1966 Supreme(Cal) 199

HIGH COURT OF CALCUTTA
B. N. Banerjee, S. A. Masud
TRILOK CHAND KAPUR - Appellant
Versus
DAYARAM GUPTA - Respondent
A. F. O. O.  16  Of  1966
Decided On : SEPTEMBER 28, 1966

TERMS OF COMPROMISE NOT STRICTLY RELATING TO THE SUIT MAY NOT BE INCORPORATED IN THE OPERATIVE PART OF A DECREE AND BE ENFORCED BY EXECUTION OF THE COMPROMISE DECREE.

Headnote:

CONSENT DECREE - EXECUTION - TERMS OF COMPROMISE - RELATING TO SUIT - ENFORCEABILITY - COURT ANALYSIS AND CONCLUSION - EXECUTING COURT CANNOT GO BEHIND THE DECREE - CONSENT DECREE MUST BE CONFINED TO MATTERS WHICH RELATE TO THE SUIT AND MUST NOT TRAVEL BEYOND THAT - TERMS OF COMPROMISE NOT STRICTLY RELATING TO THE SUIT MAY NOT BE INCORPORATED IN THE OPERATIVE PART OF A DECREE AND BE ENFORCED BY EXECUTION OF THE COMPROMISE DECREE - COMPROMISE DECREE FOR MONEY, WHICH PROVIDES FOR SECURITY OF THE DECRETAL DEBT, PAYABLE BY INSTALMENTS, MAY BE TREATED AS THE OPERATIVE PART OF THE DECREE AND MAY NOT BE QUITE UNRELATED TO SUIT - TRANSACTION TO TAKE PLACE BETWEEN THE PRO FORMA AND THE PRINCIPAL DEFENDANT WAS WHOLLY EXTRANEOUS TO THE FRAME OF THE SUIT, THE RELIEF CLAIMED AND THE RELIEF ALLOWED.

Fact of the Case:

PLAINTIFF LENT MONEY TO DEFENDANT ON THE SECURITY OF THE DEFENDANT'S BUSINESS KNOWN AS "CAPRI RESTAURANT". SUIT WAS FILED FOR RECOVERY OF MONEY LENT AND ADVANCED, DECLARATION OF CHARGE ON THE ASSETS OF THE SECURED BUSINESS, SALE OF THE SECURED BUSINESS AND APPROPRIATION OF THE SALE PROCEEDS IN PRO TANTO SATISFACTION OF THE PLAINTIFF'S CLAIM. THE FATHER OF THE PLAINTIFF, DAYARAM GUPTA, WAS IMPLEADED AS PRO FORMA DEFENDANT IN THE SUIT. THE DECREE WAS MADE BY CONSENT, ON JANUARY 16, 1962, ON THE FOLLOWING TERMS: (1) THERE WILL BE A DECREE IN FAVOUR OF THE PLAINTIFF AGAINST THE DEFENDANT NO. 1 FOR THE SUM OF RS 60,000 (RUPEES SIXTY THOUSAND) ONLY WITH INTEREST THEREON AT THE RATE OF 9 PER CENT (NINE PER CENT) PER ANNUM TILL PAYMENT. (2) THE DEFENDANT NO. 1 SHALL SELL AND THE DEFENDANT NO. 2 WILL BUY THE RIGHT, TITLE AND INTEREST OF THE DEFENDANT NO. 1 IN HIS BUSINESS OF CAPRI RESTAURANT CARRIED ON BY HIM AS THE SOLE PROPRIETOR THEREOF AT NO. 15/6, CHOWRINGHEE ROAD, CALCUTTA-13, FREE FROM ALL ENCUMBRANCES FOR THE SUM OF RS. 1,80,000 (RUPEES ONE LAKH EIGHTY THOUSAND ONLY) AND THE SALE DEED AND/OR OTHER ASSURANCES WILL BE EXECUTED BY THE DEFENDANT NO. 1 IN FAVOUR OF THE DEFENDANT NO. 2 AS HEREINAFTER PROVIDED. (3) OUT OF THE SAID SUM OF RS. 1,80,000 (RUPEES ONE LAKH EIGHTY THOUSAND ONLY) THE DEFENDANT NO 2 WILL PAY TO PLAINTIFF FOR AND ON BEHALF OF DEFENDANT NO 1 THE SAID DECRETAL SUM OF RS. 60,000 (RUPEES SIXTY THOUSAND ONLY) IN FULL SATISFACTION OF THE MORTGAGE WHICH IS THE SUBJECT MATTER OF THE SUIT AND THE DECREE MENTIONED IN CLAUSE (I) HEREOF AND PAY THE BALANCE SUM OF RS. 1,20,000 (RUPEES ONE LAKH TWENTY THOUSAND ONLY) FOLLOWING (SIC):-- (I) RS. 10,000 ON CONFIRMATION OF THESE TERMS IN PART PAYMENT OF THE CONSIDERATION MONEY. (II) RS. 80,000 (RUPEES EIGHTY THOUSAND ONLY) AT THE TIME OF EXECUTION AND REGISTRATION OF THE DEED OF SALE OF THE SAID BUSINESS OF CAPRI RESTAURANT WITH ALL ITS ASSETS AND GOODWILL FREE OF ALL ENCUMBRANCES. (III) THE BALANCE OF RS. 30,000 (RUPEES THIRTY THOUSAND ONLY) TO BE PAID 90 (NINETY) DAYS AFTER REGISTRATION OF THE DEED OF SALE. THE DEFENDANT NO. 2 PAID ALL SUMS OF MONEY, EXCEPTING A SUM OF RS. 29,000 (ADMITTEDLY NOT RS. 30,000 AS IN THE TABULAR STATEMENT).

Finding of the Court:

THE EXECUTION WAS OPPOSED BY DAYARAM GUPTA, INTER ALIA, ON THE FOLLOWING GROUNDS: (1) IT WAS AGREED THAT THE DEFENDANT NO. 1 WOULD CONVEY TO ME THE BUSINESS CARRIED ON UNDER THE NAME AND STYLE OF "CAPRI RESTAURANT" AT NO. 15/6. CHOWRINGHEE ROAD. CALCUTTA FREE FROM ALL ENCUMBRANCES. (2) THAT THE FIRST DEFENDANT HAD PAID AND DISCHARGED ALL HIS DUES INCURRED BY HIM IN RELATION TO THE SAID BUSINESS OR OTHERWISE AND ALL OUTGOINGS PAYABLE IN RESPECT THEREOF UPTO THE DATE OF THE CONVEYANCE AND IF ANY SUCH DUES OR OUTGOINGS APPEAR TO BE PAYABLE IN FUTURE IN RESPECT THEREOF, THE FIRST DEFENDANT SHALL AND WILL FORTHWITH PAY AND DISCHARGE THE SAME AND SHALL AND WILL KEEP ME AND MY ESTATES AND EFFECTS DULY INDEMNIFIED FROM AND AGAINST ALL CLAIMS AND DEMANDS ON ACCOUNT THEREOF. THE COURT HELD THAT THE PART OF THE CONSENT DECREE RELATING TO TRANSACTIONS BETWEEN DEFENDANT NO. 1 TRILOK CHAND KAPUR AND DEFENDANT NO. 2 DAYARAM GUPTA WAS "A CONTRACT BETWEEN THE PARTIES. EVEN IF IT IS PUT INTO THE DECREE THAT DOES NOT MAKE IT EXECUTABLE IT IS OUTSIDE THE FRAME OF THE SUIT BECAUSE NO RELIEF WAS CLAIMED AGAINST THE DEFENDANT NO. 2 IN RESPECT OF THE SUBJECT MATTER OF FORMING THE CONTRACT BETWEEN THEM. A CONTRACT HAS BEEN MADE BETWEEN THE PARTIES BY WHICH THE DEFENDANT NO. 1 AND DEFENDANT NO. 2 AGREED TO HAVE A TRANSACTION IN REGARD TO THE BUSINESS KNOWN AS 'CAPRI RESTAURANT' THE CONTRACT PROVIDED PAYMENT OF THE PURCHASE PRICE SOME PORTION OF PURCHASE MONEY WAS TO GO TO THE SATISFACTION OF THE DECREE-HOLDER AND THE BALANCE IS PAYABLE BY DEFENDANT NO. 2 TO DEFENDANT NO. 1. IN MY OPINION PAYMENT SOUGHT TO BE EXECUTED DOES NOT FALL WITHIN THE EXECUTABILITY OF THE DECREE. I AM THEREFORE UNABLE TO GRANT ANY RELIEF."

Issues: WHETHER THE TERMS OF THE COMPROMISE DECREE RELATING TO THE SALE OF THE BUSINESS "CAPRI RESTAURANT" BY THE PRINCIPAL DEFENDANT TRILOK CHAND TO THE PRO FORMA DEFENDANT DAYARAM WERE ENFORCEABLE BY EXECUTION OF THE DECREE.

Ratio Decidendi: AN EXECUTING COURT CANNOT GO BEHIND THE DECREE. A CONSENT DECREE MUST BE CONFINED TO MATTERS WHICH RELATE TO THE SUIT AND MUST NOT TRAVEL BEYOND THAT. THE TRANSACTION TO TAKE PLACE BETWEEN THE PRO FORMA AND THE PRINCIPAL DEFENDANT WAS WHOLLY EXTRANEOUS TO THE FRAME OF THE SUIT, THE RELIEF CLAIMED AND THE RELIEF ALLOWED. THE FACT THAT INSTEAD OF THE PRINCIPAL DEFENDANT TRILOK CHAND PAYING UP THE JUDGMENT-DEBT TO THE PLAINTIFF, OUT OF THE CONSIDERATION MONEY FOR SALE OF CAPRI RESTAURANT TO THE PRO FORMA DEFENDANT, THE PRO FORMA DEFENDANT TOOK UPON HIMSELF THE DUTY OF PAYING UP THE PLAINTIFF MADE THE LEAST DIFFERENCE TO THE PLAINTIFF HIMSELF.

Final Decision: APPEAL DISMISSED.