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CASE NO.:

Appeal (civil) 7535 of 2005

PETITIONER:

N.K. Rajgarhia

RESPONDENT:

M/s. Mahavir Plantation Ltd. & Ors.

DATE OF JUDGMENT: 16/12/2005

BENCH:

S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

[Special Leave Petition (Civil) No.17920 of 2005]

S.B. SINHA, J :

Leave granted.

Interpretation of a consent order falls for determination by this Court

in this appeal which arises out of a judgment and order dated 17.05.2005

passed by a Division Bench of High Court of Delhi in EFA(OS) No.

22/2004.

The Respondent herein took an advance of certain sum of money from

the Appellant herein. A suit for recovery of Rs. 75 lakhs towards refund of

the said amount with interest and damages was filed by the Appellant. The

parties, however, entered into a compromise in terms whereof the Appellant

was to receive a sum of Rs. 41,69,110/-, the relevant clause whereof reads as

under:

"\005It is specifically made clear that on dishonour of the

said cheques or any one of them on any ground

whatsoever then and in that event the entire remaining

balance amount shall become payable at one time and the

plaintiff shall be entitled to execute the decree for

realization of the entire remaining balance amount which

shall remain payable plus interest to be calculated @15%

p.a. and shall also be entitled to take all legal steps as

may be permissible under the law to the plaintiff."

It is not in dispute that the Respondent herein paid a sum of Rs. 5

lakhs to the Appellant and as it failed and/ or neglected to abide by its

undertaking as regard payment of the balance sum, an execution application

came to be filed which was marked as Execution Application No. 58 of

2001. In the said execution proceedings again, the parties entered into a

settlement and a learned Single Judge of the Delhi High Court by an order

dated 13.9.2001 recorded the same which reads as under:

"\005These undertakings are accepted. He further agrees

that in case any of the cheques is dishonoured he will be

liable for not only contempt for violating these

undertaking. The decree holder shall be entitled to

execute the balance decree immediately. It is also agreed

between the parties that the decree holder shall withdraw

all civil/ criminal cases after the entire payment is made

by judgment debtor in the manner stated above.

However, the decree holder shall not pursue these cases

and get these cases adjourned after 20.3.2002 by which

time the judgment debtor is supposed to clear the entire

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decretal amount.

The execution petition accordingly is disposed of."

Allegedly, the Respondent became a defaulter again. As three

cheques out of six post dated cheques were dishonoured, another execution

application was filed by the Appellant herein which was marked as

Execution Application No. 45 of 2002. The Respondent, however, filed an

application for extension of time and a learned Single Judge of the Delhi

High Court, relying on or on the basis of the decision of this Court in Smt.

Periyakkal and others v. Smt. Dakshyani, [AIR 1983 SC 428], granted such

extension stating:

"\005It is on account of the illness of the Managing

Director of the judgment debtor company and on account

of the fact that the company is facing financial problems,

extension/ enlargement of time for the payment of

balance decretal amount is made. The judgment debtor is

also agreeable to pay interest at the rate of 15% per

annum on the reduced balance amount. Though

ordinarily time for payment should not be extended on

the mere asking of the judgment debtor, but in the present

case disallowing the judgment debtors’ request would

cause great injustice to the judgment debtor.

Accordingly, in order to meet the ends of justice, the