Dismissed

Gold Coins Hotels and Resorts Limited v. Sri Mohammed Nissar

Karnataka HC2 Jan 2023WP/12864/2013

Case brief

AI extract

What is this about?

Writ petitions filed by a judgment debtor challenging two orders passed in an execution petition were dismissed. The High Court held that the respondents had complied with their part of a compromise decree while the petitioner failed to do so, making indulgence inappropriate.

What did the court decide?

Writ Petitions dismissed. Orders dated 08.03.2013 and 13.03.2013 in execution petition upheld.

Gold Coins Hotels and Resorts Limited Vs… — Contract and Commercial Disputes | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF JANUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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WRIT PETITION NO.12630 OF 2013 (GM-CPC) C/W WRIT PETITION NO.12864 OF 2013 (GM-CPC)

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BETWEEN:

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GOLD COINS HOTELS AND RESORTS LIMITED NOW KNOWN AS M/S RENOWN HOTELS AND RESORTS PVT. LTD., HAVING ITS REGISTERED OFFICE, AT NO.50, GOLD TOWER, RESIDENCY ROAD, BANGALORE-560025. REPRESENTED BY ITS DIRECTOR, MR. CHETAN P.TAYAL. AGE: 59 YEARS

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...PETITIONER (COMMON)

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(BY SRI. V. LAKSHMINARYANA, SENIOR ADVOCATE FOR SMT. ANUSHA L., ADVOCATE)

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AND:

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SRI. MOHAMMED NISSAR S/O LATE MOHAMMED KHALLEL, AGED ABOUT 57 YEARS,

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SMT. ABIDA NAHID W/O MOHAMMED NISSAR, AGED ABOUT 55 YEARS,

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BOTH ARE R/A FLAT NO.G-3,

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GARDEN APARTMENTS, VITTAL MALYA ROAD, BANGALORE-560001

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SRI. L. CHATURBHUJ S/O LATE LUNIDARAM, AGED ABOUT 63 YEARS,

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SMT. C. MAYA W/O L. CHATURBHUJ, AGED ABOUT 58 YEARS,

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BOTH ARE R/A NO.22, 1^ST FLOOR, 2^ND MAIN, SRINARAYAN CHAMBERS, SUDHAMNAGAR, BANGALORE-560027.

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…RESPONDENTS (COMMON)

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(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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SRI. B.M.ARUN, ADVOCATE FOR RESPONDENT NO.3 AND 4)

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IN W.P.NO.12630/2013:

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 08.03.2013, IN E.P.NO.1566/12, A COPY OF WHICH IS PRODUCED AT ANNEXURE-J, APPLICATION FILED BY THE PETITIONER TO DISMISS THE EXECUTION PETITION AS PREMATURE BE ALLOWED AS PRAYED FOR AND QUASH ALL FURTHER PROCEEDINGS IN E.P.NO.1566/12 ON THE FILE OF X ADDL. CITY CIVIL JUDGE, (CCH NO.26) BANGALORE OR ALTERNATIVELY DIRECT THE EXECUTING COURT TO CONSIDER AND DISPOSE OF THE THREE APPLICATIONS FILED BY THE PETITIONER, COPIES OF WHICH ARE PRODUCED AT ANNEXURES-D, E AND F RESPECTIVELY, IN ACCORDANCE WITH LAW.

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IN W.P.NO.12864/2013:

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.03.2013, IN E.P.NO.1566/12, ON THE FILE OF THE X ADDL. CITY CIVIL JUDGE, (CCH NO.26) BANGALORE PRODUCED AT ANNEXURE-C AND ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER 21 RULE 15 READ WITH SECTION 151 CPC.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 30.09.2022 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The learned Senior counsel appearing for the petitioner and the learned counsel for the respondents were informed that I had a faint memory of having appeared for either of the parties and requested both of them to ascertain the same from the record. However, both of them after obtaining instructions from their clients submitted that they had never engaged me as their counsel. Since both the learned counsel reposed faith in the Court and submitted that the petitions may be taken up for consideration, these petitions are taken up for final disposal.

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W.P.No.12630/2013 is filed by the judgment debtor in E.P.No.1566/2012 on the file of the X Addl.City Civil and Sessions Judge, Bengaluru (CCH-26), challenging the order dated 08.03.2013 by which, an application filed by the judgment debtor to dismiss the execution petition was rejected with cost of Rs.2,000/-.

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W.P.No.12864/2013 is filed by the judgment debtor in E.P.No.1566/2012 challenging the order dated 13.03.2013 passed by the X Addl. City Civil Judge, Bengaluru, by which, despite an application filed by it under Order XXI Rule 45 of the Code of Civil Procedure, 1908 (henceforth referred to as ‘CPC’ for short), the executing Court directed execution of the sale deed in favour of the decree holder.

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The petitioner in these petitions filed a suit in O.S.No.6664/2004 before the X Addl. City Civil and Sessions Judge, Bengaluru, for eviction of the respondents. The said suit was decreed and was challenged by the respondents in RFA Nos.2110/2006, 2027/2006 and

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2028/2006. A settlement was entered into before this Court. The respondent Nos.1 and 2 contended that the petitioner did not comply with their obligations as per settlement, which forced them to seek execution of the decree in E.P.No.1566/2012. The petitioner objected to the enforcement of the settlement, which was rejected by the Executing Court in terms of the order dated 12.12.2012. This was challenged before this Court in W.P.No.51587/2012 and W.P.No.51663/2012. This Court dismissed the said writ petitions in terms of the order dated 12.02.2013 and it was thereafter challenged unsuccessfully before the Hon’ble Apex Court in SLP Nos.10049-50/2013. In the meanwhile, the petitioner filed an application to recall the order dated 13.04.2010 accepting the compromise in RFA Nos.2110/2006, 2027/2006 and 2028/2006. Later, the petitioner filed three applications in the execution petition, one of which was filed to club E.P.Nos.1566/2012 and 2565/2012 and the second was to adjourn E.P.No.1566/2012 to await outcome of SLP Nos.10049-50/2013 and to await the order

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passed on the application filed in RFA No.2110/2006 and other appeals. The petitioner alleged that the applications are not disposed off. Later, the petitioner filed another application to dismiss the execution as premature, which was rejected in terms of the order dated 08.03.2013, which is the subject matter of W.P.No.12630/2013.

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Thereafter, the petitioner again another application under Order XXI Rule 45 read with Section 151 of CPC to “to drop the proceedings in the execution petition or in the alternative to direct the decree holders to serve the draft sale deed on the judgment debtors so that the judgment debtors can file objections”. The executing Court took this application on record and held that the Court had already passed an order directing execution of the sale deed. This order is challenged in W.P.No.12864/2013.

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The Learned Senior counsel representing the petitioner submitted that the respondent No.1 did not perform his part of the contract and therefore, the

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compromise decree was inexecutable. He contended that the executing Court committed an error in rejecting the application. He also submitted that the Special Leave Petition filed before the Hon’ble Apex Court was disposed off.

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Per contra, learned counsel for the respondent Nos.1 and 2 submitted that the petitioner is in the habit of keeping the litigation alive. She submitted that the application filed by the petitioner in RFA No.2110/2006 and other appeals, was rejected by this Court in terms of the order dated 13.03.2013. She submitted that in compliance with the compromise entered into, the respondent Nos.1 and 2 have complied with their part of the obligation by executing appropriate documents and surrendering vacant possession of the premises Nos.1, 2 and 3. Learned counsel invited the attention of the Court to a memo filed before the executing Court in E.P.No.1566/2012 handing over two keys of the first floor premises. She has also placed on record an indemnity bond executed in

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compliance with their obligations and the compromise. Hence, she submitted that the present petitions are another exercise by the petitioner to keep the issue pending. In the meanwhile, she submitted that the Director of the petitioner, his wife and son have executed a deed of release in respect of the property in question on 06.04.2013 and therefore, the conduct of the petitioner is clearly contumacious.

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I have considered the submissions made by the learned Senior counsel representing the petitioner and the learned counsel for the respondents.

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It is evident from the records placed before this Court that O.S.No.6664/2004 was filed by the petitioner herein against the respondents for the relief of ejectment, while O.S.Nos.7199/2003 and 7200/2003 were filed by the petitioner for ejectment of the other respondents. The suits after contest were decreed following which RFA Nos.2027/2006, 2028/2006 and 2110/2006 were filed before this Court. Later, the parties

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entered into a compromise in terms of which, the respondent Nos.1 and 2 acknowledged that the petitioner is the absolute owner of the property known as ‘Radhakrishna Complex’ and it agreed to convey 2,000 sq.ft. in the second floor of the said complex to the respondent Nos.1 and 2. The respondent Nos.1 and 2 were required to deliver the possession of the basement and first floor offices in the building known as ‘Gold Tower’ at Residential Road, Bengaluru. Likewise, the petitioner had agreed to transfer the property bearing Flat Nos.201 and 205 at Saleh Arcadia, Richmond Town, Bengaluru. The respondent Nos.1 and 2 agreed to return all the pronotes, cheques etc., It was specifically agreed that the compromise terms would be performed within a week from the date of the compromise, failing which, either party were entitled to enforce the compromise. The respondents stated that they had no objection for the petitioner to take possession of the premises on the 3^rd floor. Likewise, all criminal cases filed against each other would be settled unconditionally. The petitioner also undertook to withdraw

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all cases against each other. Likewise, certain

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understandings were entered into in terms of which some of the respondents transferred their shareholdings in the petitioner. RFA Nos.2027/2006, 2028/2006 and 2110/2006 were disposed off in terms of this compromise.

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The respondent Nos.1 and 2 filed E.P.No.1566/2012 to enforce the said compromise decree, which was objected by the petitioner herein contending that the respondents failed to perform their part of the contract. The petitioner herein repeatedly filed objections to the execution petition. The executing Court rejected the objections of the petitioner, which was challenged before this Court in W.P.Nos.51587/2012 and 51663/2012. This Court in terms of the order dated 12.02.2013 dismissed the writ petitions holding that the executing court had not transgressed any provision of law. The petitioner has thereafter unsuccessfully challenged this order before the Hon’ble Apex Court in SLP Nos.10049-50/2013. The petitioner thereafter filed an application in RFA

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No.2110/2006 to recall the compromise, which too was dismissed on 13.03.2013. The petitioner challenged this order before the Hon’ble Apex Court in SLP No.13655/2013, which also came to be dismissed. In the meanwhile, the petitioner represented by its Director executed a deed of release dated 06.04.2013 in respect of two flats bearing Nos.201 and 205 at Saleh Arcadia Apartments in favour of his son and daughter. Even after exhausting all the remedies, the petitioner filed an application under Section 151 of CPC contending that the execution petition was pre-mature and not maintainable in law on the ground that the compromise decree was not in respect of the suit property but was in respect of a different property. It was also contended that since the compromise decree envisaged creation of a new title, it had to be compulsorily registered. Further, it was claimed that the respondents did not perform their part of the contract. The executing Court held that a similar question was raised by the petitioner and that the same was rejected by an order dated 12.12.2012, which was

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challenged before this Court in W.P.Nos.51587/2012 and 51663/2012 and the said writ petitions were dismissed by this Court. The executing Court held that the decree holder had complied most of the obligations and it was due to the obstruction caused by the petitioner that some of the obligations were yet to be performed. The executing Court therefore held that the petitioner was protracting the execution petition on one or other ground and hence, rejected the application in terms of the order dated 08.03.2013. Later, the executing Court directed the execution of the sale deed in favour of the respondent Nos.1 and 2. Thereafter, the petitioner again another application under Order XXI Rule 45 read with Section 151 of CPC to “to drop the proceedings in the execution petition or in the alternative to direct the decree holders to serve the draft sale deed on the judgment debtors so that the judgment debtors can file objections”. The executing Court took this application on record and held that the Court had already passed an order directing execution of

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the sale deed. These two orders are challenged in these two writ petitions.

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Though the learned Senior counsel appearing for the petitioner proposed to address the Court on various questions of law, he did not dispute the fact that the Director of the petitioner had released the flats bearing Nos.201 and 205 in favour of his son and daughter in absolute violation of the compromise which warranted the petitioner to convey them to the respondent Nos.1 and 2. He also did not dispute the fact that C.C.No.24897/2003 and C.C.No.2381/2004 were disposed off as agreed under the compromise. Likewise, the learned Senior counsel did not dispute the fact that the respondent Nos.1 and 2 had delivered possession of the basement and first floor against receipt of a sum of Rs.10,00,000/- by demand draft dated 24.07.2010. He also did not dispute the fact that 35 pronotes were delivered up by the respondents for safe custody of the Trial Court and the respondent No.1 had indemnified the petitioner against all consequences in

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respect of a cheque bearing No.494416 for a sum of Rs.90,00,000/-. Further, the suit filed in O.S.No.15859/2006 before the City Civil Judge, Mayo Hall Unit was withdrawn by the respondent No.1 and C.C.No.30960/2006 was withdrawn and W.A.No.226/2008 filed by the respondent No.1 was dismissed. The respondent No.1 also withdrew all allegations in contempt proceedings before this Court in C.C.C.No.1/2007, which was dropped in terms of the order dated 23.03.2010 and the criminal proceedings were quashed by this Court in Crl.P.Nos.3111/2010 and 3112/2010. Likewise, the shareholdings in the petitioner - company were transferred in favour of one of the Directors of the petitioner - Company.

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The above facts demonstrably indicate that the respondent Nos.1 and 2 have complied their part of the compromise and it is for the petitioner to comply its part of the obligation. The fact that the Director of the petitioner have released the two flats in favour of his daughter and

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son, has proved beyond doubt the oblique intent of the petitioner to avoid performance of its obligations.

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In that view of the matter, no indulgence need

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be shown to the petitioner in these writ petitions.

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Hence, these writ petitions are dismissed .

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Sd/JUDGE

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PMR

Gold Coins Hotels and Resorts Limited v. Sri Mohammed Nissar

Case brief

What is this about?

What did the court decide?

Gold Coins Hotels and Resorts Limited v. Sri Mohammed Nissar

Case brief

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