ASHOK THAPPER Vs. SARAL ENTERPRISES

JUDGEMENT

(1.) OFTEN civil litigation threatens to be perpetual or atleast it assures to be co-extensive of the life of the litigant. Sometimes, it so happens that inspite of filing of a compromise or consent terms to put an end to a litigation in the Court of law, it continues to erupt from time to time, depending on the circumstances which arise even after burial of the suit. The present is the case wherein the feud continues between the parties though it was supposedly buried in the coffin of a consent term and consent decree given by the Court on 8th December, 1995. Even thereafter, the restless soul of the present suits is haunting the litigation. I need not refer to and enumerate the number of applications in the form of notices of motion or chamber summonses filed by the parties against each other for certain reliefs. The present chamber summon is at the stage of sale of the defendants flat to realise the fruits of the decree which was given to the plaintiff in three summary suits between the same parties. After a prolonged battle of more than three years, the suits were decreed in terms of the consent terms and as has been rightly inscribed in the civil law, the real trouble of the plaintiff started after he got the decree in his suit, notwithstanding the consent of the defendants.

(2.) IN the present case, after the suits were decreed on 8th December, 1995 the fight continued and it reached its climax when the plaintiff succeeded in the suit and the suit flat which was a security in the consent terms for the decretal amount was put up for auction sale by Court Receiver appointed by this Court. Indeed it is the defendants who are unwilling to allow property to be auctioned. The present is the chamber summons which perhaps is the hurdle which the horse of the plaintiff has to successfully jump to get the decree executed. This time the prayers in the chamber summons are as under :- (a) That this Honble Court be pleased to declare that decree dated 8-12-1995 passed by this Honble Court is not executable/unenforceable. (b) That this Honble Court be pleased to declare that the Decree dated 8-12-1995 passed by this Honble Court is not executable/unenforceable in respect of the flat No. 2501/a situated on the floor of Walkeshwar Om Vikas Co-operative Housing Society, Walkeshwar Road, Mumbai 400 006. In addition to the above main prayers interim prayers are also sought for by the applicants. In support of their prayers, the applicants have filed an affidavit of one Shri Chittaranjan Shah. In nutshell, the applicants have prayed for a declaration that the consent decree is not executable or enforceable and further it is not executable or enforceable in respect of the suit flat. Shri Ashok Thapper, the plaintiff has filed a detailed affidavit in reply, vehemently opposing the chamber summons. He has enumerated in Exh. A the dates and events which took place after 8th December, 1995 i. e. the date of the consent decree filed in the above three summary suits, wherein the defendants had agreed to pay to the plaintiff a sum of Rs. 4. 5 crores by 30th September, 1996. There is no dispute about the dates and events given in the Exh. A of the affidavit of Shri Thapper. Shri Pravir Diwan, the learned Counsel for the applicants, however, suggested that there were some more details which are not given in the list of dates and events, though he did not dispute the correctness of the chronological events stated in the exhibit to the affidavit in reply. It appears that the defendants, themselves, moved the Court for extension of time to pay and both the parties once again filed consent minutes of the order before this Court (A. P. Shah, J. ). By the said order the defendants were to pay a sum of Rs. . 1. 50 crores by 31st December, 1996 and the balance on or before 31st March, 1997. Accordingly the defendants have in fact paid the aforesaid amount by four instalments to the plaintiffs, but they failed to pay the balance amount as agreed. Their failure to pay as per the consent minutes of the order finally attracted the step of auction sale of their flat. Preliminary rituals before the auction were taking place in the office of the Court Receiver. In the process, by a letter dated 6th November, 1997 addressed by the Advocate for the defendants to the Advocates for the plaintiffs, the defendants informed that they were making arrangements to pay the entire balance dues to the plaintiffs at the earliest. The moveable and immovable properties of the defendants were attached as per the warrant of attachment dated 31-1-1998 and 16-2-1998. It appears that the defendants through out were not at all willing to abide by the promises made by them to pay the decretal amount and they were creating obstructions from time to time to allow the sale of the flat. They did not submit to the Court Receiver, the original share certificates and other relevant documents pertaining to the flat put for auction. In March/april 1998, the defendants filed a Chamber Summons No. 1441 of 1998 for raising the attachment of the properties but they did not succeed. The Court Receiver was pursuing the defendants to get the original documents of the flat and the defendants were avoiding to do so. Left with no other civil remedy, the plaintiffs filed a Contempt Petition No. 158 of 1998 against the defendants for breach of undertaking and also for committing contempt by breaking the seal fixed by the Sheriff of Mumbai on the car of the defendants. It is pertinent to note at this stage that in reply to the contempt petition, the defendant No. 3 filed an affidavit stating on oath that a sum of Rs. 4,59,97,151. 85 was due and payable to the plaintiffs as per the consent decree. The Court Receiver continued to chase the defendants to get the original documents of the flat but in vain. The plaintiff once again moved this Court and my learned brother Chandrashekhar Das, J. , passed an order of sale of flat after notice to the defendants in December 1999 and the auction sale was fixed on 22nd February 2000. In the auction sale only three offers were received, the highest being Rs. 1 Crore, which was accepted but the bidder failed to deposit the amount of Rs. 25 lakhs as stipulated in the terms and conditions of the sale and finally he lost even Rs. 2 lakhs initially deposited as earnest money with the Court Receiver as the same was forfeited. Though at the stage of contempt petition, there was an admission to pay the amount to the tune of Rs. 4, 59,97,151. 85 in affidavit of the defendant No. 2 filed in Chamber Summons No. 1441 of 1998, it was denied that a sum of Rs. 4,92,33,689 was due and payable. On 8th September, 2000, the plaintiff prayed for "judges Order" from this Court for purchase of the flat at Rs. 1. 20 Crores but instead of granting the said order the Court Receiver was directed to expedite the sale of the flat and accordingly the Court Receiver fixed up auction sale on 3rd October, 2000. The last link in the chain is the present chamber summons with a prayer for an interim order to stay the execution of the consent decree. The defendant No. 2 has filed an affidavit stating that only Rs. 2,64,91,716/- was the amount due and payable according to the defendants. In my hope to put an early end to the present ordeal of the litigants, I have heard the chamber summons finally at length and I have heard the learned Counsel for the respective parties who addressed me at quite a length of time.

(3.) SHRI Pravir Dewan, the learned Counsel for the applicants has raised the following points:-