1 CRA-635.11&636.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.635 OF 2011 Shri Ramesh Kumar Sachdev : Applicant versus 1 Kaloomal Shorimal Sachdev Rangwala Pvt. Ltd 2 Amrish Arora 3 Gita Sachin Ved 4 Promila Sachdev : Respondents. WITH CIVIL REVISION APPLICATION NO.636 OF 2011 1 Shri Ramesh Kumar Sachdev 2 Promila Sachdev : Applicants versus 1 Kaloomal Shorimal Sachdev Rangwala Pvt. Ltd 2 Amrish Arora 3 Gita Sachin Ved : Respondents. Mr.Navin Parekh i/by .Amardev J Uniyal and Sweedal S Karkada for the Applicants in both the CRAs. Mr.Navroz Seervai with Mr.Prashant Chande i/by Gayatri Sharma for Respondent No.2 in both the CRAs Mr. N D Jayawant for Respondent No.3 in both the CRAs CORAM : R M SAVANT, J. DATE : 30th November 2011 P.C. 1 The above Civil Revision Applications are directed against the common order dated 11/8/2011 passed by the learned Judge, City Civil Court, Bombay by which order the objections raised by the Applicants pursuant to the show cause notice issued under Order 21 Rule 22 of the Code of Civil 2 CRA-635.11&636.11.sxw Procedure came to be rejected and certain directions have been issued which are contained in Clauses 2 to 5 of the operative part of the said order. 2 The above proceedings arise out of the Applications for Execution of the decree passed in terms of the Consent Terms dated 7/6/2008 in Short Cause Suit Nos.272 of 2008 and 273 of 2008 filed in the City Civil Court, Bombay. The said suits had been filed by the Plaintiffs who are the Applicants herein challenging the proposed Extraordinary General Meeting to be held on 9/2/2008 of the Respondent No.1 Pvt. Ltd. Co. The Applicants in the above Civil Revision Applications and the Defendant No.2 i.e. the Respondent No.2 herein were at the relevant time the Directors of the said Company along with one Gita Ved. In terms of the said Consent Decree, there were mutual obligations cast on the parties. Suffice it to say that in so far as the Defendant No.2 was concerned, he was to withdraw the suit filed in this Court i.e. High Court Suit No.1003 of 2004 and pay an amount of Rs.Fifty lacs to the Plaintiff No.1-Ramesh Sachdev. The said Consent Decree provide that the act of the withdrawal of the said suit was to be done simultaneously with the events mentioned in the clauses 2, 3,4, 6 and 7. By other clauses the original Plaintiffs were to execute certain documents in favour of the Respondent No.2 herein i.e. the Defendant No.2 to the said suits. 3 It would be useful to make a reference to the said suit filed by the Defendant No.2 i.e. Amrish Arora in this Court being Suit No.1003 of 2004. 3 CRA-635.11&636.11.sxw The said suit was filed in respect of the Thane property owned by the Respondent No.1-Company in respect of which property the Plaintiff No.1 Ramesh Sachdev had entered into a Development Agreement with one Sareeka Estates. In the said suit the Defendant No.2 who was the Plaintiff prayed for setting aside the said Development Agreement between Ramesh Sachdev and Sareeka Estates, and for partition, preemption and damages. It appears that in terms of the said Consent Decree dated 7/6/2008, some steps were required to be taken by the Defendant No.2 i.e. Respondent No.2 herein to facilitate its withdrawal and therefore though the Consent Decree were filed on 7/6/2008 some time elapsed in taking the requisite steps. It appears that after the Respondent No.2 had taken steps for fulfilling his part of the obligations he had issued a notice to the Plaintiff No.1-Ramesh Sachdev some time in September 2010 calling upon him to comply with the Consent Decree by fulfilling his obligations. The said notice, it appears, was preceded by a letter addressed by the Respondent No.2 herein to the Attorneys of the said Ramesh Sachdev which did not elicit any response, and thereafter to the said Ramesh Sachdev himself which met with the same fate. Ultimately seeing that there was no response from the said Ramesh Sachdev, the Defendant No.2 was constrained to file the Execution Applications in question. Since the said Execution Applications were filed after a period of two years of the Consent Decree, the Defendant No.2 sought issuance of notice under Order 21 Rule 22 of the Code of Civil Procedure in terms of clauses 1 to 5 of the said Execution Application. A notice accordingly came to be issued by the Executing Court i.e. 4 CRA-635.11&636.11.sxw the learned Judge, City Civil Court, Bombay under Order 21 Rule 22 of the Code of Civil Procedure pursuant to which the Plaintiffs i.e. Ramesh Sachdev and his wife filed their reply, showing cause. The objections that the Plaintiffs raised to the said notice have been culled out by the Executing Court in Para 7 of the impugned order. The said objections have been dealt with elaborately by the Executing Court by recording a finding in respect of almost each of the objections. The Executing Court after such consideration has passed the impugned order wherein it has been recorded in the operative part that the objections taken by plaintiffs are rejected, and the defendant No.2 is directed to deposit pay order of Rs.50 lacs in the name of plaintiff No.1 within 15 days. It has further been directed that the said pay order shall be kept in the safe custody of the learned Registrar of the said Court and by clause 4, it has been directed that the matter be fixed for filing pleadings if any and hearing on behalf of parties on draft of resolution, power of attorney and surrender deed filed by Defendant No.2. As indicated above, it is the said order which is impugned in the above two Civil Revision Applications. 4 It is sought to be contended by Shri Parekh, the learned counsel appearing for the Applicants that in passing the said order, the Executing Court has exceeded its jurisdiction inasmuch as apart from dealing with the objections the Executing Court has virtually taken over the execution of the Consent Decree which, according to the learned counsel for the Applicants, has to be done by the concerned department of the Court after the objections are 5 CRA-635.11&636.11.sxw rejected. The learned counsel for the Applicants by making a reference to the Execution Applications as filed and in respect of the items in respect of which show cause was sought would contend that in terms of the said items, the decree was unexecutable and the objections of the Plaintiffs ought to have been upheld by the Executing Court. It is further contended that since the acts were to be done simultaneously and since in the instant case the suit and the amount of Rs.50 lacs have been deposited subsequently, the decree was unexecutable. The learned counsel would contend that the decree is unexecutable as per clause (1) of the Applications for Execution in view of the fact that it is not clear from the said clause as to in whose favour the Surrender Deed is to be done and in respect of which property. 5 Per contra, it is the submission of the learned senior counsel Shri Seervai appearing on behalf of the Respondent No.2 that in passing the impugned order the Executing Court has not committed any irregularity or transgressed its jurisdiction as the impugned order is referable to Order 21 Rule 23 of the Code of Civil Procedure. It is the case of the learned senior counsel that the instant Revision Applications and the objections raised before the City Civil Court by the Plaintiffs are attempts to stall the execution of the decree on the part of the Plaintiffs who have enjoyed the fruits of the Consent Decree to some extent. The learned senior counsel would contend that frivolous objections are sought to be raised as regards the execution for reasons not far to seek. In so far as simultaneous execution of the various clauses in the 6 CRA-635.11&636.11.sxw Consent Decree are concerned, the learned senior counsel would contend that simultaneous would not mean at the same time as different things were required to be done at different places, and therefore, simultaneous acts would at the highest mean at the same contemporaneous time. The learned senior counsel also questioned the very maintainability of the above Civil Revision Applications on the ground that there was no error of jurisdiction in passing the said impugned order. 6 Having heard the learned counsel for the parties and having given my anxious consideration to the rival contentions in my view there is no merit in the above Civil Revision Applications. In so far as objections raised by the Applicants i.e. the Original Plaintiffs are concerned, the said objections have been very elaborately dealt with by the Executing Court by recording a finding in respect of each of the objections. The Executing Court in terms of Order 21 Rule 22 of the CPC was only required to go into the merits of the said objections which it has done by rejecting the same. 7 It is required to be noted that the Plaintiffs have not questioned the Consent Decree, and therefore, it is questionable whether they could object to its execution. In so far as challenge of the Plaintiffs on the ground that the decree is unexecutable in terms of the Clauses 1 to 5 of the Execution Applications, in my view, the said submission cannot be countenanced. The Executing Court has rightly taken into consideration the fact that the 7 CRA-635.11&636.11.sxw Defendant No.2 has withdrawn the said suit and has also shown his capacity to pay the amount of Rs.50 lacs and in fact has now deposited the said amount in the name of the Plaintiff No.1 in the City Civil Court. The Executing Court has also rightly observed that the Plaintiffs know to whom the property is to be surrendered and also the identity of the property, and therefore, the said objection is without any substance. In my view the said objection cannot also be said to be a bonafide objection from a person who has sold of his share in the Thane property. It is trite that the decree as a whole has to be considered when the question of its execution arises. In the said context it is required to be noted that in terms of the said Consent Decree the Defendant No.2 has already withdraw his suit and the Director Gita Ved has already relinquished her Directorship of the Respondent No.1. The said suit as mentioned herein above was filed challenging the transaction entered into by the Plaintiff No.1 Ramesh Suchdev with Sareeka Estates. Therefore in so far as the Plaintiff No.1 is concerned, he is enjoying the benefits out of the said transaction which, according to the learned senior counsel Shri Seervai, is to the tune of Rs.Five Crores. It is further required to be borne in mind that in so far as Respondent No.2 is concerned, the position is irretrievable in so far as the acts done by him in furtherance of the said Consent Decree. It would therefore be a travesty if the decree is not allowed to be executed on the ground that certain acts were to be done simultaneously. In any event there is merit in the submission made by Shri Seervai, the learned senior counsel appearing on behalf of the Respondent No.2 that simultaneous would not mean at the same time as 8 CRA-635.11&636.11.sxw various acts were to be done by the parties and that too at different places and hence simultaneously would have to be construed as at the highest, at the same contemporaneous time. A perusal of the impugned order discloses that after the said objections were rejected, to secure the interest of the Plaintiffs i.e. Ramesh Sachdev and his wife, the Executing Court has directed the Defendant No.2 to deposit the amount of Rs.50 lacs in the name of the Plaintiff No.1. It defies logic as to what objection the Plaintiffs could have to such a direction being issued to the Defendant No.2 which directions could only be said to be in the interest of the Plaintiff No.1. In so far as clause No.4 of the impugned order is concerned, the directions contained therein can be referable to Order 21 Rule 34 of the CPC as in terms of clauses 2, 4 and 7 of the Consent Decree, the original Plaintiff has to execute certain documents in favour of the Defendant No.2 and wherever the decree contemplates execution of certain documents, the decree has to be executed in accordance with Rule 34 of Order 21 of the CPC. Hence by no stretch of imagination it can be said that in issuing the said directions the Executing Court has exceeded its jurisdiction. 8 A reference could also be made to the order passed by the Division Bench of this Court in Appeal No.431 of 2005 which was filed against an interlocutory order passed in the suit No.1003 of 2004 filed by the Defendant No.2. Para 2 of the said order is material and is reproduced herein under :- “2 It is submitted by the learned counsel for the parties that the parties are negotiating with respondents no.4 to 8 and have almost worked out a settlement which disposes off the suit itself. On the 9 CRA-635.11&636.11.sxw other hand, the contesting respondent, submits that he already had a settlement with the appellants by filing consent terms in the suit between the parties in the City Civil Court and he is ready to abide by the same and has no objection if the suit for partition is decreed or its withdrawn as per the consent terms entered into between the parties. His only interest is restricted to receipt of a sum of Rs.50 lacs along with various formalities required to be completed between the parties as recorded in the consent terms. In short, the parties have to finally work out so as to fulfill the reciprocal obligations.” The Plaintiffs as can be seen had made a statement that they would abide by the Consent Terms. 9 I am informed that in terms of the directions contained in clause (4) of the impugned order, the Plaintiffs i.e. the Applicants herein have already filed their objections to the drafts of the Resolution Deed, Surrender Deed and the Power of Attorney in terms of the said Clause. 10 In the light of the facts which have been mentioned in the earlier part of this order, there appears to be substance in the submission of Shri Seervai that an attempt is being made to stall the execution of the Consent Decree on one pretext or the other. 11 Having considered the order impugned in the above Civil Revision Applications, I do not find any error of jurisdiction or any illegality committed by the Executing Court in passing the said order. In that view of the matter, no case for interdiction in the revisionary jurisdiction of this Court under Section 10 CRA-635.11&636.11.sxw 115 of the Code of Civil Procedure is made out. The above Civil Revision Applications are accordingly dismissed. Needless to say that the Execution Applications in question would be proceeded with in accordance with law and decided on their own merits uninfluenced by the observations made in the instant order. [R.M.SAVANT, J]