Full Judgment Text
2023:BHC-OS:5454
908-ial-5126-2023 in exal-35-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 5126 OF 2023
IN
EXECUTION APPLICATION (ST) NO. 35 OF 2022
Punjalal G. Dave Realtors LLP
formerly known as Punjalal
G. Dave Realtors Pvt. Ltd. ...Applicant /
Orig. Respondent
In the matter between
Chandini Co-operative Housing
Society Ltd. ...Applicant/Claimant
Vs.
Punjalal G. Dave Realtors LLP
formerly known as Punjalal
G. Dave Realtors Pvt. Ltd. ...Respondent
----
Mr. Ankit Rajput i/b. Mr. Rutvij Bhatt, for the Original Claimant.
Mr. Chirag Balsara a/w. Mr. Shyam Kapadia, a/w. Ms. Swati
Sawant a/w. Mr. Nirav Doshi i/b. S. K. Legal Associates, for the
Applicant in IA(L)/5126/2023 and Respondent in Execution
Application (ST) No.35/2022.
----
CORAM : MANISH PITALE, J.
DATE : 22 JUNE 2023
P.C.
. Heard learned counsel for the parties. An interesting
question arises in the present application i.e. whether the Court
could consider a prayer for extension of time to abide by a
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stipulation recorded in consent terms on the basis of which this
Court had disposed of an earlier application, in the face of
opposition by the rival party. In other words, as to whether
extension of time to abide by such a stipulation recorded in
consent terms could be granted only with the consent of the rival
party.
2. The brief facts leading up to filing of the present
application are, that disputes between the parties led to an
arbitration proceeding, culminating in a consent award being
passed by a learned arbitrator. The original claimant initiated
execution proceedings before this Court and an interim
application was moved for certain reliefs.
3. This was in the context of a development agreement
executed between the parties, whereby the applicant herein was
supposed to provide tenements of enhanced area to the members
of the original claimant society and then to exploit the
commercial component thereof. The interim application filed by
the original claimant claimed certain reliefs, including a direction
for handing over possession and ancillary directions.
4. It appears that when the application i.e. Interim
Application No.245/2022 came up for consideration, the
members of the original claimant society had already received
possession of their respective flats and in that backdrop, consent
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terms were executed between the parties on 29/4/2022. These
consent terms recorded specific undertakings given on behalf of
the applicant herein, including an undertaking that it would
obtain full occupation certificate on or before 31/3/2023. On the
same day i.e. on 29/4/2022, this Court passed an order disposing
of the said interim application as per the consent terms,
specifically recording that there shall be an order in terms of the
consent terms.
5. It appears that after the said application was disposed of as
per the consent terms, certain steps were undertaken by the
applicant herein for completing construction of the entire
proposed building and obtaining full occupation certification on
or before 31/3/2023. But, according to the applicant, due to
circumstances beyond the control of the applicant, the said
timeline was impossible to comply with and therefore, on
20/2/2023, the present application was filed with a prayer for
grant of extension of further six months for obtaining the
necessary certificates, completing the construction and obtaining
full occupation certificate.
6. The original claimant filed reply to the present application
and opposed the prayers made in the present application, inter
alia, contending that extension of time, if any, could be granted
only with the consent of the original claimant and that the Court
would have no power to entertain the prayer made in the present
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application.
7. The learned counsel appearing for the applicant submitted
that in the facts and circumstances of the present case, as a matter
of law, this Court does have power to entertain the prayer for
extension of time. It is submitted that the Supreme Court in the
1
case of Smt. Periyakkal and Ors. Vs. Smt. Dakshyani ,
distinguished an earlier judgment of the Supreme Court in the
2
case of Hukumchand V. Bansilal to hold that when parties enter
into a compromise and invite the court to make an order in terms
of the compromise, the Court does retain jurisdiction to extend
the timelines in appropriate cases. It is further submitted that the
aforementioned judgment was followed by the Supreme Court in
a recent judgment in the case of Kishor Ghanshyamsa Paralikar
3
(Dead) Vs. Balaji Mandir Sansthan Mangrul (Nath) and Anr. .
8. It was submitted that once the Court retains power to
extend timeline in such a manner, it is for the applicant to
demonstrate that there are sufficient reasons for granting
extension as prayed. In that regard, the learned counsel
appearing for the applicant relied upon letter dated 20/1/2023
signed by the Architect of the applicant, concerned with the said
project. By referring to the contents of the said letter, it was
submitted that after this Court passed the aforementioned order
1 (1983) 2 SCC 127
AIR 1968 SC 86
2
3 2022 SCC Online SC 1863
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dated 29/4/2022, disposing of the earlier interim application as
per the consent terms, efforts were indeed made on behalf of the
applicant to ensure that timelines specified as per the consent
terms were honoured and the full occupation certificate was
obtained before 31/3/2023. But, due to factors indicated in the
said letter, which were clearly beyond the control of the applicant,
the necessary documents could not be obtained, as a consequence
of which, the applicant was constrained to move this Court with
the present application seeking extension of time. It is further
brought to the notice of this Court that, eventually by notification
dated 3/4/2023, necessary permission was granted by the Urban
Development Department for the additional area of 35.30 sq.
mtr. thereby facilitating the applicant in taking up construction of
the additional area and for taking consequent steps. In this
backdrop, it was submitted that this Court may allow the present
application and although the prayer seeks extension till
30/9/2023, this Court may consider granting further extension,
for the reason that the application has came up for hearing today
in the month of June 2023.
9. On the other hand, learned counsel appearing for the
original claimant vehemently opposed the prayer made in the
present application. He submitted that extension of time, if any,
could be granted only with the consent of original claimant and
this Court ought not to entertain such prayer made on behalf of
the applicant. Reliance was placed on judgment of the Supreme
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Court in the case of Gupta Steel Industries Vs. M/s. Jolly Steel
4
Industries Pvt. Ltd. and Anr. . By relying upon the said
judgment, it was submitted that this Court may not interfere with
or modify the consent terms executed between the parties on
29/4/2022, leading to disposal of the earlier interim application.
10. It was submitted that even otherwise, if the facts of the
present case are appreciated and the conduct of the applicant
herein is noted from the time when the parties entered into the
development agreement, it would be evident that the applicant is
responsible for delay, which resulted in harassment to the
members of the original claimant society. It was submitted that
the terms agreed in the consent award were not complied with
and eventually in the execution application also, the earlier
interim application came to be disposed of on the basis of consent
terms, the timelines of which have also not been honoured by the
applicant herein. On this basis, it was submitted that the present
application deserves to be dismissed.
11. It was submitted that if indulgence is shown to the
applicant, at this stage, the applicant would continue to adopt the
same approach and again seek extension from this Court in
future, thereby indicating that this Court ought not to exercise
discretion in favour of the applicant.
4 1996(11) SCC 678
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12. Having heard the learned counsel for the rival parties, it
would be appropriate to first consider the question as to whether
this Court retains the power to entertain the prayer made in the
present application.
13. There can be no doubt about fact that as per the consent
terms dated 29/4/2022, executed between the parties, specific
timelines were identified and the applicant herein undertook
before this Court to abide by such timelines. This included
obtaining full occupation certificate on or before 31/3/2023. It is
also not disputed that the applicant could not abide by aforesaid
undertaking and it is for this reason that the applicant moved the
present application on 20/2/2023. The question is, whether in
the absence of consent of the original claimant society, this Court
can consider the prayer for extension made on behalf of the
applicant herein. This goes to the very root of the matter, as
jurisdiction of this Court is challenged on behalf of the original
claimant.
14. The Supreme Court in the case of Smt. Periyakkal and
Ors. Vs. Smt. Dakshyani (supra), considered such a situation and
referred to its earlier judgment in the case of Hukumchand V.
Bansilal (supra). The Supreme Court distinguished the earlier
judgment on facts in the backdrop of an order passed on the basis
of compromise entered into between the parties and observed as
follows:
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“4. In the case before us, the situation is totally
different. Unlike the case of Hukam Chand v. Bansilal
where there was a statutory compulsion to confirm the
sale on the dismissal of the application under Order XXI
Rule 90 and, therefore, postponement and further
postponement of the confirmation of the sale could only
be by the consent of the parties, in the case before us,
there was no statutory compulsion to dismiss the
application under Order XXI, Rule 90 in the absence of
an agreement between the parties. The court would have
then decided the appeal arising out of the application on
the merits. The parties, however, entered into a
compromise and invited the court to make an order in
terms of the compromise, which the court did. The time
for deposit stipulated by the parties became the time
allowed by the court and this gave the court the
jurisdiction to extend time in appropriate cases. Of
course, time would not be extended ordinarily, nor for
the mere asking. It would be granted in rare cases to
prevent manifest injustice. True the court would not
rewrite a contract between the parties but the court
would relieve against a forfeiture clause; And, where the
contract of the parties has merged in the order of the
court, the court's freedom to act to further the ends of
justice would surely not stand curtailed. Nothing said in
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Hukamchand's case militates against this view. We are,
therefore, of the view that the High Court was in error in
thinking that they had no power to extend time. Even so,
Shri Javali submitted that this was not an appropriate
case for granting any extension of time. We desire to
express no opinion on that question. The High Court
will decide that question. We accordingly, set aside the
judgment dated 15th January, 1979, of the High Court
and direct the High Court to dispose of I.A. No. VIII in
Execution Second Appeal No. 89 of 1974 afresh in
accordance with law. The parties will bear their own
costs.”
15. The aforementioned position of law, clarified by the
Supreme Court, was followed in the case of Kishor Ghanshyamsa
Paralikar (Dead) Vs. Balaji Mandir Sansthan Mangrul (Nath) and
Anr. (supra). The relevant portion of the said judgment reads as
follows :
“11. This section gives to the vendor or the lessor the
right to rescission of the contract for the sale or lease of
the immovable property in the same suit, when after a
suit for specific performance is decreed, if the vendor or
the lessor fails to pay the purchase money within the
period fixed. This section seeks to provide complete
relief to both the parties in terms of a decree of specific
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performance in the said suit without having resort to a
separate proceeding. Therefore, a suit for specific
performance does not come to an end on the passing of a
decree and the court which has passed the decree for
specific performance retains control over the decree even
after the decree has been passed. Section 28 not only
permits the judgment-debtors to seek rescission of the
contract but also permits extension of time by the court
to pay the amount. The power under this section is
discretionary and the court has to pass an order as the
justice of the case may require. It is also settled that time
for payment of sale consideration may be extended even
in a consent decree. This Court in Smt. Periyakkal and
ors. Vs. Smt. Dakshyani, speaking through Chinnappa
Reddy,J. observed that even in a compromise decree, the
court may enlarge the time in order to prevent manifest
injustice, and to give relief to the aggrieved party against
a forfeiture clause.”
16. In this context, the learned counsel appearing for the
original claimant relied upon judgment of the Supreme Court in
the case of Gupta Steel Industries Vs. M/s .Jolly Steel Industries
Pvt. Ltd. and Anr. (supra), particularly the observation that as a
principle of law, the Court would not be justified in interfering
with and modifying the consent decree unless parties agree for
the same. This Court is of the opinion, as rightly contended by
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the learned counsel appearing for the applicant herein, that the
said observation made by the Supreme Court in the case of
Gupta Steel Industries Vs. M/s .Jolly Steel Industries Pvt. Ltd.
and Anr. (supra) ought not to be appreciated in isolation. If the
said observation is read in context of the paragraph in which it is
stated, it cannot be said that the Supreme Court in the said case
departed from the principle recognized in the earlier judgment in
the case of Smt. Periyakkal and Ors. Vs. Smt. Dakshyani (supra).
In any case, the judgment in the case of Gupta Steel Industries
Vs. M/s .Jolly Steel Industries Pvt. Ltd. and Anr. (supra)
rendered in the year 1996 by a Bench of two Hon’ble judges does
not refer to, much less distinguishes, the aforementioned earlier
judgment of a coequal Bench in the case of Smt. Periyakkal and
Ors. Vs. Smt. Dakshyani (supra). Therefore, the aforesaid
contention raised on behalf of the original claimant deserves to be
rejected.
17. This Court is of the opinion that in the light of the law laid
down by the Supreme Court, this Court retains the power to
consider the prayer made in the present application on behalf of
the applicant. This is fortified by the specific observation made
in paragraph 6 of the order dated 29/4/2022, passed by this
Court in the Interim Application No.245/2022, whereby it was
specifically recorded that there shall be an order in terms of
consent terms, with further observation in paragraph 8 of the said
order that all concerned to act on a digitally signed copy of the
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order. In other words, it becomes clear that the aforesaid earlier
application was disposed of by a specific order of this Court as per
the consent terms. The factual position in the present case is
therefore, completely covered by the observations made by the
Supreme Court in the case of Smt. Periyakkal and Ors. Vs. Smt.
Dakshyani supra.
18. Having held that this Court retains the power to consider
the prayer made in the present application, seeking extension of
time, it needs to be examined as to whether the applicant has
indeed made out a case with cogent reasons for grant of such
extension. This is for the reason that in the very judgment in the
case Smt. Periyakkal and Ors. Vs. Smt. Dakshyani (supra), the
Supreme Court made it clear that such extension of time, even if
the Court has jurisdiction, cannot be granted for the mere asking
and it ought to be granted only in rare cases. Therefore, the
burden on the applicant in the present case also is heavy, in order
to explain as to why extension ought to be granted of the timeline
recorded as an undertaking in the consent terms, on the basis of
which this Court passed the earlier order dated 29/4/2022. In
order to examine the said aspect of the matter, this Court needs to
appreciate the material on record to ascertain whether the
applicant has shown cogent reasons from 29/4/2022, till the
present application was moved on 20/2/2023, as to what
prevented it from abiding by the undertaking given to this Court
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as per the consent terms. In that regard, the applicant has relied
upon the aforesaid letter dated 20/1/2023, of the Architect who
is concerned with the aforementioned development project. The
contents of the letter are relied upon to demonstrate that there
were factors beyond the control of the applicant, due to which the
timelines could not be honoured. The relevant portion of the
said letter reads as follows :
“We were in regular touch with the officer on special
duty to UDD Minister to obtain the endorsement.
Further in April 2022 because of the political turmoil in
Maharashtra which was started in April and ended in
almost October 2022, the signature was got delayed. As
you know, after the turmoil new coalition government
was formed in October and the UDD minister was
elevated as Chief Minister and other concerned officers
were also changed. Accordingly the file was sent back to
Under Secretary to change the address in the letter to
Chief Minister instead of UDD Minister. We had
immediately follow up with all the concerned officers
and succeeded in sending the file back to Hon. C.M.
Office within a short period and finally on the first week
of November 2022, file was inward to Chief Officer,
C.M. Office who is in charge of taking signature of Hon.
C.M. and other formalities/demands were also complied.
Now in principle they agreed to sign the same. It was
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supposed to be signed within one month from the
inward date, but because of busy schedule and non
availability of CM in his place, the signature was got
delayed. Also they are considering the files in a first to
come first basis. In between the Nagpur session of
Assembly was started on 17th of December and ended
on last week of December and all concerned officers
were stationed there till 31 December 2022 along with
Hon. C.M. But the Chief Officer assured us to get it
done any time after they came back to Mumbai and were
expected the same within the first week of January 2023.
Again because of the Hon. C.M's busy schedule, the file
is not yet signed and expecting the same in any time and
we are following up with Hon. CM's office on a day to
day basis to get the file signed.
In this case once plot area correction for the plot under
reference is granted by the concerned authorities, we
shall be able to complete the construction by utilizing
the additional FSI available due increase in plot area. In
general case the process of plot area correction shall be
completed by the concerned CTS Office through
Superintend of Land Records (SLR)/ Collector office,
Mumbai Suburban District, which is the sanctioning
authority.
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Since our plot is part of Town Planning (T.P.) Scheme-
III of Ghatkopar, we need to correct the area in T.P.
records also, for which we had applied for the same in
T.P. Department of MCGM. After completing all the
formalities in the TP. Department and formal sanction
from Hon Municipal Commissioner, the file had been
send to Urban Development Department (UDD) at
Mantralaya for final approval/sanction. The file is still
pending with Hon. Urban Development Minister (now
Chief Minister) for final signature after duly approved by
Principal Secretary (UDD).
Since the file had been sent from T.P. Department of
MCGM directly to UDD for its final sanction, we have
limitations to have personal intervention/follow up in
the matter directly and can only request the concerned
office to expedite the matter at the earliest possible time.
However we are still trying our level best to get it
sanctioned through all possible ways and hope we can
get it sanctioned in a short period of time. Once it is
sanctioned by UDD, we need to comply the formalities
at the T.P. Department of MCGM to do necessary
correction in the TP. records. After completing the
formalities in T.P. Department, again we need to
approach the CTS office and office of S.L.R. Bandra to
make changes in the P.R. card area.
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After completing the above procedures we need to put
up amended plans for approval and for issuing further
CC and thereafter to start & complete construction
work. Once the construction work is completed, we
need to apply and obtain full Occupation Permission for
the building and all these proceedings will consume
considerable time.
19. This Court is of the opinion that the above quoted portion
of the said letter does bring out the circumstances which led to
delay in processing of the relevant files and papers, for the
applicant to proceed with further construction and to honour the
timeline of 31/3/2023, for obtaining full occupation certificate.
It is significant that having pursued the matter in the aforesaid
manner and also having realized that it will not be able to achieve
the aforesaid timeline of 31/3/2023, before the timeline was to
expire, on 20/2/2023, the applicant filed the present application
seeking extension of time. It is crucial that the application was
filed before the timeline expired.
20. The documents on record also show that eventually on
3/4/2023, the relevant notification came to be issued whereby
the Urban Development Department granted necessary
permission for additional area of 35.30 sq. mtr. to enable the
applicant to undertake further construction and then to obtain
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full occupation certificate. The said notification itself came to be
issued after the aforementioned timeline of 31/3/2023 had
already expired. The said document is placed on record by way of
an additional affidavit.
21. While the original claimant vehemently opposed the prayer
made in the present application and reference was made to the
conduct of the applicant, from the time when the development
agreement was executed, this Court is of the opinion that the
original claimant itself having signed the consent terms on
29/4/2022, this Court while considering the prayer in the present
application has to consider the conduct of the parties after
29/4/2022. As stated hereinabove, the material placed on record
before this Court does indicate that there were indeed
circumstances beyond the control of the applicant, including the
political turmoil in Maharashtra, due to which the files and
papers could not be processed as per expected and reasonable
period of time for the applicant to abide by the undertakings
recorded in the consent terms. Therefore, this Court is of the
opinion that the prayer made in the present application deserves
to be granted. It is relevant that the Execution Application is still
pending before this Court.
22. This Court is of the opinion that the applicant now has to
make an endeavour to forthwith take necessary steps in the
matter and to ensure that the construction is completed and full
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occupation certificate is indeed obtained before the extended
period of time, which this Court is inclined to grant.
23. The learned counsel appearing for the applicant, on
instructions, makes a statement that if any pending works still
remain as referred to in the consent terms dated 29/4/2022, all
steps will be taken to complete such pending works also at the
earliest.
24. In view of the above, the application is allowed. The
applicant is granted time till 31/12/2023, to complete the
construction of the said building and to obtain full occupation
certificate. Accordingly, timeline recorded in the consent terms
dated 29/4/2022 stands extended till 31/12/2023.
MANISH PITALE, J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 5126 OF 2023
IN
EXECUTION APPLICATION (ST) NO. 35 OF 2022
Punjalal G. Dave Realtors LLP
formerly known as Punjalal
G. Dave Realtors Pvt. Ltd. ...Applicant /
Orig. Respondent
In the matter between
Chandini Co-operative Housing
Society Ltd. ...Applicant/Claimant
Vs.
Punjalal G. Dave Realtors LLP
formerly known as Punjalal
G. Dave Realtors Pvt. Ltd. ...Respondent
----
Mr. Ankit Rajput i/b. Mr. Rutvij Bhatt, for the Original Claimant.
Mr. Chirag Balsara a/w. Mr. Shyam Kapadia, a/w. Ms. Swati
Sawant a/w. Mr. Nirav Doshi i/b. S. K. Legal Associates, for the
Applicant in IA(L)/5126/2023 and Respondent in Execution
Application (ST) No.35/2022.
----
CORAM : MANISH PITALE, J.
DATE : 22 JUNE 2023
P.C.
. Heard learned counsel for the parties. An interesting
question arises in the present application i.e. whether the Court
could consider a prayer for extension of time to abide by a
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stipulation recorded in consent terms on the basis of which this
Court had disposed of an earlier application, in the face of
opposition by the rival party. In other words, as to whether
extension of time to abide by such a stipulation recorded in
consent terms could be granted only with the consent of the rival
party.
2. The brief facts leading up to filing of the present
application are, that disputes between the parties led to an
arbitration proceeding, culminating in a consent award being
passed by a learned arbitrator. The original claimant initiated
execution proceedings before this Court and an interim
application was moved for certain reliefs.
3. This was in the context of a development agreement
executed between the parties, whereby the applicant herein was
supposed to provide tenements of enhanced area to the members
of the original claimant society and then to exploit the
commercial component thereof. The interim application filed by
the original claimant claimed certain reliefs, including a direction
for handing over possession and ancillary directions.
4. It appears that when the application i.e. Interim
Application No.245/2022 came up for consideration, the
members of the original claimant society had already received
possession of their respective flats and in that backdrop, consent
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terms were executed between the parties on 29/4/2022. These
consent terms recorded specific undertakings given on behalf of
the applicant herein, including an undertaking that it would
obtain full occupation certificate on or before 31/3/2023. On the
same day i.e. on 29/4/2022, this Court passed an order disposing
of the said interim application as per the consent terms,
specifically recording that there shall be an order in terms of the
consent terms.
5. It appears that after the said application was disposed of as
per the consent terms, certain steps were undertaken by the
applicant herein for completing construction of the entire
proposed building and obtaining full occupation certification on
or before 31/3/2023. But, according to the applicant, due to
circumstances beyond the control of the applicant, the said
timeline was impossible to comply with and therefore, on
20/2/2023, the present application was filed with a prayer for
grant of extension of further six months for obtaining the
necessary certificates, completing the construction and obtaining
full occupation certificate.
6. The original claimant filed reply to the present application
and opposed the prayers made in the present application, inter
alia, contending that extension of time, if any, could be granted
only with the consent of the original claimant and that the Court
would have no power to entertain the prayer made in the present
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application.
7. The learned counsel appearing for the applicant submitted
that in the facts and circumstances of the present case, as a matter
of law, this Court does have power to entertain the prayer for
extension of time. It is submitted that the Supreme Court in the
1
case of Smt. Periyakkal and Ors. Vs. Smt. Dakshyani ,
distinguished an earlier judgment of the Supreme Court in the
2
case of Hukumchand V. Bansilal to hold that when parties enter
into a compromise and invite the court to make an order in terms
of the compromise, the Court does retain jurisdiction to extend
the timelines in appropriate cases. It is further submitted that the
aforementioned judgment was followed by the Supreme Court in
a recent judgment in the case of Kishor Ghanshyamsa Paralikar
3
(Dead) Vs. Balaji Mandir Sansthan Mangrul (Nath) and Anr. .
8. It was submitted that once the Court retains power to
extend timeline in such a manner, it is for the applicant to
demonstrate that there are sufficient reasons for granting
extension as prayed. In that regard, the learned counsel
appearing for the applicant relied upon letter dated 20/1/2023
signed by the Architect of the applicant, concerned with the said
project. By referring to the contents of the said letter, it was
submitted that after this Court passed the aforementioned order
1 (1983) 2 SCC 127
AIR 1968 SC 86
2
3 2022 SCC Online SC 1863
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dated 29/4/2022, disposing of the earlier interim application as
per the consent terms, efforts were indeed made on behalf of the
applicant to ensure that timelines specified as per the consent
terms were honoured and the full occupation certificate was
obtained before 31/3/2023. But, due to factors indicated in the
said letter, which were clearly beyond the control of the applicant,
the necessary documents could not be obtained, as a consequence
of which, the applicant was constrained to move this Court with
the present application seeking extension of time. It is further
brought to the notice of this Court that, eventually by notification
dated 3/4/2023, necessary permission was granted by the Urban
Development Department for the additional area of 35.30 sq.
mtr. thereby facilitating the applicant in taking up construction of
the additional area and for taking consequent steps. In this
backdrop, it was submitted that this Court may allow the present
application and although the prayer seeks extension till
30/9/2023, this Court may consider granting further extension,
for the reason that the application has came up for hearing today
in the month of June 2023.
9. On the other hand, learned counsel appearing for the
original claimant vehemently opposed the prayer made in the
present application. He submitted that extension of time, if any,
could be granted only with the consent of original claimant and
this Court ought not to entertain such prayer made on behalf of
the applicant. Reliance was placed on judgment of the Supreme
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Court in the case of Gupta Steel Industries Vs. M/s. Jolly Steel
4
Industries Pvt. Ltd. and Anr. . By relying upon the said
judgment, it was submitted that this Court may not interfere with
or modify the consent terms executed between the parties on
29/4/2022, leading to disposal of the earlier interim application.
10. It was submitted that even otherwise, if the facts of the
present case are appreciated and the conduct of the applicant
herein is noted from the time when the parties entered into the
development agreement, it would be evident that the applicant is
responsible for delay, which resulted in harassment to the
members of the original claimant society. It was submitted that
the terms agreed in the consent award were not complied with
and eventually in the execution application also, the earlier
interim application came to be disposed of on the basis of consent
terms, the timelines of which have also not been honoured by the
applicant herein. On this basis, it was submitted that the present
application deserves to be dismissed.
11. It was submitted that if indulgence is shown to the
applicant, at this stage, the applicant would continue to adopt the
same approach and again seek extension from this Court in
future, thereby indicating that this Court ought not to exercise
discretion in favour of the applicant.
4 1996(11) SCC 678
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12. Having heard the learned counsel for the rival parties, it
would be appropriate to first consider the question as to whether
this Court retains the power to entertain the prayer made in the
present application.
13. There can be no doubt about fact that as per the consent
terms dated 29/4/2022, executed between the parties, specific
timelines were identified and the applicant herein undertook
before this Court to abide by such timelines. This included
obtaining full occupation certificate on or before 31/3/2023. It is
also not disputed that the applicant could not abide by aforesaid
undertaking and it is for this reason that the applicant moved the
present application on 20/2/2023. The question is, whether in
the absence of consent of the original claimant society, this Court
can consider the prayer for extension made on behalf of the
applicant herein. This goes to the very root of the matter, as
jurisdiction of this Court is challenged on behalf of the original
claimant.
14. The Supreme Court in the case of Smt. Periyakkal and
Ors. Vs. Smt. Dakshyani (supra), considered such a situation and
referred to its earlier judgment in the case of Hukumchand V.
Bansilal (supra). The Supreme Court distinguished the earlier
judgment on facts in the backdrop of an order passed on the basis
of compromise entered into between the parties and observed as
follows:
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“4. In the case before us, the situation is totally
different. Unlike the case of Hukam Chand v. Bansilal
where there was a statutory compulsion to confirm the
sale on the dismissal of the application under Order XXI
Rule 90 and, therefore, postponement and further
postponement of the confirmation of the sale could only
be by the consent of the parties, in the case before us,
there was no statutory compulsion to dismiss the
application under Order XXI, Rule 90 in the absence of
an agreement between the parties. The court would have
then decided the appeal arising out of the application on
the merits. The parties, however, entered into a
compromise and invited the court to make an order in
terms of the compromise, which the court did. The time
for deposit stipulated by the parties became the time
allowed by the court and this gave the court the
jurisdiction to extend time in appropriate cases. Of
course, time would not be extended ordinarily, nor for
the mere asking. It would be granted in rare cases to
prevent manifest injustice. True the court would not
rewrite a contract between the parties but the court
would relieve against a forfeiture clause; And, where the
contract of the parties has merged in the order of the
court, the court's freedom to act to further the ends of
justice would surely not stand curtailed. Nothing said in
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Hukamchand's case militates against this view. We are,
therefore, of the view that the High Court was in error in
thinking that they had no power to extend time. Even so,
Shri Javali submitted that this was not an appropriate
case for granting any extension of time. We desire to
express no opinion on that question. The High Court
will decide that question. We accordingly, set aside the
judgment dated 15th January, 1979, of the High Court
and direct the High Court to dispose of I.A. No. VIII in
Execution Second Appeal No. 89 of 1974 afresh in
accordance with law. The parties will bear their own
costs.”
15. The aforementioned position of law, clarified by the
Supreme Court, was followed in the case of Kishor Ghanshyamsa
Paralikar (Dead) Vs. Balaji Mandir Sansthan Mangrul (Nath) and
Anr. (supra). The relevant portion of the said judgment reads as
follows :
“11. This section gives to the vendor or the lessor the
right to rescission of the contract for the sale or lease of
the immovable property in the same suit, when after a
suit for specific performance is decreed, if the vendor or
the lessor fails to pay the purchase money within the
period fixed. This section seeks to provide complete
relief to both the parties in terms of a decree of specific
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performance in the said suit without having resort to a
separate proceeding. Therefore, a suit for specific
performance does not come to an end on the passing of a
decree and the court which has passed the decree for
specific performance retains control over the decree even
after the decree has been passed. Section 28 not only
permits the judgment-debtors to seek rescission of the
contract but also permits extension of time by the court
to pay the amount. The power under this section is
discretionary and the court has to pass an order as the
justice of the case may require. It is also settled that time
for payment of sale consideration may be extended even
in a consent decree. This Court in Smt. Periyakkal and
ors. Vs. Smt. Dakshyani, speaking through Chinnappa
Reddy,J. observed that even in a compromise decree, the
court may enlarge the time in order to prevent manifest
injustice, and to give relief to the aggrieved party against
a forfeiture clause.”
16. In this context, the learned counsel appearing for the
original claimant relied upon judgment of the Supreme Court in
the case of Gupta Steel Industries Vs. M/s .Jolly Steel Industries
Pvt. Ltd. and Anr. (supra), particularly the observation that as a
principle of law, the Court would not be justified in interfering
with and modifying the consent decree unless parties agree for
the same. This Court is of the opinion, as rightly contended by
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the learned counsel appearing for the applicant herein, that the
said observation made by the Supreme Court in the case of
Gupta Steel Industries Vs. M/s .Jolly Steel Industries Pvt. Ltd.
and Anr. (supra) ought not to be appreciated in isolation. If the
said observation is read in context of the paragraph in which it is
stated, it cannot be said that the Supreme Court in the said case
departed from the principle recognized in the earlier judgment in
the case of Smt. Periyakkal and Ors. Vs. Smt. Dakshyani (supra).
In any case, the judgment in the case of Gupta Steel Industries
Vs. M/s .Jolly Steel Industries Pvt. Ltd. and Anr. (supra)
rendered in the year 1996 by a Bench of two Hon’ble judges does
not refer to, much less distinguishes, the aforementioned earlier
judgment of a coequal Bench in the case of Smt. Periyakkal and
Ors. Vs. Smt. Dakshyani (supra). Therefore, the aforesaid
contention raised on behalf of the original claimant deserves to be
rejected.
17. This Court is of the opinion that in the light of the law laid
down by the Supreme Court, this Court retains the power to
consider the prayer made in the present application on behalf of
the applicant. This is fortified by the specific observation made
in paragraph 6 of the order dated 29/4/2022, passed by this
Court in the Interim Application No.245/2022, whereby it was
specifically recorded that there shall be an order in terms of
consent terms, with further observation in paragraph 8 of the said
order that all concerned to act on a digitally signed copy of the
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order. In other words, it becomes clear that the aforesaid earlier
application was disposed of by a specific order of this Court as per
the consent terms. The factual position in the present case is
therefore, completely covered by the observations made by the
Supreme Court in the case of Smt. Periyakkal and Ors. Vs. Smt.
Dakshyani supra.
18. Having held that this Court retains the power to consider
the prayer made in the present application, seeking extension of
time, it needs to be examined as to whether the applicant has
indeed made out a case with cogent reasons for grant of such
extension. This is for the reason that in the very judgment in the
case Smt. Periyakkal and Ors. Vs. Smt. Dakshyani (supra), the
Supreme Court made it clear that such extension of time, even if
the Court has jurisdiction, cannot be granted for the mere asking
and it ought to be granted only in rare cases. Therefore, the
burden on the applicant in the present case also is heavy, in order
to explain as to why extension ought to be granted of the timeline
recorded as an undertaking in the consent terms, on the basis of
which this Court passed the earlier order dated 29/4/2022. In
order to examine the said aspect of the matter, this Court needs to
appreciate the material on record to ascertain whether the
applicant has shown cogent reasons from 29/4/2022, till the
present application was moved on 20/2/2023, as to what
prevented it from abiding by the undertaking given to this Court
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as per the consent terms. In that regard, the applicant has relied
upon the aforesaid letter dated 20/1/2023, of the Architect who
is concerned with the aforementioned development project. The
contents of the letter are relied upon to demonstrate that there
were factors beyond the control of the applicant, due to which the
timelines could not be honoured. The relevant portion of the
said letter reads as follows :
“We were in regular touch with the officer on special
duty to UDD Minister to obtain the endorsement.
Further in April 2022 because of the political turmoil in
Maharashtra which was started in April and ended in
almost October 2022, the signature was got delayed. As
you know, after the turmoil new coalition government
was formed in October and the UDD minister was
elevated as Chief Minister and other concerned officers
were also changed. Accordingly the file was sent back to
Under Secretary to change the address in the letter to
Chief Minister instead of UDD Minister. We had
immediately follow up with all the concerned officers
and succeeded in sending the file back to Hon. C.M.
Office within a short period and finally on the first week
of November 2022, file was inward to Chief Officer,
C.M. Office who is in charge of taking signature of Hon.
C.M. and other formalities/demands were also complied.
Now in principle they agreed to sign the same. It was
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supposed to be signed within one month from the
inward date, but because of busy schedule and non
availability of CM in his place, the signature was got
delayed. Also they are considering the files in a first to
come first basis. In between the Nagpur session of
Assembly was started on 17th of December and ended
on last week of December and all concerned officers
were stationed there till 31 December 2022 along with
Hon. C.M. But the Chief Officer assured us to get it
done any time after they came back to Mumbai and were
expected the same within the first week of January 2023.
Again because of the Hon. C.M's busy schedule, the file
is not yet signed and expecting the same in any time and
we are following up with Hon. CM's office on a day to
day basis to get the file signed.
In this case once plot area correction for the plot under
reference is granted by the concerned authorities, we
shall be able to complete the construction by utilizing
the additional FSI available due increase in plot area. In
general case the process of plot area correction shall be
completed by the concerned CTS Office through
Superintend of Land Records (SLR)/ Collector office,
Mumbai Suburban District, which is the sanctioning
authority.
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Since our plot is part of Town Planning (T.P.) Scheme-
III of Ghatkopar, we need to correct the area in T.P.
records also, for which we had applied for the same in
T.P. Department of MCGM. After completing all the
formalities in the TP. Department and formal sanction
from Hon Municipal Commissioner, the file had been
send to Urban Development Department (UDD) at
Mantralaya for final approval/sanction. The file is still
pending with Hon. Urban Development Minister (now
Chief Minister) for final signature after duly approved by
Principal Secretary (UDD).
Since the file had been sent from T.P. Department of
MCGM directly to UDD for its final sanction, we have
limitations to have personal intervention/follow up in
the matter directly and can only request the concerned
office to expedite the matter at the earliest possible time.
However we are still trying our level best to get it
sanctioned through all possible ways and hope we can
get it sanctioned in a short period of time. Once it is
sanctioned by UDD, we need to comply the formalities
at the T.P. Department of MCGM to do necessary
correction in the TP. records. After completing the
formalities in T.P. Department, again we need to
approach the CTS office and office of S.L.R. Bandra to
make changes in the P.R. card area.
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After completing the above procedures we need to put
up amended plans for approval and for issuing further
CC and thereafter to start & complete construction
work. Once the construction work is completed, we
need to apply and obtain full Occupation Permission for
the building and all these proceedings will consume
considerable time.
19. This Court is of the opinion that the above quoted portion
of the said letter does bring out the circumstances which led to
delay in processing of the relevant files and papers, for the
applicant to proceed with further construction and to honour the
timeline of 31/3/2023, for obtaining full occupation certificate.
It is significant that having pursued the matter in the aforesaid
manner and also having realized that it will not be able to achieve
the aforesaid timeline of 31/3/2023, before the timeline was to
expire, on 20/2/2023, the applicant filed the present application
seeking extension of time. It is crucial that the application was
filed before the timeline expired.
20. The documents on record also show that eventually on
3/4/2023, the relevant notification came to be issued whereby
the Urban Development Department granted necessary
permission for additional area of 35.30 sq. mtr. to enable the
applicant to undertake further construction and then to obtain
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full occupation certificate. The said notification itself came to be
issued after the aforementioned timeline of 31/3/2023 had
already expired. The said document is placed on record by way of
an additional affidavit.
21. While the original claimant vehemently opposed the prayer
made in the present application and reference was made to the
conduct of the applicant, from the time when the development
agreement was executed, this Court is of the opinion that the
original claimant itself having signed the consent terms on
29/4/2022, this Court while considering the prayer in the present
application has to consider the conduct of the parties after
29/4/2022. As stated hereinabove, the material placed on record
before this Court does indicate that there were indeed
circumstances beyond the control of the applicant, including the
political turmoil in Maharashtra, due to which the files and
papers could not be processed as per expected and reasonable
period of time for the applicant to abide by the undertakings
recorded in the consent terms. Therefore, this Court is of the
opinion that the prayer made in the present application deserves
to be granted. It is relevant that the Execution Application is still
pending before this Court.
22. This Court is of the opinion that the applicant now has to
make an endeavour to forthwith take necessary steps in the
matter and to ensure that the construction is completed and full
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occupation certificate is indeed obtained before the extended
period of time, which this Court is inclined to grant.
23. The learned counsel appearing for the applicant, on
instructions, makes a statement that if any pending works still
remain as referred to in the consent terms dated 29/4/2022, all
steps will be taken to complete such pending works also at the
earliest.
24. In view of the above, the application is allowed. The
applicant is granted time till 31/12/2023, to complete the
construction of the said building and to obtain full occupation
certificate. Accordingly, timeline recorded in the consent terms
dated 29/4/2022 stands extended till 31/12/2023.
MANISH PITALE, J.
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