Interim Order 1

Order Details: Other
Pdf Text: 1 (EA 161/19)
MHCC010050442019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXECUTION APPLICATION NO.161 OF 2019
IN
S.C. SUIT NO.2172/2010
Mr. Lakvinder Kulwant Singh
s/o. Late Kulwant Singh Dhillon ..Plaintiff/Judgment
debtor.
Versus
1. Mrs. Ranjita Kaur Sajjan Singh Lehal
2. Mrs. Daljit Kaur Gaurav Maniar ..Defendants/Decree holder.
Appearances :
Adv. Priya Rita I/b Disha Karambar and Assoc. for DH.
Adv. Sunil Sharma for JDR.
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No. : 03
Date : 24.05.2022.
ORDER
1. Decree holders/ original defendants by way of present
Execution Application are seeking execution of consent decree dated
20.3.2012.
2. It is the submission of the defendants that, the plaintiff
claimed 1/3rd undivided share in the suit properties which has been
quantified at Rs.44,00,000/. The parties entered into consent terms
and in pursuance of the same, defendants were required to pay
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Rs.44,00,000/ being 1/3rd share of the plaintiff, within a period of 90
days.
3. It is submitted that, the defendants paid aforesaid amount;
inspite of that in view of the consent terms the plaintiff did not hand
over original documents and share certificate of flat no.11, in Ganga
Smruti Building, Mahul Road, Chembur, as per consent terms.
Therefore, the defendants filed present application.
4. Execution Application is opposed by the plaintiff by filing
say. It is contended by the plaintiff that, the defendants did not pay
entire amount of Rs.44 Lakh within a period of 90 days from the date of
signing of the consent terms. Therefore, in view of the consent terms,
they are liable to pay interest @12% p.a. from the date of signing of the
consent terms till its realization.
5. It is further contended that, the defendants did not pay
balance amount of Rs.5,00,000/ till date and falsely made a statement
that they have paid the aforesaid amount. It is further contended that,
the occasion of handing over original papers and share certificate of
Chembur flat would arise only if the defendants comply with the
consent terms. It is alleged by the plaintiff that, the defendants did not
comply with the consent terms and therefore, the plaintiff rightly
withheld the original documents of Chembur apartment.
6. I have heard both the sides. They have also filed written
notes of arguments. It is not in dispute that, the plaintiff by way of suit
claimed 1/3rd share, title and interest in the suit premises being flat at
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Chembur, flat at Vashi and agricultural land at Punjab. The share of the
plaintiff being 1/3rd is quantified at Rs.44,00,000/, which the
defendants agreed to pay and therefore, the matter was settled and
consent terms were reduced into writing.
7. I have perused the consent terms. As per clause5, it was
agreed that, the defendants will pay Rs.44,00,000/ to the plaintiff
within a period of 90 days from the date of the consent terms i.e.
20.3.2012. It was further agreed that, the defendants could realize the
amount of Rs.44 Lakh by selling the flat at Vashi. The plaintiff also
gave no objection for the same. It was specifically agreed that the
defendants shall retain Rs.5,00,000/ out of Rs.44,00,000/ payable to
the plaintiff and it shall be paid by the defendants to the plaintiff at the
time of registration of the Sale Agreement of Vashi flat.
8. It was further agreed that, in the event of default or failure
on the part of the defendants to make the payment within 90 days, the
defendants shall be liable to pay interest @12% p.a. on entire Rs.44
Lakh. As per clause9 of the consent terms, the period of 90 days would
be begin from 1st April 2012 and also provided that in the event the
defendants was unable to sell the Vashi flat the plaintiff would obtain
intending purchasers. Clause10 further prescribes that, on realization
of Rs.44 Lakh with interest, the plaintiff shall give up his right, title and
interest in respect of Chembur flat.
9. The defendants came up with a specific case that, they have
paid entire amount of Rs.44 Lakh, as under:
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Amount Cheque No. Date Bank
Rs.5,00,000/ 667558 1.10.2012 Abhudaya Coop. Bank.
Rs.7,00,000/ 1000198 29.1.2012 Abhudaya Coop. Bank.
Rs.32,00,000/ 115529 16.1.2013 Abhudaya Coop. Bank.
10. It is alleged by the defendants that, the plaintiff
purposefully did not encash the first payment of Rs.5 Lakh in order to
withheld the original documents and share certificate. The plaintiff
specifically denied the aforesaid fact. The plaintiff pointed out notice
dated 9.1.2017 issued by the defendants in which he has clearly
admitted that they have retained Rs.5 Lakh. Therefore, I do not find any
substance in the contention of the defendants that they made payment
of Rs.5 Lakh but the plaintiff purposefully did not encash the same. As
per the terms of the settlement, the defendants were required to pay
Rs.44 Lakh within a period of 90 days from the date of signing of the
consent terms or from 1st April, 2012. Thus, the defendants ought to
have made payment of Rs.44 Lakh on or before 30th June, 2012.
11. On perusal of the particulars of payment, it is ample clear
that even if I would consider a starting point of 90 days from the date of
signing of the terms or from 1st April, 2012, the defendants did not
make payment within 90 days. Therefore, in view of clause8 of the
consent terms, the defendants were required to pay interest @12% p.a.
on Rs.44,00,000/ and upon realization of the entire amount along with
interest, the plaintiff was required to give up his right, title and interest
in the flat no.11, Chembur Apartment. Therefore, I find that the
defendants failed to comply with clause8 of the consent terms. Hence, I
issue following directions:
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ORDER
1. Defendants shall pay interest @ 12% p.a. on Rs.44,00,000/ (Rs.
Forty Four Lakh only) to be calculated from 1st July 2012 till its
realization, within a period of two months from the date of order;
2. Upon payment of the aforesaid interest, the plaintiff shall comply
his part by relinquishing his right, title and interest in Flat
no.11, Ganga Smruti Building, Mahul Road, Chembur, Mumbai.
3. The plaintiff is allowed to withdraw an amount of Rs.5,00,000/,
which was deposited by the defendants in this Court;
4. Matter be put up for compliance till 25.7.2022.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 24.5.2022 Greater Bombay.
Dictated on : 24.5.2022
Typed on : 25.5.2022
Draft given on : 25.5.2022
Signed on : 26.5.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
27.5.2022, at 11.45 am (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 24.5.2022
JUDGMENT/ORDER signed by P.O. on 26.5.2022
JUDGMENT/ORDER uploaded on 27.5.2022
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