Manish Kundalik Sarkate Thr Poa Kundalik Shankar Sarkate v. Ramanlal Nathmal Jain and Ors

Dusane IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.534 OF 2022 WITH INTERIM APPLICATION NO.16639 OF 2022 Shaikh Mustaq Haji Majid Khatik …Appellant/Applicant V/s. Ramanlal Nathmal Jain & Ors. …Respondents WITH SECOND APPEAL NO.536 OF 2022 WITH INTERIM APPLICATION NO.16641 OF 2022 Altaf Abdul Rahaman Sheikh

…Appellants/ (since deceased) thru LRs Farida Applicants Altaf Sheikh & Ors. V/s. Ramanlal Nathmal Jain & Ors. …Respondents WITH SECOND APPEAL NO.535 OF 2022 WITH INTERIM APPLICATION NO.16640 OF 2022 Iqbal Abdul Rahaman Sheikh

…Appellants/ thru' POA Mr. Mustak Shakkar

Applicants Sheikh V/s. Ramanlal Nathmal Jain & Ors. …Respondents WITH SECOND APPEAL NO.537 OF 2022 WITH INTERIM APPLICATION NO.16642 OF 2022 Manish Kundalik Sarkate

…Appellants/ thru' POA Kundalik Shankar Applicants Sarkate V/s. Ramanlal Nathmal Jain & Ors. …Respondents Mr. Bhushan Walimbe i/by Ms. Preeti Walimbe for Appellants/Applicants. Mr. D.S. Mhaispurkar a/w Mr. Sumedh S. Modak and Mr. Hrishikesh Pawaskar for Respondent Nos.1 to 4 in all SAs and IAs. CORAM:

MADHAV J. JAMDAR, J. DATE: 4th July 2023

P.C.:

¶1Heard Mr. Bhushan Walimbe, learned Counsel appearing for the Appellants and Mr. Mhaispurkar, learned Counsel appearing for the Respondent Nos. 1 to 4.

¶2The Supreme Court in Griesheim Gmbh Vs. Goyal MG Gases Private Limited1 observed in para 2 as follows: "2. It is an old saying that the difficulties of the litigant in India begin when he has obtained a decree. The evil was noticed as far back in 1872 by the Privy Council in relation to the difficulties faced by the decree-holder in execution of the decree [General Manager, Raj Durbhunga v. Coomar Ramaput Sing, 1872 SCC OnLine PC 16 : (1871-72) 14 Moo IA 605 : 20 ER 912] , Moo IO p. 612. After more than a century, there has been no improvement and still 1 (2022) 11 SCC 549 the decree-holder faces the same problem what was being faced in the past. A litigant coming to court seeking relief is not interested in receiving a paper decree when he succeeds in establishing his case. What he primarily wants from the court of justice is the relief and if it is a money decree, he wants that money what he is entitled for in terms of the decree, must be satisfied by the judgment debtor at the earliest possible without fail keeping in view the reasonable restrictions/rights which are available to the judgment debtor under the provisions of the statute or the code, as the case may be." (Emphasis added)

¶3In the case of Jini Dhanrajgir Vs. Shibu Mathew2, the Supreme Court observed in para 2 as under : "2. More than a century and a half back, the Privy Council (speaking through the Right Hon. Sir James Colville) in The General Manager of The Raj Durbhunga, Under the Court of Wards v. Maharajah Coomar Ramaput Singh1 lamented that the difficulties of litigants in India indeed begin when they have obtained a decree. A reference to the above observation is also found in the decision of the Oudh Judicial Commissioner's Court in Kuer Jang Bahadur v. Bank of Upper India Ltd. Lucknow2. It was ruled there that the Courts had to be careful to ensure that the process of the Court and the laws of procedure were not abused by judgment-debtors in such a way as to make the courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights."

(Emphasis added) Thus, the Supreme Court held that the Courts have to be careful to ensure that the process of the Court and the laws of procedure were not abused by judgment-debtors in such a way 2 (2023) SCC Online SC 643 as to make Courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights.

¶4The above observations of the Supreme Court are squarely applicable to the present case. In the present case, inter alia, the money decree was passed on 16th June 2003 and the execution of the same is delayed for last more than 20 years as a result of collusion between the Appellants i.e. Obstructionists and the Respondents-Judgment-Debtors resulting in immense hardship to the Respondent Nos. 1 to 4 i.e. Judgment-Debtors.

¶5Mr. Walimbe, learned Counsel appearing for the Appellants submitted that in all these Second Appeals, the same substantial questions of law arise and the same are as set out hereinbelow:

(i) Whether both the Courts erred in not considering the fact that the Decree Holders and the Judgment Debtors are in collusion with each other and they are trying to dispossess the Appellant under the guise of executing the compromise decree?

(ii) Whether both the Courts were justified in law that even as per the compromise pursis the decree holder is entitled to completion certificate first and then further proceedings of the darkhast can go on. However, in the present matter, the decreeholder has requested to attach the shop and proceed for sale. Is this against the compromise decree?

(iii) Whether both the Courts were justified in law in considering the fact that the Executing Court has jurisdiction to decide all the questions raised by the obstructionist including questions regarding right, title or interest in the property; however, has the learned Executing Court failed to exercise the said jurisdiction vested in it?

(iv) Whether both the Courts were justified in law in ignoring the fact that execution was filed by the Decree-holder for recovery of amount by attaching the property of judgment-debtor and auctioning the same for recovery of the amount. Therefore, the observation of the First Appellate Court that there exists an earlier agreement for sale executed in favour of Decree-holder and therefore, the Appellant has no right to file obstructionist application is wrong. The First Appellate Court ought to have taken into consideration that the compromise decree was in three parts. Firstly, it was agreed by the Judgment-Debtor that he shall pay an amount of Rs.33,81,500/- to the decree-holder. Second part was towards security of Rs.16,59,000/- out of the amount of Rs.33,81,500/-, the decree-holder/ Judgment Debtor will execute Sale-Deed of 6 shops in favour of the decree holder and third part was the Judgment Debtor can sell 6 shops for an amount of Rs.6,00,000/- each and shall pay an amount of Rs.6,00,000/- each to the decree-holder and the decree-holder shall cancel the agreement for sale in respect of 6 shops. In the alternative, the judgment-debtor shall sell the 6 shops as per the instructions of the decree-holder to the persons intimated by the decree-holder. However, the execution was filed for recovery of the amount of Rs.33,81,500/-, thus out of three auctions mentioned in the decree, the decree-holder has chosen to execute the decree in respect of first part only. Therefore, the decree-holder cannot insist upon other two parts in the same execution. Moreover, if the decree-holder was seeking the sale of the shops, then he ought to have filed separate suit for specific performance. However, he has chosen to file the execution petition only for recovery of the amount. Therefore, is the observations of the First Appellate Court to continue the attachment of property purchased by the Appellant for the purpose of sale of the same for recovery of the money, perverse?

¶6All these Second Appeals take exception to the orders of the learned Executing Court by which Objection Petition filed to the execution of the decree by the strangers to the decree i.e. the present respective Appellants has been dismissed. The respective appeals filed challenging the dismissal of Obstructionist Application also dismissed by the learned First Appellate Court.

¶7It is the submission of Mr. Walimbe, learned Counsel appearing for the Appellants that the Appellants have purchased respective Shop Nos. 8, 9, 10 and 11 respectively by registered sale-deed and the respective Appellants are in possession of these shops. He submitted that the Consent Terms were executed on 16th June 2003 and accordingly, the Special Civil Suit No. 90 of 2003 was decided within a span of less than two months. He states that the said consent decree is a collusive decree. Mr. Walimbe, learned Counsel submitted that apart from the above substantial questions of law, following additional substantial question of law also arises in all these Second Appeals:- Whether the Courts are right in dismissing Appellant's execution application on the ground that he has no locus to file such application?

¶8Learned Counsel for the Appellants submitted that both the Courts have completely ignored that the decree was obtained by the decree-holders and judgment-debtors by collusion. He further submitted that unless completion certificates of four shops are obtained, Darkhast is not maintainable as per the compromise decree. He also submitted that both the Courts failed to appreciate that the decree-holder has suppressed material facts from the Court and therefore Darkhast is required to be dismissed. He submitted that the decree which is sought to be executed is for recovery of the amount by attaching the property of the Appellants and auctioning the same and therefore the entire property of the judgment-debtors could have been attached and sold. Instead, the four shops which are of the respective Appellants are chosen for attachment and sale by the decree-holder. The same clearly shows that there is a collusion between the decree-holders and judgment-debtors.

¶9On the other hand, it is the contention of Mr. Mhaispurkar, learned Counsel appearing for the Respondents that the Consent Terms between the parties are very clear and the Darkhast has been filed on the basis of the Consent Terms. He submitted that Darkhast was filed as the judgment-debtor has failed to handover possession of the shops or pay monetary consideration and therefore the Consent Terms are sought to be executed in the manner as more particularly stated in the execution petition. He also submitted that pursuant to the Consent Terms, registered agreements for sale were executed in favour of the decree-holders. In spite of this position under the registered agreements, the judgment-debtors sold four shops to the respective Appellants i.e. Obstructionists. He submitted that in fact the judgment-debtors and the obstructionists are in collusion. It is his submission that the transactions in favour of the obstructionists are hit by the doctrine of lis pendens as contemplated under Section 52 of the Transfer of Property Act, 1882. He therefore prayed that all these Second Appeals be dismissed with compensatory cost.

¶10Before considering the rival submissions, it is necessary to set out certain factual aspects:

(i) The Respondent Nos.1 to 4 i.e. Decree-Holders are the owners of certain land situated at Dombivli, District Thane. The decree-holders executed development agreement dated 18th December 2001 and Power of Attorney dated 20th July 2000 for development of their land with Respondent Nos.5 to 9 i.e. Judgment-Debtors -M/s Janhavi Builders and their partners.

(ii) As certain disputes arose between them, the decree-holders filed Special Civil Suit No.90 of 2003 against M/s Janhavi Builders and their partners i.e. judgment-debtors seeking that the said development agreement and said Power of Attorney be declared as cancelled and for other reliefs.

(iii) It is significant to note that the said development agreement is dated 18th December 2001 and the Suit was filed for cancellation of the same on 25th April 2003 i.e. after about one and half year. In the said suit, a compromise was arrived at between the decree-holders and the judgment-debtors on 16th June 2003 and the said Suit has been decreed in terms of said compromise. In the said Suit, a compromise decree was passed on 16th June 2003. The said compromise reads as under : "oknh o izfroknh ;kapse/;s >kysY;k rMtksMhph iqjlhl oknh o izfroknh ;kaps njE;ku vkilkar rMtksM Bjyh vkgs-rh [kkyhy izek.ks & 1½ nkO;kP;k fo"k; vlysY;k djkjkar uewn dsysY;k 'krhZaizek.ks izfroknh ;kauh oknhauk ns.ks vlysyk nkok feGdrhP;k fodklkpk ekscnyk @ fdaerhpk ekscnyk ;k iksVh izfroknh ;kapsdMs ckdh vlysyh jDde :i;s29]00]000@& ¼v{kjh :i;s ,dks.krhl yk[k½ ek= o R;koj fnukad 18 twu 2003 i;Zrps gks.kkjs O;kt :i;s 4]81]500@& ¼v{kjh :i;s pkj yk[k ,DD;k,sa'kh gtkj ikp'ks½ ek= feGwu ¼,dw.k :i;s 33]81]500@&½ ¼v{kjh :i;s rsgrhl yk[k ,DD;k,sa'kh gtkj ikp'ks½ ek= fnukad 18 twu 2003 i;Zar ifz roknhdMwu oknhauk ns; gksr vlY;kps izfroknhauk dcwy vkgs-o lnj jDde vkf.k ewqG jDde :i;s29]00]000@& ;koj djkjkrhy 'krhZaizek.ks njegk :i;s 43]500@& ¼v{kjh :i;s =spkGhl gtkj ikp'ks ek=½ ;kizek.ks gks.kkjs iq<hy O;kt v'kh loZ jDde vktiklwu 12 efgU;kaP;k vkr ifz roknhauh oknhauk ns.;kph vkgs-2½ oj dye 1 ;kar uewn dsY;kizek.ks ns; gks.kk&;k jdesiksVh ifz roknhauh nkO;krhy feGdrhoj izfroknh cka/kdke djhr vlysY;k fu;ksftr bekjrhe/khy rGetY;kojhy lkscr tksMysY;k Qykasvj IyWue/;s n'kZfoysys 6 ¼lgk½ nqdku xkGs ,dw.k fcYVvi ,fj;k 1659 pkS-QwV gs nj pkS-QwVkl :i;s 1]000@& ¼v{kjh :i;s ,d gtkj ek=½ ;kizek.ks gks.kk&;k fdaerhl ekydh gDd rRokoj oknhaps ykHkkar fodr ns.;kps vkgsr-o R;kckcr egkjk"Vª vksujf'ki QYkWVl~ vWDV] 1963 ps rjrqnhuqlkj t:j vlysys djkj izfroknhauh oknhaps ykHkkar fjrlj fygwu] ukasnowu ns.;kps vkgsr-o R;kckcrpk eqnzkad 'kqYd] ukasn.kh Qh oxSjs loZ [kpZ izfroknhauh lkslko;kpk vkgs-lnj lgk ndq ku xkG;kaps cka/kdke ifz roknhauh vktiklwu rhu efgU;kps vkr iw.kZ djko;kps vkgs-o R;kckcr egkuxjikfyds dMwu cka/kdke iw.kZrspk nk[kyk o okij ijokuk feGowu lnj lgk nqdku xkG;kapk izR;{k dCtk izfroknhauh oknhauk n.s ;kpk vkgs-v'kk r&gsus lnj lgk nqdku xkG;kapk dCtk T;k fno'kh ns.;kar ;sbZy] R;k fno'kh oj dye 1 ;kar uewn dsY;kizek.ks O;ktklfgr ns; gks.kk&;k jdesiksVh lnj lgk nqdku xkG;kaps ,dw.k {ks=kph nj pkSjl QwVkl :i;s 1]000@& ¼v{kjh :i;s ,d gtkj ek=½ ;kizek.ks gks.kkjh jDde 16]59]000@& ¼v{kjh :i;s yk[k ,dks.klkB gtkj ek=½ izfroknhadMwu oknhauk feGkyh vls let.;kr ;sbZy-3½ ijarw izfroknhauk ;ko:u v'kh loyr ns.;kar ;sr vkgs dh & v½ oj uewn dsY;kizek.ks oknhaps ykHkkar ekydh gDd rRokoj fodzh dsysys lnj lgk nqdku xkGs izR;sd ndq ku xkG;kiksVh dehr deh :i;s 6]00]000@& ¼v{kjh :i;s lgk yk[k ek=½ ;kizek.ks izfroknhauh oknhauk fnY;kl R;k R;k ndq ku xkG;k ckcrps fodzhdjkj oknh fjrlj jn~n d:u nsrhy o R;kckcr t:j rs nLr,sot izfroknhaps ykHkkar fygwu] uksnowu nsrhy-ek= R;kckcrpk eqnzkad 'kqYd] ukasn.kh Qh oxSjs loZ [kpZ ifz roknhauh lkslko;kpk vkgs-v'kk fjrhus T;k T;k nqdku xkG;kckcrps fodzh djkj jn~n gksrhy-R;k R;k osGh R;kckcr izfroknhauh oknhauk fnysY;k jdek izfroknhadMwu oj dye 1 ;kar uewn dsY;kizek.ks ns; gks.kk&;k jdesiksVh feGkysyk olwy Eg.kwu let.;kr ;sbZy-vkf.k @ fdaok c½ oj uewn dsY;kizek.ks oknhaps ykHkkar ekydh gDd rRokoj fodzh dsysys lnj lgk nqdku xkGs izfroknh R;kaps ethZuqlkj funZs'k djrhy- R;k O;Drhaps ykHkkar ok<ho fdaerhr Qsjfodzh d:u ns.;kl oknh tckcnkj vlrhy- r'kk Qsjfodzh O;ogkjkckcrps djkj nLr,sot izfroknhaP;k ekU;rsus r'kk O;Drhaps ykHkkar oknh fygwu uksanowu nsrhy-ek= R;kckcrpk eqnzkad 'kqYd ukasn.kh Qh oxSjs loZ [kpZ izfroknh fdaok r'kk [kjsnhnkj O;Drh ;kauh lkslko;kpk vkgs- v'kk r&gsus oknhauh Qsj fodzh d:u fnY;kl R;kuqlkj oknhauk feG.kkjh fodzhph fdaer gh R;kosGh oj dye 1 ;kar uewn dsY;kizek.ks izfroknhadMwu ns; gks.kk&;k jdesiksVh feGkysyk olwy Eg.kwu let.;kar ;sbZy-ek= oj uewn dsysyh loyr lnj lgk nqdku xkG;kckcr egkuxjikfydsus fnysY;k cka/kdke iw.kZrspk nk[kyk o okij ijokuk ;kP;k rkj[ksiklwu QDr lgk efgU;ki;Zar vaeykr jkghy-o ;kp dkyko/khr izfroknhauh oj uewn dsY;kizek.ks lnj nqdku xkG;kps oknhps ykHkkrhy fodzh djkj jn~n d:u u ?ksrY;kl vFkok lnj nqdku xkG;kaph izfroknhauh funZs'k djko;kP;k O;Drhaps ykHkkar Qsj fodzh d:u u ?ksrY;kl lnjph loyr jn~n gksbZy- lnj loyrhaps eqnrhr lnj loZ lgk nqdku xkG;kaps oknhaps ykHkkrhy fodzh djkj jn~n gksÅ u 'kdY;kl vFkok lnj loZ lgk nqdku xkG;kaph izfroknhauh funZs'k djko;kP;k O;Drhaps ykHkkar Qsj fodzh gksÅ u 'kdY;kl ts nqdku xkGs oknhadMs f'kYyd jkgrhy] R;kckcr lnjph loyr laiq"Vkr ;sbZy-vkf.k ifj.kkeh r'kk oknhadMs f'kYyd jkfgysY;k nqdku xkG;kps {ks=@ fcYVvi ,fj;kckcr nj pkSjl QqVkl :i;s 1]000@& ¼v{kjh :i;s ,d gtkj ek=½ ;kizek.ks gks.kkjh jDde R;kosGh izfroknhadMwu oj dye 1 ;kar uewn dsY;kizek.ks ns; gks.kk&;k jdesiksVh olwy let.;kar ;sbZy-4½ oj uewn dsysY;k eqnrhr R;kosGh oj dye 1 ;kar uewn dsY;kizek.ks izfroknhadMwu ns; vlYksY;k jdespk loZ Hkj.kk oknhauk gksÅ u 'kdY;kl ckdh jkg.kkjh jDde izfroknhauh oj dye 1 ;kar uewn dsysY;k eqnrhr oknhauk vnk djko;kph vkgs-5½ ojhy izek.ks izfroknhadMwu oknhauk ns; vlysyh o gks.kkjh v'kk loZ jdespk ckstk nkO;krhy tehu feGdr o R;koj izfroknh cka/kdke djhr vlysyh fu;ksftr bekjr ;kaps oj jkghy o R;kuqlkj izfroknhadMwu ns; gks.kk&;k jdesph olqyh dj.;kpk oknhauk gDd jkghy-6½ oj uewn dsY;kizek.ks lnj lgk nqdku xkG;kaph ekydh gDd rRokoj fodzh oknhaps ykHkkar iw.kZ d:u fnY;koj nkO;kpk fo"k; vlysY;k djkjkuqlkj nkok feGdrhojhy iq<hy fodkl dke o fu;ksftr bekjrhps iq<hy cka/kdke oxSjs lq: d:u iw.kZ dj.;kpk izfroknhauk gDd jkghy-7½ ;k nkO;kP;k fu;ekizek.ks gks.kkjk [kpZ izfroknhauh oknhauk |kok-izfroknhauh vkiyk [kpZ lkslkok- ;s.ks izek.ks rMtksM >kyh vlwu R;kizek.ks gqdweukek Ogkok-ojhy izek.ks >kysyh rMtksM es-dksVkZleksj dcwy dj.;kl oknh o izfroknh ;kauh vkikiY;k odhykauk ;ko:u [kkl vf/kdkj fnysys vkgsr-Þ (Emphasis added) Thus, what has been agreed between the decree-holders and judgment-debtors is that the judgment-debtors agreed to pay the amount of Rs.33,81,500/- and interest of Rs.43,500/- per month and that said payment would be made within a period of twelve months from the date of the said Consent Terms. Clause 2 of the said Consent Terms contemplates sale of six shops to the decree-holders which will satisfy decree to the extent of total amount of Rs.16,59,000/-. In Clause 3 of the Consent Terms, certain concessions to which the judgment-debtor was entitled, are set out. According to the same, if Rs.6,00,000/- per shop are paid then the decree-holders would cancel the respective agreement with respect to the shop. It also contemplates that the said shops can be sold to the nominee of the judgment-debtors even for a higher amount. It further contemplates that if the said cancellation mentioned in Clause No.3 is not availed within a period of six months from receipt of building completion certificate, then the said concession will not be available.

(iv) In compliance with the above Consent Terms and the Consent Decree, four separate registered agreements of sale were executed with respect to shop Nos. 8, 9, 10 and 11 with the judgment-debtors. The details of the same are as follows :- Sr. No. Date of Registered Agreement of Sale Shop No.

02.07.2003

02.07.2003

15.07.2003

15.07.2023

(v) Inspite of the above Consent Terms and the Consent Decree, the judgment-debtors have not complied with the terms and conditions of the same and therefore, the decree-holders filed Darkhast bearing Special Darkhast No. 32 of 2004 on 18th December 2004. In the said Darkhast, the decree-holder has stated as follows: gqdwe-ukE;koj vihy >kys vkgs dh dk; dks.krhgh jDde fnysyh vlY;kl fdaok myxMk >kysyk vlY;kl rks iwohZ nj[kkLr dsyh vlY;kl rh o frpk fudky dk; >kyk gqdweukE;k oj

;s.ks vlysyh O;ktklfgr jDde fdaok gqdweukE;kr nqljh dkgh nkn nsofoyh [kpZ nsofoyk vlY;kl R;kph jDde dks.kkoj ctkok;pk rs dksVkZps dks.kR;k izdkjs enr djko;kph rs vlY;kl rh

o dks.krhgh ijLij fo:n/k gqdweukek vlsy rj R;kpk ri'khy ukgh ukgh-dks.krhgh jDde feGkysyh ukgh-rMtksMh uqlkj QDr pkj xkG;kaps djkj dj.;kr vkys-cka/kdke iw.kZ dsys ukgh o dCtkgh fnyk ukgh-lcc jdespk myxMk djrk ;sr ukgh ukgh iku ua-2 rs 5 oj fnysyk vkgs :- 32211 loZ izfr oknh @ ttesaV MsVj ;kaps oj

twu 2003 i;Zr ns; jDde 29]00]000 o : 4]81]500 O;kt vls ,dw.k : 33]81]500 19 twu rs 18 fMlsacj 2004 njegk 43]500 izek.ks 18 efgU;kaps O;kt :7]83]000 o nkO;kpk [kpZ 32]231 ,dw.k 41]96]731 ----------------- In the said Execution Application relief is sought inter alia to attach the entire building by exercising power under Order XXI Rule 54 of the Code of Civil Procedure, 1908 (for short "the CPC") and sale of the same under Order XXI Rule 64 of the CPC.

(vi) The learned Executing Court passed following order on 13th November 2008 : "O R D E R Read Exh.62 filed by D.H. for issuing warrant of attachment under Order 21 Rule 54 of the C.P.C. with say filed by J.D. at Exh.64. Heard respective advocates for the parties. Perused the record. D.H. also filed the similar application at Exh.55 and considering say of J.D. it was directed one month time to J.D. to pay balance amount or to furnish bank guarantee or remaining payment as per order dated 07/07/2008, however, till date no further payment nor bank guarantee furnished. D.H.'s advocate objected prolonging the matter by the J.D. who from time to time sought time till today. However, their contention rejected. So, considering the nature of the proceeding issue attachment warrant under Order 21 Rule 54 of the C.P.C. against J.D. attaching their property more particularly described in the application at Exh.62. R/o. 01/12/2008." (Emphasis added)

(vii) It appears that in the meanwhile, the judgment-debtors executed four separate agreements of sale with respective Appellants as per the following details : Sr. No. Second Appeal No. Name of Appellant/ Obstructionist Date of Agreement of Sale Shop No. 534/2022 Shaikh Mustaq Haji Majid Khatik

12.02.2007 535/2022 Iqbal Abdul Rahaman Sheikh

29.12.2004 536/2022 Altaf Abdul Rahaman Sheikh

29.12.2004 537/2022 Manish K. Sarkate

25.03.2004

(viii) The learned Executing Court passed following order on 30th July 2009 : " ORDER BELOW EXH.72 IN SPECIAL DARKHAST

NO.32/2004 Read it, filed by the Decree Holders, under Order 21, Rule 64, of the C.P.C. Requisite valuation is produced at Exh.87 of property attached belonging to Judgment Debtors, issued by Sub-Registrar Officer, Kalyan-3, at Exh.87, it is worth of Rs.4,00,34,040/-. According to the Judgment Debtors property attached, constructed with ground floor and two upper floors and they are already sold to the customers and Judgment Debtors are making efforts to settle the matter. Perusal of decree show that Decree Holders are entitled for sum of Rs. 41,96,731/- from Judgment Debtors. Admittedly, property valuation is more than decreetal amount, so, D.H. is directed to suggest, which portion is require to be attached and to make auction of sale, as per rule." It appears that thereafter, the decree-holders have applied for sale of aforesaid four shops.

(ix) The respective Appellants filed respective obstructionist proceedings in the said Special Darkhast No. 32 of 2004 and the same were dismissed by the learned Executing Court. The respective appeals challenging the same were also dismissed by the learned First Appellate Court.

¶11It is necessary to consider substantial questions of law raised by Mr. Walimbe, learned Counsel appearing for the Appellants and the submissions of both the learned Counsel in the light of the above factual position.

¶12The first substantial question of law raised is regarding the collusion between the decree-holders and the judgment-debtors. However, the factual position on record as set out hereinabove clearly shows that as the developer i.e. judgment-debtors were not complying with the development agreement dated 18th December 2001, the suit was filed for cancellation of the same and the said suit was filed after a period of about 1½ year. By the Consent Terms what has been agreed in effect is the manner in which the said development agreement will be implemented. Accordingly, Clause No.1 provides for payment of balance consideration as per the said development agreement. The further terms and conditions also show that for ensuring payment of said consideration as agreed in Clause No.1, some shops were agreed to be sold to the decree-holders and some concessions were also agreed to be given to the judgment-debtors in that regard. It is admitted position that the judgment-debtors have not paid huge amount to the decree-holders as per the decree till date. Therefore, the factual aspects on record clearly show that there is no substance in the first substantial question of law raised by Mr. Walimbe, learned Counsel appearing for the Appellants.

¶13Apart from the above aspects, it is clear that the said question is factual. Perusal of the evidence-affidavit of the Appellants i.e. Obstructionists clearly shows that the contention raised is that the respective obstructionist/Appellants are the bonafide purchasers of the respective shops. It is further mentioned that after the shop is attached the respective Appellants-Obstructionists approached the judgment-debtors and the judgment-debtors informed them about the Consent Decree and that the judgment-debtors have given in writing in the Court that for ensuring compliance of the consent terms, some other shops except the shops, which has been sold to the respective Appellant, be sold. Therefore, it is clear that the said contentions raised in the Evidence-Affidavit is in fact contrary to the contention that there is collusion between the decree-holders and judgment-debtors. In fact, the said contentions establishes that the judgment-debtors have not paid to the decree-holders any amount whatsoever as per the consent decree and they have represented that instead of the shop sold to the respective Appellants, some other shop would be sold. Therefore, there is no substance in the contention that there is collusion between the decree-holders and judgment-debtors.

¶14It is significant to note that all the respective Appellants in the respective applications for objection to attachment and sale under Order XXI Rule 58 of the CPC levelled allegations against the judgment-debtors and inter alia contended as follows : "6/ The Applicant states that he is bonafide purchaser of the said shop and the Applicant has no notice of Suit or Decree at the time of purchase and taking possession of the said shop. The Applicant has paid entire amount out of his life savings and from borrowings nothing remained with him for further investments. The Judgment Debtors have also left all the works incomplete. The Applicant recently come to know that the judgment debtor and cheated so many persons in the city. There are many cases filed and pending against the judgment debtors. The Applicant had no knowledge of the same. The Applicant would not have gone for such purchase if he would have come to know about the litigation of debts of the judgment debtors." (Emphasis added) It is significant to note that identical contention is raised by all the Appellants in their respective applications filed under Order XXI Rule 58 of the CPC.

¶15It is further significant to note that the respective Appellants filed evidence-affidavit. The Appellants i.e. Obstructionists in Second Appeal No. 534 of 2022, Second Appeal No. 535 of 2022 and Second Appeal No. 537 of 2022 have filed affidavit through their constituted attorney who are their close relatives. All these witnesses have admitted in the cross-examination that they came to know about the Consent Terms as well as the registered agreement executed with the decree-holders and inspite of that, they have not taken any action against the judgment-debtors and only filed application obstructing the execution of decree. Mr. Walimbe, learned Counsel appearing for the Appellants submitted that the Appellants came to know about these aspects in the year 2009. Even assuming that the respective Appellants came to know about the same in the year 2009, the respective cross-examinations of all these witnesses are of the year 2011 wherein they admit that they have not taken any action against the judgment-debtors. Mr. Walimbe fairly admits, after taking instructions, that none of the Appellants have filed any proceedings against the judgment-debtors even till date. Thus all these aspects in fact show that there is a collusion between judgment-debtors and the obstructionists to defeat the execution of the decree.

¶16It is significant to note that in fact, cross-examination of the witnesses of the Appellants in Second Appeal No.534 of 2022 (Shop No. 10) and in Second Appeal No. 536 of 2022 (Shop No.9) shows that the said shop premises in question are not in possession of the Appellants and the same are in the possession of one political party namely Maharashtra Navnirman Sena. Thus, it is clear that every attempt is made to ensure that the decree remains un-executed.

¶17In any case, there is nothing to show that there is collusion between the judgment-debtors and the decree-holders. It is admitted position that there is no satisfaction of the consent decree passed by the learned Trial Court for last about 20 years and huge decretal amount has remained to be recovered. It is the contention of Mr. Walimbe that the collusion is seen from the fact that the decree is being executed only against shops purchased by the present respective Appellants and the same is not being executed against other shops. The learned Executing Court in the impugned order has observed that the entire building is attached. Apart from that, it is to be noted that these shops are specifically earmarked in the Consent Terms to ensure compliance of at least part payment of money under the Consent Decree and in fact registered agreements for sale were executed by the judgment-debtors in favour of the decree-holders with respect to these four shops. It is further significant to note that the consent decree in the said Suit was passed on 16th June, 2003, registered agreements for sale with respect to these four shops were executed in favour of the decree-holders on 15th July 2003 and 2nd July 2003 and the registered agreements of sale were executed in favour of respective Appellants on 25th March 2004, 29th December 2004 and 12th February 2007.

¶18The witnesses who have been examined by respective Appellants have accepted that no previous enquiry was made by them. In fact, they have accepted that they have not sought any information from the judgment-debtors, regarding whether these shops were sold to any other parties or any agreement is executed with any other party. They have not taken any search from the Registrar's office. Just for illustrative purpose, relevant cross-examination of Kundalik Shankar Sarkate i.e. Constituted Attorney and father of the Appellants in Second Appeal No. 537 of 2022 is set out. "12-ek>k eqyxk efu"k ;kus xkGk dz-11 gk tkUgoh fcYMj] ekyd& t;lhax jk.ks ;kaP;k dMwu [kjsnh dsyk- R;k dkeh eh R;kus lnjgw xkGk fodzh dj.ksiwohZ nqlÚ;kcjkscj dkgh O;ogkj dsys vkgsr dh ukgh] ;kph pkSd'kh dsysyh ukgh-rlsp nq;;e fuca/kd dk;kZy; ;kaps dk;kZy;kr tkmugh pkSd'kh dsysyh ukgh- R;k dkeh eyk lnjgw dk;kZy;kr tkmu pkSd'kh dj.;kph xjt Hkklyh ukgh- lnjpk djkj >kyk R;kiwohZp lnjgw nj[kkLrhps dke U;k;ky;kr lq: gksrs] ;kph ekfgrh eyk ukgh-13-lnjpk oknxzLr xkGk dz-11] fn-2-7-2003 jksth lkeusokY;kus gqdeukek /kkjdkl jftLVj [kjsnhi=kus fodyk ;kph ekfgrh eyk ukgh-gqdeukek /kkjdkps Eg.k.ks dh R;kdkeh oknxzLr xkGk [kjsnh dj.;kiwohZ vtZnkjkus nq;;e fuca/kd dk;kZy;krwu 'kks/k ?ks.ks xjtsps gksrs- ;kph eyk ekfgrh ukgh-lnjgw oknxzLr xkGk [kjsnh dj.ksiwohZ vtZnkjkus vko';d dk;ns'khj ckchaph iwrZrk dsyh ukgh] gs [kjs ukgh R;kewGs vtZnkj gk izkekf.kd [kjsnhnkj ukgh] gs Eg.k.ks eyk ekU; ukgh-oknxzLr xkGk gqdweukek /kkjd o lkeusokyk ;kaP;krhy Lis-eq-dz-90@2003 fudky fn-16-6-2003 uqlkj rMtksMhus gwdweukek /kkjdkl ns.;kr vkyk] gs vtZnkjkl ekfgr ukgh-Þ (Emphasis added) Thus, it is clear that no enquiry whatsoever has been made by the respective Appellants. In fact, it is admitted position that no action whatsoever has been taken by the obstructionists against the judgment-debtors even till date. Thus, it is clear that there is no collusion whatsoever between the judgment-debtors and decree-holders and the factual position on record clearly shows that the collusion is between the judgment-debtors and the Appellants i.e. Obstructionists.

¶19The next substantial question of law raised by Mr. Walimbe, learned Counsel appearing for the Appellants is that the execution could not have been filed unless completion certificate was obtained regarding said shops. It is significant to note that in the cross-examination, all the witnesses have accepted that when they purchased said shops, there was no completion certificate and when their cross-examination was conducted, they again admitted that there was no completion certificate. Mr. Mhaispurkar, learned Counsel appearing for Respondent Nos. 1 to 4 i.e. Decree-Holders submitted that no completion certificate is obtained even till today. It is significant to note that the consent-decree in Clause No. 1, which is regarding money decree, states that the said amount was to be paid within twelve months. The said decree was passed on 16th June 2003. The said twelve months period expired on 15th June 2004 and the execution was filed in 2004. Therefore, there is no substance in the contention raised by Mr. Walimbe that the execution filed is not maintainable and the same has to be filed after getting completion certificate. It is important to note that the decree sought to be executed is basically a money decree as reflected in Clause No.(i) of the Consent Decree and the other clauses are incorporated to ensure the compliance of Clause No. (i). Therefore, there is no substance in the contention of the Appellant that the execution could not have been filed without obtaining the commencement certificate.

¶20The third substantial question of law raised by Mr. Walimbe, learned Counsel appearing for the Appellants is that the Courts have not examined the right, title and interest of the Appellants. It is the submission of Mr. Walimbe that the obstruction is required to be dealt with as a separate suit. It is to be noted that in all these matters, the respective obstructionist have lead oral evidence and they have been cross-examined. The relevant documents are brought on record by both the parties. Mr. Walimbe is right to some extent as the orders passed by the learned Executing Court in all matters, are not in detail. However, the learned Appellate Court has considered the contentions in detail after considering the entire evidence on record.

¶21Mr. Mhaispurkar, learned Counsel appearing for Respondent Nos. 1 to 4 i.e. Decree-Holders relied upon the decision of the Supreme Court in the matter of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Another3. He more particularly relied on paragraph 14 of the said decision, which reads as under: "14. It is clear that the executing court can decide whether the register or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection 3 (1998) 3 Supreme Court Cases 723 of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the register. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary." (Emphasis added) Thus, it is clear that the adjudication contemplated under Order 21, Rule 97(2) of Code of Civil Procedure, 1908 need not involve a detailed enquiry every time. There is substance in the contention raised by Mr. Mhaispurkar that although the order passed by the learned executing court is not in detail, but the same records the fact that the purchase by the respective Appellants is inspite of registered agreement of sale executed by the judgment-debtors in favour of the decree-holders. Therefore, there is no substance in the third substantial question of law raised by the learned Counsel appearing for the Appellant.

¶22Mr. Walimbe, learned Counsel appearing for the Appellants has raised a fourth substantial question of law that although various options were provided in the consent terms, the Appellant has chosen only one option i.e. execution which is filed only for recovery of money. However, perusal of various terms and conditions of the consent terms clearly shows that Clause No.1 provides for money decree and Clause No.2 onward provisions are made to secure said money decree or at least part of money decree to the extent of Rs.16,59,000/- for which six shops were agreed to be sold to the Appellants and the said clause 2 also makes reference to payment mentioned in Clause no.1. Therefore, there is no substance in the said substantial question of law raised by Mr. Walimbe.

¶23As far as the additional substantial question of law raised by Mr. Walimbe, learned Counsel of the Appellants that both the Courts are incorrect in holding that the Appellants have no locus when the Appellants are the purchasers of the respective shops by registered sale-deeds, it is to be noted that the said contention was raised in the reply filed by the decree-holders and the perusal of the impugned order passed by the learned Executing Court and the learned First Appellate Court shows that the said contention has never been accepted or only reference is made to the said contention. The learned Executing Court through observation that the Appellant has no locus, wanted to convey that the Appellants have no independent right, title and interest. In any case, the learned First Appellate Court after considering the entire evidence on record, held that the Appellants have no independent right, title and interest and any right, title and interest created in their favour, is by the judgment-debtors after the decree has been passed and therefore the decree is also binding on them. The evidence on record clearly show that the respective Appellants are not the bonafide purchasers without notice of the decree. Therefore, there is no substance in the said substantial question of law raised by the Appellants.

¶24As, there is no substance in any of the substantial questions of law raised by the Appellants, all the Second Appeals are dismissed with costs.

¶25In view of dismissal of the Second Appeals, nothing survives in the Interim Applications, and the same are also dismissed.

¶26At this stage, Mr. Walimbe, learned Counsel appearing for the Appellants states that there is an interim relief granted by this Court on 17th August 2022 and the same operates till date and seeks continuation of said stay order for a period of twelve weeks. However, as the decree passed in the year 2003 has remained to be executed for more than 20 years and as the material on record shows that there is collusion between the Appellants i.e. Obstructionists and the Respondent Nos.5 to 9 i.e. Judgment-Debtors, no case is made out for continuation of said stay order. Therefore, the stay order is not continued and stands vacated forthwith.

[MADHAV J. JAMDAR, J.]