The petitioner being a landlord and owner of shop No.1/31/6, Amar Market, Johri Bazar, Agra filed an S.C.C. Suit No.49 of 2007 (Balvir Saran Goyal Vs. Kishan Kumar) in the Court of J.S.C.C./District Judge, Agra for arrears of rent and eviction of the defendant-tenant-respondent no.1.
The suit was decreed on 31.3.2012 for the recovery of rent to the tune of Rs.1,19,000/- and the tenant-respondent no.1 was directed to vacate the shop in question within a month. It was also provided that till the actual eviction, the tenant would pay Rs.3,500/- per month from the date of the decree. The respondent no.1-defendant-tenant preferred a Civil Revision being Civil Revision No.222 of 2012 before this Court which on 8.5.2012 granted an interim order whereby it was directed that the entire decretal amount due till 30.4.2012 had to be deposited by the tenant by 28.5.2012 and further it was directed that for the subsequent months, the tenant had to pay rent at the rate of Rs.5000/- per month. This amount had to be deposited in the bank account of the landlord. Before filing of the Civil Revision, the petitioner-landlord had filed an Execution Case being Execution Case No.1 of 2012. After passing of the interim order by the High Court on 8.5.2012, the respondent no.1-tenant, on 23.5.2012, filed an application before the Executing Court that he would hand-over actual physical possession of the shop in question along with all the decretal amount by 31.7.2012. It was further stated in the application that if the respondent-tenant did not vacate the premises by 31.7.2012, then the decree-holder/petitioner-landlord would be entitled for damages at the rate of Rs.10,000/- per month with effect from 1.8.2012. However, since the Revision was filed in the High Court, the tenant-respondent no.1 also filed an application before the High Court on 7.7.2012 in the Civil Revision itself and furnished an undertaking therein to vacate the premises in question on or before 31.7.2012. On the basis of the application filed by the respondent no.1, the Civil Revision was dismissed on 27.8.2012. When the petitioner was not given the possession and as he had allowed the earlier execution case being Execution Case No.1 of 2012 to be dismissed in default, the petitioner filed a fresh application for executing the decree dated 31.3.2012. This application was numbered as Execution Case No.1 of 2015. In this Execution Application the tenant-respondent no.1 filed an application under section 47 of the C.P.C. on 13.4.2015. This was registered and numbered as Misc. Case No.16 of 2015. In this application, he came up with a case that the landlord had appointed an Arbitrator to settle the dispute between himself and the tenant and the Arbitrator had prepared an award dated 20.5.2012 by which it was settled that the defendant-tenant would vacate the premises on 31.7.2012 and would handover possession of the shop to one Navin Agarwal who would pay a sum of Rs.2,000/- per month to the plaintiff-landlord. In the Application No.16 of 2015, respondent no.1 had also stated that he had transferred possession to Navin Agarwal and was no longer in possession. Simultaneously, respondent no.2 i.e. Navin Agarwal, who was the son of respondent no.1-tenant, also filed an application under Order XXI Rules 97, 99 and section 47 of the C.P.C. This application was registered as Misc. Case No.21 of 2015. In this Application, it was averred that the parties had agreed to appoint three Arbitrators namely Madan Gopal, Girraj Kishore Agarwal and Brijesh Mittal. The three Arbitrators in their turn had appointed Madan Gopal as the Chief Arbitrator to settle the controversy and on 20.5.2012, Madan Gopal had decided the reference and had also prepared the award wherein the petitioner was to issue rent receipt to the respondent no.2-Navin Agarwal, who would be in possession.
The instant writ petition has been filed with a prayer that the proceedings initiated in the Misc. Case No.16 of 2015 (Kishan Kumar Vs. Balvir Saran Goyal) and the Misc. Case No.21 of 2015 (Navin Kumar Vs. Balvir Saran Goyal) filed in Execution Case No.1 of 2015 be quashed. A further prayer has been made that the respondent no.3 i.e. the Special Judge, E.C. Act, Agra/J.S.C.C., Agra be directed to ensure that the vacant physical possession of the shop No.1/31/6, Amar Market, Johri Bazar, Agra is handed over to the petitioner.
Learned counsel for the petitioner has made the following submissions :
(i) When the application dated 7.7.2012 was filed in Civil Revision No.222 of 2012 which was filed by respondent no.1 then he would have definitely known about the arbitration award dated 20.5.2012. In the application dated 7.7.2012, the respondent no.1 had not mentioned about any development which might have occurred because of the passing of the award by the Arbitrator.
(ii) Even if an award was passed on 20.5.2012, the undertaking which the respondent no.1 had given on 7.7.2012 for handing over possession to the petitioner-landlord was in supersession of any thing which might have been done by the parties and, therefore, as per the undertaking the tenant had to vacate the premises in question. The undertaking given before the High Court is sacrosanct. No party can go beyond the undertaking which was given by him or her and, therefore, when the respondent-tenant was giving the undertaking then even if for a minute it was accepted that there was an award of the Arbitrator then it would be presumed that the respondent was ready to give it a go-by. Learned counsel submits that the respondent no.1 had to abide by the undertaking which had been given to the High Court.
(iii) Even on merits, learned counsel submitted, the award appeared to be a bogus one as by the award it was contemplated that the petitioner would accept respondent no.2-Navin Agarwal as his tenant and take Rs.2,000/- as rent. The petitioner in his right senses would never have done this as the Revisional Court i.e. the High Court had already fixed Rs.5,000/- as rent.
(iv) The landlord-petitioner submitted that the question of taking any advance from respondent no.2 never arose and the answering respondents had not been able to establish by annexing any bank account etc. that any advance was given to the landlord in view of the award dated 20.5.2012.
(v) In paragraphs 27, 28, 29 and 30 of the writ petition, it has been averred by the petitioner that in various survey reports the Assistant Commissioner, Commercial Tax Officer, Khand-II, Agra had stated that always the registration in favour of the respondent no.1 was revived in the Trade Tax Department after having found him to be in possession of the shop in question. Learned counsel, therefore, submits that the story set-up by the respondent no.1 that he had handed over possession to respondent no.2 was misfounded and without any basis. Learned counsel submitted that in the counter affidavit, the contents of these paragraphs were very vaguely denied. The report of the Commissioner of Trade Tax had not been denied at all and, therefore, it can be safely concluded that the respondent no.1 alone was continuing to be in possession over the property in question.
(vi) As per Order XXI Rules 1 and 2 of the C.P.C. the decretal amount had to be paid to the decree-holder i.e. the petitioner. In this regard, learned counsel for the petitioner has read out the provisions of Order XXI Rules 1 and 2 C.P.C. and, therefore, the same are being reproduced here as under :
"Order XXI
1. Modes of paying money under decree.--(1) All money, payable under a decree shall be paid as follows, namely-
(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
(b) out of Court, to the decree-holder by postal money order or through a bank, or by any other mode wherein payment is evidenced in writing; or
(c) otherwise, as the Court, which made the decree, directs.
(2) Where any payment is made under clause (a) or clause (c) of the sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:-
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
(d) the number of the execution case of the Court, where such case is pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.
2. Payment out of Court to decree-holder.-- (1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly."
(vii) The effect of Order XXI Rules 1 and 2 C.P.C., learned counsel for the petitioner states, was that unless the Executing Court records the factum of payment, it could not be said that there was any satisfaction of the decree and, therefore, when the respondents were coming up with the case that they had made a payment of Rs.6.5 lacs as per the decree then the same could not be believed. Had there been any intention on the part of the respondent-judgment debtor to pay the amount, then they would have to pay the same to the decree-holder and they would have got a certificate from the decree-holder that such payment was made by them. Thereafter the Executing Court was to give a certificate that the judgment-debtor had actually made the payment. In this case, learned counsel submitted that since the judgment-debtor had not complied with the provisions of Order XXI Rules 1 and 2 C.P.C., there could not be any satisfaction of the decree and the story which the respondents had weaved regarding the payment of the arbitral amount through the arbitration agreement dated 20.5.2012 and the consequent arbitral award of the same date cannot be believed.
(viii) Learned counsel further submits that when the application to withdraw the Revision was filed before the High Court on 7.7.2012 and when it did not contain any mention of the agreement between the parties to appoint the Arbitrator and also the consequential arbitration award of the same date dated 20.5.2012, then, he submits, the arbitral agreement, the arbitral award as also the satisfaction of the payment of decretal amount everything were all a figment of imagination of the respondents and they should be heavily punished for having misled the Court.
(ix) The payment under the decree would be deemed to have been made only after a certificate of the Court was there. This is clear from a judgment cited by the learned counsel for the petitioner reported in 1993 (2) ARC 31 (Hifzur Rehman Vs. The VIth Additional District Judge, Bijnor & Ors.).
(x) Learned counsel further submitted that since the application filed by the respondent no.2 i.e. the son of respondent no.1, which was an application under Order XXI Rules 97 and 99 and section 47 of the C.P.C. had to be tried as a suit and if it was found by this Court that the objections were nothing else but a litigation which could be termed as "vexatious", the objection could be quashed just as a plaint can be quashed. In this regard, learned counsel for the petitioner relied upon the decision reported in AIR 1977 SC 2421 (T.Arivandandam Vs. T.V. Satyapal & Anr.).
(xi) Learned counsel further submitted that the respondent no.2 in-tandem with respondent no.1 was trying to befool the petitioner-decree-holder and was also trying to mislead the High Court as also the Executing Court.
(xii) Learned counsel further relied upon 1994 (2) ARC 292 (Smt. Tajwar Jahan & Anr. Vs. Munsif North, Lucknow & Anr.) and submitted that if the relatives of the tenants were hindering the execution of the decree then this Court could intervene and prevent the process of law from being abused. Learned counsel further relied upon 1995 Supp. (1) SCC 477 (Bate Krishna Damani (dead) by LRs. Vs. Kailash Chand Srivastava & Anr.) and submitted that execution cannot be thwarted by unscrupulous persons claiming through judgment debtor.
(xiii) Further learned counsel submitted that as had been held in (2017) 5 SCC 496 (Dhyandeo Sabaji Naik & Anr. Vs. Pradnya Prakash Khadekar & Ors.) a litigant's attempt to abuse the process of Court should be dealt with severity and as it was clear in the instant case that the respondents had left no stone unturned to misuse the process of the Court, the objections filed by respondent nos.1 and 2 should be quashed and the petitioner should be given the possession of the premises in vacant position. Since learned counsel relied upon paragraphs 13 and 14 of the decision, the same are being reproduced here as under :
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."
(emphasis supplied)
(xiv) Learned counsel for the petitioner has further pointed out to the office report submitted in the instant writ petition on 2.11.2017 with regard to the service of notice upon respondent no.2. The office report is, therefore, reproduced here as under :
"2.11.2017 Office Report RPAD notices issued to o.p. No.1 and 2 fixing 24.8.15.
O.P. No.1:
Vakalatnama filed (and placed on record) by Adv. Sri Krishna Shukla on behalf of O.P. No.1.
O.P. No.2:
Notice returned back with Post Office remark :
"fn, irs esa iwNus ij ?kjokyksa us crk;k fd bl uke dk O;fDr ;gk¡ dksbZ izkij ugha jgrk gSA vr% okil izs"kd dksA "
He further submits that after refusing the notices sent by the High Court, the respondent no.2 had the unholy intention of prolonging the execution application. However, learned counsel for the petitioner submits that this malafide intention of the respondent no.2 would not help him as he had filed the counter affidavit on behalf of the respondent no.1 in the High Court and, therefore, he had full knowledge of the pendency of the instant writ petition.
The respondent no.1 alone had appeared in this case and the respondent no.2 went unserved, though he had filed the counter affidavit on behalf of the respondent no.1.
In reply, learned counsel for the respondent, however, basically submitted that since there were objections pending before the Executing Court, this Court may not interfere. Learned counsel further submitted that it was at the behest of the decree-holder that the arbitral award was passed and once the decree-holder/landlord had himself agreed to the arbitration, then he cannot now turn back and say that the original decree had to be executed. He further submits that whether the arbitration award was signed by the petitioner which he, in this writ petition, is denying, would have to be seen after evidence is led and, therefore, this Court should not interfere in this writ petition.
Having heard learned counsel for the parties, I find that this case is proving right the statement which was made by the Privy Council in the case of General Manager of the Raj Durbhunga Vs. Coomar Ramaput Singh (20 ER 912) wherein the Privy Council had observed that difficulties of a litigant in India begin after he obtains a decree. The Privy Council in the case of Kuer Jang Bahadur Vs. Bank of Upper India Limited reported in AIR 1925 Oudh 448 (PC) had also reiterated what was observed in 20 ER 912.
In the instant case, the Court finds that the S.C.C. Suit for eviction of the defendant-tenant from the shop situate at 1/31/6, Amar Market, Johri Bazar, Agra was decreed on 31.3.2012. Thereafter, a Revision was filed by the tenant-respondent no.1 in which there was initially an interim order and the tenant was required to pay Rs.5000/- per month. This rent was payable only after the tenant had paid the decretal amount. This Revision was, however, got dismissed as not pressed by the order dated 21.8.2012. This order was passed in pursuance of the statement made by the counsel for the applicant in the Revision that the applicant did not intend to continue with the Revision and also on the basis of the fact that an application dated 7.7.2012 had been filed by the tenant/judgment debtor that he had no intentions of pressing the Revision. From a perusal of the application dated 7.7.2012, it becomes patently clear that the judgment debtor-respondent no.1 had not mentioned even a word about any arbitration agreement having been entered into between the petitioner and him. It also did not mention about the arbitration award dated 20.5.2012 by which it was agreed between the petitioner, the judgment debtor and the respondent no.2 that the judgment debtor had paid the decretal amount of Rs.6.5 lacs to the petitioner and that the decree-holder/petitioner had agreed to rent out the shop to respondent no.2 at the rate of Rs.2000/- per month.
Upon having gone through all the documents namely the application filed by the petitioner for withdrawing the Revision dated 7.7.2012, the arbitral award and the arbitral agreement dated 20.5.2012 and also upon having gone through the conduct of respondent nos.1 and 2, I am of the definite view that the objections filed by respondent nos.1 and 2 before the Executing Court could be termed as being "vexatious". The Supreme Court in AIR 1977 SC 2421 (T.Arivandandam Vs. T.V. Satyapal & Anr.) has held that vexatious litigation should be shunned. The payment of the decretal amount was definitely not done as per the provisions of Order XXI Rules 1 and 2 C.P.C. There was no certificate of the Court which showed that payment of the decretal amount was made to the decree holder or that the decree had been satisfied. Further, when the application for withdrawing the Revision was filed before the High Court on 7.7.2012, when it did not contain even a whisper about the arbitral agreement and the arbitral award which was dated 20.5.2012 then the Court can safely conclude that both the agreement and the award were an afterthought and had been prepared only to defeat the decree. Further from the averments made in paragraph nos.27, 28, 29 and 30 of the writ petition, where it has been stated that the Trade Tax Authorities had found that the respondent no.1 was continuing with his business even after the arbitral award, which fact has not been specifically denied in the counter affidavit, it can safely be held that the respondent no.1, only to circumvent the decree, had come up with the story of the arbitral agreement and the arbitral award dated 20.5.2012. The Court further feels that such litigation not only puts the Judgment Debtor in a disadvantageous position but also puts judiciary in a bad light. A decree, which should have been executed way back in the year 2012, has till date not borne fruit for the decree-holder. Had the shop been vacated in the year 2012, the decree-holder would have put it to proper and beneficial use and would have earned money out of it. For having resisted the decree in a most unscrupulous manner, the judgment debtor should, therefore, also be penalized.
Under such circumstances, I hold that the objection filed by respondent no.1 which was registered as Misc. Case No.16 of 2015 and the objection filed by respondent no.2 which was registered as Misc. Case No.21 of 2015 deserve to be quashed. They are, accordingly, quashed.
Further had the shop been vacated as per the undertaking given by respondent no.1 and had it been occupied by the petitioner in the year 2012 and had the judgment debtor paid the decretal amount which was to the tune of Rs.6.5 lacs, the petitioner would have profitably used the shop and the decretal amount for the furtherance of his business.
Under such circumstance, apart from quashing the objections, a direction is being issued that the judgment debtor shall pay to the decree-holder/petitioner the entire decretal amount within a period of one month with interest at the rate of 12% per annum. Further since the petitioner has been deprived of his shop for such a long time, the respondent no.1 shall also pay to the petitioner, by way of damages, Rs.5 lacs within a period of one month.
The Executing Court shall see that in pursuance of the decree dated 31.3.2012 the shop is vacated within a month. It shall also get the payments made to the petitioner as are required to be done by the respondents as per this order.
The writ petition is, accordingly, allowed.
Order Date :- 28.02.2019 GS (Siddhartha Varma, J.)