Bombay High Court
Pramod Makharia vs Laxmidevi Makharia And 3 Ors on 19 April, 2022
Bench: B.P. Colabawalla
17.IA(L).4835.2021.docx
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
GANESH
GANESH
SUBHASH
SUBHASH
LOKHANDE
LOKHANDE Date:
ORDINARY ORIGINAL CIVIL JURISDICTION
2022.04.21
13:30:11
INTERIM APPLICATION NO. 4835 OF 2021
+0530
IN
EXECUTION APPLICATION (L) NO. 1265 OF 2019
IN
SUIT NO. 2723 OF 2007
Pramod Makharia ..Applicant
IN THE MATTER BETWEEN
Pramod Makharia .. Decree Holder
(Org. Plaintiff)
Vs.
Laxmidevi Makharia & Ors. .. Judgment Debtors
(Org. Defendants)
P. H. Jaggi, for the Applicant.
Surin Usgaonkar, Ashok Goel & Vikram Goel, for Respondent Nos. 2(a) to
2(d).
Feroze Patel a/w Vibha Joshi i/b. Zunjarrao & Co. for Respondent Nos. 3
and 4.
CORAM:- B. P. COLABAWALLA,J.
DATE :- APRIL 19, 2022.
P. C.:
1. Though the above Interim Application is shown on board
today for directions, the same has been pressed for ad-interim reliefs in
terms of prayer clauses (e) & (f) which read thus:-
"(e) This Hon'ble Court be pleased to appoint Court Receiver, HC,
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Bombay as receiver of the property (Andheri) with all
powers under Order 40 of the CPC 1908 including the power
of sale (to pass necessary orders and/or directions directing
that the Court Receiver, High Court Bombay be appointed in
connection with the property) i.e. Oshiwara, Andheri i.e. A-
14, Veera Desai Industrial Estate, CTS No. 685, on Veera
Desai Road, at Village Oshiwara, Andheri (West), Mumbai-
400 053 ("suit property");
(f) That this Hon'ble Court be pleased to pass an order of
injunction restraining the Judgment Debtors in any manner
dealing with from disposing of and/or creating any third
party right, title and interest in connection with their assets,
moveable / immoveable to the extent of the claim amount
under the execution application;"
2. The entire Execution Application proceeds on the basis that
the liability owed by the Plaintiff to Kotak Mahindra Bank Ltd. (in the
sum of Rs.3,65,36,577/-) and to Bank of India (in the sum of Rs.
45,87,388/-) were to be cleared by Defendant Nos. 2 to 4 under the
Consent Terms dated 5th December 2007. According to the Plaintiff,
Clause 10 of the Consent Terms casts this liability on Defendant Nos. 2 to
4. Since Defendant Nos. 2 to 4 have not discharged their obligation as
contemplated under Clause 10 of the Consent Terms, the present
Execution Application is filed. In this Execution Application, the above
I.A. is taken out inter alia seeking the appointment of a Court Receiver
(amongst other reliefs).
3. I have heard the learned counsel appearing on behalf of the
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Plaintiff as well as the learned advocates appearing on behalf of
Defendant Nos. 2(a) to 2(d) as well as Defendant Nos. 3 & 4.
4. The issue really in the present matter is the interpretation of
the Consent Terms dated 5th December 2007. According to me, the
relevant portions of these Consent Terms, at least to decide the present
controversy, are Clauses 2, 3, 4 & 10 which read thus:-
"(2) Defendants Nos. 2, 3 and 4 have pursuant to the Award
dated 7th April 2004, Exhibit "R" to the Plaint, discharged
the following debts due and owing by the various firms in
which the Plaintiff and his wife and Defendants Nos. 1 to
5 and 10 or two or more of them are partners, or the
repayment of which is guaranteed by one or the other of
the Plaintiff and his wife and the Defendants Nos. 1 to 5
and 10, viz.
Name of Borrower Name of Lending Amount paid to
Bank Bank in settlement
(Rs.)
---------------------- --------------------- -------------------
Makson Auto Hirers Greater Bombay 56,76,000/-
Co.op Bank Ltd.
Uniter Bank of
India 27,76,000/-
Asian Travels United Bank of 13,53,750/-
India
Saraswat Co.op
Bank Ltd. 34,08,302/-
---------------
1,32,14,052/-
=========
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Defendants Nos. 2, 3 and 4 have obtained a "No Dues'.
Certificate in respect of the aforesaid debts from the
concerned Banks and have furnished copies thereof to the
Plaintiff.
(3) The Defendants Nos. 3 and 4 have already discharged the
claims of N.K.G.S.B. Bank in respect of monies advanced
by the Bank to the Defendant No. 3 and obtained the No
Dues Certificate in respect thereof. The Defendant No. 2
shall discharge the claims of the said Bank against the firm
of Messrs. Car Rental Services and shall obtain a No Dues
Certificate in respect thereof which 2 (two) weeks from
the date hereof.
(4) The liability to settle the claims of Mr. Mansingka and Mr.
Gaurav Gupta and to refund the deposit paid by him to
the firm of Messrs. Asian Travels shall be of the
Defendants Nos. 2 to 4, and the Plaintiff or his family
members or the Defendant No. 1 shall not be liable to pay
or discharge any part thereof.
*************
(10) In consideration of the several covenants on the part of
the Plaintiff, and in consideration of the Plaintiff affirming
the Settlement Agreement dated 20th January 2004,
Exhibit "U" to the Plaint and the Award dated 7th April
2004, Exhibit "R" to the Plaint, and in consideration of the
Plaintiff withdrawing the several allegations contained
and claims made in the Plaint, and in consideration of the
Plaintiff recognising the Defendants Nos. 2, 3 and 4 solely
and exclusively entitled to the said property more
particularly described in Exhibit "C" to the Plaint, the
Defendant No. 2 has, as and by way of the settlement of
the claims of the Plaintiff and his family members,
whatever the same be, to the property more particularly
described in Exhibit "C" to the Plaint, agreed to pay to the
Plaintiff a lumpsum amount of Rs. 30,00,000/- (Rupees
thirty lacs only), which the Plaintiff has agreed to accept
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on behalf of himself and his family members in full
settlement of their claims. The Defendant No. 2 has prior
to the execution of these terms paid a said sum of Rs.
30,00,000/- (Rupees thirty lacs only) to the Plaintiff, by a
Bankers' Cheque drawn in favour of the Plaintiff. The said
amount is paid to the Plaintiff in addition to the
Defendants Nos. 2, 3 and 4 discharging the several
liabilities to the various banks and settling the claims of
Mr. Gaurav Gupta as more particularly referred to
hereinabove."
(emphasis supplied)
5. As can be seen from the above reproduction, Clause 2 of the
Consent Terms contemplates the discharge of the debts of certain Banks
by Defendant Nos. 2, 3 & 4 as more particularly set out therein. The
Consent Terms also state that Defendant Nos. 2, 3 & 4 have obtained a
No Dues Certificate in respect of the debts owed to those concerned
Banks.
6. Clause 3 records that Defendant Nos. 3 and 4 have already
discharged the claims of N.K.G.S.B. Bank in respect of the monies
advanced by the said Bank to Defendant No. 3 and a No Dues Certificate
is already obtained in respect thereof. As far as Defendant No. 2 is
concerned, the said Clause 3 contemplates that Defendant No. 2 shall
discharge the claims of the said N.K.G.S.B. Bank against the firm of M/s
Car Rental Services and shall obtain a No Dues Certificate in respect
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thereof within two weeks from 5th December 2007.
7. Clause 4 of the Consent Terms casts a liability on Defendant
Nos. 2 to 4 to settle the claims of Mr. Mansingka and Mr. Gaurav Gupta.
The said Clause further contemplates that the Plaintiff or his family
members or Defendant No. 1 shall not be liable to pay or discharge any of
those claims or any part thereof.
8. Thereafter, Clause 10 of the Consent Terms, and which is the
contentious Clause between the parties, states that in consideration of the
Plaintiff affirming the Settlement Agreement dated 28th January, 2004
and the Award dated 7th April, 2004, and in consideration of the Plaintiff
withdrawing the several allegations contained, and claims made in the
plaint, and in consideration of the Plaintiff recognizing Defendant Nos. 2,
3 and 4 to be solely and exclusively entitled to the property described in
Exhibit "C" to the plaint, Defendant No. 2, by way of settlement of the
claims of the Plaintiff and his family members, whatever the same may
be, has agreed to pay to the Plaintiff a sum of Rs. 30,00,000/- which the
Plaintiff has agreed to accept on behalf of himself and his family members
in full settlement of all their claims. The said Clause 10 further records
that Defendant No. 2, has prior to the execution of the Consent Terms,
paid a sum of Rs. 30,00,000/- to the Plaintiff by Bankers Cheque drawn
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in favour of the Plaintiff. Clause 10 of the Consent Terms further clarify
that the said amount of Rs. 30,00,000/- paid to the Plaintiff is in addition
to Defendant Nos.2, 3 and 4 discharging the several liabilities to various
Banks and settling the claims of Mr. Gaurav Gupta "as more particularly
referred to hereinabove".
9. When one reads Clause 10 in its entirety along with the other
Clauses of the Consent Terms, prima facie it would appear that the
liability of Defendant Nos.2, 3 & 4 to discharge the dues of the Banks,
were the dues of the Banks listed in Clause 2 of the Consent Terms. The
Consent Terms do not contemplate payment by Defendant Nos.2, 3 & 4
(for and on behalf of the Plaintiff or his family members) to any other
Bank. If the Plaintiff has to pay the dues of any Bank, other than what is
mentioned in Clause 2, then, for those debts/outstandings, the Plaintiff
is liable. I say this for more than one reason. Firstly, Clause 10 itself
contemplates that Defendant Nos. 2, 3 and 4 were to discharge the
liability to various Banks as more particularly referred to earlier in the
Consent Terms. Secondly, the claim which is now made by the Plaintiff in
relation to the dues owed to Kotak Mahindra Bank Ltd. (in the sum of Rs.
3.65 Crores), was admittedly a loan taken by the Plaintiff in the year 2006
not from any Bank but from City Financial Consumer, Finance India
Limited. This entity is certainly not a Bank. These debts owed by the
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Plaintiff were thereafter assigned by the said entity to Kotak Mahindra
Bank Ltd. sometime in the year 2013. It is therefore clear that on the date
of the signing of the Consent Terms the dues payable by the Plaintiff to
City Financial Consumer, Finance India Limited were not any dues owed
to any Bank. This is another factor which goes to indicate that the Banks
referred to Clause 10 of the Consent Terms were the Banks which are
listed in Clause 2 thereof and not any other Bank. If the Plaintiff has taken
loans from any other Banks or other entities, the liability to discharge
those loans would fall upon the Plaintiff and the Consent Terms do not
contemplate that those loans are to be paid by Defendant Nos. 2 to 4.
10. Once this is the interpretation I have taken, I do not think
that any prima facie case is made for granting any ad-interim relief. The
prayers for ad-interim relief are accordingly rejected.
11. The Defendants shall file their Affidavit-in-Reply to the
above Interim Application on or before 10th May 2022 and serve a copy
of the same on the Advocates for the Applicant. If the Applicant wants to
file any Affidavit-in Rejoinder, he may so by filing the same on or before
24th May 2022 and serve a copy of the same on the Advocates for the
Defendants. Place the above Interim Application on board for hearing
and final disposal in the usual course.
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12. This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
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