Bombay High Court
Alpesh K Ajmera vs Umesh H. Gandhi on 23 March, 2023
Bench: R. I. Chagla
2023:BHC-OS:1875
14-COMEX(L) 598.2019 with COMEX(L) 78.2018.doc
K.S. Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL EXECUTION APPLICATION (L) NO.598 OF 2019
WITH
COMMERCIAL EXECUTION APPLICATION (L) NO.78 OF 2018
Umesh Gandhi ...Applicant/
Judgment Debtor
Versus
Alpesh Ajmera ...Respondent/
Judgment Creditor
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Mr. Rajiv Narulla a/w Ms. Urvi Tanna i/b Pravin Mehta and Mithi &
Co., Advocates for Applicant in COMEX (L)598/2019.
Mr. Amosh Sequeira a/w Mr. Naresh Chheda, Ms. Sakina
Electricwala & Ms. Shruti Rajput i/b A.V. Jain & Associates,
Advocates for Respondent in COMEX (L)598/2019.
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CORAM : R.I. CHAGLA J.
DATE : 23RD MARCH, 2023.
ORDER :
1. The parties in the Commercial Execution Applications have
arrived at a settlement. The Consent Terms dated 18 th March, 2023
are tendered and taken on record and marked 'X' for identification.
The Consent Terms have been signed by the Applicant and Advocate
for Applicant as well as Respondent and Advocates for Respondent.
The signatories to the Consent Terms are present in the Court.
14-COMEX(L) 598.2019 with COMEX(L) 78.2018.doc
2. By these Consent Terms, the Execution Application being
Commercial Execution Application (L) No.598 of 2019 is being
amicably settled between the parties. The first Execution Application
(L) No.78 of 2018 was amicably settled between the parties and
Consent Adjustment of the Award dated 18 th January, 2018 was filed
and this Court passed order dated 18 th January, 2018 in terms of the
Consent Adjustment of the Award. By the first order, the Applicant
was to pay a sum of Rs.45 Lakh to the Respondent in the manner set
out therein and which satisfied the obligation of the Applicant
proportionate to the area of the Flats of which allotments were
cancelled and not based on the value of the Flats.
3. Thereafter, disputes once again arose between the parties
and the Applicants have filed the present Commercial Execution
Application (L) No.598 of 2019. Differences between the parties
were amicably settled by the parties entering into the Consent Terms
on 25th April, 2019 by Consent Adjustment of the Award being the
first order in the present Commercial Execution Application. The
Consent Terms dated 25th April, 2019 was taken on record as per
order dated 30th April, 2019 passed in the present Commercial
Execution Application. By the second order, the present Commercial
14-COMEX(L) 598.2019 with COMEX(L) 78.2018.doc
Execution Application was kept pending for final orders and
compliance.
4. In Clause 9 of the present Consent Terms, the said Consent
Terms dated 25th April, 2019 has been set out. In Clause 10 of the
Consent Terms it is mentioned that out of the amount of Rs.22.05
crores which remained to be paid to the Respondent by the Applicant
out of the total amount of Rs.45 Crores, the Applicant has paid an
amount of Rs.17.05 Crores to the Respondent leaving a balance of
Rs.5 Crores. An Allotment Letter has been executed by the Applicant
in favour of the Respondent dated 2nd May, 2019 for allotment of the
Flat No.206 together with one approved car parking space.
Thereafter, in Clause 13 of the Consent Terms, it is mentioned that
the Applicant has paid the balance amount of Rs.5 Crores prior to the
execution of present Consent Terms and additional sum of Rs.60 Lakh
against cancellation of Flat No.206 and its Car parking in the building
'La Citadel' aggregating to Rs.5,60,00,000/-. Further, after deducting
tax at Source in the amount of Rs.45,60,000/-, net payment made is
of Rs.5,14,40,000/- in full and final satisfaction of the entire claim.
5. In Clause 14 of the Consent Terms, it is mentioned that the
present Commercial Execution Application stands fully satisfied by
14-COMEX(L) 598.2019 with COMEX(L) 78.2018.doc
these Consent Terms and the Respondent shall not have any claims
against the Applicant under the said Award or first order dated 18 th
January, 2018 passed in Commercial Execution Application (L) No.78
of 2018 and second order dated 30 th April, 2019 passed in the
present Commercial Execution Application (L) No.598 of 2019.
6. In Clause 17 of the Consent Terms, it is mentioned that
simultaneously upon execution of the Consent Terms, the Applicant
and the Respondent have executed a Deed of Cancellation, cancelling
the first Allotment Letter. The Respondent has also executed an
Irrevocable Limited Power of Attorney dated 16 th March, 2023 in
favour of Mr. Anirudha Arunkumar Nawade to admit execution of the
Deed of Cancellation executed by the Respondent before the
concerned Sub-Registrar of Assurances and to register the documents
before the concerned Sub-Registrar of Assurances.
7. Further undertakings have been recorded in Clauses 18 and
21 of the Consent Terms with regard to cancellation of first Allotment
Letter, second Allotment Letter, Power of Attorney and Lis pendens
within a period of seven days of execution of Consent Terms. There
is also an undertaking that the Respondent will withdraw the
Commercial Application i.e. Commercial Application No.8 of 2022
14-COMEX(L) 598.2019 with COMEX(L) 78.2018.doc
within a period of seven days of execution of Consent Terms.
8. I am satisfied that the Consent Terms are in order, not
contrary to law and have been drawn by the parties of their own
volition in reflection of their true intentions.
9. The undertakings, in the Consent Terms being accepted as
undertakings to the Court.
10. A soft copy of the Consent Terms will be uploaded as the
second order in the matter.
11. The Registry is to ensure that the hard copy of the signed
Consent Terms is permanently retained on file as part of the record
and is not sent for destruction in the ordinary course.
12. The Commercial Execution Application (L) No.598 of 2019
and Commercial Execution Application (L) No.78 of 2018 are
disposed of in accordance with the Consent Terms and in particular
Clause 23 of the Consent Terms which records full satisfaction of the
said Award dated 23rd April, 2008, first order dated 18th January,
2018 and second order dated 30th April, 2019.
[R.I. CHAGLA J.]
