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2012 Supreme(Bom) 1778

High Court of Judicature at Bombay
ROSHAN DALVI
Yash Tejpal Shah & Others
Versus
M/s. Shree Ashtavinayak Cine Vision Ltd. & Others
CHAMBER SUMMONS NO.866 OF 2012 IN EXECUTION APPLICATION (L.) NO.1207 OF 2012
Decided On : 18-09-2012

Advocate Appeared:
For the Applicants:Aspi Chinoy, Sr. Advocate a/w. Rajiv Narula, A. Dasgupta i/b. J. Narula & Associates, Advocates.
For the Respondents:R1 & R2, D.D. Madon, Sr. Advocate a/w. I.S. Nankani, H.S. Khokawala i/b. Nankani & Associates, R4, Ms. Rajani Iyer, Sr. Advocate a/w. S.V. Kadam, Monish Choudhary, Ms. Apeksha Sharma i/b. Kadam & Co., R5, Virag Tulzapurkar, Sr. Advocate a/w. Ashish Kamath i/b. Naik Naik & Co., Advocates.

Headnote:Civil Procedure Code, 1908 - Order XXI, Rule 41 - Appointment of Court Receiver. - Where consent award created paramount lien in favour of applicants over income of respondents therefore appointment of Court Receiver for execution of consent award justified. - An agreement could be executed by a party with another to defraud another party in future or to make provision for evasion of future liability known to such party. The award had been passed since 29th October, 2011. Respondent Nos. 1 and 2 know their liability from that date itself. Respondent No. 1 discharged only a part of its liability of minor amounts aggregating to Rs. 5.3 crores only from amount of 41 crores with interest. The chunk of the liability was to arise in June, 2012. If respondent Nos. 1 and 2 had, not the intention to discharge that liability but only the intention to defraud their creditors after causing them to sign the Consent Terms, respondent Nos. l and 2 may enter into such an agreement in February, 2012. It matters not that some of the installments had not become due and payable until then and were defaulted thereafter and the execution application was taken out still thereafter. The mala fide intention of respondent Nos. 1 and 2 could have been present to their minds even in February, 2012 unknown to all others including the claimants. Hence merely because the agreement was executed prior to the execution application would not impute bona fides.

Judgment

1. The applicants are the Judgment Creditors under a Consent Award dated 29th October, 2011 executed by and between the applicant and respondent No.1 as the Judgment Debtor under which Rs. 41 crores was to be paid by Respondent Nos.1 and 2 with interest thereon @ 27% p.a. from 1st October, 2011 until payment The Consent Award constitutes a money decree. A paramount lien is created in favour of the Applicants under clause 2 of the Award on the income of the respondent No.1 from various films which he would produce. The payment of installments as agreed by and between the parties came to be set out in the Award. It was specifically provided that upon committing default of any one installment on those dues dates the entire outstanding amount would become due and payable and the award would become executable. First three installments were paid. Thereafter there was defaults. Further time was asked for and granted under letters of the parties which correspondence is admitted. Rs. 36.26 crores remained due and payable. Under the specific agreement between the parties the amount was to be paid on or before 30th June, 2012 or in the alternative respondent No.1 was to show the petitioner 30% of the work completed by respondent No.1 in another production and be entitled to deferred dates of payment by issue of fresh cheques dated 30th June, 2012, 31st July, 2012 and 30th September, 2012. This had to be shown by a certificate of laboratory which held the negatives of the suit film. Respondent No.1 by certain letters executed in June, 2012 agreed to obtain the certificate and in fact obtained the certificate of Respondent No.3 dated 11th June, 2012. Pursuant to respondent No.1 showing that it had rights and entitlement in such other film, the dates of payment were deferred and fresh cheques were issued. In the meantime before those deferred dates of payment the another film “Sher” was sought to be released by Respondent Nos.1 and 2. The applicant preferred to proceed in execution against the rights, title and interest of Respondent Nos.1 and 2 in such other film.

2. The 4th installment of Rs.36.26 crores was to be paid on 30th June, 2012 or before the release of the suit film of defendant Nos.1 and 2 which was not paid. If this was not paid the parties agreed that Respondent Nos. 1 and 2 would produce a certificate from Respondent No.3, the relevant laboratory, certifying that their next film is complete to the extent of 30% and issue fresh cheques for that installment. These cheques were to be honoured on those dates.

3. The first cheque itself has been dishonoured. The other film, which was stated to be more than 30% completed was infact stated to be soon released and hence the execution proceedings were commenced.

4. In such execution the claimants want receiver in execution to be appointed with regard to the release of prints and negatives of the other film, injunction against Respondent Nos.1 and 2 against release of that other film and against Respondent No.3 against releasing prints of that film, further injunction against Respondent Nos. 1 and 2 in respect of certain shares standing in their names in another company, depositing the income to be received by Respondent Nos.1 and 2 from third parties and disclosing on oath their properties and orally examining them in respect thereof.

5. Before the due date of the 4th installment of Rs.36.26 crores the claimants issued the notice upon Respondent Nos. 1 and 2 in respect of the alternative obligations of Respondent Nos.1 and 2 under the Consent Terms of either making payment of last installment on deferred dates obtaining the certificate of completion of another film, by their notice dated 22nd May, 2012. This was because the 4th installment was due and payable on 30th June, 2012 and respondent Nos.1 and 2 were announced the release of the other film on 6th July, 2012 for which the deliveries of prints would take place by 25th June, 2012. The notice dated 22nd May, 2012 has be





































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