1 CRA-628-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.628 OF 2011 Mrs.R.Shyamala ..Petitioner Vs Homsi Homi Mistry ..Respondent -- Mr.A.S.Khandeparkar with Mr.M.P.Tekavde, Ms.S.M.Tekavde, Mr.S.V. Dere, Ms.J.T.Gade, for petitioner. Mr.M.L.Palan, Senior Counsel i/b.Mr.J.P.Thakkar, for respondent no.1. -- CORAM : R.G.KETKAR, J. DATE : 10 th OCTOBER, 2011 P.C.: Heard Mr.A.S.Khandeparkar, learned counsel for the petitioner and Mr.M.P.Palan, learned Senior Counsel for respondent no.1. 2] Rule. Mr.M.L.Palan waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2 CRA-628-11.sxw 3] The petitioner has instituted this petition challenging the judgment and order dated 12 th August, 2011 passed by the learned Judge, City Civil Court, Mumbai in (i) Execution Application No.243 of 2011 (ii) Chamber Summons no.431 of 2011 and (iii) Chamber Summons No.434 of 2011 in Short Cause Suit No.1091 of 2010. By that order, the learned trial Judge allowed the Execution Application no.243 of 2011 taken out by the respondent – original plaintiff (hereinafter referred as “decree holder”) and dismissed the Chamber Summons no.434 of 2011 taken out by the petitioner – original defendant (hereinafter referred as “judgment debtor”). The learned trial Judge also dismissed the Chamber Summons no.431 of 2011 taken out by the decree holder. 4] The learned trial Judge directed the decree holder to deposit Demand Draft of Rs.Ten lacs in the name of judgment debtor within 3 CRA-628-11.sxw 15 days from the date of the order. He further ordered that on deposit of Demand Draft, the Office of Sheriff shall remove 10 articles as described in the list annexed to the execution application and after removal of these articles, they shall be kept at the place stated by the judgment debtor. In case of failure by the judgment debtor to state the place for keeping those articles, the decree holder is directed to make arrangement for keeping those articles and judgment debtor is directed pay costs of keeping those articles and decree holder is at liberty to seek order for their disposal in accordance with law. The learned trial Judge further directed the office of the Sheriff to take custody of license as mentioned in Clause 2.3.1 of the Conducting Agreement dated 20 th July, 2008 from the judgment debtor and hand it over to the decree holder. The learned trial Judge further gave liberty to the judgment debtor to ask for withdrawal of amount of Rs.Ten lacs on being deposited by the decree holder. The facts and 4 CRA-628-11.sxw circumstances, giving rise to filing of this Civil Revision Application, briefly stated are as under. 5] It appears that the decree holder was running and operating 35 mm./16 mm black and white and colour motion picture film processing laboratory in the name and style as M/s.Kene Sixteen situate at Jyoti Studio Compound, Kennedy Bridge, Nana Chowk, Mumbai (for short “suit premises”). By supplementary agreement dated 28 th February, 2004 made between the decree holder and judgment debtor, the decree holder had permitted the judgment debtor to conduct the said business of M/s.Kene Sixteen with respect to colour motion picture processing laboratory in the portion of the said premises upto 28 th July, 2008. The said supplementary agreement dated 28 th December, 2004 was determined due to efflux of time and the judgment debtor has requested the decree holder to 5 CRA-628-11.sxw permit her to conduct the said business of M/s.Kine Sixteen which was accepted by the decree holder and accordingly, the agreement styled as Conducting Agreement was entered into between the parties on 28 th July, 2008. Under clause 2.1, the agreement was valid for continuous about 44 months commencing from 28 th July, 2008 and ending on 27 th March, 2012. It appears that the dispute and differences arose between the parties and the decree holder instituted Short Cause Suit no.1091 of 1990 in the City Civil Court, Mumbai. The suit came to be disposed of in terms of consent terms dated 5 th May, 2010 entered into between the parties. The consent terms inter alia provided that the decree holder shall allow the judgment debtor to conduct the business at the suit premises for a period of 11 months from 1 st May, 2010 to 31 st March, 2011 on the same terms and conditions contained in the agreement dated 28 th July, 2008 except the period of said agreement. The judgment debtor 6 CRA-628-11.sxw undertook that she will cease to conduct the business at the suit premises on or before 31 st March, 2011. The decree holder agreed and undertook to refund to the judgment debtor a sum of Rs.Ten lacs being amount of security deposit paid by the judgment debtor to the decree holder pursuant to the conducting agreement dated 28 th July, 2008 without interest. The judgment debtor undertook that original license in respect of the said business of M/s.Kene Sixteen shall always remain in the custody of the decree holder. 6] It is the case of the decree holder that the judgment debtor handed over the possession of the suit premises voluntarily on 31 st March, 2011. However, the judgment debtor neither removed the articles lying in the suit premises nor handed over the license to the decree holder. In view of this, the decree holder took out Chamber Summons no.209 of 2011 for issuing directions to the judgment 7 CRA-628-11.sxw debtor to remove 10 articles as mentioned in Exhibit A which were lying in the suit premises as also for returning the original license to the decree holder. Upon hearing both sides, the learned Judge of the City Civil Court dismissed the Chamber Summons on 5 th May, 2011 and granted liberty to the decree holder to file execution proceedings. 7] It is the case of the decree holder that pursuant to that liberty, he made application for execution of decree under Order 21 Rule 11(2) of Code of Civil Procedure, 1908 (for short “C.P.C.”) for (i) issuing direction under Order 21 Rule 32(2) thereof directing the Sheriff of Mumbai to remove 10 articles as mentioned in exhibit A belonging to judgment debtor and presently lying in the suit premises; (ii) issuing process under Order 21 Rule 24 (1)(2) of C.P.C. by appointing one of the Court Officers for taking possession of the license from the judgment debtor as the judgment debtor failed to 8 CRA-628-11.sxw obey Clause 8 of the consent decree as mentioned in paragraph 3 of the Order dated 5 th May, 2011. 8] It appears that the judgment debtor instituted suit (Lodging) no. 1397 of 2011 on the original side of this Court under Section 6 of the Specific Relief Act, 1963 contending that the decree holder had illegally dispossessed her from the suit premises on 7 th April, 2011. It is the case of the judgment debtor that the decree holder did not pay amount of Rs.10 lacs before calling upon the judgment debtor to hand over possession. In fact, the decree holder is liable to pay Rs.10 lacs towards security deposit and further amount of Rs.10,45,000/- paid by the judgment debtor to the decree holder. The judgment debtor was threatened and consequently, on 28 th March, 2011, the complaint was lodged to that effect. 9 CRA-628-11.sxw 9] During the pendency of the suit instituted on the Original Side, the judgment debtor took out Notice of Motion for restoration of possession. On 22 nd June, 2011, by consent of the parties, the Court gave liberty to the judgment debtor to remove their articles lying in the suit premises in the presence of an Officer of the Court to be appointed by the Prothonotary and Senior Master. It was made clear that the pendency of this proceedings shall not prevent the decree holder from continuing with the execution proceedings. 10] It seems that the judgment debtor took out the Chamber Summons no.434 of 2011 for dismissal of execution application as also for staying the execution till the pendency of Chamber Summons and till the disposal of the suit instituted in this Court. On 21 st June, 2011, the learned Judge of the City Civil Court granted ex-parte ad- interim stay to the execution of decree. In view of this, the decree 10 CRA-628-11.sxw holder took out Chamber Summons no.431 of 2011 for vacating the ex-parte order granting stay as also for relieving him from carrying out the obligation mentioned in terms of the consent terms; for declaring that the judgment debtor has no claim over the suit premises as also granting liberty to apply for satisfaction of the decree. By the impugned judgment and order, the learned trial Judge allowed the execution application and dismissed the Chamber Summons no.434 of 2011 filed by the judgment debtor. The learned trial Judge also dismissed the Chamber Summons no.431 of 2011 filed by the decree holder and issued directions as mentioned earlier. 11] In support of this petition, Mr.Khandeparkar submitted that the learned trial Judge committed serious error and contended that the learned trial Court has exercised the jurisdiction not vested in it by law and has failed to exercise the jurisdiction so vested in it and / or 11 CRA-628-11.sxw acted in exercise of jurisdiction illegally or with material irregularity which resulted into miscarriage of justice. He invited my attention to the F.I.R. lodged by the judgment debtor on 28 th March, 2011 and the statement recorded by Gamdevi Police Station. In the first place, he submitted that the judgment debtor was illegally dispossessed from the suit premises on 7 th April, 2011. Secondly, he submitted that the decree holder did not refund the security deposit of Rs.10 lacs as also additional amount of Rs.10,45,000/- paid by the judgment debtor to him. Thirdly, the executing Court cannot go behind the decree and issue directions which do not form part of the decree which was passed in terms of the consent terms dated 5 th May, 2010. 12] On the other hand, Mr.Palan, learned counsel supported the impugned order. 12 CRA-628-11.sxw 13] I have considered the rival submissions made by the learned counsel for the parties. It is not in dispute that the decree holder instituted Short Cause Suit No.1091 of 2010 in the City Civil Court, Mumbai and the same was disposed of in terms of consent terms dated 5 th May, 2010. Under the consent terms, the decree holder allowed the judgment debtor to conduct the business from the suit premises upto 31 st March, 2011. The judgment debtor undertook that she will cease to conduct the business on or before 31 st March, 2011. The decree holder agreed and undertook to refund sum of Rs.Ten lacs being amount of security deposit paid by the judgment debtor to decree holder without interest to the judgment debtor ceasing to the conduct the business of M/s.Kene Sixteen and cease to occupy the suit premises. The judgment debtor undertook that the original license in respect of the business of M/s.Kene Sixteen shall always remain in the custody of decree holder. 13 CRA-628-11.sxw 14] It is further not in dispute that the decree holder took out Chamber Summons no.309 of 2011 for directing the judgment debtor to remove 10 articles as mentioned in exhibit A and to return the original license to the decree holder. By order dated 5 th May, 2011, the learned Judge of the City Civil Court dismissed the Chamber Summons and granted liberty to decree holder to file execution proceedings. Pursuant to that liberty, the decree holder filed execution proceedings which was numbered as Execution Application No.243 of 2011. The decree holder prayed for issuing direction under Order 21 Rule 32(5) thereby directing the Sheriff of Mumbai to remove the 10 articles as mentioned in exhibit A belonging to the judgment debtor and presently lying in the suit premises and for issuing process under Order 21 Rule 24(1) (2) by appointing one of the Court Officers for taking possession of the license from the 14 CRA-628-11.sxw judgment debtor as the judgment debtor failed to obey Clause 8 of the consent decree and as mentioned in paragraph 3 of the order dated 5 th May, 2011 and hand over to decree holder. There is serious dispute between the parties as regards the manner in which possession of the suit premises is taken by the decree holder. It is the case of the decree holder that the judgment debtor voluntarily handed over the possession on 31 st March, 2011. As against this, it is the case of the judgment debtor that the decree holder illegally dispossessed the judgment debtor on 7 th April, 2011. The learned trial Judge declined to enter into this controversy of two grounds namely firstly, the judgment debtor did not seek any relief as regards issue of dispossessing the judgment debtor and secondly, the judgment debtor has instituted suit under Section 6 of the Specific relief Act, 1963 on the Original Side of this Court. He was therefore of the view that the said issue cannot be gone into as per Section 47 15 CRA-628-11.sxw of the C.P.C. 15] Mr.Khandeparkar strenuously contended that perusal of application for execution of decree would indicate that the same bears the date of 20 th April, 2011 and the affidavit is sworn by the decree holder on 14 th June, 2011. Thus, even before disposal of Chamber Summons No.309 of 2011, the decree holder had filed execution application. Even accepting the submission of Mr.Khandeparkar that the application for execution of decree was filed on 20 th April, 2011, in my opinion, that does not vitiate the said proceedings. At the highest, it can be said that the decree holder ought not have taken out Chamber Summons No.309 of 2011 and in fact, that was rightly dismissed by the learned trial Judge by granting liberty to file execution application. It is admitted that present application for execution is filed for execution of consent decree 16 CRA-628-11.sxw dated 5 th May, 2010. I therefore do not find any substance in this submission 16] Mr.Khandeparkar further contended that the Executing Court cannot go behind decree. In that regard, he submitted that perusal of consent terms does not indicate that there is any clause providing the judgment debtor to remove the articles. The trial Judge considered this submission in paragraph 28 of the impugned order. Clause 3.02 of the agreement dated 28 th July, 2008 recited that on the expiry or sooner determination of the agreement, the judgment debtor shall remove herself as also her personnel and their respective belongings from the suit premises. In clause 3 of the consent terms, the judgment debtor undertook that she will cease to conduct the decree holder’s business at the suit premises on or before 31 st March, 2011. It was, therefore, implicit that on or after 31 st March, 2011, the 17 CRA-628-11.sxw judgment debtor was to cease to conduct of the business thereby removing her articles. In my opinion, the learned trial Judge was perfectly justified in considering the request of the decree holder for removing the articles. 17] It is also material to note that the judgment debtor instituted the suit on the Original Side of this Court wherein, she prayed for direction to the decree holder (defendant therein) to quit and hand over vacant possession of the suit premises along with the machineries, equipments and spare parts and film material. In paragraph 3 of that application, the judgment debtor (plaintiff therein) claimed that the machineries, equipments etc. belonging to them are worth more than Rs.2.5 Crores and are lying in the suit premises. Thus, even the judgment debtor admits that her articles are lying in the suit premises. Despite this position, by consent of the parties, 18 CRA-628-11.sxw this Court gave liberty to the judgment debtor to remove her articles. I am, therefore, of the opinion that the learned trial Judge was perfectly justified in considering the request of the decree holder for removal of the articles of the judgment debtor. It is further material to note that in clause 4 of the consent terms, the judgment debtor admitted and confirmed that she has no right of any nature whatsoever in respect of M/s.Kene Sixteen or the suit premises except to conduct the business of M/s.Kene Sixteen upto 31 st March, 2011. Thus, she had merely a right to conduct the business of M/s. Kene Sixteen upto 31 st March, 2011 and had no right whatsoever in respect of the said business or suit premises. 18] Taking overall view of the matter, I do not find that the learned trial Judge committed any error touching the jurisdiction. It cannot be said that the learned trial Court has exercised the jurisdiction not 19 CRA-628-11.sxw vested in it by law or that has failed to exercise so vested in it. It cannot be said that the learned trial Judge acted in exercise of jurisdiction either illegally or with material irregularity. No such case is made out. In the result, the impugned order does not suffer from any infirmity. Rule is discharged. In the circumstances of the case, there shall be no order as to costs. 19] At this stage, the learned counsel for the petitioner orally applied for extension of time granted on 26 th August, 2011 by the learned Judge of the City Civil Court for a further period of eight weeks from today. He invited my attention to the order dated 26 th August, 2011 passed by the learned Judge, City Civil Court in S.U. No.1091 of 2010 whereby, the learned Judge extended the time granted on 12 th August, 2011 for a period of 15 days from the date of the order. 20 CRA-628-11.sxw 20] On the other hand, the learned counsel for the respondent opposed the application made by learned counsel for the petitioner. 21] I have considered the submissions made by learned counsel for the parties. In view of the consent order dated 22 nd June, 2011 passed by this Court in Notice of Motion taken out by the petitioner in Suit [L] No.1397 of 2011, in my opinion, no case for extension of time is made out. This is particularly when the impugned order protects the interest of the petitioner. Hence, oral application for extension of time is rejected. [R.G.KETKAR, J.]