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HIGH COURT OF CALCUTTA
S. K. CHAKRAVARTY, ANIL KUMAR SEN
TARABAI MOHATA - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
A. F. O. O. 98 Of 1959
Decided On : APRIL 30, 1969
DECREE - INTERPRETATION - EXECUTION - TERMS OF SETTLEMENT - VALUATION OF SHARES - MONEY DECREE - RES JUDICATA - CERTIFICATE PROCEEDINGS - CERTIFICATE DEBT - PAYMENT - DEFAULT - CONSEQUENCES.
Fact of the Case:
The appellant's father, Radhakissen Mohta, was involved in a certificate case for recovery of certificate dues. During the pendency of the certificate case, he filed a suit for a declaration that the certificate is void and not binding on him. The suit failed, and he preferred an appeal to the High Court. The parties filed a petition of compromise incorporating the terms of settlement, and the High Court disposed of the appeal by passing a decree in terms of the petition of compromise.
Finding of the Court:
1. The terms of settlement provided for the withdrawal of a certain sum of money in deposit by the respondent, payment of certain other sums by the certificate-debtor, assessment of the value of certain shares, and payment of such value by the certificate-debtor. 2. The Revenue Authorities would forego all other outstanding demands on payments being made in terms of the settlement. 3. The appeal would be withdrawn by the certificate-debtor, and the Revenue Authorities would withdraw the Certificate Case. 4. The terms of settlement would mean and include the settlement and termination of all proceedings arising out of the I.T. assessment and E.P.T. assessment. 5. The decree passed by the High Court on the terms of settlement did not amount to a decree for money payable under the decree. 6. The obligation to pay the money was on the certificate-debtor only for the purpose of avoiding the other liabilities under the certificate. 7. If the certificate-debtor did not choose to pay, the consequence is that he may be made liable for the entire certificate debt in the certificate proceedings. 8. The Revenue Authorities are entitled to proceed with its original certificate proceedings in Certificate Case No. 241 I.T. 1945-46 and for the entire claim levied therein as under the agreement such proceeding was kept alive.
Issues: 1. Whether the valuation of the shares as made by the independent valuer was valid and binding on the appellants. 2. Whether the decree under execution amounted to a money decree capable of execution in the manner claimed by the respondent.
Ratio Decidendi: 1. The terms of settlement left the assessment of the value of the shares exclusively in the hands of an independent valuer nominated by the Commissioner of Income-tax. 2. There is no provision in the terms of settlement that such valuation has got to be made upon notice to the judgment-debtor or any party whatsoever or after hearing any one in the matter. 3. The parties left it to the judgment of an independent valuer whose decision would be binding between the parties. 4. The terms of settlement did not provide any decree for the money representing the value of the shares which is capable of execution in the manner claimed by the respondent. 5. The terms of settlement provided for the withdrawal of a certain sum of money in deposit by the respondent, payment of certain other sums by the certificate-debtor, assessment of the value of certain shares, and payment of such value by the certificate-debtor. 6. The Revenue Authorities would forego all other outstanding demands on payments being made in terms of the settlement. 7. The appeal would be withdrawn by the certificate-debtor, and the Revenue Authorities would withdraw the Certificate Case. 8. The terms of settlement would mean and include the settlement and termination of all proceedings arising out of the I.T. assessment and E.P.T. assessment. 9. The decree passed by the High Court on the terms of settlement did not amount to a decree for money payable under the decree. 10. The obligation to pay the money was on the certificate-debtor only for the purpose of avoiding the other liabilities under the certificate. 11. If the certificate-debtor did not choose to pay, the consequence is that he may be made liable for the entire certificate debt in the certificate proceedings. 12. The Revenue Authorities are entitled to proceed with its original certificate proceedings in Certificate Case No. 241 I.T. 1945-46 and for the entire claim levied therein as under the agreement such proceeding was kept alive.
Final Decision: The appeal was allowed, the judgment and order of the learned Subordinate Judge were set aside, and the execution petition was dismissed as not maintainable. The parties were directed to pay their respective costs.
( 1 ) THIS is an appeal against an order dated March 15, 11958 passed by the learned Subordinate Judge, First Court, Alipore. District 24 Parganas in Misc. Case No. 96 of 1955 --arising out of Title Execution Case No. 16 of 1955 -- dismissing thereby an objection under Section 47 of the Code of Civil Procedure.
( 2 ) THE objectors are the heirs and legal representatives of a deceased judgment-debtor Radhakissen Mohta. In or about the year 1945-46 the Revenue Authorities started Certificate Case No. 241 I. T. 1945-46 before the Certificate Officer, 24 Parganas for recovery of certificate dues from the said Radhakissen Mohta. While the said proceeding was pending Radhakissen Mohta instituted Title Suit No. 121 of 1947 in the First Court of the Subordinate Judge at Alipore against the predecessor-in-interest of the present respondent for a declaration that the certificate filed in the aforesaid Certificate Case No. 241 I. T. of 1945-46 is void, illegal, inoperative and not binding on him and for cancellation of the certificate. The suit failed in the trial court and it was dismissed on September 17, 1948. The certificate debtor Radhakissen Mohta preferred an appeal from original decree to this court which was registered as F. A. No. 186 of 1948. In the above appeal to this court, the parties filed a petition of compromise incorporating the terms of settlement on August 13, 1949 and this Court disposed of the appeal by passing a decree in terms of the said petition of compromise on August 24, 1949. As the dispute in the present appeal before us arises out of the rival interpretation of the said decree and the terms of Settlement it is necessary to set out material part of the terms which reads as herein:"1. The sum of Rs. 50,000/- deposited by the Certificate-debtor with the first Sub-Judge, Alipore in T. Suit No. 121 of 1947 to be withdrawn and appropriated towards outstanding income-tax dues and the Certificate-debtor will give his consent thereto. 2. In addition to the sum of Rs. 25,000/- already paid the Certificate-debtor will immediately pay a further sum of Rs. 1 lac to the Income-tax Officer. 3. The present value of 1960 shares of Ganesh Commercial Co. Ltd. as determined by an independent valuer nominated by the Commissioner of Income-tax, West Bengal, will also be immediately paid. 4. The department will not require payment of the balance of the income-tax and E. P. T. demands remaining outstanding after the aforesaid payments in accordance with this settlement. 5. The assessee will not claim any refund on account of deficiencies, if any, hi respect of the pending E. P. T. assessments for the two remaining C. A. Ps, ending October, 1945 and March, 1946. Nor will such amounts which would otherwise have been repayable under the proviso to Section 12 of the E. P. T. Act be taken into account in computing the total income for income-tax purposes for the corresponding assessment years. 6. The appeal in the High Court arising out of the recovery proceeding (being Appeal No. 186 of 1948 A. O. D.) and the recovery proceedings before the Certificate Officer, 24 Parganas (being Certificate Case No. 241 I. T. of 1945-46) will thereupon be withdrawn by the Certificate-debtor and the Income-tax Department respectively. Each party to pay his costs throughout irrespective of any order or decree for costs already made. 7. The Rending suits in the High Court, (a) against Mr. Sital Prasad being No. 1788 and 1941 and (b) against Nurzaman and Anr. being No. 1831 of 1951 will be struck off, each party paying his own costs. 8. All costs of the valuation of the shares of Ganesh Commercial Company Ltd. (referred to in Clause 3) will be borne by the assessee. These terms when carried out will mean and include the settlement and termination of all proceedings arising out of the I. T. Assessment for the year 1940-41 and F. P. I, assessment for the corresponding C. C. P. "
( 3 ) IT is not in dispute that over and above the sum o
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