2024:BHC-OS:14532 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION EXECUTION APPLICATION NO. 1041 OF 2022 ASHOK KUMAR KOTHARI & OTHERS )JUDGMENT CREDITORS V/s.

SANWARLAL AGARWAL & OTHERS ).JUDGMENT DEBTORS WITH EXECUTION APPLICATION (L) NO. 139 OF 2020 SANWARLAL AGARWAL & OTHERS )JUDGMENT CREDITORS V/s.

ASHOK KUMAR KOTHARI & OTHERS ).JUDGMENT DEBTORS WITH INTERIM APPLICATION (L) NO. 28981 OF 2021 AND INTERIM APPLICATION (L) NO. 5203 OF 2021 AND INTERIM APPLICATION NO. 546 OF 2022 IN EXECUTION APPLICATION NO. 1041 OF 2022 WITH NOTICE (L) NO. 31837 OF 2022 IN EXECUTION APPLICATION NO. 1041 OF 2022 Mr.Anil Singh, Senior Advocate a/w. Mr.Amogh Singh, Mr.Vikas Mishra, Mr.Nirav Karia, Mr.Adarsh Vyas, Mr.Rohit Yadav, Ms.Krutisha Pandey, Ms.Monika Shekhawat i/by Mr.Bhavin Bhatia, Advocate for the Applicants/Judgment Creditors in EXAL/139/2020 and for the Judgment Debtors in EXA/1041/2022.

Mr.Dinyar Madon, Senior Advocate a/w. Mr.Vishal Kanade, Mr.Bhadrish Raju i/by Mr.Jamshed Ansari, Advocate for the Judgment Creditors in EXA/1041/2022 and for the Judgment Debtors in EXAL/139/2020.

CORAM : ABHAY AHUJA, J.

RESERVED ON : 28^th AUGUST 2024 PRONOUNCED ON : 19^th SEPTEMBER 2024 JUDGMENT :

1. A company by the name of Special Ear, Nose and Throat Hospital Private Limited (the “said company”) was incorporated on 2^nd April 2009 with the object to construct a multi-speciality hospital on a parcel of land called as “Hospital Plot AM6” admeasuring 4897.40 square meters and bearing CTS No.827/C/1/20 situate at Dindoshi, Malad (East), Taluka Borivali, Mumbai (the “project”) by the Defendants (the “Agarwals”) in Suit No.844 of 2019 (the “said suit”) and the Agarwals were 100% shareholders of the said company till 8^th May 2012. On 8^th May 2012, the Plaintiffs (the “Kotharis”) in the said suit acquired 50% shareholding in the said company. Accordingly, the shareholding of the said company was equally divided between the Kotharis and the Agarwals.

2. The Kotharis advanced sum of Rs.10,30,27,700/- to the said company as an interest free loan by way of quasi-equity and the Agarwals had also advanced a sum of Rs.10,32,55,000/- to the said company as an interest free loan by way of quasi-equity.

3. Around 27^th March 2019, differences arose between the parties with respect to the implementation of the project, which differences were sought to be settled by a mutual agreement whereby both the groups decided to bid against each other, in order to acquire and have full control of 100% shareholding of the said company. The Agarwals made a bid of Rs.35 crores for purchase of the 50% shareholding of the Kotharis and in counter thereto, the Kotharis made a bid of Rs.36.75 crores for the purchase of the 50% shareholding of the Agarwals. The Agarwals did not increase their bid and as a result, the Kotharis were the successful bidder.

4. On 28^th March 2019 the Agarwals addressed an email to the Kotharis regarding the terms and conditions of the agreement arrived at on 27^th March 2019.

5. The Kotharis, thereafter, addressed two emails, one on 29^th March 2019 and the second on 3^rd April 2019 further adding terms to the email dated 28^th March 2019. The Agarwals rescinded from the entire deal vide email dated 29^th April 2019.

6. As disputes and differences arose between the two with respect to the performance of the said email/agreement dated 28^th March 2019, on 2^nd May 2019, the Kotharis filed the said Suit no.844 of 2019 against the Agarwals before this Court praying for specific performance of the agreement arrived at on 27^th March 2019 and reduced to writing by email/agreement dated 28^th March 2019. On 30^th July 2019, the Kotharis also filed a Notice of Motion No.1916 of 2019 in the said suit praying for a judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908 (“CPC”).

7. Thereafter, on 5^th August 2019, this Court (Coram : K.R. Shriram, J.) decreed the said suit in view of the settlement on behalf of the Defendants that th