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2018 Supreme(Bom) 1888
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, B.P. COLABAWALLA, JJ.
Base Industries Group and Anr. – Appellants
Versus
Mahesh P. Raheja and Ors. – Respondents
Commercial Appeal (L) No. 438 of 2018 In Commercial Chamber Summons No. 488 of 2018 In Commercial Execution Application No. 63 of 2017 In Suit No. 119 of 2016 With Notice of Motion(L)No.1015 of 2018
Decided On : 20-12-2018
For the Appellant : Mr. Mukesh M. Vashi, Senior Counsel a/w Ms. Manisha Desai I/b M. P. Vashi Associates
For the Respondent: Mr. Zain Mookshi a/w Ms. Parisha Shah
Headnote:
Case of defendant - Money lenders - Decretal amount - Date of consent terms - Raise attachment - Bombay Money Lenders Act, Commercial Courts Act, 2015, Arbitration and Conciliation Act, 1996 - Section 13, 37, 47, 104 - Code of Civil Procedure 1973 - By this Commercial Appeal, Appellants take exception to order passed by learned Single Judge in Chamber Summons in Commercial Execution Application Defendant Nos1 and 2 and in favour of Plaintiff No 1 for sum with interest there on at rate of 15% per annum - Plaintiff No. 2 for sum of Rs. 1,50,00,000/- with interest thereon at rate of 15% per annum - Plaintiff No. 2 of sum of Rs. 1,98,12,500/- with interest thereon at rate of 15% per annum - Clause (3) of Consent Terms stipulated that Defendant Nos.1 and 2 undertake to pay aforesaid decretal amount to Plaintiffs within one year from date of Consent Terms, time being of essence – Held, Court find that reliance placed by Mr. Vashi on Order 21 Rule 58 read with Section 47 to try and bring impugned order within ambit of being an appealable order, is also wholly misplaced - Here, there has been no adjudication under Order 21 Rule 58 so that such an order would be a Decree of Court, and hence, appealable -As narrated above, several undertakings were given by Defendant to deposit entire decretal debt in this Court - This being case, Court do not think that this order falls within ambit of Order 21 Rule 58 at all - In fact, it was not even case of Defendant before Trial court that Chamber Summons as filed, was under provisions of Order 21 Rule 58 - This is also clear from a bare reading of prayers set out in Chamber Summons and reproduced by Court earlier -This being case, Court find that reliance placed by Mr. Vashi on provisions of Order 21 Rule 58 are wholly misplaced - Before parting, Court must mention that a Division Bench of this Court in case of Shailendra Bhadauria & Ors. Vs. Matrix Partners India Investment Holdings LLC & Ors. has considered in detail provisions of Section 13 of Commercial Courts Act, 2015 as well as provisions of CPC,1908 - Facts of present case, to our mind, would clearly be governed on ratio laid down by Division Bench in aforesaid decision rendered in that case - In view of forgoing discussion, Court have no hesitation in holding that present Appeal is not maintainable - It is therefore dismissed - However, in facts and circumstances of case, there shall be no order as to costs - Ad- interim orders, if any, shall stand vacated forthwith - Appeal is dismissed.
B. P. COLABAWALLA, J.
1. By this Commercial Appeal, the Appellants take exception to the order dated 13th/22nd July, 2018 passed by the learned Single Judge in Chamber Summons No. 488 of 2018 in Commercial Execution Application No. 63 of 2017 in Suit No. 119 of 2016. By a detailed and reasoned impugned order, the learned Single Judge dismissed the Chamber Summons filed by the Appellants. Hence, the present Appeal.
2. The Appellants before us were Defendant Nos.1 and 2 before the Trial Court and Respondent Nos.1, 2 and 3 herein were the Plaintiffs. Respondent Nos.4 & 5 herein were Defendant Nos.3 & 4 before the Trial Court. For the sake of convenience, we shall refer to the parties as they were arrayed before the Trial Court.
3. The brief factual narration is that, the Suit was originally filed by the Plaintiffs seeking a decree in favour of Plaintiff No.1 in the amount of Rs.74,10,000/-; in favour of Plaintiff No.2 in the amount of Rs.1,71,00,000/- ; and in favour of Plaintiff No.3 for an amount of Rs. 2,25,86,250/-. Apart from the money decree, a prayer was also sought for a declaration that the Plaintiffs have a lien and charge on two films “Welcome Back” and “Hera Pheri 3” produced by Defendant Nos.1 and 2.
4. After the Suit was filed, on 16th February, 2016, Consent Terms were arrived at and were filed in the Suit and a Consent Decree came to be passed. In these Consent Terms, Defendant Nos. 1 and 2 submitted to a Decree in the following manner:-
“2. Decree against Defendant Nos.1 and 2 and in favour of:
(a) Plaintiff No.1 for sum of Rs.65,00,000/- (Rupees Sixty Five Lakhs only) with interest thereon at the rate of 15% per annum from 1st June 2015 till payment and/or realization of the decretal amount;
(b) Plaintiff No.2 for sum of Rs. 1,50,00,000/- (Rupees One Crore Fifty Lakhs only) with interest thereon at the rate of 15% per annum from 1st June 2015 till payment and/or realization of the decretal amount.
(c) Plaintiff No.2 of sum of Rs. 1,98,12,500/- (Rupees One Crore Ninety Eight Lakhs Twelve Thousand Five Hundred only) with interest thereon at the rate of 15% per annum from 1st June 2015 till payment and/or realization of the decretal amount.”
5. Clause (3) of the Consent Terms stipulated that Defendant Nos.1 and 2 undertake to pay the aforesaid decretal amount to the Plaintiffs within one year from the date of the Consent Terms, time being of the essence.
6. Thereafter, Clause (4) and (5) set out that Defendant Nos.1 and 2 had paid certain amounts to the Plaintiffs by specified cheques and Clause (6) stipulated that if any of these cheques were dishonoured, the Plaintiffs would be entitled to execute the Decree immediately.
7. Since the cheques issued by the Defendants were dishonoured, the Plaintiffs put the Consent Decree in execution by filing the above Commercial Execution Application. In this Execution Application, the Plaintiffs took out a Chamber Summons in the usual form. In the meanwhile, Defendant Nos.1 and 2 also filed Chamber Summons No. 218 of 2017 to raise the attachment that was levied on their Cosmos Bank, Vile Parle Branch, bank account. On this Chamber Summons (Chamber Summons No. 218 of 2017) an order came to be passed by another learned Single Judge (K. K. Tated, J.), wherein the Applicant to the said Chamber Summons was granted a week's time to enable him to file an affidavit-cum-undertaking that he will clear all the Plaintiffs' dues within a particular time and also disclose as to whether any liability is created by him on the attached property, namely the bungalow named “Barkat” situated at Plot No. 20, Gulmohar Cross Road No.5, J. V. P. D. Scheme, Mumbai 400 049.
8. The matter then reached on 13th November, 2017 when Defendant No.2 was personally present in Court. Thereafter, he filed an affidavit dated 20th November, 2017 and in paragraph 4 he solemnly stated that he would clear the decretal debt with interest by 15th January, 2018. That undertaking was accepted. The parties then filed Consen
