Order 2

Order Details: Notice of Motion
Pdf Text: NM.No.2007/22 & NM.2399/23 & - 1 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
MHCC010060382022
Presented on : 13-06-2022
Registered on : 13-06-2022
Decided on : 03-11-2025
Duration : 3 years, 4 months, 20 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2007 OF 2022
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Dr. Pankaj Rajaram Bandarkar
Through Mr. Lalitchandra B. Joshi
The Constituted Attorney .. Applicant.
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.
.. Judgement Creditor
Decree holder/
Defendant.
V e r s u s
Pramod Pandurang Pisal
Aged 56 years,
Proprietor of M/s. Unity Land
Consultancy, A proprietary firm having
office at LG-63, 5/16 C, P.G. Pisal &
Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Judgment Debtor/
Plaintiff.
-- 1 of 30 --
NM.No.2007/22 & NM.2399/23 & - 2 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
AND
MHCC010068562023
Presented on : 05-07-2023
Registered on : 05-07-2023
Decided on : 03-11-2025
Duration : 2 years, 3 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2399 OF 2023
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Karan Pramod Pisal .. Applicant.
In the matter between
Pankaj Rajaram Bandarkar
Age: 55 years, Indian Inhabitant,
Occupation: Business (Doctor), carrying
on business from Shop No.6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034. .. Judgement Creditor
V e r s u s
Pramod Pandurang Pisal
Age: 62 years,
Proprietor of M/s. Unity Land
Consultancy, a Proprietary firm having
office at LG-63, 5/16 C, P.G. Pisal &
Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024. .. Judgment Debtor.
-- 2 of 30 --
NM.No.2007/22 & NM.2399/23 & - 3 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Karan Pramod Pisal
Age: 28 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Proposed Respondent
No.2.
AND
MHCC010068572023
Presented on : 05-07-2023
Registered on : 05-07-2023
Decided on : 03-11-2025
Duration : 2 years, 3 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2400 OF 2023
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Pramod Pandurang Pisal
Age: 62 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Applicant.
In the matter between
Pankaj Rajaram Bandarkar
Age: 55 years, Indian Inhabitant,
Occupation: Business (Doctor), carrying
on business from Shop No.6, Bhat
-- 3 of 30 --
NM.No.2007/22 & NM.2399/23 & - 4 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034. .. Judgement Creditor
V e r s u s
Pramod Pandurang Pisal
Age: 62 years,
Proprietor of M/s. Unity Land
Consultancy, a Proprietary firm having
office at LG-63, 5/16 C, P.G. Pisal &
Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024. .. Judgment Debtor.
Karan Pramod Pisal
Age: 28 years, an Indian Inhabitant and
a Civil Engineer residing at House
No.50/B, Ground floor, Survey No.150
of Chembur Kurla Kamagar Co-operative
Housing Society Ltd., Kamgar Nagar,
S.G. Barve Marg, Kurla (East), Mumbai-
400 024.
.. Proposed Respondent
No.2.
AND
MHCC010116162023
Presented on : 03-11-2023
Registered on : 03-11-2023
Decided on : 03-11-2025
Duration : 2 years, 0 months, 0 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4040 OF 2023
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
-- 4 of 30 --
NM.No.2007/22 & NM.2399/23 & - 5 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024. .. Applicant.
In the matter between
Pankaj Rajaram Bandarkar
Age: 55 years, Indian Inhabitant,
Occupation: Business (Doctor), carrying
on business from Shop No.6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034.
.. Judgement Creditor/
Defendant.
V e r s u s
Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Judgment Debtor/
Plaintiff.
Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Judgment Debtor/
Proposed
Respondent No.2.
AND
MHCC010116142023
Presented on : 03-11-2023
Registered on : 03-11-2023
Decided on : 03-11-2025
Duration : 2 years, 0 months, 0 days
-- 5 of 30 --
NM.No.2007/22 & NM.2399/23 & - 6 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4041 OF 2023
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Karan Pramod Pisal
Age: ___ years, Occ.: Business,
Residing at 50B, Kamgar Nagar, Kurla
(East), Mumbai-400024.
.. Applicant.
In the matter between
Pankaj Rajaram Bandarkar
Age: 55 years, Indian Inhabitant,
Occupation: Business (Doctor), carrying
on business from Shop No.6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034.
.. Judgement Creditor/
Defendant.
V e r s u s
Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Judgment Debtor/
Plaintiff.
Karan Pramod Pisal
Age: ___ years, Occ.: Business,
Residing at 50B, Kamgar Nagar, Kurla
(East), Mumbai-400024.
.. Judgment Debtor/
Proposed Respondent No.2.
-- 6 of 30 --
NM.No.2007/22 & NM.2399/23 & - 7 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
AND
MHCC010179682024
Presented on : 03-10-2024
Registered on : 05-10-2024
Decided on : 03-11-2025
Duration : 1 years, 1 months, 0 days
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.4514 OF 2024
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Applicant.
In the matter between
Pankaj Rajaram Bandarkar
Age: 55 years, Indian Inhabitant,
Occupation: Business (Doctor), carrying
on business from Shop No.6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034.
.. Judgment Creditor /
Defendant.
V e r s u s
1. Pramod Pandurang Pisal
Age: 56 years, Proprietor of M/s. Unity
-- 7 of 30 --
NM.No.2007/22 & NM.2399/23 & - 8 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Judgment Debtor/
Plaintiff.
2. Karan Pramod Pisal
Age: ___ years, Proprietor of M/s. Unity
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
.. Proposed Respondent
No.2.
AND
MHCC010034462019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
ORDER BELOW APPLICATION EXHIBIT NOS.36 and 37
IN
EXECUTION APPLICATION NO.94 OF 2019
IN
S. C. SUIT NO.1327 OF 2017
Dr. Pankaj Rajaram Bandarkar
Aged about 65 years, Indian Inhabitant,
Occupation: Business (Doctor),
Doing business at Shop No.6, Bhat
Chawl, Sane Guruji Road, Tardeo,
Mumbai-400 034.
.. Judgment Creditor/
Decree-holder
V E R S U S
1. Pramod Pandurang Pisal
Aged 62 years, Proprietor of M/s. Unity
-- 8 of 30 --
NM.No.2007/22 & NM.2399/23 & - 9 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Land Consultancy, a Proprietary firm
having office at LG-63, 5/16 C, P.G. Pisal
& Sons, Opp. Kamgar Nagar, S.G. Barve
Marg, Kurla (East), Mumbai-400 024.
2. Karan Pramod Pisal
Aged 25 years, Adult Indian,
Resident of 50/B, Ground and first floor,
Kurla Kamgar Co-op. Hsg. Society Ltd.,
Plot bearing Land bearing CTS No.105m
105/1, 2, 106, 106/1 of village
Chembur, S.G. Barwe Marg, Kurla
(East), Mumbai-400 024.
.. Judgment Debtors
No.1 and 2.
Appearance :-
Ld. Advocate Mr. Rakesh Sawant @ Rahul Patil for the Decree-holder.
Ld. Advocate Shjailesh Pal for the Judgment Debtor.
CORAM: HIS HONOUR JUDGE
U.C. DESHMUKH
COURT ROOM NO.03
DATE: 3rd November, 2025.
O R D E R
(Dictated and Pronounced in open Court)
This is an execution application to get consent decree
dated 18.06.2018 executed passed by this Court whereby the plaintiff
(hereinafter referred as ‘Judgment debtor’) agreed to pay
Rs.2,50,00,000/- within a period of 9 months from 18.06.2018, failure
of which he agreed to pay interest on balance amount at the rate of
-- 9 of 30 --
NM.No.2007/22 & NM.2399/23 & - 10 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
18% per annum from 18.06.2018 to date of full and final satisfaction of
the decree to the defendants (hereinafter referred as ‘decree-holder’).
2. The judgment debtor failed to honour the consent decree,
hence, this application is filed on 19.03.2019. The decree-holder filed
Notice of Motion No.1998 of 2020 herein. Vide order dated 27.09.2021
passed therein the judgment debtor was directed to file an affidavit
disclosing his assets wherein he has interest. Accordingly, judgment
debtor filed an affidavit dated 08.10.2021 stating that he does not own
any immovable property.
3. Vide aforesaid order dated 27.09.2021, judgment debtor
was also served with show cause notice in terms of Order XXI Rule 37
of the Code of Civil Procedure (in short, ‘Code’). On his failure to
answer such notice and on the ground that House No.50/B, (City
Survey No.105/1 2106 and 106/1, 299 of Village Kurla) Kamgar Nagar,
Kurla (East), Mumbai, was transferred by the judgment debtor with
malafide intention in favour of his son Mr. Kiran Pramod Pisal an arrest
warrant was issued. Mr. Kiran Pisal is joined as respondent.
4. The judgment debtor challenged an order dated
30.10.2021 issuing arrest warrant before the Hon’ble High Court vide
Civil Writ Petition No.7580 of 2021. The Hon’ble High Court set aside
an order dated 30.10.2021 issuing arrest warrant on condition that the
judgment debtor and respondent shall not create third party interest;
the judgment debtor shall deposit Rs.50,00,000/- on or before
30.11.2021; and shall file an affidavit setting out the schedule of
-- 10 of 30 --
NM.No.2007/22 & NM.2399/23 & - 11 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
payment under decree. Inspite of aforesaid order, the judgment debtor
failed to satisfy the decree.
5. Therefore, the decree-holder moved Notice of Motion
No.2007 of 2022 to detain the judgment debtor in civil prison under
provisions of Section 151 read with Order XXI Rule 11 of the Code. It
is specific contention of the decree-holder that vide order dated
16.11.2021 and 24.11.2021 passed by the Hon’ble High Court in Writ
Petition No.7580 of 2021 the judgment debtor was directed to give
security against amount of Rs.4,03,61,644/- due on 16.11.2021; the
judgment debtor and respondent were also restrained from creating
third party interest; they ought to have deposited an amount of
Rs.50,00,000/- before this Court on or before 30.11.2021; failure of
which this Court have liberty to take action against the judgment
debtor. Hence, Notice of Motion No.2007 of 2022.
6. In reply, the judgment debtor has filed affidavit-in-reply
and additional affidavit-in-reply. Vide additional affidavit-in-reply, the
judgment debtor relies upon his case vide Notice of Motion No.4514 of
2024 filed by him to declare that consent terms dated 18.06.2018 are
null and void to the extent of Memorandum of Understanding (MOU)
dated 17.09.2013 and to set up an inquiry against the decree-holder,
Ms. Malti Bhandarkar and Ms. Rita Bhandarkar for fraud played by
them upon the judgment debtor. He also sought direction that the
decree-holder to deposit an original MOU dated 17.09.2013 executed
between the judgment debtor and Ms. Malti Bhandarkar and Ms. Rita
Bhandarkar. [Ms. Malti and Ms. Rita are hereinafter referred as
-- 11 of 30 --
NM.No.2007/22 & NM.2399/23 & - 12 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
beneficiary for the sake of convenience whenever there is reference of
these two persons.]
7. It is specific contention of the judgment debtor that the
decree-holder and beneficiaries represented in the suit through one
Lalitchandra Joshi. They admitted that there is no MOU dated
17.09.2013 in existence entered into between the judgment debtor and
beneficiaries. He relies upon copy of consent terms. Consequentially
submits that consent decree is void to the extent of MOU dated
17.09.2013. He admits execution of MOU dated 30.04.2012 in
between decree-holder and himself. He also admits an execution of
MOU in between himself and Lalitchandra Joshi. He challenges MOU
dated 17.09.2013 alleged to have been executed between him and
beneficiaries Ms. Malti and Ms. Rita Bhandarkar on the ground that he
had filed suit to cancel MOU dated 30.04.2012; the consent terms are
entered into between the decree-holder and himself through
representation of the decree-holder that other two beneficiaries namely
Ms. Malti and Ms. Rita Bhandarkar have admitted that there is MOU
dated 17.09.2013 in existence; he had not filed any claim in a suit in
respect of such MOU; despite of that on good faith he agreed to include
names of beneficiaries Ms. Malti and Ms. Rita Bhandarkar in the
consent terms dated 18.06.2018; the consent terms are not signed by
beneficiaries; while executing the consent terms he was not aware as to
conspiracy procured between the decree-holder and two beneficiaries.
8. It is further contention of the judgment-debtor that the
consent terms were executed between himself and decree-holder to
-- 12 of 30 --
NM.No.2007/22 & NM.2399/23 & - 13 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
repurchase flats belonging to the decree-holder, Ms. Malti and Ms. Rita
Bhandarkar and not belonging to any other third persons; it means he
was only a repurchaser of property of decree-holder, Ms. Malti and Rita
Bhandarkar; as per consent terms he has to pay to only decree-holder
and other two beneficiaries; only the decree-holder has appointed one
Mr. Lalitchandra Joshi as his Constituted Attorney; inspite of having no
authorization the decree-holder and Lalitchandra Joshi have continued
to represent beneficiaries Ms. Malti Bhandarkar and Rita Bhandarkar; it
shows malafide conduct of the decree-holder to recover an amount on
behalf of those beneficiaries. Therefore, he calls decree-holder and
beneficiaries to come forward and execute deed or cancellation in
respect of MOU executed in their favour.
9. The judgment-debtor further contends that considering
fraud played and fraudulent intention of the decree-holder and
beneficiaries, he has filed Notice of Motion No.4040 of 2023 to dismiss
the execution application; to prosecute beneficiaries under Section 405,
406, 415, 417, 420, 425, 426 read with Sections 120B of the Indian
Penal Code, 1860 (in short, ‘IPC’); to prosecute beneficiaries under
Sections 191 and 192 of the Indian Penal Code to order that decree-
holder and to declare that beneficiaries are not entitled to any benefits
under the consent decree. The judgment-debtor has also filed Notice of
Motion No.2400 of 2023 to direct beneficiaries to produce MOU dated
30.04.2012 and 17.09.2013; to permit the decree-holder and
beneficiaries to withdraw balance decreetal amount only upon
furnishing original MOU dated 30.04.2012 and 17.09.2013; to release
property Nos.5 and 6 being flat No.301 and 302 from attachment on
-- 13 of 30 --
NM.No.2007/22 & NM.2399/23 & - 14 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
the ground that in view of the consent decree and so far amount
deposited by him beneficiaries are entitled to recover an amount of
Rs.1,90,00,000/-.
10. Similarly, the respondent has also filed Notice of Motion
No.2399 of 2023 to direct decree-holder to delete his name and release
property owned by him which is under attachments. The judgment
debtor and the respondent, who is son of judgment debtor, have raised
more or less common grounds in all notice of motions pending to
oppose an execution of decree.
11. The decree-holder has filed applications at Exhibit-36 and
37 to permit him to withdraw an amount deposited so far by the
judgment-debtor.
12. It is specific contention of the respondent and the
judgment debtor that the judgment debtor has deposited a demand
draft of Rs.1,38,58,890/- towards the full and final satisfaction of the
decree; the judgment debtor has already deposited an amount of
Rs.1,11,41,110/-. The respondent specifically submits that he is not
concerned with dispute between the decree-holder and judgment
debtor. The sum and substance of the case of the judgment debtor and
the respondent is that the judgment debtor has satisfied the decree.
The decree-holder and beneficiaries have played fraud upon the
judgment debtor while executing the consent terms. They have not
produced MOU called upon by the judgment-debtor. MOU produced by
decree-holder along with Exhibit-39 at Serial No.2 is forged and does
not correlate with the consent terms. The consent terms are not signed
-- 14 of 30 --
NM.No.2007/22 & NM.2399/23 & - 15 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
by the beneficiaries. The decree-holder has no authority to withdraw
an amount on behalf of beneficiaries. The constitute attorney of decree-
holder has also no authority to represent the beneficiaries. Thus, the
judgment debtor has denied relevancy of MOU on 17.09.2013 filed at
Sr.No.2 of list Exhibit-39. It is specific contention of the judgment
debtor that while executing the consent terms he was under impression
that only MOU dated 30.04.2012 executed with the decree-holder and
MOU executed in between Lalitchandra Joshi and himself are
considered. Therefore, the decree-holder has played fraud upon him.
Hence, resists the consent decree in its entirety.
13. Considering aforesaid facts and submissions of both parties
all Notice of Motions pending and applications vide Exhibits-36 and 37
are taken into consideration together to avoid repetition of facts.
14. The decree-holder has relied upon decision of Hon’ble
Apex Court Rahul S. Shah [(2021) 6 Supreme Court Cases 418],
wherein the Hon’ble Apex Court has observed that executing the Court
while exercising jurisdiction under Section 47 or under Order 21 of the
Code must not issue notice on an application of third party claiming
rights in a mechanical manner. The Executing Court and also Trial
Court shall play an active role in decision of raised issues during
adjudication of the suit itself and see that clear, unambiguous and
executable decree is passed.
15. On the contrary, the judgment debtor relies upon decision
of Hon’ble Apex Court in Sanwarlal Agrawala & Ors. Vs. Ashok Kumar
-- 15 of 30 --
NM.No.2007/22 & NM.2399/23 & - 16 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Kothari & Ors. [Civil Appeal No(s).1312 and 1313 of 2013, wherein the
Apex Court observes that Executing Court cannot go behind the decree.
It must take the decree as it stands. It is also observed that it is
undeniable that executing Court can construe decree if it is ambiguous.
However, this cannot result in addition of terms which were not agreed
upon by the parties when decree is drawn on by consent of both
parties.
16. The Judgment Debtor further relied decision of Hon’ble
Apex Court in Ajanta LPP Vs. Casio Keisanki Kabushiki Kaisha d/b/a
Casio Compute Co. Ltd. & Another [2022 Live Law (SC )127], wherein
the Apex Court observed that even if it is assumed that there is mistake,
a consent decree cannot be modified or altered unless the mistake is a
patent or obvious mistake. A comprise decree creates an estoppel by
judgment. The Court cannot entertain an application for alteration or
modification of the consent decree if the same is vitiated by fraud. In
Ram Kumar Vs. State of Uttar Pradesh and Ors. [2022 Live Law (SC)
806], the Apex Court observed a judgment or decree obtained by fraud
is to be treated as nullity. Non disclosure of relevant and material
documents with a view to obtain an undue advantage would amount to
fraud. If it is seen that the consent decree is obtained by fraud only
remedy is available to approach the Court which recorded the
compromise. The judgment debtor has also relied upon decision of
Hon’ble High Court in Manojkumar Omprakash Dalmia Vs. Omprakash
Dalmia and Others passed in Contempt Petition No.37 of 2019, wherein
the Hon’ble High Court has considered circumstances which resulted
inference of fraud or collusion. Those are referred later on.
-- 16 of 30 --
NM.No.2007/22 & NM.2399/23 & - 17 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
17. Thus, in the light of observations of Hon’ble Apex Court
and Hon’ble High Court in aforesaid cases and submission of both side
it has to see whether consent decree is vitiated on the ground of fraud
and therefore, consequently it is not executable. It warrants reference
to the consent terms. There is no dispute that consent terms are
executed in between the decree-holder and judgment debtor.
Beneficiaries are not parties to the suit and consent terms. Vide
consent term it is recorded that the judgment debtor is developing a
slum rehabilitation scheme on plot of land bearing CTS No.60, 61 part
of Village Chembur, Taluka Kurla. The decree-holder and his family
members had purchased a residential flats and paid amount to the
judgment debtor vide MOU dated 30.04.2012 and 17.09.2013. It is
agreed between the judgment debtor and decree-holder that the
judgment debtor will repurchase flats of the decree-holder and his
family members for sum of Rs.2,50,00,000/- payable within 9 months
i.e. on or before 17.03.2019 against the investment of the decree-
holder and his family members. Consequently the judgment debtor
agreed to pay repurchase amount of the flat to the decree-holder and
beneficiaries. Accordingly, it is agreed that MOU dated 30.04.2012 and
17.09.2013 shall stand cancelled. If judgment debtor does not pay
amount as agreed he shall pay interest @ 18% per annum.
18. So far as the terms and conditions of the contents of
consent terms at Exhibit-3 filed in the suit are concerned, there is no
dispute between the judgment debtor and decree-holder. It is specific
contention of the judgment debtor that beneficiaries were not parties to
the suit and they suppressed an existence of MOU dated 17.09.2013
-- 17 of 30 --
NM.No.2007/22 & NM.2399/23 & - 18 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
filed at Serial No.2 of list Exhibit-39 and therefore, they have played
fraud. It is pertinent to note that vide consent terms the judgment
debtor has agreed to pay amount to the decree-holder and
beneficiaries. The judgment debtor has filed copy of MOU dated
17.09.2013 at Serial No.1 of list of documents at Exhibit-50. MOU
dated 17.09.2013 filed at Exhibit-50 is a MOU between the judgment
debtor and one Lalit Chandra Joshi, Constituted Attorney and brother-
in-law of decree-holder. Vide consent terms it is not agreed that the
judgment debtor will pay any amount to Lalitchandra Joshi.
19. The judgment debtor has filed Notice of Motion No.2400
of 2023 to direct decree-holder and beneficiaries to produce MOU
dated 30.04.2012 and 17.09.2013 as he has appreciation that MOU
dated 17.09.2013 filed at Serial No.2 of list Exhibit-39 is different than
referred vide consent term. Therefore, he submits that decree-holder
and beneficiaries have played fraud upon him while executing the
consent term. Once the case of fraud is put forth the reference to the
observations of Hon’ble High Court in Manojkumar Dalmia (supra) is
inevitable.
20. In Manojkumar Dalmia (supra) the Hon’ble High Court
observes that order recording consent term therein is simplicator taking
consent terms on record. The Court therein did not apply its mind to
the merit of dispute. It also found that the signatures on the consent
term therein appears to be different from the signature of respondents
No.2 and 3 therein on Sale Deed dated 20.04.2016. It is also observed
by the Hon’ble High Court that respondent Nos.2 and 3 therein had
-- 18 of 30 --
NM.No.2007/22 & NM.2399/23 & - 19 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
filed Suit No.926 of 2000 before the City Civil Court against the
applicant therein in respect of partition of flat No.51, referred as
Santacruz flat. The matter therein was referred for arbitration. The
arbitration award was passed on 22.10.2007. Award says that
respondents shall pay to the applicant therein a sum of Rs.37,93,828/-
on vacating Santacruz flat and handing over possession thereof to
them. An arbitral award was challenged vide Appeal No.887 of 2010
vide order dated 07.03.2011. Said appeal was withdrawn.
Consequently Respondent Nos.2 and 3 therein filed Execution
Application No.1359 of 2011 seeking execution of Arbitration Award
and moved Chamber Summons No.88 of 2012. Vide order dated
03.05.2012 passed in Chamber Summons the Hon’ble High Court
recorded that vide order dated 30.04.2012 certain amounts were
directed to be deposited to the Prothonotary and Senior Master.
Pursuance to said order dated 30.04.2012 an amount of
Rs.92,64,142.35/- was deposited. Subsequently, Single Bench of the
Hon’ble High Court appointed Court Receiver in respect of Santacruz
flat to take physical possession of the Santacruz flat and if necessary
with Police assistance. On receipt of vacate possession from the
applicant therein the applicant was entitled to receive an amount of
Rs.37,93,828/-. Thereafter, respondent Nos.1 and 2 therein shall entitle
to receive balance amount.
21. The Hon'ble High Court further observes that the applicant
in Manoj Kumar Dalmia (supra) had preferred an Appeal (L) No.396 of
2012 assailing order dated 08.05.2012 appointing the court receiver.
Vide order dated 08.05.2012 passed in such appeal respondent Nos.2
and 3 were permitted to move the Court for partition of the Santacruz
-- 19 of 30 --
NM.No.2007/22 & NM.2399/23 & - 20 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
flat and allowed to withdraw 50% amount deposited. Respondent
Nos.2 and 3 filed the Special Leave Petition against order dated
2.08.2012 passed by Division Bench of the Hon'ble High Court. By
order dated 07.04.2014 and 21.07.2014 the Hon'ble Supreme Court
directed the applicant to handover the possession of the Santacruz flat
to Respondent Nos.2 and 3. The applicant had appeared before the
Hon'ble Supreme Court and handed over keys of the Santacruz flat to
Respondent Nos.2 and 3 Counsel. On belief that the possession is
handed over, the Hon'ble Supreme Court disposed off Special Leave
Petition. However, keys handed over did not work and Respondent
Nos.2 and 3 once again constrained to move to Hon’ble High Court vide
execution application.
22. The Hon'ble High Court further observed that vide order
dated 18.03.2015 passed in execution application the applicant admits
that handing over the keys of the Santacruz flat accordingly, statement
was recorded. The Court also record the conduct of the applicant
thereunder. The Hon'ble High Court also recorded conduct of the
applicant. In view of such facts and record maintained by the Court in
relation to the conduct of the applicant the Hon'ble High Court
observed that consent term dated 23.10.2015 alleged to have been
executed between the applicant and respondent therein whereby the
applicant agreed that he handed over possession of the Santacruz flat
to respondent Nos.2 and 3; respondent Nos.1 to 3 agreed to live with
the applicant; they also agreed to allow the applicant to withdraw
entire amount deposited with the Prothonotary. The consent terms are
entirely lopsided and no reasonable person is likely to enter into the
-- 20 of 30 --
NM.No.2007/22 & NM.2399/23 & - 21 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
same. Consequently, held that consent term which are entered into
under suspicious circumstances and particularly when entire record of
the case shows that there was no occasion for respondents therein to
enter into such consent term hence consent terms are liable to be set
aside.
23. At the cost of repetition it is apt to note that judgment
debtor does not dispute the terms and conditions of the consent term at
Exhibit-3 filed herein and consequential decree passed. It is the specific
contention of the judgment debtor that beneficiaries were not parties to
the suit; and Constitute Attorney of the decree-holder has had no
authority to persue the consent decree on behalf of the beneficiaries. It
is interesting to note that judgment debtor has filed Notice of Motion
No.2400 of 2023, wherein he prays to permit beneficiaries to withdraw
a decreetal amount only upon furnishing of original MOU dated
30.04.2012 and 17.09.2013. This statement suggests that the judgment
debtor has no objection to permit the beneficiaries to withdraw an
amount of decree, if they furnish copies of original MOU dated
13.04.2012 and 17.09.2013. It looses his case as to non-joining of
beneficiaries to the suit.
24. It is not the case of the judgment debtor that he has not
signed the consent term Exhibit-3. The consent decree is passed in
favour of the decree-holder and beneficiaries only. The judgment
debtor has filed copy of MOU dated 17.09.2013 along with list Exhibit-
50 which is said to be have been executed in favour of Lalitchandra
Joshi, a Constitute Attorney of the decree-holder. Relying upon such
MOU it seems that the judgment debtor wants to a portray a case that
-- 21 of 30 --
NM.No.2007/22 & NM.2399/23 & - 22 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
MOU dated 17.09.2013, of which reference is made vide consent term
Exhibit-3, is MOU filed along with list Exhibit-50 and not MOU dated
17.09.2013 filed at Serial No.2 of list Exhibit-39. Therefore, he
contends that the decree-holder and beneficiaries have suppressed
execution of MOU dated 17.09.2013 filed at Serial No.2 at Exhibit-39
while executing consent term Exhibit-3 from him and therefore, it is
material suppression amounts to fraud.
25. The judgment debtor and the respondent have filed Notice
of Motion No.4040 of 2023 and No.4041 of 2023 and prayed to initiate
criminal action against beneficiaries under Sections 405, 406 etc. of
Indian Penal Code (in short, ‘IPC’) on the ground that they have
committed breach of trust or they have made false statements. Section
405 of IPC defines the criminal breach of trust. It contemplates
dishonest misappropriation or conversion of the property by the person
who is entrusted with the property or who usages or dispossess such
property in violation of direction of law prescribing mode in which such
trust is to be discharged. The term dishonestly is defined under Section
24 of the IPC. It provides whoever does anything with the intention of
causing wrongful gain to one person or wrong loss to another person, is
said to do that thing dishonestly. Section 25 of IPC defines the term
‘fraudulently’. It provides that a person is said to do a thing
fraudulently, if he does that thing with intent to defraud but not
otherwise. In view of definitions under Sections 24 and 25 of the IPC it
is essential to see whether beneficiaries including decree-holder have
acted dishonestly or fraudulently and thereby deceived to the
judgment-debtor.
-- 22 of 30 --
NM.No.2007/22 & NM.2399/23 & - 23 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
26. It is not the case of the judgment debtor that either decree-
holder or beneficiaries were holding his property in trust. Therefore, it
cannot be said in strict sense that beneficiaries or decree-holder have
acted dishonestly with intent to defraud judgment debtor. In view of
contention of judgment debtor that by withholding MOU dated
17.09.2013 the decree-holder got consent term Exhibit-3 executed and
compelled or made the judgment debtor to agree to make payment to
beneficiaries. This again warrants reference to the consent term viz viz
MOU filed along with copy of list Exhibits-39 and 50.
27. At the cost of repetition, it is worthy to note that the
judgment debtor does not dispute contents of consent term. Consent
terms have reference of MOU dated 30.04.2012 and 17.09.2013. MOU
filed along with list Exhibit-50 is said to have been executed in between
the Judgment debtor and Lalitchandra Joshi (CA) of decree-holder. It
is admitted to the judgment debtor as it is filed by himself. It is specific
contention of the judgment debtor that MOU dated 17.09.2013
referred vide consent term (Exhibit-3) is a MOU filed along with list
Exhibit-50. The judgment debtor had filed suit in respect of MOU
dated 30.04.2012 only. Therefore, judgment debtor submits that he is
only liable to pay an amount against MOU dated 30.04.2012 and
17.09.2013 executed in favour of decree-holder and his Constitute
Attorney respectively. He further submits that unless MOU dated
17.09.2013 is cancelled beneficiaries are not entitled to receive an
amount agreed vide consent term.
-- 23 of 30 --
NM.No.2007/22 & NM.2399/23 & - 24 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
28. It is significant to note that consent terms (Exhibit-3) refers
MOU executed in between the judgment debtor and decree-holder and
also MOU executed in between the judgment debtor and family
members of the decree-holder. It is matter of record that the decree-
holder has filed a copy of MOU dated 17.09.2013 at Serial No.2 of list
Exhibit-39. The said MOU is said to have been executed in between the
judgment debtor and one of the beneficiaries namely Malti and one
Maithali. The said Maithali has not been referred vide consent term.
This MOU is categorically challenged by judgment debtor on the
ground that by filing such MOU decree-holder intends to get cancel
MOU which is not part of consent decree and therefore, they have
played fraud upon the judgment debtor. It is further contention of
judgment debtor that beneficiaries and one Maithali were not parties to
the suit and consequently to the consent term. Therefore, the consent
decree is void.
29. Admittedly, beneficiaries and one Maithali referred in MOU
dated 17.09.2013 filed with Exhibit-39 are not parties to the suit. It is
apt to note that such contention is raised by the judgment debtor after
he has filed application titled “terms of settlement” at Exhibit-3 herein
on 03.03.2020. Thereby he adhere to the consent terms dated
18.06.2018. Further, it is apt to note that Rule 12 Order XXIII provides
that provisions under the Order XXIII of the Code are not applicable to
the proceedings in execution of decree or order. It is needless to state
that provisions under Order 21 of the Code are termed Code itself. The
executing Court has power to decide all questions between parties to
the suit or any person. In such case even for sake of discussion if it is
-- 24 of 30 --
NM.No.2007/22 & NM.2399/23 & - 25 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
presumed that the consent term suffers for non-joinder of beneficiaries
and one Maithali it is part of record judgment vide terms of settlement
admit that beneficiaries, C.A. of the decree-holder and Maithali are
entitled to test the fruits of decree vide contents of consent terms
(Exhibit-3) dated 18.06.2018.
30. The judgment debtor and the respondent have re-affirmed
contents of consent term vide terms of settlement dated 03.03.2020
filed in this execution application. Thus, it is seen that the consent
decree is passed on consent term which are not surrounded with the
suspicious circumstances, nor challenged on the ground that either
parties to it was under influence, coercion. Therefore, there is no
question of retrial of the issues raised by the judgment debtor.
31. It is interesting to note that during the course of
arguments, learned advocate for the judgment debtor emphasis upon
word "re-purchase" and thereby submitted that if MOU dated 17.9.2013
filed along with list Exhibit-39 is taken into consideration judgment
debtor will suffer. By emphasizing upon word "repurchased" the
judgment debtor tried to canvass the case of execution of conveyance in
respect of the immovable property.
32. Vide consent term the judgment debtor has agreed to pay
an amount to the decree-holder against investment made by the
decree-holder and his family members including beneficiaries or C.A. of
the decree-holder. The terms of MOU, as admitted to both parties,
show that the plaintiff was developing a slum rehabilitation scheme
-- 25 of 30 --
NM.No.2007/22 & NM.2399/23 & - 26 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
wherein decree-holder and his family holders shown interest to invest
and purchase flat in developed area. The judgment debtor could not
complete work of construction in time. Consequently in view of terms
of MOU and negotiation held in between the decree-holder, C.A. of
decree-holder and the judgment debtor vide consent term it is agreed
that the judgment debtor will pay an amount of Rs.2,50,00,000/-
against investment of decree-holder and his family members.
Therefore, there is no substance in submission of learned advocate for
the judgment debtor that the judgment debtor has agreed to
repurchase the flats.
33. Thus, even the word “repurchase” is used in consent term
it does not mean that there were complete transactions of purchase or
re-purchase of the flat. In other words, it can be said that there was no
conveyance of the flat in favour of the decree-holder or his family
members at the instance the judgment debtor. Consequently, there was
no question of “repurchase” of such flats by the judgment debtor from
the decree-holder. At the costs of repetition, it is worthy to note that
the consent terms itself uses word judgment debtor has agreed to pay
an amount of Rs.2,50,00,000/- against investment of the decree-holder
and his family members. Thus, the consent term are entered into
between decree-holder and judgment debtor whereby judgment debtor
has agreed to pay amount determined vide consent term against
investment made by the decree-holder and his family members.
34. Thus, in the observations of the Supreme Court in Ajanta
LLP (supra) though the executing Court cannot modify the terms of
-- 26 of 30 --
NM.No.2007/22 & NM.2399/23 & - 27 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
consent decree the Court can give the meaning thereto if there is any
ambiguity in the consent terms. As earlier observed there was no
conveyance of the immovable property. Consent terms are executed to
repay an amount invested by the decree-holder and his family
members. Decree-holder and his family members have filed affidavit at
Exhibits-34 to 38 including C.A, of the decree-holder. The terms of
settlement (Exhibit-3) admit contents of consent term. Therefore,
though the word “repurchase” is used vide consent term it has no
meaning and effect upon the terms and conditions of the consent
terms. Therefore, there is an apprehension of the judgment debtor that
decree-holder or his beneficiaries or other relative may get cancel any
MOU which is not filed on record.
35. It is further necessary to note that the judgment debtor
vide Notice of Motion No.4141 of 2014 states that beneficiaries and the
decree-holder made unrealistic demand as he failed to complete the
construction and therefore, he instituted the suit to cancel MOU dated
30.04.2012. It is part of record that beneficiaries or CA of the decree-
holder are not parties to the suit. If contents of Notice of Motion
No.4541 of 2024 vide clause (g) of the affidavit filed in support thereof
are taken into consideration judgment debtor had cause of action to
institute the suit against the beneficiaries too in which he has failed.
The judgment debtor also states that there was MOU dated 17.09.2013
executed in between beneficiaries and himself. He has not filed copy of
such MOU if it was in existence. Relying upon such contentions the
judgment debtor has apprehension that beneficiaries may get cancel
such MOU vide consent decree.
-- 27 of 30 --
NM.No.2007/22 & NM.2399/23 & - 28 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
36. The judgment debtor also states that he had called upon
beneficiaries to come forward to get such MOU cancelled. Admittedly,
consent term are entered into between 18.06.2018. Execution
application is filed on 19.03.2019. Beneficiaries, the decree-holder,
C.A. of the decree-holder and one Maithali have filed affidavits at
Exhibits-44 to 47. They did not claim any benefits based upon any
MOU besides determined vide consent term. Therefore, such
submissions that beneficiaries may take undue advantage of those MOU
is ridiculous.
37. If either decree-holder or his family members has to or
intent to execute or seek performance of MOU it is not done so far by
them as per case of the judgment debtor. They would be estopped from
claiming such right or interest based upon so called MOU in future in
view of affidavit filed at Exhibits-44 to 48 wherein they do no seek
performance of such MOU or state as to existence of any MOU. None
of the parties to the proceedings have come forward with case beside
persons named in the proceeding have a transactions with either
parties in respect of land being developed by the judgment debtor.
Thus, all these show that judgment debtor have filed applications just
to prolong the execution of consent decree.
38. Vide affidavit in reply to Notice of Motion No.2400 of
2023, the decree-holder has brought on record that after consent
decree is passed the decree-holder has agreed to purchase a flat
No.1601 in Imperia Building, Wadia Street, 141, Tardeo road, Tardeo,
Mumbai; and Developer therein is demanding amount of
-- 28 of 30 --
NM.No.2007/22 & NM.2399/23 & - 29 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
Rs.3,14,00,000/-; due to failure of the judgment debtor to honour the
consent decree in time decree-holder is compelled to pay an interest to
such developers. It shows that decree-holder has suppressed financial
loss. It ensue the cost. However, fact that judgment debtor has to pay
decretal amount with interest. Therefore, no separate costs is imposed
against such sufferance of the decree-holder. Hence, the following
order:
O r d e r
1. Notice of Motion No.2007 of 2022 is allowed.
2. Notice of Motion No.2399 of 2023, Notice of Motion No.2400 of
2023, Notice of Motion No.4040 of 2023, Notice of Motion
No.4041 of 2023 and Notice of Motion No.4514 of 2024 stand
rejected.
3. Application at Exhibits 36 and 37 stand allowed and disposed off
accordingly.
4. Decree-holder to take necessary steps to get decree executed
expeditiously.
5. Accordingly, all Notice of Motions stand disposed off.
(U. C. DESHMUKH)
Judge,
City Civil Court,
Date: 03.11.2025 Mumbai.
Dictated on : 03.11.2025
Transcribed on : 10, 12 & 14.11.2025
Checked on : 17 & 18.11.2025
Signed on : 18.11.2025
-- 29 of 30 --
NM.No.2007/22 & NM.2399/23 & - 30 - Application Exhs. No.36 & 37
NM.No.2400/23 & NM.4040/23 & Execution Appl.No.94/2019
NM.No.4041/23 & NM.4514/24 in SU.No.1324/2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME 18.11.2025/4.46 p.m.
NAME OF STENOGRAPHER (Grade-1) (Mrs. Pradnya S. Naik)
Name of the Judge (With Court room no.) Shri U.C. Deshmukh
(C.R. No.03)
Date of Pronouncement of JUDGMENT/
ORDER
03.11.2025
JUDGMENT/ORDER signed by P.O. on 18.11.2025
JUDGMENT/ORDER uploaded on 18.11.2025
-- 30 of 30 --