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2017 DIGILAW 60 (JK)

Pradeep Kumar Puri v. Ranjeet Kour

2017-02-08

B.S.WALIA

body2017
JUDGMENT : 1. Prayer in this petition u/S 104 of the Constitution of Jammu & Kashmir read with Article 226 of the Constitution of India is for quashing of order dated 15.01.2015 and 30.10.2012 passed by the Principal District Judge, Jammu in suit titled as Pradeep Kumar Puri Versus Naresh Kumar & Ors. on the ground that the undertakings filed by respondent No. 1 & her husband were wrongly held to be in accordance with the orders of the High Court dated 16.03.2012 in OWP No. 364/2012, whereas the same were not, consequently the application for leave to appear and defend the suit be dismissed and the suit of the petitioner be decreed along with interest and costs. 2. That the brief facts of the case leading to the filing of the instant petition are that husband of respondent No. 1 i.e. Naresh Kumar entered into an agreement with the father of the petitioner to sell a school known as Cyber Natics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu, along with movable and immovable assets, rights, licenses, privileges and permissions for Rs. 42,50,000/-. Possession of the said school and land was handed over upon receiving the entire consideration. However, thereafter, respondent No. 1 and her husband Naresh Kumar created such a situation that the agreement to sell had to be cancelled and the school and land returned back to respondent No. 1 and her husband vide duly executed revocation deed subject to payment of Rs. 54,00,000/- to the father of the petitioner which included Rs. 42,50,000/- paid by the petitioner's father, plus expenses incurred by the petitioner's father. Six cheques were issued towards said payment. However, out of the 6 cheques issued for the aforesaid amount, only the cheque for Rs. 2 lakhs was honoured while the remaining cheques were dishonoured on account of insufficient funds, thereby compelling the petitioner's father to file five complaints u/s 138 of the Negotiable Instruments Act for each of the dishonoured cheques besides a suit on 02.11.2007 under Order 37 of the CPC for recovery of Rs.73,22,000/- inclusive of interest accrued at that time in the Court of the Ld. Principal District Judge. 3. That an application was filed in the aforementioned suit by respondent No. 1 and her husband for leave to appear and defend the said suit. The same was granted by the Court of the Ld. Principal District Judge. 3. That an application was filed in the aforementioned suit by respondent No. 1 and her husband for leave to appear and defend the said suit. The same was granted by the Court of the Ld. Principal District Judge Jammu vide order dated 30.01.2012 subject to furnishing of Bank Guarantee of Rs. 40 lakhs. 4. That in the meantime, the petitioner's father died. Thereupon an application was moved for bringing the petitioner and his mother on record as legal representatives of the plaintiff i.e. Shri Shyam Puri. However the petitioner's mother also died. Consequently, the petitioner being the only child of his parents became the sole legal representative of his father and was accordingly brought on record as LR by the Court of the Ld. Principal District Judge, Jammu. 5. That in the meantime, respondent No. 1 and her husband Naresh Kumar filed OWP No. 364/2012 which was disposed of vide order dated 16.03.2012 by modifying order dated 30.01.2012 passed by the Court of the Ld. Principal District Judge Jammu with the consent of parties that respondent No. 1 and Naresh Kumar would file an undertaking instead of filing a bank guarantee "that they had not sold the building housing Cybernetics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu and would not alienate it or otherwise encumber it in any manner whatsoever during the pendency of the civil suit". 6. That it is the plea on behalf of the petitioner that the parties were directed to appear before the trial court for doing the needful. However respondent No. 1 and her husband did not file the undertaking in terms of the order of the High Court dated 16.03.2012 despite three extensions by the Court for doing the same. In the circumstances, the Court below decreed the suit of the petitioner for Rs.73,22,000/- along with interest @ 7.5% per annum with effect from the date of institution of the suit till realisation vide decree and judgement dated 23.04.2012. 7. In the circumstances, the Court below decreed the suit of the petitioner for Rs.73,22,000/- along with interest @ 7.5% per annum with effect from the date of institution of the suit till realisation vide decree and judgement dated 23.04.2012. 7. That it also the plea of the petitioner that although the decree was passed on merit on the failure of respondent No. 1 and her husband to file the undertaking in terms of the order of the High Court dated 16.03.2012, yet respondent No. 1 and her husband filed an application for setting aside of the decree on the plea that the same was ex parte and that the petitioner had filed an execution petition for sale of the property i.e. Cybernetics School, it's building and land which was attached before judgement under Order 38 Rule 5 CPC. 8. The petitioner in the execution petition took up the plea that respondent No. 1 and her husband were going to sell the school building and land and had not filed the undertaking as had been directed by the High Court to secure the interest of the petitioner and that, instead of filing the undertaking in terms of the order of the High Court dated 16.03.2012, the respondent had filed an undertaking stating therein "that the executant hereby undertake that he will not dispose of or create any third-party interest in the subject matter of the execution petition pending disposal before this Hon'ble Court." 9. That the petitioner's grievance is that although he filed objections that the undertaking was not in accordance with the order of the High Court dated 16.03.2012, yet the Ld. trial court vide order dated October 30, 2012 held that the undertaking filed by respondent No. 1 and her husband was in accordance with the directions of the Court as well as the High Court. It is contended that the petitioner did not challenge order, Annexure C dated 30.10.2012 passed by the trial court holding that the undertaking filed by respondent No. 1 and her husband was in accordance with the directions of the Court as well as the High Court since the said undertaking was only for staying the execution proceedings. 10. It is contended that the petitioner did not challenge order, Annexure C dated 30.10.2012 passed by the trial court holding that the undertaking filed by respondent No. 1 and her husband was in accordance with the directions of the Court as well as the High Court since the said undertaking was only for staying the execution proceedings. 10. That it is further the plea on behalf of the petitioner that the undertaking lost utility and validity with the disposal of execution proceedings, that in the meantime, husband of respondent No. 1 i.e. Naresh Kumar died on 21.11.2012 whereupon respondent No. 2 and 3 were arrayed as LR's of Naresh Kumar deceased judgement debtor and on 11.09.2014, the Court below, set aside the decree and judgement dated 23.04.2012 with the result that execution of the decree was disposed of and the undertaking given by the judgement debtor's also came to an end and the parties were relegated to the position as it existed prior to the passing of the decree thereby requiring respondent No. 1 and her husband to file an undertaking in accordance with the order of the High Court dated 16.03.2012 which was passed with the consent of the parties. It is pleaded that the respondents stood relegated to the position that the leave to appear and defend the suit was conditional to their complying with the requirement of furnishing undertaking as per order dated 16.03.2012 by the High Court in OWP No. 364/2012. It is stated that the aforesaid position was brought to the notice of the Ld. trial court i.e. that the respondents could not appear and defend the suit and their application for leave to appear and defend as well as the suit were liable to be dismissed on account of failure to furnish the undertaking, consequentially, the petitioner was entitled to a decree in terms of Order 37, CPC. However, the trial court vide order dated 15.01.2015 held that the undertaking filed by respondent No. 1 and her husband during execution proceedings was sufficient compliance of the order of the High Court as held by the trial court vide order dated 30.10.2012 and accepted the application of the respondents for leave to appear and defend the suit. 11. However, the trial court vide order dated 15.01.2015 held that the undertaking filed by respondent No. 1 and her husband during execution proceedings was sufficient compliance of the order of the High Court as held by the trial court vide order dated 30.10.2012 and accepted the application of the respondents for leave to appear and defend the suit. 11. The petitioners are aggrieved of order dated 30.10.2012 as well as order dated 15.01.2015 on the ground that the same are in violation of the consent order dated March 16, 2012 passed by the High Court in OWP No. 364/2012 whereby leave to appear and defend the suit was granted to respondent No. 1 and her husband on the condition specified therein and the Ld. trial court wrongly held that the undertaking filed by respondent No.1 and her husband in the execution proceedings was in accordance with order dated 16.03.2012. It is contended that on the failure of the respondents to comply with the order of the High Court there was no option available with the learned trial court but to dismiss the application for leave to appear and defend the suit and decree the suit of the petitioner as the undertaking filed by respondent No.1 and her husband during execution proceedings was for the purpose of staying the execution proceedings and did not pertain to grant of leave to appear and defend the suit and the order dated 30.10.2012 holding the undertaking filed by respondent No.1 and husband in the execution proceedings to be in accordance with the agreed order dated 16.03.2012 passed by the High Court was legally unsustainable. Plea is that the undertaking filed by respondent No. 1 and her husband came to an end with the setting aside of the decree which had been put to execution and the Ld. trial court by passing order dated January 15, 2015 had fallen in error in holding that the undertaking filed by respondent No. 1 and her husband during pendency of the execution proceedings was sufficient compliance of order dated 16.03.2012 passed in OWP No. 364/2012. 12. I have considered the submissions of Ld. Sr. Counsel in the light of various orders on record. No doubt, leave to appear and defend the civil suit filed by the petitioner's father was granted to respondent No.1 and her husband vide order dated 30.01.2012 by the Court of the Ld. 12. I have considered the submissions of Ld. Sr. Counsel in the light of various orders on record. No doubt, leave to appear and defend the civil suit filed by the petitioner's father was granted to respondent No.1 and her husband vide order dated 30.01.2012 by the Court of the Ld. Principal District Judge Jammu subject to furnishing of Bank Guarantee of Rs. 40 lakhs. The aforementioned order on challenge before the High Court in OWP No.364/2012 was modified vide order dated 16.03.2012 with consent of parties by granting liberty to respondent No. 1 and her husband to file an undertaking to the effect "that they had not sold the building housing Cybernetics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu and would not alienate it or otherwise encumber it in any manner whatsoever during the pendency of the civil suit" instead of furnishing Bank Guarantee. However on failure of respondent No.1 and her husband to file the undertaking in terms of the order of the High Court dated 16.03.2012, the Court below by way of judgement dated 23.04.2012 decreed the suit of the petitioner for an amount of Rs. 73,22,000/- along with interest @ 7.5% per annum with effect from the date of institution of the suit till realisation. The undertaking in terms of order of this Court dated 16.03.2012 was intended to protect the interest of the petitioner during the pendency of the suit. The suit came to be decreed on 23.04.2012. Thereafter, the application filed under Order 9 Rule 13 of the CPC was allowed and the judgement and decree dated 23.04.2012 was set aside vide order dated 11.09.2014. Resultantly the parties stood relegated to the position as it existed prior to the passing of the decree i.e. that of respondent No.1 and her husband being required to file the undertaking in accordance with the order of this court dated 16.03.2012 in OWP No. 364/2012. Order dated 30.10.2012 holding that there was no defect in the undertaking filed in the petition under Order 9 Rule 13 of the CPC was in the context of the then proceedings which were pending before the executing court. However since the judgement and decree dated 23.04.2012 was set aside vide order dated 11.09.2014, resultantly the parties were placed in the position as was existing prior to the passing of judgement and decree dated 23.04.2012. However since the judgement and decree dated 23.04.2012 was set aside vide order dated 11.09.2014, resultantly the parties were placed in the position as was existing prior to the passing of judgement and decree dated 23.04.2012. Consequently, as at that point of time, it was the order of the High Court dated 16.03.2012 in OWP No. 364/2012 which revived and was required to be complied with. Resultantly, leave to appear and defend the suit was conditional and subject to the order of the High Court dated 16.03.2012 requiring respondent No. 1 and her husband to file undertaking "that they had not sold the building housing Cybernetics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu and would not alienate it or otherwise encumber it in any manner whatsoever during the pendency of the civil suit" being complied with. The undertaking given by respondent No. 1 and husband before the executing court was for the limited duration of the execution proceedings. However, as noticed above, the same came to an end with the end of the execution proceedings on the setting aside of the judgement and decree dated 23.04.2012 vide order dated 11.09.2014. Thereafter, the position as existed in terms of order dated 16.03.2012 in OWP No. 364/2012 revived. Consequently the order of the Ld. Principal District Judge Jammu dated 15.01.2015 holding that the question of undertaking having already been deliberated upon by his predecessor could not be gone into and thereby rejecting the objections to the undertaking as filed by the plaintiff is legally unsustainable. Order dated 30.10.2012 pertained to and was in the context of the execution proceedings, therefore lost its relevance on the setting aside of the ex parte decree for the purpose of the adjudication of the suit. Thereafter, respondent No. 1 and her husband were required to file the undertaking in order to be able to appear and defend the suit. Order of the court below dated 15.01.2015 does not take aforesaid aspect of the matter into account. Accordingly, it is order dated 15.01.2015 which is set aside. Respondents are required to comply with the order of this Court dated 16.03.2012 in OWP No. 364/2012 and file an undertaking in terms thereof within 15 days of notice by the Court of the Ld. Accordingly, it is order dated 15.01.2015 which is set aside. Respondents are required to comply with the order of this Court dated 16.03.2012 in OWP No. 364/2012 and file an undertaking in terms thereof within 15 days of notice by the Court of the Ld. Principal District Judge Jammu to the respondents to do the needful on presentation of certified copy of this order failing which consequences in accordance with law to ensue. Petition allowed in aforementioned terms. No order as to costs.