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2013 Supreme(Bom) 2219
High Court of Judicature at Bombay
R.D. DHANUKA, J.
Vinod K. Chawla & Others
Versus
Shree Shiv Bhakti Films & Others
Chamber Summons Nos.1756 of 2011, 1143 of 2011 In Suit No.2011 of 2002
Decided On : 29-10-2013
For the Plaintiffs:V.Y. Sanglikar a/w M.S. Oberai, Ms Vaishali Ugle, Advocates.
For the Defendants:S.H. Doctor, Senior Advocate with V.M. Singh i/b Prashant Phanse, Advocates.
Consent decree can be set aside on any ground on which contract can be set aside.
Headnote:
JUDGMENT : By consent of parties, both these chamber summons were heard together and are disposed of by common order. 2. Chamber summons No. 1756 of 2011 is filed by defendant Nos.2(a) and 2(b) for a declaration that agreement contained in the consent terms dated 3rd October 2006 and the decree if any is validly rescinded or in the alternative to rescind the agreement contained in the consent terms and the decree if any and seeks injunction against the plaintiffs from the said decree being drawn up on the basis of consent terms. 3. By chamber summons No. 1143 of 2011 the plaintiffs seek permission to bring the respondents on record as defendant No.2(a) and 2(b) in place of defendant No.2 who has expired, permission to execute a decree on the basis of certified copy of the Judgment pending drawing up of a decree and appointment of court receiver and for injunction.
Fact of the Case:
Plaintiffs had filed a suit (2011 of 2002) against the defendants interalia praying for an order and decree directing the defendants to pay to the plaintiffs the principle amount of Rs.3,30,00,000/- and also interest and costs. Parties to the suit filed consent terms in the said suit on 3rd October 2006. By an order dated 3rd October 2006, this Court decreed the said suit in terms of consent terms. Both the parties agreed, declared and confirmed that the disputes between the plaintiffs and defendant Nos.1 and 2 were settled for the sum of Rs. 4,00,00,000/-and there shall be decree in favour of the plaintiffs for the said sum of Rs. 4,00,00,000/-It was also agreed and declared that in full settlement of the said decreetal amount, defendant Nos.1 and 2 entrust to plaintiff No.1 50% share, right, title and interest in the property bearing plot No.48 Vithalnagar Cooperative Housing Society Ltd., admeasuring about 638.20 sq. metres together with the structure standing thereon situate at N.S.Road No.13, Juhu Vile Parle Development Scheme, Vile Parle (W), Mumbai 400 049 (hereinafter referred to as 'the said property/plot'), and all benefits attached thereto including FST, future FSI, TDR and all future benefits available in the said plot.
Finding of the Court:
48. Under Sections 28 and 30 of the Specific Reliefs Act, on adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from other party and to make any compensation to him which justice may require. In my view interest of justice would be met with if defendants are directed to deposit Rs.4,00,00,000/-towards money claim and Rs.40,00,000/- which according to plaintiffs, defendants have been benefited, in this Court.
Issues: 1. Whether the consent terms/decree would require to be compulsorily registered and stamped and if not registered, whether plaintiffs can apply for enforcement of such consent terms/decree. 2. Whether plaintiffs can apply for execution of decree without the same being drawn up or unless a decree is drawn up, it would not even amount to a decree. 3. Whether Sections 27 and 28 of the Specific Reliefs Act would not be applicable to the application filed by defendant Nos.2(a) and 2(b) for such declaration.
Ratio Decidendi: 30. Supreme Court in case of Bhoopsingh (supra) has held that if a party under the order or decree who had right, title or interest therein has agreed to extinguish the same or has created right, title or interest in prasenti in immovable property of the value of Rs.100 or upwards in favour of other party for the first time by pretended consent, the document is compulsorily registrable.
Final Decision: a) Chamber summons No.1756 of 2011 is made absolute in terms of prayer clauses (a), (c ) and (d). Suit is restored to file. b) Defendant Nos.2(a) and 2(b) are directed to deposit sum of Rs.4,40,00,000/in this Court within four weeks from the date of this order without prejudice to the rights and contention of the defendants. c) Upon depositing the said amount in this Court, plaintiffs would be at liberty to withdraw the said amount on furnishing bank guarantee of a nationalized bank in favour of the Prothonotary & Senior Master initially for a period of two years and to be extended for like period after obtaining further orders from this Court. d) By an order dated 10th October 2011 this Court has allowed prayer (a) of Chamber summons No.1143/11 filed by the plaintiffs. Rest of the prayers of chamber summons are rejected. Ad-interim order passed by this Court in Chamber Summons No.1143 of 2011 is vacated. e) No order as to costs. f) Place the matter on board for further directions on 11th December 2013.
By consent of parties, both these chamber summons were heard together and are disposed of by common order.
2. Chamber summons No. 1756 of 2011 is filed by defendant Nos.2(a) and 2(b) for a declaration that agreement contained in the consent terms dated 3rd October 2006 and the decree if any is validly rescinded or in the alternative to rescind the agreement contained in the consent terms and the decree if any and seeks injunction against the plaintiffs from the said decree being drawn up on the basis of consent terms.
3. By chamber summons No. 1143 of 2011 the plaintiffs seek permission to bring the respondents on record as defendant No.2(a) and 2(b) in place of defendant No.2 who has expired, permission to execute a decree on the basis of certified copy of the Judgment pending drawing up of a decree and appointment of court receiver and for injunction. Some of the relevant facts for the purpose of deciding these two chamber summons are as under.
4. Plaintiffs had filed a suit (2011 of 2002) against the defendants interalia praying for an order and decree directing the defendants to pay to the plaintiffs the principle amount of Rs.3,30,00,000/- and also interest and costs. Parties to the suit filed consent terms in the said suit on 3rd October 2006. By an order dated 3rd October 2006, this Court decreed the said suit in terms of consent terms. Both the parties agreed, declared and confirmed that the disputes between the plaintiffs and defendant Nos.1 and 2 were settled for the sum of Rs. 4,00,00,000/-and there shall be decree in favour of the plaintiffs for the said sum of Rs. 4,00,00,000/-It was also agreed and declared that in full settlement of the said decreetal amount, defendant Nos.1 and 2 entrust to plaintiff No.1 50% share, right, title and interest in the property bearing plot No.48 Vithalnagar Cooperative Housing Society Ltd., admeasuring about 638.20 sq. metres together with the structure standing thereon situate at N.S.Road No.13, Juhu Vile Parle Development Scheme, Vile Parle (W), Mumbai 400 049 (hereinafter referred to as 'the said property/plot'), and all benefits attached thereto including FST, future FSI, TDR and all future benefits available in the said plot. It was further agreed that the said plot would be redeveloped by the plaintiffs in consultation with defendant Nos.1 and 2 who shall appoint professionals and contractors with mutual consent for carrying out such redevelopment between six months from the date of the said consent terms. Both the parties agreed that all costs expenses for redevelopment of the plot including payments required for purchase of TDR, taxes etc. which was estimated at Rs.5 crores shall be borne equally.
5. Plaintiffs were authorized to settle the claims of Barot and Thakral upto a maximum of Rs.1 crore. Parties also agreed that until the said sum of Rs.3,50,00,000/- was paid, the plaintiffs shall have first and paramount charge and/or lien on two flats of defendant Nos.1 and 2 on 1st and second floors as and by way of security for repayment of the said sum of Rs.3,50,00,000/- and defendant Nos.1 and 2 shall not sell the said two flats. It was however agreed that if defendant Nos.1 and 2 failed to pay the said amount within six months from the date of execution, plaintiffs shall be entitled to sell the said two flats agreed to be allotted to defendant Nos.1 and 2 and charged to the plaintiffs as security to recover the said sum of Rs.3,50,00,000/-.
6. It was agreed that the entire redevelopment of the said plot of land shall be completed within a period of 18 months from the date of commencement certificate provided that defendant Nos.1 and 2 cooperate in all respects and do all the acts, deeds and things including execution of documents etc. It was agreed that completion certificate shall be procured within a period of 24 months with 6 months grace. Defendant Nos.1 and 2 and family members of defendant No.2 agreed to vacate the existing structure within 30 days upon t
