Bombay High Court
Shri Pranesh Gupta And M/S Gupta Brother ... vs Shri Jagdish Bansilal Khurana And ... on 12 December, 2018
Author: K. R. Shriram
Bench: K. R. Shriram
1 903 EXA 1091 - 2015 w CHS 402 &1426-16.doc
Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
EXECUTION APPLICATION NO. 1091 OF 2015
Shri Pranesh Gupta and another ... Decree Holders
Vs.
Shri Jagdish Bansilal Khurana ... Judgment Debtors /
Respondents
WITH
CHAMBER SUMMONS NO. 402 OF 2016
JM Financial Asset Reconstruction
Company Pvt.Ltd. ... Applicant
In the matter between
Pranesh Gupta and another ... Decree Holders
Vs.
Shri Jagdish Bansilal Khurana ... Judgment Debtor /
Respondent
WITH
CHAMBER SUMMONS NO. 1426 OF 2016
AND
CHAMBER SUMMONS NO. 751 OF 2017
IN
EXECUTION APPLICATION NO. 1091 OF 2008
Rajinder Mehta ... Applicant
In the matter between
Pranesh Gupta and another ... Decree Holders
Vs.
Shri Jagdish Bansilal Khurana and another ... Judgment Debtors /
Respondents
Mr.Kishore Jain a/w Ms.Priyal Chheda i/b Jayant Gaikwad, for the
Judgment Creditor.
Mr.Vivek V.Phadke, for Respondent No.1 / Judgment Debtor.
Ms.Sayli Apte i/b P.G.Lad, for Respondent No.2.
Mr.Sumeet Bansod i/b LJ Law, for Applicant in CHS No.1426/2016.
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Mr.Jakir M.Saiyed - Representative of SNZ Developers Pvt. Ltd., Bidder
present in Court.
Mr.Satish D.Chitgopekar, Dy.Sheriff of Mumbai present.
CORAM : K. R. SHRIRAM, J.
Date : 12th December, 2018.
P.C. :
By order dated 23 October 2018 passed by Division bench in Appeal (Lodging) No.442 of 2018 with Appeal (Lodging) No.443 of 2018 paragraph 3(c) reads as under -
'3(c). To enable the parties to apply, the period of 15 days fixed under clause (ii) of paragraph 18 of the judgment and order dated 30th August 2018 in Appeal Nos.302 and 303 of 2018 is extended by a period of 15 days from the date on which this order is uploaded;'
2. In the order dated 30 August 2018 in Appeal No.302 of 2018 and Appeal No.303 of 2018 the Division bench has ordered as under :
'18.(ii) The impugned order to the extent to which it decides Chamber Summons No.751 of 2017 is modified by directing the Sheriff of Mumbai to remove the locks and seal put by him on the gate of the subject building on expiry of period of 15 days from the date on which this judgment and order is uploaded. As we are unable to record any finding as regards possession of the said plot and structures thereon on the day the same was locked and sealed by the Sheriff, we grant liberty to the parties to take out appropriate proceedings. We, however, make it clear that we have made no adjudication on the question whether the appellant was in possession of the subject plot and structures thereon when the Sheriff locked and sealed the gate. All these questions are kept open to be decided in ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 05:59:00 :::
3 903 EXA 1091 - 2015 w CHS 402 &1426-16.doc appropriate proceedings in accordance with law. There will be no order as to costs. Pending notices of motion, if any, stand disposed of.
3. The order dated 23 October 2018 was uploaded on 30 October 2018. Fifteen days period expired on 15 November 2018. Till date neither the Judgment Debtor nor the Claimant Rajinder Mehta, have filed any document to prove possession of the said land and structures thereon when the Sheriff locked and sealed the gate of the suit premises. Therefore, there is no impediment to prayer clause
(a) to the Sheriff's Report No.71 of 2018 being granted.
4. One Mr.Jakir Saiyed from SNZ Developers Pvt. Ltd. has offered to pay sum of Rs.4,51,00,000/- for the same property and tendered a letter dated 12 December 2018 addressed to the Sheriff of Mumbai. Also enclosed to the said letter is a pay order for Rs.5,00,000/-. It has to be noted that this premises was put for auction five times and no bidder came forward. This SNZ Developers Pvt. Ltd. also could have come forward to make that offer at that time. Therefore, without giving any further Public notice, I am not inclined to accept the offer of SNZ Developers Pvt. Ltd. Morever, as per public notices for auction issued earlier the EMD of Rs.50,00,000/- ought to have been given. Even on that count, I am not inclined to accept this offer. Moreover, the person who is present in Court is not even an officer of the Company but claims to be brother in-law of Director of SNZ Developers Pvt. Ltd.
5. Mr.Jain on instructions states that his client is ready to pay a sum of Rs.4,51,00,000/- as against Rs.3,50,00,000/- noted in ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 05:59:00 ::: 4 903 EXA 1091 - 2015 w CHS 402 &1426-16.doc the Sheriff's report. I am inclined to accept that offer and it is hereby accepted.
6. Mr.Phadke, counsel appearing for Judgment Debtor supported by Mr.Bansod, appearing for Rajinder Mehta, on instructions undertakes that the Judgment Debtor shall pay a sum of Rupees Eight crores in full and final settlement to the Judgment Creditor within eight months from today. Mr.Jain is unable to accept or reject for want of instructions. Mr.Phadke to show the bonafides of his clients undertakes to pay a sum of Rs.1,00,00,000/-(Rupees One Crore only) to Mr.Jain's client Judgment Creditor, by 11.30 a.m. on 18 December 2018 and further sum of Rs.1,00,00,000/- (Rupees One Crore only) by 11.30 a.m. on 27 December 2018. Undertaking accepted. If the amount of Rs.1,00,00,000/- is not paid on 18 December 2018 or on 27 December 2018, the Court Receiver to hand over possession to Judgment Creditor without even referring the matter to the Judgment Debtor or to Mr.Rajinder Mehta and without any further reference to this Court.
7. The statement of Mr.Phadke and Mr.Bansod that they shall not apply to this Court for extension of time for payment of this amount and particularly to vacation Court or appeal Court, is accepted.
8. Sheriff's Report accordingly disposed.
9. It is clarified that this amount of Rs.4,51,00,000/- after deducting costs of execution proceedings and Sheriff's poundage will ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 05:59:00 ::: 5 903 EXA 1091 - 2015 w CHS 402 &1426-16.doc be given to the credit of Judgment Debtor. For the balance amount the Judgment Debtor is entitled to approach the Court in execution.
(K. R. SHRIRAM, J.) ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 05:59:00 :::