Bombay High Court
Mehta Developers vs Milind Madhukar Padgaonkar And 34 Ors on 4 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
2024:BHC-OS:310
This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2024
21-IA(L) 32030.2022 in COMEX 39.2022.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 32030 OF 2022
IN
COMMERCIAL EXECUTION APPLICATION NO. 39 OF 2022
Mehta Developers ...Applicant/Decree Holder
(Original Plaintiff)
Versus
Milind Madhukar Padgaonkar & Ors. ...Judgment Debtor
(Defendant No. 1)
----------
Mr. Sunny Shah, Counsel a/w Mr. Viral Shukla, Ms. Priti Shukla i/b
Shukla & Associates, Advocates for Decree Holder.
----------
CORAM : R.I. CHAGLA, J.
DATE : 4TH JANUARY, 2024.
ORDER :
1. The learned Counsel appearing for the Applicant/Decree
KAVITA
SUSHIL Holder submits that the Judgment Debtor/Original Defendant No.1
JADHAV
Digitally
signed by
KAVITA
SUSHIL
has been served and an Advocate is representing the Judgment
JADHAV
Date:
2024.01.08
18:44:19
+0530
Debtor/Defendant No.1 whose Vakalatnama is on record as shown on
today's board.
This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2024
21-IA(L) 32030.2022 in COMEX 39.2022.doc
2. By this Interim Application, the Applicant/Decree Holder is
seeking refund of surplus amount of Rs.43,86,575/- with accrued
interest i.e. over and above the amount of Rs.2,75,00,000/- which
was agreed to be paid by the Applicant/Decree Holder in the Suit
No.39 of 2015, under Consent Terms entered into between the
parties by which the Suit had been decreed and disposed of.
3. The learned Counsel appearing for the Applicants/Decree
Holders has referred to the Consent Terms entered into between the
parties in Suit No.39 of 2015 and in particular Clause 3 thereof,
wherein the Applicant/Decree Holder had inter alia given an
undertaking to pay a sum of Rs.2,75,00,000/- to the Judgment
Debtor/Original Defendant No.1. He has submitted that initially an
amount of Rs.1,25,00,000/- had been paid by the Applicant/Decree
Holder to the Original Defendant No.1. Thereafter, in Writ Petition
(L) No.2884 of 2021 on 5th February, 2021, the learned Senior
Counsel for the Applicant/Decree Holder who was Respondent Nos. 5
in those proceedings had on instructions stated that a sum of
Rs.1,50,00,000/- with interest @ 9% per annum for a period three
years would be deposited in this Court in the said Suit No.39 of 2015
by Demand Draft in the name of Prothonotary and Senior Master of
This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2024
21-IA(L) 32030.2022 in COMEX 39.2022.doc
this Court without prejudice to the rights and contentions of the
Respondent No.5 therein after deducting TDS amount. This
statement has been accepted by the Division Bench of this Court in
the order dated 5th February, 2021. Thereafter, the Applicant/Decree
Holder had issued Pay Order for a sum of Rs.1,89,45,082/- which
includes the balance sum of Rs.1,50,00,000/- payable under the said
Consent Terms between the parties to the said Suit No.39 of 2015
and interest in addition to the said balance sum apart from TDS paid
on the same. Thus a total of Rs.43,86,575/- has been paid by the
Applicant/Decree Holder over and above what had been agreed to be
paid under the said Consent Terms viz. the balance sum of
Rs.1,50,00,000/-. He has accordingly sought for withdrawal of the
surplus amount of Rs.43,86,575/-.
4. Having considered the averments in the Interim Application
as well as noting the fact that the Judgment Debtor/Original
Defendant No.1 though served, has failed to make an appearance, in
view of the relief sought in the Interim Application which in my view
causes no prejudice to the Judgment Debtor/Original Defendant
No.1, the Interim Application had been taken up for consideration.
This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2024
21-IA(L) 32030.2022 in COMEX 39.2022.doc
5. I have perused the said Consent Terms dated 5 th August,
2016 and the order bearing the same date by which this Court had
taken on record the Consent Terms and decreed and disposed of the
Suit No.39 of 2015 in accordance with the Consent Terms. It appears
from Clause 3 of the Consent Terms that the Applicant/Decree Holder
being the Plaintiff therein had undertaken apart from providing and
allotting free of cost constructed residential Flats and car parking
mentioned therein, that a sum of Rs.2,75,00,000/- would be paid to
the Judgment Debtor/Original Defendant No.1. The
Applicant/Decree Holder has thereafter paid a sum of Rs.1,25,000/-
and deposited a sum of Rs.1,89,45,082/- in the said Suit. Thus, a
surplus amount of Rs.43,86,575/- has been deposited by the
Applicant/Decree Holder over and above the agreed sum of
Rs.2,75,00,000/-. This is borne out from the order dated 5 th February,
2021 passed by the Division bench of this Court in Writ Petition (L)
No.2884 of 2021 which accepts the statement made by the learned
Senior Counsel in Paragraph 6 of the said order to deposit the said
sum with interest @ 9% per annum for a period of three years which
has thereafter been deposited as borne out from the receipt of Pay
Order for the sum of Rs.1,89,45,082/-issued by the Prothonotary and
Senior Master of this Court together with the receipt for TDS which
This Order is modified/corrected by Speaking to Minutes Order dated 12/01/2024
21-IA(L) 32030.2022 in COMEX 39.2022.doc
has been annexed at Exhibit-E & E-1.
6. Thus, the refund of the surplus amount of Rs.43,86,575/-
paid by the Applicants/Decree Holders requires to be granted
particularly in view of the settled law that an executing Court cannot
go behind the Consent Decree passed by this Court which is namely
for payment of a sum of Rs.2,75,00,000/- by the Applicant/Decree
Holder to the Judgment Debtor/Defendant No.1. In that view of the
matter, the relief sought for in the Interim Application is granted.
Hence, the following order is passed:
(i) The Prothonotary and Senior Master of this Court
is directed to refund surplus amount of Rs.43,86,575/- with
accrued interest to the Applicant/Decree Holder within a
period of two weeks from disposal of the Application made
for withdrawal of the same by the Applicant/Decree Holder.
(ii) The Interim Application is accordingly disposed of.
[R.I. CHAGLA, J.]
