Bombay High Court

Mangesh Tukaram Sawant vs Prathamesh Pooja Chsl And Ors on 29 April, 2022

Bench: R. I. Chagla

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LAIQUEE
FAROOQUI
Digitally signed by
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Date: 2022.04.30
17:43:31 +0530
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION

                                INTERIM APPLICATION (L) NO.24587 OF 2021
                                                  IN
                                          SUIT NO.523 OF 2017


                      Mangesh Tukaram Sawant                ...Applicant

                      In the matter between:-

                      Prathamesh Pooja CHSL and             ...Plaintiffs
                      Ors.

                             Versus

                      Municipal Corporation of              ...Defendants
                      Greater Mumbai & Ors.

                                                   ----------
                      Mr. Mayur Khandeparkar a/w Mr. Sachin Mhatre and Mr.
                      Rochale Fernandes for the Applicant.
                      Mr. Anuuj N. Narula i/by M/s. Jhangiani, Narula & Associates
                      for Plaintiff.
                                                   ----------
                                                   CORAM : R. I. CHAGLA J

                                                   DATE         : 29th APRIL 2022

                      P.C.

                      1.        Heard learned counsel for the parties.

                      2.        By this Interim Application, the Applicant is seeking

                      permission to temporary withdraw his passport from the

                      custody of the Prothonotary and Senior Master of this Court on



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the ground that the Applicant, who is Defendant No.4 in

disposed of Suit No.523 of 2017 is to travel to attend the PhD.

Graduation ceremony of his daughter in the USA.


3.        The Applicant/Original Defendant No.4 has stated

that, he has been unable to visit his daughter since the last

three years due to his passport being in the custody of the

Prothonotary    and   Senior   Master    of        this   Court.     The

Applicant/Original    Defendant   No.4       has     therefore     sought

temporary withdrawal of his passport from the Prothonotary

and Senior Master of this Court for this limited purpose and has

submitted that upon returning to India, he shall once again

submit his passport into the custody of the Prothonotary and

Senior Master of this Court.


4.        Mr. Khandeparkar, learned counsel appearing for the

Applicant/Original    Defendant       No.4     has        tendered    an

undertaking on behalf of the Applicant/Original Defendant No.4

dated 27th April 2022. The Applicant/Original Defendant No.4

has undertaken to submit detail schedule of traveling, address

in the USA, place of residence and contact numbers. He has

stated that he is traveling to Orlando (U.S.A.) on 4 th May 2022

to attend the PhD Graduation ceremony of his daughter-Ms.

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Sailee Mangesh Sawant which is to be held on 7 th May 2022. He

has declared and undertaken that he shall be residing for the

period of approximately eight weeks and he will return from

Orlando (U.S.A.) on 28th June 2022.      He has undertaken to

adhere to the schedule of traveling, the addresses in the USA as

well as the terms of the itinerary. The itinerary and fight

tickets has been set out in Annexure-1 to the Affdavit of

undertaking. He has undertaken that he is traveling only for

the purpose of attending the Graduation ceremony of his

daughter and will not fee from India or from the jurisdiction of

this Court and will not stay beyond the duration of his trip

outside India. He has undertaken to submit/return his passport

to the custody of this Court within seven days after return to

India.    The undertaking on behalf of the Applicant/Original

Defendant No.4 is taken on record.


5.        Mr. Khandeparkar has also tendered an additional

Affdavit on behalf of the Applicant dated 26 th April 2022,

which is also taken on record.


6.        He has further tendered an Affdavit-of-rejoinder on

behalf of the Applicant to the Affdavit-in-reply fled by

Defendant Nos.1 and 2, dated 1st April 2022 which is also taken

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on record.


7.        Mr. Khandeparkar has referred to the order of this

Court dated 1st August 2018, by which this Court had recorded

the apprehension of the Plaintiff's that Defendant Nos.4 and 5

may permanently leave the country upon which Defendant

No.4 had stated that he shall deposit his passport in Court

which may be retained by the Court until further orders.

Defendant No.4 accordingly tendered/deposited his passport on

2nd August 2018 and Prothonotary and Senior Master has been

keeping in safe custody the passport of Defendant No.4 till

today.


8.        Mr. Khandeparkar has thereafter referred to Consent

Terms which have been entered into between the parties in Suit

No.523 of 2017 and which is dated 22nd October 2018. In clause

10 of the Consent Terms, it was agreed between the parties that

the passport of Defendant No.4 deposited in the offce of this

Court pursuant to order dated 1st August 2018 shall be

returned to Defendant No.4 by the Prothonotary and Senior

Master of this Court only after issuance of Occupation

Certifcate by the Municipal Corporation (MCGM) upon

compliance of all necessary conditions and requisitions by

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Defendant Nos.3 to 6 and after taking a written confrmation to

this effect from Defendant No.1's advocate. The Consent Terms

were taken on record by this Court vide order dated 22 nd

October 2018 and the Suit No.523 of 2017 was disposed of and

decreed in terms of the Consent Terms.


9.        Mr. Khandeparkar has submitted that the Plaintiff-

society though aggrieved by the non-compliance of the consent

decree by the Defendants has not taken out any execution

proceedings. He has submitted that the return of passport

which has been sought for by the Applicant/Original Defendant

No.4 is only for temporary restitution of property by providing

security by way of deposit of passport of another partner of

Defendant No.3-Partnership frm of which the Applicant/

Defendant No.4 is also a partner as well as deposit of the

passport of the brother of the Applicant/Original Defendant

No.4 with the Prothonotary and Senior Master of this Court. He

has relied upon Order XXI, Rule 26 of the Code of Civil

Procedure (CPC) in this context. He has submitted that though

this provision is with regard to the execution of the decree and

particularly where the Court has the power to order inter alias

restitution of property of the judgment debtor by requiring


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such security from, or impose such condition upon the

Judgment debtor as it deems ft. He has submitted that this

Court has inherent jurisdiction to order restitution akin to

Order XXI Rule 26. In this case by requiring security by way of

deposit of passport of another partner of Defendant No.3-

Partnership frm with the Prothonotary and Senior Master of

this Court by temporarily restituting/restoring the passport

submitted by the Applicant/Defendant No.4 who is also partner

of Defendant No.3-Partnership frm. The passport had at the

frst instance been deposited by the Applicant/Defendant No.4

till further orders and thereafter by the Consent Terms till

obtaining of Occupancy Certifcate and compliance of all

necessary conditions and requisitions by Defendant Nos.3 to 6

and written confrmation of Defendant No.1's Advocate.

Defendant Nos.4 to 6 are the partners of Defendant No.3-

Partnership frm.       He has submitted that the passport is

temporary required by the Applicant/Defendant No.4 for the

aforementioned purpose of travel and will be re-submitted as

soon as the Applicant/Defendant No.4 returns to India with the

offce of this Court.




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10.       Mr. Khandeparkar has relied upon the decision of the

Supreme Court in Periyakkal (Smt) and Ors. Vs. Dakshyani

(Smt), (1983) 2 SCC 127, wherein the Supreme Court has held

that where there is a compromise entered into between the

parties and the Court has passed an order in terms of the

compromise, the Court has the jurisdiction to extend time for

deposit stipulated by the parties as it becomes the time allowed

by the Court. This would be exercised in rare cases to prevent

manifest injustice. The Court would not rewrite the contract

between the parties but the Court would relieve against a

forfeiture clause. Where the contract of parties has merged in

the order of this Court, the Court's freedom to act to further

ends of justice would surely not stand curtailed.


11.       Mr. Khandeparkar has accordingly submitted that in

the present case, the Applicant/Original Defendant No.4 is not

seeking rewriting of the Consent Terms entered into between

the parties but is only seeking temporary restitution/

restoration of the security being the passport which is

deposited by the Applicant/Defendant No.4 with offce of this

Court by substituting it with the passport of another partner of

the Defendant No.3-Partnership frm only till the Applicant/


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Defendant No.4 returns to India from attending his daughter's

Graduation ceremony and again submits his passport to the

offce     of   this   Court.   He      has    submitted   that   the

Applicant/Original Defendant No.4 also agrees to forfeit a sum

of Rs.50,00,000/- which is lying in escrow with the Plaintiff's

Advocate in the event he fails to abide by his undertaking given

to this Court as provided in the undertaking dated 27 th April

2022, which has been taken on record.


12.        Mr. Narula has vehemently opposed the grant of any

relief in the present Application.           He has submitted that

Applicant/Original Defendant No.4 is habitually in breach of

orders of this Court including non-compliant with the consent

decree which had been passed by this Court. He has submitted

that pursuant to the order passed by this Court dated 1 st

August 2018, which had recorded the statement of the

Applicant/Original Defendant No.4 that he shall deposit his

passport in Court which may be retained by this Court until

further orders, the Applicant/Original Defendant No.4 had

tendered/deposited his passport on 2 nd August 2018 with the

Prothonotary and Senior Master of this Court. He has

submitted that the aforementioned statement and deposit of


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passport by Defendant No.4 was pursuant to the apprehension

expressed by the Plaintiffs that Defendant Nos.4 and 5 may

permanently leave the country. He has relied upon clause 10 of

the Consent Terms whereby the parties had by consent ordered

and decreed that the passport of the Applicant/Original

Defendant No.4 deposited in the offce of this Court, pursuant to

order dated 1st August 2018 shall be returned to Defendant

No.4 by the Prothonotary and Senior Master of this Court only

after issuance of occupation certifcate by the Municipal

Corporation upon compliance of all necessary conditions and

requisitions by Defendant Nos.3 to 6 and after written

confrmation to this effect by Defendant Nos.1's Advocate.


13.       Mr. Narula has further referred to clauses in the

Consent Terms which the Defendant Nos.3 to 6 were in breach

of. He has submitted that the TDR was required to regularize

the extensions made in various fats of the Plaintiffs' building

and for which Defendant Nos.3 to 6 had undertaken to deposit a

sum of Rs.4 Crores in escrow within 30 days of the Consent

Terms which was towards the purchase of TDR and/or payment

of penalty and premiums etc. to MCGM and make arrangement

for further amounts if the amount exceeds Rs.4 Crores within


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the aggregate period of 120 days agreed and undertaken by

Defendant Nos.3 to 6 for obtaining Occupancy Certifcate. He

has submitted that Defendant Nos.3 to 6 are in breach of this

clause and there are several illegalities in the construction of

the subject building committed by Defendant Nos.3 to 6 which

they have failed to regularize and/or comply with necessary

conditions and requisitions as provided for in the consent

decree. He has accordingly submitted that no relief sought for

by the Applicant/Original Defendant No.4 be granted in view of

the Defendant No.4 being in habitual breach of the orders of

this       Court   and   there   is    an   apprehension   that   the

Applicant/Defendant No.4 may not return back after his travel

to the USA.


14.          Mr. Narula has referred to the decisions of this Court

as well as of the Supreme Court which are as follows:


 Sr. No.                              Particulars
      1.     Shri. K. Ramaswamy and Shri. G. B. Pattanaik, JJ.

Suvaran Rajaram Bandekar Vs. Narayan R. Bandekar (1996) 10 SCC 255

2. Shri. K. Ramaswamy and Shri. G. B. Pattanaik, JJ.

Gupta Steel Industries Vs. Jolly Steel Industries Pvt. Ltd. & Anr.

(1996) 11 SCC 678

3. Shri. A. M. Khanwilkar, J.

             State of Goa Vs. Placido Braganza


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          (2002) 1 Mh.L.J 370

15. He has also relied upon the decision of this Court in

M/s. Rachana Developers and Marketing and others Vs. Sonal

Deepak Shah in Notice of Motion No.1487 of 2014 in Summary

Suit No.906 of 2011, whereby this Court had considered the

decision of the Supreme Court in Periyakkal (supra) which has

been relied upon Mr. Khandeparkar and has held that the order

in Periyakkal was passed in an Application under Order XXI

Rule 90 for setting aside sale in execution. The Court in that

case relieved the judgment debtor from the forfeiture resulting

in his failure to pay and granted enlargement of time. It was

held that the case was covered under Section 148 and not

under Order XX Rule 11 of the Code of Civil Procedure, 1908.

Accordingly, a distinction had been drawn and it was held by

this Court in the facts of the case that a clause providing for

execution of a decree for the entire decretal amount on failure

of payment of a concessional amount within a stipulated time is

not in the nature of penalty or forfeiture and there is no

question of their Court relieving the Judgment debtor of its

consequences. This Court rejected the application for extension

of time sought for by the Applicant.

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16.       Mr.   Narula   has   by      placing   reliance   on   the

aforementioned decisions has submitted that it is well settled

that a compromise decree cannot be interfered with or modifed

by the Court unless the parties agree to the same. He has

accordingly submitted that in the present case, this is a

unilateral application made by the Applicant/Defendant No.4 to

modify the consent decree which is clearly impermissible.

17. Having considered the rival submissions, in my view

the present Application is in the nature of temporary

withdrawal of the security as and by way of passport submitted

by the Applicant/Original Defendant No.4 to the offce of this

Court pursuant to the statement of Defendant No.4 and which

was initially till further orders as recorded in the order dated

1st August 2018. By the Consent Terms, the parties to the

above Suit had consented to a decree being passed. In clause 10

which is relevant for the purposes of the Application, the

parties had agreed that the passport deposited with the

Prothonotary and Senior Master pursuant to the order dated

1st August 2018 shall be returned to the Applicant/Defendant

No.4 by the Prothonotary and Senior Master only after

issuance of Occupancy Certifcate by the Municipal Corporation

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upon compliance of necessary conditions and requisitions by

Defendant Nos.3 to 6 and a written confrmation to this effect

by Defendant No.1's Advocate. This was made a decree of the

Court by the order dated 22nd October 2018 and the Suit No.523

of 2021 was disposed of in terms of the Consent Terms entered

into between the parties.

18. It is necessary to note that although the Plaintiffs are

aggrieved by breaches committed by Defendant Nos.3 to 6 in

compliance with the necessary conditions and requisitions

provided for in the Consent Decree, no steps were taken by

Plaintiff in execution of the consent decree and/or in any other

proceedings for enforcement of the consent decree. The

decisions relied upon by Mr. Narula in support of his contention

that a compromise decree cannot be interfered with or modifed

by the Court unless the parties agree to the same will in my

view not apply to the present case as the present application

cannot be considered to be an interference or modifcation of

the compromise decree. I am of the view that the submission of

Mr. Khandeparkar by placing reliance upon Order XXI Rule 26,

though it concerns the power of the execution Court, would

come to the aid of the Applicant/Defendant No.4 in the present

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case. The Court in execution has the power of restitution of

property of the judgment debtor by requiring such security or

imposing such conditions upon the Judgment debtor as the

Court deems ft. Merely by the Plaintiffs non-fling of execution

proceedings, doesn't mean that the power of the Court is taken

away. The Court always has the inherent power under Section

151 of the Code of Civil Procedure, 1908 to pass such orders as

contemplated in Order XXI Rule 26, in the interest of justice.

19. The decision relied upon by Mr. Khandeparkar in

Periyakkal (supra), is a case where the Supreme Court had

considered that a case where a compromise was entered into

between the parties and the Court had made an order in terms

of compromise. The Supreme Court held that the time for

deposit stipulated by the parties became the time allowed by

the Court and gave the Court jurisdiction to extend time in

suitable case. This would be granted in rare cases to prevent

manifest injustice. The Court would not rewrite the contract

between the parties, but the Court would relieve against a

forfeiture clause.

20. Having considered the decision of Supreme Court in

Periyakkal (supra), I am not inclined to accept that in no case

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can the Court who has made an order in terms of the

compromise, relax a certain condition in the compromise

decree, particularly considering that the relaxation is in the

nature of temporary restitution of the security i.e. the passport

of the Applicant/Defendant No.4 by requiring an alternate

security i.e. the passport of another partner of Defendant No.3-

Firm to be deposited to safeguard the rights of the Plaintiffs,

particularly considering that it is the Defendant No.3-

Partnership frm through its partners Defendant Nos.4 to 6

who are responsible for obtaining the Occupation Certifcate

and complying with the necessary conditions and requisitions

in the consent decree.

21. In view thereof, I am inclined to grant of relief sought

for by the Applicant/Original Defendant No.4 by passing the

following order:-

(i). The undertaking on behalf of the Applicant/Original

Defendant No.4 dated 27th April 2022, is accepted

with slight modifcation, namely that the

Applicant/Original Defendant No.4 shall return from

the USA within a period of four weeks from his

departure on 4th May 2022 for attending the

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graduation ceremony of his daughter Ms. Sailee

Mangesh Sawant, which is scheduled to be held on 7th

May 2022. The revised itinerary shall be furnished to

this Court prior to his departure on 4th May 2022. The

passports of the brother of the Applicant/Original

Defendant No.4 namely Mr. Pandit Tukaram Sawant

alongwith the passport of other partner of the

Defendant No.3-partnership frm namely Mr. William

J. Mani shall be submitted to the Prothonotary and

Senior Master of this Court in the course of the day in

exchange for the passport of the Applicant/Original

Defendant No.4.

(ii). The Applicant/Original Defendant No.4 shall further

undertake that in the event there is any breach of the

undertakings furnished to this Court dated 27th April

2022 as modifed by this order, the Applicant/Original

Defendant No.4 shall forfeit a sum of Rs.50,00,000/-

which is in escrow with the advocate for the Plaintiffs.

(iii). It is made clear that upon return from the USA, the

Applicant/Original Defendant No.4 shall re-submit his

passport with the Prothonotary and Senior Master of

this Court within a period of seven days from the date

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of his return. This is provided that the Occupation

Certifcate is not obtained till then and in the event the

Occupation Certifcate is obtained before the period of

seven days of return of Applicant/Original Defendant

No.4, then this Court shall take note of the Occupation

Certifcate being obtained and shall pass appropriate

orders with regard to the return of the passport of the