Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.56218
CNR No. MHCC010021432018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.562 OF 2018
IN
SUIT NO.1082 OF 1998
(Disposed off on 11.01.1999)
1. Dasharath Mukund Nimle, ]
Aged about 44 Years, Occ: Farmer and Fishing. ]
2. Pralhad Kisan Nimle, ]
Aged about 45 years, Occ: Farmer and Fishing. ]
3. Leela Yashwant Nimle, ]
(Daughter in law of Mhadu Chaitya Limle ]
and widow of Yashwant Mhadu Limle) ]
Aged about 44 Years, Occ: Farmer and Fishing. ]
4. Tirupati Prakash Nimle, ]
Aged about 22 Years, Occ: Farmer and Fishing. ]
5. Vandana Namdeo Nimle, ]
Aged about 32 Years, Occ: Farmer and Fishing ]
6. Seeta Yashwant Nimle, ]
Aged about 32 Years, Occ: Farmer and Fishing. ]
7. Nirmala Mukund Nimle, ]
Aged about 42 Years, Occ: Farmer and Fishing. ]
All are residing at Adivasi Mhadu Chaitya Nimle ]
Wadi, Room No.2, (Varde Wadi), Adivasi Pada, ]
Anant Baug, N. B. Road, Devidas Lane, Borivali ]
(West), Mumbai 400 103. ]...Plaintiffs /
Applicants
V/s.
1. Vijay Vasudev Wadhava, ]
Aged 62 Years, Occ: Business. ]
2. Sanjay Chabriya, ]
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Aged 53 years, Occ; Business. ]
Full name not known Directors of M/s. Vanita ]
Estate Private Limited, 426A, Vasukamal, 14 th ]
Road, Bandra (West), Mumbai 400 050. ]
And also having address at Aquaria Builders, ]
having office at Adivasi Mahadu Chitya Nimle ]
Wadi, Anand Baug (Vardewadi), Adiwasi ]
Pada, Near Eksar Koliwada, Devidas Lane, ]
Near Adivasit Temple, Borivali (West), Mumbai. ]
And also having address at Vijay Wadhwa Builders ]
3rd Floor, Pletina, Plot No.59, G Block, BKC Bandra ]
(East), Mumbai 400 051. ]
3. Mumbai Municipal Corporation, ]
R/N Ward, Jaywant Sawant Marg, Below Fly Over ]
Bridge, Dahisar (West), Mumbai 400 068. ]Defendants /
Respondents.
Appearances:
Ld. Adv Sameer Kolge for the plaintiffs /applicants.
Ld. Adv Mr. Gandhi for the defendants /respondents.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 01st NOVEMBER, 2018.
ORDER
1. This is notice of motion taken by original plaintiff nos.3, 5 and 6
and one of the legal heir of plaintiff no.4 and other three persons for
setting aside consent terms and order dated 11.01.1999 in L.C. Suit
No.1082 of 1998 and condonation of delay in filing notice of motion
and also for restoration of L.C. Suit No.1082 of 1998.
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In short, facts of the case is that:
2. 8 persons have filed L.C. Suit No.1082 of 1998 against Municipal
Corporation, Viajy Vasudev Wadhava and Sanjay Chabriya, director of
M/s. Vanita Estate Private Limited, alleging that they are the legal and
legal representatives of Kisan Mahadev Nimle, who died on 23.03.1990.
The said deceased was a protected tenant as per the provisions of
Bombay Tenancy and Agricultural Land Act. It further contended that
defendant nos.2 and 3 entered into agreement dated 25.02.1993 with
defendant no.4 for the sale / transfer of the said property and the terms
and conditions mentioned in the agreement. It is specifically agreed
between the defendant nos.2, 3 and 4 as per clause 10(b)(ii) of the
agreement that “the Mali and other occupants of the existing structures
in segment (b) agree and give their consent and concurrence in writing
to vacate such structures and to allow the same to be demolished on
condition that such occupants will be provided by the developer on its
own account permanent alternative accommodation on ownership basis
(the total area of such permanent alternative accommodation to be
provided by the developers to the Mali and all other occupants
combined shall be 900 sq. mtrs in the new building to be constructed by
the developers on one of the said two segments, or alternatively when
the said Mali and or the other occupants (of one or the other of them)
agreeing to receive monetary compensation for themselves elsewhere
and a writing in that connection, acceptable, to both the parties being
signed.
3. The plaintiffs further contention is that defendants failed to
perform the agreement and forcibly taking possession from the plaintiffs
so, the plaintiffs filed the suit for declaration that the threats given by
the defendant no.4 through their servants, agents from dispossessing,
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demolishing and interfering with the peaceful use, occupation and
possession of the plaintiffs of their respective tenaments in the suit
structure standing on the suit property, is illegal, unauthorized and
invalid and it is not binding upon the plaintiffs. The plaintiffs also
prayed to restrain by an order and injunction, the defendant no.4, his
servants, agents from demolishing, dispossessing of the plaintiffs their
respective structure standing on the suit property bearing CTS
No.1448/5 and CTS No.1448/5 (1 to 7) unless and until entering into
an agreement for permanent alternate accommodation in favour of the
plaintiffs, in the proposed building no.2 to be constructed thereon.
They also prayed for direction that the defendant no.4 to enter into
agreement for permanent alternate accommodation in favour of the
plaintiffs in the proposed building no.2 to be constructed on the existing
structure standing thereon bearing CTS No.1448/5 and 1448/8(1 to 7)
and be further directed the defendant no.4 to provide temporary transit
accommodation.
4. The defendant appeared and filed say to notice of motion taken
by the plaintiffs for injunction. From roznama, it shows that on
09.03.1998 with consent of both the parties, Court Commissioner was
appointed to visit suit premises and accordingly, Court Commissioner
visited the suit premises and given report dated 10.03.1998. The Court
Commissioner found that plaintiff nos.1, 2, 3, 4, 5, 6, 7 and 8 are in
possession of room, which is specifically mentioned in the Court
Commissioner report. From roznama on the same day, it shows that
defendant no.4 i.e., Sanjay Chabria representative of defendant no.4
made a statement that they are ready to enter into agreement for
alternate accommodation in respect of plaintiff nos.1, 3, 4 and 5 to the
extent of premises occupied by them. Then, matter is adjourned. Order
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of status quo was passed. Argument of notice of motion heard. On
21.12.1998 submission made by Advocate Mr. Mali for plaintiff that the
builder had approached for settlement hence, the order may be
pronounced after vacation. In view of that adjourned to 14.01.1999 for
order on notice of motion. Thereafter, on 11.01.1999 matter was taken
by NOB mentioned. On that day Advocate Mr. N.C. Shetty for plaintiff
and Advocate Saraf with Mrs. Joshi for the defendant present.
Advocate S. K. Mahadik for plaintiff nos.1 to 8 present. Advocate P.N.
Vora for defendant no.4 is present. Defendant nos.2 and 3 absent.
Defendant no.4 and plaintiff nos.1 to 8 filed consent terms duly signed
by the parties and their Advocates. Consent terms are taken on record
and marked Exh.A. Plaintiffs are not claiming any relief against
defendant nos.1 to 3 as per clause 15 in the consent terms. Decree be
passed in terms of consent terms. Undertaking given by the plaintiff
nos.1 to 8 is accepted. In view of of the consent terms, notice of motion
is disposed off.
5. In consent terms Exh.A in clause nos.1 to 8 mentioned about the
title of the defendants and structure standing thereon as per the Court
Commissioner report in possession of plaintiffs. In view of clause 8(b)
the plaintiffs have given undertaking that they have not created or
agreed to create any right, title or interest in the room in their
possession. In clause 9, it mentioned that in view of the amicable
settlement in the matter as mutually agreed upon, the plaintiffs have
agreed to forgo, give up, surrender and relinquish their respective right,
title and interest and agreed to vacate their said respective rooms and
hand over vacant, peaceful, factual and physical possession thereof to
defendant no.4 upon agreeing to pay compensation as mentioned
against the name each plaintiff by the defendant no.4 amounting to
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Rs.15,00,000/ by Pay Order drawn on ANZ Grindlays Bank, Bandra
Branch as per the detailed provided thereunder so as to enable the
plaintiffs to acquire and purchase suitable residential alternate
accommodation some other places of their choice.
Sr.
No.
Plaintiff's Name Amount Pay Order No.
1 Smt. Shanti Kisan Nimle 3,00,000/ 801334 dt.8.1.99
ANZ Grindlaya Bank.
2 Smt. Leelabai Raman
Kharpade
2,50,000/ 801335 dt.8.1.99
ANZ Grindlaya Bank.
3 Shri. Prahlad Kisan Nimle 1,25,000/ 801336 dt.8.1.99
ANZ Grindlaya Bank.
4 Shri. Prakash Kisan Nimle 1,25,000/ 801337 dt.8.1.99
ANZ Grindlaya Bank.
5 Shri. Dashrath Mukund
Nimle
3,00,000/ 801338 dt.8.1.99
ANZ Grindlaya Bank.
6 Smt. Leela Yeshwant Nimle 2,50,000/ 801339 dt.8.1.99
ANZ Grindlaya Bank.
7 Smt. Gulab Ramesh Rajput 1,00,000/ 801340 dt.8.1.99
ANZ Grindlaya Bank.
8 Smt. Laxmi Vishnu Kharpade 50,000/ 801341 dt.8.1.99
ANZ Grindlaya Bank.
Total 15,00,000/
6. The plaintiffs do hereby admitted and acknowledge the receipt of
their respective claim amount mentioned hereinabove. The plaintiffs do
and each of them doth hereby release, relinquish, surrender and assign
all their right, title and interest including, possessory and occupancy
rights in respect of their respective rooms on the structure standing
thereon unto and in favour of defendant no.4 and hereby further agree
and undertake to remove themselves, their family members, agents
alongwith their articles, belongings etc., and hand over vacant peaceful
factual and physical possession thereof to defendant no.4
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simultaneously on execution hereof and on defendant no.4 making
payment of the amount as mentioned in clause (9) hereinabove to the
plaintiffs. In view of the above settlement, the plaintiffs have no other
or further claim or demands of whatsoever nature in future against
defendant nos.1, 2, 3 and 4 in respect of the suit property or any part
thereof, hence, the suit may be dismissed against the defendant nos.1,
2, and 3 for want of prosecution.
7. Consent Terms signed by plaintiff nos.3, 4 and 5 and plaintiff
nos.1, 2, 6, 7 and 8 have put their thump impression. Consent Terms
were signed by Advocate Suresh K. Mali for the plaintiffs as interpreted
and explained in Marathi and identified by him. Consent Terms were
signed by defendant no.4 and his Advocate Pramod N. Vora. My
predecessor had accepted Consent Terms.
8. Plaintiffs have challenged the consent terms dated 11.01.1999 in
the present notice of motion in the year 2018.
9. Plaintiffs contention is that in view of the settlement made by the
representative of the said defendant nos.1 and 2 consent terms were
prepared. The earlier Advocate appearing on behalf of the plaintiffs
and said defendant nos.1 and 2 informed the plaintiffs that the plaintiffs
were to get permanent alternate accommodation in the newly
constructed building after necessary permission, so, also compensation
of the 1.5 Crores, in lieu of their structures / shed would be paid. The
plaintiffs being poor and illiterate people believe their Advocate, so also,
the defendant nos.1 and 2, however to the shock and surprise of the
plaintiff, fraudulent documenting the nature of “Consent Terms” was
prepared thereby giving the plaintiffs compensation of Rs.15,000/ with
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no reference of permanent alternate accommodation in newly
constructed building. Plaintiffs further contention is that plaintiffs are
Adivasi and are residing in the said structure / shed. They were
shocked that they were not in a position to trust anybody as they had
lost everything at the hands of their own Advocate and defendant nos.1
and 2. After perusal and understanding the terms of consent terms, it is
noticed that there is no clause in respect of permanent alternate
accommodation or there is no clause in respect of compensation. The
earlier Advocate for the plaintiffs represented that there are the clauses
of permanent alternate accommodation as well as the compensation.
The said Advocate with hand in glove with defendant nos.1 and 2 have
fraudulently taken the signatures of the plaintiffs on the said consent
terms out of the Court, and the same is produced before the Court in
the absence of the plaintiffs. It is highly unbelievable that for merger
compensation mentioned in the consent terms, the plaintiffs were
relinquish their rights in respect of their structure. Plaintiffs further
contention is that plaintiffs came to know about the said fraud played
by their Advocate and defendant nos.1 and 2, they have filed various
representation before Chief Minister, the Chief Secretary. They also
filed complaints before the police for inquiry in respect of the fraud
played by their Advocate and defendant nos.1 and 2 therefore, plaintiffs
compel to approach the Hon'ble High Court by way of filing Writ
Petition No.1790 of 2015. After hearing of the said Writ Petition
No.1790 of 2015, by order dated 01.12.2016, the Hon'ble High Court
granted liberty to the plaintiffs to seek appropriate remedy as may be
available in law and dismissal of the petition.
10. Plaintiffs contention is that after passing the order of the Hon'ble
High Court, there were several meetings held in between plaintiffs and
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defendant nos.1 and 2 and they have assured plaintiffs that they will
compensate plaintiffs and also executed the agreement for permanent
alternate accommodation. However, in the first week of January, 2018,
the defendant nos.1 and 2 have also started the constructions of the
other buildings and started inviting the purchasers to purchase the
residential premises in newly constructed building, without
accommodating the plaintiffs therefore, the plaintiffs again visited the
office of the defendant nos.1 and 2, however, they are neglected the
plaintiffs by stating that plaintiffs / their father / mother during their
life time signed the consent terms and relinquished their rights on the
plot of land. They have threatened the plaintiffs for dire consequences.
11. Plaintiffs further contention is that defendant nos.1 and 2 have
constructed Ekvira Club Tower by investing approximately Rs.2,000/
crores and constructed two multistoried building having 21 floors.
12. Plaintiffs further contention is that they issued notice dated
17.01.2018 to defendant nos.1 and 2 calling upon them to execute the
agreement for permanent alternate accommodation and to pay the
necessary compensation. With this, plaintiffs prayed for setting aside
consent terms and restored the suit.
13. The defendant no.1 filed reply to notice of motion. He denied the
plaintiffs contention as consent terms were obtained by fraud. His
contention is that notice of motion is hopelessly barred by Law of
Limitation. It further contended that under the consent terms they were
required to pay Rs.15,00,000/ compensation which has been entirely
paid and acknowledged receipt of. Thus, the whole consent terms has
been acted upon and implemented. The construction on the said
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property of the building is completed in all respect long back in the year
2003 and this defendant has handed over the said building to the
society and thus, the society is incharge of the building. It further
contended that the present plaintiffs are guilty of suppressing material
facts and have deliberately filed a false affidavit in support of notice of
motion. The present plaintiffs have conveniently not spoken even a
word about the payment of Rs.15,00,000/ as per the consent terms. As
per the specific clause 9 in the consent terms, this defendant was to give
monetary consideration of Rs.15,00,000/ to the original plaintiffs
which has been given. It further contended that present notice of
motion is nothing to do with the suit as originally filed or with the
plaintiffs therein, though now claim to be heirs of the original plaintiff
no.1 and if the original plaintiffs have signed the consent terms and the
signatures verified thereof, the claim of the present plaintiffs cannot be
entertained. It further contended that plaintiffs are suddenly come into
the picture making an attempt to extort money from these defendants.
Plaintiffs have waited for nearly 30 years after signing of the consent
terms to come up with a false claim to thwart the development activity
undertaken by the defendants and put pressure on the defendants to
succumb to their illegal demands on a non existent rights. It further
contended that plaintiffs have to file separate suit and not by notice of
motion to set aside the consent terms. It further contended that once
consent terms were signed, executed and filed before the Hon'ble court,
it having attained finality on payment of compensation thereunder, no
person, in whatever capacity, can once again stake claim in respect of a
property, by revisiting and once again claiming right over the property,
which has stood extinguished upon signing of the consent terms. The
defendant denied that as per agreement executed between original
owner Mr. Varde and the defendants, wherein as per clause 10(b)(2),
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the alleged rights of the plaintiffs in respect of their residential premises
were protected and the defendants were ready to provide occupants the
permanent alternate accommodation. Defendant denied that they were
trying to dispossesses the plaintiffs. Defendant's contention is that
without prejudice, plaintiff nos.1 to 3 herein were the original plaintiff
nos.3, 5 and 6 respectively in the above and have signed the consent
terms themselves. It is surprising as to how they can now transpose
themselves as plaintiff nos.1, 2 and 3 in the present notice of motion
and join other plaintiffs and make fresh claim. The defendant denied
that the earlier Advocate appearing for the plaintiffs and defendants
informed the plaintiffs that the plaintiffs were to get permanent
alternate accommodation in the newly constructed building after
necessary permission, so, also compensation of Rs.1.5 crores, in lieu of
their structures / shed would be paid. Defendants denied plaintiffs
being poor and illiterate people believed their Advocate, so also the
defendants, however, to the shock and surprise of the plaintiffs, alleged
fraudulent documenting in the nature of “Consent Terms” was prepared
and thereby giving the plaintiffs compensation of Rs.15,000/ (consent
terms clearly mentioned a sum of Rs.15,00,000/ and not Rs.15,000/)
with no reference of permanent alternate accommodation in newly
constructed building. With this, defendants prayed for dismiss the
notice of motion.
14. Plaintiff Dasharath Mukund Nimle, filed additional affidavit in
support of notice of motion. He contended that so called consent terms
are not filed in the presence of the original plaintiffs and even their
Advocate Mr. Suresh K. Mali, who has signed the consent terms and
appearing for them throughout in the suit. It further contended that
consent terms were prepared and signatures and thumb impressions
-- 11 of 24 --
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(without attestation of the thumb impressions) outside the Court
premises and countersigned by the Advocate Mr. S. K. Mali as Advocate,
but the matter seems to have been taken on board in the absence of the
original plaintiffs, their Advocate Mr. S. K. Mali and some other
unknown Advocates namely Mr. N.C. Shetty and Mr. S. K. Mahadik
shown to be Advocate for plaintiffs, which creates serious doubt about
those consent terms and taking on record the same that too in the
absence of Advocate appearing for the original plaintiffs and in the
absence of original plaintiffs. It further contended that as per roznama
of L.C. Suit No.1082 of 1998 though the consent terms were filed on
11.01.1999, as per objections raised by the decree department
additional court fees, till that date objection is not removed hence,
decree in terms of consent terms were not drawn, therefore, it was
necessary to set aside consent terms and suit is required to be heard on
merits. It further contended that even though Mr. S. K. Mali was
representing the original plaintiffs in L.C. Suit No.1082 of 1998 since
inception means since filing of the said suit 02.03.1998 till 21.12.1998,
when the socalled consent terms were proposed to be filed by taking
up suddenly the matter on board on 11.01.1999, neither Mr. S. K. Mali
nor original plaintiffs were having knowledge about the same nor the so
called Advocate Mr. N. C. Shetty nor Mr. S. K. Mahadik, were having
any authority to represent and appear on behalf of the original
plaintiffs, still the matter was hastily taken on board and so called
consent terms were taken on record and suit is disposed off in view of
consent terms.
15 I have heard both the parties.
16. Following points arise from my determination and consideration
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and I have recorded my findings thereon for the reasons as stated
below:
POINTS FINDINGS
1. Whether the applicants / plaintiffs
proved that consent terms were obtained
by practicing fraud upon them ?
In the negative.
2. Whether notice of motion to set aside
consent terms is in limitation ?
In the negative.
3 Whether the plaintiffs are entitled to get
relief to set aside consent terms in L.C.
Suit No.1082 of 1998 ?
In the negative.
R E A S O N S
AS TO POINT NO.1:
17. It is admitted fact that eight plaintiffs have filed suit for
injunction claiming that one Kisan Mahadev Nimle, predecessor of
plaintiff died on 23.03.1990 who was tenant and plaintiffs are in
possession of 4000 sq. fts., carpet with open space about 1000 sq. ft.,
surrounded the same in C.T.S. No.1448/5 and 1449/5(1 to 7)
admeasuring about 3353.59 sq. mtrs., at Village Eksar, Taluka Borivali,
BSD Bombay. In the suit plaintiffs contended that there was
development agreement and developer agreed to give permanent
alternate accommodation to the plaintiffs. However, without giving
alternate accommodation, defendants obstructing their possession and
intent to demolish their portion so, suit filed for simplicitor injunction
and directing the defendant no.4 to enter into agreement for permanent
alternate accommodation.
18. It is an admitted fact that in that suit Court Commissioner was
appointed to measure the structure in possession of plaintiffs and
accordingly, Court Commissioner visited the suit property and gave
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report dated 10.03.1998. In the said report, the Court Commissioner
has given description of seven rooms show, which room is in whose
possession. It shows the plaintiffs are not in possession of 4000 sq. ft.,
carpet as claimed in plaint. From roznama, it shows that defendant
no.4 i.e., Sanjay Chabriya, made a statement before the Court that they
are ready to enter into agreement for permanent alternate
accommodation in respect of plaintiff nos.1, 3, 4 and 5 to the extent of
premises occupied by them. Then, matter was adjourned from time to
time. It is an admitted fact that Advocate S. K. Mali filed vakalatnama
on behalf of plaintiff and his presence is marked throughout in
roznama. It also shows that on 21.12.1998 Advocate Mali made a
statement that the builder has approached for settlement and order may
be pronounced after vacation and matter adjourned to 14.01.1999. It is
fact that matter was taken on 11.01.1999 for filing consent terms.
Roznama shows Advocate Shetty for plaintiffs present. Advocate Saraf
with Mrs. Joshi for the defendant present. Advocate S. K. Mahadik for
plaintiff nos.1 to 8 present. Advocate P.N. Vora for defendant no.4 is
present. Advocate Saraf with Mrs. Joshi for BMC is present. None
appeared for defendant nos.2 and 3. Defendant no.4 and plaintiff nos.1
to 8 filed consent terms duly signed by the parties and their Advocates.
Consent Terms are taken on record and marked Exh.A. Decree be
passed in terms of consent terms, the plaintiffs are not claiming relief
against defendant nos.1, 2 and 3 as per clause 15 in the consent terms.
Undertaking given by the plaintiff nos.1 to 8 is accepted. Parties to bear
their own cost. In view of the consent terms, notice of motion is
disposed of. Then, the roznama dated 14.05.2010 shows that roznama
dated 11.01.1999, suit is decreed in terms of consent terms. Decree
Department has raised objection regarding additional court fees. Notice
was issued dated 20.03.2002 till this date objection is not removed
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hence, it is not necessary to draw decree. Record and Proceedings be
sent to record department so, it shows the suit was disposed of in terms
of consent terms Exh.A. In Exh.A relevant terms in clause (9). As per
clause (9), plaintiffs have agreed to forgo, give up, surrender and
relinquish their respective right, title and interest and agreed to vacate
their said respective rooms and hand over vacant, peaceful, factual and
physical possession thereof to defendant no.4 upon agreeing to pay
compensation as mentioned against the name each plaintiff by the
defendant no.4 amounting to Rs.15,00,000/ by Pay Order drawn on
ANZ Grindlays Bank, Bandra Branch as per the details and it mentioned
how much that pay order numbers and date.
19. Plaintiffs further contention is that plaintiffs earlier Advocate
appearing on behalf of plaintiffs and defendant nos.1 and 2 informed
the plaintiffs that the plaintiffs were to get permanent alternate
accommodation in the newly constructed building after necessary
permission, so, also compensation of the 1.5 Crores, in lieu of their
structures / shed would be paid. The plaintiffs being poor and illiterate
people believe their Advocate, so also, the defendant nos.1 and 2,
however to the shock and surprise of the plaintiff, fraudulent
documenting the nature of “Consent Terms” was prepared thereby
giving the plaintiffs compensation of Rs.15,000/ with no reference of
permanent alternate accommodation in newly constructed building.
20. Plaintiffs further contention is that earlier Advocates for the
plaintiffs represented that there are clause of permanent alternate
accommodation as well as compensation. The said Advocate with hand
in glove with defendant nos.1 and 2 have fraudulently taken the
signatures of the plaintiffs on the said consent terms out of the Court,
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and the same is produced before the Court in the absence of the
plaintiffs. In additional affidavit in support of notice, plaintiffs
contended that the consent terms were prepared and signatures and
thump impression were obtained outside of the Court premises and
counter signed by the Advocate S. K. Mali but the matter seems to have
been taken on board in the absence of the original plaintiffs, their
Advocate Mr. S. K. Mali and some other unknown Advocates namely
Mr. N.C. Shetty and Mr. S. K. Mahadik shown to be Advocate for
plaintiffs, which creates serious doubt about those consent terms and
taking on record the same that too in the absence of Advocate
appearing for the original plaintiffs and in the absence of original
plaintiffs. It further contended that even though Mr. S. K. Mali was
representing the original plaintiffs in L.C. Suit No.1082 of 1998 since
inception means since filing of the said suit 02.03.1998 till 21.12.1998,
when the socalled consent terms were proposed to be filed by taking
up suddenly the matter on board on 11.01.1999, neither Mr. S. K. Mali
nor original plaintiffs were having knowledge about the same nor the so
called Advocate Mr. N. C. Shetty nor Mr. S. K. Mahadik, were not
having any authority to represent and appear on behalf of the original
plaintiffs, still the matter was hastily taken on board and so called
consent terms were taken on record and suit is restored in view of
consent terms.
21. The defendants denied the contention raised by the plaintiffs.
Defendants contention is that instead of amount of Rs.15,00,000/ were
given by pay order and received by the plaintiffs. The plaintiffs denied
the receipt of pay order. On the contrary, in affidavit it mentioned
amount was Rs.15,000/ mentioned in consent terms. However, at the
time of agreement, the Advocate for plaintiffs admitted that it is his
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mistake of mentioning Rs.15,000/.
22. Advocate for plaintiffs submitted that plaintiffs are illiterate and
Adhivasi. The defendant no.4 made submission before the Court on
hearing of notice of motion that he will provide permanent alternate
accommodation to the plaintiffs. Then, how the plaintiffs can give up
their rights of permanent alternate accommodation. He further
submitted that he was represented by the plaintiffs for permanent
alternate accommodation with Rs.1.5 crores compensation will be
given. However, in consent terms it is not mentioned about alternate
accommodation and amount is mentioned as Rs.15,00,000/ so, it
clearly shows fraud was played on plaintiffs. He further submitted that
since the filing of suit, Advocate S. K. Mali was representing to the
plaintiffs. Then, on the date of consent terms Advocate S. K. Mali was
not present and Advocate Shetty and S. K. Mali seems to be present on
behalf of plaintiffs. However, they are not having vakalatnama on
behalf of plaintiffs. Then, how, they can represent the plaintiffs so, it
shows that fraud was played while tendering consent terms.
23. Advocate for defendants submitted that consent terms are signed
by the plaintiffs and Advocate S. K. Mali. Plaintiffs not denied their
signatures on consent terms and signature of Advocate S. K. Mali. He
further submitted that the plaintiffs not denied as per consent terms
they have received amount by way of DD, the plaintiffs nowhere stated
DD were not given to them and they have not encahsed it so, it shows
that on the date of consent terms amount was given by way of DD so,
the consent terms were filed before the Court and the Court accepted
the consent terms so, there is no fraud played on plaintiffs. He further
submitted that in this case, the plaintiffs ought to have filed affidavit of
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18 NM No.56218
Advocate of S. K. Mali in support of notice of motion that he has not
given authority to Advocate Shetty or S. K. Mahadik, on behalf of him
for filing consent terms. It can be said Advocate Shetty and Advocate S.
K. Mahaik, present on instruction of Advocate S. K. Mahadik.
24. I have gone through consent terms. Consent Terms are signed by
the plaintiffs and defendant no.4. Consent Terms are interpreted and
explained in Marathi to the plaintiff by Advocate S. K. Mali and he
identified plaintiffs. He signed consent terms. If consent terms are not
signed by Advocate S. K. Mali and signed by some other Advocate then
there is some suspicion about consent terms. The plaintiffs in one
breath in para 12 of notice of motion contending that their Advocates
with high hand of the defendant nos.1 to 3 had fraudulently taken
signatures of plaintiffs on the said consent terms out of the court and
the same is produced before the court. In additional affidavit stated
that as Advocate Shetty and S. K. Mahadik shown to be Advocate for
plaintiffs which creates serious doubt about those consent terms and
taking order. In para 3 of additional affidavit Dasharath Nimle
admitted that consent terms were prepared and signatures and thump
impression were taken outside the court premises and counter signed by
the Advocate S. K. Mali as Advocate. Then, the plaintiffs have to file
affidavit of Advocate Mali that he has not authorized Advocate Shetty or
S. K. Mahadik for filing consent terms on behalf of him and plaintiffs in
the court. It is practice in the City Civil Court that one of the junior or
Advocate for firms or associate of Advocate coming in Court and giving
their appearance and presence which is marked on behalf of parties, so,
merely on 11.01.1999 Advocate Shetty and S. K. Mahadik presence is
shown on behalf of plaintiffs, it cannot be said that they have played
fraud on plaintiffs. Admittedly, consent terms are signed by Advocate
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S. K. Mali therefore, it cannot be said fraud was played on the plaintiff
for filing consent terms. The plaintiffs only trying to get benefit that
presence of Advocate S. K. Mali is not mentioned in roznama and
presence of Advocate Saraf with Advocate Joshi is mentioned in
roznama. In consent terms, it is specifically mentioned in view of
alternate accommodation amount is given. It also shows amount is
given as per area in possession of plaintiffs. From Commissioner report,
some of the plaintiffs are in possession of more area and some are less
area. Judicial notice can be taken in the year 1999, there was no much
increase in prices in land and no inflation in economy so, amount
mentioned in consent terms are reasonable. The plaintiffs presence
shown in roznama therefore, I find that there is no fraud played on the
plaintiffs therefore, my finding on point no.1 is in negative.
AS TO POINT NO.2:
25. The plaintiffs have taken notice of motion for setting aside
consent terms dated 11.01.1999 by filing notice of motion on
08.02.2018. Defendants contention is that notice of motion is
hopelessly barred by Law of Limitation.
26. Advocate for defendants submitted that plaintiffs have challenged
the consent terms dated 11.01.1999 in the year 2018. He submitted
that as per Article 59 of Limitation Act, to cancel or set aside an
instrument or decree or for the rescission of a contract, period of
limitation is three years and period begins when the facts entitling the
plaintiff to have the instrument or decree cancelled or set aside or the
contract rescinded first become known to him so, period of limitation is
three years and admittedly, notice of motion is taken after 19 years so,
it is barred by limitation. He also submitted that even as per Article 113
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of Limitation Act, any suit for which no period of limitation is provided
elsewhere in this schedule, period of limitation is three years and begins
to run when the right to sue accrues. He submitted that the plaintiffs
have taken certified copy of consent terms on 02.05.2012 then, from
the date of taking certified copy of consent terms, they are having
knowledge of consent terms then, they have to challenge the consent
terms within three years. He also submitted that the plaintiffs have
filed Writ Petition No.1790 of 2015 for seeking directions seek to
inquiry into the complaint dated 21.05.2013 then, from the date of
complaint dated 21.05.2013, they have knowledge about alleged fraud
but they have not taken any steps for setting aside consent terms
therefore, notice of motion is barred by limitation.
27. Advocate for defendants submitted that court cannot give
declaration sought for statutory time limit expired. He relied upon State
of Punjab and Ors. V/s. Gurdev Singh and Ors.,
MANU/SC/0612/1991. He also relied upon Jamilabai Abdul Kadar
V/s. Shankarlal Gulabchand and Ors., MANU/SC/0518/1975.
28. Advocate for plaintiffs submitted that plaintiffs can challenge the
consent terms on the ground that consent terms were obtained by
playing fraud so, Order 23 Rule 3A of Code of Civil Procedure is not
applicable in the present case. He submitted that if consent decree
obtained by fraud then Court has jurisdiction to set aside the decree. He
relied upon Horil V/s. Keshav and Anr., (2012) 5 SCC 525. He relied
upon Badami (Deceased) by her LR V/s. Bhali, (2012) 11 SCC 574.
29. He submitted that plaintiffs taking his grievances before the
police and other authorities. He submitted that when the plaintiff came
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to know fraud is played upon them and consent terms are filed and he
filed an application for notice of motion so, notice of motion is in
limitation.
30. Advocate for plaintiffs submitted that under the guise of alleged
consent terms, the defendants demolished the structure standing on the
plot of land. Meanwhile, defendants approached plaintiff and have
assured that they will provide permanent alternate accommodation to
them, therefore, they have not approached this Hon'ble Court. Plaintiff
have approached with defendants and they have assured them they will
provide alternate accommodation to them so, the plaintiffs have not
approached this Court. I find once the limitation starts it cannot be
stopped by the parties and plaintiffs having knowledge of consent terms
then they have to take proper legal remedy in time. But in this case, it
is not taken so, it clearly shows the plaintiffs notice of motion is barred
by limitation. Advocate for plaintiffs submitted that the period of
limitation shall not begin to run until the plaintiff or applicant has
discovered the fraud or the mistake or could, with reasonable diligence,
have discovered it, or in the case of a concealed document, until the
plaintiff or the applicant first had the means of producing the concealed
document or compelling its production.
31. Admittedly, the plaintiffs have challenged the consent terms and
order dated 11.01.1999. From the certified copy of consent terms
obtained by plaintiffs, it shows that the plaintiffs have received certified
copy on 02.05.2012, present notice of motion is taken on 08.02.2018.
Plaintiffs have taken this notice of motion challenging consent terms
alleged that consent terms and order obtained by playing fraud and it
be set aside. As per order 23 Rule 3A of Code of Civil Procedure, no
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suit shall lie to set aside a decree on the ground that the compromise on
which the decree is based was not lawful. As per authority relied by the
Advocate for plaintiffs in (2012) 5 SCC 525, General rule that
compromise on which decree is based, can only be questioned before
the same court which recorded compromise exception where
compromise decree is passed by Court, Tribunal or authority of limited
jurisdiction such as Revenue Court, held, civil suit for declaration that
compromise was fraudulent, is not barred under Order 23 Rule 3A of
Code of Civil Procedure.
32. I find that plaintiffs admitted their signatures on consent terms
then the date of consent terms, they have knowledge of consent terms,
they have taken certified copy on 02.05.2012 and filed complaint on
21.05.2013 then, it shows plaintiffs have knowledge of consent terms
and they have not taken legal steps, then the submission of the
Advocate for plaintiffs is devoid of merits. I find as per Article 59 of the
Limitation Act, to cancel or set aside an instrument or decree or for the
rescission of a contract, period of limitation is three years and period
begins when the facts entitling the plaintiffs to have the instrument or
decree cancelled or set aside or the contract rescinded first become
known to him. In the present case, plaintiffs themselves have filed Writ
Petition No.1790 of 2015 seeking directions before the police to inquiry
the complaints dated 21.05.2013, in which alleged about the consent
terms so, it shows the plaintiffs have knowledge about consent terms
prior to filing complaint dated 21.05.2013. Plaintiffs have obtained
certified copy on consent terms on 02.05.2012 so it can be said that
obtaining certified copy, plaintiffs have came to know about the consent
terms. Plaintiffs have nowhere contended in affidavit in support of
notice of motion when they came to know fraud was committed on
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23 NM No.56218
them for filing consent terms, so, it can be said from the date of filing
consent terms plaintiffs admitted their signatures on consent terms.
Then, from the date of consent terms they have knowledge about
consent terms. If they want to challenge the consent terms, then they
have to file proceedings within three years by filing suit or notice of
motion as per Article 59 of Limitation Act. However, plaintiffs have not
taken any steps to challenge the consent terms within prescribed period
of limitation. It also shows from the date of complaint dated
21.05.2013, almost five years have lapsed for taking notice of motion
for setting aside consent terms. Therefore, it clearly shows plaintiffs
notice of motion is barred by limitation. Plaintiffs have taken notice of
motion after 19 years therefore, I find that notice of motion is barred by
limitation therefore, I answer to point no.2 is in negative.
33. With this, I find that plaintiffs notice of motion is liable to be
dismissed and accordingly, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.562 of 2018 is hereby dismissed.
2. Parties to bear their own costs.
3. Notice of Motion No.562 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 01/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 01/11/2018
Transcribed on : 02/11/2018
Signed on : 03/11/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
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24 NM No.56218
03.11.2018 4.49 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
01/11/2018
JUDGEMENT /ORDER signed by
P.O. on
03/11/2018
JUDGEMENT /ORDER uploaded
on
03/11/2018
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