Janardhanan Nair and Others v. Manappuram Asset Finance Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** ## **OP(C).No. 726 of 2010 (O)** **-------------------------E.P. NO.103/2008 IN O.S. NO.8/2004, EP. NO.104/2008 IN O.S. NO.9/2004 & EP. NO.105/2008 IN OS. NO.17/2004 OF SUB COURT, OTTAPPALAM.** **..........** ## **PETITIONERS:** - **----------------------** **1. JANARDHANAN NAIR, S/O.KESAVAN NAIR, KUNNUMPURATH HOUSE, MARAYAMANGALAM, NELLAYA, OTTAPALAM TALUK.** **2. M.K. SANTHOSHKUMAR, S/O.MADHAVAN, PATTARUMADATHIL HOUSE, KUMARAMPUTHUR, MANNARKKAD TALUK.** **3. M.K. SINDHU, D/O.LATE M.K.MADHAVI, PATTARUMADATHIL HOUSE, KUMARAMPUTHUR, MANNARKKAD TALUK.** **4. M.K. SIBI PRIYADARSHINI, S/O.LATE M.K. MADHAVI, PATTARUMADATHIL HOUSE, KUMARAMPUTHUR, MANNARKKAD TALUK.** **BY ADVS.SRI.I.DINESH MENON, SRI.T.C.SURESH MENON.** **RESPONDENT(S):** - **----------------------------** **MANAPPURAM ASSET FINANCE LTD., MANNATH BUILDING, MAIN ROAD, SHORNUR, REPRESENTED BY MANAGING DIRECTOR, MRS.JYOTHI, PRASANNAN, W/O.P.D. PRASANNAN, PUZHAKKADAVIL HOUSE, CIVIL LINES ROAD, THRISSUR, (FORMERLY, L.F.C. HIRE PURCHASE COMPANY LTD., SHORNUR).** **BY ADVS. SRI.V.B.UNNIRAJ, SMT.R.S.GEETHA.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **OP(C).No. 726 of 2010 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE LETTER OF SETTLEMENT DATED 07/08/2007. EXT.P2 COPY OF THE DEMAND DRAFT DATED 25/02/2010. EXT.P3 COPY OF THE COMMON ORDER DATED 26/07/2010 IN E.P. NO.103/2008 IN O.S. NO.8/2004, EP. NO.104/2008 IN O.S. NO.9/2004 AND EP. NO.105/2008 IN O.S. NO.17/2004.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **K.HARILAL, J.** = = = = = = = = = = = ## **O.P.C.No.726 of 2010** = = = = = = = = = = = = = = = Dated this the 4[th] day of March, 2014 **J U D G M E N T** The petitioners are the judgment debtors in E.P.No.103 of 2008 in O.S.No.8/2004, E.P.No.104 of 2008 in O.S.No.9/2004 and E.P.No.105 of 2008 in O.S.No.17/2004 on the files of the court of Subordinate Judge, Ottapalam and the respondent herein is the decree holder. As per the decree in O.S.No.8/2004, a sum of Rs.6,02,528/- along with cost is due. As per the decree in O.S.No.9/2004 a sum of Rs.11,97,243/- with cost is due. As per the decree in O.S.No.17 of 2004 a sum of Rs.11,35,320/- along with cost is due. So, the respondent has filed above execution petitions for the realisation of each amount due under the decree. The petitioners/judgment debtors filed a counter opposing the claim of the decree holder. Along with the counter, the petitioners have produced copy of a demand draft for an amount of Rs.14,82,400/-. According to the judgment O.P.C.No.726 of 2010 2 debtors, the said amount is deposited in full satisfaction of the decree in the above three suits in terms of the settlement to which they had been entered into earlier. A copy of the letter issued by the decree holder was also produced. In short, the judgment debtors prayed for recording the full satisfaction of the decree in view of the deposit of Rs.14,82,400/- in the suit. After considering the objection raised by the judgment debtors, the court below rejected the objection and ordered to sell the properties mentioned in the schedule for realising the balance amount due under the above mentioned decrees and the case was posted for proclamation and sale. The legality and propriety of the above order is under challenge in this original petition filed under Article 227 of the Constitution of India. 2. The learned counsel for the petitioners advanced arguments assailing the findings of the court below in the impugned order under challenge. According to the learned counsel, the matter was settled between the parties for an O.P.C.No.726 of 2010 3 amount of Rs.13 lakhs. But, unfortunately, the petitioners could not pay the amount in time, for which now they have voluntarily deposited an amount of Rs.14,82,400/- with interest. But, the court below miserably failed to take the said payment into account and to arrive at a conclusion as to satisfaction of the decree. The learned counsel drew my attention to Order I Rule 2 of the CPC and cited the decision in **Burjorji Shapurji Sheth v. Madhavlal Jesingbhai and another** (AIR 1934 Bombay 370), **P.K.Singh v. S.N.Kanungo and Others** (2010 (4) SCC 504) and **P.Kunhikannan Nair v. N.Krishnan** (AIR 1972 Kerala 90). According to the learned counsel, in view of Order 21 Rule 2, the court can take into account adjustment between the parties even after passing of the decree and such adjustment can be recognised in execution under Rule 2. 3. In view of the submission at the Bar, the short question that arises for consideration is whether there is any illegality or impropriety in the order rejecting the claim of settlement raised by the petitioners/judgment debtors. O.P.C.No.726 of 2010 **==> picture [7 x 9] intentionally omitted <==** Put it differently, is the rejection of the claim of discharge justifiable ? 4. Going by the impugned order, it could be seen that a total amount of Rs.29,35,091/- is due with future interest under the above mentioned decrees. It is true that before the passing of the decree, both the parties had arrived at a settlement and the same is admitted by the decree holder also **.** Ext.P1 letter issued by the decree holder itself shows the nature and extent of settlement arrived at by the parties. In Ext.P1, the terms of settlement shows as under: “In the event of parties agreeing to the plaint claim before the court, it has been agreed to settle the above three accounts for a sum of Rs.13 lakhs if the amount is paid on or before 31[st] October, 2007”. 5. Apparently, the letter itself shows that the settlement was arrived at before passing of the decree. That apart, the settlement itself is a conditional one. The decree holder agreed to settle the claim for Rs.13 lakhs if the amount is paid on or before 31[st] October, 2007. The judgment debtors have no case that they have paid the said O.P.C.No.726 of 2010 5 amount before 31[st] October, 2007. Admittedly, the judgment debtors failed to perform their part. The execution petitions are filed before the court on 04/09/2008, ie., after the stipulated time for payment of 13 lakhs. But,₹ on 25/02/2010, the judgment debtors have taken DD for Rs.14,82,400/- and deposited in the court and claimed discharge and satisfaction of the decree thereunder. I am unable to accept the claim of discharge in view of the amount quantified in the decree due from the judgment debtors. The decree was passed after arriving at a out of court settlement between the parties and the agreement between the parties was a conditional one. Ext.P1 letter specifically states that if an amount of 13 lakhs is paid on₹ or before 31[st] October, 2007, the dispute will stand settled. But, after a long lapse of more than three years, the petitioner had unilaterally tendered the said amount and sought for discharge, which is impermissible under law. 6. The learned counsel for the petitioners drew my attention to Order 21 R 2 and cited the above decisions O.P.C.No.726 of 2010 **==> picture [7 x 10] intentionally omitted <==** under the said rule. But, I am of the opinion that since the settlement was arrived at before passing of the decree was a conditional one, and also the judgment debtors failed to perform their part of the settlement, the said deposit of ₹ 14,82,400/-, three years after the passing of the decree is of no consequence at all in the eye of law and liable to be rejected at the threshold. Thus, these decisions have no application at all in this case. The rejection of the deposit under the claim of settlement can be justified. There is no illegality or impropriety in the impugned order under challenge. This original petition is devoid of merits and dismissed accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge