K.K. Kuttappan v. Kaveri M. Kumar and others (OP (FC) No.295 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** **OP (FC).No.295 OF 2017(R)** **AGAINST THE JUDGMENT IN OP 970/2010 OF FAMILY COURT,TRIVANDRUM** ## **PETITIONER:** **K.K.KUTTAPPAN AGED 72 YEARS,S/O. LATE KOCHUKANNAN,'AISHWARIYA" HOUSE NO 38/320(24/614)NUSANI, PALAKKAD 678 004** **BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS** ## **RESPONDENTS:** **1 KAVERI M.KUMAR D/O. N.D MADHUMUMAR, NALLUVILA PADIPURA PUTHENVEEDU,VELLAR, KOVALAM P.O,THIRUVANANTHAPURAM 695 527 2 DILEEP S/O. LATE KOCHUKANNAN, RESIDING AT LETHA BHAVAN,PUTHENKULAM, PATHANAMTHITTA PIN 689 645 3 BHAVANI W/O. LATE SREEDHARAN,D/O. LATE KOCHUKANNAN, LETHA BHAVAN, PUTHENKULAM, PATHANAMTHITTA NOW RESIDING AT REMESH BHAVAN,PUTHENKULAM, MALAYALAPUZHA, PATHANAMTHITTA, PIN 689 645** **R1 BY ADV. SMT.KARTHIKA SATHI CHANDRAN R1 BY ADV. SRI.BASANT BALAJI R1 BY ADV. SMT.K.KUSUMAM R1 BY ADV. SRI.K.KALESH THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(FC) No.295 of 2017(R)** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _Dated this the 25[th] day of September, 2019_ ## _**Nagaresh, J.**_ This O.P.(FC) is filed by the 2[nd] respondent in O.P. No.970/2010 on the files of the Family Court, Thiruvananthapuram. The petitioner is aggrieved by the continuation of execution proceedings in E.P. No.39/2016 in the said O.P. 2. O.P. No.970/2010 was filed by the 1[st] respondent herein seeking past and future maintenance and for getting marriage expenses from her father, who was arrayed as 1[st] respondent in the original petition. The 1[st] respondent further prayed to declare that partition deed No.1383/1996 of RanniPerinad SRO executed between the petitioner and his siblings is not binding her. 3. During the course of the proceedings in O.P. No.970/2010, the 1[st] respondent along with her mother and **OP(FC) No.295 of 2017(R)** **3** father entered into a compromise with the petitioner and respondents 2 and 3 herein. In the said compromise, the petitioner agreed that he will raise and pay a sum of ₹10 lakhs to the 1[st] respondent and her parents within six months. In return, the 1[st] respondent and her parents agreed that the said sum of ₹10 lakhs will be accepted by them towards a final settlement of the disputes. It was also agreed that 1[st] respondent has no objection in vacating the order of injunction over plaint B Schedule property within three months. 4. The petitioner intended to raise the amount from plaint B Schedule property in the O.P. Ext.P1 dated 30.09.2013 is the copy of compromise petition, I.A. No.2243/2013. The Family Court on 31.10.2013 allowed I.A. No.2243/2013 except Clause No.7 thereof and recorded the compromise. The judgment in O.P. No.970/2010 is produced as Ext.P2. Ext.P2 has become final. The petitioner states that the 1[st] respondent filed I.A. No.2378/2014 challenging the compromise decree and the petitioner filed I.A. No.1276/2015 **OP(FC) No.295 of 2017(R)** **4** seeking to vacate the _ex-parte_ injunction imposed on plaint B Schedule property. The Family Court considered both the applications and passed an order dated 29.06.2015. By the said order, the Family Court kept in abeyance I.A. No.2378/2014 till disposal of I.A. No.1276/2015 stipulating certain conditions. The petitioner challenged the said order dated 29.06.2015 filing O.P.(FC) No.333/2015 before this Court. This Court allowed the O.P.(FC) by setting aside the order dated 29.06.2015. I.A. No.1276/2015 filed by the petitioner was allowed and I.A. No.2378/2014 filed by the 1[st] respondent was dismissed. 5. The petitioner states that he filed I.A. No.757/2016 in the Family Court thereafter, seeking to vacate the injunction order. The injunction order was vacated by the Family Court on 25.05.2016. Immediately thereafter, the petitioner approached bank and raised ₹15 lakhs. The amount was sanctioned on 17.08.2016 and the petitioner paid the amount agreed in the compromise petition, on 18.08.2016 itself. **OP(FC) No.295 of 2017(R)** **5** 6. The petitioner states that he was served with a notice in E.P. No.39/2016, wherein the 1[st] respondent claimed ₹3 lakhs towards interest at the rate of 12% from 31.10.2013 to 30.04.2016, on ₹10 lakhs. According to the petitioner, there is no provision for payment of interest as per Ext.P1 compromise. The petitioner contends that despite payment of ₹10 lakhs on 18.08.2016, as agreed in the compromise, the Family Court is proceeding with the execution petition to compel the petitioner to pay an amount of ₹3 lakhs towards interest. The proceedings of the Family Court are illegal and the petitioner is not liable to pay interest as per Ext.P1 compromise and Ext.P2 decree. The continuation of the execution proceedings in E.P. No.39/2016 is, therefore, liable to be restrained, contends the petitioner. 7. The counsel for the 1[st] respondent opposed the O.P.(FC). According to the counsel for the 1[st] respondent, Ext.P1 compromise petition is very clear as regards payment of interest. The counsel for the 1[st] respondent brought to our **OP(FC) No.295 of 2017(R)** **6** notice Clauses 1, 6, 7 and 8 of the terms and conditions of the compromise petition, which are as follows:- _“(1) The 2[nd] respondent K.K.Kuttappan hereby agree that he will raise a sum of Rs.10,00,000/- (Rupees ten lakh only) and pay the same to the parties of the 1st part to this agreement within six months from this date of agreement and the parties on the 1[st] part hereby agree that the said sum of Rs.10,00,000/- (Rupees ten lakhs) will be accepted by them with full satisfaction as full and final settlement towards the valid consideration hereby relinquishing all their right, interest and title which they claim in the 'B' schedule property in the above OP, having an actual extent of three acres thirty nine cents (3.39 acres) in Re.Sy.No.497/2 and 498/1 of Vadaserikara Village Ranny Taluk in Pathanamthitta District and also hereby relinquish all their pecuniary claims, in whatsoever manner, they claim as against the parties on the 2[nd] part._ _(6) The parties on the 1[st] part have no objection in vacating the order of injunction_ **OP(FC) No.295 of 2017(R)** **7** _which is now existing over the petition 'B' scheduled property, for the purpose of enabling the 2nd party to raise the money of Rs.10 lakhs which is agreed to be paid by them to the 1[st] party, within three months from the date of this compromise._ _(7) If at any event, within the stipulated time limit of 3 months, this amount is not paid by the 2[nd] party to the 1[st] party, the order of injunction which is now existing over the property shall be revived and the encumbrances made if any subject to the claims of the 1[st] party, which are raised by them in this case._ _(8) The time fixed for payment of Rs.10 lakhs without any interest in 3 months from the date of filing this agreement.”_ (Underline supplied) 8. Clause 8 of the compromise petition is clear inasmuch as the time fixed for payment of ₹10 lakhs without any interest is three months from the date of filing of the agreement. The agreement was recorded on 31.10.2013. Therefore, the agreed amount ought to have been paid **OP(FC) No.295 of 2017(R)** **8** before 31.01.2014 if it is to be paid without interest. The petitioner failed to pay the amount before the said date. Therefore, in view of Clause 8 of the compromise petition, the 1[st] respondent is entitled to claim interest on the amount of ₹10 lakhs. There is nothing wrong on the part of the Family Court in proceeding with the execution petition for payment of interest, contends the learned counsel for the 1[st] respondent. 9. We have heard the learned counsel for the petitioner and for 1[st] respondent and perused the pleadings. 10. The petitioner has agreed to pay ₹10 lakhs towards settlement of the disputes as per Ext.P1 compromise petition dated 30.09.2013. The amount was to be paid within three months, if it was to be paid without interest. From Ext.P1, it is evident that the petitioner intended to raise the requisite funds from plaint B Schedule property which was under an injunction order of the Family Court. The petitioner filed I.A. No.1276/2015 to vacate the injunction order. On 29.06.2015, the Family Court passed an order on I.A. No.1276/2015, _inter alia_ , imposing 6% interest on ₹10 lakhs from 30.03.2014. The **OP(FC) No.295 of 2017(R)** **9** petitioner challenged the said order dated 29.06.2015, filing O.P.(FC) No.333/2015 before this Court. This Court ordered the said O.P.(FC) allowing I.A. No.1276/2015 of the petitioner, as per order dated 08.03.2016. 11. By the said order dated 08.03.2016 of this Court, the injunction imposed on plaint B Schedule property stood vacated. But queerly, the petitioner filed another I.A. No.757/2016 in the Family Court and the petitioner contends that the Family Court vacated the injunction on 25.05.2016 and the amount of ₹10 lakhs was paid on 18.08.2016. Since the petitioner paid the amount within three months from 25.05.2016, the date on which the Family Court vacated the injunction order, the petitioner is not liable to pay interest. The continuation of execution proceedings to realise interest from the petitioner is hence illegal and unwarranted, contended the learned counsel for the petitioner. 12. By order dated 08.03.2016, in exercise of the powers conferred under Article 227 of the Constitution, this Court allowed I.A. No.1276/2015 filed by the petitioner in **OP(FC) No.295 of 2017(R)** **10** Family Court which sought to vacate the injunction on plaint B Schedule property. In _**Hari Vishnu Kamath v. Ahmad Ishaque and others** [AIR 1955 SC 233]_ , the Apex Court held that the High Court, while exercising jurisdiction under Article 227, can not only annul a decision of the lower court, but can issue further directions as well. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order, but it may also make such directions as the facts and circumstances of the case may warrant. In appropriate cases, the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or Tribunal should have made. 13. This Court in O.P.(FC) No.333/2015, allowed I.A. No.1276/2015 filed by the petitioner in Family Court on arriving at a conclusion that the injunction order passed against plaint B Schedule property should be vacated. The I.A. was allowed on 08.03.2016, resulting in vacating the injunction order with effect from that date. The petitioner **OP(FC) No.295 of 2017(R)** **11** therefore, going by the terms of compromise, ought to have paid the agreed amount at least within three months therefrom, in order to avoid the liability to pay interest. Instead, the petitioner proceeded to file fresh I.A. No.757/2016 before the Family Court purportedly to vacate the injunction, which already stood vacated by orders of this Court. The petitioner paid the agreed amount only on 18.08.2016, beyond the three months period, after disposal of the said I.A. No.757/2016, which application was totally misconceived and misplaced. The petitioner cannot be permitted to lean on his legal misadventure, for the delayed payment of agreed amount. In the circumstances of the case, we decline the reliefs sought for by the petitioner and dismiss the O.P.(FC). Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/22.08.2019 **OP(FC) No.295 of 2017(R)** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE COMPROMISE PETITION DATED 30-09-2013 FILED UNDER ORDER 23 RULE E AND PRODUCED AS I.A NO 2243/2013 IN O.P NO 970/2010 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 31-102013 IN O.P NO 970/2010 ON THE FILES OF FAMILY COURT, THIRUVANANTHAPURAM** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 08-032016 IN O.P(FC) NO 333/2015** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 17-08-2016 ISSUED BY THE BANK** - **EXHIBIT P5 TRUE COPY OF LETTER OF SANCTION EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 18-082016 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE EXECUTION PETITION IN E.P NO 39/2016 IN O.P NO 970/2010** - **EXHIBIT P8 TRUE COPY OF THE ORDER SHEET (B-DIARY) IN EP NO 39/2016 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM** **EXHIBIT P9 TRUE COPY OF THE NOTICE TO SHOW CAUSE UNDER ORDER 21 RULE 37 IN E.P NO 39/2016**