2000 Supreme(Bom) 823

IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Mathulla Verghese another.... Plaintiffs.
Versus
Vijaya Rajaratnam (Mrs.) others.... Defendants.
Notice of Motion No. 1765 of 1999 in Suit No. 987 of 1996, decided on 18-10-2000.
Advocates appeared :
K.J. Presswala i/b. Mulla Mulla, for plaintiffs.
M.R. Irani, for defendant No. 1.
Ms. S. Shreedharan, for defendant No. 5/Society.

Headnote:Section 35-A, Order XXIII, Rule 3-Consent terms-Transfer of flat in a Co-op. Society-Opposed-Ground-Transfer was against byelaws of Co-op. Society-Held-Bye-laws have been made by a party defendant having linked interests-Consent terms cannot be affected by it-Petition liable to the discussed-Society was joined in this case after adopting proper procedure. Society was represented when the order in that regard was passed and society was also signatory of the consent terms corrected by Justice Gokhale and there is therefore no illegality in the consent terms nor they in any manner violate the mandatory bye-laws of the society. Further even if the bye- laws require that seller should sign prescribed forms, when the consent terms are clear in themselves the plaintiff No. 1 will get all the rights to sign the bye-laws. The interest of the society in this litigation is absolutely limited and therefore they cannot have any objection to the consent terms.

       It is clear that from all the objections raised, none of the objections raised by defendant No.1 to the notice of motion have any force nor they can be accepted. Therefore all of them are rejected and consequently the plaintiffs are entitled to the claim in the notice of motion.

       Order XXIII, Rule 3-Consent term-Not signed by respondent-Opposed-Ground-Consent term are not complete-Held-Addition of defendant only as Proformadefendants-Non-signing of defendant who is not given anything to will is immaterial.-The suit is mainly and solely against defendant No.1 and no relief is claimed against defendant Nos. 2, 3 and 4 and consent terms do not give any right to defendant Nos. 2, 3 and 4 nor cast any duty upon them visa-vis defendant No. 1. Order XXIII, Rule 3 of CPC 1908 permits adjustment of a suit wholly or in a part therefore if the present compromise or consent terms or minutes of order settle the suit between plaintiffs and defendant No.1 fully and completely then the defendant No.1 cannot insist upon signature of other defendant i.e. defendant Nos. 2, 3 and 4. (This will arise if at all the suit is as against defendant Nos. 2, 3 and 4 which in fact is not).

       Order XXIII, Rule 3-Confinement of consent terms-Ground-It included probate petition that is beyond suit matter-Held-Under amended Order XXIII, Rule 3 of matter is between same two parties it is not illegal or barred.-The amendment says that the Court may pass decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. When provisions of law are clear in themselves and there is no bar for doubt or ambiguity it has to be held that including something about the probate proceedings and about the rights of the parties in those proceedings in the consent terms to be filed in this suit is not at all illegal.

       Order XXIII, Rule 3-Counsel agreeing on consent terms-Opposed ground-These were only initiated and not signed-Counsels did not have authority to sign-Held-Statement of advocate is at per with statement in record-No illegality-Judgment of the Supreme Court recognises the right of the Counsel to enter into a compromise and therefore it has been held by the Supreme Court that the compromise in writing and signed by Counsel representating the parties but not signed by the parties in person is valid and binding on the parties and is executable even if compromise relates to matter relating to the parties. This judgment therefore meets the argument of Mr. Irani that Counsel is not authorised to enter into agreement. On other judgments there are no discussions because they are peculiar to those cases.

       Order XXIII, Rule 3-Consent towns-Plaintiff cannot transfer property of defendant-Held-Such objection should come from plaintiff and not from defendant-When both are represented by same advocate contention shall not remain tenable.-It was contendea by Mr. Irani that modifications in the consent terms were carried out when the defendant No.1 was at home lying sick on the bed and when her Counsel was aware of her ill health. There is no substance in the submissions, firstly because the matter regarding consent terms between the plaintiffs and defendant No. 1 was not concluded on one single day. It was going on between the parties for a considerable long time during which defendant No. 1 was represented by Ms. Shastri, Mr. Girish Desai and Mr. Irani. Further nothing new was added to the consent terms by way of modifications.

       Order XXIII, Rule 3-Foreign Exchange Regulation Act, 1973-Consent term-Payment of Rs. 24 lakhs for flat opposed-Ground-Non-Indian cannot sell any property within India-Due to FEMA-Held-Consent terms prior to date of enforcement of FEMA-The case shall be covered under FERA Act of 1973 making such transfer valid.-Under the FERA Act, 1973 it was permissible for a non-Indian to sell property and since the FEMA came into effect on 1.6.2000 and the consent terms and the minutes of order are not affected by FEMA which were prior to 1.6.2000 and they were governed by FERA 1973 and therefore there cannot be any legal obstacle in the way of the parties under the provisions of FEMA, 2000 court has no hesitation in accepting the submissions made by Mr. P because provisions of FERA relied upon by him and applicable in this case are crystal clear.

       Order XXIII, Rules 3 and 8Notice of motion-For passing decree in terms of consent-Opposed-Ground-Notice of motion not filed with original terms-Held-In Order XXIV or Order XXIII, Rule 3 it is not necessary to file original terms with notice-Yet at appropriate time it can be presented-Prior to passing of decree.-Considering the words and terminology used in this Order XXIII Rule 3 of CPC, 1908 it has to be held that filing of the original consent terms along with the Notice of Motion was not a prerequisite for the plaintiffs. Consequently, it has to be held that plaintiff was justified in tendering the original consent terms in Court at the time of or during the arguments of Mr. P, and it was to be held in the circumstances of this case, in particular, that not filing original consent terms along with the Notice of Motion was a wise step taken by the plaintiffs because in view of the stand taken by defendant No.1 in opposing to this Notice of Motion it was ordered that the original consent terms lay in safe custody of the plaintiff till they were actually required by the Court.