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2007 Supreme(Bom) 131
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. VAZIFDAR, J.
Llalubhai Amichand Ltd. — Plaintiff
Vs.
Akruti Nirman Ltd. & Ors. — Defendants
And
Pandya & Poonawala – Respodent
CHAMBER SUMMONS NO.231 OF 2006
IN
EXECUTION APPLICATION (LDG.) NO.100 OF 2006
IN
SUIT NO.567 OF 2007
DECIDED ON : 31ST JANUARY, 2008
AND 1ST FEBRUARY, 2008
Mr. Sanjay Jain with Mr.Prakash Shinde i/b. M.Dhruva & Co. for the
Plaintiff.
Mr. S. H. Doctor, Senior Counsel with Mr. P. K. Dhakeparkar, Senior Counsel with Mr. Vijaykumar i/b. Mr. Prashan Kulkarni for
Defendant Nos.1 to 3.
Mr. Subodh Joshi with Ms. Radhika Kalpatrai and Ms. Bharti Bhagwat i/b. Parimal Shroff & Co. for Defendant Nos. 4 and 5 .
Mr. Sirshika for Defendant No.8 BMC.
Mr. Y. B. Pandya i/b. M/s. Pandya & Poonawala for the
Respondents.
Ms. Asha Bhambwani for Defendant No.6 MMRDA
Headnote:Civil Procedure Code, 1908 - Section 47-Order XXI, Rule 2Award of interest-Alteration of decree.-The amounts ought to have been paid to the plaintiff latest by 2.1.2006. The amounts were however not handed over in view of the contentions raised by defendant Nos. 1 to 3 necessitating the above Chamber Summons. Proceedings take their own time to be decide. While it is not open to alter a decree the Court is bound to interpret it. To Court’s mind, the stipulation in Clause 8 for payment of interest to defendant No. 1 must be restricted only upto the date on which the plaintiff was entitled to payment of the sum of Rs. 2 crores but not thereafter. Surely, it cannot be contended that though the Court has accepted the plaintiff’s contention that payment ought to have been made latest by January, 2006, the interest thereon ought not to be paid even from that date merely due to the pendency of proceedings necessitated by the wrongful stand taken by defendant Nos. 1 to 3. This would be a travesty of justice. By ordering payment of interest with effect from 2.1.2006, Court has not altered the decree but interpreted it and granted the plaintiff the benefit of the logical consequence of the finding that the plaintiff was entitled to the money in January, 2006.
1. It would be convenient to set out the prayers in the Notice of Motion as they are involved and the scope thereof were the subject matter of controversy. The prayers read as under :“
(a) this Hon’ble Court be pleased to declare that the Decree dated 7th July, 2005 and 11th July, 2005 passed in Suit No. 567 of 2005 has been adjusted and/or varied and/or modified to the extent that: (i) the Plaintiff is required to surrender and/or handover the Amenity land and Additional Recreation Ground area to Defendant No.6 or Defendant No.8; (ii) that such surrender or handing over of possession has to be done on or before 25th February, 2006 or such other date as this Hon’ble Court may decide and (iii) the Respondent has to pay the amount of Rs.2,00,00,000/to the Plaintiff upon proof of possession of the Amenity space and Additional Recreation Ground;
(b) that the adjustment and/or modification and/or variation of the Decree dated 7th July, 2005 and 11th July, 2005 as per prayer (a) above or to such extent as may be declared by this Hon’ble Court be certified on Decree dated 7th July 2005 and 11th July 2005 passed in Suit No. 567 of 2005;
(c) that this Hon’ble Court be pleased to declare that the Plaintiff has complied with his obligation under Clause No.6 and 8 of the Consent Terms dated 7th July, 2005 as adjusted and/or modified and/or varied;
(d) that this Hon’ble Court be pleased to direct the Respondent/ Garnishee to pay to the Plaintiff the amount of Rs.2,00,00,000/alongwith accretions thereto from 1st January 2006 or such other date as this Hon’ble Court may deem fit and proper;
(e) that this Hon’ble Court be pleased to order and direct Defendant No.6 to forthwith handover to the Plaintiff, quiet, vacant and peaceful possession of the Service Industry land admeasuring 5245.83 sq. meters, more particularly described in the Schedule annexed hereto as Annexure I;
(f) in the alternative to prayer (e) above, this Hon’ble Court be pleased to appoint the Court Receiver, High Court, Bombay as Receiver of the Service Industry land admeasuring 5245.83 sq. meters, more particularly described in the Schedule annexed hereto as AnnexureI with power to take possession thereof from whosoever found in possession and with a direction to handover the same to the Plaintiff forthwith;
(g) that upon receipt of the amount of Rs.2,00,00,000/by the Plaintiff from the Respondent, this Hon’ble Court be pleased to certify the same on the Decree dated 7th July, 2005 / 11th July, 2005;
(h) that upon quiet, vacant and peaceful possession of Service Industry land being handed over to the Plaintiff, this Hon’ble Court be pleased to certify compliance of the Decree dated 7th July, 2005 / 11th July 2005 in so far as Respondent No.6 is concerned.”
2. The suit was filed for a declaration that the contract entered into between the Plaintiff and Defendant No.1 is valid, subsisting and binding upon Defendant Nos.1 to 5. Defendant Nos.2 to 5 are individuals. Defendant No.6 is the Mumbai Metropolitan Regional Development Authority (MMRDA). Defendant No.7 is the Union Bank of India and Defendant No.8 is the Bombay Municipal Corporation (BMC). The Respondents were at the material time the advocates of Defendant Nos.1 to 3 as well as the escrow agents appointed under the Consent Terms I shall refer to shortly.
3(A). It is not necessary to refer to the interlocutory proceedings taken out in the suit. By an order dated 7.7.2005, the suit was decreed in terms of the consent terms entered into between the Plaintiff and Defendant Nos.1 to 3. By the said order, Defendant Nos.6 to 8 were directed to provide all cooperation to enable the Plaintiff and Defendant Nos.1 to 3 to implement and act in pursuance of the decree. The matter was directed to be put up on 11.7.2005 for further directions. Clauses 4 to 8 of the consent terms read as under :“
4. Defendant No.1 is Ordered and Decreed to pay to the Plaintiff an amount of Rs.2,00,00,000/( Rupees Two Crores Only) in fu
