. On this, the court is clear that by a perusal of the order sheet of the Trial Court and also from the perusal of the terms and conditions of the agreement, there was no delay by the Respondent in giving the no objection for release of documents.
8. Insofar as the procedure before the DDA is concerned, the same was well within the knowledge of the Appellant at the time when the settlement agreement was entered into. However, a perusal of the correspondence does show that the Appellant has been regularly following up and has made the deposits required, with the DDA in order to convert the property from leasehold to freehold as also towards getting conveyance deed executed.
9. There is no doubt that the Appellant has moved the application before the expiry of last date i.e. 30th November, 2017. The Appellant had tendered the amount of Rs.1.45 crores earlier by way of demand draft on 15th February, 2018 to the Respondent. Since the Respondent did not agree to accept the said draft, the same was then tendered before the court and it is lying in a fixed deposit with the Registrar General. Thus, the delay is between 1st December 2017 to 15th February, 2018.
10. Ld. Counsel for the Respondent has relied upon three judgments of this Court to submit that since the terms of settlement are clear and unambiguous and are also binding, this Court cannot extend the time for payment. On the other hand, Ld. counsel for the Appellant has relied upon two judgments of the Supreme Court to contend that when a decree for specific performance has been passed, upon delay by a party, the court has the power under Section 148 of the Code of Civil Procedure, 1908 to extend the time.
11. A perusal of the judgments cited at the bar shows that the main judgement on this issue is the judgment of the Supreme Court in Hukumchand v. Bansilal and Ors[1]. This judgement was thereafter considered in Smt. Periyakkal v. Smt. Dakshyani[2].
12. Hukumchand was a case where the mortgaged property was sold in execution of a mortgage decree and the application for setting aside the sale was dismissed under Order XXI Rule 90 CPC, but time was granted by consent of parties for depositing the decretal amount. The question was as to whether time for the said deposit could be extended. The Supreme Court observed: “ 7…It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to accommodate a judgment-debtor. If that were so, the court may go on postponing confirmation of sale for years in order to accommodate a judgment-debtor. (1967) 3 SCR 695 (1983) 2 SC 127 What Order XXXI Rule. 92 contemplates is that where conditions thereunder are satisfied an order for confirmation must follow. Further we have already indicated that Order XXXIV Rule 5 does not give any power to court to grant time to deposit the money after the final decree has been passed. All that it permits is that a judgment-debtor can deposit the amount even after the final decree is passed at any time before the confirmation of sale and if he does so, an order in terms of Order XXXIV Rule 5(1) in his favour has to be passed. With respect we cannot understand what the Letters Patent Bench meant by saying that before a mortgagor could be prevented from making payment and redeeming the property, his rights must have come to an end and that they could not come to an end unless his title to the property had been lost by confirmation of sale. It is true that so long as his right to redeem subsists the mortgagor may redeem the property. It is this principle which is recognised in Order XXXIV Rule 5 which provides that the mortgagor judgmentdebtor can deposit the amount due even after the final decree has been passed but this deposit must be made at any time before confirmation of sale. It may be noted that there is no power under Order XXXIV Rule 5 to extend time and all that it does is to permit the mortgagor judgment-debtor to deposit the amount before confirmation of sale. It does not give any right to the mortgagor judgment-debtor to ask for postponement of confirmation of sale in order to enable him to deposit amount. We have to interpret Order XXXIV Rule 5 and Order XXI Rule 92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale, there is no question of his being granted time under Order XXXIV Rule 5 and if the provisions of Order XXI Rule 92 (1) apply the sale must be confirmed unless before the confirmation the mortgagor judgment-debtor has deposited the amount as permitted by Order XXXIV Rule 5. We may in this connection refer to the decision of this Court in Janak Raj v. Gurdial Singh [1967]2SCR77, where it has been laid down that once the conditions of Order XXI Rule 92 (1) are complied with, the executing court must confirm the sale.”
13. This judgement subsequently came to be considered in Periyakkal where, after considering Hukumchand, the Supreme Court observed that in the case of Hukumchand there was a statutory compulsion to confirm the sale and the same could not be extended without the consent of the parties. However, in Periyakkal, the Court felt that there was no statutory compulsion. The Court observed as under:
14. The judgement of a Division Bench of this Court in Creative Travels v. Joginder Singh Palta[3] dealt with a case where the tenant was to hand over possession of the property by 31st October 1993 subject to payment of enhanced rent. This was on the basis of a compromise arrived at between the parties. The tenant moved an application seeking extension of a further period of four months. This was opposed on the ground that extension cannot be granted without the fresh consent of parties. The Ld. Division Bench followed Hukumchand and held: “(13) In the present case also there is a decree for possession in favor of the respondent which was liable to be executed immediately but for the consent of the parties who had agreed that the execution should be deterred till after 31st October, 1993. This agreement was arrived at when the compromise was recorded in this Court on 15th May, 1993. Just as in the Hukamchand's case, with the disposal of the application under Order XXI Rule 90 the sale was bound to be confirmed, similarly with the disposal of this appeal the execution of the decree had to follow but just as in Hukumchand's case, with the consent of the parties; the date of execution was postponed, similarly in the present case, with the consent of the parties the date of execution has been postponed till after 31st October, 1993. In Smt. Periyakkal's case 52 (1993) DLT 371 however, the question was with regard to deposit of money within the time stipulated. We find that the present case is squarely covered by the decision of a larger Bench of the Supreme Court in the case of Shri Hukumchand (supra) and, therefore, we have no hesitation in coming to the conclusion that this Court has no jurisdiction to extend the time in the absence of the consent of either of the parties. It is to be borne in mind that when litigation is brought to an end by the parties agreeing to certain terms, it would be unfair and unjust for the Court to pass orders, subsequently and without their consent, which would be at variance with the terms of the agreement. In Periyakkal case it was observed that "The Court would not rewrite contract between the parties...". When there is a term in the agreement that if the premises are not vacated by 31st October, 1993 the Court decree would be executed and an undertaking to this, effect is furnished, in our opinion that term of agreement cannot be unilaterally altered and the undertaking not acted upon. The parties avoided judgment at the time when the compromise was arrived at. A solemn undertaking was given to this Court that the premises will be vacated by 31st October, 1993. Had the time been fixed for vacating the premises without the consent of the parties, and merely by orders of the Court, there would have been no difficulty for the Court in granting extension. We do feel that the facts as made out in the application give sufficient reasons for extending the time because it appears that the applicants are constructing another house but with the respondent not giving his consent to the extension of any time this Court, in view of the decision of the Supreme Court in Hukamchand's case has no jurisdiction to entertain a request for enlargement of time. For the aforesaid reasons this application is dismissed.”
15. The Respondent has contended on the strength of Creative Travels and two furthers judgements following the same that the court has no power and jurisdiction to extend the time limit in the absence of the consent of the parties. The Creative Travels judgment has been followed in Novartis AG v. Wander Pvt. ltd.[4] and Karuna Bhalla v. Rajeev Bansal[5]. In the latter, a Ld. Single Judge of this Court held:
16. The Appellant also relied upon Yeshoda and Anr v. K. Nagarajan[6] and Md. Alimuddin v. Waizuddin and Anr[7]. In Yeshoda, where there was a 114(2004) DLT 625 EX.P.No. 44/2017 dated 9th May, 2017 decree for specific performance, the party had agreed to pay a further sum to the decree holder, extension was granted for payment of the amounts. In Alimuddin, the decree for specific performance had become final and the balance sale consideration was to be deposited and sale deed was to be executed on or before 7th June 1982. An application for extension was filed but the petitioner sought that the contract be rescinded. The courts had extended the time for payment and the Supreme Court upheld the same.
17. A perusal of all the judgements cited above reveal that the question whether extension ought to be granted or not depends upon the nature of the case. Whenever there is a statutory compulsion, extension cannot be granted as per Hukumchand. However, in the absence of a statutory compulsion, Courts have considered the fact situation and granted extension as in Periyakkal. In a decree for possession as in Creative Travels, the Ld. Division Bench refused to extend the time, as the decree had been upheld and without consent the time for handing over possession cannot be extended. Moreover, in Creative Travels, there was an undertaking given by the tenant which would have been breached. In Karuna Bhalla the suit stood withdrawn even before the amounts agreed to were paid and the Court held that the suit ought not to have been allowed to be withdrawn before the sums were paid. However, in a similar case involving payment of additional sum to the decree holder in a specific performance case, the Supreme Court in Yeshoda granted the extension.
18. Considering the legal position as stated above, this court is of the view that since the Appellant had moved the court prior to the expiry of 30th November, 2017 which was the last date to make payment and the matter thereafter was under the supervision of this court for compliance, the settlement agreement dated 28th March, 2017 having been taken on record and disposed of and no decree having been passed in the terms of the settlement agreement, the court has power to extend the time. Moreover, there is no statutory compulsion in the present case. The order dated 20th April, 2017 by which the present RFA was disposed of reads as under: “The parties have amicably settled their disputes through mediation in terms of the settlement agreement dated 28th March, 2017 which is on record. The appellant has paid Rs.5,00,000/- by a demand draft to counsel for the respondent in terms of the settlement agreement dated 28th March, 2017 before the Court. The appeal is disposed of in terms of the March, 2017. All the parties shall remain bound by the terms of the March, 2017. Pending application is disposed of. Learned counsels for the parties submit that the matter be listed for reporting compliance after 30th November, 2017. List for reporting compliance on 04th December, 2017” Thus, part payment of Rs. 5,00,000/- has already been paid in terms of clause (vi) of the settlement agreement. The appeal was disposed of in terms of the settlement agreement dated 28th March 2017. The matter was also adjourned for reporting compliance. Thus, the Court was supervising the compliance of the settlement.
19. Considering the order passed above and the legal position as enunciated in the various judgements cited at the Bar, the extension sought for is granted, however, the same cannot be unconditional. The amount is substantial i.e. Rs.1.45 crores and for whatever reason, the Respondent has been deprived of the said amount now for almost six months. Moreover, the delay in the deposit by the Appellant has also deprived the Respondent to seek specific performance. The Respondent is being deprived of the rights under 6(ix) of the settlement agreement.
20. Keeping the overall facts in mind, this court is of the opinion that the Respondent would be adequately compensated by directing the Appellant to pay an additional amount of Rs.10 lakhs within a period of four weeks from today.
21. The Respondent is also entitled to the amount of Rs. 1.45 crores lying deposited with this court. The Registrar General is directed to release the amount lying deposited along with the interest accrued thereon in favour of the Respondent.
22. List before Registrar General on 10th July, 2018, on which date, the draft of Rs.10 lakhs shall be handed over by the Appellant to the Respondent. On the said date, the Registrar General shall also handover the Demand Draft for the sum of Rs. 1.45 crores lying deposited in this Court along with the interest accrued thereon (minus TDS on the interest component and any banking charges) to the Respondent.
23. The application is disposed of. Crl.M.A. 7466/2018
24. List on 13th July 2018. Matter shall be treated as Part-Heard.
PRATHIBA M. SINGH JUDGE MAY 30, 2018