- (1.) This petition has been preferred by Bank of Baroda for initiating contempt proceedings against the respondents; Sadruddin Hasan Daya and Shohin S. Daya. The facts leading to the filing of the contempt petition are as under :
(2.) The Bank of Baroda filed Summary Suit No. 2949 of 1996 against (1) M/s. Dawood and Co., (2) Sadruddin Hasan Daya, and (3) Shohin S. Daya for recovery of certain amount of money. The respondents were granted unconditional leave to defend the suit by the order dated 15-4-1998 passed in Summons be Judgment No. 580 of 1996. This order was challenged by the petitioner-Bank of Baroda by filing Special Leave Petition (Civil) No. 2730 of 1999, which was re-numbered as Civil Appeal No. 4138 of 1999. During the pendency of the appeal, the parties arrived at a settlement, the minutes of the decree were drawn and the same were placed on record. By the order dated 28-7-1999, the appeal was disposed of with a direction that there shall be a decree in terms of the minutes of the decree drawn by learned counsel for the parties. As per the said consent terms the parties, inter alia, agreed that the respondents (defendants) would pay to the petitioner (plaintiff) Rs.2,44,71,616/- and Rs. 2,40,69,447/- together with interest thereon as specified, in accordance with the schedule of instalments mentioned in paras 3(a) and 4(a) respectively of the said order. It was further agreed between the parties that in the event of default by the respondents to abide by the said consent terms as per Cls. 3 and 4, the remaining amount shall forthwith become due and payable and the petitioner (plaintiff) will become entitled to execute the decree. Clauses 5(a), 5(b), 7 and 9 of the consent terms, which are relevant, are being reproduced below : "5(a) The properties namely at Versova, Madh Island and Alibagh mentioned in the order dated 6th May, 1998 shall remain under attachment in execution till the decree as set out in Cl. (2) hereinabove is fully satisfied. 5(b) In case of decree(s) becoming executable as provided in Cl. 3 or 4 above, the said properties at Versova, Madh Island and Alibagh or anyone of them as may be required be sold in execution of the decree by the Court Receiver of the High Court of Bombay. The Court Receiver is hereby appointed in execution. He shall, however, proceed only if default is committed in Cls. 3 and 4 above. Leave to execute the decree under R. 314 of Bombay High Court (O.S.) Rules is granted. The Court Receiver to pay over the net sale proceeds to the plaintiffs in or towards satisfaction of the decree(s) herein. There are other suits against the defendants in which attachment before judgment orders and or injunctions are passed inter alia in respect of the said properties. However, the same will not affect the sale, which will be in execution of the decree(s) passed herein. 7. The defendants undertake not to sell, mortgage, alienate, encumber or charge the said properties described hereinabove to anyone until the decree as per Cl. 2 above is satisfied. 9. All the orders passed in Suit No. 2949 of 1996 and the proceedings therein including the summons for judgment No. 580 of 1996, Review Petition No. 36 of 1998 and Appeal Nos. 540 and 543 of 1998 are set aside and the said suit and all proceedings connected therewith are disposed of in terms of this order."
(3.) Oman International Bank, SAOD had also filed Summary Suit No. 4571 of 1996 against M/s. Dawood and Co. and the respondents for recovery of certain amount in Bombay High Court. Against an order passed in Summons for Judgment No. 493 of 1997 in the said suit, an appeal was preferred by M/s. Dawood and Co. and others before the Division Bench, wherein the parties entered into a settlement. The appeal was disposed of in terms of the consent terms by the order dated 5-10-1999, which reads as under : "Undertaking given to this Court by the appellants in terms of the Consent Terms is accepted. The Consent Terms taken on record and marked 'X.' The appeal is disposed of in terms of the Consent Terms which would be binding on the parties. . . . . . . . . . ." Under the Consent Terms, the defendants had to pay a sum of Rs. 1,11,27,146/- together with interest thereon at the rate of 14% per annum in quarterly installments. Clauses 5, 6, 7 and 8 of the Consent Terms, which formed part of the decree are being reproduced below : "5. Agreed, declared and confirmed that the immovable properties belonging to and owned by the appellants situated at : (a) Land, building and structure standing on Moon-Dust Property, J.P. Road, Versova, Andheri (E), Mumbai 400 058, (b) Land, building and structure standing on Fazalbhai Wadi, Erangal, village, area of Madh Island, Malad (W), Mumbai. (c) Land, building and structure standing on Survey No. 54/3, 56 at village Revadanda, Taluka Alibaug, District Raigad. (d) Land, building and structure standing on Survey No. 35-3A-B, Survey No. 35/3A, Barashir (Murud). shall continue to remain under attachment as attached pursuant to the order dated 20th December, 1996 passed in Notice of Motion No. 111 of 1997 till the decree is fully satisfied. 6. In the event of the decree becoming executable as contemplated under Cl. 4 above, the Court Receiver, High Court, Bombay shall stand appointed Receiver in execution in respect of the properties set out in Cl. 5 above with power to sell and shall effect sale in the serial order in which the properties are set out in Cl. 5 and pay over the net sale proceeds to the respondents towards the satisfaction of the decree. 7. The appellants hereby undertake to this Hon'ble Court not to alienate, encumber or create third party right or part with possession of any of the properties set out in Cl. 5 hereinabove till satisfaction of the decree. 8. In view of the decree herein the order passed on Summons for Judgment No. 493 of 1997 dated 6th July, 1999 is set aside and the order passed on the Notice of Motion No. 111 of 1999 is vacated except to the extent set out in Cl. 5 above.";