Uttamchand Devichand Shah v. Bansi Jairamdas Jaising And ORS. And Monisha Ravi Jaising Applicant

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN INSOLVENCY OFFICIAL ASSIGNEE'S REPORT NO.21 OF 2016 IN INSOLVENCY PETITION NO.82 OF 2002 Avinash Bansi Jaising and Anr.

....Insolvents Ex-parte :

Suraj Prakash Khemchand ....Petitioning Creditor WITH NOTICE OF MOTION NO.5 OF 2017 WITH NOTICE OF MOTION NO.16 OF 2017 WITH NOTICE OF MOTION (L) NO.57 OF 2016 WITH NOTICE OF MOTION NO.32 OF 2017 WITH NOTICE OF MOTION NO.34 OF 2017 WITH NOTICE OF MOTION NO.53 OF 2017 WITH NOTICE OF MOTION NO.13 OF 2018 IN INSOLVENCY PETITION NO.28 OF 2001 ---- Dr. Birendra Saraf a/w. Ms. Soniya Putta and Mr. Aniket Kharote I/b. M/s. Solomon and Co. for Monisha Ravi Jaising, applicant in notice of motion no.5 of 2017 and notice of motion no.32 of 2017. Ms. K.A. Shah for Official Assignee.

Mr. G.R. Mehta a/w. Ms. Rhea Mehta I/b. Dipal Mehta for insolvent no.1 in insolvency petition no.82 of 2002.

Ms. Sonam Shethia I/b. Juris Corp. for insolvent no.2 in insolvency petition no.28 of 2001.

Mr. Gul Madnani for Mr. Arun Bahirwani, auction purchaser in notice of motion no.5 of 2017.

Mr. Viraj Timble for applicant in notice of motion no.16 of 2017. Mr. M.D. Narvekar, Official Assignee present. Ms. Monisha Jaising, applicant in notice of motion no.5 of 2017 and notice of motion no.32 of 2017 present in person.

2/10 Mr. Bansi Jaising, insolvent no.1 in insolvency petition no.28 of 2001 and insolvent no.2 in insolvency petition no.82 of 2002 present in person. Mr. Ravi Bansi Jaising, insolvent no.2 in insolvency petition no.28 of 2001 present in person.

Mr. Avinash Bansi Jaisingh, insolvent no.1 in insolvency petition no.82 of 2002 present in person.

---- CORAM : K.R.SHRIRAM, J.

DATE : 17th JULY 2018 P.C.:

This order is passed in the presence of applicant, Monisha Jaising and the three insolvents, namely, Bansi Jaising, Ravi Jaising and Avinash Jaising.

Consent terms have been executed between applicant and the three insolvents. The consent terms dated 17th July 2018 signed by Monisha Jaising and the three insolvents, namely, Bansi Jaising, Ravi Jaising and Avinash Jaising and their respective advocates is taken on record and marked "X" for identification. All undertakings are accepted and so ordered. All the signatories to the consent terms are present in Court and identified by their respective advocates.

Mr. Avinash Jaising unconditionally withdraws his objections to the grant of reliefs in notice of motion no.5 of 2017 and notice of motion no.32 of 2017 filed by applicant.

3/10 For ease of reference, the consent terms is reproduced hereunder :

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5/10

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7/10 Official Assignee, High Court, Bombay is directed to make payment to applicant of amounts aggregating to Rs.4,50,29,095/- out of the sale proceeds of the three properties namely, (i) Residential Flat at Land Breeze in Mumbai;

8/10 (ii) Plots of land bearing Survey No. 54/4B/21 and 54/4B/27 in Pune; and (iii) Office in "Sesa Ghor" in Goa sold by Official Assignee pursuant to orders dated 25th August 2015, 28th July 2015 and 22nd July 2016, respectively passed by this Court, after deduction of amounts, if any, payable on account of share of applicant in outgoings of the said properties for the period prior to completion of sales thereof allowed by this Court along with interest accrued thereon. So far as the claim of Crosscraft Private Limited, the auction purchaser of the Goa property at Sesa Ghor is concerned, the same has been rejected by this Court and notice of motion no.16 of 2017, in effect, seeking review of the order dated 7th February 2017 is pending. The statement of Dr. Saraf, on instructions from Ms. Monisha Jaising, who is present in Court, that Ms. Jaising shall bring back such amount as directed by this Court in the event of applicant in notice of motion no.16 of 2017 succeeds, is accepted as an undertaking to this Court.

Mr. Mehta, counsel appearing for Mr. Avinash Bansi Jaising states that on 16th July 2018, Mr. Avinash Bansi Jaising has lodged an appeal, as recorded in the consent terms, with the Hon'ble Income Tax Appellate Tribunal, Mumbai (ITAT). Mr. Mehta undertakes, on instructions from Mr. Avinash Bansi Jaising, who is present in Court that office

9/10 objections, if any, will be removed and the appeal will be made ready within two weeks from today.

This insolvency petition has been pending for quite some time and Official Assignee also is rather handicapped in completing the entire process in view of the appeal filed and pending in ITAT. Official Assignee has received over thousand claims from various parties against insolvents. Therefore, to avoid an inordinate delay in Official Assignee completing the process and this Court disposing the insolvency petition no.82 of 2002, the Income Tax Appellate Tribunal is requested to dispose the appeal filed as soon as possible and in any event, within three months from today.

Dr. Saraf, on instructions from applicant - Ms. Jaising, who is present in Court, without admission of any liability and purely as a concession, states that the amount of Rs.16,27,500/- paid by Mr. Arun Bahirwani as stamp duty on the Deed of Sale dated 28th April 2016 be reimbursed to Mr. Arun Bahirwani by Official Assignee out of the amount that is payable to applicant as mentioned in paragraph 4 above. It is also clarified that if any application is filed by Mr. Avinash Bansi Jaising in this Court, as noted in paragraph 5 of the consent terms, the same will be decided by this Court in accordance with law including as to

10/10 maintainability.

Dr. Saraf states that Ms. Jaising will also pay a sum of Rs.1 lakh as a token of appreciation to the office of Official Assignee for the efforts put in and time spent in this matter, even though, Ms. Jaising, not being an insolvent, no cost is payable by applicant to Official Assignee. Statement accepted.

Official Assignee to deduct this amount of Rs.1 lakh from the amount payable to Ms. Jaising and this amount to be utilised by Official Assignee towards administrative expenses.

Notice of motion no.5 of 2017 and notice of motion no.32 of 2017 are allowed and accordingly disposed.

No orders as to costs.

Official Assignee's Report No.21 of 2016 to be listed for directions after 12 weeks. Liberty to apply.

All to act on an authenticated copy of this order. Digitally signed by Gauri Amit Gaekwad Date:

2018.07.19 19:12:31 +0530 Gauri Amit Gaekwad (K.R.SHRIRAM, J.)