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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS (L) NO. 1020 OF 2016
IN
EXECUTION APPLICATION NO. 1069 OF 2016
IN
SUIT (L) NO. 194 OF 2015
WITH
NOTICE OF MOTION (L) NO.551 OF 2015
1. Mr. Pawankumar Arya of Mumbai, Indian
Inhabitant residing at 403, Samudra Mahal,
Dr. Annie Besant Road, Worli,
Mumbai - 400 018
2. Mrs. Poonam Pawan Arya of Mumbai,
Indian Inhabitant, residing at 403, Samudra
Mahal, Dr. Annie Besant Road, Worli,
Mumbai - 400 018
3. Mr. Puneet Pawan Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
4. Mrs. Trupti Puneet Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
5. Master Yuvan Puneet Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
6. Pawankumar Arya as Karta of
Pawankumar Arya HUF through its
Karta Pawankumar Arya, having
address at 43, Ramwadi, Kalbadevi
Road, Mumbai - 400 002 ..Applicants
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In the matter between :
1. Mr. Pawankumar Arya of Mumbai, Indian
Inhabitant residing at 403, Samudra Mahal,
Dr. Annie Besant Road, Worli,
Mumbai - 400 018
2. Mrs. Poonam Pawan Arya of Mumbai,
Indian Inhabitant, residing at 403, Samudra
Mahal, Dr. Annie Besant Road, Worli,
Mumbai - 400 018
3. Mr. Puneet Pawan Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
4. Mrs. Trupti Puneet Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
5. Master Yuvan Puneet Arya of Mumbai,
Indian Inhabitant residing at Flat
No.B, 27th Floor, Orbit Arya, Off
Nepeansea Road, Darabshaw Lane,
Mumbai - 400 026
6. Pawankumar Arya as Karta of
Pawankumar Arya HUF through its
Karta Pawankumar Arya, having
address at 43, Ramwadi, Kalbadevi
Road, Mumbai - 400 002 ... Plaintiffs
versus
1. Mr. Ravikumar Arya of Mumbai,
Indian Inhabitant residing at 6,
Sutlej Terrace, 6, Walkeshwar
Road, Mumbai - 400 006
2. Mrs. Sushma Ravi Arya of Mumbai
Indian Inhabitant residing at 6,
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Sutlej Terrace, 6, Walkeshwar
Road, Mumbai - 400 006
3. Mr. Varun Ravi Arya of Mumbai
Indian Inhabitant residing at 6,
Sutlej Terrace, 6, Walkeshwar
Road, Mumbai - 400 006
4. Mr. Nakul Ravi Arya of Mumbai,
Indian Inhabitant residing at 6,
Sutlej Terrace, 6, Walkeshwar
Road, Mumbai - 400 006
5. Master Vihaan Nakul Arya of
Mumbai Indian Inhabitant residing at 6,
Sutlej Terrace, 6, Walkeshwar
Road, Mumbai - 400 006
6. Ravikumar Arya as Karta of Ravikumar
Arya HUF having address at 43,
Ramwadi, Kalbadevi Road,
Mumbai - 400 002.
7. M.P.Recycling Company Private
Limited, a Company incorporated
under the Companies Act, 1956, having its
Registered Office at 43, Ramwadi,
Kalbadevi Road, Mumbai - 400 002.
8. Kash Foods Private Limited,
A Company incorporated under the
Companies Act, 1956, having its
Registered Office at 15-B, Chandramukhi,
Nariman Point, Mumbai - 400 021.
9. Satyen Bavishi, Director of Kash Foods
Private Limited, and having his office
address at 15-B, Chandramukhi,
Nariman Point, Mumbai - 400 021.
10. Omkar Realtors and Developers Private
Lim ited, a Company incorporated under
the Companies Act, 1956 and having its
registered Office at Omkar House, Off
Eastern Express Highway, Opposite
Sion-Chunabhatti Signal, Sion East,
Mumbai - 400 022. ... Respondents
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Mr. Janak Dwarkadas, Sr. Adv. a/w. Mr. Karl Tamboly, Mr. Jehangir Jejeebhoy,
Mr. Vivek Vashi, Ms. Alya Khan, Ms. Aditi Bhansali i/b. Bharucha and Partners for
the Applicants / Plaintiffs.
Mr. Haresh Jagtiani, Sr.Adv. a/w. Mr. Siddhesh Bhole, Ms. Apurva Manwani i/b.
Siddhesh Bhole for Defendant Nos. 1, 2 and 6.
Mr. Navroz Seervai, Sr. Adv. a/w. Mr. Siddesh Bhole, Ms. Apurva Manwani i/b.
Siddhesh Bhole for Defendant Nos. 3 and 4.
Mr. Sharan Jagtiani a/w. Mr. Siddesh Bhole, Ms. Apurva Manwani i/b. Siddhesh
Bhole for Defendant Nos. 8 and 9.
Mr. Cherag Balsara a/w. Mr. Aftab Diamondwala, Mr. Shaikh Aziz Mohd. i/b.
Diamondwala and Company for Defendant No. 10.
CORAM: S.J. KATHAWALLA, J.
Judgment reserved on: 18th SEPTEMBER, 2017
Judgment pronounced on: 30th NOVEMBER, 2017
JUDGMENT :
1. The above Chamber Summons is taken out by the Applicants who were the original Plaintiffs in Suit (Lodging) No. 194 of 2015. In the said Suit, Plaintiff Nos. 1 to 6 constitute Pawankumar Arya Group (PA Group) and Defendant Nos. 1 to 6 constitute Ravikumar Arya Group (RA Group). Defendant Nos. 7, 8, 9 and 10 were M.P. Recycling Private Limited, Kash Foods Pvt. Ltd., Satyem Bavishi and Omkar Realtors and Developers Pvt. Ltd. (Omkar), respectively.
2. According to the Plaintiffs, on the date of the filing of Suit (Lodging) No. 194 of 2015, M.P. Re-cycling (Defendant No. 7) was jointly held by PA ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:47 ::: ssp 5 chsl-1020/2016 Group and RA Group with each group holding 50 per cent of their shareholding. MP Recycling held 25 per cent of shareholding in Defendant No. 8 (Kash Foods). Kash Foods owned a plot of land at Worli totally admeasuring about 4134.27 sq.mtrs. ("the Worli property"). 25 per cent of the shareholding in Kash Foods was purchased by MP Recycling Pvt. Ltd. The remaining 75 per cent of the shareholding in Kash Foods was bought by the RA Group in 2011 in their own individual capacities from outside investors. By way of a Conveyance Deed dated 22nd December, 2012, executed between Kash Foods and Defendant Nos. 3 and 4 (members of RA Group), a portion of the assets of Kash Foods was transferred to Defendant Nos. 3 and 4 (members of the R.A.Group). On 10 th April, 2013, a development agreement was executed between Omkar, Kash Foods and Defendant Nos. 3 and 4. The benefits accruing and/or arising out of the development agreement dated 10th April, 2013 included the following:
Kash Foods Defendant Defendant Total
No.3 No.4
Cash 11,50,00,000/- 6,75,00,000/- 6,75,00,000/- 25,00,00,000/-
Consideration
Security 9,20,00,000/- 5,40,00,000/- 5,40,00,000/- 20,00,00,000/-
Deposit
Usable carpet 36,438 sq.ft. 21,437 sq.ft. 24,343 sq.ft. 79,218 sq.ft.
area
Car Parking 33 19 20 72
3. PA Group therefore filed Suit (Lodging) No. 194 of 2015 to protect its ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:47 ::: ssp 6 chsl-1020/2016 alleged 50 per cent beneficial interest in Kash Foods/the Worli property and seeking reliefs against the transfer of Kash Foods Worli property in the above manner.
4. It was contended by the Plaintiffs (PA Group) in the above Suit that though initially only 25 per cent of the shareholding in Kash Foods was purchased by MP Recycling, it was always intended and agreed that the remaining 75 per cent of the shareholding in Kash Foods (which was held by outsiders) would ultimately be purchased by/through MP Recycling by both the groups. However, Defendant Nos. 3 and 4 (members of RA Group) fraudulently and in breach of the arrangement and understanding between the two groups and also in breach of their fiduciary obligation towards MP Recycling being a 25 per cent shareholder in Kash Foods, bought the remaining 75 per cent of the shareholding in Kash Foods in their individual capacities from outside investors. It was also contended that the development agreement dated 10 th April, 2013 executed between Omkar, Kash Foods and Defendant Nos. 3 and 4 was done without any intimation to either MP Recycling (a direct shareholder in Kash Foods) and/or the Plaintiffs.
5. In Suit (Lodging) No.194 of 2015, the parties filed consent terms dated 14th August, 2015 ("the Consent Terms") not only in respect of Kash Food's premises in the Omkar-1973 project at Worli, which formed the subject matter of ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:47 ::: ssp 7 chsl-1020/2016 the Suit, but also pertaining to one commercial property (Orbit Arya Commercial shop) and two jointly held companies i.e. Arya Iron and Steel Company Pvt. Ltd. (AISCO) and International Mineral Trading Company Pvt. Ltd. (IMTC), which were not the subject matter of the suit.
6. The relevant clauses of the consent terms which are relied upon by the parties in support as well as against granting of the relief/s sought in the above Chamber Summons are reproduced hereunder:
"2. The present Consent Terms is an identified and mutually agreed framework for a complete parting of ways between the parties and is aimed at bringing about an eventful complete quietus to the Disputes.
3. The Parties shall on or before November 1, 2015 (or such date as may be mutually extended in writing by the Parties) execute a definitive Family Arrangement and Settlement and/or writings (including such documents, writings, undertakings and agreements) as may be required and/or as may be advised for a complete parting of ways, which shall work on the basis of the said mutually agreed framework ("Family Arrangement and Settlement").
C. APPOINTMENT OF VALUERS
4. The Pawan Arya Group has agreed to appoint KPMG as its Valuer.
5. The Ravi Arya Group has agreed to appoint E & T as its Valuer.
6. The engagement of the above valuers (collectively the "Valuers") shall be concluded within 3 business days from the date hereof.
7. The parties agree to provide the Valuers full, free and unfettered access for the purposes of carrying out and completing the valuation. The parties agree to fully co- operate in this regard.
8. The Parties shall bear their all expenses incurred by their respective valuer.
D. VALUATION REPORT
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a. AISCO;
b. IMTC;
c. Orbit Arya Commercial Premises; and
4. Kash Foods property in the Omkar 1973 Project under development at
Worli (which is more particularly described at Annexure A hereto), which is the agreed upon entitlement of the PA Group by Kash Foods and/or RA Group ("PA Kash Foods Property") the "Valuation Subject".
10. The Valuers shall value the Valuation Subject and furnish their respective valuation reports on or before September 15, 2015 (the "Valuation Reports")
11. The Parties shall meet on September 16, 2015 and exchange the Valuation Reports in the presence of the Parties' Attorneys.
12. Once the Valuation Reports are exchanged, in the event that there is a difference in the valuation of the Valuation Subject between the Valuers, and such difference is:
a. Less than 10%, then higher of the valuation by the Valuers shall be treated as "Base Reserve Price" for each Valuation Subject. b. More than 10%, then a third valuer mutually appointed valuer shall immediately stand appointed as independent valuer ("Third Valuer") for the Valuation Subject. The Parties will provide Third Valuer with copies of Valuation Reports. Third Valuer shall submit its valuation report on the Valuation Subject on or before October 18, 2015. The costs of the Third Valuer shall be borne equally by the Parties. For the remaining matters, the remaining provisions in relation to the Valuers (as set out at Clause C shall mutatis mutandis apply). c. The difference in Third Valuer's valuation of each of the Valuation Subjects:
i. Is less than 10% of the Base Reserve Price for each Valuation Subject, then the higher of the Base Reserve Price or Third Valuer's valuation price shall be treated as the Base Reserve Price for each Valuation Subject.
ii. Is more than 10% of the Base Reserve Price, then Third Valuers valuation for each Valuation Subject shall be treated as the Base Reserve Price for each Valuation Subject.
13.As to the (i) PA Kash Foods Property and (ii) Orbit Arya Commercial Premises the Parties have agreed that they would mutually decide the modalities of brief to the Valuers and the Third Valuer and mode of adjustment/payment on or before August 29, 2015; and Supplemental Consent Terms recording the same ("Supplemental Consent Terms") shall be filed in this Court on August 30, 2015.::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:47 :::
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14. On arriving at a final valuation for the Orbit Arya Commercial Premises the PA Group agrees to take over the RA Group's 50% share in the Orbit Arya Commercial Shop as per the modality identified in the Supplementary Consent Terms.
E. BIDDING
15.Upon completion of the valuation contemplated above, a bidding event between the Parties shall be held on October 30, 2015.
16. The bidding shall be for both of:
a. entire shareholding of AISCO ; and b. entire shareholding of IMTC.
based on the Base Reserve Price arrived at per Clause D above.
PA Group confirms that Palmview Overseas Investments Limited shall issue a letter within three business days from today consenting to these terms.
17.The parties agree and undertake that they shall work out a detailed methodology for the said Bidding Process, and subsequent Transfer Process (including modalities of consummation of the transactions pursuant thereto, as also including agreed upon Guidelines for Valuers) on or before August 29, 2015 and the Supplemental Consent Terms recording the same shall be filed in this Court on August 30, 2015.
18.The parties further agree that if there is any dispute or difference of opinion with respect to modalities for valuation, method of adjustment/payment, Bidding Process and subsequent Transfer Process, modalities for consummation of transaction and/or guidelines for Valuers then the Parties have agreed that their respective nominated Attorneys will be authorized by respective parties to resolve such dispute/difference of opinion. The parties undertake not to, at any stage, raise any objection relating to conflict of interest against the said Attorneys for assisting in resolving such matters.
F. IMTC & THREAT OF NPA
19. With respect to IMTC and the impending threat of NPA:
a. the Parties agree to forthwith appoint and engage Edelweiss Financial Services Limited or such financial institution as mutually agreed, a financial institution in relation to the restructuring process of IMTC. Suggestions and development of such Financial Institutions are without prejudice and not binding and will be implemented as mutually agreed.::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
ssp 10 chsl-1020/2016 b. The parties undertake to timely effect such payments as become due until the final parting of ways and ensure that IMTC's loans do not become NPA. The parties will jointly approach Bank of Baroda, either with the above mentioned financial institute or without, to minimize the outflow of both parties.
c. The Parties also hereby extend the schedule of other agreements made between the Parties with regard to other banks (i.e. OBC and UBI) to match the schedule proposed herein. The completion of those agreements to be matched with the completion of the parting of ways as proposed above.
22. RA Group and/or Kash Foods shall not in any manner, directly and/or indirectly or derivatively, be entitled to sell and/or transfer and/or dispose of and/or encumber and/or otherwise deal with the PA Kash Foods Property (more particularly defined in the schedule of Annexure A (the "Restraint"). The modification, if any, of the Restraint shall be identified in the Supplementary Consent Terms. It is expressly agreed and understood between the parties that the RA Group is free to deal with RA Kash Foods Property (as more particularly defined in Annexure B) as their exclusive and absolute owners thereof with effect from the filing of these consent terms and the PA Group does not have any claim direct, derivative or otherwise of whatsoever nature upon the same.
23. The RA Group and/or Kash Foods shall publish a Public Notice within 3 days of filing of the Supplemental Consent Terms, withdrawing their claims in relation to PA Kash Foods Property (as more particularly described at Annexure C ).
25. The PA Group shall publish a Public Notice within 3 days of filing of the Supplemental Consent Terms, as more particularly described at Annexure D.
H. FAMILY ARRANGEMENT & SETTLEMENT
26. In so far as the eventual and complete parting of ways between the Parties, the Parties agree that the larger group matters, which shall be mutually identified in the Supplementary Consent Terms, shall be finally determined, decided and settled by 4 Mediators - 2 appointed by PA Group and 2 appointed by RA Group. The Mediators shall be appointed on or before August 29, 2015.
I. MUTUAL CO-OPERATION
27. The Parties hereto agree that for the purpose of giving effect to and/or implementing these Consent Terms, each party unconditionally irrevocably undertakes that it shall, from time to time and at all times at the request of the other party provide full and complete co-operation and do all such further acts, matters, deeds and/or things that are in any manner required and/or necessary, and/or may be necessary and/or as may be and/or are reasonably required by the other Party including executing Supplementary Consent Terms hereto.::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
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28. Omkar Realtors and Developers Private Limited ("Omkar" or "Defendant No. 10") is hereby directed/requested to issue a separate letter in relation to the PA Group's entitlement to the PA Kash Foods Property in Omkar 1973 Project (more particularly annexed at Annexure A hereto) as per draft at Annexure E hereto. Omkar is hereby further directed to strictly abide by the Restraint in relation to the PA Kash Foods Property.
30. The present Consent Terms provide a frame work for resolution of all matters. The Parties are at liberty to suitably amend and/or modify the frame work by mutual consent for the purposes of more effectively dealing with modalities as may be required from time to time."
7. The Consent Terms had the following Annexures:
7.1 Annexure-A - the agreed entitlement of the PA Group (PA Kash Foods property) being 8 flats in the project called Omkar 1973 at Lower Parel aggregating to 27,266 sq.ft. usable carpet area and 25 car parkings. 7.2 Annexure-B: Seven flats to be retained by RA Group (RA Kash Foods property) in the project called Omkar 1973 admeasuring 51951 sq.ft. usable carpet area and 49 car parkings.
7.3 Annexure-C: Public notice to be issued by RA Group within 3 days of filing of the supplemental consent terms (which terms were to be filed in Court on 30th August, 2015 but not filed till date) informing the public that RA Group does not have right, title or interest of any nature in the premises described in Annexure-A and the said premises/flats vest in the PA Group and/or its constituents.
7.4 Annexure-D: Public notice to be issued by PA Group informing the
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public that PA Group does not have any right, title or interest of any nature in the premises described in Annexure-B and that PA Group unconditionally and irrevocably withdraws public notices dated 1st October, 2013 and 11 th July, 2015. 7.5 Annexure-E: Format of a letter to be addressed by Omkar Developers Pvt. Ltd. to the PA Group and counter signed on behalf of the RA Group which reads thus:
"ANNEXURE-E To PA Group Re: Entitlement/Allotment of Flats (more particularly described at Schedule 1 below) in the Omkar 1973 project being developed on the land bearing cadastral survey Nos. 2/914, 4/914, 914, 3/914, 1/914915, 1A/913 (Part), 913 (Part) and 286 (Part) of the Lower Parel Division within the registration Sub-District and District of Mumbai city and Mumbai suburban ("PA Group premises") Dear Sir, We confirm that the PA Group Premises, being Flats more particularly described in the Schedule below in the 'Omkar 1973' Project (including our NOC thereto) originally allotted to Kash Foods Private Limited by registered Articles of Agreement dated 10th April, 2013 by Omkar Realtors and Developers Private Limited, now stand allotted to the PA Group as per confirmation given below by RA Group (including the said Kash Foods Private Limited). Any incidental out of pocket expenses including stamp duty charges shall be borne by the PA Group.
All other terms and conditions of the previous the Articles of Agreement dated April 10, 2013, relating to each of the PA Group premises shall remain firm and binding.
We further clarify that for the purposes of clause 9(e) of the Development Agreement dated April10, 213 this transfer shall not be treated as a "first transfer" and that the first transfer in relation to each of the PA Group Premises by you shall be exempt from any NOC from our end.
For all other intents and purposes, the terms of each of Articles of Agreement dated ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 13 chsl-1020/2016 April 10, 2013 shall remain valid, subsisting and binding as if the said PA Group Premises were initially allotted to you.
Yours faithfully,
Omkar Developers Private Limited We Confirm
(Director)" [ On behalf of RA Group]
8. On the same day of execution of the consent terms i.e. 14th August, 2015, the said terms were filed by and/or on behalf of Plaintiff Nos. 1 to 6 (PA Group), Defendant Nos. 1 to 6 (RA Group) and by the Director of Defendant No.8, Kash Foods, before this Court (Coram: G.S. Patel, J.) along with the Annexures which were taken on record and marked "X" for identification. Therefore, on 14th August, 2015, the Suit was disposed of in terms of the Consent Terms. Paragraphs 2, 3 and 6 of the decree are reproduced hereunder:
"2. The consent terms have several annexures to them. A nnexure "A" is a list of flats to be allotted in the redeveloped building to the Plaintiffs group. Similarly, Annexure "B" is a list of flats to be allotted to the rival group, viz. the Ravi Arya Group.
3. Mr. Samdani, learned Senior Advocate on behalf of Defendant No.10, the developer, states that this division of flats in Annexures "A" and "B" is between the two Arya groups inter se. For their part, Mr. Dwarkadas, learned Senior Advocate for the Plaintiffs, and Mr. Jagtiani, learned Senior Advocate for Ravi Arya Group, agree that the division in Annexures "A" and "B" is final vis-à-vis Defendant No.10. They also agree that allotments made and possession given in terms of Annexure "A" and Annexure "B" would constitute a full, sufficient and complete discharge of the 10th Defendant's obligations under the Development Agreement, as also the individual flat agreements already executed in favour of the parties. In view of these statements made by Mr. Dwarkadas and Mr. Jagtiani, which are on instructions, Mr. Samdani states, on instructions, that his clients, Defendant No.10, will issue the letter a proforma of which is at Exhibit "E" to the consent terms.
6. The suit is disposed of in accordance with the consent terms and in accordance with the foregoing portions of this order. The suit also stands disposed of in these terms against Defendant No.7. Decree to be drawn up accordingly.::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
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9. Since, according to the PA Group, Omkar and RA Group did not comply with their obligations under the decree and consent terms dated 14 th August, 2015, by issuing a letter to the PA Group (signed and countersigned by Omkar and RA Group respectively), the format of which is annexed and marked as Annexure-E to the consent terms, the PA Group filed an Execution Application (Lodging) No. 1096 of 2016 under the provisions of Order 21 Rule 11 (2) and Rule 34 of the Code of Civil Procedure, 1908, on 23 rd April, 2016, and also filed the present Chamber Summons seeking the following reliefs:
"a. That this Hon'ble Court be pleased to order and direct the Defendant Nos. 1 to 6 and Defendant No. 10 to forthwith jointly and/or severally execute the said Annexure E letter as per the requisite format annexed to the Decree dated August 14, 2015.
b. that in the event of the Defendant Nos. 1 to 6 and/or Defendant No. 10 failing and/or neglecting to comply with the order and direction sought in prayer clause (a) above, then:
i. this Hon'ble Court be pleased to direct the Hon'ble Prothonotary & Senior Master, Bombay High Court (on behalf of the Defendant Nos. 1 to 6 and/or Defendant No. 10 to sign and execute the said Annexure E as per the requisite format annexed to the Decree dated August 14, 2015 on behalf of the said Defendant Nos. 1 to 6 and/or Defendant No.10.
ii. This Hon'ble Court be pleased to grant a permanent Order and injunction restraining the Defendant Nos. 1 to 6, Defendant No. 8 and Defendant No. 10 from in any manner whatsoever or otherwise, howsoever, by themselves or through their servants, agents, officers or employees from selling, transferring, dealing with, disposing of, encumbering (whether by way of mortgage or otherwise) , parting with possession of, creating any third party rights in relation to the 'RA Kash Foods Property', (more particularly described at Annexure B to the Decree), until the said Annexure E letter as per the requisite format annexed to the Decree dated August 14, 2015 is signed and executed by the Defendant Nos. 1 to 6 and Defendant No. 10 or the Hon'ble Prothonotary & Senior Master, Bombay High Court (on behalf of the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 15 chsl-1020/2016 Defendant Nos. 1 to 6 and/or Defendant No. 10) in terms of the order and direction, if any, of this Hon'ble Court in terms prayer clause (b) (i) above;
c. that upon execution of the said Annexure E as per the requisite format annexed to the Decree dated August 14, 2015 by (a) Defendant Nos. 1 to 6 and Defendant No. 10; or (b) this Hon'ble Prothonotary & Senior Master, Bombay High Court, this Hon'ble Court in terms of Decree dated August 14, 2015 be pleased to order and direct Defendant No. 10 and the Defendant No. 8 to forthwith execute and issue to the Plaintiffs the following documents:
i. individual allotment letters required under the Decree dated August 14, 2015 for the Flats more particularly described at Annexure A to the Decree i.e. the PA Kash Foods Property;
ii. individual Flat agreements i.e. Maharashtra Ownership of Flat Agreements as required under the Decree dated August 14, 2015 for the Flats more particularly described at Annexure A to the Decree i.e. the PA Kash Foods Property and/or Deeds of Modification to the corresponding Maharashtra Ownership of Flat Agreements previously executed by Defendant No. 10 in favour of Defendant No. 8 (Kash Foods Private Limited) in relation to the PA Kash Foods Property; and iii. a declaration and undertaking confirming Defendant Nos. 1 to 6 and Defendant No. 10's obligation to provide further and better assurances to do all acts, matters and things as may be required by the Plaintiffs in relation to the above acts.
d. that pending the hearing and final disposal of the present Chamber Summons this Hon'ble Court be pleased to:
i. grant a temporary order and injunction restraining the Defendant Nos. 1 to 6, Defendant No. 8 and Defendant No. 10 from in any manner whatsoever or otherwise, howsoever, by themselves or through their servants, agents, officers or employees from selling, transferring, dealing with, disposing of, encumbering (whether by way of mortgage or otherwise), parting with possession of, creating any third party rights in relation to the 'RA Kash Foods Property' more particularly described at Annexure B to the Decree dated August 14, 2015;
ii. appoint the Court Receiver, High Court, Bombay or some other fit and proper person as the Receiver of the 'RA Kash Foods Property' more particularly described at Annexure B to the Decree dated August 14, 2015, with all powers under Order XL Rule 1 of the Code of Civil Procedure 1908.::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
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10. The case pleaded in the affidavit-in-support of the Chamber Summons filed by the PA Group [paragraphs 4 and 17 (i) ] is that upon execution of the consent terms dated 14th August, 2015, and upon passing of the said decree dated 14th August, 2015, the PA Kash Foods Property (more particularly described in Exhibit-A to the decree) stood allotted and vested in the RA Group. In paragraph 4 of the affidavit-in-support filed by the PA Group, it is asserted that the RA Group was not entitled to transfer, sell, dispose of/encumber and/or in any manner deal with the RA Kash Foods property unless other conditions were met. It was again reiterated in paragraph 17 (iii) of the said affidavit that until and unless Annexure-E was executed by the RA Group and Omkar, the RA Group could not deal with the RA Kash Foods Property more particularly at Annexure-
B to the consent terms. The PA Group in clause 17 (ii) of its affidavit-in-support also contended that in order to enable the PA Group to acquire full and valid legal title to the PA Kash Foods Property, the RA Group and Omkar were directed in terms of the decree to "forthwith" execute the Annexure-E and also issue individual allotment letters for the PA Kash Foods Property and individual flat agreements i.e. Maharashtra Ownership of Flat Agreements for the PA Kash Foods Property and/or deeds of modification to the corresponding Maharashtra Ownership of Flat Agreements already executed in favour of Kash Foods Property (Defendant No.8) by Omkar.
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11. Mr. Janak Dwarkadas, the Learned Senior Advocate appearing for the PA Group, in support of the Chamber Summons, covered his submissions by tendering notes in five parts :
11.1 Note-1 sets out the purpose for filing of the above suit which is already set out hereinabove.
11.2 Note-2 is captioned "THE CONSENT DECREE AND ANNEXURE-E LETTER". As set out in Note-2, Mr. Dwarkadas has submitted that the consent terms filed in Court provided for an overall settlement and not in respect of Kash Foods Property only. He submitted that Plaintiff No. 1 being the older brother with a view to achieve an amicable settlement of the dispute agreed to accept a much lesser share as compared to that of the RA Group. It was agreed that the list of flats and parking spaces at Annexure-A to the consent terms stood allotted and vested to the PA Group in accordance with clause D. 9 (d) of the consent terms. Relying on clause 3 of the order passed by G.S. Patel, J. dated 14 th August, 2015, he submitted that the Annexure-E letter in the requisite format together with counter signature of the RA Group was to be "forthwith" issued to the PA Group. He also laid emphasis on paragraph 6 of the decree more particularly the sentence/portion "the suit is disposed of in accordance with the consent terms and in accordance with the foregoing portions of this order". Mr. Dwarkadas further submitted that there is no fetter whatsoever, whether under the decree or ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 18 chsl-1020/2016 otherwise howsoever, on the PA Group today from dealing with its entitlement i.e. PA Kash Foods Property (Annexure-A to the decree). He submitted that the difficulty faced today is that PA Group cannot deal with Kash Foods Property coming to its share under the consent terms in the absence of a formal transfer in their favour in terms of Annexure-E to the consent terms. He submitted that since pursuant to the decree, PA Kash Foods Property stood allotted and vested in the PA Group, the RA Group and Omkar were obliged to issue a letter in the requisite format annexed as Annexure-E to the decree in favour of the PA Group. He also relied on clause 28 of the consent terms in this regard. He submitted that in terms of the said Annexure-E letter, the PA Group's right, title and entitlement to the flats (more particularly described in the Schedule to the Annexure-E letter) was verified and confirmed by the RA Group and Omkar. He submitted that as the said flats and car parkings at Annexure-A to the decree originally stood allotted in the name of Kash Foods Property at the behest of RA Group, the RA Group's endorsement was necessary only in order to provide a valid discharge to Omkar which is clear from a joint reading of paragraphs 3 and 6 of the decree read with clauses 27 and 28 of the consent terms. Mr. Dwarkadas further submitted that as far as the Companies AISCO and IMTC are concerned, the parties are required to get the same valued as per the consent terms and thereafter engage in bidding for each others shares therein. Once the bidding is ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 19 chsl-1020/2016 final, the family arrangement recording the bidding and the transfer of shares from one party to the other is to be drawn up. He submitted that supplemental consent terms were to be executed only to record (i) mutually decided modalities of the bid to be given to the Valuers for valuation of PA Kash Foods Property and the Orbit Arya Shop (clause 13); (ii) details of the manner of payment adjustments to be made in respect of the Orbit Arya Shop which was to be taken over fully by the PA Group on the basis of valuation report (clauses 13 and 14); and (iii) the methodology of bidding and transfer process in respect of AISCO and IMTC (clause17). He therefore submitted that the execution of the supplemental consent terms has nothing to do with the execution of Annexure-E letter and the allotment by Omkar and RA Group of the PA Kash Foods Property in favour of the PA Group.
11.3 Note - 3 is captioned "TIMELINES UNDER THE CONSENT TERMS". Mr. Dwarkadas pointed out the timelines set out in clauses 3, 6, 9, 11, 12 (b), 13, 15, 23, 25 and 26 of the consent terms and further pointed out that except for appointment of Valuers by the PA and RA Group in order to value AISCO, IMTC, Orbit Arya Commercial Premises and PA Kash Foods Property by 17th August, 2015, none of the timelines have been complied with. He submitted that in view thereof the family arrangement and settlement which was to be entered into by 1st November, 2015, was not entered into. He submitted that ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 20 chsl-1020/2016 the PA Group continues to be ready and willing to abide by every clause in the consent terms including (a) entering into supplemental consent terms, (b) appointing a third valuer for AISCO and IMTC and (c) bidding on the basis of prices as determined by the third valuer.
11.4 Note-4 is captioned "FACTS GIVING RISE TO THE PRESENT EXECUTION APPLICATION AND CHAMBER SUMMONS." Mr.
Dwarkadas pointed out that on 6th November, 2015, Omkar purported to issue Annexure-E dated 6th October, 2015 and forwarded the same to the PA Group without the endorsement of the RA Group. The PA Group therefore through their Solicitors letter dated 1 st February, 2016 returned Annexure-E to Omkar. Omkar through its Advocates took a stand that the Annexure-E forwarded to the PA Group by Omkar was in consonance with the decree. However, since Omkar and RA Group did not comply with their obligations under the decree and consent terms, the PA Group filed the Execution Application as also the present Chamber Summons.
11.5 Note - 5 is captioned "THE ALLEGED CASE/DEFENCE OF RA GROUP IN THE ABOVE PROCEEDINGS AND THE PA GROUPS RESPONSE THERETO". Mr. Dwarkadas submitted that the entire defence of the RA Group is based on the interpretation (albeit incorrect) of clause 22 of the consent terms dated 14th August, 2015 by raising a bogey of the alleged co-relation ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 21 chsl-1020/2016 of the PA Groups entitlement to deal with the PA Kash Foods Property to the overall settlement between the parties and that, "allotment of the PA Kash Foods Property" is intrinsically linked with the overall settlement of all disputes between the rival groups". Mr. Dwarkadas relied on paragraph 3 of Note - 5 and submitted that ex facie on a reading of clause 22 of the consent terms along with paragraphs 3 and 6 of the decree dated 14 th August, 2015, read with the provisions of clause D.9 (d) and clauses 25, 27 and 28 of the consent terms it becomes clear that:
(a) the restraint is on the RA Group and Kash Foods from dealing with the 'PA Kash Foods Property' under the Consent Terms (i.e. Annexure A to the Decree) not on the PA Group as is being sought to be wrongfully contended by the RA Group. This is obviously because till such time as the allotment letter as per Annexure E and formal transfer in favour of PA Group is not made, the allotment on record is still in favour of the RA Group/Kash foods;
(b) the second sentence of clause 22 of the Consent Terms is only an enabling provision that provides that in the event that parties agree to a modification of the "restraint", or if the property is not sold by the PA group in the meantime, then the same would be captured in the Supplementary Consent Terms to be entered into by the parties to the Consent Terms; and (c ) in terms of clause 28 of the Consent Terms read with paragraphs 3 and 6 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 22 chsl-1020/2016 of the Decree, it is abundantly clear that the PA Kash Foods Property stood allotted and vested in the PA Group and that Omkar and the RA Group were obligated to issue the allotment letter as per the format annexed to the Consent Terms i.e. Annexure E letter;
(d) clause 22 of the Consent Terms is in any event subject to clause 25 of the Consent Terms, which provides that the PA Group shall issue a public notice (in terms of Annexure D to the consent terms) giving up their rights and interest in the RA Kash Foods property and that the RA Group has admittedly dealt with the RA Kash Foods Property without such Public Notice being first issued by the PA Group. The issuance of such public notice under clause 25 of the consent terms by the PA Group releasing its rights and interest in the RA Kash Foods Property was sine qua non before the RA Group could deal with any of its entitlement under the consent terms. Otherwise, it would be meaningless to have such a clause.
11.6 Mr. Dwarkadas therefore submitted that Annexure-E letter requires the endorsement of the RA Group only to provide a valid discharge to Omkar as the said flats at Annexure-A to the decree i.e. PA Kash Foods Property were originally allotted to Kash Foods Property at the behest of RA Group. Today, the RA Group cannot hold the PA Group to ransom by contending that unless and until an overall settlement is arrived at, Annexure-E letter will not be ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 23 chsl-1020/2016 countersigned by the RA Group. Mr. Dwarkadas therefore submitted that the above Chamber Summons be allowed.
12. Mr. Haresh Jagtiani, the learned Senior Advocate appearing for Defendant Nos. 1 to 6 and 9, being certain members of the RA Group, has inter alia submitted as follows:
12.1 That on the date of the filing of the suit in February, 2015, RA Group held 75% shares of Kash Foods (Defendant No.8) and the balance 25% was held by MP Recycling (Defendant No.7) in which PA Group and RA Group were equal shareholders. This gave the PA Group an overall 12.5% derivative interest in the profits of Kash Foods. Kash Foods and Defendant Nos.3 and 4 in turn had been allotted flats reflected in Annexures-A and B of the consent terms by registered sale agreements entered with Omkar (Defendant No.10). 12.2 That the Suit filed by PA Group was only confined to claiming a 50% stake in all flats belonging to the RA Group and no other family dispute constituted the subject matter of the suit.
12.3 That according to the RA Group, the PA Group's derivative interest upon liquidation would only translate into a claim for 4,555 sq.ft. of the area retained by Defendant No.8, against which they agreed to transfer approximately 27,266 sq.ft. in return for an overall comprehensive settlement of all disputes.
12.4 That the consent terms, therefore, go well beyond the disputes such as
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those pertaining to the factories owned by the parties namely AISCO and IMTC, Orbit Arya Claims and an overall family settlement.
12.5 That RA Group's motivation to enter into the said consent terms emanate from two prime considerations. First, to achieve complete parting of ways between the two groups where the RA Group would rid themselves of their minority status in AISCO and second, to ensure that IMTC avoids being declared an NPA pursuant to actions taken by Banks for non-payment of dues. 12.6 That the consent terms provide merely a broad framework to the parties to resolve all their disputes and apart from providing some aspirational dates, timelines and the methodology within which the parties must endeavour to resolve their disputes, the said consent terms do not vest or transfer flats in Annexure-A to the PA Group.
12.7 That flats mentioned in Annexures-A and B have always been and continue to be the property of RA Group which follows that the RA Group is not drawing any benefits under the said consent terms which merely clarifies this position. In other words, the flats in Annexure-B are not as such the subject matter of the said consent terms.
12.8 That all issues of vesting and transfer of flats in Annexure-A with the PA Group are matters which will take effect with the finalization of the supplemental consent terms, whenever that takes place in future. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
ssp 25 chsl-1020/2016 12.9 That the supplemental consent terms constitute an integral part of the
said consent terms which the disputing parties have undertaken to bring into effect. The supplemental consent terms concern the matters such as finalization of bidding process, the methodology and brief to the valuers to value the Annexure-A properties and Orbit Arya, mode of adjustment /payment and subsequent transfer process including modalities of consummation of the entire dispute. Thus the issue of vesting of flats in Annexure-A is entirely to be crystallized and achieved on the signing of the supplemental consent terms. 12.10 That unless the supplemental consent terms are entered into in which the modalities of consummation of transactions and subsequent transfer process are covered, the flats at Annexures-A and B continue to vest with the RA Group. It is by virtue of this fact that the restraint on the RA Group from dealing with PA Kash Foods property in Annexure-A acquires meaning. 12.11 The PA Group seeks to read words and phrases in various clauses of the said consent terms where such words and phrases are absent. This they would only be entitled to do on the doctrine of interpretation known as 'presumed intention of the parties' or 'supplying implied terms and phrases' when they do not exist.
12.12 Nowhere in the said consent terms is the word 'vested' and/or any variation of the said word. In fact clauses D-9 (d) and 28 refer to the flats set out ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 26 chsl-1020/2016 in Annexure-A as the entitlement or agreed entitlement of the PA Group. Unless the entitlement does not ripen into 'vesting' by satisfying certain conditions or pre-requisites no 'vesting' can be said to take place. Thus, whilst the quantity of entitlement is pre-determined no vesting has actually taken place. 12.13 That clause 22 of the said consent terms deals with Flats in Annexures-A and B at one place, but whilst doing so subjects flats in Annexure-A to a different treatment as compared to flats in Annexure-B in the most obvious manner. Flats in Annexure-A are made subject to a restraint in dealing with them by the RA Group, which restraint may be modified in the supplemental consent terms. The flats in Annexure-B by stark contrast may be dealt with, alienated, sold, etc. "as their exclusive and absolute owners thereof with effect from the filing of the consent terms". The literal and plain meaning of this clause leads to the inescapable conclusion that the RA Group is free to deal with the flats forming Annexure-B from the date of signing of the said consent terms and the PA Group is not.
12.14 That the PA Group wants the Court to interpret clause 28 as obligating, mandating and demanding execution of Annexure-E forthwith. Clause 28 merely contains a directive to Defendant No. 10 (Omkar) to comply with the wishes of the disputing parties in issuing Annexure-E to the PA Group and is completely silent on any obligation or mandate to the RA Group to counter sign ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 27 chsl-1020/2016 Annexure-E.
12.15 It is significant to note that Defendant No. 10 (Omkar) was not a party to the said consent terms and therefore the contents of clause 28 would not bind it. It is only with a view to securing compliance of Defendant No. 10 that this Court passed an order on the same date enabling Defendant No. 10 to issue Annexure-E. It is quite obvious that Defendant No. 10 would not want to be caught in the cross-fire of litigation between the two disputing parties and hence the clarification as contained in the Court's order of 14 th August, 2015 were obtained at the instance of Defendant No. 10's counsel. 12.16 That the consent terms in clause (2) only provides for a 'framework for a complete parting of ways' and in clause 30 provides for 'a framework for resolution of all matters'.
12.17 That as regards the principle of interpretation relating to 'presumed intention' or 'implied terms' in relation to a contract, the following judgments are relevant:
(i) Trollope & Colls Ltd. vs. North West Metropolitan Regional Hospital Board 1;
(ii) Marks and Spencer plc vs. BNP Paribas Securities Services Trust Company (Jersey) Ltd. and another2;
(iii) Satya Jain (dead) through LRs and others vs. Anis Ahmed Rushdie (dead 1 [1973] 1 W.L.R. 601 2 [2015] UKSC 72 ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 28 chsl-1020/2016 through LRs and others3; and (iv) Jyotsna K. Valia vs. T.S. Parekhh & Co.4 12.18 That it defies logic and reason that looking to the circumstances
which prompted the RA Group to enter into the said consent terms such as achieving a complete resolution of all family disputes and a complete parting of ways, would be left totally unaddressed if the said consent terms vested the PA Group with the flats in Annexure-A on the signing of the consent terms. This would leave the RA Group in the lurch and they would have to wait indefinitely till the PA Group decides to finalize the supplemental consent terms. This is more so if the value of the flats in Annexure-A is borne in mind ranging anywhere between Rs. 120-140 crores.
12.19 It is pertinent to note that although parties to the said consent terms had undertaken to enter into the supplemental consent terms, no part of the execution application and/or Chamber Summons deals with or concerns itself with the supplemental consent terms and manifests only one purpose namely acquiring flats in Annexure-A without fulfilling their other reciprocal obligations. 12.20 For all these reasons the above Chamber Summons be therefore dismissed.
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13. Mr. Navroz Seervai, learned Senior Advocate appearing for Defendant Nos. 3 and 4, certain other members of the RA Group, has inter alia, submitted as follows :
13.1 That the Plaintiffs have approached the Court with a patently erroneous case in respect of the existing status of the PA Kash Foods property. The PA Group have on solemn affirmation in the affidavit in support of the Chamber Summons in paragraphs 4 and 17.1 submitted that upon execution of the consent terms dated 14th August, 2015 and upon passing of the said decree dated 14th August, 2015, the PA Kash Foods property (more particularly described as Annexure-A to the Decree) stood allotted and vested in the PA Group. The case of vesting is further reiterated in paragraph 2 of Note No. 2 titled "The Consent Decree and Annexure-E letter". In the course of the arguments in rejoinder on behalf of the Plaintiffs, the case of vesting was given up and it was correctly submitted that the PA Kash Foods property did not vest in the Plaintiffs under the consent decree or the consent terms. It is therefore established that the Plaintiffs have knowingly come to the Court with an incorrect case. On this ground alone, the Execution Application and Chamber Summons deserve to be dismissed by this Court.
13.2 That in response to the above submission, it was sought to be submitted on behalf of the PA Group that the averments regarding vesting did ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 30 chsl-1020/2016 not refer to immediate vesting, but had to be read with Annexure-C to the consent terms and the public notice to be issued by the RA Group after execution of the supplemental consent terms and therefore it could not be said that the RA Group had come to the Court with an incorrect or misleading case. This argument ought to be rejected for the simple reason that it is belied by the plain language of the averments in paragraphs 4 and 17 (i) of the PA Group's affidavit, as also paragraph 2 of Note 2 where the PA Group has throughout used the expression 'stood allotted and vested to the PA Group' or 'stood allotted and vested in the PA Group'. This assertion that the PA Kash Foods property stood allotted and vested in or to the PA Group under the consent decree read with the consent terms is entirely inconsistent with the suggestion that such vesting was ultimately to take place after the execution of the supplemental consent terms. 13.3 That whilst the PA Group has during the course of the hearing unequivocally accepted that by virtue of clause 22 of the consent terms there is no restraint on the RA Group dealing with the RA Group's Kash Foods property, more particularly described in Annexure-B to the consent terms, the PA Group approached this Court with a case to the contrary. This acknowledgment by the PA Group constitutes an admission to the Court that they approached the Court with an incorrect case and they cannot succeed on the case as pleaded.
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ssp 31 chsl-1020/2016 13.4 That the entire superstructure of the case of PA Group is built upon
an erroneous submission that on a true and correct interpretation of the decree dated 14th August, 2015, in order to enable the PA Group to acquire full and valid legal title to the PA Kash Foods property, the RA Group and Omkar were directed in terms of the decree to forthwith execute the Annexure-E and also issue individual flat agreements i.e. Maharashtra Ownership of Flat Agreements for the PA Kash Foods property and/or deeds of modification to the corresponding Maharashtra Ownership of Flat Agreements already executed in favour of Defendant No. 8 by Omkar.
13.5 That the word "forthwith" is not to be found in the decree passed by G.S. Patel, J. on 14th August, 2015. The decree merely notes and records that Counsel for Omkar on instructions stated that Omkar will issue the letter a proforma of which is at Annexure-E to the consent terms. Significantly the decree did not direct Omkar to do so, let alone to do so "forthwith". 13.6 That the plain reading of clause 28 of the consent terms shows that it makes no reference to the RA Group in the context of Annexure-E and the PA Kash Foods property. There is also no mention in the said clause and there is nothing in clause 28 which warrants or justifies an interpretation and the reading into it of a requirement that Omkar should "forthwith" issue the letter, the proforma of which is at Annexure-E to the consent terms. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
ssp 32 chsl-1020/2016 13.7 That the obvious and the only reason why clause 22 expressly deals
with the PA Kash Foods Property and the RA Kash Foods property differently and that too in the clearest terms, first, is because the two sets of property stood on a different footing, and secondly because the parties to the consent terms realising that this was so, expressly and consciously chose to deal with the said properties differently.
13.8 That if the said properties were intended to be dealt with on the same footing in the consent terms, there is no explanation forthcoming as to why clause 9 (d) of the consent terms which deals with the valuation report, requires that only the PA Kash Foods property be valued and includes the PA Kash Foods property along with AISCO, IMTC, and the Orbit Arya Commercial Premises in the compendious term "valuation subject". The express exclusion of the RA Kash Foods Property from the valuation process and valuation report dovetails with the case of the Defendants and the interpretation placed on the consent terms and the consent decree by them and militates against the interpretation sought to be placed on the consent terms and the consent decree by the Plaintiffs. 13.9 That the above Chamber Summons be therefore dismissed.
14. Mr. Sharan Jagtiani, learned Advocate appearing for Defendant No. 8, Kash Foods, has inter alia made the following submissions:
14.1 That the consent terms do not in any clause refer to the PA Kash
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Foods Property having vested right in or being allotted to the PA Group. 14.2 That neither the consent terms nor the decree of the Court refer to Annexure-E to be executed "forthwith" to the PA Group.
14.3 That the contention of vesting and allotment as understood by the Applicants/PA Group militates against several clauses of the consent terms including clause Nos. D-9, 10, 13, 17 and 18.
14.4 That the matters relating to PA Kash Foods property such as the valuation of the property, the method of adjustments/payment for PA Kash Foods property and modalities of consummation of transaction are all to be part of the supplemental consent terms in view of the quid pro quo between the parties.
14.5 That the supplemental consent terms would also contain the detailed understanding between the PA Group and RA Group as regards bidding process and subsequent transfer process of the shareholding in AISCO and IMTC. This aspect of the consent terms was essential to the RA Group as the RA Group was aggrieved as a minority shareholder in AISCO and a 50 per cent shareholder in IMTC (a Company in which there was a virtual deadlock because of the disputes between the two groups).
14.6 That the Applicants/PA Groups submission that the Annexure-E is to be executed forthwith and that the PA Kash Foods Property has vested in the PA ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 34 chsl-1020/2016 Group under the Consent Terms itself, if accepted, would defeat the plain language of clauses 9, 13, 14, 17 and 18, all of which mandate that matters even relating to PA Kash Foods Property are to be contained in the supplemental consent terms.
14.7 That the submission of the Applicants/PA Group that under the consent terms and the decree they would be entitled to deal with the property today but cannot deal with the property in the absence of formal transfer in terms of Annexure-E is inconsistent with the plain language of clause D9 (d) read with clause 13 of the consent terms, which posits that the PA Kash Foods Property (being a defined term that refers to all of the flats comprised in Annexure-A) would remain intact when valuing the same and agreeing to the modalities contemplated by clause 13 and be recorded in the supplemental consent terms. 14.8 That it is not without significance that the settlement between the parties in all respects was to be crystallized in the supplemental consent terms and therefore the present consent terms is described as a "framework" in clauses 2, 3 and 30 of the consent terms. In fact, clause 30 describes the consent terms as a "... framework for resolution of all matters". Therefore, except express language to the contrary, all matters are required to be decided in the supplemental consent terms. This would make commercial sense as it incentivizes parties to settle the entire dispute.
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ssp 35 chsl-1020/2016 14.9 That clause 28, far from furthering the Applicants' interpretation, assists
the Defendants. Annexure-E, on the face of it, has to be signed by Defendant No. 10 (Omkar) and the RA Group (under the heading "we confirm"). Firstly, the clause qua Omkar is open to more than one interpretation. It is a 'direction'/'request'. Therefore, perhaps paragraph 3 of the decree casts this obligation albeit without mentioning when Annexure-E is to be issued. Secondly clause 28 provides for no direction to RA Group to sign Annexure-E on execution of the consent terms. If the intention was for Annexure-E to be issued by the RA Group 'forthwith', clause 28 would have been the obvious and natural place to provide for it.
14.10 That the absence of express language in the consent terms on the moot point is entirely consistent that this was a matter to be provided for in the supplemental consent terms.
14.11 That the submissions made by the Applicants in paragraph 3 of Note-5 tendered in Court belies the plain language of clause 22 of the consent terms. 14.12 That before appreciating the meaning of clause 22, it is notable that the PA Group's 'agreed upon entitlement' of the PA Kash Foods Property is an entitlement created by clause D-9 (d) of the consent terms. In contrast, the absolute ownership rights of the RA Group in respect of the RA Kash Foods Property is not a right created by the consent terms but admittedly is a pre- ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
ssp 36 chsl-1020/2016 existing right or status in respect of RA Kash Foods Property. It is for this reason that no part of the matters to be decided in supplemental consent terms (as seen from clauses 9.13 to 18) relate to the RA Kash Foods Property. 14.13 That the second part of clause 22 makes this position abundantly clear as it records an express agreement and understanding between the parties that the RA Group is free to deal with RA Kash Foods Property as their exclusive and absolute owners thereof with effect from the filing of the consent terms. 14.14 That the clauses of the consent terms culminating in clause 22, in fact make it clear that the disputes to be resolved by the framework of these consent terms do not extend to the RA Kash Foods Property and it is for this reason that the supplemental consent terms make no mention of the RA Kash Foods Property.
14.15 That the fallacy in the Applicants contention in suggesting that the issuance of Annexure-E is a reciprocal promise to the RA Group dealing with RA Kash Foods Property is that it seeks to apply the legal principle of reciprocal promises under Sections 50, 51 and 52 of the Indian Contract Act, 1872, as between one matter which is the subject of the consent terms (the PA Kash Foods Property) with another matter that is expressly and deliberately kept out of the consent terms (the RA Kash Foods Property).
14.16 That the concept of reciprocal promises must apply to promises or ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 37 chsl-1020/2016 covenants, both of which are part of the contract in question. 14.17 That the Applicants written submission on clause 22, in paragraph 3 of Note-5 submitted by the PA Group is based on wholly inaccurate paraphrasing of clause 22. No part of the clause 22 uses the words ".... Or if the property is not sold by the PA Group in the meantime....". These words, which the Applicants have provided in clause 22, are wholly absent in clause 22. 14.18 That the above Chamber Summons therefore deserves to be dismissed with costs.
15. Defendant No. 10 (Omkar) has filed written submissions, inter alia, submitting that Omkar by issuing a letter being Annexure-E to the consent terms read with the order dated 14th August, 2015 (page 52 of the affidavit in reply to the Chamber Summons) have complied with the obligations thereto; Omkar has not committed any breach of the statement made by them and recorded in the order dated 14th August, 2015; the Applicant therefore, ought not to have made Omkar, party to the above Chamber Summons; and the above Chamber Summons be dismissed.
16. Mr. Dwarkadas, learned Senior Advocate appearing for the PA Group has, at the stage of rejoinder filed further written submissions on behalf of the PA Group, inter alia, contending that:
16.1 The PA Group during the course of its arguments has already explained
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that the language at paragraphs 3 and 6 of the decree read with Annexure-E Allotment letter clearly demonstrates that the PA Kash Foods Property at Annexure-A to the consent terms stood allotted to the PA Group and possession thereof was to be given to the PA Group. The vesting in the PA Group was to this extent.
16.2 That the PA Group has also explained the reason for the same, which is the double taxation which was sought to be avoided by the parties and therefore the PA Group was to be given allotment letters and possession of the PA Kash Foods Property so that in the event that the PA Group was successful bidder for the shares in AISCO and IMTA, the PA Group may choose to set off its PA Kash Foods Property instead of its bid ( the 'adjustment/ payment contemplated in the consent terms at clause 13 of the consent terms). If it so chose, the PA Group could just return the Annexure-E letters instead of re-transferring the property back to the RA Group inasmuch as the said flats stood in the name of Defendant No. 8.
16.3 That the adjustment and/or 'payment 'was an option/right of the PA Group as contemplated by clause 13 of the consent terms and therefore the said PA Kash Foods Property was included in the "valuation subject" so as to determine its value for the purposes of adjustment and not the deferment of execution of the Annexure-E letter as suggested by the RA Group. ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 :::
ssp 39 chsl-1020/2016 16.4 That in fact the prayers sought in the Chamber Summons read with the
language of Annexure-E allotment letter will demonstrate the fact that today the PA Group is only seeking execution of the Annexure-E allotment letter and therefore the entire argument pertaining to the term "vest" is irrelevant and inconsequential.
16.5 That the RA Group has not demonstrated from the consent terms that which clause of the consent terms/decree in any manner supports their contention that the execution of the Annexure-E letter in favour of the PA Group is in any manner whatsoever linked simultaneous or contingent upon resolution of disputes pertaining to shareholding in AISCO/IMTC. 16.6 That if on passing of the decree, the RA Group can deal with the RA Kash Foods Property (Annexure-B to the consent terms) due to the sole reason that the said flats at Annexure-B already stood inter alia in the name of Defendant Nos. 3 and 4 the RA Group has failed to demonstrate as to why the PA Group has no right and cannot deal with the PA Kash Foods Property at Annexure-A (which flats stand in the name of Defendant No.8). The RA Group cannot take advantage of its own wrong.
16.7 That the RA Groups contention that "entitlement" as used in clauses 22 and 23 of the consent terms merely fixes the quantity agreed to be transferred to the PA Group and if and when the supplementary consent terms are finalised the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 40 chsl-1020/2016 flats to which the PA Group are entitled will "vest in them" is unfounded. 16.8 That the RA Groups contention that because the term "forthwith" has not been used in the decree and/or the consent terms and that clause 28 is merely a direction to Omkar is wholly incorrect.
16.9 That the contention on the part of the RA Group that the language employed for the RA Kash Foods Property is different from that for the PA Kash Foods Property cannot be a reason to read an implied fetter (albeit there is no such fetter) on the right of the PA Group to the PA Kash Foods Property. 16.10 That the fact that PA Kash Foods Property stood "allotted" to the PA Group is borne out from the clear language of the decree which refers to the "allotments and possession given" to the groups and the language of the Annexure-E allotment letter itself which provides that the PA Kash Foods Property, which once stood allotted to the RA Group "now stand allotted to the PA Group" as if "initially allotted".
16.11 That the language of Annexure-E letter clarifying that stamp duty charges shall be borne by the PA Group shows that it was always open to the PA Group to insist upon execution of MOFA agreements in favour of the PA Group and it was always at the option of the PA Group to deal with its share (even selling it to a third party if it so chose).
16.12 That the absence of any language in reference to deferment of the
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Annexure-E letter can only mean that it was to be provided immediately. 16.13 That since the judgments tendered during the course of hearing of the matter enunciate the principal that today the Court cannot go into and improve a contract, the said judgments are not applicable to the facts of the present case.
17. Mr. Dwarkadas also tendered submissions pointing out that the submissions made by the Learned Senior Advocate Mr. Haresh Jagtiani cannot be accepted.
18. I have considered the submissions advanced by the learned Advocates appearing for the parties, including the written submissions filed by them. As set out earlier, the PA and RA Groups have several businesses. Disputes had arisen between them much prior to the filing of the above Suit, being Suit (L) No. 194 of 2015. On the date of the filing of the above Suit, M.P. Re-cycling (Defendant No. 7) was jointly held by PA Group and RA Group with each Group holding 50 percent of the shareholding. M.P. Re-cycling held 25 percent of the shareholding in Defendant No. 8 (Kash Foods) and the remaining 75 percent of the shareholding in Kash Foods was held by the RA Group. Kash Foods owned a plot of land at Worli admeasuring about 4134.27 sq.mtrs. ('the Worli Property'). By a Conveyance Deed dated 22nd December, 2012, executed between Kash Foods, Defendant Nos. 3 and 4 ('Members of RA Group') a portion of the assets of Kash Foods was transferred to Defendant Nos.3 and 4 (Members of RA Group). On ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 42 chsl-1020/2016 10th April 2013, a Development Agreement qua the Worli Property was executed between Omkar, Kash Foods and Defendant Nos.3 and 4 (Members of RA Group), whereunder Omkar agreed to undertake the construction of a residential project named 'Omkar 1973' ('said Project'). Under the Development Agreement, amongst others, 36,438 sq.ft. of usable carpet area along with 33 car parkings were allotted to Kash Foods and 21,437 sq.ft. and 24,343 sq.ft. usable carpet area along with 19 and 20 car parkings were allotted to Defendant Nos.3 and 4 (Members of RA Group) respectively.
19. According to the PA Group, though initially only 25 percent of the shareholding in Kash Foods was purchased by M.P. Re-cycling, it was always intended and agreed that the remaining 75 percent of the shareholding in Kash Foods (which was held by outsiders) would ultimately be purchased by / through MP Re-cycling by both the Groups. However, Defendant Nos. 3 and 4 fraudulently and in breach of equity arrangement and understanding between the two Groups, bought the remaining 75 percent of the shareholding in Kash Foods in their individual capacities from outside investors. According to the PA Group, the Development Agreement dated 10th April, 2013 was executed between Omkar, Kash Foods and Defendant Nos.3 and 4 (Members of RA Group) without any intimation to either M.P. Re-cycling and / or the Plaintiffs. Therefore, according to the PA Group, they had 50 percent beneficial interest in ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 43 chsl-1020/2016 Kash Foods / Worli Property and to protect their alleged interest, they filed the above Suit. The above Suit was therefore, restricted only to the extent of the claim in respect of Kash Foods / Worli Property and not to any other disputes between the parties.
20. According to the RA Group, they were of the view that the PA Group's derivative interest upon liquidation of Kash Foods, would only translate into a claim for 4,555 sq.ft. of the area retained by Kash Foods. However, RA Group was keen in an overall settlement of all the disputes between the parties. RA Group therefore agreed to transfer approximately 27,260 sq.ft. of usable carpet area to the PA Group in return for an overall comprehensive settlement of all the disputes between the two Groups, such as those pertaining to the factories owned by the parties namely AISCO and IMTC, Orbit Arya claims and an overall family settlement.
21. Accordingly, the PA and the RA Groups entered into Consent Terms dated 14th August, 2015, which admittedly, goes well beyond the disputes raised in the Suit. On the date of execution of the Consent Terms that is on 14th August, 2015, the parties also obtained a Decree from this Court (Coram : G.S.Patel, J.) in terms of the Consent Terms. The Suit filed by the PA Group therefore, stood disposed off in terms of the Consent Terms and in accordance with the Decree dated 14th August, 2015.
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22. In clause D.9 (d) of the Consent Terms, it is provided that the flats set out in Annexure-A to the Consent Terms, "is the agreed upon entitlement of the PA Group by Kash Foods and/or RA Group". In Clause 28 of the Consent Terms, it is provided that Omkar Realtors and Developers Pvt. Ltd. (Omkar/Defendant No. 10) "is hereby directed/requested to issue a separate letter in relation to the PA Groups entitlement as per the draft at Annexure-E hereto." As recorded in Clause 3 of the Decree dated 14th August, 2015, in view of the statements of the learned Senior Advocates appearing for the PA and RA Groups, the learned Senior Advocate appearing for Omkar - Defendant No. 10 (who is not a party to the Consent Terms) stated that Omkar will issue the letter, a proforma of which is at Annexure-E to the Consent Terms.
23. After the execution of the Consent Terms and the disposal of the suit in terms of the consent terms and the Decree dated 14 th August, 2015, PA Group wrote a letter to Omkar calling upon them to issue the letter as per the draft at Annexure-E to the consent terms. Omkar under cover of its letter dated 6th November, 2015 forwarded a letter as per the draft at Annexure-E to the Consent Terms to the PA Group and claimed to have complied with the statement made by its Counsel and recorded by this Court in paragraph 3 of its Order dated 14 th August, 2015. According to the PA Group, Omkar as well as the RA Group have not complied with Clause 28 of the Consent Terms as well as paragraph 3 of the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 45 chsl-1020/2016 Order dated 14th August, 2015, since the RA Group has not countersigned the said letter, the proforma of which is at Exhibit-E to the said Consent Terms. Since Omkar refuted the stand taken by the PA Group, and the RA Group also did not countersign the letter issued by Omkar, the PA Group filed Execution Application (L) No.1096 of 2016 under the provisions of Order 21 Rule 11 (2) and Rule 34 of the Code of Civil Procedure, 1908, on 23 rd April, 2016 and also filed the above Chamber Summons, which is now taken up for hearing and final disposal.
24. It is necessary to clarify at the very outset that as stated earlier Clause 28 of the Consent Terms (to which Omkar is not a party) provides that, "Omkar/Defendant No.10 is hereby directed/requested to issue a separate letter in relation to the PA Groups entitlement as per the draft at Annexure-E hereto." It is not mentioned in the said Clause 28 or in any clause of the Consent Terms as to when Omkar/Defendant No.10 has to issue the said letter. It also needs to be clarified that the word 'hereby' only means that Omkar is by the said Consent Terms directed/requested to issue a separate letter and the word 'hereby' cannot be read to mean 'forthwith' or 'immediately'. Similarly, even the decree only records the statement made by the Senior Advocate appearing for Omkar that Omkar will issue the letter, a proforma of which is at Annexure-E to the Consent Terms and is silent as to when such letter will be issued by Omkar. Again neither ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:48 ::: ssp 46 chsl-1020/2016 Clause 28 of the Consent Terms nor the decree makes any mention or gives direction as to when RA Group has to countersign the letter, the proforma of which is at Annexure-E. Neither the request/direction to Omkar recorded in Clause 28 of the Consent Terms, nor the statement of Omkar recorded in the Decree can be construed as Omkar being bound to obtain the signature of the RA Group on the said letter. It also needs to be stated at the outset that the PA Group before filing the Execution Application and/or taking out the Chamber Summons have not written a single letter to the RA Group and/or their Advocates contending that the RA Group is required to put its requisite endorsement on the letter issued by Omkar and/or calling upon them to do so.
25. The PA Group have in paragraph 4 of their Affidavit-in-Support of the Chamber Summons submitted that, ".....One of the essential features of the decree was that the Kash Foods Property in relation to the Plaintiffs i.e. list of flats and parking at Annexure-A to the decree (PA Kash Foods Property) stood allotted and vested to the PA Group. The RA Group and Omkar were obliged to issue a letter in the requisite format annexed as Annexure-E to the decree in favour of the PA Group......." Again, in clause 17 of the affidavit-in-support of the Chamber Summons, the PA Group has once again submitted that "upon execution of consent terms dated August 14, 2015, and upon passing of the said decree also dated August 14,2015, the PA Kash Foods Property (more particularly described at Annexure-A to the decree) stood allotted ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 47 chsl-1020/2016 and vested in the P A Group."
26. This was also the case argued on behalf of the PA Group as is seen from the Written Submissions under Note-2 captioned "THE CONSENT DECREE AND ANNEXURE-E LETTER" which reads thus:
"As far as the Kash Foods Property was concerned, the Plaintiff No. 1 being the older brother, with a view to achieve an amicable settlement of the dispute agreed to accept a much lesser share as compared to that of the RA Group. It was agreed that the list of flats and parking spaces at Annexure-A to the consent terms stood allotted and vested to the PA Group (See clause D.9 (d) )....."
By relying on Clause 3(c) of the Note-5 captioned "THE ALLEGED CASE DEFENCE OF RA GROUP IN THE ABOVE PROCEEDINGS AND THE PA GROUPS RESPONSE THERETO", it was again submitted by the Learned Senior Advocate appearing for the PA Group that, "in terms of clause 28 of the consent terms read with paragraphs 3 and 6 of the decree, it is abundantly clear that the PA Kash Foods property stood allotted and vested in the PA Group and that Omkar and the RA Group were obligated to issue the allotment letter as per the format annexed to the consent terms i.e. Annexure-E letter."
26. The PA Group has in paragraph 17 of its Affidavit in Support of the Chamber Summons and during its oral and written submissions also submitted that the RA Group and Omkar were directed in terms of the Decree dated 14th August, 2015 to "forthwith" execute and issue the letter in the format ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 48 chsl-1020/2016 prescribed in Annexure-E to the Consent Terms.
27. The PA Group have in its Affidavit-in-Support of the Chamber Summons and submissions made before the Court, not stopped at contending that in view of the PA Kash Foods Property having vested in the PA Group they are entitled to being forthwith issued a letter in the format annexed as Annexure-E to the Consent Terms, but have further proceeded to contend / convey that they being the owners of PA Kash Foods Property have absolute right to deal with the same upon the execution of the Consent Terms. This is apparent from Clause 4 of Note-2 captioned "THE CONSENT DECREE AND ANNEXURE-E LETTER", submitted by the PA Group which is reproduced hereunder :
"there is no fetter whatsoever, whether under the decree or otherwise howsoever, on the PA Group today from dealing with its entitlement i.e. PA Kash Foods Property ( Annexure-A to the decree). The difficulty faced today is that the PA Group cannot deal with the Kash Foods Property coming to its share under the consent terms in the absence of a formal transfer in their possession in terms of Annexure-E to the consent terms. Pursuant to the decree, the PA Kash Foods Property stood allotted and vested in the PA Group."
28. It cannot be disputed that neither the Clauses of the consent terms dated 14th August, 2015 nor the contents of the Decree dated 14th August, 2015 can ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 49 chsl-1020/2016 be read in isolation. The decree as well as the consent terms have to be read together to determine which Group is correct in its interpretation. In my view, upon reading of the Consent Terms as well as the Decree dated 14 th August, 2015, it is nowhere found that upon signing of the Consent Terms and/or passing of the decree dated 14 th August, 2015, the flats described/set out in Annexure-A to the Consent Terms would stand /stood vested in the PA Group. The argument of the PA Group that upon signing of the consent terms and the passing of the decree, the flats stood vested in their favour and there is no fetter whatsoever, whether under the decree or otherwise, howsoever on the PA Group from immediately dealing with its entitlement i.e. PA Kash Foods Property, but are unable to do so in the absence of the letter in terms of Annexure-E to the Consent Terms which Omkar and RA Group were required to forthwith execute upon the signing of Consent Terms and passing of the decree, inter alia stands demolished by Clause 23 of the Consent Terms. The contents of Annexure-C. Clause 23 of the Consent Terms reads thus:
"23. The RA Group and/or Kash Foods shall publish a Public Notice within 3 days of filing of the Supplemental Consent Terms, withdrawing their claims in relation to PA Kash Foods Property (as more particularly described at Annexure C )."
Annexure-C contains the format of the public notice to be issued by the RA Group three days after filing of the Supplementary Consent Terms in Court, ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 50 chsl-1020/2016 which terms as per Clause 13 was to be filed before the Court on or before 30 th August, 2015. By the said notice to be issued by the RA Group after the Supplementary Consent Terms are filed in Court, the members of the public are to be informed by the RA Group that, "our client, the RA Group hereby unconditionally and irrevocably informs the public that the RA Group does not have any right, title or interest of any nature in the said premises; and that the said premises vests in the PA Group and/or its constituents." It is therefore clear that PA Kash Foods Property described in Annexure 'A' to the Consent Terms were to vest in the PA Group only after filing of the Supplementary Consent Terms in Court as per Clause 13 of the Consent Terms on or before 30th August, 2015, which terms are admittedly not filed in Court till date and no relief is sought in the present Chamber Summons pertaining to the same. Therefore, if the property set out in Annexure-A to the Consent Terms would have vested in the PA Group on the date of the signing of the Consent Terms as alleged by the PA Group, the question of the RA Group being required to issue a public notice in the manner set out in Annexure 'C', three days after the filing of the Supplementary Consent Terms would not arise and such an advertisement, would have been issued immediately upon signing of the Consent Terms and passing of the Order, both dated 14 th August, 2015. In view of the contents of the said public notice, the submission advanced on behalf of the PA Group that ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 51 chsl-1020/2016 there is no fetter on their right to forthwith deal with the flats described in Annexure-A to the Consent Terms upon signing of the Consent Terms and passing of the Order dated 1 4th August, 2015, also cannot be accepted.
29. The PA Group has also submitted that Omkar as well as the RA Group are required to issue and sign the Annexure-E to the Consent Terms immediately upon signing of the Consent Terms and the Decree, both dated 14th August, 2015, and it is only because the same is not signed by them that the formal transfer is not taking place, in the absence of which the PA Group is unable to deal with the PA Kash Foods Property. This submission / contention of the PA Group also cannot be accepted, since if their contention were correct, Clause 23 of the Consent Terms would have required Kash Foods and the RA Group to publish the said public notice either immediately upon signing of the Consent Terms or immediately upon the PA Group receiving the letter from Omkar and RA Group in the format prescribed in Annexure E, and not after filing of the Supplemental Consent Terms on or before 30th August, 2015.
30. This is not the only pointer to the fact that the PA Group is incorrect in its submission that upon signing of the Consent Terms and the passing of an Order dated 14th August, 2015, the said flats stood vested in the PA Group and the PA Group were free to deal with the same and create third party rights immediately thereafter, but were unable to do so in the absence of the letter ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 52 chsl-1020/2016 from Omkar and the RA Group in the format prescribed in Annexure-E which was to be 'forthwith' provided to the PA Group. As correctly submitted on behalf of Kash Foods, the contention of vesting and allotment as understood by the PA Group and its alleged claim of being entitled to immediately deal with the same, militates against several clauses of the Consent Terms, as explained hereunder :
i) Clause D.9 (d) of the Consent Terms provides that the valuation shall take place, inter alia, of PA Kash Foods Property. This valuation exercise is admittedly to be done after the execution of the Consent Terms but before the execution of the Supplementary Consent Terms. The plain meaning of this is that at the time of the valuation exercise, which is necessary for the finalisation of the Supplementary Consent Terms, the PA Kash Foods Property as defined must exist. This would not be the case if the argument of the PA Group is accepted that the intention of the consent terms was forthwith execution of the letter at Annexure-E and an unfettered right to deal with this property as the owner thereof.
ii) The process of valuation is described in clauses 10 to 13 of the Consent Terms.
iii) Clause 13 of the Consent Terms again makes it clear that as to the PA Kash Foods Property (a term defined in Clause D - 9(d) to mean Annexure-A), ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 53 chsl-1020/2016 the parties have agreed that they would mutually decide the modalities of brief to the Valuer/s and the name of the Third Valuer and also the mode of adjustment/payment on or before 29th August, 2015; and the Supplementary Consent Terms recording the same shall be filed in Court on 30 th August, 2015. The fact that the parties arrived at an agreement in the aforestated terms, is an indication that the valuation of PA Kash Foods Property was not just an option or facility to the PA Group which they may give up or waive, as contended by them but this agreement was required to be recorded in the Supplementary Consent Terms which in turn was required to be filed in Court on August 30, 2015.
iv) Clause 17 of the Consent Terms provides further details that were to be agreed between the parties including the modalities of the 'consummation of transaction' at the stage of concluding the Supplementary Consent Terms. Clause 17 reads as under:
17. The parties agree and undertake that they shall work out a detailed methodology for the said Bidding Process, and subsequent Transfer Process (including modalities of consummation of the transactions pursuant thereto, as also including agreed upon Guidelines for Valuers) on or before August 29, 2015 and the Supplemental Consent Terms recording the same shall be filed in this Court on August 30, 2015.
v) A further indication of the matters being deferred to the stage of Supplementary Consent Terms is again to be found in Clause 18, which ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 54 chsl-1020/2016 provides for mediation of those matters by the respective nominated attorneys. Clause 18 describes those matters as being, "with respect to modalities for valuation, method of adjustment/payment, Bidding Process and subsequent Transfer Process, modalities for consummation of transaction and/or guidelines for Valuers".
vi) Therefore, the plain language of Clause 9 read with Clauses 13, 17 and 18 indicates that matters relating to PA Kash Foods Property such as the valuation of that property, the method of adjustment/payment of PA Kash Foods Property and the modalities for consummation of transaction are all to be part of the Supplementary Consent Terms.
vii) Therefore, if the submissions of the PA Group that the PA Kash Foods Properties have stood vested/allotted immediately upon execution of the Consent Terms and passing of the Decree, Annexure E is to be executed forthwith by Omkar and RA Group, and there is no fetter on the PA Group to immediately deal with the PA Kash Foods Property, were to accepted, the same would defeat the plain language inter alia of the above clauses of the Consent Terms, all of which mandate that matters even relating to PA Kash Foods Property are to be contained in the Supplemental Consent Terms. I have consciously used the word 'mandate' since the mandatory nature in this regard is to be found in the words "shall" appearing in Clauses D-9 and 11 as also in the expression "the parties have agreed that they would mutually decide the modalities of ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 55 chsl-1020/2016 brief to the valuer and the third valuer and mode of adjustment/payment" appearing in Clause 13. Therefore, the submission of the PA Group that the 'adjustment' and/or 'payment' was an option/right of the PA Group as contemplated by Clause 13 of the Consent Terms and therefore, the said PA Kash Foods Property was included in the "valuation subject" so as to determine its value for the purposes of adjustment and not the deferment on execution of Annexure-E letter as suggested by the RA Group, also cannot be accepted.
viii) The plain language of Clause D9(g) read with Clause 13 of the Consent Terms which posits that the PA Kash Foods Property (which is all the properties defined in Annexure A), would remain intact when valuing the same and agreeing to the modalities contemplated by Clause 13 and be recorded in the Supplemental Consent Terms, also calls for rejection of the contention of the PA Group, that the PA Kash Foods Property immediately stood vested in the PA Group enabling them to deal with the same, which they could not in the absence of the letter issued in terms of Annexure 'E'.
(ix) Clause 22 of the Consent Terms provides that the RA Group and/or Kash Foods shall not be entitled to sell and/or transfer and/or dispose off and/or otherwise deal with the PA Kash Foods Property ('the Restraint') and the modification if any, of the Restraint shall be identified in the Supplementary Consent Terms, thereby clearly meaning that the PA Kash Foods Property ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 56 chsl-1020/2016 shall, at least until the filing of the Supplementary Consent Terms, remain with Kash Foods/RA Group, and they shall not deal with the same. The question therefore of the PA Group being entitled to forthwith receive the letter from Omkar and the RA Group in the format set out in Annexure 'E' to the Consent Terms, and thereafter also being entitled to immediately deal with the PA Kash Foods Property (described in Annexure 'A' to the Consent Terms) does not arise.
31. Being conscious of the aforestated clear terms agreed whilst executing the Consent Terms, the PA Group has attempted to draw support in favour of their contention from the contents of the Order/Decree dated 14th August, 2015, more particularly paragraph 3 thereof. However, in my view, the statements of the Senior Advocates recorded in Clause 3 of the Order dated 14 th August, 2015, by no stretch of imagination can be construed as giving any indication/direction that the PA Kash Foods Property stood vested in the PA Group immediately upon signing of the Consent Terms and/or on passing of the Decree/Order dated 14th August, 2015, or that Omkar and/or RA Group should forthwith issue a letter in the format prescribed in Annexure 'E' to the Consent Terms so that the PA Group can immediately deal with the flats and parking spaces (PA Kash Foods Property). If the submissions of the PA Group to this effect were to be accepted, the same would render all the above discussed ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 57 chsl-1020/2016 clauses of the Consent Terms, otiose. Paragraph 3 of the Decree/Order dated 14th August, 2015 only records that the Senior Advocates for the parties have agreed that the division in Annexures 'A' and 'B' is final vis-a-vis Omkar. They also agreed that the allotments made and possession given in terms of Annexures A and B would constitute a full, sufficient and complete discharge of Omkar's obligations under the Development Agreements already executed in favour of the parties i.e. the Agreement between Omkar, Kash Foods and Defendant Nos.3 and 4 - Members of the RA Group. Omkar was not a party to the Consent Terms. Clause 28 of the Consent Terms, wherein Omkar is directed/requested to issue a letter to the PA Group in the format annexed as Annexure-E to the Decree, would therefore, not be binding on Omkar. It is therefore, clear that all the above statements were made by the Senior Advocates only to lend comfort to Omkar who did not want to be caught in the cross fire of litigation between the two disputing parties, and consequently got Omkar to record its statement, that Omkar will issue the letter, a proforma of which is at Exhibit 'E' to the Consent Terms.
32. At a very belated stage i.e. at the stage of rejoinder, it was submitted on behalf of the PA Group that the language at paragraphs 3 and 6 of the Decree read with Annexure-E allotment letter clearly demonstrates that the PA Kash Foods Property at Annexure-A to the Consent Terms stood allotted to the PA ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 58 chsl-1020/2016 Group and possession thereof was to be given to the PA Group. The vesting in the PA Group was to this extent. This submission is not only in stark contrast to the submissions made by the PA Group in its Affidavit-in-Support of the Chamber Summons and also the notes, on the basis of which submissions were made in support of the Notice of Motion, but even otherwise cannot be accepted for reasons already set out herein. The argument now advanced on behalf of the PA Group that the prayer sought in the above Chamber Summons read with the language of Annexure-E the allotment letter demonstrates the fact that today the PA Group is only seeking execution of Annexure-E allotment letter and therefore the entire argument pertaining to the term 'vesting' is irrelevant and inconsequential, also cannot be accepted, interalia because the PA Group has conveniently lost sight of the fact that they have repeatedly contended that immediately upon execution of the Consent Terms and the Order passed by this Court dated 14 th August, 2015, the PA Group is not only entitled to receive the letter signed by Omkar as well as the RA Group as per the format set out in Annexure-E to the Consent Terms, but the PA Group is also entitled to sell the flats and deal with the same as per their wishes.
33. The PA Group has, based on its above submission, that upon the execution of the Consent Terms and passing of the Decree in Suit (Lodging) No. 194 of 2015, the PA Kash Foods Property stood "allotted and vested to the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 59 chsl-1020/2016 PA Group", further pleaded and contended that the RA Group and Omkar were obliged to forthwith issue a letter in the format of Annexure-E in favour of the PA Group. In Clause 2 of paragraph 17 of its Affidavit-in-Support of the Chamber Summons, the PA Group has submitted as follows:
"In order to enable the Plaintiffs to acquire full and valid legal title to the PA Kash Foods Property, the RA Group and Omkar were directed in terms of the decree to "forthwith" execute the Annexure-E and also issue individual allotment letters for the PA Kash Foods Property and individual flat agreements i.e. Maharashtra Ownership of Flat Agreement for the PA Kash Foods Property and/or deeds of modification to the corresponding Maharashtra Ownership of Flat Agreement already executed in favour of Defendant No. 8 by Omkar".
34. The said submission is also repeated in the course of the arguments advanced on behalf of the PA Group by incorporating the same in Note-2 tendered on behalf of the PA Group captioned "THE CONSENT DECREE AND ANNEXURE-E LETTER". In the said note, after recording the contents of paragraph 3 of the Order dated 14 th August, 2015, it is submitted on behalf of the PA Group that, "therefore the Annexure-E letter in the requisite format together with the counter signature of the RA Group was to be forthwith issued to the PA Group". In the Affidavit in Support of the Chamber Summons it is not contended by the PA Group that any clauses of the Consent Terms mandate forthwith execution/issuance of a letter by Omkar and/or the RA Group in the format set out in Annexure-E to the Consent Terms but have only confined this submission on the basis of the contents of Clause 3 of the Order dated 14 th ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 60 chsl-1020/2016 August, 2015. I have already dealt with the statements of the Counsel recorded in Paragraph 3 of the Decree and have also explained the purpose behind making the said statements. Paragraph 3 of the Decree does not give any indication or direction as to when Annexure 'E' is to be signed or countersigned by Omkar or by the RA Group and as to when the same has to be handed over to the PA Group.
35. However, the Plaintiffs have relied on Clause 28 of the Consent Terms in order to sustain their plea/case that Annexure-E had to be signed and issued virtually co-terminus with the signing of the Consent Terms both by Omkar and the PA Group. For convenience Clause 28 is reproduced hereunder:
28. Omkar Realtors and Developers Private Limited ("Omkar" or "Defendant No. 10") is hereby directed/requested to issue a separate letter in relation to the PA Group's entitlement to the PA Kash Foods Property in Omkar 1973 Project (more particularly annexed at Annexure A hereto) as per draft at Annexure E hereto. Omkar is hereby further directed to strictly abide by the Restraint in relation to the PA Kash Foods Property.
36. In fact, a plain reading of Clause 28 shows that apart from the fact that it does not give any indication as to when Omkar has to issue the letter in the format set out in Annexure-E to the Consent Terms, the same makes no reference to the RA Group in the context of Annexure-E and the PA Kash Foods Property. As regards the plea that Annexure-E is to be forthwith issued, as correctly submitted by the Counsel for Defendant Nos.3 and 4, it is evident ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 61 chsl-1020/2016 that in an attempt to sustain this plea, the Plaintiffs are conflating the phrase "...... is hereby directed/requested...." with the (non-existent) requirement that the direction/request to Omkar is to issue Annexure-E forthwith. Again, in my view, there is nothing in Clause 28 which warrants or justifies such an interpretation, and to read into it a requirement that Omkar should forthwith issue the letter, the proforma of which is at Annexure-E to the consent terms is unwarranted/unjustified. The attempt on the part of the PA Group to somehow include the RA Group into the terms of Clause 28 is also untenable. Clause 28 merely contains a request/directive to Defendant No. 10 (Omkar) to issue a letter to the PA Group as per draft at Annexure-E to the Consent Terms. However, Clause 28 is completely silent qua any obligation or mandate to the RA Group to countersign Annexure-E. As correctly submitted by Kash Foods, if the intention was for Annexure-E to be issued by the RA Group 'forthwith', Clause 28 would have been the obvious and natural place to provide for it.
37. As recorded hereinabove, if the submission of the PA Group that Annexure-E is to be executed forthwith and that vesting/allotment of PA Kash Foods Property takes place immediately upon execution of the Consent Terms entitling the PA Group to immediately dispose of the flats is accepted, the same would defeat the plain language of Clauses 9, 13, 14, 17 and 18 and would render them otiose. In fact, all these clauses make it clear that matters even relating to ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 62 chsl-1020/2016 the PA Kash Foods Property are to be contained in the Supplemental Consent Terms. I am therefore in agreement with the submission advanced on behalf of the Defendants/Respondents that the present consent terms are correctly described as a 'framework' in Clauses 2, 3 and 30 because the settlement between the parties in all respects was to be crystalized in the Supplemental Consent Terms; the Supplemental Consent Terms constitute an integral part of the said Consent Terms, which the disputing parties have undertaken to bring into effect; and the present Consent Terms are silent and do not express the timing for the execution of Annexure-E, because the same is to be provided in the Supplemental Consent Terms.
38. The PA Group in paragraph 17.3 of its Affidavit in Support of the Chamber Summons also submitted that until and unless Annexure-E was executed by the RA Group and Omkar, the RA Group could not deal with the RA Kash Foods Property (more particularly described at Annexure-B to the Decree). This submission is amplified by the PA Group in Note-5 captioned "THE ALLEGED CASE/DEFENCE OF RA GROUP IN THE ABOVE PROCEEDINGS AND THE PA GROUP'S RESPONSE THERETO" tendered at the time of making submissions on behalf of the PA Group. Paragraph 3 of the said note is reproduced hereunder:
"3. Ex-facie on a reading of clause 22 of the Consent Terms along with ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 63 chsl-1020/2016 paragraphs 3 and 6 of the Decree dated August 14, 2015, read with the provisions of clause D (9) (d) and clauses 25, 27 and 28 of the Consent Terms it becomes abundantly clear that:
iv. the restraint is on the RA Group and Kash Foods from dealing with the 'PA Kash Foods Property' under the Consent Terms (i.e. Annexure A to the Decree) not on the PA Group as is being sought to be wrongfully contended by the RA Group. This is obviously because till such time as the allotment letter as per Annexure E and formal transfer in favour of PA Group is not made, the allotment on record is still in favour of the Ra Group/Kash foods; v. the second sentence of clause 22 of the Consent Terms is only an enabling provision that provides that in the event that parties agree to a modification of the "restraint", or if the property is not sold by the PA group in the meantime, then the same would be captured in a Supplementary Consent Terms to be entered into by the parties to the Consent Terms; and (c ) in terms of clause 28 of the Consent Terms read with paragraphs 3 and 6 of the Decree, it is abundantly clear that the PA Kash Foods Property stood allotted and vested in the PA Group and that Omkar and the RA Group were obligated to issue the allotment letter as per the format annexed to the Consent Terms i.e. Annexure E letter;
(d) clause 22 of the Consent Terms is in any event subject to clause 25 of the Consent Terms, which provides that the PA Group shall issue a public notice (in terms of Annexure D to the Consent Terms) giving up their rights and interest in the RA Kash Foods property and that the RA Group has admittedly dealt with the RA Kash Foods Property without such Public Notice being first issued by the PA Group. The issuance of such public notice under clause 25 of the consent terms by the PA Group releasing its rights and interest in the RA Kash Foods Property was sine qua non before the RA Group could deal with any of its entitlement under the Consent Terms. Otherwise, it would be meaningless to have such a clause.
39. Clause 22 of the Consent Terms is once again reproduced herein for ready reference:
22. RA Group and/or Kash Foods shall not in any manner, directly and/or indirectly or derivatively, be entitled to sell and/or transfer and/or dispose of and/or encumber and/or otherwise dal with the PA Kash Foods Property (more particularly defined in the schedule of Annexure A (the "Restraint"). The modification , if any, of the Restraint shall be identified in the Supplementary Consent Terms. It is expressly agreed and understood between the parties that the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 64 chsl-1020/2016 RA Group is free to deal with RA Kash Foods Property (as more particularly defined in Annexure B) as their exclusive and absolute owners thereof with effect from the filing of these consent terms and the PA Group does not have any claim direct, derivative or otherwise of whatsoever nature upon the same.
40. As set out earlier on the date of the filing of the Suit all the flats in the Omkar-1973 Project were transferred by Omkar either in favour of Kash Foods Properties (Defendant No.8) or in favour of Defendant Nos. 2 and 3. According to the RA Group, the PA Group, had an overall 12.5 per cent derivative interest in the profits of Kash Foods Properties. PA Group filed its Suit claiming a 50% beneficial interest in Kash Foods/Worli Property. The RA Group was interested in settling all the disputes between the two Groups and achieve complete parting of ways between the two Groups, wherein the RA Group would rid themselves of their minority status in AISCO and ensure that IMTC avoids being declared an NPA pursuant to the actions taken by banks for non- payment of dues. As admitted by the PA Group itself, in clause (a) of paragraph 3 of the Note : 5, all the flats on the date of the filing of the consent terms stood in favour of the RA Group/Kash Foods. Therefore, despite all the flats being with Kash Foods and the RA Group, the RA Group agreed to give flats aggregating to 27,227 sq.ft. usable carpet area and 25 car parkings in the Omkar Project to the PA Group in return for an overall comprehensive settlement of all the disputes. Thereafter, the parties executed consent terms and made it very ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 65 chsl-1020/2016 clear therein that the same provides a 'framework for a complete parting of ways' (Clause 2) and is 'a framework for resolution of all matters' (Clause 30). Clause D- 9(d) of the consent terms sets out the "agreed upon entitlement" of the PA Group by Kash Foods and/or R.A. Group (PA Kash Foods Property), the PA Kash Foods entitlement of flats admeasuring 27,266 sq.ft. and 25 garages is therefore created by Clause D-9(d) of the consent terms. The consent terms also contained the detailed understanding between the PA Group and the RA Group with regard to the shareholding in AISCO and IMTC, the issues which the RA Group was very much interested and determined to finally resolve. It is therefore, obvious that the RA Group upon execution of the Consent Terms, which is just a 'frame work for a complete parting of ways', would immediately not handover the "agreed upon entitlement" namely, the Kash Foods Property described in Annexure 'A' to the Consent Terms to the PA Group and allow them to sell and/or create third party rights therein and thereafter be at the mercy of the PA Group to achieve what is sought to be achieved by them under the consent terms. Therefore, as set out in the foregoing paragraphs, the consent terms by its various other clauses has left the details and operational aspects, particularly relating to vesting and consummation of transaction, to be finalized in the Supplemental Consent Terms. However, since the PA Kash Foods Property had not been vested in the PA Group by virtue of the consent ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 66 chsl-1020/2016 terms, pending execution of the Supplemental Consent Terms, the agreed entitlement of the PA Group which stood in favour of the RA Group or Kash Foods Properties, was required to be protected. It is only for this reason that it was provided in paragraph 22 of the consent terms that the RA Group and/or Kash Foods shall not sell, alienate and/or encumber the PA Kash Foods Property ("the Restraint"). Further the statement in Clause 22 of the Consent Terms, namely that, 'the modification, if any, of the Restraint shall be identified in the supplementary Consent Terms' establishes beyond any doubt that the PA Kash Foods Property would at the earliest vest in the PA Group only upon execution of the Supplemental Consent Terms. This finding is also supported by Clause 23 of the Consent Terms as explained herein-above.
41. As against this, since it has throughout been the case of the RA Group that except for 12.5% derivative interest in the profits of Kash Foods Properties, the PA Group has no other rights and on the day of the filing of the Suit, all the flats and car parkings had been transferred by Omkar in favour of Kash Foods / RA Group, except for the entitlement of the PA Group carved out in the Consent Terms, neither the Consent Terms, nor the Order/ Decree passed in terms of the Consent Terms have provided any restrictions on the RA Group for RA Foods Property, but instead in Clause 22 of the Consent Terms, it is specifically provided that, "It is expressly agreed and understood between the ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 67 chsl-1020/2016 parties that the RA Group is free to deal with RA Kash Foods Property (as more particularly defined in Annexure B) as their exclusive and absolute owners thereof with effect from the filing of these Consent Terms and the PA Group does not have any claim direct, derivative or otherwise of whatsoever nature upon the same". Even if such language appearing in the latter part of clause 22 was not there in the consent terms at all, there would have been no fetter on the RA Group on dealing with the flats described in Annexure-B. Unlike the PA Kash Foods Property, the provisions relating to the process for arriving at the Supplementary Consent Terms make no mention of the RA Kash Foods Property. Hence, there is nothing to suggest that the rights of the RA Kash Foods Property as vesting in the RA Group/Kash Foods is linked with the Supplementary Consent Terms. This being so, the express language in the latter part of clause 22 only puts this matter beyond any doubt and is only by way of abundant caution. The submission of the PA Group that the right of the RA Kash Foods to deal with the flats that are mentioned in Annexure-B, as appearing in the latter part of clause 22, is linked with the execution of the letter at Annexure-E would amount to overriding the express terms stated above and it also ignores the entirely different treatment given by these consent terms to the PA Kash Foods Property and the RA Kash Foods Property. Also, the argument that the RA Kash Foods Property cannot be dealt with or that it is ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 68 chsl-1020/2016 connected with the execution of Annexure-E because of clause 25 of the consent terms cannot be accepted. In view of the above express terms of Clause 22, the submission of the PA Group that Clause 22 of the Consent Terms is subject to Clause 25 of the Consent Terms, also cannot be accepted. Once it is established that the PA Kash Foods Property and the RA Kash Foods Property stand on a very different footing under the consent terms, the mere fact that a public notice is contemplated in respect of both such properties cannot mean that the two can be connected or linked just by that fact. The effect and meaning of the public notices would vary because the status of the properties under the consent terms are themselves not the same. Under Clause 23 of the Consent Terms, the RA Group is required to give a public notice within three days of filing of the Supplemental Consent Terms informing the public that the RA Group does not have any right, title and interest of any nature in the said premises and the said premises vests in the PA Group and/or its constituent. In contrast, the RA Kash Foods Property does not vest and nor is the entitlement of the RA Group and Kash Foods created by these consent terms. It already existed as has been mentioned above. Therefore, the public notice in respect of the RA Kash Foods Property, as required by clause 25, does not alter this position. It appears that since the PA Group had earlier issued public notices dated 01-10-2013 and 11- 07-2015 qua the suit flats, it is also provided in the Consent Terms that the PA ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 69 chsl-1020/2016 Group shall issue public notice stating that they do not have any right, title or interest of any nature with regard to the flats owned by the RA Group and that they are unconditionally and irrevocably withdrawing the public notices dated 01-10-2013 and 11-07-2015. It is obvious that in order to avoid issuing of notices by the RA Group and the PA Group at different point of times since the RA Group was required to issue public notice three days after the filing of the Supplemental Consent Terms, the parties have agreed that the notice agreed to be issued by the PA Group shall be issued simultaneously i.e. also within three days from the filing of the Supplemental Consent Terms. This would certainly not mean that the aforestated categorical statements /agreements in Clause 22 of the Consent Terms that the RA Group is free to deal with the RA Kash Foods Property as exclusive and absolute owners thereof with effect from the filing of the Consent Terms cannot come into force unless the said public notice is issued, as is suggested by the PA Group.
42. The Applicants have in clause (b) of paragraph 3 of Note-5 inaccurately paraphrased Clause 22 by stating that:
(b) the second sentence of clause 22 of the Consent Terms is only an enabling provision that provides that in the event that parties agree to a modification of the "restraint", or if the property is not sold by the PA group in the meantime, then the same would be captured in a Supplementary Consent Terms to be entered into by the parties to the Consent Terms;
Significantly no part of Clause 22 use the words, "...... or if the property is not ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 ::: ssp 70 chsl-1020/2016 sold by the PA Group in the meantime....". Thus the words which the Applicants claim to be "provided in clause 22" are wholly absent in clause 22.
43. Therefore, the submissions made on behalf of the PA Group in support of its case, that upon signing of the Consent Terms and passing of the Decree, the PA Kash Foods Property stood vested in the PA Group and that the PA Group was entitled to deal with the same, and Omkar and the RA group were required to forthwith execute and forward the letter in terms of Annexure 'E' to the Consent Terms, and until and unless Annexure E was executed, the RA Group cannot deal with the RA Kash Foods Property for the reasons alleged, cannot be accepted.
44. For the aforestated reasons, neither Omkar nor the RA Group can be directed at this stage to execute a letter in the format set out in Annexure-E to the Consent Terms nor can the RA Group be restrained from dealing with the properties which form the subject matter of the RA Kash Foods Property (described in Annexure-B to the Consent Terms). The Chamber Summons is therefore dismissed. There shall be no order as to costs.
(S.J.KATHAWALLA, J. ) ::: Uploaded on - 04/12/2017 ::: Downloaded on - 05/12/2017 01:09:49 :::