T.K. Basu, J. - (1.) This is a Chamber Summons for execution of the balance sum alleged to be due under an order passed by consent in a Company petition being No. 40 of 1973. By that order, the respondent No. 2 was directed to pay a sum of Rs. 1,25,000/- to the petitioner. The order further provided that the petitioner will accept a sum of Rs. 1,00000/- in full settlement of the claim if the same is paid in the manner following : (a) A sum of Rs. 25,000/- on or before December 31st, 1975 and thereafter a sum of Rs. 25,000/- every four months until the entire amount of 1,00000/- is paid. (b) In default of payment of any one of the said instalments the entire sum of Rs.1,25,000/- or the balance thereof shall become payable with interest at the rate of 12% per annum.
(2.) Admittedly, three instalments of Rs. 25,000/- have been paid and within the time stipulated in the consent order. According to the decree-holder, there has been a default in payment of the fourth instalment of Rs.25,000/- within the stipulated time i.e. 31st December, 1976. According to the Tabular Statement, a sum of Rs. 50,000/- being the balance of the decretal amount together with interest at the rate of 12% is sought to be realised by the present execution application.
(3.) The curious fact to note is that a cheque for Rs. 25,000/- was sent by the respondent No. 2 to M/s. Khaitan and Co. towards the payment of the last instalment on the 30th December, 1976 as will appear from the covering letter which is Annexure 'A' to the affidavit of D.S. Mazda affirmed on the 3rd March, 1980. In the letter, it was stated that this cheque in favour of Messrs Fowler and Co. was for the payment of fourth and final instalment due by 31st December, 1976. In paragraph 4 of the affidavit of Mazda, it is stated that as both 31st December, 1976 and 1st January, 1977 were holidays and, as Mr. P. L. Agarwalla of M/s. Khaitan & Co. who was looking after the case on behalf of the respondent was not attending office and had gone abroad, the cheque was sent to M/s. Fowler and Company on or about 15th January, 1977.;