Bombay High Court
Pramod Pandurang Pisal vs Pankaj Rajaram Bandarkar on 16 November, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7580 OF 2021
Pramod Pandurang Pisal .. Petitioner
Versus
Dr.Pankaj Rajaram Bandarkar .. Respondent
...
Mr.Atul Damle, Sr. Advocate with Shailesh Pal, Viraj Singh i/b
Pratap Singh for the petitioner.
Mr. Kafil Khan with Sana K. Khan i/b KSR Legal for the
respondent.
CORAM: BHARATI DANGRE, J.
DATED : 16th NOVEMBER, 2021
P.C:-
1 During the course of hearing, learned Senior counsel
has invited my attention to an affidavit filed in support of the
Notice of Motion No.2749 of 2021 filed by the judgment debtor
in the Execution Application No.94/2019, wherein a mandatory
injunction is sought against the defendant to accept the
residential flat amongst the flats shown in the photographs in the
building situate on the property described in prayer clause (a).
2 The affidavit in support of Notice of Motion contain
as paragraph-10 which reads thus:-
"10 I say that admittedly a sum of Rs.42,30,000/-
was paid by the Defendant to purchase flats in the said
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SRA project at said property. I say that flats were agreed
to be sold @ 6,000/- whereas today market price going
on @ Rs.20,000/- per square feet area. I say that
building wherein Defendant was to be allotted flats has
come up and which is seen from photographs. I say that
Plaintiff is ready and willing to give those flats as
security to the purported Decree of the defendant dr.
Pankaj Rajaram Bandarkar. I say that as such to show
Plaintiff genuineness and bonafide to pay the dues of
the defendant, Plaintiff is ready and willing to give
"Security" on such term and condition as this Hon'ble
Court may be deem fit and proper".
3 The respondent/decree holder has a decree in his
favour based on the consent terms entered into between the
parties in Special Civil Suit No. 1327 of 2017 on 18th June 2018.
The decree dated 18th June 2018 is based on the said consent
terms, whereby the plaintiff has agreed to pay the repurchase
amount of flats to the defendant and his family in the following
manner :-
"(1) Rs.77,30,733/- (Rupee Seventy Seven Lakhs thirty
thousand seven hundred and thirty three only to
Ms.Malti Rajaram Bandarkar.
(2) Rs.91,10,377/- (Rupees Ninety one lakhs ten thousand
three hundred seventy seven only) to Dr.Pankaj Rajaram
Bandarkar.
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(3) Rs.81,58,890/- (Rupee Eighty one lakhs fifty eight
thousand eight hundred and ninety only) to Dr. Reeta
Pankaj Bandarkar"
Clause 7 of the consent terms also include a term about payment
of interest @ 18% p.a. from the date of settlement till the full and
final settlement.
According to the decree holder, the amount under the
decree along with the interest can be roughly estimated to be
payable around Rs.4,03,61,644/- with the interest calculated till
today i.e. 16/11/2021. The said amount can be at variance when
actually calculated, but roughly it can be taken that the amount
due and payable under the decree as on date, is approximately
Rs.Four Crores.
4 The petitioner is aggrieved by the order directing his
arrest in the civil prison and on perusal of the documents
appended with the petition and also an earlier order passed by the
Executing Court on 27th September 2021, which is not part of the
petition, it can be noted that an opportunity was afforded to the
judgment debtor to make a disclosure about his movable and
immovable properties and accordingly, a disclosure has been
made in form of an affidavit filed by him which is placed on
record at Exhibit-C. The said affidavit though in form of a
disclosure statement, apart from the Income Tax Return, is
completely lacking in any property being owned by the judgment
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debtor and from the perusal of the affidavit, it can be seen that the
deponent meaningfully intended to convey that there are no
immovable properties in his name and the vehicles to which a
reference has been made in para-18 of the affidavit are also
mortgaged with the Bank.
On perusal of the disclosure statement, the learned
Judge has issued a notice under Order 21 Rule 37 in form of a
show cause notice and when the judgment debtor failed to put an
appearance, it was presumed that he has nothing to say. Further,
by recording that the judgment debtor has dishonestly transferred
the suit premises, the Court passed an order of detaining him in
the civil prison for a period of three months by order dated 30 th
October 2021.
Though this order is subject matter of challenge and
the argument advanced by the learned Senior counsel Mr.Damle
is to the effect that the procedure prescribed by the Code has not
been adhered to before passing a drastic order of committing his
client to the civil prison, a fair proposal also came from him,
which is to the effect that a Notice of Motion has been moved
before the Executing Court vide No.2749 of 2021, wherein the
judgment debtor has expressed his bonafides, by securing certain
portion of the flats in favour of the Decree holder, which are
likely to be constructed by him and which are at the stage of
construction in a Slum Rehabilitation Scheme.
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5 I have already reproduced para-10 of the affidavit and
I do not think that this statement is sufficient to grant the stay to
the order directing arrest of the judgment debtor, but if an
appropriate statement come before me by securing the amount of
a decree in favour of the decree holder, I may be persuaded to
grant stay.
6 Learned senior counsel state that an appropriate offer
in form of an affidavit would be placed before this Court within a
period of three days from today. Copy of the affidavit shall be
tendered to the other side in advance.
7 The statement made by the respondent recorded in
the earlier order shall continue to operate till the next date of
hearing.
8 Stand over to 21st November 2021.
SMT. BHARATI DANGRE, J
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