Full Judgment Text
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CASE NO.:
Appeal (civil) 3596 of 2006
PETITIONER:
Rangnath Haridas
RESPONDENT:
Dr. Shrikant B. Hegde
DATE OF JUDGMENT: 22/08/2006
BENCH:
S. B. SINHA & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) Nos.24511-24512/2004]
DALVEER BHANDARI, J.
Leave granted.
By the order dated 17.08.2004, Chamber Summons
No. 1460 of 2003 in Execution Application No. 388 of
2003 in Suit No. 3550 of 1990 was made absolute by the
Single Judge of the High Court of Bombay.
Aggrieved by the said order of the Single Judge, the
appellant-defendant filed an appeal before the Division
Bench. The Division Bench of the Bombay High Court
dismissed the said appeal (Appeal No. 672 of 2004) by an
order dated 21.10.2004.
The appellant aggrieved by the aforesaid orders of
the learned Single Judge and the Division Bench has
preferred this civil appeal before this Court.
The brief facts which are necessary to dispose of
this appeal is recapitulated as under:
The respondent-plaintiff entered into an agreement
with the appellant for the purchase of a flat on
16.9.1985. Despite making part payment, when the
appellant did not perform his part of the agreement, the
respondent filed a Suit No. 3550 of 1990 in the High
Court of Bombay for seeking specific performance of the
agreement dated 16.9.1985.
During the pendency of the suit, the parties have
amicably settled the dispute involved in the suit and filed
the consent terms on 1.11.1991. The details of the
Chamber Summons and the consent terms incorporated
in the order of the learned Single Judge are reproduced
hereinafter for proper appreciation of the facts of this
case.
"that pending the above Execution Application,
this Hon’ble Court be pleased to appoint the
Court Receiver, High Court, Bombay with all
powers under Rule XL rule 1 of C.P.C. 1908
with further directions to the Court Receiver,
High Court, Bombay, to take possession of Flat
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No.B-4, 2nd Floor, Golden Height, situated at
Anant Patil Marg, Dadar Mumbai 400 028 with
further directions to the Court Receiver to
appoint Architect and Contractor from panel of
this Hon’ble Court to get the said incomplete
work completed as mentioned in the report
dated 29th November, 1999 filed by M/s
Nandkarni & Co. in Notice of Motion no.2660
of 1999 and to obtain part Occupation
Certificate from the Municipal Corporation of
Greater Mumbai, in respect of the said flat
with further directions to hand over quiet,
vacant and peaceful possession of the said flat
to the plaintiff as per consent decree dated 1st
November, 1991."
The consent terms contained the
following clauses:
"2. The parties confirm that the agreement
dated 16.9.1985 between them is valid
and subsisting and the same is binding
on the parties.
3. The Defendant hereby confirm having
received Rs.2,35,000/- from the plaintiff
as per the agreement dated 16.9.1985.
5. The Defendant states that as per the said
proposed plan there are no flats
admeasuring about 750 sq.ft. in both the
Wings of the proposed buildings. But
there are flats admeasuring about 935 sq.
ft. (super built up area) in the said
building and the plaintiff has agreed to
purchase a flat admeasuring 935 sq. ft.
on further payment of Rs.6,00,000/-
which the plaintiff has agreed to
purchase the flat on 2nd floor in Wing ’B’
Western Side on the following terms.
6. The Defendant to sell and to entrust to
the plaintiff flat No.B-4 on the 2nd Floor of
B-Wing (super built up area) of the
building on plaintiff’s paying the sum of
Rs.6,00,000/- in addition to
Rs.2,35,000/- already paid by him to the
plaintiff in the following manner:
Rs.3,00,000/- prior to the
execution of these terms by
pay order No. 466770 dated
31.10.1991 at the time of
Defendant handing over quiet,
vacant and peaceful
possession of Flat No.B-4, 2nd
Floor, B- Wing at Anant Patil
Marg, Shivaji Park, Dadar
(West) Bombay \026 400028.
7. The Defendant agrees and undertakes to
provide the aforementioned flat with all
modern facilities to the plaintiff, after the
said building is ready for occupation.
The Defendant agrees and undertakes to
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execute separate agreement to sell in
respect of the aforementioned flat
admeasuring 925 sq. ft. (super built up
area) in favour of the plaintiff as required
by the Maharashtra Ownership Flat Act,
1964 within eight weeks from the
execution of these terms and the plaintiff
agrees and undertakes to pay stamp duty
and registration charges as applicable on
the agreement registered before the Sub-
Registrar of Assurances at the earliest as
required by the said Act.
11. The Defendant hereby agrees and
undertakes to hand over quiet, vacant
and peaceful possession of Flat No.B-4,
2nd Floor, B-Wing at Anant Patil Marg to
the Plaintiff on his paying the entire
consideration mentioned hereinabove and
after completing the construction of the
entire building wherein the said flat is
situated and the said flat is ready for
occupation.
13. The Minutes of the order dated 16th day
of September, 1991 passed by their
Lordships Chief Justice P.D. Desai and
Mr. Justice Tipnis in Appeal No.622 of
1991 shall remain in force until the
Defendant hands over possession of the
said flat to the plaintiff on plaintiff’s
paying the entire consideration
mentioned hereinabove."
The learned Single Judge further examined the
matter and observed as under:
"Clause 2 of the Minutes of the order dated
16th September, 1991 referred to in Clause 13
above read as under:-
"The Respondent/Defendant
states that there is no flat
admeasuring 750 sq. ft. in the
proposed building. However, there is
a flat of 935 sq. ft. on second floor
(Right Side) which at present is not
agreed to be sold to anyone. The
Respondent states that without
prejudice to his rights and
contentions the Respondent shall
not enter into any agreement for
sale in respect of said flat unless he
has given seven days clear notice to
the Appellant’s Advocate, during
which period the Appellant shall be
at liberty to adopt appropriate
proceedings before trial court for
appropriate reliefs. The Respondent
shall also be at liberty to urge all
contentions as are permissible to
him in law."
By an order dated 10th August, 1999, S.S.
Nijjar, J. held that the Defendants had failed
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and neglected to comply with the above order.
His Lordship observed that the Defendants
had committed contempt of court. In the
circumstances, the learned Judge in order to
protect the interest of the Plaintiff granted ad-
interim relief in terms of prayer (a) of the
Notice of Motion No.2660 of 1999. However,
that Notice of Motion was withdrawn with
liberty to adopt appropriate proceedings. A
further Notice of Motion No.1701 of 2002 for
similar reliefs was also withdrawn, as reflected
from the order dated 30th July, 2001. The
explanation that the aforesaid Notices of
Motion were withdrawn for the purpose of
adopting appropriate proceedings, is accepted.
The present Chamber Summons is taken
out in execution proceedings, which is the
proper remedy.
There is no answer on the merits of the
case whatsoever. The only answer sought to
be given is that there was an alleged oral
understanding prior to the execution of the
consent terms dated 1st November, 1991. The
same is unsustainable, in view of the fact that
the consent terms are still valid and binding.
The defendant has not complied with any
of his obligations including the obligation
under clause 7 of the consent terms. There is
an open defiance of the order.
The learned counsel appearing on behalf
of the Defendant further stated that there is an
order of attachment in respect of Flat No.B-3
passed by the Debt Recovery Tribunal in
respect of the dues of SICOM. Admittedly an
M.O.U. dated 9th July, 1996 was entered into
between the Defendant and Dinesh Anant
Rane for Flat No.B-3. That flat however, is not
the subject matter of this suit. The learned
counsel for the Defendant further stated that
there is no wall between flat No.B-4 i.e. the
suit flat and flat No.B-3. He further states that
the possession of flat No.B-4 was never handed
over to the said Rane and that Rane does not
have any right in respect thereof. The warrant
of attachment therefore, on its own showing
does not apply to the suit flat. In fact had the
Defendant sought to create any right in respect
of flat No.B-4 i.e. the suit flat in favour of Rane
or anyone else, it would have been contempt of
the aforesaid orders of this Court. In the
circumstances, there can be no objection to
the grant of reliefs in the present Chamber
Summons.
The Chamber Summons is made absolute
in terms of Prayer (a). The Court Receiver
shall erect a wall at the appropriate place
between flat Nos.B-3 and B-4. The defendant
shall pay the costs of this Chamber Summons
fixed at Rs.5000/- within two weeks from
today. The Defendant shall also pay the cost
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of construction of the wall to the Court
Receiver within four weeks of a demand for the
same by the Court Receiver.
The operation of this order is stayed for a
period of four weeks from today to enable the
Defendant to carry the matter higher.
The Chamber Summons is accordingly
disposed of."
The appellant aggrieved by the said order preferred
Appeal No.672 of 2004 before the Division Bench of the
Bombay High Court. The submission before the Division
Bench was that the impugned leave under Order 21 Rule
22 CPC having not been sought by the respondent, the
impugned order is illegal. The Division Bench rejected
the objection on the ground that this plea was not raised
before the learned Chamber Judge.
The learned Chamber Judge held that the consent
terms were valid and subsisting and accordingly passed
the impugned order. The Division Bench did not find any
infirmity in the order passed by the learned Chamber
Judge and consequently the appeal filed by the appellant
was dismissed.
The appellant aggrieved by the aforesaid orders
dated 17th August, 2004 and 21st October, 2004 passed
by the learned Single Judge and the Division Bench
respectively has preferred this civil appeal before this
Court.
We have heard the learned counsel for the parties
and perused the order of the Division Bench and the
order of the learned Chamber Judge. The consent terms
submitted between the parties are as under:
"1. The defendant abovenamed waives the
service of Writ of Summons in the above
matter.
2. The parties confirm that the agreement
dated 16.9.1985 between them is valid
and subsisting and the same is binding
on the parties.
3. The defendant hereby confirms having
received Rs.2,35,000/- from the Plaintiff
as per the agreement dated 16.9.1985.
4. The defendant states that he has
submitted the plan in respect of Plot
No.707 T.P.S. No.IV for development of
the said property to the Municipal
Corporation of Greater Bombay and the
same is to be sanctioned by the
Municipal Corporation of Greater
Bombay.
5. The defendant states that as per the said
proposed plan there are no flats
admeasuring about 750 sq. ft. in both the
wings of the proposed buildings. But
there are flats admeasuring about 925 sq.
ft. (super built up area) in the said
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building and the Plaintiff has agreed to
purchase a flat admeasuring 925 sq. ft.
on further payment of Rs.6,00,000/-
which the plaintiff has agreed to
purchase the flat on 2nd floor in Wing B
Western Side on the following terms :
6. The defendant to sell and to entrust to
the plaintiff flat No.B-4 on the 2nd floor of
B-Wing (super built area) of the building
on plaintiff’s paying the sum of
Rs.6,00,000/- in addition to
Rs.2,35,000/- already paid by him to the
plaintiff in the following manner :
Rs.3,00,000/- prior to the execution
of these terms by Pay Order No.466770
dated 31.10.1991 drawn on Canara
Bank, Dadar (West) Branch;
Rs.3,00,000/- at the time of the
defendant handing over quiet, vacant and
peaceful possession of Flat No.B-4, 2nd
floor, B-Wing at Anant Patil Marg, Shivaji
Park, Dadar (West), Bombay-400028
7. The defendant agrees and undertakes to
provide the aforementioned flat with all
modern facilities to the plaintiff, after the
said building is ready for occupation.
The defendant agrees and undertakes to
execute separate agreement to sell in
respect of the aforementioned flat
admeasuring 925 sq. ft. (super built up
area) in favour of the Plaintiff as required
by Maharashtra Ownership Flat Act,
1964 within eight weeks from the
execution of these terms and the plaintiff
agrees and undertakes to pay stamp duty
and registration charges as applicable on
the agreement registered before the Sub-
Registrar of Assurances at the earliest as
required by the said Act.
8. The plaintiff agrees and undertakes to
pay the additional sum of Rs.6,00,000/-
(in addition to Rs.2,35,000/- paid by him
as per the agreement dated 16th
September 1985 Ex.A to the plaint, in the
manner stated hereinabove.
9. The plaintiff agrees and undertakes to
reconvey to the Defendant that the land
bearing S. No. 25 (Gate No.255) 2 of
Village Loni Kalbhor, Taluka Haveli,
District Pune, admeasuring about 324 sq.
metres within four weeks from the date of
the execution of these terms. It is
expressly agreed by and between the
parties hereto that all the expenses
towards the stamp duty, registration etc.
in respect of such reconveyance shall be
borne by the defendant.
10. The plaintiff has been advised that it is
not required to obtain necessary
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certificate under Section 37(1) of the
Income Tax Act since the consideration of
the suit flat is less than Rs.10,00,000/-.
However, the plaintiff agrees and
undertakes to obtain necessary certificate
under Section 37(1) of the Income Tax if
and when required. It is expressly agreed
by and between the parties and payment
of registration charges if any and the
plaintiff agree and undertakes to bear the
aforementioned expenses towards
obtaining 37(1) if required and getting the
said agreement registered.
11. The defendant hereby agrees and
undertakes to hand over quiet, vacant
and peaceful possession of Flat No.B-4,
2nd floor B-Wing at Anant Patil Marg to
the plaintiff on his paying the entire
consideration mentioned hereinabove and
after completing the construction of the
entire building wherein the said flat is
situated and the said flat is ready for
occupation.
12. The plaintiff agrees and undertakes to
abide by the terms and conditions that
may be mentioned in the proposed
agreement that may be executed in his
favour by the defendant and join the co-
operative body of the flat purchasers in
the suit building in whose favour the
defendant will execute the conveyance to
be executed in respect of the said land in
the said proposed building.
13. The Minutes of Order dated 16th of
September 1991 passed by their Lordship
Chief Justice P.D. Desai and Mr. Justice
Tipnis in Appeal No.622 of 1991 shall
remain in force until the Defendant
hands over possession of the said flat to
the plaintiff on plaintiff’s paying the
entire consideration mentioned
hereinabove."
Clauses 9, 10 and 12 of the said Consent Terms
categorically state that there had been some mutual
obligations on the part of both the parties.
The appellant herein contends that despite such
reciprocal obligations on the part of the parties, the
plaintiff-respondent did not fulfill his obligation in
terms thereof. It was in the aforementioned context,
another arrangement was said to have been arrived at
on 27.07.1995, pursuant whereto and in furtherance
whereof, the respondent herein offered to take an
amount of Rs.32 lakhs enabling him to purchase the
flat of his choice in the vicinity instead of the
concerned flat for which the appellant herein agreed to
pay the said amount.
For the reasons stated hereinafter, we may not
consider that part of submissions of the learned
counsel for the purpose of this case.
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It appears that a notice of motion was filed before
the High Court by way of a Chamber summons, which
was supported by an affidavit affirmed by the
respondent herein. In the said affidavit, although the
other clauses of the consent terms entered into by and
between the parties on 01.11.1991 had been
mentioned but erroneously clauses 9 and 10, which
impose obligation on his part, had been omitted. We
do not appreciate such deliberate omission on the part
of the respondent. The said notice of motion was
withdrawn on 30.07.2001. In the Counter Affidavit
filed before us, the respondent, however, stated:
"I say and submit that I have always been
and I am ready and willing to fulfill my
obligations under the said consent terms and I
have always been and I am ready and willing
to pay the balance amount of Rs.3,00,000/-
which is payable by me against the possession
of the said flat. I say and submit that it may
not be out of place to mention here that on or
before execution of the said consent terms, I
have paid Rs.5,35,000/- to the Petitioner
abovenamed. Out of the said consideration of
Rs.5,35,000/-, Rs. 2,35,000/- was paid by me
way back in 1985. It may not be out of place
to mention here that vide clause 9 of the said
consent terms/consent decree, I had agreed
and undertaken to reconvey to the Petitioner
land bearing Survey No.25 (Gate No.255) of
Village Loni, Kalbhor, Taluka Haveli, District
Pune admeasuring about 324 sq. metres
within four weeks from the date of execution of
the said consent terms. However, as per the
said clause, the Defendant had agreed to incur
the expenses towards stamp duty, registration
charges for execution of the said reconveyance
of the said property in his favour. However, till
the Petitioner has not taken any steps on that
behalf. I am always ready and willing to
reconvey the said property as and when called
upon to do so."
The submission of the learned senior counsel
appearing on behalf of the appellant is that the High
Court committed a serious error in passing the
impugned judgment, without noticing that : (i) the
consent order was followed by subsequent settlement;
(ii) the reciprocal obligations had not been fulfilled; and
(iii) no leave had been obtained under Order 21 Rule
22 of the Code of Civil Procedure.
Mr. Arvind Sawant, the learned senior counsel
appearing on behalf of the respondent, on the other
hand, would draw our attention to the impugned
judgment. With reference to para 9 of the consent
terms, the learned counsel would submit that his
client is ready and willing to comply with the said term
also. Our attention in this connection has been drawn
to the fact that the respondent had taken out notice
under Order 21 Rule 22 of the CPC, when the
appellant intended to create a third party interest.
Having heard the learned counsel for the parties,
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we are of the opinion that as the High Court as also
this Court are acting on the basis of the terms of the
consent decree, the reciprocal obligations of the parties
should be directed to be acted upon simultaneously.
We are not satisfied that the consent terms were
in any manner substituted by another agreement
between the parties. We, therefore, are of the opinion
that the parties should be directed to give effect to the
terms of the consent decree. We have noticed
hereinbefore, whereas the appellant herein is to
handover the flat to the respondent, the respondent
was also obligated to transfer the land situated in the
District of Pune. Both the parties have failed to
comply with their mutual obligations.
We, therefore, direct as under:
1) The appellant shall handover possession of Flat
No.B-4, 2nd Floor, B-Wing, Anant Patil Marg,
Shivaji Park, Dadar (West), Mumbai-400 028 to
the respondent herein, wherefor the requisite
partition wall, if any, should be constructed. In
case of any doubt or dispute as to the exact area
of the flat in question, a surveyor may be
appointed to demarcate the said flat and ensure
construction of a wall between Flat No.B-3 and B-
4. The appointment of surveyor, if any, should be
undertaken within three weeks from date. The
respondent shall bear the expenses therefor. The
respondent shall also bear all costs for
preparation of documents, stamp duties and
registration costs, etc., if any, thereafter transfer
of the said property.
2) The appellant would be entitled to withdraw the
amount of Rs.3,00,000/- deposited by the
respondent herein with the Court Receiver, which
sum is over and above the amount of
Rs.5,35,000/- paid by the respondent to the
appellant. We have been assured that there is no
shortfall in the entire amount of consideration.
3) The respondent shall execute a contract in the
same format which the other allottees of the
building had undertaken in regard to
maintenance etc. of the said flat.
4) The respondent shall execute a deed of
conveyance in favour of the appellant herein in
respect of the land being Survey 25 (Gate No.255)
situated at Village Loni Lalbhor, Taluka Haveli,
District Pune, admeasuring 324 sq. metres within
four weeks from date. He shall also handover
vacant peaceful possession thereof within six
weeks. The appellant shall pay and bear the
costs for requisite stamp papers as also the
registration charges.
The appeal is disposed of accordingly. In the facts
and circumstances of this case, the parties are directed
to bear their own costs.
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