IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.162 of 2002. SUIT NO.162 of 2002. SUIT NO.162 of 2002. IL&FS Trust Company Limited ..Plaintiff versus 1. Apple Finance Limited 2. Kotak Mahindra Prime Ltd. 3. Kotak Mahindra Bank Ltd. ..Defendants Mr.V.R.Dhond with Mr.S.A.Kazi i/b. Negandhi Shah Himayatulla for plaintiffs Mr.Viraj Tuljapurkar i/b. Kanga & Co. for the defendant No.1 Ms.Rajni Iyer, Sr. Counsel with Mr. Birendra Saraf, Mr. Vikram Trivedi, Mr. Sunil Tilokchandani, Mr.Sachin Chandarana, Mr.Durgesh Khanapurkar i/b. M/s. Manilal Kher Ambalal & Co. Advocates for defendant Nos.2 & 3. Mr.Rahul Chitnis i/b.PDS Legal for Applicant in Notice of Motion 1453 of 2006 & Plaintiffs in S.876 of 2007 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 31st March, 2009. DATED : 31st March, 2009. DATED : 31st March, 2009. P.C. 1. The parties herein have arrived at terms and want to have decree in terms of those terms. The Associate of the Court informs that office is unable to trace the original plaint and the same is not traceable. Counsels on both the sides submit -2- that it would take substantial time for reconstruction of the record and since the consent terms arrived at between the parties have bearing on financial aspect, it would be proper to deviate from the normal procedure and allow the parties to file consent terms by allowing plaintiffs to tender the true copy of the plaint which would come into existence after carrying out amendment pursuant to the Order dated 25.2.2009. The submission made by the Counsel on both the sides is proper and the Court cannot wait till the record is reconstructed or the original plaint is traced. Keeping in view the text of the consent terms which have far reaching financial implication request stated above is granted. Accordingly, learned Counsel appearing on behalf of the plaintiffs has tendered true copy of the plaint showing IL&FS Trust Company Limited as plaintiffs. It is seen that other amendments have been carried out pursuant to Order dated 25.2.2009. Accordingly, true copy is taken on record. Consent terms dated today i.e. 31.3.2009 duly signed by the parties representatives and advocates are tendered in the Court. Learned Counsel Mr. Rahul Chitnis appearing for the plaintiffs in Suit No.876 of 2007 intervened and submitted that before passing an appropriate Order -3- he should be heard as he has objection for passing orders in terms of the consent terms. 2. I have heard learned Counsel Mr. Chitnis appearing on behalf of the plaintiffs in the aforesaid suit filed by Dena Bank i.e. Suit No.876 of 2007. Learned Counsel Mr. Chitnis submitted that the Receiver appointed in respect of various properties of defendant No.1 should not be discharged as the plaintiffs i.e. his client namely M/s Dena Bank would be interested in moving the appropriate Court for apointment of the Court Receiver in respect of the properties of Defendant No.1. According to learned Counsel Mr. Chitnis, the interest of his client would be prejudiced if the Receiver is discharged as his client has monetary claim against the present defendant i.e. Apple Finance Limited and Kotak Mahindra Prime Limited. 3. After having considered the arguments advanced by learned Counsel Mr. Chitnis, it is clear that as of today Dena Bank are not Debenture Holders and therefore the suit filed by it against the defendant Nos.1 and 2 can be termed as " money suit" and that has nothing to do with the issue of -4- Debentures or the claim as the debenture holders. In my view, if Dena Bank has any claim against the defendants nos.1 and 2 they are free to pursue it. Intervention sought by learned Counsel Mr. Chitnis cannot be accepted and that the consent terms can be accepted and that decree in terms of the consent terms can be passed. Hence the decree. DECREE i. The consent terms dated today i.e. 31.3.2009 as above are taken on record and marked "X" for identification. There shall be a decree in terms of consent terms with no Order as to costs. ii. Refund of Court fees is granted as per rules. iii. Undertakings given in paragraph 20, 27 and 29 by the respective parties are accepted. Directions contained in paragraph 30 are hereby issued and the Court Receiver shall act on the basis of those directions. iii. The Court Receiver to act on the basis of the true copy of the consent terms duly certified -5- as the copy by advocate for plaintiffs, as well as the authenticated copy of this Order. iv. If M/s. Dena Bank want to have copy of the consent terms, they are free to apply for certified copy to the Prothonotary & Senior Master on payment of usual charges. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)