Full Judgment Text
2018:BHC-OS:14576-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO.361 OF 2018
IN
CHAMBER SUMMONS (L) NO.495 OF 2018
IN
COMMERCIAL EXECUTION APPLICATION (L) NO.673 OF 2018
IN
COMMERCIAL SUIT NO.345 OF 2015
ALONGWITH
COMMERCIAL NOTICE OF MOTION (L) NO.804 OF 2018
Pujit Ravikiran Aggarwal
And Others … Appellants
Versus
Vardhman Developers Ltd
And Others … Respondents
…..
Mr. Chirag Balsara a/w Mr. Chinmaya Acharya & Mr. Sumit Phatale for
Appellants.
Mr. D. D. Madan, Senior Advocate a/w Mr. Karl Tamboly, Ms. Kausar
Banatwala & Ms. Gauri Sakhardande i/b Tushar Garodia for Respondent
No.1.
st
Mrs. Kavita Amberkar, 1 Assistant Court Receiver, present.
…..
CORAM : SHANTANU KEMKAR &
SARANG V. KOTWAL, JJ.
RESERVED ON : SEPTEMBER 10, 2018
PRONOUNCED ON : SEPTEMBER 25, 2018
JUDGMENT : (Per SARANG V. KOTWAL, J.)
th
. This is an appeal filed by the Appellants against the order dated 8
August 2018 passed by a learned Single Judge of this Court, in Commercial
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Chamber Summons (L) No.495 of 2018 in Commercial Execution
Application (L) No.673 of 2018 in Suit No.345 of 2015. The Appellants are
related to each other. Appellant No.1 Pujit Ravikiran Aggarwal (Pujit) and
No.3 Gunjan Pujit Aggarwal (Gunjan) are husband and wife. Appellant
No.2 Ravikiran Surajbhan Aggarwal (Ravikiran) is the father of Pujit.
Respondent No.3 Dinesh Kiran Aggarwal (Dinesh) and Gunjan were equal
shareholders in a private limited company, by the name, Orbit Dwelling
Private Limited (Orbit Dwelling). Respondent No.1 Vardhaman Developers
Limited (VDL) was the Plaintiffcompany in Suit No.345 of 2015.
Respondent No.2 Orbit Corporation Limited (Orbit Corp) was the
Defendant in the said Suit.
2. The facts leading to filing of this appeal are as follows :
2.1 VDL had entered into a conveyance deed dated 10 September 2007
with Orbit Corp in respect of the property situated on C.S. No.460, 461,
462, 1/462 and 2/462 of Lower Parel Division, admeasuring 4719.41 sq
meters or thereabout at Tulsipipe Road, Mumbai. Under the conveyance
deed, it was agreed that VDL as Vendors would retain the specified areas in
the commercial building and other specified areas in the residential
building which were to be built by Orbit Corp. The other part of the
building was meant for free sale which was to be put up by Orbit Corp.
Pursuant to the said conveyance deed, the Orbit Corp constructed only one
residential building instead of one commercial building, one residential
building and other buildings to accommodate the tenants of the existing
structures. Orbit Corp was unable to comply with the various terms and
conditions mentioned in the said conveyance deed. Therefore, VDL filed
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Suit No.345 of 2015 on the Original Side of this Court for the specific
performance of the said conveyance deed. Whilst the suit was pending, the
PlaintiffVDL and the Defendant reached settlement and filed Consent
Terms dated 11 May 2015 in this court. The consent terms provided that
Orbit Corp was to allot VDL the areas mentioned in the consent terms.
Orbit Corp had undertaken to get the plan sanctioned, and to obtain
commencement certificate as well as all other necessary permissions for
the entire area allotted to VDL; which was to be constructed by Orbit Corp
within period of six months from the date of the consent terms, the time
being the essence of contract. On failure on the part of Orbit Corp. to fulfill
its obligations towards VDL, it was agreed that Orbit Corp was entitled for
further extension of six months, subject to VDL charging interest at the rate
of 18 per cent from the seventh month onwards on the sum of
Rs.1,18,00,00,000/ as and by way of liquidated damages. Orbit Corp had
undertaken to pay a total consideration of Rs.1,18,00,00,000/, in case,
they failed to obtain approvals and sanctions within a period of twelve
months. The consent terms were accepted by the court and the decree was
passed.
2.2 VDL thereafter initiated execution proceedings in respect of the
consent decree passed in Suit No.345 of 2015. In the execution
proceedings, additional consent terms dated 23 September 2015 were
executed between VDL as Plaintiff/decreeholder, Orbit Corp as
Defendant/judgmentdebtor, Pujit as Respondent No.1, Ravikiran as
Respondent No.2 and Orbit Dwelling. It was mentioned in these additional
consent terms that Orbit Dwelling was an associate company of Orbit
Group of Companies and that Gunjan and Dinesh had 50 per cent share
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each in Orbit Dwelling. It was further mentioned that Orbit Dwelling was
the absolute owner/assignee of and was also sufficiently entitled to 44.375
per cent undivided right, title and interest in the property known as Baug
ESara at Napeansea Road, Mumbai and its adjacent land. Some important
clauses of these additional terms are necessary to be reproduced herein
below as under :
“1 ….
2 ….
3 ….
4 The shareholders and Directors of the said Orbit
Dwelling have passed a Resolution dated 19 September
2016 inter alia agreeing and confirming to become a party to these
additional consent terms to abide by the decree passed in the
above matter to the extent of the net sale proceeds of the property
described hereinafter thereby undertaking to discharge a part of
the liability of the Defendant in the Decree passed in the above
matter by the Hon'ble Court;
5 The Respondent Nos.1 and 2 agree and undertake to submit
to the Decree passed in terms of the Consent Terms in the above
Suit and also agree and undertake to comply with the terms and
conditions more particularly set out in these Consent Terms. The
Decree will thus be binding upon Respondent Nos.1 and 2 in their
individual and personal capacity. The Defendant hereby undertake
that the undertaking contained in this paragraph shall be filed by
Respondent Nos.1 and 2 within a period of four weeks from the
date thereof;
6 …
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7 Orbit Dwelling has passed a Resolution dated 19 September
2016 inter alia resolving that the said Orbit Dwelling shall hereby
create a first charge of its 44.375 per cent share in the said
property in favour of the Plaintiff and/or its nominees;
…..
8(viii) that Orbit Dwelling shall upon the sale of the said property
simultaneously pay the net sale proceeds received by it to the
Plaintiff towards the part satisfaction of the Plaintiff's claim;
9 The Decree passed in terms of Consent Terms is binding
upon the Defendant and Respondent Nos.1 and 2. The decree
passed in terms of these additional consent terms only shall be
binding upon Orbit Dwelling and its Directors. The Directors of
Orbit Dwelling are also personally liable to ensure the compliance
of these additional consent terms only. Respondent Nos.1 and 2
and the Directors of Orbit Dwelling (to the extent of their
obligation under the Additional Consent Terms) undertake to
execute Personal Guarantees and other necessary documents for
the same within a period of four weeks from the date thereof;
10 …..
11 The Defendant and Respondent Nos.1 and 2 through the
Defendant agree and undertake to comply with the above terms
and conditions and endeavor to sell the said property within a
period of 60 days. In the event the Defendant and Orbit Dwelling
are unable to sell the said property within the stipulated period as
mentioned hereinabove the Plaintiff and/or its Nominee shall
endavour to sell the said property within the next 60 days and the
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price so sold at shall be accepted by the Defendant, Respondent
Nos.1 and 2 and Orbit Dwelling and its Directors without any
demur provided that the said price shall be communicated to the
Defendant and if the Defendant is in a position to obtain a Buyer
offering a highest price then the price communicated to the
Defendant within a period of 10 days from the date of such
communication then the Plaintiff may sell the said property to such
a buyer. The parties however hereby agree that the said property
shall be sold to the Buyer offering the highest price in respect
thereof. Subject to what is stated hereinabove, the Plaintiff
accordingly be and is hereby irrevocable authorized to sell the said
property at such price and on such terms as they deem fit and
proper and to appropriate the net sale proceeds towards the part
satisfaction of decretal debt due to the Plaintiff;
12 The Defendant, Respondent Nos.1 and 2, Orbit Dwelling
through its Directors and its Shareholders doth hereby indemnify
and shall always keep indemnified the Plaintiff and/or its
nominees in the event of any loss/damage suffered by them on
account of the representations and assurances given by the
Defendant, Respondent Nos.1 and 2, Orbit Dwelling and its
shareholders.
2.3 These consent terms were taken on record and vide order dated 29
September 2016 passed in Chamber Summons (L) No.1666 of 2016 in
Suit No.345 of 2015, the additional consent terms were accepted.
2.4 One Sunteck Realty Limited purchased the right, title and interest of
Orbit Dwelling in BaugESara for Rs.34.2 crores. As per the additional
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consent terms, this amount was to be paid to VDL only by way of part
satisfaction of the original decree and Directors of Orbit Dwelling were
liable for compliance of the additional consent terms only.
2.5 As can be seen, the major portion of the decree remained to be
satisfied and in the execution as well as contempt proceedings, various
orders came be passed.
2.6 VDL have also filed Contempt Petition No.66 of 2016 in Suit No.345
of 2015. Pursuant to the different orders passed by learned Single Judge
from time to time, Pujit, Ravikiran and Gunjan have filed disclosure
affidavits setting out income tax returns, bank statements, list of
investments, movable and immovable properties etc. In the disclosure
affidavit dated 9 March 2017, filed in Contempt Petition No.70 of 2017,
Gunjan has not disclosed the flat at Angel, 2 Krishna Sanghi Path,
Gamdevi, Mumbai400 007 as her immovable asset, though Bunglow at
Khandala, Flat at Marine Drive and Mukund Mansion are mentioned in the
list of her immovable properties. Even in her additional affidavit of
disclosure dated 26 March 2018, there was no mention about her
ownership regarding the flat at Gamdevi.
2.7 Learned Single Judge vide his order dated 23 March 2018 passed in
Contempt Petition No.70 of 2017 observed that a vast amount was shown
to have been gifted to Gunjan Aggarwal after the additional consent terms
were entered into. The learned Judge, in paragraph 8 of the said order,
has observed thus :
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“8 In any case, any such question of segregation would arise
only if it was shown that each of these four persons did not have
any crosslinkage or interlinked interest. As it happens, the
disclosures so far made, inadequate and incomplete though they
are, show, for instance, that Pujit Aggarwal loaned an amount of
Rs.15.61 crores to his wife Gunjan, and nearly Rs.92 crores to
Ravikiran Aggarwal. This obviously means that assets held by
Gunjan Aggarwal are not circumscribed or ringfenced only
because she enters the picture in the Additional Consent Terms. A
loan liability to Pujit Aggarwal renders her assets equally liable in
execution.”
By this order, learned Single Judge directed Pujit, Ravikiran and
Gunjan to make further disclosures. As mentioned earlier, all of them filed
additional affidavits of disclosure. In the context of the present appeal,
amount of Rs.15.61 crores mentioned as loan amount given by Pujit to
Gunjan is of significance.
2.8 Learned Single Judge passed another order dated 27 March 2018, in
Chamber Summons (L) No.495 of 2018. Apart from other directions, the
learned Judge was pleased to appoint a receiver in respect of immovable
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property at Gamdevi, Unit Nos.901A and 902A on the 9 Floor of a
building known as The Angel, at 2, Krishna Sanghi Path, Gamdevi,
Mumbai400 007. The learned Judge directed the receiver to take actual
physical possession of these two units. Pujit and Ravikiran were appointed
as agents of the receiver. In the same order, the learned Judge in
paragraph 7, observed that Gunjan was in the position of a garnishee visa
vis the liability of Pujit Aggarwal. Since this question is important in the
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context of the present appeal, we therefore reproduce paragraph 7 as
below :
“7. In the statements that have so far been provided, Mrs.
Gunjan Aggarwal is said to owe an amount of Rs.67,15,980/ to
Ravi Kiran Aggarwal. In the list tendered on 23 March 2018,
against the statement for Pujit Aggarwal, it is stated that Mrs.
Gunjan Aggarwal has a loan from him in the amount of
Rs.15,61,74,000/. This would place Mrs. Gunjan Aggarwal in the
position of a garnishee visavis the liability of Pujit Aggarwal.”
Learned Judge also directed the receiver to take actual physical
possession of Gunjan's bunglow at Khandala. Paragraph8 of the said order
in that behalf reads thus :
“8 The statement in respect of Mrs. Gunjan Aggarwal shows
that there is a bunglow known as Saniyya Villa in 5R ward, Hill
Top Colony, Khandala, property No. WK35R012150 within the
jurisdiction of the Loanvala Municipality and valued at
Rs.64,66,120/. The Receiver in execution will proceed to take
actual possession of this property and get it valued through an
empanelled valuer on an asiswhereis basis.”
This order dated 27 March 2018 passed by learned Single Judge in
Chamber Summons (L) No.495 of 2018 was challenged by Pujit by way of
Commercial Appeal (L) No.175 of 2018 before a Division Bench of this
court. By an order dated 3 April 2018, a Division Bench (Coram : Naresh
H. Patil And G.S. Kulkarni, JJ.), directed the Court Receiver to take only
formal possession of the properties mentioned in paragraphs 4 and 8 of the
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impugned order on the condition that the Appellants would submit their
reply on the next date (i.e. 4 April 2018) before the learned Single Judge.
It was further observed that the learned Single Judge would deal with the
contentions of the contesting parties on merits and would pass appropriate
orders in the Chamber Summons on the material which would be placed
before him.
Gunjan and Dinesh on their part, preferred Commercial Appeal (L)
No.176 of 2018 challenging the order passed against their properties in
Chamber Summons (L) No.495 of 2018. The said Commercial Appeal (L)
No.176 of 2018 was also disposed of by the Division Bench vide its order
rd
dated 3 April 2018.
2.9 On 4 April 2018, learned Single Judge passed another order in
Chamber Summons (L) No.495 of 2018, recording that after the order of
Division Bench, the reply affidavit was filed by Pujit for himself and on
behalf of Ravikiran but Gunjan and Dinesh had not filed any affidavit in
reply. The Learned Single Judge further observed that the conditional
order permitted the Receiver to take only formal possession. But, since the
condition was not fulfilled, the consequences had to follow in respect of the
assets of Gunjan and Dinesh both. These observations are important and
therefore, paragraph9 of the said order dated 4 April 2018 is reproduced
herein below as under :
“9. There is a Reply Affidavit dated today by Pujit Aggarwal
for himself and on behalf of Ravikiran Aggarwal, and I will
have to separately assess to what extent this justifies either a
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modification of my 27 March 2018 order or a separate
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direction altogether. There was a companion Appeal filed by
Mrs. Gunjan Pujit Aggarwal and Dinesh Ravikiran Aggarwal
and which also received the same appellate conditional order.
They have, however, filed no Affidavit in Reply. This makes a
difference because Mrs. Gunjan Aggarwal has listed separate
properties and I have in my order of 27 March 2018 made
separate provisions and passed separate directions in respect of
the assets he Receiver to taking only formal possession, and
that condition is not met, the consequences must follow, and no
further order or direction is required from me. The appellate
order will govern and is sufficient in this regard. This is as
regard the assets of Mrs. Gunjan Aggarwal and Dinesh
Aggarwal or both.”
In paragraph14 of the said order, learned Single Judge extended
time for Gunjan and Dinesh to file an affidavit in reply to the Chamber
Summons. Paragraph 14 reads thus :
“14. As the Reply on merits in the Chamber Summons, I will defer
the consideration by a short date so that the Plaintiff has time to
consider the disclosures and also responses. Since I am doing that, I
will also extend time to Mrs. Gunjan Aggarwal and Dinesh Ravikiran
Aggarwal to file an Affidavit in Reply to the Chamber Summons. This
is of course necessarily subject to the foregoing observations in regard
to noncompliance with the appellate court's direction that the
Receiver is to take only formal possession of the Khandala property on
condition that Gunjan Aggarwal and Dinesh Ravikiran Agarwal file
their Affidavit in Reply by today. If they have not done so, the
condition is not met, and the default consequence follows. The Court
Receiver will act accordingly.”
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2.10 On 18 April 2018, learned Single Judge passed another order in
Chamber Summons (L) No.495 of 2018 in which it was observed that
inspite of earlier orders passed by learned Single Judge, Gunjan entered
into consent terms on 2 April 2018 with an alleged tenant in a tenancy
dispute in the Small Causes Court, Mumbai. Learned Judge expressed his
strong displeasure regarding this conduct of Gunjan.
2.11 Learned Single Judge made further reference to the litigation
pending in the Small Causes Court, Mumbai in respect of Gunjan's Marine
Drive flat in an order passed on 20 April 2018 in Chamber Summons (L)
No.495 of 2018.
3. This is the background of the dispute between the parties before the
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order dated 8 August 2018 was passed by the learned Single Judge. The
Appellants Pujit, Ravikiran and Gunjan have challenged the order dated 8
August 2018 in Chamber Summons (L) No.495 of 2018 in Commercial
Execution Application No.673 of 2018 in Suit No.345 of 2015. In Chamber
Summons (L) No.495 of 2018 taken out by VDL, various prayers were
made. One of the prayers was for appointment of Receiver under Order XL
Rule 1 of Code of Civil Procedure, 1908 in respect of all properties of the
Respondents in the Chamber Summons, i.e. Orbit Corp., Pujit, Gunjan and
Dinesh. By another prayer, it was prayed that these Respondents be
directed to make disclosure of their properties. In this background, various
orders referred to herein above and other orders were passed by the
learned Single Judge.
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4. In the impugned order dated 8 August 2018, the learned Judge
observed that Gunjan had never mentioned that the flat at Gamdevi, i.e. on
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9 Floor of 'Angel' was owned partially by her and for the first time, she
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had come up with the case that she owned part of the said 9 floor flat. In
view of this varying stand, learned Judge directed the Court Receiver to
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take immediate physical possession of the entirety of the 9 Floor of the
Angel at 2, Krishna Sanghi Path, Gamdevi, Mumbai7 before 07.00 p.m. on
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8 August 2018. By the same order, the learned Judge also directed the
Court Receiver to take physical possession of Gunjan's Jewellery and
further directed that the said jewellery should be placed in the safe custody
in the locker mentioned in the affidavit. The keys were to be kept by the
Court receiver. In the present appeal, this order is challenged by the
Appellants herein.
5. We have heard Mr. Chirag Balsara, learned Counsel for the
Appellants and Mr. D.D. Madon, learned Senior Counsel for VDL. With
their assistance, we have gone through the compilations filed by the
parties.
6. Mr. Balsara, submitted that Gunjan could not be described as
“Garnishee” visavis loan granted to her. It is submitted that the
provisions of Order XXI Rules 46 and 46A to 46F of the Code of Civil
Procedure, 1908, are not followed and therefore, the Receiver could not
have been appointed. He submitted that, as far as Orbit Dwelling was
concerned, since Gunjan and Dinesh held 50 per cent shareholding each,
their holding was in the nature of quasipartnership. He submitted that
Gunjan was entitled to half of the sale proceeds in respect of BaugESara
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property. He further submitted that the said amount which Gunjan would
have received; could be utilized as a set off for the loan of Rs.15.61 crores
advanced by Pujit to her. Considering such set off, in fact, Pujit owed her
money and therefore, she could not be termed as “Garnishee” and
therefore, she was not liable to pay any amount in satisfaction of the debt
incurred by Pujit. In support of his submission, he relied on the case of
1
Anand Singh Vs. Collector of Bijnor to contend that Gunjan was entitled
to use her share of sale proceeds of BaugESara property against loan
advanced by Pujit. He further relied on the case of Allmark V. Burnham
2
and another in support of his contention that arrangement of
shareholding in Orbit Dwelling was in the nature of quasipartnership. He
relied on paragraph 137 of the said judgment, which reads thus :
“137. The question then arises as to whether or not the
value of Mr. Allmark's 36% shareholding in the company should
be discounted to reflect its minority status. This case has many
of the features of a socalled 'quasipartnership'. The whole
venture was one founded on longterm person friendship. The
parties' contributions differed both in monetary terms and in the
nature of the work they performed. Mr. Allmark moved home
from London to Hampshire, and realised all his capital, in order
to undertake it. The parties regarded themselves as partners in
the business. This is a clear case of a prorata valuation without
a 'minority discount'.
AIR 1932 Allahabad 610
1
2 (2015) EWHC 2717 (Ch)
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Mr. Balsara, also relied on the judgment of Jagjit Singh Chawla
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and Others Vs. Tirath Ram Ahuja Ltd and Others passed by the
Company Law BoardPrincipal Bench in support of his contention that the
arrangement of holding in Orbit Dwelling was in the nature of quasi
partnership.
th
7. Mr. Balsara, further submitted that Gunjan was part owner of 9
floor flat in the building Angel at Gamdevi. He submitted that Gunjan had
legitimate documents to prove her claim. These documents are not
produced before learned Single Judge, instead Commercial Notice of
Motion No.681 of 2018 was filed in the present appeal. It was prayed in
the said Notice of Motion that liberty be granted to the Appellants to
produce the additional documents. The Appellants wanted to rely on
registered conveyance deed dated 7 March 2002 showing transfer of Flat
No.902 B in favour of Gunjan and also share certificate in respect of the
said flat transferred in her name. It was mentioned in the affidavit in
support of the Notice of Motion that the Appellants due to bona fide
reasons were prevented from producing the said documents before the
learned Single Judge. Apart from these avermetns, there are no reasons
mentioned in the said affidavit in support of the Notice of Motion. In our
opinion, this does not satisfy requirement of Order XLI Rule 27 of the Code
of Civil Procedure, 1908, which provides for circumstances in which
additional evidence can be produced in the Appellate Court.
8. Mr. Balsara further submitted that Jewellery which is taken charge
of by the court receiver consists of Gunjan's Stridhan and therefore, the
3 2004 Company Cases 385
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learned Single Judge could not have directed the Court Receiver to take
charge of her jewellery. In this connection, Mr. Balsara submitted that the
jewellery received not only on or before or at the time of marriage, but
even subsequent to the marriage, could form Stridhan and therefore, was
free from attachment and the Court Receiver could not have taken charge
of the same. In support of his contention, Mr. Balsara, relied on the
judgment in the case of Vinod Kumar Sethi and Others Vs. State of
4
Punjab and another as well as the judgment in the case of Pratibh Rani
5
Vs. Suraj Kumar and another .
9. Mr. Balsara, further submitted that though Gunjan had not disclosed
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about ownership of some portion of 9 floor flat, Angel, Gamdevi in her
earlier affidavit, she could not do so because of paucity of time. He
submitted that there was no deliberate attempt to hide her ownership of
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the 9 floor flat from the court. He further submitted that in view of
clinching evidence in the form of documents, her ownership was
sufficiently established. He further submitted that Gunjan was not
judgmentdebtor and therefore, her share of the said flat could not have
been affected by appointing the Court Receiver.
10 On the other hand, Mr. D.D. Madon, learned Senior Counsel for
VDL supported the impugned order. He submitted that there were no
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pleadings in respect of Gunjan's ownership of part of the flat on the 9
floor of the building 'Angel' at Gamdevi. He further submitted that without
proper pleadings, it was not open for Gunjan to contend that she had any
right by way of ownership of any portion of the property. He further
AIR 1982 Punjab And Haryana 372
4
5 AIR 1985 S.C. 628
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submitted that Gunjan had sufficient opportunity to produce documents in
respect of her ownership of the said property, but Gunjan did not produce
any document before the learned Single Judge. He submitted that Pujit
and Ravikiran had separately challenged the order of appointment of the
receiver in respect of 'Angel' property. Appeal against the said order was
not entertained and therefore, order appointing the Receiver in respect of
the said flat cannot be interfered with by way of the present appeal. He
submitted that the receiver taking possession of Gunjan's property at
Khandala was merely a consequence which had to follow as a condition
mentioned by Division Bench in Criminal Appeal (L) Nos.175176 of 2018
were not complied with by Gunjan and therefore, even in that respect, no
interference is called for. He further submitted that Gunjan had not
specified as to which part of the jewellery was her Stridhan and therefore,
learned Judge had no option but to appoint receiver to safeguard the
jewellery. The proceedings were still pending and learned Judge had not
passed final order of attachment of jewellery and therefore, it cannot be
said that Gunjan's Stridhan was attached. In support of his contention, Mr.
Madon, relied on the judgment in the case of Bachhaj Nahar Vs. Nilima
6
Mandal And Another , in which it is held that no amount of evidence, on a
plea that is not put forward in the pleadings, can be looked into to grant
any relief. Only in exceptional cases, can this general rule be deviated
from, if the court is fully satisfied that the pleadings and issues generally
cover the case subsequently put forward and that the parties being
conscious of the issue, had led evidence on such issue. Mr. Madon
submitted that in the present case, Gunjan's contention cannot be termed
as an exceptional case and in the absence of pleadings, no document could
6 (2008) 17 Supreme Court Cases 491
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be looked into. Mr. Madon further strongly objected to grant relief in the
present Notice of Motion No.681 of 2018, whereby Gunjan had sought
permission to produce additional documents on record which were not
produced before learned Single Judge in respect of ownership of portion of
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9 floor flat, Angel, Gamdevi. Mr. Madon further relied on the judgment of
7
Union of India Vs. Ibrahim Uddin and Another , wherein it is held that
under Order 41 Rule 27 of the Code of Civil Procedure, 1908, the
discretion of the appellate court in allowing production of document in
exceptional circumstances should be exercised judicially provided under
Rule 27. Mr. Madon, further submitted that the authorities relied upon by
Mr. Balsara, learned Counsel for the Appellants are not applicable to the
present case. He submitted that Gunjan cannot contend that Orbit
Dwelling was in the nature of quasipartnership and therefore, she was
entitled to half of the sale proceeds of the property BaugESara. He
further submitted that authorities in respect of Stridhan have not laid down
the law that every gift after marriage is a part of Stridhan of a married
woman.
11. We have carefully considered the rival contentions of the parties. A
crucial question arises in this appeal is as to whether the learned Single
th
Judge could have appointed the Court Receiver in respect of 9 floor of the
building Angel at Gamdevi, if Gunjan had ownership of some part of units
th
of the 9 floor. One of the contentions on behalf of the Appellants was that
Gunjan was not a judgmentdebtor and therefore, no order could be issued
in respect of her property. There is history of litigation. It can be seen that
first consent term was filed between VDL and Orbit Corp., as they were
7 (2012) 8 Supreme Court Cases 148
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original parties to the Suit. The additional consent terms dated 23
September 2016 mentioned that shareholders and directors of Orbit
Dwelling had passed resolution dated 19 September 2016 , agreeing and
confirming to become a party to these additional consent terms and to
abide by the decree passed to the extent of the net sale proceeds of BaugE
Sara property, thereby undertaking to discharge a part of the liability of the
Defendant (i.e. Orbit Corp) in respect of the decree passed in the Suit.
These additional consent terms also mention that Directors of Orbit
Dwelling, i.e. Gunjan and Dinesh were also personally liable to ensure
compliance of these additional consent terms. Thus, Gunjan and Dinesh
have undertaken to pay the amount received by way of sale proceeds of
BaugESara property to the decreeholder in part satisfaction of the
original decree, of which Orbit Corp was the judgmentdebtor. The title
and interest of Orbit Dwelling in BaugESara property was purchased by
M/s Sunteck Realty Limited for Rs.34.20 crores. VDL as a decreeholder in
the main suit was entitled to receive this amount pursuant to the additional
consent terms dated 23 September 2016.
12. In the further proceedings, Gunjan has contended that pursuant to
sale of BaugESara property, she would have received half of the sale
proceeds as she was 50 per cent shareholder of Orbit Dwelling. Her further
contention is that she was entitled to set off this amount for repayment of
the loan advanced by Pujit to her. In that case, there was no liability on
her as a Garnishee. According to Gunjan, VDL as decreeholder in the
original suit has no right to proceed against Gunjan. Mr. Balsera,
submitted that BaugESara property was an asset of Orbit Dwelling and
therefore, Gunjan was entitled to her 50 per cent share of any profits
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included sale proceeds of BaugESara property. We find that this
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argument is fallacious. The additional consent terms dated 23 September
2016 clearly mention that Orbit Dwelling upon sale of BaugESara
property was to pay net sale proceeds received by it to VDL towards part
satisfaction of VDL's claim. These additional consent terms show that sale
of BaugESara property was not for profit of Orbit Dweling and the
directors, i.e. Gunjan and Dinesh were not entitled to receive any part of
the sale proceeds. Therefore, we do not see as to how any part of net sale
proceeds could have been described as asset, dividend or any other benefits
accruing to Gunjan to the extent of her 50 per cent shareholding in Orbit
Dwelling. Gunjan or Dinesh were not beneficiaries of sale of BaugESara
property. Therefore, in our opinion, Gunjan was not entitled to set off half
of the net sale proceeds, i.e. half of Rs.34.20 crores against loan advanced
by Pujit to Gunjan. By the additional consent terms, Pujit had undertaken
to submit to the decree passed in terms of consent terms in the suit and
clearly accepted that the decree was binding on him in his individual
capacity as mentioned in clause 5 of the additional consent terms.
Therefore, once Pujit was has accepted his liability under the decree, he
becomes judgmentdebtor consequently, since he had advanced loan to
Gunjan, Gunjan becomes Garnishee and she is liable to be proceeded as a
“Garnishee” under Order XL Rule 46 of the Code of Civil Procedure, 1908.
The question as to whether Rules 46A to 46F of Order XL, are followed or
not, is a matter which can be raised by the parties before the learned Single
Judge. In fact, the orders passed by the Division Bench in Commercial
Appeal (L) Nos.175176 of 2018 mention that contentions of the parties on
merits were left open. This observation would also cover all the questions
in that behalf. Once Orbit Dwelling had undertaken to give entire net sale
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proceeds of BagESara to VDL, it was not open for Gunjan to use half of
the said amount to set off her personal loan. This would deprive VDL, of
their claim to recover outstanding loans advanced by Pujit and in particular
that would affect VDL's right to proceed against Gunjan as Garnishee. In
our opinion, therefore, Gunjan's contention that she cannot be termed as
garnishee as she was entitled to set off half of the net sale proceeds of
BaugESara against the loan advanced by Pujit has no legal basis.
13. In any case, by the additional consent terms dated 23 September
2016, vide clause9, Gunjan in the capacity of director of Orbit Dwelling
had accepted that the decree passed in terms of the additional consent
terms was binding on Orbit Dwelling and directors of Orbit Dwelling
(Gunjan and Dinesh) were personally liable for compliance of the
additional consent terms to the extent of their obligations under these
additional consent terms. Therefore, Gunjan is personally liable, if the
entire amount of net sale proceeds of BaugESara property is not given to
VDL. Therefore, to that extent, VDL can proceed against Gunjan in her
personal capacity. Thus, looking at the case from any angle, we find that
the learned Single Judge was right in appointing the Receiver in respect of
Gunjan's property.
14. Having held that Gunjan could be termed as Garnishee and
therefore, court receiver could be appointed in respect of her property, the
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controversy regarding her part ownership of 9 floor Angle, Gamdevi loses
its sting. We have already mentioned that Notice of Motion No.681 of
2018 is liable to be dismissed and therefore, documents attempted to be
brought on record belatedly at the appellate stage by Gunjan cannot be
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taken into consideration. These documents were not before the learned
Single Judge and therefore, Gunjan had no locus to challenge appointment
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of the receiver in respect of 9 floor of 'Angle' at Gamdevi. Even assuming
for a moment that Gunjan had some title in part of the said property, even
then, in her capacity as Garnishee, her property can be proceeded against
and the Court Receiver can be appointed. In this view of the matter, the
judgments relied on by Mr. Balsara, learned Counsel for the appellants, as
to whether Orbit Dwelling was quasipartnership or not, is not a material
issue in the context of the case.
15. As far as the jewellery of Gunjan is concerned, the learned Single
Judge has observed that inspite of various opportunities, Gunjan had still
not prima facie satisfied the court that part of her jewellery was 'Stridhan'.
The learned Judge has observed that there were no documents showing
that in the Wealth Tax Returns, she had declared any particular jewellery
as her Stridhan. Mr. Balsara submitted that her marriage had taken place
twenty years back and therefore, it was difficult to get such Wealth Tax
Returns or other documents. However, Gunjan will still have to show to
the satisfaction of the Court that which part of Jewellery was her Stridhan
and only that jewellery can be protected from attachment. The decision as
to what constituted her Stridhan, has not attained finality, as the learned
Single Judge has not passed final order in respect of her Stridhan. Gunjan
can still satisfy the learned Judge as to what is her Stridhan. The learned
Judge has only safeguarded the jewellery, so that before the final decision,
it could not be tampered with. We see no fault with this approach and
therefore, we do not find any need to interfere with that part of the order.
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16. Based on the above discussion, we do not find any reason to
interfere with the impugned order dated 8 August 2018.
17. With the result, Commercial Appeal (L) No.361 of 2018 is
dismissed.
18. As the appeal is dismissed, Commercial Notice of Motion (L) No.804
of 2018 for stay of the impugned order does not survive and the same is
also accordingly dismissed.
[SARANG V. KOTWAL, J.] [SHANTANU KEMKAR, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO.361 OF 2018
IN
CHAMBER SUMMONS (L) NO.495 OF 2018
IN
COMMERCIAL EXECUTION APPLICATION (L) NO.673 OF 2018
IN
COMMERCIAL SUIT NO.345 OF 2015
ALONGWITH
COMMERCIAL NOTICE OF MOTION (L) NO.804 OF 2018
Pujit Ravikiran Aggarwal
And Others … Appellants
Versus
Vardhman Developers Ltd
And Others … Respondents
…..
Mr. Chirag Balsara a/w Mr. Chinmaya Acharya & Mr. Sumit Phatale for
Appellants.
Mr. D. D. Madan, Senior Advocate a/w Mr. Karl Tamboly, Ms. Kausar
Banatwala & Ms. Gauri Sakhardande i/b Tushar Garodia for Respondent
No.1.
st
Mrs. Kavita Amberkar, 1 Assistant Court Receiver, present.
…..
CORAM : SHANTANU KEMKAR &
SARANG V. KOTWAL, JJ.
RESERVED ON : SEPTEMBER 10, 2018
PRONOUNCED ON : SEPTEMBER 25, 2018
JUDGMENT : (Per SARANG V. KOTWAL, J.)
th
. This is an appeal filed by the Appellants against the order dated 8
August 2018 passed by a learned Single Judge of this Court, in Commercial
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Chamber Summons (L) No.495 of 2018 in Commercial Execution
Application (L) No.673 of 2018 in Suit No.345 of 2015. The Appellants are
related to each other. Appellant No.1 Pujit Ravikiran Aggarwal (Pujit) and
No.3 Gunjan Pujit Aggarwal (Gunjan) are husband and wife. Appellant
No.2 Ravikiran Surajbhan Aggarwal (Ravikiran) is the father of Pujit.
Respondent No.3 Dinesh Kiran Aggarwal (Dinesh) and Gunjan were equal
shareholders in a private limited company, by the name, Orbit Dwelling
Private Limited (Orbit Dwelling). Respondent No.1 Vardhaman Developers
Limited (VDL) was the Plaintiffcompany in Suit No.345 of 2015.
Respondent No.2 Orbit Corporation Limited (Orbit Corp) was the
Defendant in the said Suit.
2. The facts leading to filing of this appeal are as follows :
2.1 VDL had entered into a conveyance deed dated 10 September 2007
with Orbit Corp in respect of the property situated on C.S. No.460, 461,
462, 1/462 and 2/462 of Lower Parel Division, admeasuring 4719.41 sq
meters or thereabout at Tulsipipe Road, Mumbai. Under the conveyance
deed, it was agreed that VDL as Vendors would retain the specified areas in
the commercial building and other specified areas in the residential
building which were to be built by Orbit Corp. The other part of the
building was meant for free sale which was to be put up by Orbit Corp.
Pursuant to the said conveyance deed, the Orbit Corp constructed only one
residential building instead of one commercial building, one residential
building and other buildings to accommodate the tenants of the existing
structures. Orbit Corp was unable to comply with the various terms and
conditions mentioned in the said conveyance deed. Therefore, VDL filed
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Suit No.345 of 2015 on the Original Side of this Court for the specific
performance of the said conveyance deed. Whilst the suit was pending, the
PlaintiffVDL and the Defendant reached settlement and filed Consent
Terms dated 11 May 2015 in this court. The consent terms provided that
Orbit Corp was to allot VDL the areas mentioned in the consent terms.
Orbit Corp had undertaken to get the plan sanctioned, and to obtain
commencement certificate as well as all other necessary permissions for
the entire area allotted to VDL; which was to be constructed by Orbit Corp
within period of six months from the date of the consent terms, the time
being the essence of contract. On failure on the part of Orbit Corp. to fulfill
its obligations towards VDL, it was agreed that Orbit Corp was entitled for
further extension of six months, subject to VDL charging interest at the rate
of 18 per cent from the seventh month onwards on the sum of
Rs.1,18,00,00,000/ as and by way of liquidated damages. Orbit Corp had
undertaken to pay a total consideration of Rs.1,18,00,00,000/, in case,
they failed to obtain approvals and sanctions within a period of twelve
months. The consent terms were accepted by the court and the decree was
passed.
2.2 VDL thereafter initiated execution proceedings in respect of the
consent decree passed in Suit No.345 of 2015. In the execution
proceedings, additional consent terms dated 23 September 2015 were
executed between VDL as Plaintiff/decreeholder, Orbit Corp as
Defendant/judgmentdebtor, Pujit as Respondent No.1, Ravikiran as
Respondent No.2 and Orbit Dwelling. It was mentioned in these additional
consent terms that Orbit Dwelling was an associate company of Orbit
Group of Companies and that Gunjan and Dinesh had 50 per cent share
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each in Orbit Dwelling. It was further mentioned that Orbit Dwelling was
the absolute owner/assignee of and was also sufficiently entitled to 44.375
per cent undivided right, title and interest in the property known as Baug
ESara at Napeansea Road, Mumbai and its adjacent land. Some important
clauses of these additional terms are necessary to be reproduced herein
below as under :
“1 ….
2 ….
3 ….
4 The shareholders and Directors of the said Orbit
Dwelling have passed a Resolution dated 19 September
2016 inter alia agreeing and confirming to become a party to these
additional consent terms to abide by the decree passed in the
above matter to the extent of the net sale proceeds of the property
described hereinafter thereby undertaking to discharge a part of
the liability of the Defendant in the Decree passed in the above
matter by the Hon'ble Court;
5 The Respondent Nos.1 and 2 agree and undertake to submit
to the Decree passed in terms of the Consent Terms in the above
Suit and also agree and undertake to comply with the terms and
conditions more particularly set out in these Consent Terms. The
Decree will thus be binding upon Respondent Nos.1 and 2 in their
individual and personal capacity. The Defendant hereby undertake
that the undertaking contained in this paragraph shall be filed by
Respondent Nos.1 and 2 within a period of four weeks from the
date thereof;
6 …
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7 Orbit Dwelling has passed a Resolution dated 19 September
2016 inter alia resolving that the said Orbit Dwelling shall hereby
create a first charge of its 44.375 per cent share in the said
property in favour of the Plaintiff and/or its nominees;
…..
8(viii) that Orbit Dwelling shall upon the sale of the said property
simultaneously pay the net sale proceeds received by it to the
Plaintiff towards the part satisfaction of the Plaintiff's claim;
9 The Decree passed in terms of Consent Terms is binding
upon the Defendant and Respondent Nos.1 and 2. The decree
passed in terms of these additional consent terms only shall be
binding upon Orbit Dwelling and its Directors. The Directors of
Orbit Dwelling are also personally liable to ensure the compliance
of these additional consent terms only. Respondent Nos.1 and 2
and the Directors of Orbit Dwelling (to the extent of their
obligation under the Additional Consent Terms) undertake to
execute Personal Guarantees and other necessary documents for
the same within a period of four weeks from the date thereof;
10 …..
11 The Defendant and Respondent Nos.1 and 2 through the
Defendant agree and undertake to comply with the above terms
and conditions and endeavor to sell the said property within a
period of 60 days. In the event the Defendant and Orbit Dwelling
are unable to sell the said property within the stipulated period as
mentioned hereinabove the Plaintiff and/or its Nominee shall
endavour to sell the said property within the next 60 days and the
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price so sold at shall be accepted by the Defendant, Respondent
Nos.1 and 2 and Orbit Dwelling and its Directors without any
demur provided that the said price shall be communicated to the
Defendant and if the Defendant is in a position to obtain a Buyer
offering a highest price then the price communicated to the
Defendant within a period of 10 days from the date of such
communication then the Plaintiff may sell the said property to such
a buyer. The parties however hereby agree that the said property
shall be sold to the Buyer offering the highest price in respect
thereof. Subject to what is stated hereinabove, the Plaintiff
accordingly be and is hereby irrevocable authorized to sell the said
property at such price and on such terms as they deem fit and
proper and to appropriate the net sale proceeds towards the part
satisfaction of decretal debt due to the Plaintiff;
12 The Defendant, Respondent Nos.1 and 2, Orbit Dwelling
through its Directors and its Shareholders doth hereby indemnify
and shall always keep indemnified the Plaintiff and/or its
nominees in the event of any loss/damage suffered by them on
account of the representations and assurances given by the
Defendant, Respondent Nos.1 and 2, Orbit Dwelling and its
shareholders.
2.3 These consent terms were taken on record and vide order dated 29
September 2016 passed in Chamber Summons (L) No.1666 of 2016 in
Suit No.345 of 2015, the additional consent terms were accepted.
2.4 One Sunteck Realty Limited purchased the right, title and interest of
Orbit Dwelling in BaugESara for Rs.34.2 crores. As per the additional
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consent terms, this amount was to be paid to VDL only by way of part
satisfaction of the original decree and Directors of Orbit Dwelling were
liable for compliance of the additional consent terms only.
2.5 As can be seen, the major portion of the decree remained to be
satisfied and in the execution as well as contempt proceedings, various
orders came be passed.
2.6 VDL have also filed Contempt Petition No.66 of 2016 in Suit No.345
of 2015. Pursuant to the different orders passed by learned Single Judge
from time to time, Pujit, Ravikiran and Gunjan have filed disclosure
affidavits setting out income tax returns, bank statements, list of
investments, movable and immovable properties etc. In the disclosure
affidavit dated 9 March 2017, filed in Contempt Petition No.70 of 2017,
Gunjan has not disclosed the flat at Angel, 2 Krishna Sanghi Path,
Gamdevi, Mumbai400 007 as her immovable asset, though Bunglow at
Khandala, Flat at Marine Drive and Mukund Mansion are mentioned in the
list of her immovable properties. Even in her additional affidavit of
disclosure dated 26 March 2018, there was no mention about her
ownership regarding the flat at Gamdevi.
2.7 Learned Single Judge vide his order dated 23 March 2018 passed in
Contempt Petition No.70 of 2017 observed that a vast amount was shown
to have been gifted to Gunjan Aggarwal after the additional consent terms
were entered into. The learned Judge, in paragraph 8 of the said order,
has observed thus :
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“8 In any case, any such question of segregation would arise
only if it was shown that each of these four persons did not have
any crosslinkage or interlinked interest. As it happens, the
disclosures so far made, inadequate and incomplete though they
are, show, for instance, that Pujit Aggarwal loaned an amount of
Rs.15.61 crores to his wife Gunjan, and nearly Rs.92 crores to
Ravikiran Aggarwal. This obviously means that assets held by
Gunjan Aggarwal are not circumscribed or ringfenced only
because she enters the picture in the Additional Consent Terms. A
loan liability to Pujit Aggarwal renders her assets equally liable in
execution.”
By this order, learned Single Judge directed Pujit, Ravikiran and
Gunjan to make further disclosures. As mentioned earlier, all of them filed
additional affidavits of disclosure. In the context of the present appeal,
amount of Rs.15.61 crores mentioned as loan amount given by Pujit to
Gunjan is of significance.
2.8 Learned Single Judge passed another order dated 27 March 2018, in
Chamber Summons (L) No.495 of 2018. Apart from other directions, the
learned Judge was pleased to appoint a receiver in respect of immovable
th
property at Gamdevi, Unit Nos.901A and 902A on the 9 Floor of a
building known as The Angel, at 2, Krishna Sanghi Path, Gamdevi,
Mumbai400 007. The learned Judge directed the receiver to take actual
physical possession of these two units. Pujit and Ravikiran were appointed
as agents of the receiver. In the same order, the learned Judge in
paragraph 7, observed that Gunjan was in the position of a garnishee visa
vis the liability of Pujit Aggarwal. Since this question is important in the
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context of the present appeal, we therefore reproduce paragraph 7 as
below :
“7. In the statements that have so far been provided, Mrs.
Gunjan Aggarwal is said to owe an amount of Rs.67,15,980/ to
Ravi Kiran Aggarwal. In the list tendered on 23 March 2018,
against the statement for Pujit Aggarwal, it is stated that Mrs.
Gunjan Aggarwal has a loan from him in the amount of
Rs.15,61,74,000/. This would place Mrs. Gunjan Aggarwal in the
position of a garnishee visavis the liability of Pujit Aggarwal.”
Learned Judge also directed the receiver to take actual physical
possession of Gunjan's bunglow at Khandala. Paragraph8 of the said order
in that behalf reads thus :
“8 The statement in respect of Mrs. Gunjan Aggarwal shows
that there is a bunglow known as Saniyya Villa in 5R ward, Hill
Top Colony, Khandala, property No. WK35R012150 within the
jurisdiction of the Loanvala Municipality and valued at
Rs.64,66,120/. The Receiver in execution will proceed to take
actual possession of this property and get it valued through an
empanelled valuer on an asiswhereis basis.”
This order dated 27 March 2018 passed by learned Single Judge in
Chamber Summons (L) No.495 of 2018 was challenged by Pujit by way of
Commercial Appeal (L) No.175 of 2018 before a Division Bench of this
court. By an order dated 3 April 2018, a Division Bench (Coram : Naresh
H. Patil And G.S. Kulkarni, JJ.), directed the Court Receiver to take only
formal possession of the properties mentioned in paragraphs 4 and 8 of the
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impugned order on the condition that the Appellants would submit their
reply on the next date (i.e. 4 April 2018) before the learned Single Judge.
It was further observed that the learned Single Judge would deal with the
contentions of the contesting parties on merits and would pass appropriate
orders in the Chamber Summons on the material which would be placed
before him.
Gunjan and Dinesh on their part, preferred Commercial Appeal (L)
No.176 of 2018 challenging the order passed against their properties in
Chamber Summons (L) No.495 of 2018. The said Commercial Appeal (L)
No.176 of 2018 was also disposed of by the Division Bench vide its order
rd
dated 3 April 2018.
2.9 On 4 April 2018, learned Single Judge passed another order in
Chamber Summons (L) No.495 of 2018, recording that after the order of
Division Bench, the reply affidavit was filed by Pujit for himself and on
behalf of Ravikiran but Gunjan and Dinesh had not filed any affidavit in
reply. The Learned Single Judge further observed that the conditional
order permitted the Receiver to take only formal possession. But, since the
condition was not fulfilled, the consequences had to follow in respect of the
assets of Gunjan and Dinesh both. These observations are important and
therefore, paragraph9 of the said order dated 4 April 2018 is reproduced
herein below as under :
“9. There is a Reply Affidavit dated today by Pujit Aggarwal
for himself and on behalf of Ravikiran Aggarwal, and I will
have to separately assess to what extent this justifies either a
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modification of my 27 March 2018 order or a separate
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direction altogether. There was a companion Appeal filed by
Mrs. Gunjan Pujit Aggarwal and Dinesh Ravikiran Aggarwal
and which also received the same appellate conditional order.
They have, however, filed no Affidavit in Reply. This makes a
difference because Mrs. Gunjan Aggarwal has listed separate
properties and I have in my order of 27 March 2018 made
separate provisions and passed separate directions in respect of
the assets he Receiver to taking only formal possession, and
that condition is not met, the consequences must follow, and no
further order or direction is required from me. The appellate
order will govern and is sufficient in this regard. This is as
regard the assets of Mrs. Gunjan Aggarwal and Dinesh
Aggarwal or both.”
In paragraph14 of the said order, learned Single Judge extended
time for Gunjan and Dinesh to file an affidavit in reply to the Chamber
Summons. Paragraph 14 reads thus :
“14. As the Reply on merits in the Chamber Summons, I will defer
the consideration by a short date so that the Plaintiff has time to
consider the disclosures and also responses. Since I am doing that, I
will also extend time to Mrs. Gunjan Aggarwal and Dinesh Ravikiran
Aggarwal to file an Affidavit in Reply to the Chamber Summons. This
is of course necessarily subject to the foregoing observations in regard
to noncompliance with the appellate court's direction that the
Receiver is to take only formal possession of the Khandala property on
condition that Gunjan Aggarwal and Dinesh Ravikiran Agarwal file
their Affidavit in Reply by today. If they have not done so, the
condition is not met, and the default consequence follows. The Court
Receiver will act accordingly.”
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2.10 On 18 April 2018, learned Single Judge passed another order in
Chamber Summons (L) No.495 of 2018 in which it was observed that
inspite of earlier orders passed by learned Single Judge, Gunjan entered
into consent terms on 2 April 2018 with an alleged tenant in a tenancy
dispute in the Small Causes Court, Mumbai. Learned Judge expressed his
strong displeasure regarding this conduct of Gunjan.
2.11 Learned Single Judge made further reference to the litigation
pending in the Small Causes Court, Mumbai in respect of Gunjan's Marine
Drive flat in an order passed on 20 April 2018 in Chamber Summons (L)
No.495 of 2018.
3. This is the background of the dispute between the parties before the
th
order dated 8 August 2018 was passed by the learned Single Judge. The
Appellants Pujit, Ravikiran and Gunjan have challenged the order dated 8
August 2018 in Chamber Summons (L) No.495 of 2018 in Commercial
Execution Application No.673 of 2018 in Suit No.345 of 2015. In Chamber
Summons (L) No.495 of 2018 taken out by VDL, various prayers were
made. One of the prayers was for appointment of Receiver under Order XL
Rule 1 of Code of Civil Procedure, 1908 in respect of all properties of the
Respondents in the Chamber Summons, i.e. Orbit Corp., Pujit, Gunjan and
Dinesh. By another prayer, it was prayed that these Respondents be
directed to make disclosure of their properties. In this background, various
orders referred to herein above and other orders were passed by the
learned Single Judge.
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4. In the impugned order dated 8 August 2018, the learned Judge
observed that Gunjan had never mentioned that the flat at Gamdevi, i.e. on
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9 Floor of 'Angel' was owned partially by her and for the first time, she
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had come up with the case that she owned part of the said 9 floor flat. In
view of this varying stand, learned Judge directed the Court Receiver to
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take immediate physical possession of the entirety of the 9 Floor of the
Angel at 2, Krishna Sanghi Path, Gamdevi, Mumbai7 before 07.00 p.m. on
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8 August 2018. By the same order, the learned Judge also directed the
Court Receiver to take physical possession of Gunjan's Jewellery and
further directed that the said jewellery should be placed in the safe custody
in the locker mentioned in the affidavit. The keys were to be kept by the
Court receiver. In the present appeal, this order is challenged by the
Appellants herein.
5. We have heard Mr. Chirag Balsara, learned Counsel for the
Appellants and Mr. D.D. Madon, learned Senior Counsel for VDL. With
their assistance, we have gone through the compilations filed by the
parties.
6. Mr. Balsara, submitted that Gunjan could not be described as
“Garnishee” visavis loan granted to her. It is submitted that the
provisions of Order XXI Rules 46 and 46A to 46F of the Code of Civil
Procedure, 1908, are not followed and therefore, the Receiver could not
have been appointed. He submitted that, as far as Orbit Dwelling was
concerned, since Gunjan and Dinesh held 50 per cent shareholding each,
their holding was in the nature of quasipartnership. He submitted that
Gunjan was entitled to half of the sale proceeds in respect of BaugESara
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property. He further submitted that the said amount which Gunjan would
have received; could be utilized as a set off for the loan of Rs.15.61 crores
advanced by Pujit to her. Considering such set off, in fact, Pujit owed her
money and therefore, she could not be termed as “Garnishee” and
therefore, she was not liable to pay any amount in satisfaction of the debt
incurred by Pujit. In support of his submission, he relied on the case of
1
Anand Singh Vs. Collector of Bijnor to contend that Gunjan was entitled
to use her share of sale proceeds of BaugESara property against loan
advanced by Pujit. He further relied on the case of Allmark V. Burnham
2
and another in support of his contention that arrangement of
shareholding in Orbit Dwelling was in the nature of quasipartnership. He
relied on paragraph 137 of the said judgment, which reads thus :
“137. The question then arises as to whether or not the
value of Mr. Allmark's 36% shareholding in the company should
be discounted to reflect its minority status. This case has many
of the features of a socalled 'quasipartnership'. The whole
venture was one founded on longterm person friendship. The
parties' contributions differed both in monetary terms and in the
nature of the work they performed. Mr. Allmark moved home
from London to Hampshire, and realised all his capital, in order
to undertake it. The parties regarded themselves as partners in
the business. This is a clear case of a prorata valuation without
a 'minority discount'.
AIR 1932 Allahabad 610
1
2 (2015) EWHC 2717 (Ch)
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Mr. Balsara, also relied on the judgment of Jagjit Singh Chawla
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and Others Vs. Tirath Ram Ahuja Ltd and Others passed by the
Company Law BoardPrincipal Bench in support of his contention that the
arrangement of holding in Orbit Dwelling was in the nature of quasi
partnership.
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7. Mr. Balsara, further submitted that Gunjan was part owner of 9
floor flat in the building Angel at Gamdevi. He submitted that Gunjan had
legitimate documents to prove her claim. These documents are not
produced before learned Single Judge, instead Commercial Notice of
Motion No.681 of 2018 was filed in the present appeal. It was prayed in
the said Notice of Motion that liberty be granted to the Appellants to
produce the additional documents. The Appellants wanted to rely on
registered conveyance deed dated 7 March 2002 showing transfer of Flat
No.902 B in favour of Gunjan and also share certificate in respect of the
said flat transferred in her name. It was mentioned in the affidavit in
support of the Notice of Motion that the Appellants due to bona fide
reasons were prevented from producing the said documents before the
learned Single Judge. Apart from these avermetns, there are no reasons
mentioned in the said affidavit in support of the Notice of Motion. In our
opinion, this does not satisfy requirement of Order XLI Rule 27 of the Code
of Civil Procedure, 1908, which provides for circumstances in which
additional evidence can be produced in the Appellate Court.
8. Mr. Balsara further submitted that Jewellery which is taken charge
of by the court receiver consists of Gunjan's Stridhan and therefore, the
3 2004 Company Cases 385
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learned Single Judge could not have directed the Court Receiver to take
charge of her jewellery. In this connection, Mr. Balsara submitted that the
jewellery received not only on or before or at the time of marriage, but
even subsequent to the marriage, could form Stridhan and therefore, was
free from attachment and the Court Receiver could not have taken charge
of the same. In support of his contention, Mr. Balsara, relied on the
judgment in the case of Vinod Kumar Sethi and Others Vs. State of
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Punjab and another as well as the judgment in the case of Pratibh Rani
5
Vs. Suraj Kumar and another .
9. Mr. Balsara, further submitted that though Gunjan had not disclosed
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about ownership of some portion of 9 floor flat, Angel, Gamdevi in her
earlier affidavit, she could not do so because of paucity of time. He
submitted that there was no deliberate attempt to hide her ownership of
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the 9 floor flat from the court. He further submitted that in view of
clinching evidence in the form of documents, her ownership was
sufficiently established. He further submitted that Gunjan was not
judgmentdebtor and therefore, her share of the said flat could not have
been affected by appointing the Court Receiver.
10 On the other hand, Mr. D.D. Madon, learned Senior Counsel for
VDL supported the impugned order. He submitted that there were no
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pleadings in respect of Gunjan's ownership of part of the flat on the 9
floor of the building 'Angel' at Gamdevi. He further submitted that without
proper pleadings, it was not open for Gunjan to contend that she had any
right by way of ownership of any portion of the property. He further
AIR 1982 Punjab And Haryana 372
4
5 AIR 1985 S.C. 628
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submitted that Gunjan had sufficient opportunity to produce documents in
respect of her ownership of the said property, but Gunjan did not produce
any document before the learned Single Judge. He submitted that Pujit
and Ravikiran had separately challenged the order of appointment of the
receiver in respect of 'Angel' property. Appeal against the said order was
not entertained and therefore, order appointing the Receiver in respect of
the said flat cannot be interfered with by way of the present appeal. He
submitted that the receiver taking possession of Gunjan's property at
Khandala was merely a consequence which had to follow as a condition
mentioned by Division Bench in Criminal Appeal (L) Nos.175176 of 2018
were not complied with by Gunjan and therefore, even in that respect, no
interference is called for. He further submitted that Gunjan had not
specified as to which part of the jewellery was her Stridhan and therefore,
learned Judge had no option but to appoint receiver to safeguard the
jewellery. The proceedings were still pending and learned Judge had not
passed final order of attachment of jewellery and therefore, it cannot be
said that Gunjan's Stridhan was attached. In support of his contention, Mr.
Madon, relied on the judgment in the case of Bachhaj Nahar Vs. Nilima
6
Mandal And Another , in which it is held that no amount of evidence, on a
plea that is not put forward in the pleadings, can be looked into to grant
any relief. Only in exceptional cases, can this general rule be deviated
from, if the court is fully satisfied that the pleadings and issues generally
cover the case subsequently put forward and that the parties being
conscious of the issue, had led evidence on such issue. Mr. Madon
submitted that in the present case, Gunjan's contention cannot be termed
as an exceptional case and in the absence of pleadings, no document could
6 (2008) 17 Supreme Court Cases 491
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be looked into. Mr. Madon further strongly objected to grant relief in the
present Notice of Motion No.681 of 2018, whereby Gunjan had sought
permission to produce additional documents on record which were not
produced before learned Single Judge in respect of ownership of portion of
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9 floor flat, Angel, Gamdevi. Mr. Madon further relied on the judgment of
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Union of India Vs. Ibrahim Uddin and Another , wherein it is held that
under Order 41 Rule 27 of the Code of Civil Procedure, 1908, the
discretion of the appellate court in allowing production of document in
exceptional circumstances should be exercised judicially provided under
Rule 27. Mr. Madon, further submitted that the authorities relied upon by
Mr. Balsara, learned Counsel for the Appellants are not applicable to the
present case. He submitted that Gunjan cannot contend that Orbit
Dwelling was in the nature of quasipartnership and therefore, she was
entitled to half of the sale proceeds of the property BaugESara. He
further submitted that authorities in respect of Stridhan have not laid down
the law that every gift after marriage is a part of Stridhan of a married
woman.
11. We have carefully considered the rival contentions of the parties. A
crucial question arises in this appeal is as to whether the learned Single
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Judge could have appointed the Court Receiver in respect of 9 floor of the
building Angel at Gamdevi, if Gunjan had ownership of some part of units
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of the 9 floor. One of the contentions on behalf of the Appellants was that
Gunjan was not a judgmentdebtor and therefore, no order could be issued
in respect of her property. There is history of litigation. It can be seen that
first consent term was filed between VDL and Orbit Corp., as they were
7 (2012) 8 Supreme Court Cases 148
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original parties to the Suit. The additional consent terms dated 23
September 2016 mentioned that shareholders and directors of Orbit
Dwelling had passed resolution dated 19 September 2016 , agreeing and
confirming to become a party to these additional consent terms and to
abide by the decree passed to the extent of the net sale proceeds of BaugE
Sara property, thereby undertaking to discharge a part of the liability of the
Defendant (i.e. Orbit Corp) in respect of the decree passed in the Suit.
These additional consent terms also mention that Directors of Orbit
Dwelling, i.e. Gunjan and Dinesh were also personally liable to ensure
compliance of these additional consent terms. Thus, Gunjan and Dinesh
have undertaken to pay the amount received by way of sale proceeds of
BaugESara property to the decreeholder in part satisfaction of the
original decree, of which Orbit Corp was the judgmentdebtor. The title
and interest of Orbit Dwelling in BaugESara property was purchased by
M/s Sunteck Realty Limited for Rs.34.20 crores. VDL as a decreeholder in
the main suit was entitled to receive this amount pursuant to the additional
consent terms dated 23 September 2016.
12. In the further proceedings, Gunjan has contended that pursuant to
sale of BaugESara property, she would have received half of the sale
proceeds as she was 50 per cent shareholder of Orbit Dwelling. Her further
contention is that she was entitled to set off this amount for repayment of
the loan advanced by Pujit to her. In that case, there was no liability on
her as a Garnishee. According to Gunjan, VDL as decreeholder in the
original suit has no right to proceed against Gunjan. Mr. Balsera,
submitted that BaugESara property was an asset of Orbit Dwelling and
therefore, Gunjan was entitled to her 50 per cent share of any profits
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included sale proceeds of BaugESara property. We find that this
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argument is fallacious. The additional consent terms dated 23 September
2016 clearly mention that Orbit Dwelling upon sale of BaugESara
property was to pay net sale proceeds received by it to VDL towards part
satisfaction of VDL's claim. These additional consent terms show that sale
of BaugESara property was not for profit of Orbit Dweling and the
directors, i.e. Gunjan and Dinesh were not entitled to receive any part of
the sale proceeds. Therefore, we do not see as to how any part of net sale
proceeds could have been described as asset, dividend or any other benefits
accruing to Gunjan to the extent of her 50 per cent shareholding in Orbit
Dwelling. Gunjan or Dinesh were not beneficiaries of sale of BaugESara
property. Therefore, in our opinion, Gunjan was not entitled to set off half
of the net sale proceeds, i.e. half of Rs.34.20 crores against loan advanced
by Pujit to Gunjan. By the additional consent terms, Pujit had undertaken
to submit to the decree passed in terms of consent terms in the suit and
clearly accepted that the decree was binding on him in his individual
capacity as mentioned in clause 5 of the additional consent terms.
Therefore, once Pujit was has accepted his liability under the decree, he
becomes judgmentdebtor consequently, since he had advanced loan to
Gunjan, Gunjan becomes Garnishee and she is liable to be proceeded as a
“Garnishee” under Order XL Rule 46 of the Code of Civil Procedure, 1908.
The question as to whether Rules 46A to 46F of Order XL, are followed or
not, is a matter which can be raised by the parties before the learned Single
Judge. In fact, the orders passed by the Division Bench in Commercial
Appeal (L) Nos.175176 of 2018 mention that contentions of the parties on
merits were left open. This observation would also cover all the questions
in that behalf. Once Orbit Dwelling had undertaken to give entire net sale
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proceeds of BagESara to VDL, it was not open for Gunjan to use half of
the said amount to set off her personal loan. This would deprive VDL, of
their claim to recover outstanding loans advanced by Pujit and in particular
that would affect VDL's right to proceed against Gunjan as Garnishee. In
our opinion, therefore, Gunjan's contention that she cannot be termed as
garnishee as she was entitled to set off half of the net sale proceeds of
BaugESara against the loan advanced by Pujit has no legal basis.
13. In any case, by the additional consent terms dated 23 September
2016, vide clause9, Gunjan in the capacity of director of Orbit Dwelling
had accepted that the decree passed in terms of the additional consent
terms was binding on Orbit Dwelling and directors of Orbit Dwelling
(Gunjan and Dinesh) were personally liable for compliance of the
additional consent terms to the extent of their obligations under these
additional consent terms. Therefore, Gunjan is personally liable, if the
entire amount of net sale proceeds of BaugESara property is not given to
VDL. Therefore, to that extent, VDL can proceed against Gunjan in her
personal capacity. Thus, looking at the case from any angle, we find that
the learned Single Judge was right in appointing the Receiver in respect of
Gunjan's property.
14. Having held that Gunjan could be termed as Garnishee and
therefore, court receiver could be appointed in respect of her property, the
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controversy regarding her part ownership of 9 floor Angle, Gamdevi loses
its sting. We have already mentioned that Notice of Motion No.681 of
2018 is liable to be dismissed and therefore, documents attempted to be
brought on record belatedly at the appellate stage by Gunjan cannot be
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taken into consideration. These documents were not before the learned
Single Judge and therefore, Gunjan had no locus to challenge appointment
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of the receiver in respect of 9 floor of 'Angle' at Gamdevi. Even assuming
for a moment that Gunjan had some title in part of the said property, even
then, in her capacity as Garnishee, her property can be proceeded against
and the Court Receiver can be appointed. In this view of the matter, the
judgments relied on by Mr. Balsara, learned Counsel for the appellants, as
to whether Orbit Dwelling was quasipartnership or not, is not a material
issue in the context of the case.
15. As far as the jewellery of Gunjan is concerned, the learned Single
Judge has observed that inspite of various opportunities, Gunjan had still
not prima facie satisfied the court that part of her jewellery was 'Stridhan'.
The learned Judge has observed that there were no documents showing
that in the Wealth Tax Returns, she had declared any particular jewellery
as her Stridhan. Mr. Balsara submitted that her marriage had taken place
twenty years back and therefore, it was difficult to get such Wealth Tax
Returns or other documents. However, Gunjan will still have to show to
the satisfaction of the Court that which part of Jewellery was her Stridhan
and only that jewellery can be protected from attachment. The decision as
to what constituted her Stridhan, has not attained finality, as the learned
Single Judge has not passed final order in respect of her Stridhan. Gunjan
can still satisfy the learned Judge as to what is her Stridhan. The learned
Judge has only safeguarded the jewellery, so that before the final decision,
it could not be tampered with. We see no fault with this approach and
therefore, we do not find any need to interfere with that part of the order.
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16. Based on the above discussion, we do not find any reason to
interfere with the impugned order dated 8 August 2018.
17. With the result, Commercial Appeal (L) No.361 of 2018 is
dismissed.
18. As the appeal is dismissed, Commercial Notice of Motion (L) No.804
of 2018 for stay of the impugned order does not survive and the same is
also accordingly dismissed.
[SARANG V. KOTWAL, J.] [SHANTANU KEMKAR, J.]
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