Deven Hemant Shah v. Atul Arvind Kamdar
1/9 THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY AND ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1799 OF 2018 WITH NOTICE OF MOTION NO.628 OF 2019 IN SUIT NO.966 OF 2011 Deven Hemant Shah ....Plaintiff Vs.
Atul Arvind Kamdar ....Defendant ---- Mr. Ruchir Tolat i/b. L.C. Tolat for applicant/plaintiff. Mr. Kalpesh Joshi a/w. Ms. Nisha Shah i/b. Kalpesh Joshi Associates for defendant.
---- CORAM : K.R.SHRIRAM, J.
DATE : 22nd MARCH 2019 P.C.:
NOTICE OF MOTION NO.628 OF 2019 By this notice of motion, plaintiff is seeking a consent decree in terms of the compromise/settlement recorded in consent terms signed and executed by plaintiff and defendant on 31st October 2018 and taken on record and marked "X" for identification. Plaintiff is also seeking appointment of Court Receiver of a flat being Flat No.55/56 on the 5th floor, Shivsagar CHS Limited, Walkeshwar Road, Malabar Hill, Mumbai - 400 006 with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908.
2/9 Defendant has ofcourse filed an affidavit in reply opposing this notice of motion and there are two main grounds which are taken, viz., (a) defendant was pressurized to sign the consent terms and (b) defendant to the said flat is only as a nominee of the original owner late Mrs. Sunita Bipinchandra Kamdar who expired intestate in the year 2006. Defendant has also stated that he was only a nominee and rights of the third parties may get affected if Court Receiver is appointed.
The reason why plaintiff has taken out this notice of motion can be found in the order dated 18th December 2018 passed by this Court. For ease of reference, the order dated 18th December 2018 is reproduced below :
Today, the application is moved on behalf of the plaintiffs that the Court should take on record the consent terms arrived between the parties plaintiffs and defendants and proceed to dispose of the Suit in terms of the consent terms.
2. The learned counsel for the defendants on the other hand does not dispute that the parties have arrived at the consent terms, however, he submits that now although the consent terms are signed between the parties, his client has reservations to the time period to make payment as set out in clause nos.4 & 8 of the consent terms namely the date of 30/12/2018, and thus, the consent terms ought not to be taken as a complete settlement of the disputes between the parties. It is submitted that the defendants would require further time to make payment of the said amount as they are in financial difficulties and the time by which the defendant propose to make the said payment by 15/01/2019.
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3. The learned counsel for the plaintiff states that this is a second occasion on which the defendant has deviated from his commitment. Earlier, defendant has agreed to make payment by 15/12/2018 and thereafter again the consent terms were modified and time to make payment was extended to 30/12/2018. It is submitted that in view of this clear understanding and acceptance of the terms and conditions of the consent terms, this Court should record settlement and Decree the Suit in terms of the consent terms. The learned counsel for the plaintiffs has placed on record the consent terms duly signed between plaintiffs and defendants as also signed by the respective Advocates. They are marked as 'X' for identification.
4. The situation before the Court is quite peculiar. The defendant has agreed to make the payment as per clause 4 & 8 of the consent terms, to make the payment on or before 30/12/2018, however, orally a statement is being made that this date be modified to 15/01/2019 which is not agreeable to the plaintiff. There is no consensus in this regard. Thus, in this situation it would be difficult for the Court to proceed and record a settlement of the disputes between the parties in terms of the consent terms.
5. In the above premises, no further order required to be passed today and it is open for the parties to resort to appropriate course of action. Accordingly the matter be listed before the regular Court after four weeks.
From the order it is quite clear that the only reason why defendant did not come to the Court and confirm the consent terms was because defendant wanted extension of time to make the payment from 30th December 2018 to 15th January 2019, a mere 15 days. It was not defendant's case before this Court on 18th December 2018 that defendant was coerced or pressurized in signing the consent terms. If one considers the consent terms, defendant has admitted his liability to plaintiff.
4/9 It will be useful to scan and reproduce the consent terms at this stage :
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8/9 In the circumstances, plaintiff is certainly entitled to a decree against defendant.
The suit stands decreed accordingly. Drawn up decree dispensed with.
9/9 Admittedly, the share certificates for the said flat are in the name of defendant. The share certificates are in the possession of plaintiff. Therefore, it will be only appropriate if the Court Receiver of this Court is appointed as Receiver of the said flat with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908. The Court Receiver to take physical possession of the said flat and if there is any obstruction, may approach the concerned police station for assistance, who shall depute such number of personnel as required. This notice of motion accordingly stands disposed. In view of the above, notice of motion no.1799 of 2018 also stands disposed. Suit also stands disposed. Refund, if any, of court fees in accordance with rules.
All to act on authenticated copy of this order. (K.R. SHRIRAM, J.)