Rangnath Haridas Vs. Dr. Shrikant B. Hegde [2006] Insc 514 (22
August 2006)
S.
B. Sinha & Dalveer Bhandari
[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 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:
-
"The
parties confirm that the agreement dated 16.9.1985 between them is valid and
subsisting and the same is binding on the parties.
-
The
Defendant hereby confirm having received Rs.2,35,000/- from the plaintiff as per
the agreement dated 16.9.1985.
-
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.
-
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 400028.
-
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 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.
-
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.
-
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 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 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:
-
"The
defendant abovenamed waives the service of Writ of Summons in the above matter.
-
The
parties confirm that the agreement dated 16.9.1985 between them is valid and
subsisting and the same is binding on the parties.
-
The
defendant hereby confirms having received Rs.2,35,000/- from the Plaintiff as
per the agreement dated 16.9.1985.
-
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.
-
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
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 :
-
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
-
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.
-
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.
-
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.
-
The plaintiff has been advised that
it is not required to obtain necessary 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.
-
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.
-
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.
-
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.
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 :
-
the
consent order was followed by subsequent settlement;
-
the
reciprocal obligations had not been fulfilled; and
-
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, 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:
-
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.
-
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.
-
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.
-
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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