Bombay High Court
Pramod Makharia vs Laxmidevi Makharia And 3 Ors on 29 April, 2022
Bench: B.P. Colabawalla
5.IA(L).4835.2021.doc
GANESH
SUBHASH
LOKHANDE
Digitally signed by
GANESH SUBHASH
LOKHANDE
Date: 2022.04.30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
17:45:06 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) 4835 OF 2021
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
Daksha Parmar i/b P.H. Jaggi for the Applicant.
Surin Usgaonkar, Ashok Goel & Vikram Goel for Respondent No. 2a to
2d.
Vibha Joshi i/b. Zunjarrao & Co. for Respondent Nos. 3 & 4
CORAM:- B. P. COLABAWALLA,J.
DATE :- APRIL 29, 2022.
P. C.:
1. This application is made for speaking to the minutes of the
order dated 19th April, 2022. In the cause title of the order it has been
pointed that the Interim Application number is wrongly mentioned as
Utkarsh page 1 of 11
5.IA(L).4835.2021.doc
"INTERIM APPLICATION NO. 4835 of 2021" when actually it should
be "INTERIM APPLICATION (L) NO. 4835 of 2021".
2. In these circumstances, in the cause title of the order dated
19th April, 2022, "INTERIM APPLICATION NO. 4835 of 2021"
shall be substituted with "INTERIM APPLICATION (L) NO. 4835
of 2021".
3. No other correction is sought. The correction shall be
carried out in the original order as well as in the copy uploaded on the
server.
4. Application for speaking to the minutes is accordingly
disposed of.
5. 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. )
For the sake of convenience the original order dated 19 th April, 2022 (as
corrected) is reproduced as under:-
Utkarsh page 2 of 11
5.IA(L).4835.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 4835 OF 2021
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
Utkarsh page 3 of 11
5.IA(L).4835.2021.doc
terms of prayer clauses (e) & (f) which read thus:-
"(e) This Hon'ble Court be pleased to appoint Court Receiver,
HC, 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
Utkarsh page 4 of 11
5.IA(L).4835.2021.doc
(amongst other reliefs).
3. I have heard the learned counsel appearing on behalf of the
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/-
---------------
Utkarsh page 5 of 11
5.IA(L).4835.2021.doc
1,32,14,052/-
=========
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 20 th January
2004, Exhibit "U" to the Plaint and the Award dated
Utkarsh page 6 of 11
5.IA(L).4835.2021.doc
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 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
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
Utkarsh page 7 of 11
5.IA(L).4835.2021.doc
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
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 28 th January,
Utkarsh page 8 of 11
5.IA(L).4835.2021.doc
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 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
Utkarsh page 9 of 11
5.IA(L).4835.2021.doc
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 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
Utkarsh page 10 of 11
5.IA(L).4835.2021.doc
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 10 th 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.
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. )
Utkarsh page 11 of 11
