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SUPREME COURT OF INDIA
K.S. HEGDE, P. JAGANMOHAN REDDY AND D.G. PALEKAR, JJ.
Chen Shen Ling, Appellant
Versus
Nand Kishore Jhajharia, Respondent.
Civil Appeal No. 557 of 1967, D/- 20-1-1972.
Advocates appeared
Mr. P. Chatterjee, Senior Advocate, (Mr. S. N. Mukherjee, Advocate, with him), for Appellant.
Application - Recovery of money - Appellant who was carrying on business under name and style of C. S. Ling & Co in filed a suit in SC of and obtained a decree against respondent on basis of which he filed a suit in Calcutta High Court being for recovery of lent and advanced by appellant to respondent – Parties compromised and a consent memo was filed in terms of which a decree was passed on equivalent to H. K - Whether respondent who has paid in terms of Clause can successfully urge that as appellant had failed to comply with Clause by failing to make available to him or his nominee rubber tyres decree could not be executed - Whether your client has got judgment modified - Held, Court have not yet received payment of sum in compliance with Terms of Settlement even though permission from Reserve Bank of India Exchange Control Dept - For payment of this amount has long been given - Court send herewith two original letters of November and January respectively addressed by our client to Mart Ware-house & Co for unconditional delivery of tyres - It may however be noted that delivery of tyres would be made subject to payment of above amount in compliance with Terms of Settlement - In Court view terms of decree required that judgment-debtor himself shall pay immediately after signing of decree a sum of and that after every six months thereafter he was to go on making payments of identical amounts until entire decretal amount was paid up and although word instalment has been used in sub-clause of Clause it does not mean that initial payment of was not to be taken as an instalment for purposes of sub-clause of said clause - Any other construction would as pointed out by High Court lead to absurd conclusion that if judgment-debtor made a default in making initial payment decree could not be executed for that amount even within three months subject to decree-holder s getting permission of Reserve Bank as stated in compromise terms or that he could not take out execution for decretal amount in case there was a default for making payment for six months - There is nothing to distinguish initial payment from other like amounts to be paid subsequently - It is clear from what Court have stated that decree imposes mutual obligation on both appellant and respondent in such a way that performance by one is conditional on performance by other and accordingly no execution can be ordered unless party seeking execution not only offers to perform his part but when objection was taken satisfy the executing court that he was in a position to do so - Appeal dismissed
Judgment
P. JAGANMOHAN REDDY, J.:- This appeal is by certificate against the judgment of the Calcutta High Court allowing the appeal from an order made on an application for execution at the instance of the decree-holder giving the judgment-debtor an opportunity to take appropriate proceedings for execution of some clauses in the decree which were apparently in his favour. The respondent is ex parate.
2. The appellant who was carrying on business under the name and style of C. S. Ling & Co., in Hongkong, filed a suit in the SC of Hongkong and obtained a decree against the respondent on the basis of which he filed a suit in the Calcutta High Court, being O. S. No. 3459/54 for the recovery of Rs. 15,73,161/- lent and advanced by the appellant to the respondent. The parties compromised and a consent memo was filed in terms of which a decree was passed on 22-2-1961 for Rs. 5,44,554.45 P. equivalent to 6,60,000 H. K. The consent decree provided as follows:-
1. There will be a decree in favour of the plaintiff for the sum of HKS 6,60,000/- Hong Kong Dollars equivalent of Rs. 5,44,554.45 p. at the rate of HKS, 120.20 to Rs. 100/- in full and final settlement of all claims, subject to the following terms and conditions.
2. The said sum of Hong Kong Dollars HKS. 6,,60,000 equivalent to Rs. 5,44,554-45 will be paid by the defendant Nand Kishore Jhajharia to the plaintiff Chen Shen Ling subject always to the permission of the Reserve Ban being first obtained in the manner following:-
(a) The sum of HKS 50,000.00 Hong Kong Dollars equivalent to Indian Rupees of 41,254.12 np. will be paid immediately to Messrs. Sanderson & Morgans after receipt of authority from the Reserve Bank for the said Messrs. Sandersons & Morgans to hold the same pending the Reserve Bank s permission being obtained to pay the same to the plaintiff.
(b) The balance amount will be paid by the defendant to the plaintiff by instalments thereafter at the rate of Hong Kong Dollars HKS. 50,000.00 equivalent to Indian Rs. 41,254.12 np. payable 6 monthly, the first of such payment to be made 6 months after the first payment and thereafter at 6 monthly intervals until the whole amount provided in clause 1 hereof has been paid and discharged. All such payments shall be made by the defendant N. K. Jhajharaia in Indian Rupees as referred to above.
(c) The last instalment shall be of such amount as may be necessary to discharge the said sum referred to in Clause 1 hereof.
(d) The subsequent payments provided for in these terms shall be made by the defendant N. K. Jhajharia in the United Commercial Bank Ltd., Calcutta to the credit of the plaintiff C. S. Ling s Block Account.
(e) If any of the instalments is in default and remains unpaid for three months or more, execution may be issued in respect of such instalment, and if any one instalment is in default and is unpaid for 6 months or more, execution shall issue for the whole amount or the balance sum that may remain due. Provided that if the defendant is prevented from payment of the amount of account of delay in obtaining of the permission of the Reserve Bank by the plaintiff the defendant will not be treated in default.
(f) Immediately on payment of the first instalment of Hong Kong Dollars HKS. 50,000.00 equivalent to Indian Rupees 41,254.12 np. In the manner as aforesaid by the defendant, the plaintiff will unconditionally make delivery available to Mr. N. K. Jhajharia or his nominee of 4557 rubber tyres which are the subject matter of the above suit and fully mentioned in the written statement filed by the defendant free from all lien, claims, charges, encumbrances of any kind whatsoever.
(g) The proceeds of sale of the tyres referred to in sub-paragraph (f) hereon when received by the defendant after deduction of the expenses incidental to the sale thereof, shall be paid immediately after receipt to the plaintiff in the manner aforesaid in reduction of the balance sum as may be due and in pro tan to satisfaction thereof.
(h) The defen
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