Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Narhar Rango Kulkarni (since deceased) through legal heirs Jaya Narhar Kulkarni and Ors. - Petitioner
Versus
Milind Shripad Bendre and Anr. - Respondents
Writ Petition No. 4864 of 2003
Decided On : 05-06-2023
FRAUD - COMPROMISE DECREE - Section 138 of the Negotiable Instruments Act, 1881, Section 23 and Section 24 of the Indian Contract Act, 1872 - The court dismissed the Writ Petition challenging the compromise decree passed in Special Civil Suit No.1226 of 1998, upholding the earlier order of the trial Court of dismissal of the Suit and the Application, and confirming the observations and findings. The court found that the original Petitioner's repeated advantage of the legal system and its procedural technicalities to avoid paying the amounts under his admitted liability, and his filing of frivolous and vexatious proceedings to overcome his own liability to pay the amounts agreed in the compromise decree, amounted to an abuse of the due process of law. The court held that the filing of MCA No.611 of 1999 for setting aside the compromise decree once again on the same cause of action was a gross abuse of the due process of law. The court upheld the compromise decree and dismissed the Writ Petition.
Fact of the Case:
The original Petitioner, a Government servant, received a loan from the Respondent and repeatedly failed to repay it, leading to the filing of a Special Civil Suit for recovery of the amount. The original Petitioner entered into a compromise decree admitting to pay the amount, but later filed multiple proceedings challenging the compromise decree on the ground of fraud and undue influence.
Finding of the Court:
The court found that the original Petitioner's conduct was deplorable and amounted to an abuse of the due process of law. The court held that the filing of the Writ Petition was not maintainable and dismissed it, upholding the compromise decree and vacating the interim order.
Issues: The issues included the original Petitioner's repeated failure to repay the loan, his abuse of the legal system to avoid paying the amounts, and his filing of multiple proceedings challenging the compromise decree on the ground of fraud and undue influence.
Ratio Decidendi: The court held that the original Petitioner's conduct amounted to an abuse of the due process of law and that the filing of the Writ Petition challenging the compromise decree was not maintainable.
Final Decision: The court dismissed the Writ Petition, upheld the compromise decree, and vacated the interim order.
JUDGMENT :
1. This Writ Petition is filed for the following relief:-
2. Writ Petition was filed in 2003 by the original Petitioner - Narhar Rango Kulkarni. He expired in 2017. Writ Petition is prosecuted by his legal heirs ie. Petitioner No.1A, his wife and Petitioner No.1b i.e. his son. Respondent No.1 is Milind Shripad Bendre. On 18.08.2003 when this Writ Petition was filed and moved for interim relief this Court passed the following order:-
Heard. Mr. Shah, for the Respondent, submits that this writ petition is not maintainable in view of the order passed by this Court on 11th August 1999 in Writ Petition No.4412 of 1999, read with the order passed by the Civil Judge, Senior Division, Pune dated 28th July 1999. According to him, the issues sought to be raised are already concluded against the Petitioner in the said proceedings. Whereas, according to Mr. Anturkar for the Petitioner the opinion expressed by the Court in the earlier proceedings was only on prima facie consideration and even if the same has become final, this writ petition will have to be decided on its own merits in view of the substantive application filed by the Petitioner before the Court below on the assumption that the suit as filed by the Petitioner was not maintainable in law.
Arguable questions are raised. Rule.
The question regarding the maintainability of the writ petition and the said application from which the present writ petition arises is left open, to be considered at the time of final hearing of this writ petition.
Insofar as interim relief is concerned, even if the petitioner’s argument was to be accepted as correct, in view of the compromise terms as filed, the Petitioner was liable to pay a principal sum of Rs. 2,25,000/- and interest even as per the damduppat rate, being a sum of Rs.2,25,000/-.
In the circumstances, the petitioner to deposit sum of Rs.5,50,000/- in this Court within 3 months from today, failing which the interim order as passed hereunder shall stand vacated forthwith without further reference to the Court.
The amount shall be deposited in this Court and if so deposited, it will be open to the Respondent to apply for withdrawal thereof on which application the Court may pass appropriate orders as may be advised.
Accordingly, interim relief in terms of prayer clause (b) on the above condition.
Petition be placed for final hearing on 17th December 2003 at the bottom of the Board to be notified for 17th December 2003.
All concerned to act on the ordinary copy duly authenticated by the Court Stenographer.”
3. By virtue of the above order, execution of the compromise decree passed in Special Civil Suit No.1226 of 1998 was stayed.
4. Before I advert to the submissions made by the learned Advocates appearing for the respective parties, such relevant facts required for consideration of the lis are outlined hereinunder:-
4.1. The original Petitioner is the original Defendant in Special Civil Suit No.1226 of 1998 and present Respondent No.1 is the original Plaintiff in the said Suit. Parties shall be referred to as Petitioner (Original Defendant) and Respondent (Original Plaintiff) for convenience.
4.2. The Petitioner was serving as Taluka Inspector of Land Records in the Land Revenue Department of the Government of Maharashtra at Pune. He was in need of money for construction of his house. Respondent was his old friend of about 25 to 30 years. Respondent gave to the Petitioner a h
The main legal point established in the judgment is that the original Petitioner's conduct amounted to an abuse of the due process of law, and the filing of the Writ Petition challenging the compromi....
The main legal point established in the judgment is that a compromise deed, once recorded by the court, is lawful and binding, and a subsequent suit challenging the compromise decree is not maintaina....
A suit challenging a compromise decree not challenged, but the compromise itself is called into question, would be barred by the provisions of Order XXIII Rule 3A of CPC. Additionally, a third party,....
A suit where a decree based on compromise is not challenged, but compromise itself is called into question, would also be barred by provisions of Order XXIII Rule 3A of CPC.
The rights of the applicants to claim a share in the suit properties were preserved in the Compromise Decree, and the inter se controversy of alleged fraud entailed different pleadings.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
