1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Review Petition (Lodging) No.111 of 2009 In Notice of Motion No.3550 of 2005 In Summons for Judgment No.446 of 2004 In Summary Suit No.3114 of 1997 1.Mr.Vinod M. Kamdar & ors. .. .. Petitioners (Orig. Defendants) v/s. Mrs.Eena S. Teckchandani .. .. Respondent (Orig. Plaintiff) Mr.Jagdish C. Shah i/by Mr.Atul G. Damle for Petitioners/Defendants. Ms.Sapna Raichure i/by M/s.T.N. Tripathi & Co. for Respondent/Plaintiff. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 18th January, 2010 P.C. : 1.The Petitioners (original Defendants) have sought to review my order dated 17.7.2008. In that order the 2 Petitioners, represented by their Advocate Mr.A.M. Saraogi, had shown their willingness to deposit the interest amount which was then remaining due and payable. Certain other amounts were deposited earlier when the ex-parte decree in the Summary Suit came to be set aside twice. 2.The decretal amount was specified to Rs.15,41,519/- as interest in July 2008 in my order dated 17 th July 2008. That was excluding the amount deposited earlier by the Petitioners as the Defendants in the Suit. The amount of Rs.15,41,519/- and Rs.10,000/- by way of costs were to be paid within 4 weeks. Upon that amount being paid, the Suit was to be restored to file. If it was not paid, the Respondent (original Plaintiff) was allowed to proceed in execution. 3.The amount was not paid. In fact, the order was appealed. I am told that the Appeal was withdrawn. The amount remained to be paid and hence the Suit was not restored to file. However, since the amount, though admitted and offered to be paid, was not paid, the decree that came to be passed was to be executed. 4.The Respondent herein (the Plaintiff in the Suit) proceeded in execution. The execution proceedings are pending before the Commissioner for Taking Accounts. 3 The Petitioners are required to disclose their assets. The Petitioners Advocate states that there is only one asset which is an immovable property mentioned in paragraph 4 of the Review Petition. That statement is accepted. 5.The Petitioners in Review Petition essentially pray for time to sell off that property which is their residential flat, which is at present vacant, to pay off their dues under the decree which has been passed and which has come to be final. 6.Interest of justice requires that the Petitioners be given some more time to pay off their decretal dues from the sale of the flat as offered by them in paragraph 4 of the Review Petition. 7.The Petitioners submit that the property is worth Rs.1 Crore. Mr.Shah on behalf of the Petitioners orally stated that the property would fetch approximately Rs. 80 Lakhs. This would satisfy the Respondent s claim in full. The Respondent would be entitled to have the property attached and sold in execution of the decree passed in Summary Suit No.3114 of 1997. However, on the application of the Petitioners since the Petitioners have offered the property as security and have made the offer through their Advocate to sell the 4 property and realise its true value, the attachment and sale, which would ultimately culminate in an auction sale, may not be directed at present since the Petitioners contend that proper value would not be received in an auction sale. 8.The only equitable order that can be passed is to have the Petitioners sell their property by private treaty and to pay off the Plaintiff in the Suit. Hence the following order:- ORDER (i) The immovable property of the Petitioners being their residential flat at Makanji Mansion Tenants Co-operative Housing Society Ltd., Balgovind Das Road, Mumbai-400 016, is accepted as security offered by the Petitioners. (ii)The said property is to be sold for payment of the entire decretal amount with up-to-date interest to be paid to the Respondent herein being the Plaintiff, who has obtained the decree. (iii) Both the parties shall invite and obtain offers for sale of the said property within 4 weeks from today. The said offer shall be made to the Commissioner for Taking Amounts. (iv)The Commissioner shall accept the higher offer and 5 sell the property to the higher bidder. (v)The entire sale price shall be deposited by the bidder with the Prothonotary and Senior Master of this Court. The Prothonotary and Senior Master shall deduct the sum of Rs.15,41,519/- with further interest thereon at the rate of 18% per annum and further costs of Rs. 10,000/- of this Review Petition and invest that amount in a Fixed Deposit Receipt of any Nationalised Bank, initially for a period of 37 months. (vi)Upon such deduction being made, the decree passed in the Suit shall be set aside and the Summary Suit shall be restored to file. (vii)The Prothonotary and Senior Master shall return the amount received in excess of the Respondent s claim in Suit to the Petitioners herein. (viii)It is clarified that if the Petitioners fail to obtain any offer within 4 weeks from today, the offer of the Respondent, if any, shall be accepted. In the absence of any offer of the Respondent also the decree passed in this Suit shall stand confirmed and the execution proceedings shall continue. (ix)The Review Petition is disposed of accordingly. [SMT.ROSHAN DALVI, J.] 6