Order 1

Order Details: Notice of Motion
Pdf Text: NM 1998-2020 in S.C. Suit no.1327-2017 1 Date : 27.09.2021
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1998 OF 2020
IN
EXECUTION APPLICATION NO. 94 OF 2019
IN
S.C. SUIT NO.1327 OF 2017
(CNR NO.MHCC010059202020 )
Dr. Pankaj Rajaram Bandarkar
Through Mr. Lalitchandra B. Joshi
The Constituted Attorney
IN THE MATTER BETWEEN :
Dr. Pankaj Rajaram Bandarkar
Aged about 55 years, Indian Inhabitant
Occupation : Business (Doctor),
Doing business at Shop No. 6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai 400 034.
Through Mr. Lalitchandra B. Joshi
The Constituted Attorney
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.....Applicant
..... Judgment Creditor/
Decreed holder/ Defendant
Versus
Pramod Pandurang Pisal
Aged 56 years, Proprietor of
M/s. Unity Land Consultancy, A
proprietary firm having office at LG63,
5/16 C, P.G. Pisal & Sons, Opp. Kamgar
Nagar, S.G.Barve Marg, Kurla (East),
Mumbai 400 024.
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] ..... Judgment Debtor/ Plaintiff
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NM 1998-2020 in S.C. Suit no.1327-2017 2 Date : 27.09.2021
Appearances :
Ld.Adv. Rajesh Patil a/w Kafil A. Khan for plaintiff.
Ld.Adv. Swapnil Bangar a/w Shailsh Pal for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 3
Date : 27/09/2021
ORDER
1. The Decree holder/Original defendant filed
instant Notice of Motion seeking the following reliefs:
a) That this Hon'ble Court be pleased to forthwith direct the
judgment Debtor/Original Plaintiff to disclose on affidavit the
particulars of the assets of the judgment Debtor/Original Plaintiff, to
enable the Judgment Creditor to move for attachment of the
respective properties, as per Order 21 Rule 41, Sub Rule (1) & (2), of
the Code of Civil Procedure;
b) That the Judgment Debtor/Plaintiff, his associates, or his
servants, agents and representatives be restrained by an order and
injunction of this Hon'ble Court from creating third party rights,
selling, alienating, disposing of, or encumbering letting out, giving on
leave and license basis or otherwise dealing with any of his
properties/assets, in any manner whatsoever;
c) That this Hon'ble Court be pleased to detain the
Judgment Debtor/Plaintiff in Civil Prison as per the provisions of
Section 51 (a)(ii) and Sectioni 51(b) of the Code of Civil Procedure,
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for dishonestly transferring his property in bad faith to his son Mr.
Karan Pramod Pisal by Gift Deed dated 23/08/2019,during the
pendency of the Execution Application;
d) That the Judgment Debtor/Plaintiff be dealt with under the
Contempt of Courts Act for breach of undertaking given to this
Hon'ble Court as recorded in Consent Terms and Order dated
18/06/2018 in Suit No. 1327 of 2017, and the Judgment
Debtor/Plaintiff be dealt with and punished as per the provisions of
Contempt of Courts Act;
e) For Adinterim reliefs and interim reliefs in terms of prayer
clause (c) and (d) above;
f) For the costs of the Notice of Motion be paid by the Judgment
Debtor/Plaintiff to the Judgment Creditor;
g) For any other reliefs as the nature and circumstances of the
case may require.
2. During course of arguments the decree
holder/original defendant not pressed prayer clause 'D' as above.
3. It is contended by the decree holder/original
defendant that the judgment debtor/original plaintiff filed suit
bearing No. 1237/2017 against him. The suit was disposed off in
view of the Consent Terms dated 18/06/2018 by which the
judgment debtor/original plaintiff agreed to pay total amount of
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Rs. 2,50,00,000/ (Rupees Two Crore Fifty Lakhs Only) within a
period of nine months from the filing of the Consent Terms or
before 17/03/2019, whichever is earlier and in default of
payment, he agreed to pay interest at the rate of 18% per annum.
As per Consent Terms the judgment debtor/original plaintiff
agreed to pay aforesaid amount 2,50,00,000/ (Rupees Two Crore
Fifty Lakhs Only) to the defendant, his wife and his sister.
4. It is contended that, inspite of laps of laps of period of
payment, the judgment debtor/original plaintiff did not pay the
agreed amount therefore, he constrained to file execution
proceeding for recovery of decreetal amount together with
interest.
5. During pendency of the execution proceeding the
judgment debtor/original plaintiff had filed chamber summons
bearing No. 1638 of 2019, objecting to the claim of the decree
holder/original defendant in Execution application No. 94 of 2019.
6. It is further contended that during pendency of
aforesaid chamber summons the parties decided to settle the
matter which were reduced into writing by way of terms of
settlement dated 02/03/2020 and same was tendered before the
court and in view of that chamber summons. No. 1638 of 2019
was disposed off by consent.
7. As per aforesaid terms of settlement dated
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02/03/2020, the judgment debtor/original plaintiff agreed to pay
3,62,73,272/ (Rupees Three Crore SixtyTwo Lakhs Seventy
Three Thousand Two Hundred and SeventyTwo only) in 24 equal
installments. However, the judgment debtor/original plaintiff
defaulted in paying the installation. Therefore, the decree holder/
original defendant proceeded with the Execution application,
sought warrant of attachment of four properties of the judgment
debtor/original plaintiff . The judgment debtor/original plaintiff
opposed the attachment of the properties by filing chamber
summons No. 558 of 2020, on the ground that, those properties do
not belong to the judgment debtor/original plaintiff.
8. It is further contended that, the decree holder/original
defendant carried out search of title of one of the property of
judgment debtor/original plaintiff bearing house no. 50/B situated
at Kamgar Nagar, Kurla (West). Upon search, he found that the
judgment debtor/original plaintiff fraudulently transferred the said
house No. 50/B by way of gift deed dated 23/08/2019 in favour of
his son. Therefore, it is submitted that, the judgment
debtor/original plaintiff dishonestly and fraudulently transferred
the suit property in bad faith only to avoid decree for which
judgment debtor/original plaintiff be detained in the Civil prison
as per Section 51(a)(ii) and Section 51(b) of the Code of Civil
Procedure, 1973.
9. It is further contended that, looking to the conduct of
the decree holder/original defendant it is necessary to secure the
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payment of decree, by attaching the remaining properties in which
judgment debtor/original plaintiff has right, title and interest and
also calling upon judgment debtor/original plaintiff to disclose the
assets on affidavit which are in the personal name of the judgment
debtor/original plaintiff as well as in the name of his propriety
firm. Thus, decree holder/original defendant prayed for allowing
his notice of motion.
10. The notice of motion is opposed by the judgment
debtor/original plaintiff by filing say. On the ground that, the
Consent terms dated 18/06/2018 were modified and/ or varied
between the parties by executing subsequent Consent terms dated
02/03/2020. Therefore, the original decree on the basis of which
consent terms were executed, does not survive and cannot be
executed. Therefore, the present Notice of motion calling
attachment of properties of the judgment debtor/original plaintiff
in the execution of decree dated 18/06/2018 is erroneous.
11. It is further contended that, the Consent terms dated
18/06/2018 were for payment of money to three parties out of
which only original defendant approach the court by way of
execution proceeding. The other two parties did not approach for
execution of their part of decree. Therefore, the original defendant
is not entitled for execution of part of other two beneficiaries of
decree. Other two beneficiaries can claim their right by way of
separate adjudication. The decree holder cannot espouse the claim
of those two persons in the present execution proceeding. Hence,
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the judgment debtor/original plaintiff prayed for rejection of
motion.
12. It is further contended that, as per subsequent Consent
terms dated 02/03/2020, the time of last installment not arrived.
Therefore, the Notice of motion is premature.
13. It is further contended that, the judgment
debtor/original plaintiff executed gift deed dated 23/08/2019 is
valid, subsisting and binding. There was no prohibitory or
injunction order passed against judgment debtor/original plaintiff
on 23/08/2019. Therefore, gift deed dated 23/08/2019 cannot be
said to be fraudulent transfer. The judgment debtor/original
plaintiff denied the allegations that, he has transferred his
aforesaid property, dishonestly and fraudulently.
14. It is further contended that, the property which have
been mentioned in the execution application are valued much
more than decretal amount. Therefore, there is no requirement of
disclosing any further assets. If this court feels that, judgment
debtor/original plaintiff needs to disclose on oath any properties
belonging to the judgment debtor/original plaintiff then the
judgment debtor/original plaintiff shall file an affidavit to that
effect. It is contended that, the decree holder/original defendant
failed to make out any case for detaintion of judgment
debtor/original plaintiff in Civil prison. Hence, he prayed for
dismissal of motion.
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15. Heard both the sides. Perused motion and reply. The
decree holder/ original defendant by way of execution proceeding
seeking execution of, money which is passed in view of decree.
Consent terms entered into between the parties. As per aforesaid
Consent terms the judgment debtor/original plaintiff agreed to pay
the defendant and his family members as under.
1) 77,30,733 to Mrs. Malati Rajaram Bhandarkar.
2) 91, 10,377 to Dr. Pankaj Rajaram Bhandarkar.
3) 81,58,890 to Dr. Reeta Pankaj Bhandarkar.
16. As per clause 7 of the aforesaid Consent terms it was
specifically agreed between the parties that the aforesaid payment
will be made within 9 months or before 17/03/2019 whichever is
earlier failing which the judgment debtor/original plaintiff shall be
liable to pay interest on balance amount at the rate of 18% per
annum from the date of settlement till full and final payment.
17. It is the allegations of the decree holder/original
defendant that the judgment debtor/original plaintiff inspite of
having knowledge of pendency of instant Execution proceeding,
dishonestly transferred his one of property to his son by way of
Execution of gift deed dated 23/08/2019.
18. The judgment debtor/original plaintiff admitted that
he has executed the gift deed in favour of his son but denied that
he transferred the same with dishonest intention to avoid the
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payment of decree. But in order to prove the aforesaid defence he
did not lead any evidence. I am of the view that, the burden lies
upon him to prove that the transfer was made in good faith and
without any dishonest intention. The judgment debtor/original
plaintiff did not file any document showing that he has transferred
the property in good faith. Hence, I have no hesitation to accept
the contention of decree holder/original defendant that, the
judgment debtor/original plaintiff transferred the immovable
property to his son in order to avoid payment under the decree.
19. The next contention of the judgment debtor/original
plaintiff is that admittedly the parties have entered into new terms
of settlement and therefore, the Consent terms dated 18/06/2018
are not executable. I have perused the rozanama dated
10/08/2020 wherein the decree holder waived or not pressed to
the aforesaid terms of settlement. I have perused said terms of
settlement wherein it appears that parties have reschedule the
payments which was agreed as per Consent Decree dated
18/6/2018. Therefore, the objection of judgment debtor/original
plaintiff that in view of subsequent Consent terms the original
consent terms are not executable cannot be accepted. Moreover,
even in view of subsequent terms of settlement the judgment
debtor/original plaintiff did not pay a single penny to the decree
holder/original defendant. Hence, I am of the view that the
decree holder is having every right to not pressed the aforesaid
subsequent terms of settlement.
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20. The next contention which the judgment
debtor/original plaintiff raised that the decree holder/original
defendant can not be execute the payment which were agreed to
be made to his wife and sister. Learned advocate for the judgment
debtor/original plaintiff vehemently contended that, executing
court cannot go beyond decree. The executing court has to execute
the decree as it is. In support of his submission he has relied on the
following judgments :
1) Surinder Pal Soni V/s Sohan Lal (LAWS SC 2019 7 88)
2) Shivshankar Gurgar V/s Dilip ((2014) 2 Supreme Court
Cases 465)
3) Deepa Bhargava and Anr. V/s Mahesh Bhargava and Ors.
((2009) 2 Supreme Court Cases 294)
21. After perusal of consent decree dated 18/06/2018 and
provisions of Order 21 Rule 15 of Code of Civil Procedure Code,
1973, I do not find any force in the objection of judgment
debtor/original plaintiff. The decree which is passed, wife and
sister of the decree holder/original defendant are beneficiaries
under the decree. They can jointly and severally execute the
decree.
22. As per the Execution application the decree
holder/original defendant is seeking assistance of the court by way
of warrant of attachment of properties mentioned in the schedule.
The judgment debtor/original plaintiff contended that, the office
premises at LG 63, 5/16C is not belonging to him. His son and
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wife are the directors of the said firm. The judgment
debtor/original plaintiff is silent about the immovable property
mentioned at serial No. 1 and 3. Looking to the conduct of
judgment debtor/original plaintiff that he has transferred the
property in the name of his son by way of gift deed, although the
execution proceeding was pending, I am of the view that, it is
necessary to restrain him, his associate and his servants, agents
and representative from creating any third party interest in the
properties mentioned in the schedule attached with the execution
application.
23. The judgment debtor/original plaintiff is ready to
disclose his personal properties on affidavit. Therefore, I am of the
view that the judgment debtor/original plaintiff can be directed to
disclose on affidavit, the properties, in view of Order 21 Rule 41 of
Code of Civil Procedure Code, 1973. Thus, in view of the aforesaid
discussion I am of the view that the decree holder made out case
for issuance of arrest warrant against the judgment debtor/original
plaintiff. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No.1998 of 2019 is hereby allowed in
terms of prayer clause (a) and (b);
2. The judgment debtor is directed to disclose movable
and immovable properties in which he has interest /common
interest belonging in his personal name or in the name of
Proprietor firm or Partnership firm or Company;
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3. In the event of failure to make correct disclosure, he
shall be liable to detain in the civil prison as contemplated
under Order 21 Rule 41(3);
4. The judgment debtor/original plaintiff his associate, his
servant, agent, representative is restrained from creating
third party interest in the property mentioned in the
schedule of execution application till further orders of this
court.
5. Issue show cause notice to the judgment debtor
/original plaintiff as to why he should not detain in civil
prison.
6. The present Notice of motion shall be kept pending till
filing of reply to the show cause notice by the judgment
debtor and hearing on the same;
7. The parties to act on authenticated copy of roznama.
8. Returnable on 08/10/2021.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 27.09.2021 Greater Bombay.
Dictated on : 27.09.2021
Transcribed on : 27.09.2021
Checked on : 28.09.2021
Signed on : 01.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
01.10.2021at 4.30 p.m. (Mrs. S.R.Mejari)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of
JUDGMENT/ ORDER
27.09.2021
JUDGMENT/ORDER signed by P.O.
on
01.10.2021
JUDGMENT/ORDER uploaded on 01.10.2021
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