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SUPREME COURT OF INDIA
Indu Malhotra, Ajay Rastogi, JJ.
M/S. CHITRALEKHA BUILDERS & ANR. THROUGH ANIL G. SHAH POWER OF ATTORNEY & HUSBAND OF THE PARTNER – APPELLANTS
Versus
G.I.C. EMPLOYEES SONAL VIHAR CO-OP. HOUSING SOCIETY LTD. & ANR. – RESPONDENTS
Civil Appeal No. 946 of 2016
Decided on : 01-03-2021
Agreement to Sell – Suit for Specific Performance of Agreement – Suit had not been examined by Court on merits, since parties to proceedings entered into compromise and a consent order came to be passed by Court – Present appellants were not a party to proceedings at the stage when consent order came to be passed or subsequent order in suit – Both consent orders would consequently not have a binding effect on present Appellants and their rights could be examined independently in substantive suit filed at their instance – Its legal effect is open to be examined in substantive suit filed at their instance independently on its own merits in accordance with law – In given circumstances, even though Appellants who were later impleaded, have a right of appeal under Section 96 of CPC – However, since Appellants were not a party to Consent Orders, it was not open for Court to examine legal effect of Consent Orders to which Appellants were not a party. (Paras 15, 16, 17, 18 and 19)
Facts of the case:
Present Civil Appeal has been filed assailing the Judgment and Order dated 22.07.2014 passed by the Bombay High Court in Appeal No. 558 / 2007 dismissed the appeal filed by appellants against the Consent Order dated 16.02.2005 in Suit No. 1335 / 1988 to which the appellants are not the signatory to the proceedings.
Findings of Court:
Observations/findings which have been recorded by the High Court in the impugned judgment dated 22.07.2014, in no manner, prejudice the rights of the Appellants, and the pending Suit No. 3162/2005 filed by the Appellant may be examined by the Court independently on its own merits in accordance with law without being influenced by the observations made by the High Court in the impugned judgment dated 22.07.2014.
Result : Appeal disposed of.
JUDGMENT
Indu Malhotra, J.
The present Civil Appeal has been filed assailing the Judgment and Order dated 22.07.2014 passed by the Bombay High Court in Appeal No. 558 / 2007 dismissed the appeal filed by the appellants against the Consent Order dated 16.02.2005 in Suit No. 1335 /1988 to which the appellants are not the signatory to the proceedings.
2. The Us pertains to land admeasuring 5082 square yards bearing Survey No. 218, CTS No. 727 situated in Village Mulund, Greater Bombay. The background facts of this litigation are briefly stated as follows :
(i) An Agreement to Sell dated 28.04.1980 was executed between Defendant Nos. 1 to 52-Vaity family and the Plaintiff-M/s. Chitralekha Builders (then comprising of one Kusum Gorule and Tukaram Baliram Nalwade), whereby the Vaity family undertook to execute a Deed of Conveyance in favour of Chitralekha Builders, or its nominees, on receipt of Rs.35,00,000 towards the balance consideration.
(ii) On 09.05.1980, M/s. Chitralekha Builders entered into an Agreement with a Society viz. G.I.C. Sonal Vihar Co-operative Housing Society Ltd.-Respondent No.1 herein, whereby it was agreed that Chitralekha Builders would develop the suit property, and the constructed area would be given to the Society after development.
(iii) On 01.07.1980, the Partnership between Kusum Gorule and Tukaram Baliram Nalawade stood dissolved vide a Dissolution Deed.
3. Suit No. 1335/1988
3.1. On the failure of the Vaity family to handover possession of the suit property, and execute the Sale Deed as per the Agreement dated 28.04.1980, Respondent No. 1-Society and Respondent No.2-Kusum Gorule filed Suit No. 1335 /1988 before the Bombay High Court against the Vaity family seeking specific performance of the said agreement.
3.2. During the pendency of the suit, M/s. Chitralekha Builders was reconstituted, and a Partnership Deed dated 08.04.1989 was executed between Respondent No.2-Kusum Gorule, Appellant No.2-Nina Anil Shah and two other partners viz. S.J. Pakhare and S.N.Gadekar. Pursuant to the Partnership Deed, the Appellant No. 2 was made a partner of M/s. Chitralekha Builders to the extent of 50%.
3.3. Subsequently, a Supplementary Deed dated 26.01.1996 was executed between Respondent No.2-Kusum Gorule, Appellant No.2-Nina Anil Shah and the two other partners, whereby S.J.Pakhare relinquished his entire share in the partnership in favour of Appellant No.2; and S.N.Gadekar relinquished his share equally between Appellant No.2 and Respondent No.2.
3.4. The Bombay High Court appointed a Court Receiver of the property by Order dated 31.08.1991 passed in Notice of Motion No. 1311 /1988 filed in Suit No. 1335 / 1988. It was noted that Respondent No.2 had taken possession of the suit property, and constructed a boundary wall around the property.
3.5. The Appellants filed Chamber Summons No. 1334 / 2004 for impleadment as co-plaintiffs in Suit No. 1335 /1988. The Respondents filed Chamber Summons to transpose themselves as Defendants.
The Chamber Summons filed by the parties were disposed of by a common order dated 26.10.2004 passed by the learned single judge of the High Court. The Chamber Summons filed by the appellants for impleadment as co-plaintiffs was dismissed as not maintainable, since a party could not force himself to be a co-plaintiff in the Suit. R.1-Society was transposed as Defendant No. 54.
3.6. The Appellants filed Appeal No. 598 / 2005 against the Order dated 26.10.2004 rejecting their Chamber Summons for impleadment before the division bench of the High Court.
3.7. First consent decree dated 16.02.2005
During the pendency of the aforesaid Appeal, the Respondent No. 2 entered into a compromise with the Vaity family on 16.02.2005, and drew up Consent terms, whereby the Vaity family agreed to execute the Conveyance Deed in favour of Respondent No.2 / nominees on receipt of the balance consideration of Rs.35 Lacs. The agreement dated 28.04.1980 between the Vaity family and M/s. Chitralekha Builders stood cancelled. It
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