JUDGMENT - D.R. DHANUKA, J.: ---The plaintiffs have taken out this notice of motion for appointment of a firm of Chartered Accountants to value the shares pledged to the plaintiffs as described in Annexure I to the consent terms dated 31st July, 1990 for the purpose of sale of the said shares in terms of liberty granted to the plaintiffs under Clause 15 of the consent terms appended to the consent order dated 31st July, 1990 passed by Ashok Agarwal, J., on Notice of Motion No. 1556 of 1990 taken out by the plaintiff in this suit. 2. On 31st July, 1990, Brother Justice Ashok Agarwal passed a consent order reading as under:... "By consent between the plaintiffs and the defendants Nos. 1 to 4, order in terms of consent terms handed in and market `X'." By Clause 1 of the said consent terms, it was agreed and declared that defendants Nos. 1, 2 and 4 to pay to the 1st plaintiff a sum of Rs. 5.61 crores together with interest thereon at the rate of 16% per annum from 29th September 1989 till payment or realisation. The later part of Clause 1 of the consent terms reads as under : --- "Defendant Nos. 1, 3 and 4 shall pay the aforesaid sum along with the interest thereon latest by 31st March, 1991". The said consent order thus created unqualified, binding and executable obligation to pay the abovereferred amount under the said consent order. 3. (a) By Clause 12 of the said consent terms it was declared that the shares in the capital of the 1st defendant company described SECONDLY in the statement annexed and marked as Annexure I, though not included in the Agreement of Pledge (Exhibit 'A' to the plaint), shall be deemed to form part of the said Agreement. It was further declared by the said clause that the said shares were validly pledged in favour of the 1st plaintiff for repayment of the dues specified under the said agreement. It was further declared by the said clause that the said shares were validly pledged in favour of the 1st plaintiff for repayment of the dues specified under the said agreement. (b) By Clause 13 of the said consent terms it was agreed and declared between the parties to the consent terms that "the pledge agreement", "the power of attorney" and the letters of consent, all dated 29th September, 1989 (copies whereof were annexed as Exhibits A, B, C and D to the plaint) were valid, binding and operative in respect of the matters stated there in and in particular in respect of the pledged shares, a statement whereof was annexed and marked as Annexure I to the said consent terms. It was provided by the said clause that the said documents shall be enforced by the plaintiffs only in the event of non-payment of dues by 31st March, 1991 in terms of Clause 1 hereof. 4. Clause 15 of the said agreement is required to be reproduced in extenso. The said clause reads as under :---. "In the event of defendant Nos. 1, 3 and 4 not making payments of the amounts mentioned in Clause 1 within the time mentioned therein, thenin that event, the 1st plaintiff company shall be at liberty to sell all the pledged shares set out in Annexure I hereto either to any third party or to itself at the value to be determined by a firm of reputed chartered accountants as may be mutually agreed between the 1st plaintiff company and defendant Nos. 1, 3 and 4". Clause 15 operates in aid of Clause 1 of consent terms along with other clauses. 5. It is obvious from the operative part of consent order dated 31st July 1990 passed by Agarwal, J., read with Clause 1 of the consent terms that defendants Nos. 1, 3 and 4 were ordered to pay a sum of Rs. 5.61 crores along with interest specified there to the 1st plaintiff latest by 31st March, 1991. The said consent order prescribed consequences of default on the part of defendant Nos. 1, 3 and 4 in respect of their obligation to pay the above referred amount. 1, 3 and 4 were ordered to pay a sum of Rs. 5.61 crores along with interest specified there to the 1st plaintiff latest by 31st March, 1991. The said consent order prescribed consequences of default on the part of defendant Nos. 1, 3 and 4 in respect of their obligation to pay the above referred amount. It was provided by the abovereferred Clause 15 of the consent terms that in the event of default being committed by the debtors in paying the said amount by the date stipulated, the 1st plaintiff shall be at liberty to sell all the pledged shares either to any third party or to itself at the value to be determined by a firm of reputed chartered accountants as may be mutually agreed between the 1st plaintiff and defendants Nos. 1, 3 and 4. It is well settled that the pledgee has a right to dispose of the pledged security with or without the intervention of Court. In order to prevent allegations being made later on that the shares were sold by the pledgee at an undervalue and in order to prevent multiplicity of proceedings, it was provided by Clause 15 of consent terms as a matter of agreed mechanism that the pledged shares shall be valued by a firm of reputed chartered accountants as may be mutually agreed upon before the plaintiffs disposed of the said shares as a pledgee thereof. The suit was kept pending perhaps for obtaining of consequential orders after the above referred consent order was worked out. 6. By a letter dated 25th March, 1991, the plaintiff No. 1 reminded defendants Nos. 1, 3 and 4 to make payment of the amount directed to be paid under the above referred consent order on or before 31st March, 1991. The defendants Nos. 1, 3 and 4 committed default. No amount whatsoever was paid. The plaintiffs became entitled to execute the order for payment. The plaintiffs became entitled to execute the order for payment. The plaintiffs became entitled to dispose of the pledged shares without intervention of Court after the same were valued by a reputed chartered accountant. 7. By its letter dated 2nd April, 1991, the plaintiff No. 1 informed the defendant No. 1 that the pledged shares were required to be valued under Clauses 15 of the above referred consent terms. The plaintiffs became entitled to dispose of the pledged shares without intervention of Court after the same were valued by a reputed chartered accountant. 7. By its letter dated 2nd April, 1991, the plaintiff No. 1 informed the defendant No. 1 that the pledged shares were required to be valued under Clauses 15 of the above referred consent terms. The plaintiffs suggested the names of three firms of reputed chartered accountants, any one of whom could be selected as valuer in terms of the said clause. The three names suggested by the plaintiffs were : 1) M/s. S.B. Billimoria Co. 2) M/s. N.M. Raiji Co. 3) M/s. Ford Rhodes Park Co. By its letter dated 5th April, 1991, the defendant No. 1 suggested holding of a joint meeting for selection of a mutually acceptable firm of chartered accountants. By the said letter, the concerned defendants also requested the plaintiff No. 1 to extend the due date for repayment from 31st March, 1991 to 31st December, 1991. The plaintiffs did not agree to extension of due date for repayment. Correspondence ensued. Meetings were held. Reminders were written on behalf of the plaintiffs to defendants Nos. 1,3 and 4 in this behalf for finalisation of name of a chartered accountant-valuer. The defendants Nos. 1, 3 and 4 addressed their letter dated 11th April, 1991 to plaintiff No. 1 to the effect that defendants Nos. 1, 3 and 4 would need at least 30 day's time give reply in the matter of selection of a chartered accountant as they would like to ascertain the name of a chartered accountant who should be independent and not under the influence of the plaintiffs. Thirty days' time also expired. No suggestion whatsoever was made by defendants Nos. 1, 3 and 4 in respect of selection of a chartered accountant for the purpose of valuation of the said shares. The defendants Nos. 1, 3 and 4 did not suggest the name of any chartered accountant for the purpose of implementation of Clauses 15 of consent order. Even now at the hearing the defendants Nos. 1, 3 and 4 refuse to suggest the name of a chartered accountant for valuation of shares. The defendants Nos. 1, 3 and 4 did not suggest the name of any chartered accountant for the purpose of implementation of Clauses 15 of consent order. Even now at the hearing the defendants Nos. 1, 3 and 4 refuse to suggest the name of a chartered accountant for valuation of shares. The said defendants are bent upon creating maximum possible hurdles in implementation of the consent order in an attempt to delay the realisation of the security by sale of shares by the plaintiffs without intervention of Court but within the parameters of the consent terms. Ultimately by letter dated 24th June, 1991, the defendant No. 1 informed the plaintiff No. 1 that the defendant No. 1 was not agreeable to the appointment of any of the three firms suggested by the plaintiffs. In this letter, it was also contended that Clauses 15 of the consent terms did not contain a default clause and the Court would have no power to appoint a chartered accountant for the purpose of valuation in absence of an agreement between the parties selecting a mutually acceptable chartered accountant. The doctors want to resile from the consent terms altogether. The debtors contend that they have absolute unfettered power to veto and if for any reason or no reason the name of an agreed chartered accountant as a valuer is not finalised, Clause 15 of the consent terms can not be operated upon. The debtors want to dispute their liability to pay the amount in respect whereof unconditional obligation was created by Clause 1 of consent terms. I cannot go behind the consent terms. I cannot permit the parties to resile or back out from consent terms. The attitude adopted by the debtors lacks bona fide and the same is totally unjust. 8. Shri S.H. Doctor, the learned Counsel for defendants Nos. 1, 3 and 4, has submitted as under : - (a) By this notice of motion, the plaintiffs are seeking variation of Clause 15 of the consent terms. The Court has no jurisdiction to appoint a chartered accountant valuer in respect of the pledged shares even if the Court comes to the conclusion that defendants Nos. 1, 3 and 4 are withholding their consent in respect of selection of a chartered accountant arbitrarily and mala fide. The Court has no jurisdiction to appoint a chartered accountant valuer in respect of the pledged shares even if the Court comes to the conclusion that defendants Nos. 1, 3 and 4 are withholding their consent in respect of selection of a chartered accountant arbitrarily and mala fide. Parties cannot operate on Clause 15 of the consent terms unless a mutually acceptable chartered accountant is appointed for valuation of the shares and it is the sweet will of defendants Nos. 1, 3 and 4 as to what they would do in this behalf - submits the learned Counsel. (b) The order dated 31st July, 1990 is not an executable order. It is merely in the nature of an arrangement mutually arrived at between the parties. The consent terms which are made subject-matter of order dated 31st July, 1990 can be enforced only by a suit. No notice of motion for appointment of a chartered accountant-valuer is maintainable. (c) This notice of motion is in reality an application for execution and is therefore within the assignment of the learned Chamber Judge under Rule 121 of High Court of Judicature at Bombay (Original Side) Rules. This notice of motion is not maintainable. The real remedy of the plaintiffs was to take out a Chamber Summons. (d) While passing a consent order, the Court merely adopts the contract between the parties as the basis thereof. Consent terms herein are declaratory in character. Consent terms herein are therefore not enforceable as an executable order. The learned Counsel for the defendants has relied upon judgments of the High Court of Madras in the case of (Nagappa v. Venkat Rao)1, reported in I.L.R. 24 Madras 265, High Court of Allahabad in the case of (Shiv Charan v. R.T. Authority)2, A.I.R. 1969 All. 269, High Court of Jammu Kashmir in the case of (Thapar v. Sudhir Kumar)3, A.I.R. 1966 J K 13, and the High Court of Orissa in the case of Orissa in the case of (Khalli Rath v. Ramchandra)4, reported in A.I.R. 1953 Orissa 74 in support of his submission that all consent decrees and orders are not executable as in some cases the same may be merely declaratory. It is well settled that a consent order represents a contract between the parties to which the command of the Court is superadded. It is well settled that a consent order represents a contract between the parties to which the command of the Court is superadded. (e) In the guise of interpretation, the Court could not make out a new contract between the parties. By taking out this notice of motion, the plaintiffs are seeing to pursuade this Court to make out a new contract between the parties in lieu of Clause 15 of the consent terms. 9. Shri J.J. Mehta, the learned Counsel for the plaintiffs, submits that the consent order passed by Agarwal, J., and particularly Clause 1 and several other clauses of the consent terms are mandatory and executable by virtue of the provisions contained in section 36 of the Code of Civil Procedure. 10. The learned Counsel for the plaintiffs submits that the word 'shall' used in later part of Clause 1 of the consent terms denoted command and is equivalent to the word 'do'. The learned Counsel referred to the meaning of the word 'shall' from Concise Oxford Dictionary and also referred to the form of decree in Appendix D to the Code of Civil Procedure. The learned Counsel relied upon the judgment of the High Court of Allahabad in the case of (Bharat Indu v. Hakim Asghar)5, reported in A.I.R. 1923 Allahabad, page 460, and submitted that the Court has inherent jurisdiction to substitute the machinery provision and vary a matter of detail in order to enforce the consent order if by reason of deliberate default or inaction of the judgment-debtors, the original arrangement for valuation of shares cannot be arrived at. The learned Counsel submitted that the Court always has power to vary a matter of detail and substitute another machinery for working out the consent terms if by reason of accident or deliberate wrongful act of commission or omission on the part of debtors mutually agreed machinery cannot be constituted to work out the consent order. The learned Counsel has submitted that neither the plaintiffs nor the courts are at mercy of the defendants-debtors and no one can be permitted to take advantage of their wrong and make mockery of justice and produce absurd results. 11. I accept each of the submissions urged by the learned Counsel for the plaintiffs as the same is supported by law and is just and reasonable. 11. I accept each of the submissions urged by the learned Counsel for the plaintiffs as the same is supported by law and is just and reasonable. After careful consideration of the submissions made by the learned Counsel appearing on both sides and the authorities cited at the bar, I have reached the conclusion that Clause 1 of the consent terms is mandatory and creates an enforceable and executable obligation on the part of defendants Nos. 1, 3 and 4 to pay the amount of Rs. 5.61crores along with interest thereon to the plaintiffs latest by 31st March, 1991. 12. Following the judgment of the High Court of Allahabad in the case of Bharat Indu v. Hakim Asghar (supra), I hold that the Court has inherent jurisdiction to vary a matter of detail in an order made by consent of the parties. It is obvious from the correspondence annexed to the affidavit in support of this notice of motion that defendants No. 1, 3 and 4 have deliberately and intentionally refused to participate in the process of selection of a chartered accountant for the purpose of valuation of the above referred pledged shares with an ulterior motive to delay the sale of pledged shares. It is too well settled that no one can be permitted to take advantage of his own wrong. No Court can permit its orders to be nullified in the manner in which it is attempted to be nullified by the defendants Nos. 1, 3 and 4 in this case. In the above referred Allahabad case, the Arbitrators had made an award in a matter involving a family dispute. With consent of the parties, it had been provided in the award that the 'division' shall be effected by one Mr. Dang, a family friend, in accordance with the award. The provision made was merely a machinery provided to carry out the outstanding details in accordance with the Award. The gentlemen named in the award was unable or unwilling to carry out the task. The party interested in avoiding its liability and making mockery of the award refused to offer a reasonable substitute and decided to take undue advantage of the situation. The learned Subordinate Judge appointed someone else in place of the person named under the award. The gentlemen named in the award was unable or unwilling to carry out the task. The party interested in avoiding its liability and making mockery of the award refused to offer a reasonable substitute and decided to take undue advantage of the situation. The learned Subordinate Judge appointed someone else in place of the person named under the award. It was submitted by the learned Counsel for the appellant before the High Court of Allahabad that appointment of the substitute was beyond the reach of the Court. It was also submitted that the Court had no jurisdiction to appoint a substitute. Dealing with this contention Mr. Justice Walsh observed as under : --- "The appointment of this gentleman was obviously a mere piece of machinery to carry out outstanding details which the award had left open". The learned Judge then dealt with the submission made on behalf of the appellant that the appointment of Mr. Dang was not part of an executable decree and the appointment of a substitute was beyond the reach of the Court. Dealing with this contention, the learned Judge observed as under : --- "It seems to me that such a view if sound would turn the law as an engine of the administration of justice for the settlement of disputes into an absurdity". Ultimately, the Court held that the Court always had the power to enforce its own orders and to vary matter of detail in an order made by consent of the parties when by accident or circumstance the carrying out of such details according to the agreement could no longer be achieved. It was observed by the Hon'ble Mr. Justice Ryves in his separate concurring judgment as under : — "If the parties do not agree to nominate someone agreeable to both, the Court must, it seems to me, give effect to its own order and appoint some one to carry out the award, or if no one suitable can be found, proceed to carry it out itself". 13. The principles enunciated in this judgment are on all fours applicable to the facts of the present case. The principles enunciated in this judgment are just and reasonable and appeal to me. 13. The principles enunciated in this judgment are on all fours applicable to the facts of the present case. The principles enunciated in this judgment are just and reasonable and appeal to me. It is a matter of common sense that a wrong doer cannot be permitted to take advantage of his own wrong and if the original machinery provision cannot be implemented or enforced, the original machinery can be substituted by the Court for the purpose of carrying out the order passed by the Court. I am conscious of the fact that at one stage a very rigid view used to be taken by some of the courts to the effect that a consent order could never be varied except by consent of the parties. The view taken in some of the old cases was that the Court had no jurisdiction to enlarge the time for payment fixed by a consent order or consent decree even by a day or even by a minute except with consent of the parties, where the debtor had failed to pay the amount in time stipulated under the consent terms. Such approach is out dated in the year 1991 and is in term rejected by latest decision of the Apex Court. It was observed by the Hon'ble Supreme Court in the case of (Periyakkal v. Dakshyani)6, A.I.R. 1983 S.C. 428, that even in matters of consent orders, the Court had jurisdiction to extend the time in appropriate cases. It is in the interest of justice that the consent order passed by Ashok Agarwal, J., should not be allowed to be frustrated by technical and hyper-technical contentions urged by defendants Nos. 1, 3 and 4. I hold that there is no merit whatsoever in any of the technical contentions urged on behalf of the said defendants. I further hold as under :— (1) This Court has inherent jurisdiction to appoint a firm of Chartered Accountants as valuer under Clause 15 of the consent terms dated 31st July, 1990, having regard to the fact that the defendants Nos. 1, 3, and 4 are wilfully and deliberately avoiding to participate in the process of selection of a firm of reputed Chartered Accountants and are acting arbitrarily and mala fide to frustrate the consent order. Even when during the course of arguments I asked the learned Counsel for defendants Nos. 1, 3, and 4 are wilfully and deliberately avoiding to participate in the process of selection of a firm of reputed Chartered Accountants and are acting arbitrarily and mala fide to frustrate the consent order. Even when during the course of arguments I asked the learned Counsel for defendants Nos. 1, 3 and 4 to suggest name of a Chartered Accountant - valuer as he deemed fit, no answer was forthcoming for lack of instructions. The inference is too obvious. (2) I hold that Clause 1 of the consent terms is executable. The Court has inherent jurisdiction to substitute the machinery for valuation of shares is lieu of the machinery provided in Clause 15 of the consent terms. (3) I hold that the present application for appointment of a Chartered Accountant is not an application for execution. (4) I hold that Rule 121(15) of the High Court of Judicature at Bombay (Original Side) Rules has no application to this notice of motion and this notice of motion does not fall within the assignment of the learned Chamber Judge and is clearly maintainable. (5) The Court has inherent jurisdiction to vary a matter of providing machinery to assist the parties in working out the consent terms and substitute similar machinery for the purpose of working out the consent terms by which the parties are bound. 14. I have gone through the authorities cited by the learned Counsel for defendants Nos. 1, 3 and 4. There is no dispute about the principles laid down in these cases. The dispute is only about the application of these principles to the present case. I have already interpreted the order of Ashok Agarwal, J., and the consent terms in the light of the submissions made by the learned Counsel for the debtors. 15. In the result, I appoint M/s. S.B. Billimoria and Co., Chartered Accountants, for the purpose of valuation of the shares pledged to the plaintiffs as described in Annexure I to the consent terms dated 31st July, 1990. The plaintiffs shall be entitled to exercise their liberty to sell the said shares without intervention of the Court to a third party or to itself after the valuation report is available and in accordance with the mandate of Clause 15 of the said consent terms. In the first instance, the plaintiffs shall pay the cost of the Valuer. The plaintiffs shall be entitled to exercise their liberty to sell the said shares without intervention of the Court to a third party or to itself after the valuation report is available and in accordance with the mandate of Clause 15 of the said consent terms. In the first instance, the plaintiffs shall pay the cost of the Valuer. The Valuer shall endeavour to complete the valuation within one month from the date of service of the ordinary copy of this order duly authenticated as true copy by my Associate as far as possible. The Valuer shall forward a copy of the valuation report to the Advocates on record for the plaintiffs as well as defendants Nos. 1, 3 and 4. The Valuer shall forward the original valuation report to this Court for the purpose of its record and a copy to each of the Advocates on record for both sides. The cost of the valuation shall be treated as the cost of realisation of the pledge and shall be ultimately payable by the defendant Nos. 1, 3 and 4. 16. Having regard to the facts and circumstances of the case, the defendants Nos. 1, 3 and 4 shall pay the costs of the motion to the plaintiffs. 17. Liberty to the plaintiffs to apply for substitution of some other name of a Chartered Accountant in case M/s. S.B. Billimoria Co., refuses to accept the assignment under this order. Such liberty must be exercised at the earliest and as far as possible by Tuesday, 20th August, 1991. 18. Mr. S.H. Doctor, learned Counsel for the debtors applies for stay of operation of this order. Operation of this order is stayed for two weeks from to-day. I would have granted stay for a longer period if defendants Nos. 1, 3 and 4 would have agreed to deposit a sum of Rs. 5.61 crores in Court, but they are not willing to deposit or pay any amount. 19. Issue of ordinary copy duly authenticated by the associate as well as certificed copy expedited. Order accordingly. -----