Sam Higginbottom Institute Of Agriculture Technology And Science v. Acurite Contractors Engineers
2024-08-27
J.J.MUNIR
body2024
DigiLaw.ai
JUDGMENT : J.J. Munir, J. 1. This revision is directed against an order passed by the learned Civil Judge (Sr. Div.), F.T.C., Prayagraj dated 27. 09.2023 in Misc. Case No.8 of 2020, rejecting the judgment debtor's objection under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code'), seeking to set aside the decree dated 21.02.2018 passed in Original Suit No.1014 of 2012. 2. The facts giving rise to this revision are these: Sam Higginbottom Institute of Agriculture, Technology and Sciences, Naini, Allahabad (formerly the Allahabad Agricultural Institute Deemed University) awarded a works contract for some construction work to be done on their premises to M/s. Acurite Contractors & Engineers, Banjara Hills, Hyderabad, a partnership firm. The former shall hereinafter be called 'the judgment debtor' and the latter 'the decree holder'. For the purpose of giving effect to their covenants carried in the works contract, the decree holder and the judgment debtor signed a memorandum of understanding dated 19.12.2006, where both parties agreed that the total value of the work, to be executed under the contract by the decree holder, would be Rs.26,32,72,391/-. It was also covenanted that after deducting the moneys already paid to the decree holder in liquidation of the running bills, balance would be paid by the judgment debtor to the decree holder in three equal installments. Original Suit No.1014 of 2012 was instituted by the decree holder against the judgment debtor with a case that after deducting the money paid by the judgment debtor, the judgment debtor was obliged, according to the terms settled under the memorandum of understanding dated 19.12.2006, to pay the decree holder the balance of a sum of Rs.4,96,00,751/-, besides interest at the rate of 12% per annum w.e.f. 19.08.2009, which the judgment debtor did not. The judgment debtor, in answer to the summons for appearance, entered appearance, and, later on, in answer to the summons for judgment, applied for leave to defend. The Trial Judge by his order dated 25.07.2013 granted unconditional leave. A written statement was filed by the judgment debtor in compliance with the said order. The order of the Trial Court dated 25.07.2013, granting unconditional leave to the judgment debtor, was impugned by the decree holder vide Civil Revision No.380 of 2013, preferred to this Court.
The Trial Judge by his order dated 25.07.2013 granted unconditional leave. A written statement was filed by the judgment debtor in compliance with the said order. The order of the Trial Court dated 25.07.2013, granting unconditional leave to the judgment debtor, was impugned by the decree holder vide Civil Revision No.380 of 2013, preferred to this Court. The said revision was allowed in part vide judgment and order dated 23.09.2014, modifying the leave and making it conditional upon: (a) deposit of 50% of the total sum of money claimed by the decree holder, in cash; and, (b) furnishing adequate security for the balance to the satisfaction of the Trial Court, all to be done by the judgment debtor within six weeks from the date of the order made by this Court. 3. This order was challenged by the judgment debtor preferring a petition for special leave to appeal to the Supreme Court. The special leave petition was dismissed by their Lordships vide order dated 15.12.2014. The time to deposit 50% of the total sum of money claimed by the decree holder was extended by two weeks from the date of the order passed by the Supreme Court. While the special leave petition was pending before the Supreme Court, an application was made on 10.11.2014 by the judgment debtor before the Trial Judge, praying that the judgment debtor be granted opportunity to cross-examine the decree holder's witnesses and liberty to address the Court on legal issues. This application was rejected by the order dated 10.11.2014 passed by the Trial Judge. The said order was challenged by means of Civil Revision No.14 of 2015 carried before this Court. This Court by judgment and order dated 11.07.2016 allowed the revision in part, by which the sole relief that was granted was that the application made to the Trial Court stands allowed to the extent that the judgment debtor would have liberty to raise a question about the jurisdiction of the Court to try the suit as one under Order XXXVII of the Code “by pointing out non-applicability of Order XXXVII of the Code to the suit of the nature instituted against the defendant. But, while doing so, the defendant-revisionist would not have a right to lay its defense.” The order dated 10.11.2014, to the extent that it declined the prayer to allow cross-examination of the decree holder's witnesses, was affirmed. 4.
But, while doing so, the defendant-revisionist would not have a right to lay its defense.” The order dated 10.11.2014, to the extent that it declined the prayer to allow cross-examination of the decree holder's witnesses, was affirmed. 4. The judgment debtor says that on 11.11.2014, the Trial Court suo motu, without a prayer by the decree holder, directed it to file certain documents, which form basis of the suit and in the absence whereof, the suit would be dismissed. The objection of the judgment debtor was that the Trial Court could not permit a document that was basis of the suit to be filed at the hearing. The order dated 11.11.2014 was challenged by the judgment debtor, assailing it to be one in breach of Order VII Rule 14 of the Code, by means of Civil Misc. Writ Petition No.6007 of 2015. This writ petition was initially entertained and a stay of the order dated 11.11.2014 granted, but on 13.10.2015, this Court rejected the writ petition on the ground that the order of the Trial Judge dated 11.11.2014 was purely interlocutory in nature. The judgment debtor carried this matter too in a special leave petition to the Supreme Court, which was admittedly dismissed. The judgment debtor then moved another application before the Trial Judge with a prayer that the original fixed deposit receipts be accepted and sent to the Bank for endorsement of lien. Another application was moved on behalf of the judgment debtor to accept these securities. Both the applications were rejected by the Trial Judge vide order dated 01.01.2005 on ground that the judgment debtor has not complied with the orders of this Court dated 23.09.2014, regarding deposit of 50% of the sum of money claimed and for the balance, furnishing security within the time allowed. The judgment debtor filed a petition under Article 227 of the Constitution against the order dated 23.09.2014, being Matter under Article 227 No.4541 of 2016. Initially, this Court entertained the petition and granted a stay order, but, later on, vide order dated 27.10.2017, the petition was dismissed and the Trial Court directed to decide the suit expeditiously. 5. The judgment debtor then moved an application dated 5.01.2015 before the Trial Judge, praying that fixed deposit receipts be accepted, which the Trial Court rejected on ground that according to the order dated 23.09.2014, 50% cash had to be deposited.
5. The judgment debtor then moved an application dated 5.01.2015 before the Trial Judge, praying that fixed deposit receipts be accepted, which the Trial Court rejected on ground that according to the order dated 23.09.2014, 50% cash had to be deposited. Undaunted the judgment debtor moved still another application before the Trial Judge on 04.12.2015, prayer that the judgment debtor be permitted to encash the fixed deposit receipts, as the Trial Court had not accepted the FDRs. The judgment debtor in the main urged on point of jurisdiction that the claim of the decree holder is barred by time and the suit being one not based on bills of exchange, hundies or promissory notes or a written contract, it was not maintainable under Order XXXVII of the Code. 6. On 21.10.2018, the Trial Judge decreed the summary suit. The judgment debtor filed an objection under Section 47 read with Section 151 of the Code in Execution Case No.2 of 2018. The execution case aforesaid was registered by the Executing Court, upon execution being levied by the decree holder for the execution of the decree dated 21.02.2018 passed in the suit. As it appears, the objection that was urged before the Executing Court by the judgment debtor primarily was that the memorandum of understanding dated 19.12.2006 is no contract. The other objection is that the decree holder’s claim decreed by the Trial Court is time barred. The judgment debtor has claimed a sum of Rs.6,73,24,850/- from the decree holder by instituting a suit before the Civil Court at Allahabad in the year 2012, and the Court which passed the decree, therefore, had no jurisdiction to try and determine the suit. The objections under Section 47 were rejected by the Executing Court by the order impugned dated 27.09.2023. 7. Aggrieved, this revision has been filed. 8. Heard Mr. Saurabh Raj Srivastava, learned Counsel for the defendant in support of the motion to admit this revision to hearing and Mr. Rajesh Kumar Singh, learned Counsel appearing on behalf of the plaintiff. 9. The thrust of the submissions advanced before this Court on behalf of the judgment debtor inter alia are that the Executing Court had no jurisdiction to adjudge the validity of the memorandum of understanding dated 19.12.2006 in a summary suit, which could alone be determined in a regular suit.
9. The thrust of the submissions advanced before this Court on behalf of the judgment debtor inter alia are that the Executing Court had no jurisdiction to adjudge the validity of the memorandum of understanding dated 19.12.2006 in a summary suit, which could alone be determined in a regular suit. It is urged that the memorandum of understanding dated 19.12.2006 is not a written contract as understood under Order XXXVII of the Code. It is also urged that the memorandum of understanding was not executed by a person competent to act on behalf of the Vice Chancellor of the judgment debtor or the Board of Directors. The memorandum of understanding dated 19.12.2006 was procured by the decree holder by overpowering the officials of the judgment debtor, who were not competent to sign the memorandum of understanding. A plea regarding the claim being barred by limitation has also been raised. It must be noticed that this Court, while deciding Civil Revision No.14 of 2015 vide judgment and order dated 11.07.2016, had granted very limited relief to the judgment debtor to show on the basis of the decree holder’s case alone that the suit was not competent under Order XXXVII of the Code. It was clarified by this Court that the judgment debtor would not have the right to rely on his defence in any manner for the purpose and would have to demonstrate the non-maintainability of the suit under Order XXXVII from the plaint and nothing else. The Court while decreeing the suit vide judgment and decree dated 21.10.2018 examined the issue regarding the maintainability of the suit and for reasons assigned, decided it against the judgment debtor. Now, if the judgment debtor thought that the reasoning adopted by the Trial Judge was contrary to law in that, that within the limited right afforded to him by this Court to show that the suit was not triable under Order XXXVII, the Trial Judge has erred, the judgment debtor’s remedy lay in appealing the Trial Judge’s decree. 10. It is well settled that an objection under Section 47 of the Code is no substitute for the remedy of appeal.
10. It is well settled that an objection under Section 47 of the Code is no substitute for the remedy of appeal. It is a very limited remedy available to the judgment debtor, which is confined in its scope to a decision on all questions arising between parties to the suit, in which the decree was passed “relating to the execution, discharge or satisfaction of the decree”. It is not a remedy, which may enable a party to apply for reopening the judgment on merits. Also, in determining objections under Section 47, the Executing Court cannot go behind the decree and virtually review the Trial Judge’s judgment. If the decree is ex facie without jurisdiction in the sense that the Trial Court could never have tried the suit, on the basis of undisputed facts, may be the objections can be determined under Section 47 of the Code. Here, that is not the case. 11. During the hearing, much ado was made of the fact that what was entered into between parties on 19.12.2006 was a memorandum of understanding and not a ‘written contract’, as envisaged under Order XXXVII Rule 1(2)(a)(i) of the Code. This Court must caution ourselves to guard against succumbing to adoption of the diction and vocabulary of laymen from fields other than the law, where words that the law understands and recognizes have a legal connotation. The words 'memorandum of understanding' are words evolved by laymen (as distinguished from legal) in the corporate world for what lawyers understand as a contract. A contract has legal signification and the law distinguishes even an agreement from a contract. The law distinguishes an offer from an invitation to offer, and these are all matters that have been settled decades ago, in some cases centuries, in the world of law. We, therefore, need not accept in law the words employed by laymen or men of commerce about matters that are essentially legal. In the opinion of this Court, words such as 'memorandum of understanding, and many more that lead to complication of legal affairs and create avoidable confusion for the legal world, must be firmly discouraged in the drafting of formal documents, like contracts, conveyances, memoranda and articles of association of companies and the like. 12.
In the opinion of this Court, words such as 'memorandum of understanding, and many more that lead to complication of legal affairs and create avoidable confusion for the legal world, must be firmly discouraged in the drafting of formal documents, like contracts, conveyances, memoranda and articles of association of companies and the like. 12. This Court does not wish to say that for the words of new coinage that are referable to new and original ideas, emanating from the immense advances of mankind in the world of sciences, technologies and related advances in trade, commerce and industry should not be acknowledged in law. But, those would be words which are hitherto unknown to the law and not part of the corpus juris yet. This, however, does not hold true of words referable to ideas better known to the law and lawyers than others. Therefore, a contract must not be permitted to be described by different, myriad and words of uncertain connotation in the law. 13. With so much said about the matter, it is really difficult to accept what the judgment debtor urges in support of his case to accept these objections under Section 47 of the Code. We cannot reopen the judgment, even if it be wrong on facts and law; not that we say it is. That could have been done alone in an appeal from the judgment and decree. This Court, therefore, finds no infirmity with the reasoning of the Trial Court carried in the order impugned. We uphold the order impugned and dismiss the motion to admit this revision to hearing.