Dismissed

A.P.Raju, v. P.S.Gopalakrishnan Nair

Kerala HC15 Nov 2018OP (RC)/151/2018

Case brief

AI extract

What is this about?

This judgment deals with a writ petition challenging an execution court order refusing to set aside a compromise decree. The Court dismissed the writ, finding no ground to invoke Article 227 jurisdiction as the petitioner did not object before the decree. However, granting time to pay the agreed amount.

What did the court decide?

Petitioner granted four months time to pay Rs.25,00,000/- with 6% interest; execution proceedings deferred.

A.P.Raju, Vs P.S.Gopalakrishnan Nair — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940

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OP (RC).No. 151 of 2018

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AGAINST THE ORDER DATED 15.02.2018 IN RCP 13/2017 of PRL.M.C., KOTTAYAM

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PETITIONER:

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A.P.RAJU, AGED 58 YEARS, S/O.PAPPAN, THADATHIL HOUSE, PUTHUPALLY VILLAGE, PAYYAPADY P.O., KOTTAYAM TALUK.

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BY ADVS.SRI.T.N.MANOJ

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SRI.JOSSY KURIAN

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RESPONDENT:

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P.S.GOPALAKRISHNAN NAIR, S/O.SANKARAN NAIR, KOMBALAKKAL HOUSE, ANICKAD VILLAGE AND KARA, KOTTAYAM TALUK - 686 503.

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BY ADV. SRI.S.MANU

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 15.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP (RC).No. 151 of 2018

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JUDGMENT

K.HARILAL, J.

The petitioner is the respondent/tenant in R.C.(OP) No.13 of 2017 on the files of the

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Rent Control Court, Kottayam. The above mentioned rent control petition was filed under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 .

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2. The petitioner herein entered appearance and thereafter the matter was referred to Mediation, for settlement and the matter was settled in mediation. As per mediation, they entered into an agreement and the same was produced as Ext.P4. As per the said agreement, the petitioner herein was liable to pay Rs.25,00,000/- on before

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OP (RC).No. 151 of 2018

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30.04.2018. But, he has not paid the said amount within the said time. Consequently, the respondent herein filed E.P. No.138 of 2018 before the Rent Control Court, seeking execution of the compromise decree. The petitioner herein challenged the said compromise decree in the said Execution Petition, contending that the petitioner has signed the settlement, as he was made to believe the same, without understanding the impact of the signing and the consequences thereof, that may follow, in case of noncompliance. According to the petitioner, the terms of settlement was unconscionable. However, after considering the said objection, the Execution Court rejected the said objection and passed Ext.P5 order. The legality and correctness of the said order,

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OP (RC).No. 151 of 2018

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are challenged in this O.P.(RC).

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3. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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4. The learned counsel for the petitioner advanced arguments, contending that the Execution Court could have considered the objection raised by him, as the same would cut the basis of the compromise agreement. According to the learned counsel, the petitioner was forced to enter into an agreement, which was imposed upon the petitioner. The agreement contains all sort of unconscionable terms virtually giving up the rights of the petitioner succumbing and giving up all the defence set up by the petitioner in the objection and all such terms which are impossible to perform.

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OP (RC).No. 151 of 2018

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5. The learned counsel for the respondent

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advanced arguments, challenging the maintainability of the writ petition filed under Article 227 of the Constitution of India, challenging the correctness of a compromise decree. It is also contended that there is no reason to set aside the compromise decree, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

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6. The learned counsel for the petitioner cited the decision reported in Bharvagi Constructions and Anr. v. Kothakapu Muthyam Reddy & Ors. [2017 (0) AIR (SC) 4428] and contended that, in this decision the Hon'ble Supreme Court held that compromise decree can be challenged under Article 227 of the Constitution of India. We have meticulously

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OP (RC).No. 151 of 2018

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gone through the said decision. Therefore, the first point to be considered is, whether this O.P.(RC) is maintainable?

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7. Going by the said decision, we find that the Hon'ble Supreme Court has held that the only remedy available with the aggrieved person to challenge the award of Lok Adalth is, writ petition under Article 226 or 227 of the Constitution of India. In view of the aforesaid decision, we find that this O.P.(RC) is maintainable. But, in the said decision, the Supreme Court specifically held that even though writ petition is maintainable, the jurisdiction and power can be invoked on very limited grounds only.

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8. Coming to the instant case, we find that the petitioner has no case that the terms of compromise agreement is unlawful or

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OP (RC).No. 151 of 2018

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illegal. The only contention is that he has signed the compromise agreement, without understanding the consequences, in case of non-compliance of the terms of compromise decree, in its correct perspective. There is no allegation to the effect that the compromise was entered by employing fraud or the terms of compromise are unlawful. We further find that, according to the proviso to Order XXIII Rule 3 of the Code of Civil Procedure, 1908, the party who is aggrieved by the compromise order has an opportunity to submit the same before the court, before passing the compromise decree.

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9. In the instant case, the petitioner

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has not raised any objection against the terms of compromise, before passing the compromise decree. Therefore, we find no bona fide s in

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OP (RC).No. 151 of 2018

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the allegation that the petitioner has signed the compromise agreement, without understanding the consequences thereof, if he fails to comply with the terms of compromise.

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In the above view, we find that there is no sufficient grounds to invoke the supervisory jurisdiction of this Court, under Article 227 of the Constitution of India. Hence, we are inclined to dismiss this O.P.(RC) and we do so. The learned counsel for the petitioner submits that he is ready to pay the amount of Rs.25,00,000/-,as per the terms of agreement, provided that six months time is granted.

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10. Having regard to the facts and circumstances of the case, the petitioner is given four months time, to comply with the terms of compromise decree by paying Rs.25,00,000/-(Rupees twenty five lakhs only)

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OP (RC).No. 151 of 2018

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with 6% interest, failing which the Execution Court is at liberty to proceed with the execution proceedings. All further proceedings in the Execution Petition would stand deferred

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for a period of four months from today.

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This O.P.(RC) is dismissed accordingly. All pending Interlocutory Applications will stand closed.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN JUDGE

DST

OP (RC).No. 151 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE LEASE DEED DATED 1/11/2016 EXHIBIT P2 TRUE COPY OF THE RENT CONTROL PETITION RCOP 13/2017 EXHIBIT P3 TRUE COPY OF THE OBJECTIONS FILED TO RENT CONTROL PETITION RCOP 13/2017 EXHIBIT P4 TRUE COPY OF THE SETTLEMENT ARRIVED AT THE ADALATH IN RENT CONTROL PETITION RCOP 13/2017 EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE RENT CONTROL COURT IN RCOP 13/2017 EXHIBIT P6 TRUE COPY OF EP 138/2018 IN RENT CONTROL PETITION RCOP 13/2017.

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RESPONDENT'S EXHIBITS: NIL

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//True copy// P.A. To Judge

A.P.Raju, v. P.S.Gopalakrishnan Nair

Case brief

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A.P.Raju, v. P.S.Gopalakrishnan Nair

Case brief

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