Maulvi Syed Haleemuddin v. Mantazir Hussain — 1979 DIGILAW 175 (ALL)

JUDGMENT P.N. Goel, J. - This is a decree-holders appeal against the judgment and decree dated 30-8-1967 passed by the Additional District Judge, Moradabad, reversing the judgment and decree dated 15-5-1966 passed by the Civil Judge, Moradabad in execution case No. 26 of 1965. 2. Facts sufficient for the disposal of this appeal are these: Decree-holder brought a suit for recovery of Rs. 5,095/-. Parties entered into a compromise and the suit was decreed in terms of the compromise. The terms of the compromise are as follows: (1) The judgment debtor respondent would pay Rs. 900/- towards costs of the suit to the appellant in Dec., 1955. (2) Out of the amount claimed the respondent would pay to the appellant a sum of Rs. 2,536-13-0. This amount was payable in three equal instalments due in Feb., 1956, Dec., 1956 and in Feb., 1957. (3) If the respondent did not pay any of the three instalments or the costs of the suit indicated above by the dates fixed, the appellant would be entitled to get the entire amount of Rs. 5,095/- in respect of which the suit was filed along with pendente lite and future interest and costs. In that event the appellant would have a right to realise by means of execution. 3. The respondent did not pay costs and the instalments indicated above. The appellant, therefore, put in execution application claiming Rs. 5,095/- etc. The respondent filed objection that the condition for realisation of Rs. 5,095/-was in the nature of a penalty and could not be enforced. This objection did not find favour with the executing court, but it found favour with the lower appellate court which relied on the case of Abdul Ghanisab v. Alampalli Nanjunda Setty, AIR 1962 Mys 9. In this case suit for recovery of Rs. 1,970/- and odd was filed. A consent decree for Rs. 700/- was passed. It was provided in the consent decree that the sum of Rs. 700/- should be paid in two equal instalments payable on 28-5-1954 and 28-11-1954. Then it was provided that if the judgment debtor committed default in making these payments, the decree-holder would be entitled to recover from the judgment debtor the entire sum of money claimed in the plaint. It will thus be seen that the facts of this case are on all fours with the facts of the present case. 4. Then it was provided that if the judgment debtor committed default in making these payments, the decree-holder would be entitled to recover from the judgment debtor the entire sum of money claimed in the plaint. It will thus be seen that the facts of this case are on all fours with the facts of the present case. 4. Sri N. C. Rajvanshi, learned counsel for the appellant laid stress on the facts of the case of B. Kishen Prasad v. Kunj Behari Lal, AIR 1926 All 278 : (24 All LJ 210). In this case the plaint ill decree-holder sued for recovery of sum of Rs. 15,000/-. The claim was denied in toto. Then there took place a compromise between the parties. The terms of the compromise were: (1) If the defendants paid a sum of Rs. 6,000/- within a month and a half and the balance of the sum that would make up one half of the amount of the claim, namely, Rs. l,532/8/- together with costs in the course of three months, the plaintiffs would remit the balance of their claim. (2) In the case of default on the part of the defendants, the plaintiffs would recover the entire amount of their claim. 5. Condition No. 1 clearly laid down that the plaintiffs would remit the balance of their claim provided the defendants paid Rs. 6,000/- within a month and a half and Rs. 1,532/8/- together with costs within three months. In the present case while allowing the respondent to pay Rs. 900/- as costs and Rs. 2,536/-and odd, there was no condition. It means that in the present case the suit was to be decreed for Rs. 2,536/- and odd along with costs of Rs. 900/-. It is further apparent that in the case of Kishen Prasad there was a concession shown to the judgment debtor. A bare perusal of the compromise in the present case does not indicate that the plaintiff decree-holder has shown any concession to the judgment debtor. In this aspect of the matter, the facts of the case of Kishen Prasad were materially different from the terms of the compromise which is to be interpreted in the present case. 6. A bare perusal of the compromise in the present case does not indicate that the plaintiff decree-holder has shown any concession to the judgment debtor. In this aspect of the matter, the facts of the case of Kishen Prasad were materially different from the terms of the compromise which is to be interpreted in the present case. 6. Sri N. C. Rajvanshi then referred to the cases of Barjorji Shapurji Sheth v. Madhavlal Jesingbhai, AIR 1934 Bom 370, and Firm Kari Poddar Ramphal poddar v. Hari Shankar Mills, AIR 1957 Pat 542 , in which the case of B. Kishen Prasad v. Kunj Behari Lal, (1926-24) All LJ 210) (supra), was followed. In the Bombay case there were two suits for recovery of Rs. 18,000/- in each suit. It means that in the two suits a total sum of Rs. 36,000/- was claimed. The terms of the compromises were that a total sum of Rs. 27,000/- would be paid within 15 days and if the said sum was so paid Burjorji would give up the remaining amount by way of concession and get both the decrees marked satisfied. It was then provided that if the total sum of Rs. 27,000/-. was not paid within the stipulated time, the decrees would remain in force for the full amount. These terms clearly showed that both the suits were to be decreed for the entire sum of Rs. 36,000/-. If the judgment debtors wanted to take advantage of the compromise, they should have paid Rs. 27,000/- within 15 days of the compromise. Then only they were entitled to get the concession made by the plaintiff decree-holder. It would thus be seen that the facts of the Bombay case were quite different. 7. In the Patna case the suit was filed for recovery of Rs. 7,343-1-0. The terms of the compromise were : (1) The claim was settled at Rs. 5,000/-. A sum of Rs. 2,000/- was paid on the date of the compromise. The remaining sum of Rs. 3,000/- was to be paid by 7-9-1952 either in instalments or in one lump sum. (2) If the sum of Rs. 3,000/- was paid by 7-9-1952, the amount of claim which was in excess of the agreed sum of Rs. 5,000/- as well as the costs and interest would stand remitted. (3) In case the sum of Rs. 3,000/- was to be paid by 7-9-1952 either in instalments or in one lump sum. (2) If the sum of Rs. 3,000/- was paid by 7-9-1952, the amount of claim which was in excess of the agreed sum of Rs. 5,000/- as well as the costs and interest would stand remitted. (3) In case the sum of Rs. 3,000/- or any portion thereof was not paid by 7-9-1952, the plaintiff would plaintiff would become entitled to recover the entire amount claimed in the suit. This again shows that if the defendant paid the amount agreed upon by the date fixed, a concession was to be shown to him by the plaintiff. No such condition exists in the compromise of the present case. 8. The position that easily follows is that the three cases relied upon by Sri Rajvanshi are not applicable to the facts of the present case. 9. Sri Rajvanshi then referred to the case of Fateh Chand v. Balkishan Dass, AIR 1963 SC 1405 . This case does not deal with the points involved. It deals with the reasonable compensation which can be permitted under Section 74 of the Contract Act. 10. At the end it would be useful to reproduce illustration (e) of Section 74 of the Contract Act : "(e) A, who owes money to B. a money lender undertakes to repay him by delivering to him 10 maunds of grain on a certain date and stipulates that in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty ......" 11. In the present case the clear stipulation is that the respondent would pay Rs. 2,536/- and odd towards the amount of claim and Rs. 900/- as costs of the suit. There is nothing in the compromise to indicate that the respondent had really agreed to pay the entire amount claimed. the penal clause followed the non-payment of any of the two sums agreed to be paid by the respondent towards the amount claimed. Therefore, the sum of Rs. 5,095/- became penal in the sense that it was much more than the amount for which the respondent bound himself. 12. In the result, there is no merit in the appeal. The learned Additional District Judge has taken right view of the legal aspect involved in the case. Therefore, the sum of Rs. 5,095/- became penal in the sense that it was much more than the amount for which the respondent bound himself. 12. In the result, there is no merit in the appeal. The learned Additional District Judge has taken right view of the legal aspect involved in the case. 13. Appeal is, therefore, dismissed with costs.