An independent suit challenging a consent decree is barred under Order XXIII Rule 3A of the C.P.C. if the allegations of fraud are predominantly about breach/non-compliance of the consent terms/consent decree, which were subsequent to the passing of the consent decree.

JUDGMENT

C.V. Bhadang, J. - The challenge in this revision application is to the common order dated 11th July 2019 below application Exhibit-37 Exhibit-52 and Exhibit-86 passed by the learned Senior Civil Judge, Pune in Special Civil Suit No.556/2019. By the impugned order the learned trial court has refused to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure ( CPC for short).

2. The facts necessary for the disposal of the application may be stated thus :-

The aforesaid suit has been filed by the first respondent Kumar City Residents Cooperative Housing Society Ltd (Plaintiff) against the petitioners ( Defendant nos 1 to 5) and the respondent nos 2 to 4( defendant nos 6 to 8) for declaration, mandatory and prohibitory injunction, conveyance and damages etc.

Land Survey No.14 admeasuring 8 H 70.3 Ares and S No.13B Hissa No 1+2+3 admeasuring about 7H 69.5 Ares totally admeasuring about 16H 39.38 Ares i.e. 1,63,938 Sq. Mts of Village Vadgaon Sheri Tq Haveli Dist-Pune is the land which is referred to as the 'Project Land'. The said land was belonging to Tukaram Mulik and others. In the year 1991-92 the land owners had entrusted the development rights of the land to the defendant no 2 Sukumar Estates Ltd. The defendant No.2 after obtaining necessary permission has executed a residential project on the land by name 'Kumar City', comprising of Plots, Row houses and bungalows, which were transferred to the purchasers, under the Maharashtra Ownership of Flats Act 1963 (MOFA, for short) who had formed the plaintiff Society. It was represented to the members/purchasers that 'Kumar City' would be a state of the Art project having various civic amenities including a exclusive club house. At the time of the purchase, the members had paid club membership fees ranging from Rs 50,000/- to Rs 75,000/-. It is the material case that at the relevant time the defendant no 2 instead of providing the Club House and other Amenities as per the agreed terms had only provided the facility of a Swimming Pool,Health Club, Tennis Court, Badminton Court, Squash Court to the members, on a portion of the land admeasuring 23,096 Sq Mts from out of the Project Land. The said portion is the subject matter of dispute, which is referred to as the 'Suit Land'.

3. In the year 2007 the defendant Nos.1 to 4 started demolishing the Club House, which led the plaintiff to file RCS no 1262/2007 against the defendant Nos.1 to 4 for declaration and injunction. The parties however reached a settlement and the suit came to be decreed on the basis of Consent Terms (Ex-122 ) on 18th July 2011. According to the plaintiff the defendant nos 1 to 4 had accepted to provide the agreed amenities/facilities including a club house of a bigger area. It is the material case that till date the defendant Nos.1 to 4 have not complied with the agreed terms by constructing a new club house and constitution of an Advisory board of the club and by executing a conveyance deed in respect of land admeasuring 51,967.85 Sq Mts from out of the 'Project Land', within ninety days of the execution of the consent terms.

4. The plaintiff was required to approach the District Deputy Registrar (DDR) for an order of a deemed conveyance. Eventually the deemed conveyance was executed on 17th February 2018 in pursuance of an order dated 11th June 2015. In short it is the material case that the defendant nos 1 to 4 failed to abide by the contractual terms, as also the terms of the consent decree, which would go to show that since inception the defendants had no intention to comply with the same. It is contended that under the consent terms the defendant Nos.1 to 4 appointed their sister concern Kumar City Club Ltd (defendant no 8) for development and the management of the Club house, which was subcontracted. It is also contended that the club facilities were mismanaged.

5. The members of the plaintiff, received a notice dated 29th May 2018 from the defendant No.8 thereby unilaterally terminating