1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.777 of 2008 In Execution Application (L) No.102 of 2007 In Arbitration Petition No.184 of 2005 L & T Finance Ltd. .. .. Plaintiffs v/s. Sewa Medicals Limited & anr. .. Defendants WITH Chamber Summons No.778 of 2008 In Execution Application (L) No.101 of 2007 In Arbitration Petition No.104 of 2005 L & T Finance Ltd. .. .. Plaintiffs v/s. M/s.Top Syringe Manufacturing Co. & ors. .. Defendants Ms.S.I. Joshi for Plaintiffs. Mr.N. Pandit with Ms.Trupti M. Kapadia with Ms.Nithi Singh i/by Jay Legal Associates for Defendants. Partner/Director of Deft.No.1 – present. ---- CORAM : SMT.ROSHAN DALVI, J. Dated : 5th September, 2008 2 P.C. : 1.The parties have entered into the Consent Terms on 4.10.2007, under which the Defendants abovenamed have acknowledged their liability to the extent of Rs.88,10,733/- with further interest at the rate of 18% thereon to be paid as mentioned in Clauses 2 and 3 of the Consent Terms. Upon two consecutive defaults made, the entire aforesaid amount was to become due and payable. 2.The Defendants defaulted. The entire amount became due and payable. The Plaintiffs were constrained to execute the decree. Both these Chamber Summons are taken out for directing the Defendants to deposit the decretal amount, for declaration of the assets to be made under Order 21 Rule 41 of the Code of Civil Procedure and other incidental reliefs. Pending the Chamber Summons, the Defendants have sought to deposit Rs.38 Lakhs representing the amount agreed to be paid in full and final settlement of the Plaintiffs' claim in both the Chamber Summons. The Defendants have produced a Demand Draft for this amount. Since the defaults have been made in December 2007 and March 2008, the Defendants have also tendered a cheque for the interest amount at the rate of 10% p.a. as per the suggestion of the Court. 3 3.The Consent Terms constitutes an agreement between the parties. The Court cannot vary the terms of the Agreement between the parties. Since the Consent Terms have been filed, it becomes a part of the order of the Court consequent upon which the decree has been passed. It is contended by the Defendants that the Consent Terms, therefore, is analogous to an order of the Court. The application of the Defendants, is orally made, to extend time under Section 148 of the Code of Civil Procedure read with Section 151 of the CPC in the interest of justice. 4.Mr.Pandit has relied upon a judgment in the case of Smt.Periyakkal and Ors. vs. Smt. Dakshyani, (1983) 2 S.C.C. 127 in which it is held that the Court has got a power to relieve against the forfeiture clause in the Consent Terms which becomes an order of the Court though the Court may not have the power to re-write the contract between the parties. It is, therefore, observed that in lieu of such Court' s order in terms of the compromise, time for deposit stipulated by the parties could be extended by the Court since it would be read as time granted by the Court under Section 148 of the CPC. The Defendants contend that this is only an application for enlargement of time. 4 5.In the same judgment a restraint upon the Court's power to extend such time has been put. The restraint runs thus:- “But the time would be granted in rare cases to prevent manifest injustice and it would not be extended ordinarily, nor for the mere asking.” 5.Thus far the Defendants have merely asked the Court to extend time. There is no case made out for extension of time except for showing bonafides by presentation of the aforesaid Demand Draft for the agreed amount and the reasonable interest for the period of delay. 6.Mr.Pandit contends that two of the Defendants are undischarged insolvents. I do not see how that becomes a rare case for settlement with one of the creditors. In fact, that would constitute fraudulent preference. 7.The only rare circumstance, in this case, is the Defendants' oral application accompanied by the Demand Draft and the cheque for the interest amount. It is only because the Defendants have shown their bonafides by production of the Demand Draft and the cheque that the Court can consider extension of time. The extension of time would be from the 5 date of delay until today being the date of the application and showing of bona fides. Hence, the following order:- ORDER i) In the interest of justice, time for payment, which has expired since December 2007 and March 2008, is extended till today. ii)The Demand Draft dated 18.8.2008 for Rs.38 Lakhs and the cheque dated 4.9.2008 for Rs.1,77,877/- produced by the Defendants are accepted pursuant to extension of time. They are handed over to the Plaintiffs' Advocate. This payment shall be in full and final settlement of the Consent Terms dated 4th October 2007. 8. Both the Chamber Summons are disposed of accordingly. [SMT.ROSHAN DALVI, J.]