Shantilal Ratanshi Chheda vs M/S. Ratanshi Shamji Oil Company ...
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Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.8544 OF 2017

        Shantilal Ratanshi Chheda,                      ]
        Age : 64 years, Occ. Business,                  ]
        R/at Flat No.24, 4th Floor,                     ]
        Satnam Co-op. Housing Society,                  ]
        Peddar Road, Mumbai - 400026.                   ] .... Petitioner
                     Versus
        1. Ratanshi Shamji Oil Company,                 ]
           A duly registered Partnership Firm,          ]
           under the provisions of Partnership          ]
           Act, 1932, having its office at 221,         ]
           Market Yard, Pune - 400 037.                 ]
        2. Haridas Purushottam Gujrati,                 ]
           Partner of M/s. Haridas and Company,         ]
           Age : 62 years, Occ. Business,               ]
           Having address at Parasnis Colony,           ]
           Market Yard, Gultekadi Road,                 ]
           Pune - 411 037.                              ]
        3. Ashok Ratanshi Chheda,                       ]
           Age : 59 years, Occ. Business,               ]
           R/at Flat No.44, Jai Yashwant                ]
           Andheri Co-op. Society Ltd.,                 ]
           S.V. Road, Andheri (West),                   ]
           Mumbai - 400 058.                            ] .... Respondents



        Mr. Rakesh Agrawal, a/w. Mr. Chetan R. Shah, for the Petitioner.

        Mr. J. Shekhara, a/w. Mr. Akshay R. Kalodia, i/by M/s. J. Shekhar & Co.,
        for Respondent No.2.
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                           CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                          DATE          : 30 TH JANUARY 2018.

ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Agrawal, learned counsel for the

Petitioner, and Mr. Shekhara, learned counsel for the Respondents.

2. By this Writ Petition, filed under Article 227 of the Constitution of

India, the Petitioner is challenging the order dated 7th June 2017 passed

by District Judge-12, Pune, below "Exhibit-1" in Darkhast No.1701 of

2014.

3. The said Darkhast has been filed for execution of the Award passed

by the learned Arbitrator on 25 th July 2014, based on the 'Consent

Terms' executed by and between the parties on 22nd June 2014.

4. As per the terms mentioned in paragraph No.6 of the 'Consent

Terms', it was agreed between the parties that the Claimant or

Respondent No.3 or both of them, either themselves or through the

hands of their nominated person, or, if they intend to sell the shop

premises through the hands of the said purchaser for Rs.85,00,000/- to

Respondent No.2 on or before 31st August 2014, then, as per Clause

6(A), the amount of Rs.10,00,000/- was to be paid on or before 31 st July

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2014. It is not disputed between the parties that the said amount is paid

within the stipulated time. Clause No.6(B) of the 'Consent Terms' further

provides as follows :-

"6(B). Balance Rs.75,00,000/- (Rs. Seventy Five Lakhs only) on or before 31st August 2014, simultaneously Respondent No.2 vacating and handing over the vacant and peaceful possession of the said shop to the Claimant or Respondent No.3 or both of them or to the person nominated by them or to the buyer of the said shop decided by Respondent No.3 and Claimant jointly or individually and upon Respondent No.2 executing all the documents, Undertaking, Covenants, Deeds etc. in favour of the Claimant or Respondent No.3 or both or person/s nominated by them including buyer of the said shop decided by Claimant or Respondent No.3 or both of them."

5. Thus, the dispute pertains to the payment of this remaining

amount of Rs.75,00,000/-, which, according to the Respondents, is not

paid within the stipulated period of 'on or before 31st August 2014'.

6. In this respect, Clause No.9 of the 'Consent Terms' is also relevant,

which reads as follows :-

"9. AGREED AND CONFIRM THAT in the event the Claimant failed to make payment of the consideration amount, as agreed above, either through himself or through Respondent No.3 or through the person/s nominated by

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them, then Respondent No.2 shall be entitled to interest on the balance amount of consideration at the rate of 12% p.a."

7. Relying on this Clause No.9, the Executing Court has directed the

present Petitioner to deposit in the Court the amount of Rs.75,00,000/-

as remaining amount of consideration, along with the interest @ 12% p.a.

from 31st August 2014 till the date of actual depositing of the said

amount.

8. The real grievance of learned counsel for the Petitioner and in my

considered opinion is rightly so, is about the Executing Court directing to

deposit the amount of Rs.75,00,000/-, along with the interest @ 12% p.a.,

in pursuance of Clause No.9 of the 'Consent Terms'. Clause No.6(B) of the

'Consent Terms' clearly provides performance of reciprocal promises.

According to it, just as there was liability on the Petitioner to pay the

amount of Rs.75,00,000/- on or before 31 st August 2014,

simultaneously, the liability was cast on Respondent No.2 of vacating

and handing over the vacant and peaceful possession of the shop

premises to the Claimant or to Respondent No.3 or both of them or to the

person nominated by them or to the buyer of the shop premises, by

executing all the necessary documents, which are meant for transfer of

the title.

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9. The submission of learned counsel for the Petitioner is that, the

shop premises were standing in the name of 'Ratanshi Shamji Oil

Company', a duly registered Partnership Firm, and as per paragraph

No.2 of the 'Consent Terms', it was stated to be the asset of Respondent

No.1-Firm i.e. Ratanshi Shamji Oil Company. However, the Petitioner has

come across the document to show that, now the said shop is standing in

the name of 'Ratanshi Shamji Brothers'. Even in the 'Caveat' filed by

'Krishiutpanna Bajar Samiti, Pune', the said shop premises are shown in

the name of 'Ratanshi Shamji Brothers'. Therefore, there is definitely a

bonafide doubt in the mind of the Petitioner about the title of the said

shop. In view of the 'Consent Terms', it was the responsibility of

Respondent No.2 to give a clear title, along with the vacant and peaceful

possession of the said shop, to the Petitioner, simultaneously, with

payment of the amount of Rs.75,00,000/- by the Petitioner to

Respondent No.2.

10. In view thereof, the Trial Court, in paragraph No.7 of its order, has

also observed that, "both the parties are showing willingness to perform

their part of the 'Consent Terms'" , thereby clearly implying that the

Petitioner was also ready to perform his part of the 'Consent Terms'.

11. Even in paragraph No.5 of the impugned order, the Executing

Court has observed that, "from the above-mentioned Clauses of the

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'Consent Terms', it appears that there are reciprocal promises made by

the parties towards each other and they are required to perform their

part as per the chronological sequence of the transaction between the

parties".

12. Now, as regards the issue of payment of Rs.75,00,000/- from the

Petitioner to Respondent No.2, there is no chronological sequence of

Petitioner paying the amount first and then Respondent handing over

the vacant possession with clear title. The word 'simultaneously' used in

paragraph No.6(B) of the 'Consent Terms' is relevant in this respect. As

per paragraph No.6(B) of the 'Consent Terms', 'simultaneously', with the

payment of this amount of Rs.75,00,000/- on or before 31 st August 2014

by the Petitioner, Respondent No.2 was also saddled with an obligation

to vacate and handover the vacant and peaceful possession of the said

shop by executing all the documents, thereby indicating that,

Respondent No.2 has to satisfy the Petitioner about the title of the said

shop also. If there is genuine doubt created in the mind of the Petitioner

about the title of the said shop, considering the documents, which are

produced in the case, then, it cannot be said that Respondent No.2 was

ready to perform his part of the 'Consent Terms', however, Petitioner has

avoided to do so and, therefore, the Petitioner should be saddled with the

payment of interest in terms of Clause No.9 of the 'Consent Terms'. That

liability would have arisen, if there was no simultaneous duty or

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obligation cast on Respondent No.2 of vacating the shop premises and

handing over clear title of the shop premises to the Petitioner.

13. The bare perusal of Clause No.6(B) of the 'Consent Terms' makes it

clear that, the obligations cast on the Petitioner and Respondent No.2

were to be performed simultaneously and there was no question of the

Petitioner first depositing the amount and then Respondent No.2

handing over vacant and peaceful possession of the shop premises with

clear title. In such situation, the Executing Court has committed an

error in casting the liability of payment of interest @ 12% p.a. on the

Petitioner on the amount of Rs.75,00,000/- from 31 st August 2014 till

the date of actual depositing of the said amount. The said part of the

impugned order passed by the Trial Court, therefore, needs to be

quashed and set aside to that extent. Ordered accordingly.

14. Writ Petition is, accordingly, allowed.

15. Rule is made absolute in the above terms.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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