Bombay High Court
Heena Builders And Developers And ... vs Jigna Mahesh Thaker And Anr on 24 June, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
4-IA(L)-13535-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.13535 OF 2021
IN
APPEAL (L) NO.13531 OF 2021
WITH
APPEAL (L) NO.13531 OF 2021
HEENA BUILDERS AND DEVELOPERS & ORS.)...APPLICANTS
IN THE MATTER BETWEEN
HEENA BUILDERS AND DEVELOPERS & ORS.)...APPELLANTS
V/s.
JIGNA MAHESH THAKER AND ANOTHER )...RESPONDENTS
Mr.Pankay Pandey a/w. Mr.Smit Nagda, Advocate for the
Appellant.
Mr.Aniruddha Joshi a/w. Ms.Gauri Mestha i/b. M/s.L.J.Law,
Advocate for Respondent No.1 / Judgment Creditor.
Mr.D.N.Kher, Court Receiver present.
Mr.Deepak Shah - Appellant No.3 present.
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
DATE : 24th JUNE 2021
AVK 1/7
4-IA(L)-13535-2021.doc
P.C. :
1 By this appeal filed by the appellants (original
judgment debtors) the appellants have impugned the order dated
3rd June 2021 passed by the learned Single Judge of this Court in
execution proceedings directing the Court Receiver to take vacant
possession of the subject properties and to seek further direction
for valuation / sale of the subject properties in accordance with
law. This Court has also directed the judgment debtor to remove
their furniture and fixtures belongings from the subject
properties on or before 25th June 2021.
2 The learned counsel for the appellants, on
instructions, submits that though his clients have committed
defaults of the Consent Terms, leniency be shown by this Court to
the appellants. He states that his clients would mortgage some of
the properties and would complete the construction of the
structures in question.
AVK 2/7
4-IA(L)-13535-2021.doc
3 The submission of the appellants is vehemently
opposed by the respondent no.1 on the ground that the
appellants have committed several defaults and though
indulgence was shown by the learned Single Judge to the
appellants on several occasions, the appellants did not comply
with the statements made before this Court. It is submitted by
the learned counsel for the respondent no.1 that this appeal is
not even maintainable in view of the fact that the appellants had
made a statement before the learned Single Judge and had
prayed for time for removal of furniture and fixtures from the
properties in question. He submits that in view of the statement
made by the appellants and seeking time for removal of furniture
and fixtures in the properties in question, the learned Single
Judge gave time to comply with the said statement. Instead of
complying with the said statement, the appellants have preferred
this appeal.
4 It is submitted by the learned counsel for the
respondent no.1 that this Court vide order dated 24 th September
AVK 3/7
4-IA(L)-13535-2021.doc
2020 in Interim Application No.2412 of 2020, after directing the
appellants to disclose their properties, had also directed the
Court Receiver to proceed to conduct sale of the properties in
pursuant to the order dated 2 nd November 2018 read with order
dated 16th October 2018. The said order passed by the learned
Single Judge, admittedly, is not challenged by the appellants and
has attained finality. It is submitted by the learned counsel that
the properties proposed to be mortgaged by the appellants do not
belong to the appellants.
5 The impugned order passed by the learned Single
Judge clearly indicates that the appellants had made a statement
before the Executing Court that the appellants would remove
their furniture and fixtures from the properties in question within
the time prescribed. Considering the said statement and by
showing leniency to the appellants, the Executing Court granted
them indulgence. Instead of complying with the said order, the
appellants have chosen to file this appeal. The appellants have
not disputed that there are several defaults of their obligations
AVK 4/7
4-IA(L)-13535-2021.doc
committed by the appellants as mentioned in the Consent Terms
filed before this Court. The appellants also do not dispute that
the appellants have not impugned the order dated 24 th
September 2020 passed by this Court directing the Court
Receiver to proceed with the sale of the properties in question.
6 The learned Executing Court after observing the
dishonest conduct on the part of the appellants has rightly
appointed the Court Receiver and issued various directions. The
proposal made by the appellants before this Court today is one
more attempt to delay the outcome of the execution of the decree
passed by this Court.
7 Though the learned counsel for the appellants sought
time to vacate the personal residential premises of the appellants,
when this Court enquired whether the appellants would render
undertaking to this Court to vacate, if any reasonable time is
granted, the learned counsel for the appellants states that his
clients are not agreeable to render any such undertaking. In this
AVK 5/7
4-IA(L)-13535-2021.doc
view of the matter, we are not inclined to grant any time as
prayed. The appeal is devoid of merits and stands dismissed with
costs quantified at Rs.50,000/- (Rupees Fifty Thousand Only)
which shall be paid by the appellants to the respondent no.1
within one week from today.
8 Possession of personal properties if any which is
subject matter of the impugned order along with other properties
which are subject matter of the impugned order shall be handed
over to the Court Receiver within three days from today. If the
appellants do not hand over possession of the aforesaid
properties which are subject matter of the impugned order, the
Court Receiver to take forcible possession of the properties and, if
necessary, with the assistance of the police.
9 Parties as well as the Court Receiver to act on an
authenticated copy of this order.
AVK 6/7
4-IA(L)-13535-2021.doc
10 In view of the dismissal of the appeal, interim
applications if any, shall stand dismissed.
(V. G. BISHT, J.) (R.D.DHANUKA, J.)
AVK 7/7
