Bombay High Court
Advance Commercial Co. Ltd vs Pravin Jain on 4 May, 2022
Bench: B.P. Colabawalla
crr.38.22..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ANJALI Digitally signed by
ANJALI TUSHAR
COURT RECEIVER'S REPORT NO. 38 OF 2022
TUSHAR ASWALE
IN
Date: 2022.05.05
ASWALE 11:55:01 +0530
CHAMBER SUMMONS NO. 471 OF 2018
IN
EXECUTION APPLICATION NO. 1022 OF 2018
IN
WRIT PETITION NO. 922 OF 2015
WITH
EXECUTION APPLICATION NO. 1022 OF 2018
IN
WRIT PETITION NO. 922 OF 2015
Advance Commercial Co Ltd ..Petitioner/Applicant
Vs.
Pravin Jain ..Respondent
Ms. Mamta Sadh a/w Kainaz Irani, Abhishek Bhaduri, for the
Applicant.
Mr.Karl Tamboly a/w Kausar Banatwala, Gauri Sakhardande i/b
Tushar Goradia, for the Respondent.
Mr. S. K. Dhekale, OSD, Court Receiver is present.
CORAM:- B. P. COLABAWALLA,J.
DATE :- MAY 4, 2022.
P. C.:
By an Order dated 15 th March 2022, it was agreed that if the
Goods and Services Tax (GST) is applicable with interests and penalties,
if any, on account of the amounts being received by the Judgment
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Creditor in lieu of surrendering the Tenancy rights in respect of the 1 st
Floor Saroosh Building 251 Dr. D.N Road, Fort, Mumbai-400001 in
favour of the Judgment Debtor, the Judgment Debtor shall be liable to
pay the same subject to the entitlement of the Judgement Debtor to take
steps and/or challenge the demand made in accordance with law.
2 By consent of the Judgment Debtor and the Judgment
Creditor, the following order is passed:
3 The amount of Rs.10,50,00,000/- received towards the
sale proceeds of the land situated at Dr. D.N. Road, bearing Survey
No.767 and which is deposited by M/s Velma Industries with the
Learned Court Receiver shall be apportioned in the following manner by
the office of the Court Receiver immediately on passing of the present
order:
a. An amount of Rs.5,75,00,000/- shall be paid to the Judgment
Creditor in the bank account of the Judgment Creditor being
Account No.000120100000077 maintained with Bank of India,
Mumbai Branch, IFSC code - BKID0000001;
b. An amount of Rs. 3,21,200/- shall be paid to the Judgment
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Creditor as and by way of refund of amounts paid by the Judgment
Creditor to the Learned Court Receiver in the bank account of the
Judgment Creditor being Account No.000120100000077
maintained with Bank of India, Mumbai Branch, IFSC code -
BKID0000001;
c. An amount of Rs.12,85,100/-shall be paid to the Learned Court
Receiver towards the balance charges of the Learned Receiver;
d. An amount of Rs.1,43,75,000/- shall be retained by the Learned
Court Receiver as directed by this Hon'ble Court by its Order dated
20th April 2022 passed in Interim Application No.1405 of 2022 in
Commercial Suit No.175 of 2021.
e. The balance amount shall be released in favour of the Judgment
Debtor.
4 The Judgment Debtor agrees and undertakes to this
Hon'ble Court to pay an amount of Rs.1,03,50,000/- towards the GST
on account of surrender of the tenancy rights in respect of the first floor
of Saroosh Building 251 Dr. D.N Road, Fort, Mumbai 400 001 within a
period of 15 ( fifteen) days from the receipt of the balance amount as
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stipulated in clause 3(e) above and shall share the proof of the payment
of the GST with the judgment creditor and the office of the Court
Receiver. The Judgment Debtor shall be entitled to take benefit of the
Input Tax Credit thereof. It is the case of the Judgment Debtor that
there is no liability to pay GST on the aforesaid transaction of surrender
of tenancy rights. It is, therefore, clarified that once the payment is
made by the Judgment Debtor of Rs.1,03,50,000/- towards GST, the
Judgment Debtor shall be entitled to canvass this proposition in
appropriate proceedings and if found to be of any merit, seek a refund
of the said amount. It is, however, clarified that under any
circumstances, the liability to pay GST would be that of the Judgment
debtor and not that of the Judgment Creditor.
5 The Judgment Creditor agrees and undertakes to this
Hon'ble Court to execute the Deed of Surrender within a period of 15
days from the receipt of the proof of payment of GST and receipt of Rs.
5,75,00,000/- from the office of the Court Receiver in favour of the
Judg. Debtor thereby surrendering all its tenancy and possessory rights
of the entire area of 1st floor of Saroosh Building. In view thereof, the
Judg. Debtor is entitled to get the tenancy and possessory rights of the
entire area of 1st floor of Saroosh Building. The draft Deed of Surrender
is tendered to the Court today and taken on record and marked "X" for
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identification. The stamp duty and registration charges shall be borne as
per the Memorandum of Understanding dated 28 th August 2017 i.e. 50
% each.
6 All parties have agreed that the liability to pay income tax, if
any, shall be borne by the respective parties and no liability for
deduction of TDS shall be foisted upon the Court Receiver. On the
parties paying their respective tax, proof of such payment shall be
furnished to the office of the Court Receiver.
7 It is further made clear that the parties shall indemnify the
Court Receiver from any claim made by any authority to the Court
Receiver for any monetary claim.
8 The Court Receiver has also brought to my attention that
there are certain property taxes that have to be paid out of the sale
proceeds to the MCGM up to the date of confirmation of sale of the suit
property. Mr. Tamboly, the learned counsel appearing on behalf of the
Judgment Debtor, has undertaken to the Court that the liability to pay
the property taxes up to the date of confirmation of sale shall be paid by
the Judgment Debtor and the said liability need not to be foisted upon
the Court Receiver. In these circumstances, it is ordered that the
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municipal taxes and other property taxes of the suit property upto the
date of sale (i.e.upto 8th April, 2022) shall be paid by the Judgment
Debtor within a period of two weeks from today.
9 The Execution Application along with all pending
applications, including Court Receiver Report No.38 of 2022 are
disposed of with liberty to parties to apply.
10 This order is passed without prejudice to the rights and
contentions of the parties in Commercial Suit No 175 of 2021 titled as
Advance Commercial Company Limited v/s Pravin Jain pending in this
Court.
11 No order as to costs.
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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