Declaratory decree is not executable

In Meghraj Shah (Supra) a suit was filed by the plaintiff therein
in the following terms:
“Declaration of title and recovery of possession in
respect of 4 1/2 kathas out of plot No. 1577 appertaining
to Khata No. 777 in village Jaitia were claimed in the
suit."


The said suit was compromised in the following terms:
“That these defendants neither have nor shall have
any connection or concern with 4 1/2 kathas of the
disputed land bearing khata No. 777, khesra No. 1577,
situate at village Jaitia.”

A declaratory decree therein having been passed, the execution
application was held to be not maintainable.TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL
NEW DELHI
Dated 1st November, 2012
E.A.No.41 of 2012 in Petition No.430 of 2011
M/s Bharti Airtel Ltd.
Vs.
Tata Teleservices Ltd. & Anr.

BEFORE:
HON’BLE MR. JUSTICE S.B.SINHA, CHAIRPERSON



The Judgment Debtor herein has filed an objection to the
Execution Application filed by the decree holder, the relevant
paragraphs whereof read as under:
“It is submitted that undisputedly the purported
claim for money sought to be recovered by the
Application/Original Petitioners by way of the
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Present Execution Application was never proved
and reconciled in the Original proceedings before
this Hon’ble Tribunal. This is evident from the
fact:
(a) No evidence was ever lead before this Hon’ble
Tribunal in respect of the invoices which form
the basis for the Application/original Petitioner
claim. In fact the Petition was filed without the
invoices. The said invoices were served on the
Respondents much later on 14.11.2011 and
that too without any accompanying affidavit.
The Respondents had filed an affidavit on
18.12.2011 disputing the objecting to the said
invoices, which objections were not dealt with
by this Hon’ble Tribunal while pronouncing
the Judgment.
(b) There was no quantification of the claims. The
question of reconciliation and quantification of
claims was never before the Hon’ble TDSAT
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and/or dealt by the Hon’ble TDSAT.
5. It is submitted that in a suit for recovery,
unless it is a Summary Suit under Order 37 of
the Civil Procedure Code 1908 (CPC), it is
mandatory for the Claimant being the party
seeking a money decree from the court to lead
evidence and prove its money claim. The
Claimant is required to prove its claim by
leading evidence and filing affidavit in support
of the claim and the Respondent is given an
opportunity to rebut such claim. Even more,
when the other party to the suit has counter
money claim and has disputed the claims of the
claimant.”
2.
Mr. Ramji Srinivasan, learned senior counsel appearing for the
Judgment Debtor would contend that the decree passed in this case
being declaratory in nature is not executable.
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3.
It was urged that the Decree Holder filed the invoices before
this Tribunal but had not proved the same and, thus, this Tribunal
could not have passed a decree in terms of the prayer made by it in
the said petition.
4.
Mr. Shrinivasan in support of his aforementioned contention
has relied upon Syama Charan Das Vs. Satya Prosad Choudhaury
reported in AIR, 1923 Calcutta page 252, Meghraj Shah Vs. Rajbanshi Lal
& Ors., 1958 Patna High Court at page 546, Radha Rajak @ Radika Raja
Vs. Balmiki Devi & Ors, 1998, pat page 175.
5.
Mr. Maninder Singh, learned Senior counsel appearing for the
decree holder, on the other hand, submitted:
i.
The objection filed by the judgment debtor does not come
within the purview of Section 47 of the Code of Civil
Procedure.
ii.
The petition having been filed for the amount specified
therein and that the rate of interest stipulated in the
Interconnect Agreement therein and in view of the fact that
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the said petition has been allowed, it is incorrect to contend
that merely a declaratory decree has been passed by this
Tribunal.
iii.
The invoices were filed on 14.11.2011 and thus the same
having became part of the petition, it is futile to argue that
the same have not been brought on record.
6.
Indisputably the Judgment Debtor has preferred an appeal
against the judgment and decree passed by this Tribunal before the
Supreme Court of India and prayed for stay of the operation thereof.
7.
The said appeal has been registered as Civil Appeal No. 7355
of 2012. By an order dated 17.10.2012 it was directed as under:
“Taken on board.
Admit.
The prayer for interim relief is rejected.
However, it is made clear that if the appeal is allowed
by this Court, then the respondents shall have to
refund the amount paid by the appellants with
interest at the rate of 12% per annum.”
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8.
The Decree Holder /Petitioner had filed the petition praying
inter alia for the following reliefs:
“(a) Direct the Respondent to pay the Petitioner
Rs. 287.34 Crores till 30th September 2011 which
is due and payable under the contract along with
interest;
(b) Direct the Respondent to pay at Re. 0.10 per
SMS basis under the contract dated 29.08.2008
and 04.09.2008 and make payment on that basis
wef 01.10.2011 in future and continue till the date
of the judgment.”
9.
Clause 12.2 of the Interconnect Agreement provides of payment
of interest, which reads as under:
“Each party shall raise bills for the total number of
calls terminated in its network based on accumulated
conversation seconds converted into nearest minutes at
the end of the month and send to the other party within 7
days from the end of each month. The settlement between
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the Parties, for the charges payable for the traffic
terminating in each other’s network, will be done on a
monthly basis for the net traffic imbalance between the
parties. The party terminating higher traffic in the other
Party’s network will make payment for the net excess
calls terminated, at the rate per minute as mutually
agreed. It is agreed between the Parties that payments
against the said bills shall be made by the date, 14 days
after the end of each month (“Due Date”). in case of any
delay in payment beyond Due Date, an interest at the
rate equal to SBI PLR plus 200 basis points prevailing on
the relevant Due Date Shall be payable by the defaulting
Party from the Due Date to the date of actual payment. ”
10.
From the objection filed by the Judgment Debtor itself, it would
be evident that the invoices were served on it on 14.11.2011.
11.
As indicated heretobefore, a reply thereto has been filed. A
notice to produce documents has been served on the Decree Holder
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purported to under Order XI rule 15 of the Code of Civil Procedure.
12.
On the aforementioned plea alone, the Judgment Debtor
contends that the decree is a declaratory one.
13.
This court having regard to the operative part of the judgment
cannot be said to have granted a mere declaratory decree.
14.
From a perusal of the record it appears that the interim prayer
made by the decree holder was not granted and the Petition was
directed to be heard expeditiously.
15.
No formal issue was framed nor any prayer therefor was made
by the parties. No prayer was also made by any of the parties to
adduce any oral evidence. It was accepted at the Bar that the petition
should be disposed of on the basis of the documents placed on
record, the dispute between the parties being essentially centred
round the interpretation of the Regulations framed by the TRAI and,
thus, involving questions of law.
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16.
If the Judgment Debtor has issued notice on the Decree Holder
to produce documents in terms of Order XI Rule 5 of the Code of
Civil Procedure and if the same had not been complied with, it could
have filed an appropriate application before this Tribunal directing it
to do so.
17.
As the Judgment Debtor’s own showing the matter remained
on Board under the heading for ‘Hearing’ for a long time, it was
necessary for it to move this Tribunal for passing an order on failure
on the part of the Decree Holder to make the documents available for
inspection. If the same had not been produced for inspection, it was
at liberty to move before this Tribunal in terms of Order XI Rule 18 of
the Code of Civil Procedure.
18.
If such a proceeding was initiated, the relevance of the invoices
and other documents, if any, could have been determined by this
Tribunal.
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19.
It also does not appear form the record that such a contention
was raised before this Tribunal at any point of time.
20.
In the opinion of this Tribunal, therefore, the Judgment Debtor
cannot be permitted to raise the said question before this Tribunal at
this Stage.
21.
Section 47 of the Code of Civil Procedure reads thus:
47. Questions to be determined by the Court
executing decree— (1) All questions arising between the
parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge
or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit.
[2]* * * *
(3) Where a question arises as to whether any
person is or is not the representative of a party, such
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question shall, for the purposes of this section, be
determined by the Court.”
22.
Any objection to the maintainability or otherwise of an
Execution Application must relate to the question of execution,
discharge or satisfaction of the decree.
23.
In Syama Charan Das (Supra) the question which arose for
consideration was whether a separate suit is maintainable, when a
declaratory decree has been passed.
In the said matter a consent decree was passed by reason
whereof merely a declaratory decree was passed as regards the title
to the property so far as the parties thereto are concerned.
Some immovable properties apart from those involved in the
suit also were included in the petition of compromise, said to be the
self acquired property of the plaintiff and the defendant therein
stating that the former had some share in the said properties as
specified therein.
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24.
In the aforementioned situation, it was opined:
“The petition of compromise did not state with
regard to the properties comprised in this clause,
or, indeed, with regard to the properties mentioned
in the other clauses, that the contending parties
would be entitled to take possession of their
respective shares by execution. The compromise
settled the extent of the right of each of the rival
claimants, which was by no means identical in
respect of the different properties; but there was no
provision that the rights so fixed were to be
enforced by execution of the decree. The decree was
in essence declaratory in character, and tire
plaintiff could not have recovered possession in
execution thereof.”
25.
In Meghraj Shah (Supra) a suit was filed by the plaintiff therein
in the following terms:
“Declaration of title and recovery of possession in
respect of 4 1/2 kathas out of plot No. 1577 appertaining
to Khata No. 777 in village Jaitia were claimed in the
suit."
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26.
The said suit was compromised in the following terms:
“That these defendants neither have nor shall have
any connection or concern with 4 1/2 kathas of the
disputed land bearing khata No. 777, khesra No. 1577,
situate at village Jaitia.”
27.
A declaratory decree therein having been passed, the execution
application was held to be not maintainable.
28.
In the aforementioned cases filing of separate suits was held to
be necessary.
29.
In Radha Rajak (Supra) the suit filed by the plaintiff therein was
dismissed with costs.
A decree for realization of costs was prepared.
The defendant filed an execution application wherein a prayer
was made for recovery of the suit property.
That prayer was allowed by the Trial Judge.
A revision petition filed thereagainst, however, was allowed
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stating that the question whether the decree is capable or incapable of
execution must be decided in terms of the provisions of the section 47
of the Code itself.
30.
The said decision has also no application in the facts and
circumstances of the case.
31.
The objection filed to the Execution Application being devoid of
any merit, therefore, is dismissed.
32.
Keeping in view the tenor of order passed by the Hon’ble the
Supreme Court of India, the Judgment Debtor is directed to pay the
decretal amount within four weeks form date failing which
appropriate proceedings shall be initiated.
....................
(S.B. Sinha)
Chairperson
MM