- (1.) NOW this is the turn of the plaintiff to apply with the aforesaid application for execution of decree dated 17th March, 2004 in contrast to their earlier stand when third defendant made an application on earlier occasion for execution of the said decree. Earlier application of the third defendant was not allowed by this Court on technical ground. However, liberty was given to it to make a fresh attempt for execution of the same. The fact of the case is very interesting to show how both the litigants can prolong a settled issue to unsettle and do not like to come to real and logical conclusion to bury the hatchet and this will be revealed from the following short fact:
(2.) SOMETIME in late 2002 the plaintiff instituted a civil suit being suit No. 486 of 2002 against the defendants in this Hon'ble Court praying for a decree of U. S. $ 54,65,491 for the price or newsprint sold and delivered together with interest thereon. The suit was entertained by the Court having found that part of the cause of action as pleaded in paragraphs 21 and 22 of the plaint arose within the jurisdiction of this hon'ble Court by granting leave under Clause 12 of Letters Patent. In the plaint it is alleged by the plaintiff that there were previous agreements dated 7th September, 2000 and 12th June, 2002 for transfer of property situate in Hyderabad in satisfaction of the price of the newsprint, but according to the plaintiff the agreement had become unexecutable. The third defendant in its affidavit dealing with allegations made in the application for the Judgment upon admission containing reproduction of paragraph 26 has denied the Correctness of the same. The third defendant specifically contended that the said agreement was lawful, valid and subsisting. After institution of the suit the plaintiff filed two applications being G. A. No. 4200 of 2002 and G. A. No. 4203 of 2002. In one of the said applications the plaintiff claimed judgment upon admission against the defendants jointly and/or severally. In the other application the plaintiff claimed attachment before Judgment. Both the applications came up for hearing before The hon'ble Mr. Justice Jayanta Kumar Biswas on 11th March, 2004. On that date the third defendant expressed his willingness to settle the said suit by transferring its property at Hyderabad in favour of the plaintiff in satisfaction of the claim of the plaintiff in the said suit and accordingly, by the order the defendant Nos. 3 and 4 were directed to file affidavits that they were willing to transfer the said property. The said affidavit containing undertaking of the defendant No. 3 was filed on 12th March, 2004 by one N. Gopalan, Chief Manager (Legal) of the third defendant. The said defendant undertook transfer of the said property in favour of the plaintiff by executing deed written on stamp paper and completed all the legal formalities within the period fixed by the Hon'ble Court. By an order dated 15th March, 2004 the said affidavit was accepted by this Hon'ble Court. On the basis of their affidavit of undertaking settlement in the form of the suggested order was drawn by and between the plaintiff and the defendant No. 3 and finalized by their respective advocates. The said suggested order was presented before this Hon'ble Court by the learned Senior Advocate of the plaintiff and the defendant No. 3 and the Hon'ble Court was invited to pass a decree in terms of the suggested order. On 17th March, 2004 the order was passed by this Hon'ble Court. Accordingly, the said decree was passed. The said order dated 17th March, 2004 was drawn up upon notice to the Advocate on record of the defendant No. 3 by the department. The decree was drawn up, completed and filed without any objection of the defendant No. 3. The sum and substance of the decree is that the defendant No. 3 shall transfer the said Hyderabad property in terms of the agreement dated 7th September, 2002 read with agreement dated 12th June, 2002 for consideration of Rs. 21 crores and 10 lakhs and the defendant No. 3 was further directed and ordered to execute and register the sale deed with appropriate registration office at Hyderabad and in default, the Registrar, Original Side shall execute and register the sale deed in the name and on behalf of the defendant No. 3. No action was taken thereafter until the plaintiff in or about one week of June, 2003 made an application for contempt alleging that the defendant No. 3 did not discharge undertaking given to the Court, however, the said contempt application was dismissed. Appeal preferred therefrom was also dismissed on the ground that the contempt application was not maintainable.
(3.) THEREAFTER the plaintiff filed an application being Execution Case no. 8 of 2005 complaining of such defects in title of the defendant No. 3 over the said property by reason of non-registration of compromise decree by Hyderabad Registering Authority. At the same time the defendant No. 3 filed an execution application being G. A. No. 3035 of 2004 by which enforcement of the aforesaid order was claimed. Both the said applications of the plaintiff and the third defendant were disposed of by this Court by a Judgment and order dated 21st November, 2005 and thereby and thereunder the application taken out by the plaintiff was dismissed and it was held that there was no defect in title for execution of conveyance for sale of the property then alleged by the plaintiff. However, relief could not be granted on the execution application as the same was not in proper form. In the said Judgment and order the submissions of defendant No. 3 was recorded that it had accepted the decree dated 17th March, 2004 and also its readiness and willingness to transfer the said property in terms of the decree, only grievance was that the plaintiff was causing delay in execution of the said decree. The said Judgment and order dated 21st November, 2005 was appealed against by the plaintiff unsuccessfully. Thereafter the present application has been taken out on the tabular statement for the following reliefs: (a) Direction be given for service of notice of this application upon indian Express Newspapers (Bombay) Limited having its registered office at Express Towers, Nariman Point, Mumbai -400021. (b) The Defendant No. 3 be directed to join Indian Express Newspapers (Bombay) Limited having registered office at Express Tower, nariman Point Mumbai - 400021 for conveying ownership of the property at Gang - Mahal Village, Tank Bund Road. Hyderabad more fully described in schedule hereunder free from all encumbrances in terms of the add compromises decree dated march 17, 2004 and jointly with Indian Express Newspaper (Bombay) Ltd. to execute and register the deed of conveyance, a draft whereof is annexed hereto and marked with Letter "i" or alternatively appointed by the Hon'ble Court for settling the deed of conveyance in accordance with the Compromise Decree dated march 17, 2004. (c) Delivery of vacant and peaceful possession of the said Hyderabad property fully described in schedule hereunder to the plaintiff and/ or its authorized representative immediately upon execution and registration of deed of conveyance and if necessary a Receiver be appointed for taking over possession and handing over vacant peaceful possession of the said Hyderabad property. (d) In default of the defendant No. 3 executing and registering the deed of conveyance jointly with Indian Express Newspaper (Bombay) Limited as vendor, the Registrar of Original Side of the hon'ble Court be empowered and directed to execute and register the deed of conveyance referred to in prayer (a) above for and on behalf of and in the name of the defendant No. 3 and the said indian Express Newspaper (Bombay) Limited. (e)In the event of failure of the defendant No. 3 in delivering the vacant and peaceful possession of an area of 3960 sq. meter or any portion of the said Hyderabad property described in schedule hereunder and/or conveying the title of the said Hyderabad property in its entirety, an order be passed for attachment of the property 6, 6/1, 6/2, 6/3, and 6/4, Brunton Road Bangalore - 1. 1, Queens Road, Civil Station, Bangalore and 4, Vidhana Veedhi bangalore belonging to the defendant No. 3 and if the defendant no. 3 do not arrange for delivery of vacant and peaceful possession of the said portion of the said property within six months from the date of the order, the said attached property be sold through the Receiver appointed by this Hon'ble Court and out of the sale proceeds, the amount of compensation of Rs. 4. 26 crores or such other amount as this Hon'ble Court may think fit and property be paid to the plaintiff/decree holder and the balance amount, if any, to the defendant No. 3. (f) Ad-interim order in terms of prayers above. (g) Such further or other order or orders be made and/or direction be given in the interest of justice. ;