Bombay High Court
Dr. Abhay Gangadhar Pagdhare vs Mahalaxmi Resorts And Ors on 30 March, 2021
Bench: K.K. Tated, R. I. Chagla
This Order is modified/corrected by Speaking to Minutes Order dated 09/04/2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION (ST.) NO.2899 OF 2020
IN
FIRST APPEAL NO.882 OF 2017
Dr. Abhay Gangadhar Pagdhare ...Applicant / Ori.
Respondent
In the matter between
Mahalaxmi Resorts & Ors. Appellants
Versus
Dr. Abhay Gangadhar Pagdhare ...Respondent
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Mr. Puneet Chaturvedi i/b. Sanjay S. Gawde for the Applicant.
Mr. Ram Apte, Senior Advocate i./b Vinay Bhate for
Respondents for Applicant in I.A No.2003 of 2020.
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CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
DATE : 30TH MARCH, 2021
ORDER :
1. Heard learned Counsel for parties.
2. For the sake of convenience nomenclature of the parties
will be referred Applicant as Plaintiff and the Appellants as
Defendants as described in the Suit.
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3. By this Interim Application, the Plaintiff is seeking
permission to withdraw the sum of sum of Rs.5,49,04,032.25
(Rs. Five crores forty nine lacs four thousand thirty two and
paise twenty fve only) deposited by the Defendants before this
Court without furnishing any security.
4. Learned Counsel Mr. Chaturvedi for the Plaintiff submits
that in the present proceeding the Plaintiff entered in to
development agreement dated 13th February, 2001 with the
Defendants for development of land area approximately
35,355.84 sq. meter (Thirty fve thousand three hundred ffty
fve point eighty four square meter) of village Mahim, Tal and
Dist. Palghar. He further submits that because of dispute
between Plaintiff and Defendants and the Defendants failed and
neglected to comply the terms and conditions of development
agreement, the Plaintiff has fled Special Civil Suit No.73 of
2007 before the Civil Judge, S.D., Palghar for recovery of sum
of 6,50,00,000/- (Rs. Six crores ffty lacs only) with interest @
18% p.a. Following prayers read as under:-
"(a) The defendant Nos.1 to 4 jointly and
severally may be ordered and decreed to pay a
sum of Rs.6,50,00,000/- (Rupees Six Crores
Fifty Lacs only) with interest becoming due
thereon from 13th December, 2006 at the rate
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of 18% p.a. to the Plaintiff.
(b) The property both moveable and
immoveable belonging to the defendant Nos.1 to
4 may be ordered to be attached and sold in
execution of the said decree;
(c) Cost of this suit may be granted;
(d) Any other relief which is found just,
equitable and necessary under the facts and
circumstances may be also granted;
(e) Liberty may be granted to amend the Plaint
if found necessary."
5. Learned Counsel for the Plaintiff submits that the Trial
Court after considering the evidence of both parties, passed the
judgment and decree dated 27th July, 2016 holding that the
Defendant Nos.1 to 4 joint and severally to pay sum of
Rs.6,50,00,000/- (Rs. Six Crore Fifty lac) to the plaintiff along
with interest @ 6% p.a. from the date of fling of suit till
realization of the amount.
6. Learned Counsel for the Plaintiff submits that,
Defendants being aggrieved by the judgment and decree dated
27th July, 2016, preferred the First Appeal No.882 of 2017. He
submits that the Appeal admitted by this Court on 17th
November, 2017. He further submits that in the present First
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Appeal the Defendants fled Interim Application No.2477 of
2017 for stay of the operation and implementation of the
impugned judgment and decree passed by the Trial Court. He
submits that this Court by order dated 28th November, 2017
directed the Defendants to deposit 50% of decretal amount in
this Court within eight weeks and provide solvent security to
the satisfaction of Registrar (Judicial) of this Court. Operative
part of the said order dated 28th November, 2017 reads thus:-
"1. The execution of decree stands stayed subject to
following conditions:-
(a) the applicants shall deposit 50% of decretal
amount in this Court within 8 weeks.
(b) In respect of remaining 50% of the decretal
amount the applicants shall furnish solvent security
to the satisfaction of Registrar (Judicial) of this
Court. Before accepting the solvent security
Registrar shall hear the respondents.
2. Civil Application stands disposed of. Costs in
cause."
7. Learned Counsel for the Plaintiff submits that thereafter
Defendants had preferred another Civil Application No.211 of
2019 for extension of time to comply earlier order dated 28th
November, 2017. He submits that, this Court granted some
time. The order dated 16th April, 2019 reads thus:-
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"(i) Time granted to the applicants to deposit 50%
of the decretal amount as per the order dated 28th
November, 2017 is fnally extended by a period of
six weeks from today, subject to condition of the
applicants depositing 50% of the decretal amount
(Rs.6.5 crores plus interest as directed) as on 7th
January, 2019. Thus, the amount payable in
addition to Rs.3.25 Crores shall be deposited
within six weeks from today
(ii) On the failure of the applicants to deposit the
balance amount as aforesaid within a period of six
weeks from today, the impugned decree will
immediately become executable;
(iii) Only after deposit of the aforesaid amount,
the Registrar (JudicialI) will examine the
documents furnished by the applicants and will
ascertain whether the applicants have furnished
solvent security for remaining 50% of the decretal
amount payable as on 7th January, 2019 to his
satisfaction. Before examining the documents, the
Registrar (Judicial) will satisfy himself that
compliance with the aforesaid directions
regarding deposit is made by the applicants. If he
is satisfed that the compliance is not made, then
there will not be any occasion to accept the solvent
security as the stay shall stands automatically
vacated;
(iv) Before accepting solvent security in terms of
the order dated 28th November, 2017 as modifed
by this order, the Registrar (Judicial) I) will give
an opportunity of being heard to the respondent.
The respondent will be entitled to inspect the
documents produced by the applicants; and
(v) The applicants shall furnish solvent surety to
the satisfaction of the Registrar (JudiciaI) within
a maximum period of 3 months from the date on
which the balance amount as aforesaid is
deposited by the applicants. If the applicants fail
to furnish solvent surety to the satisfaction of the
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Registrar (Judicial) within the stipulated period of
3 months, the stay shall stand vacated without
further reference to the Court, notwithstanding
the fact that the Applicants deposit the balance
amount within the stipulated time;
(vi) The applicants are directed to pay costs
quantifed at Rs.20,000/- to the respondent within
a period of four weeks from the date on which this
order is uploaded. Payment of costs will be
condition precedent."
8. Learned Counsel for Plaintiff submits that, as the
Defendants failed to comply with the order passed by this Court
on stay application i.e. to provide solvent security to the
satisfaction of the Registrar (Judicial), they fled Interim
Application No.2003 of 2020, with following prayers which is
pending for hearing and fnal disposal in its own merits:-
"(a) That the order dated 3rd February, 2020
passed by the learned Registrar Judicial - II
refusing to accept the security be set aside;
(b) that this Hon'ble Court be pleased to direct the
learned Registrar Judicial- II to accept the security
produced by the Applicants;
(c) that the orders dated 28th November, 2017 and
16th April, 2019 passed by this Hon'ble to continue
till hearing and fnal disposal of the
abovementioned First Appeal No.882 of 2017;
(d) Pending the hearing and fnal disposal of
present Civil Application and the frst appeal, this
Hon'ble Court be pleased to stay the further
proceedings of the Special Darkhast No.10 of 2017
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pending before learned Civil Judge, Senior
Division, Palghar;
(e) Ad interim orders in terms of prayer clause (c)
and (d) above;
(f) Such further and other relief's as this
Honourable Court may deem ft and proper in the
nature and circumstance of the case;"
9. Learned Counsel for the Plaintiff submits that the
Plaintiff has preferred the present Civil Application for
withdrawal of the said amount without furnishing solvent
security.
10. Learned Counsel appearing for the Plaintiff submits that
there is a money decree against Defendants for the sum of
Rs.6,50,00,000/- (Rupees Six crores ffty lakhs only). This
Court by order dated 28th November, 2019 in Civil Application
No.2477 of 2017 stayed execution of decree subject to deposit
50% of decretal amount in this Court within 8 weeks and for
remaining 50% of the decretal amount to furnish solvent
security. Defendants failed to comply with the order dated 28th
November, 2019, hence they preferred another Interim
Application No.211 of 2019 for extension of time. Civil
Application No.211 of 2019 allowed by this Court and time
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granted to comply with the order dated 28th November, 2019 in
Civil Application No.2477 of 2017. As the Defendants failed to
comply with the order in time, this Court may permit Plaintiff to
withdraw the said amount without furnishing any security. If
the said relief is not granted, irreparable loss would be caused
to the Plaintiffs.
11. On the other hand, learned Senior Counsel Mr. Apte for
Defendants vehemently opposed the present application. He
submits that there is no question of permitting the Plaintiff to
withdraw the entire amount deposited by them pursuant to the
order passed by this Court in the Registry. He submits that in
the present proceedings the Defendants already made payment
to the Plaintiff as per the development agreement. Not only
that, the Plaintiffs is defaulter of several banks as well as
Income Tax Department. Learned Senior Counsel for the
Defendants submitted that, to that effect the Defendants have
made averments in the Affdavit in Reply and particularly in
paragraph Nos.9 and 10, which reads thus:-
"9. The Appellants state that appellants are from
Virar which comes under Palghar district and
claim of the appliant that it is adivasi area is a
false excuse. The Appellants submit that the
respondent is making false claim and the Philia
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Hospital which the respondent is running is not
working properly itself as the Hospital was never
looked after by the Respondent. The Respondent
claims himself as Doctor who is only pediatric
Doctor and do not have any experience. It is
submitted that as stated in forgoing paragraph
the Respondent claims to be sole proprietor of
M/s. Agastya Developer. It is submitted that as
per rules and regulation of the Medical Council of
India no one can practice any other profession
along with the medical profession as medical
profession is full time profession and it is Nobel
profession thus act and deeds on the part of the
Respondents amounts to unethical acts and
disobedience of the rules of the Medical Council of
India. Thus at frst instance it is submitted that
this Hon'ble Court should direct the Medical
Council of India and to conduct enquiry for non
professional and unethical behaviour.
10. The Appellants submit that whenever any
person carried any business or profession, capital
for the same has to be brought by them and
cannot depend on others to contribute it. The
Appellants submit that the Respondent has got
money decree and that does not mean that decree
is fnal as the Appeal fled by the appellants has
been admitted and the money deposited by the
appellants cannot be disbursed for (personal
interest of the respondent."
12. Learned Senior Counsel for the Defendants submits that,
in view of the these facts, there is no question of permitting the
Plaintiff to withdraw the amount deposited by them without
furnishing any security. He submits that if the Court come to
the conclusion that, the Plaintiff is entitled to withdraw the said
amount, in that case the Plaintiff must be directed to furnish
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the bank guarantee of any nationalized bank for withdrawal of
the amount.
13. On the basis of this submission the learned Senior Counsel
for Defendants submits that there is no substance in the present
Interim Application and same is required to be dismissed.
14. We heard both sides at length. It is to be noted that in the
present proceedings the Plaintiff had fled Special Civil Suit
No.73 of 2007 before the Civil Judge, S.D. Palghar for recovery
of sum of Rs.6,50,00,000/- (Rupees Six Crores ffty lakhs only)
with accrued interest @ 18% p.a. In that Suit, the Trial Court has
framed following ishsues:-
Sr. ISSUES FINDINGS
No.
1 Does plaintiff prove that defendants In the
agreed to develop the suit property and affrmative
registered Agreement dated 13/02/2001
was executed?
2 Does he further prove that Defendants In the
committed breach of said agreement and affrmative
gave the Plaintiff false assurances time
to time as alleged?
3 Does he further prove that Defendants In the
offered him to pay initially affrmative
Rs.1,50,00,000/- and subsequently
Rs.5,00,00,000/- as part of
consideration, loss and damage due to
the delay on their part?
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4 Does he further prove that Defendants In the
gave him a letter dated 15th October, affrmative
2006 acknowledging their earlier letter
dated 12/02/2003 and also a cheque of
Rs.20,00,000/-?
5 Does he further prove that Defendants In the
further assured him to pay balance affrmative
amount on or before 12/12/2006?
6 Does he further prove that the suit is In the
within limitation? affrmative.
7 Do Defendants prove that the agreement In the negative
dated 13/02/2001 was not a
Development Agreement but it was
Agreement to sell the suit property as
contended?
8 Is Plaintiff entitle to recover of In the
Rs.6,50,00,000/- with an interest @18% affrmative and
per annum from the Defendants as interest @ 6%
claimed? p.a. from the
date of suit till
realization of
the amount
9 What order and decree? As per fnal
order.
ADDITIONAL ISSUES
1 Whether the suit is without any cause of In the negative
action?
2 Whether the present plaint has not In the negative
complied the mandatory provisions of
the Code of Civil Procedure?
15. The Trial Court has specifcally recorded that, the
Defendants failed and neglected to comply with the terms and
conditions of the development agreement and not only that, the
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Plaintiff has made specifc averment in paragraph Nos.11 and
12 of the Plaint, how they are entitled to sum of
Rs.6,50,00,000/- (Rupees Six crores ffty lakhs only).
Paragraphs 11 and 12 of the Plaint read thus:-
"11) Number of meetings were held in between
the Plaintiff and defendant during the period
from 2001 to 2003 with a view to sort out the
diffculties and fnd out the solution to enable
the defendants to start and complete the
infrastructural development. In accordance
with that the defendants thereupon by a letter
dated 12th February, 2003 gave a proposal to
the Plaintiff to give them the bungalows
bearing Nos.F7 and F12 retained by the
Plaintiff with himself and release them for
disposal. The defendant wanted to raise the
necessary funds for the infrastructural
development by necessary funds for the
infrastructural development by disposing off
the said bungalows. They further offered the
Plaintiff by the said letter that they will not
claim any right, title or interest in the said
bungalows even if they fail, refuse, neglect or
avoid to dispose off the above mentioned
bungalows till 31/08/2006. They further
offered to pay a sum of Rs.1,50,00,000/-
(Rupees One Crore Fifty lac only) to the
Plaintiff in addition to the consideration
agreed under the Development Agreement
dated 13th February, 2001 on the disposal of
the said bungalows.
12. The defendant by the said letter dated
12th February, 2003 had further interalia,
offered to pay a sum of Rs.5,00,00,000/-
(Rupees Five Crore only) towards the part of
consideration and loss and damage caused to
the Plaintiff on account of the delayed
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development. The defendants also by the said
letter accepted and confrmed to have
received the Title Clearance Certifcate and
that the same to be clear and marketable."
16. It is to be noted that in any case today there is a money
decree against Defendants and Defendants have deposited only
50% of decretal amount as per order passed by this Court. The
First Appeal may take its own time to decide the same on its
own merits. Considering this fact, we are of the opinion that the
Plaintiff has made out the case for allowing this Interim
Application. Hence the following order:-
a) The Plaintiff is permitted to withdraw the sum of
Rs.5,49,04,032.25 (Rupees Five crores forty nine lakhs four
thousand thirty two and paise twenty fve only) along with
accrued interest, if any, deposited by the Defendants in the
Registry of this Court, i.e. 50% of the decretal amount, without
any security but subject to outcome of the First Appeal.
b) Interim Application is allowed, accordingly.
c) No order as to costs.
d) Parties to act upon an authenticated copy of this Order.
e) At this stage, the learned Senior Counsel for the
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Defendants seeks to stay the present order for some time.
Considering the submissions made by the learned Senior
Counsel for the Defendant, and as there is money decree and
not only that, the Defendant has deposited only 50% amount of
the money decree without furnishing any security for
remaining 50% amount, as per the order passed by this Court,
the request of the learned Senior Counsel is rejected.
[R.I. CHAGLA J.] [K.K. TATED, J.]
