PAWAN PROPERTIES Vs. NARAYANI DEVI

JUDGEMENT

(1.) Two execution applications were heard by me. One was E.C. 127 of 2011, which was against the heirs of Dina Nath Agarwal who at one point of time was the third defendant. The other application is E.C. 128 of 2011 against the heirs of Harikishan Das Agarwala who at one point of time was the fourth defendant in the suit. Each of these execution applications prayed of an order for transfer of a 1/4th share in the property numbered as premises No. 46A and 46B, Shakespeare Sarani, Kolkata-700 017 in favour of the plaintiff decree-holder. Mr. Pradip Kumar Ghosh, learned Senior Advocate represented the heirs of Harikishan Das Agarwala, while Mr. Raja Basu Choudhury represented the heirs of Dina Nath Agarwal. Each of the above applications was opposed by the above respective heirs. But these two applications can be disposed of by this common judgment. The genesis of the dispute between the parties was an agreement dated 13th October, 1982 between the plaintiff decree-holder and inter alia, Dina Nath Agarwal and Harikishan Das Agarwala for development of the above property which was of substantial area and measured more than two bighas. In a suit between the parities to the agreement and or their heirs being C.S. No. 619 of 1985, the parties to the suit at that point of time, on 25th November, 2003 executed a Terms of Settlement. In Clause 4 of these terms it was recorded that the third and fourth defendants had 1/4th share each. Clause 5 provided that in consideration of the plaintiff decree-holder paying the sums mentioned in Schedule X to the agreement these defendants would transfer their interest in the property to them. Part-II of Schedule X, inter alia, provided that each of the above two defendants would be paid Rs. 40 lacs. The last sentence of Clause 5 stated that cheques for the said amount had been handed over to the defendants. The total consideration as mentioned in Part-I of the Schedule was 80 lacs to be paid to each of the said defendants. The above 40 lacs was to be paid at the time of signing of the terms, which undisputedly was paid and the balance was payable immediately upon passing of the decree as provided in Part-III of the Terms of Settlement. Therefore, the total monetary consideration receivable by either of them was Rs. 85 lacs.

(2.) Moreover, each of these defendants would be provided a constructed area of 4000 sq. ft. super built up along with three car parking spaces in the above property. I reproduce Clause 8 and 9 and 1(e) of Part-I:

(3.) Clauses 8 and 9 of the Terms and 1(e) of Schedule X are most important and have been given different interpretations by the learned counsel appearing for the decree-holder and the judgment-debtors. Therefore, it is imperative that this Court makes a proper interpretation of the above clauses for a correct resolution of the disputes between the parties. It is also important to note that according to Clause 10 of the terms possession of the vacant portion of the premises as recorded by an earlier receiver had been made over to the plaintiff decree-holder. This possession is now disputed by the plaintiff decree-holder but this dispute does not lie at the heart of the controversy.