1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.27 of 2008 IN Summary Suit No.1496 of 2003 Ricky Mukund .. .. Plaintiff v/s. M/s.Jayantilal Khandwala & Sons & 3 ors. .. .. Defendants WITH Chamber Summons No.735 of 2008 IN Summary Suit No.1496 of 2003 Ricky Mukund .... .. Plaintiff v/s. M/s.Jayantilal Khandwala & Sons & 3 ors. .. Defendants Mr.Kishore Jain with Mr.Sanjay Jain, Mr.Tushar Goradia, Ms.M. Mohantey and Mrs.S.T. Shaikh i/by M/s.S.K. Srivastav & Co. for the Plaintiffs/Decree- holders. Mr.Vivek Kantawala i/by M/s.Kantawala & Co. for the Defendants / J u dgment- debtors. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 15 th July, 2008 P.C. : 1. The above Summary Suit came to be decreed pursuant to 2 a decree on admission dated 25 th January 2005, under which the Defendants agreed to jointly and severally pay to the Plaintiffs the entire amount as prayed along with interest at 18% per annum from 5th May 2003 till realization and the costs of the Suits. However, by a concession, the Plaintiffs agreed that if the Defendants pay Rs.25 Lacs in 48 equal installments of specified figures with interest at 7% per annum upto the date of the installments on the principal amount then outstanding on reducing basis without committing more than two defaults, the decree would be marked fully satisfied. 2. The first installment was payable on 1.1.2006. The Defendants were to issue TDS Certificates for the interest payment. 3. If the Defendants made more than two defaults, the Court Receiver was to be appointed in execution and he would take possession first of the office premises and then of the residential premises of the Defendants in execution of the decree for the entire decretal amount, firstly towards interest and thereafter towards the principal amount by the sale of the Defendants’ offices and thereafter the Defendants’ residential flats. 3 4. Two Chamber Summonses have been taken out by the Defendants / J u dgment Debtors. One is for cancellation of the appointment of the Court Receiver got made by the Plaintiffs and the other for marking the Decree fully satisfied. 5. The Defendants defaulted in the payment of the very first installment on 1.1.2006. The second default was made on 1.2.2007. The third default was made on 1.5.2007. The Defendants were given a concession of making not more than two defaults under Clause- 4 of the decree on admission. The entire decretal amount became due and payable upon the commission of the third default under Clause- 1 of the decree on admission. The Plaintiffs applied for executing the decree, first towards the interest amount and then towards the principal by attaching the properties of the Defendants, first being the Defendants’ office premises and then their residential premises which has been done by appointment of a Court Receiver as agreed between the parties. The Defendants accept that there have been three defaults. However, they contend that these are minor defaults which can be excused by the Court in its inherent jurisdiction. It is seen that under the decree on admission the Defendants were to 4 pay the amount of installments on or before the first day of each and every calendar month. The Defendants could have made payment of installments within a couple of days before the due date. They have never done so. They have waited until the 11 th hour. Under these circumstances, the Defendants deserve no sympathy of the Court for excusing their delay. 6. Mr.Kantawala on behalf of the Defendants drew my attention to the judgment in the case of Nrusingha Charan Baisakh vs. State Bank of India reported in AIR 1988 Orissa 132 in which inherent power of the Court under Section 151 of the Code of Civil Procedure was observed to be invocable to grant the Defendants some time. However, that would be to a bonafide Defendant who makes payment of installment reasonably under the decree. A Defendant, who never makes payment on the second last date, does not deserve to be given another day for making that payment even with higher interest. 7. The parties are bound by the Consent Terms/Decree on admission signed by them. They have strictly complied with its provisions. When a party himself strictly rather than reasonably complies with such provisions, he 5 cannot expect a more reasonable attitude from the other party or sympathy from the Court. 8. The Plaintiffs have relied upon the judgment in the case of Prithvichand Ramchand Sablok vs. S.Y. Shinde reported in (1993) 3 Supreme Court Cases 271 in which the distinction between a penalty and a concession is made out. However, in this case, it is conceded that there was a concession given to the Defendants to pay the amount at a lesser rate of interest by specified installments to mark the decree on admission fully satisfied. Hence, the Defendants are indeed required to strictly comply with the terms of the decree on admission. If, therefore, the Defendants wait until the last day and/or before which the amount is payable and it is not paid by any act or vis majore also the default must be taken to have been committed. Any such three instances would make the decree executable. 9. Consequently, it is seen that the decree has become executable under Clause- 1 of the Consent Terms/Decree on admission. Hence, the Defendants’ Chamber Summonses for cancelling the appointment of the Court Receiver and for marking the Decree satisfied are dismissed. The execution of the decree, as agreed 6 between the parties in the Decree on admission/Consent Terms, shall proceed. (SMT.ROSHAN DALVI, J.)]