1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8809 OF 2009 Zohra Nazir Baazkhan alias Zohra Parvez Khan & Anr. .. Petitioners versus Lodha Dwellers Pvt Ltd & Ors. .. Respondents Mr.Prakash Shah for the petitioners. Ms.Sheetal Sampat for respondent No.1. Mr.Vishal Kanade i/by Solomon & Co for respondent No.2. CORAM : A.S.OKA, J. DATE : 30th April 2010. JUDGMENT: . The parties were put to notice that the petition will be taken up for final disposal at admission stage. 2. The petitioners are the original plaintiffs and the respondents are the defendants. The petitioners filed a suit for declaration that they are the co-sharers of the suit properties mentioned in Exhibit A to the plaint. Various other reliefs were prayer for in the suit. In the plaint it is asserted that the petitioners are the legal representatives of late Mohammad Baazkhan who was the lawful owner of the suit properties. The 2nd defendant is stated to be one of the heirs and the legal representatives of the said Mohammad. The 2nd defendant is the brother of the plaintiffs. The 3rd and 4th defendants are the heads of the family holding power of attorney of 38 persons including the petitioners. It was stated that in November 2007 the 2nd to 4th respondents obtained signatures of the petitioners and other 2 co-sharers on certain blank documents. The petitioners were informed that ancestral properties were being sold to the 1st respondent who is a builder. It was contended that the 2nd to 4th respondents have represented to the petitioners that they will get their share out of the sale proceeds. Thereafter, enquiries were made by the petitioners with the 2nd respondent who declined to give answer. 3. A reference has been made to various documents allegedly executed in favour of the 1st respondent including an agreement for sale. It is stated that on the basis of power of attorney, agreement for sale was executed in which total agreed consideration was shown as Rs.21 crores and 50 lakhs. It was contended that the value of the suit property was four times more than agreed consideration. It is alleged that the first installment of consideration was released to the co-sharers and it is alleged that 2nd to 4th respondents and other members of the family have received said payment. A notice was sent on 25th March 2008 by the petitioners to the 1st respondent. The 1st respondent was called upon to supply copies of various documents. The said notice was replied by the 1st respondent. It is alleged in the plaint that the petitioners learnt that further installment was to be released by the 1st respondent till May 2008. Reliance is placed on notices and correspondence exchanged between the parties. One of the prayers in the suit is for permanent injunction restraining the 1st respondent from making any further payments to 2nd to 4th respondents. There is prayer for injunction and appointment of Court Receiver. The suit is being contested by the 1st respondent as well as other respondents. It appears that on 19th June 2008 a purshis was filed by the 1st respondent (1st defendant) stating that the share of the petitioners in the agreed cosideration of Rs.70 lakhs will be deposited by the 1st respondent in the Court. It appears that on the basis of the said purshis, an 3 amount of Rs.70 lakhs was deposited by the 1st respondent on 20th September 2008. The petitioners applied for withdrawal of the said amount. The application for withdrawal was opposed by the 2nd respondent by filing a reply. Thereafter, consent terms were filed on 6th July 2009 to which the petitioners, 1st respondent as well as 3rd and 4th respondents are parties. The consent terms were verified on 6th July 2009 and the same were read and recorded. Clause 2 of the consent terms reads thus: “2. The share of each plaintiff according to the Shariat Law being 1/9th of Rs.2.80 crores, being the share of legal heirs of Nazir Baazkhan as the co-shares of the family and accordingly the share of each plaintiff is Rs.31,11,000.” Clause 1 records that the petitioners will be entitled to 1/9th share instead of 1/8th as mentioned in the plaint. Clauses 4 and 5 of the consent terms read thus: “4. The defendant No.2 alleges that he has given two kgs gold bars to the plaintiff No.1 and Rs.15 lacs as interest from loan to the plaintiff No.2. Both the plaintiffs deny these allegations of the defendant No.2. 5. The plaintiff No.1 specifically denies having received 2 kgs gold bars from defendant No.2 and similarly plaintiff No.2 denies receiving Rs. 15 lacs as interest-free loan from defendant No.2. This representation of the plaintiffs is the basis for the execution of the consent terms. The plaintiff Nos.1 and 2 hereby indemnify the defendant No.1 from any claim, action or dispute and to hold the defendant No.1 harmless from 4 any loss or damage on account of any action of defendant No.2 arising out of the agreement for sale dated 22nd April 2008 or incidental thereto in view of the defendant No.1 agreeing and consenting to the withdrawal of Rs.25 lacs each by the plaintiffs from the amount deposited in the Hon’ble Court by the defendant No.1. Accordingly, the defendant Nos.1, 3 and 4 have consented and allowed the plaintiffs to withdraw Rs.25 lacs each out of the deposited amount of Rs.70 lacs deposited in the Hon’ble Court.” Clauses 6 and 7 of the consent terms read thus: “6. It is agreed by the plaintiffs, defendant No.1 and defendant Nos.3 and 4 that at this stage the defendant No.1 have agreed to the plaintiffs withdrawing their following shares from their respective shares in the following manner: (i) As the interim payment the plaintiffs are allowed to withdraw Rs.25 lacs each from the amount of Rs.25 lacs each from the amount of Rs.70 lacs deposited by the defendant No.1 in the Court. (ii) Out of the remaining amount of Rs.20 lacs the sum of Rs. 12 lacs will remain with this Hon’ble Court till further orders and the defendant No.1 be allowed to withdraw the sum of Rs.8 lacs. 7. It is agreed between the plaintiffs and defendant No.1, defendant 5 Nos.3 and 4 that in the event the dispute with the defendant No.2 is not resolved by the defendant No.1 within a period of eight months from the date of filing the consent terms, the plaintiffs shall thereafter be allowed to withdraw Rs.3 lacs each.” 4. Thereafter, an application was made by the 2nd respondent on 18th July 2009 seeking a direction not to release the amount to the petitioners. A reply was filed to the said application by the petitioners. There was further application made on 19th August 2009 by the 2nd respondent contending that the amount of Rs.70 lakhs has been deposited by the 1st respondent only to show readiness and willingness and therefore unless rights of the parties are decided ,the amount cannot be permitted to be withdrawn. By the impugned order dated 2nd September 2009, the learned trial Judge modified the orders passed on the basis of the consent terms and instead of unconditional withdrawal a sum of Rs. 50 lakhs, the petitioners were permitted to withdraw the said amount subject to furnishing bank guarantee. This is the order impugned in the present petition. 5. The learned counsel appearing for the petitioners submitted that the amount of Rs.70 lakhs is deposited towards the share of the petitioners by the 1st respondent. He submitted that the 2nd respondent has no right, title and interest in the said amount and he has not claimed the said amount. He submitted that the amount was deposited by the 1st respondent and the 1st respondent has no objection for withdrawal of the said amount. 6. The learned counsel appearing for the 1st respondent submitted that the 1st respondent has never opposed the prayer for withdrawal of the amount made by 6 the petitioners. She invited my attention to the affidavits of the 1st respondent filed on record. She invited my attention to the affidavit dated 26th March 2010 filed by the 1st respondent in which it is stated that the amount of Rs.70 lakhs has been deposited by the 1st respondent to secure the share of the petitioners. She also invited my attention to the affidavit dated 22nd April 2010 of the 1st respondent and in particular what is stated in paragraph 3 thereof. 7. The learned counsel appearing for the 2nd respondent submitted that there is no consent decree passed by the Court on the basis of the consent terms and what is deposited by the 1st respondent is only by way of interim arrangement to show its bonafides. He submitted that there is an objection raised in the suit regarding entitlement of the petitioners. He pointed out relevant recitals in consent terms. He pointed out that the contentions which are raised by the 2nd respondent have been specifically set out in the recital. He submitted that the said recitals itself indicate that the 2nd respondent has given 2 Kgs of gold bars to the 1st petitioner and loan of Rs.15 lakhs to the 2nd petitioner. He submitted that if the amount is permitted to be withdrawn by the petitioners and if it is ultimately held that what is withdrawn is the amount payable towards the share of the 2nd respondent, the said respondent will have no remedy open to recover the said amount. He submitted that right of the petitioners can be established only after conclusion of the trial and therefore the trial Court has correctly imposed the condition of furnishing bank guarantee. He relied upon a decision of this Court in the case of Leela Capital & Finance Ltd Vs. Modiluft Ltd (AIR 2003 Bombay 111). He submitted that what is recorded in the consent terms is purely interim arrangement on the basis of which unconditional withdrawal of an amount of Rs. 50 lakhs cannot be permitted. He also relied upon a decision of the Apex Court in 7 the case of State Bank of India and Others Vs. S.N.Goyal [(2008) 8 Supreme Court Cases 92]. He submitted that scope of interference under Article 227 of the Constitution of India is limited and the jurisdiction under the said Article can be exercised only when there is lack of jurisdiction, error of law, perverse finding or violation of principles of natural justice. He submitted that by the condition imposed of furnishing bank guarantee the parties have been protected and no interference is called for. 8. I have considered the submissions. At the outset it must be noted that a sum of Rs.70 lakhs was deposited by the 1st respondent with the trial Court by filing a purshis dated 19th June 2008. The said purshis specifically records that a sum of Rs.70 lakhs was being deposited towards the share of the plaintiffs. Thus, the amount has been specifically deposited by the 1st respondent towards the share of the petitioners. It is true that an objection to the withdrawal of the said amount was taken by the 2nd respondent. In the consent terms a specific denial of the 1st petitioner has been incorporated regarding allegation of receipt of gold bar from 2nd respondent. The 2nd petitioner denied of having received a sum of Rs.15 lakhs as a loan from the 2nd defendant. The relevant part of the consent terms is already quoted above. At this stage, it must be noted that there is no monetary claim made by the 2nd respondent by filing a counter-claim or a suit. It will be necessary to consider what is stated by the 2nd respondent in the application at Exhibit 63. In paragraph 6 , the 2nd respondent has stated thus: “.... The defendant No.1 has agreed to pay a sum of Rs.2,80,00,000/- (Rupees Two Crores and Eight Lakhs only) to the defendant No.2, out of which he has paid only Rs.1,05,00,000/- (Rupees One Crore and Five 8 Lakhs only) and rest of amount i.e Rs.1,75,00,000/- (Rupees One Crore and Seventy Five Lakhs only) is still due and payable by the defendant No.1 to the defendant No.2. It is pertinent to note that the defendant No. 1 has deposited the amount of Rs.70,00,000/- (Rupees Seventy Lakhs only) in this Hon’ble Court only to show their readiness and willingness to pay the consideration amount. However, they have not paid the entire balance amount due by them under the agreement for sale. Unless the right of the parties are decided, which can be decided only after adjudication of the suit, the plaintiffs are not entitled to recover the said amount from this Hon’ble Court. The plaintiffs can recover the amount of consideration from the defendant No.1 independently, but not from the amount of Rs.2,80,00,000/-, which is due and payable by defendant No. 1 to defendant No.2.” Thus, the 2nd respondent has contended that he is entitled to receive Rs.1.75 crores from the 1st respondent. It is specifically stated that the petitioners can recover the amount of consideration from the 1st respondent but not from the amount of Rs.2.80 crores which is due and payable by the 1st respondent to the 2nd respondent. In short, the anxiety of the 2nd respondent seems to be that the petitioners should not receive any amount from the 1st respondent which will be a part of consideration of Rs.2.80 crores allegedly payable by the 1st respondent to the 2nd respondent. In this context, the affidavits filed by the 1st respondent in this Court are relevant. In paragraph 2 of the affidavit dated 7th April 2010, the 1st respondent has stated thus: 9 “2. I say that with a view to secure the share of the petitioners, the respondent No.1 have, on 19th June 2008 deposited an amount of Rs.70 lacs in the trial Court. That thereafter on 6th July 2009, the petitioners, the respondent Nos.1, 3 and 4 entered into consent terms. That in accordance with the said consent terms, the petitioners are entitled to a sum of Rs.62 lacs i.e Rs.31 lacs each and may withdraw the same subject to the terms agreed in consent terms. I say that the respondent No.1 has no objection to the withdrawal of the said amount of Rs.62 lacs in accordance with the consent terms.” In paragraph 4, the 1st respondent has stated thus: “4. I state that the consent terms dated 6th July 2009 are valid and binding and respondent No.1 stand by the terms agreed thereto.” It must be noted here that in affidavit dated 22nd April 2010 what is stated in earlier affidavits is repeated and reiterated. In paragraph 3 the 1st respondent has stated thus: “3. I based on the representation of the petitioners that they have not received any amount towards their share of consideration from the respondent No.2, say that the amount of Rs.50 lacs sought to be withdrawn by the petitioners in the present petition, does not include the share of the respondent No.2.” 10 Thus, the 1st respondent has deposited said amount of Rs.70 lakhs for securing the share of the petitioners. As pointed out earlier, the 2nd respondent has no objection if the petitioners take the amount of their share from the 1st respondent. In fact, that is the specific stand taken by the 2nd respondent in Exhibit 63 to the effect that the petitioners can recover the amount of consideration of their share from the 1st respondent independently but not from the amount of Rs.2.80 crores allegedly payable to the 2nd respondent. Right from the date of deposit of the amount, the stand taken by the 1st respondent is crystal clear that the amount deposited represents the share of the petitioners. At no point of time, the 1st respondent has come out with a case that the said amount represents any part of the share payable to 2nd respondent. The amount has been voluntarily deposited by the 1st respondent for securing the shares of the petitioners. There is no money claim made by the 2nd respondent as of today. It is, therefore, obvious that even according to the case of the 1st respondent, no part of the said amount of Rs.70 lakhs represents the share payable to the 2nd respondent. Therefore, even if the amount of Rs.50 lakhs is withdrawn by the petitioners, the 2nd respondent will be affected in no manner as it is not the case of the 1st respondent that any part of the said amount of Rs.50 lakhs represents the share of the 2nd respondent. Hence , the amount of Rs.50 lakhs represents the share of the petitioners payable by the 1st respondent and therefore, in terms of what is stated by the 2nd respondent in application at Exhibit 63, the 2nd respondent cannot object to the withdrawal of the amount by the petitioners. As a suit is pending, it is obvious that the withdrawal is subject to final outcome of the suit. Hence, petition must succeed and I pass the following order: : O R D E R : 11 (a) Subject to what is held in the judgment, the impugned order dated 2nd September 2009 is quashed and set aside and the petitioners are permitted to withdraw a sum of Rs.50 lakhs without any security or guarantee subject to final outcome of the suit. (b) Writ petition is partly allowed in above terms. (A.S.OKA,J)