Mandal Infrastructure Pvt. Ltd vs Sanskriti Developers And 3 Ors
2021 Latest Caselaw 14913 Bom

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                           [ COMMERCIAL DIVISION ]

              INTERIM APPLICATION (LODGING) NO.23015 OF 2021
                                      IN
 COMMERCIAL EXECUTION APPLICATION (LODGING) NO.19230 OF 2021
                                      IN
              COMMERCIAL ARBITRATION PETITION NO.20 OF 2021

Mandal Infrastructure Pvt. Ltd.                .. Applicant-Decree Holder
               Vs.
Sankriti Developers and Ors.                   .. Respondents-Judg. Debtors


Mr. Raghav Gupta, with Mr. Kashish Mainkar and Ms. Treesa Ann Benny, i/by
Wadia Ghandy & Co., for the Applicant-Decree Holder.

Mr. Javed Akhtar Khan for the Respondents-Judgment Debtors.


                                        CORAM : A. K. MENON, J.

                                        DATE       : 12TH OCTOBER, 2021.
P.C. :

1. The applicant seeks to execute an order in terms of consent terms

passed in Commercial Arbitration Petition No.20 of 2021. The consent terms

arrived at between the parties in the said petition are sought to be executed as

a decree of the court. The consent terms are dated 21 st January 2020. It

contains a schedule of payments. The liability to pay the amount agreed

thereunder is joint and several. The total sum agreed to be paid by the

respondents is Rs.8,28,66,944/-. However, the consent terms also provide that

if a sum of Rs.4,92,00,000/- is paid by way of demand drafts and pay orders

18-IAL-23015-2021.doc Dixit in terms of the schedule agreed in clause (3), the decree would be marked

satisfied in full and final settlement.

2. The grievance of the applicant-decree holder today is that only the

sums under clauses 3(i), 3(ii) and 3(iii) have been paid, leaving balance of

Rs.2 crores as on the due dates of 21 st April, 2020 and 21st May 2020. The

parties have since been in negotiations on account of defaults. The contention

of the applicant-decree holder is that since the timelines specified in clause

(3) of the consent terms have not been complied with, the entire amount of

Rs.8,28,66,944/- fell due. Part payments made from time to time are said to

have been made partly by respondent nos.1 to 3 and partly by respondent

no.4 since the decree is joint and several. These amounts have been

appropriated towards interest due on the balance of the principal sum.

Accordingly, the applicant-decree holder contends that a sum of

Rs.4,78,54,057/- is due as on date of filing the application.

3. Mr. Khan on behalf of the respondents seeks to file a reply and agrees

to handover unaffirmed copy of the reply today itself to the Advocate for the

applicant-decree holder. He states that several payments have been made and

only a sum of Rs.49,99,998/- is now due. He tenders a statement of payments.

In the meantime, he submits that the balance sum of Rs.49,99,998/- can be

paid expeditiously. He submits that owing to the difficult market positions,

this amount could not be paid.

18-IAL-23015-2021.doc Dixit

4. Be that as it may, the decree specifically provides for a lower amount to

be paid on a condition of timely payment. That not having been complied, the

applicant-decree holder is entitled to seek execution of the decree for the

entire amount. Clause (4) of the consent terms provides for security in respect

of the outstanding amount, which is created on two flats. There is an

undertaking recorded that the respondents-judgment debtors will not

alienate, encumber, transfer or otherwise create third party rights in respect

of the two flats specified in clauses 4(a) and 4(b) of the consent terms. This

security, in my view, is now liable to be enforced. On a query from the court,

Mr. Khan submits that the aforesaid flats are still not encumbered in view of

the undertaking.

5. Accordingly, I am of the view that it will be appropriate that the Court

Receiver, High Court, Bombay is appointed in respect of the two suit flats, as

sought in prayer clause 13(d) of the IA. Accordingly, I pass the following

order :-

(i) The Court Receiver, High Court, Bombay is appointed as

Receiver of the two flats mentioned in clauses 4(a) and

4(b) of the Consent Terms dated 21st January 2020.

(ii) Receiver shall take possession of the two flats on 22 nd

October 2021.

(iii) Applicant-decree holder and the respondents-judgment

debtors waive service of notice of the appointment that

18-IAL-23015-2021.doc Dixit the Receiver shall fix on 22nd October 2021 at 12:00

noon at site.

(iv) Copy of this order shall be served by the applicant-

decree holder's Advocate on the Court Receiver.

(v) Initial deposit shall also be made, failing which the

Receiver will not be obliged to take possession of the

flats, as directed.

(vi) In the meantime, till the Receiver takes possession, there

will be an ad-interim injunction restraining the

respondents-judgment debtors from dealing with the

suit flats, described in clauses 4(a) and 4(b) of the

Consent Terms, in any manner.

(vii) Liberty to apply after the Receiver takes possession of

the suit flats.

(viii) Report of the Receiver shall be made not later than 28 th

October 2021.

                                                                                             (A.K. MENON, J.)




        Digitally signed

SNEHA                      18-IAL-23015-2021.doc
        by SNEHA
        ABHAY DIXIT
ABHAY   Date:

                           Dixit
        2021.10.13
DIXIT   14:03:45
        +0530