Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s no.593-2018 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.593 OF 2018
CNR NO.MHCCO1-00-4072-2018
IN
EXECUTION APPLICATION NO.242 OF 2013
IN
SUIT(HIGH COURT) NO.1992 OF 2000
1. Mulchand K.Ranka alias
Mulchand K.Shah ..Plaintiff
Vs
1. Leena Jatin Mahimtura(since
deceased) and others ..Defendants
and
1. Hemang Jatin Mahimtura and ors ..Applicants
(original defendants)
Ld. advocate Bhavin Gada for decree holder
Ld. advocate Priya Ranade for judgment debtor
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 15/01/2020
ORAL ORDER
1. This chamber summons is tendered by the
applicants/original defendant nos.2 to 4
interalia for
amendment to the execution directing the plaintiffs
to pay the applicants a sum of Rs.1,44,80,000/- as
compensation/damages on account of the refusal
and/or failure by the plaintiffs to abide by the
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obligations voluntarily undertaken by them under the
consent terms dated 16/05/2000 filed in suit
no.1992 of 2000 taken on record by the Hon'ble High
Court by order dated 16/05/2000, to direct the
plaintiffs to disclose on oath all their assets,
properties movable and immovable, bank accounts,
receivables and all other properties and assets and to
appropriate the sale proceeds towards the monetary
claim of the applicants of Rs.1,44,80,000/-.
2. Heard.
3. The plaintiff has filed suit No.1992/2000 before the
Hon'ble Bombay High Court for declaration that
there is valid, binding and subsisting agreement
between the plaintiffs and defendant nos.1 to 4
whereby development-cum-sale-right in respect of
defendant's 50% undivided share, right, title and
interest in the land bearing C.S. No.53 and the
buildings then standing thereon bearing House
No.91-D,91-DD and 91-DDD at Banganga,
Bhagwanlal Indrajit Road, Walkeshwar, Mumbai. The
plaintiff and defendants executed and entered into
consent terms dated 16/02/2000 which was taken on
record by the Hon'ble Bombay High Court. As per the
said consent terms, it was agreed between plaintiff
and defendant nos.1 to 4 that the plaintiffs would
put defendant nos.1 to 4(applicants) in possession of
flat no.701 on the 7th floor of Parshwa building 'B'
and ground floor, shop no.1, admeasuring 198 sq.
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feet in the reconstructed House No.91 D known as
Parshwa 'B'. At the time of filing the consent terms,
the said premises was sanctioned as a multipurpose
room. It was agreed that plaintiff would have the
said premises converted to commercial premises by
seeking appropriate orders from Mumbai Municipal
Corporation for amendment to the plans of the said
premises. It was further agreed that if the plaintiff
was unable to obtain the change in user of the said
premises, then at the option of defendant nos.1 to 4,
the plaintiffs would provide the defendants
residential premises of an equivalent area in the
reconstructed building bearing house no.91DD and
one stilt parking thereunder. It was further agreed
that the plaintiffs in pursuance of the said consent
terms undertook not to create any third party rights
in respect of the residential premises of the
equivalent area of 198 sq. feet on the first floor in the
reconstructed building bearing house no.91DD till
the time the plaintiffs obtained the requisite
permission for the change of user to commercial
premises of the said premises and until then the
plaintiffs gave an undertaking to keep the residential
premises of equivalent area i.e. 198 sq. feet on the
first floor in the reconstructed building bearing
House No.91-DD in vacant condition. Defendant
nos.1 to 4 are in possession of the suit premises since
May 2000. The plaintiff was to obtain appropriate
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order for change of user of the said premises within a
period of three months. However, no such
application was made by the plaintiffs within
stipulated period of three months as agreed and
undertaken by him in the consent terms. The
plaintiffs alleged that they have purportedly through
their architect had filed an application for seeking
change of the user from multi purpose user to shop
user. Prior to filing of the execution application, the
applicants were never informed about the steps taken
for the change in the user of the said premises. The
plaintiffs have took benefit under the said consent
terms and have failed to perform their own
obligations under the said consent terms. The
market value of the said premises would be much
more as commercial premises than in its present state
of being of multi purpose use i.e. of a garage and
residential. The value of mixed user, in respect of the
said premises is Rs.80 lacs approximately whereas
that of commercial user would be of
Rs.1,57,00,000/-. The value of the multipurpose
room as per market value would be approximately
Rs.1,30,00,000/- and that of commercial user would
be approximately Rs.2,00,00,000/-. The plaintiffs
failed to obtain the necessary permission for change
of user and therefore the applicants have suffered
damages to the extent of Rs.1,44,80,000/- and hence
prayed for amendment of execution proceedings for
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claiming the same.
4. The original plaintiffs have filed the reply and
contended that this chamber summons is not tenable,
misconceived. The defendants under the guise of
seeking compensation and damages, attempting to
intimidate and arm twist the plaintiffs to succumb to
their unreasonable demands. The chamber summons
contain facts which could have been pleaded earlier
or were within the knowledge of the defendants
when the execution application was filed. Inspite of
the consent terms for an efficacious remedy in the
event the plaintiffs were unable to secure the require
permission, the defendants have chosen to ignore the
same. The plaintiffs in consonance with the consent
terms, time and again, offered the residential
premises in lieu of the commercial premises to the
defendants as set out in the consent terms, however
the defendants have refused to accept the same for
the reason best known to them. The plaintiffs prayed
for dismissal of the chamber summons.
5. The defendants have filed rejoinder and denied the
contentions of the plaintiffs.
6. This Court has raised the issue whether the
amendment can be made to the execution
proceedings. In order to justify the same, Ld.
Counsel for the defendants placed reliance upon the
following judgments:-
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(i)Jayaraj V/s Chockalingam Chettiar of Hon'ble
Madras High Court, 2015 SCC Online Mad 7098
(ii)Pallipurayil Asan Kutti V/s Mukkolakkal
Koyyaman Kutti of Hon'ble Madras High Court,
MANU/TN/0230/1936
(iii)Dr.Adarsh Chopra V/s Smt.Champa Devi of
Hon'ble Allahabad High Court, 2004 SCC OnLine All
1326
(iv)Jagdishgir Laxamangir Gosavi and anr V/s
Rangacharya Gururacharya Swami Rambagwale and
others of Hon'ble Bombay High Court, 1975 SCC
OnLine Bom 40
7. I had considered the preposition of law enunciated in
aforesaid cited judgments. It is thus clear that the
execution application can be amended.
8. The Learned Counsel for defendant also argued that
while dealing with amendment application Court
should adopt liberal approach and court should not
go into the merits of amendment. The execution is
filed by the applicants /original defendant nos.1 to 4
for execution of consent terms decree. No doubt at
the time of considering the amendment application,
the Court is not supposed to go into the merits of the
amendment. In order to support this position, Ld.
Counsel for the defendant placed reliance upon the
judgment of Hon'ble Apex Court in the case of Rajesh
Kumar Aggarwal and others V/s K.K.Modi and
others, (2006) 4 Supreme Court Cases 385.
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9. There is no quarrel about the said proposition of law.
In the case of Rajesh(
supra), the issue was the
amendment to the plaint. In the present case, the
amendment is in the execution of the consent decree.
By way of amendment the original defendant nos.1
to 4 wish to mold the original consent terms and
wish to claim the compensation of Rs.1,44,80,000/-
and other reliefs which are out of the scope and
ambit of the decree. The amendment to the
execution should not be of such a nature which
would change the nature and character of the
proceedings. The proposed amendment would
change the nature and character of the execution
proceedings and therefore the same is not required to
be considered. Hence, the chamber summons needs
no consideration. Accordingly, it is expedient to pass
following order:-
ORDER
1. Chamber summons No.593 of 2018 is rejected.
2. No order as to cost.
15/01/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/01/2020
Transcribed on: 23/01/2020
Signed on : 30/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
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04/02/2020 at 4.30 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
15/01/2020
Judgment and order signed by P.O. 30/01/2020
Judgment/order uploaded on 04/02/2020
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