IMPORTANT POINT
Where the Courts 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.

Headnote:Civil Procedure Code, 1908—Order 21 Rule 22—Consent Decree—Suit for specific performance—Respondent- plaintiff entered into an agreement with appellant for purchase of a flat—Despite making part payment, when appellant did not perform his part of agreement, respondent filed a suit seeking specific performance of agreement—During pendency of suit, parties have amicably settled the dispute involved in the suit and filed consent terms—Clauses 9, 10 and 12 of the Consent Terms categorically state that there had been some mutual obligations on the part of both the parties—Parties directed to give effect to terms of the consent decree—As both the parties have failed to comply with their mutual obligations, directions made by the Court.
       Held : 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. (Para 18)
       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.(Para 19)

JUDGMENT

Dalveer Bhandari, J.—Leave granted.

2. 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.

3. 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.

4. The appellant aggrieved by the aforesaid orders of the learned Single Judge and the Division Bench has preferred this civil appeal before this Court.

5. 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.

6. 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 Honble 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 Honble 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 plaintiffs 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.

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 the Maharasht

Click Here to Read the rest of this document

2006 Supreme(SC) 753

IMPORTANT POINTWhere the Courts 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.

Login now and unlock premium legal research

IMPORTANT POINT
Where the Courts 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.