Bombay High Court
Abhishek S.Jhaveri And 2 Ors vs Zodiac Developers(P) Limited on 23 August, 2022
Bench: B.P. Colabawalla
23.ia.3065.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GANESH ORDINARY ORIGINAL CIVIL JURISDICTION
SUBHASH
LOKHANDE
Digitally signed by
GANESH SUBHASH
LOKHANDE
Date: 2022.08.26
10:08:14 +0530
INTERIM APPLICATION NO. 3065 OF 2022
IN
EXECUTION APPLICATION (L) NO. 10061 OF 2022
IN
SUIT NO. 1280 OF 2019
Abhishek S. Jhaveri & Ors. .. Applicants
IN THE MATTER BETWEEN:
Abhishek S. Jhaveri & Ors. .. Decree Holder/Plaintiffs
Vs.
Zodiac Developers (P) Ltd .. Judgment Debtor/
Defendant
Mehul A. Shah for Applicant.
CORAM:- B. P. COLABAWALLA,J.
DATE :- AUGUST 23, 2022.
P. C.:
1. The above Interim Application is filed seeking to dispense
with the office objection regarding the non-issuance of notice under
Order XXI Rule 22 of the Code of Civil Procedure, 1908 and for a
direction to the Execution Department to register the Execution
Application.
Utkarsh page 1 of 5
23.ia.3065.2022.doc
2. The aforesaid office objection is taken by the department
because the Consent Terms sought to be executed of dated 3rd October,
2019 and the Execution Application is filed only on 29 th March, 2022
which is beyond the period of 2 years from the date of the Consent
Terms, namely 3rd October, 2019. Hence the office objection.
3. The learned advocate appearing on behalf of the Applicant
submitted that the above Consent Terms/Decree, which is sought to be
executed in the above proceedings, became executable only on 9 th June,
2020. Considering that the above Execution Application is filed on 29th
March, 2022, the same is within 2 years from the date when the Consent
Decree became executable.
4. Without prejudice to the aforesaid argument, the learned
advocate submitted that in any event, even if 2 years are computed from
the date of the Consent Decree, in view of the order passed by the
Hon'ble Supreme Court dated 23rd September, 2021 in Misc. Application
No. 665 of 2021 in SMW (C) No. 3 of 2020, the period from 15 th March,
2020 till 2nd October, 2021 is to be excluded from the period of
limitation. This being the case the above Execution Application is clearly
filed within 2 years from the date of the Consent Decree dated 3 rd
Utkarsh page 2 of 5
23.ia.3065.2022.doc
October, 2019. He therefore submitted that there was no merit in the
office objection and consequently, the above Interim Application be
allowed in terms of prayer clause (a).
5. I have heard the learned counsel for the party at some
length. I have also perused the Consent Terms. Under the Consent
Terms, the 1st amount due thereunder was a sum of Rs. 10,00,000/-
which was payable on the signing of the Consent Terms. This has been
done. The balance amount of Rs. 2,90,00,000/- was to be paid in the
manner as set out in the Consent Terms, namely,:
(a) A sum of Rs. 1,40,00,000/- (One Crore Forty Lakhs Only)
was to be paid in 11 equal monthly installments from 1 st May,
2020 to 1st March, 2021, and;
(b) the balance of Rs. 1,50,00,000/- (One Crore Fifty Lakhs
Only) was to be paid on 1st April, 2021.
6. It is not in dispute that the installment due on 1 st May, 2020
was not paid and as per clause 5 of the Consent Terms the Plaintiff gave
notice to the Defendant (dated 26 th May, 2020) to cure the default
within a period of 2 weeks from the date of the said notice. This also was
not complied. From these facts it is quite clear that the Consent Decree
Utkarsh page 3 of 5
23.ia.3065.2022.doc
dated 3rd October, 2019 became executable only on 9 th June, 2020. This
being the case the Execution Application is clearly filed within 2 years
from when the decree became executable and there would be no
requirement for issuing a notice under Order XXI Rule 22 of the Code of
Civil Procedure, 1908.
7. This apart, I find that even as per the order passed by the
Hon'ble Supreme Court (dated 23 rd September, 2021), under which the
period from 15th March, 2020 till 2nd October, 2021 is excluded for the
purpose of limitation, the above Execution Application is filed within 2
years from the date of the Consent Decree itself. In these circumstances,
I find that the Execution Department has wrongly taken an objection of
non issuance of notice under Order XXI Rule 22 of the Code of Civil
Procedure, 1908.
8. Accordingly, the Interim Application is allowed in terms of
prayer clause (a) which reads thus:
"(a) That this Hon'ble Court be pleased to dispense with
the office objection of non-issuance of notice under
Order XXI Rule 22 of C.P.C., 1908 and direct
Execution Department to register the Execution
Application and to proceed expeditiously and"
Utkarsh page 4 of 5
23.ia.3065.2022.doc
9. The Interim Application is accordingly disposed of. There
shall be no order as to costs.
10. 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 5 of 5
