In Bhavan Vaja and others (supra), the Hon'ble Supreme Court has observed that it is the duty of the Executing Court to find out the true effect of a decree as passed though it cannot go behind such decree in the execution proceedings. For construing a decree, the Executing Court can take into consideration the pleadings as well as the proceedings leading up to the decree. That is the plain duty of the Executing Court. In Darshan Singh (supra) it has been observed that the corrections contemplated under Section 152 of the Code are only accidental omissions or mistakes. A clerical mistake is a mistake in writing or typing and the same can be duly corrected in exercise of that power. As noted above in the present case the compromise memo has been correctly prepared and it is only the award which contains an erroneous reproduction of Clause 2 of the compromise memo. The mistake is therefore accidental as well as clerical in nature. The observations in Tulashiram Nivarutthi Shendge (supra) that even in the matters of the present type, the Executing Court can exercise powers under Section 152 of the Code for correcting an award support the case of the respondent No. 1.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 02 of 2019
Decided On: 14.03.2019
Dhanraj Dnyaneshwar Koche Vs. Rajiv Ramdattaji Batra and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2019(4) MHLJ 664
1. By this writ petition filed under Article 227 of the Constitution of India the order dated 4-12-2018 rejecting the application filed under Section 47 of the Code of Civil Procedure, 1908 (for short, the Code) as well as the order dated 11-12-2018 rejecting the application moved by the petitioner seeking permission to lead evidence is under challenge.
2. The facts in brief are that the petitioner as well as the respondent No. 2 are the owners of field bearing Survey No. 235-1-A admeasuring 1 Hectare 56R situated at mouza Kavatha Tah. Deoli, District Wardha. On 25-2-2016 they entered into an agreement to sell the said field to the respondent No. 1 for a consideration of Rs. 40,00,000/-. An amount of Rs. 24,15,000/- was paid to them by the respondent No. 1. Though the balance amount of Rs. 15,85,000/- was sought to be paid by the respondent No. l, the sale deed was not got executed. The respondent No. 1 accordingly on 5-4-2016 approached the District Legal Services Authority, Wardha under Section 19(5) of the Legal Services Authorities Act, 1987 (for short, the said Act). All parties appeared before the Lok Adalat and on 9-4-2016 it was agreed between the parties that the petitioner as well as the respondent No. 2 would refund the amount of Rs. 24,15,000/- received by them by 31-3-2017 with interest at 12% per annum. It was further agreed that if the petitioner and the respondent No. 2 failed to refund the aforesaid amount, then the respondent No. 1 would pay the balance consideration of Rs. 15,85,000/- to them after which the sale deed in respect of the agricultural field was to be executed. An award was accordingly passed before the Lok Adalat. The respondent No. 1 thereafter sought to execute the aforesaid award by paying the balance consideration as agreed. The Executing Court on 3-4-2018 directed the respondent No. 1 to deposit the balance consideration after which the petitioner and the respondent No. 2 were directed to execute the sale deed. In those proceedings, the petitioner filed an objection under Section 47 of the Code below Exhibit-25. According to the petitioner, the clauses reproduced in the award passed by the Lok Adalat were inconsistent and contradictory to each other. As it was not permissible for the Executing Court to go beyond the said award, the execution proceedings were liable to be dismissed. The Executing Court dismissed the said application. Another application below Exhibit-26 was filed by the petitioner seeking permission to lead the evidence as regards contents of the award. This application was also rejected by the Executing Court. Being aggrieved these orders are challenged in the present writ petition.
3. Shri Rahul Dhande, learned Counsel for the petitioner submitted that the Executing Court committed an error in rejecting the objections raised under Section 47 of the Code. According to him, the award passed by the Lok Adalat was not executable as it was not in consonance with the agreed terms. Referring to the said award, it was submitted that Clause 2 thereof was contradictory to Clause 1 as there was no question of the petitioner and respondent No. 2 paying balance consideration of Rs. 15,85,000/- as stated therein. The said defendants were in fact entitled to receive the balance consideration and not pay that amount. It was well settled that the Executing Court could not travel beyond the decree which was required to be executed as it stood and hence the award as passed was not capable of execution. He submitted that the Executing Court in the impugned order has referred to such terms which were not part of the award while rejecting the objections raised by the original defendants. He referred to the provisions of Sections 19 to 21 of the said Act as well as to the National Legal Services Authority (Lok Adalats) Regulation, 2009 in that regard. Further, the Executing Court was not justified in rejecting the application for permission to lead evidence. If the award as passed was now sought to be executed, it would result in execution of such terms that were never agreed to by the parties. He thus submitted that the impugned orders were liable to be set aside.
Shri V.B. Bhise, learned Counsel for the respondent no. 2 supported the aforesaid submissions.
4. On the other hand, Shri Tejas Deshpande, learned Counsel for the respondent no. 1 supported the impugned orders. He submitted that the terms of compromise as recorded and duly signed by the parties were not in dispute. The respondent No. 1 had agreed to pay the balance consideration of Rs. 15,85,000/- to the petitioner and the respondent No. 2 as they had failed to refund the amount of Rs. 24,15,000/-. Merely because Clause 2 of the terms of compromise was wrongly reproduced in the award which was in fact a clerical mistake, the award did not become unexecutable. The terms of compromise as such were not under challenge by the petitioner and the respondent No. 2 and therefore the objections as raised by them were rightly rejected by the Executing Court. Placing reliance on the decisions in Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another MANU/SC/0005/1972 : AIR 1972 SC 1371, Jayalakshmi Coelho vs. Oswald Joseph Coelho MANU/SC/0145/2001 : (2001) 4 SCC 181 and State of Punjab vs. Darshan Singh MANU/SC/0843/2003 : (2004) 1 SCC 328, it was submitted that the error in question in reproducing the terms of compromise was clerical in nature. Such error could be corrected in the light of the provisions of Section 152 of the Code. He also referred to the decision in Tulashiram Nivarutthi Shendage and others vs. Taluka Legal Services Authority, Malshiras and others MANU/MH/0898/2013 : 2013(4) Mh.L.J. 796. It was thus submitted that no interference was called for and if required the respondent No. 1 could be directed to take appropriate steps to have the clerical mistake corrected.
5. I have heard the learned Counsel for the parties at length and I have given due consideration to their respective submissions. It is not in dispute that pursuant to the agreement of sale dated 25-2-2016 between the parties, the respondent No. 1 had paid an amount of Rs. 24,15,000/- to the petitioner and the respondent No. 2. Before the Lok Adalat, it was agreed between the parties that the amount received by the petitioner and the respondent No. 2 would be returned by them by 30th September, 2017 with interest. If the same was not so returned then the respondent No. 1 was to pay balance consideration of Rs. 15,85,000/- to them and the sale deed in question was to be executed. The compromise memo dated 9-4-2016 entered into between the parties before the Lok Adalat incorporating these terms has been duly signed by all parties. It is while preparing the award that Clause 2 therein has been wrongly written. Instead of reproducing Clause 2 as per the compromise memo, it has been stated that if the defendants failed to pay the balance consideration then the defendants shall execute the sale deed in respect of the suit property. It is obvious that this was merely a mistake of reproducing the exact terms agreed between the parties and signed by them in the compromise memo. There is no question of the defendants failing to pay balance consideration as has been incorrectly stated in the award. The objection as sought to be raised under Section 47 of the Code is merely an attempt to take advantage of the incorrect reproduction of the agreed compromise terms.
6. In Bhavan Vaja and others (supra), the Hon'ble Supreme Court has observed that it is the duty of the Executing Court to find out the true effect of a decree as passed though it cannot go behind such decree in the execution proceedings. For construing a decree, the Executing Court can take into consideration the pleadings as well as the proceedings leading up to the decree. That is the plain duty of the Executing Court. In Darshan Singh (supra) it has been observed that the corrections contemplated under Section 152 of the Code are only accidental omissions or mistakes. A clerical mistake is a mistake in writing or typing and the same can be duly corrected in exercise of that power. As noted above in the present case the compromise memo has been correctly prepared and it is only the award which contains an erroneous reproduction of Clause 2 of the compromise memo. The mistake is therefore accidental as well as clerical in nature. The observations in Tulashiram Nivarutthi Shendge (supra) that even in the matters of the present type, the Executing Court can exercise powers under Section 152 of the Code for correcting an award support the case of the respondent No. 1.
7. Thus from the aforesaid legal position, it becomes clear that there was a clerical mistake in reproduction of the actual terms agreed between the parties as per the compromise memo. The Executing Court rightly found no merit in the objections as raised under Section 47 of the Code. There is also no reason to permit the original defendants to lead evidence in the Execution proceedings. It is found that the present is not a fit case for this Court to exercise writ jurisdiction under Article 227 of the Constitution of India. Exercise of such jurisdiction would have the power of thwarting the compromise process entered into between the parties before the Lok Adalat. Hence, the writ petition stands dismissed with no order as to costs. It is open for the respondent no. 1 to take such steps as are permissible in law to have the award corrected and executed.
No comments:
Post a Comment