The executing court cannot alter a decree to include terms not consented by the parties, even if ambiguity exists; it must enforce the decree as it is.

JUDGEMENT

S. RAVINDRA BHAT, J.

1. Leave granted. These two appeals are preferred against the common impugned judgment and final order of the High Court of Judicature at Bombay, dated 14.06.2022,1 in which the order of the single judge dated 04.01.2021,2 was affirmed.

I. Factual Background 1 Sanwarlal Agrawal v Ashok Kumar Thakur, Appeal (L) No. 3075/2021 and 3079/2021. 2 Ashok Kumar Kothari v Sanwarlal Agrawal, Execution Application (L) No. 1713/2019 and 139/2020 in Commercial Suit No. 844/2019. Digitally signed by NEETA SAPRA Date: 2023.02.21 17:25:27 IST Reason:

Signature Not Verified

2. The parties entered into a joint venture agreement in 2017 to operate a multi-specialty hospital in Malad, Mumbai. As equal shareholders, each brought in 10 crores as interest-free loans to finance the project. On 27.03.2019, the ₹ respondents (hereafter, ‘Kotharis’) bid for the entire 50% shareholding of the appellants (hereafter, ‘Agrawals’), which was accepted, and reduced in writing by way of an email dated 28.03.2019, which stated the terms as follows:

“The te(r)ms and conditions agreed by you are also agreeable to us, which are as follows, l. consideration- 36.75 crores Kothari group will be allowed to start work on the project.

4. remaining 45 percent of consideration within 120 days. Failure to pay 50 percent amount within 45 days will lead to forfeiture of token amount of 5 percent and automatic sale of 50 percent shares of Kothari group to Agrawal group at their bid price of 35 crore on same terms and condition starting 45th day. Failure to pay the final 45 percent in time will lead to forfeiture of 5 percent of the consideration and automatic sale of 50 percent shares of Kothari group to Agrawal group at their bid price of 35 crore on same terms and condition sta1iing 120th day. There will be no interest paid by Agrawal group on the balance consideration.

Deal date march 27, 2019.”

3. Thereafter, token amount of 1,83,75,000/- (or 5%) was paid (of which ₹ 1,25,000/- was contested as having never been received in the account of ₹ Agrawals). However, on 29.03.2019, Kotharis, by way of email, provided a break-up of the consideration of 36.75 crores, as under:

₹ “At the outset, please note that the total consideration of Rs. 36.75 Crores payable to you comprises of:

a. the total value of your 50% shareholding in the company being the sum of Rs. 26,45,45,000/- (Rupees Twenty-Six Crores Forty-Five Lakh Forty-Five Thousand Only) b. re-payment of your group's interest free loan lying with the company of the sum of Rs. 10,29,55,000/- (Rupees Ten Crores Twenty-Nine Lakhs and Fifty-Five Thousand) which will be paid and discharged to you through the bank account of the company.”

(emphasis supplied) This inclusion of the loan amount was not acceptable to Agrawals, who expressly rejected the same in an exchange of emails thereafter, dated 03.04.2019, 11.04.2019, 19.04.2019 and 20.04.2019.

4. On 30.04.2019, Kotharis filed Commercial Suit No. 844/2019, for declaration that the agreement dated 28.03.2019 was binding on the Agrawals, and for specific performance. This was followed by a Notice of Motion No. 1619/2019, dated 29.07.2019, under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereafter, “CPC”), seeking decree on admission, which was awarded by order dated 05.08.2019 in the following terms:

“1. Mr. Saraogi and Mr. Hakani on instructions from Dr. Vikas Agarwal, Defendant no.2, who says that he has instructions on behalf of other defendants to make the statement, state that they are submitting to a decree in terms of prayer clauses (a) to (d), whic