Bhawani Singh Lane, Bhawani Singh Road, C-Scheme, Jaipur vs Rashtriya Laghu Udyog Nigam Ltd. Jaipur, Through

Judgment

1. Rashtriya Laghu Udyog Nigam Ltd. Jaipur, Through Authorized Representative Senior Branch Manager, Dharmendra Kumar Agarwal --Decree Holder

2. M/s Romesh Power Product Power Pvt. Ltd., Through Shri Radhmohan Khandelwal S/o Shri Sualal Khandelwal, Director M/s Romesh Power Product Pvt. Ltd. 203, Tikkadmal Lane, Kishanpole Bazar, Jaipur

Shri Radhamohan Khandelwal S/o Shri Sualal Khandelwal, Director M/s Romesh Power Product Pvt. Ltd. R/o 5/94-A, Bhawani Singh Lane, Bhawani Singh Road, C-Scheme, Jaipur

4. Anil Agarwal S/o Shri Mohan Lal Agarwal, Director M/s Romesh Power Product Pvt. Ltd. R/o 5-94-A, Bhawani Singh Lane, Bhawani Singh Road, C-Scheme, Jaipur

5. Smt. Mohini Devi Khandelwal W/o Shri Chandra Mohan Khandelwal, Director M/s Romesh Power Product Pvt. Ltd. R/o 203, Tikkadmal Lane, Kishanpole Bazar, Jaipur --Judgment Debtors

6. Rajasthan State Electricity Board, Jaipur, New Name Jvvnl, Vidhyut Bhawan, Jyoti Nagar, Jaipur Through Chairman

7. Maharashtra State Electricity Board, Prakashgarh, Bandra, (East) Mumbai, Through Chairman, Maharasthra State Electricity Now Replaced By Distribution Company Ltd.

8. Jaipur Vidhyut Vitran Nigam Ltd., Vidhyut Bhawan, Jyoti Nagar, Jaipur Through Chairman

9. Jodhpur Vidhyut Vitran Nigam Ltd., New Power House Industrial Area, Jodhpur Through Chairman

10. Ajmer Vidhyut Vitran Nigam Ltd., Vidhyut Bhawan, Hathi Bhata, Ajmer Through Chairman [2025:RJ-JP:15780] (2 of 7) [CR-190/2018] ----Respondents For Petitioner(s) : Mr. G.P. Sharma Mr. M.C. Gupta For Respondent(s) : Mr. Saurabh Jain Mr. Sudeep Buchra Mr. Abhishek Jain HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 10/02/2025

1. Instant revision petition is preferred by petitioner judgment debtor aggrieved from order dated 31.08.2018 in civil misc. case No.117/2017 passed by learned Additional District Judge No.2, Jaipur Metro whereby application under Order XXI Rule 58 CPC filed by present petitioner was dismissed.

2. Learned counsel for petitioner while referring Sections 133, 134 and 135 of Indian Contract Act and also judgment in case of Ramswaroop and Anr. Vs. State Bank of Bikaner and Jaipur and Anr. 2002 SCC Online Raj 661 submitted that in case, compromise has been executed between decree holder and judgment debtors about the liability of payment under the decree then the decree-holder is bound by the terms of contract. He further submitted that herein this case respondent No.1 has entered into a compromise and agreed that judgment debtor No.1 and 2 (respondent Nos. 2 and 3) will make payment of entire decreetal amount and defendant Nos. 3 and 4 shall not be responsible to make payment after compromise. He further submitted that on the basis of this agreement a compromise decree was passed and afterwards, the decree-holder is not entitled to claim and recover any amount from present petitioner who was defendant No.4 before the trial court. He further [2025:RJ-JP:15780] (3 of 7) [CR-190/2018] submitted that decree-holder has prayed for attachment of the property of present petitioner and in pursuant to this property of present petitioner was attached. He further referred the findings of learned trial court and submitted that the trial court was duty bound to adjudicate upon issues arising during execution proceedings. At last, he submitted that trial court has committed serious error while dismissing application under Order XXI Rule 58 CPC, as the executing court can not travel beyond terms of the decree.

3. Aforesaid contentions were opposed by learned counsel for respondent No.1 (decree-holder) and submitted that present petitioner was one of the guarantor and she is not entitled to be absolved from the liability as a guarantor. He further placed reliance upon judgements in cases of Industrial Investment Bank of India Ltd. Vs. Biswanath Jhunjhunuwala (2009) 9 SCC 478, Bank of Bihar Vs. Dr. Damodar Prasad and Anr. (1969) AIR (SC) 297, State Bank of India Vs. M/s Indexport Registered and Ors. ((1992) AIR(SC) 1740 and submitted that in order to recover money of financial institution it is not necessary for the financial institution to firstly exhaust the recovery procedure against main borrower before proceeding to recover from guarantor. He further submitted that even if there was a compromise but the decree was passed against all defendants including present petitioner. He further submitted that present petitioner could not be absolved against contract of guranatee till the loan amount is paid by the borrower. At last, he submitted that learned trial court has not committed any error while dismissing the application. [2025:RJ-JP:15780] (4 of 7) [CR-190/2018]

4. Heard learned counsel for petitioner and learned counsel for respondent. Perused the record along with judgments as cited by learned counsel for the parties.

5. The facts giving rise to instant petition are that respondent No.1 (decree-holder) has filed a civil suit No.113/2003 for recovery of ₹3,03,78,533/- with interest against present petitioner and respondent Nos. 2 to 5. Respondent No.1 has also filed another civil suit No.168/2005 to recover ₹69,81,019.80 with interest. During pendency of civil suit No.113/2013, a compromise was executed between parties and on the basis of compromise the decree was passed on 16.12.2013. As judgment debtor Nos. 1 and 2 failed to make payment in terms of decree therefore decree- holder has filed an execution proceedings under Order XXI Rule 11 CPC to recover remaining amount under the decree. The decree- holder has also pleaded that the cheques issued for payment were dishonoured. The decree-holder has further mentioned the details of property of present petitioner which was mortgaged in favour of decree-holder, to enforce recovery.

6. After knowledge of execution proceedings No.117/2017, an application under Order XXI Rule 58 CPC was filed by present petitioner on 06.09.2016 and same was dismissed on 31.08.2018.

7. A perusal of compromise application filed under Order 23 Rule 3 CPC indicated that it was filed on behalf of plaintiff (decree- holder), and defendant Nos. 1 to 4. This compromise was initially verified on 11.11.2013 when defendant Nos. 1 to 3 were present before the trial court but compromise was later verified with respect to present petitioner on 16.12.2013. The order-sheet dated 16.12.2013 indicated that present petitioner Mohini Devi [2025:RJ-JP:15780] (5 of 7) [CR-190/2018] Agarwal was present before the trial court and the compromise was verified and attested in her presence on 16.12.2013 which means that this compromise was within knowledge of present petitioner. Now petitioner is not a liberty to deny the terms of compromise.

8. A perusal of compromise indicated that: (I) After making initial payment in terms of compromise, remaining amount shall be paid by way of post dated cheques. (ii) Under Clause-E the defendants have assured that in case there is any default in terms of compromise then plaintiff (decree- holder) is entitled to recover entire money from defendants. (iii) Under Sub-Clause (G) it was mentioned that defendant No.3 and 4 will not be responsible to make any payment. (iv) In sub-clause (K) it was mentioned that after clearing all dues, the plaintiff (decree-holder Corporation) will return the documents of properties mortgaged with plaintiff.

9. Now the petitioner want to take advantage of following terms of compromise: (Para ‘G’) “izfroknhx.k la[;k 3 ,oa 4 dh Hkqxrku ds lEcU/k esa dksbZ ftEesnkjh ugh gksxh D;ksafd oks iwoZ esa gh dEiuh NksM pqds gSA”

10. A composite reading of this compromise indicated that defendants have jointly made statement to make payment and the property of present petitioner mortgaged with plaintiff can only be released once all dues are cleared. It means that a recovery can be enforced against the property mortgaged with decree-holder.

11. Para-E of compromise clearly indicated that in failing to make payment under the compromise the plaintiff is entitled to recover [2025:RJ-JP:15780] (6 of 7) [CR-190/2018] all dues from defendants. It means a recovery proceeding can be initiated against present petitioner.

12. Considering the language used in para-E, G, H, I, K of compromise it is apparent that present petitioner is also liable to make payment in terms of compromise, therefore the decree- holder has not committed any error while filing an application for recovery under Order XXI Rule 11 CPC.

13. In case of Ramswaroop and Anr. Vs. State Bank of Bikaner and Jaipur and Anr. (supra) a Co-ordinate Bench of this Court while considering the provision of Section 135 of Contract Act has held that a subsequent compromise between judgment debtor and bank has discharged the guarantor from liability to make payment under the guarantee.

14. When we test the same parameter with respect to compromise in the instant case then it is apparent that in case of non-payment by defendant Nos. 1 and 2 the plaintiff decree- holder is entitled to recover entire amount from defendants and when the defendants word has been used, it means defendant Nos. 3 and 4 as well.

15. Similarly the release of property or any document is only on clearance of all dues, thus the guarantor was not discharged in the instant case rather recovery was primarily to be effected from defendant Nos. 1 and 2. The para-G relates to share certificates and not with regard to the liability under the loan recovery.

16. Considering the language of compromise, the judgment in case of Ramswaroop and Anr. Vs. State Bank of Bikaner and Jaipur and Anr. (supra) is not applicable in this case, as the facts are different. [2025:RJ-JP:15780] (7 of 7) [CR-190/2018]

17. In case of Industrial Investment Bank of India Ltd. Vs. Biswanath Jhunjhunuwala (supra) and Bank of Bihar Vs. Dr. Damodar Prasad and Anr. (supra), Hon’ble Supreme Court has observed that the liability of guarantor and the principal debtor are co-extensive and not in alternative. In case of State Bank of India Vs. M/s Indexport Registered and Ors. (supra) Hon’ble Supreme Court has observed that when there is a composite money decree against all defendants then decree- holder could not be forced to exhaust the remedy firstly by execution against principal debtor.

18. Having considered the legal position in light of compromise between the parties, it is apparent on record that by compromise, present petitioner was not absolved from liability to make payment. Since petitioner is also a judgment debtor and guarantor, therefore, she is liable to make payment under the judgment and decree as per terms of compromise.

19. The executing court is empowered to adjudicate all issues arising during execution proceedings. The trial court has rightly considered application under Order XXI Rule 58 CPC. There is no perversity or illegality in the order passed by the trial court.

20. In view of the discussion made hereinabove the revision petition sans merits and same is liable to be dismissed.

21. As a result, present revision petition, is hereby dismissed.

22. Misc. application, if any, stands disposed of. PREETI VALECHA /332 (ASHOK KUMAR JAIN),J