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TMI Blog2008 (7) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of the decree by payment. 3. The award, in its material terms', provides for payment of a sum of ₹ 6,82,62,117/- with pendente lite and post-award interest at the simple rate of 15 per cent per annum. The award permitted the judgment-debtor to pay off the amount within three months from the date thereof, failing which the decree-holders were entitled to get a conveyance of premises No. 30, Shakespeare Sarani, Calcutta-700 017 executed and registered in their favour. The concluding and operative portion of the award provides as follows:- I, therefore, direct as follows: (a) The respondent will pay a total sum of ₹ 6,82,62,117/- together with interest at the rate of 15% per annum simple on the principal amount of ₹ 5,18,98,909/- from 16th April, 1999 until payment within a period of three months from the date hereof, (b) If the respondent does not pay the aforesaid sum within the said period of three months, the claimants will be entitled to get the conveyance of premises No. 30, Shakespeare Sarani together with the benefit of the sanctioned plan registered in their favour or any one of them or their nominee or nominees on compliance of all legal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs launched by the decree-holders. The judgment-debtor seeks to demonstrate that the stand now taken by the decree-holders is contrary to their earlier assertion that it was only money that the decree-holders were entitled to. 6. The decree-holders had insisted earlier that the decree could only be satisfied upon the immovable property being sold and the sale proceeds being made over to them in protanto satisfaction of the amount covered by the decree. The decree-holders had sought a sale of the Shakespeare Sarani property through a receiver. Such failed attempt culminated in the order dated June 11, 2002 where the opening line records that the application in question was one for execution of a money award. 7. The judgment-debtor says that since this Court had already recognised the award that is the subject-matter of either application at present, to be one for payment of money, the decree-holders cannot be heard to assert to the contrary. Such order has not been carried in appeal and, according to the judgment-debtor, it has attained finality and the principles of res judicata or constructive res judicata would apply. 8. The judgment-debtor refers to a decision reported at 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now put in question in the present execution proceedings." (11 IA 181) 9. For the same principle the judgment-debtor cites 48 IA 187 (Hook v. Administrator-General of Bengal & Ors.) and AIR 1953 SC 65 (Mohanlal Goenka v. Benoy Krishna Mukherjee). 10. The decree-holders claim that they cannot be the losers on opposite sides of the same issue. They say that if the first sentence of the order of June 11, 2002 operates as res judicata, the second paragraph of such order would operate in equal force against the present contention of the judgment-debtor. It was held in the second paragraph that the award provided a particular mode of satisfaction and such mode had to be exhausted first. The decree-holders say that notwithstanding their attempt to achieve in further execution what they had failed to obtain in the proceedings concluded by the order dated June 11, 2002, a party's conduct would scarcely affect the nature or quality of the decree or award sought to be implemented. 11. The second paragraph of the order dated June 11, 2002 needs to be noticed in its entirety:- Therefore, I am of the view that since the award provides for a particular mode of satisfaction and the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The only question therefore is whether the decree in the present case is of this nature. We are clear that it is. "19. The relevant part of the decree has already been quoted. It directs that "against payment or tender by the plaintiffs..... the said defendants..... do execute in favour of the plaintiffs proper deed or deeds of transfer of..... five annas share in the Marwari Brothers.... " This is not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they cannot exist without each other. The fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do so, only strengthens the conclusion that was the meaning and intendment of the language used. But the principle on which we are founding is not confined to cases of specific performance. It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his own obligations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Court's authority, the decree-holders rely on a judgment reported at AIR 1951 SC 189 (V. Ramaswami Aiyengar v. Kailasa Thevar) and place the following passages from the report:- 7. It seems to us that the High Court's approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law. "8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing Court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties. 18. The decree-holders bring an attractive logic to the discussion. If the award has only to be seen as a money award in view of the order dated June 11, 2002, it has only to be executed in the manner provided therein. Whether or not the view taken in the second paragraph of the order dated June 11, 2002 is a proper construction of the award and its import, it binds the parties. The principle of res judicata, or principles analogous thereto, are rules of public policy to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum awarded and the rate of interest and period there for are not variables, in a sense, or open to any interpretation. 24. But the valuation may be open to interpretation. The executing Court cannot attempt to read the arbitrator's mind but if valuation is found to be not crucial to the mode of execution, it may be susceptible to an interpretation other than what the decree-holders suggest. A money award is made; time is given to the judgment-debtor to pay up; a default clause is provided that calls for a property to be handed over in lieu of the money; and interest continues to run all the while till the decretal debt is discharged. If such is the fundamental structure of the award and an in-built mode of execution is provided, the valuation is a minor detail that is open to interpretation. 25. That Clause (b) says that the decree-holders would be 'entitled' to get the property has clearly been seen as an integral part of the mode of execution in the second paragraph of the order dated June 11, 2002. It was open to argument that if a party to the award was entitled to do a thing it may not have necessarily been obliged it to do it. But these are futile thoughts upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have an in-built mode of execution. 30. The sentence in Clause (b) to the effect that the transaction was to be completed within six months cannot be altogether disregarded as a meaningless line hanging in the middle of a contentious clause. Canons of interpretation would not permit such sentence to be construed as fixing an outer time limit for the transaction to be completed or, in default, for the award to remain a dead letter upon such period running out. Such sentence, however, can be profitably taken along if it is recognised that the time period would have a bearing on the validity of the valuation. 31. Ephemeral as a valuation is, it is rooted to a time and, may be, context. If, say, the award required only a building (and not the land) to be transferred after permitting the decree-holder an initial period to pay off the money found due, and if the building was either razed or compulsorily acquired, it would not imply that upon the period for payment elapsing, the award would become meaningless and incapable of execution. 32. The award is not in the nature of barter. It is possible for a decree or award to provide for a property to be made over in lieu of the money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lders are entitled to obtain under Clause (b) of the award. Such valuation should be concluded within a period of four weeks from date and steps preparatory to the registration of the conveyance should be proceeded with for the duration that the valuation is under progress. The decretal debt will be reckoned till the date of the actual registration of the conveyance and if money is to be paid by either side to the other upon the calculations being made, the same should be completed within a fortnight from the date of registration of the conveyance. 36. Upon the completion of the above formalities, the parties will enter up satisfaction of the award. Or else, either side will be entitled to launch fresh execution. 37. It will, however, be open to the decree-holders to agree to accept the money that has been offered by the judgment-debtor, complete with interest till the date that the title deeds of the property, which appear to be either with the decree-holders or the receiver, are returned to the judgment-debtor. If the judgment-debtor does not convey the property, upon there being no impediment thereto by virtue of any other order, within the time permitted the receiver will exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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