1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2526 of 2009 in Suit No.1799 of 2009 Mrs.Kalawanti Advani ..Plaintiff vs. 1 Indresh Advani and ors. ..Defendants Mr.Virag Tulzapurkar, Sr.Counsel with Mr.Zubin Behram Kamdin and Mr.Vivek Vashi, Charles D Souza i/b Bharucha and Partners for plaintiff. Mr.Satish Shah with Mr.Munir Merchant for defendant no.1. Ms.Shakuntala Joshi i/b S.I.Joshi and Co. for defendeant no.5. CORAM: S.C. DHARMADHIKARI J. 27th November, 2009 P.C. 1 On this notice of motion ad-interim order was made by the Court on the last occasion and the parties are agreeable to the same being confirmed. 2 However, the plaintiff seeks further relief in terms of the Notice of Motion and 2 more particularly the prayer that she should be paid forthwith a sum of Rs.6 crores which is lying deposited in this Court with accrued interest. 3 It is this relief which is being contested only by defendant no.1. 4 The suit is filed by the plaintiff for a declaration that she is solely entitled to Escrow Amount Fixed Deposit of Rs.6 crores along with all accretions thereto. It is stated that this amount was invested in the capital gain account fixed deposit, senior citizen scheme in the account with defendant no.5 Bank. The first defendant has objected to the Bank releasing this sum after maturity to the plaintiff and that is how this suit for the afore mentioned declaration. 5 Mr.Tulzapurkar, learned Senior Counsel appearing in support of this motion contended that one Shyamsunder Advani (deceased) was the husband of the plaintiff. 3 The said Shyamsunder Advani passed away on 2nd June, 2001. The first defendant is the son of the plaintiff and the said Shyamsunder. Defendant no.2 is the daughter. Defendant nos.3 and 4 are the purchasers of the immovable property. Defendant no.5 is the Bank which acted as an Escrow agent. 6 It is common ground, according to Mr.Tulzapurkar, that under the sale deed dated 14th June, 2007 executed between defendant nos.3 and 4 on one hand, defendant nos. 1 and 2 on the other hand so also the plaintiff as a confirming party, the immovable property, more particularly described in paragraph 3 of the plaint, was sold and disposed of for Rs.42 crores. In this Motion, No reliefs are claimed against defendant nos.3 and 4. 7 It is stated that Shyamsunder left a Will. This Will is dated 12th May, 2001. The property was bequeathed to defendant nos.1 4 and 2 in equal shares. The plaintiff was bequeathed the right of residence during her life time. Mr.Tulzapurkar submits that in terms of this right created in favour of the plaintiff, she continued to reside in this bungalow/immovable property. In furtherance of the Will, Letters of Administration were applied for, which this Court granted on 10th April, 2003. Since defendant nos.1 and 2 were desirous of selling the bungalow, the plaintiff gave up her right of residence for her life provided she is paid sufficient money to purchase a alternative place for her residence. Mr.Tulzapurkar submits that for the remainder of her life the plaintiff does not wish to rely on anybody but wants to reside independently. She has no independent source of income but having to forgo her life time interest she was expecting a sizable share in the sale proceeds. Accordingly, a Memorandum of Understanding was drawn between 5 the purchasers, the plaintiff and defendant nos.1 and 2. Annexure B is the copy of the said MoU. In terms of clauses of MoU, more particularly clauses i(iii) to (v) the plaintiff was entitled to escrow amount of Rs.6 crores and it was to be paid over to her immediately on the contingencies mentioned in the MoU coming to an end. 8 Thereafter the sale deed was executed. The plaintiff was entitled to Rs.12 crores for relinquishment of her right of residence. The plaintiff was paid a sum of Rs.6 crores by pay order. However, after receiving their shares of Rs.12 crores and Rs.18 crores respectively, it was decided that the balance sum of Rs.6 crores to which the plaintiff was entitled should be deposited in an appropriate scheme with defendant no.5 Bank. The amount was kept aside because one Tulsi Miskita had filed a suit being suit no.1956 of 2002 in the City 6 Civil Court at Mumbai against the plaintiff and defendants herein. This suit was contested by the parties to the present suit. Since that suit was pending, this sum was kept aside in the joint name of the plaintiff, defendant nos.1 and 2 and the representative of defendant nos.3 and 4 Mr.Jigar A. Shah. It was kept in capital gain deposit account and more particularly in a senior citizen scheme with defendant no.5. 9 My attention is invited to the escrow agreement, copy of which is annexed as Annexure E to the plaint, and more particularly clauses 1 to 8 thereof by Mr.Tulzapurkar. He submits that once the suit was finally decided the amount was to be paid over to the plaintiff with accrued interest. If such is the mandate flowing from the agreement to which each of the parties to the present suit have been a signatory, then, once this document being been un-disputedly 7 executed and signed, the amount must come to the share of the plaintiff, more so when the suit no.1956 of 2002 has been dismissed. It has been confirmed by Mrs.Tulsi Miskita through her Advocate that she is not interested in restoration of the said suit and is satisfied with the order of the City Civil Court. In these circumstances, according to Mr.Tulzapurkar, the amount deposited in this Court, now must be handed over to the plaintiff, upon such terms as this Court deems fit and proper. Mr.Tulzapurkar submits that while confirming the ad-interim reliefs even this order should be passed. While it is true that this tantamounts to granting final order and relief in furtherance of the specific prayer in the suit, Mr.Tulzapurkar submits that the law on the point is well settled. This Court can pass a mandatory order and direction. This Court can even pass interlocutory order 8 in a mandatory form during the pendency of the suit. If a prima facie case is made out, then, there is no impediment in law in passing such order. In the present case even the balance of convenience is in favour of the plaintiff. She is a senior citizen, presently 74 years of age. In her old age, if this amount is not provided to her and she having booked another flat, irreparable loss and injury will also be caused to her. The amount belongs to her and the defendants have been paid over their share as per their arrangement. 10 My attention has been invited to the plaint averments by Mr.Tulzapurkar and the stand taken by the only contesting defendant, defendant no.1. It is on account of the objection of defendant no.1 that the amount is not released by the Bank earlier. Having brought this sum under the control of the Court, Mr.Tulzapurkar submits that 9 appropriate orders and directions in terms of the afore mentioned prayer be issued. 11 Mr.Tulzapurkar in support of his submission has relied upon the judgment of the Hon ble Supreme Court in the case of Dorab Cawasji Warden, Appellant Vs. Coomi Sorab Warden and others reported in A.I.R. 1990 S.C. 867. He has also relied on the order dated 8th October, 2008 in Notice of Motion No. 1801 of 2008 in Suit No. 1553 of 2008. 12 On the other hand Mr.Shah, learned Counsel appearing on behalf of the first defendant, submits that what the plaintiff is seeking at this interlocutory stage is a decree in her favour. It is not as if this is an admitted claim. It was agreed that the plaintiff would receive the sum of Rs.6 crores. This is a sizable sum by which she can buy a flat or lease a flat for residence. The plaintiff agreed that the interest on 10 this amount of Rs.6 crores should be invested in the Bank and interest accrued thereon would enable her to meet her household and further expenses in relation to her health. Accordingly, the amount was kept in a joint name of the plaintiff, first defendant and defendant no.2. The plaintiff has, till date, not purchased any flat or property for her residence and is staying with defendant no.2. The plaintiff has enough funds at her disposal and it is not as if she is in any manner inconvenienced. Mr.Shah submits that in the affidavit in reply to the notice of motion defendant no.1 has pointed out the reasons why the sum should not be released at this stage. This Court has secured interest of both sides in as much as defendant no.5 Bank is now permitted to retain the sum/deposit but in the name of the Prothonotary and Senior Master of this Court. The amount is brought under the management 11 and control of this Court. Further, the amount, if invested, in a Nationalised Bank, interest accrued therefrom can also be paid month to month to the plaintiff. For all this arrangement the first defendant has no objection. However, at this stage, the entire sum should not be released or else there would be nothing left at the stage of the trial. Mr.Shah has invited my attention to the affidavit in reply and more particularly sub paras 4(l) to (s). 13 Mr.Shah also submits that it is not as if the plaintiff has not been provided with anything. Apart from the sum which she has received and considering that earlier account was a joint account, it is denied that the plaintiff is entitled to the sums. On account of the detailed reasons set out in the affidavit, final orders should not be passed. Therefore, the ad-interim orders be confirmed but no other relief be granted. 12 14 Mr.Tulzapurkar, learned Senior Counsel has invited my attention to the fact that apparent reason as to why the amount should not be paid over to the plaintiff is a claim of a company called M/s Satchi Development Co. Pvt.Ltd. Mr. Tulzapurkar has pointed out that there was an agreement on 21st April, 2003 in favour of this company. The first defendant is alleging that he was required to pay certain amount to the said company and she has also told allegedly to her son to pay the sum of Rs.1.25 crores to another party called Ajit Khetani. Mr.Tulzapurkar submis that it is pointed out in details as to how this has nothing to do with the right and entitlement of the plaintiff. All these old matters cannot now be raised and the parties must be held by the clauses under the document to which they are signatories. In such circumstances, according to Mr.Tulzapurkar, linking the alleged 13 liability to the controversy in the instant suit is impermissible in law. 15 I have perused the plaint, annexures thereto and the affidavits placed on record. When the matter was placed before the Court earlier it is common ground that an ad- interim order came to be made. While passing the ad-interim order the Court was informed and it has been noted that there is no dispute that immovable property has been sold, consideration received i.e. the sale proceeds have been distributed save and except Rs.6 crores which are lying with defendant no.5 Bank. Without prejudice to the rights and contentions of the parties, it was agreed that the amounts which are mentioned at Sr.No.1 to 6 at paragraph 18 (pages 10 and 11) of the plaint be released by defendant no.5 Bank to the plaintiff on production of the authenticated copy of the order. This amount is the interest accrued 14 on the fixed deposit. Thereafter, it was pointed out that the deposit with defendant no.5 Bank itself has matured but the controversy before the Court at that stage was that the fixed deposit is in the joint name. Therefore, the amount should not be released was the request of the first defendant. On the other hand plaintiff claimed this amount to herself exclusively. Since the deposit had matured, without prejudice to the rights and contentions of the parties, it was directed that until the motion is heard and further orders are passed, defendant no.5 should retain the same but it be renewed in the name of the Prothonotary and Senior Master of this Court. That has been done and the order thus stands complied with. 16 The Escrow agreement is on record. That the vendors, namely, plaintiff and defendant nos. 1 and 2 to this suit by the 15 deed of conveyance dated 14th June, 2007 sold, transferred and assigned their entire right, title and interest in the property i.e. bungalow Shyamkal to defendant nos. 3 and 4 who are the purchasers is undisputed. The agreement recites that one Tulsi Miskita had filed the afore mentioned suit and it was pending. Both sides had stated in the agreement that Tulsi Miskita has no claim over the property and she has not made any application for interim relief and the suit is likely to be settled and/or disposed of in favour of the vendor and the confirming parties. Further recitals in the escrow agreement read thus: AND WHEREAS with a view to secure a claim which may arise on the said property in view of Suit No.1956 of 2002 to protect the purchasers against claim of the Vendor and the Confirming Party have agreed to deposit a sum of Rs.6,00,00,000/- (Rupees six crores 16 only) in the joint name of the Confirming Party and the Vendor and the representatives of the purchaser in Capital Gains Deposit Account in any nationalised Bank, which will be operated jointly only by all the said account holders in capital gains account scheme for a permissible period of two years and in the event the claim of said Mrs.Tulsi Miskita in BCCC suit no.1956 of 2002 is not settled/compromised/dismissed/decreed and/or by obtaining necessary orders that the property is in no way affected by the said Suit and/or claim, within the said period of two years, then the said amount would be kept in another escrow account as fixed deposit in any Nationalised Bank jointly in the name of the Confirming Party and the Vendor along with the representative of the purchasers to be operated upon jointly by them as a security and indemnity in the event of any claim and/or litigation in terms of suit no. 17 1956 of 2002. AND WHEREAS the Escrow Agreement the payment of Rs.6,00,00,000/- (Rupees Six Crores only) is consideration towards the sale of property and has nothing to do with the BCCSC suit no.1956 of 2002. AND WHEREAS the purchasers shall in no way demand reduction of price or refund of the amount kept in the said Escrow Account. It is agreed that this amount is the amount due as consideration for having sold the said property to the purchasers. Thereafter the agreement recites that a sum of Rs.6 crores which is kept aside should be released to the vendor and the confirming party i.e. in terms of clause 7 of the Escrow Agreement. 17 The Escrow agreement was executed and signed by all the parties to the suit save and except the Bank with whom the amount was to be deposited. Thereafter, my attention is 18 invited to the account opening form which is signed by the plaintiff and the further endorsement on the short/fixed deposit receipt namely CAPITAL GAIN FDR/SR.CITIZEN . Thereafter there is confirmation in the form of certificate dated 8th July, 2008 given by Axis Bank Ltd. The copy of the cheque is also annexed to the plaint. 18 Quarterly interest for the amount was being paid and that is confirmed by letter dated 11th July 2007 but the plaint allegation is that the same was not paid. 19 A letter dated 10th September, 2007 was addressed by the plaintiff to the Branch Manager and she requested that the quarterly interest on the amount due on 15th September, December, March and June and upto June, 2009be paid over to her by depositing it in the account with Union Bank of India, Cumballa Hill Branch. She informed the Bank that she has shifted to Mumbai and she will 19 require the interest amount to be deposited in this branch. She also prayed that the TDS certificate be issued. It is also brought to my notice that there is a letter addressed on 17th June, 2009 by the plaintiff to the Chief Manager, Union Bank of India and she stated therein that the original fixed deposit receipts are in her possession. She confirmed that the principal amount of Rs.6 crores is required by her. This is the amount from the sale proceeds of the residential property. The TDS on the accrued interest of Rs.6 crores is paid by the Bank on her behalf. Therefore, the pay order in the sum of Rs.6 crores with accrued interest be released in her favour. There is a certificate of 8th July 2008 which is also once again relied upon. The Bank confirmed on 18th June, 2009 that the deposit has matured. Since there was no response, the plaintiff through her Advocate addressed a letter to the Bank on 20 3rd July, 2009. 20 My attention is also invited to the order passed by the City Civil Court in the suit instituted by Tulsi Miskita wherein the roznama indicates that on 12th November, 2007 the suit appeared for recording of evidence. The evidence of the plaintiff was to be recorded but neither the evidence was led nor the party and Advocate attended the Court. The suit was dismissed in default. My attention is also invited to the letter dated 10th September, 2008 by M/s Dalal and Company informing the plaintiff that Tulsi Miskita is not interested in pursuing the suit and she would not apply for its restoration. Thus, the plaintiff addressed a letter to M/s Vigil Juris on 10th September, 2008 wherein reference is made in paragraph 5 thereof to a letter dated 31st July 2008 addressed by the said M/s Vigil Juris. The said M/s Vigil Juris desired confirmation of dismissal of 21 the suit of Tulsi Miskita. Thereafter, they may give instructions to release the escrow money as per the escrow agreement. The plaintiff s Advocate confirmed the receipt of letter of Dalal and Co. and, therefore, immediately called upon the first defendant and others to comply with the escrow agreement. A reference is made by the plaintiff to a letter dated 2nd March, 2009 from her Advocate to the first defendant setting out the entire events leading to the claim of the plaintiff. My attention is also invited to certificate of deduction of tax at source wherein the name of the plaintiff appears. 21 Having perused the entire correspondence in the light of the clauses in the agreement, while it is true that the suit is pending, a clear stipulation in the sale deed which is an admitted document cannot be ignored. The sale deed after the family tree 22 is set out recites that the plaintiff had acquired the right of residence in respect of the property by virtue of letters of administration in the Will and that she is ready and willing to relinquish her right of payment of Rs.12 crores out of the total consideration of Rs.42 crores. The first defendant has received Rs.18 crores, the plaintiff and defendant no.2 were to receive Rs.12 crores respectively. The sale deed was executed and it is common ground that everybody has been paid their share. Endorsement/receipt at page 79 would show the receipt of the same. The deed of declaration issued by the plaintiff in clause 2 also recites that she has received a sum of Rs.12 crores in lieu of her relinquishment and surrender of her rights. The Escrow agreement is only to secure the claim in suit no.1956 of 2002. Although, in the escrow agreement, it is recited that the vendor and the 23 confirming party have agreed to deposit Rs.6 crores in the joint name it is apparent that the same were kept aside only because of the suit, that there is clear stipulation therein that the amount has prima facie to be paid over to defendant no.1 or else the interest component would not be released in her favour. It is a case where the plaintiff alone is to receive the balance of the sale proceeds of Rs.6 crores i.e. half of Rs. 12 crores. All parties under the sale deed have received their share. While it is true that this suit is pending, the first defendant has raised an issue by relying upon the tripartite agreement dated 24th August, 2006 and that is how it is his case that the sum was kept in joint account and, therefore, the plaintiff is not exclusively entitled to the same, yet, having prima facie concluded that the plaintiff s share of Rs.12 crores is confirmed by even the first defendant, then, 24 in addition to the amount of interest on the fixed deposit the plaintiff should be paid some more amount. It is stated that she is interested in acquiring a flat in her name and she having booked it. In these circumstances, at this prima facie stage, bearing in mind, the clear stipulation in the documents relied upon by the plaintiff, interests of justice would be served if in addition to confirming the ad-interim order and directing release of the amount of interest from the fixed deposit periodically to the plaintiff, additionally, if the plaintiff produces the relevant documents demonstrating booking of a flat in her name, then, she will be permitted to withdraw a sum of Rs.3 crores from the amount lying in fixed deposit with defendant no.5. The compliance be done by the Prothonotary and Senior Master by part encashment of the Fixed Deposit with defendant no.5. The 25 Prothonotary and Senior Master/Registrar to permit such withdrawal only after the plaintiff produces the relevant documents pertaining to the purchase of a flat. In addition before the amount is released the plaintiff should to furnish security to the satisfaction of the Prothonotary and Senior Master. Until compliance is made with these conditions, the sum of Rs.3 crores should not be released. If the plaintiff does not produce any such document, then, all that she would be entitled to is the release of interest from the fixed deposit periodically in her favour and subject to final result of the suit. The Prothonotary and Senior Master should also allow withdrawal of the interest accrued upto June 2009 and from June 2009 till date and hereafter. This amount of interest which is accruing on the fixed deposit be released by the Prothonotary and Senior Master on production of the 26 authenticated copy of this order. 22 Needless to clarify that no final opinion is expressed on the merits of controversy. All contentions of both sides on merits are kept open. The order is passed without prejudice to the same. Similarly, release of any sums including the amount of Rs.3 crores as directed above shall also be without prejudice to the rights and contentions of the parties. The Motion is disposed off in the afore mentioned terms. In the view that I have taken it is not necessary to make any reference to the decisions cited at the bar. 23 The security that may be furnished by the plaintiff to be kept alive till the decision in the suit. Contesting defendants to file the written statement, if not already filed within a period of eight weeks from today. The suit shall be listed for framing of issues, as it involves senior citizen, on 27 2nd February, 2010. 24 It is the apprehension of Mr.Shah that the first defendant may not be aware of the contents of the documents in relation to booking of