Credwyn Holdings (India) Pvt. Ltd vs Jimmy J. Gazadar
2023 Latest Caselaw 235 Cal/2

OD-5
                                ORDER SHEET
                      IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE


                               IA NO. GA/3/2022
                                 In CS/51/2016

                   CREDWYN HOLDINGS (INDIA) PVT. LTD.
                                 Vs
                          JIMMY J. GAZADAR

  BEFORE:
  The Hon'ble JUSTICE KRISHNA RAO

Date: 25TH JANUARY, 2023.

Appearance:

Mr. Soumya Roy Chowdhury, Adv.

Mr. S. Ginodia, Adv.

Ms. Mini Agarwal, Adv.

..for the plaintiff

Mr. Rohan Thawan, Adv.

Mr. Rajarshi Dutta, Adv.

Mr. Rahul Auddy, Adv.

Mr. Sarbajit Mukherjee, Adv.

..for the defendant.

The Court: Counsel for the respective parties are present.

By an order dated 22nd February, 2022 this Court has allowed the

prayer (a), (b) & (c) of settlement arrived between the parties and prayer (d)

was kept in abeyance for compliance. Now the parties submit before this

Court that prayer (d) has also been complied with. The executor has paid an

amount of Rs.4,25,50,000/- by way of demand draft to the plaintiff and the

plaintiff has accepted the sum and submits that the executor has also

complied with the prayer (b) of the application with respect of GA No. 3 of

2022.

In view of the submission made by the Counsel for the respective

parties, prayer (d) of GA No. 3 of 2022 is also allowed. Parties have filed the

settlement before this Court with following terms and conditions :-

(i) The Executor shall pay to the Plaintiff a sum of Rs.4,50,00,000/- (Rupees

four crores fifty lakhs only) in full and final settlement of all disputes,

differences and claims between the Plaintiff and the Defendant and/or the

Estate of the Defendant, in the manner described herein below. The

settlement amount of Rs.4,50,00,000 (Rupees four crores fifty lakhs only)

shall consist of Rs.2,05,00,000/- (Rupees two crores five lakhs only) towards

repayment of principal, and Rs.2,45,00,000 (Rupees two crores forty five

lakhs only) towards payment of interest.

(ii) The Executor will pay the settlement sum of Rs.4,50,00,000/- (Rupees four

crores fifty lakhs only) to the Plaintiff out of the sum of Rs.6.26 crores

(Rupees six crores twenty six lakhs only) lying deposited in Bank Account

No.1445190899 held with the Kotak Mahindra Bank (Hyderabad -

Somajiguda Branch) in the name of "Estate of the Late Mr. Jimmy Jal Gajdar

Sale Re", in the manner as mentioned below:

(a) By procuring a Demand Draft in the amount of

Rs.4,25,50,000/- (Rupees four crores twenty five

lakhs fifty thousand only) in favour of "Credwyn

Holdings (India) Pvt. Ltd.", and handing the same

over to the Plaintiff in accordance with the terms

specified herein below; and

(b) By making a Bank transfer by way of NEFT/RTGS of

an amount of Rs.24,50,000/- (Rupees twenty four

lakhs fifty thousand only) from Account

No.1445190899 held with the Kotak Mahindra Bank

(Hyderabad - Somajiguda Branch) in favour of

"Government of India a/c Income Tax" for crediting

this amount (being the Tax Deducted at Source @

10% on the interest amount of Rs.2,45,00,000/-), to

the Plaintiff's Income Tax Permanent Account

Number being AABCCO552H, in accordance with

the terms specified herein below.

(iii) The Executor has procured the declarations copies whereof annexed hereto

and marked "A" and "B" respectively from: (i) Mr. Cyrus Dinyar Oshidar, an

Indian inhabitant and British national, having Income Tax Permanent

Account No.AAAPO2906M, residing at Shireen Mansions, B Block, 2nd Floor,

Gamadia Colony, Tardeo Mumbai - 400007; and (ii) Mrs. Rita K. Mehta, an

Indian National, having Income Tax Permanent Account No.AACPM6628C,

residing inter alia at 25 Framroze Court, Marine Drove, Mumbai - 400020,

in their respective capacities as the "major beneficiaries" / "main

beneficiaries" under the registered Will dated 24th June, 2019 of the

Defendant, Mr. Jimmy J. Gazdar (since deceased). The Executor shall

deliver the original copies of such declarations to the Plaintiff within 1(one)

week from the execution of the instant application. The Plaintiff has also

obtained approval of its Board of Directors for entering into this settlement

and making the present application, and a copy of the resolution passed by

its Board of Directors is annexed hereto and marked "C".

(iv) Within 7 (seven) days of an Order being passed in terms of prayer (a) of the

instant application, the Executor shall deliver a certified copy of the Order to

the Kotak Mahindra Bank, and the Executor shall:

(a) procure the Demand Draft of Rs.4,25,50,000/-

(Rupees four crores twenty five lakhs fifty thousand

only) in favour of "Credwyn Holdings (India) Pvt.

Ltd.", and provide written confirmation of receipt

thereof to the Plaintiff along with a photocopy of the

Demand Draft.

(b) Instruct Kotak Mahindra Bank to transfer the

amount of Rs.24,50,000/- (Rupees twenty four lakhs

fifty thousand only) by way of NEFT/RTGS to

"Government of India a/c Income Tax" for crediting

this amount as Tax Deducted at Source under the

Income Tax Act, 1961 to the credit of the Plaintiff's

Income Tax Permanent Account Number being

AABCC0552H, and provide a photocopy of the

challan evidencing payment thereof to the Plaintiff.

(v) The Executor shall duly file Form No.26Q within the period prescribed under

the Income Tax Act, 1961, reflecting credit of the TDS amount of

Rs.24,50,000/- (Rupees twenty four lakhs fifty thousand only) to the

Plaintiff's Income Tax Permanent Account Number being AABCC0552H, and

shall also obtain Form No.16A reflecting the same in favour of the Plaintiff

and deliver a copy of such Form No.16A to the Advocates of the Plaintiff.

(vi) Within 4 (four) weeks of an Order being passed in terms of prayer (a) of the

instant application, the Executor shall produce the Demand Draft and

payment challan mentioned in paragraph 10(iv) above before this Hon'ble

Court and hand over the same to the Plaintiff towards full and final

settlement of the claims of the Plaintiff in the present suit.

(vii) Upon receipt of the said sum of Rs.4,50,00,000/- (Rupees four crores fifty

lakhs only) in the manner as stated above, all disputes, differences and

claims between the Plaintiff and its directors (on the one hand) and the

Defendant and/or the Estate of the Defendant and/or the Executor (on the

other hand) shall stand fully and finally settled, and the Plaintiff and its

directors (on the one hand) and the Defendant and/or the Estate of the

Defendant and/or the Executor (on the other hand) shall have no claims or

demands whatsoever against each other, and each of them they shall stand

released and discharged absolutely and forever against any and all claims or

demands of any nature whatsoever by the other(s).

(viii) After the amount of Rs.4,50,00,000/- (Rupees four crores fifty lakhs only) is

paid to the Plaintiff in the manner described hereinabove, the Executor shall

be permitted to withdraw the balance amount remaining in Bank Account

No.1445190899 with Kotak Mahindra Bank (Hyderabad - Somajiguda

Branch) in the name of "Estate of the Late Mr. Jimmy Jal Gajdar Sale Re"

along with all accumulated interest, if any, and close the said account.

(ix) The Executor has represented, assured and warranted to the Plaintiff

as set out below, and acknowledges that the Plaintiff is entering into the

settlement recorded herein relying on such representations, assurances and

warranties:

(a) The registered Will dated 24th June, 2019 of the

Defendant Mr. Jimmy J. Gazdar (since

deceased), recorded in Folio No. 40V to 47V of

Book No. 342 of the Office of the Civil Registrar

Cum Sub Registrar & Notary Ex Officio, Bardex,

Mapusa, Goa ("the said Will"), is the last will

and testament of the Defendant Mr. Jimmy J.

Gazdar (since deceased), and there are no

subsequent will(s) and/or codicil(s) executed by

Defendant Mr. Jimmy J. Gazdar (since

deceased);

(b) Mr. Cyrus Dinyar Oshidar is the Sole Executor

appointed in the said Will, and is the Sole

Executor of the Estate;

(c) The executor has full, legal and valid power and

authority to execute this application, and to

enter into the settlement recorded herein, and to

perform the obligations hereunder; and the acts

of the Executor (including the terms of the

settlement recorded herein) are binding upon all

beneficiaries under the said Will, including Mr.

Cyrus Dinyar Oshidar and Mrs. Rita K. Mehta;

(d) Execution of this application (and the settlement

recorded herein) and performance of the

obligations hereunder by the Executor does not

and will not violate, breach or result in conflict of

applicable law or any contract to which the

Estate and/or the Executor is a party;

(e) To the knowledge of the Executor, there are no

proceedings, claims or actions of any nature

pending in which: (a) the said Will (or any part or

any provision thereof) has been challenged,

contested or questioned by any person; and/or

(b) the authority of the Executor to act as the

Sole Executor of the Estate has been challenged,

contested or questioned; and/or (c) the power

and/or authority of the Executor to sell, dispose

of, or deal with any asset or property forming

part of the Estate has been challenged, contested

or questioned; and/or (d) an order, judgment,

award, direction and/or prayer has been sought,

passed and /or granted, which does or could

prevent, prohibit and/or otherwise adversely

impact the Executor's ability to execute this

application (and the settlement recorded herein)

and/or perform the obligations hereunder;

(f) This application (and the settlement recorded

herein) does not in way or manner violate or

prejudice any of the bequests and/or other

stipulations contained in the said Will;

In view of the settlement arrived between the parties and the parties

have complied the terms and conditions, thus CS No. 51 of 2013 is disposed

of. Decree be drawn accordingly.

Though the matter is in connection with commercial division but

inadvertently the matter is listed before this Court and thus, the suit is

treated in the list of the commercial division.

(KRISHNA RAO, J.)

Sbghosh