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2017 Supreme(J&K) 12
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.S. Walia, J.
Pradeep Kumar Puri - Petitioner
Vs.
Ranjeet Kour & Ors. - Respondents
Petition No. 11 of 2015
Decided On : 08-02-2017
For the Petitioner:Mr. L.K. Sharma, Sr. Advocate with Mr. Gurpartap Singh, Advocate.
The main legal point established is that the compliance with court orders, especially undertakings, is crucial and failure to do so can have legal consequences.
Headnote:
Undertaking - Civil Suit - Constitution of Jammu & Kashmir, Article 226, Negotiable Instruments Act - [Constitution of Jammu & Kashmir, Article 226, Negotiable Instruments Act]
Fact of the Case:
The case involves a dispute over the sale of a school and land, non-payment of agreed amount, and subsequent legal proceedings including the filing of an execution petition and setting aside of a decree.
Finding of the Court:
The court found that the undertaking filed by the respondents during the execution proceedings was not in compliance with the order of the High Court, and the setting aside of the decree required the respondents to file a new undertaking as per the original order.
Issues: The issues revolved around the compliance with the undertaking, setting aside of the decree, and the legal implications of the orders passed by the trial court and the High Court.
Ratio Decidendi: The court held that the undertaking filed during the execution proceedings lost its relevance after the setting aside of the decree, and the respondents were required to file a new undertaking as per the original order of the High Court.
Final Decision: The court set aside the order of the trial court and directed the respondents to comply with the original order of the High Court by filing a new undertaking within a specified timeframe.
1. Prayer in this petition u/S 104 of the Constitution of Jammu & Kashmir read with Article 226 of the Constitution of India is for quashing of order dated 15.01.2015 and 30.10.2012 passed by the Principal District Judge, Jammu in suit titled as Pradeep Kumar Puri Versus Naresh Kumar & Ors. on the ground that the undertakings filed by respondent No. 1 & her husband were wrongly held to be in accordance with the orders of the High Court dated 16.03.2012 in OWP No. 364/2012, whereas the same were not, consequently the application for leave to appear and defend the suit be dismissed and the suit of the petitioner be decreed along with interest and costs.
2. That the brief facts of the case leading to the filing of the instant petition are that husband of respondent No. 1 i.e. Naresh Kumar entered into an agreement with the father of the petitioner to sell a school known as Cyber Natics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu, along with movable and immovable assets, rights, licenses, privileges and permissions for Rs. 42,50,000/-. Possession of the said school and land was handed over upon receiving the entire consideration. However, thereafter, respondent No. 1 and her husband Naresh Kumar created such a situation that the agreement to sell had to be cancelled and the school and land returned back to respondent No. 1 and her husband vide duly executed revocation deed subject to payment of Rs. 54,00,000/- to the father of the petitioner which included Rs. 42,50,000/- paid by the petitioner's father, plus expenses incurred by the petitioner's father. Six cheques were issued towards said payment. However, out of the 6 cheques issued for the aforesaid amount, only the cheque for Rs. 2 lakhs was honoured while the remaining cheques were dishonoured on account of insufficient funds, thereby compelling the petitioner's father to file five complaints u/s 138 of the Negotiable Instruments Act for each of the dishonoured cheques besides a suit on 02.11.2007 under Order 37 of the CPC for recovery of Rs.73,22,000/- inclusive of interest accrued at that time in the Court of the Ld. Principal District Judge.
3. That an application was filed in the aforementioned suit by respondent No. 1 and her husband for leave to appear and defend the said suit. The same was granted by the Court of the Ld. Principal District Judge Jammu vide order dated 30.01.2012 subject to furnishing of Bank Guarantee of Rs. 40 lakhs.
4. That in the meantime, the petitioner's father died. Thereupon an application was moved for bringing the petitioner and his mother on record as legal representatives of the plaintiff i.e. Shri Shyam Puri. However the petitioner's mother also died. Consequently, the petitioner being the only child of his parents became the sole legal representative of his father and was accordingly brought on record as LR by the Court of the Ld. Principal District Judge, Jammu.
5. That in the meantime, respondent No. 1 and her husband Naresh Kumar filed OWP No. 364/2012 which was disposed of vide order dated 16.03.2012 by modifying order dated 30.01.2012 passed by the Court of the Ld. Principal District Judge Jammu with the consent of parties that respondent No. 1 and Naresh Kumar would file an undertaking instead of filing a bank guarantee "that they had not sold the building housing Cybernetics School for Intellectuals situated at Arjun Vihar, Kunjwani, Jammu and would not alienate it or otherwise encumber it in any manner whatsoever during the pendency of the civil suit".
6. That it is the plea on behalf of the petitioner that the parties were directed to appear before the trial court for doing the needful. However respondent No. 1 and her husband did not file the undertaking in terms of the order of the High Court dated 16.03.2012 despite three extensions by the Court for doing the same. In the circumstances, the Court below decreed the suit of the petitioner for Rs.73,22,000/- along with interest @ 7.5% per annum with eff
