SANTHOKBAN VALLABHDAS MADHVANI Vs. TARABEN PRAVINLAL MADHVANI EXECUTRIX TO THE ESTATE OF PRAVIN VITHALDAS MADHVANI

JUDGEMENT

(1.) THIS is a petition for modification of the order dated 28. 6. 1993 passed by us in C.M.P.No.5594 of 1993 directing the petitioners herein to pay a sum of Rs.20,00,000 to the respondents herein on or before 23rd July, 1993. Though the petition purports to be one for modification, in law it is only for review of our order dated 28. 6. 1993. In fact, the petition as filed by the counsel was originally one for review and it is represented that at the instance of the registry, the word "review" has been struck off and the word "modification" has been substituted.

(2.) THE ground on which this petition has been filed is that at the time when we heard C.M.P.No.5594 of 1993, it was not brought to our notice that a sum of Rs. 51,59,416. 55 would be due from the respondents herein to the petitioners and that the liability was also found by the Commissioner appointed by this Court during the pendency of the appeal by an order in CMP.No.17182 of 1988 in L.P.A.No.192 of 1988. It is stated that late Pravinlal Madhvani was liable to pay a sum of Rs.4,13,463. 24 to the petitioners and the said amount has swelled into Rs.51,59,416. 55 on account of interest with quarterly rest thereon. It is further stated that the amount due in favour of the petitioners even as per the report of the Commission would be only Rs.33,32,847. 83 and the interest thereon would come to Rs.25,13,618. 58, making a total of Rs.58,46,466. 41. Thus, it is contended that if the said fact had been brought to the notice of this Court on 28. 6. 1993, the order directing the petitioners to pay a sum of Rs.20,00,000 would not have been made.

(3.) IT is submitted that the Commissioner was directed by this Court to ascertain the mesne profits only from 5. 5.1969 and not to ascertain the liability during the prior period. IT is, therefore, argued that the alleged liability of Pravinlal Madhvani having been already taken into account and the court having found that only a sum of Rs.67,111.37 was due from the petitioners herein to respondents, it is not open to the petitioners to contend that the liability is still alive and it has swelled into a sum of Rs.51,00,000 and odd.