MOHAMMAD HATIBUL HAQ Vs. SETH TIKAM CHAND

JUDGEMENT

(1.) This is an appeal from a decree, dated 6 July 1932, of the High Court of Judicature at Allahabad setting aside the decree, dated 29 May 1928, of the Subordinate Judge of Agra. The dealings between the original parties to the suit or their predecessors in business extended over very many years and litigation or disputes culminating in litigation have been in progress for nearly 20 years. Of the matters litigated between the parties only two points remained for decision upon the hearing of this appeal. Those points are : First : Whether a deed bearing date 25 January 1918, executed by the original plaintiff in favour of the original defendant remained effective notwithstanding a compromise between the parties made in 1921 or was cancelled by such compromise. Second : Whether the original plaintiff was or was not entitled to the benefit of certain Government promissory notes of the face value of Rs. 13,000 which had been deposited by him with the said defendant as security and was or was not entitled to recover the said promissory notes or the amount realized by their sale.

(2.) The Subordinate Judge found on both these points in favour of the plaintiff. The High Court reversed his decision on both points. Hence this appeal. The facts relevant to the understanding of the two points in issue are as follows: The original plaintiff (hereinafter for convenience referred to as the Sheikh) was a contractor and for the purposes of his business he had been for many years financed by the original defendant (hereinafter for convenience referred to as Tikam Chand) and by the father and grandfather of Tikam Chand. On 31st December 1917 an agreement was drawn up between the Sheikh and Tikam Chand the effect of which was that the sum stated to be due from the Sheikh was Rs.5,05,186 and that this debt was to be satisfied partly by a sale deed in favour of Tikam Chand of certain properties of the Sheikh and partly by a bond for the residue of the indebtedness. A sale deed bearing date 25 January 1918 was in fact executed in respect of properties valued at Rs.1,65,000 and by the same deed a mortgage was created on other property valued at Rs. 25,000. On 26th January 1918, the Sheikh executed a bond in respect of the residue of the debt. The amount of the bond was over three lacs of rupees. There was a dispute in this suit as to whether the total indebtedness was really five lacs or thereabouts or whether that sum was merely provisional and subject to modification by taking of an account. The Subordinate Judge has accepted the view in favour of the Sheikh that the amount was merely provisional, while the High Court has taken the opposite view. Their Lordships regard this matter as of little if any importance. It is at all events clear that as regards the bond the position was entirely altered by an agreement in writing between the parties dated 8 December 1919, by which it was agreed that the sum due under the bond dated 26 January 1918, was Rs.1,39,000 and provision was made for satisfying and securing this amount. The sale agreement dated 25th January 1918 was not referred to in the agreement of 8 Decembar 1919.

(3.) Tikam Chand was not long satisfied with this substituted agreement of 8 December 1919, and disputed its validity. On 30 June 1920, he filed a suit (No. 219) against the Sheikh and certain persons employed by or related to himself claiming that the agreement of 8 December 1919 was obtained from him by the fraud of the defendants to the suit and was null and void and that the amount due to him was not the lesser sum of Rs.1,39,000 but the bond amount of over three lads of rupees. In other words he sought to restore the position under the bond. Again no mention was made of the sale deed. That deed had become operative as from its date and the properties which it purported to convey to Tikam Chand were in fact transferred to him. The suit No. 219 of 30 June 1920, did not proceed to trial but was compromised between the parties. A petition of compromise dated 25 October 1921 was presented to the Court and on 7 Novembar 1921 a decree was passed on that petition. The decree set out the terms of compromise of which the material terms are as follows : 1. The documents, dated 26 January 1918 and 8 December 1919, the possessory mortgage deed, dated 6 January 1920, and the rent agreement, dated 6 January 1920, executed by defendant 1 in favour of the plaintiff shall be declared to be null and void. No party shall, in future, be competent to seek any remedy of any kind against the other party under those document. 2. In lieu of the amount of claim and costs and interest, etc., to this date defendant 1, viz. Sheikh Mohammad Habib Ullah, shall pay to the plaintiff a sum of Rs. 1,65,000 in cash of the current coin, half of which is Rs. 82,500, in three years and six months time as per details given below.