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TMI Blog2017 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or a lease rent at the rate of ₹ 50,000/- per month without any deductions and / or abatement. The other term which could be seen from the said settlement is that the said decree holder would provide all assistance in getting the necessary clearance required under the Income Tax Act, 1961 and also from the Deputy Collector of the Jalpaiguri. It is not in dispute that the objection was raised by the judgment debtor when an application seeking permission from the Deputy Collector of Jalpaiguri was filed under his signage yet the judgment debtor accepted the monthly rent in respect thereof. The sum and substance of the said settlement is that the judgment debtor would sale the property to the decree holder upon acceptance of the consideration money and in order to facilitate such sale would assist the judgment debtor in obtaining the necessary permission. The reciprocal obligation, which could be seen therefrom is that the payment of the sum within the time indicated therein which had in fact been paid by the decree holder. It is also not in dispute that the decree holder continued to pay the monthly rent till the time the judgment debtor with his associates illegally and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime was thereafter extended and it was further agreed that the sale would be effected in favour of the nominee of Mr. Dhingra with the Toonbarrie Tea Company Pvt. Ltd. and the payment already made would be treated to have been made in terms of the original agreement dated 12th March, 1988. Alleging that the said owner failed and neglected to perform his part of obligation under the said agreement a suit being C.S. 486 of 1991 was filed by Mr. Dhingra as well as the said nominee company in the original side of this Court for specific performance of the said agreement. While the said suit was pending an application for addition of parties was taken out by one Santosh Kumar Agarwal and M/s AGR Plantations Pvt. Ltd. which was eventually allowed and they were added as the defendant nos. 2 and 3 in the said suit. Subsequently, the said suit was compromised and the terms of settlement formed part of the said compromise decree. The salient feature of the said terms of settlement was that the original owner shall effect the sale of the tea estate in favour of the AGR Plantations Pvt. Ltd. for a consideration price of ₹ 63 lacs out of which a sum of ₹ 1 lac was paid on or befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said probate proceeding which ultimately ended into a compromise and the heirs of the said original owner being the applicants in the instant application became the owners to the extent of half share in respect of the tea estate. The present petitioner says that the decree holder did not discharge its obligation under the said settlement in not only paying the balance consideration money but also did not meet out the other liabilities of the tea estate viz. provident fund, interest thereupon, gratuity, labour wages, labour statutory obligation, unsecured creditors etc. It is a further stand of the applicant that the rent as agreed under the said settlement was paid till May, 2000 and therefore the aforesaid negligence attributed to the decree holder frustrates the decree inasmuch as they failed and neglected to perform their part of obligation under the said settlement. Amidst the pendency of the said execution proceeding two applications came to be filed viz. G.A. 2238 of 2007 and G.A. 2239 of 2007. The first one is filed by the said Santosh Kumar Agarwal for an order of injunction restraining the owners from executing the conveyance in favour of AGR Plantations Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court which were registered as APO 387 and 388 of 2011. The Division Bench categorically observed that the dismissal of the applications and the observations recorded thereupon do not require any interference and proceeded to dismiss the aforesaid appeals with a request to the executing Court to proceed with the execution application. However, leave was granted to the parties to raise the contentions of reciprocal obligations before the executing Court in the following words:- In a decree of the like nature, where parties would have reciprocal obligation to discharge in having the complete satisfaction of the decree, the executing Court was competent to examine whether the parties in fact discharged their obligation and in case there is any lapses the executing Court is well within its power to see to it that such obligations are discharged by the defaulting parties so that the decree could reach a logical conclusion through satisfaction. We leave it open to the parties to raise identical contentions on reciprocal obligations before the learned Judge when execution application would be taken up for hearing. The order of the Division Bench was further cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation entrusted upon the judgment debtor renders the decree inexecutable. In essence, the decree holder wanted the dismissal of the execution application for non-performance of the part of the obligation by the judgment debtor and acting in derogation with the terms of settlement. The judgment debtor namely the AGR Plantations Pvt. Ltd. denies the allegations made by the decree holder in the instant application and asserted that they performed their part of the obligation in terms of the settlement and the decree holder have acted in departure therefrom and prayed that the execution application be allowed. It is averred therein that the decree holder settled all the liabilities of the bank who issued no objection certificate in this regard and further obtained necessary clearance certificate under the income tax and also no objection certificate from the Agricultural Income Tax Department. It is further stated that all the dues of the various departments were cleared but the application for permission from the District Magistrate, Jalpaiguri though sought for, was not granted as the original owner raised an objection in the month of July, 2000. It is further averred that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following terms. a) Shri Santosh Kumar Agarwala and M/s/ A.G.R. Plantations Pvt. Ltd. both of 240B, A.J.C. Bose Road, Calcutta 700 029 are added as party defendants. b) Shri Bhupatish Roychoudhury agrees to sell and Shri Santosh Kumar Agarwal agrees to buy Toonbarrie Tea Estate which is the subject matter of the above litigations. c) At the request of Shri Santosh Kumar Agarwal herein and for the consideration price of ₹ 63,00,000/- (Rupess Sixty three lacs only) to be paid to Shri Bhupatish Roy Choudhury, the defendant herein has agreed that the sale is to be made in favour of M/s. AGR Plantations Pvt. Ltd. nominee of Shri Santosh Kumar Agarwal with the consent of the party. d) Out of the said consideration, the sum of ₹ 1,00,000/- has duly been paid to the defendant by Messrs. AGR Plantations Pvt. Ltd. vide Bankers Cheque No. 429702 dated 11th March 2000 issued by Allahabad Bank Elgin Road Branch and it has been agreed that the balance consideration amount shall be payable in the manner following:- (i) ₹ 6 lacs on the date of the order to be passed herein. (ii) ₹ 4 lacs within 60 days from the date of the order to be passed herein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty is completed by execution and registration conveyance in favour of Mr. Santosh Kumar Agarwala. l) The shortfall on account of payment of monthly lease rent and/or monthly rent shall be made good on or before the execution of the conveyance deed. m) Save as hereinabove stated the parties shall have no claim against each other. Each party would bear and pay their own legal costs. Section 51 of the Contract Act deals with the reciprocal promises. The said provision contemplates where a contract consists of reciprocal promises to be simultaneously performed, it is not obligatory on the promisor to perform his part of the promise unless the promisee is ready and willing to perform his reciprocal promise. The terms of a promise may be expressed or implied varying in degrees and may in some cases be an additional one. Though such conditions may not be in express terms but must be capable of being ascertained from its very existence and substance. The word simultaneously used in Section 51 connotes concurrent conditions and gives security to such performance and the later part of the Section contains unique feature where the promisor need not perform his promise unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cible possession but also putting a third party in possession which necessitated the amendment in the reliefs indicated in the tabular statement and to such effect a supplementary affidavit has been affirmed and filed in the suit and the executing Court should allow the execution application by molding the relief on the subsequent events. In case of Jai Narain Ram Lundia Vs- Kedar Nath Khetan Ors. reported in AIR 1956 SC 359 the Apex Court was considering a case arising from an execution proceeding where the decree for specific relief of a contract was sought to be executed. The nature of the decree as it appears therefrom was the direction to sale certain shares in the private limited company together with 5 annas share in a partnership firm on a payment of ₹ 2,45,000/-. The said decree was sought to be executed by the appellant therein and an objection was raised that the judgment debtors were not in a position to implement the conditions imposed upon them by the decree because the said partnership firm was dissolved by an agreement between the parties therein. Since, the property was within the territorial jurisdiction of another Court, the decree was transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ratio deducible from the above report is that in case of reciprocal obligation the party applying for execution must show that he has performed his part of obligation and is ready and has ability to perform and the judgment debtor has failed to perform his part of an obligation. The scope of the executing Court is limited and must confine to the terms of the decree. Any interpretation which would frustrate the tenet of the decree should be avoided as the executing Court cannot travel beyond the same. The segregation and / or splitting up of various terms of the settlement by an executing Court would amount to a voyage beyond the periphery of the decree and it would not be wrong to say that the terms thereof shall get varied. In the instant case, the salient feature is that the original owner agreed to sale the tea garden to AGR Plantations Pvt. Ltd., the nominee of the decree holder for a consideration of ₹ 63,00,000/- out of which ₹ 1,00,000/- was already paid and a further sum of ₹ 6,00,000/- and ₹ 4,00,000/- are required to be paid on the date of the acceptance of the terms and conditions while decreeing the suit and within 60 days from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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