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2012 DIGILAW 84 (CAL)

Abhijit Sen v. Sibendhu Basu

2012-01-20

NADIRA PATHERYA

body2012
Judgment : PATHERYA, J. This execution application has been filed to execute the decrees dated 30th March, 2004, 28th June, 2004 and 25th February, 2005. The case of the applicant Abhijit Sen (Sen) is that on 30th March, 2004 by consent of parties all disputes between Sen and respondent No.1 Shibendu Basu (Basu) were settled. Several entities and individuals were added as parties to the said settlement. Subsequently by order dated 28th June, 2004 by consent of parties the order dated 30th March, 2004 was recalled and order passed. By order dated 28th June, 2004 certain individuals so also corporate bodies were added to the proceedings and settlement was recorded. Under the said settlement payment was to be made which by further order dated 25th February, 2005, was modified. The total amount payable was Rs. 35 lakhs of which Rs. 15 lakhs would be paid by 12th May, 2004 and the balance sum of Rs. 20 lakhs would be paid in fifteen equal monthly instalments. Interest at 12% would be paid on the entire sum on and from 1st January, 2000 to 31st December, 2003, at 10% per annum on and from 1st January, 2004 to 12th May, 2004 and thereafter at 6% per annum on the reducing balance till payment. Payments have been made as per the order. In fact the principal amount has been received in time and it is only with regard to interest there has been some delay. The decree provides for steps to be taken for withdrawal of all proceedings including criminal cases. The criminal cases initiated by the decree holder have been withdrawn. Those criminal cases filed by Basu have not been withdrawn, instead criminal cases have been initiated for 12 cheques paid by Sen in 1999. On 30th April, 2009 an order was passed in the execution application in terms of prayers (h) and (j) which was confirmed by order dated 18th February, 2010. A further order in terms of prayer (i) was also passed on 18th February, 2010. On 2nd June 2005 a criminal case was initiated in respect of the 12 bearer cheques which by order dated 28th May, 2008 was dropped in view of the settlement between the parties before the High Court in CS 105 of 2003. A Naraji petition was filed being C/16155 of 2008 for recall of the said order dated 28th May, 2008. A Naraji petition was filed being C/16155 of 2008 for recall of the said order dated 28th May, 2008. Case 614 of 2003 was filed against the respondent no.1. In the vacating application which is treated as the affidavit in opposition of the respondent Basu the calculation is based on order dated 28th June, 2004. The first installment was to be paid on 12th May, 2004. In case there was default on the part of the applicant Sen, the respondent Basu could have executed the decree but this was not done. In fact contempt proceeding was filed as Basu failed to withdraw the criminal cases. One month’s time was given to the alleged contemnor to withdraw the criminal case by order dated 7th July, 2005. An order was passed on 7th September, 2006 for expeditions disposal of C/2545 of 2000 in CRR 2300 of 2006 wherein expeditious disposal of C/2545 of 2000 was sought. On the date of the consent decree the dispute was in respect of nine cheques. On 15th April, 2006 a final report was submitted in the Court of the learned Chief Metropolitan Magistrate, Kolkata which has been accepted and on the basis of such report the order of 28th May, 2008 was passed and thereafter the order of 30th April, 2009. The hearing of the Naraji petition was stayed in April, 2009. Reliance is placed on AIR 1961 SC 832 for the proposition that none is to suffer for an act of Court. AIR 1990 SC 2177 is for the proposition that an executing Court is not to go behind the decree or beyond the decree in respect of interest. Therefore, orders be passed as sought in the execution application. Opposing the said execution application the respondent Basu submits that the orders have not been complied with. By the order dated 30th March, 2004 payment of fifteen lakh was to be made by 12th May, 2004. As the said sum was not paid therefore, interest accrued and it is for this reason that the 2000 proceeding was not withdrawn. Payment of the 16th instalment is outstanding even today and it is only pursuant to the order passed in criminal revision application that sums have been paid on account of interest. Default has been committed by Sen therefore, no execution is warranted. Payment of the 16th instalment is outstanding even today and it is only pursuant to the order passed in criminal revision application that sums have been paid on account of interest. Default has been committed by Sen therefore, no execution is warranted. The criminal case of 2003 has not been withdrawn and it is because of this that the criminal case of 2000 has also not been withdrawn. Although execution of orders is permitted but the same is possible only on certified copies of the orders as will appear from Chapter 17 Rule 10 of the Original Side Rules including Rule 44 which makes orders executable on certified copies. For the said proposition reliance is placed on AIR 1963 Calcutta 104. AIR 1961 SC 832 is distinguishable in view of the Original Side Rules. The subject-matter of 2005 proceedings was not pending on the date of the order. It is only after the proceedings initiated by the Income Tax Department that Basu came to know of Sen’s misdeeds. The encashment of such sums has not been disputed in the affidavit-in-reply affirmed by Abhijit Sen on 15th July, 2009. Having considered the submissions of the parties this application warrants no order as both Sen and Basu agreed to a settlement. There has been delayed payment by Sen as will appear from order dated 25.2.2005 and the direction for payment made in C.R.R. 118 of 2007 which has been complied with. On such delayed payment whether interest has been paid is not borne out from the application while in the vacating application which has been treated as opposition non-payment is pleaded. As the executing court cannot go behind the decree no order is passed in respect thereof. C/614 of 2003 has been filed in Jharkhand by the proforma respondent No. 3 Basu has pleaded that a non-bailable warrant of arrest has been issued against him. C/2545 of 2000 and C/614 of 2003 were pending when the consent decree was passed and both ought to have been withdrawn within 10 weeks of the 1st payment. Both were not withdrawn. Basu went a step ahead and obtained an ex parte order on 7.9.2006 in C.R.R. 2300 of 2006 for expeditious disposal of C/2545 of 2000. The said proceedings (C/2545 of 2000) has been stayed in C.R.R. 118 of 2007 by order dated 15.02.2007 and therefore, the said proceedings need not be further stayed. Both were not withdrawn. Basu went a step ahead and obtained an ex parte order on 7.9.2006 in C.R.R. 2300 of 2006 for expeditious disposal of C/2545 of 2000. The said proceedings (C/2545 of 2000) has been stayed in C.R.R. 118 of 2007 by order dated 15.02.2007 and therefore, the said proceedings need not be further stayed. From a reading of the orders passed on consent, it is evident that the proforma respondent No.3 belongs to the Sen group and to plead no control over the proforma respondent No.3 cannot absolve Sen from the rigours of non-compliance of the orders. Therefore, by not withdrawing C/614 of 2003 Sen cannot seek execution of the orders. In fact by the order dated 28.6.2004 as corrected on 25.2.2004 Basu was given liberty to execute the order against Sen in case of default. C/16155 of 2008 is the subject-matter of a Naraji petition filed and pending. To pass any order in respect thereof would amount to prejudging the issue. The point of maintainability of this execution application was raised by Basu, as the orders were sought to be executed without obtaining certified copies. The certified copy of the order dated 30th March, 2004 is available while the certified copies of the orders dated 28.6.2004 as corrected on 25.2.2005 is not available and although as held in A(1961) SC 832 for the act of Court, a litigant ought not to suffer, in view of the Original Side Rules which is to supersede the Code of Civil Procedure as held in A(1963) Cal 104, as a general rule the execution application could not have been filed without certified copies of the orders. In the instant case although an application was filed for certified copies, such copies was not made available to the parties by the Department and for the act of Court no litigant ought to suffer. Therefore the execution application is maintainable but for the reasons mentioned above no order is passed thereon. Accordingly, the application is dismissed and interim orders vacated. Later: Prayer for stay made is considered and refused.