1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.418 OF 2009 IN CHAMBER SUMMONS NO.547 OF 2008 IN EXECUTION APPLICATION (LODG)NO.338 OF 2005 IN EXECUTION OF AWARD DATED 15.2.2005 Payal Telefilms Pvt.Ltd. ...Appellant. Vs. 1.Reminiscent India Television Ltd. & another. ...Respondents. AND APPEAL NO.419 OF 2009 IN CHAMBER SUMMONS NO.546 OF 2008 IN EXECUTION APPLICATION (LODG)NO.209 OF 2005 IN SUMMARY SUIT NO.2561 OF 2002 Payal Telefilms Pvt.Ltd. ...Appellant. Vs. 1.Reminiscent India Television Ltd. & another. ...Respondents. AND APPEAL (lodg)NO.547 OF 2009 IN 2 CHAMBER SUMMONS NO.545 OF 2008 IN EXECUTION APPLICATION (LODG)NO.339 OF 2005 IN EXECUTION AWARD DATED 15TH FEBRUARY,2005 Payal Telefilms Pvt.Ltd. ...Appellant. Vs. 1.Reminiscent India Television Ltd. & another. ...Respondents. --- Mr.Pravin Diwan with Paritosh Jaiswal i/b. M/s.Kanga & Co., for Appellants. Mr.K.P.Jain i/b. Ms.K.A.Shah, for Respondent no.2. Mrs.Lambay i/b. M/s.Lambay & Co.,for Respondent no.1. CORAM: D.K.DESHMUKH & R.V.MORE,JJ. DATED: 26th April, 2010 P.C.: 1. Admit. Heard finally by consent of parties. These appeals are directed against order dated 23.6.2009 passed by the learned Single Judge of this Court. By that order the learned Single Judge has dismissed the chamber summonses taken out by the 3 present appellant. The present appellant, admittedly, hold decree against Respondent no.1 who is a judgment debtor. The chamber summonses were taken out by the decreeholders in the nature of garnishee notices against Respondent no.2-H.K.Pujara builders, because, according to the decreeholder, an amount of Rs. 2,45,00,000/- was payable by the garnishee to the judgment debtor. According to the decreeholder, an amount of Rs.2,45,00,000/- was payable by the garnishee to the judgment debtor pursuant to an agreement dated 27.4.2005 whereby the judgment debtor has agreed to sell the same property belonging to him to the garnishee. It appears that the premises were in possession of a licensee. An obligation was cast on the judgment debtor to get vacant possession from the licensee within a period of six months and on handing over vacant possession, the garnishee was to pay Rs.2,45,00,000/- to the judgment debtor. According to the decreeholder, as this amount is payable by the garnishee to the judgment debtor, the decreeholder is entitled to receive the amount. The garnishee disputed his liability to pay the amount to 4 the judgment debtor. According to him, as per the agreement, he was entitled to get possession within a period of six months from the date of the agreement; admittedly possession was not given to him; ultimately he had to negotiate with the licensee to get the possession of the premises. The learned Single Judge decided the chamber summons holding that the decreeholder is not entitled to payment of Rs. 2,45 crores in this garnishee proceeding. The learned Single Judge has observed that the question  when the amount becomes payable and how much of the amount it becomes payable is disputed which cannot be resolved in the garnishee proceeding in view of the material that is available on record. 2. The learned Counsel appearing for appellants-decreeholder submits that the amount was payable under the agreement between the parties. According to the learned Counsel, clauses of the agreement are self contradictory. According to him, as the obligation to pay the amount was absolute, the garnishee could not have withheld the amount. The 5 learned Counsel took us through the terms of the agreement to contend that. Then, the learned Counsel pointed out to us the provision in the Civil Procedure Code which requires that when an issue arises in the garnishee proceedings, it can be decided as a suit. 3. We have heard the learned Counsel appearing for garnishee. He pointed out that according to him, an amount of Rs.2.45 crores is not at all payable by him. That amount was to be paid by him only on judgment debtor handing over vacant possession of the premise to him within a period of six months. As admittedly, the judgment debtor failed to perform that obligation, he had to negotiate a deal with the licensee and then for getting possession he had spent money and thereby he had incurred loss. According to him, therefore, the learned Single Judge was justified in making the order. 4. If the record is perused in the light of these rival submission, it appears that it is an 6 admitted position that an amount of Rs.2.45 crores was payable under the agreement dated 27.4.2005 under following clauses. The relevant clauses reads as under:- AND THIS INDENTURE FURTHER WITNESSETH THAT as an integral part of this Conveyance as regards third floor premises occupied by Services Software Consultants Pvt.Ltd.(Licensee), it is agreed that (a) the Vendors will cause the Licensee to enter into a fresh Leave & Licence Agreement with the Purchasers for a period of 6 months from the date hereof. (b) it will be the sole responsibility and obligation of the Vendors to obtain the peaceful and vacant possession of the third floor premises from the Licensee and hand over the same to the Purchasers within 6 months from the execution hereof. (c) the security deposit received by the Vendors from the Licensee will be refunded by the Vendors alone and the Purchasers shall not be responsible for the same. 7 (d) as a guarantee for the performance by the Vendors of what is stated in (b) above, the Purchasers obligation to pay the balance sum of Rs. 2,45,00,000/- (Rupees two crores forty five lacs only) will be only after the Vendors complying with conditions referred in (b) above and not otherwise. Perusal of the above clauses makes it clear that the premises were in possession of the licensee and the judgment debtor had to persuade the licensee to enter into a fresh leave and licensee agreement with the garnishee within a period of six months from the date of the agreement. If that does not happen then it was the responsibility of the judgment debtor to get the possession of the premises from the licensee and hand it over to the garnishee. It was the judgment debtor who was to hand over the security deposit given by the licensee and only if this obligation is performed by the judgment debtor, he was to receive an amount of Rs.2.45 crores from the total amount of agreed consideration from the garnishee. The total amount 8 of agreed consideration was Rs.6 corres. It is common ground that within six months, as agreed, the judgment debtor was neither able to persuade the licensee to enter into a fresh leave and licence agreement with the garnishee nor was he able to hand over possession of the premises to the garnishee. On behalf of the garnishee, an affidavit has been filed on 2.5.2009 wherein it has been stated that on failure of the judgment debtor to perform his obligation under the agreement, the garnishee had entered into negotiations with the licensee and for getting vacant possession of the premises from the licensee he had to get for the licensee some other premises at a much reduced rate. It is claimed that the garnishee procured for licensee, the premises on license fee of Rs.60,000/- per month which is a much reduced rate. The garnishee has stated that in that area the premises with the same area fetches licence fee of Rs.5,85,000/- per month. It is the case of the garnishee that he suffered loss of much higher amount than Rs.2.45 crores and therefore, he is not liable to pay that amount to the judgment debtor, and 9 therefore, the decreeholder cannot get that amount. What is pertinent to be noted here is that though the affidavit dated 2.5.2009 was filed, the decreeholder has not chosen to file reply to that affidavit and deny the specific averments that have been made. The learned Counsel appearing for decreeholder submits that copy of the agreement which is relied on by the garnishee has not been produced. But the agreement was referred to in the affidavit, but admittedly no effort was made on behalf of the decreeholder even to seek inspection of this agreement. We have no reason not to believe, in the absence of any denial, the veracity of the statement made in that affidavit. In our opinion, therefore, the learned Single Judge was justified in holding that in a garnishee proceeding an order cannot be made for payment of Rs.2.45 crores to appellants. So far as the complaint that the learned Single Judge ought to have tried the issue as a suit is concerned, no such application was made and secondly, in the absence of any affidavit filed by the decree holder denying the allegations in the affidavit dated 2.5.2009, referred to above, there 10 was no necessity to try any issue. The appeals, therefore, have no substance. They fail and are rejected. 5. The learned Counsel appearing for garnishee states that he will not press for judges order for withdrawal of money which he has deposited in the Court for a period of six weeks from today. The statement is accepted. In view of the aforesaid order, Notice of Motion no.3387/09 in Appeal no.418/09 and Notice of motion no.3388/09 in Appeal no.419/09 are also disposed of. (D.K.DESHMUKH,J.) (R.V.MORE,J.)