Dismissed

Deep Construction Co. v. Jitendra N. Patel and Anr.

Bombay HC3 Apr 2019CHS/785/2018

Case brief

AI extract

What is this about?

In an execution suite regarding a specific performance suit for an immovable property settlement, the court allowed the applicant to withdraw a tableau and discharged the applicant from bearing the Court Receiver's expenses. The second respondent agreed to bear the entire cost as part of their settlement obligations. The first respondent's claim for modification of previous costs sharing orders wa

What did the court decide?

Parties discharged from bearing costs for Court Receiver; Second Respondent to bear full expenses; First Respondent's refund of shared costs with interest.

Deep Construction Co. Vs Jitendra N. Patel… — Contract and Commercial Disputes | Bombay HC (2019)

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907-CHS785-18.DOC

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Arun

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION

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COMM CHAMBER SUMMONS (L) NO. 312 OF 2019

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IN

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COMM NOTICE OF MOTION NO. 2505 OF 2018 IN

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COMM EXECUTION APPLICATION NO. 88 OF 2017

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IN

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SUIT NO. 172 OF 2009

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Deep Construction Co…Applicant/
Plaintiff
Versus
Jitendra N Patel & Ors…Respondents/
Defendants

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WITH

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CHAMBER SUMMONS NO. 785 OF 2018

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IN

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SUIT NO. 172 OF 2009

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Deep Construction Co…Applicant/
Plaintiff
Versus
Jitendra N Patel & Ors…Respondents/
Defendants

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Page 1 of 6
2nd April/3rd April 2019

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907-CHS785-18.DOC

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Mr M Rathod, i/b Jain & Jain Law Associates, for Applicants/
Plaintiffs.

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Ms Purvi Jain, i/b Navdeep Vora and Associates, for Defendant No.1
Ms Nimita Shirke, i/b Jaydeep Thakkar, for Defendant No.2.

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CORAM: G.S. PATEL, J DATED: 2nd April/3rd April 2019

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PC:-

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CHAMBER SUMMONS NO. 785 of 2018:

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1.At the request of the Applicant, Chamber Summons is
dismissed as withdrawn.

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COMM NOTICE OF MOTION NO. 2505 OF 2018:

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2.There is a completely unnecessary controversy between the
Plaintiff and the 2nd Defendant relating to sharing of the costs,
charges and expenses of the Receiver appointed pending the suit.

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3.The suit itself was for specific performance of an
Memorandum of Understanding dated 30th April 2007 for sale of
an immovable property at Ghatkopar. There was a companion Suit
No.2292 of 2009 where the present 2nd Defendant was the Plaintiff.
At the interim stage, the matter travelled to the Supreme Court and
it was there in the Special Leave Petition that on 20th September
2011 a Court Receiver was appointed. The Supreme Court order
said that all three parties would share the costs of the Court
Receiver equally.

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Page 2 of 6
2nd April/3rd April 2019

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907-CHS785-18.DOC

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4.Ultimately, after negotiations Consent Terms were entered in
the present Suit No. 172 of 2009. On 14th February 2017, Consent
Terms were filed in the other Suit No. 2292 of 2009. There was a
default. In May 2017, the present Plaintiff, Deep Construction
moved in execution of the Consent Decree in its suit. The matter
continued till November 2017 to the stage of an attempted auction
of the suit property when the parties once again opened
negotiations.

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5.These ultimately did fructify. According to the Plaintiff, Deep
Construction agreed to forgo its claim for accumulated interest, an
amount of over Rs.50 lakhs, and the parties agreed that the 2nd
Defendant, Maruti Vikas Enterprises would pay Deep Construction
an amount of Rs.1,71,50,000/- in full and final satisfaction of the
decretal claim. Consent Terms to this end were filed in Chamber
Summons No. 331 of 2017 in Deep Construction’s Execution
Application No. 88 of 2017. Everybody seems to have forgotten
about the Receiver at this time. It was he, the Court Receiver, who
pointed out to the parties that they should have obtained an order of
the discharge of the Receiver.

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6.It is at this stage that the matter came before me on 26th July
2018 at the instance of the 2nd Defendant, Maruti Vikas
Enterprises. All were present at that time. The order I passed that
day was by consent and it was that the Receiver’s charges would be
paid by the 2nd Defendant. This is justified today on the basis of
three arguments: (i) that the amount that Maruti Vikas Enterprises
was to pay Deep Construction was final net figure; (ii) that Deep
Construction was foregoing its interest claim and (iii) that the entire

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Page 3 of 6
2nd April/3rd April 2019

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907-CHS785-18.DOC

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property was going to Maruti Vikas Enterprises although it was
Deep Construction that had come to Court seeking specific
performance.

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7.Thereafter, at the request of the Defendants, Deep
Construction sought a withdrawal of the lis pendens notice that it
had registered and served.

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8.On 26th September 2018, Maruti Vikas Enterprises filed a
praecipe ostensibly for speaking to the minutes saying that there was
an error in my 26th July 2018 order and the Receiver’s costs and
expenses should be borne by all three parties equally. I did not make
any order on that application on praecipe but directed Maruti Vikas
Enterprises to file an appropriate application. On 15th November
2018, Maruti Vikas Enterprises filed Notice of Motion No. 2505 of
2018 seeking a modification of the 26th July 2018 order specifically
requesting that an order be made that all three parties share the
Receiver’s expenses equally. The Receiver himself stood discharged
by the end of January 2019. On 15th January 2019, Maruti Vikas
Enterprises filed a praecipe for a listing of its Notice of Motion No.
2505 of 2018. The Court assigned a date and it was listed on 15th
February 2019. The Plaintiff was not present at that time and I made
an order then that the Receiver’s costs and expenses would be borne
by all three parties. The Plaintiff, Deep Construction has thereafter
filed the present Chamber Summons (L) No. 312 of 2019 seeking in
essence to recall the order of 15th February 2019 and restore the
26th July 2018 order, the very order that Maruti Vikas Enterprises
wants modified. In other words Maruti Vikas Enterprises wants the
26th July 2018 order substituted by the 15th February 2019 order,

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Page 4 of 6
2nd April/3rd April 2019

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907-CHS785-18.DOC

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and Deep Construction wants the 15th February 2019 order
substituted by the 26th July 2018 order. Both orders are mine.

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9.It seems to me that what Deep Construction says is not only
correct but is eminently reasonable and is also equitable. The only
justification that Maruti Vikas Enterprises provides for making this
change is that Supreme Court, while appointing the Receiver as far
back as in 2011, said that all three parties would have to bear costs
equally. But that was at a time when parties were being maintained
in status quo. What has happened thereafter cannot be ignored.
Consent Terms were filed in the suit. There was a default. Deep
Construction had to take it to execution and carry it all the way to
the stage of an auction through the Court before Consent Terms
were filed again, this time in execution. The result of the second
round of settlement is for a predetermined price. Maruti Vikas
Enterprises has got the entire property and undoubtedly any
monetary claim that Deep Construction may have had, whether for
interest or otherwise, it has given up totally. I cannot understand
how it could possibly be equitable for Maruti Vikas Enterprises to
now say that what it has paid to the Plaintiff should be reduced by
recovering from the Plaintiff some component of Receiver’s
charges. After all, Maruti Vikas Enterprises has the property and it
cannot get this property at a discount or reduction never agreed. If
the property has been protected for all this period of time that is an
advantage that has inured to the benefit of Maruti Vikas Enterprises,
and it should pay for this benefit. There is no reason why Deep
Construction should have to subsidise the benefit accrued to Maruti
Vikas Enterprises. Maruti Vikas Enterprises has after all paid a fixed
sum as the one time one-off amount in full and final satisfaction.

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Page 5 of 6
2nd April/3rd April 2019

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907-CHS785-18.DOC

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That is the entire decretal amount and in paying this amount, it
cannot be overlooked that by the time there was a settlement on
12th April 2018, Deep Construction had already accumulated a
claim for interest on the decretal amount, which it clearly gave up.
What Deep Construction gave up in terms of the interest on its
decretal claim is far in excess of its share of the Receiver’s expenses.

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10.Consequently I will have to hold for the Plaintiff, Deep
Construction Company. Its Chamber Summons is made absolute in
terms of prayer clause (a). Correspondingly, Maruti Vikas
Enterprises’s Notice of Motion No. 2505 of 2018 is dismissed.
There will be no order as to costs. Nobody will apply hereafter on a
praecipe under any circumstances for any purposes whatsoever.

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11.There is no doubt that the 2nd Defendant has in fact paid of
the Receiver’s costs, charges and expenses. On the previous
occasion I had directed the Plaintiff to deposit its share of these
expenses, an amount of Rs.5,29,254/- with the Prothonotary and
Senior Master. The Plaintiff did so. This amount will now be
refunded to the Plaintiff with accumulated interest, if any.

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12.All concerned will act on an authenticated copy of this order.

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13.No costs.

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(G. S. PATEL, J)

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Page 6 of 6
2nd April/3rd April 2019

Deep Construction Co. v. Jitendra N. Patel and Anr.

Case brief

What is this about?

What did the court decide?

Deep Construction Co. v. Jitendra N. Patel and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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