JUDGMENT

N J Jamadar, J. - This notice of 1motion is taken out by Shri Sankalp Co-operative Housing Society Limited, the defendant and the respondents who claimed to be the members of the defendant society (collectively referred to as ''the applicants''), to set aside the consent decree passed by this Court on 19th April 1993 and the amendments thereto made by orders dated 28th September 1993, 20th February 1996, 19th December 1996 and 17th February 1999 and the Conveyance of the property of the society executed in favour of the plaintiff in pursuance of the aforesaid consent decree.

2. The genesis of the dispute between the parties is in the works contract, which was entrusted to the plaintiff Time Field Corporation, a partnership firm by the defendant-society, and which resulted in the institution of Suit No.469 of 1978. Thus, to begin with, it would be apposite to note the circumstances in which Suit No. 469 of 1978 came to be instituted and the relief sought therein.

Suit No. 469 of 1978

3. The defendant society came to be registered in the year 1968, under the provisions of the Maharashtra Co-operative Societies Act, 1960 (''The Act, 1960'') vide registration No.Bombay/Housing/1727 of 1968. The defendant society professed to carry out certain repairs and develop the property, situated at Plot No.23/B/2, Subhash Road, Vile Parle (East), Mumbai (''subject property''). Thus, an agreement came to be executed between the defendant society and the plaintiff firm, which was carrying on the business of builder and developer. Under the terms of the said agreement dated 20th April 1975, the plaintiff was to carry out the works contract for a lump sum consideration of Rs.2,68,000/-. On the very day, a supplementary agreement came to be executed between the parties, whereunder the plaintiff was allowed to erect construction on the fourth floor, at the cost of Rs.60/- per sq.ft. with right to sell the units constructed on the fourth floor, with the consent of the society. Though, under the Principal Agreement dated 20th April 1975, the work was to be completed within three months, the work remained incomplete. As certain disputes arose, a further agreement came to be executed on 30th April 1976. It was agreed by and between the plaintiff and defendant that the remaining work would be entrusted to the plaintiff on the terms that the defendant society did owe a sum of Rs.40,000/- to the plaintiff, and the plaintiff had the right to sell the flats on the fourth floor of the premises. In the event of default on the part of the defendant society to pay the said sum of Rs.40,000/- to the plaintiff, there would be a charge on the property of the society.

4. It was the claim of the plaintiff that despite execution of the work in pursuance of the aforesaid agreements and certification thereof by Shri V.G. Chemburkar, the then Architect of the defendant, and raising of the bills for the agreed and additional works executed at the instance of the defendant, the defendant failed and neglected to pay a sum of Rs.1,73,350/-. Thus, the plaintiff instituted Suit No.469 of 1978 seeking, inter-alia, a declaration of charge on the society premises, i.e., the land bearing Plot No.23/B/2 and the structure standing thereon for the sum of Rs.1,87,998.50; that the plaintiff was entitled to sell the flats on the fourth floor and the defendant society was bound to admit and accept the persons to whom the plaintiff would sale the flats as the members of the said society and to transfer flats and shares in the society to those transferees, and a money decree for the sum of Rs.1,87,998.50, with further interest @12% per annum. It would be contextually relevant to note that the plaint was signed and verified by Mrs. Padma Yashwant Jawale, in the capacity of the partner of the plaintiff.

5. The society contested the claim by filing written statement on 10th January 1979. The claim of the plaintiff for the balance amount of Rs.1,73,350/- was stated to be false and ex