1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 9 OF 2007 CIVIL REVISION APPLICATION NO. 9 OF 2007 CIVIL REVISION APPLICATION NO. 9 OF 2007 in SPECIAL DARKHAST NO.10 OF 2006 IN SPECIAL CIVIL SUIT NO. 359 OF 2002 Sheetal Builders Pvt.Ltd. & Ors. ..Applicants Versus Mr. Rakesh H. Jain & Ors. ..Respondents Mr. Akhilesh Dubey,Advocate, i/b. M. Tripathi &Co. for the applicants. Mr.H.S.S.Murthy, Advocate, for Mr. N.M.Shah for the respondent Nos.1 to 4. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 17th January,2008. DATE: 17th January,2008. DATE: 17th January,2008. P.C. P.C. P.C. 2 1. Heard learned Counsel for the parties. 2. The present applicants are the original defendants in Special Civil Suit No.359 of 2002 which was pending before the Civil Judge, Senior Division, Thane. That matter was settled between the parties as per the consent terms dated 4.9.2002. As per the consent terms, the defendants were to pay Rs.55 lakhs to the plaintiffs and on payment of the said amount, three cheques of Rs.32 lacs, Rs.8 lacs and Rs.15 lacs were to be returned unpaid. In view of this settlement, the plaintiffs were to withdraw all civil and criminal cases which were pending and which were shown in Annexure "1’ annexed with the consent terms. It was also agreed that even if any other case, civil or criminal, was filed by the plaintiffs against the defendants and even if such cases were not shown in the annexure, such cases shall also be withdrawn by the plaintiffs who are the respondents before this Court. The defendants made payment of the cheques of Rs.32 lacs and Rs.8 lacs. The cheque for Rs.15 lacs was handed over to them but no payment was made to them. In view of this, the plaintiffs/decree holders filed execution proceedings the basis of the decree based on the consent terms and sought to execute the same for the balance amount of Rs.15 lacs with interest thereon in the execution, the 3 defendants/judgment debtors filed objection contending that payment of Rs.15 lakhs was made in cash and therefore, the cheque was returned and cancelled. According to them, as the payment was already made,the execution could not continue. After hearing the parties, the learned Executing Court rejected the contention of the judgment debtors by the order dated 16.12.2006 holding that the judgment debtor had failed to prove that the payment was actually made. Being aggrieved by the said order, the original defendants/judgment debtors have preferred the present Revision Application. 3. The learned Executing Court noted that on payment of Rs.32 lacs and Rs.8 lacs in respect of the two cheques, the judgment debtors had obtained receipts from the plaintiffs/decree holder. As far as the disputed amount of Rs.15 lacs is concerned, the judgment debtors could not produce any receipt or document for the payment of that money. Not only this, the judgment debtors also did not file any affidavit in support of the contention that the payment was actually made. The learned Executing Court noted that if the judgment debtors had obtained receipt for payment of the amount against the two cheques, there could be no reason why he did not obtain similar receipt for the payment in 4 respect of the third cheque. The judgment debtors contended that in their account books, there is mention of payment of Rs.15 lacs, but besides this, there was no other material. It is also contended that they had shown the payment in their income tax returns. However, it appears that the income tax returns were filed in the year 2004-2005 for the period 2002-03. Till that time, no income tax return was filed showing the payment. To make an entry in the account books that payment of Rs.15 lacs has been made in cash is very easy. If the judgment debtor could point out from the record of the plaintiffs that they had acknowledged the receipt, that would be an evidence against the applicants. 4. The learned Counsel for the judgment debtors-applicants vehemently contended that the plaintiffs have not complied with the obligations put on them for withdrawal of the above cases. This submission could be made only if the judgment debtor would have made payment in respect of all the three cheques. As the judgment debtors did not discharge their obligations, they cannot insist upon the Decree Holders to withdraw the cases. Anyway, this is not the question to be decided in the present Revision Application. The only question before this Court is whether the Executing Court was right in rejecting the objection taken by the 5 judgment debtor to the execution proceedings. Taking into consideration the material noted by the trial Court, I find no fault in the same. The impugned order does not show any illegality, irregularity or perversity. 5. Therefore, the Revision Application stands dismissed. 6. At this stage, the learned Counsel for the applicants make a statement that by order dated 29.1.2007, this Court had granted stay to the execution proceedings subject to the deposit of Rs.15 lacs and the applicants have already deposited Rs.15 lacs with this Court. Therefore, he seeks continuation of that stay for a period of four weeks. The execution proceedings shall continue to be stayed for a period of four weeks from this date. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)