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TMI Blog2007 (10) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... the said letter, copy of which was annexed to the plaint at Exhibit B . The plaintiffs house was burgled and amongst various articles, the original confirmation receipt was also stolen. A report with the police was lodged. Despite the fact that the defendant has agreed to repay the amount within one month as he was to sell one of his properties, he did not pay the same. However, by post dated cheques the defendant made payment of ₹ 1.50 lacs to the plaintiff during the period 19th July, 1997 and 11th October, 1997, but the balance amount of ₹ 12 lacs was not paid despite the commitments made by the defendant. Thereafter, placing the above facts on record, in the letter dated 14.9.1998 the plaintiff demanded the said amount from the defendant. Even notice through counsel was sent by the plaintiff on 16th October, 1998 which was duly received. Vague reply was received on 26th October, 1998 by the plaintiff stating that the amount was not due. On these facts the plaintiff filed the suit under the provisions of Order 37 of the Code of Civil Procedure and prayed for a decree for ₹ 12 lacs with interest at the rate of 18% p.a. from the date of filing of the suit till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed. Further the learned Single Judge found that it was a consent decree and the time schedule provided in the decree was binding on the party and the time could not be extended ordinarily not for mere asking as the Court cannot rewrite the contract between the parties. It will be useful to refer to the following findings recorded by the learned Single Judge in the impugned order: As pointed out earlier, time cannot be extended by exercising power under Sub-rule (2) of Rule 11 of Order XX of the said Code. As held by the learned single Judge in case of Durga Joshi (supra), in the facts of this case Section 148 or Section 151 cannot be invoked for extending the time as it is not permissible to alter the decree on the ground of equity. This is not a case where relief is sought against a penalty or forfeiture. The plaintiff has granted a concession to the defendant to pay a lesser amount by installments. In this case there is no penalty or forfeiture provided in the decree. Again turning back to the facts of me case, even going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In the event of the defendant committing any two defaults or the last default in payment of ₹ 12,00,000 by monthly installment of ₹ 1,00,000.00 as aforesaid, then and in that event, the plaintiff shall be at liberty to execute the decree for the entire decretal amount or the balance thereof remaining due and payable as mentioned in Clause (1) above. 3) 2/3rd of the institution fees be refunded to the plaintiff. Dated this 8th day of December, 2004. On the basis of these minutes the Court passed the following order dated 8th December, 2004: The matter is on board for filing consent terms. Advocates for the plaintiff and defendant are present. They file decree on admission duly signed by the plaintiff, defendant and their respective advocates. The decree on admission is taken on record and marked X for identification. Undertaking if any, is accepted. The suit along with summons for judgment is disposed of accordingly in view of the decree on admission. No order as to cots. Refund of Court fee, if any, as per rules. Certified copy expedited. The Court had not only passed a decree in terms of the consent terms as recorded in the opening line of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such an agreement or compromise should be lawful and the Court has to record its satisfaction in regard to those ingredients. Consent/agreement in writing between the parties is a condition precedent to invocation of the jurisdiction of the Court under Order 23, Rule 3 of the CPC. The agreement between the parties should neither be void nor voidable under the Indian Contract Act and it has to be a lawful agreement. It is the agreement between the parties which results in passing of a decree under Order 23 while in contradistinction thereto under Order 12, Rule 6, no consent of parties would be required by the Court to pass a decree. This distinction is determinative in this regard and different consequences will follow on the basis of a decree by consent and a decree on admission. 9. The learned Counsel appearing for the appellant led some emphasis on the provisions of Order 20, Rule 11 of the CPC to argue that the Court ought to have allowed the Notice of Motion taken out by the appellant for permission to make payment of the instalments in terms of the compromise despite the default. Order 20, Rule 11 reads as under: 11. Decree may direct payment by instalments.- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or prayed for liberty to pay the installments and upon acceptance of the amount he should be relieved against the breach he had committed in payment of the installments on their respective due dates. The Civil Judge, Senior Division, in that case, took the view that the judgment-debtor should be relieved against the penalty subject to the conditions stated in the order. After discussing different views on this aspect, the Full Bench held as under. There are two conflicting views which have been taken by this Court on this question and the two protagonists of these two views are Sir John Beaumont and Sir Norman Lacleod, two learned Chief Justices of this Court. Sir John Beaumont in Burjorji Shapurji v. Madhavlal Jesingbhai 58 Bom. 610 : A.I.R. (21) 1934 Bom. 370 was considering a case where a certain amount was made payable under the decree and it was provided that if a certain amount was paid on the dates specified, then satisfaction was to be entered up. In default of payment on the due date, the full amount under the decree became payable. The judgment-debtor failed to pay the smaller amount on the due date and the decree-holder applied for execution and the question arose whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Dholidas v. Chimanlal Bhudardas Shah First Appeal No. 244 of 1939, decided by Beaumont C.J., And Sen J., on 29th November, 1940. There he points out that there is no general power in Courts of equity to disregard agreements which it thinks unjust and he also points out that at the present time the rules of equity are almost as well settled as rules of the common law and he sounds a note of warning that more harm than good would be done by allowing Courts to interfere with agreements made between the parties merely because the Court may think a particular agreement unfair. The principle enunciated by him applies not only to consent decrees but also to decrees passed by the Court in invitum. Whereas in the case of a consent decree, it is the question of the sanctity of contract, in the case of a decree it is the question of a solemn adjudication by the Court of the rights of parties. 11. A point has also been urged as to whether the decree-holder waived the breach by accepting payments. The facts show that from 1938 till 11th October, 1943, the decree-holder accepted payments from time to time from the judgment-debtor. On the default having taken place admittedly the whole decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the nature of a conditional decree and thus the Court retained the power to extend the time. In our considered view, the judgment of the learned Single Judge of this Court thus has no application to the facts of the present case. 13. It is amply clear from the aforenoticed facts that the appellant had taken an advantage/concession in terms of the compromise decree which was passed by the Court in furtherance to the agreement between the parties dated 8th December, 2004. Admittedly, the appellant has committed default and he is liable to face the consequences of the default by which the entire decretal amount has become due and payable giving right to the respondent to execute the decree as such. The Court has rightly rejected the plea of the appellant for grant of extension and consequent acceptance of installments despite default. The Court could only alter the terms and conditions agreed between the parties by consent of the parties and not on a unilateral plea taken by the appellant. Merely because the agreed terms were titled as Minutes of decree on admission would not change the substance of the document. As already noticed, the minutes of the decree dated 8th Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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