Bombay High Court
Ecap Equities Limited vs Welldone Software Consultancy Private ... on 12 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
29. COMSS 33-23 @ IAL 12360-23 in COMSS.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 12360 OF 2023
IN
COMMERCIAL SUMMARY SUIT NO. 33 OF 2023
ECAP Equities Limited ...Applicant/Plaintiff
V/s.
Welldone Software Consultancy Pvt.Ltd. & Ors. ...Respondent/
Defendant
Dr. Birendra Saraf, Senior Advocate, with Mr. Rohan Sawant,Mr. Sachin
Chandarana and Mr. Archit Shah i/b Manilal Kher Ambalal & Co. for
Applicant/Plaintiff.
Mr. Harsh Moorjani with Mr. Mayur Shetty and Ms. Honey Chandnani
i/b Rajani Associates for Defendants No. 1 to 4.
CORAM : ABHAY AHUJA, J.
DATE : 12th JANUARY, 2024 P.C. :
1. This interim application has been urgently moved on behalf of the Plaintiff in as much as by order dated 10 th January, 2024, in Commercial Execution Application (L) No. 381 of 2019 in Commercial Summary Suit No. 1139 of 2018 with Court Receiver's Report No. 134 of 2022 in Commercial Summary Suit No. 1139 of 2018 (the "settled litigation"), another bench of this Court has disposed of the interim applications and chamber summons, in view of the settlement between the parties dated 7th July, 2023 and the Court Receiver appointed by the Court in respect of the properties of the Respondents/original Nikita Gadgil 1/5 ::: Uploaded on - 12/01/2024 ::: Downloaded on - 15/01/2024 01:16:46 :::
29. COMSS 33-23 @ IAL 12360-23 in COMSS.doc Defendants, who are Defendants (except Defendant No.1) in this suit as well, has been discharged without drawing up accounts and on payment of costs, charges and expenses to be borne by the Applicant/original Plaintiff therein, but subject to the Court Receiver taking appropriate steps for return of the properties to the Respondents/original Defendants therein, being the Defendants herein (except Defendant No.1) from whom the properties were taken.
2. Dr. Saraf, learned Senior Counsel for the Plaintiff herein, would submit that earlier in view of the orders in the settled litigation, the Plaintiff herein was also in a way protected from any disposal of the properties secured by undertakings given by the Defendants in respect of the assets disclosed pursuant to the disclosure affidavits dated 27 th June, 2023, however, since the passing of the said order dated 10 th January, 2024, that protection appears to have been lost.
3. Mr. Moorjani, learned Counsel for the Defendants No. 1 to 4 submits, on instructions, that the Haryana properties, which are listed in a schedule starting from page no. 201 and ending on page 206 of the rejoinder and also disclosed in the disclosure affidavits of the Defendants, have been sold and the proceeds thereof have been paid to Nikita Gadgil 2/5 ::: Uploaded on - 12/01/2024 ::: Downloaded on - 15/01/2024 01:16:46 :::
29. COMSS 33-23 @ IAL 12360-23 in COMSS.doc the IL&FS Financial Services Ltd., who was the original Plaintiff in the settled litigation. Learned Counsel would submit that he is not aware of the date on which the said transaction has been effected.
4. Dr. Saraf, learned Senior Counsel would submit that if that be the case, that despite the undertakings given by the Defendants, the purported sale transaction in respect of the Haryana property has been effected, this Court not only grant reliefs in terms of prayer clause (b), but also appoint a Court Receiver in respect of all the assets listed in the affidavits of disclosure of the Defendants dated 27 th June, 2023. Further, in addition to that, the Defendants should also undertake not to execute any further documents or receive any further monies in respect of the Haryana properties purportedly sold.
5. At this stage, Mr. Moorjani, learned Counsel for Defendants No. 1 to 4, on instructions, states that his clients, the Defendants, would not create any third party rights in respect of the properties / assets disclosed in the affidavits of disclosure dated 27 th June, 2023 by the Defendants save and except the information that he has submitted in respect of Haryana land. The statement is accepted. Nikita Gadgil 3/5 ::: Uploaded on - 12/01/2024 ::: Downloaded on - 15/01/2024 01:16:46 :::
29. COMSS 33-23 @ IAL 12360-23 in COMSS.doc
6. However, considering that despite the undertakings given in respect of the assets of the Defendants and Court Receiver having been appointed earlier in the settled litigation who has been discharged and by order dated 10th January, 2024, (subject of course to the said Court Receiver taking steps for return of properties to the original Defendants), the Haryana land has been purportedly sold, this Court deems it appropriate to appoint a Court Receiver, High Court Bombay in terms of prayer clause (e), in respect of the assets and properties disclosed by the Defendants in the affidavit of disclosure dated 27 th June, 2023 until the next date. Also until the next date, the Defendants not to execute any further documents or receive any further monies in respect of the Haryana properties purportedly sold.
7. The Court Receiver appointed as above is also directed to furnish a report to this Court with respect to the Haryana properties before taking any steps for returning the properties to the Respondents / original Defendants, pursuant to the order dated 10 th January, 2024 in the settled litigation, as the properties involved in the settled litigation are statedly the same are disclosed in the affidavits of disclosure dated 27th June, 2023 by the Defendants / Respondents.
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29. COMSS 33-23 @ IAL 12360-23 in COMSS.doc
8. Let the further details of purported sale of Haryana properties be furnished by the Defendants / Respondents under an affidavit by the next date.
9. List as per schedule on 24th January, 2024.
(ABHAY AHUJA, J.) Nikita Gadgil 5/5 ::: Uploaded on - 12/01/2024 ::: Downloaded on - 15/01/2024 01:16:46 :::