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2015 Supreme(Bom) 294
High Court of Judicature at Bombay
ROSHAN DALVI, J.
M/s. Mahendra Builders Pvt. Ltd. & Others - Plaintiffs
Versus
Padmabai & Others - Defendants
Execution Application Nos. 99 of 2011, 241 of 2011 in Chamber Summons No. 299 of 2002 in Suit No. 2824 of 1985
Decided on: 27-02-2015
For the Plaintiffs:Firdos Pooniwala, i/b. Yasin R. Shah, Advocates.
For the Defendants:Dinyar Madon, Sr. Counsel a/w. Sandeep Parikh, Counsel, Prakash Shah a/w. Durgaprasad Poojari I/b PDS & Associates, Advocates.
The main legal point established is that an agreement to allot premises implies an obligation to allot, making the consent terms executable as a decree for specific performance and injunction.
Headnote:
Consent Terms - Execution of Decree - Agreement to Allot - Clause 3, 4, 5, 6 - Order 21 Rule 32 - Specific Performance - Implied Promise to Pay
Fact of the Case:
The suit was settled under consent terms, and the execution application was filed for the redevelopment and possession of the property as per the consent terms. The defendant contended that the decree was not executable as it was only a decree of declaration.
Finding of the Court:
The Court analyzed the consent terms and observed that the agreement to allot the premises implied an obligation to allot, making the consent terms executable. The Court stayed the attachment on the property to allow for construction and redevelopment by the defendant.
Issues: The main issue was whether the consent terms were executable as a decree for specific performance and injunction under Order 21 Rule 32 of the CPC.
Ratio Decidendi: The Court held that the agreement to allot the premises implied an obligation to allot, making the consent terms executable. The Court also referred to legal principles regarding implied promises and the interpretation of consent decrees.
Final Decision: The Court stayed the attachment on the property and allowed the defendant to redevelop and construct the property. The attachment would come into force once the specified premises were constructed, and the plaintiffs would be entitled to further execute the decree if the defendant failed to hand over the premises as agreed.
1. The above suit was settled under consent terms dated 2nd December 2003. An order was passed in terms of the consent terms on 12th January 2004. The suit came to be disposed off in terms of the consent terms on 12th January, 2004. The consent terms are sought to be executed by plaintiff Nos. 3 and 4 and defendant Nos. 17 and 18 (plaintiff) against defendant No.16 (defendant). The consent terms would require to be executed within 12 years of the order being passed in terms thereof. Hence the consent terms would have to be executed on or before 11th January 2016. The execution has been levied in 2011.
2. The plaintiff as well as the defendant took out various chamber summonses. The plaintiff’s chamber summonses were for appointment of court receiver and redevelopment of the property. They have been dismissed. The defendant’s chamber summons were for setting aside the warrant of attachment upon the suit property. The personal residential immovable property of defendant No.16 has been attached. That attachment has been raised. The immovable property of the defendant which was the suit property consisting of a building and one garage therein has also been attached. The attachment thereon is not raised. Those chamber summonses have also been dismissed. The execution application remains. Consequently the attachment on the suit properties remains.
3. It may be mentioned that the attachment, if levied would continue until the sale of the property if the decree of the Court is executable by attachment and sale of the property so attached. It may also be mentioned that execution applications do not come up for consideration before any Court and only an application taken out in execution application would be considered by the Court.
4. The defendant filed an appeal against the order in the chamber summons. The order of the division bench of this Court in appeal dated 21st November, 2014 has observed that the contention of the defendant that the decree is not executable would be considered finally at the hearing of the execution application. The appeal Court has further observed that whether the rights of the parties are conditional upon fulfilling their obligations or not would also have to be decided in the execution application. The defendant has challenged the execution on the only ground that the decree is not executable as it is a decree only of declaration.
5. Under the consent terms, defendant No.16, who took over rights of the other defendants was to redevelop the suit property. Defendant No.16 was to give the plaintiff Nos. 3 & 4 and defendant Nos. 17 & 18 and one Kapurchand Hastimal Jogani HUF, who has not sought execution of the consent decree, five flats in the redeveloped property, three of which were to be of 1267 sq. ft carpet area and two of which were to be of 500 sq. ft carpet area as follows:
1. Plaintiff No.3 500 sq. ft. carpet area
2. Plaintiff No.4 500 sq. ft. ”
3. Defendant No.17 1267 sq. ft. ”
4. Defendant No.18 1267 sq. ft. ”
____________ Total : 3534 sq. ft.” + Kapurchand Hastimal Jogani HUF 1267 sq. ft. ”
Total 4801 sq. ft. ”
The contentions in this execution application are, therefore, in respect of four flats in the building to be redeveloped by defendant No.16.
6. The time for redevelopment and handing over possession of the four flats is not specified in the consent terms. It would, therefore, have to be performed within a reasonable time. The reasonable time for redevelopment would require to account for vacating the tenants, obtaining various permissions of the planning authority, getting the plans sanctioned, putting up the construction and obtaining the requisite certificates for completion of construction and occupation of the building. This having not been done from 2004 until 2011 the above execution applications were taken out and the attachments were levied.
7. The contention of the defendant is that the decre
